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The Resulting Smoke Obscured The Vision Of Passing Drivers And Caused A Chain Reaction Collision








Heidebrink v. Moriwaki28 is Washington's leading case on when work product is acquired, prepared, or developed 'in anticipation of litigation.'  It directs that we answer that question by examining 'the specific parties involved and the expectations of those parties. In Heidebrink, the Supreme Court described its view of the parties and their expectations when, after an accident, a liability insured gives information to a liability insurer.  On March 15, 1982, Moriwaki was
burning grain stubble in a field adjacent to the highway.  The resulting smoke obscured the vision of passing drivers and caused a chain reaction collision.  A driver, Heidebrink, was injured.  Two days later, on March 17, 1982, Moriwaki gave a tape-recorded statement to an adjuster employed by his liability carrier.  As far as the opinion shows, neither Moriwaki nor Heidebrink had yet decided to litigate, or even contacted an attorney. Several months later, Heidebrink sued Moriwaki for her personal injuries.

In the discovery phase of the case, she requested a copy of Moriwaki's statement to his liability carrier.  Moriwaki and his carrier refused, claiming work product.  Sustaining that refusal, the Supreme Court ruled that when a liability insured gives his or her liability insurer a statement after an accident, the statement is prepared 'in anticipation of litigation' even though no one has yet decided to litigate or even contacted an attorney.  The court reasoned (1) that insureds are
contractually obligated to provide such statements, and thus that they expect their carriers to hold such statements in confidence; (2) that insureds expect their carriers to forward such statements to counsel when counsel is obtained; (3) that insureds will be hesitant to reveal their knowledge to their insurers unless their statements are protected; and (4)
that insureds will bear the burdens of insurance without reaping its benefits unless their statements are protected.30
Heidebrink's reasoning applies as much to information given by a PIP insured to a PIP insurer (either directly or through the PIP insurer's medical expert) as to information given by a liability insured to a liability insurer (or the liability insurer's representative). 

Just as a liability insured is contractually obligated to provide accident information by giving a written or recorded statement at the liability insurer's request, a PIP insured is contractually obligated to provide
medical information by submitting to a independent medical examination at the PIP insurer's request.  Just as a liability insured expects his or her accident information to be held in confidence, a PIP insured expects his or
her medical information to be held in confidence.  (Indeed, a PIP insured may expect his or her medical condition to be held more confidentially than a liability insured's accident information.)  Just as a liability insured will be hesitant to reveal accident information that is not protected from disclosure to the tortfeasor, a PIP insured will be hesitant to reveal
medical information that is not protected from disclosure to the tortfeasor.  Just as a liability insured will be hampered from reaping the benefits of liability insurance unless accident information is protected, a PIP insured will be hampered from reaping the benefits of PIP insurance unless medical information is protected.  Accordingly, we hold that
information given by a PIP insured to a PIP insurer (or the PIP insurer's medical examiner) under the circumstances present here is given in anticipation of PIP litigation or PIP arbitration within the meaning of CR 26(b)(4) and 26(b)(5), and that such information is entitled to the same degree of work product protection as information given by a liability
insured to a liability insurer in anticipation of third-party tort litigation.  It would be inconsistent and unfair to hold that a PIP insured (usually a plaintiff in later tort litigation) does not act in anticipation of a PIP dispute when he or she gives information to a PIP medical examiner seven months after an accident, while at the same time holding, as
Heidebrink requires, that a liability insured (usually a defendant in later tort litigation) does act in anticipation of third-party litigation when he or she gives information to a liability insurance adjuster only two days after an accident.
In this case, USAA retained Dr. Bede to verify or refute Harris' PIP claims.  On November 26, 1996, Dr. Bede acquired information from Harris by examining him, then used that information to prepare and develop opinions
concerning Harris' condition.  Given Heidebrink's holding that a liability insurer was acting in anticipation of tort litigation only two days after the accident, USAA and Dr. Bede were certainly acting in anticipation of PIP litigation or PIP arbitration more than seven months after the accident.  Accordingly, we hold that the work product privilege initially
attached to the information that Dr. Bede acquired, and to the opinions that he thereafter prepared and developed.

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