Fischer et al v. Aviva Life and Annuity Company et al

Filing 51

ORDER granting in part 33 Motion to Compel signed by Magistrate Judge Edmund F. Brennan on 3/16/2011. Aviva shall send to each individual whose Indianapolis Life Insurance Policy was terminated in the six years prior to the date that the Complaint was filed in this case a letter using the form attached as Exhibit A w/i 14 days after this order is entered. Plaintiffs shall bear the duplication and postage costs that Aviva incurs in sending the letters; w/i 14 days after receiving consent of any insured, Aviva shall forward that insured's contact information to counsel for plaintiffs. Plaintiffs may request that Aviva produce the discoverable insurance file(s) under FRCP 26(b). Aviva shall modify objections to plaintiff's interrogatories 2 and 3, and requests for production 9, 10, 11, 12, 13, 17, 18, 19, 23, 26 and 30 to the extend that any such consent(s) moot Aviva's responses w/i 30 days after receiving such consent(s). (Attachments: # 1 Exhibit A) (Waggoner, D)

-EFB Fischer et al v. Aviva Life and Annuity Company et al

Doc. 51 Att. 1

EXHIBIT A
Dockets.Justia.com

[DATE] [Policyholder Name & Address]

Re:

Fischer, et al. v. Aviva Life and Annuity Company, et al. Eastern District of California, Case No. 2:10-cv-01693-KJM-EFB ]:

Dear [

This letter is being sent to you because you purchased a life insurance policy in California that was issued by Indianapolis Life Insurance Company ("Indianapolis") and that was terminated by Aviva Life and Annuity Company ("Aviva") in or around 2008. California Insurance Code section 791.13 prohibits an insurance company, like Aviva, from disclosing to third parties any personal or privileged information regarding you, your life insurance policy or any claim, unless you first provide written authorization. "Personal information" means any individually identifiable information gathered in connection with an insurance transaction from which judgments can be made about your character, habits, avocations, finances, occupation, general reputation, credit, health, or any other personal characteristics. "Personal information" includes your name and address and "medical record information." Cal. Ins. Code § 791.02(s). The Lawsuit In the case about which we are contacting you, four policyholders filed a lawsuit against Aviva and Indianapolis, alleging breach of contract, bad faith, unfair business practices, financial elder abuse, and breach of fiduciary duty arising from Aviva's termination of life insurance policies that were originally issued by Indianapolis and then acquired by Aviva in 2007. The Plaintiffs in this case have asserted their claims on behalf of similarly-situated policyholders, but the court has not yet ruled on whether a class will be certified. Aviva and Indianapolis deny that they committed any wrongdoing and maintain that at all times their conduct was lawful and proper. Aviva and Indianapolis also contend that a class should not be certified. The Federal District Court for the Eastern District of California has not yet decided if this lawsuit can proceed as a class action, and will not make that decision until later. If the Court concludes that this lawsuit may proceed as a class action, you may be asked to participate as a member of the class that the Court certifies. However, at the present time you are not included as a party to the lawsuit or as a member of any class. The Request for Information As part of the lawsuit, the attorneys for the Plaintiffs have asked Aviva to (1) disclose your identity and contact information (address and telephone number); (2) produce replicas of your original Indianapolis life insurance policy, which includes your

Social Security Number and certain financial and medical history information you may have disclosed in your Application for Insurance; (3) produce replicas of any replacement life insurance policy offered or issued to you by Aviva; and (4) produce communications between you and Aviva. However, before any information or documents are produced by Aviva to the Plaintiffs, the Court has ordered that this letter be sent to you so you can decide whether to disclose to the attorneys for the Plaintiffs your identity (name) and contact information (address and telephone number) and/or your insurance file (including your original Indianapolis policy, the policy offered by Aviva as a replacement for your Indianapolis policy, and/or any communications between you and Aviva). That information is protected from disclosure under both federal and California law, and it is up to you to decide whether to allow your identity, contact information and life insurance policies to be provided to the attorneys for the Plaintiffs. The Court has entered a protective order in this case, so your contact information and insurance files will remain confidential and will only be used for the purpose of litigating this case. Your Options The decision whether to allow the attorneys for the Plaintiffs to obtain this information is entirely yours. You may decide to disclose to Plaintiffs' counsel: (1) only your identity and contact information; (2) your identity and contact information and your life insurance file; or (3) no information whatsoever. If you agree to disclosure of your identity, contact information and/or life insurance file to the attorneys for plaintiffs, please sign and date the letter where indicated below and return it to us in the enclosed self-addressed and stamped envelope. Sincerely,

[Aviva]

CONSENT TO DISCLOSE CONTACT INFORMATION I consent to the disclosure of my contact information, including my name, address, and telephone number, and understand that I may be contacted by counsel for the Plaintiffs in Fischer, et al. v. Aviva Life and Annuity Company, et al., Eastern District of California, Case No. 2:10-cv-01693-KJM-EFB. I understand that my information will be kept confidential and will not be used for any purpose outside of this case. Date: Print Name: Signature: ________________________ ________________________ ________________________

New Address (if applicable):

Current Phone Number:

CONSENT TO CONTACT INFORMATION AND INSURANCE FILE DISCLOSURE I consent to the disclosure of my contact information, including my name, address, and telephone number, and my insurance file, including my original Indianapolis Life policy, the policy offered by Aviva as a replacement for my Indianapolis Life policy, and/or any communications between me and Aviva, and I understand that I may be contacted by counsel for the Plaintiffs in Fischer et al. v. Aviva Life and Annuity Company et al., Eastern District of California, Case No. 2:10-cv-01693-KJMEFB. I understand that my information and documents will be kept confidential and will not be used for any purpose outside of this case. Date: Print Name: Signature: ________________________ ________________________ ________________________

New Address (if applicable):

Current Phone Number: