A Lawyer is not a Super Adjuster
Barry Zalma
Aug 9, 2023
Read the full article at https://lnkd.in/gUuydwgC and see the full video at https://lnkd.in/gDfjAr75 and at https://lnkd.in/g23T5k8c and at https://zalma.com/blog plus more than 4550 posts.
NY USDC Eliminates Insurer’s Attorney Client Privilege
I became a lawyer in 1972. Before that I was an insurance adjuster and investigator. Since 1972 I have never been, nor acted as, an adjuster or an investigator. Of course, part of being a lawyer requires some investigation because failing to do so would be a breach of the fiduciary duty of a lawyer to his or her client.
I learned immediately upon entering law school, and later in the practice of law, that an attorney’s failure to investigate potential defenses constitutes a denial of effective assistance of counsel. [Owsley v. Peyton, 368 F.2d 1002, 1003 (4th Cir. 1966); Kibert v. Peyton, 383 F.2d 566, 569 (4th Cir. 1967); McLaughlin v. Royster, 346 F.Supp. 297 (E.D.Va.1972); Cf. Caudill v. Peyton, 368 F.2d 563 (4th Cir. 1966); Wood v. Zahradnick, 430 F.Supp. 107 (E.D. Va. 1977). In fact, as the Supreme Court of Oregon stated: “To fulfill the role assigned to defense counsel under our adversarial system of criminal justice, a lawyer must investigate the facts and inform himself or herself with respect to the law ‘to the extent appropriate to the nature and complexity of the case[.]’ Krummacher v. Gierloff, 290 Or. 867, 875, 627 P.2d 458 (1981),” [Burdge v. Palmateer, 338 Or. 490, 112 P.3d 320 (Or. 2005)]
The attorney-client privilege protects the client from disclosure of private communications with counsel. Communications from a lawyer to his client conveying legal advice and giving information to the lawyer to enable him to give sound and informed advice is always privileged. [Upjohn Co. v. United States, 449 U.S. 383, 390 (1981); M&T Bank Corp. v. State Nat’l Ins. Co. (W.D. N.Y. 2020). The investigation conducted by a lawyer as part of his or her duty to properly represent a client is the work of a lawyer and is, and should always be, protected by the attorney client privilege and the work product protection.
Some Privileges are More Equal Than Others
With regard to insurance matters some courts have ignored the duties owed by a lawyer to the client and have eliminated the attorney client privilege and the work product protection for most documents created by those lawyers who provide advice to insurers. For most of the more than 45 years I have been involved providing legal advice to insurers I have been accused of being a “super adjuster” rather than a lawyer to allow insureds to gain an advantage against an insurer, and gain access to the private legal advice given to the represented insurer. The attorney client privilege belongs to the client, not the lawyer, and can be waived by the client but not eliminated.
In Cadaret Grant & Co. v. Great American Insurance Company, No. CV 21-6665 (GRB)(AYS), United States District Court, E.D. New York (July 25, 2023) the USDC decided to compel an insurer to produce documents that include the legal advice provided by a lawyer to an insurer since it concluded that the lawyer involved with the requested documents was acting as an investigator or adjuster rather than as a lawyer.
The documents at issue revealed that as early as April of 2019, GAIC had retained outside counsel Graziano to discuss claims under the Bond. The USDC outlined the issue before it as follows: “New York courts are often faced with deciding claims of attorney-client privilege in the context of insurance coverage disputes. Central to such privilege decisions is the issue of whether outside counsel is performing the role of a claims investigator, or that of an attorney offering legal advice. Documents reflecting claims investigation activities are subject to discovery even if those activities were performed by an attorney.”
The Work Product Doctrine
The work product protection is the lawyer’s, unlike the attorney client privilege that applies to the client. Protection does not exist for documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation.
The Decision
The Cadaret Grant & Co court refused to provide the attorney client privilege to documents created by the lawyer except a document that showed the lawyer, Graziano’s, legal analysis and opinions. It contains legal advice and the court concluded is therefore primarily legal, rather than investigatory in nature. It, and only it, was determined to covered by the attorney client privilege. The court was wrong and should be reversed if the insurer is able to seek appellate relief.
