Rountree v. USAA Casualty Insurance Company, et al

Filing 43

SCHEDULING ORDER by Magistrate Judge Nina Y. Wang on 02/23/16. Discovery due by 11/15/2016. Dispositive Motions due by 12/15/2016. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02762-MSK-NYW
THOMAS ROUNTREE,
Plaintiff,
v.
USAA CASUALTY INSURANCE COMPANY d/b/a
UNITED SERVICES AUTOMOBILE ASSOCIATION,
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, and “JOHN DOES” 1-10,
Defendants.

SCHEDULING ORDER

1. DATE OF CONFERENCE
AND APPEARANCES OF COUNSEL AND PRO SE PARTIES
The Rule 16(b) Scheduling Conference is set for February 24, 2016 at 9:30 a.m. in Courtroom C204 before Magistrate Judge Nina Y. Wang. Plaintiff Thomas Rountree is represented by Miles M.
Dewhirst and Rick N. Haderlie of Dewhirst & Dolven, LLC, 102 S. Tejon St., Ste. 500,
Colorado Springs, CO 80903, [phone]. Defendant USAA Casualty Insurance Company
(“USAA CIC”) is represented by Mr. Jeremy A. Moseley and Ms. Stefania C. Scott of Wheeler
Trigg O’Donnell LLP, 370 17th Street, Suite 4500, Denver, Colorado, 80202, [phone].
Defendant State Farm Mutual Automobile Insurance Company (“State Farm”) is represented by
Marc R. Levy and Heather E. Judd of Levy Wheeler Waters, Professional Corporation, 6400 S.
Fiddlers Green Circle, Suite 900, Greenwood Village, CO 80111, [phone].

2. STATEMENT OF JURISDICTION
Defendant USAA CIC states the Court has subject matter jurisdiction over all claims in
this matter pursuant to 28 U.S.C. § 1332(a)(1) because Plaintiff and Defendants are citizens of
different states, and the amount in controversy exceeds the jurisdictional threshold, exclusive
of interest and costs. Plaintiff is a citizen of the State of Colorado (ECF No. 5, ¶ 1). For
purposes of diversity, a corporation is deemed to be a citizen of every state by which it has
been incorporated and of the state where it has its principal place of business. 28 U.S.C.
§ 1332(c)(1).
USAA CIC is a citizen of Texas (ECF No. 1, ¶¶ 20-22), as it is a Texas corporation
with its principal place of business in San Antonio, Texas. State Farm is a citizen of Illinois, as
it is an Illinois corporation with its principal place of business in Bloomington, Illinois. (ECF
No. 26, ¶ 2.) See exhibits attached to State Farm’s Response to Motion to Remand at Docket
No. 30.
Plaintiff asserts jurisdiction in this Court is inappropriate for lack of diversity because
State Farm is a citizen of Colorado, with a principal place of business at 1555 Promontory
Circle, Greeley, Colorado 80638-0001. Plaintiff’s Motion to Remand is pending.
3. STATEMENT OF CLAIMS AND DEFENSES
a.

Plaintiff(s):

Plaintiff was seriously injured in a single vehicle accident that occurred on January 4,
2013 while Plaintiff was riding as a passenger in the vehicle. Plaintiff claims entitlement to
Medical Payment policy benefits from USAA, and Underinsured Motorist (UIM) policy benefits
from State Farm as a result of his injuries.
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Plaintiff claims damages for Defendants’

unreasonable delay and denial of said benefits and asserts causes of action against both
Defendants of breach of contract, insurance bad faith, and violation of C.R.S. § 10-3-1115. In
addition, Plaintiff asserts violation of the Colorado Consumer Protection Act against USAA.
b.

Defendant USAA CIC:

Defendant USAA CIC denies it breached any contractual obligations owed to Plaintiff,
denies it acted in bad faith, denies that it acted unreasonably in the handling of Plaintiff’s claim
for medical payments benefits, and denies that it violated the Colorado Consumer Protection Act.
The medical payments insuring agreement provides that USAA CIC will pay only the reasonable
fee for medically necessary and appropriate medical services that result from bodily injury
sustained by a covered person in an auto accident and that are for services rendered within one
year of the date of the auto accident. USAA CIC disclosed the medical payments provisions,
including the one-year limitation, to its policyholder Ken W. Tell (“Tell”). Plaintiff submitted a
number of medical bills for services that were not related to the accident and submitted a number
of bills for services that USAA CIC determined were not medically necessary and appropriate.
Plaintiff also submitted medical bills for services rendered more than one year from the date of
the accident, which are not covered pursuant to the express terms of the policy. USAA CIC
complied with the policy provisions and Colorado law in its adjustment Plaintiff’s medical
payments claims.
c.

