Tips to Avoid the Implied Waiver of the Attorney-Client Privilege in Arizona Insurance Bad Faith Cases
Although Arizona law regarding the implied waiver of the attorney-client privilege (the “Privilege”) is far from certain, an Insurer may avoid a waiver by following these tips:
- An Insurer should consider whether to defend a bad faith claim solely on objective reasonableness.
- An Insurer should avoid, if possible, asserting its actions were subjectively reasonable based on its adjuster’s evaluation of the law, especially when the evaluation is informed by counsel.
- An Insurer should not allow counsel to direct claim handling.
- An Insurer should instruct its adjusters that outside counsel’s advice is simply a consideration and the Insurer’s ultimate positions—whether a coverage determination, settlement offer, etc.—are not dependent reliant upon outside counsel’s advice.
- If an Insurer wants counsel to analyze the subjective or objective reasonableness of its actions, then an Insurer should perform its own analysis and reach its own conclusions first, and then obtain counsel’s analysis.
- An Insurer should argue, if possible, that an Insured has alternative avenues of attempting to prove the alleged bad faith.
- If an Insurer believes that whether it impliedly waived the Privilege is a close call, then it should litigate in state court rather than federal court.
- If an Insurer believes that implied waiver of the Privilege may be an issue, then it should communicate with its counsel on the phone rather than in writing.
 See Nguyen v. Am. Commerce Ins. Co., 2014 WL 1381384 *5 (Ariz.App. Apr. 8, 2014) (Memorandum Decision (Insurer did not impliedly waive the Privilege, in part, because the Insurer defended solely on objective reasonableness).
 See State Farm v. Lee, 199 Ariz. 52, 57, 13 P.3d 1169, 1174 (2000) (En Banc); Nguyen, 2014 WL 1381384 *5 (Insurer did not impliedly waive the Privilege, in part, because the Insurer never took the position that “its subjective view of the law was reasonable ([much less that its] subjective view necessarily incorporated advice from its counsel.”); Ingram v. Great Am. Ins. Co., 112 F.Supp. 3d 934, 939 (D.Ariz. 2015) (Insurer impliedly waived privilege where it denied workers compensation claim after Insurer’s subjective evaluation of the law).
 See Mendoza v. McDonald’s Corp., 222 Ariz. 139, 153-54, 213 P.3d 288, 303-04 (App. 2009) (Insurer impliedly waived the privilege, in part, because substantial evidence indicated the Insurer’s attorneys directed the Insurer’s adjusters to: (a) force the Insured to jump through needless adversarial hoops (numerous IMEs with “good doctors”); (b) take positions without a reasonable basis (the Insurer asserted the Insured’s injury was not work-related at a hearing, despite the adjuster’s belief the injury was work-related and it would be bad faith to assert otherwise); and (c) delayed the claim (“relied on counsel's advice in delaying surgical authorization through the end of her involvement with the claim…”).
 See Lee, 199 Ariz. at 66, 13 P.3d at 1183 (“We assume client and counsel will confer in every case, trading information for advice. This does not waive the privilege.”) (“We assume most if not all actions taken will be based on counsel’s advice. This does not waive the privilege.”); Safety Dynamics, Inc. v. Gen. Star Indem. Co., 2013 WL 11299209 at *3, 4 (D. Ariz. Aug. 8, 2013) (Order) (Insurer did not impliedly waive the Privilege, despite an adjuster’s testimony that he relied on advice of counsel to issue a denial letter, in part, because Lee noted that “client and counsel confer[ing]” does not waive the privilege, so the deposition testimony was “insufficient by itself to waive the privilege”); Roehrs v. Minnesota Life Ins. Co., 228 F.R.D. 642, 646-647 (D. Ariz. 2005) (Order) (Insurer impliedly waived the Privilege because the adjusters affirmatively injected attorney-client communications into the litigation by testifying at their depositions that “they each considered and relied upon, among other things, the legal opinions or legal investigation [of in-house counsel] in denying” the claims) (emphasis added); but see Safety Dynamics Inc. v. Gen. Star Indem. Co., 2014 WL 268653 at *1 (D. Ariz. Jan. 24, 2014) (Order) (Roehrs is not precedent, distinguished Roehrs, and declined to follow Roehrs);
 See Nguyen, 2014 WL 1381384 *5 (Insurer did not impliedly waive the Privilege, in part, because the Insurer merely consulted counsel to evaluate the objective reasonableness of its position); Everest Indem. Ins. Co. v. Rea, 236 Ariz. 503, 504, 342 P.3d 417, 418 (App. 2015) (Insurer did not impliedly waive the Privilege despite asserting its actions were subjectively reasonable and admitting it consulted with counsel regarding the subject settlement agreement) (“Lee expressly held that the assertion of a subjective good faith defense coupled with consultation with counsel did not, without more, waive the attorney-client privilege.”); Safety Dynamics Inc. v. Gen. Star Indem. Co., 2014 WL 11281283 at *3, 4 (D. Ariz. Apr. 3, 2014) (“Based on counsel’s advice, the client will always have a subjective evaluations of its claims and defenses. This does not waive the privilege.”).
 See Lee, 199 Ariz. at 56, 13 P.3d at 1173 (stating the third criteria of the implied waiver test, i.e. a litigant impliedly waives the Privilege if, “(3) application of the privilege would have denied the opposing party access to information vital to his defense.”); Empire West Title Agency, L.L.C. v. Talamante ex rel. Cty. of Maricopa, 234 Ariz. 497, 500, 323 P.3d 1148, 1151 (2014) (an implied waiver should not be found unless the party seeking the attorney-client communications demonstrates there are not “other means of obtaining information about what [a litigant] knew or should have known…”) (even if the Purchaser’s state of mind was at issue, the Title Agent did not “demonstrate that denying it access to the requested communications would undermine its defense” because it had “other means of obtaining information about what [the Purchaser] knew or should have known regarding the easement’s purported abandonment.”); Mt. Hawley Ins. Co. v. Slayton ex rel. Cty. of Coconino, 2013 WL 708535 (Ariz.App. Feb. 26, 2013) (Memorandum Decision) (held GC Insurer did not impliedly waive the Privilege, in part, because the Sub Insurer had reasonable alternatives to seeking privileged communications to prove its case, such as retaining an expert to testify the GC Insurer did not act reasonably in defending and settling the underlying action).
 Of the thirteen cases—both published and unpublished—considered for this article, only two of the seven Arizona state court cases found an implied-waiver of the Privilege, but five of the six Arizona federal cases found an implied waiver.
 See City of Glendale v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 2013 WL 1797308 at *6, 7 (D. Ariz. Apr. 29, 2013) (Order) (Insurer’s waiver extended only to “counsel’s advice that was contained in the adjuster’s notes in the claims file”).
About the Author: Nathan D. Meyer is a Partner at the Phoenix law firm of Jaburg Wilk. One of his specialties is insurance coverage and bad faith. Nate advises and represents insurance clients in coverage, bad faith, contribution and liability matters.