Ex parte State Farm Mut. Auto. Ins. Co.
| Decision Date | 09 May 1980 |
| Citation | 386 So.2d 1133 |
| Parties | Ex parte STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner. In re Howard JOHNSON, as Administrator of the Estate of Rether Johnson, Deceased, v. Nancy LYNCH, Tammie Ward, David Campbell, et al. 78-824. |
| Court | Alabama Supreme Court |
Fred W. Killion, Jr. and Patricia K. Olney, of Pillans, Reams, Tappan, Wood, Roberts & Vollmer, P. C., Mobile, for petitioner.
Joseph J. Boswell, Mobile, for respondents.
State Farm Insurance Company petitions for a writ of mandamus to Judge Elwood L. Hogan to review and reverse his order requiring it to turn over large portions of its investigative file to Howard Johnson, administrator of the estate of Rether Johnson, for his use in a wrongful death action against State Farm's insured. The writ is granted.
Howard Johnson, as administrator of the estate of Rether Johnson filed suit on September 6, 1977 against Nancy Lynch, Tammie Ward, and David Campbell in Mobile County Circuit Court for the wrongful death of Rether Johnson resulting from an accident on May 4. He alleged that automobiles driven by Lynch and Ward collided and ran into the parking lot of a 7-11 store where Johnson was struck and killed. At the time of the accident Ward was operating a car owned by David Campbell, who was insured by State Farm.
State Farm filed a declaratory judgment action seeking a declaration that Ward was not an insured under its policy. The wrongful death action was enjoined until the trial judge decided that Ward was an insured under the State Farm policy. State Farm then filed an answer on behalf of Ward.
Being the insurer of one of the vehicles involved in the accident, State Farm, through its claims specialist, Robert Burnett investigated it promptly. His office received the claim on May 6. Following in chronological order appear the documents prepared by him:
Date of Document
Prepared: Nature of Document
---------------- ------------------------------
May 10, 1977 Statement of Mrs. David
Campbell, Sr
May 10, 1977 Statement Of Mr. David
Campbell, Sr
May 10, 1977 Statement of Ms. Tammy Ward
May 10, 1977 Statement of Ms. Jackie Grant
May 11, 1977 Preliminary Report
May 12, 1977 Statement of Mr. David
Campbell, Sr.
May 16, 1977 Memo from Mr. Warren Harris
May 19, 1977 Statement of Mr. Herman
Bedwell
May 19, 1977 Statement of Mr. David
Campbell, Sr.
May 19, 1977 Office memorandum to Mr.
Warren Harris
May 20, 1977 Office memorandum from Mr.
Warren Harris
June 10, 1977 Office memorandum from Mr.
Warren Harris, including final
report on accident
June 13, 1977 Office memorandum to Mr.
Warren Harris
Subsequently, based on his interviews and research, Burnett submitted reports and inter-office memoranda to his supervisor, Warren C. Harris, evaluating the claims, discussing possible theories of liability, and settlement value. Harris replied, also by inter-office memoranda, giving his evaluation of the claims, possible liability, and his recommendation to Burnett, whether to settle or litigate.
During discovery, Johnson's lawyer served a subpoena on State Farm requesting production of the following documents under Rule 34, ARCP:
(a) All written or sound recorded statements in the possession, custody or control of State Farm which were taken from any person which in any way pertains to the accident made the basis of Civil Action No. CV-77-001206.
(b) All interoffice memorandums in the possession, custody or control of State Farm which in any way pertains to the accident referred to in paragraph (a) above.
(c) All written or recorded statements in the possession, custody or control of State Farm taken from any person which in any way pertains to the circumstances or occurrences, including all hearsay statements, which existed or took place prior to the defendant Tammie Lee Ward coming into possession of the automobile owned by David Campbell, which automobile Tammie Lee Ward was operating at the time of the accident referred to in paragraph (a) above.
(d) All correspondence or letter so every nature and description in the possession, custody or control of State Farm and its attorneys), which in any way pertains to any of the matters referred to above in paragraph (a)(b) and (c). (sic.)
(e) In general, all other documents, instruments, written or sound recorded statements taken from any person and things of every nature and description not hereinabove specified, in the possession, custody or control of State Farm which tends in any way to prove or disprove Tammie Lee Ward's contention that the defendant Tammie Lee Ward was not negligent as alleged in defendant Tammie Lee Ward's answer.
Paragraph (d) was later amended to correct a typographical omission and to read as follows:
All correspondence or letters of every nature and description in the possession, custody or control of State Farm (EXCEPT CORRESPONDENCE OR LETTERS BETWEEN STATE FARM AND ITS ATTORNEYS), which in any way pertains to any of the matters referred to above in paragraph (a) (b) and (c).
State Farm filed an objection to the subpoena and a motion for a protective order asserting the material sought (essentially their entire file) was prepared in anticipation of litigation and and could not be discovered under ARCP 26(b)(3) unless it was shown that Johnson had substantial need of it and was unable without undue hardship to obtain the substantial equivalent of the material by other means. They also argued that the request was an undue invasion of the mental impressions, conclusions, opinions, and legal theories of State Farm's attorneys and agents.
After a misunderstanding by State Farm on what the court had earlier ordered State Farm to do relating to the documents, the court allowed State Farm to orally refile its motion and objection to the subpoena and allowed Johnson to refile his Rule 34 motion. State Farm also filed affidavits from Harris and Burnett. After a hearing, on August 30, 1979, the trial judge denied State Farm's motion for a protective order and overruled its objection to the subpoena and granted Johnson's motion to compel production of documents. State Farm filed this petition for writ of mandamus and a motion for stay. We granted the petition, ordered the trial judge to file an answer, and granted the motion to stay.
The trial judge, in his answer, denied that his order compelled State Farm to turn over its entire investigative file to Johnson's lawyer. Additionally, he denied that the materials described in the subpoena were prepared in anticipation of litigation, for trial by or for any party, or for State Farm's attorney.
We are asked to decide whether a party's insurer may be required by an adverse party pursuant to ARCP 34 to produce statements (other than that of the requesting party), office memoranda, evaluation reports and other materials prepared by the insurer after the claim arose but before a suit is filed against the insured, when the requesting party makes no showing of substantial need of the materials or that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
ARCP 26(b)(1) provides the general scope of discovery, and ARCP 26(b)(3) further defines the requirements that must be met to discover trial preparation materials:
(3) Trial Preparation: Material. Subject to the provisions of subdivision (b) (4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that ...
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