Wilson v. Henderson, Opinion No. 3694 (S.C. App. 11/17/2003)

• Decision Date: 17 November 2003
• Docket Number: Opinion No. 3694.
• Parties: Johnny Crawford and Joan Wilson, Plaintiffs, Of whom Johnny Crawford is Appellant, v. Janice Henderson, Respondent.
• Court: South Carolina Court of Appeals

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Johnny Crawford and Joan Wilson, Plaintiffs, Of whom Johnny Crawford is Appellant, v. Janice Henderson, Respondent.

Opinion No. 3694.

Court of Appeals of South Carolina.Heard April 9, 2003.

Filed November 17, 2003.

Appeal From Spartanburg County Gary E. Clary, Circuit Court Judge Donald W. Beatty, Circuit Court Judge John C. Few, Circuit Court Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Samuel Darryl Harms, of Greenville, for Appellant.

Karl S. Brehmer and J. Austin Hood, both of Columbia, for Respondent.

CONNOR, J.:

Johnny Crawford brought suit against Janice Henderson and his underinsured motorist carrier ("UIM"), Southern Heritage Insurance Company, seeking to recover damages from injuries suffered in an automobile accident. The jury awarded Crawford $1,099.38 in actual damages. On appeal, Crawford asserts the circuit court erred in quashing Crawford's subpoena to depose Henderson a second time. He contends the UIM carrier's attorney should not have been able to claim an attorney-client privilege to limit the first deposition based on the following reasons: (1) an attorney-client privilege did not exist between Henderson and the UIM carrier's attorney; and (2) any alleged attorney-client privilege was waived by counsel's failure to file a motion for a protective order pursuant to Rule 30(j)(3), SCRCP. Finally, Crawford contends the circuit court erred in permitting a nurse practitioner to give an opinion regarding the cause of Crawford's injuries. We affirm in part, reverse in part, and remand.

FACTS

This case arose out of an automobile accident between Janice Henderson and Johnny Crawford. While leaving a gas station, Henderson pulled out into traffic on Highway 290 in Duncan and was struck by Crawford. Henderson testified she did not immediately see Crawford's vehicle because a truck that was entering the gas station blocked her line of sight.

Crawford sued Henderson seeking to recover damages for injuries both he and his passenger, Joan Wilson, suffered in the accident. After Crawford and Wilson settled the liability limits of Henderson's policy and entered into a covenant not to execute any judgment against Henderson, they sought to recover damages from Southern Heritage Insurance Company ("Southern"), the UIM carrier.

Crawford attempted to take Henderson's deposition four times. Each time, Crawford served Southern's attorney, Karl Brehmer, with the notices of the depositions. Henderson failed to appear. Ultimately, Crawford filed a motion in circuit court seeking an order to compel Henderson to appear for her deposition or be held in contempt.

At the hearing, Brehmer appeared and informed the court that he represented the UIM carrier and had no control over Henderson. Counsel claimed he had attempted to find Henderson in order to get her to appear for a deposition.

After hearing arguments, the circuit court found Brehmer represented Henderson in name only and, therefore, Crawford would have to personally serve Henderson with the notice of deposition. The court reasoned, "[Counsel] does represent [Henderson], . . . for purposes of litigating liability and damages. But for purposes of paying money, . . . it's very clear that he represents the insurance carrier and he made that clear."

Crawford served Henderson and she appeared for a deposition on February 21, 2001. During the deposition, Crawford's counsel asked Henderson if she had discussed the case with Brehmer prior to the deposition and asked her to relate the substance of the conversations. Brehmer instructed Henderson not to answer the question asserting the answer would violate the attorney-client privilege. Henderson did not answer the question and the deposition was concluded.

Crawford served Henderson with a second subpoena and notice of deposition scheduled for June 19, 2001. On June 4, 2001, Brehmer filed a motion for a protective order pursuant to Rules 26(c) and 30(a)(2) of the South Carolina Rules of Civil Procedure.¹ Counsel contended Crawford had already taken Henderson's deposition, the parties had not agreed to multiple depositions, and good cause did not exist to compel an additional deposition. In response, Crawford moved to quash the motion for a protective order on the following grounds: (1) Henderson had not been served with the motion; (2) Brehmer could not assert the attorney-client privilege because he had previously stated he was not Henderson's attorney; and (3) even if the attorney-client privilege existed, it was waived because the procedural requirements of Rule 30(j)(3) of the South Carolina Rules of Civil Procedure, which permit a witness not to answer a deposition question, had not been met.

The circuit court granted Brehmer's motion for a protective order. As a result, Henderson's deposition was never reconvened and the case proceeded to trial. The jury returned a verdict in favor of the plaintiffs and awarded $1,099.38 to Crawford and $30,413.61 to Wilson. Crawford appeals.²

DISCUSSION

I. Existence of Attorney-Client Privilege

Crawford argues the circuit court erred when it granted Brehmer's motion for a protective order because, as a matter of law, an attorney-client relationship does not exist between a UIM carrier's attorney and an underinsured motorist, i.e., the named defendant. Even if this relationship can be established, Crawford contends the conversations between Henderson and Brehmer were not protected by the attorney-client privilege.

A.

Although this case presents several related issues, the threshold matter is to define the relationship created between a UIM carrier's attorney and the named defendant.

The attorney-client privilege protects against disclosure of confidential communications by a client to his or her attorney. State v. Owens, 309 S.C. 402, 407, 424 S.E.2d 473, 476 (1992). "The privilege is strictly construed to protect only confidences disclosed within the relationship." Id. at 407, 424 S.E.2d at 477. To establish an attorney-client privilege, the person asserting the privilege must show that the relationship between the parties was that of attorney and client and that the communications were confidential in nature. Marshall v. Marshall, 282 S.C. 534, 538-39, 320 S.E.2d 44, 47 (Ct. App. 1984). In order to obtain the status of a client, the person must communicate in confidence with an attorney for the purpose of obtaining legal advice. Id. at 539, 320 S.E.2d at 47. The advice or assistance must be sought with a view to employing the attorney professionally whether or not actual employment occurs. Id.

Initially, we note there is no contractual relationship between the UIM carrier's attorney and the named defendant. As conceded by Southern, a contract did not exist between Henderson and Southern. Instead, Crawford through his premium payment directly contracted with Southern.

Significantly, our Supreme Court has held the rights of the UIM carrier and the named defendant are not synonymous, and, in fact, may be conflicting. Even though our Supreme Court has not directly addressed the issue in the instant case, we our guided by the analysis in Broome v. Watts, 319 S.C. 337, 461 S.E.2d 46 (1995). In Broome, Carol and John Broome sued Watts for injuries sustained in an automobile accident. Nationwide Mutual Insurance Company (Nationwide) insured Watts for policy limits in the amount of $50,000/$100,000. The Broomes had underinsured motorist coverage with United Services Automobile Association (USAA). As required by section 38-77-160 of the South Carolina Code of Laws, the Broomes served USAA with the complaints.³ USAA filed notices of appearance and motions for intervention in both cases. Shortly thereafter, the Broomes, Watts, and Nationwide entered into a settlement agreement in which Nationwide agreed to pay its $ 50,000 liability limits to the Broomes. Pursuant to the agreement, Watts waived her right to a jury trial and the Broomes agreed not to execute against Watts or Nationwide any judgment obtained against Watts. The Broomes, however, decided to proceed with an action to determine damages for purposes of UIM coverage. USAA was not a party to the agreement. USAA assumed the defense of the action under section 38-77-160, filed answers, and requested a jury trial. Over the Broomes' objections, the judge ordered a jury trial.

On appeal, the Broomes asserted USAA was bound by the settlement agreement. Because Watts is the named defendant, the Broomes contended the named defendant's waiver of a jury trial bound USAA even though it was not a party to the settlement agreement. Our Supreme Court rejected the Broomes' argument, finding that Watts could not give up USAA's right to a jury trial. Broome, 319 S.C. at 340, 461 S.E.2d at 48.

Citing section 38-77-160 and a case interpreting this statute, the Court found that a waiver by Watts was not "tantamount to a waiver by USAA, because it blurs the distinction between the named defendant (Watts) and the actual defendant (USAA) which must pay damages on behalf of the named defendant in the event of liability." Broome, 319 S.C. at 340, 461 S.E.2d at 48; see Williams v. Selective Ins. Co. of the Southeast, 315 S.C. 532, 534-35, 446 S.E.2d 402, 404 (1994) (holding that a UIM carrier is entitled to assume control of the defense on an action even if the insured chooses to settle with the at-fault driver's liability carrier). The Court concluded, "[a]lthough the UIM carrier `steps into the shoes' of the underinsured motorist, it has rights separate and distinct from those of the underinsured motorist." Broome, 319 S.C. at 340, 461 S.E.2d at 48; see also Ex parte Allstate Ins. Co., 339 S.C. 202, 528 S.E.2d 679 (Ct. App. 2000) (holding in action to recover underinsured motorist benefits, the plaintiff was required to serve UIM carrier with action against underinsured motorist prior to trial; recognizing UIM carrier had rights that were separate and distinct from the underinsured motorist and was not in privity...