Federal Court Judge Wolson Allows Plaintiff to Secure Claims Evaluation Documentation From UIM Carrier in Discovery

In the case of Long v. Progressive Adv. Ins. Co., No. 2:24-CV-01735-JDW (E.D. Pa. Dec. 11, 2024 Wolson, J.), the court addressed a Motion to Compel filed by a Plaintiff against a UIM carrier.

According to the Opinion, the Plaintiff was involved in a motor vehicle accident and brought a UIM claim against Progressive.

During the course of the matter, Plaintiff’s counsel sent a demand package to Progressive requesting the tendering of the limits. The court noted that the Defendant had not yet evaluated the Plaintiff’s claim but did so thereafter.

It was noted that, when Progressive produced a claim evaluation documentation in discovery, the carrier had redacted information from the document, including the value it had placed on the Plaintiff’s claim as well as with respect to the analysis with the specific elements of the Plaintiff’s claim. Progressive redacted the documents on work product grounds.

The Plaintiff filed a Motion to Compel the Defendant carrier to produce an unredacted document.

The court granted the Plaintiff’s Motion after finding that the Defendant carrier had failed to meet its burden of showing that it had created the information, which had been redacted, in anticipation of litigation.

The court noted that the UIM carrier had a duty to investigate and evaluate the Plaintiff’s UIM claim and, based on the court's review of the record before it, the carrier had not yet investigated and evaluated the claims presented by the time it created the claim evaluation document.

Although the court acknowledged that the demand letter from Plaintiff’s counsel could have prompted the Defendant to conduct the evaluation or to complete it quicker, the court found that the Defendant had a separate, business-related (i.e, not litigation-related) obligation to perform the evaluation.

Judge Wolson additionally noted that the demand letter did not demand any more than what Progressive had offered or more than the policy limits. The demand letter also did not threaten a bad faith claim. Accordingly, the court found that there were no circumstances to suggest that the evaluation by the carrier was prepared in anticipation of litigation.

Judge Wolson noted held that there was no per se rule that every document created by an insurance company after receiving a demand letter from an insured qualified as a document protected by the work product doctrine. The court ruled in this fashion after finding that a demand letter did not absolve an insurance company of its obligation to evaluate a claim.

Accordingly, the court rejected the carrier’s assertion of the work product privilege over a claim evaluation document where the carrier had a legal obligation to evaluate an insured’s claim and had not yet evaluated the claim when the insured sent a demand letter. 

In essence, the court in this matter felt that this demonstrated that the evaluation was prepared in the ordinary course of business, rather than in anticipation of litigation.

Accordingly, the court granted the Plaintiff’s Motion to Compel discovery.

It is noted that the court began its Opinion by indicating “[i]insurance companies evaluate claims as part of their business, and their claims evaluations often result in demands from policyholders and then litigation. In discovery, that reality poses a challenge: “litigants (and then judges) must decide when an insurance company created a claim evaluation document in the course of its business and when it did so in anticipation of litigation. The first category of documents is discoverable, but the latter is work product that Federal Rule of Civil Procedure 26(b) protects.”

Judge Wolson noted that the work product doctrine, which is codified under Federal Rule of Civil Procedure 26(b)(3) protects materials prepared in anticipation of litigation from discovery unless certain exceptions apply. The court noted that the work product immunity shelters an attorney’s mental processes, providing a privileged area for the attorney to analyze and prepare his client’s case.

The court also noted that a party claiming work product protection bears the burden of showing that the materials in question were prepared in the course of preparation for possible litigation.

The court reiterated that, because insurance companies evaluate claims made by their insureds in the ordinary course of their business, and outside of any possible litigation in the future, discovery disputes involving insurance company claims file often present problems for the parties in the court.

As noted, under the circumstances presented in this case, Judge Wolson found that claim evaluation documentation prepared by the carrier did not amount to a document that was prepared in preparation for litigation.  The Judge found, after an in camera review, that the document, in the Judge's eyes, revealed claims handling matters and not litigation analysis.  As such, the Plaintiff's Motion to Compel was granted.  

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer Federal Case Alert.” www.Law.com (Jan. 9, 2025).

Commonwealth Court Weighs In on Redaction of Claims Log Notes [Unpublished Decision]

In the case of Mwambu v. Volunteer, No. 1128 C.D. 2020 (Pa. Cmwlth. March 14, 2022 Covey, J., Wallace, J., Ceisler, J.)(Op. by Ceisler, J.) (unpublished), the Commonwealth Court of Pennsylvania addressed the proper redaction of claims log notes in discovery.

This matter arose out of a case in which a pedestrian Plaintiff was alleged injured when he was struck by an ambulance being driven by an employee of a municipal governmental agency.

During the course of discovery, the Defendant provided to the Plaintiff copies of notes written by employees of the Defendant’s insurance carrier regarding the claim along with an accompanying privilege log pertaining to the notes.

Within the production were redactions of information identified by the Defendant as being protected by the attorney client privilege or pertaining to mental impressions, work product, evaluations, theories, and litigation strategy of a defense representative.

The Plaintiff challenged these redactions and asserted that only opinions as to the merit or value of the claim should be redacted under the Rules of Civil Procedure.

In its Opinion, the Commonwealth Court provided its analysis on what can and cannot be redacted from claims log notes. The court seemed to follow the general rule that notations regarding any mental impressions, conclusions, or opinions by a representative of a Defendant regarding the merit or value of a claim or defense may be redacted as set forth in Pa.R.C.P. 4003.3.

