United States District Court, District of Wyoming
COURT'S OPINION ON THE COMMUNICATIONS BETWEEN
DEFENDANT AND HIS INSURER
L. Carman, United States Magistrate Judge
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.
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.
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.
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
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.
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.
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
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
Thomas court ultimately concluded that
communications between the insured and the insurer were