Paper Discovery in a Typical First-Party, Water-Damage-From-A-Roof-Leak Property Insurance Action

 Dear First-Party Property Claim Handlers, 

I’ve written and spoken many times on issues like report writing, claim log notation, privileges that apply (and don’t apply) to claim file materials and communications with coverage and insured defense counsel, the scope of discovery in first-party property coverage litigation, and the like.   

Sometimes the best way to understand what could happen, is to see what has happened.  And so, for your review and rumination, I offer the following as what paper discovery typically looks like in a first-party, water-damage-from-a-roof-leak New York state court property insurance action (taken from an actual, pending case):

Plaintiff’s Demand
for Discovery & Inspection and Combined Demands Directed to [ABC] Insurance
Company:

     6. The entire claim file maintained by [ABC] for Plaintiff or in any way relating to Plaintiff, including but not limited to electronic notes, computer entries, emails, memorandum, telephone messages, correspondence, account information, billing information, contact information, file jacket notes, contracts, agreements and applications.

NOTE: “[T]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business” (Landmark Ins. Co. v. Beau Rivage Rest., 121 A.D.2d 98, 101, 509 N.Y.S.2d 819). Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are thus not privileged and are discoverable (see Landmark Ins. Co. v. Beau Rivage Rest., supra at 101, 509 N.Y.S.2d 819; see also Bertalo’s Rest. v. Exchange Ins. Co., 240 A.D.2d 452, 454, 658 N.Y.S.2d 656; Roman Catholic Church of Good Shepherd v. Tempco Sys., 202 A.D.2d 257, 258, 608 N.Y.S.2d 647; Paramount Ins. Co. v. Eli Constr. Gen. Contr., 159 A.D.2d 447, 553 N.Y.S.2d 127), even when those reports are “mixed/multi-purpose” reports, motivated in part by the potential for litigation with the insured (see Landmark Ins. Co. v. Beau Rivage Rest., supra at 102, 509 N.Y.S.2d 819; see also McKie v. Taylor, 146 A.D.2d 921, 536 N.Y.S.2d 893).

    7. The entire non-privileged underwriting file for this matter stated in the Complaint (or most current pleading, if amended).

     8. True and complete copies of all documentation, correspondence, reports, notes, or memorandum regarding any inspections, or investigations of the instant claim by [ABC] or a third-party on [ABC]’s behalf.

     9. All correspondence regarding the matter alleged in the Complaint sent to any governmental entity, including, but not limited to, the Department of Financial Services or Secretary of State.

     10. A complete electronic copy of each and every audio recording of any representative of Plaintiff or any Defendant herein. If it will be claimed that said recordings are no longer in existence, provide an affidavit with regard to the date and time of their destruction, including the name of the individual who destroyed same, reference to the rule or directive pertaining to the destruction of the recording, and a transcript of said recording.

     11. True and complete copies of all documentation, correspondence, reports, notes, emails, or memorandum between [ABC]and Plaintiff or anyone on Plaintiff’s behalf.

     12. True and complete copies of all documentation, correspondence, reports, notes, emails, or memorandum between [ABC] and any other party (with the exception of post disclaimer communications with legal counsel) with reference to Plaintiff and/or the Subject Claim.

     13. True and complete copy of the entire file maintained with regard to Plaintiff and/or the subject property, previous properties, or vehicles.

     14. True and complete certified copies of each insurance policy issued to the Plaintiff by [ABC] or its agents.

     PLEASE BE ADVISED, to the extent that any documents are claimed privileged, a privilege log is demanded to be furnished.

If you think many or most of these things are not discoverable, think again.  

If you’re not familiar with the scope of discovery in coverage litigation, take a few minutes and read my blog posts for the Attorney-Client Privilege label and Discovery label.  See, also, Devaul v. Erie Ins. Co., 2019 N.Y. Slip Op. 34261(U) (Sup.Ct., Onondaga Co., 2019) and my Communications Between Outside Coverage Counsel and His Insurer Client Regarding “the Investigation and Potential Rescission of a Claim” Ordered Disclosed post from this past February.

Be advised and guided accordingly.

Cordially, 

Your Favorite (and Perhaps Only) Logophile, Roy