Party Means Party
TEDCO Construction Company was hired to do construction work at a site across the street from St. Paul Cathedral in Pittsburgh. During the course of construction, TEDCO's pile driver allegedly caused structural damage to buildings on St. Paul's property, which were insured by Church Mutual Insurance Company. St. Paul's notified Church Mutual of the damage and Church Mutual retained engineering firm WJE to inspect the properties and prepare a report.
In litigation between St. Paul's, TEDCO and other defendants, one defendant sought production of WJE's report. Church Mutual resisted production on the grounds that the report constituted work product of a non-testifying expert, which is not discoverable under Rule 4003.5(a)(3). The defendant moved to compel on the basis that Rule 4003.5(a)(3) protects the work product of a non-testifying expert only to the extent the expert has been retained "by another party" to the litigation. Because Church Mutual was not a "party" to the case, defendant reasoned, the rule was inapplicable. Church Mutual responded that, although it was not a party, the expert's work product should be shielded because Church Mutual functioned as "a representative of plaintiff, employing an expert on plaintiff's behalf for purposes of litigation which plaintiff was expected to commence against third parties."
The court rejected Church Mutual's agency argument based on its conclusion that Church Mutual's interests "do not necessarily coincide with plaintiff's interests because of the possibility of a dispute between plaintiff and Church as to what is covered by insurance and the amount of money the insurance company should pay." The court expressly noted that the case before it was "very different" than a case in which an insurer assumes responsibility for claims brought by or against its insured.
Bottom Line: In cases where an insurer does not formally assume responsibility for litigating claims, an insured cannot treat expert reports prepared for the insurer as though they were prepared for the insured. Although the court in TEDCO noted that there was a coverage dispute between St. Paul's and Church Mutual, it is not entirely clear whether -- or why -- the absence of such a dispute would alter the result. Rule 4003.5(a)(3) protects the reports of non-testifying experts only when prepared for a party and the existence of a coverage dispute between an insured and its insurer does not strike me as determinative of whether the insurer is a party to litigation. I suppose Church Mutual's agency theory would be strengthened in the absence of a coverage dispute, but it is far from clear that even a strengthened agency argument would be sufficient to render Church a party for purposes of the Rule. The better practice is to assume that reports prepared by an insurer will be discoverable in an action involving the insured absent a formal assumption of responsibility for defending or prosecuting the claims at issue.
