News Automobile Regular Use Exclusion Hits the Red Light of the Motor Vehicle Financial Responsibility Law (PA) November 24, 2021 < Back Share to: On October 22, 2021, in Rush v. Erie Insurance Exchange, 2021 Pa.Super 215 (2021), the Pennsylvania Superior Court held that an Erie Insurance Exchange (“Erie”) regular use exclusion was unenforceable because it modified the clear and unambiguous requirements of Pennsylvania’s Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§ 1701-99.7 (“MVFRL”), by functionally precluding insureds from accessing uninsured motorist benefits (“UIM”) to which they would otherwise be entitled. This precedential decision arises from a motor vehicle accident where City of Easton Police Officer Matthew Rush (“Plaintiff”) suffered serious injuries after the police vehicle he was operating was struck by uninsured motorists. The City of Easton maintained UIM coverage through Erie which included a “regular use” exclusion. This exclusion precludes coverage if an insured is injured while using a motor vehicle that the insured regularly uses but does not own. Thus, Erie denied coverage under their “regular use” exclusion because the City of Easton owned the car, not Plaintiff. Plaintiff brought the underlying declaratory judgment action claiming that such exclusions were unenforceable under the the broad scope of the MVFRL which requires UIM coverage in those situations where an insured is injured arising out of “use of a motor vehicle.” 75 Pa.C.S. 1731(c). On appeal, the Pennsylvania Superior Court affirmed the Northampton County Court of Common Pleas who granted Plaintiff summary judgment. The Superior Court found that this exclusion was unenforceable because it limited the scope of coverage required under the MVFRL. As such, Plaintiff was entitled to summary judgement because it was undisputed that absent the otherwise unenforceable “regular use” exclusion, Plaintiff would have been entitled to coverage. The Superior Court importantly did not address whether this exclusion expressly violates the MVFRL because Erie had waived the issue on appeal. Rather, as applied, the Rush court held the “regular use” exclusion unenforceable to the extent it conflicts with the MVFRL’s public policy initiatives which mandate UIM coverage for injuries associated with the use of all motor vehicles - not just those an insured owns as required by the “regular use” exclusion. However, the court indicates their position had Erie raised the novel issue of express violation by pointing to the Pennsylvania Supreme Court’s reasoning in Gallagher v. GEICO Indemn. Co., 201 A.3d 131, 138 n.6 (Pa. 2019) rejecting the same public policy argument proposed by Erie in Rush. The Rush court reiterated: “[W]e recognize that this decision may disrupt the insurance industry's current practices; however, we are confident that the industry can and will employ its considerable resources to minimize the impact of our holding.” Rush, 2021 Pa.Super at 223 n. 5 (2021) citing to Gallagher, 201 A.3d at 138 n.6. In this issue of first impression, the Rush court has essentially opened the door on a novel question of Pennsylvania law concerning whether a regular use exclusion classifies as an express violation of the MVFRL. However, the court’s discussion of Gallagher does not leave a promising for prospect for the success of the insurers. Insurers would be wise to account for this decision with respect to underwriting practices and premium collection for risks the insurer may be forced to cover. Thanks to Kendal Hutchings for her contribution. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Dismantling The Designated Ongoing Operations Exclusion October 29, 2018 < Back Share to: In Tuscarora Wayne Ins. Co. v. Hebron, Inc., the Pennsylvania Superior Court analyzed when a policy’s Designated Ongoing Operations Exclusion may be triggered. In brief, a fire occurred at the insured’s property, when a driver was pumping gas into a vehicle at the insured’s location. The fire caused damage to the insured’s property, and the surrounding neighbors’ property as well. The insured’s policy excluded coverage under its Designated Ongoing Operations Endorsement for ongoing operations including “vehicle dismantling”. On the basis of this exclusion, the insurer commenced a declaratory judgment action seeking a declaration that the policy did not provide coverage for the claimed damages. On summary judgment, the trial court ruled in favor of the insurer. On appeal, the insured argued the trial court erred in finding that refueling a vehicle fell within the policy’s language of “vehicle dismantling”. The Superior Court agreed with the insured. As the phrase “vehicle dismantling” was not defined by the policy, the court looked to the ordinary meaning of the phrase, which generally involved stripping vehicles of their parts. Thus, since the only connection the claimed damages had with “vehicle dismantling” was the fact that the fuel, which started the fire, was being pumped into vehicles that had been dismantled, the Superior Court believed this connection was insufficient to trigger the policy endorsement. Accordingly, this case reveals, Pennsylvania courts will look to the actual operations being performed to determine whether there is a close enough link, as to trigger a policy’s Designated Ongoing Operations Exclusion. Thanks to Colleen Hayes for her contribution to this post. Previous Next Contact

