Illinois Appellate Court Affirms Insurer-Insured Privilege; Vroman v. Midwest Groundcovers, LLC, et al.

On Sept. 21, 2010, Wayne Vroman claimed that his car was hit by a vehicle owned by Midwest Groundcovers, LLC, and driven by Judy Wenciker, a Midwest employee.  Two months later, Vroman filed a negligence lawsuit against Midwest and Wenciker. 

On Jan. 10, 2011, the defendants’ lawyer filed a motion to preserve certain evidence in the case. Submitted as evidence for this hearing were records of e-mail correspondence between the defendants and plaintiff’s counsel in which plaintiff’s counsel asserted that an agent of the defendants had stipulated to liability.

In response, the defendants maintained that the person who had allegedly stipulated to liability had no authority to do so. The defendants also said that the person was an agent for Midwest’s insurance carrier, Grinnell Mutual Reinsurance Co. The defendants’ motion to preserve the evidence was granted. 

Vroman subpoenaed the insurance agent, Gary Newswander. Newswander gave his deposition on April 15, 2011.  Newswander stated that he was a claims adjuster for Midwest and handled the Vroman claim for Grinnell.  He also stated that he had limited authority to settle claims capped at $35,000. Newswander testified that the intent of his e-mail correspondence was to resolve the issue of preservation of evidence.

When asked about a recorded statement, he took from the defendant driver, Wenciker, Newswander’s attorney asserted attorney-client/insurer-insured privilege. 

After the deposition, Vroman filed a motion seeking ruling on Newswander’s claim of privilege. The plaintiff asserted that because Midwest repeatedly claimed that Newswander was not their agent for purposes of accepting liability, it was foreclosed from asserting privilege for his deposition. 

The trial court entered an order finding that Midwest had waived privilege to Wenciker’s communications with Newswander. A later motion to reconsider was denied. 

Even after the motion to reconsider, Midwest refused to turn over the statement to Vroman, and the trial judge entered an order stating that Midwest was in civil contempt. 

On appeal, Midwest argued both the privilege ruling and the contempt order were wrong. In addressing the privilege decision, the court found that Midwest was insured by Grinnell at the time of the occurrence and that Newswander was a claims adjuster for Grinnell. 

The court also found that when Wenciker gave a statement to Newswander, she did so with the understanding that her statement could be utilized by Midwest’s attorneys in the event of a lawsuit. However, the court also found that Wenciker did not explicitly or impliedly waive privilege. 

The court rejected Vroman’s argument that Midwest’s disavowal Newswander’s agency status required affirmation by the trial court. 

Finally, the Illinois Appellate Court justices addressed the contempt order. The appellate court stated that where a party’s refusal to comply with an order of the trial court constitutes a good faith effort to secure appellate review of the order, vacation of an order of civil contempt was warranted. 

Accordingly, the appellate court reversed in part, vacated in part, and remanded part of the case back to the trial court for further disposition. 

Wayne Vroman v. Judy Wenciker and Midwest Groundcovers, LLC, 2013 Ill.App. (1st) 120883-U.

Kreisman Law Offices has been handling injury lawsuits, automobile and truck accidents for individuals and families for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including, Antioch, Arlington Heights, Bensenville, Bartlett, Calumet Park, Deerfield, Franklin Park, Hickory Hills, Chicago (Bridgeport), Orland Park, Chicago (Austin), Morton Grove and Skokie, Ill.

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