Privacy Protection

Privileged Communications

A recent New York court ruling provides some privacy protection for broker- client communications.
By: | April 7, 2014 • 3 min read

A recent court decision provides some privacy protection for insurance brokers in their communications with clients.

The decision of the New York Supreme Court in TC Ravenswood LLC vs. National Union Fire Insurance, provides “useful guidance for policyholders who rely on brokers during litigation about insurance coverage,” wrote John Nevius, a New York-based Anderson Kill attorney who represented TC Ravenswood, a New York City unit of TransCanada Corp.


Nevius’ analysis appeared in an article in Insurance Coverage Law Report.
In the case, the court denied the insurance company’s motion to compel TC Ravenwood’s broker, Marsh Canada Ltd., to produce communications with TransCanada Energy USA Inc., Nevius wrote.

The court held that the broker “was specifically hired by TransCanada and its counsel to explain the complex insurance policies at issue for TransCanada and its counsel” and therefore had “a reasonable expectation of privacy.”

Thus, communications between Marsh and TransCanada were protected by the attorney-client privilege, the court determined.

Additionally, communications between the broker and TransCanada’s counsel were also protected, as were communications between TransCanada and its counsel that were forwarded to the broker, and instances where the broker was copied on original communications, Nevius wrote.

Moreover, communications between non-attorney employees of either the broker or TransCanada, which involved requests for information and advice from counsel, were also protected.

“It is also helpful when asserting privileges if the policyholder has retained the broker for its expertise in a particular area, as the courts have been more receptive to the policyholder’s claim of privilege where the broker’s particular expertise proved valuable or necessary,” Nevius wrote.

For example, the Southern District of New York ruled in ECDC Environmental vs. N.Y. General Insurance Co., that the broker was retained specifically for its expertise in maritime insurance, and as such, its communications were privileged.
“Whether a policyholder’s communications with a broker are privileged is a fact-intensive question which typically hinges on whether the policyholder retained the broker, at least in part, as its agent to help with claim adjustment or the formulation of litigation or settlement strategy,” Nevius wrote.

However, Louis A. Chiafullo, a partner at McCarter & English in Newark, N.J., noted that the New York ruling is not the absolute law of the land.


While an insurance broker can be an “incredibly helpful ally” when clients submit and negotiate claims with an insurance carrier, it’s important that in-house and coverage counsel be cognizant that in many jurisdictions, their conversations and communications with their insurance brokers may not be protected from disclosure if a coverage lawsuit develops.

“As a general rule, policyholder counsel should not share freely with their brokers any work product or legal analysis, even if the broker also happens to be a lawyer,” Chiafullo said.

“Where counsel for the policyholder feels that such conversations need to take place, counsel would be wise to enter into a confidentiality agreement with the broker and make clear in any communications relating to the disputed claim that the discussion falls under the attorney-client privilege.”

Katie Kuehner-Hebert is a freelance writer based in California. She has more than two decades of journalism experience and expertise in financial writing. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.


That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.


Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]