Thursday, May 23, 2019

Work Product In Washington State

The Washington State Supreme Court affirmed a Court of Appeals remand for violation of the work product protection in connection with a PIP claim. 

Washington law extends work product protection to statements made by an insured to an insurer following an accident in light of the specific parties involved and the expectations of those parties. We must decide if that protection applies here, where the insured has gained the status of insured by statute, rather than by contract. We hold it does. We affirm the Court of Appeals and remand to the trial court for a new trial.

The case involves a child on a bicycle injured in an accident. The police report was not based on first-hand observations and contradicted the child's recollection. The child's mother adopted the report in seeking PIP benefits.

In the lawsuit

In addition to seeking PIP coverage, [mother] Diaz also sued Prieto on behalf of [child] Brayan. The significant difference between the PIP form and Brayan's testimony became a central issue at trial. Prieto's counsel stressed the differences between Diaz's and Brayan's testimony and the PIP form; Diaz's counsel stressed that the PIP form was based on accounts from people who did not see the accident.

The trial court rejected the claim of privilege with respect to the PIP form and allowed defense counsel to cross-examine with a redacted version of the form.


The jury returned a defense verdict. The Court of Appeals reversed, holding the PIP application was work product and its admission was prejudicial, requiring a new trial. Barriga Figueroa v. Prieto Mariscal, 3 Wn. App. 2d 139, 414 P.3d 590 (2018). We granted Prieto's petition for review and denied the issues raised by Diaz. Barriga Figueroa V. Prieto Mariscal, 191 Wn.2d 1004, 424 P.3d 1214 (2018). Washington State Association for Justice Foundation filed an amicus brief.

PIP and the claimant

We hold that an insurer owes a pedestrian PIP insured the same quasifiduciary duties that it owes a named insured who purchases a policy. Specifically, the '"insurer must deal fairly with an insured, giving equal consideration in all matters to the insured's interests.'" See Van Noy, 142 Wn.2d at 794-95 (emphasis omitted) (quoting Tank, 105 Wn.2d at 386). This approach is consistent with our common law and the plain language of RCW 48.01.030, which requires insurers to act in "good faith, abstain from deception, and practice honesty and equity in all insurance matters." (Emphasis added.) With this quasi-fiduciary relationship in mind, we turn to the work product issue. Brayan's parent and natural guardian, Diaz went to a law firm for legal assistance. As part of providing that legal assistance, the law firm sent a PIP application form to the parties' shared insurance company. Diaz did not fill out the forms herself, and it cannot be seriously contended that she sought legal assistance merely to have help filling out forms—Prieto ran over her eight-year-old son's leg, seriously injuring him. That no lawsuit had been filed when Diaz prepared Brayan's PIP application is of no consequence; Diaz plainly signed the form in anticipation of litigation, in a lawyer's office, with assistance from the law firm ultimately suing Prieto. Indeed, in Heidebrink, we stated that had the statements been "made directly to the [insurance company's] selected attorney, it would obviously have been made in anticipation of litigation." 104 Wn.2d at 400. The statements were made in anticipation of litigation. Thus, we hold work product protections apply.

The court noted the extensive defense use of the document in evaluating prejudice

when Prieto's counsel used the PIP form, he almost always emphasized the fact that it was signed by Diaz, thereby attributing the statements to her. Diaz did not make these statements; the legal assistant filled out the PIP form based on the police report. Crucially, the speculative statements in the police report were hearsay and the police report was inadmissible at trial for this reason.

JOHNSON, J. (dissenting)

The work product doctrine is meant to serve as a narrow exception to otherwise broad discovery and is confined to materials that are prepared in anticipation of litigation. Our cases have established that in the insurance context, a determination of whether this protection applies requires that the court conduct a fact-specific inquiry looking at the "specific parties involved and the expectations of those parties." Heidebrink v. Moriwaki, 104 Wn.2d 392, 400, 706 P.2d 212 (1985). We reiterated this factual analysis in Harris v. Drake, where the relationship between the insurer and insured was of particular importance, and we observed that the relationship "requires close examination, evaluating the specific positions of the insurer and insured in each instance." 152 Wn.2d 480, 489, 99 P.3d 872 (2004). The majority acknowledges the fact-specific nature of this inquiry but then ignores it and proceeds to apply work product protection to a personal injury protection (PIP) application form where no factual basis exists to support doing so. Furthermore, even assuming the trial court committed error by admitting the application form, the form was not material to the jury's determination or prejudicial to the plaintiff, and only by selectively mischaracterizing the record does the majority conclude otherwise...

The record simply does not indicate that Diaz anticipated litigation when she signed the PIP application; it indicates only that she employed an attorney who assisted her with filing a PIP claim. By extending work product protections to this application, the majority seemingly, but without expressly stating so, abandons our fact-specific analysis in favor of broad protection for any materials prepared in the insurance context. If we properly apply what our prior cases established and recognize the underlying policy of CR 26(b)(4) favoring broad discovery, work product protections do not apply here.

No prejudice per the dissent

Despite all of the evidence and testimony, the majority never explains, and cannot explain, how the de minimis use of the prior inconsistent statement in the PIP application form, made by a nonwitness to the accident, could have possibly had a material effect on the jury's decision.

(Mike Frisch)

Privilege | Permalink


Post a comment