Gene Compton's Corp. v. Superior Court In and For City and County of San Francisco

• Decision Date: 02 July 1962
• Citation: 23 Cal.Rptr. 250,205 Cal.App.2d 365
• Court: California Court of Appeals Court of Appeals
• Parties: GENE COMPTON'S CORP., Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent, Alma QUINN, Real Party in Interest. Civ. 20560.

Page 250

23 Cal.Rptr. 250

205 Cal.App.2d 365

GENE COMPTON'S CORP., Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent Alma QUINN, Real Party in Interest.

Civ. 20560.

District Court of Appeal, First District, Division 1, California.

July 2, 1962.

Severson, Zang, Werson, Berke & Larson, R. Bruce Hughes, San Francisco, for petitioner.

John R. Golden, San Francisco, for real party in interest.

BRAY, Presiding Justice.

Petition for writ of prohibition, mandate or other appropriate relief.

QUESTIONS PRESENTED.

1. Is showing of 'good cause' an issue here? No.

2. Is a report and statements of employees concerning an accident on the employer's premises sent, pursuant to the terms of an insurance policy, to the employer's insurance carrier, privileged? Yes.

3. Was the purpose for which the statements were made adequately shown? yes.

RECORD.

Alma Quinn, real party in interest, hereinafter called plaintiff, filed an action against petitioner Gene Compton's Corporation for damages for personal injuries alleged to have been received when plaintiff fell on a stairway at one of petitioner's restaurants. She filed in said action interrogatories (pursuant to Code Civ.Proc. § 2030) requesting petitioner, among other requests, to attach copies of all statements taken from employees who were employees of petitioner on the date of the accident, and copies of all reports made and all information gathered by petitioner or its agents. Petitioner filed objections. Further proceedings were had in which affidavits were filed and the motion was heard. The court offered petitioner the opportunity to submit to the court copies of the requested report and statements 'for delivery over to plaintiff's attorney of such portions thereof as the Court upon inspection should feel plaintiff entitled to * * *.' Petitioner declined to take advantage of such offer. On October 30, 1961, the court ordered petitioner to provide plaintiff with (1) 'First Report of Accident,' filed by Walter C. Smith, petitioner's manager at the location of the accident; (2) two signed statements each dated December 2, 1960, one signed by said manager, the other signed by an employee on duty at the restaurant at the time of the accident.

According to the record, after the order was made, plaintiff filed a notice of motion for an order to inspect the above mentioned communications. It was thereafter stipulated by the parties that certain affidavits filed after the determination by the trial court could be considered as having been before the trial court, and should be considered by this court. Petitioner withdrew from consideration objection as to the 'form of Interrogatory No. 7; i. e., it is agreed that the motion may be considered as one for the production of said two statements and said one report.' Apparently the parties desire this proceeding to be considered as a proceeding to inspect documents as provided in section 2031, Code of Civil Procedure, and to treat said order as having been made pursuant to that section and after consideration of all the affidavits hereafter discussed.

1. GOOD CAUSE.

Petitioner contends that no 'good cause' was shown for disclosure. Plaintiff contends that petitioner, by its stipulation withdrawing objection as to the form of interrogatory No. 7 is foreclosed from raising this issue. Interrogatory No. 7 asked for copies of all statements and reports taken from persons employed at the restaurant on the day of the accident. Petitioner's written objections to this interrogatory were that it was not an interrogatory in fact but a demand for production of documents which is dealt with exclusively by section 2031, Code of Civil Procedure, and that this code section required an identification of the documents and a showing of good cause. However, whether the said stipulation did or did not waive petitioner's original objection that good cause was not shown by plaintiff, the actions of the parties clearly indicate that good cause was not to be an issue in this court. The matter was brought here upon the stipulation of the parties that affidavits filed after the making of the order be considered by this court. It is apparent that, likewise, the later motion to inspect is to be deemed to have been before the court, and is before this court. No opportunity was given to plaintiff to show good cause on such motion. All of these matters constrain us to hold that good cause is not an issue here.

Moreover, the language in Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 389, 15 Cal.Rptr. 90, 364 P.2d 266, indicates that the court felt that in a situation comparable to this, it would be better, in the interest of an efficient and expeditious disposition of the main question involved, to consider the merits of the problem now rather than to cause the parties to start all over and have the problem again brought before the appellate court.

