Liberty Mut. Ins. Co. v. Nationwide Mut. Ins. Co.

Issue Discussed: Access to Records

Submitted by James D. Scrimgeour

Date Promulgated: June 5, 2015

Liberty Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 87 Mass.App.Ct. 1127, 31 N.E. 3d 1192 (2015)

Court: Appeals Court of Massachusetts

Issue Decided: Whether the Access to Records clause in the reinsurance contract grants reinsurer the access to documents that are protected by the attorney-client privilege or work product doctrine.

Key Holding:

The Appellate Court reviewed and affirmed a trial court’s confirmation of an arbitration Panel’s ruling that the access to records clause does not include access to privileged documents.  The relevant access to records clause of the Workmen’s Compensation and General Liability Excess of Loss Reinsurance Contracts states: “the Reinsurers or their duly appointed representatives shall at all reasonable times, have free access to all books and records of the Company and of its agents or attorneys for the purpose of obtaining any information concerning this reinsurance or the subject matter hereof.”   The Panel’s interpretation of Nationwide’s access to records clause and the subsequent trial court’s confirmation were both left undisturbed.

Key Takeaways:

In accordance with the access to records clause in the reinsurance contract, the insurer has sole discretion in determining the scope of access to privileged and confidential material.

*James D. Scrimgeour is an Executive Counsel at The Travelers Indemnity Company, where he specializes in reinsurance litigation and arbitration.