United States Fid. & Guar. Co. v Excess Cas. Reins. Assn.

United States Fid. & Guar. Co. v Excess Cas. Reins. Assn. 2009 NY Slip Op 09076 [68 AD3d 481] December 8, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

United States Fidelity & Guaranty Company et al., Respondents,
v
Excess Casualty Reinsurance Association et al., Appellants, et al., Defendants.

—[*1] Quinn Emanuel Urquhart Oliver & Hedges, LLP, New York (Michael B. Carlinsky of counsel), for appellants.

Simpson Thacher & Bartlett LLP, New York (Mary Kay Vyskocil of counsel), for respondents.

Orders, Supreme Court, New York County (Richard B. Lowe, III, J.), entered October 21, 2008, January 9, 2009 and January 23, 2009, which, inter alia, denied defendants-appellants' (reinsurers) motion to compel plaintiff (cedant) to disclose attorney-client communications, unanimously affirmed, with costs.

Our prior decision in American Re-Insurance Co. v United States Fid. & Guar. Co. (40 AD3d 486, 492-493 [2007]) held that cedant's waiver of the attorney-client privilege was limited to communications between its officer, James Kleinberg, and Robert Omrod, the in-house lawyer whose advice Kleinberg disclosed at his examination before trial, regarding preparation of cedant's reinsurance bill. Our citation to Kirschner v Klemons (2001 WL 1346008, 2001 US Dist LEXIS 17863 [SD NY 2001]) ought to have made it clear that, based on cedant's representation that it did not intend to use "advice of counsel" as a defense, our finding of waiver did not extend to cedant's communications with any other attorneys concerning this subject matter. In view of cedant's concession, however, that it will not raise the "advice of counsel" defense and make any reference to attorney-client communications by cedant at the trial, we agree that the court should [*2]not permit cedant to raise this defense to reinsurers' claims, or refer to any such communications. Concur—Tom, J.P., Nardelli, Renwick, Freedman and Roman, JJ.