CRAIG A. ADELS Petitioner,
CIGNA INSURANCE COMPANY Respondent/Insurer for WEN DON CORPORATION Employer.
ORDER DENYING MOTION TO
COMPEL; ORDER BIFURCATING ISSUES
Craig A. Adels (claimant), has filed a motion to compel
production of two documents contained in the claim file of
the respondent insurer, Cigna Insurance Company (Cigna).
Cigna objects to disclosure of the documents, citing the work
first document at issue is described by Cigna as a March 27,
1991 investigator's report. The second consists of the
insurance adjuster's notes. The documents have been
provided to the Court for an in camera inspection. In light
of the disposition of the claimant's motion, the Court
has not reviewed the documents. They will be retained in a
sealed envelope. If at a later date it becomes necessary to
review them, I will do so.
advances three grounds for his motion to compel. First, he
argues that the investigator's report and parts of the
adjuster's notes are not within the work product rule
because they were prepared before the insurer hired counsel.
Second, he contends that Cigna waived any work product claim
regarding the investigator's report. Finally, he argues
that his interest in disclosure of the two documents
overcomes the prima facia presumption against disclosure.
work product rule is set forth in Rule 26 (b)(3),
Mont.R.Civ.P., which states:
(3) Trial preparation: Materials. Subject to the provisions
of subdivision (b)(4) of this rule [relating to expert
witnesses], a party may obtain discovery of documents and
tangible things otherwise discoverable under subdivision
(b)(1) of this rule and prepared in anticipation of
litigation or for trial by or for another party or by or for
that other party's representative (including the other
party's attorney, consultant, surety, indemnitor,
insurer, or agent) only upon showing that the party seeking
discovery has substantial need of the materials in the
preparation of the party's case and that the party is
unable without undue hardship to obtain the substantial
equivalent of the materials by other means. In ordering
discovery of such materials when the required showing has
been made, the court shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories
of an attorney or other representative of a party concerning
the Montana Rules of Civil Procedure do not directly apply to
the Workers' Compensation Court, the rules provide
guidance when its own rules are silent. Moen v. Peter
Kiewit Sons' Co., 201 Mont. 425, 434, 655 P.2d 482
(1982). In questions involving the work product rule, this
Court has specifically looked to Rule 26. It is therefore
appropriate to do so in this case.
Montana Supreme Court has held that the work product doctrine
applies from the moment a claim file is opened:
. . . When a claim file is opened, there is always some
prospect of litigation and an investigation must be conducted
geared to the ultimate eventuality of litigation. Therefore,
we feel that work product protection must be afforded from
the time the claim file is opened.
Kuiper v. District Court, 193 Mont.452, 465, 632
P.2d 694 (1981). That holding was reiterated in Palmer v.
Farmers Insurance Exchange, 50 St.Rep. 1210, 1219
(October 18, 1993). In Kuiper the Supreme Court
observed that "[n]ormally, claim files are commenced in
anticipation of litigation." 193 Mont. at 459.
Both Kuiper and Palmer involved liability
insurance policies covering tort claims and that underlying
rationale may not apply with equal force to claim files
opened in workers' compensation cases. However, in light
of the expansive and specific holdings in both cases, it is
inappropriate for this Court to speculate whether the Supreme
Court might at some future time conclude that work product
protection is triggered at a later time in workers'
compensation cases. I therefore conclude that the protection
extends to both of the documents sought in this case.
for Cigna, Andrew J. Utick, also represents in his brief that
he "was in fact involved in this claim prior to the
preparation of the investigative report."
Defendant's Response To Petitioner's Motion To
Compel Production Of Documents Claimed To Be Privileged at
7. An attorney's signature on documents filed with
the Court represent his certification of the accuracy of
statements made of personal knowledge. Mr. Utick's
involvement in the case at the time of the documents were
generated thus places the documents under the umbrella of the
work product doctrine whether or not the holdings in
Kuiper and Palmer might be limited by some
future Supreme Court decision.
points out that the types of materials he seeks herein are
routinely produced by workers' compensation insurers.
Since the protection of the work product doctrine may be
waived, that observation is not legally persuasive.
case Cigna did not waive the protection of the work product
doctrine. Voluntary waiver may be found where a party
"voluntarily disseminated the documents in
question." Kuiper v. District Court, 193
Mont. 452, 460, 632 P.2d. 694 (1981) (emphasis
added). Claimant has supplied the Court with a copy of a
letter from Cigna to another insurer which apparently
provided disability insurance coverage to claimant. In that
letter Cigna promised to send the disability insurer "a
copy of our investigator's report as soon as it
arrives." Cigna denies that the investigative report was
ever sent to a the disability insurer or any other third
party, and claimant has provided no evidence to contradict
that denial. A promise to disclose does not amount to actual
disclosure. There was no waiver by Cigna.
also argues that he needs the documents so he can rebut
respondent's allegations of fraud and that they are also
necessary to prove that the insurer acted unreasonably and
should therefore be assessed a 20% statutory penalty. He
contends that the relevancy of the ...