Southern District of Mississippi: Insurer Providing Coverage Opinion to Insured Constitutes Waiver of Attorney-Client Privilege and Work-Product Protection as to all Communications Between Insurer and Coverage Counsel

by Saul Ewing LLP
Contact

Willis v. Allstate Ins. Co., No. 2:13-CV-60-KS-MTP, 2014 WL 1882387 (S.D. Miss. May 12, 2014).

The Southern District of Mississippi held that neither the attorney-client privilege nor the work product doctrine protected communications related to the insurer’s advice-of-counsel defense after the insurer produced a coverage opinion during discovery.

After her home was damaged by fire, Sandra Willis filed a claim with her insurance carrier, Allstate Insurance Company.  After initiating its investigation, Allstate hired attorney David Waldrop to determine the extent of coverage under Willis’s policy.  Waldrop produced a coverage opinion upon which Allstate relied in denying Willis’s claim.  After Allstate denied her claim, Willis sued Allstate for breach of contract and bad faith. 

During discovery, Allstate provided Willis with a copy of Waldrop’s coverage opinion to advance an advice-of-counsel defense, but withheld documents relating to communications with Waldrop.  Soon after, Willis subpoenaed Waldrop for his “entire claim file” and all written communications between Waldrop and Allstate.  Allstate moved to quash the subpoena, claiming that the documents were protected by the attorney-client privilege and the work product doctrine.  While Allstate conceded that it waived the privilege with respect to the coverage opinion that it had provided to Willis, it nonetheless maintained that the waiver did not extend to Waldrop’s entire file.  Allstate argued that because the coverage opinion did not mention other documents in Waldrop’s file, their content was not at issue. 

The court held that Allstate could not use its coverage opinion to present an advice-of-counsel defense, yet deny Willis access to other documents which would provide needed context for understanding the opinion.  Because Mississippi holds that waiver applies to all documents relating to the same subject matter, the court found that Allstate had waived the attorney-client privilege for all communications with Waldrop reflecting “coverage advice or opinions related to Plaintiff’s claim for insurance proceeds.”

Allstate also argued that the work product doctrine shielded the documents from discovery because the coverage opinion was not prepared as part of Allstate’s daily course of business, but was rather prepared in anticipation of litigation.  The court disagreed, finding that the coverage opinion was prepared in the course of Allstate’s routine investigation of Willis’s claim.  Moreover, the court determined that Allstate waived any work product protection it might have had when it put coverage counsel’s opinion at issue.  

Consequently, the court required Allstate to produce all written communications and notes between Allstate and Waldrop related to Willis’s claim.  The court did not, however, require Waldrop to produce cases or research that he relied upon in drafting his opinion, determining that such materials did not bear on Allstate’s asserted defense.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Saul Ewing LLP | Attorney Advertising

Written by:

Saul Ewing LLP
Contact
more
less

Saul Ewing LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.