News If an Insured Landlord’s Alleged Faulty Workmanship Causes Damage to a Tenant’s Property, Is It Covered? (PA) August 2, 2019 < Back Share to: Recently, in Pennsylvania-Manufacturers-Indemnity-Company-v.-Pottstown-Industrial-Complex-LP, the Superior Court of Pennsylvania analyzed whether insurer, Pennsylvania Manufacturers Indemnity Company (“PMA”), was permitted as a matter of law to disclaim coverage to its insured, Pottstown Industrial Complex LP (“PIC”), for claims filed against PIC by PIC’s tenant, The Pride Group (“Pride”) (“Underlying Lawsuit”). According to the complaint in the Underlying Lawsuit, on four separate occasions, property, Pride leased from PIC, flooded causing over $700,000 in damages to Pride’s inventory. Pride claimed the water damage occurred because PIC failed to uphold its obligations under the lease to keep the roof in good repair. In the complaint, Pride only alleged a claim for breach of contract – yet, Pride did plead PIC was negligent for failing to properly maintain and repair the Property’s roof. After PMA received notice of the Underlying Lawsuit, PMA agreed to defend PIC subject to a reservation of rights. However, PMA then commenced the instant declaratory judgement action. After the close of pleadings, PMA filed a motion for judgment on the pleadings. Upon review, the trial court agreed with PMA holding PMA was not obligated to defend or indemnify PIC for the Underlying Lawsuit because Pride’s allegations of inadequate roof repairs equated to claims of faulty workmanship; therefore, the trial court held the alleged water damage did not constitute an “occurrence” as defined by the commercial general liability policy. Subsequently, PIC appealed, forcing the Superior Court to analyze whether the policy provided coverage for property damage to Pride’s property caused by faulty workmanship. The Superior Court held a claim of faulty workmanship, on its own, does not constitute an “occurrence”, especially where the only property damaged is, inter alia, “property that the insured supplied or on which it worked”. With this legal foundation in mind, and based on the case’s unique factual pattern, the Superior Court determined that since Pride sought to recover damage to its own property, which was stored at PIC’s property, Pride’s claim constituted an “occurrence.” In doing so, the Superior Court reasoned the property damage sustained by Pride was an accident – i.e., an “unexpected and undesirable event”. Although the Superior Curt noted the Underlying Lawsuit only asserted a breach of contract claim, the Superior Court stressed the factual allegations in the Underlying Lawsuit “determine whether the claims are within the coverage of an insurance policy, not the label of the cause of action selected by the underlying plaintiff.” In sum, the Superior Court’s holding is a reminder that, in the context of determining coverage, it is important to look beyond the labels of the claims and truly evaluate all factual allegations. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Plaintiff Rides Again: Dude Ranch’s Motion for Summary Judgment Denied (NY) March 27, 2019 < Back Share to: In SARA W by HENNY W v Rocking Horse Ranch Corporation, plaintiffs commenced an action seeking to recover damages for injuries sustained by plaintiff, who was 16-years-old, when she fell from a horse while at defendant's dude ranch. Defendant moved for summary judgment on the theory of assumption of the risk, but was denied by the lower court. Defendant appealed. Under the doctrine of primary assumption of the risk, although “participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked ..., ‘[p]articipants will not be deemed to have assumed unreasonably increased risks’ ” In support of its motion, defendant submitted the deposition testimonies of the infant and Robert Gilbert, a certified horse wrangler employed by defendant who assisted the infant, to show that it exercised care in ensuring that the horse riding conditions were as safe as they appeared to be. Gilbert's testimony established that the infant was provided with an appropriate horse for a beginner's trail, helmets were required of infants participating in the ride, the infant was provided with instructions prior to the ride and a horse wrangler accompanied the riders during the trail ride and also assisted the riders when dismounting. Importantly, the infant herself testified that she was aware that there were risks involved in the activity, as she had been on horseback riding trails prior to the incident. Plaintiff contended that defendant was negligent in helping her dismount the horse. The infant's description of the incident differs from Gilbert's description. Specifically, the infant testified that Gilbert moved away from her and towards the horse's head to tame it and that it was this movement by Gilbert that caused the horse to move, leading to the infant's fall. The Appellate Division, Third Department agreed with lower court and upheld their decision finding a question of fact. The Appellate Division held that although defendant attempted to provide adequate assistance on dismount, there still remains a question of fact as to whether defendant’s response to the situation, in light of evidence that the infant was a novice and that the horse was jittery and jumpy, heightened the risk of her fall, thereby unreasonably increasing the risks of horseback riding. As we highlighted some years ago reporting on Corcia v. Rocking Horse Ranch, there will be a question of fact whenever a plaintiff presents evidence that the defendant increased the risk at hand. Thanks to Paul Vitale for his contribution to this post. Previous Next Contact

