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10/25/95 CLARENCE EXLINE v. JOSEPH E. EXLINE

October 25, 1995

CLARENCE EXLINE, PLAINTIFF-APPELLEE,
v.
JOSEPH E. EXLINE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 94-L-1405. Honorable Edward R. Duncan, Judge, Presiding.

Presiding Justice McLAREN delivered the opinion of the court: Geiger and Thomas, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

This case comes to us on interlocutory appeal from the trial court's decision to grant the plaintiff's motion to compel discovery and the trial court's denial of the defendant's motion to reconsider. The trial court certified for review the question of whether a nonparty insured's statement given to her insurer is a privileged communication protected from discovery by the attorney-client privilege. We granted leave to appeal. For the reasons stated below, we reverse and remand for further proceedings.

On January 16, 1994, the defendant, Joseph Exline, and his two minor children, McKenzie, age two, and Jeffrey, age four, stayed overnight at the plaintiff's home. The plaintiff, Clarence Exline, is the defendant's father. Early the next morning, the defendant left for work, leaving McKenzie and Jeffrey at home with the plaintiff. According to the plaintiff, the defendant left a lighter in the room occupied by the children. Allegedly, one of the children used the lighter to start a fire in the plaintiff's home sometime after the defendant left the plaintiff's home.

At the time of the fire, the defendant and the defendant's wife (Rebecca) were insured under a homeowner's policy issued by the State Farm Fire & Casualty Company (State Farm). The plaintiff filed a claim against the policy to recover damage to the plaintiff's home caused by the fire. Stephanie McCray was assigned by State Farm to handle the plaintiff's claim. On February 4, 1994, Ms. McCray, in her capacity as a State Farm employee, recorded a statement from Rebecca regarding the plaintiff's claim.

The plaintiff filed four complaints which named only Joseph Exline as a defendant. The original complaint was filed on September 23, 1994. The first three complaints were dismissed for failure to state a cause of action. More specifically, the complaints were dismissed because the plaintiff failed to allege that the defendant knew of specific instances of similar conduct.

On April 13, 1995, the plaintiff filed a third, and currently operative, amended complaint. The third amended complaint contains two counts against the defendant. Count I seeks to impose liability on the defendant on the theory that the fire in plaintiff's home was proximately caused by the defendant's failure to control McKenzie's conduct. Count II seeks to impose liability on the defendant on the theory that the fire was proximately caused by the defendant's negligent entrustment of a cigarette lighter to the two children. The complaint alleges that Rebecca and the defendant knew McKenzie had played with the defendant's cigarette lighter prior to the incident at issue.

On December 15, 1994, the plaintiff served a notice to produce documents on the defendant. The notice requested all statements in defendant's possession from persons having knowledge of the occurrence. Defendant failed to provide Rebecca's statement made to State Farm claims specialist Stephanie McCray on February 4, 1994. Thus, on January 23, 1995, the plaintiff filed a motion to compel the defendant to produce the statement. The defendant filed a memorandum in opposition to plaintiff's motion, which stated that the statement at issue was protected from discovery by the attorney-client privilege. Along with the memorandum, the defendant filed an affidavit executed by Ms. McCray. In the affidavit, Ms. McCray stated that she was a claims specialist employed by State Farm. Ms. McCray also stated that Rebecca and the defendant were co-insureds under a State Farm homeowner's policy on January 17, 1994, and that the plaintiff filed a claim against the policy. Ms. McCray stated that she had been assigned to handle the plaintiff's claim. Ms. McCray also stated that she obtained a statement from Rebecca on February 4, 1994, regarding the plaintiff's claim. Ms. McCray asserted that she obtained the statement in order to investigate plaintiff's claim and prepare a defense to any possible lawsuit which might be filed in connection with the plaintiff's claim against Rebecca and the defendant.

On February 1, 1995, the trial court held a hearing on the plaintiff's motion to compel discovery of Rebecca's statement to Ms. McCray and ruled for the plaintiff. The trial court found that Rebecca's statement given to Ms. McCray was not protected from discovery by the attorney-client privilege because no viable cause of action could be maintained by the plaintiff against Rebecca for damages suffered as a result of the fire. Accordingly, on February 1, 1995, the court ordered the defendant to provide the plaintiff with Rebecca's statement.

On February 14, 1995, the defendant filed a motion to reconsider its granting of the plaintiff's motion to compel discovery of Rebecca's statement. On February 28, 1995, the trial court denied the defendant's motion to reconsider. On March 23, 1995, the trial court certified a question of law for immediate interlocutory appeal pursuant to Supreme Court Rule 308(a). (Official Reports Advance Sheet No. 26 (December 22, 1993), R. 308(a), eff. February 1, 1994.) This court granted leave to appeal.

The following question is raised in this appeal:

"Is the recorded statement given on February 4, 1994 by REBECCA EXLINE, an insured under State Farm Fire & Casualty Co. (herein "State Farm") homeowner's insurance policy #13-B9-0993-5 but not a named defendant in this case, to Stephanie McCray, an employee of State Farm who was investigating a claim filed under that policy by the plaintiff in this case for property damage incurred to plaintiff's residence as a result of a fire allegedly started by two minor children of REBECCA EXLINE, a privileged ...


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