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Lund v. St. Paul Fire & Marine Insurance Co.2/11/2002
further instruction concerning the nature, scope, and application of the work-product privilege.
In Adels v. Cigna Insurance Co., WCC No. 9307-6831 (1/6/94) and (3/10/94), one of the documents at issue was an investigative report. This Court held that the report was covered by the work-product rule despite the fact that it was a part of the insurer's claims file maintained prior to litigation. The significant fact to that determination was the fact that the insurer's attorney "was involved prior to the time of the investigative report which is sought by the petitioner." Adels (3/10/94) at 2. "That involvement strongly suggests that the investigative report was prepared in anticipation of litigation rather than in the ordinary course of the insurer's business." (Id.)
In Mutchie v. Old Republic Insurance Co., WCC No. 9411-7185 (1/20/95), the insurer produced redacted copies of notes and memos made by the claims adjuster. Counsel for the insurer argued the redacted portions were protected by the work-product rule. Citing Rule 26(b)(3), the Workers' Compensation Court "determined that most of [the redacted portions] were not made in contemplation of litigation or that petitioner has made a requisite showing of substantial need for the information." Id. at 2. The Court explained:
The alleged industrial accident at issue in this case occurred on April 28, 1994. Although the employer suspected that there might be future litigation over the matter, attorney involvement on behalf of the insurer did not occur until August of 1994. The entries in question were made prior to that time. Many involved the adjuster's contacts with the employer and management of the case.
The Montana Supreme Court has distinguished between claims files of attorneys and those of insurers. Cantrell v. Henderson, 221 Mont. 201, 718 P.2d 318 (1985). The work-product rule does not automatically apply to an insurer's claim file. Tigart v. Thompson, 237 Mont. 468, 474-5, 774 P.2d 401 (1989). Information prepared in the regular course of a claims adjuster's work is typically not protected. Mutchie, supra, at 2 (emphasis added).
In Mutchie, the dispute also involved the reasonableness of the insurer's adjustment of petitioner's claim. As the Court noted:
That dispute arose from the very beginning, as illustrated by the controversy over whether Dr. Digg's was selected by petitioner as his physician. . . . Some of the information contained in the adjuster's notes and memos may be relevant to petitioner's claim that the employer or insurer selected Dr. Diggs and denied him appropriate medical treatment. Id.
While ordering production of most of the notes and memos concerning that issue, the Court nonetheless held that portions discussing actual attorney advice and specific mental impressions were protected and need not be disclosed.
Turning to the present case, the insurer argues that "the claimant is not entitled to any adjuster's notes whatsoever, with the exception of [notes concerning] direct contact with [claimant], once counsel is involved." (December 19, 2001 letter from Mr. Joe C. Maynard.) In its subsequent brief, the insurer urged that work-product protection was triggered by the threat of litigation following involvement of claimant's counsel even though the insurer had not yet involved counsel on its behalf. The insurer argues:
Once Kathy obtained counsel, St. Paul was placed on notice that litigation might ensue. Accordingly, as in Kuiper, any notes compiled by Crawford were the result of an investigation geared toward the possibility of litigation and protected from discovery by the work product rule. The purpose of the w
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