Opinion
No. HHD X04 CV06-4043672 S
September 24, 2009
MEMORANDUM OF DECISION ON MOTION FOR ORDER OF COMPLIANCE (#166)
This employment matter is before the court concerning the plaintiff's motion for order of compliance, which seeks to compel production of withheld documents. The plaintiff, Mary V. Roraback, seeks production of documents which have been withheld by defendants Specialty Risk Services, Inc. and Specialty Risk Services, LLC (collectively "SRS"). These defendants are alleged by the plaintiff to have been the third-party claims administrator for defendant The Stanley Works' workers' compensation plan.
I Attorney-Client Privilege
The motion, which is dated May 8, 2009, refers to SRS' March 10, 2009 Supplemental Privilege Log as itemizing the withheld documents. In SRS' September 10, 2009 memorandum of law in opposition to the motion (#169), page 3, SRS asserts that it produced additional documents on July 10, 2009, but maintained objections to other documents, as specified on a Revised Privilege Log; which also was provided to the plaintiff. The plaintiff filed a request for adjudication on August 27, 2009 (#168.00) concerning her May 8, 2009 motion. Based on this record, the court refers to the Revised Privilege Log in considering the motion. Concerning the attorney-client privilege, the plaintiff relies, in particular, on the trial court decision in Cloutier v. Liberty Mutual Insurance Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 900278184 (March 6, 1998, Mottolese, J.) ( 21 Conn. L. Rptr. 472), affirmed per curiam, 60 Conn.App. 904, 759 A.2d 1056, cert. denied, 255 Conn. 919, 763 A.2d 1043 (2000), an action against a workers' compensation insurance carrier, in which it was alleged that the defendant acted in bad faith in unlawfully cutting off the plaintiff/employee's workers' compensation benefits. It is clear that the plaintiff's reliance on this 1998 trial court decision, instead of recent Supreme Court decisional law, is misplaced.
Although the plaintiff asserts that SRS has failed to meet the burden of even establishing the elements for the applicability of the attorney-client privilege, the court is unpersuaded. The Revised Privilege Log identifies the withheld documents by type, date, author(s), recipient(s), and general subject matter.
First, while the plaintiff here analogizes her claims, in her revised complaint (#116), of workers' compensation discrimination under General Statutes § 31-290a, and intentional infliction of emotional distress, to a bad faith action against an insurer, the Supreme Court has concluded that "Connecticut does not recognize a cause of action for bad faith processing of a workers' compensation claim[.]" DeOliveira v. Liberty Mutual Insurance Co., 273 Conn. 487, 501, 870 A.2d 1066 (2005). Further, the court "conclude[d] that we must construe the exclusionary provision's [General Statutes § 31-284(a)] prohibition on damages actions for injuries `arising out of and in the course of . . . employment' to include injuries arising out of and in the course of the workers' compensation claims process." (Emphasis in original.) Id., 504.
In addition, the elements of a bad faith claim clearly differ from those of a discrimination claim under General Statutes 31-290a and from those of a claim based on the intentional infliction of emotional distress. "The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term . . . To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007). "Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Insurance Co., 269 Conn. 424, 433, 849 A.2d 382 (2004).
In contrast, "[t]o establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that she was exercising a right afforded her under the act and that the defendant discriminated against her for exercising that right." Diaz v. blousing Authority of The City of Stamford, 258 Conn. 724, 731, 785 A.2d 192 (2001). "If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity . . . The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the court . . . that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." (Internal quotation marks omitted.) Id., 730.
Also in contrast, "[i]n order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; . . . (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Citations omitted; footnote omitted; internal quotation marks omitted.) Carrol v. Allstate Insurance Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003).
Second, in Hutchinson v. Farm Family Casualty Insurance Co., 273 Conn. 33, 43, 867 A.2d 1 (2005), the court declined to follow Brown v. Superior Court, 137 Ariz. 327, 670 P.2d 725 (1983), a decision relied on in Cloutier v. Liberty Mutual Insurance Co., supra, Superior Court, Docket No. CV 90 0278184 (and cited by the plaintiff here), and expressly rejected the argument that "the need for disclosure of privileged materials in cases in which an insured has made an allegation of bad faith is sufficient, in and of itself, to justify the disclosure of relevant privileged materials without any additional threshold evidentiary requirement." Rather, the Supreme Court stated, "a party's need — even if compelling — cannot destroy the attorney-client privilege." Id., 44.
Instead, the Supreme Court "conclude[d] that an insured who makes an allegation of bad faith against his insurer is entitled to an in camera review of privileged materials when the insured has established, on the basis of nonprivileged materials, probable cause to believe that (1) the insurer acted in bad faith and (2) the insurer sought the advice of its attorneys in order to conceal or facilitate its bad faith conduct." Id., 42-43.
Even if the plaintiff's allegations of workers' compensation discrimination under General Statutes § 31-290a and intentional infliction of emotional distress were the equivalent of a bad faith claim against an insurer, which, as stated above, the Supreme Court has declined to recognize in the workers' compensation context, the plaintiff has made no evidentiary showing, on the basis of nonprivileged materials, that there is probable cause to believe that SRS acted in bad faith and sought its attorneys' advice to conceal or facilitate such conduct. Accordingly, the documents which were withheld on the basis of the attorney-client privilege need not be provided for in camera review.
II Work Product
Practice Book § 13-3 addresses the attorney work product doctrine. Work product includes "documents . . . prepared in anticipation of litigation or for trial" and encompasses material prepared "by or for" another party or that other party's representative. See Practice Book § 13-3(a).
