672 S.E.2d 303
McHugh, Senior Status Justice: (See footnote 1)
Jane L. Cline, the Insurance Commissioner of the State of West Virginia (Insurance Commissioner), seeks a writ of prohibition (See footnote 2) in connection with two orders (See footnote 3) entered by the Circuit Court of Grant County directing her to produce documents relating to the investigation of a former insurance agent. Arguing that the materials are both confidential and privileged based on statutory law, (See footnote 4) the Petitioner asserts that the trial court erred in ordering that the subject materials be disclosed for use in a private civil action. Critically, all of the parties to the civil action _ the former agent who was the subject of the Insurance Commissioner's investigation, Mr. William Blankenbeckler; his former employer, Monumental Life Insurance Company (Monumental Life); and the plaintiffs who brought suit against Mr. Blankenbeckler and Monumental Life, have waived any privileges they might have with respect to the documents at issue. Upon our careful review of the grounds upon which the Petitioner seeks relief, we find that the Insurance Commissioner has failed to establish that the trial court committed error in directing the disclosure of the subject documents. Accordingly, the Petitioner's request for a writ of prohibition is hereby denied.
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether
the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal's order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.
With this standard in mind, we proceed to determine whether the trial court exceeded its jurisdiction in directing the Insurance Commissioner to disclose the investigatory materials in her possession that pertain to Mr. Blankenbeckler.
(a) Documents, materials or other information in the
possession or control of the commissioner that are obtained in
an investigation of any suspected violation of any provision of
this chapter or chapter twenty-three [§§ 23-1-1-et seq.] of this
code are confidential by law and privileged, are not subject to
the provisions of chapter twenty-nine-b [§§ 29B-1-1 et seq.] of
this code and are not open to public inspection. The
commissioner may use the documents, materials or other
information in the furtherance of any regulatory or legal action
brought as a part of the commissioner's official duties. The commissioner may use the documents, materials or other
information if they are required for evidence in criminal
proceedings or for other action by the state or federal
government and in such context may be discoverable only as
ordered by a court of competent jurisdiction exercising its
(b) Neither the commissioner nor any person who receives documents, materials or other information while acting under the authority of the commissioner may be permitted or required to testify in any private civil action concerning any confidential documents, materials or information subject to subsection (a) of this section except as ordered by a court of competent jurisdiction.
W.Va. Code § 33-2-19 (emphasis supplied).
In support of her position that she is statutorily proscribed from producing the subject documents, the Insurance Commissioner looks initially to the language in the first sentence of West Virginia Code § 33-2-19(a) which provides that investigatory materials compiled by that office are confidential by law and privileged and are not open to public inspection. Id. Secondarily, she cites language from the third sentence of subsection (a) that authorizes her to disclose documents if they are required for evidence in criminal proceedings or for other action by the state or federal government. W.Va. Code § 33-2- 19(a). Finally, she argues that the as ordered by a court of competent jurisdiction language that appears at the end of the third sentence of subsection (a) is limited to either criminal proceedings or other actions by the state and/or federal government based on the precedent language which states in such context. Because there is no express statutory language that permits her to disclose materials pursuant to the directive of a state court in a civil action, the Insurance Commissioner contends she is barred from complying with the trial court's orders.
In response to the statutory interpretation the Insurance Commissioner advocates, the plaintiffs below and Monumental Life argue that the privilege extended to the Insurance Commissioner's investigatory files is not absolute and was clearly not aimed at barring documents from release for civil action purposes. Recognizing the validity of the Insurance Commissioner's position that she is required to uphold the confidentiality protections imposed by West Virginia Code § 33-2-19, the plaintiffs and Monumental Life observe that the intended effect of the statute was to create a privilege that operates to protect against disclosure as to third-parties. When, as in this case, the parties seeking the information through a court order are the very entities who disclosed the information to the Insurance Commissioner or are parties about whom the information was disclosed, and each of those parties has waived any privilege with regard to the release of the information, the protections the statute seeks to impose are either unnecessary or inapplicable. As further support for their position, the Respondents note that the statutory language relied upon from West Virginia Code § 33-2-19 as the source of the confidentiality and privilege protections was not in existence at the time the Insurance Commissioner compiled her file on Mr. Blankenbeckler. (See footnote 7)
We first examine the nature of the privilege that attaches by virtue of the provisions of West Virginia Code § 33-2-19 to documents the Insurance Commissioner compiles when conducting an investigation into alleged insurance law violations. While the Insurance Commissioner seeks to characterize the privilege as absolute, it is clear from the terms of the statute that investigatory documents are subject to production in certain enumerated instances. The legislatively-anticipated exceptions to the general rule against production exist when the documents are used by the Insurance Commissioner in connection with legal or regulatory actions she institutes; in criminal proceedings filed in state and federal court; and for other action taken by the state and/or federal government. See W.Va. Code § 33-2-19(a). Additionally, we observe that the provisions of subsection (b) that permit the Commissioner and her agents to testify when ordered by a court of competent jurisdiction in a private civil action certainly imply the permissible disclosure of confidential information through means of such testimony. W.Va. Code § 33-2-19(b).
Rather than being absolute in nature, the privilege created by West Virginia
§ 33-2-19 is, at best, a conditional privilege and one that only applies in specified instances.
In all circumstances, the statutory privilege applies to shield investigatory materials from
FOIA production and from disclosure to the general public. See W.Va. Code § 33-2-19(a).
