PITTSBURGH – A federal judge has taken under advisement a motion to throw out a subpoena requesting a complete record of electronic messages between a man whose property was destroyed in a fire caused by arson and his initial attorney.
A building that defendant Colon Santana owned was destroyed by arson at 2 a.m. on Dec. 21, 2018. Santana had a $757,000 insurance policy from Wesco Insurance Company on the property, and was in Cancun, Mexico, at the time. In the police investigation, the admitted arsonist, Dustin Morrow, claimed that he was hired by defendant’s daughter, Anna Santana, to set the fire.
Morrow also told the police that approximately 10 to 30 minutes after the fire, he saw Anna talking on a speaker phone with her father. Although Morrow did not understand the conversation because it was in Spanish, Anna turned to him and said: “My dad says good job.”
Later that night, Anna took Morrow to the hospital to be treated for burns. Anna and her husband, Robert Spruill, are also facing criminal charges. Cell phone records obtained by the police reflect that Santana and Anna were in contact numerous times in the hours before and after the fire.
In February 2019, Santana’s former counsel, Stanley Booker stated they would provide the cell phone, but raised concerns about attorney-client communications and represented that the information would be provided as soon as was practical. But Santana never produced the phone and Wesco filed this lawsuit in July 2019.
The ensuing months have seen repeated attempts for Santana to turn over the cell phone continue to be unsuccessful.
On March 17, Wesco issued a subpoena on Booker’s law firm, seeking: “Copies of all emails, texts, voice mail audios, letters, and other communications sent to and received from Colon Santana between Nov. 19, 2019 and Jan. 1, 2020 in any way relating to the Court’s order of Nov. 20, 2019 that Mr. Santana turn over his cell phone within 30 days of November 20.”
Wesco contends that the communications sought in the subpoena are important because it intends to seek default judgment as a sanction for Santana’s refusal to turn over the phone. Wesco also indicated its intent to seek summary judgment on the breach of contract claim due to Santana’s failure to cooperate with its investigation, as required by the insurance policy. The court expresses no opinion about the potential merits of these motions.
Wesco argued attorney-client communications about the contents of a court order are not privileged because they do not involve facts originally revealed by the client, while Santana’s current counsel concedes the communications sought are not privileged.
Wesco and Santana dispute the validity of the motion to quash and completeness of the text messages dated Dec. 24, 2019, with Wesco requesting an in-camera review or the judge to order Santana’s former counsel to submit written declarations that no such documents exist.
“The information sought by Wesco is clearly relevant to the issues pending before the court. Arson by an insured to collect the proceeds of an insurance policy is an affirmative defense on which the insurer has the burden of proof,” Conti said.
“Santana’s repeated failure to produce or preserve the contents of his cell phone, from which Wesco might obtain evidence to prove its arson defense, ‘supports a reasonable and legitimate inference that the insured fraudulently burned or caused the building to be burned.”
Conti said Santana’s failure to turn over the cell phone was in violation of a court order.
“The court will conduct an in camera review of the entire text message exchange on Dec. 24, 2019, to determine whether any portions are privileged. Santana’s current counsel shall provide that entire exchange to the court forthwith, by email to chambers staff,” Conti said.
Conti stipulated on or before June 21, 2020, attorneys Booker and Womer shall file declarations about all communications with Santana from Feb. 8, 2019 (the date of Wesco’s original request to examine the cell phone) to Jan. 12, 2020 (the date Booker withdrew his appearance).
In Count II of the complaint, Wesco seeks other relief, including attorney fees, while Santana moved that the count failed to state a claim. In response, Wesco explained that it is entitled to attorney fees under Pennsylvania law, 18 Pa. Cons. Stat. Section 4117(g).
Section 4117(g) provides that an insurer damaged as a result of a violation of this section may sue therefore in any court of competent jurisdiction to recover compensatory damages, which may include reasonable investigation expenses, costs of suit and attorney fees.
Conti took the motion to quash under advisement pending compliance with this opinion and accompanying order, while ruling Santana’s motion to dismiss the claim for attorney fees was granted without prejudice, to Wesco’s opportunity to file an amended complaint to assert a separate claim under Section 4117(g).”
The plaintiff is represented by David James Singley and Hans H.J. Pijls of Dinsmore & Shohl, in Pittsburgh and Ann Arbor, Mich.
The defendant is represented by Douglas J. Olcott and Kathryn C. Monbaron of Edgar Snyder & Associates in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:19-cv-00925
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com