Anyone wishing to review a copy of this unpublished Opinion from the Commonwealth Court may click this LINK.


I send thanks to Attorney Gerald Connor of the Scranton office of the Margolis Edelstein law firm for bringing this case to my attention.

Source of Image:  Photo by Marcus Urbenz on Unsplash.com.

Pennsylvania Superior Court Quashes Appeal on Discovery Dispute Over Claim of Privilege as Premature

In the case of Fisher v. Erie Insurance Exchange, No. 1597 WDA 2018 (Pa. Super. June 25, 2021)(en banc), the court addressed discovery issues in terms of whether a trial court impermissibly ordered the production of claims file materials from the carrier to the court for an in camera inspection where the carrier was asserting that the materials at issue were protected by the attorney-client privilege and the work product doctrine.

Following a review of the matter, the court ended up quashing the appeal on the basis of the Collateral Order Rule.

This Opinion contains a nice summary of the current status of the Collateral Order Rule in Pennsylvania.

With respect to this particular case, the court noted that, when a discovery request has been made that, on its face, seeks protected materials, and the responding party clearly sets forth facts that leave no doubt as to the applicability of any privilege, an in camera review is not permitted and doing so would violate the privilege.

Where, however, a discovery request is made and the assertion of a privilege by the responding party and/or the proofs offered by the requesting party render a trial court unable to determine and issue a privilege, an in camera examination is appropriate and fully supported by the case law.

The Superior Court noted that this approach strikes an appropriate balance between preserving privilege and protecting a requesting party’s right to discoverable material.

In this matter, the court concluded that the discovery requests made, and the responding party’s responses and objections made thereto, did not provide the trial court with enough information to decide whether any of the requested documents were indeed subjected to a privilege. As such, the Superior Court ruled that the trial court had appropriately ordered an in camera inspection of the documents.

The court emphasized in its opinion that the issue before it involved a trial court Order directing a party to produce documents for an in-camera review and not any Order requiring the production of documents to the party that requested the discovery. It was emphasized that, since it was concluded in this matter that an in camera inspection is appropriate, the responding party had not lost its right to further contest the order production of any claim materials if so ordered by the trial court after the in camera inspection is completed, but before production of the opposing party. In other words, the Superior Court confirmed that, if the trial court ordered the production of the documents after the in camera review the documents, the responding party still retained the right to attempt to appeal that decision.

For full disclosure purposes, I note that I wrote the Amicus Curiae Brief on behalf of the Pennsylvania Defense Institute in this matter.

Anyone wishing to review a copy of this decision may click this LINK.

Discoverability of Claims File Info in First Party Wage Loss Litigation

In the case of Neidich v. Progressive Advanced Ins. Co., No. 17-5375 (E.D. Pa. Aug. 22, 2018 Padova, J.), the court granted, in part, a Plaintiff’s Motion to Compel production of certain entries from the Defendant’s carrier’s claim file that the Defendant had maintained were protected by the attorney work product doctrine.    This case arose out of an automobile accident claim pertaining to a first party wage loss dispute.  

During the course of discovery, the Defendant carrier refused to produce certain materials from its insurance claims file, asserting that the materials were protected by the attorney work product doctrine.   In particular, at issue in this case were the mental impressions and opinions of the claims representative and the carrier’s reserve information.   The court was provided redacted and unredacted copies of the claims file, along with a privilege log, for an in-camera review of the file.  

The court reviewed the parameters of the work product doctrine as set forth under F. R.C.P. 26(b)(3).   Noted that the “temporal trigger for work product protection in this context is the ‘point in its investigation [when] an insurance company’s activity shifts from mere claims evaluation to an anticipation of litigation’.”   See Op. at 3 [citations omitted].  

The court more specifically stated that the party asserting work product protection must demonstrate that it subjectively anticipated litigation, and that the anticipation was objectively reasonable. Id. [citations omitted].  

One issue in this case was point at which it could be considered that the carrier reasonably anticipated litigation.   

In this matter, the carrier stated that it reasonably anticipated litigation when Plaintiff’s counsel contacted the carrier seeking “to discuss and avoid litigation.”   The carrier asserted that the disputed entries in the claims file made after that event should be protected by the work product privilege.  

However, the court in this matter stated that, a lawyer’s mere suggestion of a lawsuit is not enough to make a carrier reasonably anticipate litigation when the carrier’s evaluation of the claims is ongoing.   The court pointed to a case indicating that an insured’s attorney’s threat to file suit did not serve as the trigger for the work product doctrine.  As such, this argument by the carrier was rejected by this court.  

The carrier also argued, in the alternative, that the court should, at a minimum, extend a work product protection to the carrier’s reserve information.   The court in this matter rejected the carrier’s contention that reserves are to be treated as work product on a per se basis.   Accordingly, the court rejected the carrier’s argument that insurance reserves are always prepared in anticipation of litigation and are therefore always  protected as work product.

In this matter, the court ultimately concluded that the carrier had failed to provide relative factual support for its position that the disputed materials concerning reserve information in this particular case were prepared in anticipation of litigation.  As such, the Plaintiff’s Motion to Compel was granted. 

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE.

I send thanks to Attorney Lee Applebaum of the Philadelphia, Pennsylvania law office of Fineman, Krekstein & Harris and writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog, for bringing this case to my attention.