Heffron v. District Court Oklahoma County

• Decision Date: 23 September 2003
• Docket Number: No. 98,881.,98,881.
• Citation: 77 P.3d 1069,2003 OK 75
• Parties: William C. HEFFRON, Plaintiff/Petitioner, v. THE DISTRICT COURT OF OKLAHOMA COUNTY, The Honorable Noma D. Gurich, Respondent, Illinois Emcasco Insurance Company, Defendant/Real Party in Interest Respondent, and Scott Dallas, Real Party in Interest Respondent.
• Court: Oklahoma Supreme Court

77 P.3d 1069

2003 OK 75

William C. HEFFRON, Plaintiff/Petitioner, v. THE DISTRICT COURT OF OKLAHOMA COUNTY, The Honorable Noma D. Gurich, Respondent,

Illinois Emcasco Insurance Company, Defendant/Real Party in Interest Respondent, and

Scott Dallas, Real Party in Interest Respondent.

No. 98,881.

Supreme Court of Oklahoma.

September 23, 2003.

As Corrected October 13, 2003.

Jack S. Dawson and Stefan K. Doughty of Miller Dollarhide, Oklahoma City, Oklahoma for plaintiff/petitioner.

Mickey James and Marcie James of Green, James & Williams, Oklahoma City, Oklahoma for defendant/real party in interest respondent.

Kenneth W. Elliott and Devan A. Pederson of Elliott and Morris, Oklahoma City, Oklahoma for real party in interest respondent, Scott Dallas.

LAVENDER, J.

¶ 1 This cause presents a discovery dispute in a suit brought by plaintiff/petitioner, William C. Heffron against defendant/real party in interest respondent, Illinois Emcasco Insurance Company.¹ Although the suit-initiating trial court petition is not before us, it appears he sues to recover on an insurance policy (contract theory) and for bad faith denial of his insurance claim (tort theory) regarding a building owned by him after it was destroyed by fire.² He requests our assumption of original jurisdiction to, in effect, overturn two trial court orders. Taken together the orders rule that though he may depose three witnesses—the other real party in interest respondent, Scott Dallas, an Oklahoma City Fire Department (OKCFD) fire investigator³; a Mike Lee, an outside claims adjuster; and a Gordon Bulla, an outside private investigator, the latter two hired by Emcasco to assist it in adjusting and investigating the fire loss claim—he must pay the OKCFD fire investigator $3,000.00 as an unretained expert witness fee, and the latter two, respectively, $55.00 and 60.00 per hour⁴, the rate Emcasco was apparently charged for their assistance in adjusting and investigating the claim. Mr. Heffron argues he should have to pay only the $10.00 per day ordinary witness fee provided in 28 O.S.Supp.2002, § 81(A)(3). He seeks relief via prohibition and/or mandamus.⁵

¶ 2 We assume original jurisdiction. Though the materials presented in this matter are insufficient for us to direct the trial judge in her ruling as to the claims adjuster and private investigator, the submissions show the trial court order as to them manifests an unauthorized use of judicial force. As to the OKCFD fire investigator, the materials presented also show an unauthorized use of judicial force. Thus, the trial judge is prohibited from proceeding under or enforcing her orders denying Mr. Heffron's motion to compel and supplement thereto. The trial court is instructed to reconsider the issue of fees for the claims adjuster and private investigator under the standards enunciated herein under the applicable statutes, § 81(A)(3) and 12 O.S.Supp.2002, § 3226(B)(3)(a)(2)(claims adjuster, Mr. Lee) or § 3226(B)(3)(b)(private investigator, Mr. Bulla), and § 3226(B)(3)(c)(1).⁶ As to the OKCFD fire investigator (Mr. Dallas), the trial court is directed to allow his deposition to be taken for the ordinary $10.00 per day witness fee to the extent Mr. Heffron seeks to inquire of him into matters concerning the specific events and occurrences involved with his investigation of the fire in his capacity as an OKCFD fire investigator; as to his expert opinion as to the cause and origin of the fire and the rationale behind the opinion; and as to what information, if any, he may have imparted to Emcasco (or its agents) concerning the investigation prior to denial of Mr. Heffron's insurance claim.

PART I. ASSUMPTION OF ORIGINAL JURISDICTION.

¶ 3 Original jurisdiction may be assumed and the extraordinary relief of a writ of mandamus or prohibition is available under proper circumstances to order or prohibit the production of evidence prior to trial. Inhofe v. Wiseman, 1989 OK 41, 772 P.2d 389, 391; Ellison v. Gray, 1985 OK 35, 702 P.2d 360, 362-363. "However, before appropriate relief may be granted, it must be shown that the trial court exceeded its authority or discretion in ordering or denying pretrial discovery." Ellison, 702 P.2d at 363. In other words, such extraordinary relief is available to prevent or remedy the unauthorized use of judicial force when the trial court has attempted to exercise judicial power or authority not authorized by, and contrary, to law. See Alva State Bank and Trust Co. v. Dayton, 1988 OK 44, 755 P.2d 635, 635-636

. Accordingly, we will entertain original jurisdiction to control a trial court's handling of pretrial discovery matters only in rare cases. Although this is such a case, we make clear (as we did in Christian v. Gray, 2003 OK 10, ¶ 3, 65 P.3d 591, 596, concerning trial court rulings on motions in limine) that we will not serve as a pretrial reviewing panel for trial court orders adjudicating discovery matters.

