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Lazar v. Riggs11/10/2003
RULE TO SHOW CAUSE MADE ABSOLUTE
EN BANC
JUSTICE KOURLIS dissents.
Judy Lazar, the plaintiff in the underlying personal injury action, petitioned for exercise of our original jurisdiction, pursuant to C.A.R. 21. She seeks pretrial disclosure of statements made by the defendant, Patrick Riggs, to his insurance company's claims adjusters. The district court denied her motion to compel disclosure, on the grounds that the statements were taken in anticipation of litigation. We issued a rule to show cause, and because the district court's order is not supported by the record, we now make the rule absolute.
I.
The lawsuit arises from an automobile accident that occurred on September 18, 2001. Lazar alleges that the failure of Riggs to exercise reasonable care caused the collision and her injuries. A police accident report indicated that officers cited Riggs at the scene for driving under the influence of alcohol, driving with excessive alcohol content, and careless driving.
More than nine months later, Lazar filed her lawsuit. In his Rule 26 disclosures, Riggs disclosed the existence of a resume of a recorded statement by him in his insurance company's claim file, but he objected to production of the document on the grounds that it was protected as work product. He responded to Lazar's motion to compel disclosure with authorities supporting the proposition that investigations by insurance companies in defense of claims against their insureds are shielded from discovery as work product. Without hearing the matter or making particularized findings of fact, the district court denied the motion, indicating merely that the recorded statement given to Riggs' insurer following the accident, as well as a written statement by Riggs prepared in response to a subrogation specialist for the insurance company, was made in anticipation of litigation.
Lazar petitioned for review of that order.
II.
Exercise of the supreme court's original jurisdiction is entirely within its discretion. In re: People v. Lee, 18 P.3d 192, 194 (Colo. 2001). Relief pursuant to C.A.R. 21 is appropriate to remedy a lower court's abuse of discretion where appellate review would be inadequate. Id. Although interlocutory in nature, discovery orders have been reviewed by original proceedings in a number of circumstances, including where the ruling's impact will be substantial and incurable and where it raises significant questions about the administration of pretrial discovery generally that call for immediate resolution. See Sanchez v. Dist. Ct., 624 P.2d 1314, 1317 (Colo. 1981); In re Attorney D., 57 P.3d 395, 398 (Colo. 2002).
While the applicability of the work product doctrine to insurance claim files is not a matter of first impression in this jurisdiction, related developments in this and other jurisdictions have brought into question the continued vitality of some of our prior pronouncements. As the argument and ruling below indicate, distinctions between claims by an insured and claims by third parties against an insured, which we have recognized in related contexts and other jurisdictions have applied to the work-product context, have made unclear the discoverability of third-party insurance claim files in this jurisdiction as well. Because these discovery issues appear to be of increasing significance in the jurisdiction and yet remain resistant to review through the normal appellate process, we consider it appropriate to exercise our original jurisdiction.
III.
Rule 26 limits the otherwise broad discovery permitted by the Colorado Rules of Civil Procedure of documents and tangible thing
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