According to the Insurance Commissioner, disclosure under the statute is expressly limited
to the three exceptions identified in subsection (a): when required for evidence in criminal
proceedings; when required for other action by the state or federal government; or when
required in connection with regulatory or legal actions instituted by the Insurance
Commissioner. See id. Upon examination, however, the position the Insurance
Commissioner advocates is simply untenable.
While the statute does identify several instances when disclosure is clearly contemplated, those enumerated instances are not specified as the only occasions where the Insurance Commission may be required to produce investigatory materials. And, as Respondents observe, the absence of statutory language barring disclosure from use in civil actions is significant given that the Legislature has opted to categorically ban disclosure in other insurance statutes such as the Insurance Fraud Prevention Act. See W.Va. Code § 33- 41-7 (2004) (providing that documents Insurance Commissioner obtains when investigating insurance fraud shall not be open to public inspection, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action ) (emphasis supplied). Because we are required to read related statutes in pari materia, we must acknowledge that when the Legislature adopted the statutory language under discussion in 2007, it chose not to include language comparable to the provisions in the Insurance Fraud Prevention Act which expressly proscribe any disclosure of documents for use in a private civil action. See W.Va. Code § 33-41-7; Syl. Pt. 5, in part, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975) (holding that [s]tatutes which relate to the same persons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent).
Our examination of West Virginia Code § 33-2-19 convinces us that the statute, while identifying three instances when disclosure is permitted in subsection (a), does not attempt to limit disclosure to only those three instances. This is evident from subsection (b) which certainly contemplates and impliedly authorizes disclosure of the investigatory materials when the Insurance Commissioner or her agents are required by a court of competent jurisdiction to testify in a civil action. To suggest otherwise is to ignore the obvious fact that the Insurance Commissioner or her agents will undoubtedly refer to such materials in preparation for or during the course of their testimony. More important, however, is the fact that the issue of disclosure is expressly allowed to be determined by a court of competent jurisdiction in both subsection (a) which directly addresses document use or production and in (b) through the indirect use or production that results during the giving of testimony regarding such materials. Contrary to the Insurance Commissioner's position that the investigatory materials are barred in all instances for use in a civil action, the statute suggests that the issue of disclosure may be determined by a circuit court. We reach this conclusion based on the fact that the statute does not contain an across-the-board prohibition on the use of the investigatory materials in a civil action combined with the implication that disclosure is necessarily permitted when the Insurance Commissioner or her agents are directed to testify by a court of competent jurisdiction pursuant to the provisions of subsection (b). See W.Va. Code § 33-2-19.
Having carefully examined the arguments on this issue in conjunction with the relevant statutory provisions, we are compelled to conclude that the provisions of West Virginia Code § 33-2-19 do not expressly prohibit the Insurance Commissioner from disclosing investigatory materials when a court of competent jurisdiction orders that such materials be produced for use in a private civil action. Cf. W.Va. Code § 33-41-7. At the same time, however, we fully recognize that the Legislature has valid concerns for maintaining confidentiality with regard to investigatory materials gathered by the Insurance Commissioner. Consequently, our recognition that the investigatory materials compiled by the Insurance Commissioner may be subject to discovery in a civil action hinges upon an initial examination by the trial court regarding the concerns of confidentiality and privilege that were raised below. As is often the case where materials subject to protections based on confidentiality or privilege are requested, the trial court will need to engage in a balancing test to determine whether the information at issue should be subject to disclosure. See Child Protection Group v. Cline, 177 W.Va. 29, 350 S.E.2d 541 (1986) (recognizing need for trial courts to employ balancing test regarding disclosure of personal information under FOIA). In ruling on the issue of whether the Insurance Commissioner's investigatory file should be subject to disclosure in a private civil action, a trial court should examine whether the materials can be obtained from another entity; whether there is a specific need for the materials; whether the individuals named in the materials or affected by the potential disclosure have waived any privilege they may have to such materials; and any other indicia relevant to the issue of privilege or confidentiality.
In this case, it was represented to the Court that the information sought through the discovery order was not available from any other entity as Mr. Blankenbeckler purportedly does not have any files on his former insurance clients. Additionally, there is no question that the documents at issue are critical to the pending civil action based on the denial of Mr. Blankenbeckler regarding misrepresentations that he previously conceded in the insurance investigation. All of the plaintiffs, Mr. Blankenbeckler, and Monumental Life have waived any privilege concerning the information contained in the Insurance Commissioner's file on Mr. Blankenbeckler. As a consequence, this case presented a unique set of circumstances where no one but the Insurance Commissioner has any objections to the disclosure of the subject information. (See footnote 8)
As Monumental Life opined, when all the persons affected by the documents at issue are in agreement regarding the need for disclosure, the purposes underlying the confidentiality provisions of West Virginia Code § 33-2-19 are not thwarted. Critically, the confidentiality provisions created by West Virginia Code § 33-2-19 are aimed at protecting the parties identified in the documents and not the Insurance Commissioner. (See footnote 9) In this case, we can find no error with regard to the trial court's determination that the investigatory materials in the Insurance Commissioner's possession are subject to discovery in connection with the civil action pending before it. (See footnote 10)
Because the Insurance Commissioner has failed to show that the trial court
exceeded its jurisdiction in directing the disclosure of the materials relating to Mr.
Blankenbeckler, the grounds for issuing a writ of prohibition have not been met. See State
ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12, syl. pt. 4. Accordingly, we refuse
to issue the requested writ of prohibition.