The Insured has the Duty to Prove Coverage for Defense

Barry Zalma | Zalma on Insurance

In Zurich American Insurance Company v. Ironshore Specialty Insurance Company, 137 Nev.Adv.Op. 66, No. 81428, Supreme Court of Nevada, En Banc (October 28, 2021) the Supreme Court was asked to answer inquiries from the Ninth Circuit because two federal district courts issued conflicting decisions regarding whether, in Nevada, the insured or the insurer has the burden of proving that an exception to an exclusion of coverage provision applies. The Ninth Circuit certified the following questions to the Supreme Court of Nevada:

  1. Whether, under Nevada law, the burden of proving the applicability of an exception to an exclusion of coverage in an insurance policy falls on the insurer or the insured?
  2. Whichever party bears such a burden, may it rely on evidence extrinsic to the complaint to carry its burden, and if so, is it limited to extrinsic evidence available at the time the insured tendered the defense of the lawsuit to the insurer?

FACTS

Throughout the 2000s, thousands of homes in Nevada were built by subcontractors under the direction of several development companies. During that period, these subcontractors were insured by appellants Zurich American Insurance Company and American Guarantee and Liability Insurance Company (collectively, Zurich). After the work on the homes was completed, the subcontractors switched insurers, obtaining insurance from respondent Ironshore Specialty Insurance Company (Ironshore). Ironshore’s policy insured the subcontractors against damages attributed to bodily injury or property damage that occurred during the new policy period. The policy provides that if the insured becomes legally obligated to pay damages because of bodily injury or property damage that qualifies under the policy, Ironshore will pay those sums. It further provides that Ironshore will have the right and duty to defend the insured if the suit seeks damages to which the policy applies. The policy applies only if the bodily injury or property damage is caused by an occurrence within the coverage territory and applicable policy period.

The Ironshore policy contains a “Continuous or Progressive Injury or Damage Exclusion” that modifies the insurance coverage provided under the policy. The exclusion provides that the policy does not apply to any existing bodily injury or property damage, except for “sudden and accidental” property damage:

This insurance does not apply to any “bodily injury” or “property damage” . . . which first existed, or is alleged to have first existed, prior to the inception of this policy. “Property damage” from “your work[, ]” … or the work of any additional insured, performed prior to policy inception will be deemed to have first existed prior to the policy inception, unless such “property damage” is sudden and accidental and takes place within the policy period.

Between 2010 and 2013, homeowners who had purchased homes within these development projects brought 14 construction defect lawsuits against the developers in Nevada state court, alleging the properties were damaged from construction defects.  Zurich settled claims against the subcontractors and then, in Nevada Zurich I, sued Ironshore in federal court seeking contribution and indemnification for the defense and settlement costs, as well as a declaration that Ironshore had owed a duty to defend the subcontractors against the underlying lawsuits. [Assurance Co. of Am. v. Ironshore Specialty Ins. Co. (Nevada Zurich I, No. 2:15-cv-00460-JAD-PAL, 2017 WL 3666298, at *1 (D. Nev. Aug. 24, 2017).] Ironshore moved for summary judgment, arguing that it had no duty to defend because there was no potential for coverage under the terms of the policy.

The federal district court granted summary judgment in favor of Ironshore. The court rejected the argument that the “sudden and accidental” exception to the exclusion of the coverage applied, reasoning that none of the complaints in the underlying lawsuits alleged that the damage occurred suddenly, and that without any evidence to support such an allegation, Zurich failed to carry its burden. In issuing this holding, the court implicitly concluded that the insured has the burden of establishing that an exception to an exclusion applies. The court also assumed that Zurich could have introduced extrinsic evidence to satisfy its burden, but it did not directly address the question.

Around the same time, another federal district court, in Assurance Co. of America v. Ironshore Specialty Insurance Co. (Nevada Zurich II, No. 2:13-cv-2191-GMN-CWH, 2015 WL 4579983 (D. Nev. July 29, 2015), reached a different conclusion in a substantially identical case. The judge in that case concluded that Ironshore owed a duty to defend because the underlying complaints “did not specify when the alleged property damage occurred and did not contain sufficient allegations from which to conclude that the damage was not sudden and accidental.”

The Nevada Zurich II court concluded that Ironshore failed to satisfy its burden of proving that the exception to the exclusion did not apply, implicitly concluding that the insurer had the burden of proving the nonapplicability of the exception to the exclusion. The Nevada Zurich II court also assumed that extrinsic evidence was admissible but did not address the issue directly.

