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Estes v. Webb

February 11, 1998

TAMARA MAY ESTES, APPELLANT
v.
DAN WEBB, SHUTTLEWORTH, SMITH AND WEBB, APPELLEES LTD. AND ALLSTATE INSURANCE COMPANY



DATE OF JUDGMENT: 02/05/92 TRIAL JUDGE: HON. FRANK G. VOLLOR COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

The opinion of the court was delivered by: EN Banc. King, J

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

NATURE OF THE CASE: CIVIL - OTHER

TRIAL COURT DISPOSITION: DIRECTED VERDICT IN FAVOR OF ALLSTATE AND JURY VERDICT IN FAVOR OF DAN WEBB AND FIRM

DISPOSITION REVERSED AND REMANDED -2/10/98

Tamara Estes has appealed an adverse verdict rendered in the Circuit Court of Lee County. Estes filed suit against Dan Webb, Shuttleworth, Smith and Webb, Ltd., Allstate Insurance Company and North Mississippi Medical Center *fn1 , seeking damages for abuse of process and invasion of privacy, as a result of Dan Webb having obtained Estes's medical records from North Mississippi Medical Center by subpoena duces tecum and disseminated them without her authority.

The trial court directed a verdict for Allstate, and the jury returned a verdict in favor of Webb and his law firm.

From this adverse judgment, Estes has appealed assigning some 31 errors. However, we shall only address six of them.

Those six are as follows:

1. The Court erred in permitting the jury to consider whether the admission forms of Tamara May Estes were waivers or authorizations for release of medical information.

2. The Court erred in overruling Plaintiff's Motion in Limine to keep the defendants from offering any testimony or evidence that David Butts waived the medical privilege for Tamara May Estes by David Butts' not objecting to Dan Webb's allegation that he informed David Butts that he was going to subpoena the records of Tamara May Estes.

3. The Court erred in permitting the jury to consider whether an abuse of process had been committed and whether damages flowed from the abuse as the Court had already ruled that Plaintiff had met her burden of proof regarding these aspects as a matter of law.

4. The Court erred in granting a peremptory instruction or summary judgment for Allstate Insurance Company.

5. The Court erred in allowing the financial statement of Dan Webb to be entered into evidence stating that there was a $10,000 liability as a deductible for the errors and omissions insurance policy, but no assets were listed on his financial statement for the benefits from the policy.

6. The Court erred in not including the errors and omissions professional insurance policy in the amount of one million dollars of Dan Webb as a part of his net worth or to show his ability to pay, in order for the jury to be able to assess an appropriate amount as punitive damages in the event the jury decided to assess punitive damages against Defendant Webb.

Finding merit in these arguments, we reverse and render as to all remaining defendants on the issue of liability and remand for a determination of damages, consistent with this opinion.

I

FACTS

Estes, age seventeen, was a passenger in a vehicle driven by Raymond Griffin, Jr. on March 17, 1990, when that vehicle collided with a vehicle driven by Dennis Tucker. The negligence of Griffin, in straying over the center line, was the apparent cause of this collision.

Estes, who was seriously injured, was taken to North Mississippi Medical Center, where she was admitted and treated. As a part of the admissions process, relatives of Estes signed the standard admission forms. These forms included language authorizing release of medical information to designated insurers and "any other insurer or agency concerned with the payment of my hospital charges". These forms contained space in which Estes could have designated either an insurer or other entity responsible for her hospital bill. There were no insurers designated on these forms. Nor did Estes designate on the forms anyone else concerned with the payment of her hospital bills. Tucker, represented by attorneys William Catledge and John Fox, filed suit against Raymond Griffin, Jr., Raymond Griffin, Sr., and Griffin Motor Company. That action was Cause 8963, in the Circuit Court of Chickasaw County. Allstate, Griffin's liability insurance carrier, assigned this case to the Defendant, Dan Webb, and his law firm to defend.

Estes did not file suit, but asserted a claim against Raymond Griffin, for injuries sustained in the same collision of March 17, 1990. This was the same collision out of which Tucker was seeking damages in Cause number 8963 , in the Circuit Court of Chickasaw County.

Estes was represented in her claim by Roy Parker and Associates and David Butts.

Estes's attorney had some direct Discussion with Allstate claims adjusters about the resolution of her claim. As a part of these efforts at settlement, the pertinent portions of Estes's hospital records were provided directly to Allstate on June 7, 1992. Deleted from those records sent to Allstate by Estes's attorney were findings and statements regarding drug use by Estes.

These efforts at resolution were unsuccessful. At some point, Allstate had also requested that Dan Webb and his law firm begin looking at Estes's claim.

Allstate provided Dan Webb with a copy of the medical records received from Estes. However, saying they were not clear, Webb contacted David Butts and requested another copy. Butts declined to provide a copy, saying the records had been given to Allstate, and Webb should get a copy from Allstate.

When Butts declined to provide Webb with another copy of Estes's hospital record, Webb indicated he would cause a subpoena to be issued for these records. Butts did not indicate any agreement or objection to this statement by Webb.

On July 9, 1990, Dan Webb, in Cause Number 8963, in the Circuit Court of Chickasaw County, styled Dennis Tucker v. Raymond Griffin, Jr. Raymond Griffin, Sr., and Griffin Motors, caused a subpoena duces tecum, to be issued to the North Mississippi Medical Center, directing that it provide to Dan Webb:

"Any and all records pertaining to the treatment and care of Tamara Mae Estes, Tammy Estes, 3204 Meadowview Drive, Tupelo, Mississippi 38801, date of birth 05/06/72 including but not limited to, doctors' and nurses' and progress notes, orders for lab tests and x-rays and results thereof, bills for treatment provided and payments made and by whom, and any other records pertaining to the treatment of Tamara Mae Estes."

North Mississippi Medical Center, in compliance with this subpoena duces tecum, gathered and submitted to Dan Webb its medical records on Tamara Mae Estes. Included in these records were references to drug use by Estes, which ...


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