IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEE ARTERS t/a GREENDALE BUILDERS : CIVIL ACTION

:

v. :

:

ZURICH AMERICAN INSURANCE CO. t/a :

ZURICH NORTH AMERICA as successor :

in interest to ASSURANCE CO. OF :

AMERICA, et al. : NO. 02-4388

MEMORANDUM AND ORDER

Fullam, Sr. J. July , 2003

Discovery dispute. Plaintiff seeks to compel

production of documents which the defendant asserts are subject

to work-product and attorney-client privileges. I conclude that

these privilege objections were asserted in a timely fashion

(since the time for response to plaintiff’s discovery requests

had been extended until March 17, 2003, the date on which the

objections were filed), and that nothing in defendant’s pleadings

gives rise to a waiver of the attorney-client privilege. It is

therefore appropriate to address the merits of defendant’s

objections. 

The defendant refused to defend or indemnify its

insured, the plaintiff, in a state-court lawsuit brought by a

young man who was injured while performing carpentry work at the

behest of plaintiff, who is himself a building contractor. The

insurance policy issued by the defendant was a general liability

Case 2:02-cv-04388-JF Document 17 Filed 07/08/2003 Page 1 of 4
2

policy, and specifically excluded coverage for injuries to

employees or worker’s compensation claims. The defendant has

taken, and maintained, the position that the injured party was an

employee of the plaintiff at the time of the accident. The

state-court complaint charges plaintiff with having been

negligent for having violated “federal, state and local laws,

rules and regulations governing the employment of minors ...

and/or employment of minors when utilizing dangerous power tools

and machinery.” Plaintiff contends that the injured party was

not an employee, but an independent contractor. (It is

apparently undisputed that the injured person was a teen-aged,

high school student, paid at an hourly rate on a weekly basis). 

Since plaintiff is asserting that the defendant’s

decision not to defend or indemnify was made in bad faith,

plaintiff is entitled to discover those parts of the defendant’s

claim file pertaining to its decision not to provide a defense to

the state-court action, as distinguished from its defense of the

present lawsuit. In this context, this distinction is

necessarily somewhat blurred. The defendant has submitted all of

the withheld documents to this Court for in-camera review, and

has provided plaintiff’s counsel with redacted versions of the

documents. I have carefully reviewed all of the un-redacted

documents, and have reached the following conclusions:

(1) All of the documents are entirely consistent with 

Case 2:02-cv-04388-JF Document 17 Filed 07/08/2003 Page 2 of 4
3

the legal position repeatedly expressed by the defendant, and

well known to plaintiff, namely, that the injured party was an

employee of the plaintiff, and that it would be appropriate to

deny coverage; 

(2) There is nothing in any of the withheld documents

which would be of significant assistance to the plaintiff in this

action;

(3) On the other hand, disclosure of the documents to

plaintiff’s counsel seems quite unlikely to prejudice the

defendant in any way. 

In short, I conclude that plaintiff is not entitled to

compel production of any of the withheld documents, but the

defendant’s action in withholding production seems rather silly. 

Much ado about nothing. 

An Order follows.

Case 2:02-cv-04388-JF Document 17 Filed 07/08/2003 Page 3 of 4
4

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEE ARTERS t/a GREENDALE BUILDERS : CIVIL ACTION

:

v. :

:

ZURICH AMERICAN INSURANCE CO. t/a :

ZURICH NORTH AMERICA as successor :

in interest to ASSURANCE CO. OF :

AMERICA, et al. : NO. 02-4388

ORDER

AND NOW, this day of July 2003, upon

consideration of plaintiff’s second motion to compel production

of documents and defendant’s response, IT IS HEREBY ORDERED:

That plaintiff’s motion is DENIED.

 

John P. Fullam, Sr. J.

Case 2:02-cv-04388-JF Document 17 Filed 07/08/2003 Page 4 of 4