Publications

Late Notice: Insured’s Implied Waiver of Privilege

November 29, 2006
New York Law Journal

What happens when an insurer seeks discovery of communications between the insured and its counsel in order to demonstrate that the insured had knowledge of a claim or occurrence long before it provided notice?

Most likely, a battle will ensue over the insured’s assertion of the attorney-client privilege. The U.S. District Court for the Southern District recently addressed this issue in Century 21, Inc. v. Diamond State Ins. Co. In that case, Judge Gerald E. Lynch held that the insured impliedly waived the attorney-client privilege by seeking insurance coverage and thereby placing relevant but otherwise protected  communications at issue. Judge Lynch ordered production of counsel’s communications to the insured during the relevant pre-notice time period.