News NY 1st Dept: Undisclosed Notice Witness Can't Defeat Summary Judgment Motion November 9, 2009 < Back Share to: In Garcia v. Good Home Realty, the plaintiff claimed that she slipped and fell on wet stairs in the defendant's building. She initially testified that she did not know the source of the water, but later submitted an affidavit that the steps appeared recently mopped. In support of its summary judgment motion based on lack of notice, the property owner submitted an affidavit from its porter who stated that he had not mopped the stairs that morning. In opposition, the plaintiff submitted an affidavit from her brother-in-law who stated that he noticed the soapy condition of the stairs shortly before the accident. The Appellate Division held that the affidavit was insufficient to defeat the motion because the brother-in-law had not been previously disclosed as a witness and that submitting an affidavit from an undisclosed notice witness was improper. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_07938.htm Previous Next Contact

News Plaintiff Missed the Mark in Her Claim Against Target (NJ) October 16, 2019 < Back Share to: In Elzogby v. Target Corp., 2019 WL 3886940 (Aug. 19, 2019), the United States District Court for the District of New Jersey granted summary judgment in defendant Target’s favor because it found that Target did not have notice of an alleged slippery condition, and the mode-of-operation rule did not apply. The decision’s impact is twofold. First, it demonstrates that the court will not be persuaded by a plaintiff’s argument that a defendant has constructive notice only because of its “ample resources.” Second, it demonstrates the narrow reach of the mode-of-operation rule. Elzogby brought a claim against Target seeking to recover money damages after she slipped and fell on an allegedly wet floor in a Target store. The facts indicated, however, that after her fall Elzogby continued shopping and eventually purchased items. While she shopped, her brother filed an incident report. When asked what the cause of the accident was, Elzogby’s brother reported “water,” but he was “unsure.” Target filed a motion for summary judgment, which the court granted. The court first reasoned that Elzogby’s conclusory allegation that Target had constructive notice because of its "ample resources," cameras, and ability to monitor patrons, was not supported by the facts. Elzogby failed to allege specific facts that Target had constructive notice of the water. She did not show how long the water was on floor, or that anyone other than Elzogby saw the water. Next, the court disagreed with Elzogby’s contention that the mode-of-operation rule applied. Under the mode-of-operation rule, the plaintiff is relieved of proving that the defendant had notice of a dangerous condition where, as a matter of probability, a dangerous condition is likely to occur because of the nature of the business. The mode-of-operation rule generally applies to slip and fall cases that occur in self-service restaurants. In such cases, courts have determined that the nature of the business—usually pouring a drink—creates a high probability of a slippery condition. In Elzogby, however, the mode-of-operation rule did not apply because Elzogby failed to show a causal nexus between the water she allegedly slipped on and a self-service component of Target. Her fall did not occur while she was using a self-service drink station. She did not show that the alleged liquid was from Target and further, she did not fall near any self-service drink station. Although not binding precedent, Elzogby demonstrates the New Jersey District Court’s reluctance to find negligence based on vague conclusory claims. The court did not agree that a store had constructive notice simply because of its “ample resources.” The court also refused to expand the mode-of-operation rule beyond the circumstances of a self-service restaurant. Thanks to John Lang for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Illusory CGL Policy Not Against Public Policy in NY November 12, 2009 < Back Share to: In 720-730 Fort Wash. Ave. Owners Corp. v. Utica First Insu. Co., Utica denied coverage for an underlying tort action wherein a subcontractor’s employee was injured when a concrete block fell on him while working on 702-730 Fort Washington’s construction site. The policy had exclusions for bodily injury to any employee or any liability arising out of any roofing operations. The property owner argued that the exclusions rendered the insurance policy illusory and against public policy since it did not provide any of the insureds with the usual construction site coverage required under its agreement with the general contractor and