After a car accident, most insurance companies contact their insureds to find out facts about how the accident happened. Many times, these statements are recorded. These recorded statements are often times the subject of motions between plaintiff attorneys and defense attorneys. Plaintiff attorneys want to obtain those statements and defense attorneys fight to prevent their disclosure.
In New Jersey, it is well-settled that an insured’s statement to his insurance carrier is usually discoverable and neither protected under the attorney-client privilege or work product doctrine. [i]
In Pfender v. Torres, supra, a pedestrian was injured when the defendant ran over her foot with an automobile. The Plaintiff made an application to discover the driver’s statements to his automobile carrier. Although the law division held that the statements were not discoverable, the Appellate Division reversed, stating that neither the attorney-client privilege nor the work product rule applied to the statement given by the insured driver. In reaching its conclusion, the Court recognized that there is no blanket privilege with respect to communications between an insured and his insurance company.
The privilege should be held to shield communications between the insured and the adjuster only where the communications were in fact made to the adjuster for the dominant purpose of the defense of the insured by the defense attorney and where confidentiality was the reasonable expectation of the insured. [ii] It went on to provide that in determining whether the attorney-client privilege applies to communications between an insured and his adjuster, the court considers:
1. whether the statement was made at the direction of the attorney;
2. whether there was anything indicating the insured was seeking legal advice;
3. whether there was a pending litigation;
4. whether the insurance company might have interests other than protecting the insured’s rights.
In Pfender, the statement was not protected because the statement merely covered the happening of the accident; it was not taken at the specific direction of the insured’s attorney; and, the claim had not even been assigned to the attorney for the insured. The Appellate Court further found, in not protecting the statement, that there was no contemporaneous evidence that the insured was seeking legal advice, litigation was not pending and that the insurer may have had other interests to protect.
Here at Ginarte, Gonzalez & Winograd, LLP, we provide high-caliber representation to New York / New Jersey personal injury victims and their families. Contact our office at 1 (888) GINARTE for free consultation and we will make sure your rights are not lost. You can also use our online contact form.
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