Preview:

NO.

91-523

IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

DAVID ALARIC PALJ4ER, a Protected Person, by Martha Rose Diacon, his Conservator, Plaintiff and -vFARMERS INSURANCE EXCHANGE,

-.

.

Defendant and

APPEAL FROM:

District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
William Conklin 6r L.D. Mybo (argued), Conklin, N y b o & Leveque, Great Falls, Montana

For Respondent:
Montana; and John C.

(argued), Great Falls, (argued) , R i s j o r d & James, Overland Park, Kansas

Dennis

Patrick

Conner

Risjord

For Amicus : Randy J, Cox, Boone, Karlberg & Haddon, Missoula, Montana: Dana L. Christensen, Murphy, Robinson, Heckathorn & Phillips, Kalispell, Montana; anRobert F. James (argued), James, Gray & McCafferty, Great Falls, Montana
Submitted: December 10, 1992
October 18, 1993

Decided:
Filed:

Justice R. C. McDonough delivered the Opinion of the Court,

This is an appeal from an order based on a jury verdict and a
judgment of $750,000 in compensatory damages and $750,000 in punitive damages against Farmers Insurance Exchange (Farmers) for breach of the covenant of good faith and fair dealing (bad faith). We reverse and remand for a new trial.

his action arose in conjunction with a claim by Palmer, the
insured, against Farmers, the insurer, for uninsured motorist benefits. Palmer's claim ensued
after a

no-vehicle-contact

motorcycle accident on June 10, 1984.

Farmers requested that the

court bifurcate the uninsured motorist claim from the bad faith claim and stay discovery proceedings concerning bad faith until the

uninsured motorist claim w a s resolved. The court granted Farmers'
request on August 21, 1986. The uninsured motorist claim proceeded to trial in March of
1987.

The jury found an uninsured motorist liable for Palmer s

injuries. We affirmed the verdict and judgment on appeal.
by Diacon v. Farmers Ins. Exch.

Palmer

(1988), 233 Mont. 515, 761 P.2d

401.
The bad faith action was revived in the fall of 1988 and the

case went to trial on March 4, 1991. After the jury verdict, the trial judge approved the punitive damage award and entered judgment against Farmers. Farmers filed a motion for either a judgment

notwithstanding the verdict or a new trial. The motion was deemed denied.

This appeal followed.

The pertinent issues on appeal are:
2

1 .
2.
3.

Whether the District Court erred by denying Farmers' motion for directed verdict. Whether the District Court erred in admitting evidence from the underlying trial. Whether Farmers is entitled to a new trial because the District Court ordered Farmers to produce, and later allowed into evidence, correspondence between Farmers and its attorneys who defended the underlying uninsured motorist lawsuit.
A. Whether the attorney-client privilege applies to first-party bad faith cases in which the insurer's attorney did not represent the interests of the insured in the underlying case.
B.

Whether Farmers' claim file contained material subject to attorney-client privilege.

C. Whether Farmers voluntarily waived its attorneyclient privilege. D. Whether evidence of privileged communications is admissible against the holder of the privilege after the court erroneously compelled its discovery.
E. Whether the admission of privileged materials into evidence prevented Farmers from having a fair trial, thus entitling it to a new trial.
4.

Whether the District Court erred in ordering the production of work-product materials and then allowing the materials into evidence.
A.

Whether the District Court erred in ordering Farmers to produce the work-product materials in its claim files.

B. Whether the District Court erred in determining that one of Farmersr former defense attorneys waived the protection of the work-product doctrine by making testimonial use of certain work-product materials.

5.

Whether the District Court erred by admitting evidence of the litigation tactics of Farmers' attorneys and of Farmers' decision to appeal.

A. Whether evidence of an insurer's post-filing conduct, such as litigation strategy and tactics in defending the underlying suit, is admissible in a bad faith action based on the insurer's decision to deny coverage.

