Ohio Cas. Group v. Am. Int’l Specialty Lines Ins. Co., 2006 U.S. Dist. LEXIS 52070 (D.N.Y. 2006)

Ohio Casualty filed a motion to compel other insurers to produce insurance claims file documents that were allegedly covered by work product doctrine. The action involved a coverage dispute between four insurers following a $78 million verdict in Sauer v. Advocate, Inc. (Circuit Court, Polk County, Arkansas, June 2001). “Advocat was apparently insured from October 1996 to January 1998 under a primary policy issued by Reliance Insurance Company ($ 1 million coverage) and first-layer excess policy issued by AISLIC ($ 50 million coverage). Advocat was apparently insured during 1998 under a primary policy issued by Admiral ($ 1 million coverage subject to a $ 250,000 self-insured retention), a first-layer excess policy issued by Gulf ($ 5 million coverage), and a second-layer excess policy issued by Ohio Casualty ($ 45 million coverage).” Ohio Casualty’s claims included an allegation that the other insurers acted in bad faith by refusing to settle and sought the claims files in support of this claim. The court ruled that the claims files were prepared in anticipation of litigation and that absent an exception to the work product doctrine, they were not discoverable. Bad faith claims against an insurer are not a per se exception to the work product doctrine. Ohio Casualty then argued that allegations concerning post-verdict conduct constituted waiver. The court found no waiver. Finally, Ohio Casualty argued “need” or “hardship.” The court concluded that discovery had just started, only one deposition had been taken and Ohio Casualty had not established that it could not secure the requested information in depositions. The motion was denied without prejudice.