Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Mid-Century Insurance Co.

Court of Appeals of Texas, Tenth District

October 25, 2017

IN RE MID-CENTURY INSURANCE COMPANY

          Reissued as an Opinion December 6, 2017

         Original Proceeding

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          OPINION

          TOM GRAY Chief Justice

         Mid-Century Insurance Company has filed a petition for a writ of mandamus to compel the trial court to withdraw an order overruling its claims of work product privilege to certain documents in its claims file relating to its insured, Monica Cobb. Cobb filed a notice of intent to take a written deposition of the custodian of records for Mid-Century which included a subpoena duces tecum requiring the production of its entire claims file. Cobb asserted an underinsured motorist claim (UIM) against Mid-Century and had added claims for extra-contractual damages for bad faith. Mid-Century filed a motion to quash the deposition on the basis that the documents now in question sought by Cobb were privileged work product.[1]

         The trial court conducted a hearing on Mid-Century's objections and assertion of privilege. Mid-Century filed an affidavit by a claims adjuster and provided the trial court with a privilege log prior to the hearing, and asked the trial court to review the documents in-camera. The trial court conducted an in-camera inspection of the documents in question and overruled Mid-Century's assertions of work product privilege. Mid-Century filed this mandamus proceeding to seek an order requiring the trial court to withdraw its order overruling its assertions of work product privilege.

         Standard of Review

         To be entitled to mandamus relief, a relator must demonstrate (1) the trial court clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The scope of discovery is within the discretion of the trial court. In re Mem'l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015) (orig. proceeding). Appeal is not an adequate remedy when the trial court has erroneously ordered the production of privileged documents. In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding).

         Work Product Privilege

         The work product privilege protects communications "made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents." Tex.R.Civ.P. 192.5(a)(2). The work product privilege is not necessarily specific to the claim for which it is sought, but is specific for the claim for which it was created. Once it is created as work product in relation to a claim, it remains work product and protected by a privilege from disclosure from any claim, subject only to limited exceptions such as waiver. In this mandamus proceeding, Mid-Century complains that the trial court abused its discretion by overruling its claims of work product privilege.

         Assertion of the Privilege

         A party who seeks to withhold items from discovery on the basis that the documents are privileged must make a prima facie showing that the documents are subject to the privilege asserted. In re E. I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding). Generally, this prima facie showing is made by serving a privilege log identifying the withheld documents and, if a hearing is held, by presenting evidence supporting the privilege. See In re Maher, 143 S.W.3d 907, 913 (Tex. App.-Fort Worth 2004, orig. proceeding); In re Monsanto Co., 998 S.W.2d 917, 924 (Tex. App.-Waco 1999, orig. proceeding). The evidentiary requirement may be satisfied by the documents themselves. See DuPont, 136 S.W.3d at 223. Cobb argues that Mid-Century did not timely make a prima facie case for the privileges asserted because the privilege log and affidavit were inadequate and therefore, all asserted privileges were waived.

         Mid-Century provided a privilege log prior to the hearing regarding the asserted privileges and the trial court conducted an in-camera inspection of all of the documents Mid-Century asserted were privileged. We find that the privileges were not waived because the documents themselves, taken with the affidavit of the claims adjuster, were adequate to make the required prima facie showing. DuPont, 136 S.W.3d at 223.

         Core versus ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.