Schipp v. General Motors Corp.
Decision Date | 05 October 2006 |
Docket Number | No. 2:03CV00175 JLH.,2:03CV00175 JLH. |
Parties | John H. SCHIPP, Administrator of the Estate of Jerome Neufelder, Deceased, and Kenneth Bracy and Jocelyn Bracy, Plaintiffs v. GENERAL MOTORS CORPORATION and Ann Kennedy, Defendants. Ann Kennedy, Cross-Plaintiff v. General Motors Corporation, Cross-Defendant. |
Court | U.S. District Court — Eastern District of Arkansas |
B. Michael Easley, Easley, Hudson & Houseal, Forrest City, AR, for Plaintiffs.
Andrew L. Richardson, Brita H. Cantrell, Mary Quinn-Cooper, William S. Leach, Eldridge Cooper Steichen & Leach, P.L.L.C., Tulsa, OK, D. Keith Fortner, William H. Edwards, Jr., Barber, McCaskill, Jones & Hale, P.A, Little Rock, AR, Brian Stacy Miller, Martin, Tate, Morrow & Marston, P.C, Bruce A. McMullen, Michael L. Robb, Justin N. Joy, Thomason, Hendrix, Harvey, Johnson & Mitchell, Memphis, TN, for Defendants/Cross-Plaintiff/Cross-Defendant.
General Motors issued three subpoenas duces tecum to obtain documents prepared by Ann Kennedy's insurance carrier during the investigation of the accident at issue in this action. Specifically, GM sought to discover a recorded statement of Kennedy taken on July 26, 2002; a summary of that recorded statement prepared on July 27, 2002; an investigation report of the insurance adjuster prepared on August 13, 2002; and witness statements obtained by Kennedy's insurance carrier. Kennedy has objected. GM has moved to compel. GM asks for an award of the reasonable expenses incurred in making this motion, including reasonable attorney's fees, pursuant to Rule 37(a)(4) of the Federal Rules of Civil Procedure.
Ann Kennedy was driving a 2001 Chevrolet Silverado on Interstate Highway 40 in Crittenden County, Arkansas, when her vehicle crossed the median and struck an oncoming 2000 Toyota Corolla driven by Jerome Neufelder. The collision caused either the Silverado or the Corolla to collide with a Plymouth Voyager van owned by Kenneth and Jocelyn Bracy. Kenneth and Jocelyn Bracy were injured. Neufelder was killed.
Kennedy gave a statement to her insurer on July 26, 2002, two days after the accident. She argues that this statement is protected by the attorney-client privilege. In diversity cases, federal courts follow state law on questions of privilege. Baker v. General Motors Corp., 209 F.3d 1051, 1053 (8th Cir.2000); see also Fed.R.Evid. 501. Arkansas has not ruled on whether a communication between an insurer and its insured may be protected by the attorney-client privilege. Many states—and what appears to be a majority—have held, depending on varying factors, that such a communication may be protected by the privilege. See, e.g., State Farm Fire and Cas. Co. v. Superior Court, 216 Cal.App.3d 1222, 265 Cal.Rptr. 372, 375 (1989); Bellmann v. District Court, 187 Colo. 350, 531 P.2d 632, 634 (1975) () ; Staton v. Allied Chain Link Fence Co., 418 So.2d 404, 405-06 (Fla.Dist.Ct.App.1982); Pietro v. Marriott Senior Living Servs. Inc., 348 Ill.App.3d 541, 284 Ill.Dec. 564, 810 N.E.2d 217, 226 (2004) (citing People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15 (1964)); Richey v. Chappell, 594 N.E.2d 443, 446-47 (Ind.1992); Asbury v. Beerbower, 589 S.W.2d 216, 217 (Ky.1979) () ; Cutchin v. State, 143 Md.App. 81, 792 A.2d 359, 366 (2002); Grewell v. State Farm Mut. Auto. Ins. Co., 102 S.W.3d 33, 36-37 (Mo.2003) () ); Brakhage v. Graff, 190 Neb. 53, 206 N.W.2d 45, 47-48 (1973); Pfender v. Torres, 336 N.J.Super. 379, 765 A.2d 208, 213 (2001); Kandel v. Tocher, 22 A.D.2d 513, 256 N.Y.S.2d 898, 902 (N.Y.App.Div.1965) () ; In re Klemann, 132 Ohio St. 187, 5 N.E.2d 492, 495 (1936); Heidebrink v. Moriwaki, 104 Wash.2d 392, 706 P.2d 212, 217 (1985) ( ); State ex rel. Med. Assurance of W. Va., Inc. v. Recht, 213 W.Va. 457, 583 S.E.2d 80, 88 (2003); Thomas v. Harrison, 634 P.2d 328, 334 (Wyo.1981) ( ).
