Michael S. Levine and Torrye Zullo | Hunton Insurance Recovery Blog
A Michigan federal court in Wolverine World Wide Inc. v. The American Insurance Co. et al., No. 1:19-cv-00010 (W.D. Mich.), recently confirmed what should go without saying – a claim handler is a claim handler, even if they may also be a lawyer. Recognizing that it’s the nature of the work that drives the analysis, the court ordered an in-house Travelers’ attorney to sit for a deposition in a PFAS coverage suit because the attorney was performing ordinary claim-handling activity. In rejecting the insurer’s arguments, the court reiterated that “an insurer cannot create a ‘shroud of secrecy’ by simply designating an attorney to conduct an otherwise ordinary claim investigation.”
In 2018, Wolverine World Wide Inc., a footwear company, filed a lawsuit against its insurers alleging that the insurers failed to provide coverage for hundreds of PFAS-related lawsuits including tort actions, government suits, and class actions. Travelers is one of three insurance companies that remain in the litigation.
Wolverine sought to depose Michael Ungaro, Travelers’ in-house counsel. Travelers objected to the deposition and refused to present Mr. Ungaro, asserting his status as in-house counsel who “has been intimately involved in Travelers’ defense of this declaratory judgment action” by providing legal advice and overseeing the anticipated and actual coverage action.
Wolverine disagreed, arguing that Mr. Ungaro should be ordered to testify because (1) he was engaged in the ordinary course of Travelers business of claims handling, including the investigation, handling, analysis, and evaluation of Wolverine’s claim; (2) the court previously ruled that Travelers waived privilege as a sanction for failing to produce its claims notes, files, related documents and communications; and (3) the Eighth Circuit’s Shelton test, which limits those circumstances in which opposing counsel must submit to a deposition, did not apply.[1]
The court granted Wolverines’ motion to compel the deposition testimony of Mr. Ungaro.
The Court’s Analysis
In granting Wolverines’ motion, the court found that Ungaro was performing a business function and acting as a claims handler, regardless of his title. The court reiterated a prior ruling in the instant case where it held that communications by attorneys, not acting as attorneys, but rather acting as insurance claims investigators, are not protected by the attorney-client privilege.
In making its determination, the court considered that Ungaro was actively involved in requesting information concerning Wolverine’s operations, and attended an in-person meeting to discuss Travelers’ claim investigation, handling and evaluation.
The court found that the lines were “not blurred” between Ungaro being the primary claim handler and being the attorney providing legal advice to the primary claim handler. Rather, there was no evidence that Ungaro was discussing potential coverage disputes in anticipation of litigation as in-house counsel and instead, indicated that he was a claims handler.
The court also held that the Eighth Circuit’s three-part Shelton test designed to limit the circumstances that opposing counsel must submit to a deposition did not apply. Under the test, the proponent of the deposition must demonstrate that: (1) there are no other means available to obtain the information other than to depose opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the case.
At the outset, the court held that Ungaro was not opposing counsel, and on that basis alone, the Shelton test did not apply. But, even if it did, the court found that Wolverine satisfied all three prongs because (1) Ungaro had knowledge beyond that of any other witness; (2) the information regarding Travelers’ claims investigation, notes, guidelines, and claim evaluation was both relevant and critical to Wolverines’ case; and (3) the attorney-client privilege did not extend to Ungaro.
Takeaways
The Wolverine decision reinforces that insurers may not shield claim activity and claim file materials under the guise of the attorney-client privilege simply because a claim handler may also be an attorney. Rather, it is the function of that individual that matters. Where insurers use attorneys to conduct ordinary claim functions, discovery from those individuals should be expected and freely provided.
Experienced coverage counsel can help policyholders to recognize when in-house attorneys are, in fact, functioning in a claim-handling capacity and thus subject to the ordinary rules of discovery.
[1] Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1987).
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