EX PARTE D.P.T. (In re: D.P.T.
v.
United States Automobile Association, American Bankers Insurance of Florida, Inc., and American Collectors Insurance, LLC)
Geneva
Circuit Court, CV-17-900037
Tracy
W. Cary of Morris, Cary, Andrews, Talmadge & Driggers,
LLC, Dothan, for petitioner.
Jennifer M. Busby and Michelle L. McClafferty of Burr &
Forman LLP, Birmingham, for respondents American Bankers
Insurance of Florida, Inc., and American Collectors
Insurance, LLC; and John W. Marsh of Ball, Ball, Mathews
& Novak, PA, Montgomery, for respondent.
Steve
Marshall, atty. gen., and Madeline H. Lewis, asst. atty.
gen., for respondent William H. Filmore.
SELLERS,
Justice.
D.P.T.
seeks a writ of mandamus directing the Geneva Circuit Court
to rescind a discovery order that, D.P.T. asserts, requires
him to execute written authorizations allowing the
respondents, D.P.T.'s insurers— United States
Automobile Association, American Bankers Insurance of
Florida, Inc., and American Collectors Insurance, LLC
(hereinafter collectively referred to as "the
insurers")— to obtain records
Page 299
containing communications that he alleges are privileged
under the psychotherapist-patient privilege. See
§ 34-26-2, Ala. Code 1975; Rule 503, Ala. R. Evid. The
insurers, however, have represented to this Court that they
seek only D.P.T.'s "employment" records. In
addition, the trial court itself filed a brief in response to
the mandamus petition, which is a somewhat rare occurrence,
in which it represented to this Court that it directed D.P.T.
to execute an authorization allowing only the release of
"employment" records. D.P.T., who, as the
petitioner, has the burden of establishing a clear legal
right to the issuance of the writ of mandamus, has not
demonstrated that his "employment" records contain
privileged communications. See Ex parte BOC Grp.,
Inc., 823 So.2d 1270, 1272 (Ala. 2001) (a petitioner for
the writ of mandamus must demonstrate, among other things,
"a clear legal right to the order sought"). Thus,
we deny the petition for the writ of mandamus.
In July
2015, a vehicle occupied by D.P.T. and his minor stepson was
rear-ended by another vehicle. On his own behalf and as next
friend of his stepson, D.P.T. sued the driver of the other
vehicle. Later, D.P.T. amended his complaint to state a claim
against the insurers for underinsured-motorist benefits.
D.P.T.'s and his stepson's claims against the driver
of the other vehicle involved in the car accident were
settled, and the action proceeded against the insurers.
D.P.T.
has asserted that his injuries from the car accident forced
him to retire prematurely from the United States Army, which
resulted in a loss of income. Accordingly, the insurers
sought to obtain records relating to D.P.T.'s military
service. D.P.T., however, refused to execute an authorization
allowing the Army to produce those records. It is undisputed
that D.P.T. has been treated at clinics operated by the
Department of Veterans Affairs for post-traumatic stress
disorder resulting from his combat experience in Iraq and
Afghanistan. The stated basis for his refusal to sign
authorizations for the release of his military records is a
claim that the records contain confidential communications
between him and psychotherapists.
The
insurers filed a motion to compel D.P.T. to sign an
authorization for the release of the records, which the trial
court granted within minutes of its filing. Subsequently,
D.P.T. filed a motion asking the trial court to reconsider
its ruling and, later, a motion for a protective order. The
trial court denied those motions, and D.P.T. initiated this
mandamus proceeding. This Court ordered answers and briefs on
the issue whether the records sought are protected by the
psychotherapist-patient privilege.
A writ
of mandamus will issue if a trial court exceeds its
discretion by ordering the production of records that are
privileged. See Ex parte University of South
Alabama, 183 So.3d 915, 920 (Ala. 2015). Section
34-26-2, Ala. Code 1975, provides:
"[T]he confidential relations and communications
between licensed psychologists, licensed psychiatrists, or
licensed psychological technicians and their clients are
placed upon the same basis as those provided by law between
attorney and client, and nothing in this chapter shall be
construed to require any such privileged communication to
be disclosed."
Similarly,
Rule 503(b), Ala. R. Evid., provides:
"A patient has a privilege to refuse to disclose and
to prevent any other person from disclosing confidential
communications, made for the purposes of diagnosis or
treatment of the patient's mental or emotional
condition, including alcohol or drug addiction, among the
...