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Koster v. June's Trucking12/26/2000
FOR PUBLICATION
9:40 a.m.
Michigan Mutual Insurance Co. ("Michigan Mutual") appeals by leave granted from an order entered in a garnishment proceeding compelling it to turn over to plaintiffs its entire file regarding a claim and litigation against defendants, its insured. Michigan Mutual contends that it should not be required to produce defendants' file, when the corporate defendant has dissolved and the individual defendants have died, because the file is protected by the attorney-client privilege and the work product privilege. We conclude that the portions of the file for which a privilege was asserted may be protected by the attorney work product doctrine. However, we further conclude that, in order to determine the extent to which the documents are protected, the court must first conduct an in camera review of the challenged documents. Accordingly, we reverse and remand.
This case arose from an accident that occurred in 1985 in Oakland County. A truck driven by defendant Richard June and owned by defendants June Trucking, Inc. and Clair G. June crossed a median on I- 96 and hit a vehicle in which plaintiffs rode, killing them. Defendants had an insurance policy with Michigan Mutual. Pursuant to the policy, Michigan Mutual retained a law firm to represent defendants in the wrongful death suits filed on behalf of plaintiffs. The suits were consolidated for trial and, in 1993, a judgment was entered against defendants. Michigan Mutual paid benefits to the extent of defendants' liability policy, leaving a balance of the judgment unpaid.
After judgment, plaintiffs filed writs of garnishment naming several insurers of NFO as garnishee defendants. During the course of the garnishment proceedings, plaintiffs issued subpoenas duces tecum to Michigan Mutual requesting its complete claims file concerning the accident. Michigan Mutual moved for a protective order, contending that it had paid to the limits of the policy, and that the claims file was "irrelevant to the pending matter and contains privileged communications." On March 16, 1998, the trial court entered an order directing that Michigan Mutual produce its claims file to plaintiffs, except for those documents it considered privileged. The documents for which Michigan Mutual claimed a privilege were "to be separately identified and submitted to the court for an in camera review." On June 15, 1998, Michigan Mutual produced the documents as ordered, and listed documents that it believed were protected by the attorney-client and work product privileges. It appears from the record that no in camera review was conducted. The court agreed that the documents for which Michigan Mutual claimed the attorney-client privilege could be protected by the privilege, but further concluded that plaintiffs "stand in the shoes" of defendants in the garnishment proceedings, thus vesting in plaintiffs the sole right to claim the privilege. Accordingly, the court ordered that the entire claims file be turned over to plaintiffs. It is from that order that Michigan Mutual appeals.
Michigan Mutual first argues that the documents are protected from production by the attorney-client privilege. This Court reviews a trial court's decision to grant or deny discovery for abuse of discretion. Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 616; 576 NW2d 709 (1998). However, we review de novo a decision regarding whether the attorney-client privilege may be asserted. Id. at 618.
Our Supreme Court has reasoned that "the tripartite relationship between insured, insurer, and defense counsel contains rife possibility of conflict" because "(t)he interest of the insured and the insurer frequently differ." Atlanta
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