Whether an insurer's decision to appeal the verdict B. in the underlying case is admissible as evidence in a subsequent bad faith action. From the inception of the proceedings, Palmer has maintained that an unidentified tractor and semitrailer (the truck) crossed the centerline and ran his motorcycle off the road. Farmers denied the uninsured motorist claim in February of 1986, after a witness told a Farmersv claims adjuster that the truck was in its own lane.
A few days later Palmer filed suit against Farmers for denying the

claim and for bad faith. Pursuant to a motion to compel, the court ordered production of Farmers' entire claim file during discovery on the bad faith claim. The court also ruled that Farmers was not required to

produce materials dated after October, 26, 1988, the date Palmer notified Farmers that he intended to proceed with the bad faith claim. However, the materials dated prior to October 26, 1988

included confidential reports sent to Farmers by the attorneys who represented it in the uninsured motorist case. On February 21, 1989, Farmers produced its claim file under court order. At that point, nothing had transpired in the bad

faith action, except Palmer's motion to compel and a letter from Farmers' attorney Bill Gregoire to Palmer's attorney. The letter

stated that Farmers would have to obtain new counsel for the bad faith trial because Farmers would likely call him and Farmers' other attorneys, Marvin Smith and James Walsh, as witnesses in the bad faith trial.

Equipped with attorney Gregoire's

confidential reports to

Farmers, Palmer deposed several of Farmers' employees who had worked on the uninsured motorist case. Among the persons that

Palmer questioned using the privileged materials was Bud Rausch, Farmersf branch claims supervisor. Neither Rausch nor any of the

other deponents had been designated as expert witnesses at the time of their depositions. At a deposition on September 13, 1989, Palmer's attorney

cross-examined Rausch extensively on five of the letters Farmers received from its attorney Gregoire and on events which transpired during preparation for trial and during trial. Palmer made similar use of Gregoire's claims letters to Farmers when he deposed a Farmers' on February
16,

representative

1990,

and

Farmers'

investigator on February 19, 1990. Farmers identified its prospective expert witnesses on July 18, 1990, in an answer to an interrogatory. Farmers identified In

Frank Weedman and Bud Rausch as potential expert witnesses.

addition, Farmers identified attorneys Smith, Walsh, an,3Gregoire as potential witnesses in the bad faith trial. stated: The answer also

"If called as witnesses, those individuals will not be

examined regarding their confidential privileged communications to the defendant regarding that underlying suit or the instant bad faith action." Farmers hired Weedman as an expert witness regarding

reasonable insurance industry practice on March 8, 1990, a year after Farmers produced its claim file for Palmer. Farm'erssent a

copy of the same claim file to Weedman for his review.

Shortly

thereafter, Farmers filed a motion for return of privileged communications. Nine months later, one week before trial, the District Court ruled on the motion for return of privileged communications. The

court ruled that neither the attorney-client privilege nor the work-product doctrine apply in first-party bad faith actions, and therefore, Palmer was entitled to Farmers1 entire claim file. The court then ruled that Farmers had waived the privilege because the experts it intended to call at trial based their opinions on a review of the entire claim file, including attorney correspondence. At trial, most of Palmer's case-in-chief involved evidence concerning the underlying trial and Farmers1 post-filing conduct. The evidence included the strategy and litigation tactics of Farmers1 attorneys who defended the underlying case and testimony from the underlying trial. In questioning Bud Rausch, the first witness at trial, Palmer introduced into evidence and read nine of the reports consisting of confidential attorneys. communications between Farmers and its former

After the reports had been disclosed to the jury,

Farmers called its former attorneys as witnesses to explain their actions in defending the underlying uninsured motorist case. Near the end of the trial, Farmers offered the complete claim file into evidence to rebut Palmer's privileged materials. use of selected portions of the

Farmers made a motion for a directed verdict at the end of Palmer's case-in-chief. The court denied the motion. Farmers

renewed the motion at the close of all of the evidence with a stipulation from Palmer that the earlier motion and arguments were deemed repeated. again denied it. This opinion will refer to additional facts where they are pertinent to the discussion. Our review of the District Court's conclusions of law is The court accepted the form of the motion and

plenary; we determine whether the court's conclusions are correct. We review discretionary acts of the District Court to determine whether the court abused its discretion. Steer Inc. v. Dept. of

Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Did the District Court err by denying Farmers' motion for a directed verdict?

his is a borderline issue, considering the closeness of the
questions of fact in the underlying case. See Palmer bv Diacon,

761 P.2d at 404. But, given the standard for granting a directed verdict, we conclude that the District Court did not commit reversible error by denying Farmers1 motion for a directed verdict. This case arose before the legislature enacted 9 33-18-242, MCA, which appears to have codified our common law standard of liability for bad faith in denying insurance coverage. Under

Montana common law, an insurer cannot be held liable for bad faith in denying a claim if the insurer had a reasonable basis for contesting the claim or the amount of the claim. Tynes v. Bankers
7

Life Co. (1986), 224 Mont. 350, 364, 730 P.2d 1115, 1124.

