SteveK October 19th, 2009

On October 7, 2009, in the case of American Home Assurance Company v. United States Magistrate Judge Falk ,in the District Court of New Jersey, ruled that a report of an accident prepared by an investigator was not protected by the work product doctrine even though attorneys for the insurer were also present. The issue arose in a subrogation claim asserted by American Home against the U.S. arising from a collision between an aircraft that American Home insured and a paving roller on the runway at the Teterboro Airport. American Home dispatched an investigator immediately after the accident. At the same time counsel for the insurer also went to the site of the accident. While at the scene, counsel requested the investigator to send them the report.  During the course of the subrogation claim, the U.S. sought disclosure of the report. After an in camera review, Magistrate Judge Falk ruled that the document was to be disclosed. Te Judge reasoned that the report was not prepared in anticipation of litigation, but in the course of the usual routine of the business of insurance claims.  Even though a subrogation claim was always a possibility, the Court determined that the investigation was the ordinary course of business and, therefore, did not create a basis to protect the document from disclosure. Further, since the investigator was not hired by counsel, but by the insurer in accordance with the usual process, the presence of the attorney, or the request that the report be sent to the attorney, did not alter the character of the report. Finally, the Court noted that the report could not be considered to be in anticipation of litigation where the report itself states that the subrogation claim was “to be determined.” The Court stated that work-product protection is not ordinarily afforded to a document prepared prior to the decision regarding whether a subrogation claim will exist. This further demonstrated to the Court that the report was done in the ordinary course of business. This decision provides some guidance in what can be done to attempt to protect such reports from disclosure, or the need of the investigator to consider the content of report since it is subject o disclosure in discovery.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of insurance companies in coverage matters. For additional information about the matters in this bulletin or in the firm’s Insurance Coverage Practice, please contact Steven A. Kunzman, Esq. 

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