Madison v. Hawkins

644 N.E.2d 184, 1994 Ind. App. LEXIS 1709, 1994 WL 697900
CourtIndiana Court of Appeals
DecidedDecember 15, 1994
DocketNo. 82A04-9407-CV-292
StatusPublished
Cited by3 cases

This text of 644 N.E.2d 184 (Madison v. Hawkins) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Madison v. Hawkins, 644 N.E.2d 184, 1994 Ind. App. LEXIS 1709, 1994 WL 697900 (Ind. Ct. App. 1994).

Opinions

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

Bonnie Madison appeals the trial court's order requiring her to produce documents to Viola Hawkins. We reverse.

ISSUES

I. Whether the rule of law announced in Richey v. Chappell (1992), Ind., 594 N.E.2d 448, includes a requirement of privity of contract between the insured and the insurer.

II. Whether a motor vehicle accident report prepared for the Indiana State Police, concerning an accident which is the basis for a personal injury claim, and which is retained [185]*185in the file of the automobile lability insurance carrier, is subject to discovery?

FACTS

On January 28, 1998, Bonnie Madison was driving Glen and Marguerite Blocker's automobile when she was involved in an accident with Viola Hawkins, a pedestrian. The Blockers' vehicle was insured with Liberty Mutual Insurance Company.1

Liberty Mutual investigated the accident, and obtained a recorded statement and a handwritten accident report from Madison. Madison's report was attached to another report which Blocker had prepared. Madison also sent an accident report to the Indiana State Police on a state provided form. Liberty Mutual retained a copy of this report in its files.

On June 4, 1998, Hawkins filed a complaint against Madison alleging that Madison drove the vehicle negligently and caused Hawkins' injuries. Madison filed an answer and denied liability. During discovery, Hawkins requested production of 1) Madison's recorded statement to Liberty Mutual; 2) Madison's written report to Liberty Mutual; 3) Madison's report to the Indiana State Police; and 4) Madison's report to Auto-Owner's. Madison refused Hawkins' request arguing that her statements and reports to Liberty Mutual and Auto Owners were protected from disclosure under Richey v. Chappell (1992), Ind., 594 N.E.2d 443, and that the accident report prepared for the Indiana State Police and retained in Liberty Mutual's file was protected by Ind.Code 9-26-3-4.

Hawkins filed a motion to compel discovery, and the trial court entered an order compelling the production of certain doeu-ments in Liberty's possession. The court's order states in pertinent part as follows:

"It is therefore ordered that the Defendant produce to the Plaintiff the report made by the Defendant to the State of Indiana and provided to Liberty Mutual, and the report made by the Defendant to Liberty Mutual Insurance Company. The Plaintiffs Motion to Compel Discovery of the report made by the Defendant to her insurance Company, Auto Owners Insurance Company, is denied."

R. at 26.

Upon motion by Madison, and over the objection of Hawkins, the trial court certified the discovery order for interlocutory appeal on June 22, 1994. This court entered an order accepting jurisdiction of the interlocutory appeal pursuant to Ind.Appellate Rule 4(B)(6).

DECISION

I. Madison's Recorded Statement and Accident Report for Liberty Mutual

Our standard of review in discovery matters is limited to determining whether the trial court abused its discretion. Richey v. Chappell (1992), Ind., 594 N.E.2d 443, 447. Madison argues that the trial court abused its discretion by ordering her to produce the recorded statement and accident report which she prepared for Liberty Mutual. Specifically, Madison argues that the facts of this case fall squarely within Richey, and that these documents are protected from disclosure. Hawkins argues that this case is distinguishable from Richey because Madison has no privity of contract with Liberty Mutual. We agree with Madison.

In Richey, our supreme court stated as follows:

"[Wle hold that where the policy of insurance requires the insurer to defend claims against the insured, statements from the insured to the insurer concerning an occurrence which may be made the basis of a claim by a third party are protected from disclosure."

Id. at 447.

Here, Madison was driving the Blockers automobile when the accident occurred. The Blockers have an insurance policy with Liberty Mutual which states in pertinent part as follows:

"PART A
We will pay damages for 'bodily injury' or 'property damage' for which any "insured becomes legally responsible because of an [186]*186automobile accident.... We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we ineur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted.
'Insured' as used in this Part means ... any person using 'your covered auto'.
R. at 59.

According to the terms of the policy, Madison, who was driving the Blockers' automobile at the time of the accident, is an insured. The policy requires Liberty Mutual, the insurer, to defend claims against an insured. As a result, any statements that Madison made to Liberty Mutual concerning the accident involving Hawkins, which is now the basis of a claim by Hawkins, are protected from disclosure. Clearly, the facts of this case fall squarely within Richey.

In addition, our reading of Richey reveals that the supreme court did not include a requirement of privity of contract between the insurer and the insured.2 Richey's holding states specifically that statements from the insured to the insurer are protected from disclosure. Here, according to the terms of the policy, Madison is the insured, and Liberty Mutual is the insurer. We decline Hawking' invitation to include a privity of contract requirement.

Hawkins further argues that even if this case falls squarely within Richey, and privity of contract is not required, Madison waived the Richey protection because she and Blocker prepared jointly Madison's report to Liberty Mutual.3 In her reply brief, Madison argues that there is nothing in the record which indicates that Blocker and Madison prepared jointly Madison's report. We agree with Madison. Our review of the record reveals no evidence that Blocker and Madison prepared jointly the report to Liberty Mutual and, even if they had, Hawkins has failed to cite any authority in support of her argument that joint preparation of a report waives the protection provided by Richey.

Lastly, Hawkins argues that there is a "factual distinction between the communications in Richey and the form reports in this case." Hawkins' Brief, p. 6. Specifically, Hawkins argues as follows:

"The court in Richey v. Chappell, supra, addressed the privileged nature of private communications between an insured and his insurer which included letters, photos, and a phone message. The privilege set forth in Richey insures full communication in such private matters and is directed at question-and-answer - statements - about 'sensitive matters which may be embarrassing, incriminating or detrimental to the insured." Richey v. Chappell, 594 N.E.2d at 446.

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Cite This Page — Counsel Stack

Bluebook (online)
644 N.E.2d 184, 1994 Ind. App. LEXIS 1709, 1994 WL 697900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/madison-v-hawkins-indctapp-1994.