subcontractors. The Court ruled that Utica’s policy was misleading and did not provide the coverage necessary to protect Fort Washington from the construction site risks and the vicarious liability imposed by the Labor Law. However, the exclusions were judicially upheld and the inadequate insurance policy was found to not have violated any regulation or statutorily declared public policy. The Court suggested that the passing of a statute or regulation mandating the issuance of a “uniform construction site insurance policy” would reinforce the public policy goals sought under New York Labor Law; however, the Legislature has yet to act as such. In the meantime, the Court reminds insureds of the need to perform a due diligence review of the policy, citing the maxim caveat emptor – let the buyer beware. Thanks to Chris O'Leary for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_29443.htm Previous Next Contact

News We’ve Got You Covered: PA Superior Court Distinguishes Longstanding Interpretation of “Severability” Clauses September 27, 2013 < Back Share to: Recently, the Pennsylvania Superior Court narrowly construed the “Separations of Insureds” clause of a commercial umbrella policy to overcome the presumption in PMA v. Aetna Casualty and Surety Ins. Co. that Employer’s Liability Exclusions are applicable to all insureds. In Mutual Benefit Ins. Co. v. Politopoulos, property owners who leased space to a restaurant in which they were also corporate officers demanded coverage for an employee’s slip and fall as additional insureds under a commercial umbrella policy. Shortly thereafter, the insurer sought a judicial determination that no coverage was owed, arguing that under the Supreme Court’s precedent in PMA, all insureds were subject to the policy’s Employer’s Liability Exclusion. The trial court, albeit reluctantly, agreed with the insurer’s reliance on PMA and granted summary judgment in its favor. Nevertheless, the owners appealed to the Superior Court and invited it to overrule or otherwise reinterpret PMA in light of more than forty years of intervening case law. Although declining the overture, the Court explained that the law in PMA was distinguishable insofar as the insurance contract at issue contained a materially different “Separation of Insureds” clause. Specifically, the Court explained that PMA operates to transpose the Employer’s Liability Exclusion to all remaining insureds even where the terms of the insurance contract provide coverage for each “severally and not collectively.” In contrast, the policy in Politopoulos stated that coverage applies “as if each named insured were the only named insured” and “separately to each insured against who a claim is made or suit is brought.” While similar in intent, the Court explained that the first provision’s use of “severally” legally implies a connection between the insureds whereas the second directs the courts to evaluate coverage as if the other parties did not exist. As a result, the Court reversed, concluding that the precise policy language in Politopoulos overcame the presumption in PMA such that coverage for the owners was entirely unrelated to the Employer’s Liability Exclusion. By all accounts, PMA has long stood for the proposition that an exclusion or limitation of coverage applicable to one insured may inure to the detriment of another. However, the Superior Court, by way of Politopoulos, seems to have suggested that precise policy language reigns over all in coverage disputes notwithstanding oft-quoted rules of construction. Thanks to law graduate Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Lessor Can’t Pass the Buck to the Lessee August 8, 2018 < Back Share to: In Bonnie Sanders v. Angela Dukes, Sanders was staying with her friend on the second story of a rooming house in Philadelphia. As Sanders left the room her shoe got caught in a loose metal strip on top of the staircase. Dukes’ husband was the property manager for the rooming house, and went there monthly. He never made any repairs to the stairs or the metal strip. At the close of plaintiff’s case at trial, Dukes moved to dismiss arguing that the tenant (plaintiff’s friend) was aware of the dangerous condition, therefore, alleviated Dukes’ own liability for the condition. The court rejected the argument, and found that the Dukes, as the lessor was liable for a dangerous condition in the common area that could have been discovered by exercising reasonable care. Since Sanders was a lawful guest, Dukes owed her a duty of care. This case reminds us that a lessor often owes a duty of care to those that enter the premises, regardless of any duty owed by the lessee. Thanks to Robert Turchik for his contribution to this post. Previous Next Contact

