Extending Work Product Protection – By Statute

Extending Work Product Protection – By Statute

Work product protections often involve a narrow scope in the underlying policies of CR 26(b)(4) (allowing broad discovery while maintaining certain restraints on bad faith, irrelevant, and privileged inquiries).  Statements made by an insured to an insurer following an accident, in light of parties and expectations of the parties, fall under work product protection. In Barriga Figueroa v. Prieto Mariscal, — P.3d —-, 2019 WL 2220288 (2019), the Supreme Court of Washington held work product protections apply where the insured has gained the status of insured by statute, rather than by contract.


On October 30, 2013, Defendant Consuelo Prieto Mariscal (“Defendant”) was driving her van with her daughter. She approached a pickup truck and a van on the side of the road. As she passed the pickup truck, she heard a noise and felt her van jump a little. Upon investigation, she found a little boy, Brayan, seriously hurt, laying on the ground. Defendant’s daughter called 911.

The responding police officer interviewed only Defendant and her daughter. Both told the officer they did not see how the accident happened. The officer wrote in his report, “when the bicyclist pulled into the roadway the rider was struck on the left…[the] front tire then drove over the child’s right front leg.” However, Brayan’s most detailed version of the incident included his shoelace becoming stuck in his spokes and his right leg being run over when he leaned over to untangle the shoelace.

Plaintiff Monica Diaz Barriga Figueroa (Plaintiff), a monolingual Spanish speaker, visited a law firm three weeks after the accident for help. A monolingual English speaking legal assistant had Plaintiff sign a blank personal injury protection (PIP) application form. The PIP form was later filled out by the legal assistant, who used the police report for factual information.

In addition to seeking PIP coverage, Plaintiff sued Defendant on Brayan’s behalf. The significant difference between Brayan’s testimony and the PIP application became the central issue at trial. Defendant’s counsel referenced the PIP application over the objection of Plaintiff’s counsel. Outside of the jury, Plaintiff’s counsel again objected to the PIP application being used during the trial. The court ruled the PIP application would be allowed.

Thereafter, Defendant’s counsel used the PIP application extensively to cross-examine Plaintiff and Plaintiff’s accident reconstructionist. The jury returned a defense verdict. The Court of Appeals reversed and the Washington Supreme Court granted review.


The State of Washington has required all insurers to offer PIP coverage to all automobile policyholders since 1993. PIP benefits are available without proof of fault and provide an immediate source of payment for out-of-pocket expenses. A pedestrian injured by an automobile is statutorily defined as “insured.” As such, Brayan was insured under Defendant’s PIP coverage. By making the PIP claim on Defendant’s insurance company, the insurance company is also the pedestrian’s insurer. The court held an insurer owes a pedestrian PIP insured the same quasi-fiduciary duties it owes a named insured who purchases the policy.

With the PIP relationship to Brayan established, the Court agreed with the Court of Appeals and found the PIP application was protected work product. When the insured is a policyholder, the Court has held work product protections apply. Here, the insurance relationship exists as a matter of statute, not contract, because the specific parties are in a quasi-fiduciary relationship. As such, Defendant may reasonably expect her insurer to give equal consideration to her interests as its own and has an expectation of confidentiality in the forms she submits.

The Washington Supreme Court has previously held there was a “reasonable expectation that the contents of statements made by the insured will not be revealed to the opposing party.” Heidebrink v. Moriwaki, 104 Wn.2d 392, 396, 706 P.2d 212 (1985). The court concluded the better approach is to look to the specific parties involved and the expectations of those parties. Here, the court emphasized the dual (adversarial) relationship between Plaintiff and Brayan and their insurer. Plaintiff plainly signed the form in anticipation of litigation, in a lawyer’s office, with assistance from the law firm ultimately suing Defendant. Since the statements were made in anticipation of litigation, the Court held work product protections do apply.

Due to the extensive use of the PIP application during trial, the Court found the trial court erroneously admitted the PIP application and the admission prejudiced Plaintiff. The Court affirmed the Court of Appeals and remanded for a new trial.

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