Selby v. O’Dea

Insurer filed subrogation claims against 4 persons who then sued insurer and its attorney for fraud, abuse of process, conspiracy to commit abuse of process, and malicious prosecution. Insurer "injected" into the litigation a factual issue that its attorney never told it about any problems with service of process on those 4 subrogation suits. Insurer filed motion for summary judgment on which it carried the burden of persuasion, and it voluntarily relied on privileged communications to win that motion. Thus, the implied-waiver doctrine applies. Insurer cannot deny Plaintiffs access to proof of its denial of allegations in their complaint.Plaintiffs' repeated Rule 191 discovery requests and deposition requests were meritorious and sought relevant information. Insurer waived its attorney-client communications by expressly describing them and by placing them affirmatively at issue in their attempt to seek summary judgment via its claim manager's affidavit; waiver is limited to that affidavit. (McBRIDE and HOWSE, concurring.)