Are Insurance Consultant’s Work Product Protected? Are They a Witness or an Expert? Margaret Spence Makes Case Law
In Download Bartram, LLC v. Landmark American Insurance Co. (N.D. Fla. Case No. 1.10.28, Order of USMJ Filed January 24, 2011) PUBLIC ACCESS, also published as 2011 WL 284448 (N.D. Fla. Order of Magistrate Judge January 24, 2011)(authorized password required to access Westlaw), a Policyholder under Builder’s Risk Insurance Policies claimed Coverage for Damages which resulted from Construction Defects. “This case is a first-party insurance coverage dispute in which Plaintiff seeks a declaration that the damages suffered to its apartment project are covered by each of the builder’s risk policies issued by Defendants.” Id. at *2.
The Policyholder-Plaintiff was apparently the Builder-Owner of the apartment complex. It engaged the Foram Group, Inc. to manage the apartment project, and it consulted with one Margaret Spence of Douglas Claims & Risk Consultants, Inc. about its Coverage Questions and Claims, eventually retaining Ms. Spence for her services.
Ms. Spence was “formally retained” by the Plaintiff in September, 2009. The Federal Magistrate Judge wrote the outlines of Work Product Qualified Immunity for certain EMails she wrote to, and received from Foram, between August 29, 2009 and September, 2009:
During the time period prior to her retention Ms. Spence was assisting Plaintiff with understanding its rights under the insurance policies issued by the Defendants. Ms. Spence’s involvement prior to her retention as an expert in the claims submission process on Plaintiff’s behalf was in her role of assisting Plaintiff in its business of submitting claims and not in the role of a retained expert assisting in preparing for litigation. Once Ms. Spence was formally retained, she became a non-testifying expert and her communications with Plaintiff after that date were protected.
The answer is yes – consultant’s work product are protected – but you have to have a solid retainer agreement.
Id. at *3.
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