ZALMA OPINION
A lawyer giving legal advice to an insurer faced with a claim is required, to properly serve his or her client, to conduct a thorough legal investigation into the issues presented by the insurer for assistance and legal advice. That advice can include many different things, including suggestions for continuing investigation by the insurer, but none changes the lawyer into an investigator or a claims adjuster. Had counsel sat silent and only wrote a coverage opinion without using his or her skill, legal knowledge and training to obtain, directly or by asking for additional information, to prepare the coverage opinion that the court found was privileged but all other documents were not, is in error.
The Cadaret opinion is an insult to the lawyer who acted as a coverage lawyer. The lawyer needed to obtain sufficient information from the insurer client so that he or she could provide a thorough, well-reasoned and researched coverage opinion that was not within the ken of the insurance adjuster who had enough knowledge and experience to recognize that he or she needed the assistance and legal analysis of an experienced insurance coverage lawyer. The “super adjuster” theory that no investigative work of a lawyer can be part of the lawyer’s analysis that is protected by the attorney client privilege and/or the work product protection is simply in error and a false conclusion.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.
Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://zalmaoninsurance.locals.com/subscribe.
Consider subscribing to my publications at substack at https://barryzalma.substack.com/publish/post/107007808
Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01
Follow me on LinkedIn: www.linkedin.com/comm/mynetwork/discovery-see-all?usecase=PEOPLE_FOLLOWS&followMember=barry-zalma-esq-cfe-a6b5257
Daily articles are published at https://zalma.substack.comhttps://zalma.substack.com. Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg;
Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library\
Concealing a Weapon Used in a Murder is an Intentional & Criminal Act
Post 5002
Read the full article at https://lnkd.in/gmacf4DK, see the full video at https://lnkd.in/gav3GAA2 and at https://lnkd.in/ggxP49GF and at https://zalma.com/blog plus more than 5000 posts.
In Howard I. Rosenberg; Kimberly L. Rosenberg v. Chubb Indemnity Insurance Company Howard I. Rosenberg; Kimberly L. Rosenberg; Kimberly L. Rosenberg; Howard I. Rosenberg v. Hudson Insurance Company, No. 22-3275, United States Court of Appeals, Third Circuit (February 11, 2025) the Third Circuit resolved whether the insurers owed a defense for murder and acts performed to hide the fact of a murder and the murder weapon.
FACTUAL BACKGROUND
Adam Rosenberg and Christian Moore-Rouse befriended one another while they were students at the Community College of Allegheny County. On December 21, 2019, however, while at his parents’ house, Adam shot twenty-two-year-old Christian in the back of the head with a nine-millimeter Ruger SR9C handgun. Adam then dragged...
Renewal Notices Sent Electronically Are Legal, Approved by the State and Effective
Post 5000
Read the full article at https://lnkd.in/gpJzZrec, see the full video at https://lnkd.in/ggmkJFqD and at https://lnkd.in/gn3EqeVV and at https://zalma.com/blog plus more than 5000 posts.
Washington state law allows insurers to deliver insurance notices and documents electronically if the party has affirmatively consented to that method of delivery and has not withdrawn the consent. The Plaintiffs argued that the terms and conditions statement was not “conspicuous” because it was hidden behind a hyperlink included in a single line of small text. The court found that the statement was sufficiently conspicuous as it was bolded and set off from the surrounding text in bright blue text.
In James Hughes et al. v. American Strategic Insurance Corp et al., No. 3:24-cv-05114-DGE, United States District Court (February 14, 2025) the USDC resolved the dispute.
The court’s reasoning focused on two main points:
1 whether the ...
Rescission in Michigan Requires Preprocurement Fraud
Post 4999
Read the full article at https://lnkd.in/gGCvgBpK, see the full video at https://lnkd.in/gern_JjU and at https://lnkd.in/gTPSmQD6 and at https://zalma.com/blog plus 4999 posts.