As we

have stated, "[i]t is generally held that an insurer is entitled to challenge a claim on the basis of debatable law or facts and will not be liable for bad faith or punitive damages for denying coverage if its position is not wholly unreasonable." Safeco Ins.

Co. v. Ellinghouse (1986), 223 Mont. 239, 248, 725 P.2d 217, 223; see also St. Paul Fire
&

Marine Ins. Co. v. Cumiskey (1983), 204

Mont. 350, 665 P.2d 223: 5 33-18-242(5), MCA. Farmers cited Cumiskev to support its position that the court should have granted its motion for a directed verdict. In

Cumiskev, an insurer filed a declaratory judgment action, asking the court to interpret the policy and determine the relationships of the parties and their legal rights. The insured counterclaimed, alleging that the insurer acted in bad faith by bringing the declaratory judgment action instead of payingthe claim. Cumiskev, 665 P.2d at 226-27. The trial court granted a directed verdict in favor of the insurer. We upheld the court because in a proper case, an insurer may file a declaratory judgment action to obtain a determination of the validity, continuance or coverage of the insurance policy, the extent of liability, or the insurer's Cumiskev, 665 P.2d at 227. judgment action under duty under the policy.

We held that filing a declaratory circumstances does not

appropriate

necessarily constitute bad faith.

See Cumiskey, 665 P.2d at 227.

In this case, Farmers contested liability, contending that Palmer's accident was not caused by another motorist, and

therefore, Palmer's

uninsured motorist policy did not cover the

accident. Cumiskev does not require the court to grant a directed verdict under the facts of this case. Farmers also contends that the District Court should have granted its motion for a directed verdict because Farmers had a reasonable basis to deny coverage. To support its contention,

Farmers argues that statements taken from witnesses before Farmers denied the claim gave it a reasonable basis for denying the claim. Witness Atchison told a claims investigator that, contrary to Palmer's assertion, a truck did not run Palmer's motorcycle off the road. In a later deposition, Atchison adhered to his story,

stating that from the time he first saw the truck until the motorcycle went off the road, the truck never left its own lane. In all of his statements, Atchison never deviated from his testimony that the truck was in its own lane and did not run Palmer off the road. In addition, Farmers obtained statements from some dirt bikers. They reported seeing a motorcycle speeding down the

highway at full throttle about one-half mile from the accident scene. It matched the description of Palmer's motorcycle. Shortly thereafter, they came across Palmer's motorcycle along with Palmer and his passenger in the ditch. According to the dirt bikers, no

other speeding motorcycles went past them before they came upon the accident. Farmers argues that the statements of Atchison and the dirt bikers gave it a reasonable basis for denying the claim as a matter

of law.

Under the law, if Farmers had a reasonable basis upon

which to deny the claim, it cannot be found to have acted in bad faith. Tvnes, 730 P.2d at 1124. Because Palmer's uninsured

motorist policy would not coverthe accident unless another vehicle ran Palmer off the road, the witnesses' statements appear at first glance to provide a reasonable basis for denying the claim. Palmer, however, counters that it was unreasonable for Farmers to rely on Atchison's statements because Atchison was an unreliable witness. Palmer points out that Atchison kept changing details of his story, such as the exact speed of the motorcycle before it left the road and whether he saw the motorcycle as it left the road or merely a cloud of dust. Palmer argues that it was unreasonable for Farmers to deny coverage based on Atchison's information because