News New Guidance on Statute of Limitations in PA July 23, 2021 < Back Share to: On July 21, 2021, the Pennsylvania Supreme Court in Rice v. Altoona-Johnston issued a pivotal decision concerning the applicable statute of limitations in Pennsylvania for claims stemming from alleged sexual abuse. By way of background, in 2016, Rice, after reviewing a PA Grand Jury Investigative report, which detailed findings that hundreds of children were victimized by over fifty individual priests or religious leaders in Pennsylvania, commenced a lawsuit based on alleged abuse she sustained during the 1970s and 1980s. After the trial court dismissed her lawsuit based on the applicable statute of limitations, Rice appealed, claiming the trial court misapplied the law. Rice’s ability to appeal the trial court’s decision was aided by a subsequent Supreme Court of Pennsylvania decision, Nicolaou v. Martin, which held that a plaintiff’s efforts to investigate a defendant for alleged abuse was sufficiently reasonable to toll the applicable statute of limitations. With the Nicolaou decision serving as the foundation, the Superior Court reversed the trial court’s decision, thereby allowed Rice to continue with her claims even though her claims were filed some 35 years after the traditional statute of limitations. On appeal, the Pennsylvania Supreme Court analyzed, inter alia, whether the Superior Court erred by overruling precedent and holding a plaintiff may bring a secondary cause of action for civil conspiracy where the primary cause of the harm is time-barred. To analyze this question, the Court recognized a cause of action accrues when an injury is inflicted and the clock “begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations”. While a plaintiff may be time-barred if he or she fails to commence a lawsuit before the clock expires, the Court analyzed whether the discovery rule or fraudulent concealment doctrine applied to save Rice from failing to file the lawsuit before the applicable statute of limitations expired. First, the Court held the discovery rule tolls the statute of limitations, which delays the point at which the plaintiff is charged with a duty to file suit. With respect to Rice, the Court reasoned the statute of limitations began to run, at the latest, when Rice was last assaulted; therefore, Rice had two years from that date to discover other actors potentially liable for her injury. Although Rice argued there was no reason for her to know of the Diocese’s involvement, the Court determined the Nicolaou decision was distinguishable from the Rice matter. Specifically, the Court held that because Rice’s claims against the Diocese are based on the alleged abuse, Rice was on inquiry notice as a matter of law regarding the Diocese’s potential involvement. Next, the Court held the fraudulent concealment doctrine is based upon estoppel and has its basis in equity. Essentially, the fraudulent concealment doctrine applies where fraud prevents a plaintiff from knowing he or she was defrauded; as such, the cause of action does not exist until the plaintiff becomes aware of the fraud. However, the Court determined the superior Court failed to consider Rice’s due diligence obligations. Assuming the truth of the Diocese’s misrepresentations as alleged in the complaint, the Court held none of the alleged misrepresentations misdirected Rice from her knowledge that she was assaulted. As such, she was obligated to inquire into other potential claims. While the Diocese was obligated to disclose, the Diocese’s failure to disclose does not excuse Rice’s failure to conduct any investigation into the Diocese as an additional cause of her injuries. Ultimately, the Court ruled the discovery and fraudulent concealment doctrines were inapplicable and reversed the Superior Court decision. While the Superior Court’s decision in Rice opened the door for otherwise time-barred claims, the PA Supreme Court’s decision clearly provides such claims are time-barred. This decision will have a ripple effect on other pending lawsuits in Pennsylvania as some state and federal Pennsylvania courts stayed matters alleging civil conspiracy and fraud stemming from alleged sexual abuse pending the outcome of the Rice decision. For example, in Suminski v. The Diocese of Erie, which is pending before the U.S. District Court for the Western District of Pennsylvania, the plaintiff brought claims against the Diocese of Erie alleging the Diocese of Erie participated in a systematic cover up, as the Diocese of Erie was made aware of the alleged abuse. Citing the PA Grand Jury Report, the plaintiff asserts the following claims: negligence for failure to supervise, negligence for breach of fiduciary duty, negligence for failure to provide a secure environment, negligence for failure to control conduct of the servant, negligence for failure to warn, fraud, fraudulent concealment and civil conspiracy. On October 15, 2020, the case was stayed pending the outcome in Rice. It will be interesting to see how these lawsuits develop. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Sham Entities Means The Veil Gets Pierced (PA) December 6, 2019 < Back Share to: A Pennsylvania Superior Court recently affirmed a trial court’s decision, in Sereda v. Ctr. City Acquisitions LLC, imposing personal liability on the sole owner of a limited liability company which constructed a new house that had issues with respect to the floors and windows. The Serenadas purchased a new house from Ctr. City Acquisitions, LLC, which, with respect to its ownership, was owned, operated, and controlled by a single individual. The sale of the home included a one-year warranty. Soon after the sale, the homeowners noticed substantial gaps in the wood flooring, as well as a sealant and caulking issue with respect to the windows. The sole owner