Vol. 11, No. 6, Pg. 14. The Big Catch: An Adjuster's Claim File.

• Author: By Robert L. Reibold

South Carolina Lawyer

2000.

Vol. 11, No. 6, Pg. 14.

The Big Catch: An Adjuster's Claim File

14The Big Catch: An Adjuster's Claim FileBy Robert L. ReiboldFrom witness's statements to expert's reports, a defendant's insurer's claims file may contain a variety of useful materials. While typically only defense counsel has access to the contents of claims files, plaintiff's attorneys increasingly seek to gain access to such documents. If nothing else, the intensity of the effort with which insurers often resist these forays shows how valuable the contents of a claims file can be to a plaintiff's case.

Their claims file, however, may not be as well protected from discovery as insurers believe. Insurers' claims-handling procedures are rarely designed to maximize the protection afforded to their files. With a little creative lawyering, plaintiff's counsel can take advantage of the resulting vulnerability. Conversely, there are several ways in which insurers can structure their claims-handling procedures to avoid the pitfalls that may render their internal documents vulnerable to discovery.

16This article will focus on suggestions and methods by which plaintiff's counsel might access the contents of an adjuster's claim file. First party claims and bad faith claims are outside the scope of this article. Obtaining relevant portions of a claims file during discovery is essentially a two step process. First, plaintiff's counsel should identify the existence of potentially useful information that might be contained in a particular claim file. Second, plaintiff's counsel must combat the insurers' attempts to protect such information. As illustrations, this article focuses on two of the most common and useful documents that may be found in an insurer's claim file: witness's statements and expert's reports.

Witness's Statements

The first step in learning whether a particular claims file may contain statements of witnesses is to cast a broad net with written discovery. The typical interrogatory used to discover the existence of any witness statements reads:

Give the names and addresses of persons known to the parties to be witnesses concerning the facts of the case and indicate whether or not written or recorded statements have been taken from the witnesses and indicate who has possession of such statements.

Rule 33(b)(1), SCRCP.

The weakness of this interrogatory is that insurers and defense counsel often define the term "statement" rather narrowly. The word "statement" is usually construed to refer only to a written statement signed by a witness, something similar to an affidavit.

Litigants who employ this standard interrogatory are therefore likely to miss the existence of other types of witness statements that might be contained in an adjuster's claim file, such as summaries of interviews conducted by the adjusters, reports from a branch office to an home office that describe or detail information learned from a witness by the adjuster, and references to conversations with witnesses in an adjuster's contact or progress log.

To discover the existence of such materials, an effective discovery strategy should be broader than the standard interrogatory. For instance, in addition to or instead of asking the standard interrogatory, the following two interrogatories might be asked:

(1) List the name and address of each person or entity to which the insurance adjuster responsible for this case has spoken or written while investigating the matters set forth in plaintiff's complaint; and

(2) List each document, electronic or otherwise, which mentions or refers to the adjuster's contact or the content thereof with each person identified in response to the previous interrogatory.

Plaintiff's counsel will ordinarily know the identity of the adjuster handling a claim long before written discovery is sought. If, however, the adjuster's identity is unknown, that information can easily be discovered through a preliminary interrogatory.

Of course, a request to produce any documents identified in response to these interrogatories is likely to be met with stiff resistance. Defense counsel typically invoke the attorney-client or work product privilege to shield such information from discovery. When faced with any such objection, lawyers should keep in mind that the burden of proving a particular document is...