DISCUSSION

In Nevada, insurance policies are treated like other contracts, and thus, legal principles applicable to contracts generally are applicable to insurance policies. When reading a provision of an insurance policy, the court’s interpretation must include reference to the entire policy, which will be read as a whole in order to give reasonable and harmonious meaning to the entire policy. Under an insurance policy, the insurer owes two contractual duties to the insured: the duty to defend and the duty to indemnify. Only the duty to defend is at issue.

The insurer bears a duty to defend its insured whenever it ascertains facts which give rise to the potential of liability under the policy. Conversely, there is no duty to defend where there is no potential for coverage. If there is any doubt about whether the duty to defend arises, this doubt must be resolved in favor of the insured. However, the duty to defend is not absolute. A potential for coverage only exists when there is arguable or possible coverage.

Courts in many jurisdictions have concluded that the insured bears the burden of proving the sudden and accidental exception to an exclusion of coverage. The trend clearly appears to place the burden on insureds to prove that an exception to an exclusion applies to restore coverage. Some courts do not agree.

Nevada law provides that an insurance policy should be read according to general contract principles. Furthermore, Nevada law requires that the insured establish coverage under an insurance policy, whether claiming a duty to indemnify or a duty to defend. The majority approach is in accordance with basic tenets of evidence law in Nevada. The party that carries the burden of production must establish a prima facie case. The burden of persuasion rests with one party throughout the case and determines which party must produce sufficient evidence to convince a judge that a fact has been established. In Nevada, the burdens of production and persuasion rest with the insured, who has the initial burden of proving that the claim falls within policy coverage.

The duty to defend arises when there is a potential for coverage, whereas the duty to indemnify arises when the insured’s activity and the resulting damage actually fall within the policy’s coverage.

The Insured May Use Extrinsic Facts Available To The Insurer At The Time Of Tender To Prove The Insurer Had A Duty To Defend

An insurer bears a duty to defend its insured whenever it ascertains facts which give rise to the potential of liability under the policy. Thus, under Nevada law, an insured may present such extrinsic facts to the insurer, and rely upon them, in order to argue that the insurer owes a duty to defend as within an exception to an exclusion.

Neighboring California has held that “[a]n insurer’s duty to defend must be analyzed and determined on the basis of any potential liability arising from facts available to the insurer from the complaint or other sources available to it at the time of the tender of defense.” Waller v. Truck Ins. Exch., Inc., 900 P.2d 619, 632 (Cal. 1995) (quoting CNA Cas. of Cal. v. Seaboard Sur. Co., 222 Cal.Rptr. 276, 278-79 (Ct. App. 1986)). Since the duty to defend must be determined at the outset of litigation based upon the complaint and any other facts available to the insurer, the Nevada Supreme Court held that the insured may use extrinsic facts that were available to the insurer at the time it tendered its defense to prove there was a potential for coverage under the policy and, therefore, a duty to defend.

The certified questions were, therefore, answered as follows:

  1. the burden of proving the exception to an exclusion is on the insured, not the insurer; and
  2. in fulfilling its burden to prove the exception to an exclusion applies, the insured may utilize any extrinsic facts that were available to the insurer at the time the insured tendered defense to the insurer.

ZALMA OPINION

Accepting the rule followed by the majority of the courts in the U.S. and basic common sense, the Nevada Supreme Court applied the basic rule of law that it is the insured who is obligated to prove that coverage applies and can use extrinsic evidence to establish the coverage. So, in this who’s on first routine, the insured is on first to prove that an exception to an exclusion applies and if it succeeds the burden shifts to the insurer to prove the opposite.

Wyoming Supreme Court Allows Insured to Seek Bad Faith Damages

Lee-Ann Brown | Bradley Arant Boult Cummings

In May of this year, the Supreme Court of Wyoming held that a subsidiary of Sinclair Oil could invoke statutory bad faith damages after prevailing in a coverage dispute with its insurer, Infrassure. The court rejected the district court’s analysis that accepted the insurer’s narrow interpretation of Wyoming’s insurance code. On certification from the 10th Circuit, the court found that a policy was “delivered” in Wyoming—and therefore, Wyoming insurance code applied—because the policyholder and the covered risk were in Wyoming. Per the court’s decision, proof of physical delivery beyond the stated headquarters’ address, to a Wyoming address, was not required.