Atchison changed details of his story. The credibility of Atchison is, therefore, a question of fact in this case. Palmer supplied another witness who was riding a motorcycle similar to Palmer's. The witness testified that he and his wife

were speeding on the same road at about the time of the accident. Palmer argues that this gives another reasonable explanation of the speeding motorcycle seen by the dirt bikers. However, there is no

evidence that Farmers knew of this witness' statement when it denied the claim. In a jury trial, a judge may direct a verdict in favor of the party entitled thereto when the case presents only questions of law. Section 25-7-302, MCA. When a defendant moves for a directed

verdict, the court views only the evidence presented by the plaintiff and views it in the light most favorable to the plaintiff. Cremer v. Cremer Rodeo Land Mont. 87, 91, 592 P.2d 485, 488.
&

Livestock Co. (3979), 181

A court may not withdraw a case

from the jury, unless the conclusion requested by the defendant must follow from the evidence as a matter of law and the plaintiff cannot recover under any view that could reasonably be drawn from the evidence. Cremer, 592 P.2d at 488.

The test for determining whether the evidence is legally

sufficient to withdraw a case from the jury is whether reasonable people could draw different conclusions fromthe evidence. If only one canclusion is reasonably proper, a directed verdict appropriate. Cremer, 592 P.2d at 488.
is

Here, the court evidently concluded that more than one
conclusion

was

reasonably

proper

based

on

the

evidence. In

Consequently, it denied Farmersf motion for directed verdict.

reviewing the courtf denial of Farmersf motions, we apply the s common-law standard for holding an insurer liable for bad faith in denying a claim. Under that standard, an insurer cannot be held

liable if the insurer had a reasonable basis for contesting the claim. Tvnes, 730 P.2d at 1124.

In this case, there is conflicting evidence concerning the

credibility of the witnesses. It is for the jury to determine the probative value of the evidence and draw inferences from the evidence, and then determine whether Farmers had a reasonable basis for denying the claim.

We hold that Cumiskev does not require the District Court to
grant a directed verdict for Farmers.
We further hold that the

court did not commit reversible error by concluding that reasonable people could draw different conclusions about whether Farmers' had a reasonable basis for contesting Palmer's claim. Accordingly, the court did not err in denying Farmers' motion for a directed verdict.

t h e D i s t r i c t Court err i n admitting evidence underlying trial and other irrelevant evidence?
Did

from

the

Because we are reversing on other grounds and remanding for a new trial, we will not rule on the particulars relative to this issue. However, some comment is necessary because the District

Court admitted into evidence a large quantity of material relating to the underlying uninsured motorist trial.
Relevant evidence is flevidencehaving any tendency t o make the

existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." discretion to Rule 401, M.R.Evid. Trial judges have the admissibility of

determine the

relevancy and

evidence, Dahlin v . Holmquist (1988), 235 Mont. 17, 20, 766 P.2d
239, 241.

However, the admission of irrelevant evidence is an

abuse of discretion and warrants a new trial if it affects the substantial rights of a party. Dahlin, 766 P.2d at 241.

Material from the underlying trial tending to show what Fanners knew or should have known at the time it made the decision to deny the claim is relevant. In addition, material tending to
12

show whether or not such knowledge supports a reasonable basis for denying the claim is relevant. See Rule 401, M.R.Evid. However,

evidence from the underlying trial that is not related to Farmersf basis for denying the claim is not relevant. The essential issue in this case is whether Farmers had a reasonable basis for denying the claim. Any evidence that does not relate to facts of consequence to this issue is not relevant. 111. Did the District Court erroneously order Farmers to produce, and later allow into evidence, correspondence between Farmers and its attorneys who defended the underlying uninsured motorist lawsuit, thus entitling Farmers to a new trial? In a request for production of documents on February 26, 1986, Palmer requested Farmers' "entire file on the accident described in the Complaint filed herein, including but not limited to any and all documents relating to plaintiff's claim for uninsured motorist benefits. " Palmer also requested from Farmers, you, your agents and
"

[a] ny and all and

correspondence between

attorneys

plaintiff, plaintiff's agents and attorneys, concerning plaintiff's claim for uninsured motorist benefits." Sometime later, Palmer moved to compel discovery of Farmers' claim files developed in investigating and defending the uninsured motorist suit. Farmers produced everything in its files, except

for correspondence between Farmers and its attorneys and materials dated after October 8, 1985, the date Palmer's attorney threatened to sue for bad faith if Farmers did not pay Palmer's claim. Farmers objected to producing exhibits consisting of

confidential attorney-client communications on the grounds that
13

they were protected by attorney-client privilege. Farmers objected to producing other exhibits on the grounds that they were immune from discovery under the work-product: rule. The court ordered

Farmers to produce the attorney-client communications. In an order dated February 16, 1989, the court ruled that "defendant's respect to assertion of the attorney-client privilege with those claim it file and documents its counsel which is constitute overcome by

communications between

plaintiff's need for such materials in preparation of its bad faith case against defendant.'l On February 21, 1989, pursuant to court order, Farmers produced all claim file materials dated before October 26, 1988. Among the materials were several letters from Farmersf defense attorney Gregoire, including eight letters marked "confidential reports." Over continuing objections by Farmers, the District

Court allowed into evidence these letters and other correspondence between Farmers and its attorneys who defended the underlying uninsured motorist case. Farmers argues that it did not have a fair trial because the District Court admitted this; privileged material into evidence.

Farmers points out that the bad faith trial should have centered on
whether the infomation it had when it denied Palmer's constituted a reasonable basis for contesting the claim. claim

Farmers

contends that by admitting privileged materials, the court allowed Palmer to focus much of the bad faith case on the litigation tactics defense counsel used in preparing for the underlying trial,

in conducting the trial itself, and in recommending and pursuing the subsequent appeal. to a new trial. Therefore, Farmers argues, it is entitled

We agree.

The fundamental purpose of the attorney-client privilege is to enable the attorney to provide the best possible legal advice and encourage clients to act within the law. The privilege furthers

this purpose by freeing clients from the consequences or the apprehension of disclosing confidential information, thus

encouraging them to be open and forthright with their attorneys. State ex rel. United States Fidelity and Guaranty Co. v. Second Judicial Dist. Ct. (1989), 240 Mont. 5, 10, 783 P.2d 911, 914 (USF&G), (citing Upjohn Co. v. United States (l98l), 449 U.S. 383,

Another important policy behind the attorney-client privilege is to foster the attorney-client relationship by ensuring that attorneys are free to give accurate and candid advice without fear that the advice will later be used against the client. We approve of the Missouri Supreme Court's recognition of this policy, articulated as follows: As long as our society recognizes that advice as to matters relating to the law should be given by persons trained in the law--that is, by lawyers--anything that materially interferes with that relationship must be restricted or eliminated, and anything that fosters the success of that relationship must be retained and strengthened. The relationship and the continued existence of the giving of legal advice by persons accurately and effectively trained in the law is of greater societal value, it is submitted, than the admissibility of a piece of evidence in a particular lawsuit. Contrary to the implied assertions of the evidence authorities, the heavens will not fall if all relevant and competent evidence cannot be admitted.

State ex rel. Great Am. Ins. Co. v. Smith (Mo. l978), 574 S.W.2d 379, 383 (quoting Sedler
&

Simeone, Comment, Privileqes in the Law

of Evidence: The Realities of Attornev-Client Confidences, 24 Ohio St.L.J. 1, 3 (1963)). With these policies in mind, we will apply

the statutes and rules to the particular contentions of the parties.
A.

Does the attorney-client privilege apply to first-party bad faith cases in which the insurer's attorney did n t represent o: the insured's interests in the underlying case? Palmer contends that all correspondence between Farmers and

its former attorneys is discoverable because the attorney-client privilege does not apply in first-party bad faith actions such as this one. We previously held that the attorney-client privilege

applies in the context of third-party bad faith actions, but we have not determined whether the privilege applies in first-party bad faith litigation. USF&G, 783 P.2d at 916. For definitional purposes, a third-party bad faith action is one in which the plaintiff is a third-party claimant rather than the insured. the insured. actions. Palmer argues that this Court has made a distinction between third-party and first-party bad faith actions. Palmer argues, In a first-party bad faith action the plaintiff is There are different types of first-party bad faith

based on federal district court cases, that the attorney-client privilege does not apply in first-party bad faith cases. See

Bergeson v. National Surety Corp. (D.Mont. 1986), 112 F.R.D. 692: Baker v. CNA Ins. Co. (D.Mont. 1988), 123 F.R.D. 322. We disagree.
16

One type of first-party bad representation by the attorney.

