Pennsylvania rules applicable to the scope of discovery of an insurance company’s file materials , 42 PA. C.S.A.§4003.3, protects “mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy and tactics.” Time and again; however, trial judges have ruled that redacted claims notes are subject to discovery. If plaintiff’s counsel pushes for court intervention, the trial judge could be inclined to rule individually on each redaction. So, the question is, which of the following notes would be protected from discovery?

(1) “It is my opinion that the insured told me that there was a combination of light snow and freezing rain just prior to the claimant falling while climbing the steps.”

(2) “In my opinion, the inclusion of the metal strip in the middle of the steps rendered them a safety hazard.”

(3) “I think this case is worth $40,000 to $50,000, but we know the plaintiff’s lawyer well, and he is afraid to try cases. I wouldn’t offer any more than $25,000 prior to picking a jury - only after that would I go any higher.”

Don’t laugh about number one, we have seen insurance notes that attempt to convert what otherwise is a pure fact into an opinion, and of course it has failed. Factual statements are fully discoverable, no matter what language is added.

Regarding number two, you may be surprised to learn that this was discoverable. A Judge in Philadelphia was faced with notes describing the condition of the steps on which the plaintiff fell as a “safety hazard”. The Judge ruled that this was discoverable, reasoning that “the opinion expressed, ‘safety hazard,’ is part of the description of the steps and the description is simply that and nothing more. It does not pretend to be, nor is it, a communication respecting ‘value,’ ‘merit,’ ‘strategy,’ or ‘tactics.’ ”

As for number three, it is clearly non-discoverable. Keep in mind, however, that should the matter subsequently turn into a bad faith claim, such information would be discoverable in that case. The person entering the note would need to explain why it was in the insured’s best interest to hold back the authority until after the selection of the jury. How would you explain that?

What It Means to You

Understanding that much of the claims file could be discoverable is essential in minimizing exposure for your insureds. It is imperative for any risk management professional to realize this fact, and treat anything other than obvious opinions as to value, merit of the claim, and strategy as if they are going to be produced to counsel and eventually read to the jury. As with most discovery issues, each ruling will be case specific. Good communication with defense counsel will be key in successfully navigating these matters. If you have questions, feel free to contact any Cipriani & Werner litigation attorney for assistance.