State ex rel. Nationwide Mut. v. Kaufman, 33652.

Citation222 W.Va. 37,658 S.E.2d 728
Decision Date25 January 2008
Docket NumberNo. 33652.,33652.
PartiesSTATE ex rel. NATIONWIDE MUTUAL INSURANCE COMPANY and Stephen D. Clegg, Petitioners, v. The Honorable Tod KAUFMAN, Judge of the Circuit Court of Kanawha County, West Virginia; Donald E. Smith II and Sherri Smith, Respondents.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syllabus point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

2. The general procedure involved with discovery of allegedly privileged documents is as follows: (1) the party seeking the documents must do so in accordance with the reasonable particularity requirement of Rule 34(b) of the West Virginia Rules of Civil Procedure; (2) if the responding party asserts a privilege to any of the specific documents requested, the responding party shall file a privilege log that identifies the document for which a privilege is claimed by name, date, custodian, source and the basis for the claim of privilege; (3) the privilege log should be provided to the requesting party and the trial court; and (4) if the party seeking documents for which a privilege is claimed files a motion to compel, or the responding party files a motion for a protective order, the trial court must hold an in camera proceeding and make an independent determination of the status of each communication the responding party seeks to shield from discovery.

3. Factors trial courts may consider in determining whether to stay discovery against an insurer in a non-bad faith cause of action involving the insured and insurer as defendants include: (1) the number of parties in the case; (2) the complexity of the case; (3) whether undue prejudice would result to the plaintiff if discovery is stayed; (4) whether a single jury will ultimately hear both cases; (5) whether partial discovery is feasible on the claim against the insurer, and (6) the burden placed on the trial court by imposing a stay on discovery. The party seeking to stay discovery has the burden of proof on the issue.

Michelle Roman Fox, Martin & Seibert, Charleston, for Petitioner Nationwide Mutual.

Asad U. Khan, The Law Office of W. Stephen Flesher, Charleston, for Petitioner Clegg.

John H. Tinney, Jr., John K. Cecil, The Tinney Law Firm, Charleston, for Respondents.

DAVIS, Justice:

This matter was filed under the original jurisdiction of this Court by Nationwide Mutual Insurance Company and Stephen D. Clegg, petitioners/defendants below, seeking a writ of prohibition to prevent enforcement of an order entered by the Honorable Tod Kaufman, Judge of the Circuit Court of Kanawha County.1 In that order, the circuit court (1) required that Mr. Clegg produce specific discovery request documents to the court, along with a privilege log, for an in camera review; (2) denied Nationwide's motion for a protective order and stay of discovery; and (3) took under advisement a motion by Nationwide to bifurcate the case against it from that of the case against Mr. Clegg. After a careful review of the limited record and listening to the arguments of the parties, we deny the writ.

I. FACTUAL AND PROCEDURAL HISTORY

On May 31, 2005, Donald E. Smith, II, respondent/plaintiff below, was driving a motorcycle westbound on Greenwood Road in South Charleston, West Virginia. On the same day, Mr. Clegg was driving a sport utility vehicle eastbound on the same road. For reasons that have yet to be determined, the vehicles driven by Mr. Smith and Mr. Clegg collided. Mr. Smith was injured in the accident and taken to a hospital to be treated.

Mr. Smith eventually filed a claim with Mr. Clegg's insurer, Nationwide. It appears that Nationwide conducted an investigation that included interviewing Mr. Clegg and Mr. Smith. Subsequently, in January of 2006, Nationwide entered into a settlement with Mr. Smith regarding only property damage claim. As part of the agreement, Mr. Smith turned over ownership of the motorcycle to Nationwide, along with the helmet he wore at the time of the accident. Nationwide thereafter auctioned the motorcycle.

In August of 2006, Mr. Smith and his wife, Sherri L. Smith, filed the instant action against Mr. Clegg. In September of 2006, the Smiths served Mr. Clegg with a set of interrogatories and request for production of documents. Pertinent to this proceeding, Mr. Clegg objected to producing documents sought by the Smiths' Request No. 16 which stated:

Please produce a copy of any and all communications between Defendant and Defendant's insurance company(ies) and/or any insurance company(ies) providing coverage for the motor vehicle Defendant was driving during the accident, which address, in any manner, the incident[,] the possible causes of the incident and/or the issues made the subject of Plaintiffs' Complaint including, but not limited to, letters, electronic mail, faxes, notes, memoranda, reports, phone logs, diaries, journals and transcripts.

Mr. Clegg objected to producing the documents sought by Request No. 16 based upon the attorney-client privilege and the work product doctrine.

In April of 2007, the Smiths filed a motion seeking to compel Mr. Clegg to produce the documents sought by Request No. 16.2 After a hearing on the motion, the circuit court issued an order compelling Mr. Clegg to produce the documents sought by Request No. 16, and to provide a privilege log for items deemed protected by the attorney-client privilege and the work product doctrine.

As a result of information learned during the early stages of discovery, the Smiths were allowed to file an amended complaint in June of 2007, to assert a cause of action against Nationwide. The complaint against Nationwide asserted claims for waiver, estoppel, and spoliation.

Further, in June of 2007, the Smiths filed a motion to hold Mr. Clegg in contempt for failing to comply with the circuit court's discovery order regarding Request No. 16. After a hearing on the motion for contempt, the circuit court issued an order in July of 2007, that once again ordered Mr. Clegg produce the documents sought by Request No. 16, and to provide a privilege log for items deemed protected by the attorney-client privilege and the work product doctrine.

On August 2, 2007, Mr. Clegg filed a motion to vacate the circuit court's last order compelling discovery under Request No. 16, and seeking an order staying discovery under Request No. 16. On August 7, 2007, Nationwide filed a motion seeking a protective order and stay of discovery against it and Mr. Clegg, and bifurcation of all claims against it from Mr. Clegg's case. On August 8, 2007, the Smiths again filed a motion for contempt against Mr. Clegg for failing to comply with the circuit court's order compelling discovery under Request No. 16.

The circuit court conducted a hearing on all three motions filed by the parties. On August 30, 2007, the circuit court issued an order which (1) required Mr. Clegg to produce to the court the documents sought under Request No. 16, along with a privilege log, for an in camera review;3 (2) denied Nationwide's motion for a protective order and stay of discovery; and (3) took under advisement Nationwide's motion to bifurcate the case against it from that of the case against Mr. Clegg.

On August 31, 2007, Nationwide and Mr. Clegg filed the instant matter with this Court. On the same date, Nationwide wrote a letter to the circuit court requesting the court to issue an order setting out findings of fact and conclusions of law pursuant to Syllabus point 6 of State ex rel. Allstate Insurance v. Gaughan, 203 W.Va. 358, 508 S.E.2d 75 (1998) ("A party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court's ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appeal able interlocutory orders."). On September 12, 2007, the circuit court issued an order, incorporating its previous order of August 30, which set out findings of fact and conclusions of law.4

II. STANDARD OF REVIEW

In this proceeding, Nationwide and Mr. Clegg seek a writ of prohibition to prevent enforcement of the circuit court's discovery order. This Court has explained that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will...

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