Mark A. Simon
Lazar v. Riggs, 79 P.3d 106, (Colo. 2003)
Mr. Simon has practiced personal injury law in the highest State Court possible, the Colorado Supreme Court. Not only did Mr. Simon practice and win at the Colorado Supreme Court level, he also set extremely important precedent in the scope of disclosure requirements for insurance companies. Mr. Simon completed these achievements not for personal recognition, but because they were the only way to ensure that his client, Ms. Judy Lazar, received the compensation that she deserved.
Ms. Lazar’s injury resulted from an automobile accident caused by Patrick Riggs, for failure to exercise reasonable care. Mr. Riggs was further cited at the accident for driving under the influence of alcohol, driving with excessive alcohol content, and careless driving.
After Ms. Lazar brought suit nine months later, Mr. Riggs admitted during his discovery the existence of a recorded statement in the possession of his insurance company. However, Mr. Riggs objected and refused to produce the document through a claim of protection of the document as work produced in anticipation of litigation. Without specified reasoning, hearings, or findings of fact, the District Court denied Mr. Simon’s motion to obtain the document and held that the written statement was in anticipation of litigation (even though it was taken roughly nine months before the suit commenced).
Mr. Simon, concerned with the injustice of the district court decision and current controlling law, petitioned for a review of the district court’s interlocutory decision to refuse to compel the disclosure of the statement. The Supreme Court of Colorado (the Court) granted review.
The Court reviewed the standards of Rule 26 which differentiates materials prepared in anticipation for litigation, which are not required to be disclosed, from materials prepared in the course of ordinary business, which must be disclosed. The Court further explained that a substantial part of an insurance companies business is to investigate accidents, it is presumed that the investigations are done in the course of ordinary business, and not in anticipation for litigation. Therefore, the Court opined that insurance companies hold the burden of demonstrating that the document was prepared to defend the specific claim which has already arisen.
After a discussion of other relevant legal standards of insurance companies, such as their duty to investigate and defend claims under their own policy and the potential to third party claims, the Court decided Ms. Lazar’s case. The Court concluded that the statement taken by the insurance company was taken well before the lawsuit initiated, so it was not possible that it had been produced in anticipation for litigation. The Court remanded the case to district court with instructions to disclose Mr. Riggs statement.
This case is a clear illustration of the experience and will of Mr. Simon to serve his clients. The District Court ruling in Ms. Lazar’s situation was unjust, so Mr. Simon took the problem to court with a power great enough to change the unjust ruling.