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"West Virginia Supreme Court Finds That Coverage Opinions and Seminars Materials Prepared by Outside Counsel are Protected by Attorney Client Privilege"
SER Montpelier v. Bloom, et al.,
In SER Montpelier v. Bloom, et al., No. 13-1172, (W.Va., April 10, 2014), the Supreme Court of Appeals of West Virginia addressed third-party disclosure exception to the attorney-client privilege. As discussed more fully below and in the linked Opinion, the Court found that: (1) coverage opinion letters are protected by attorney-client privilege, (2) seminar and training materials generated by outside counsel for benefit of carrier are protected, but (3) billing statements between coverage counsel and insurance carrier may be relevant in cases alleging civil conspiracy.
- Landslide damaged home. Homeowner sued B&B Transit, alleging B&B caused the landslide.
- B&B filed claim with its insurer, Montpelier US Insurance Company.
- Montpelier sought a coverage opinion from its national coverage counsel Charleston, Revich & Wollitz ("CRW"). CRW, in its coverage opinion letter, found no coverage. Montpelier then denies coverage.
- Homeowner files amended complaint against Montpelier.
- B&B files First Party Bad Faith claim against Montpelier and CRW, alleging civil conspiracy
- B&B served discovery requests on Montpelier and CRW, seeking, among other things, (1) training materials provided to Montpelier; (2) coverage opinion letters between Montpelier and CRW; (3) agreements & billing statements between Montpelier and CRW,
- If a coverage opinion letter contains legal advice written by outside counsel for the insurer, then the attorney-client privilege is invoked because such a letter involves confidential communications. SER Montpelier v. Bloom, et al., No. 13-1172, at 9.
- Seminar and training materials were protected by the attorney-client privilege because such materials reflected communications between client and attorney. The Court noted that these materials demonstrated "specific requests by [the coverage counsel]'s clients for legal opinions on specific subjects," thereby entitling the materials to the protection afforded by the attorney-client privilege. SER Montpelier v. Bloom, et al., No. 13-1172, at 20.
- However, "the retention agreement and billing statements might be relevant to at least one of the claims against the Petitioners" in that the complaint alleged that Petitioners entered into a civil conspiracy whereby CRW would provide coverage denial opinions not based on a proper factual investigation in order to provide Montpelier with a defense to bad faith claims. SER Montpelier v. Bloom, et al., No. 13-1172, at 29.