Court of Appeals of Texas,

Houston (1st Dist.).

CIGNA INSURANCE COMPANY OF TEXAS, Relator,

v.

The HONORABLE Ed LANDRY, Judge of the County Civil Court at Law Number One of Harris County, Respondent.

No. 01-94-00138-CV.

|

September 8, 1994.

Before WILSON, COHEN and ANDELL, JJ.

WILSON, Justice.

OPINION ON MOTION FOR REHEARING

*1 Relator Cigna Insurance Company is the defendant in a consolidated action pending in respondent’s court, consisting of a workers’ compensation claim and a cause of action for bad faith refusal to pay that claim. Ms. San Juanita Bruno, the real party in interest, is the claimant and the plaintiff in that consolidated action. Relator seeks mandamus relief from respondent’s order that relator produce to Ms. Bruno its claim file on the workers’ compensation claim.

On original submission, we granted relator’s request for emergency relief and stayed enforcement of respondent’s order; granted Ms. Bruno’s request for an extension of time to reply to the motion for leave to file; and upon considering that reply, and relator’s response to that reply, along with the petition and record presented by relator, we lifted the stay we had imposed and overruled relator’s motion for leave to file its petition for writ of mandamus.

We now withdraw our previous opinion; substitute the following opinion; and deny relator’s request for a second stay and relator’s motion for rehearing. As on original submission, we overrule relator’s motion for leave to file its petition for writ of mandamus.

Relator contends that the order compelling production of its claim file constitutes an abuse of discretion for the following reasons: (1) under Weisel v. Curry, 718 S.W.2d 56 (Tex. 1986, orig. proceeding) (per curiam), inter alia, the trial court erred in failing to perform an in camera inspection of the claim file, to see if it should be produced or not; (2) the trial court’s order violated the principles set forth in National Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993), Flores v. Fourth Court of Appeals, 777 S.W.2d 38 (Tex. 1989), and Maryland American General Insurance Co. v. Blackmon, 639 S.W.2d 455 (Tex. 1982); (3) the trial court erred in failing to determine the date when “anticipation of litigation” began, for purposes of applying the investigatory privilege of TEX. R. CIV. P. 166b(3)(d); and (4) the trial court, in so doing, misapplied former TEX. REV. CIV. STAT. ANN. art. 8307 § 9a¹ (now TEX. LABOR CODE § 402.083 (Vernon Pamph. 1994), effective Sept. 1, 1993).

The Weisel line of cases to which relator directs us mandates an in camera review only where there is no evidence, other than the documents themselves, that can substantiate the claimed privilege. As the San Antonio Court of Appeals explained in Enron Oil & Gas Co. v. Flores, 810 S.W.2d 408 (Tex. App.-San Antonio 1991, orig. proceeding), in the context of a discovery mandamus:

A trial court does not abuse its discretion by failing to review documents in camera if there is sufficient evidence about the privileged nature of the documents upon which the trial court could reasonably base its order, such that resort to the documents themselves is unnecessary. If the trial court could have reasonably determined that the documents themselves would not have assisted him in making his decision, there can be no clear abuse of discretion [in refusing to conduct an in camera review].

*2 810 S.W.2d at 413.

Here, the relator presented to Judge Landry the affidavit of Rosemary Montalbano, a senior claim representative at one of its claim centers, to support its claim of privilege. By doing so, relator implicitly represented to the judge that there was sufficient evidence, other than the documents themselves, to substantiate a claim of privilege.

The affidavit was comparatively detailed. Its substantive provisions took up two single-spaced pages.

The affidavit says (a) a substantial chance for litigation was identified on February 19, 1991, the day that relator told Bruno, the real party in interest, that it was controverting her right to workers’ compensation, and (b) that relator’s belief that the case would probably result in litigation was “based on the information received during the investigation of this claim on February 19, 1991, and subsequent investigation which revealed that [relator’s insured] American Personnel Services, Inc. did not know about Ms. Bruno’s injury because she was not employed by American Personnel Services at the time of her injury [.]” (Emphasis added.) To that extent, the affidavit contradicted itself.

