Professional Liability

In anticipation of a bad faith claim stemming from an automobile negligence lawsuit, Allstate assigned its bad faith adjusters and counsel to handle the potential bad faith claim prior to the conclusion of the underlying claim. The case went to trial, and the jury ruled in favor of the plaintiff. The defendant then filed a motion for a new trial or remittitur. The trial court offered the defendant the options of either a new trial or to accept the $18 million verdict. Allstate chose to accept the verdict on behalf of the defendant, which led to the defendant in the underlying claim to sue Allstate for bad faith. 

While there are less work product protections in bad faith claims, there still are some, and the test is, if not when the materials were created, whether it pertains to the processing or litigation of the underlying claim. The trial court erred in not conducting an in-camera inspection of the claimed attorney-client privileged documents just because the documents were created prior to the resolution of the underlying claim, where they could have related to the rendering of legal advice related to the anticipated bad faith claim. 

The practical implications here show a prime example of how to retain work product privileges and attorney-client protections not just in the context of bad faith claims, but in any type of case.
 

^{Case Law Alerts, 1st Quarter, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}