Discovery: Claims File

MONTANA SUPREME COURT DECISIONS

Lamb v. District Court, 2010 MT 141 Where the parties stipulated that the insurer was liable for the claimant’s occupational disease claim, as well as the claimant’s attorney fees and a penalty, and the claimant then pursued a bad faith claim in District Court, the Montana Supreme Court held that the claimant was entitled to discover the insurer’s original files pertaining to her claim in order to prove her bad faith claim.  The court noted that the claimant was not entitled to discover the post-settlement files of the insurer which dealt with the claimant’s ongoing medical benefits.
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS
Long v. New Hampshire Ins. Co. [04/10/09] 2009 MTWCC 14 Where a claims adjuster’s notes are not accessible by anyone in Montana for a period of time, the mandate of § 39-71-107(3), MCA, is violated.
Stewart v. MACo Workers' Compensation Trust [05/15/08] In the absence of a statute which sets forth permissible copy charges for a claimant’s request of his own claim file, § 39-71-107(3), MCA, offers some guidance to the Court in mandating that a claim file must be maintained in a manner that makes it accessible to the claimant. Section 39-71-105(4), MCA, expresses the public policy that claimants should be able to speedily obtain benefits in a system designed to minimize reliance upon lawyers and the courts. A prohibitively expensive claim file is not truly accessible to a claimant without the assistance of counsel or the Court. An insurer may charge a reasonable amount – the same amount as is commonly charged by businesses in the community which offer photocopy services to the public where the claim file is maintained.
Re: John David Miller - The St. Paul Travelers Companies Inc. v. Liberty Northwest Ins. Co. [10/26/07] 2007 MTWCC 44 Where Respondent objected to or provided incomplete responses to Petitioner’s requests for production and interrogatory regarding a complete claims file, including, but not limited to all claims correspondence, claims adjusting notes, and communications with and between Respondent’s medical director, the Court found Respondent’s assertion that the requests were irrelevant and not calculated to lead to the discovery of admissible evidence to be unreasonable and awarded attorney fees and costs.
Porter v. Liberty [10/19/07] 2007 MTWCC 42 Without a filed petition, this Court has no jurisdiction over any alleged claim, and the Court cannot order an insurer to provide a copy of its claims file to a claimant. However, if a claimant is forced to file a petition in this Court simply to receive a copy of his claims file, this fact would be taken into consideration in determining whether a claim was adjusted reasonably.
Burnside Lund v. St. Paul Fire [3/1/02] 2002 MTWCC 13 An insurer's claim file is not protected by the work- product rule just because an attorney acting on claimant's behalf makes inquiries and requests concerning her benefits or corresponds with the employer concerning her discharge from employment.
Burnside Lund v. St. Paul Fire [3/1/02] 2002 MTWCC 13 Opinions or mental impressions prepared by an attorney, or at the direction or on behalf of an attorney, are entitled to greater protection than other work product.

Burnside Lund v. St. Paul Fire [3/1/02] 2002 MTWCC 13The work-product rule does not protect documents prepared in the ordinary course of claim adjustment even if prepared after there is a threat or commencement of litigation.

Church v. Travelers Indemnity Company of Illinois [5/1/97] 1997 MTWCC 23 Based on review by hearing examiner, work product protection extended to notes of claims adjuster regarding discussions with attorney and recommendations from attorney.
Church v. Travelers Indemnity Company of Illinois [4/24/97] 1997 MTWCC 23 Applying the standards regarding attorney-client privilege and workproduct articulated in earlier WCC decisions (Adels v. Cigna Ins. Co., WCC No. 9307-6831; Blount v. Conagera, Inc., WCC No. 9304-6769; Yaeger v. Montana Schools Group Ins. Co., WCC 9308-6872; Wetzel v. Ash Grove Cement, WCC No. 9108-6216), hearing examiner ordered production of several categories of documents, but held the following documents protected by work product doctrine: insurer's reserve information and rationale, notes regarding general settlement and discussion with the employer, mediation, estimated liability sheet, and letters setting out internal discussion about settlement. Attorney-client privilege and work product held to protect claims adjuster's notes regarding discussion with another claims adjuster and employer regarding liability in case.
Mutchie v. Old Republic Ins. Co. [01/20/95] 1995 MTWCC 3 Materials in the adjuster’s file referencing attorney advice or specific mental impressions are protected under the attorney client privilege or work product rule. However, because this dispute concerns the treatment and handling of petitioner’s claim, and a specific issue exists as to selection of a physician, most of the adjuster’s file must be produced. Where the Montana Supreme Court has distinguished between claims files of attorneys and those of insurers, Cantrell v. Henderson, 221 Mont. 201 (1985), the work-product rule does not automatically apply to an insurer’s file. Information prepared in the regular course of a claims adjuster’s work is typically not protected.