In Memory Bowl v. North Pointe Insurance Co., 2012 WL 845928 (D.N.J. March 13, 2012)(USMJ), Download Memory Bowl v. North Pointe Ins. Co. (D.N.J. USMJ Memo and Order Filed March 13, 2012) PUBLIC ACCESS, an Insurance Company retained an attorney in its investigation of a fire loss claim. The Policyholder, dissatisfied with the handling of its claim, sued its Insurance Company for allegedly wrongfully denying part or all of the Coverage in Bad Faith. The Policyholder sought to take the Deposition of Opposing Counsel, which is the individual who was the Insurance Company's fire loss lawyer too.
The Insurance Company showed that it hired the lawyer as a lawyer, during its investigation of the fire loss. It convinced the U.S. Magistrate Judge in this case that "most, if not all," of the documents and things about which the lawyer would testify in this case were protected by the Work Product qualified immunity and that the Plaintiff-Policyholder could obtain the substantial equivalent by other means. Id. at *4.
This decision sits squarely in the line of cases deciding Work Product and Attorney-Client Privilege issues in similar cases: When a lawyer is acting like a claim adjuster in the investigation of an Insurance claim, then the Courts ordinarily hold that any and all facts learned and observed by the lawyer are a part of the Insurance Company's ordinary business; the Work Product qualified immunity simply does not apply that far in the ordinary Insurance claim. When, on the other hand, the attorney is acting as an attorney even though she or he has been retained to provide legal advice and impressions during the course of an Insurance claim investigation, the immunity like the Privilege will be applied in the ordinary case. See Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" ยง 12:8, "Insurance Counsel's Files" [Discovery in First-Party Cases] (Third Edition West 2011).
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