Heidebrink v. Moriwaki

Decision Date26 July 1984
Docket NumberNo. 5900-III-6,5900-III-6
Citation685 P.2d 1109,38 Wn.App. 388
PartiesCarol R. HEIDEBRINK and Gary T. Heidebrink, Petitioners, v. Nobuo MORIWAKI and Jane Doe Moriwaki, Respondents.
CourtWashington Court of Appeals

H.K. Dano, Theodore G. Lucas, Dano, Cone, Fraser & Gilreath, Moses Lake, for petitioners.

Gregory J. Arpin, Layman, Loft, Smythe & Arpin, Spokane, for respondents.


Plaintiffs, Carol R. and Gary T. Heidebrink, were granted discretionary review of a trial court ruling denying production of a statement made by defendant, Nobuo Moriwaki, to his insurance company's investigator.

On March 15, 1982, Carol Heidebrink was driving her car west on highway 17 on the outskirts of Moses Lake, Washington. Her vehicle was suddenly surrounded by a dense cloud of smoke which blinded her; her vehicle collided with the rear of a pickup truck. The Heidebrink car was one of several involved in a chain collision. The Heidebrinks allege the smoke was a direct result of Mr. Moriwaki burning grain stubble on the adjacent field.

Shortly after the accident, an unknown involved party contacted Mr. Moriwaki's insurance company. Insurance company investigator Tim Dahmen telephoned Mr. Moriwaki long distance from Spokane on March 17, 1982, and recorded the statement which the Heidebrinks seek to discover. Mr. Moriwaki objects to its discovery on two grounds: (1) the statement is protected by the attorney-client privilege; and (2) the statement is immune from discovery as a work product of Mr. Moriwaki's attorney. The court ruled the statement was made in anticipation of litigation and was immune from discovery.

First, Mr. Moriwaki contends the statement is protected by the attorney-client privilege, which is set out in RCW 5.60.060(2):

An attorney or counselor shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.

The central purpose of the rule is to encourage free and open discussion between an attorney and his client by assuring the client that his information will not be disclosed to others either directly or indirectly. State v. Chervenell 99 Wash.2d 309, 316, 662 P.2d 836 (1983). Our court noted the following limitation on the attorney-client privilege in Dike v. Dike, 75 Wash.2d 1, 11, 448 P.2d 490 (1968):

As the privilege may result in the exclusion of evidence which is otherwise relevant and material, contrary to the philosophy that justice can be achieved only with the fullest disclosure of the facts, the privilege cannot be treated as absolute; but rather, must be strictly limited to the purpose for which it exists.

This philosophy represents a broad departure from that enunciated in Cully v. Northern P. Ry., 35 Wash. 241, 246, 77 P. 202 (1904), cited by Mr. Moriwaki in support of his position. That case considered two interrogatories addressed to a defendant by an injured plaintiff wherein the plaintiff sought production of all reports related to the accident. The court denied the production in order to maintain the secrecy of the defendant's case. Such a rationale is directly contrary to the philosophy of the broad discovery rules adopted in the interim by Washington state.

Did the report taken by the investigator rise to the level of a privileged communication because of the alleged agency relationship between investigator and attorney? While Washington has not addressed this particular issue, there are cases throughout the nation which have ruled both ways on this particular issue. We first discuss those cases which hold the communication is privileged.

Stating the rationale for that rule is Bellmann v. District Court, 187 Colo. 350, 531 P.2d 632 (1975), which concerned the discoverability by the district attorney of a statement made to an insurance investigator by a man charged with vehicular homicide. Citing People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15, 17 (1964), the court conceded that although such communications are normally made to a layman without involving a lawyer, the insured, through his contract, has delegated the conduct of the defense to his insurance company. Because the insured is not represented by counsel of his own choosing at the time the statement is made or later during litigation

"... we believe that the insured may properly assume that the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured." 197 N.E.2d at 17.

Similarly, State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo.1976) adopted the same conclusion on the basis of People v. Ryan, supra, Brakhage v. Graff, 190 Neb. 53, 206 N.W.2d 45 (1973), and Hollien v. Kaye, 194 Misc. 821, 87 N.Y.S.2d 782, 785 (1949), from which the Missouri court's reasoning was similar to that found in Bellmann, but added the following:

"In our present complex society and vast use of motor vehicles, the insurance against liability on the part of owners of motor vehicles has become the rule rather than the exception. In fact, in some states such insurance is compulsory. We, in this state, have a modified form of compulsory insurance.

"It follows that in case of an accident, the owner of a motor vehicle is bound by the terms of his contract to make a full and prompt report to his carrier. The assured should be encouraged to, rather than discouraged from, making a full and complete disclosure to his insurance carrier. Let us suppose that an assured does so and furnishes his statement to a lay representative of his carrier, before its general counsel has ever heard of the case and could not yet be said to be the attorney for the assured; or before some other attorney is engaged to represent the assured, and that hence, it might be held that the statement may not come either within the letter or the spirit of Section 353, Civil Practice Act. Let us suppose further that the statement thus given by the assured to his carrier, in compliance with his contract, and on the assumption that he is furnishing the statement to the agency which he has paid to protect him, reveals the commission of acts which constitute the crime of culpable negligence. Should the assured be prevented from unbosoming himself of the true facts concerning an accident to the very entity, which, either through voluntary choice or under legal compulsion, he has paid to protect his interests in the event of an accident, through fear that his statement could be reached by the person who will instigate against him either civil or criminal proceedings or both? Or should fear of self-incrimination or fear of a recovery beyond policy limits subjugate the assured to the point of concealing the true facts to the very one whom he has paid in advance to protect him in just such a contingency.

