Bruce L. Kimball v. Alison E. Parker.

• Court: Massachusetts Appeals Court
• Decided: August 13, 2024
• Docket: 23-P-0976
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-976

BRUCE L. KIMBALL

vs.

ALISON E. PARKER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Bruce L. Kimball, appeals from an order of

the Superior Court allowing the motion of the defendant, Alison

E. Parker, to quash the plaintiff's subpoena for the claim file

prepared by the defendant's insurer, Safety Insurance Company

(Safety). At the hearing on the motion to quash, the plaintiff

specified that he sought to obtain a recorded statement the

defendant made to Safety following a car accident and any notes

Safety prepared about the matter. Because we conclude that the

judge did not err in finding that Safety's claim file was

protected by the work product doctrine, we affirm.1

1We acknowledge the amicus brief submitted by Safety Insurance Company. Background. On June 25, 2019, the plaintiff and the

defendant were involved in a car accident. On September 2,

2019, counsel for the plaintiff informed the defendant that the

plaintiff had obtained legal representation "regarding a claim

for personal injuries sustained" in that accident. The letter

advised the defendant, "If we do not hear from you or your

insurance representative within fifteen (15) days from the date

of this letter we will file suit."

Nearly three years later, on June 15, 2022, the plaintiff

filed a civil complaint in Superior Court. The complaint

alleged that, on June 25, 2019, the defendant had negligently

caused personal injuries to the plaintiff by driving through a

red light and crashing into the plaintiff's car. The defendant

answered the complaint, denying liability for the automobile

accident. Less than a month after the answer was filed, the

plaintiff served Safety, the insurer of the defendant's vehicle,

with a subpoena for "[a] complete copy of any and all claim

files and/or personal injury files" pertaining to the accident.

Counsel for the defendant responded by informing the plaintiff's

attorney that the subpoena sought "information protected by the

work product doctrine and/or materials prepared in anticipation

of litigation."

The defendant filed a motion to quash the plaintiff's

subpoena pursuant to Mass. R. Civ. P. 26 (b) (3), 365 Mass. 772

2 (1974). At the hearing on the motion to quash, the plaintiff's

counsel specified that he sought the defendant's recorded

statements and Safety's claim notes. On the same day the judge

issued an order allowing the defendant's motion to quash. The

plaintiff sought interlocutory relief from a single justice of

the Appeals Court pursuant to G. L. c. 231, § 118, first par.

The single justice issued an order on June 5, 2023, granting the

plaintiff "leave . . . to file an interlocutory appeal from the

May 4, 2023[] order entered in the Middlesex Superior Court."

Discussion. The Superior Court judge ruled that the claim

file was not discoverable because she found that "[l]itigation

was 'threatened' on Sept. 2, 2019[,] via letter" and that

Safety's claim file was "[t]herefore . . . protected by the work

product doctrine."

"The work product doctrine . . . protects (1) documents and

tangible things, (2) by or for another party or by or for that

other party's representative (including his [or her] attorney,

consultant, surety, indemnitor, insurer, or agent), and (3) in

anticipation of litigation or for trial" (quotations omitted).

McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 194 (2012).

"[A] document is within the scope of the rule if, 'in light of

the nature of the document and the factual situation in the

particular case, the document can be fairly said to have been

prepared because of the prospect of litigation.'" Commissioner

3 of Revenue v. Comcast Corp., 453 Mass. 293, 317 (2009), quoting

United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998).

The plaintiff argues that the judge erred because Safety's claim

file is covered by the "ordinary course of business" exception

to the work product doctrine and is therefore discoverable. See

Attorney Gen. v. Facebook, Inc., 487 Mass. 109, 127 (2021),

quoting Comcast Corp., 453 Mass. at 318-319 ("a document that

would have been prepared 'irrespective of the prospect of

litigation' is not covered by the work product doctrine").

Specifically, the plaintiff argues that, because Safety is

in the business of investigating insurance claims, any documents

that Safety produces while investigating claims are generated in

the ordinary course of Safety's business and must be

discoverable. But Safety's business also anticipates litigation

because many automobile accidents raise the prospect of civil

lawsuits. In this case, as the judge noted, the plaintiff

threatened litigation shortly after the accident took place.

The defendant was on notice that the plaintiff had retained

counsel and that he anticipated filing a lawsuit. Because the

"prospect of litigation" was raised by the plaintiff, Comcast

Corp., 453 Mass. at 317, the judge did not err in deciding that

documents Safety prepared after this point constituted work

product generated in anticipation of litigation and should be

excluded from the plaintiff's discovery requests.

4 Even were we to conclude that the judge was wrong in

quashing the plaintiff's subpoena request, the plaintiff is

unable to show that his inability to access Safety's claim file

caused him prejudice. See Solimene v. B. Grauel & Co., K.G.,

399 Mass. 790, 799 (1987). The plaintiff may obtain

substantially the same information that would be contained in

Safety's claim file during the ordinary course of discovery.

Order dated May 4, 2023, affirmed.

By the Court (Henry, Grant & D'Angelo, JJ.2),

Clerk

Entered: August 13, 2024.

2 The panelists are listed in order of seniority.