Opinion
April 23, 1965
Heffner, Block Gerstein for plaintiff.
Henry H. Abrams and Alan Jay Martin for defendant.
Motion for a protective order modifying or vacating a notice of discovery and inspection is denied. This is an action by an insured under its policy against the insurer for damages resulting from sprinkler leakage.
The defendant disputed the circumstances of the loss, the extent of the damage and has set up an affirmative defense of misrepresentation. After the loss occurred defendant retained a fire adjuster and a property damage expert to examine the claimed damages. They prepared reports, on the basis of which the defense of misrepresentation was interposed. The plaintiff is seeking to discover these reports. They are material and necessary to the prosecution or defense of this action. They do not come within the privilege of a work product of an attorney and did not become matter prepared for litigation by being turned over to an attorney and incorporated in his files. Nor were these the reports of experts retained to testify at a trial. They were hired to ascertain and adjust a loss. Finally, in the case of Kandel v. Tocher ( 22 A.D.2d 513) which allowed a protective order vacating a notice of discovery and inspection of reports, statements and other papers given by an insured to his carrier, the court stated that the case concerned automobile liability insurance which was simply litigation insurance. However, at page 518 the court stated: "The situation, of course, is quite different with respect to other than liability insurance." Therefore on all the circumstances, the plaintiff should be entitled to discovery and inspection of the reports involved.