2022 Ohio 1062
Ohio Ct. App.2022Background
- Scott Fetzer (Delaware company headquartered in Ohio) was identified as a potentially responsible party for EPA hazardous-waste sites in Michigan; Fetzer seeks coverage and defense from Travelers based on alleged Aetna general-liability policies from the 1960s that Travelers disputes exist.
- Fetzer sued Travelers for declaratory relief on coverage and, if coverage exists, for breach of contract and insurer bad faith; the trial court bifurcated coverage and bad-faith claims but allowed bad-faith discovery to proceed.
- Fetzer moved to compel production of claims-file materials and other documents relating to Travelers’ handling of the claim; the trial court conducted an in camera review and ordered production of certain documents (some unredacted, some redacted, some withheld) and directed a privilege log.
- The trial court applied Ohio substantive law to the bad-faith discovery dispute after concluding the bad-faith claim sounds in tort and Ohio has the most significant relationship under Restatement (Second) of Conflict of Laws §145/§6.
- Travelers appealed only the discovery/choice-of-law ruling, arguing another state’s law should control and that the ordered documents are protected by attorney-client and work-product privileges.
- The appellate court affirmed: it held the bad-faith claim is a tort, applied Ohio law, found Boone and R.C. 2317.02(A)(2) govern discoverability of claims-file attorney communications, and concluded Travelers failed to preserve a meaningful challenge to the in camera disclosures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Proper choice-of-law for bad-faith discovery | Fetzer: Ohio law applies (Fetzer headquartered in Ohio; injury felt at plaintiff HQ) | Travelers: Michigan, Indiana, or Connecticut law should apply (sites, Aetna HQ, or Travelers HQ) | Bad-faith claim is a tort; under Restatement §145/§6 Ohio has the most significant relationship and Ohio law governs discovery |
| 2) Whether attorney-client / work-product communications in claims file must be produced | Fetzer: Boone permits discovery of claims-file attorney communications relevant to bad-faith issues; in camera review and disclosure appropriate | Travelers: All challenged documents are privileged and need not be produced | Boone (as codified/modified by R.C. 2317.02(A)(2)) controls; trial court properly ordered production/redactions after in camera review; Travelers failed to identify specific documents or provide them for appellate review, so order affirmed |
Key Cases Cited
- Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272 (1983) (insurer bad faith gives rise to a tort claim)
- Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209 (2001) (insured entitled to discover claims-file attorney communications on coverage issues created prior to denial)
- Ohayon v. Safeco Ins. Co., 91 Ohio St.3d 474 (2001) (choice-of-law analysis requires classification of claim as tort or contract)
- Dombrowski v. WellPoint, Inc., 119 Ohio St.3d 506 (2008) (insurer bad faith is actionable tort)
- Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638 (1994) (attorney files may sometimes be treated differently in discovery)
- Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161 (2010) (attorney-client testimonial privilege protects communications in discovery)
- Bausman v. Am. Family Ins. Group, 60 N.E.3d 772 (Ohio App. 2016) (distinguishes insurer claim file from attorney file for privilege issues)