Commonwealth v. Melear

Court of Appeals of Kentucky

Commonwealth v. Melear

638 S.W.2d 290, 1982 Ky. App. LEXIS 240

CourtCourt of Appeals of Kentucky

DecidedJuly 2, 1982

StatusPublished

Cited by1 cases

This text of 638 S.W.2d 290 (Commonwealth v. Melear) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commonwealth v. Melear, 638 S.W.2d 290, 1982 Ky. App. LEXIS 240 (Ky. Ct. App. 1982).

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Opinion

GANT, Judge.

Appellee Sheri L. Melear was indicted for second degree manslaughter arising from an accident in which an automobile being operated by her struck and killed a twelve-year-old boy on a bicycle. The driver was accompanied in the vehicle by Katrina Garstkiewicz, the owner of the vehicle, and operating with her consent in such manner that both were covered by the insurance policy of the owner-passenger. Both the driver and the passenger gave statements to an employee of the insurance carrier, copies of which the Commonwealth attempted to obtain by subpoena duces te-cum. Motion to quash this subpoena was granted by the lower court, resulting in this appeal. We affirm.

It is our opinion that Asbury v. Beerbower, Ky., 589 S.W.2d 216 (1979), is dispositive of this issue. That case held that the communications between an insured and a representative of the insurance carrier are privileged because the carrier is required to represent the insured and the insured is obligated to cooperate with the carrier, thus making it, in effect, an attorney-client relationship. Although Asbury is a civil action, it cited with approval the case of People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15 (1964), which case arose out of a criminal action.

In Ryan, a defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor. She had given a statement to her insurance carrier admitting consumption of several bottles of [291]*291beer. Her file, including this statement, had been forwarded to the attorney representing her on the criminal charge, who was not her attorney on any civil litigation. The state sought to obtain this statement, the attorney refused, and was cited for contempt by the lower court. This was reversed by the Illinois Supreme Court, which held that the communication to the insurance carrier “was clothed with the attorney-client privilege while in control of the insurer.” The case went even further, to hold that the privilege was not waived when sent at her request to her defense attorney in the criminal matter.

It is our opinion that the principles enunciated by the Supreme Court of Kentucky in Asbury v. Beerbower, supra, apply to criminal as well as civil matters and that communications between an insured and his or her insurer are privileged under the attorney-client relationship.

The order of the lower court is affirmed.

All concur.

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GANT, Judge.

Appellee Sheri L. Melear was indicted for second degree manslaughter arising from an accident in which an automobile being operated by her struck and killed a twelve-year-old boy on a bicycle. The driver was accompanied in the vehicle by Katrina Garstkiewicz, the owner of the vehicle, and operating with her consent in such manner that both were covered by the insurance policy of the owner-passenger. Both the driver and the passenger gave statements to an employee of the insurance carrier, copies of which the Commonwealth attempted to obtain by subpoena duces te-cum. Motion to quash this subpoena was granted by the lower court, resulting in this appeal. We affirm.

It is our opinion that Asbury v. Beerbower, Ky., 589 S.W.2d 216 (1979), is dispositive of this issue. That case held that the communications between an insured and a representative of the insurance carrier are privileged because the carrier is required to represent the insured and the insured is obligated to cooperate with the carrier, thus making it, in effect, an attorney-client relationship. Although Asbury is a civil action, it cited with approval the case of People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15 (1964), which case arose out of a criminal action.

In Ryan, a defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor. She had given a statement to her insurance carrier admitting consumption of several bottles of [291]*291beer. Her file, including this statement, had been forwarded to the attorney representing her on the criminal charge, who was not her attorney on any civil litigation. The state sought to obtain this statement, the attorney refused, and was cited for contempt by the lower court. This was reversed by the Illinois Supreme Court, which held that the communication to the insurance carrier “was clothed with the attorney-client privilege while in control of the insurer.” The case went even further, to hold that the privilege was not waived when sent at her request to her defense attorney in the criminal matter.

It is our opinion that the principles enunciated by the Supreme Court of Kentucky in Asbury v. Beerbower, supra, apply to criminal as well as civil matters and that communications between an insured and his or her insurer are privileged under the attorney-client relationship.

The order of the lower court is affirmed.

All concur.

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638 S.W.2d 290, 1982 Ky. App. LEXIS 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-melear-kyctapp-1982.

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