The court denied the insurer's motion to compel seeking communications between the insured, its attorney and the insured's  broker. M&C Holdings Del. P'ship v. Great Am. Ins. Co., 2021 U.S. Dist. LEXIS 186358 (S.D. Ohio Sept. 29, 2021). 

    The insured's employee siphoned off commission payments to fictitious recipients. Great American had issued a crime insurance policy to the insured. The insured, through its broker, Aon, notified Great American about the potential loss under the crime policy. Aon also provided Great American with a proof of loss form in the amount of $1,954,329. Great American denied coverage for large portions of the claim.

    The insured sued and Great American sought communications that Aon had with the insured's legal counsel. Aon and the insured had entered an agreement whereby Aon would act as an independent contractor and not an agent of the insured. Aon helped the insured submit its claim because the insured lacked a dedicated staff capable of pursuing the claim and advocating for coverage. 

    Opposing the motion to compel, Aon submitted a declaration. An Aon employee often participated in communications with the insured's employees and lawyers to assist the lawyers in their efforts to provide legal services regarding the claim. 

  The insured argued that these communications were protected under the privilege by the necessary intermediary doctrine. Various courts had held that brokers were considered to be "insiders" with the insured parties for purposes of the insured party's attorney-client privilege.

    The court noted that the majority of the withheld documents were created after Aon and the insured entered into their agreement for the purpose of assisting the insured with the claim. After review the documents in camera, the court was satisfied that the communications were made to assist counsel in providing legal advice and strategy to the insured.  Accordingly, the motion to compel was denied.