Fisher v. Erie Ins. Exch.

258 A.3d 451

Helen FISHER and William Fisher, Her Husband, Appellees

v.ERIE INSURANCE EXCHANGE a/k/a Erie, Appellant

No. 1597 WDA 2018

Superior Court of Pennsylvania.

Argued June 3, 2020

Filed: June 25, 2021

Louis C. Long, Pittsburgh, for appellant.

Joseph J. Nypaver, Hollidaysburg, for appellees.

BEFORE: PANELLA, P.J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

OPINION BY STABILE, J.:

Appellant, Erie Insurance Exchange ("Erie"), appeals from the October 19, 2018 order entered in the Court of Common Pleas of Blair County directing, inter alia , that Erie submit claims file materials to the trial court for an in camera review. Erie contends the trial court erred in ordering production of materials protected by the attorney-client privilege and the work product doctrine and asserts this Court has jurisdiction to hear this appeal from a collateral order under Pa.R.A.P. 313. Following review, we quash the appeal.

A review of the record reveals that Appellee, Helen Fisher ("Helen"), allegedly sustained injuries on July 19, 2013, due to the negligence of Bobbie Jo Green ("Green"). Helen and her husband, William (collectively "the Fishers"), filed suit against Green, alleging Green parked her truck in a bowling alley parking lot, leaving her child unattended in the vehicle. After a period of time, the truck began drifting downhill in the parking lot. Helen sustained injuries when she fell while trying to move out the path of the truck. See Complaint, 1/29/16, ¶¶ 6-13. Both the Fishers and Green were insured by Erie.¹

The Fishers also asserted an underinsured motorists ("UIM") claim against Erie. By letter dated August 24, 2015, Erie advised the Fishers’ counsel that the UIM file had been forwarded "to assist Erie in the liability investigation and damage evaluation. ... Specifically Arthur J. Leonard of Robb, Leonard & Mulvihill has been assigned." See Appellees’ Response to Rule to Show Cause, 12/19/18, at Exhibit A. The Fishers’ counsel received a letter dated September 3, 2015 from Arthur J. Leonard, Esquire ("Leonard"), of Robb Leonard Mulvihill, LLP, indicating in part, "I have been requested by [Erie] to assist in the investigation and evaluation of the [UIM] claim that you have presented on behalf of your clients, Helen and William Fisher." Id. at Exhibit B. In his letter, Leonard advised the Fishers’ counsel that he was seeking additional documentation relating to Helen's injuries and was interested in obtaining the documentation in advance of taking the Fishers’ depositions. Leonard explained:

The purpose of this examination and securement of these records is to assist in aiding Erie in the evaluation of your client's claim for both liability and damage. The purpose of the examination under oath is to investigate the happening of the incident as well as to evaluate your client's condition and the affect this incident may have had on her and her husband.

Id.

Counsel for the Fishers did not respond to Leonard's letter. Nearly five months later, on January 29, 2016, the Fishers filed suit against Erie, contending Green was underinsured, and alleging breach of contract and bad faith with respect to the Fishers’ UIM claim. Leonard filed pleadings on behalf of Erie as well as objections to discovery served by the Fishers.

At issue in this appeal is the trial court's October 19, 2018 directive with respect to discovery, specifically with respect to the Fishers’ Request for Production #16 and Erie's response thereto. The Fishers requested:

16. A complete copy of all documentation reflecting any investigation, evaluation and/or valuation of [the Fishers’] claims for [UIM] coverage authored, prepared by or obtained by Arthur J. Leonard, Esquire and/or the law firm of Robb Leonard Mulvihill.^{[2 ]}

Erie responded:

ANSWER: Request No. 16 is overly broad, unduly burdensome, seeks information which is irrelevant, protected by the attorney-client privilege, work-product doctrine, Pennsylvania Rule of Civil Procedure 4003.3 - 4003.5 and/or will not lead to the discovery of admissible evidence.

