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In re Goin

Court of Appeals of Texas, Sixth District, Texarkana

July 12, 2017


          Submitted: July 11, 2017

         Original Mandamus Proceeding

          Before Morriss, C.J., Moseley and Burgess, JJ.


          Ralph K. Burgess Justice

         This original mandamus proceeding emanates from a discovery dispute regarding allegedly privileged attorney-client communications-comprised of an insurance claim file-in connection with a lawsuit in which relator John Goin has alleged various causes of action against the real party in interest, Travelers Property Casualty Company of America (Travelers), based on Travelers' alleged abandonment of Goin's defense in a lawsuit in which an eight-figure damage award was rendered against him. The trial court reviewed the disputed communications in camera and upheld the privilege with respect to certain of the communications. Goin, together with relator Hope Crump, [1] filed this petition for a writ of mandamus, asking this Court to direct the 336th Judicial District Court of Fannin County to compel Travelers to produce the disputed claim file free of redaction. We conditionally grant, in part, the petition for writ of mandamus.

         I. Background

         In January 2012, Goin, an employee of Mica Corporation (Mica), was driving a pickup truck owned by Mica when it was involved in a rollover accident in which the passenger, Hope Crump, was ejected and rendered a paraplegic. In March 2012, Crump sued Goin and Mica in Anderson County, seeking recovery of damages for personal injuries sustained as a result of the accident. The truck, and all permissive users, were covered by a commercial automobile policy issued to Mica by Travelers. Consequently, Travelers hired counsel to defend Goin in the lawsuit.[2]

          In January 2013, Crump nonsuited the Anderson County lawsuit and later refiled her claims in Dallas County.[3] Travelers did not tender a defense on Goin's behalf for approximately eighteen months after the lawsuit was filed, by which time most of the pretrial deadlines had expired. The trial took place in February 2015, at the conclusion of which the trial court entered judgment against Goin in the amount of $10, 125, 433.96, prejudgment interest in the amount of $220, 532.40, and post-judgment interest at the rate of 5% per annum. In April 2015, Goin filed suit (bad faith lawsuit) against Travelers, alleging causes of action for breach of contract, tortious interference, promissory estoppel, breach of fiduciary duty, negligence, breach of the duty of good faith and fair dealing, unfair insurance practices, deceptive trade practices, violations of the Texas Insurance Code, and fraud, among other things, primarily as a result of Travelers' failure to defend and to indemnify Goin in the Dallas County lawsuit.

         During the course of the bad faith lawsuit, Goin requested a copy of Travelers' claim file relating to the Dallas County lawsuit, as the adjuster assigned to the claim testified in his deposition that he reviewed the claim file to prepare for his deposition. Travelers produced a heavily redacted version of the claim file and asserted attorney-client privilege with respect to the redacted information. Both Goin and Crump moved to compel the production of an unredacted version of the claim file, contending that Travelers' internal discussions regarding its decision to abandon Goins' defense went to the heart of Goin's bad faith and fraud claims. Travelers produced a privilege log, and asserted that the redacted information was protected by the attorney-client privilege. In addition, it proffered a declaration of senior counsel, Alicia Barton, in support of the privilege assertion. The declaration reads,

1. My name is Alicia Barton, my date of birth is June 5, 1978, and I reside in Plano[, ] Texas.
2. I am of sound mind and am in all respects competent to make this declaration. The facts contained in this declaration are true and correct.
3. I am employed as Senior Counsel by The Travelers Indemnity Company and their property-casualty affiliates, one of which is Travelers Property Casualty Company of America ("Travelers"), and I have worked in this role since September 1, 2010.
4. My role as Senior Counsel is to provide legal advice in connection with insurance claim related matters.
5. I am licensed to practice law in the State of Texas and am in good standing.
6. I declare under penalty of perjury that the foregoing is true and correct.

         Travelers advanced no other testimonial evidence in support of ...

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