"It seems to this court that it would be contrary to sound public policy to permit the discovery and inspection of statements of a defendant or a prospective defendant made to his own insurance carrier, whether made before or after suit is instituted or to its lay representatives, either before or after an attorney has been formally selected by the carrier to represent its assured." 2

* * *

State ex rel. Cain, at 56-57; see also Thomas v. Harrison, 634 P.2d 328 (Wyo.1981).

Cases reaching the opposite conclusion rely on Jacobi v. Podevels, 23 Wis.2d 152, 127 N.W.2d 73, 76 (1964), an automobile accident case where the motorist gave a written statement to an adjuster before any legal action was commenced. The Wisconsin court analyzed the problem in terms of the contractual obligations owed by the insured to his insurance company. Realizing the insurance company could use the statement to the insured's disadvantage the court reasoned the communication was not the same as that made between attorney and client. Additionally, the quest for full disclosure of the truth weighed heavily on the court's mind:

One of the fundamental policies of our law, and one which dominates in the absence of a special policy arising in particular types of situations, is that the judicial system and rules of procedure should provide litigants with full access to all reasonable means of determining the truth. Secrecy of communication between one person and his attorney is one of the exceptions. It is based upon recognition of the value of legal advice and assistance based upon full information of the facts and the corollary that full disclosure to counsel will often be unlikely if there is fear that others will be able to compel a breach of the confidence.

Dean Wigmore has written:

"Nevertheless, the privilege [attorney-client] remains an exception to the general duty to disclose. * * * It is worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the investigation of the truth. It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle." 4

* * *

The court concluded the statement was discoverable.

In accord with Jacobi is Butler v. Doyle, 112 Ariz. 522, 544 P.2d 204, 207 (1975), which cites extensively from Jacobi, then adds its own analysis:

The insurance carrier is more than a mere agent transmitting the policyholder's statement to the attorney hired to defend the insured.

The insurance carrier has the right to review and consider the statement submitted by the insured for any legitimate purpose connected with the business of the company. Coverage, cooperation, and renewal are a few of the matters, in addition to consideration of the potential claim, for which the insurer may use the statement of the insured. The use of the statement for a purpose adverse to the interest of the insured is certainly inconsistent with the claim of privilege upon his behalf. 1

With respect to the facts before us, we believe the...

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3 cases
  • Heidebrink v. Moriwaki
    • United States
    • Washington Supreme Court
    • September 5, 1985
    ...moved for an order compelling production. The trial court denied the order. The Court of Appeals reversed. Heidebrink v. Moriwaki, 38 Wash.App. 388, 685 P.2d 1109 (1984). II Pursuant to Fed.R.Civ.P. 26(b)(1) and CR 26(b)(1), in their current form, a party may obtain discovery of any matter ......
  • State v. Pavin
    • United States
    • New Jersey Superior Court — Appellate Division
    • June 19, 1985
    ...by the insurance carrier. See, e.g., Butler v. Doyle, 112 Ariz. 522, 544 P.2d 204, 207 (Sup.Ct.1975); Heidebrink v. Moriwaki, 38 Wash.App. 388, 685 P.2d 1109, 1112-1113 (Ct.App.1984); Jacobi v. Podevels, 23 Wisc.2d 152, 127 N.W.2d 73, 75-76 (Sup.Ct.1964). In Gene Compton's Corp. v. Superior......
  • State ex rel. Slusser v. Billet
    • United States
    • Washington Court of Appeals
    • August 10, 1988
    ...attorney/client relation exists which in turn is largely a question of client's subjective belief); see also Heidebrink v. Moriwaki, 38 Wash.App. 388, 394, 685 P.2d 1109 (1984), rev. on other grounds, 104 Wash.2d 392, 706 P.2d 212 (1985) (essence of privilege is client's intent at the time ......
2 books & journal articles
  • §6.3 Attorney-Client Privilege
    • United States
    • Washington State Bar Association The Law of Lawyering in Washington (WSBA) Chapter 6 Confidentiality
    • Invalid date
    ...(1993) (quoting Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992)); see also RLGL §§14 cmt. e, 72 cmt. e. 396 Heidebrink v. Moriwaki, 38 Wn.App. 388, 685 P.2d 1109 (1984), reversed on other grounds, 104 Wn.2d 392, 706 P.2d 212 (1985) (privilege does not apply to statements made by an ins......
  • Table of Cases
    • United States
    • Washington State Bar Association The Law of Lawyering in Washington (WSBA) Table of Cases
    • Invalid date
    ...7–80 nn.680-684, 687; 12–22; 12–22 nn.127-130; 12–23; 12–23 nn.134, 135; 16–32 n.302; 16–50; 16–55; 16–59; 16–62 Heidebrink v. Moriwaki, 38 Wn.App. 388, 685 P.2d 1109 (1984), reversed on other grounds, 104 Wn.2d 392, 706 P.2d 212 (1985): 6–69 nn.396-397 Henderson v. Tyrrell, 80 Wn.App. 592,......

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