Insurance agencies regularly summon an approach’s participation condition to propel a policyholder to share favored resistance data even after the insurance agency has maintained whatever authority is needed to deny scope at a later date. At one extraordinary, the policyholder may withhold all safeguard data and hazard inciting the insurance agency to issue a disclaimer of scope for inability to collaborate. At the opposite end of the range, a policyholder may lose the assurance of case benefits by giving the insurance agency liberated access to safeguard data, possibly rendering the material discoverable by the policyholder’s foe in the fundamental activity. Policyholders can stay away from these results by finding a way to protect the advantaged idea of guard materials imparted to their essential or abundance insurance agencies.
Policyholders know about insurance agencies’ routine with regards to saving rights to repudiate scope ahead of schedule in the policyholder’s guard of the fundamental activity. Insurance agencies by and by regularly request advantaged resistance materials from their policyholders and ground the request in the strategy’s collaboration condition, which indicates to force a vague “obligation to coordinate” on the policyholder. While the expressed reason for existing is to accumulate data pertinent to the barrier of the fundamental activity, insurance agencies frequently dig this material for data that could bolster a disclaimer of scope.
The Risk of Forfeiting Privilege
The tension between the policyholder’s desire to comply with the cooperation clause and fear of arming its insurance company is compounded by the risk that privilege could be lost in the process and the plaintiff in the underlying action might thereby gain access to the information. Generally, disclosure of privileged information to parties outside the attorney-client relationship results in a waiver of that privilege.
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Some states seek to mitigate this risk through a doctrine called the “common interest privilege” (a.k.a. the “joint defense privilege” or “community of interest privilege”). Whether your state recognizes this doctrine should play a role in deciding what information to disclose to your insurance company. The common interest privilege preserves the privileged nature of documents and information with respect to those outside the confidential relationship, so long as the disclosure is made to further a common interest and in a manner that demonstrates an intent to maintain confidentiality. Depending on the applicable state law, privileged defense material shared with a policyholder’s insurance company to further a common interest – namely, minimizing the policyholder’s liability – may be done without waiving the privilege or rendering the material subject to discovery by the plaintiff in the underlying action. Some states, however, have declined to recognize the common interest privilege as between a policyholder and its insurance company if the insurance company has disclaimed coverage.
Protect Yourself in Advance with a Confidentiality Agreement
A carefully drafted agreement between the policyholder and the insurance company can address these risks and not only preserve privilege, but also limit the scope of what will be shared with the insurance company. A “common interest and confidentiality agreement” can both demonstrate that the policyholder seeks to satisfy its duty to cooperate and protect the policyholder from having to divulge harmful defense materials to the plaintiff in the underlying action.
Not much case law has developed regarding a plaintiff’s right to obtain access to privileged information that a defendant has shared with its insurance company under a confidentiality agreement. A confidentiality agreement should identify the parties’ common interest and their adverse interests. The confidentiality agreement should clearly and unequivocally confirm that the only purpose of the agreement is for the policyholder to share privileged defense information with the insurance company in order to further the parties’ common interest in reducing the policyholder’s ultimate liability to the plaintiff.
Meanwhile, there are a host of adverse interests stemming from the policyholder’s desire to maintain coverage and the insurance company’s goal of avoiding or limiting coverage. A confidentiality agreement should identify those adverse interests and make clear that the policyholder has no obligation to share any information that could further the insurance company’s adverse interest – that is not a “common” interest. Finally, a confidentiality agreement should specify that by sharing information within the bounds of the agreement, the policyholder is in compliance with the policy’s cooperation clause.