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Asbury v. Beerbower

Supreme Court of Kentucky
Oct 30, 1979
589 S.W.2d 216 (Ky. 1979)

Summary

holding that the attorney-client privilege extends to communications made by an insured to their insurer upon the recognition that the "insurer as the agent" of the insured will transmit the communication to an attorney

Summary of this case from LM Ins. Corp. v. Canal Ins. Co.

Opinion

October 30, 1979.

Appeal from the Court of Appeals.

Stanley R. Hogg, Ashland, for movant.

Robert L. Woolery, II, Ashland, for respondents.


James Murphy, Jr., brought suit against Elizabeth Beerbower and her husband for damages resulting from an automobile accident. Murphy sought to discover, by deposition, the contents of a statement allegedly given by Mrs. Beerbower to her liability insurance carrier after Murphy had retained counsel but before counsel had been retained for Mrs. Beerbower and before the filing of the lawsuit. After the trial court had decided the point in Murphy's favor and had entered an order to that effect, the Beerbowers applied to the Court of Appeals for a writ of prohibition to prevent the trial judge from permitting the discovery. The Court of Appeals granted relief upon the ground that the communication by Mrs. Beerbower to her insurance company fell within the scope of the attorney-client privilege, citing KRS 421.210(4); CR 26.02; Hollien v. Kaye, 194 Misc. 821, 87 N.Y.S.2d 782 (1949); People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15 (1964); and Brakhage v. Graff, 190 Neb. 53, 206 N.W.2d 45 (1973). The respondent trial judge thereupon appealed to this court as a matter of right. Cf. Const. Sec. 115.

Mrs. Beerbower's insurance policy required her to cooperate with the insurance company and obligated the company to provide counsel for her. The prevailing view, though something less than an avalanche of authority, is that under these circumstances "a report or other communication made by an insured to his liability insurance company, concerning an event which may be made the basis of a claim against him and which is covered by the policy, is a privileged communication, as being between attorney and client . . ." 81 Am.Jur.2d, Witnesses, Sec. 193. See also annotation, "Privilege of communications or reports between liability or indemnity insurer and insured," 22 A.L.R.2d 659 (1952).

"The insured is ordinarily not represented by counsel of his own choosing either at the time of making the communication or during the course of litigation. Under such circumstances we believe that the insured may properly assume that the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured." People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15, 17 (1964). We think this conclusion makes good sense. When a person has had an automobile accident that may result in litigation he would normally confide in counsel. If, however, he is insured, he has paid an insurance company to exercise that choice for him. He should not be penalized for his prudence in that respect.

The decision of the Court of Appeals is affirmed.

All concur.


Summaries of

Asbury v. Beerbower

Supreme Court of Kentucky
Oct 30, 1979
589 S.W.2d 216 (Ky. 1979)

holding that the attorney-client privilege extends to communications made by an insured to their insurer upon the recognition that the "insurer as the agent" of the insured will transmit the communication to an attorney

Summary of this case from LM Ins. Corp. v. Canal Ins. Co.

In Asbury, the Kentucky Supreme Court affirmed the holding of the Kentucky Court of Appeals that attorney-client privilege protected a recorded statement that defendant gave her insurer such that the plaintiff in a subsequent action regarding an automobile accident could not get a copy of the statement in discovery.

Summary of this case from Owners Ins. Co. v. Reynolds Concrete Pumping, LLC

In Asbury the Supreme Court of Kentucky extended the attorney-client privilege to confidential communications made by an insured to his liability insurance company concerning an event that may become the subject of a claim against the insured and which may be covered by the insurance policy.

Summary of this case from Certain Underwriters at Lloyd's v. Morrow

In Asbury, the Supreme Court "extended the scope of the attorney-client privilege... to include communications between an insured and a representative of his insurer."

Summary of this case from Young v. Chapman

In Asbury v. Beerbower, 589 S.W.2d 216 (Ky. 1979), the Kentucky Supreme Court extended the attorney-client privilege to communications between an insured and her liability insurer.

Summary of this case from Roach v. Hughes

applying privilege to communications between insured and insurer, where insurer was required to provide counsel

Summary of this case from Sanborn v. Parker

In Asbury v. Beerbower, Ky., 589 S.W.2d 216 (1979), this Court held that communications between Beerbower and her insurance company were protected by her attorney-client privilege.

Summary of this case from Sanborn v. Com

In Asbury v. Beerbower, 589 S.W.2d 216 (Ky. 1979), a report made by an insured to his insurance company concerning an event which was the basis of the claim against the insured was held to fall within the attorney-client privilege.

Summary of this case from State v. Montgomery
Case details for

Asbury v. Beerbower

Case Details

Full title:Hon. Kelley ASBURY, Judge, Boyd Circuit Court, Division One, Movant, v…

Court:Supreme Court of Kentucky

Date published: Oct 30, 1979

Citations

589 S.W.2d 216 (Ky. 1979)

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Certain Underwriters at Lloyd's v. Morrow

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