Brakhage v. Graff
| Citation | 190 Neb. 53,206 N.W.2d 45 |
| Decision Date | 06 April 1973 |
| Docket Number | No. 38581,38581 |
| Parties | George BRAKHAGE, as father and next friend of Craig Brakhage, his son, a minor, Appellant, v. Kathryn GRAFF and Larry Graff, Appellees. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
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 attorney, and the communication is intended for the information or assistance of the attorney in so defending him.
Nelson, Harding, Marchetti, Leonard & Tate, Kenneth Cobb, Richard H. Williams, Lincoln, for appellant.
Healey, Healey, Brown & Burchard, Lincoln, for appellees.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
This was an action for damages arising out of an automobile accident. Craig Brakhage, who was 13 years old and will be referred to as the plaintiff, was riding his bicycle upon State Highway No. 4 in Plymouth, Nebraska, when he was struck by an automobile operated by Kathryn Graff, who will be referred to as the defendant. The action was brought by Craig's father, George Brakhage, as next friend. Larry Graff is the husband of Kathryn Graff and was the owner of the automobile.
The jury returned a verdict for the defendants. The plaintiff appeals. The assignments of error relate to the ruling on two motions to produce and the instructions to the jury.
The accident happened at about 12:35 p.m., on July 5, 1968. The weather was clear and the highway way dry. Highway No. 4 is a 2-lane highway, approximately 55 feet wide, and is surfaced with blacktop. The highway runs east and west and is straight and level as it goes through Plymouth. The posted speed limit is 40 miles per hour.
The defendant testified that as she entered Plymouth from the west, her speed was below 40 miles per hour. She saw the plaintiff riding his bicycle east on the highway some distance away. As she approached, the plaintiff turned around and looked directly at her. She reduced the speed of her automobile and turned gradually to the left intending to pass the bicycle in the north land of the highway. The bicycle was then close to the south edge of the south lane. As she started to pass the bicycle, it turned to the left directly in front of her. She applied her brakes but the right front corner of the automobile struck the left side of the bicycle near the rear axle of the bicycle. The point of impact was on or near the centerline of the highway. The plaintiff was thrown from the bicycle and was badly injured.
The defendant's automobile stopped with the right rear wheel on or near the centerline and the left front wheel approximately 6 feet from the north edge of the pavement. The bicycle was from 6 to 9 feet in front of the automobile and the plaintiff was lying on the pavement from 6 to 8 feet in front of the bicycle.
The plaintiff's automobile left skid marks 24 feet long. The mark made by the right wheels commenced in the right lane and ended near the centerline. The mark made by the left wheels was entirely in the north lane. The damage to the bicycle indicated that the impact occurred while the automobile was braking. Based upon the skid marks, the speed of the defendant's automobile was estimated to be about 21 miles per hour at the beginning of the skid marks.
The plaintiff has no recollection of how the accident happened. There were no eyewitnesses to the accident other than the defendant.
At the time of the accident the defendant was insured against liability of the State Farm Mutual Automobile Insurance Company. The policy provided that the company would defend suits against the insured with attorneys selected and compensated by the company and make such investigation of claims and suits as it deemed expedient.
On July 8, 1968, Jon Grenseman, a field claims representative of the insurance company, interviewed the defendant and obtained a longhand statement signed by her. On approximately August 5, 1969, defense attorneys were employed by the insurance company in regard to this claim. On September 19, 1968, a second statement was obtained from the defendant.
On or before July 24, 1968, the plaintiff's father employed counsel in regard to the claim. This action was commenced on July 29, 1969. The defendant's deposition was taken by the plaintiff on February 10, 1970. The defendant stated, by affidavit, that she had never been contacted by any representative of the plaintiff.
On March 13, 1970, and again on February 7, 1972, the plaintiff filed motions for an order requiring the defendants to produce for inspection and copying 'a statement' taken from the defendant. Both motions were overruled. These rulings are assigned as error.
Upon motion of any party showing good cause therefor the court may order the production of any document 'not privileged.' Section 25--1267.39, R.R.S.1943. Although the right to a discovery order depends upon a showing of good cause and to some extent is within the discretion of the trial court, in deciding the issue in this case we consider only the question of privilege.
Although there is authority to the contrary, the weight of authority appears to support the rule that a statement by an insured to his liability insurer is privileged. 'According to the weight of authority, 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 attorney, and the communication is intended for the information or assistance of the attorney in so defending him.' Annotation, 22 A.L.R.2d 659. See also, Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709, 339 P.2d 567; Travelers Indemnity Co. v. Cochrane, 155...
To continue reading
Request your trial
-
Schipp v. General Motors Corp.
...reasons for the privilege as exist when the communication is directly between the client and attorney ....")); Brakhage v. Graff, 190 Neb. 53, 206 N.W.2d 45, 47-48 (1973); Pfender v. Torres, 336 N.J.Super. 379, 765 A.2d 208, 213 (2001); Kandel v. Tocher, 22 A.D.2d 513, 256 N.Y.S.2d 898, 902......
-
State ex rel. Cain v. Barker
...was clothed with the attorney-client privilege while in control of the insurer.' A similar result was reached in Brakhage v. Graff, 190 Neb. 53, 206 N.W.2d 45 (1973), wherein plaintiff in a personal injury action sought by motion to require defendants to produce for inspection and copying a......
-
Heidebrink v. Moriwaki
...ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo.1976) adopted the same conclusion on the basis of People v. Ryan, supra, Brakhage v. Graff, 190 Neb. 53, 206 N.W.2d 45 (1973), and Hollien v. Kaye, 194 Misc. 821, 87 N.Y.S.2d 782, 785 (1949), from which the Missouri court's reasoning was similar to ......
-
Richey v. Chappell
...15; Asbury v. Beerbower (1979), Ky., 589 S.W.2d 216; State ex rel Cain v. Barker (1979), Mo.Ct.App., 540 S.W.2d 50; Brakhage v. Graff (1973), 190 Neb. 53, 206 N.W.2d 45; State v. Kociolek (1957), 23 N.J. 400, 129 A.2d 417; Puckett v. Broome (1964), 53 Tenn.App. 663, 385 S.W.2d 762; see also......
-
Looking to the Millennium: will the tripartite relationship survive?
...531 P.2d 632, 634 (Colo. 1975), overruled on other grounds, Kay Labs. Inc. v. Dist. Court, 653 P.2d 721 (Colo. 1982); Brakhage v. Graft, 206 N.W.2d 45 (Neb. 1973); Kandel v. Tocher, 256 N.Y.S.2d 898 (App.Div. 1st Dep't 1965): People v. Ryan, 197 N.E.2d 15 (Ill. 1964); Gene Compton's Corp. v......