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Lazar v. Riggs11/10/2003
accordance with hospital routine. Id. The hospital admitted that the reports were prepared both for purposes of statistical analysis for loss prevention as well as to defend against possible lawsuits. Id. The hospital was self-insured. Ultimately, this court viewed the incident report as a document prepared in the ordinary course of business rather than a document prepared in anticipation of particular litigation. Id. at 722 n. 1.
To the contrary, I suggest that Riggs' statement to his insurer was indeed taken in anticipation of a specific claim that, if denied, would likely lead to litigation. I further suggest that Riggs had a responsibility under his insurance contract to cooperate with his insurance company in investigating the accident - a responsibility that finds no parallel in Kay.
More broadly, I note that since our decision in Kay, we have indeed adopted a rationale that was lacking in Kay for treating third-party claims differently than first-party claims in the context of pretrial discovery.
In Silva v. Basin Western, Inc., 47 P.3d 1184 (Colo. 2002), this court addressed the issue of whether insurance reserves and settlement authority fall within the scope of discovery. We noted that " he relationship between a plaintiff and the defendant's insurer in third-party personal injury tort claims such as this one differs significantly from the relationship between an insured party and his insurer in a first-party dispute between them." Id. at 1191 (citing to Weitzman v. Blazing Pedals, Inc., 151 F.R.D. 125, 126 (D.Colo. 1993)). We stated:
Third-party personal injury tort claims involve liability investigations. When a liability insurer investigates a third-party personal injury claim, the investigation is made in anticipation of claims which, if denied, will likely lead to litigation. Although a claim may be settled short of legal action, there is always the possibility that a claim will end in litigation. In contrast, when a first-party claim between an insured and his or her insurer is at issue, the insured is asking for payment under the terms of the insurance contract between him and the insurance company. The insurance company owes the insured a duty to adjust his claim in good faith. The scope of discovery of insurance information should therefore be broader in a first-party claim between an insured party and his insurer than in a third-party personal injury claim.
Id. at 1191-1192 (internal citations omitted).
The Washington Supreme Court has also opined on the reasons for treating the insured-insurer relationship differently. In Heidebrink v. Moriwaki, 706 P.2d 212 (Wash. 1985), that court examined the issue of whether the statement of an insured to his or her insurance company is protected by the work product doctrine. In terms of the standard enunciated in Hawkins, both the nature of the document and the factual situation in Moriwaki are virtually identical to the facts of this case. In Moriwaki, the materials at issue consisted of tape-recorded statements made by the insured to his insurance company shortly after an automobile accident. An individual initiated a third-party personal injury claim arising out of injuries she sustained in that accident. In holding that statements made by an insured to an insurer were protected from discovery under Washington's version of Rule 26(b)(3), the Supreme Court of Washington noted that the insured was contractually obligated to cooperate with his insurance company in the investigation, and that such obligation created a reasonable expectation by the insured that the insurance company would not use his statement against him. Id. at 216-217. On the other hand, the court also noted that t
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