faith action involves dual Judge William Jameson first

expressed the concept of dual representation as follows: "Under an insurance contract, however, the insurer initially employs the attorney to represent the interests of both the insured and the insurer.I1 Jessen v. O'Daniel (D.Mont. 1962), 210 F.Supp 317, 33132; see also Ellinuhouse, 725 P.2d at 226; USF&G, 783 at 913-14. First-party bad faith cases involving dual representation often arise after a third-party claimant obtains a judgment in excess of policy limits and the insured later sues the insurance company for failure to settle within policy limits. In these

cases, courts have held that the insured is entitled to the entire claim file prepared forthe underlying lawsuit, because the insurer created the file primarily on behalf of the insured. E.g., Baker, 123 F.R.D. at 326. The rationale courts use to abrogate the

attorney-client privilege in such cases is that one joint client (the insurer) cannot assert the privilege against another joint client (the insured). also 22 A.L.R.2d See, e.g. Baker, 123 F.R.D. at 325-26; see 765 (annotations concerning

659 5 3; 4 A.L.R.4th

applicability of attorney-client privilege in dual representation cases). The present case is a distinct type of first-party action. In this type of action, the claimant and the insurer are in adverse positions from the outset of the underlying case. Farmers stepped

into the shoes of the unidentified third party motorist when it denied Palmer coverage under his uninsured motorist policy. The

attorneys who represented Farmers in the uninsured motorist case have not represented Palmer, therefore the dual representation reasoning does not apply in this case. The nature of the relationship, not the nature of the cause of action, controls whether communications between attorney and client can be discovered.
USF&G,

783 P.2d at 915.

Tbe attorney-client

privilege protects communications in first-party bad faith cases when the insurer's attorney did not represent the interests of the insured in the underlying case. That is tbe nature of the

relationship here; therefore, the attorney-client privilege applies in this case.
B.

Did Farmers1 file contain material subject to attorney-client privilege? The subject matter and author of each exhibit is critical in

determining whether the attorney-client privilege prevents its discovery. Absent a voluntary waiver or an exception, the

privilege applies to all communications from the client to the attorney and to all advice given to the client by the attorney in the course of the professional relationship. Kuiper v. Dist. Ct.

of the Eighth Judicial Dist. (1981), 193 Mont. 452, 461, 632 P.2d
694, 699; see also 6 26-1-803, MCA.

The portion of Farmers1 file produced under court order contained "confidential reportstt concerning the pending litigation from Farmers' attorney Gregoire to Farmers. The reports

constituted advice from Gregoire to Farmers on many matters relating to Palmer's claim. In the reports, Gregoire evaluated

witnesses, evaluated the trial, advised Farmers concerning his investigation and trial preparation, advised Farmers on his opinions of defense and trial strategy, advised Farmers on the prospect for a successful defense, and advised Farmers on posttrial negotiations and on grounds for appeal. The reports clearly contain advice given to Farmers by its attorney in the course of the attorney's professional relationship. The attorney-client privilege protects Farmers from disclosing those reports and any other correspondence sent in the course of the professional relationship with its attorneys. See Kui~er, 632 P.2d at 699. The privilege of non-disclosure is not lost merely because the communications contain relevant nonlegal considerations. Union Oil Co. of Calif. v. Dist. Ct. (1972), 160 Mont. 229, 236, 503 P.2d
1008, 1012.

The protection applies unless the communications fall

within some exception to the privilege or Farmers voluntarily waived the privilege. C. Did Farmers voluntarily waive its attorney-client privilege? Palmer contends that Farmers waived its attorney-client

privilege before the court ordered production of the privileged correspondence. According to Palmer, Farmers waived the privilege when Farmers' attorney Gregoire sent a letter dated November 15,
1988, to Palmer's

attorney, stating that Farmers would have to

obtain new counsel for the bad faith trial because he and Farmers' other attorneys, Smith and Walsh, might be called as witnesses in the trial. Palmer argues that after Gregoire sent the letter,

Palmer

was

entitled to discover the bases of the testimony and

opinions those attorneys would present to the juryThis argument has no merit for two reasons. First, the

attorney-client privilege belongs to the client and an attorney cannot waive it without consent of the client.
MCA;

See 5 26-1-803,

Rule 503, M.R.Evid.

