Ex Parte Meadowbrook Ins. Group, Inc.

• Decision Date: 21 December 2007
• Docket Number: 1061493.,1061592.
• Citation: 987 So.2d 540
• Court: Alabama Supreme Court
• Parties: EX PARTE MEADOWBROOK INSURANCE GROUP, INC. (In re Charles H. Andrews v. Meadowbrook Insurance Group, Inc., et al.) Ex parte Francis Powell Enterprises, Inc. (In re Charles H. Andrews v. Meadowbrook Insurance Group, Inc., et al.)

987 So.2d 540

EX PARTE MEADOWBROOK INSURANCE GROUP, INC.

(In re Charles H. Andrews v. Meadowbrook Insurance Group, Inc., et al.)

Ex parte Francis Powell Enterprises, Inc.

(In re Charles H. Andrews v. Meadowbrook Insurance Group, Inc., et al.)

1061493.

1061592.

Supreme Court of Alabama.

December 21, 2007.

Tom Burgess of Buress & Hale, L.L.C., Birmingham, for petitioner Meadowbrook Insurance Group, Inc.

William E. Pipkin, Jr., of Austill, Lewis & Pipkin, P.C., Mobile, for petitioner Francis Powell Enterprises, Inc.

Thomas H. Benton, Jr., of McFadden, Lyon & Rouse, LLC, Mobile; and Joseph C. McCorquodale III, Jackson, for respondent.

WOODALL, Justice.

In the current action by Charles H. Andrews against Francis Powell Enterprises, Inc. ("Francis Powell"), and Meadowbrook Insurance Group, Inc. ("Meadowbrook"), alleging the tort of outrage, Meadowbrook and Francis Powell (hereinafter collectively referred to as "the petitioners") petition this Court for writs of mandamus directing the Clarke Circuit Court to vacate its order compelling the petitioners to produce documents from the claims file of Meadowbrook and from the litigation file of William E. Pipkin, Jr., the petitioners' attorney, which files were originated in regard to Andrews's earlier worker's compensation action against his employer, Francis Powell. We deny the petitions.

I. Factual Background

The factual allegations of this dispute as of June 23, 2005, when Andrews sued the petitioners alleging the tort of outrage, are set out in the complaint:

"2. [Meadowbrook] is a Michigan corporation doing business in the state of Alabama that provides risk management services. In that regard, Meadowbrook administers, manages, and provides claim services to the Alabama Forest Production Industry Worker's Compensation Fund, which provides worker's compensation coverage to [Francis Powell].

". . . .

"5. On or about November 3, 2003, [Andrews] was severely and permanently injured by an on-the-job accident while working for [Francis Powell] as a truck driver....

"6. Following his ... accident injuring his back and left leg, [Andrews] received medical treatment from numerous doctors, which included surgery.... [From] the date of his injury and up until May 31, 2005, Meadowbrook ... paid [Andrews] weekly temporary total disability benefits based on an average weekly wage of $704.65.

"7. One of the physicians who provided medical treatment to [Andrews] is Dr. Edward Schnitzer, a physical medicine and rehabilitation physician. On May 14, 2004, Dr. Schnitzer released [Andrews] to return to light duty to work with restrictions. At that time, Dr. Schnitzer also referred [Andrews] to see Dr. J. Patrick Couch, a pain specialist, who [Andrews] began seeing soon after his release from Dr. Schnitzer. [Andrews] is currently being treated by Dr. Couch.

"8. [Andrews] filed a worker's compensation lawsuit against [Francis Powell] on April 30, 2004.

"9. On or about May 25, 2004, [Andrews] attempted to return to work at [Francis Powell], but was told that the company had no light duty work for him to perform. Thereafter, Meadowbrook continued to pay [Andrews's] temporary total disability benefits.

"10. Since being released by Dr. Schnitzer in May 2004, [Andrews's] medical condition has continued to deteriorate. [He] continues to suffer from severe pain, has no feeling in his leg below his knee and is being treated for fecal incontinence by Dr. Keith Lloyd in Birmingham. Dr. Couch is treating [Andrews] as his primary physician and is of the opinion that [he] is not able to return to work....

"11. On or about April 15, 2005, Denise Arnold, on behalf of ... Meadowbrook, sent a medical questionnaire to Dr. Schnitzer, who had not treated [Andrews] for over one year, requesting information as to whether [Andrews] had reached maximum medical improvement and inquiring as to any work restrictions. Denise Arnold knew at the time that [Andrews's] primary treating physician was Dr. Couch, not Dr. Schnitzer. Dr. Schnitzer responded stating that [Andrews] had reached maximum medical improvement on May 14, 2004, could return to light duty and listed his restrictions....

