Dillon Gray v. State Farm Mutual Auto. Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-407

DILLON GRAY, ET AL.

VERSUS

STATE FARM MUTUAL AUTO. INS. CO., ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 18-C-5369-C
HONORABLE ALONZO HARRIS, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Shannon J. Gremillion, John E. Conery, and Sharon Darville
Wilson, Judges.

AFFIRMED.

Stacey Moak
Breann Crane
Christopher W. Stidham
P. O. Box 77651
Baton Rouge, LA 70879-7651
(225) 751-6300
COUNSEL FOR DEFENDANT/APPELLANT:
Office of Risk Management

Kenny L. Oliver
David O. Way
Marjorie B. Breaux
P. O. Box 82447
Lafayette, LA 70598-2447
(337) 988-3500
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Mutual Automobile Insurance Company

John C. Turnage
Mayer, Smith & Roberts
1550 Creswell
Shreveport, LA 71101
(318) 222-2135
COUNSEL FOR DEFENDANT/APPELLEE:
Hackbarth Delivery Service, Inc.

Blaine James Barrilleaux
Attorney at Law
330 Settlers Trace Blvd, Suite B
Lafayette, LA 70508
(337) 406-8759
COUNSEL FOR PLAINTIFFS/APPELLEES:
Dillon Gray, obo Katrina Gray (deceased's husband)
Brian Porche, Sr., obo Brian Porche, Jr. (deceased's minor child)
Christopher Mathews, obo K Mathews (deceased's minor child)
Sabrina Cormier, obo Kailie Romine (deceased's minor child)

David F. Rutledge
Attorney at Law
330 Settlers Trace Blvd., Suite A
Lafayette, LA 70508
(337) 484-1529
COUNSEL FOR PLAINTIFFS/APPELLEES:
Dillon Gray obo Katrina Gray (deceased's husband)
Brian Porche,Sr.obo Brian Porche, Jr. (deceased's minor child)
Christopher Mathews obo K Mathews (deceased's minor child)
Sabrina Cormier obo Kailie Romine (deceased's minor child)

WILSON, Judge.

The State of Louisiana, through the Office of Risk Management

(ORM), appeals the judgment of the trial court denying its motion to quash a

subpoena duces tecum in a tort suit, in which the state is not a party, involving a

motor vehicle accident in St. Landry Parish. The trial court ordered that ORM

produce the requested accident reconstruction report and that the parties enter into

a reasonable Protective Order and Confidentiality Agreement limiting disclosure of

the document. For the following reasons, we affirm.

I.

ISSUES

We must decide:

(1) whether the trial court committed legal error in
holding that the anticipation of litigation
privilege provided pursuant to La.Code Civ.P.
art. 1424 does not apply to the accident
reconstruction report prepared and maintained
on behalf of ORM , a nonparty; and

(2) whether the trial court committed legal error in
holding that the accident reconstruction report
prepared and maintained on behalf of ORM is
not protected from discovery pursuant to 23
U.S.C. § 409.

II.

FACTS AND PROCEDURAL HISTORY

This action arises out of a December 2017 automobile accident in St.

Landry Parish involving Katrina Romine Gray and Carter Michael Berry. Mrs.

Gray was driving north on Interstate 49 in a 1999 Chevrolet Express Van owned

by Bryan K. Rose. Mrs. Gray lost control of the vehicle, flipped, and entered the

frontage road, where the van collided with a UPS truck being operated by Mr.

Berry. Michael Jones was a passenger in the UPS truck. Mrs. Gray and Mr. Jones

both died from their injuries.

The present suit was brought by Dillon Gray, husband of the deceased

Mrs. Gray, along with Bryan Porche, Sr., Christopher Matthews, and Sabrina

Cormier, the fathers and guardians of Mrs. Gray’s minor children (collectively

“Plaintiffs”). Plaintiffs named Mr. Rose, the van’s owner, and his insurer, State

Farm Mutual Automobile Insurance Company (State Farm), as defendants. They

alleged that Mr. Rose, as the vehicle’s owner, failed to properly maintain the

Chevrolet van which caused the accident.

In March 2020, State Farm filed a Notice of Records Deposition For

(Subpoena Duces Tecum) directed to ORM seeking production of the following

documents:

All documents, writings, and electronically stored
information created by the Louisiana State Police and its
agents, representatives or employees, for an accident that
occurred on December 8, 2017, on Interstate 49, St.
Landry Parish, Louisiana, involving Katrina M. Romine
and Carter Michael Berry. This request is specifically
seeking, but not limited to, a certified copy of any and all
accident reconstruction reports prepared by and/or
created by the Louisiana State Police- Troop I,
concerning case No. 18Z1208PITTM. (photographs are
not requested at this time).
ORM was served with the subpoena duces tecum in April 2020 and filed a Motion

to Quash and for Protective Order on April 30, 2020. Plaintiffs did not oppose this

subpoena.

A hearing on ORM’s motion was held on June 5, 2020. ORM

asserted that the accident reconstruction report was prepared as a part of an intra-

agency agreement between ORM and Louisiana State Police (LSP) in anticipation

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of litigation and prepared as the result of information gathered as part of a national

highway safety program. As such, ORM argued that the information was

privileged pursuant to the deliberative process, work-product, and anticipation of

litigation privileges under La.Code. Civ.P. art 1424 and 23 U.S.C. § 409.

In opposition to the motion, State Farm argued that the work-product

privilege created by La.Code. Civ.P. art 1424 applies only in favor of an adverse

party and that the accident reconstruction report was not compiled or collected for

a purpose listed in 23 U.S.C. § 409.

The trial court ruled that State Farm was entitled to the reconstruction

report. Finding that ORM was not an adverse party, the trial court denied the

Motion to Quash, ordered ORM to produce the requested documents, and ordered

that the parties enter into a Protective Order and Confidentiality Agreement to limit

disclosure of the document. ORM took this suspensive appeal.

III.

STANDARD OF REVIEW

It is well established that trial courts are afforded broad discretion

when regulating pre-trial discovery, which will not be disturbed absent a clear

abuse of discretion. Moak v. Illinois Cent. R. Co., 631 So.2d 401, 406 (La.

1/14/1994). “Questions of law, such as the proper interpretation of a statute, are

reviewed by this court under the de novo standard of review.” Louisiana Mun.

Ass’n v. State, 04-227, p. 35 (La. 1/19/05), 893 So.2d 809, 836.

IV.

LAW AND DISCUSSION

Work Product/Anticipation of Litigation Privilege

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In its first assignment of error, ORM asserts that the trial court erred

in holding that the anticipation of litigation privilege provided by La.Code. Civ.P.

art 1424 does not apply to the accident reconstruction maintained by ORM, a

nonparty. We disagree.

The scope of discovery is set forth in La.Code Civ.P. art 1422, which

provides:

Unless otherwise limited by order of the court in
accordance with this Chapter, the scope of discovery is as
set forth in this Article and in Articles 1423 through
1425.

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.

Our courts have held that the scope of discovery is broad and that

privileges, which are in derogation of the broad exchange of facts, are to be

construed strictly. Gauthreaux v. Frank, 95–1033 (La.6/16/95), 656 So.2d 634;

Smith v. Lincoln Gen'l Hosp., 605 So.2d 1347 (La.1992). Furthermore, the party

seeking to avoid discovery of documents bears the burden of proving that an

exception applies. Ogea v. Jacobs, 344 So.2d 953 (La.1977).

The work-product privilege is provided for in La.Code Civ.P. art.

1424, which provides (emphasis added):

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A. 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 undue
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.

“The words of a law must be given their generally prevailing meaning.”

La.Civ.Code art 11.

The wording of La.Code Civ.P. art. 1424 plainly states that the

privilege only applies to an “adverse party, his attorney, surety, indemnitor, or

agent.” ORM goes to great lengths to convince this court that the accident

reconstruction report was prepared in anticipation of litigation. That fact is not

disputed. However, at no point does ORM show itself to be an adverse party in

this litigation, or any litigation related to the underlying accident. By their own

admission, ORM is a nonparty, and this fact is not changed by simply filing a

motion in the action.

In a similar case, the second circuit addressed the applicability of the

work-product privilege to a nonparty. Naik v. United Rentals, Inc., 50,193,

(La.App. 2 Cir. 11/18/15), 182 So.3d 223, writ denied, 15-2272 (La. 2/5/16), 186

So.3d 1168. In Naik, the plaintiff in an automobile accident suit filed for a

subpoena duces tecum seeking an accident reconstruction report from ORM. As in

the instant case, ORM was a nonparty and filed a Motion to Quash the subpoena.