of Ctr. City was the only individual the Serenadas saw, contacted, or interacted with regarding warranty repairs. Eventually, the warranty repairs stopped, and Ctr. City tendered an offer of $2,500 to resolve the floor issues, which was valued at $37,000. Plaintiff filed suit to recoup the cost of the repairs. The Court found that (a) the sole owner created the LLC as a “sham” entity, as the entity did not have employees, an operating agreement, and that he was the “sole actor to this entire transaction”; and (b) similarly, under a “participation theory”, the sole owner was personally liable as he personally entered into the transaction and was objectively aware of the faulty repairs and further refused to abide by the warranty, despite knowledge that the issues existed that warranted repairs. This decision serves as a warning to sole proprietors, as Courts have increasingly been willing to pierce the veil. Thanks to Matt Care for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News The Attorney Client Privilege Remains Under Siege in Coverage Litigation April 5, 2024 < Back Share to: In Cadaret Grant & Co. v. Great Am. Ins. Co., No. CV216665GRBAYS, 2023 WL 4740184 (E.D.N.Y. July 25, 2023) plaintiff Cadaret sought coverage under the terms of a Financial Institution Bond issued by Great American Insurance Company for losses suffered by its clients after a representative of Cadaret engaged in a fraudulent investment scheme in which he used Cadaret client funds for his own personal purposes. Great American ultimately denied coverage, and Cadaret commenced a declaratory judgement action. In the context of the litigation, Cadaret filed a motion to compel the production of documents withheld from discovery by Great American on the grounds of attorney-client privilege and the work product doctrine. Great American denied coverage on April 22, 2021, and the coverage action was commenced eight months later. The documents at issue were generated prior to both dates. The individuals whose names appear on the documents are: (1) Timothy Markey a claims adjuster working for Great American; (2) Michael Graziano, Esq., an attorney working as outside counsel for Great American at the law firm of Eckert Seamans, and (3) John Ellison, Esq. an attorney working for Cadaret at the law firm of Reed Smith. The bulk of the documents at issue were emails exchanged between Markey and Graziano between February 27, 2020, and February 12, 2021, which reveal Graziano’s involvement in Great American’s investigation of Cadaret’s claims. These emails include Markey's transmission of information regarding Cadaret's claims to Graziano and those asking that Graziano draft, for Markey, correspondence to be sent under Markey's name to counsel for Cadaret. The remaining documents at issue are an email transmitting a draft of GAIC's coverage position, a seventeen-page letter dated March 22, 2021, from Graziano to Markey containing Graziano's legal opinion regarding coverage, and two emails following that letter. Great American claimed that the emails exchanged prior to the March 22 letter were protected by attorney-client privilege. The court, however, found that many of the documents “are nothing more than transmittal emails that either refer to requests for information, or the forwarding or downloading of such information.” Id. at 5. Further, the court found that “while these first twenty documents reflect communications between GAIC claims representative Markey and GAIC outside counsel Graziano, they demonstrate work performed by Graziano as a claims investigator rather than as legal counsel. They reflect discussions between Markey and Graziano, typically led by Markey, which culminate in typical requests for information regarding Cadaret's claims. Such documents reveal counsel working in an investigatory role.” Id. For these reasons, the court held that none of the first twenty claimed emails/documents were protected by attorney-client privilege. As for the other documents, the court found that only the letter from Graziano to Markey dated March 22, 2021, falls within the claim of privilege because it shows Graziano’s legal analysis and opinions and was therefore primarily legal, rather than investigatory in nature. The proceeding email contained no legal analysis and therefore was not privileged. The court found that the remaining documents prepared after the March 22 letter were essentially scheduling emails, and therefore also not privileged. The court ultimately granted Cadaret’s motion to compel, except for the March 22 letter. The moral of the story? If you want your communications with coverage counsel to remain privileged, remember that it is your job to decide whether coverage is owed; you are in the business of deciding claims. If you ask your coverage counsel what to do, you will likely lose the benefit of the attorney client privilege. Special thanks to Mimi Osisek for her contributions to this post. For more information about the post or to learn more about WCM’s multi-state coverage practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Cadaret Grant And Co v. Great American Insurance Company .pdf Download PDF • 876KB Previous Next Robert J. Cosgrove Robert J. Cosgrove Executive Partner +1 267 239 5526 rcosgrove@wcmlaw.com Contact