Kelly Vincent, Etc. v. Ds Services of America, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-492

KELLY VINCENT, ET AL.

VERSUS

DS SERVICES OF AMERICA, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 2016-10101
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Thomas J. Eppling
Corey P. Parenton
David C. Bernard
Staines & Eppling
3500 N. Causeway Blvd., Suite 820
Metairie, LA 70002
(504) 838-0019
COUNSEL FOR DEFENDANTS/APPELLANTS:
DS Services of America, Inc.
Tomas U. Gilmore
Safety National Casualty Corporation

Terry L. Rowe
Attorney at Law
P. O. Box 3323
Lafayette, LA 70502
(337) 232-4744
COUNSEL FOR APPELLEE:
State Farm Mutual Automobile Insurance Company

Joseph Frazer Gaar, Jr.
Jacob H. Hargett
Lucas S. Colligan
Law Offices of Joseph F. Gaar
P. O. Drawer 2069
Lafayette, LA 70502-2053
(337) 233-3185
COUNSEL FOR PLAINTIFFS/APPELLEES:
Kelly Vincent
Collin Vincent
Maci Vincent

Jason M. Welborn
Attorney at Law
617 South Buchanan Street
Lafayette, LA 70501
(337) 233-3185
COUNSEL FOR PLAINTIFFS/APPELLEES:
Kelly Vincent
Colin Vincent
Maci Vincent

GREMILLION, Judge.

Plaintiffs were involved in a motor vehicle accident with a truck owned by

DS Services of America, Inc., which was driven by Tomas Gilmore and insured by

Safety National Casualty Corporation (collectively Defendants). Plaintiffs also filed

a property claim against their automobile liability policy insurer, State Farm Mutual

Automobile Insurance Company (State Farm), but State Farm is not a party to this

litigation. Defendants issued a subpoena duces tecum to State Farm seeking its claim

file and other information about Plaintiffs’ claims history. State Farm filed a Motion

to Quash and voluntarily produced a police report, submissions for property damage

repair, a State Farm internal property damage estimate, and photographs, but

declined to produce recorded statements or claims notes, asserting attorney-client

privilege and that the documents were prepared in anticipation of litigation.

The trial court granted the Motion to Quash in part and denied it in part,

ordering the production of a recorded witness statement. Defendants allege the trial

court erred in failing to require State Farm to produce the remaining documents,

specifically Plaintiffs’ claims history, claims notes, and recorded statements.

Defendants assign as error:

1. The trial court failed to follow clear Third Circuit jurisprudence
regarding the production of claims files when it erred in finding
that State Farm’s claims file, including, but not limited to, the
recorded statements of Plaintiffs and the adjuster’s claims notes
pertaining to this accident, was protected from discovery, and

2. The trial court erred in granting in part State Farm’s Motion to
Quash.

DISCUSSION

A trial court’s regulation of pre-trial discovery is afforded broad discretion

and will not be reversed in the absence of a clear abuse of discretion. Moak v. Illinois

Cent. R.R. Co., 93-783 (La. 1/14/94), 631 So.2d 401. The discovery statutes are to

be construed “liberally and broadly.” Id. at 403.

Louisiana Code of Civil Procedure Article 1422 provides:

Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the
pending action, whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other party,
including the existence, description, nature, custody, condition and
location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any
discoverable matter. It is not ground for objection that the
information sought will be inadmissible at the trial if the information
sought appears reasonably calculated to lead to the discovery of
admissible evidence.

The law addressing materials prepared in anticipation of litigation is found in

La.Code Civ.P. art. 1424(A), which states:

The court shall not order the production or inspection of any
writing, or electronically stored information, obtained or prepared
by the adverse party, his attorney, surety, indemnitor, or agent in
anticipation of litigation or in preparation for trial unless satisfied
that denial of production or inspection will unfairly prejudice the
party seeking the production or inspection in preparing his claim or
defense or will cause him under hardship or injustice. Except as
otherwise provided in Article 1425(E)(1), the court shall not order
the production or inspection of any part of the writing, or
electronically stored information, that reflects the mental
impressions, conclusions, opinions, or theories of an attorney.

In order for documents to be subject to discovery, they must be relevant, and

if prepared in anticipation of litigation, then they may only be discovered if their

non-production would unfairly prejudice the party requesting them. Hodges v.

Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125 (La.1983).

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Defendants argue that a claims file is not protected by a blanket exclusion, and

they agreed to redact any attorney-client work product. They argue that there was

no privileged information because an attorney was not obtained by State Farm until

after the subpoena was issued. Defendants argue that they seek “only the records

that reflect what Plaintiffs told and/or submitted to State Farm regarding the subject

accident, as well as whether they have previously made any claims for personal

injury or property damage and the records related thereto.” Defendants argue that

entire claims files (save for portions that are protected under the attorney-client

privilege) are discoverable, as they are prepared in the ordinary course of business.

In brief, Defendants argue that they will be unfairly prejudiced if their discovery

request is denied because they will be unable to retrieve these “contemporaneous

recording and/or notations of Plaintiffs by any other means.”

State Farm argues that all of its files are prepared in anticipation of litigation;

Defendants did not show any unfair prejudice; Defendants did not provide good

cause required for production from a non-party; and that blanket production of an

insurer claims file is prohibited.

The trial court conducted an in-camera inspection of the claims file. The trial

court in its judgment stated: “[T]he only material subject to production in the claim

file which has not already been disclosed by counsel, is the Statement of Rachel

Bellard taken on February 10, 2016. The remainder of the claim file is not subject

to production to D.S. Services of America, Inc.” 1

In McHugh v. Chastant, 503 So.2d 791 (La.App. 3 Cir. 1987), the plaintiff

sought an entire case file in order to pursue his claim of arbitrary and capricious

conduct against St. Paul Fire & Marine Insurance Company, his UM insurance

1
Bellard witnessed the accident.
3

carrier. The trial court denied the plaintiff’s request in its entirety. On appeal, a

blanket exclusion of a case file was rejected:

[W]e reject any suggestion in Prejean that an insurer’s file is
automatically protected in its entirety as a matter created in
anticipation of litigation. An insurer’s file is not created in
anticipation of litigation simply because it is only compiled after an
accident has occurred and, therefore, at a time when litigation must
be considered a possibility. It is not the date of a document which
controls whether the document is exempt from production as having
been prepared in anticipation of litigation, but the content, nature,
and purpose of that document.

Federal authority, which is persuasive in this area holds that
not all documents prepared by an insurance company after a claim
has arisen are prepared in anticipation of litigation. These courts
have recognized that insurers must conduct reviews of the factual
data underlying the claim and that the reports, communications, and
interoffice memos or memorandums, generated through this process
are prepared in the ordinary course of business and are discoverable.

Id. at 793 (Emphasis added) (Citations omitted). See also Fuqua v. Aetna Cas. And

Sur. Co., 542 So.2d 1129 (La.App. 3 Cir.), writ denied, 548 So.2d 310 (La.1989);

Cantrelle Fence and Supply Co. Inc. v. Allstate Ins. Co., 550 So.2d 1306 (La.App. 1

Cir. 1989), writ denied, 559 So.2d 123 (La.1990).

Similarly, we reject Defendants’ suggestion that because an attorney was not

employed by State Farm until after the request was made, none of the documents

were prepared in anticipation of litigation. There is always potential for litigation in

the motor-vehicle accident insurance realm, as Defendants are well aware.

Nevertheless, we agree with the reasoning of McHugh that the particular requested

documents must be examined to determine whether they are exempt from production

pursuant to the anticipation-of-litigation exception.

Having reviewed the exclusions from production made by the trial court, we

find the trial court did not err in excluding Plaintiffs’ claims history. There is no

suggestion of the relevance of any and every claim filed by Plaintiffs with their

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insurer. The trial court, at the conclusion of the hearing, stated there was no

relevance to this history, and we find no error in that finding.

Further, we find that that the trial court did not err in excluding Plaintiffs’

recorded statements to State Farm and the contemporaneously made notes in the

claims file following the accident. The trial court implicitly found that the omitted

portion of State Farm’s claims files were prepared in anticipation of litigation and

that Defendants failed to meet their burden of proving undue hardship. 2 3 The

recorded statements made by Plaintiffs to their insurance company are clearly

2
At the hearing on the motion, the trial court stated: “Not a chance in the world I’m going
to give you what an insured told their insurance company.”

Later the following exchange occurred:

[DEFENDANTS’ ATTORNEY]: There’s no attorney involved here.

THE COURT: I -- I get your point on that. And if we were – if you were
the plaintiff in the UM case and you were trying to get Mr. Rowe’s file and there
was no attorney involved, then he wouldn’t have the attorney-client privilege issue.
But when his insured is talking to his claimant, claims adjustor, and you now come
as someone else wanting to get that what, I think, while it may not be attorney-
client privilege, it is certainly a conversation between someone, who I think is in
my courtroom – or in my room with me, my insurance company, as opposed to
your insurance adjustor calling the plaintiff and saying: Hey, tell me about that
story. Well, I’m the plaintiff, even an uneducated plaintiff, I’m saying,: Wait,
wait, you’re not my insurance company are you? I don’t want to talk to you. But
if you’re my insurance company, I’ll tell you all about the weather and everything
else. I don’t need a lawyer for that.

[DEFENDANTS’ ATTORNEY]: All the more reason we want to have it
because --

THE COURT: All the more reason why I don’t think you’re entitled to it
--
3
State Farm’s explanation in brief of why this portion of the claim file is prepared in
anticipation of litigation is:

By definition, State Farm was either a surety, an indemnitor, or both, by
virtue of its obligation to provide security against losses or damages which its
insured may become legally obligated to pay. “An insurer is usually either a surety
or indemnitor.”

For these reasons State Farm submits that its claim files in question, together
with any and all statements, notations, mental impressions of its employees and
claims representatives contained therein were clearly prepared in anticipation of
litigation.
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relevant to the extent of the claims being made against Defendants. The issue is

whether they are prepared in anticipation of litigation.

The trial court implicitly noted that the discovery of this type of information

is customarily deemed off limits. In this case, State Farm offers its insured a defense

as needed, and an insured must be able to make certain representations to its own

insurance company and claims adjuster by virtue of that relationship that fall within

the scope of the protection. This case is distinguished from McHugh because the

insured is not pursuing a claim against her own insurer. Further, Defendants’

requests could be construed as “a fishing expedition pure and simple, which is not

allowed.” Sonier v. Louisiana Power & Light Co., 272 So.2d 32, 37 (La.App. 1 Cir.

1973).

Pursuant to the law set forth in McHugh, we find that the initial phone call

made by Plaintiffs in this case to State Farm reporting a loss and the

contemporaneous notes made by the claims adjuster were prepared in anticipation of

litigation and are not subject to discovery unless an unfair prejudice would result.

Defendants failed to prove they would be unfairly prejudiced by the exclusion of this

information. We find no error in the portion of the trial court’s judgment granting

State Farm’s Motion to Quash.

CONCLUSION

The portion of the trial court’s judgment granting the Motion to Quash

regarding the discovery of Plaintiffs’ claims history and of Plaintiffs’ recorded initial

claim and the adjuster’s contemporaneous notes is affirmed. All costs of this appeal

are assessed to Defendants/Appellants, DS Services of America, Inc., Safety

National Casualty Corporation, and Tomas U. Gilmore.

AFFIRMED.

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