After a 2013 fire and explosion at its petroleum refinery in Sinclair, Wyoming, Sinclair sought business interruption insurance recovery from Infrassure and other insurers. Infrassure rejected a settlement among Sinclair and the market of quota share participants and instead sought to litigate the loss. Subsequently, a panel of appraisers affirmed that the loss value was higher than the settlement that Infrassure rejected, and Sinclair sought to recover its attorney’s fees and enhanced interest at 10% under Wyoming Insurance Code. The policy insured a Wyoming company as additional insured and covered refining facilities located in Wyoming. Yet, Infrassure argued that Sinclair could not invoke Wyoming insurance code’s bad faith remedies because the code excludes policies not “issued for delivery” or “delivered” in Wyoming. The Wyoming federal district court agreed with Infrassure’s contention that because there was no proof of physical delivery to the insured in Wyoming, Wyoming law did not apply. On appeal, the 10th Circuit accepted the suggestion from Sinclair’s appellate counsel (Marc James Ayers, with Bradley’s Appellate Practice Group), that the court certify the unsettled and novel question to Wyoming’s highest court to determine the applicability of the statute.

The Wyoming Supreme Court rejected the insurer’s strict interpretation, finding that the purpose of Wyoming’s insurance laws was to “protect public welfare and Wyoming residents…” and that achieving this purpose mandated a liberal interpretation of the law’s application to Wyoming interests. The court adopted a rule articulated by the New York courts, holding that a policy is “delivered or issued for delivery” in a state when it “covers both insureds and risks” located in that state. Thus, because the Sinclair subsidiary and the insured refinery were in Wyoming, Sinclair was entitled to the protections mandated by the insurance law.

Bad faith disputes arise in the context of construction as well. When negotiating first party insurance coverage—such as builders risk policies—insureds should pay close attention to the choice of law provisions in the policy to ensure the applicable jurisdiction recognizes first party bad faith claims.

No Coverage for Home Damaged by Falling Boulders

Tred R. Eyerly | Insurance Law Hawaii

    The policy’s earth movement exclusion barred coverage for the home damaged by large boulders rolling down from the hillside above. Sullivan v. Nationwide Affinity Ins. Co. of Am., 2021 U.S. App. LEZXIS 628 (10th Cir Jan. 11, 2021). 

    Plaintiffs’ home sustained extensive damage when two or three large builders rolled down a steep hillside and struck the home. The insurer, Nationwide, hired an engineering firm that determined the boulders were not influenced by meteorological conditions such as torrential rain or high winds. The report noted that rockfall hazards existed primarily due to an undercut sandstone outcrop, and evidenced by numerous rocks from rockfall events that scattered Plaintiffs’ property. 

    Based on the report, Nationwide denied coverage under the earth movement exclusion. The exclusion provided Nationwide did “not insure for loss caused directly or indirectly by . . . Earth Movement” and regardless of “whether or not the loss event results in widespread damage or affects a substantial area.” The policy further defined “earth movement” to include “landslide . . . or any other earth movement including earth sinking, risking or shifting.”

    Plaintiffs sued and Nationwide moved for summary judgment. Plaintiffs submitted their own report which stated that a rockfall was not a landslide and the term “earth” meant soil and not rock. But the report also quoted sources suggesting that a rockfall was a type of landslide. The district court granted summary judgment to Nationwide. 

    There was no definitive Colorado law on whether damage caused by the rockfall was excluded under the earth movement provision. The court surveyed case law from other jurisdictions and concluded the Colorado Supreme Court would follow the cases which held that a rockfall was excluded. Further, dictionaries defined “landslide” to include the movement of rock alone. Therefore, a reasonably objective insured would read the earth movement exclusion as excluding coverage for the event here, either as a “landslide” or as “another earth movement including earth sinking, risking or shifting.” 

Court Denies Stay in Coverage Dispute Arising Out of Clearview Litigation

Hannah Makinde and Kristin Bryan | Squire Patton Boggs

The Northern District of Illinois recently declined to stay an action for declaratory relief relating to an insurance coverage dispute arising out of the ongoing Clearview litigation. This was because, the court held, determination of whether an insurance policy applied did not require resolution of facts related to the policy holder’s alleged violations of Illinois’ Biometric Information Privacy Act (“BIPA”). Citizens Ins. Co. of Am. v. Wynndalco Enters., LLC, No. 20 C 3873, 2021 U.S. Dist. LEXIS 15300 (N.D. Ill. Jan. 27, 2021). The case is a reminder that with the growth in data privacy litigations, there will inevitably be coverage disputes regarding what entity (if any) should cover a defendant’s expenses defending such suits. Read on below.

