JANUARY 2012 BAD FAITH CASES: COURT PROVIDES WORK PRODUCT PROTECTION TO ADJUSTER’S MENTAL IMPRESSIONS, CONCLUSIONS AND OPINIONS (LACKAWANNA)

The insured brought breach of contract and bad faith claims. At issue in this opinion is the insured’s seeking discovery of the insurer’s adjustment agent’s mental impressions, conclusions or opinions and whether this was protected from discovery under Pa.R.C.P. 4003.3. The issue was whether such arose in anticipation of litigation.

The insured argued that the filing of suit should provide a bright line test for when anticipation of litigation is triggered. The court cited Judge Wettick’s decision in Mueller v. Nationwide Mutual Ins. Co., 31 D. & C.4th (C.C.P. Allegheny 1996) in rejecting that test, as “Rule 4003.3 protects any mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense.” Such could have been developed where the insurer and adjuster clearly envisioned litigation could be instituted, even prior to any initiation of suit.

Thus, the key issue is when the insurer and adjuster envisioned litigation vs. a time when they had not contemplated that litigation could arise. The burden would be on the carrier, as the party opposing discovery, to make its case. The court ordered the carrier and adjuster to create a privilege log as to any such materials as to which they were asserting work product, with the matter being remanded to the discovery master to review such materials for the work product privilege in the first instance.

Date of Decision: October 5, 2011

Church of the Forgotten Souls d/b/a Heaven Help Us Thrift Store v. NGM Ins. Co., C.C.P. Lackawanna No. 10 CV 7078 (Oct. 5, 2011).