With the recent Montana Supreme Court decision (American Zurich Insurance Company vs. Montana 13th Judicial District Court, 2012 MT 61, 364 Mont. 299, 304, 280 P.3d 240, 246.), Zurich North America has taken a number of actions to protect legal privileges in Montana workers' compensation cases.
In this recent decision it was determined that communications between a carrier or carrier’s defense counsel and the employer concerning workers' compensation claims are not privileged. Therefore, such communications are subject to discovery. The Montana Supreme Court ruled in a bad faith lawsuit filed by an injured worker that the entire file of the carrier’s defense counsel must be produced on the basis that the privilege was waived. The waiver occurred when defense counsel and the adjuster shared claims and legal communications with the insured/employer.
Recognizing the effort to maintain as confidential defense communications in litigated claims, it is critical that communication between defense counsel and Zurich North America remain privileged. Montana law requires Zurich North America to restrict access to legal documentation specific to Montana workers' compensation claims.
Zurich North America will not provide the following information to the insured/employer and/or their broker:
- Communication from defense counsel or the claim handlers' notes summarizing those communications
- Private healthcare information
- Evaluative reports
- Information or reports regarding settlement positions or claim reserves
Furthermore, Zurich North America will not allow the insured/employer to direct, influence, or control the adjustment of the claim. Restricted access to the information above includes print, electronic documents, and claim notes related to the litigation of these claims.
With respect to Zurich’s Risk Intelligence system, this will require that Zurich prevent access to all claim file notes and correspondence. However, insureds and authorized brokers will continue to have access to claims financial data.
Zurich North America customer protocols and/or account instructions are modified to comply with Montana law. Zurich will continue to provide relevant communication to its insured/employer, which may include:
- Certain limited administrative communications
- Course and scope inquiries seeking information regarding the facts of the claim
- Back-to-work inquires, job availability, and information regarding physical accommodations
- Coordinating and responding to insured/employer oriented discovery
- Trial notification and requests for insured/employer testimony
- Fraud investigations (in appropriate cases)
Upon request, and at the direction of Zurich North America, defense counsel can provide documentation subject to these restrictions.
Please be assured that Zurich North America will continue to handle your workers' compensation claims professionally and will work with you in the investigation of the facts of the claim consistent with Montana law.