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Lazar v. Riggs11/10/2003
7. The Illinois Supreme Court analyzed a number of analogous cases from other jurisdictions and concluded that under the insurance contract,
the insured effectively delegates to the insurer the selection of an attorney and the conduct of the defense of any civil litigation. The insured is ordinarily not represented by counsel of his own choosing either at the time of making the communication or during the course of litigation. Under such circumstances we believe that the insured may properly assume that the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured.
Id.
Another court has suggested that the appropriate inquiry is whether the "dominant purpose" of the communication was for the defense of the insured and whether the insured had a "reasonable expectation of confidentiality." Cutchin v. State of Maryland, 792 A.2d 359, 366 (Md. App. 2001).
In Kay, we limited the holding of Bellmann to documents prepared once the attorney-client relationship already exists. However, the language in Kay arises out of the context of the facts of that case: namely, a situation in which the hospital was the self-insured defendant in a later lawsuit. We wrote that the attorney-client relationship between the hospital and its attorney must exist at the time of document creation for the privilege to apply. Here, presumably the question would be whether the insurance company had retained counsel to represent Riggs at the time of the statement. Our language in Silva belies such a simple dividing point. Again, in Silva, we recognized that third-party liability investigations are made "in anticipation of litigation" just by the nature of the system. Silva, 47 P.3d at 1191-1192. If our holding in Kay intended to preclude any attorney-client privilege claim as to a document prepared prior to actual retention of an attorney, it cut a broad swath indeed. I would not read it so expansively, but would rather limit it to its facts and would proceed with the analysis of the character of the communication at issue here. Among the facts I would consider would be: when the statement was made in relation to the lawsuit; whether criminal charges had then been filed against Riggs; whether Lazar had already made claims against Riggs' insurance company; and the circumstances of the communication - to whom it was made, in what setting and upon what prompting.
For these reasons, in order to determine the propriety of affording attorney-client privilege protection to this document, I would remand to the trial court for particularized findings in this arena as well.
III. Conclusion
The majority's decision today puts the insured in a potentially precarious situation. On one hand, if he fulfills his contractual duty to cooperate and provides a candid and open narrative of the events surrounding the claim, he risks exposing incriminating facts or mental impressions. On the other hand, if he declines to provide the insurance company with all the information, he could risk an effective defense or even coverage. Although I do not advocate a blanket discovery exclusion for communications between insured and insurer, I do support a case-by-case analysis. In that analysis, a trial court should determine whether the purposes and requirements of either the work product doctrine or the attorney-client privilege would protect the document. For these reasons, I respectfully dissent from the majority opinion, and would remand the case to the trial court for findings of fact and conclusions of law in accordance with this opinion.
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