South Dakota Supreme Court

Timothy Andrews, Plaintiff and Appellee v. Ridco, Inc., Defendant, and Twin City Fire Insurance Co., Defendant And…

April 29, 2015863 N.W.2d 540

Summary

The South Dakota Supreme Court reversed the circuit court’s blanket finding that Twin City had impliedly waived the attorney‑client privilege and remanded for further findings. The Court held that a waiver requires a showing that the insurer injected advice of counsel into the litigation and that an in‑camera review is required before deciding waiver. It also instructed the lower court to apply the most‑significant‑relationship test to determine the applicable state law for the other claim files.

Holding

  • Whether the circuit court erred in holding that Twin City impliedly waived the attorney‑client privilege for the Andrews and the 199 “other” claim file notes.. The circuit court’s finding of implied waiver was erroneous; the Court reverses and remands for findings on whether Twin City injected, by an affirmative act, its reliance on counsel’s advice into the litigation.
  • Whether the circuit court erred in holding that Twin City impliedly waived the privilege without conducting an in‑camera inspection of the claim file notes.. The circuit court abused its discretion by failing to conduct an in‑camera review before deciding waiver; an in‑camera review is required.
  • Whether the circuit court must analyze waiver of the privilege under the respective state law where each of the 199 “other” claim files arose.. The circuit court must apply the most‑significant‑relationship test and the law of the state with the most significant relationship to each claim file when evaluating privilege waiver.

Docket 26891

Cited authorities

  • Rule 502(b)
  • Rule 502(b)
  • Rule 502(b)

Cited by

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