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Hanson v. Swainston

United States District Court, District of Wyoming

August 20, 2018

NATHAN HANSON an individual, Plaintiff,
v.
KEVIN SWAINSTON an individual, Defendant,

          COURT'S OPINION ON THE COMMUNICATIONS BETWEEN DEFENDANT AND HIS INSURER

          Mark L. Carman, United States Magistrate Judge

         On June 27, 2018, this Court held an informal discovery conference with the parties regarding whether Defendant Kevin Swainston's communications with his insurance company were privileged, and if so, whether that privilege was waived [Doc. 20]. At the Court's request, Swainston briefed the issue on July 16, but did not file a motion for protective order [Doc. 21]. The briefing will be considered a motion for a protective order for purposes of this issue. Plaintiff Nathan Hanson responded to that briefing on July 23, 2018 [Doc. 23] and Swainston replied on July 30, 2018 [Doc. 28]. In the interim, Swainston moved for an in-camera inspection of a transcript, notes and emails detailing the conversations between Swainston and his insurer [Doc. 22]. This Court granted that Motion on August 14 for all communications between Swainston and his insurer during the relevant period [Doc. 30]. The court received and reviewed those documents on August 16, 2018.

         I. BACKGROUND

         The matter arises out of an accident that occurred during October 2015 at a Teton County construction site [Doc. 1 ¶ 6]. Hanson was employed by Swainston through his company SCE Concrete and Excavation ("SCE"). Id. ¶¶ 3-4. Hanson alleges that Swainston ordered him to hold a cylinder while Hanson used a "rammer" to test the compaction of the material they were using to construct a wall. Id. ¶¶ 10-11. As Hanson held the cylinder, the rammer slipped, injuring both of Hanson's hands. Id. ¶ 11.

         On May 19, 2016, Hanson notified SCE's insurer, Liberty Mutual of a potential claim arising from the above described event [Doc. 21 p. 4]. After consulting with Swainston, Liberty Mutual denied Hanson's claim, stating that because Hanson was a permanent employee under the insurance plan, he could not collect damages for injuries sustained during the scope of his employment [Doc. 23 p. 5]. Three months later, Liberty Mutual called Hanson's attorney and left a voicemail which, among other things, stated that Swainston told Liberty Mutual the accident was caused by Hanson attempting to answer his phone while he was holding the cylinder [Doc. 21 pp. 4-5]. Liberty Mutual later echoed the voicemail in an email to Hanson's counsel. Id. at 5. Hanson alleges his phone records contradict that a phone call precipitated his injury. Id. at 5-6.

         Liberty Mutual received a phone call and email from Hanson on August 10, 2017 requesting a copy of Hanson's case file because he was "ready to pursue litigation" [Doc 23-5]. Liberty Mutual re-contacted Swainston for his version of the accident [Doc. 23 p. 5]. After speaking with Swainston, Liberty Mutual left another voicemail with Hanson, again saying that Swainston believed the phone call caused the accident.

         On November 21, Hanson sued Swainston, but not SCE Concrete and Excavation, alleging Swainston was liable for reckless, willful, wanton and or/reprehensible conduct for ordering Hanson to hold the cylinder while he used the rammer [Doc. 1]. On May 31, Hanson deposed Swainston, who recalled that there was a ringing phone but was not sure whose phone or if it related to the events leading to Plaintiffs injuries. [Doc. 21 p. 6]. In addition, Swainston objected to questions about what he told Liberty Mutual, arguing those discussions were protected under attorney-client privilege. Id. This dispute over whether Swainston's communications were privileged led to the June 27 discovery conference, and now, the present dispute.

         II. ANALYSIS

         A. Privilege

         Federal courts sitting in diversity apply state law regarding attorney-client privilege. Frontier Refining v. Gorman-Rupp Co., Inc., 136 F.3d 695, 699 (10th Cir. 1998). This Court must look to Wyoming law to determine the scope of the attorney-client privilege.

         Thomas v. Harrison, 634 P.2d 328 (Wyo. 1981) concerned the discovery of a written statement provided by a doctor to his malpractice liability insurer. Limited facts were provided, but the doctor last saw the patient on April 11, 1976, and the statements were given on February 23 & 24, 1977, or about 10 months after the doctor ended his treatment of the patient. The statements were "given to insurance carrier." Id. at 331. After determining that the documents were protected from disclosure under the work-product doctrine, the court proceeded to address the attorney-client privilege. In doing so the court relied upon the annotation, Privilege of communications of reports between liability or indemnity insure and insured. 22 A.L.R. 2d 659, and adopted the majority rule as follows:

According to the weight of authority, a report or other communication made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.

         The Thomas court ultimately concluded that communications between the insured and the insurer were ...


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