Breech v. Turner

• Decision Date: 14 April 1998
• Docket Number: No. 97CA2517,97CA2517
• Citation: 127 Ohio App.3d 243,712 N.E.2d 776
• Parties: BREECH, Appellant, v. TURNER, Appellee.
• Court: Ohio Court of Appeals

Page 243

127 Ohio App.3d 243

712 N.E.2d 776

BREECH, Appellant, v. TURNER, Appellee.

No. 97CA2517.

Court of Appeals of Ohio Fourth District, Scioto County.

Decided April 14, 1998.

Margaret Apel Miller, Portsmouth, for appellant.

Daniel P. Ruggiero, Portsmouth, for appellee.

HARSHA, Judge.

Virgil Breech appeals a judgment of the Scioto County Court of Common Pleas entered upon a jury verdict in favor of Jack Turner. Appellant has also appealed the trial court's denial of his motion for a new trial.

Appellant assigns the following three errors for our review:

"I. The trial court committed reversible error in overruling appellant's motion to compel certain documents from the insurance adjusters' file, inasmuch as said information tended to impeach the testimony of appellee.

"II. The trial court committed reversible error in (A) excluding the testimony of James Cookson and Melanie Smith, independent insurance adjusters for appellee's liability insurance company, (B) excluding from evidence a document entitled 'Activity Log' obtained by appellant during the course of discovery from appellee's insurance adjuster, (C) excluding from evidence all evidence of prior inconsistent statements made by appellee, and (D) excluding all evidence of liability insurance, inasmuch as said testimony and evidence was relevant to the issue of ownership and as a basis to impeach appellee.

"III. The trial court committed reversible error in overruling appellant's motion for a new trial."

According to appellant, on March 6, 1994, he was driving a brown Ford Thunderbird on State Route 104 in Scioto County, Ohio when he encountered a black and white cow standing on the highway. Appellant swerved into the other lane in order to miss the cow, but an oncoming truck forced him back into his own lane where he immediately encountered a different cow, this one being red and white, also on the highway. Due to the oncoming truck, appellant was unable to maneuver around this second cow and he "sideswiped" it.

Appellant immediately pulled to the side of the road in order to determine whose cow he had struck. The person at the first house he approached stated that his only cow was secured in the barn. Appellant then thought the cows might have belonged to appellee, so he proceeded to appellee's house a short distance away. Appellant testified that after telling appellee that he might have struck one of his cows, they walked back to appellee's barn. According to appellant, there was a black and white and a red and white cow standing in front of the barn's gate. After allegedly telling appellant, "My kids must have left the gate open," appellee opened the gate and the two cows walked into the barnyard.

On the other hand, appellee's recollection about that night's events differed substantially from appellant's testimony. First, appellee testified that appellant was driving a white car, possibly a Chevrolet Cavalier, and not a brown Thunderbird. Second, appellee stated that when the two of them walked back to his barn, there were no cows standing outside of the fence. And, finally, appellee denied telling appellant that anyone had left the gate open.

Appellant filed a complaint alleging that he suffered permanent personal injuries as a proximate result of appellee's negligence in permitting his cows to run on the highway. Appellee denied that any of his cows were on the highway or at large on the night in question. When this matter proceeded to trial, the jury returned a defense verdict. Appellant filed a motion for a new trial, which appellee opposed. When the trial court denied his motion, appellant filed a timely notice of appeal from both the jury verdict and the denial of his motion.

I

Appellant contends in his first assignment of error that the trial court improperly denied his motion to compel discovery. The record reflects that Grange Mutual Casualty Company, appellee's liability insurer, contracted with GAB Business Services, Inc. ("GAB") to conduct an investigation into the incident. James Cookson, an adjuster with GAB, telephoned appellee as part of his investigation. Following his conversation with appellee, Cookson made the following entry in the activity log of GAB's claims file: "C/insd discussed did see calf but questions damages." ¹ Appellant also learned that approximately twelve days after Cookson spoke with appellee on the telephone, Cookson sent a report to Grange that stated, "Your insured's cow got loose * * *." Appellant's counsel got to see this report only briefly and was not provided with a copy of it.

