Word: This publish is by Chip Merlin and visitor blogger Bob Rutter, an Ohio policyholder legal professional, co-founder of Rutter & Russin, and nationally acknowledged chief in insurance coverage protection regulation, with 35 years of expertise preventing insurance coverage corporations on behalf of policyholders.
For 25 years, Ohio has had a policyholder-friendly discovery rule in insurance coverage dangerous religion instances. No extra. Eddy v. Farmers Property Casualty Insurance coverage Firm 1 held that the dangerous religion discovery guidelines established in Boone v. Vanliner Insurance coverage Firm 2 not apply.
Boone held that in a foul religion case, “the insured is entitled to find claims file supplies containing attorney-client communications associated to the difficulty of protection that have been created previous to the denial of protection.”
Boone’s rationale was that “claims file supplies that present an insurer’s lack of fine religion in denying protection are unworthy of safety.”
Eddy didn’t overrule Boone, however held that its holding, which was based mostly on Ohio widespread regulation, was outdated by Ohio statutory regulation with the passage in 2007 of R.C. §2317.02, which states that an legal professional:
[S]corridor not testify . . . regarding a communication made to the legal professional by a shopper in that relationship or the legal professional’s recommendation to a shopper, besides that if the shopper is an insurance coverage firm, the legal professional could also be compelled to testify, topic to an in digicam inspection by a courtroom, about communications made by the shopper to the legal professional or by the legal professional to the shopper which might be associated to the legal professional’s aiding or furthering an ongoing or future fee of dangerous religion by the shopper if the celebration looking for disclosure of the communication has made a prima-facie displaying of dangerous religion, fraud, or prison misconduct by the shopper.
Since 2007, there have been quite a few state and federal selections in Ohio coping with the difficulty of whether or not this statute overruled or outdated Boone, with a transparent majority holding that it didn’t, as a result of the statute solely handled the testimony of an legal professional, and Boone handled the manufacturing of paperwork.
In most conditions, the Ohio Supreme Court docket has emphasised that it applies the plain that means of a statute, a contract, or an insurance coverage coverage, and doesn’t search to judicially develop the plain phrases of the doc.
Right here, nevertheless, the courtroom held that “testimony” included doc manufacturing: “The present language of R.C. 2317.02(A)(2) confirms our long-held understanding that the statutory privilege applies each to documentary proof and trial and deposition testimony.”
Eddy held that “Lawyer-client communications are topic to discovery solely upon a prima facie displaying of dangerous religion, and solely to the extent that the courtroom, upon an in digicam inspection, determines that the communications ‘are associated to the legal professional’s aiding or furthering an ongoing or future fee of dangerous religion by the shopper.’ R.C. 2317.02(A)(2).”
Eddy additionally held that Boone didn’t expressly management the invention of work-product paperwork though Boone acknowledged in its opinion—however not in its syllabus—that the work product privilege doesn’t apply to paperwork within the declare file that pre-date the denial since “At that stage of the claims dealing with, the declare file supplies is not going to comprise work product, i.e., issues ready in anticipation of litigation, as a result of at that time it has not but been decided whether or not protection exists.”
Eddy reversed and remanded the case again to the trial courtroom to find out if the Eddys have made a prima facie displaying of dangerous religion, fraud, or prison misconduct. In the event that they haven’t achieved so, the attorney-client discovery stops. If they’ve achieved so, then the trial courtroom conducts an in digicam evaluate of the attorney-client communications to find out whether or not the paperwork are associated to the legal professional’s aiding or furthering an ongoing or future fee of dangerous religion by the shopper. The work product paperwork are presumptively shielded from disclosure until the Eddys make a displaying of fine trigger therefor underneath Civ. R. 26(B)(4).
We will anticipate litigation sooner or later on what constitutes a prima facie displaying of lack of fine religion, which merely means performing with out affordable justification. Does a prima facie displaying imply producing some proof of lack of fine religion, or does it require the diploma of proof essential to defeat abstract judgment? Or does it imply one thing else?
And what constitutes an legal professional aiding or furthering an act of dangerous religion? Take what’s normally espoused as a traditional case of dangerous religion. If the legal professional advises the insurer {that a} declare might be coated and must be paid, however the insurer declines to observe this recommendation and denies the declare, has the legal professional aided or furthered the shopper within the fee of dangerous religion?
And can insurers now return to “the great previous days” and assert a piece product privilege for all declare file supplies based mostly on the insurer’s place that every one claims may doubtlessly result in litigation, so all supplies in a declare file are ready in anticipation of litigation?
Eddy answered some questions, however created a brand new batch.
1 Eddy v. Farmers Property Cas. Ins. Co., Slip Opinion No. 2026-Ohio-626 (Ohio Feb. 26, 2026).
2 Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209 (Ohio 2001).