By bringing a breach of contract action, alleging the defendant did not fairly and appropriately allocate coverage, the plaintiffs waived work product immunity of their counsel.

The plaintiffs sued for breach of contract of a directors and officers insurance policy to indemnify the cost of defense fees, as well as judgment or settlement amounts. The plaintiffs alleged the defendant did not make a fair and appropriate allocation of coverage. The policy requires that both parties weigh the legal and financial exposures and benefits of defending lawsuits when making an allocation. Thus, the reasoning and opinions of plaintiffs' attorneys were very relevant to what a fair allocation would be, and their work product immunity was waived.

Case Law Alert - 4th Qtr 2011