Sable Cove Condominium Association et al v. Owners Insurance Company

Filing 64

ORDER granting 44 Plaintiff's Motion to Compel, as set forth in the Order; granting 56 Defendant's Motion for Leave to File Surreply to Edge Construction, LLC's Motion to Compel, as set forth in the Order. Scheduling Order 20 is amended for the limited purpose to take and complete Mr. Gibson's deposition ONLY. Discovery, as outlined in the Order, due by 3/2/2015. By Magistrate Judge Michael J. Watanabe on 2/6/2015. (emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No: 14-cv-00912-MJW
EDGE CONSTRUCTION, LLC.,
Plaintiff,
v.
OWNERS INSURANCE COMPANY,
Defendant.

ORDER REGARDING:
(1) PLAINTIFF’S MOTION TO COMPEL (DOCKET NO. 44)
AND
(2) DEFENDANT’S MOTION FOR LEAVE TO FILE SURREPLY TO EDGE
CONSTRUCTION, LLC’S MOTION TO COMPEL (DOCKET NO. 56)

MICHAEL J. WATANABE
United States Magistrate Judge

This matter is before the court on Plaintiff’s Motion to Compel (docket no. 44) and
Defendant’s Motion for Leave to File Surreply to Edge Construction, LLC’s Motion to
Compel (docket no. 56). The court has reviewed the subject motions (docket nos. 44
and 56), the response (docket no. 49), the reply (docket no. 54), and the surreply
(docket no. 57). In addition, the court has taken judicial notice of the court’s file and has
considered 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.
FINDINGS OF FACT AND CONCLUSIONS OF LAW

2
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That Plaintiff seeks, in the subject motion (docket no. 44), an Order
from this Court compelling Defendant Owners Insurance Company
[“Defendant”] to (1) produce copies of the checks Defendant issued
to its insured Sable Cove Homeowners Association and the
invoices of its independent adjuster pursuant to Plaintiff’s requests
for production; (2) overrule Defendant’s invalid objections to
interrogatories numbered 7, 8, and 9 and to compel Defendant to
give complete answers to these interrogatories; and (3) compel the
deposition of Donald Gibson or a second corporate representative;

5.

That copies of payments made in the investigation and handling of
Plaintiff’s insurance claim and the five invoices from the
independent adjuster which Defendant has refused to produce in
response to Plaintiff’s discovery requests are relevant as to the
amount of Plaintiff’s damages and are not privileged;

6.

That Defendant’s responses to Plaintiff’s interrogatories 7, 8, and 9
are incomplete. These interrogatories are relevant and seek
discoverable information that goes to the heart of this case.

3
Moreover, Defendant’s objections to Plaintiff’s interrogatories 7, 8,
and 9 as being compound with multiple subparts, overly broad,
unduly burdensome, and protected under the work product doctrine
are all overruled. Defendant has failed to demonstrate that there is
a factual basis to believe that the claims decision was made in
anticipation of litigation as it was made long before any litigation in
this case; and
7.

That Defendant’s Rule 30(b)(6) representative Christopher James
Hoag, who was the local representative, and designated Rule
30(b)(6) deponent, had no first-hand knowledge or involvement in
the adjustment or decisions on the insurance claim in this case.
See attached videotape Rule 30(b)(6) Deposition of Owners
Insurance Company, LLC, as given by: Christopher James Hoag on
December 16, 2014 transcript (docket no. 54-1). Clearly,
Defendant should have produced someone more knowledgeable
and better prepared then Mr. Hoag to respond to questions by
Plaintiff during the Rule 30(b)(6) deposition. In particular, it is clear
that Defendant should have designated and produced Don Gibson
as its Rule 30(b)(6) representative. See D.R. Horton, Inc.-Denver
v. D & S Landscaping. LLC., 215 P.3d 1163, 1167 (Colo. App.
2008).

4
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiff’s Motion to Compel (docket no. 44) is GRANTED;

2.

That Defendant Owners Insurance Company shall provide to
Plaintiff copies of the checks Defendant issued to its insured Sable
Cove Homeowners Association and the invoices of its independent
adjuster pursuant to Plaintiff’s requests for production on or before
February 13, 2015;

3.

That Defendant Owners Insurance Company shall provide to
Plaintiff full and complete responses to Plaintiff’s interrogatories 7,
8, and 9 on or before February 13, 2015;

4.

That Defendant Owners Insurance Company shall produce Don
Gibson for a Rule 30(b)(6) deposition. The deposition shall take
place in Denver, Colorado. Defendant is responsible for the costs
for Don Gibson to attend his deposition in Denver. The parties shall
forthwith meet, confer, and set a date, time, and location within the
greater Denver Metro area for Mr. Gibson’s deposition. Plaintiff
may depose Mr. Gibson for no more than seven (7) hours. The
stenographer expenses with respect to Mr. Gibson’s deposition
shall be paid by Plaintiff. Mr. Gibson’s deposition shall be
completed by March 2, 2015. The discovery deadline is extended

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and the Rule 16 Scheduling Order (docket no. 20) is amended for
the limited purpose to take and complete Mr. Gibson’s deposition
by March 2, 2015 ONLY;
5.

That Defendant’s Motion for Leave to File Surreply to Edge
Construction, LLC’s Motion to Compel (docket no. 56) is
GRANTED; and

6.

That each party shall pay their own attorney fees and costs for
these motions (docket nos. 44 and 56).

Done this 6th day of February 2015.
BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE