Bruce L. Kimball v. Alison E. Parker. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-976
BRUCE L. KIMBALL
vs.
ALISON E. PARKER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Bruce L. Kimball, appeals from an order of
the Superior Court allowing the motion of the defendant, Alison
E. Parker, to quash the plaintiff's subpoena for the claim file
prepared by the defendant's insurer, Safety Insurance Company
(Safety). At the hearing on the motion to quash, the plaintiff
specified that he sought to obtain a recorded statement the
defendant made to Safety following a car accident and any notes
Safety prepared about the matter. Because we conclude that the
judge did not err in finding that Safety's claim file was
protected by the work product doctrine, we affirm.1
1We acknowledge the amicus brief submitted by Safety
Insurance Company.
Background. On June 25, 2019, the plaintiff and the
defendant were involved in a car accident. On September 2,
2019, counsel for the plaintiff informed the defendant that the
plaintiff had obtained legal representation "regarding a claim
for personal injuries sustained" in that accident. The letter
advised the defendant, "If we do not hear from you or your
insurance representative within fifteen (15) days from the date
of this letter we will file suit."
Nearly three years later, on June 15, 2022, the plaintiff
filed a civil complaint in Superior Court. The complaint
alleged that, on June 25, 2019, the defendant had negligently
caused personal injuries to the plaintiff by driving through a
red light and crashing into the plaintiff's car. The defendant
answered the complaint, denying liability for the automobile
accident. Less than a month after the answer was filed, the
plaintiff served Safety, the insurer of the defendant's vehicle,
with a subpoena for "[a] complete copy of any and all claim
files and/or personal injury files" pertaining to the accident.
Counsel for the defendant responded by informing the plaintiff's
attorney that the subpoena sought "information protected by the
work product doctrine and/or materials prepared in anticipation
of litigation."
The defendant filed a motion to quash the plaintiff's
subpoena pursuant to Mass. R. Civ. P. 26 (b) (3), 365 Mass. 7722
(1974). At the hearing on the motion to quash, the plaintiff's
counsel specified that he sought the defendant's recorded
statements and Safety's claim notes. On the same day the judge
issued an order allowing the defendant's motion to quash. The
plaintiff sought interlocutory relief from a single justice of
the Appeals Court pursuant to G. L. c. 231, § 118, first par.
The single justice issued an order on June 5, 2023, granting the
plaintiff "leave . . . to file an interlocutory appeal from the
May 4, 2023[] order entered in the Middlesex Superior Court."
Discussion. The Superior Court judge ruled that the claim
file was not discoverable because she found that "[l]itigation
was 'threatened' on Sept. 2, 2019[,] via letter" and that
Safety's claim file was "[t]herefore . . . protected by the work
product doctrine."
"The work product doctrine . . . protects (1) documents and
tangible things, (2) by or for another party or by or for that
other party's representative (including his [or her] attorney,
consultant, surety, indemnitor, insurer, or agent), and (3) in
anticipation of litigation or for trial" (quotations omitted).
McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 194 (2012).
"[A] document is within the scope of the rule if, 'in light of
the nature of the document and the factual situation in the
particular case, the document can be fairly said to have been
prepared because of the prospect of litigation.'" Commissioner
3
of Revenue v. Comcast Corp., 453 Mass. 293, 317 (2009), quoting
United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998).
The plaintiff argues that the judge erred because Safety's claim
file is covered by the "ordinary course of business" exception
to the work product doctrine and is therefore discoverable. See
Attorney Gen. v. Facebook, Inc., 487 Mass. 109, 127 (2021),
quoting Comcast Corp., 453 Mass. at 318-319 ("a document that
would have been prepared 'irrespective of the prospect of
litigation' is not covered by the work product doctrine").
Specifically, the plaintiff argues that, because Safety is
in the business of investigating insurance claims, any documents
that Safety produces while investigating claims are generated in
the ordinary course of Safety's business and must be
discoverable. But Safety's business also anticipates litigation
because many automobile accidents raise the prospect of civil
lawsuits. In this case, as the judge noted, the plaintiff
threatened litigation shortly after the accident took place.
The defendant was on notice that the plaintiff had retained
counsel and that he anticipated filing a lawsuit. Because the
"prospect of litigation" was raised by the plaintiff, Comcast
Corp., 453 Mass. at 317, the judge did not err in deciding that
documents Safety prepared after this point constituted work
product generated in anticipation of litigation and should be
excluded from the plaintiff's discovery requests.
4
Even were we to conclude that the judge was wrong in
quashing the plaintiff's subpoena request, the plaintiff is
unable to show that his inability to access Safety's claim file
caused him prejudice. See Solimene v. B. Grauel & Co., K.G.,
399 Mass. 790, 799 (1987). The plaintiff may obtain
substantially the same information that would be contained in
Safety's claim file during the ordinary course of discovery.
Order dated May 4, 2023,
affirmed.
By the Court (Henry, Grant &
D'Angelo, JJ.2),
Clerk
Entered: August 13, 2024.
2 The panelists are listed in order of seniority.
5