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Lazar v. Riggs11/10/2003
ttle claims arising under the policy, an insurance company's investigation of third-party claims may very well "shift from an ordinary business activity to conduct in anticipation of litigation." See Hawkins, 638 P.2d at 1378. Because there is no bright line between these two activities in all cases, however, the nature of the document in question and the factual situation in the individual case must always be considered. As we held in Hawkins, it is the burden of the insurance company resisting disclosure to demonstrate that the documents in question were prepared in order to defend against a specific claim and that a lawsuit over that claim had already been filed or was imminent. Merely demonstrating that a claims adjuster conducted an investigation to determine whether a claim falls within its insured's coverage is no more sufficient to demonstrate preparation in anticipation of litigation when the claim is made by a third party than when it is the claim of an insured himself. See id. at 1379.
IV.
The recorded statements of the defendant that are at issue in this case appear to have been taken at the direction of his insurance company well before the initiation of this lawsuit. Without further explanation or findings, the district court denied disclosure on the grounds that the documents were prepared in anticipation of litigation. In light of the arguments and authorities advanced by the parties, it appears that the district court may have felt that the third-party nature of the claim was dispositive of the question and, in itself, was sufficient to justify protection under Rule 26(b)(3). In any event, as in Hawkins, there is nothing in the pleadings and documents filed with this court demonstrating that the statements enjoyed the qualified immunity from discovery provided by the rule for documents prepared in anticipation of litigation.
V.
The rule is therefore made absolute and the matter is remanded to the district court for further proceedings consistent with this opinion. No. 03SA30, Lazar v. Riggs
JUSTICE KOURLIS dissenting:
Because I agree with the trial court's determination that Riggs' statements to his insurance company were made in anticipation of litigation and are therefore protected from discovery pursuant to C.R.C.P. 26(b)(3), and because I believe that Riggs' statements also fall within the attorney-client privilege and are protected pursuant to C.R.C.P. 26(b)(1), I respectfully dissent. In summary, in my view, when an insured makes a statement to his own insurance company about the circumstances of an accident, the insured is not only complying with the contractual mandate that he cooperate with his insurance company in the investigation, but he is also expecting that the insurance company will use the information in providing a defense should litigation ensue.
I. Introduction
Under our cases, as well as those of other states around the nation, this factual scenario presents two issues: whether the document is protected either by the work product doctrine or by the attorney-client privilege. The majority concludes that the materials containing Riggs' statements are not work product because they were not prepared in anticipation of litigation and the statements are therefore discoverable by Lazar pursuant to C.R.C.P. 26(b)(3). The majority does not address questions of attorney-client privilege other than in a footnote. Although the work product protection and the attorney-client privilege provide independent grounds for contesting discovery, they often accompany one another in cases similar to the one at bar. See e.g., A v. Dist. Court, 550 P.2d 315 (Colo. 1976); Nat'l Farmers Union Prop. a
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