KENNETH G. GALE, Magistrate Judge.
In the present action, which was removed from the District Court of Miami County, Kansas, Plaintiff seeks the proceeds of uninsured motorist coverage from Defendant insurer. (Doc. 1-1.) Plaintiff also seeks attorney fees pursuant to K.S.A. §40-256.
Now before the Court is Plaintiff's Motion to Compel, which primarily addresses the "discoverability of insurance files and the opinions of the experts the Defendant consulted before its denial." (Doc. 24, at 1.) The discovery requests at issue will be discussed and addressed individually herein. Having reviewed the submissions of the parties, Plaintiff's motion is
The underlying automobile accident occurred on May 30, 2013. Plaintiff alleges he suffered a brain injury as a result of the accident and claims damages in excess of $2,000,000. He recovered the policy limits of $100,000 from the motorist. Thereafter, Plaintiff submitted a demand letter to Defendant on April 30, 2017. (Doc. 24-2.) A subsequent demand letter was submitted on July 10, 2017, for the available limits of Defendant's uninsured motorist policy. (Id.)
During the claims process, Defendant contends that "Plaintiff refused to provide [it] with the information it needed to fully evaluate the nature and extent of his damages." (Doc. 27, at 1.) For instance, according to Defendant, Plaintiff "refused to provide authorizations that would allow Defendant to collect pre-and post-incident medical records, and also refused to produce Plaintiff for independent medical examinations by Defendant's consulting experts." (Id.)
Defendant refers to the report of a treating physician whose neuro-psychological testing of Plaintiff
(Doc. 27-1.) Defendant denied the claim by letter dated July 26, 2017. (Doc. 24-2.)
Plaintiff's motion initially encompassed Defendant's responses to Interrogatories Nos. 4, 6, 10, 11, 12, 19 (second, misnumbered) 19 and Requests for Production Nos. 1, 2, 10, 11, and 13. (See generally Doc. 24.) Since the filing of the present motion, the parties have resolved their differences regarding Interrogatories Nos. 4, 6, and 11and Requests for Production 11 and 13. This Order will thus address Interrogatories Nos. 10, 12, 19, 19, and Requests for Production Nos. 1, 2, and 10.
As such, the requested information must be nonprivileged, relevant, and proportional to the needs of the case to be discoverable.
Plaintiff argues that "Defendant did not produce a privilege log in the original responses and did not create one after it was discussed during the December 21, 2017 `meet and confer' phone call." (Doc. 24, at 6.) Although Defendant should have included a privilege log with its original discovery responses, the parties seemed to have resolved this issue during their meet and confer session.
Defendant responds that it provided the requested privilege log upon returning to the office after the New Year. (Doc. 27, at 4; Doc. 27-4.) Defendant subsequently provided a revised privilege log within a day after Plaintiff complained the log did not include Bates numbers. (Doc. 27, at 4; Doc. 27-5.) Considering Plaintiff's motion was filed less than a week after the meet and confer session — not to mention that it was the week including the Christmas holiday — the Court is satisfied that Defendant has complied with its duties as to the provision of a privilege log. This portion of Plaintiff's motion is
Plaintiff complains of Defendant's inclusion of the language "to the extent" to qualify several of its objections. (Doc. 24, at 9.) Plaintiff argues that this constitutes a "general objection" which Courts in this District have routinely overruled. (Id.) Plaintiff's argument is misplaced.
Plaintiff is correct that Courts in this District find general objections to be "worthless and improper."
Defendant's use of the "to the extent" language does, however, constitute an improper conditional objection. As such, the Court discusses this language in the following section of this Order.
Plaintiff also complains of Defendant's use of "conditional objections." This Court has also specifically indicated its disapproval of "conditional" discovery responses, such as occurs when "a party asserts objections, but then provides a response `subject to' or `without waiving' the stated objections."
The Court
This Court has recognized that there is a rebuttable presumption "`that neither attorney work product nor attorney-client privilege protects an insurer's investigatory file on an insured's claim from discovery before a final decision is made' as to that claim."
Id. (internal citations omitted). "`[T]he question of whether insurer and adjuster documents were created in anticipation of litigation depends on whether the party seeking protection can point to a definite shift made by the insurer or adjuster from acting in its ordinary course of business to acting in anticipation of litigation.'" Id., at 698 (quoting
Plaintiff argues that "[c]learly, no matter when the deadline to respond might be, a review by someone with expertise in traumatic brain injury in Travelers or for Travelers would have been part of the normal claims process." (Doc. 24, at 12.) Plaintiff continues that "litigation could not have reasonably been anticipated until the July 26, 2017[,] denial letter was written." (Id., at 13.) As such, the responsibility of these doctors at the time their opinions were initially set forth was not to "assist in anticipated or ongoing litigation, but to assist the claims department in evaluating the claim. . . ." (Id.) Plaintiff argues that these opinions "go to the heart of whether the Defendant denied the claim `without just cause or excuse'`" Further, Plaintiff contends that it does not seek to depose the doctors before expert designations, but that having the information they gave the claims department "is the only way the Plaintiff can conduct effective depositions of the claims adjustors." (Doc. 24, at 14.)