Second, Farmers did not list the

attorneys as witnesses until July 18, 1990, over a year after the court ordered Farmers to produce the privileged materials. Even

then, Farmers stated that the attorneys would testify to factual matters, but would not testify regarding confidential privileged information. Palmer further contends that Farmers voluntarily waived its attorney-client privilege several times after Farmers produced the privileged material under court order. Notably, all of the alleged waivers occurred after the court compelled discovery and Palmer had made extensive use of the privileged materials in preparing his case. Palmer's arguments are inconsequential because Farmers did

not voluntarily release the attorney communications--the court ordered it to do so. arguments in turn. Palmer asserts that Farmers did not object to his crossexamination regarding the contents of the privileged correspondence
at the deposition of Bud Rausch, Farmers' branch claims supervisor.
We will, however, address each of Palmerrs

In so arguing, Palmer overlookedthe following continuing objection
made by Farmersr a t t o r n e y at the beginning of the deposition.

* [ ] order to preserve our objections, I wish to state 'In a general and continuing objection to any and all

reference to and questioning regarding documents frornthe claim files of Farmers Insurance Exchange, pertaining to Mr. Palmer's claims in their several, various versions, which documents we produced over objection and pursuant to the court's order compelling production, dated February 16, 1989. Defendant's objections are that such documents are immune from discovery under the workproduct protection afforded by Rule 26 (b)3 of the Montana Rules of Civil Procedure. And also, because a great many of such documents constitute communications between defendant and its attornevs and are ~rivileaedunder the attornev-client privileqe, I have a second obiection. : (Emphasis added. ) Farmers thus preserved its objection to Palmerrs use of the
privileged materials, and nothing in Rausch's deposition acted as

a waiver of Farmers' attorney-client privilege.

Palmer next contends that Farmers waived its attorney-client privilege by relying on advice of counsel in its decision to deny Palmer's claim. However, mere reliance on an attorney's advice is not the crucial factor.
The attorney-client privilege applies

lgunless the insurer directly relies on advice of counsel as a defense to the bad faith charse." (Emphasis added.) Spectra-

Physics v. Superior Court (Cal.App. 1988), 244 Cal.Rptr. 258, 261; see also ~ransamerica~ i t l e Ins. Co. v . Superior Court (Gal-App.

Upon cross-examination in his deposition and at trial, Bud Rausch stated that advice of counsel influenced Farmersf decision to deny Palmer's claim. Although Farmers listened to the advice of counsel in deciding to deny Palmer's uninsured motorist claim, Farmers did not directly rely on advice of counsel as a defense to Palmerrs bad faith claim. Therefore, Palmer's contention that

Farmers waived its privilege by relying on advice of counsel is lacking in mejrit. See Svectra-Phvsics, 244 Gal-Rptr. at 261.

Palmer next contends that Farmers did not object at trial to the admission of privileged communications. On the contrary,

during a hearing on the morning of trial, Farmers made a continuing objection to use of the privileged materials as evidence. The

court granted the request for a continuing objection so that at trial Farmers1 attorney would not have to get up and object continually, whenever privileged material was discussed or offered into evidence. Thereafter, Farmers was not required to state

specific attc~rney-clientprivilege objections to each exhibit. Palmer next contends that at trial Farmers made an

"unequivocal and thorough waiver of purported attorney-client privilege.'I During arguments over the relevance of some

communicatiors between Farmers and its attorneys, the discussion focused on which communications Palmer wanted to examine. Farmers counsel stated, " t s I' produced." already been waived. I' ts already been

Taken in context, this statement is not a waiver, no attorney-client

rather it is a comment that there were

communications left that had not been produced under court order. Palmer next contends that Farmers made multiple waivers by naming attorneys as witnesses, by furnishing their communications to experts who then testified with regard to them, by permitting their insured to testify to communications without objection, and by calling their attorneys to the witness stand to testify to the subjects of the privileged information. Under the circumstances of

this case, these actions do not constitute a waiver of the attorney-client privilege. One thing is clear. At the time the District Court abrogated Farmers' Farmers' attorney-client privilege and ordered production of claim file and all confidential attorney-client

communications between ~armers and its attorneys Smith, Walsh, Clarke, and Gregoire, Farmers had done nothing that could be interpreted as a voluntary relinquishment of its right to claim the privilege. As a general rule, "[a] person upon whom these rules confer a privilege against disclosure waives the privilege if the person

.

