United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant's motion to
confirm an appraisal award (Dkt. No. 22), Plaintiffs'
motion to compel (Dkt. No. 24), and Defendant's motion
for protective order (Dkt. No. 27). Having thoroughly
considered the parties' briefing and the relevant record,
the Court finds oral argument unnecessary. The Court hereby
GRANTS Defendant's motion to confirm the appraisal award
(Dkt. No. 22), GRANTS Plaintiffs' motion to compel (Dkt.
No. 24), and GRANTS Defendant's motion for protective
order (Dkt. No. 27), for the reasons explained herein.
had a homeowner's insurance policy with Defendant, which
was in effect during the events at issue. (Dkt. No. 1-1 at
2.) On August 23, 2016, Plaintiffs' home and belongings
were destroyed in a fire. (Id. at 2-3.) Plaintiffs
retained a public adjuster to handle interactions with
Defendant. (Dkt. No. 22 at 2.) The public adjuster submitted
an inventory of the loss on March 15, 2017. (Dkt. No. 32 at
2-3.) Plaintiffs submitted an executed proof of loss with the
inventory. (Dkt. No. 25 at 11.) On May 16, 2017, Defendant
provided Plaintiffs an actual cash value (“ACV”)
calculation of $151, 998.90, approximately $60, 000 less than
Plaintiffs' proof of loss. (See Id. at 11,
26-27.) Plaintiffs retained counsel, and on June 4, 2018,
filed an Insurance Fair Conduct Act (“IFCA”)
notice. (Id. at 52.) Defendant continued adjusting
Plaintiffs' claim. (Id. at 16-19.)
insurance policy provides for an appraisal process to resolve
disagreements as to the amount of a loss. (See Dkt.
No. 23-1 at 1.) On June 6, 2018, Plaintiffs requested an
appraisal of the contents of their home destroyed in the
fire. (Dkt. No. 22 at 2.) Plaintiffs selected Gary Williams
as their appraiser. (Id. at 2.) Defendant selected
Gary Halpin Jr. (Id.) The parties agreed upon
retired Judge Michael Scott as the umpire. (Id.) In
December 2018, the appraisal panel rendered a unanimous
decision, finding that the replacement cost value
(“RCV”) for the contents of the home was $239,
815.77, and the ACV was $191, 862.15. (Dkt. No. 23-2 at 1.)
On August 20, 2019, Defendant agreed to make an additional
payment of $19, 043.11. (Dkt. No. 25 at 72.)
Defendant's Motion to Confirm Appraisal Award
courts enforce appraisal clauses in insurance policies
“upon the grounds of sound public policy. They tend to
fair dealing and to the prevention of litigation.”
Keesling v. W. Fire Ins. Co. of Fort Scott, Kansas,
520 P.2d 622, 626 (Wash.Ct.App. 1974). “[W]hen an
appraisal clause in an insurance policy is invoked, the award
is conclusive as to the amount of loss.” Bainter v.
United Pac. Ins. Co., 748 P.2d 260, 262 (Wash.Ct.App.
1988). However, an appraisal award can be challenged if the
insured alleges “bias, prejudice, or lack of
disinterestedness on the part of either an appraiser or the
Plaintiffs requested an appraisal of their loss.
(See Dkt. No. 22 at 2.) The appraisal panel rendered
a unanimous decision as to the amount of loss. (See
Dkt. No. 23-2 at 1.) Defendant requests confirmation of the
award. (Dkt. No. 22 at 1.) Plaintiffs do not disagree with
the result of the appraisal or allege bias, prejudice, or
lack of disinterestedness on the part of any member of the
panel. (See Dkt. No. 32 at 6-7.) Thus, there is no
dispute as to the amount of loss. Therefore, the Court
CONFIRMS the appraisal award as conclusive as to the amount
of Plaintiffs' loss of the contents of the
Plaintiffs' Motion to Compel
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed.R.Civ.P.
26(b)(1). This rule “protects trial preparation
materials that reveal an attorney's strategy, intended
lines of proof, evaluation of strengths and weaknesses, and
inferences drawn from interviews.” Heath v. F/V
ZOLOTOI, No. C01-1988-TSZ, Dkt. No. 142 at 7 (W.D. Wash.
2004). The work product privilege protects from disclosure
documents “prepared in anticipation of
litigation.” Fed.R.Civ.P. 26(b)(3)(A); Hickman v.
Taylor, 329 U.S. 495, 512 (1947). The party resisting
discovery under the work product doctrine bears the burden of
showing that the withheld information was prepared in
anticipation of litigation. Heath, No. C01-1988-TSZ,
Dkt. No. 142 at 7. To determine whether a dual-purpose
document was prepared in anticipation of litigation, courts
examine the totality of the circumstances surrounding the
document to evaluate whether it was created “because
of” the threat of litigation. In re Grand Jury
Subpoena (Mark Torf/Torf Envtl. Mgmt.), 357 F.3d 900,
907 (9th Cir. 2004).
prepared in the ordinary course of business are not protected
by the work product doctrine because they would have been
created regardless of litigation. See Fed. R. Civ.
P. 26(b)(3) advisory committee's note to the 1970
Amendment. “[I]t is the very nature of an insurer's
business to investigate and evaluate the merits of claims.
Reports and documents produced for this purpose will likely
be relevant to later litigation over a claim as well.”
Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 662
(S.D. Ind. 1991). This gives rise to a rebuttable presumption
that “documents or things prepared before the final
decision on an insured's claim are not work
product.” Essex Builders Grp., Inc. v. Amerisure
Ins. Co., 2006 WL 1733857, at 2 (M.D. Fla. 2006).
continued to adjust Plaintiffs' claim after the date of
the IFCA notice. (See Dkt. No. 25 at 99-100.)
Plaintiffs move for an order compelling Defendant to produce
Plaintiff's complete claim file related to the insurance
loss at issue in this lawsuit. (Dkt. No. 24 at 2.) Defendant
asserts that the work product doctrine applies to all
documents related to Plaintiffs' claim created after
Plaintiffs filed their IFCA complaint. (Dkt. No. 30 at 7.)
Defendant has not produced a privilege log for these
documents, relying on its assertion that all such documents
are protected. (See Dkt. No. 25 at 75-76.) Defendant
contends that because these documents were “produced
through the lens of litigation, ” the privilege
applies. (Dkt. No. 30 at 8.) But that is not the standard.
Because it is the “very nature” of
Defendant's business to investigate and evaluate the
merits of Plaintiffs' claims, some of the claim file
documents likely are dual-purpose documents that certainly
would have been created regardless of the litigation. See
Harper, 138 F.R.D. at 662.
extent such documents reveal Defendant's determinations
of Plaintiffs' loss and Defendant's decision how much
to pay, some of these documents are also likely to be
relevant to the present litigation. Furthermore,
Plaintiffs' substantial need for such documents would
likely outweigh Defendant's assertion of work product
doctrine immunity. See Fed. R. Civ. P.
26(b)(3)(A)(ii). Therefore, Plaintiffs' motion to compel
(Dkt. No. 24) is GRANTED. Defendant is ORDERED to produce no
later than November 8, 2019 a privilege log of the
Plaintiffs' claim file ...