"12. After receiving a response from Dr. Schnitzer dated May 16, 2005, William Pipkin ..., [Francis Powell's] legal counsel hired by Meadowbrook to defend [Andrews's] ... worker's compensation lawsuit, sent Bryan Duhé, Andrews's counsel in the worker's compensation lawsuit, a letter dated May 31, 2005, stating that [Andrews's] temporary total disability benefits were no longer being provided because Dr. Schnitzer had determined that [Andrews] had `reached maximum medical improvement....' Pipkin also requested a settlement demand from [Andrews].[¹]

"13. Immediately after receiving the letter, Mr. Duhé contacted Mr. Pipkin and informed him that Dr. Schnitzer had not treated [Andrews] for over a year and that Dr. Couch was [Andrews's] primary treating physician, that Dr. Couch was still treating [Andrews], that Dr. Couch had not released [Andrews] to return to work, and that [Andrews] had not reached maximum medical improvement according to Dr. Couch. Pipkin responded that Meadowbrook had made its decision as to how it was handling the matter; it wanted to settle [Andrews's] worker's compensation claim and was not going to continue temporary total disability benefits."

(Emphasis added.)

The complaint alleged that Francis Powell and Meadowbrook "refuse[d] [Andrews] temporary total disability benefits in an effort to coerce [him] into a settlement of his worker's compensation claim." According to the complaint, Francis Powell and Meadowbrook "committed the tort of outrage by engaging in an unlawful mental and financial assault on [Andrews] with the intent to cause [him] severe emotional distress." (Emphasis added.) Andrews sought compensatory and punitive damages.

Andrews served Meadowbrook with a copy of the complaint, which was accompanied by interrogatories and a request for production of documents. One interrogatory requested "the name, address and position of employment of each and every person involved in the decision to terminate [Andrews's] temporary total disability benefits in May 2005." Andrews also requested the "entire claims file relating to [Andrews's] worker's compensation claim including, but not limited to, medical records, medical bills, checks, correspondence, notes, memorandums, adjuster's notes, e-mail transmissions, all notes or entries made on any and every computer, claim notes or any other documents."

In November 2005, Meadowbrook objected to the production of its worker's compensation file, stating:

"[Meadowbrook] objects to the production of `your entire claims file relating to [Andrews's] worker's compensation claim ...' Said file contains confidential and privileged documents and communications between [Meadowbrook] and its attorneys. The claims file also contains notations of mental impressions and confidential notations made in anticipation and furtherance [of] litigation. All such documents and notations are privileged."

In response to the interrogatory, Meadowbrook named Pipkin as one of two persons who were "involved in the decision to terminate [Andrews's] temporary total disability benefits in May 2005."

Andrews's counsel sent Meadowbrook's counsel the following letter, dated November 4, 2005:

"Thank you for responses to [Andrews's] interrogatories and requests for production. As you and I discussed yesterday, it is [Andrews's] position that we are entitled to all correspondence and e-mails exchanged between Meadowbrook and Bill Pipkin since Meadowbrook is using advice of counsel as partial defense. Please let me know if you are firm in this position so that I can file a Motion to Compel to let the judge decide the matter."

(Emphasis added.) According to Andrews, Meadowbrook did not respond to the inquiry regarding its intent to rely on the advice of counsel as a defense.

At that time, Andrews also served Pipkin with a subpoena seeking "[a]ny and all documents contained in [his] file pertaining to [Andrews's worker's compensation case], including, but not limited to, correspondence, notes, memorandums, e-mail transmissions, phone records, medical records and summaries, reports, or any other documents." On November 18, 2005, Andrews filed a motion to compel Meadowbrook to produce its claims file. By correspondence dated that same day from Andrews's counsel to Meadowbrook's counsel, Andrews requested a list, as contemplated by Ala. R. Civ. P. 26(b)(5), identifying all materials that were being withheld under a claim of privilege ("the privilege log"). On December 28, 2005, the trial court granted Andrews's motion. On January 9, 2006, Meadowbrook filed a "Motion for Reconsideration of Motion to Compel and for Protective Order."

In February or March 2006, Francis Powell filed a motion to quash the subpoena to Pipkin. On April 26, 2006, after hearing oral argument, the trial court granted Meadowbrook's relief and stayed all pending production motions until the worker's compensation litigation was concluded. A final judgment was entered in that case on February 6, 2007.

Subsequently, on March 13, 2007, Andrews filed another motion, seeking an order compelling Meadowbrook to produce its claims file and compelling Pipkin to produce Francis Powell's litigation file. On April 26, 2007, the trial court scheduled oral argument on the second motion to compel for June 25, 2007. However, on May 8, 2007, the trial judge granted the motion to compel and ordered compliance within 30 days.

On May 16, 2007, Meadowbrook filed a motion for reconsideration "reassert[ing]" the arguments it "presented in its Motion for Reconsideration of Motion to Compel and for Protective Order, filed ... January 9, 2006, and in response to [Andrews's] first Motion to Compel." Similarly, on May 22, 2007, Pipkin filed a "Renewed Objection to Alias Civil Subpoena for Production of Documents, Motion to Quash...