.

.

voluntarily discloses or consents to disclosure of any Rule 503, M.R.Evid.

significant part of the privileged matter."

Mere reference to privileged reports is not enough to waive the attorney-client privilege. To have waived the privilege by

disclosing privileged communications, Farmers would have had to voluntarily divulge the specific confidential material contained in the reports. See Union Oil Co. of Calif., 503 P.2d at 1012-13.

Once the court erroneously abrogated Farmers' attorney-client privilege by compelling discovery of the confidential reports, it was too late for a voluntary waiver to occur and Farmers' claim of privilege was not defeated. See Rule 504, M.R.Evid. Farmers,

therefore, did not voluntarily waive the attorney-client privilege applicable to the communications between Farmers and its attorneys. D. Is evidence of privileged communications admissible against the holder of the privilege if the court erroneously compelled its discovery?

The District Court in this case compelled discovery of all the materials dated after October 26, 1988, in the claim file, including materials subject to attorney-client privilege. In so

ruling, the court found that Palmer demonstrated a substantial need for the materials and would incur undue hardship in obtaining the substantial equivalent of those privileged materials. The District Court seems to have confused the attorney-client privilege with the work-product doctrine. A showing of need cannot defeat the attorney-client privilege, whereas a showing of need may overcome the immunity from discovery given to an attorney's work product.
USF&G, 783 P.2d at 915.

As discussed above, the purpose of the attorney-client privilege is to foster the attorney-client relationship by enabling attorneys to provide the best advice possible to their clients and encourage the clients to act within the law. The privilege

furthers this purpose by encouraging clients to give information to their attorneys without fear that it will later be used against them. The privilege also furthers this purpose by allowing attorneys to give candid advice to clients without fear that later it can be used against the client. Our statute reflects this policy by

including as privileged communications any advice from the attorney to the client given within the professional relationship. 26-1-803, MCA. The Montana Rules of Evidence promote the policies underlying the attorney-client privilege by providing that "[a] claim of See 5

privilege is not defeated by a disclosure which was compelled erroneously

. ...

'1

Rule 504, M.R.Evid.

This rule provides a

remedy for the holder of a privilege when a court erroneously compels discovery of privileged material. "The remedy provided is

that the privilege may be subsequently claimed and the disclosed subject matter made inadmissible. Comments. Rule 504 was intended for this situation, in which the holder of a privilege was compelled to disclose privileged matters pursuantto court order. Rule 504, M.R.Evid., Commission Comments. Evidence of the privileged communications between Fanners and its attorneys was not admissible against Farmers merely because the court erroneously compelled its discovery.
E.

Rule 504, M.R. Evid. , Commission

Did the admission of privileged materials into evidence prevent Farmers from having a fair trial, thus entitling it to a new trial? The District Court misconstrued the law when it ordered

Farmers to produce privileged material and admitted the privileged material into evidence. An example of the prejudicial effect of

the disclosure of the correspondence between Farmers and their attorneys, was the attorneysv analysis and recommendations to Farmers relative to the underlying case being dangerous to Farmers and the need for the retention of an accident reconstruction expert. The alleged failure to timely retain such an expert

contraryto the recommendation of their attorneys was a substantial element in Palmer's proof of Farmerst bad faith in investigating and settling Palmer's claim. Palmer claimed the retention of such

an expert and his opinion would have refuted any statements relied on by Fanners that Palmer was speeding. The attorneys' analysis

and recommendations and Farmers' reaction to them was brought out thoroughly in the direct examination by Palmer's attorney of Farmers' branch claim supervisor as an adverse witness. Such

correspondence was also noted extensively in Palmer's attorneys' final argument as evidence of bad faith and failure to timely and properly investigate the claim. This error also helped Palmer to

focus his case on the trial preparation strategy and litigation tactics of Farmers' attorneys, rather than on whether Farmers had a reasonable basis for denying liability. In issue V below, we

further discuss how evidence of Farmers' litigation tactics and strategy prejudiced Farmers. The admission of privileged correspondence into evidence materially affected Farmers1 substantial rights and prevented Farmers from having a fair trial. See

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