PIP insurer’s IME is privileged in later suit
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The Court of Appeals affirmed. It held that the IME doctor’s testimony was work product acquired, prepared, or developed "in anticipation of litigation" under CR 26 and Heidebrink. In Heidebrink, the Washington Supreme Court had held that a liability insurance adjuster’s recorded statements of its insured two days after the accident were taken in anticipation of litigation and therefore privileged work product.

The Drake court reasoned that the privilege protected "information given" by a PIP insured to a PIP insurer just as much as it protected information given in the taped statements in Heidebrink. To support its reasoning, the Court compared the two situations and noted that in each, (1) the insured is "contractually obligated" to give the information, (2) the insured expects the information "to be held in confidence," and (3) the insured’s failure to provide the information results in the insured being "hampered in reaping the benefits" of the insurance.

The Harris court rejected the reasoning of a contrary decision by Division Three of the Court of Appeals, Johnson v. McCay, 77 Wn. App. 603, 893 P.2d 641 (1995). In that case, the claimant, Johnson, was a passenger in the insured vehicle. The Johnson court considered Heidebrink and concluded that when Johnson sought PIP benefits, the purpose of any PIP IME was merely to evaluate whether further PIP benefits should be paid to Johnson, and not in anticipation of the litigation between Johnson and McCay. The Harris court disagreed, however, holding that the PIP IME was subject to work-product protection in PIP litigation and other proceedings thereafter.

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