Agster et al v. Allstate Fire and Casualty Insurance Company

Filing 62

MINUTE ORDER denying 47 Motion of Lodge Adjusting & Consulting Corp. to Quash and for Protective Order; denying 51 Motion of Clark Lodge to Quash Subpoena and Deposition, and for Protective Order, by Magistrate Judge Michael J. Watanabe on 9/15/2015.(slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03461-RM-MJW
BRIAN AGSTER, and
MISCHA AGSTER,
Plaintiffs,
v.
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY,
Defendant.
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that the Motion of Lodge Adjusting & Consulting Corp. To
Quash and for Protective Order (Docket No. 47) and the Motion of Clark Lodge to
Quash Subpoena and Deposition, and f or Protective Order (Docket No. 51) are both
DENIED.
Both motions are predicated entirely on the evidentiary privilege in the Colorado
Uniform Arbitration Act (CUAA), at C.R.S. § 13-22-214(4)(a). The subpoenaed parties,
– Lodge Adjusting & Consulting Corp., and Clark Lodge personally – make no other
arguments, except for a conclusory and unsupported undue-burden argument by Lodge
Adjusting & Consulting Corp. Accordingly, if the CUAA does not apply to the appraiserand-umpire process at issue here, the motions must be denied.
The precedent in this district is split as to whether the appraiser-and-umpire
process at issue here is an “arbitration” for purposes of the CUAA. Last year,
Magistrate Judge Mix concluded that the Act applies. Lim v. Am. Econ. Ins. Co., 2014
WL 1464400 (D. Colo. Apr. 14, 2014). But just last week, Senior Judge Babcock came
to the opposite conclusion, concluding that the Act does not apply. Auto-Owners Ins.
Co. v. Summit Park Townhome Ass’n, 2015 WL 5284704, at *2–4 (D. Colo. Sept. 10,
2015). Judge Babcock did so even though, in the same case, he had already ordered
the parties to engage in the appraisal process – relying in part on Lim and the CUAA’s
public policy of favoring arbitration-type proceedings. Auto-Owners Ins. Co. v. Summit
Park Townhome Ass’n, 2015 WL 1740818, at *4 (D. Colo. Apr. 14, 2015). I f ind Judge
Babcock’s treatment of the question to be persuasive, and I follow it here. Accordingly,
the motions are denied.
Date: September 15, 2015