This brings us to the merits.

2. THE REPORT AND STATEMENTS ARE PRIVILEGED.

The affidavit of K. C. Farnsworth states that he is casualty claims manager for Rathbone, King & Seeley, which firm is the general agent and underwriting manager of Royal Exchange Assurance Co., the liability insurance carrier for petitioner, and as such handles all the underwriting and claims on behalf of said Royal Exchange; that he is 'in charge of the investigation and defense, the selection of attorneys, and the general claims handling in the case of Alma Quinn vs. Gene Compton's Corp.'; that petitioner's insurance policy requires Royal to defend petitioner against claims and lawsuits arising out of, among other things, personal injuries. The policy gives Royal the right to make investigations, to prepare defenses to claims and suits, and to have the sole and exclusive charge of and conduct on behalf of the assured, all such investigations and defenses. The policy requires petitioner to cooperate with Royal in making accident reports to Royal through petitioner's managers and employees. The policy permits Royal the sole determination of the attorneys it will select in the defense of any claim.

The only statements which Royal has are: (a) A 'Report of Accident (Not Automobile) Comprehensive Liability' filled out by Walter C. Smith, petitioner's manager at the location where the accident occurred. This report is on a form furnished by Rathbone, King & Seeley to Royal's various assureds for the report of any accident likely to lead to a claim or lawsuit. It is affiant's experience and that of the brokers that virtually any personal injury may be the basis of a claim being made, whether such claim has merit or not. 'The purpose of such report is so that . . . [Royal] will have early notice of the accident, and so that it may take prompt steps to investigate the same.' The accident report was dated November 19, 1960 (the accident occurred November 18 at 9:15 p. m.). The report contains the name and address of the person injured (the plaintiff), the nature and extent of her injury, and a general description, so far as known to the assured, as to how the accident happened. The report was sent to Maurice A. Gale & Co., petitioner's insurance brokers, who placed petitioner's liability insurance in Royal through Rathbone, King & Seeley. It was then forwarded to the latter concern and came to affiant's attention November 29. The report was enclosed with a letter from Gale & Co., and also a letter from John R. Golden, Esq., plaintiff's attorney, dated November 22, which was addressed to petitioner and had been forwarded by petitioner to Gale & Co., stating that Golden represented plaintiff herein and requesting the name of petitioner's insurance carrier so that Golden could take up plaintiff's claim directly. It being apparent that a claim was being made, affiant assigned an adjuster to obtain a statement of all facts known to petitioner and any of its employees.

(b) Two signed statements obtained by the adjuster, each dated December 2, one signed by the manager of the restaurant where the accident occurred, and another signed by an employee on duty then and there. These statements described what is known to the makers regarding the accident.

The statements described in paragraphs (a) and (b) 'were obtained for the sole purpose of being transmitted as a communication to the attorney designated by me, in the performance of his professional responsibilities in defending * * * [petitioner] against plaintiff's claim.' Affiant on August 23, 1961, after petitioner had been served with summons in this action on August 17, transmitted them to Attorney Hughes for the defense of plaintiff's claim. They 'set forth the assured's version of how the accident to the plaintiff happened.' The only other reports affiant has, are reports with respect to said claim, from the adjuster to Rathbone, King & Seeley.

Attorney Hughes filed an affidavit stating that the only statements of witnesses he has are as set forth in paragraphs (a) and (b) above mentioned. In another statement he stated he was employed August 24, 1961, to defend this action.

Other affidavits filed after the order was made will hereinafter be detailed. They state that the communications above mentioned were intended to be confidential and were made for the purpose of being transmitted, and were transmitted to petitioner's insurance carrier, to be delivered to the attorney whom the carrier would select if litigation resulted from the accident.

It will be noted that the report (a) was made to the insurance brokers, and the statements, (b) were given to the insurance adjuster, none to the employer, and all some 8 or 9 months before litigation commenced and before the selection of an attorney to represent petitioner.

These facts squarely present the question: Are the report of the insured's manager and his statement and that of another employee concerning an accident on the insured's premises prepared...