Are Coverage Opinions Protected by Attorney-Client Privilege?

We’ve recently read some commentators and bloggers stating that coverage opinions are not protected by the attorney-client privilege.  Here are some of the arguments made to support that position; insurance companies regularly assemble in the ordinary course of business; coverage opinion is created no matter if or when any litigation might ensue; or, the document is relevant to coverage as it contains facts relating to coverage.  These arguments fall short of the mark.  Coverage opinions are not discoverable in a coverage dispute. 

These arguments ignore the real issue:  coverage opinions are communications in which an attorney is specifically providing legal advice in his/her capacity as a legal advisor.  In Florida, Connecticut, New Jersey and Pennsylvania, coverage opinions are not discoverable.  They are protected by the attorney-client privilege.  There could be situations in which the court allowed the discovery of the opinions in the context of a bad faith suit, but this would be an exception.  Coverage opinions are privileged communications. 

Please contact any member of our Insurance Industry Group for details, or with inquiries.  Happy Holidays! (December 20, 2016)


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