Getting The Insurance Adjusters File

Haltom City insurance lawyers need to know about a 1986, Texas Supreme Court case. The case is styled, Turbodyne Corporation et al. v. The Honorable Wyatt H. Heard. This case allows a claimant to have access to the file investigating the claim of an insured that is put together by the adjuster and the company.
Turbodyne filed this original mandamus action to order Judge Hyatt Heard of Harris County to rescind his order denying discovery of 39 documents from Travelers Insurance Company. Travelers contends that these documents are privileged under Texas Rules of Civil Procedure 166b. This Court held that the trial court abused its discretion in denying discovery, and conditionally grant the writ.
A fire and explosion occurred at Texas City Refining. Turbodyne was the manufacturer of a part of a catalytic cracking unit involved in that fire. Texas City’s casualty insurer, Travelers, initiated an investigation into the causes and damages of the accident. Approximately nine months after the accident, on July 30, 1980, Travelers and Texas City reached a settlement on the coverage. On October 30, 1981, Travelers and Texas City filed a subrogation suit against Turbodyne and other manufacturers. Turbodyne filed a motion to compel production of 39 documents prepared by employees of Travelers or experts employed by Travelers. Travelers asserts that all documents but one were prepared prior to the date Travelers settled with Texas City, July 30, 1980.
Travelers claims that those documents prepared by its employees were protected under Texas Rules of Civil Procedure 166b(3)(d), which provides the following exemption from discovery:
(d) with the exception of discoverable communications prepared by or for experts, any communication passing between agents or representatives or the employees of any party to the action or communications between any party and his agents, representatives or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of the claim or the investigation of the occurrence or transaction out of which the claim has arisen.
Travelers contends that several documents prepared by non-testifying experts employed by Travelers are exempt from discovery under Rule 166b(3)(c), which provides that the identity, opinions, and mental impressions of an expert, or documents prepared by an expert, are privileged from discovery if the experts will not be a witness at trial and the experts were retained in “anticipation of litigation.”
In a prior case this Court held that the investigative privilege in Rule 166b(3)(d) is still governed by the rule announced in 1977, that only documents prepared in connection with the prosecution or defense of the lawsuit in which discovery is sought will be protected. There, the Court decided that an investigator’s report prepared in connection with a workers’ compensation claim was discoverable in a later personal injury action. The reasoning applies to this case. Documents prepared by Travelers in connection with settlement of its claim with its insured would not be protected from discovery in a later subrogation suit.
Travelers contends that its documents prepared by non-testifying experts are privileged because two experts employed by Travelers to investigate the accident filed affidavits stating that they were employed to investigate the cause of the accident and that immediately after the accident there was good cause to believe a subrogation suit should be filed. The mere fact that an accident has occurred is not sufficient to clothe all post-accident investigations with privilege. The affidavits filed do not affirmatively state that these documents were prepared in connection with or in anticipation of a subrogation suit. The burden is on the party resisting discovery to prove that evidence is acquired or developed in anticipation of litigation. Travelers has failed to prove this.