Work Product Doctrine and Claims Adjusters

5.17.10    By Bob Mendes    Tags ,

A recent case from the Eastern District of Tennessee, King v. CVS Pharmacy, Inc., et al., 2010 WL 1643256 (E.D. Tenn. Apr. 21, 2010), provides insight into the work product doctrine as it applies to insurance companies. The plaintiff moved to compel documents generated by a claims adjuster working on plaintiff’s worker’s compensation claim, arguing that they were prepared in the ordinary course of business. The defendant argued that the documents were protected by the work product doctrine because they were prepared “in anticipation of litigation.”

The Court held that making coverage decisions is a part of the ordinary business for an insurance company. If the driving force behind the preparation of the documents in question is to assist in deciding coverage, then they are not protected from disclosure by the work product doctrine. The Court then turned to the fact-intensive task of applying this standard to the documents in the case.

The Court found that most of the documents were prepared by a claims adjuster as part of the insurance file in the ordinary course of business to determine what benefits the plaintiff was entitled to receive. Anticipation of litigation was not the driving force behind the preparation of these documents. Thus, these documents were discoverable.

The remaining documents were also prepared by a claims adjuster. However, these documents noted that the plaintiff had retained an attorney and provided information concerning potential settlement negotiations with the attorney. The Court held that, once the claims adjuster began negotiating with the claimant’s attorney, the adjuster was outside the normal business activity of adjusting an insurance claim. Any reports of preparations to negotiate and investigations in aid of such negotiations with an attorney were made in anticipation of litigation and were therefore protected by the work product doctrine. These documents were not discoverable.



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