Medical Malpractice Insurance v. Employers Insurance of Wausau

As noted in Medical Malpractice Ins. Assn. v Employers Ins. (121 AD2d 236), in which the codefendant Argonaut Insurance Company was the appellant, plaintiff Calvelli, a medical doctor, was defended in a malpractice action by plaintiff Medical Malpractice Insurance Association (MMIA), which thereafter commenced a declaratory judgment action for indemnification against the defendants Employers Insurance of Wausau (Wausau) and Argonaut Insurance Company (Argonaut). As pertinent to the instant appeal, MMIA moved for an order directing Wausau’s employee George Schueren to produce for inspection "all memorandums and writings addressed to anyone pertaining to the Vandenberg/ Covington action [the underlying malpractice action against Dr. Calvelli].” Special Term granted the motion, and also granted Wausau limited protective relief from which an appeal was not taken. Wausau claims, as it did before Special Term, that the materials it was ordered to produce include correspondence and memoranda between Wausau and independent counsel whom Wausau and Argonaut had retained to monitor the underlying malpractice action, in preparation for defending the instant declaratory judgment action brought by MMIA for indemnification. (Cf. Firemen’s Ins. Co. v Gray, 41 AD2d 863.) Upon reargument, we reverse Special Term’s order to the extent appealed from, and remand to the Supreme Court for 505 an in camera inspection of the documents to determine whether they relate to Wausau’s preparation for the instant litigation and, subsequent to such in camera inspection, reconsideration of plaintiffs’ motion. Concur — Kupferman, J. P., Sandler, Carro, Lynch and Kassal, JJ.