The affidavit also asserts that the entire claim file is confidential, saying, “The information contained in the claim file, whether in the computer or the paper file, is confidential.” That assertion contradicted what, according to the record relator has presented to this Court, was in the trial court’s own files at that point. When the affidavit was signed on February 1, 1994, relator had already responded to plaintiff’s request for production of the claim file by, first, raising objections, and then responding, “Without waiving the foregoing objections, the defendant hereby produces non-privileged portions of the claim file.” (Emphasis added.) Among the documents attached to the response are plainly non-privileged items, such as a dealer lease for the Chevron station where Ms. Bruno was injured.

Based on the foregoing, Judge Landry could reasonably have determined that the affiant was not credible, and, in turn, was entitled to rule that relator had not borne its burden to provide evidence to the trial court in the form of affidavits or testimony to establish the claimed privilege prima facie, even though, as a practical matter, the relator could have done so by means other than presenting the documents themselves. In such circumstances, because the relator did not sustain its claim of privilege: (1) a refusal to perform an in camera review is not an abuse of discretion; (2) neither Brotherton, nor Flores, nor Blackmon, nor any of the other precedents relator cites, shields the claim file from production; and (3) there is no error in omitting to determine the date when “anticipation of litigation” began, because the investigatory privilege does not apply.

Likewise, relator’s fourth complaint about respondent’s order compelling production of its claim file demonstrates no abuse of discretion on respondent’s part. Section 402.083 provides that “[i]nformation in or derived from a claim file regarding an employee is confidential and may not be disclosed by the commission except as provided by this subtitle.” (Emphasis added). Here, the affidavit relators presented states that “the [Texas Workers’ Compensation Commission] would not have possession of the claim file and the claim file is not required to be filed with the TWCC[.]” The trial court could conclude that section 402.083 was not applicable to the claim file relator sought to withhold from production. Section 402.083 does not warrant mandamus relief from the order compelling production of relator’s claim file.

*3 We note that, at the hearing on Ms. Bruno’s motion to compel, her counsel told respondent that Ms. Bruno was not seeking to compel production of any documents in the claim file generated after June 4, 1993, which she described as the date that notice of intent to appeal the award of the Texas Workers’ Compensation Commission was first filed by either party. Respondent’s order granting the motion to compel, however, orders relator to produce its entire claim file, without any express limitation to documents generated after June 4, 1993. We do not read relator’s petition as seeking mandamus relief on such a basis, i.e., because in his order respondent granted Ms. Bruno relief beyond that which she had requested. The Montalbano affidavit describes a number of allegedly privileged documents in general terms, but indicates, at most, only that they were created sometime after February 19, 1991, the date relator asserts it received notice of Ms. Bruno’s claim for workers’ compensation benefits from the Texas Workers’ Compensation Commission. As far as the affidavit reveals, and we assume, all documents in the claim file sought by Ms. Bruno were generated before June 4, 1993.

Relator contends that respondent also abused his discretion in another respect-namely, when, after having pronounced from the bench that relator would have 20 days to produce the claim file, he then entered an order that shortened the time for production to 18 days after that oral hearing, and required production on or before 5:00 p.m. on a Sunday. Relator cites no authority in support of this contention. Accordingly, the complaint is waived. See D/FW Commercial Roofing Co., Inc. v. Mehra, 854 S.W.2d 182, 189 (Tex. App.-Dallas 1993, no writ); Finch v. Finch, 825 S.W.2d 218, 223-24 (Tex. App.-Houston [1st Dist.] 1992, no writ) (civil appeals).

Relator’s motion for leave to file a petition for writ of mandamus is OVERRULED.

	Footnotes
1		Act of June 18, 1987, 70th Leg., R.S., ch. 1052, sec. 1.18, 1987 Tex. Gen. Laws 3546, 3555, repealed by Act of December 13, 1989, 71st Leg., 2nd C.S., sec. 16.01(10), 1989 Tex. Gen. Laws