Can you keep a secret? Protecting insurers' and policyholders' confidential communications from each other and third parties

• Published in: The Brief (Chicago. 1980) Vol. 46; no. 3; p. 48
• Main Author: Blume, Benjamin A
• Format: Journal Article
• Language: English
• Published: Chicago American Bar Association 22.03.2017
• Subjects: Attorney-client privilege; Attorneys; Confidential communications; Confidentiality; Federal court decisions; Insurance companies; Insurance coverage; Insurance law; Interpretation and construction; Laws, regulations and rules; State court decisions; United States
• ISSN: 0273-0995; 2163-0178

[...]these cases provide a rather straightforward application of wellestablished rules. If the communication goes beyond the client, the privilege can be waived. Because the U.S. Supreme Court rejected the "control group" analysis in 1981, we tend to think of the broader protections of the "subject matter" test as the default rule. ATTORNEY-CLIENT PRIVILEGE IN THE INSURANCE CONTEXT A New York case that generated some discussion was National Union Fire Insurance Co. v. TransCanada Energy USA, Inc.1 Although some have argued the import of that decision was that an insurer's pre-denial communications were not privileged, that was not the holding of the court. [...]the Appellate Division affirmed the trial court's finding that certain pre-denial communications were privileged because the insurer was obtaining a coverage opinion, which was determined to be legal advice. [...]in Evans v. United Services Automobile Assn, the insured sought production of a "claims diary," which detailed actions taken by the insurer during the course of the claim and included summaries of conferences with in-house and outside counsel.3 The North Carolina appellate court found the diary protected by the attorney-client privilege. A California appellate court addressed a similar issue in Aetna Casualty & Surety Co. v. Superior Court. Even in the context of bad faith, the court determined that communications made between an attorney, acting as an attorney and providing legal counsel, as opposed to acting as an outside claims adjuster or agent, and his ins urer-cl tent were protected under the attorney-client privilege. "5 The court held that...