Court of Appeals of Missouri, Western District, Writ Division
STATE OF MISSOURI, ex rel., SHELTER MUTUAL INSURANCE COMPANY, Relator,
THE HONORABLE R. MICHAEL WAGNER, CIRCUIT JUDGE, DIVISION 11, 17TH JUDICIAL CIRCUIT, JOHNSON COUNTY, MISSOURI, Respondent.
ORIGINAL PROCEEDING ON PETITION FOR WRIT OF PROHIBITION
Before: Victor C. Howard, Presiding Judge, Gary D. Witt,
Judge and Karen King Mitchell, Judge
C. Howard, Presiding Judge
Brennan ("Brennan") filed suit against Shelter
Insurance ("Shelter") for bad faith refusal to
settle a claim. In the course of discovery, Brennan sought
the production of all documents contained in his insurance
claims file. Shelter claims approximately 58 pages of
documents in the file are protected by attorney-client
privilege. Following an in camera review, the trial
court ordered the entire file to be produced. Shelter now
seeks a writ of prohibition from this court.
provided automobile insurance to Brennan for a Mercury Grand
Marquis. While driving the Mercury, Brennan caused a two
vehicle accident on December 6, 2009 ("Accident").
Following the Accident, Brennan was sued by the driver of the
other vehicle for her injuries and by the driver's
husband for loss of consortium ("Browns"). During
the suit, a dispute arose as to whether five additional
insurance policies that Brennan, and Brennan's parents,
held with Shelter afforded additional liability coverage. The
Browns refused to settle with Shelter for the $50, 000 limit
of the Mercury policy and the couple sued Brennan.
Ultimately, a judgment was entered against Brennan on April
16, 2013, for a total amount of $300, 000 plus interest.
Shelter paid the $50, 000 limit of the Mercury policy to the
Browns on May 20, 2013, in partial satisfaction of their
judgment against Brennan.
Browns filed the underlying equitable garnishment action
against Shelter in November 2013. They allege that Shelter
owes additional coverage amounts under the Mercury policy and
also contend that the other five policies afford additional
coverage. In the same action, Brennan filed a cross-claim
against Shelter asserting a claim for bad faith refusal to
settle the Browns' claims in the Browns' original
injury lawsuit ("Underlying Suit")
claims that, based on a letter sent by Browns' counsel on
January 4, 2010, the settlements demands were
"specifically designed to [facilitate]" a future
bad faith claim brought by Brennan against Shelter. Shelter
retained outside counsel, Foland, Wickens, Eisfelder, Roper
& Hofer, P.C., and Clay Crawford ("Crawford")
in particular, to represent Shelter's interests in
connection with the coverage dispute. Shelter retained
separate counsel from a different law firm to represent
communications related to the Accident, including
communications between Shelter and Crawford, were kept in one
course of discovery for the Underlying Suit, Shelter produced
a number of documents. Shelter withheld and redacted certain
documents from the production on the basis of the
attorney-client and work product privileges. Brennan filed a
motion on November 17, 2017 seeking an in camera
review of the documents described in Shelter's privilege
logs. Following an in camera review, the court
ordered all the documents to be produced.
sought a writ of prohibition from this Court. On January 31,
2018, this Court found that the Browns "have
affirmatively stated that they have not sought discovery of
communications from Shelter Insurance Company to its counsel,
Foland, Wickens, Roper, Hofer & Crawford, P.C. or from
Foland, Wickens, Roper, Hofer & Crawford, P.C. to Shelter
Insurance Company." Because the privileged documents
were not within the scope of the documents requested, this
Court ordered that any attorney-client communications be
removed from the documents held in camera, because
"[a]ll such communications are privileged and, thus,
absent waiver, are not discoverable," but otherwise
denied Shelter's writ petition.
February 28, 2018, the circuit court held a hearing regarding
the allegedly privileged documents. The court stated that it
was its belief that Brennan held the right to waive
attorney-client privilege for all documents in the claims
file--even those between Shelter and its attorney.
Ultimately, the court held that it would stand on its prior
ruling, again ordering the documents produced. Shelter then
filed the current writ that is before this Court, again
requesting that the circuit court be prohibited from ordering
the production of privileged material.
writ of prohibition does not issue as a matter of
right." State ex rel. Rosenberg v. Jarrett, 233
S.W.3d 757, 760 (Mo. App. W.D. 2007). "A writ of
prohibition will lie only where necessary to prevent a
usurpation of judicial power, to remedy an excess of
jurisdiction, or to prevent an absolute irreparable harm to a
party." State ex rel. Collom v. Fulton, 528
S.W.3d 42, 43 (Mo. App. S.D. 2017). "Prohibition is the
proper remedy when a trial court has abused its discretion in
a discovery order to the extent that its act exceeds its
[authority]." Id. (internal quotation omitted).
"A trial court abuses its discretion when its ruling is
clearly against the logic of the circumstances then before
the court and [is] so arbitrary and unreasonable as to shock
the sense of justice and indicate a lack of careful
consideration." Id. at 43-44 (internal
trial court ordered Shelter to produce all documents
contained in Brennan's insurance claims file. Shelter
produced some, but not all, of the file. Shelter argues that
the withheld pages are protected by attorney-client
a waiver, privileged materials are immune from
discovery." State ex rel. Chase Resorts, Inc. v.
Campbell, 913 S.W.2d 832, 838 (Mo. App. E.D. 1995).
"Application of the attorney-client privilege is a
matter of law, not judicial discretion, and is properly a
matter for prohibition." Id. "The Missouri
Supreme Court 'has spoken clearly of the sanctity of the
attorney-client privilege.'" State ex rel.
Behrendt v. Neill, 337 S.W.3d 727, 729 (Mo. App. E.D.
2011) (quoting State ex rel. Peabody Coal Co. v.
Clark,863 S.W.2d 604, 607 (Mo. banc 1993)).
"Confidentiality is essential if attorney-client
relationships are to be fostered and effective."
Id. "[T]he determinative issue [is] whether the
relationship of attorney and client existed between the
parties at the ...