In Citizens Ins. Co. of Am. v. Wynndalco Enters., LLC, No. 20 C 3873, 2021 U.S. Dist. LEXIS 15300 (N.D. Ill. Jan. 27, 2021), the plaintiff (an insurance company) sought declaratory relief that it has no duty to defend or indemnify defendant Wynndalco in two BIPA class action litigations. In the BIPA litigations, it was alleged that Wynndalco “operated as Clearview’s Illinois-based agent by purchasing Clearview’s technology and then reselling or licensing it to law enforcement agencies, whether directly or through another intermediary”. Id. at *9. Accordingly, Wynndalco purportedly “violated the BIPA by capturing, collecting, receiving, storing, disclosing, and/or using biometric identifiers and biometric information, without complying with the statutory requirements, in the course of its agency relationship with Clearview.” Id.

Citizens subsequently filed a declaratory judgment action, seeking a ruling that that it had no duty to defend or indemnify Wynndalco and the CEO and founder of Wynndalco in the litigations involving Clearview. Wynndalco, in turn, moved to stay the matter pending resolution of the underlying cases.

Wynndalco’s motion to stay was premised on the principle that “it is generally inappropriate for a court considering a declaratory judgment action to decide issues of ultimate fact that could bind the parties to the underlying litigation.” Id. at *6. For purposes of resolving the insurer dispute, Wynndalco argued the court would have to determine two questions of ultimate fact on which the underlying actions hinged: (1) “whether Wynndalco was a government contractor, and therefore exempted under BIPA:; and (2) “whether Wynndalco ‘possessed’ biometric information.” Id.

The court disagreed. This was because, it explained, to determine whether Citizens had a duty to defend “the Court need only ask whether the allegations of the [BIPA] complaints, ‘if proven, . . . would establish an injury’ covered by the Policy”. Id. at *9 (emphasis in original). Accordingly, it was not necessary to stay the litigation pending resolution of the BIPA class actions. The court additionally noted that Wynndalco and the Wynndalco executives had conceded as much in their briefs “where they cite multiple precedents for the proposition that the insurer’s ‘duty to defend exists as long as the allegations of the underlying complaint are potentially within the scope of coverage.’” Id. (emphasis in original).

So there you have it. This case is a cautionary reminder to defendants in data privacy litigation that insurance coverage for legal fees is not guaranteed merely by the existence of a policy (and there may be challenges to a policy’s scope before the merits of the underlying data privacy litigation are resolved). For the most update to date news concerning the various issues implicated by the Clearview litigation stay tuned. CPW will be there to keep you in the loop and informed of other developments regarding data privacy litigation more broadly.

Privilege and Work Product in Insurance Coverage Disputes

Adam Gajadharsingh | Barnes & Thornburg

Disputes over the attorney-client privilege, work product doctrine, and other privileges and protections can affect outcomes in insurance coverage disputes. Anticipating these disputes can help prevent disclosure of an insured’s protected information and also afford an opportunity to apply pressure against an insurer withholding relevant information without a valid basis.  

Who Does Defense Counsel Represent When the Insurer is Paying?

Communications among an insurer, its policyholder, and defense counsel can present tricky questions regarding whether and to what extent those communications may be privileged. Whether an insurer will have access to privileged communications between defense counsel and the insured in the event of a coverage dispute largely turns on whether a potential adverse relationship exists between the insurer and its policyholder and the nature of the policy at issue in the case. 

Policies give the insurer varying degrees of control over the insured’s defense. A duty to defend policy gives the insurer the right and duty to defend the insured, which generally means the insurer has the right to control the defense of the case, including whether and under what circumstances to settle. In contrast, under a “pay on behalf of” policy, the insurer generally has a right and duty to advance or reimburse defense costs, while the policyholder maintains control of the defense and the settlement process. 

States adhere to competing concepts governing whether the insurer is a client of the defense counsel it retains on behalf of its insured. Some states, like California, use the “tripartite” model, in which the insurer and the insured are the defense counsel’s joint clients, imposing on counsel ethical duties to both. [l] Other states hold that the insured is the only client of defense counsel. [2]

Generally, in the above scenarios, the insurer and insured will both be parties to communications with the defense counsel. While there is no insurer-insured privilege per se, many courts – particularly in tripartite states – hold that a defending insurer is within the circle of privilege with defense counsel and the insured. Other states hold that, even where the insurer is not within the circle of privilege, the insurer and insured may share a common interest in minimizing the insured’s liability such that communications among the carrier, defense counsel and the policyholder remain privileged even in states where defense counsel represented only the insured. Insurers frequently enter into common interest agreements with their insureds to underscore their intent to keep communications between them privileged and confidential. The downside to such open exchanges is that they afford an insurer plenty of opportunities to develop existing coverage defenses or conjure up new ones.