Defendant responds that a clearly delineated shift occurred when Plaintiff made the demand.
(Doc. 27, at 5-6.)
Defendant continues that "the attorney-client communication privilege protects the bulk of the communications redacted from the claim file and that the work product doctrine protects the remainder." (Id., at 6.) Defendant acknowledges that the consulting experts did not prepare written reports, thus any such communications are privileged in Defendant's opinion. (Id.) As such, Defendant approached Plaintiff with a compromise "wherein the attorney-client communications and work-product documents would be produced in part, provided there was an agreement that doing so would not waive privilege for other communications, opinions conveyed, etc. during the investigation conducted at the direction of counsel." (Id., at 7.) According to Defendant, "Plaintiff indicated a willingness to accept this with respect to certain, but not all at issue communications." (Id.) Defendant argues that "[w]ithout this compromise, there can be no production." (Id.)
Plaintiff acknowledges that "the usual line to demarcate the work product privilege in insurance claim files is the denial of the claim. Courts have routinely applied a rebuttable presumption `that neither attorney work product nor attorney-client privilege protects an insurer's investigatory file on an insured's claim from discovery before a final decision is made' as to that claim." (Doc. 28, at 5 (citing
The Court notes Defendant's contention that four years had passed from the date of the accident until the UIM demand letter was sent. Clearly this was not a situation in which an insurer is attempting to withhold from production the routine claims work of its employees that occurred within a few days, weeks, or even months of a claim being filed. That stated, the Court has some concern as to how an insurer in this situation would be able to "shift" from its routine, investigatory work to "anticipation of litigation" mode until after medical reviews regarding Plaintiff were completed.
The Court finds, however, that Plaintiff's demand of the UIM policy limits on April 30, 2017, taken in the context of the prior results of the neuropsychological testing conducted by Plaintiff's treating physician (which occurred in June 2015 and discussed supra; Doc. 27-1) would have been sufficient to result in a shift by Defendant from routine claims handling to reasonably anticipating litigation under these fact-specific circumstances. As such, Defendant's attorney-client privilege and work product objections regarding the documents and communications generated after May 12, 2017, are
Interrogatory No. 10 asks if Defendant "contend[s] the Plaintiff's claim for loss of future earning capacity . . . was not caused by the accident on May 30, 2013," and, if so, to "state each and every reason for such contention." (Doc. 24-3, at 4.) Interrogatory No. 12 requests that Defendant state the reasons it believes it is not liable for any of the damage discussed in Plaintiff's July 10, 2017, demand letter. (Id.) Interrogatory No. 19 asks Defendant to "identify any symptoms that contributed to" Defendant's belief, if any, that "it is more likely than not the Plaintiff sustained any type of injury" from the underlying accident. (Doc. 24-3, at 6. The second (misnumbered) Interrogatory No. 19 ask Defendant to identify whether it believes "Plaintiff suffered from post-concussive syndrome before July 26, 2017" and, if so, to state the causes therefore and reasons for said belief. (Id., at 7.)
Defendant objects that these interrogatories are "premature" because they seek "the content of expert opinions." (Doc. 27, at 9-12; Doc. 24-3, at 4-7.) Defendant stated it would disclose its experts and their opinions in conjunction with the Court's Scheduling Order. (Doc. 24-3, at 4-7.) In response to Interrogatory No. 12, after stating its conditional objections (which were overruled, supra), Defendant responded that its "investigation indicated the Plaintiff's alleged injuries and related damages are not of the nature and extent alleged in connection with the claim; and/or were not causally connected to the accident." (Id., at 5.) In response to Interrogatories Nos. 19 and (misnumbered) 19, Defendant refers Plaintiff to his medical records "[t]o the extent [his] treating physicians rendered opinions" on this issue. (Id., at 6-7.)
Plaintiff argues that it is "simply seeking to know what injury, if any, Defendant thought Plaintiff sustained (and post concussive syndrome in particular.)" (Doc. 24, at 17.) Plaintiff continues that he is "asking what Travelers believes, not the doctors it used to review the records. Since it was the adjustor who denied the claim on the basis of lack of medical causation, these answers are needed for the depositions of the adjustors and directly relate to whether the Defendant denied the claim without just cause or excuse." (Id.)
