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In a first-impression case, the Tennessee Supreme Court ruled March 25 that an insurer may be vicariously liable for discovery abuses allegedly committed by the law firm it hired to defend a policyholder. Givens v. Mullikin, No. W1999-01783-SC-R11-CV. Affirming a trial court’s denial of the defendants’ motion to dismiss, the ruling clears the way for Connie Jean Givens to pursue an abuse-of-process suit against Allstate Insurance Co. and the estate of a man with whom she had a traffic accident. When Givens first filed suit against the now-deceased Larry McElwaney for injuries she suffered in the crash, Allstate hired defense attorney Hal Nichols. But after discovery was substantially completed, Allstate replaced Nichols with the Richardson Law Firm. According to the court’s opinion, Givens said the Richardson firm began the discovery process anew to harass her and weaken her resolve to pursue the case. She also alleged that the firm subjected her to excessive interrogatories and a second deposition lasting eight hours, asking about “every ailment with which [she] has ever been beset, no matter how trivial.” The firm allegedly issued more than 70 irrelevant subpoenas to various records custodians, despite having no intention to depose any of them. In response, Givens filed suit claiming abuse. But, instead of suing the Richardson firm directly, she sued McElwaney and Allstate, claiming they were vicariously liable for its actions. While recognizing that a law firm is more like an independent contractor than an employee or general agent, the state’s high court said, “an insurer and an insured may be held vicariously liable for the tortious acts or omissions of an attorney … if [those] actions were directed, commanded, or knowingly authorized by the insurer or by the insured.” Writing for the court, Justice William M. Barker added, “although an insurer clearly lacks the right to control an attorney retained to defend an insured, we simply cannot ignore the practical reality that the insurer may seek to exercise actual control over its retained attorneys.” Charles M. Silver, a professional responsibility professor at the University of Texas School of Law who has published several articles on insurance defense, said the court’s “convoluted analysis” made no sense. Because Tennessee does not consider the insurer to be a client of the defense attorney, what basis is there for assuming as a fact of life that attorneys violate their professional responsibilities by allowing the insurer to exercise control, he asked. Although the court said Allstate’s discharge of a competent lawyer might allow an inference that it knowingly authorized the new firm to engage in the alleged tortious conduct, Silver said “hiring and firing is one thing, control is another.” On remand, Givens will have a “major hurdle to clear in discovery,” Silver noted, because the insurer’s communications to the defense attorney are generally protected by the policyholder’s attorney-client privilege. Givens’ lawyer, William H. Fisher III of Memphis, Tenn., did not return calls seeking comment.

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