Whitacre v. Nationwide Ins., Co.
2012 Ohio 4557
Ohio Ct. App.2012Background
- Whitacre was injured in a motorcycle accident caused by a dog owned by Reed; Nationwide paid some medical expenses after Whitacre’s visit with a Nationwide adjuster.
- Whitacre alleges a verbal contract with Nationwide to cover all medical expenses, supported by statements and a pamphlet, and partial performance by Nationwide paying bills.
- Whitacre sued Reed and Nationwide; Reed’s claim was settled and Whitacre was dismissed from Reed, but the contract claims against Nationwide survived.
- Whitacre sought discovery of Nationwide’s pre-suit claims file and depositions of two Nationwide adjusters who communicated with Whitacre; Nationwide resisted on privilege/work-product grounds.
- Trial court granted Whitacre’s discovery requests; Nationwide appealed; the matter was remanded for an in-camera privilege review per Peyko v. Frederick.
- On remand, the court was to determine what, if any, portions of the claims file were privileged before disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discovery of the claims file and depositions was improper abuse of discretion | Whitacre argues discovery is permissible for relevant, non-privileged information under Civ.R. 26. | Nationwide contends the claims file and adjusters are privileged/work product and improperly sought. | No abuse; discovery allowed pending in-camera privilege review. |
| Whether there is an absolute bar to third-party discovery from an insurer | Whitacre is pursuing a direct contract claim not barred by third-party-insurer discovery rules. | Nationwide cites caselaw suggesting a complete bar to third-party discovery from insurers. | No absolute bar; third-party discovery allowed to test existence of verbal contract. |
| Whether the claims file is protected by attorney-client privilege or work product | Whitacre seeks pre-suit materials directly relevant to contract formation; privilege must be shown and was not properly invoked. | Nationwide asserts privilege/work product protection over the entire file, with no sufficient privilege log. | No discharge of burden; in-camera review required to determine privileged portions per Peyko. |
Key Cases Cited
- Peyko v. Frederick, 25 Ohio St.3d 164 (Ohio 1986) (insurer-claims file may be examined by in-camera review to protect privileged material)
- Dennis v. State Farm Ins. Co., 143 Ohio App.3d 196 (Ohio App.3d 2001) (work product may be discoverable when directly at issue; deposition permitted)
- In re Klemann, 132 Ohio St. 187 (Ohio 1936) (broad privilege limited to documents communicated to and retained by attorney)
- State v. Jeffries, 119 Ohio St.3d 265 (Ohio 2008) (distinguishes Klemann; precludes blanket privilege over company documents)
- Peyko v. Frederick, 25 Ohio St.3d 164 (Ohio 1986) (requires in-camera inspection to separate privileged material)
- State ex rel. Pfeiffer v. Common Pleas Court, 13 Ohio St.2d 133 (Ohio 1968) (discovery control via Civ.R. 26; abuse of discretion standard)
- State ex rel. Grandview Hosp. Ctr. v. Gorman, 51 Ohio St.3d 94 (Ohio 1990) (discovery scope and privilege considerations)