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Legal developments affecting professional liability insurers

Category Archives: Discovery Issues

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Federal Court Limits Information Discoverable by Insurer Concerning Insured’s Prior Knowledge

Posted in Discovery Issues, Prior Knowledge/Warranty Exclusion
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

Court Applies 2015 “Proportionality” Amendments to Federal Rules to Preclude Insured’s Discovery into Extrinsic Evidence Regarding Insurance Policy

Posted in Discovery Issues
A 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 Issues
Applying 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 Issues
In 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 Issues
In 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 Obligated to Produce Underwriting Files Relating to Policies Issued to Other Policyholders

Posted in Discovery Issues
The 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 Issues
The 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 Issues
The 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 Issues
Applying 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 Issues
A 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 Issues
A 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 Issues
A 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 Issues
The 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