You’ve filed a claim with your insurer. They have opened a file and filled it with information regarding your claim, including things like an investigation report. The insurer’s decision to pay or not pay your claim is based on what’s in that file. Can you as the insured policyholder see that claim file? Of course you can, you say, because it’s MY file! Well, maybe…
First of all, you probably won’t see the file unless there is some sort of lawsuit entitling you to discovery. Insurance policies do not entitle insureds access to investigative reports or claims files created by the insurer. Typically an insurer will assert the file is a trade secret that policyholders are not entitled to see. The only information policyholders see is what the insurer decides to show them in the form of a denial letter, or letter of acceptance of the claim, or acceptance under a reservation of rights.
If a lawsuit has been filed for breach of the insurance contract, or for insurance bad faith, then the insurer will have to produce some of the claim file for you and your attorney’s review. The insurer must generally produce the claim file to its insured, but also may assert privileged information is protected from discovery, e.g. attorney work product. Application of the privilege to specific documents must be determined by the court. [2,022 Ranch v. Sup. Ct. (2003) 133 Cal. App. 4th 1377 at 1396-1397. Also Richardson v. Employer’s Liab. Assur. Co. (1972) 25 Cal. App. 3d 232, 242-243(disapproved on other grounds]. The 2,022 Ranch case was about whether the investigation report was discoverable. The court concluded that “evidence reflecting the factual investigation of 2,022 Ranch’s claim is subject to discovery. Only those communications reflecting the requesting of, or rendering of, legal advice are protected by the attorney-client privilege, and only the attorney’s legal impressions, conclusions, opinions, or legal research or theories are subject to the attorney work product privilege.” If the insurer won’t abide by these rules, then the insured has the option to seek an order from the court compelling production. It shouldn’t take the use of this legal crow bar to pry lose the important contents of the claim file, but sometimes it does. The good news is with some persistence, the important information in your claim file is available.
This blog has been prepared by Barbara Gallios, Attorney at Law, to provide information and commentary on recent legal developments of interest to the public. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.
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