Certain coverage disputes, however, serve to cut off this valuable source of information from the insurer. In many states, an insured is entitled to independent counsel at the insurer’s expense where there is a conflict of interest between the insurer and insured – that is, where the insurer asserts a coverage defense that turns on the adjudication of a disputed issue in the underlying lawsuit. [3] In such circumstances, the insurer ends up paying for counsel that it does not control and with whom it does not share confidential communications. Similarly, where the insurance company denies coverage outright – including denial of any duty to defend – courts generally will not permit the insurer to have access to an insured’s privileged communications with defense counsel. [4]

Privilege in Bad Faith Claims

While privileged communications between the insurer and insured may protect the insured’s interests in maintaining the confidentiality of the details of its defense as against third parties, that shield may become a sword in the event of coverage litigation between them. Some courts have held that, where the insurer and the insured have a common interest in communicating with the defense counsel, they have no expectation of privilege between themselves in a subsequent coverage dispute. [5] Many other courts, however, have rejected this reasoning, and permit the insured to maintain confidentiality in its communications with its defense counsel when coverage is disputed notwithstanding their common interest and the insured’s duty of cooperation. [6]

Even in matters where there is no common interest between the insurer and the insured, a policyholder often can penetrate an insurer’s claim of attorney-client privilege and work product applicable to its investigation and analysis of a claim in bad faith litigation against the insurer challenging whether its investigation and analysis were reasonable. This is because investigating claims is a business function performed by an adjuster, not the function of a lawyer giving legal advice. Case law distinguishing in-house counsel’s privileged legal advice from unprivileged business advice applies here.In a bad faith action, a key issue often is whether the insurer’s investigation was reasonable.  When an insurance company tries to shield its investigation from scrutiny by having it done by an attorney, this is the equivalent of claiming privilege for a lawyer’s business advice. This would not be allowed because the carrier’s business is investigating claims. Communications by attorneys acting as insurance claims investigators, rather than as attorneys, are not protected by the attorney client privilege. [7] Therefore, no protection should attach to the insurer’s investigation of a claim, no matter who performs it.

Privilege is waived in the bad faith context when the insurer claims, as a defense, that it relied upon the advice of counsel. [8] The “reliance on counsel” defense overlaps with another basis for waiver of the privilege – the “at-issue” doctrine. The “at-issue” doctrine comes into play when a party takes the position that it relied on the advice of counsel in asserting a claim or defense. This reliance now makes that legal advice relevant to the underlying suit, which may constitute an implied waiver of the privilege. This can occur in bad faith cases, where an insurer asserts (usually as a defense to punitive damages) that its decision not to provide coverage for a claim was appropriate because it was based on the advice of counsel. [9] Some courts have taken a more stringent approach, holding that mere relevance of the attorney’s advice to the client’s claim or defense is not enough: The party challenging privilege must demonstrate that the client affirmatively and directly placed the advice of its attorney at issue by citing it as the specific basis for the claim or defense. [10] The inquiry is very fact-specific and the tests used to resolve these issues can differ substantially among jurisdictions.

The Use of Third Parties

Another common relationship affecting privilege and work product protection is that among insurers, policyholders, and third parties like consultants and brokers. A policyholder may be able to use privilege and the work product doctrine to protect confidential attorney-client communications provided to brokers in order to prepare for litigation with its carrier. In contrast, many courts will not extend privileges to protect an insurance carrier’s documents if they were created in the ordinary course of claim handling. [11]

From the perspective of an insured working with its broker on a disputed claim, the broker’s help in preparing for anticipated litigation may be essential. If a broker is acting as a “representative” of the insured, pursuant to Federal Rule of Civil Procedure 26(b)(3) and equivalent state rules, its communications with the policyholder may be protected by the work product doctrine. Even if a broker is not a “representative,” revealing work product material to it is not necessarily a waiver of work product protection. Unlike the privilege attaching to attorney-client communications, which is waived when sharing with a third party, work product protection is defeated only if the third party’s interests are adverse to those of the insured. Additionally, if the insured’s broker is needed as an ongoing consultant to assist the attorney in providing legal advice, the Kovel privilege – based on a Second Circuit opinion extending the attorney-client privilege to a client’s communication with an accountant in the lawyer’s employ, incident to the legal advice sought by the client – may apply. [12] The common interest doctrine can also be a powerful shield to protect communications involving a broker, because it acts as an exception to the waiver of the attorney-client privilege where the relevant factual showing is made (such as necessity, in some states).

