March 15, 2012
Privilege And Workers' Compensation
The Montana Supreme Court has dismissed an appeal from a district court order denying attorney-client privilege and work product claims in a workers' compensation matter.
The worker had suffered a serious injury. The employer's insurer (Zurich) accepted liability for the claim. When disagreements arose over the level of impairment and other issues, an outside attorney prepared an opinion and evaluation letter for Zurich in advance of a mediation. The opinion letter was given to the adjuster handling the claim, who provided it to the employer.
The district court found that the document was not protected from discovery.
The court here noted that "[t]he intersection of workers' compensation law and the attorney-client privilege presents a unique issue." The employer is not a party and is not at risk in the matter: "It is thus improper for an insurer and an employer to collaborate on settlement of a worker's claim for benefits."
The court held that the common interests of insurer and employer were "not sufficient to extend the [attorney-client] privilege beyond the attorney-client relationship." Further, the disclosure of the letter to the employer was not for the purpose of seeking legal advice.
Justice Rice dissented and would hold that there is a sufficient "community of interest" between employer and insurer to reverse the district court's privilege detrmination.
The link is not working. The case is American Zurich Insurance v. Montana Thirteenth Judicial District Court. (Mike Frisch)
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