State ex rel. J.E. Dunn Const. Co., Inc. v. Sprinkle

Decision Date19 April 1983
Docket NumberNo. WD,R,No. 2,2,WD
Citation650 S.W.2d 707
PartiesSTATE ex rel. J.E. DUNN CONSTRUCTION COMPANY, INC., Relator, v. The Honorable Richard P. SPRINKLE, Judge of the Circuit Court of Jackson County, Missouri, Civil Divisionespondent. 34052.
CourtMissouri Court of Appeals

Karl F. Schmidt, Leonard J. Johnson, and Theresa L.F. Levings, Kansas City, for J.E. Dunn Const. Co.

Paul H. Niewald, Michael E. Waldeck and Joseph W. Lampo, Dan G. Jackson, III, Kansas City, for respondent.

Before KENNEDY, P.J., and WASSERSTROM and MANFORD, JJ.

KENNEDY, Presiding Judge.

The present case involves the right of relator contractor J.E. Dunn Construction Company (defendant in the underlying litigation) to discover by means of interrogatories and requests for production of documents, certain information and documents collected by Great American Insurance Company in connection with the collapse of the Kemper Arena roof on June 4, 1979.

Respondent Judge Sprinkle refused to compel the answering of the interrogatories and refused to compel the production of the documents. Defendant Dunn has sought our writ of mandamus. Our alternative writ issued and we now make the writ peremptory.

On June 4, 1979, a part of the roof and supporting structure of Kemper Arena collapsed, causing a loss of $2,867,940. The building was insured by a policy of insurance issued by Great American Insurance Company against loss by windstorm, among other perils. The City of Kansas City, owner of the Arena, claimed that the collapse was caused by windstorm and that Great American was obligated under its policy to pay the loss, less $250,000 deductible. Great American denied coverage after its initial investigation, but at length, still denying liability, it agreed to pay the same as a compromise settlement. The settlement agreement was reached on August 3, 1979. The City agreed on its part that it would institute suit against third persons who might be responsible for the loss, the suit to be "at the sole direction and control of Great American."

The City on June 4, 1980, a year after the collapse, instituted suit against the building architect and against the structural steel supplier and fabricator, alleging that the collapse and the resultant damages resulted from their negligence. Defendant J.E. Dunn, the general contractor, was added later.

Dunn answered alleging that Great American had paid as a volunteer, not in the reasonable and good-faith belief that it was obligated to do so under its policy of insurance, and hence that no recovery could be had by Great American against Dunn. The parties really do not debate (and we therefore are not called upon to decide) the proposition that such facts, if established, would furnish Dunn a defense to the Great American claim. United States Fidelity & Guaranty Co. v. Sweeney, 80 F.2d 235, 238-39 (8th Cir.1935); American Motorists Ins. Co. v. Shrock, 447 S.W.2d 809, 811 (Mo.App.1969); Commercial Union Insurance Co. v. Postin, 610 P.2d 984, 987-89 (Wyo.1980); 16 G. Couch, Insurance, § 61.55 (rev. 2d ed. 1983).

During the June 4-August 3 period, during which time Great American was denying coverage, it conducted an investigation into the cause of the loss and carried on negotiations with the City. It is the contents of the files so generated by Great American and by the City during that period to which Dunn seeks access by these discovery procedures. Dunn's brief filed here contains what we find to be an accurate and fair summary of the interrogatories and requests and so we copy from the brief:

1. Interrogatory Nos. 4-5 and Request Nos. 1-8, 13 and 23 seek: (a) information and documents generated by or at the direction of Great American but in the possession, custody or control of the City regarding coverage and denial of coverage by Great American; and (b) other information and documents from the City's files regarding the same issues.

2. Interrogatory Nos. 6-7 and Request Nos. 9 and 11 seek: (a) information and documents generated by or at the direction of Great American in the possession, custody or control of the City regarding payment by Great American and the reasons therefor; and (b) other information and documents from the City's files regarding its receipt and use of said payment;

3. Interrogatory No. 9-B and Request No. 12 seek information and documents originally from Great American's file but now in the possession, custody or control of the City regarding any investigations by Great American into the cause of the collapse, and Interrogatory No. 8-B seeks information regarding the persons contacted by the City between June 4 and August 3, 1979, in an attempt to determine the cause of the collapse.

There can be little doubt that the information and documents sought by the interrogatories and by the requests for production would be relevant to the issues in the case, both as to the cause of the collapse and as to the defense that Great American paid as a volunteer, they would or might provide admissible evidence or would be reasonably calculated to lead to the discovery of admissible evidence. Rule 56.01(b)(1).

The City says, however, first, that the information and documents sought by Dunn are protected by the attorney-client privilege, and second, that they are protected as work product, absent a showing that Dunn "has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Rule 56.01(b)(3).

I.

We will first take up the question whether the information and documents sought come within the attorney-client privilege. We note here that the City does not differentiate among the various types of information or documents contained within the file. They do not, for example, claim that communications between Great American and its attorney during the June 4-August 3 period, or communications between the City and its attorneys, have a separate privileged status. Cf. State ex rel. Great American Insurance Co. v. Smith, 574 S.W.2d 379 (Mo. banc 1978). The City instead undertakes to prevent Dunn's access to the entire file and all its contents on the ground of the insurer-insured relationship that existed between the City and Great American.

In this case the insurer-insured privilege (a variant of the attorney-client privilege) recognized in Missouri by State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo. banc 1976), is not applicable. Cain deals with an automobile liability insurer and its insured, and it was there held that a statement made by the insured (the defendant in the underlying suit there) to his liability insurer about an automobile accident in which he had been involved, enjoyed an absolute privilege and was inaccessible to discovery by the plaintiff in the underlying suit. 540 S.W.2d at 53-57.

The relationship of a liability insurer, whose policy of insurance obliges it to defend its insured and to pay any judgment against its insured, is much different from that between the insurer of property which has been damaged by casualty and the owner of such property. In the former case, the relationship is basically a relationship of identity of interest, while in the latter case the relationship, at least until the insurer acknowledges coverage, is basically adversarial. 1 The insurer-insured privilege recognized in State ex rel. Cain v. Barker, supra, has not been extended to the latter type of case. See State ex rel. Spear v. Davis, 596 S.W.2d 499, 500 (Mo.App.1980); Truck Insurance Exchange v. Hunt, 590 S.W.2d 425, 432 (Mo.App.1979).

We hold that an insurer-insured privilege is not applicable in this case to shield the City's and Great American's files from discovery.

II.

We now come to the second ground on which the City seeks to prevent Dunn's access to the Great American file, namely, that the information sought and the documents requested to be produced are "work product." (The respondent's brief does not assert the "work product immunity for the City's file but only for Great American's.)

"Work product" is a qualified immunity under Rule 56.01(b)(3). It denies to one's adversary materials "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) ...," except upon a showing that the party seeking discovery "has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means."

We hold that the information and materials gathered by Great American during the June 4-August 3 period were not "work product," which is protected by Rule 56.01(b)(3) in litigation by Great American and by the City against Dunn.

The qualified "work product" immunity applies only to information and materials gathered by one's adversary in the litigation, or in preparation for the litigation, in which the discovery is being sought. Bunting v. Gainsville Machine Co., 53 F.R.D. 594 (D.Del.1971). In Bunting a workman injured in the course of his employment brought suit for damages against the manufacturer of the...

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