Lie About Where Vehicle Was Garaged After Policy Inception Not Basis for Rescission
This appeal turns on whether fraud occurred in relation to an April 26, 2018 renewal contract for a policy of insurance under the no-fault act issued by plaintiff, Encompass Indemnity Company (“Encompass”).
In Samuel Tourkow, by David Tourkow v. Michael Thomas Fox, and Sweet Insurance Agency, formerly known as Verbiest Insurance Agency, Inc., Third-Party Defendant-Appellee. Encompass Indemnity Company, et al, Nos. 367494, 367512, Court of Appeals of Michigan (February 12, 2025) resolved the claims.
The plaintiff, Encompass Indemnity Company, issued a no-fault insurance policy to Jon and Joyce Fox, with Michael Fox added as an additional insured. The dispute centers on whether fraud occurred in...
Insurance Fraud Leads to Violent Crime
Post 4990
Read the full article at https://lnkd.in/gDdKMN29, see the full video at https://lnkd.in/gKKeHSQg and at https://lnkd.in/gvUU_a-8 and at https://zalma.com/blog plus more than 4950 posts.
CRIMINAL CONDUCT NEVER GETS BETTER
In The People v. Dennis Lee Givens, B330497, California Court of Appeals, Second District, Eighth Division (February 3, 2025) Givens appealed to reverse his conviction for human trafficking and sought an order for a new trial.
FACTS
In September 2020, Givens matched with J.C. on the dating app “Tagged.” J.C., who was 20 years old at the time, had known Givens since childhood because their mothers were best friends. After matching, J.C. and Givens saw each other daily, and J.C. began working as a prostitute under Givens’s direction.
Givens set quotas for J.C., took her earnings, and threatened her when she failed to meet his demands. In February 2022, J.C. confided in her mother who then contacted the Los Angeles Police Department. The police ...
Police Officer’s Involvement in Insurance Fraud Results in Jail
Post 4989
Read the full article at https://lnkd.in/gr_w5vcC, see the full video at https://lnkd.in/ggs7dVfg and https://lnkd.in/gK3--Kad and at https://zalma.com/blog plus more than 4900 posts.
Von Harris was convicted of bribery, forgery, and insurance fraud. He appealed his conviction and sentence. His appeal was denied, and the Court of Appeals upheld the conviction.
In State Of Ohio v. Von Harris, 2025-Ohio-279, No. 113618, Court of Appeals of Ohio, Eighth District (January 30, 2025) the Court of Appeals affirmed the conviction.
FACTUAL BACKGROUND
On January 23, 2024, the trial court sentenced Harris. The trial court sentenced Harris to six months in the county jail on Count 15; 12 months in prison on Counts 6, 8, 11, and 13; and 24 months in prison on Counts 5 and 10, with all counts running concurrent to one another for a total of 24 months in prison. The jury found Harris guilty based on his involvement in facilitating payments to an East Cleveland ...
Read the full article at https://lnkd.in/gRyw5QKG, see the full video at https://lnkd.in/gtNWJs95 and at https://lnkd.in/g4c9QCu3, and at https://zalma.com/blog.
To Dispute an Arbitration Finding Party Must File Dispute Within 20 Days
Post 4988
EXCUSABLE NEGLECT SUFFICIENT TO DISPUTE ARBITRATION LATE
In Howard Roy Housen and Valerie Housen v. Universal Property & Casualty Insurance Company, No. 4D2023-2720, Florida Court of Appeals, Fourth District (January 22, 2025) the Housens appealed a final judgment in their breach of contract action.
FACTS
The Housens filed an insurance claim with Universal, which was denied, leading them to file a breach of contract action. The parties agreed to non-binding arbitration which resulted in an award not
favorable to the Housens. However, the Housens failed to file a notice of rejection of the arbitration decision within the required 20 days. Instead, they filed a motion for a new trial 29 days after the arbitrator’s decision, citing a clerical error for the delay.
The circuit court ...
