Wright v. Cam Hiltz Trucking et al

Filing 45

OPINION and ORDER Denying Plaintiff's Motion to Compel Defendant Hayward's Statements to His Insurer 38 . Signed by District Judge Mark A. Goldsmith. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CAROLYN WRIGHT,
Plaintiff,
Case No. 13-CV-14690
v.
HON. MARK A. GOLDSMITH
CAM HILTZ TRUCKING, et al.,
Defendants.
_________________________________/
OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO COMPEL (Dkt. 38)
I. INTRODUCTION
This matter is presently before the Court on Plaintiff’s motion to compel production of
Defendant Hayward’s statement to his insurer (Dkt. 38). For the reasons stated below, the Court
denies the motion.
II. BACKGROUND
Plaintiff Carolyn Wright filed suit against Defendants Paul Hayward and Cam Hiltz
Trucking in Wayne County Circuit Court, which Defendants then removed to this Court based
on diversity of citizenship. See Compl., Ex. A to Removal Notice (Dkt. 1). Plaintiff alleges that
Hayward was operating a freightliner semi-tractor-trailer and struck Plaintiff’s car while
attempting to change lanes on Interstate 94. Id. ¶¶ 5, 8. According to Plaintiff, this contact
caused her vehicle to “spin out,” resulting in a spinal injury to Plaintiff. Id. ¶¶ 8, 12. Plaintiff
further alleges that Cam Hiltz Trucking, the owner of the tractor-trailer operated by Hayward in
the course and scope of his employment, is liable for Hayward’s actions based on respondeat
superior, negligent entrustment, and various statutory doctrines. Id. ¶¶ 6, 19-22, 28-35.

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Less than two months after this December 27, 2012 accident, Plaintiff’s counsel wrote a
letter to Cam Hiltz, stating that he represented Plaintiff in connection with “personal injuries
resulting from a collision which occurred on December 2[7], 2012.” 2/11/2013 Preservation
Letter, Ex. C to Defs. Resp. at 2 (cm/ecf page) (Dkt. 39-4). The nine-page letter demanded that
Cam Hiltz preserve certain evidence related to the accident, delineated in 54 categories of
information and/or documents. Id. On February 27, 2013, Northbridge Insurance, Cam Hiltz’s
insurance company, responded to Plaintiff’s counsel by acknowledging receipt of the
preservation letter, and stating that its “investigation into this matter has commenced.”
2/27/2013 Insurer Letter, Ex. D. to Defs. Resp. at 2 (cm/ecf page) (Dkt. 39-5). Ten days later, on
March 8, 2013, an insurer representative met with Hayward, at which time he gave a statement.
Pl. Mot. at 1; Defs. Resp. at 2, 4 (Dkt. 39). This action was then filed on October 2, 2013.
At an earlier stage in this litigation, the parties had a number of discovery disputes,
including whether Hayward’s statement should be produced. Plaintiff filed a motion to compel
(Dkt. 26), which the Court denied in part. As is pertinent to the instant motion, the Court
concluded that the Hayward statement was privileged pursuant to Federal Rule of Civil
Procedure 26(b)(3)(A). See 8/21/2014 Order at 2 (Dkt. 31).
Since the Court’s August 21, 2014 order, Hayward has been deposed (Dkt. 38-1), and
Cam Hiltz has produced its employee manual (Dkt. 38-4). During his deposition, Hayward was
asked whether he had “any reason to think or believe that there would be any litigation or
lawsuit” between the time of the accident and his statement to the insurer, to which he replied,
“No, sir.” Hayward Dep. at 92. When asked whether he “anticipated any litigation or lawsuit,”
Hayward stated, “No.” Id. at 92-93. Hayward further testified that, in connection with another
accident, he had completed an incident report for Cam Hiltz out of a concern for possible

