Givens v. Mullikin ex rel. McElwaney
| Decision Date | 25 March 2002 |
| Docket Number | No. W1999-01783-SC-R11-CV.,W1999-01783-SC-R11-CV. |
| Citation | 75 S.W.3d 383 |
| Parties | Connie Jean GIVENS v. Ed MULLIKIN, administrator ad litem of the ESTATE OF Larry McELWANEY, et al. |
| Court | Tennessee Supreme Court |
Nathan W. Kellum, Memphis, Tennessee, for the appellant, Ed Mullikin, administrator ad litem of the estate of Larry McElwaney.
Leo Bearman, Jr., Robert M. Glover, and Launice P. Sills, Memphis, Tennessee, for the appellant, Allstate Insurance Company.
William H. Fisher, III, Memphis, Tennessee, for the appellee, Connie Jean Givens.
WILLIAM M. BARKER, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER, JJ., joined.
The principal issue in this case is whether an insurance carrier and an insured may be held vicariously liable for the alleged tortious actions of an attorney hired to defend the insured. The trial court held that the plaintiff's complaint stated a claim of vicarious liability against the defendant insured and his insurance carrier for abuse of process, inducement to breach express and implied contracts of confidentiality, inducement to breach a confidential relationship, and invasion of privacy. The Court of Appeals affirmed the trial court's ruling with respect to the vicarious liability issue, though it dismissed the claims for inducement to breach a confidential relationship and invasion of privacy. The defendants then appealed to this Court, and we now hold that an insurer and an insured may be held vicariously liable for the tortious acts or omissions of an attorney hired to defend the insured, if the attorney's tortious actions were directed, commanded, or knowingly authorized by the insurer or by the insured. We further hold that the complaint in this case states a claim of vicarious liability against the insurer alone for abuse of process. The judgment of the Court of Appeals is affirmed in part and reversed in part.
We granted permission to appeal in this case to review whether the trial court should have granted a motion to dismiss a complaint under Tennessee Rule of Civil Procedure 12.02(6) for the failure to state a claim upon which relief may be granted. The plaintiff, Ms. Connie Jean Givens, has alleged that an attorney hired by Allstate Insurance Company to defend one of its insureds committed several torts within the context of that representation, thereby rendering Allstate and its insured vicariously liable for the attorney's actions. Because a motion to dismiss under Rule 12.02(6) admits the truth of all of the relevant and material averments contained in the complaint, see, e.g., Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997), we "must construe the complaint in favor of the plaintiff, accept the allegations of fact as true, and deny the motion unless it appears that the plaintiff can establish no facts supporting the claim that would warrant relief," see, e.g., Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999).
As alleged in the plaintiff's complaint, the underlying facts of this case arose out of a 1988 traffic accident involving the plaintiff and the defendant, Larry McElwaney.1 After the plaintiff filed suit against McElwaney to recover damages, his insurance carrier, Allstate Insurance Company, hired Mr. Hal Nichols, "a highly competent and effective Memphis attorney," to represent McElwaney. Sometime after Mr. Nichols substantially completed discovery in the case, including deposing the plaintiff, submitting interrogatories, and obtaining the plaintiff's medical records, Allstate fired Mr. Nichols and employed the Richardson Law Firm to represent McElwaney.
According to the plaintiff, as soon as Allstate hired the Richardson Firm, the Firm began the discovery process anew to harass her, to cause her to suffer unnecessary expense, and to "weaken [her] resolve to pursue the suit to the extent that she [would] abandon it." The Richardson Firm is first alleged, as an agent of Allstate and McElwaney, to have submitted an excessive number of interrogatories, totaling about 237 questions and subparts, even though it already possessed much of the information requested by the interrogatories. Although the plaintiff asserts that she objected to the initial submission of interrogatories by the Richardson Firm, she relates that the trial court overruled her objection.
The plaintiff also alleges that the Richardson Firm deposed her for a second time, subjecting her to "intense questioning about every aspect of her social, educational, employment, and medical history." Lasting about eight hours, this second deposition is alleged to have inquired as to whether the plaintiff "had been sleeping with the Defendant McElwaney," and as to "every ailment with which [she] has ever been beset, no matter how trivial." The plaintiff was also called upon to furnish the names of every doctor, dentist, and other healthcare professional who treated her for these ailments.
Further, the Richardson Firm is alleged to have issued more than seventy discovery subpoenas to various records custodians. Despite knowing that many of these records possessed no relevance to the issues in the plaintiff's suit, the Richardson Firm is alleged to have sent subpoenas to (1) "every custodian for every healthcare professional who was suspected ... to have rendered treatment to the plaintiff at any time during her life," including her psychologist, her obstetrician/gynecologist, and others; (2) every "hospital in Memphis and Chattanooga (where the plaintiff once lived), even though in many instances[,] the Richardson Firm had no reason to believe that the Plaintiff had received treatment there"; (3) every employer for whom the plaintiff has ever worked; (4) every automobile repair agency to which the plaintiff's automobile has ever been taken; and (5) every insurance company that has written a policy of insurance for the plaintiff.
In no case, however, did the Richardson Firm actually depose a records custodian. Instead, all but six of the discovery subpoenas stated that the custodian could send a copy of the plaintiff's "entire file" to the Richardson Firm "in lieu of personal appearance." The Richardson Firm also notified the plaintiff's attorney that depositions of records custodians would not be taken unless the plaintiff objected. After receiving this notice, the plaintiff's attorney wrote letters to these custodians directing them not to comply with the subpoenas.