Defendant State Farm Mutual Automobile Insurance Company:

Defendant, State Farm, denies that it wrongfully delayed or denied Plaintiff’s claim.
State Farm denies any and all wrong doing with respect to the investigation and evaluation of

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Plaintiff’s claims. At all times, State Farm acted reasonably in its investigation and evaluation of
Plaintiff’s claims.
4. UNDISPUTED FACTS
The following facts are undisputed:
1.

On or about January 4, 2013, Tell was operating a 2008 BMW M3 at or about

6410 Austin Bluffs Parkway, Colorado Springs, Colorado, with Plaintiff as a passenger, when
they were involved in a single vehicle automobile accident.
2.

Tell was at-fault in the accident.

3.

At the time of the accident Plaintiff was a covered person pursuant to the terms of

an automobile insurance policy, Policy No. 00502 21 51C 7101 4 (the “Policy”), which included
medical payments coverage of $100,000 per person, subject to all applicable conditions,
exclusions, limits, and terms.
4.

At the time of the accident, Plaintiff was also insured by State Farm under

policy(ies) providing Underinsured Motorist (UIM) coverages.
5.

Under both the Medical Payment and UIM policies, Plaintiff is a first party

Claimant within the meaning of C.R.S. § 10-3-1115(b)(I).
6.

Plaintiff also made claims to USAA for Medical Payment benefits, and to State

Farm for UIM benefits.
7.

Plaintiff settled his claims against Kenneth Tell for limits of liability insurance

available to Mr. Tell.
8.

State Farm consented to Plaintiff’s settlement of his claims against Kenneth Tell.

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5. COMPUTATION OF DAMAGES
[Include a computation of all categories of damages sought and the basis and theory for
calculating damages. See Fed. R. Civ. P. 26(a)(1)(A)(iii). This should include the claims of all parties. It
should also include a description of the economic damages, non-economic damages, and physical
impairment claimed, if any.]
a.

Plaintiff’s position:

Plaintiff claims $100,000 in UIM benefits from State Farm, and $51,522.13 from USAA, and any
other additional policy benefits for continuing medical expenses to which Plaintiff is entitled. In addition,
Plaintiff claims damages for Defendants’ breach of their respective duties of good faith and fair dealing,
and unreasonable delay and denial, including but not limited to reasonable attorney fees and court
costs and two times the covered benefit pursuant to C.R.S. § 10-3-1116(1). In addition, against
USAA Plaintiff claims three times the amount of actual damages, costs, and reasonable attorney
fees as provided by C.R.S. § 6-1-113. To be clear, prior to litigation, Plaintiff pleaded with both
carriers to provide any of the policy benefits to which Plaintiff is entitled.
b.

Defendant USAA CIC’s position:

USAA CIC has not asserted any claim for damages and is not presently seeking damages
from Plaintiff. USAA CIC reserves the right to seek recovery of damages as well as their actual
costs and/or attorneys’ fees under any legally recognized basis.
c.

Defendant State Farm’s position:

State Farm is not asserting any claim for damages.
6. REPORT OF PRECONFERENCE DISCOVERY
AND MEETING UNDER FED. R. CIV. P. 26(f)
a.

Date of Rule 26(f) meeting: February 12, 2016.

b.

Names of each participant and party he/she represented.
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Plaintiff was represented by Rick N. Haderlie; Defendant USAA CIC was represented by
Jeremy A. Moseley and Stefania C. Scott; Defendant State Farm was represented by Marc R.
Levy and Heather E. Judd.
c.

Statement as to when Rule 26(a)(1) disclosures were made or will be made.

USAA CIC’s disclosures were made on February 17, 2016. Plaintiff’s and Defendant
State Farm’s disclosures will be made on February 22, 2016.
The parties’ disclosures were not made within the time provided in Fed. R. Civ. P.
26(a)(1)(C) because of the addition of State Farm to the case on January 4, 2016. State Farm did
not appear in the case until it filed its answer on February 8, 2016. The parties’ first opportunity
to hold a Rule 26(f) meeting was on was February 12, 2016, and disclosures are being made
within 10 days of the Rule 26(f) meeting.
d.

Proposed changes, if any, in timing or requirement of disclosures under Fed. R.
Civ. P. 26(a)(1).

The parties propose the timing of disclosures as identified in paragraph c. above.
e.

Statement concerning any agreements to conduct informal discovery:

Counsel do not believe informal discovery is needed in this matter.
f.

Statement concerning any other agreements or procedures to reduce discovery and other
litigation costs, including the use of a unified exhibit numbering system.

Counsel agree that discovery will involve the production of documents primarily in .pdf
format.
g.

Statement as to whether the parties anticipate that their claims or defenses will involve
extensive electronically stored information, or that a substantial amount of disclosure or
discovery will involve information or records maintained in electronic form.

