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FOMBY v. POPWELL11/22/1996
This is a personal injury case in which the plaintiff, Sabrina Fomby, appeals from a judgment entered on a jury verdict in favor of the defendant, James Popwell.
The facts of this case are as follows: On August 6, 1994, Fomby and two of her friends, Stacey Baker and Jill Rogers, were planning to spend the day boating on Lake Martin. At some point, they decided to dock their boat and to ride with Popwell and two of his friends, Matthew Scott and Ernie Scott, in a ski boat owned by Popwell's father. The witnesses testified that the weather conditions were windy and that the lake was crowded and the water was choppy. Fomby and her friends had been riding in Popwell's boat for approximately 3 to 4 hours when they came upon the wake of a houseboat. Popwell, who was driving the boat, testified that he crossed the wake at a 45-degree angle. When the boat crossed the wake, it caused Fomby, who was sitting or squatting on the floor of the boat between the driver's seat and the passenger's seat, to bounce in the air and land on her back. As a result, Fomby's back was broken. None of the other passengers was injured. The witnesses testified that there were empty seats available for Fomby to use at the time her injury occurred.
Fomby sued Popwell, alleging that he had negligently or wantonly caused her injury. The case proceeded to trial on both claims; however, at the conclusion of Fomby's evidence, the trial court granted Popwell's motion for a directed verdict on the claim of wantonness. The trial continued on the issue of negligence, and the jury returned a verdict in favor of Popwell. Fomby appealed to the Alabama Supreme Court, which deflected the case to this court pursuant to ยง 12-2-7(6), Ala. Code 1975.
Fomby raises several issues on appeal. First, she argues that the trial court abused its discretion in denying her motion to compel Popwell to produce certain requested discovery.
The record reflects that Fomby requested Popwell to produce copies of:
"Any and all statements made by any witness who may be called at the trial of this cause (specifically including, but not limited to, any statements made by James Popwell, Matthew Scott, Ernie Scott, and Robert G. Popwell). Said request specifically includes any and all statements made by any witness to the defendant's insurance carrier."
Popwell objected to the production of statements made to his insurance carrier on the ground that these statements constituted work-product and were not discoverable pursuant to Rule 26(b)(3), Ala. R. Civ. P. Popwell also moved the court to enter an order protecting these statements from discovery. After allowing the parties to argue their positions at the pre-trial hearing on February 14, 1996, the trial court denied Fomby's request as to statements made by Matthew Scott and James Popwell. Apparently, there was some confusion as to the trial court's ruling, which the court clarified at the request of Fomby's attorney on February 26, 1996, the first day of trial. Although the court clarified its order for the record on February 26, the record reflects that Fomby's attorney had spoken with the trial judge the previous week, and had at that time orally received clarification of the trial court's ruling.
Rule 26(b)(3) protects documents and other tangible things prepared "in anticipation of litigation" by a party or a party's representative, and specifically includes a party's insurer as such a representative. Under this rule, the work-product is discoverable
"only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undu
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