Kandel v. Tocher

• Decision Date: 04 March 1965
• Parties: Lawrence KANDEL, Plaintiff-Respondent, v. Louis TOCHER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 898

256 N.Y.S.2d 898

22 A.D.2d 513

Lawrence KANDEL, Plaintiff-Respondent, v. Louis TOCHER, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 4, 1965.

Emanuel Morgenbesser, New York City (Lewis I. Wolf and Nathan Cyperstein, New York City, of counsel; Henry Wolfman, New York City, atty.), for appellant.

M. William Mach, New York City, for respondent.

Before BREITEL, J. P., and RABIN, VALENTE, EAGER and BASTOW, JJ.

BREITEL, Justice Presiding.

In this negligence action plaintiff sues to recover damages for personal injuries sustained while a passenger in defendant's motor vehicle. The action is defended, in fact, by defendant's insurer.

Defendant appeals from an order denying his motion for a protective order pursuant to CPLR 3103 and 3122 to preclude plaintiff's notice given under CPLR 3101 and 3120 for the production of a copy of 'the accident report and statements, photographs, diagrams, etc., relating to the accident made prior to the commencement of this action.' Such documents had been made or produced in connection with defendant's report of the accident to his insurer, as required by the terms of the liability insurance policy. Special Term in denying the motion held: 'The statement of a defendant given to his insurance carrier is not privileged nor is it the work product of an attorney or matter prepared for litigation.'

The order should be reversed and the motion for a protective order granted. The material sought is material prepared for litigation conditionally excepted by subdivision (d) of CPLR 3101 and may even be privileged under subdivision (b) or excluded as an attorney's work product under subdivision (c) of that section.

Significant in the situation of this case is the fact that the kind of insurance carried by defendant and in connection with which the material sought was created is automobile liability insurance. Such insurance has as its purpose the defense and settlement of claims made against the insured because of the insured's liability at law to respond in damages for his acts or omissions in the ownership or operation of an automobile. The policy requires the insurer to represent and defend the insured in the event an action such as this is brought against him. Whether a claim is accepted or rejected in advance of litigation, or must be resolved in the litigation process, is incidental to the ultimate purpose of protecting the insured from liability for payment under an enforceable judgment. In consequence, once an accident has arisen there is little or nothing that the insurer or its employees do with respect to an accident report except in contemplation and in preparation for eventual litigation or for a settlement which may avoid the necessity of litigation. In this connection, therefore, it is immaterial whether attorneys have actually been assigned or employed by the insurer to represent the insured in the settlement or defense of the claim. For parallel reasons it is immaterial whether the action based on the claim has been begun or not. On this view, automobile liability insurance is simply litigation insurance.

The kind of investigation, reports, and statements involved in the performance of an insurer's responsibility under automobile liability insurance is not to be confused with the investigation, reports, and statements resulting from the regular internal operation of an enterprise. Such material serves many purposes in the conduct of the enterprise, including perhaps eventual use in any litigation which may ensue. Thus, the material resulting from an investigation made by a public utility in connection with an accident occurring in its operation may be a part of the regular business of conducting the utility. The purpose is not limited to, or even predominantly that of, preparing for a litigation risk. On the contrary, the purpose may be to prevent future accidents, discipline careless employees, or, generally, to increase the economy and efficiency of the operation. In that situation the preclusive provisions of the disclosure statutes do not apply.

The statutes, while not completely free of the need for interpretation, are clear enough. After general provisions providing for full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof, CPLR 3101, subdivision (d), provides:

'The following shall not be obtainable unless the court finds that the material can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship:

'* * *.

'2. any writing or anything created by or for a party or his agent in preparation for litigation.'

Significantly, subdivision (e) of the same statute provides, without specifying any preconditions, that a party may obtain a copy of his own statement. The significance lies in the fact that a similar reference with respect to the adverse party's statement is not made.

The appellate decisions are consistent with the foregoing analysis. The Appellate Division for the Second Department has held precisely in accordance with the conclusions reached here (Finegold v. Lewis 22 A.D.2d 447, 256 N.Y.S.2d 358, decided 2-1-65). This Court held, since the CPLR was enacted, that a public carrier would be required to produce the reports and statements made by employees of the defendant with respect to an accident concerning which the carrier was being sued (Bloom v. New York City Transit Auth., 20 A.D.2d 687, 246 N.Y.S.2d 414). Rios v. Donovan, 21 A.D.2d 409, 250 N.Y.S.2d 818), in which Mr. Justice Valente on behalf of this Court elaborated upon the distinctions in procedure between pre-trial examination and pre-trial production of documents, does not suggest the contrary. Indeed, in discussing the Bloom case, supra, the Court emphasized not only that the reports had been obtained prior to the institution of suit but that they had not been made in preparation for trial.

The commentators on the CPLR are in accord with this analysis. Thus, in 3 Weinstein-Korn-Miller N.Y.Civ.Prac. p3101.54, distinction is made between materials created as part of a normal business routine and assembled for transmittal to an attorney and other...