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litigation; but he did not fill out a report after this accident because he did not anticipate any
litigation. Id. at 128-129.
Cam Hiltz’s employee manual states that Cam Hiltz’s insurance company “must be
notified of . . . [a]ll accidents involving a third party.” Employee Manual, Ex. 4 to Pl. Mot. at 14
(Dkt. 38-4). The manual further states that “once [the employee] report[s] the accident, [Cam
Hiltz] will contact the insurance company.” Id.
Based on the foregoing information learned in discovery, Plaintiff has filed the instant
motion to compel Hayward’s statement to his insurer (Dkt. 38).
III. ANALYSIS
Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.” However,
under the work-product doctrine, “documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its representative . . . including the
other party’s . . . insurer” are ordinarily not discoverable. Fed. R. Civ. P. 26(b)(3)(A); Biegas v.
Quickway Carriers, Inc., 573 F.3d 365, 381 (6th Cir. 2009). In determining whether a document
was prepared in anticipation of litigation, a court asks: “(1) whether a document was created
because of a party’s subjective anticipation of litigation, as contrasted with an ordinary business
purpose, and (2) whether that subjective anticipation of litigation was objectively reasonable.”
Biegas, 573 F.3d at 381 (quoting United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006))
(internal quotation marks omitted). If a document is prepared in anticipation of litigation, the
fact that it also serves an ordinary business purpose does not deprive the document of workproduct protection, Roxworthy, 457 F.3d at 598–99, but the burden is on the party claiming

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protection to show that anticipated litigation was the “driving force behind the preparation of
each requested document.” Id. at 595.
1. The Law-of-the-Case Doctrine
At the outset, Defendants argue that, in light of the Court’s prior order ruling that the
statement was not discoverable, the law-of-the-case doctrine bars Plaintiff from re-litigating the
same issue.

Defs. Resp. at 5.

Defendants contend that Plaintiff had the option to seek

reconsideration under Local Rule 7.1(h), but chose not to do so. Id.
The law-of-the-case doctrine “posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.” Scott
v. Churchill, 377 F.3d 565, 569-570 (6th Cir. 2004) (quoting Arizona v. California, 460 U.S.
605, 618 (1983)) (internal quotation marks omitted). Importantly, however, the doctrine does
not absolutely bar a district court from reconsidering pretrial rulings. Peralta v. Dillard, 744 F.3d
1076, 1088 (9th Cir. 2014); Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589 (6th
Cir. 1995) (“At the trial court level, the doctrine of the law of the case is little more than a
management practice to permit logical progression toward judgment. Prejudgment orders remain
interlocutory and can be reconsidered at any time.”). The doctrine does not remove a district
court’s jurisdiction to reconsider, or otherwise preclude a district court from reconsidering, an
issue previously decided in the case. Gillig, 67 F.3d at 590. It is a doctrine addressed to the
Court’s discretion — not a limitation on its power to decide an issue. Arizona, 460 U.S. at 618
(“Law of the case directs a court’s discretion, it does not limit the tribunal’s power.”).
Rouse v. DaimlerChrysler Corporation, 300 F.3d 711, 715 (6th Cir. 2002), cited by
Defendants, does not counsel otherwise; in fact, it undermines Defendants’ position. In Rouse,
the Sixth Circuit reversed the district court for applying an overly wooden approach to the law-

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of-the-case doctrine. The district court had refused to consider, based on law-of-the-case,
whether ERISA invalidated a domestic relations order, reasoning that an earlier assigned judge
had upheld the validity of the order on a different theory. The Sixth Circuit held that it was an
abuse of discretion to refuse to address the merits of a new argument based on law-of-the-case.
Id. at 714.
That is the same error that Defendants urge this Court to commit. Plaintiff has pointed to
new evidence in the record, developed through discovery, which was not available when the
Court ruled on the earlier motion to compel. Nothing in the law-of-the-case doctrine absolutely
forbids a court from considering such newly discovered evidence, or counsels that it should
disregard such evidence. Adopting Defendants’ view would convert a useful tool for litigation
management into a judicial straitjacket that would prevent a court from deciding an issue on the
merits.
Therefore, the Court finds that law-of-the-case does not bar it from reconsidering
whether Hayward’s statement to the insurer is discoverable.
2. Defendant Hayward’s Subjective Anticipation of Litigation
Plaintiff argues that Hayward did not subjectively anticipate litigation arising from the
accident when he made his statement to Cam Hiltz’s insurer. Pl. Mot. at 2-3. For support,
Plaintiff cites the portion of Hayward’s deposition testimony in which he stated that he did not
have any reason to think or believe that there would be any litigation, and that he did not
anticipate any litigation. Id. at 3. Plaintiff further argues that the insurer did not anticipate
litigation because Hayward stated in his deposition that the insurance company’s investigator
told him that “this is probably the last you will ever hear about it.” Id.

