Gary Sornborger vs. Jenette Kempkes

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Tentative Decision:

Plaintiff/Cross-Defendant Gary Sornborger and Cross-Defendant Debbie Sornborger’s Motion Contesting Claim of Privilege.

Initially, the Court declines to rule on Plaintiff/Cross-Defendant Gary Sornborger and Cross-Defendant Debbie Sornborger’s evidentiary objections. No proposed order has been submitted in violation of California Rules of Court rule 3.1345(c).

Plaintiff/Cross-Defendant Gary Sornborger and Cross-Defendant Debbie Sornborger’s Motion Contesting Claim of Privilege is GRANTED. Defendants/Cross-Complainants Jeannette Kempkes and Michael Kempkes have not sustained their burden of proof regarding that the materials at issue are privileged. Thus, on this ground alone the motion can be granted.

202200570578CUOR: Gary Sornborger vs. Jenette Kempkes

Regardless, even had the burden of proof shifted, the moving party has made a very persuasive argument that any privilege has been waived.

“[A] report or other communication made by an insured to his liability insurance Company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorneys, and the communication is intended for the information or assistance of the attorney and so defending him.” (Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424, 427)

Here, Plaintiff has not established that the email at issue falls within the attorney client privilege. As noted in the moving papers, “In her deposition, Ms. Kempkes described Anil as “my insurance agent,” not a claim representative. Insurance Code §§ 31 and 1621 both define an “insurance agent” as “a person authorized, by and on behalf of an insurer, to transact all classes of insurance other than life, disability, or health insurance, on behalf of an admitted insurance company.” Case law strictly limits an insurance agent’s scope of authority and liability to the use of reasonable care, diligence, and judgment in procuring the insurance requested by a client.

Hartford Casualty Ins. Co. v. Fireman’s Fund Ins. Co. (N.D. Cal. 2016) 220 F.Supp.3d 1008, 1017. Anil was a salesman of Farmers insurance products, not an adjustor, investigator, or claims representative. Ms. Kempkes’ communications with him were not privileged.”

Defendants have produced no evidence that show that the Feb 3 email and/or the subsequent phone conversation, was intended to be sent to an insurance claim representative for the purpose of defending Defendant against a claim. As correctly noted in the reply, “Defendants offer virtually no evidence to support their privilege claim, Ms. Kempkes and her counsel both offer testimony about Anil’s job without personal knowledge, but there is no declaration from Anil. Nor is there any declaration from Mr. Koletsky explaining why he allowed his client to testify and produce purportedly privileged documents, which Defendants now assert was obviously privileged.” Thus, the burden has not shifted to Plaintiff and the motion can be denied. Even had the burden shifted, the motion would still be properly denied as Plaintiff has made a very compelling argument regarding waiver.

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