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The parties anticipate that a substantial amount of disclosure or discovery will involve
information or records maintained in electronic form and have agreed that production of such
documents in pdf format is sufficient. The parties have agreed not to exchange metadata in the
ordinary course of discovery. The parties have taken and will continue to take reasonable steps
to preserve and retrieve discoverable information relevant to this litigation, including
electronically stored information. The parties also agree to cooperate regarding production of
electronically stored information, limitation of associated costs, and avoidance of disputes.
h.

Statement summarizing the parties’ discussions regarding the possibilities for
promptly settling or resolving the case.

The parties have discussed the possibility of settlement and the timing of such discussions.
Defendant USAA CIC must conduct some initial discovery before it can discuss the possibility of
settlement with Plaintiff.
During the Rule 26(f) conference, State Farm and Plaintiff discussed possible settlement,
and will continue to engage in discussions regarding settlement.
7. CONSENT
All parties have not consented to the exercise of jurisdiction of a magistrate judge.
8. DISCOVERY LIMITATIONS
a.

Modifications which any party proposes to the presumptive numbers of

depositions or interrogatories contained in the Federal Rules: Due to the number of claims
handlers, Plaintiff proposes to be allowed to take 15 depositions. Each party may serve up to
twenty-five (25) interrogatories, including discrete subparts, and may take up to fifteen (15)
depositions, including experts.

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b.

Limitations which any party proposes on the length of depositions: Per Rule, except

that, given Plaintiff’s claims against the Defendants, each Defendant anticipates needing one
seven-hour deposition of Plaintiff. Each deposition may last up to one day of seven hours,
except the deposition of Plaintiff which will limited to twelve (12) hours, to be scheduled
between the Parties. The Parties will coordinate Plaintiff’s deposition.
Plaintiff objects to each Defendant taking a seven-hour deposition of Plaintiff.
c.

Limitations which any party proposes on the number of requests for production and/or

requests for admission: The parties agree eEach party may serve each adverse party 25 requests for
production and 25 requests for admission.
d.

Other Planning or Discovery Orders

USAA CIC will file a motion to sever no later than February 26, 2016. plans to file a
motion to sever Plaintiff’s claims against State Farm on the grounds that Plaintiff’s claims
against USAA CIC and State Farm do not arise out of the same transaction or occurrence, as the
claims involve different insurance policies and different coverages. USAA CIC’s policy provides
coverage for medical payments benefits, subject to the terms of its policy. State Farm’s policy
provides underinsured motorist benefits, subject to the terms of its policy. These different
policies are the bases for Plaintiff’s claims against defendants.
State Farm currently has no position on USAA’s proposed motion. The Parties identify
the following issues that may be amenable to early disposition: (1) contractual interpretation of
the USAA contract with respect to whether cost for treatment incurred over a year after the
accident may be claimed under the terms of the policy; and (2) whether there is a continuing duty

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of good faith for State Farm, and whether Plaintiff has a commensurate duty of cooperation, after
this action was filed.
9. CASE PLAN AND SCHEDULE
a.

Deadline for Joinder of Parties and Amendment of Pleadings: April 8, 2016 June 1,

2016.
b.

Discovery Cut-off: November 15, 2016.

c.

Dispositive Motion Deadline: December 15, 2016.

d.

Expert Witness Disclosure:
(1) The parties shall identify anticipated fields of expert testimony, if any:
•

Insurance industry expert

•

Medical opinion

(2) Limitations which the parties propose on the use or number of expert witnesses.
•

Plaintiff proposes – None.

•

USAA CIC and State Farm propose a limitation of no more than one
retained expert per category or topic.

(3) The parties shall designate all experts and provide opposing counsel and any pro
se parties with all information specified in Fed. R. Civ. P. 26(a)(2) on or before
September 15, 2016. This includes disclosure of information applicable to
“Witnesses Who Must Provide A Written Report” under Rule 26(a)(2)(B) and
information applicable to “Witnesses Who Do Not Provide a Written Report” under
Rule 26(a)(2)(C).

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(4) The parties shall designate all rebuttal experts and provide opposing counsel and
any pro se party with all information specified in Fed. R. Civ. P. 26(a)(2) on or before
October 15, 2016. This includes disclosure of information applicable to “Witnesses
Who Must Provide A Written Report” under Rule 26(a)(2)(B) and information
applicable to “Witnesses Who Do Not Provide a Written Report” under Rule
26(a)(2)(C).
Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no exception to the
requirements of the Rule will be allowed by stipulation unless the stipulation is in
writing and approved by the court. In addition to the requirements set forth in Rule
26(a)(2)(B)(I)-(vi), the expert’s written report also must identify the principles and
methods on which the expert relied in support of his/her opinions and describe how
the expert applied those principles and methods reliably to the facts of the case
relevant to the opinions set forth in the written report.
e.

