Toy v. American Family Mutual Insurance Company

Filing 122

ORDER granting 111 Plaintiff's Motion to Reconsider Order Denying Motion to Compel Production of "Colorado Business Plans" as outlined in the order. By Magistrate Judge Michael J. Watanabe on 6/18/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01683-PAB-MJW
GREGORY TOY,
Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
Defendant.
ORDER ON
PLAINTIFF’S MOTION TO RECONSIDER ORDER DENYING MOTION TO COMPEL
PRODUCTION OF “COLORADO BUSINESS PLANS”
(Docket No. 111)

MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this court pursuant to an Order Referring Case (Docket No. 8)
issued by Judge Philip A. Brimmer on July 5, 2012.
Now before the court is Plaintiff’s Motion to Reconsider Order Denying Motion to
Compel Production of “Colorado Business Plans” (Docket No. 111). The court has
carefully considered plaintiff’s motion (Docket No. 106-1), defendant’s response (Docket
No. 110), and plaintiff’s reply (Docket No. 118). In addition, the court has taken judicial
notice of the court’s file, and has considered the applicable Federal Rules of Civil
Procedure and case law. The court now being fully informed makes the following
findings of fact, conclusions of law, and order.
On April 1, 2013, this court entered an Order (Docket No. 88) denying in part and
granting in part Plaintiff’s Motion to Compel and for Sanctions (Docket No. 67) and

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Plaintiff’s Supplement to Motion to Compel and for Sanctions (Docket No. 76).
Specifically, as relevant to the subject motion, the court denied plaintiff’s request for
defendant to produce Colorado Business Plan documents from 2000 to the present
time. The court found, among other things, that the Colorado Business Plans were not
relevant since there was no indication that they played any role in the handling of
plaintiff’s claim.
Plaintiff now urges the court to reconsider its order. Plaintiff notes that during
defendant’s Rule 30(b)(6) deposition, defendant indicated that claims are governed by
the business plan for the state in which the claim arose, and not the state in which the
claim was handled. Defendant also confirmed that the business plan for the location of
the event contains items which are audited, including “loss ratios.” Accordingly, plaintiff
argues that, in light of this new evidence, the Colorado Business Plans are clearly
relevant.
The three major grounds that justify reconsideration are: (1) an intervening
change in the controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). A motion to reconsider is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law. Id. (citing
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)). Plaintiff argues that
the availability of new evidence, i.e., the Rule 30(b)(6) deposition of defendant, justifies
reconsideration.
In response to plaintiff’s argument, defendant no longer contends that the
Colorado Business Plans are completely inapplicable to plaintiff’s claim. Rather,

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defendant argues that the plans are not relevant because the adjusters that handle
claims are not familiar with the state-specific plans and do not have access to the plans.
Further, defendant states that “compliance with state-specific plans and achievement of
any goals set forth in those plans are irrelevant to the performance review and
evaluation process used for [defendant’s] adjusters.” In addition, even if the adjusters
were familiar with the plans, defendant argues that “[d]esires to increase premium
volume, writing increased amounts of business, and overall loss ratios” used by
defendant are not relevant to plaintiff’s allegations.
The scope of discovery is broad and “is not limited to issues raised by the
pleadings, for discovery itself is designed to help define and clarify the issues.” Gomez
v. Martin Marietta Corp., 50 F.3d 1511, 1519 (10th Cir.1995) (citation omitted).
Pursuant to Fed. R. Civ. P. 26(b)(1), “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense - including the
existence, description, nature, custody, condition, and location of any documents or
other tangible things and the identity and location of persons who know of any
discoverable matter . . . subject to the limitations imposed by Rule 26(b)(2)(c).” See
also Williams v. Bd. of Cnty. Comm'rs, 192 F.R.D. 698, 702 (D. Kan. 2000) (citations
omitted) (noting that “request for discovery should be considered relevant if there is ‘any
possibility’ the information sought may be relevant to the subject matter of the action”).
Considering that “[l]imitations on the discovery process necessarily conflict with the
‘fundamental principle that the public . . . has a right to every man's evidence,’” the
Federal Rules broadly define the scope of discovery. Simpson v. Univ. of Colo., 220
F.R.D. 354, 356 (D. Colo. 2004) (citing Trammel v. United States, 445 U.S. 40, 50

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(1980)).
The court finds, that in light of the broad scope of discovery, the Colorado
Business Plans are relevant to plaintiff’s allegations. As plaintiff explains, although
individual adjusters may be unaware of the specific goals contained in the plans, the
adjusters are aware, in a broader sense, of general corporate goals. Defendant testified
during its deposition that adjusters receive bonuses which are, at least in part, based on
meeting corporate financial goals. Further, defendant testified that the amount paid out
in claims will affect corporate financial goals and thus have an impact on bonuses. In
other words, the plans contain corporate goals which adjusters are generally aware of,
those goals help determine an adjuster’s bonus, and adjusters are aware that meeting
corporate goals affect their bonuses. Accordingly, the targets and goals set forth in the
Colorado Business Plans may possibly support plaintiff’s allegation that plaintiff’s
adjuster had reason to “low ball” plaintiff’s claim.
However, the court agrees that the request in overbroad. Defendant will be
required to produce Colorado Business Plans in effect during the relevant time period
as previously defined by this court. See Docket Nos. 32, 47, & 71. Specifically,
defendant is ordered to produce all Colorado Business Plans issued from the time of
plaintiff’s incident up until the arbitration demand was made.

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WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Plaintiff’s Motion to Reconsider Order Denying Motion to Compel
Production of “Colorado Business Plans” (Docket No. 111) is GRANTED as outlined
above.

Date: June 18, 2013
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge