The United States District Court for the Middle District of Florida has ruled regarding the discoverability of a broad array of documents sought by an insurer in a declaratory judgment action concerning application of a prior knowledge condition. Berkley Assurance Co. v. Expert Grp. Int’l Inc., 2017 WL 4574599 (M.D. Fla. Oct. 13, 2017). The… Continue Reading
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Court Applies 2015 “Proportionality” Amendments to Federal Rules to Preclude Insured’s Discovery into Extrinsic Evidence Regarding Insurance Policy
Posted in Discovery IssuesA Pennsylvania federal district court, evaluating the recent amendments to the Federal Rules of Civil Procedure regarding proportionality in discovery, has held that an insured that seeks to discover extrinsic evidence regarding interpretation of an insurance policy must: (1) point to specific language in the policy itself that is genuinely ambiguous (or that extrinsic evidence… Continue Reading
Lead Underwriter’s Document Production Limits Scope of Following Market’s Production
Posted in Discovery IssuesApplying New York law, a federal district court in New York has held that market underwriters in a syndicate insurance program need not produce potentially responsive claim materials where such production is burdensome and duplicative of documents already produced by the lead underwriter on the program. Certain Underwriters of Lloyd’s v. National Railroad Passenger Corp.,… Continue Reading
Documents Relating to Other Insureds, Reserves, Reinsurance Communications, Claims Handling and Underwriting Manuals Not Discoverable
Posted in Discovery IssuesIn a favorable ruling for a Wiley Rein client, a Tennessee federal court has rejected an insured’s motion to compel documents and interrogatory responses relating to reserves, reinsurance communications, claims and underwriting manuals, and other claims against other insureds. First Horizon Nat’l Corp. v. Houston Cas. Co., 2016 WL 5869580 (W.D. Tenn. Oct. 5, 2016). … Continue Reading
Insured Required to Reimburse Defense Costs Paid by Insurer for Non-Covered Claim
Posted in Defense Costs, Discovery IssuesIn a win for a Wiley Rein client, the United States District Court for the Southern District of California, applying California law, has held that an insured is required to reimburse his insurer for defense costs incurred for a non-covered claim where the insurer properly reserved its right to recoupment. Columbia Cas. Co. v. Abdou,… Continue Reading
Insurer Not Required to Produce Post-Litigation Claim File Documents
Posted in Discovery IssuesApplying California law, a federal district court has held that an insured is not entitled to discovery of information in its insurer’s claims-handling file that post-dated the filing of coverage litigation. Genesis Ins. Co. v. Magma Design Automation, Inc., 2016 WL 3057375 (N.D. Cal. May 31, 2016).… Continue Reading
Court Limits Discovery in Absence of Bad Faith Claim
Posted in Discovery IssuesThe United States District Court for the Middle District of Florida, applying federal law, has denied a motion to compel an insurer to produce its claims file, underwriting file, and claims handling protocols in coverage litigation, holding that such documents are not relevant in the absence of bad faith allegations. Koster v. Landmark Am. Ins.… Continue Reading
Insurer Obligated to Produce Underwriting Files Relating to Policies Issued to Other Policyholders
Posted in Discovery IssuesThe United States District Court for the Western District of Pennsylvania ruled that, under federal rules of civil procedure regarding discovery, an insurer is obligated to produce in coverage litigation underwriting files relating to policies issued to other policyholders. H. J. Heinz Co. v. Starr Surplus Lines Ins. Co., 2015 WL 5781295 (W.D. Pa. Oct.… Continue Reading
Attorney Sanctioned for Failure to Disclose Client’s D&O Insurance Policy
Posted in Discovery IssuesThe United States Court of Appeals for the Tenth Circuit has held that an attorney may be sanctioned under Rule 37 of the Federal Rules of Civil Procedure for failing to disclose a client’s D&O policy that potentially covered securities-related claims asserted against the client. Sun River Energy, Inc. v. Nelson, 2015 WL 5131947 (10th… Continue Reading
Settlement Communications Within Ten Days Of Mediation Protected From Discovery In Coverage Litigation By California’s Mediation Privilege
Posted in Discovery IssuesThe United States District Court for the Northern District of California has held that, pursuant to California rules of evidence, a mediation privilege applied in coverage litigation to preclude discovery of underlying settlement communications between an insured and a claimant within ten days following the mediation. Silicon Storage Tech., Inc. v. Nat’l Union Fire Ins. Co.… Continue Reading
Insurer Waives Privilege by Asserting Reasonable Basis for Coverage Denial in Bad Faith Litigation
Posted in Discovery IssuesApplying South Carolina law, the United States District Court for the District of South Carolina has held that an insurer waived the attorney-client and work-product privileges for communications between the insurer and its coverage counsel prior to the insurer’s denial of coverage where the insurer asserts in a later bad faith suit that it had… Continue Reading
Insurer Entitled to Discover Insured’s Communications with Broker, Defense Counsel Prior to Date of Final Coverage Denial and Communications with Defense Counsel Regarding Allocation Issues
Posted in Discovery IssuesA United States District Court in Florida has held that communications between an insured and its defense counsel that would normally fall within the attorney-client privilege were discoverable by the insurer in a coverage action because the insured placed certain communications “at issue” and because the parties shared a common legal interest prior to the… Continue Reading
Insurer’s Communications with Reinsurer Not Privileged
Posted in Discovery IssuesA federal district court in Iowa, applying federal law, has held that the work-product doctrine did not protect an insurer’s communications with a reinsurer where the communications were created in the ordinary course of the insurer’s business. Progressive Cas. Ins. Co. v. Fed. Deposit Ins. Corp., 2014 WL 4168477 (N.D. Iowa Aug. 22, 2014). Applying… Continue Reading
Court Won’t Strike “Expert” Report by Broker on Application Ambiguity and Best Practices
Posted in Discovery IssuesA Maryland federal court has refused to strike a purported expert report by a former broker opining that an insurer “should have” asked clarifying questions about the insureds’ response to “ambiguous” application questions. Humane Soc. of U.S. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 2014 WLJ 3055568 (D. Md. July 3, 2014). However,… Continue Reading
Privileges Protecting Communications Regarding Underlying Suit Not Waived by Placing Causation “At Issue”
Posted in Discovery IssuesThe United States District Court for the Southern District of Florida, applying Florida and federal law, has held that a policyholder did not waive its attorney-client privilege or work product protection for communications regarding an underlying claim by bringing a negligence action against its insurance broker and agent. Guarantee Ins. Co. v. Heffernan Ins. Brokers,… Continue Reading