Court of Appeals of Texas, Houston (14th Dist.).

WHEELS, INC., Relators,

v.

Honorable Jack O’NEILL, Judge 152ND Judicial District, Respondent.

No. B14-90-0011-CV.

|

April 5, 1990.

OPINION

MURPHY, Justice.

*1 In this original proceeding, relator urges us to issue a writ of mandamus to the Honorable Jack O’Neill directing him to set aside a protective order entered in cause no. 88-001503. On January 23, 1990, we granted leave to file petition for writ of mandamus. We now conditionally grant the writ.

On September 30, 1986, Ricky Fulgham was severely injured when the aerial bucket lift he was in came into contact with a live power line. One year and three months after the accident, on January 14, 1988, Fulgham and his wife, real parties in interest, filed suit against Houston Lighting & Power for alleged injuries and damages resulting from the accident. The Fulghams later amended their petition naming Relator, Wheels Inc., lessor of the aerial bucket, an additional defendant in the suit.

On May 12, 1988, real party in interest, The Home Indemnity Company (The Home), filed a petition in intervention, claiming a subrogation interest in the litigation as the compensation carrier for Fulgham’s employer.

On August 7, 1989, The Home received relator’s interrogatories and requests for production. On September 6, 1989, The Home filed an objection and a motion for protective order, claiming the sought documents were privileged under TEX. R. CIV. P. 166b(3)(d) because they qualified as party communications made in anticipation of litigation. In support of its claim, The Home offered the affidavit of Owen Curtis, a claims supervisor for Wetzel Services, its claims services provider, and offered the documents to Respondent for an in camera inspection. Respondent did not inspect the documents in camera, but granted the motion for protection.

The Home now alleges Respondent had previously held an in camera inspection of an investigative file Curtis generated for Fulgham’s employer, Warner Communications Inc., and therefore, did not need to review the documents before granting its motion for protection. Because there is no proof the investigative files are indeed identical, and because there is no statement of facts of the hearing on the motion for protection, the sole question is whether the Curtis affidavit alone was sufficient to establish the party communications privilege. Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 57 (Tex. 1986). We do not consider the affidavits attached to the response to Relator’s petition for mandamus because they were not before Respondent when he granted the motion for protection.

The party communication privilege exempts information acquired or compiled in anticipation of litigation. Toyota Motor Sales, U. S. A. v. Heard, 774 S.W.2d 316, 318 (Tex. App. — Houston [14th Dist.] 1989) (orig. proceeding). The supreme court has established that a mere allegation that a party conducted an investigation in anticipation of litigation is insufficient to invoke the privilege. Allen v. Humphreys, 559 S.W.2d 798 (Tex. 1977). However, in June 1989, the supreme court discussed what triggers the anticipation of litigation privilege. In Flores v. The Fourth Court of Appeals, 777 S.W.2d 38 (Tex. 1989), the court held that the filing of a workers’ compensation claim did not constitute litigation; therefore, a report prepared in anticipation of a workers’ compensation claim would not automatically trigger the privilege exemption. The court then set forth a two-prong analysis to determine whether “good cause to believe a suit will be filed” exists:

*2 The first prong requires an objective examination of the facts surrounding the investigation. Consideration should be given to outward manifestations which indicate litigation is imminent. The second prong utilizes a subjective approach. Did the party opposing discovery have a good faith belief that litigation would ensue?

Flores, 777 S.W.2d at 40.

The Home adopted the pleadings of Fulgham’s petition that alleged the accident occurred September 30, 1986. In his affidavit, Curtis stated he received a call from Fulgham’s employer the following day, October 1, 1986, advising him of the “serious nature of Mr. Fulgham’s injuries and the facts and circumstances giving rise to the claim.” Curtis stated that although his company, Wetzel Services, ordinarily performed in- house investigations of its claims, an independent field investigator was assigned when a “serious claim” was reported and it was “quite clear that litigation [would] follow.” Curtis then summarily stated the independent investigation in the instant case “was directed in order to protect The Home Indemnity Company’s subrogation rights,” and stated “all subsequent investigations, reports, and internal memorandas were made in anticipation of this lawsuit.” His subjective conclusion that he anticipated litigation was apparently based on the phone call he received only twenty-four hours after the accident. Such a phone call was not an objective indication that litigation was imminent, and therefore fails to meet the first prong of Flores.

Because The Home failed to establish its privilege, the trial court abused its discretion by granting the motion for protection and denying discovery. Weisel, 718 S.W.2d at 58. We are confident the trial court will vacate its order of October 6, 1989. Only if it fails to do so will mandamus issue.

We conditionally grant the writ.

Do Not Publish. TEX. R. APP. P. 90.