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While Hayward may not have had a subjective anticipation of litigation, the Court finds
that this is not dispositive of either Cam Hiltz’s or its insurer’s anticipation of litigation. The
preservation letter sent by Plaintiff’s counsel was no idle communication. It unequivocally
communicated the likelihood of a suit being filed; the specific demand that evidence be
preserved was a clear signal that litigation was reasonably likely. O’Brien v. Ed Donnelly
Enters., Inc., 575 F.3d 567, 587 (6th Cir. 2009) (“[D]uty to preserve evidence is triggered when a
party has notice that the evidence is relevant to litigation or should have known that the evidence
may be relevant to future litigation[.]” (quotation marks and ellipsis omitted)); Sampson v. City
of Cambridge, Md., 251 F.R.D. 172, 179, (D. Md. 2008) (holding that “although litigation had
not yet begun, defendant reasonably should have known that the evidence described in the
[preservation] letter ‘may be relevant to anticipated litigation’” (quoting Silvestri v. Gen. Motors
Corp., 271 F.3d 583, 591 (4th Cir. 2001))). In fact, it is hard to fathom why an attorney would
demand that documents be preserved if there were not an intention to lodge a claim or file a
lawsuit. Therefore, the preservation letter triggered an objectively reasonable expectation of
litigation for both Cam Hiltz and its insurer.
Further, the insurer’s expectation of litigation is evidenced by its own letter, in which it
acknowledged receipt of the preservation letter and initiation of an investigation into the
accident. Given the temporal nexus between the preservation letter, the acknowledgment of the
preservation letter, and the taking of Hayward’s statement, the anticipation of litigation appears
to have been the driving force behind the taking of the statement. Therefore, the Court finds that
Cam Hiltz and its insurer both reasonably anticipated litigation.1

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Defendants argue that the insurer representative’s comment to Hayward after he gave his
statement — that Hayward would probably not hear anything further about the case — does not
prove that litigation was not anticipated by the insurer prior to the giving of the statement. It
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3. Cam Hiltz’s Insurer-Notification Policy
Plaintiff argues that Hayward’s statements to the insurer were made with an ordinary
business purpose. Pl. Mot. at 5. In support, Plaintiff contends that Cam Hiltz’s employee
manual establishes that it is the regular business practice of Cam Hiltz to have its employees
report accidents to the company’s insurer. Id. However, reporting an accident is not the
equivalent of a full-dress witness statement solicited by the insurer.

Routine reporting of

accidents to insurers — which the employee manual mandates — is simply a sound business
practice, even if litigation is not anticipated, because the insured and the insurer never know with
certainty whether a claim will be made. For that reason, courts have held that such routine
“investigative reports sent by an insured to an insurance company are generally considered to
have been created in the ordinary course of business rather than in anticipation of imminent
litigation,” Calabro v. Stone, 225 F.R.D. 96, 99-100 (E.D.N.Y. 2004). But, as Calabro makes
clear, where there are “benchmarks in the progression” towards litigation, id. at 100 — of which
there were none in that case — a subsequent document prepared by or for an insurer will be
protected.
Here, such “benchmarks” are vivid.

Plaintiff’s letter demanding preservation of

documentation clearly signaled litigation, making the insurer’s decision to take Hayward’s
statement unquestionably in anticipation of litigation. A routine obligation to report all accidents
does not strip a statement prepared in anticipation of litigation of its privileged character.
IV. CONCLUSION
For the reasons stated above, the Court denies Plaintiff’s motion to compel the production
of Defendant Hayward’s statements to his insurer (Dkt. 38).

simply reflects the representative’s thinking after hearing Hayward’s version of events. It says
nothing about the representative’s state of mind before Hayward gave his statement.
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SO ORDERED.

Dated: November 25, 2014
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court’s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on November 25, 2014.
s/Johnetta M. Curry-Williams
JOHNETTA M. CURRY-WILLIAMS
CASE MANAGER

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