Defendant responds that "given this contention will be supported by expert opinion testimony, the Defendant respectfully requests that it not be required to respond until its expert disclosures and reports are due pursuant to this Court's scheduling order." (Doc. 27, at 11, 12.) Defendant continues that
(Id., at 11-12, 12-13.)
The Court is not persuaded by Defendant's argument. These interrogatories seek factual information. While the information may be "supported" by expert testimony, the underlying factual basis for Defendant's belief that Plaintiff did or did not sustain injury in the accident and/or suffered post-concussive syndrome prior to the denial of the claim is discoverable. This is particularly true when Defendant would have had to have considered these issues in the process of shifting from its routine claims work to "anticipation of litigation" mode.
Defendant's discovery responses also state that "to the extent Plaintiff's treating physicians rendered opinions in this regard, see the Plaintiff's medical records produced to the Defendant by the Plaintiff during the claims period." (Doc. 24-3, at 6, 7.) As discussed supra, this conditional response is improper. Defendant is instructed to provide supplemental responses to these two interrogatories identifying the specific portions of Plaintiff's medical records, by Bates number, that include relevant opinions rendered by Plaintiff's treating physicians. This portion of Plaintiff's motion is
This discovery request seeks all documents, including claims manuals and electronically stored information, "used or referred to in the handling of personal injury claims and/or underinsured claims, and which were in effect between January 1, 2016 and July 26, 2017." (Doc. 24, at 17.) Plaintiff has limited the temporal scope of the request to "most (but not all) of the time Defendant was on notice of the UIM claim to the date of denial." (Id., at 18.)
Defendant responded with a laundry list of objections, including that the request was facially overly broad, sought irrelevant information, and implicated the attorney-client privilege and work product doctrine. (Doc. 24-4, at 1.) Defendant continues that discovery related to the underlying claim, "including the basis for the claims denial is relevant and discoverable, but discovery related to claims policies, procedures, manuals, etc. such as the group of documents requested by Request No. 1 is not reasonably calculated to lead to the discovery of admissible evidence herein."
The Court is sympathetic to Defendant's objections as to the breadth of the request. Plaintiff has not established why all documents used or referred to in the handling of any personal injury claims and/or underinsured claims are relevant. That stated, the Court finds that any documents used or referred to by Defendant — or applicable to the handling of Plaintiff's specific, underlying claim (whether or not ultimately used or referred to by Defendant) — are relevant and discoverable. Defendant is thus directed to provide Plaintiff will any and all documents (including but not limited to the formats enumerated in Plaintiff's request) that were specifically used or referred to in the handling of the underlying claim at issue as well as such documents that were in effect for handling uninsured motorist claims generally from January 1, 2016 and July 26, 2017. This portion of Plaintiff's motion is
Request No. 2 seeks "all claims files, investigative files, computer files underwriting files and emails (including case evaluations) regarding" the underlying claim "and which were created before the filing of this suit." (Doc. 24-4, at 2.) Request No. 10 asks for "all documents which relate to the evaluation or interpretation of medical records and/or medical bills" for the underlying claim.
Defendant again responds with a litany of objections, including the attorney-client privilege and work product doctrine, even though no privilege log was provided. (Id.) Defendant also objects that the request seeks information related to the injury claims made by non-parties, which implicates the confidential medical information of these individuals. (Id.) Defendant argues that documents containing such information "have no relevance to Plaintiff's claims herein." (Id.) Defendant also objects "to the extent the request seeks the underwriting files for the subject policy." (Id.) Defendant contends that such documents "are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence."
In response to Request No. 2, after stating its conditional objections (which were overruled, supra), Defendant indicates that it produced the claim file with its Rule 26 disclosures. (Id., at 2.) In response to Request No. 10, after stating its conditional objections (which were overruled, supra), Defendant indicates that there are no responsive documents "other than those contained in the non-privileged portion of the claims file, previously produced." (Id., at 4.)
As discussed supra, these conditional responses, stating objections "to the extent" the requests are seeking certain information, are improper. Defendant is instructed to provide supplemental responses to these two requests removing these objections and identifying any documents being withheld on the basis of privilege.
Plaintiff argues that Defendant has not rebutted the presumption that "neither attorney work product nor attorney-client privilege protects an insurer's investigatory file on an insured's claim file form discovery `before a final decision is made' as to that claim." (Doc. 24, at 19 (citation omitted).) As discussed above, however, the Court does not agree with Plaintiff's position. Defendant has adequately explained when its work shifted from routine claims handling to the "anticipation of litigation." The documents were redacted by Defendant accordingly. This portion of Plaintiff's motion is thus
IT IS SO ORDERED.