Request for Production #16 and Response.³

On July 13, 2018, the trial court heard argument on Erie's objections to Request for Production #16 as well as other objections lodged by Erie. By order entered October 19, 2018, the trial court directed, "With regard to Request for Production of Documents 16, [Erie] shall submit to his court for in camera review the responsive information [ ] within twenty (20) days from receipt of the Opinion and Order." Order, 10/19/18, at 2 (some capitalization omitted). Addressing Request for Production #16 in its accompanying opinion, the court explained:

[Erie] objects with identical boilerplate language that it uses in a number of other responses to the Request for Production of Documents. We find that the information requested is relevant and material to [the Fishers’] cause of actions or possibly [Erie's] affirmative defenses and do not find the term[s] used by [the Fishers] in the request to be vague or overly broad, or unduly burdensome. However, on its face, the request may seek some, if not all, documentation/information that is protected . [The Fishers rely] on the letter from defense counsel dated September 3, 2015 for [their] argument that Erie waived its attorney-client privilege as to Attorney Leonard and his firm's role in the investigation, valuation, and evaluation of [the Fishers’ UIM] claim. While this court understands [the Fishers’] position, we decline to find that the September 3, 2015 letter automatically renders any and all documentation between [Erie] and its counsel unprivileged. [Erie] shall submit the requested information to this court for an in camera review in order for this court to determine the extent that the information contained therein is privileged. Accordingly, [Erie's] general objection is overruled and [the Fishers’] consolidated motion to dismiss as to this request is deferred until this court conducts an in camera review of the information as it pertains to this request.

Opinion, 10/19/18, at 21-22 (emphasis added) (some capitalization omitted).

This timely appeal followed. In its docketing statement filed with this Court, Erie averred the trial court's October 19, 2018 order was appealable under Pa.R.A.P. 313 as a collateral order.⁴ On November 30, 2018, we issued a rule to show cause why the appeal should not be quashed. Erie responded, asserting:

The Order meets the requirements of Rule 313 and, therefore, is immediately appealable because: (1) it is collateral to the main cause of action since it may be analyzed without analyzing the central issues of the case; (2) it implicates rights too important to be denied review, i.e., the public's interest in protecting the attorney-client privilege; and (3) such important rights will be lost if review is postponed until final judgment.

Erie's Response to Rule to Show Cause, 12/13/18, at 3. With respect to the third prong of Rule 313, Erie contends that once the information is disclosed, confidentiality would be lost. Id. at 4 (citation omitted).

The Fishers counter:

Other than arguing the same boilerplate objections, Erie was either unable or unwilling to offer one iota of evidence or factual support for the boilerplate objections at the oral argument on July 13, 2018. The objecting party bears the burden of establishing the requested information is not relevant or discoverable. ...

....

Erie is unable to satisfy the third prong establishing this interlocutory order as being a collateral order. No rights or interests will be "lost" through an in camera review of the documents sought by the trial court. In fact, the exact opposite is true. [The trial judge's] cautious approach actually preserves privilege or work product to the extent such rights are established where an insurer has delegated the duties of investigation and evaluation to an attorney.

There is no other method to determine whether the investigation and evaluation documents are subject to privilege or work product. If the trial court does not review the investigation and evaluation documents sought then who is going to complete this duty?

Fishers’ Response to Rule to Show Cause, 12/19/18, at 2-3 (unnumbered) (citation omitted).

By order of December 20, 2018, we discharged the rule and permitted the appeal to proceed, subject to the assigned panel revisiting the appealability issue. A briefing schedule was established and the parties filed their briefs accordingly.

In the interim, the trial court issued a Rule 1925(a) opinion. Although the October 19, 2018 Opinion and Order addressed numerous objections to the Fishers’ discovery requests, Erie's Rule 1925(b) statement was limited to the court's ruling with respect to Request for Production #16. Addressing this error asserted in the Rule 1925(b) statement, the trial court stated:

With regard to Request Number 16, [the Fishers] argued that it did not seek mental impressions or trial strategy of attorney-client privileged or work product materials, but rather was based upon the pre-complaint letters from Erie and Attorney Leonard, which state that Attorney Leonard had been assigned by Erie to assist with the liability investigation and damage evaluation. At the July 13, 2018 hearing, Attorney Leonard argued the general objections and that the letter, as clearly authored by him, protected disclosure.

On October 19, 2018, we entered an Opinion and Order determining, among other matters, that the court would conduct an in-camera review of those items requested pursuant to [Request for Production #16]. [Erie] filed a timely appeal on November 8, 2018. We entered an Order on November 9, 2018, [directing Erie to file a Rule 1925(b) statement. Erie timely complied, listing six alleged errors.]

We have reviewed [Erie's Rule 1925(b) statement] and note that all claims of alleged error involved the court's ruling relative to [Request for Production #16]. Further, we note that [Er

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