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Lazar v. Riggs11/10/2003
he insurer has a contractual obligation to defend the insured, and can be expected to transmit the statement to the attorney. That court stated:
In essence, the insurance company has been retained to provide an attorney and the expectation is that statements made by the insured will be held in confidence. . . .If the statement were made directly to the selected attorney, it would obviously have been made in anticipation of litigation. The contractual obligation between the insured and insurer mandates extension of this protection to statements made by an insured to his insurance company.
Moriwaki, 706 P.2d at 217.
With both our language in Silva and the Washington Supreme Court's analysis in Moriwaki in mind, it is easy to see the distinction between Kay and the case before the court today. The document at issue in Kay was prepared in the ordinary course of business by a self-insured hospital. In contrast, Riggs made his statement at the direction of his insurance company after an automobile accident involving personal injury . The statement had no use other than to investigate and potentially defend against claims. I agree with the reasoning articulated in Moriwaki to the effect that Riggs had a contractual duty to cooperate, in exchange for which the insurance company had a contractual duty to defend him. Under those circumstances, neither the holding of Hawkins nor of Kay prevents this court from protecting the insured's statements to his insurance company from discovery.
Since I view the materials containing Riggs' statements as having been prepared in anticipation of litigation, the trial court must address the issue of whether the plaintiff has a substantial need for the documents and cannot otherwise obtain the information. At the present stage of the litigation, Lazar has not conducted a deposition of Riggs. Rather, Lazar seeks to compel the disclosure of Riggs' statements without such particularized need. I would remand the case to the trial court to consider whether Lazar can make the requisite showing of need.
B. Attorney-Client Privilege
Furthermore, although I would certainly not adopt a per se rule of privilege for insured-insurer communications, in my opinion, the communications between Riggs and his insurer may fall within the attorney-client privilege and are non-discoverable pursuant to C.R.C.P. 26(b)(1).
For this proposition, I need look no further than Bellmann v. Dist. Court, 531 P.2d 632 (Colo. 1975). In Bellmann, this court addressed the same issue presented in this case: whether statements regarding an automobile accident, made by an insured to his insurer, were subject to discovery by an adverse party. The discovery was sought in connection with a criminal DUI prosecution. The party opposing discovery reasoned that because his insurance company was contractually obligated to defend him with counsel of their choosing against any civil action arising out of the accident, and because he was obligated under the terms of his insurance policy to cooperate fully with the insurer, the statements to the insurance adjustor were, in effect, given to the attorney retained by the insurer for the purpose of defending him. Id. at 633. This court agreed and concluded that the communications between the insured and the insurer fell within the attorney-client privilege. Id. at 634. This court relied heavily on the reasoning in People v. Ryan, 197 N.E.2d 15 (Ill. 1964), to support its holding.
In Ryan, the Illinois Supreme Court addressed whether an insured's statements made to an insurance company were privileged. A primary factor in making this determination was the character of the communication. Id. at 1
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