Insurers sometimes attempt to shield information related to the work of their adjusters without a proper basis. For example, an insurer may hire consultants to assist with the claims investigation process, rely upon their reports in denying a claim, and then take the position that these reports are non-discoverable work product in coverage litigation. Work product protection, however, typically is available only at the point where the insurer reasonably anticipates litigation. A best practice for a policyholder is to assess carefully when, during the insurer’s claim evaluation process (which is not protected by work product), it actually began to anticipate litigation, to prevent the carrier from shielding otherwise discoverable documents

Privilege Logs

A valid claim for privilege can all be for naught if it is not asserted correctly. Preparing a defensible privilege log is an essential element in this process. The requirements for privilege logs vary across jurisdictions, so it is good practice to check local rules and standing orders. [13] If all potential protections are not expressly asserted on the log or the log is otherwise inadequate, this risks waiving the protections altogether. [14] To assess whether an email, for example, is privileged, one must know who sent and received it (including everyone copied and blind copied). Failure to provide information like this may raise a challenge.

A best practice is for insureds to evaluate all of these issues when pursuing coverage for contested claims. Insurance companies often take the most aggressive position possible regarding privilege and work product, trying to use them as a sword (by delving into protected exchanges), and as a shield (by trying to prevent discovery of documents created in the ordinary course of the insurer’s business). The insured often has substantial grounds to push back on these positions. Doing so can be a potent weapon for increasing pressure on a recalcitrant carrier to pay a covered claim.This article was originally published in the 2020 edition of Corporate Policyholder Magazine.


[1] Cont’l Cas. Co. v. St. Paul Surplus Lines Ins. Co., 265 F.R.D. 510, 519-20 (E.D. Cal. 2010).

[2] Essex Ins. Co. v. Tyler, 309 F. Supp. 2d 1270, 1272 (D. Colo. 2004).

[3] Golden Eagle Ins. Co. v. Foremost Ins. Co., 20 Cal. App. 4th 1372, 1396, 25 Cal. Rptr. 2d 242, 258 (1993).

[4] Owens-Corning Fiberglas Corp. v. Allstate Ins. Co., 74 Ohio Misc. 2d 174, 181, 660 N.E.2d 765, 769 (Com. Pl. 1993).

[5] Waste Management, Inc. v. International Surplus Lines Ins. Co., 579 N.E.2d 322, 328-29 (Ill. 1999).

[6] E. Air Lines v. United States Aviation Underwriters, 716 So.2d 340, 342-43 (Fla. Dist. Ct. App. 1998); PETCO Animal Supplies Stores, Inc. v. Ins. Co. of N.
Am., No. CIV. 10-682 SRN/JSM, 2011 WL 2490298, at *21 (D. Minn. June 10, 2011).

[7] Michigan First Credit Union v. Cumis Ins. Soc., Inc., No. 05-74423, 2006 WL 1851018, at *2 (E.D. Mich. July 5, 2006).

[8] State Farm Mut. Auto Ins. Co. v. Lee, 13 P.3d 1169, 1175 (Ariz. 2000).

[9] Hunton v. Am. Zurich Ins. Co., No. CV-16-00539-PHX-DLR, 2017 WL 3712445, at *2 (D. Ariz. Aug. 29, 2017). 

[10] Rhone-Poulenc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851, 863 (3d Cir. 1994).

[11] Carver v. Allstate Ins. Co., 94 F.R.D. 131, 134 (S.D. Ga. 1982).

[12] See U.S. v. Kovel, 296 F.2d 918 (2d Cir. 1961).

[13] See Fed. R. Civ. P. 26(b)(5)(A)(i) and (ii) for a good baseline of what is required.

[14] Aurora Loan Services, Inc. v. Posner, Posner & Assocs., P.C., 499 F. Supp.2d 475, 479 (S.D.N.Y. 2007); see also, Jansson v. Stamford Health, Inc., 312 F.
Supp.3d 289 (D. Conn. 2018).