¶ 4 We assume original jurisdiction here, however, because the questions involved are primarily ones of first impression for this Court and the record shows an unauthorized use of judicial force by the trial court in its rulings regarding the depositions of the three witnesses and their fee entitlement. Though Court of Civil Appeals' decisions exist concerning issues relating to expert witness fees involving depositions of experts and this Court, on one or more occasions, has issued opinions touching the edges of such a dispute, the precise controversy has not been definitively addressed by us.⁷ In our view, this opinion will promote the interest of judicial economy and act as a clarifying vehicle for courts statewide on the treatment of expert witnesses who are sought to be deposed in a situation where one or more of the parties to a lawsuit and the witness disagree on whether the deponent should receive more compensation than the $10.00 per day ordinary statutory [§ 81(A)(3)] witness fee under 1) 12 O.S.Supp.2002, § 2004.1(C)(3)(b)(2)(unretained expert) or 2) § 3226(B)(3)(a)(2) or § 3226(B)(3)(b), and § 3226(B)(3)(c)(1)[concerning discovery of facts known and opinions held by an expert a) the other party expects to call as a witness, the facts or opinions acquired or developed in anticipation of litigation or for trial, or b) who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial].

PART II. FACTS, BACKGROUND AND REVIEW STANDARD.⁸

¶ 5 A fire occurred in April 1999, destroying a duplex located in Oklahoma City owned by Mr. Heffron. Mr. Dallas investigated the blaze in furtherance of the performance of his duties with the OKCFD. Mr. Heffron was charged criminally regarding the fire and at the time this matter was presented to us, the criminal case was pending. A preliminary hearing in the criminal case has been held, at which Mr. Dallas testified.⁹

¶ 6 Mr. Heffron had a policy of insurance with Emcasco covering the building and he submitted a claim to recover on it. Emcasco investigated the claim and denied it in January 2000. In essence, according to Emcasco's response to the application to assume original jurisdiction, one reason the claim was denied was its conclusion the fire was caused intentionally by or at Mr. Heffron's direction, i.e., arson.¹⁰

¶ 7 Mr. Dallas, in addition to being employed by the OKCFD, works for Dallas & Associates Fire & Explosion Consultants, Inc., apparently a private company specializing in fire cause and origin analysis, fire reconstruction, and other fire-related expert services. Mr. Dallas asserts he makes his living based on his expertise in this highly technical field. Both Mr. Heffron and Emcasco have listed Mr. Dallas as a trial witness in the Pretrial Conference Order (PTO) filed in the trial court. Mr. Heffron indicates in the PTO Mr. Dallas will testify to the facts and circumstances relating to investigation of the fire; Emcasco that he will testify to the fire's cause and origin investigation.

¶ 8 Neither Mr. Heffron nor Emcasco have retained Mr. Dallas to act as an expert as to any aspect of the underlying lawsuit. As noted above, he investigated the fire in the performance of his job duties with the OKCFD. Further, nothing in the materials presented to us indicates or shows Mr. Dallas investigated the fire for Dallas & Associates Fire & Explosion Consultants, Inc. The trial court order that denied Mr. Heffron's motion to compel Mr. Dallas' deposition for the ordinary witness fee also ruled he was entitled to $3,000.00 from Mr. Heffron for the taking of the deposition. The trial judge determined he is so entitled as an unretained expert witness fee. Further, as to Mr. Dallas, the order, as we read it, expressly acknowledges that Mr. Heffron is only interested in obtaining facts from him concerning what he did in relation to investigation of the fire in the performance of his duties with the OKCFD, rather than obtaining his expert opinion on the cause thereof. We note that Mr. Heffron presumably knows his opinion on the fire's cause as Mr. Dallas testified at Mr. Heffron's criminal preliminary hearing. Finally, Mr. Dallas himself seems to admit in his trial court response to Mr. Heffron's motion to compel that Mr. Heffron may depose him as to matters concerning what he did in regard to his fire investigation at the scene, i.e., what he smelled, sensed, or observed, etc., without paying him an expert witness fee.

¶ 9 Materials presented to us also show Emcasco hired Mr. Lee and Mr. Bulla to assist it in adjusting and investigating Mr. Heffron's claim for insurance benefits, i.e., prior to denial of the claim. In fact, as we read its submissions here and in the trial court, Emcasco so admits. Nothing before us shows, and Emcasco does not argue, that either Mr. Lee or Mr. Bulla were hired by it in anticipation of litigation or in preparation for trial. The trial court order entered as to them...