 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Lazar v. Riggs11/10/2003
s, to the extent that they were obtained by or for another party or his representative in anticipation of litigation. See C.R.C.P. 26(b)(3). The general contours of the phrase, "in anticipation of litigation," as it appears in the rule, and the test for determining when documents fall within the protections of the rule, have been well-established in this jurisdiction for more than twenty years. In Hawkins v. Dist. Ct., 638 P.2d 1372, 1377 (Colo. 1982), we made clear that the rule was not intended to protect materials prepared in the ordinary course of business, whether litigation had already commenced or not, id. at 1378; and that "the general standard to be applied is whether, in light of the nature of the document and the factual situation in the particular case, the party resisting discovery demonstrates that the document was prepared or obtained in contemplation of specific litigation." Id. at 1379; see also Nat'l Farmers Union Prop. and Cas. Co. v. Dist. Ct., 718 P.2d 1044, 1047 (Colo. 1986); see generally 8 C. Wright & A. Miller Federal Practice and Procedure § 2024 (2nd ed. 1994 & Supp. 2003).
In Hawkins, we also expressly rejected the notion that Rule 26(b)(3) insulates insurance company investigations merely because they always deal with potential claims. Hawkins, 638 P.2d at 1378. Instead, we drew almost the opposite conclusion. Because a substantial part of an insurance company's business is to investigate claims made by an insured against the company or by some other party against the insured, it must be presumed that such investigations are part of the normal business activity of the company and that reports and witness' statements compiled by or on behalf of the insurer in the course of such investigations are ordinary business records as distinguished from trial preparation materials. Id. (relying on Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D 367, 373 (N.D. Ill. 1972)).
Therefore, " n the case of an insurance company defending a claim and asserting that its reports and witness' statements are trial preparation materials under C.R.C.P. 26 (b)(3), the insurance company has the burden of demonstrating that the document was prepared or obtained in order to defend the specific claim which already had arisen and when the documents were prepared or obtained, there was a substantial probability of imminent litigation over the claim or a lawsuit had already been filed." Hawkins, 638 P.2d at 1379. At the same time, we also noted that a showing that a claims adjuster, or even a lawyer not acting as a legal counselor for the insurer, conducted an investigation of a claim, during which he compiled various reports and statements, would not be sufficient by itself to overcome the presumption of an ordinary business activity. Id.
An insurance company owes a duty to its insured (but not to a third-party with a claim against its insured) to adjust a claim in good faith. Farmers Group, Inc. v. Trimble, 691 P.2d 1138 (Colo. 1984). As a result, we have noted that insurance information may be relevant or may lead to relevant evidence in an action by an insured against its insurer for a bad faith breach of its insurance contract, even though the same information might not be relevant in a personal injury claim by a third-party against the insured; and that the scope of discovery of insurance information should therefore be correspondingly broader in the former case. Silva v. Basin Western, Inc., 47 P.3d 1184, 1192 (Colo. 2002). We have nowhere suggested, however, that an insurance company owes any less of a duty to investigate and settle claims of third parties against its insureds arising under their insurance policies, or that the results of such investigations are some
Page 1 2 3 4 5 6 7 8 9 Colorado DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|