MAY 2006 BAD FAITH CASES COURT REJECTS EFFORT TO OBTAIN INSURER’S ATTORNEY-CLIENT COMMUNICATIONS ON BASIS OF CRIME-FRAUD EXCEPTION TO THE ATTORNEY-CLIENT PRIVILEGE (Philadelphia Federal)

In Weniger v. Nationwide Insurance Company, the plaintiff was involved in two motor vehicle accidents, in 1993 and 2000.  The insurer paid benefits in 1993, but gave less than plaintiff hoped for in 2000.  Plaintiff was not satisfied at the arbitration and the case wound up in Federal Court.  Plaintiff sought attorney client communications surrounding both incidents, claiming that these would reveal the carrier’s fraud in challenging the 2000 injuries.  The Court rejected the effort, observing that there was no prima facie showing that (1) the carrier intended a fraud, and (2) then communicated with its lawyers to further that fraud.  Further, the Court rejected the idea that it automatically had to review the document in camera; rather, an in camera review is only called for where the movant presents evidence “sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception’s applicability.”

Date of decision:  May 26, 2006