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The trial court denied the motion and ordered production of the reconstruction

report. On appeal, the court held,

We find no legal error in the district court’s
reading of Art. 1424. By its precise terms, this privilege
applies to writings prepared by an adverse party. ORM
has not shown that it is an adverse party. In light of the
broad scope of discovery, the strict construction of
privileges, and the burden of proof owed by the entity
seeking to avoid discovery, we find that Art. 1424 does
not provide a work-product, or anticipation of litigation,
privilege for ORM in this case.

Id. at 226-27. We also find no legal error in the district court’s finding, and hold

that the privilege provided under La.Code Civ.P. art. 1424 does not apply to ORM,

a nonparty.

Protection under 23 U.S.C. § 409

In its second assignment of error, ORM asserts that the trial court

erred by holding that the accident reconstruction report was not protected from

discovery pursuant to 23 U.S.C. § 409. We disagree.

23 U.S.C. § 409 provides,

Notwithstanding any other provision of law,
reports, surveys, schedules, lists, or data compiled or
collected for the purpose of identifying, evaluating, or
planning the safety enhancement of potential accident
sites, hazardous roadway conditions, or railway-highway
crossings, pursuant to sections 130, 144, and 148 of this
title or for the purpose of developing any highway safety
construction improvement project which may be
implemented utilizing Federal-aid highway funds shall
not be subject to discovery or admitted into evidence in a
Federal or State court proceeding or considered for other
purposes in any action for damages arising from any
occurrence at a location mentioned or addressed in such
reports, surveys, schedules, lists, or data.

The purpose of enacting 23 U.S.C. § 409 was to “encourage active

evaluation of highway and railway safety hazards,” and “prohibit the use of

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federally required record-keeping from being used as a tool in private litigation.”

Palacios v. Louisiana & Delta R.R. Inc., 98-2932, p. 6 (La. 7/2/99), 740 So.2d 95,

98. After reviewing the record, we find that ORM failed to show that the requested

accident reconstruction report was compiled or collected for the purpose of

highway safety as required under the statute.

At the hearing on the motion, ORM submitted evidence showing that

the Department of Transportation and Development (DOTD) had entered into a

cooperative agreement with the National Highway Traffic Safety Administration

(NHSTA) by which DOTD collects data of fatal traffic collisions for the Fatality

Analysis Reporting System (FARS) in exchange for federal funding.

DOTD Assistant Highway Safety Administrator, Charles Jesclard, III,

testified that under FARS, police in the state are required to produce a fatal

accident and serious injury notification form after fatal accidents, and these forms

are sent to DOTD and ORM as early notification. DOTD then uses this

information to address potential safety issues and begin a FARS case.

ORM contends that since the incident reports which lead to the

accident reconstruction reports are prepared pursuant to 23 U.S.C. § 148, for the

purpose of identifying, evaluating, and planning safety improvements on public

roads, the reports are protected from discovery under 23 U.S.C. § 409. Richard

LeJeune, a Road Hazard Supervisor for ORM, testified that DOTD shares the

FARS notification with ORM, and they use that information to determine if they

want to order a reconstruction. However, this reconstruction is a separate

collection of data completed under the order of ORM. Therefore, ORM must show

that it was collected or compiled for highway safety purposes as required under the

statute.

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ORM failed to submit any evidence that the reconstruction was

completed for the necessary purposes. The only reason ORM gives for conducting

the reconstruction is that it was prepared in anticipation of litigation, a purpose

unrelated to the highway safety program. Mr. Lejeune testified that ORM has “no

other good reason for compiling this data than litigation.” He further testified that

ORM does not even review reconstructions again until suit is filed. Additionally,

Mr. Jesclard testified that DOTD “has nothing to do with the reconstruction

report,” and the reconstruction has no impact on the FARS program. Although the

reconstruction stems from the notification which ORM receives under the FARS

program, there were no allegations that FARS data is used in the reconstruction

report itself. Rather, the FARS data is used solely as a notification that a fatal

accident has occurred and ORM decides if it wants to take further action in

anticipation of litigation. The reconstruction is neither required or used by DOTD,

nor is it paid for using federal highway safety funds. Consequently, we find that

ORM failed to show that the requested accident reconstruction report is protected

under 23 U.S.C. § 409. We find no legal error in the district court’s ruling.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed in the amount of $2,103.80 to the Office of Risk

Management.

AFFIRMED.

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