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Production of Maritime Insurance Adjuster Files

TOPIC: Production of Maritime Insurance Adjuster Files
AUTHOR: Stacey & Jacobsen, PLLC
DATE: November 2009

ISSUE: In Jones Act injury and all cases involving maintenance and cure it is important to obtain disclosure of the maritime insurance adjuster’s file. In many cases, objection that the marine insurance adjuster files is work product privileged is improperly asserted. This is particularly true in maintenance and cure cases where punitive damages (post Atlantic Soundings) are sought for the willful and wanton failure to pay maintenance and cure.

The following is a legal memorandum used in a recent case to obtain production of material in the maritime insurance adjuster’s file. The maritime employer was refusing to pay for curative treatment recommended by a treating doctor. The insurance adjuster had obtained a “panel” review of the injured seaman’s medical records asking whether or not further treatment, including surgery, was reasonable and necessary. The report was withheld from production. During trial of the punitive damage case, the report was ordered produced by the Trial Court. The panel report supported the injured seaman’s case and was totally contrary to the position taken by the employer at trial.

Introduction and Summary

     Plaintiff requested in discovery defendant’s insurance adjuster’s file. Defendant refuses to produce certain materials, claiming work product, including material generated prior to counsel’s involvement in this case. In particular, on June 14, 2006, the insurance adjuster (Columbia Adjusters) wrote a letter to “Medical Panel” asking for their opinions regarding plaintiff’s medical condition. The adjuster was “simply trying to determine the prognosis related to [plaintiff’s] medical condition.” Defendant’s claim of work product is misplaced. Materials generated by the insurance adjuster in the routine investigation of a claim and administration of a claim are not work product. Materials prepared and received in the ordinary course of business are not work product.


  1. Defendant, As Proponent Of The Privilege, Has The Burden Of Proving Its Applicability.

     The party resisting disclosure bears the burden of showing the material is eligible for protection. Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 (7th Cir. 1996); CH2M Hill, Inc. v. Houston General Insurance Co., 1999 WL 1279369 (D. Oregon, Aug. 4, 1999)(Exh. 2). Defendant can not meet its burden. In fact, the letter of Columbia Adjusters reveals the true nature of the communication. The purpose of the letter was to “simply determine plaintiff’s prognosis,” a matter routinely sought by adjusters handling a personal injury case.

  1. The Standard For Work-Product Protection. Panel Response To Adjuster’s Letter Was (1) Made In Ordinary Course and (2) Not In Anticipation Of Litigation.
     The work product doctrine protects trial preparation materials that reveal an attorney’s strategy, intended lines of proof, evaluation of strengths and weaknesses, and inferences drawn from interviews. Hickman v. Taylor, 329 U.S. 495 (1947). Work product protection is designed to preserve the privacy of attorney’s thought processes and to prevent parties from “borrowing the wits of their adversaries.” Holmgren v. State Farm Mut. Ins. Co., 976 F.2d 573, 576 (9th Cir. 1992). While the documents need not be prepared by a lawyer, the documents must be prepared “in anticipation of litigation.” Fed. R. Civ. P. 26(b)(3). In this case, the adjuster’s letter (and other materials withheld) are routine inquiries, done in the ordinary course of business. Production of the response of the “Medical Panel” would not reveal defendant’s thought processes, and the purpose behind the protection is not violated.

     Several cases have established guidelines for a court to determine whether a document was prepared in anticipation of litigation. In order to qualify as work product, at the time the document was created, “litigation must have been more than a general possibility; there must have been a substantial and specific threat that it would occur.” In Re Fischel, 557 F.2d 209, 213 (9th Cir. 1977). There must be a “substantial probability that litigation will occur and that commencement of such litigation is imminent.” Home Ins. Co. v. Ballenger Corp., 74 F.R.D. 93, 101 (N.D. Ga. 1977); In Re Grand Jury Investigation (Sturgis), 412 F. Supp. 943, 948 (E.D. Pa. 1976); Stix Prod., Inc. v United Merchants & Mfr., Inc., 47 F.R.D. 334, 337 (S.D.N.Y. 1969).

     Insurance adjuster investigations are prime examples of routine practices in circumstances which frequently result in litigation where the reports are generally denied work product protection. Any claim by an injured seaman gives rise to an investigation as a precondition for determining what benefits are required. Under controlling law, an employer has a duty to investigate a seaman’s claim for maintenance or cure. Breese v AWI, Inc., 823 F.2d 100, 104 (5th Cir. 1987). The investigative reports are virtually always discoverable, unless done after the actual commencement of litigation and at the direct behest of the trial lawyer. “In the insurance context it is the insurer’s ordinary business to investigate claims. As a result, an insurer must demonstrate by specific evidentiary proof of objective facts, that reasonable anticipation of litigation existed when the document was produced, and that the document was prepared and used solely to prepare for litigation.” CH2M Hill, Inc. v. Houston General Insurance Co., 1999 WL 1279369 (D. Oregon, Aug. 4, 1999)(Exh. 2); Harper v. Auto-Owners Ins. Co., 138 FRD 655, 663 (D. Ind.1991). Likewise, in Westhemeco Ltd. v. New Hampshire Inc. Co., 82 FRD 702, 708-09 (SDNY 1979), documents generated by an insurance adjuster during a routine investigation of plaintiff’s claim were not prepared in anticipation of litigation, even though litigation eventually resulted and even though litigation would have been a likely event if the claim were not resolved. In Miles v. Bell Helicopter Co., 385 F. Supp. 1029, 1033 (ND Ga 1974), the court held that accident reports prepared immediately following a helicopter crash were not prepared in anticipation of litigation simply because such crashes usually give rise to litigation. The reports were routinely prepared, not “in response to a particular claim advanced by an individual, but merely on the contingency that litigation might well arise from the helicopter crash.”

     Courts also generally agree that investigation of potential claims is routine and in the ordinary course of business for an insurance adjuster. For instance, in Fine v. Bellefonte Underwriters Ins., 91 FRD 420 (SDNY 1981), reports of investigators hired by the insurance company were ordered produced because it was not clear that the reports were created with a fixed resolve to litigate, rather than as a routine investigation; no outside counsel had been retained. See also Spaulding v Denton, 68 FRD 342, 345 (D. Del. 1975)(reports prepared by investigators at behest of insurance company into circumstances of ship sinking not work product); Thomas Organ Co. v. Jadranska Slobodna, 54 FRD 367, 372-74 (N. D. Ill. 1972)(report prepared by marine surveyors hired by insurer of damaged cargo before litigation attorney first became involved were made in ordinary course of business); McDougall v. Dunn, 468 F.2d 486, 473 (4th Cir. 1972) (statements given to a claims adjuster shortly after an automobile accident were discoverable).


     Insurance adjusters routinely investigate accidents and medical conditions of claimants, just as in this case. Defendant fails in its burden to show, by specific evidentiary proof of objective facts, that the “Medical Panel” response to the adjuster’s inquiry was written in anticipation of litigation. The adjuster’s file should be produced.

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