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AETNA CAS. & SUR. CO. v. NATIONWIDE MUT. INS. CO.

September 28, 1989

AETNA CASUALTY & SURETY CO., RODGER W. ROBARE and PATRICIA ROBARE, Co-Administrators of the Estate of RODGER C. ROBARE, deceased, and HERBERT McCLAIN and MARY ANN McCLAIN, Co-Administrators of the Estate of the Estate of STEPHEN McCLAIN, deceased, Plaintiffs
v.
NATIONWIDE MUTUAL INSURANCE CO., Defendants



The opinion of the court was delivered by: SMITH

 D. BROOKS SMITH, UNITED STATES DISTRICT JUDGE

 In the early morning hours of August 1, 1981, Donna Marie Pekarcik killed Rodger Robare and Stephen McClain by negligently driving a 1979 Dodge Ramcharger into the 1972 Pinto which Robare was driving and in which McClain was a passenger. Nationwide Mutual Insurance Company insured the Ramcharger pursuant to a policy which listed as named insureds the holder of the title of the 1979 Dodge, John Nigro, and his wife Virginia Nigro. Nationwide denied coverage to Pekarcik on the grounds that she was not a permitted user of the vehicle and was therefore not insured. Pekarcik was the girlfriend of Nicholas Nigro, the Nigros' son. Nicholas had asked Pekarcik to move the vehicle from a driveway at a party that Nicholas and Pekarcik were attending. Pekarcik did so, but then took the vehicle to a nearby bar. On her return trip, she struck the Pinto head-on.

 Substantial judgments in a tort action were obtained against Pekarcik, but not against the Nigros, by the administrators of the estates of Robare and McClain. In this matter, Aetna seeks to recover from Nationwide amounts it paid to the Robare and McClain estates under its uninsured motorists coverage for the Robare vehicle. The administrators of the Robare and McClain estates seek a judgment against Nationwide in excess of Nationwide's policy limits for its alleged bad faith refusal to defend and indemnify Donna Pekarcik.

 Before the Court at this time are several pretrial motions. We dispose of the motions to compel discovery. We deny Nationwide's and Aetna's motions for summary judgment, deny by the slimmest of margins Nationwide's motion for partial summary judgment, and grant the motion to bifurcate.

 The leading case in this Circuit summarizing the applicable privileges, the Pennsylvania attorney-client privilege, 42 Pa.C.S. § 5928, and the federal work product privilege, Fed.R.Civ.P. 26(b)(3), is United Coal Companies v. Powell Construction Company, 839 F.2d 958 (3d Cir.1988). We rule on the disputed discovery requests in accordance with the Court's instructions in that case. Because no party requested it, we do not hold an in camera inspection of the documents sought by plaintiffs.

 Plaintiffs seek in their Motion to Compel, Paragraphs 1-3, production of two memos prepared on August 3, 1987, and August 6, 1987, by McCandless, discussing the instant bad faith litigation, and sent to his superiors at Nationwide. If the memos had been prepared in the underlying tort action, they would unquestionably be discoverable. However, the record, McCandless deposition, 19, clearly indicates that the memos were McCandless' legal analysis of the bad faith action. They are protected under the attorney-client confidential communications privilege.

 Plaintiffs seek, in Paragraphs 4-5, binders prepared by Nationwide for use in its in-house seminars on claims handling procedures in 1986. The information contained in those binders is not relevant to the alleged bad faith denial of coverage to Pekarcik in 1981-1982. However, the attorney for Nationwide agreed to produce them. (McCandless depo., 42). We order its production, therefore.

 Plaintiffs' Paragraphs 6, 13, and 14 are moot.

 Plaintiffs' requests in Paragraphs 7-11 are denied as insufficiently definite to allow the Court to rule on particular documents.

 Plaintiffs' Paragraph 12, seeking Nationwide's information regarding reserves was apparently provided at the deposition of Gerald Dugan. (Dugan depo. 4-5)

 Plaintiffs seek, in paragraph 17, disclosure of conversations between Nationwide's in-house attorneys and its retained counsel relative to this litigation. (Flynn depo. 7-10) We cannot tell what the question is, other than its general nature, which appears to call for a disclosure of privileged attorney-client conversations. United Coal Companies, 839 F.2d 958, 965. We deny the request.

 Plaintiffs' Paragraphs 18-25 ask, in different ways, for Flynn to give legal opinions to plaintiffs. Paragraph 18, for example (Flynn depo. 38-40), seeks Flynn's opinion of the decision to deny coverage made in the underlying case by Nationwide's attorney Thomas Meloy. Paragraph 19 asks for an admission that Nationwide assumed Pekarcik's defense, a position consistently repudiated by Nationwide. Paragraph 20 seeks information about the extent of the legal research which Flynn may have undertaken in connection, not with the underlying tort action (for which it would be relevant), but with this litigation. Paragraphs 21-25 ask for legal opinions from Flynn, or documents containing his legal opinions regarding coverage for Pekarcik. Flynn, who had no contact with the underlying tort action (Flynn depo. 13), cannot be called upon by plaintiffs to render legal opinions as plaintiffs' expert. Nor are plaintiffs' ...


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