Practice Book § 13-3(a) provides, "Subject to the provisions of Section 13-4, a party may obtain discovery of documents and tangible things otherwise discoverable under Section 13-2 and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the judicial authority shall not order disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."
"Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation." (Internal quotation marks omitted.) Ullmann v. State, 230 Conn. 698, 714, 647 A.2d 324 (1994). "The work product rule protects an attorney's interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs and countless other tangible and intangible items." (Internal quotation marks omitted.) Id.
"The burden of establishing that the information sought constitutes work product is upon the party asserting such a claim . . . but the burden of showing `substantial need' and `undue hardship' falls upon the party seeking the discovery. Practice Book § 13-3." (Citations omitted.) Matos v. Allstate Insurance Co., Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket at Stamford, Docket No. X08 CV 05 5002298 (December 3, 2008, Jennings, J.) ( 46 Conn. L. Rptr. 771).
"Although not expressly set forth in the Practice Book rule, the Connecticut Supreme Court has narrowed the work product privilege to the work product of lawyers only[.]" Id. "[The] lack of involvement of counsel is also dispositive . . . The attorney's work must have formed an essential step in the procurement of the data which the opponent seeks, and the attorney must have performed duties normally attended to by attorneys." (Citation omitted.) Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 95, 230 A.2d 9 (1967).
According to SRS' Revised Privilege Log, there are three documents, including two reports and a form, which were withheld on the basis of work product doctrine, and not also based on the attorney-client privilege, all of which were created in 2006, and which bear Bates Numbers 151-157, 162-163, 198-201, and 239. While SRS argues that the fact that they were created after suit was filed automatically protects them under the work product doctrine, no authority for this proposition is cited. In order to determine whether these documents fall within the ambit of work product, an in camera review is required. If the court concludes that these documents are work product, it will then address other issues, such as substantial need, undue hardship, and whether the documents contain the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. See Practice Book § 13-3(a).
The plaintiff argues that, if the withheld materials are found to come within the ambit of work product, the privilege was "in effect waived" when other SRS documents were provided by co-defendant The Stanley Works. See plaintiff's memorandum, p. 18. "Waiver is a question of fact." AFSCME, Council 4, Local 704 v. Dept Of Public Health, 272 Conn. 617, 622, 866 A.2d 582 (2005). The plaintiff has not shown how the co-defendant could waive the work product doctrine for SRS as to the documents at issue.
III Loss Reserve Information
The plaintiff also seeks documents concerning loss reserve information pertaining to the plaintiff's workers' compensation claim. Citing a paragraph from her revised complaint, she claims that such information is relevant to her claim that the prospect that her symptoms were "caused by a neck injury most likely caused the Defendant Employer to increase its evaluation of the anticipated medical costs and other expenses related to Plaintiff's 1/22/04 workers' compensation claim . . . Hence, one of the plaintiff's allegations is that the defendants discriminated against her because her workers' compensation claims became too costly." (Citation omitted.) See plaintiff's memorandum, p. 24.
As support for this document request, the plaintiff cites Practice Book § 13-2, which concerns the scope of discovery. The plaintiff cites no decisional law concerning whether loss reserve information is discoverable and provides no substantive discussion concerning this part of her motion.
Practice Book § 13-2 provides, in relevant part, that "a party may obtain . . . discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action, which are not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed. Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action . . . It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."
In opposition, SRS asserts that loss reserves lack any probative value with respect to the issues raised by the plaintiff and will not lead to the discovery of admissible evidence. SRS contends that loss reserves are statutorily-mandated accounting allocations, designed to ensure that an insurer has adequate resources available to cover potential liabilities. General Statutes § 38a-76(a) provides that "[e]ach insurance company transacting business in this state shall, at all times, maintain reserves equal in amount to its liability under all its policy contracts, as the same are computed in accordance with the provisions of the statutes or with the requirements of the commissioner adopted upon reasonable consideration of ascertained experience for the purpose of adequately protecting the insured or securing the solvency of such company."
"[A]s a general rule, reserves and settlement authority are not reasonably calculated to lead to discoverable evidence and are therefore not subject to discovery." In Re Silva v. Basin Western, Inc., 47 P.3d 11 84, 1191 (Colo. 2002) (collecting cases). In General Electric Capital Corp. v. Directv, Inc., 184 F.R.D. 32, 35 (D.Conn. 1998), the court ordered production of a limited number of documents relating to loss reserves because notice was at issue. That decision did not discuss Connecticut law, let alone its workers' compensation statutory scheme, and predated DeOliveira v. Liberty Mutual Insurance Co., supra, 273 Conn. 501, where, as discussed above, the court concluded that "Connecticut does not recognize a cause of action for bad faith processing of a workers' compensation claim."
As noted above, except for references to an allegation in her revised complaint and to the general breadth of the scope of discovery, the plaintiff's motion is devoid of analysis of the issue of whether loss reserves are discoverable. The Supreme Court "repeatedly ha[s] stated that [it is] are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted . . . but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Taylor v. Mucci, 288 Conn. 379, 383 n. 4, 952 A.2d 776 (2008). Since it is briefed inadequately, the court declines to review this claim.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for order of compliance is denied as to those documents which were withheld on the basis of the attorney-client privilege and as to those which pertain to loss reserves. SRS is ordered to provide to the court, by October 5, 2009, for in camera review, the three documents identified above, which were withheld as work product. When submitted, the documents should be provided in a sealed envelope, directed to the attention of the Court Officer for the X04 Docket, and bear the caption of this matter.
It is so ordered.