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Small cases create bad law



A case that makes unfortunate law over $ 2134 weakened the insurer's right to assert the legal client's privilege.

A FLAG POLE IS NOT "AUTO"

The trial court found that the insurance company waived the lawyer-client privilege when it relied on its lawyer to write a rejection of a UM / UIM claim and the conclusion that the UM insurance does not cover property , not a car damaged by an uninsured motorist and had to produce written communication between its house adviser and its person responsible and to produce their own adviser for a deposit. In Travelers Property Casualty Company Of America v. 100 Renaissance, LLC No. 2019-IA-00586-SCT, Supreme Court of Mississippi (October 29, 2020), much to the surprise of disputes over a trained disagreement, in accordance with the court.

FACTS

An unidentified driver struck a flagpole owned by 100 Renaissance, LLC and caused $ 2134 in damage. Renaissance filed a claim with its insurance company, Travelers Property Casualty Company of America. Renaissance sought coverage under its motor liability insurance, which included coverage with uninsured motorists (UM).

Travelers denied the Renaissance claim. Travelers' injury user, Charlene Duncan, decided that there was no coverage under the UM policy because the flagpole was not a covered "car". On February 19, 2016, Renaissance attorney Rick Wise sent an e-mail to Duncan outlining Renaissance legal arguments as to why coverage should be provided under the Mississippi UM Statute. Wise cited the Mississippi Code Section 83-11-101 (2) (Supp. 2019), which stated: “No car liability insurance or contract shall be issued or delivered after January 1, 1980, unless it contains an endorsement or provisions that undertake to pay. he insured all the amounts he is legally entitled to recover as damages for property damage from the owner or operator of an uninsured motor vehicle … ”

Before answering Duncan, he sought legal advice from Traveler's adviser, Jim Harris. Duncan is not a lawyer. Duncan sent a letter, dated March 2, 2016, again announcing the Renaissance that its claim was denied under its UM policy because the policy required damage to a covered car. When the claim was reported, a vehicle damaged a flagpole belonging to Barksdale Management. The driver left the scene, so no information could be obtained from the incorrect driver about insurance or financial liability.

Because the flagpole was not a "covered car" nor does it fall within the extended definition of "property damage" in the policy. Damage to the bar is therefore not entitled to uninsured motorist cover. The damage to the flagpole must be done according to your property policy. ”

MISSISSIPPI UNSURED MOTORISTS COVERAGE (CA 21 28 10 13).

Travelers submitted a request for a summary judgment. Renaissance responded and asked for a sequel to make further discoveries. The further discovery that the Renaissance claimed it needed was the production of emails between Duncan and Harris and the deposition of Harris. At the same time, Renaissance filed a request to force the emails and Harris' deposit.

Following a hearing, the court ordered travelers to produce the cameras for camera review. After reviewing the camera, the court found that "Travelers have [d] waived the attorney-client's privilege with respect to attorney Jim Harris." The trial court ordered the travelers to produce the emails and to produce Harris for a deposit.

DISCUSSION

The jurisdiction refers to and covers all information regarding the client that the lawyer has received in his professional capacity and during his representation. by the client. The burden of proof rests with the party claiming the lawyer-client privilege.

Only the client can invoke the privilege but the client can also waive the privilege in certain circumstances. Mississippi law requires insurers to have a discussed or legitimate basis for denying an insurance claim. Here, through discovery, the Renaissance sought to understand travelers' reasons, or arguable or legitimate grounds, for denying the claim.

Based on the testimony of the adjuster Duncan, the Renaissance claimed that the traveler's council actually made the decision to deny the claim and, as a result, he had to testify. Duncan's depository testimony provided no information or explanation as to why the claim was denied. She failed to explain Travelers' decision, its motivation or how the claim would not be covered under the Mississippi UM Charter. Her testimony also showed a lack of knowledge about Mississippi UM law. "She could not explain the origin or intended purpose of her reference to a non-existent Mississippi charter in the letter of denial. She also testified repeatedly that she could not answer coverage questions because she was not a lawyer.

Duncan signed the letter rejecting the claim. In general, it can be expected that the person signing a letter has personal knowledge of the issues stated in the letter. But Duncan's testimony about the landfill clearly showed that she had no personal knowledge of either applicable law or Travelers' reasons for denying the claim.

The majority of the Mississippi Supreme Court, over an educated difference of opinion, agreed to the trial and found no abuse of discretion. Rather, it concluded that the lawyer-client privilege did not apply. Duncan's signature on the letter of denial was simply an attempt to conceal the fact that Harris, not Duncan, had the personal knowledge of Travelers' reasons for denying the claim and using the lawyer-client privilege as a sword to prevent the Renaissance from discovering the causes. from the person who had personal knowledge of the basis for denying the claim.

After claiming that its actions were reasonable because of their knowledge of applicable law, travelers issued the information they received from advisers. While the insurer did not explicitly address a lawyer's defense, the claimants' knowledge of the law consisted entirely of advice from the lawyer.

If the claimant relied on essentially if not entirely on internal advice to prepare his denial letter, the reasoning for internal advice should be discoverable. The trial court was right that Harris has the personal knowledge of the reasons and grounds for the denial, and travelers now rely on these findings to argue that its denial was reasonable.

Renaissance has the right to deprive the individual with personal knowledge of the basis for refusal of coverage stated in the letter of denial. That person is Harris. Consequently, as established by the lawsuit, travelers must provide the written communication between Duncan and Harris regarding Renaissance's insurance claims in question, and travelers must produce Harris for a deposit to discover their knowledge of Travelers' questionable and legitimate grounds for denying the claim.

This case should never have found its way to the Mississippi Supreme Court. First, the policy formulation seemed to be contrary to the Charter. Second, the insured probably had first-party property insurance and could have raised the $ 2,000 + needed to replace the flagpole. Thirdly, when they take the deposit from the lawyer, he can simply claim the work product protection that is only his and this makes it impossible to reach the reasoning of a lawyer who can simply refuse to answer questions seeking the protected work product from a lawyer. . No one has the right to the lawyer's reasoning or work and the client can not waive the protection ignored by the Supreme Court in the case. I have made people try to get my thoughts across as a lawyer and I resisted only by refusing to testify about a lawyer's protected work product.


© 2020 – Barry Zalma

Barry Zalma, Esq. , CFE, now limits its practice to serving as an insurance consultant specializing in insurance coverage, insurance claims handling, cheating and insurance fraud almost equally for insurers and policyholders. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award.

For the past 52 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurers and their indemnity staff to become insurance claims staff.

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