Identification of Persons to Be Deposed:

Name of Deponent

Good Faith Estimate
Expected Length of
Deposition (including questioning by all
parties)

Plaintiff Thomas Rountree

7 hours for each defendant (Plaintiff
objects and requests a maximum of 7
hours for both defendants)

Ken Tell

4 hours

Plaintiff’s medical providers

3 hours (each)

F.R.C.P. 35 examiner (if needed)

5-7 hours (State Farm objects to the
proposed amount of time for IME
depositions)
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5-7 hours (each)

Expert witnesses (TBD)

Representatives of State Farm, including
30(b)(6) witnesses, Analisa Somers,
7 hours maximum each
Jennifer Bower, Anna Black, Deb Sawyer,
and potentially others.
Representatives of USAA, including
30(b)(6) witnesses, Avery Beerhalter, Scott
Billings, and potentially others.

f.

7 hours maximum each

Deadline for Interrogatories:

The parties shall serve written interrogatories at least 45 days prior to the discovery cutoff.
g.

Deadline for Requests for Production of Documents and/or Admissions

The parties shall serve request for production of documents at least 45 days prior to the
discovery cut-off.
10. DATES FOR FURTHER CONFERENCES
[The magistrate judge will complete this section at the scheduling conference if he or she has not
already set deadlines by an order filed before the conference.]
a.

Status conferences will be held in this case at the following dates and times:
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b.

A final pretrial conference will be held in this case on ____________at o’clock

_____m. A Final Pretrial Order shall be prepared by the parties and submitted to the court no
later than seven (7) days before the final pretrial conference. A Final Trial Preparation
Conference will be held before the Honorable Marcia S. Krieger pursuant to her Trial
Preparation Order – Civil, to be set by separate order.
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11. OTHER SCHEDULING MATTERS
a.

Identify those discovery or scheduling issues, if any, on which counsel after a good

faith effort, were unable to reach an agreement.
None.
b.

Anticipated length of trial and whether trial is to the court or jury.

The parties anticipate a two week trial if the Court does not sever the claims against the
respective defendants. If USAA CIC’s claims are severed, USAA CIC anticipates a one week
trial. Similarly, if the Court severs the claims, State Farm anticipates a one-week trial regarding
the claims against it.
c.

Identify pretrial proceedings, if any, that the parties believe may be more efficiently or

economically conducted in the District Court’s facilities at 212 N. Wahsatch Street, Colorado Springs,
Colorado 80903-3476; Wayne Aspinall U.S. Courthouse/Federal Building, 402 Rood Avenue, Grand
Junction, Colorado 81501-2520; or the U.S. Courthouse/Federal Building,103 Sheppard Drive,
Durango, Colorado 81303-3439.
Plaintiff requests that pretrial proceedings, to the extent possible, be conducted in
Colorado Springs.
12. NOTICE TO COUNSEL AND PRO SE PARTIES
The parties filing motions for extension of time or continuances must comply with
D.C.COLO.LCivR 6.1(c) by submitting proof that a copy of the motion has been served upon the
moving attorney's client, all attorneys of record, and all pro se parties.
Counsel will be expected to be familiar and to comply with the Pretrial and Trial Procedures or
Practice Standards established by the judicial officer presiding over the trial of this case.
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With respect to discovery disputes, parties must comply with D.C.COLO.LCivR 7.1(a).
Counsel and unrepresented parties are reminded that any change of contact information
must be reported and filed with the Court pursuant to the applicable local rule.
13. AMENDMENTS TO SCHEDULING ORDER
The parties acknowledge that the scheduling order may be altered or amended only
upon a showing of good cause.

DATED at Denver, Colorado, this 23d day of February, 2016.
BY THE COURT:
s/ Nina Y. Wang
United States Magistrate Judge

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Dated: February 17, 2016
APPROVED:

s/ Rick N. Haderlie
Miles M. Dewhirst
Rick N. Haderlie
Dewhirst & Dolven, LLC,
102 S. Tejon St., Ste. 500
Colorado Springs, CO 80903
Telephone: [phone]

Attorneys
Rountree

for

Plaintiff,

s/ Stefania C. Scott
Jeremy A. Moseley
Stefania C. Scott
Wheeler Trigg O’Donnell LLP
370 Seventeenth Street, Suite 4500
Denver, CO 80202-5647
Telephone: [phone]

Thomas

Attorneys for Defendant,
USAA Casualty Insurance Company

s/ Heather E. Judd
Heather E. Judd
Marc R. Levy
Levy•Wheeler•Waters, Professional Corporation
6400 S. Fiddlers Green Circle, Suite 900
Greenwood Village, CO 80111
Telephone: [phone]
Attorneys for Defendant,
State Farm Mutual Automobile Insurance
Company

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