The plaintiff then moved to quash a group of four specific subpoenas under Rule of Civil Procedure 45.07,2 with each subpoena being representative of a greater class. The trial court granted the plaintiff's motion and quashed the subpoenas, finding that the plaintiff's failure to object was not the equivalent of an "agreement" as contemplated by Rule 45.07. The Court also ruled that the plaintiff had not waived her right to complain of the subpoenas by failing to object to each individually. However, following the court's ruling, the Richardson Firm is alleged to have continued to issue similar subpoenas, for both discovery and trial purposes, to various records custodians.
On June 12, 1998, the plaintiff filed a separate action alleging (1) that the Richardson Firm's discovery practices constituted an abuse of process, and (2) that its practice of obtaining her medical records through use of the defective subpoenas invaded her right to privacy and induced the medical practitioners to breach their confidential relationships with her. The plaintiff also alleged that the Richardson Firm induced her treating physician to breach express and implied contracts of confidentiality with her by privately speaking with him outside a deposition. However, the plaintiff did not sue the Richardson Firm directly, but she instead sued McElwaney and Allstate, alleging that each was vicariously liable for the tortious actions of the Richardson Firm.
Both McElwaney and Allstate filed motions to dismiss the complaint pursuant to Rule of Civil Procedure 12.02(6) for failure to state a claim upon which relief can be granted. Each defendant alleged that they could not be held vicariously liable for the actions of the Richardson Firm as alleged, but that even if they could, the complaint did not allege sufficient facts to grant the plaintiff relief on any claim. The trial court held a hearing on the motion, and on October 9, 1998, it denied the motions to dismiss.
McElwaney and Allstate then requested permission from the trial court to seek interlocutory appeal, which the court granted under all three grounds listed in Tennessee Rule of Appellate Procedure 9(a). On January 26, 2000, the Court of Appeals granted interlocutory appeal on these grounds, and it later affirmed the trial court's holding that the defendants could be held vicariously liable for the actions of the Richardson Firm. The intermediate court also found that the complaint stated causes of action for abuse of process and inducement to breach contracts of confidentiality. However, it dismissed the plaintiff's claims for invasion of privacy and inducement to breach a confidential relationship.
We then granted McElwaney and Allstate permission to appeal on the issues of whether they may be held vicariously liable for the Richardson Firm's actions and whether the complaint properly alleges claims for abuse of process and inducement to breach express and implied contracts of confidentiality. The plaintiff, as appellee, has also raised the issues of whether the Court of Appeals properly dismissed her claims for invasion of privacy and for inducement to breach a confidential relationship.
For the reasons given herein, we hold that an insurer and an insured may be held vicariously liable for the tortious acts or omissions of an attorney hired to defend the insured, if the attorney's tortious actions were directed, commanded, or knowingly authorized by the insurer or by the...
To continue reading
Request your trial
-
Young v. Allstate Ins. Co.
...primary motivation constitutes a question of fact that cannot be resolved by way of an HRCP Rule 12(b)(6) motion to dismiss. See Givens, 75 S.W.3d at 403 (concluding that, although the defendants may have used interrogatories and subpoenas solely for their lawful and intended purpose of gat......
-
Dorfman v. Smith
...damages. We have little trouble concluding that such a use of court processes would be improper."); Givens v. Mullikin ex rel. Estate of McElwaney , 75 S.W.3d 383, 401 (Tenn. 2002) ("a primary desire to harass and cause unnecessary expense to the other party in litigation is a sufficient ul......
-
Am. Chem. Soc'y v. Leadscope, Inc.
...may be vicariously liable for its attorney's torts only if the client authorized or ratified the conduct. See, e.g., Givens v. Mullikin, 75 S.W.3d 383, 394–396 (Tenn.2002) (an insurer and an insured may be held vicariously liable for the tortious acts or omissions of an attorney hired to de......
-
Barefield v. DPIC Companies, Inc., No. 31226 (VA 6/25/2004)
...an insured must be considered, at least initially, to enjoy the status of an independent contractor." Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 394 (Tenn. 2002).18 It therefore appears clear that an insurance company cannot be held liable under the UTPA for the actions ......
-
CHAPTER 9 PUNITIVE DAMAGES IN EACH STATE
...N.W.2d 486 (S.D. 2016) (quoting Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007)).[129] . Givens v. Mullikin ex rel. McElwaney, 75 S.W.3d 383 (Tenn. 2002).[130] . Lance v. Owner's Ins. Co., No. E2015-00274-COA-R3-CV (Tenn. Ct. App. May 25, 2016) (citing Hodges v. S.C. Toof & Co.,833 ......
-
Client Responsibility for Lawyer Conduct: Examining the Agency Nature of the Lawyer-client Relationship
.... . . ." Id. at 747. The attorney had been instructed to use "whatever arrangements [the attorney] wanted . . . ."Id. at 746. 75. 75 S.W.3d 383 (Tenn. 2002). 76. Id. at 390. 77. Id. at 394. Other courts have addressed the question of the liability of the insurer for the tortious conduct of ......
-
Combating Bad-faith Litigation Tactics With Claims for Abuse of Process
...576 (Ala. 1981). 30. See Nienstedt v. Wetzel, 651 P.2d 876, 882 (Ariz.App. 1982). 31. See Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 402 (Tenn. 2002). 32. See Younger v. Solomon, 113 Cal.Rptr. 113, 119 (Cal.App. 1974). However, other cases present more compelling argumen......