Thursday, November 21, 2013

Judge Minora of Lackawanna County Reviews Attorney-Client and Work Product Privileges Claimed in Post-Koken Discovery Dispute

In an appeal from a decision from the Lackawanna County Special Trial Master for discovery matters in the Post-Koken case of Marion v. Lukaitis and Motorists Mutual Insurance Company, No. 2011-CV-7451 (C.P. Lacka. Co. Nov. 12, 2013 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas affirmed the Special Trial Master's decision on a variety of discovery issues and denied the appeal of the Defendant, Motorists Mutual Insurance Company. 
Judge Carmen D. Minora
Lackawanna County

This matter arose out of a July 30, 2011 motor vehicle accident during which the Plaintiff and her minor children were in a stopped vehicle when the tortfeasor Defendant, allegedly traveling at a high rate of speed and under the influence of alcohol, struck the Plaintiff’s vehicle, allegedly resulting in injuries.  

At the time of the accident, the tortfeasor Defendant had no automobile liability insurance.  As such, in addition to suing the tortfeasor Defendant, the Plaintiffs also sued Motorist Mutual Insurance Company in support of an uninsured motorist benefits claim.  

During the course of discovery, the Plaintiff filed a Motion to Compel against the Defendant, Motorist Mutual Insurance Company, alleging insufficient responses to Interrogatories and a Request For Production of Documents.   The Plaintiff’s Motion to Compel was granted by Order of Special Trial Master Burke, after which the Defendant carrier filed its appeal up to Judge Minora in the Lackawanna County Court of Common Pleas.   

One of the central issues presented was the Plaintiff’s discovery requests seeking disclosure of information relating to the Defendant carrier’s evaluation and investigation of the claims for UM benefits, the terms of the policy under which the claim was made, and the nature of the claims handling after suit was filed.   The Defendant carrier asserted that these discovery requests were not relevant and/or were barred by the attorney/client privilege, the work product protection, or Pa. R.C.P.  4003.3. 

According to the Opinion, the Plaintiffs were more specifically requesting information regarding the records custodian for the insurance application in effect at the time of the accident, information regarding whether the policy, as originally issued, included a mandatory arbitration provision, information on the premiums paid, and information regarding whether or not the Defendant carrier maintained that the Plaintiff was at fault for the accident and/or otherwise barred from recovery.  

The Defendant carrier responded by asserting that it had produced all relevant and discoverable pre-accident log notes, with appropriate redactions.  The Defendant carrier argued that requiring the carrier to produce its post-suit log notes in this claim for UM benefits would violate the attorney/client privilege, the work product protection, or Pa. R.C.P.  4003.3. 

The Plaintiff asserted that relevancy was not a basis for a privilege argument and that they were seeking information reasonably calculated to lead to the discovery of admissible evidence.   The Plaintiff additionally argued that a claim against post-suit discovery was not a recognized privilege.   The Plaintiff additionally confirmed that they were not seeking any attorney-client or work product privileged portions of the post-suit log notes. 

After noting the Pennsylvania Rules of Civil Procedure generally permit discovery that is broad and liberal, the court denied the Defendant’s appeal.  

Judge Minora initially found that there was law on point allowing for the discovery of the insurance policy in question in both the Rules of Civil Procedure and under Pennsylvania case law.

As to the Plaintiff’s request for information regarding the Defendant’s investigation and evaluation of the UM claim, Judge Minora found that such information, including the identity of the records custodian of the insurance application, as well as the specific information related to the Defendant carrier’s evaluation and investigation of the claim presented, was discoverable as such information pertained to matters stemming from the insurance investigators, and not Defendant’s legal counsel.   As such, the requested information was found not to fall under the attorney work product privilege.

In terms of the Plaintiff’s request for production of post-suit claims log notes, the court noted that the Plaintiff had withdrawn its request for the production of documents requesting the Defendant carrier’s impressions upon the merits of the UM claim as such discovery would violate Rule 4003.3.   Rather, it was emphasized that the Plaintiff was seeking information regarding the methods the Defendant carrier utilized in arriving at its evaluation as well as information upon which individuals were charged with employing those methods. 

Since this UM case involved a breach of contract action, the court found that the production request regarding how the Defendant carrier evaluated a claim, and thereby fulfilled it obligations under the contract in question, were relevant as such information was reasonably calculated to lead to the discovery of admissible evidence.   As such, this discovery was also allowed.  

Anyone desiring a copy of this Opinion by Judge Minora in the case of Marion v. Lukaitis and Motorists Mutual Insurance Company may contact me at

I send thanks to Attorney Ann Farias of the O'Donnell Law Offices in Kingston, PA for bringing this case to my attention.

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