Flores v. Fourth Court of Appeals

• Citation: 777 S.W.2d 38
• Decision Date: 28 June 1989
• Docket Number: No. C-7815,C-7815
• Parties: George FLORES, Relator, v. The FOURTH COURT OF APPEALS, Respondent.
• Court: Supreme Court of Texas

Page 38

777 S.W.2d 38

George FLORES, Relator, v. The FOURTH COURT OF APPEALS, Respondent.

No. C-7815.

Supreme Court of Texas.

June 28, 1989.

Rehearing Denied Oct. 11, 1989.

Roy D. Quillian, III, Susan Stone, San Antonio, for relator.

Charles S. Frigerio, Hector X. Saenz, San Antonio, for respondent.

MAUZY, Justice.

At issue in this mandamus proceeding is whether the trial court in the underlying workers' compensation case abused its discretion by ordering the production of an investigative report prepared after notice of injury was filed with the Industrial Accident Board but before an appeal to a district court. The Court of Appeals for the Fourth District of Texas held that the trial court abused its discretion and that the information obtained in the post-accident investigation was privileged under rule 166b(3)(d) of the Texas Rules of Civil Procedure. The court of appeals directed the trial court to vacate its order. 751 S.W.2d 551. Relator George Flores seeks mandamus from this court directing the court of appeals to vacate its order. Because we hold that the trial court did not abuse its discretion, we conditionally grant the writ of mandamus.

In the underlying action, Flores filed a workers' compensation suit against the City of San Antonio, which is selfinsured. As part of his pretrial discovery, he propounded a set of interrogatories and requests for production of documents to the City. The City objected to two interrogatories and a request for production that sought discovery of any investigations conducted by or on behalf of the City after Flores' injury. The City asserted that such investigations were privileged under rule 166b(3)(d). Flores filed a motion to compel answers to the interrogatories and request for production, and the City responded by filing a motion for protective order.

The judge of the 73rd District Court of Bexar County conducted a hearing on both motions which included an in camera inspection of the documents and testimony from George Vasill, a claims supervisor employed by an independent adjusting firm hired by the City. Vasill had become involved in the case after Flores filed his claim for compensation with the Industrial Accident Board. After investigating Flores' claim, he filed a prehearing report.

The trial judge granted Flores' motion to compel and ordered that the prehearing report prepared by Vasill be produced. The City petitioned the Fourth Court of Appeals for a writ of mandamus which was conditionally granted. Flores now seeks a writ of mandamus in this court contending that the court of appeals abused its discretion by granting the City's writ and ordering the trial court to vacate its order.

Rule 166b(3)(d) sets out the party communications privilege. ¹ At the heart of the controversy is the language in the rule which states that a communication is privileged if it is prepared "in anticipation of the prosecution or defense of the claims made a part of the pending litigation." Tex.R.Civ.P. 166b(3)(d). The City claims that the report prepared by Vasill is privileged because it was prepared in anticipation of litigation.

The City, as the party resisting discovery, has the burden of producing evidence to establish the privilege. McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72 (Tex.1989); Turbodyne Corp. v. Heard, 720 S.W.2d 802, 804 (Tex.1986); Giffin v. Smith, 688 S.W.2d 112, 114 (Tex.1985). The City can only invoke the privilege if Vasill prepared the report after there was good cause to believe suit would be filed or after the institution of a lawsuit. Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801, 802 (Tex.1986); Allen v. Humphreys, 559 S.W.2d 798, 802 (Tex.1977).

The first inquiry is whether filing a notice of claim for workers' compensation commences litigation. The City contends that when a worker files a claim for compensation with the Industrial Accident Board litigation has commenced. The court of appeals agreed, and accordingly held that litigation commenced when Flores filed his claim for compensation, and that the report subsequently prepared was privileged. 751 S.W.2d at 554.

The court of appeals also held that the terms "litigation," "suit," and "lawsuit," as used in rule 166b(3)(d), encompassed proceedings before the Industrial Accident Board and thus extended the definition of litigation to include proceedings before an administrative agency having quasi-judicial powers and employing quasi-judicial procedures. ² Id. We cannot sanction this expansive definition. Therefore, we hold that the term "litigation" refers only to court proceedings, which in this case commenced when Flores filed suit in the district court. ³ Other states have recognized that a proceeding before workers' compensation agencies does not constitute litigation. Bearns v. Department of Indus., Labor & Human Relations, 102 Wis.2d 70, 306 N.W.2d 22 (1981) (litigation refers only to proceedings after the filing of a petition in district court); Kochinsky v. Independent Pier Co., 157 Pa.Super. 15, 41 A.2d 409 (1945) (proceedings before the workers' compensation agency are not litigation).

Based upon the theory that in State v. Thomas, 766 S.W.2d 217 (Tex.1989), we elevated a "contested case" before a utility rate agency to the level of an action "in the courts," the dissent concludes that proceedings before the Industrial Accident Board constitute litigation. This analysis is severely flawed. Unlike the Public Utility Commission, the Industrial Accident Board is not an agency which determines "contested cases" within the meaning of the Administrative Procedure and Texas Register Act. Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 3(1) (Vernon Supp.1989).

Our holding, that proceedings before the Industrial Accident Board do not constitute litigation, does not conflict with our holding in Thomas. Thomas did not address discovery or when litigation commences, but concerned the issue of whether the attorney general could intervene in utility rate cases before the Public Utility Commission.

Judicial review of a workers' compensation case is vastly different from a utility rate case. A workers' compensation claim differs from other matters considered by administrative agencies because the Industrial Accident Board is a "way station" a party must pass through to reach the trial court. Either party, including the City as a self-insured entity, can appeal the board's award and demand a trial by jury.

A party or intervenor appealing from an adverse decision of the Public Utility Commission is only entitled to a review under the substantial evidence rule. It may not remake the record at the trial court level and cannot contest issues of fact found by the Commission. Tex.Rev.Civ.Stat.Ann. art. 1446c, § 69 (Vernon Supp.1989); Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19 (Vernon Supp.1989); see Railroad Comm'n v. Entex, Inc., 599 S.W.2d 292 (Tex.1980). In contrast, a party appealing an Industrial Accident Board award is not bound by the record made at the agency level and can make a new record at the trial court level, where the jury determines contested issues of fact. Tex.Rev.Civ.Stat.Ann. art. 8307, § 5 (Vernon Supp.1989).

Since we have concluded that litigation did not commence when Flores' filed his notice of claim, the next inquiry is whether the report was prepared in anticipation of litigation. Determining whether there is good cause to believe a suit will be filed, so that an investigation is done in anticipation of litigation, requires a two-prong analysis. The first prong requires an objective examination of the facts surrounding the investigation. Consideration should be given to outward manifestations which indicate litigation is imminent. The second prong utilizes a subjective approach. Did the party opposing discovery have a good faith belief that litigation would ensue? There cannot be good cause to believe a suit will be filed unless elements of both prongs are present. Looking at the totality of the circumstances surrounding the investigation, the trial court must then determine if the investigation was done in anticipation of litigation. Unless there is an abuse of discretion, the trial court's ruling should not be disturbed.

In the present case, the report was printed on a standard form and contained the following information: (1) whether there was a question of coverage, claimant's employment, compensable injury, whether the injury occurred in the course and scope of employment; (2) the average weekly wage on the date of the accident; (3) amount of temporary total disability paid claimant; (4) any advance payments; (5) whether the claim had been previously heard at a prehearing conference; (6) summary of medical findings; (7) whether claimant had returned to work; (8) calculations of the claimant's injuries; (9) current indemnity reserves; (10) attorney for the claimant; and (11) claims examiner.

During the hearing on the City's motion for protective order, Vasill testified that it was usual and customary to prepare such a report and that this was done in every case that was set for a prehearing conference. Other than his own conclusion that litigation would ensue, he observed no outward manifestation of litigation until he received the notice of intention to appeal. Flores' counsel stated he sought only statements that dealt with the facts of the case and that he was not interested in any evaluations made by Vasill or the indemnity reserves. The City made no specific attempt to protect the indemnity reserves from disclosure.

From the circumstances surrounding its preparation, this report was clearly prepared in the usual and customary course of business. Vasill's subjective conclusion that Flores would file suit was unsupported by any objective indications that litigation was imminent; in fact, Vasill himself testified there were no outward manifestations of litigation.

We have previously recognized that "[t]he discretion exercised by a trial...