Appellant later filed a motion to compel discovery, in which he moved the trial court "to order Ms. [Melanie] Smith to produce any documents which may reflect communications of any sort with Mr. Turner, specifically any report in which Mr. Cookson or anyone else renders Mr. Turner's words to writing, summarizes Mr. Turner's words or describes the conversation in which Mr. Cookson interviewed Mr. Turner to learn the facts of the claim."

Appellee responded with a motion in limine to prohibit appellant from asking any questions about the GAB claims file that Smith and Cookson had produced as agents of Grange. According to appellee, GAB's claims file is not discoverable due to both the work-product doctrine and the attorney-client privilege. After additional arguments in chambers prior to trial, the trial court made the following ruling:

"Let me first say, that the first statement, it's a written note by Cookson and it says, patient [sic ] saw cows and questions liability, is not, to me is not a real clear statement of what's said. I'm going to not allow the Plaintiff to call Cookson or introduce any evidence about the file, for the reasons I have mentioned here today.

"* * *

"Yes, I think you can call Turner on cross-examination and question him about the cows and that sort of thing, but I don't think you can then call Cookson or Smith as representatives of the insurance company as to things that were in the file as to statements being made by him, because if I do, any time you have the Defendant take the stand, can you then call the adjuster to say, 'Well, did he tell you this?' or 'Did he tell you that?', and I just think we open the flood gates that way. I think you can talk to Turner and use your client to say where the cows were and who owned cows, and your client can say he let him back in his gate and those were the only cows there and that sort of thing, but I don't think you can use Cookson.

"Let me also say that the statement that Cookson has is not real clear in itself."

On appeal, appellant contends that the GAB's claims file documents he requested pertained directly to a primary issue of the litigation, i.e., the ownership of the cow. Since the documents were prepared in the normal course of GAB's business under contract with Grange, appellant argues that the documents are discoverable pursuant to Civ.R. 26(B)(1). ² Appellant also rejects appellee's argument that the documents are protected by either the work-product doctrine or the attorney-client privilege. In the alternative, however, appellant argues that even if the documents are protected by either theory, they are still discoverable under the "good cause" exception of Civ.R. 26(B)(3). ³

The management of discovery lies within the sound discretion of the trial court. State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 63 O.O.2d 88, 295 N.E.2d 659, paragraph one of the syllabus; Karmasu v. Bendolph (Feb. 21, 1996), Scioto App. No. 95CA2370, unreported, 1996 WL 79660. An appellate court reviews a trial court's ruling on a matter of discovery for an abuse of discretion. Daggett, supra, at 58, 63 O.O.2d at 90, 295 N.E.2d at 661; Glick v. Marler (1992), 82 Ohio App.3d 752, 758, 613 N.E.2d 254, 258-259; Smith v. Klein (1985), 23 Ohio App.3d 146, 151, 23 OBR 387, 392-393, 492 N.E.2d 852, 858-859. An abuse of discretion connotes an attitude on the part of the trial court that is arbitrary, unreasonable, or unconscionable. Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506, 589 N.E.2d 24, 30-31. Moreover, when applying this standard of review, an appellate court may not freely substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181, 1184-1185.

Generally, a party may obtain discovery regarding any unprivileged matter that is relevant to the pending litigation. Civ.R. 26(B)(1). One method of obtaining discoverable material is to compel the production of documents from a person who is not a party to the action pursuant to Civ.R. 34(C) (production of documents) and Civ.R. 45 (subpoena). However, Civ.R. 45(F) expressly provides that this rule shall not be construed as authorizing a party to obtain information that is protected by any privilege authorized by law.

In the landmark case of In re Klemann (1936), 132 Ohio St. 187, 7 O.O. 273, 5 N.E.2d 492, the plaintiff was injured when his car was struck by an automobile driven by the defendant on behalf of his employer. The driver completed a casualty report, which he gave to his employer, who forwarded the report to a local insurance agency, which then forwarded the original report to the insurance company and a copy of the report to the insurance company's attorney who was representing the employer. When the plaintiff later sought production of the casualty report, the defendants claimed that the report was privileged and therefore was not discoverable. The Supreme Court held:

"Where an insurer receives a report from its insured concerning a casualty covered by its policy of insurance, such report becomes the property of the insurer and subject to its complete control; and, when the insurer transmits it to its counsel for the purpose of preparing a defense against a possible law suit growing out of such casualty, such report constitutes a communication from client to attorney and is...