The courts have looked at a number of factors to determine whether a statement given by an insured to his insurer is privileged. Those factors include: 1) whether the insurance contract obligates the insurance company to defend claims, Pietro, 284 Ill.Dec. 564, 810 N.E.2d at 226; Richey, 594 N.E.2d at 446; Grewell, 102 S.W.3d at 37; Brakhage, 206 N.W.2d at 48; 2) whether the relationship between the insurer and the attorney exists at the time of the communication between the insurer and the insured, Kay Labs., Inc. v. District Court, 653 P.2d 721, 723 (Colo.1982); 3) whether the insurer is advised of the confidential information at the direction of an attorney, Pfender, 765 A.2d at 213; Recht, 583 S.E.2d at 88; and 4) whether the communication is made for the dominant purpose of litigation, Cutchin, 792 A.2d at 366; Pfender, 765 A.2d at 213.
A number of jurisdictions have held that statements between an insured and insurer are not privileged. See, e.g., Phillips v. Dallas Carriers Corp., 133 F.R.D. 475, 477-80 ( ); Langdon v. Champion, 752 P.2d 999, 1002-04 (Alaska 1988) (); Longs Drug Stores v. Howe, 134 Ariz. 424, 657 P.2d 412, 415-16 (1983) (); Conley v. Graybeal, 315 A.2d 609, 610 (Del.Super.Ct.1974); DiCenzo v. Izawa, 68 Haw. 528, 723 P.2d 171, 176-77 (1986) ("" ; Alseike v. Miller, 196 Kan. 547 412 P.2d 1007, 1017 (1966); Jacobi v. Podevels, 23 Wis.2d 152, 127 N.W.2d 73, 76 (1964) ( ).
Although the Supreme Court of Arkansas has not decided this issue, its decisions make clear two relevant aspects of the attorney-client privilege in Arkansas. First, "[t]he burden of showing that a privilege applies is upon the party asserting it." Kinkead v. Union Nat'l Bank, 51 Ark.App. 4, 11, 907 S.W.2d 154, 158 (1995) (citing Shankle v. State, 309 Ark. 40, 827 S.W.2d 642 (1992)). Thus, the burden is on Kennedy to show that her statement is privileged. Second, "[t]he purpose of the attorney-client privilege is to promote `full and frank communication' between attorneys and clients, and that, in turn, promotes the observance of law and administration of justice." Holt v. McCastlain, 357 Ark. 455, 464, 182 S.W.3d 112, 118 (2004). It should be noted that other states have cited the same purpose in recognizing a statement between an insured and an insurer as protected by the attorney-client privilege. See, e.g., Richey, 594 N.E.2d at 446 () ; Kandel, 256 N.Y.S.2d at 902 ().
While no published opinion of the Arkansas appellate courts is on point, two cases suggest what the Supreme Court of Arkansas might hold. See generally Holt, 357 Ark. 455, 182 S.W.3d 112; Courteau v. St. Paul Fire & Marine Ins. Co., 307 Ark. 513, 821 S.W.2d 45 (1991). In Courteau, a hospital's insurance carrier hired an attorney to investigate the circumstances surrounding a potential claim. 307 Ark. at 514, 821 S.W.2d at 46. The attorney then "immediately requested statements from employees involved who were potential defendants." Id. The Supreme Court of Arkansas held that the hospital employees and physicians were "clients" of the hospital's attorney, and the communications between them were therefore privileged in spite of the fact that some of those communications were "relayed through corporate channels." 307 Ark. at 516, 821 S.W.2d at 47.
Perhaps more illuminating is Holt, where an automobile accident caused five deaths, the insurance carrier hired attorneys to represent the insured, and the attorneys in turn hired...
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...(factual nonparty witness statement entitled to some degree of work product protection); compare Schipp v. General Motors Corp. , 457 F. Supp. 2d 917 (D. Ark. 2006) (verbatim nonparty witness statements were neither privileged nor work product). However, an attorney’s notes of the witness i......
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