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Lund v. St. Paul Fire & Marine Insurance Co.2/11/2002
ork product rule is to allow a party to effectively prepare for litigation by preventing its records, contacts, and mental impressions from being subject to scrutiny by opposing counsel. Failing to apply the work product rule to an adjuster's file after a prospective plaintiff has retained counsel and made a claim for workers compensation benefits would circumvent the purpose of the work product rule by preventing an insurer from effectively preparing for litigation. (Respondent's Brief in Opposition to Request for Adjuster's Notes at 2-3.)
On the facts presented, I am unpersuaded by the insurer's argument as to the time the work-product rule was triggered. The correspondence identified by the insurer as indicating the possibility of litigation, while involving claimant's attorney, either concerned requests that could just as well have come from claimant and which are by their nature part of the claims adjusting process, or is correspondence with the employer's counsel concerning claimant's job status. The correspondence was initially between Michael W. Cotter (Cotter), the attorney for claimant, and Carol Crews (Crews) of Crawford & Company, which adjusted the claim, and between Cotter and Colin Reid (Reid), an attorney for The Industrial Company, which was claimant's employer. Later on, other adjusters for Crawford were involved in the correspondence. The following is a summary of the correspondence:
a On October 7, 1998, Cotter advised Crews that he had been retained by claimant regarding her September 1, 1998 injury . He requested copies of various materials, such as witness statements and medical records. (Ex. A to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.)
b On October 19, 1998, Cotter wrote to Reid regarding the termination of claimant's employment following her injury . He requested the immediate commencement of temporary total disability. (Ex. B to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.)
c On October 23, 1998, Cotter again wrote Reid, noting that he had requested medical records from the insurer's adjuster and had not received them. He stated that claimant was unable to work and had not been released to work. He rejected an offer of work that had apparently been conveyed by Mr. Reid. (Ex. C to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.)
d On November 2, 1998, Cotter wrote to Crews, asserting that medical bills relating to the injury had not been paid and requesting immediate payment. (Ex. D to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.) On November 5, 1998, Crews sent back a copy of that letter, with a handwritten note stating, "We're paying them. I'll send you list in 30 days." (Id.)
e On November 6, 1998, Cotter again wrote Crews, acknowledging her note about payment of medical providers and discussing payment for copies of file materials. (Ex. E to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.)
f During November and December 1998, there was additional correspondence between Cotter and Crews relating to payment of travel expenses incurred by claimant in obtaining medical care. (Ex. F-1 through F-3 to Respondent's Brief in Opposition to Request for Production of Adjuster's Notes.)
g On January 22, 1999, Cotter wrote to Leslie Davidson of Crawford and Company, noting that he understood Crews was not available until February. He stated that Reid had directed him back to Crews regarding payment of temporary total disability benefits and travel reimbursement. He wrote:
The issues which were outline
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