Public Service Insurance Company v. Mount View Realty, LLC

Filing 125

ORDER. Defendant's 66 Motion to Compel is granted in part, and denied in part. This Order addresses the portion of defendant's motion related to interrogatory responses. Signed by Judge Sarah A. L. Merriam on 9/7/2016. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
PUBLIC SERVICE INSURANCE CO. :
:
v.
:
:
MOUNT VIEW REALTY, LLC,
:
et al.
:
:
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Civil No. 3:15CV740(AWT)

September 7, 2016

ORDER RE: MOUNT VIEW’S MOTION TO COMPEL
Pending before the Court is a Motion to Compel filed by
defendant Mount View Realty, LLC, (“Mount View”) requesting
production of documents and more responsive answers to certain
interrogatories by plaintiff Public Service Insurance Co.
(“PSIC”). See Doc. #66. The Court has previously filed an order
addressing the portion of the motion related to document
production. See Doc. #119. This order addresses the portion of
the motion related to interrogatory responses. For the reasons
set forth below, Mount View’s Motion to Compel [Doc. #66] is
hereby GRANTED, in part, and DENIED, in part.
This order addresses the requests in Mount View’s motion to
compel seeking “more responsive answers to certain
interrogatories.” Doc. #66 at 2. Mount View asserts that “PSIC’s
answers are inadequate” as to Interrogatories 4, 12, and 13 and
that PSIC “did not provide any answer at all” to Interrogatories

14, 15, 16, and 20. Doc. #67 at 10. The Court will address each
challenged interrogatory in turn.
I.

Legal Standard
As an initial matter, this action was filed by PSIC “for

the purpose of determining the parties’ respective rights and
obligations” under the relevant insurance policy. Doc. #1 at 1.
Accordingly, evidence relating to PSIC’s standard policies and
construction of terms is discoverable.
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears
the burden of showing why discovery should be denied.” Cole v.
Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn.
2009). The objecting party’s burden is to “demonstrate
specifically how, despite the broad and liberal construction
afforded the federal discovery rules, each request is not
relevant or how each question is overly broad, burdensome or
oppressive by submitting affidavits or offering evidence
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revealing the nature of the burden.” Ghawi v. Law Offices of
Howard Lee Schiff, No. 3:13CV00115(JBA)(JGM), 2015 WL 2374577,
at *3 (D. Conn. May 18, 2015) (internal citation and alterations
omitted). “A conclusory assertion of burdensomeness is entitled
to no weight whatsoever.” Cris v. Fareri, No.
3:10CV01926(RNC)(DFM), 2011 WL 4433961, at *1 (D. Conn. Sept.
22, 2011) (internal quotation marks and citation omitted)
(collecting cases).
PSIC’s brief in opposition to the motion to compel makes a
blanket argument that the information sought by the challenged
interrogatories is “wholly irrelevant” and constitutes a
“fishing expedition.” Doc. #86 at 5. The Court disagrees. The
interrogatories generally seek information that would assist
Mount View in understanding how PSIC interprets the relevant
policy provisions. “In order to interpret the Policy, [Mount
View] is entitled to explore what risks [PSIC] expected to cover
when it used terms similar to those in the Policy.” Pentair
Water Treatment (OH) Co. v. Cont’l Ins. Co., No.
08CV3604(BSJ)(JCF), 2009 WL 3817600 (S.D.N.Y. Nov. 16, 2009).
Information regarding particular policy terms and their
interpretation by an insurer is relevant and discoverable. See
Thompson v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., No.
3:14CV00259(WWE), 2015 WL 753721, at *4 (D. Conn. Feb. 23,
2015).
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“[W]hile the intent of the parties with respect to an
insurance policy is generally derived from the four corners of
the policy, a court also may consider extrinsic evidence to
ascertain the intent of the parties, if the terms of the
insurance policy are reasonably susceptible to more than one
interpretation, which renders the terms to be ambiguous.”
Hartford Roman Catholic Diocesan Corp. v. Interstate Fire & Cas.
Co., 297 F.R.D. 22, 30 (D. Conn. 2014), objections overruled,
No. 3:12CV1641(JBA), 2015 WL 164069 (D. Conn. Jan. 13, 2015)
(internal citations and quotation marks omitted). This case
concerns a dispute regarding the proper interpretation of a
“water leakage” exclusion. Evidence that would illuminate the
meaning of that exclusion is relevant and discoverable.
II.

Interrogatory 4
Mount View’s Interrogatory 4 requests that plaintiff

provide additional information regarding answers provided in
response to Interrogatory 3.
Interrogatory No. 4:
Identify the underwriting rules or requirements or
guidelines in effect for insuring multi-unit residential
apartment buildings in Connecticut that applied to Mount
View’s building at the time of issuance of each policy
identified in response to Interrogatory 3.
Doc. #67-2 at 12. In response to Interrogatory 3, PSIC
identified (or at least conceded the existence of) three
insurance policies issued to defendant with effective dates of

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August 16, 2012; August 16, 2013; and August 16, 2014.
Interrogatory 4 is limited to matters specifically pertaining to
Mount View’s covered property, and to these dates.
PSIC responds with a litany of general objections, and the
assertion that it would be “impossible to state with precision
all ‘underwriting rules or requirements or guidelines’ in effect
in Connecticut[.]” Doc. #86 at 6. PSIC’s response further
asserts that PSIC’s “Underwriting Department would have applied
and considered various factors/guidelines” with regard to Mount
View’s property. Doc. #67-2 at 13.
Response No. 4:
Objection. This interrogatory is overly broad, unduly
burdensome, and ambiguous. This interrogatory seeks
information outside the scope of permissible discovery,
including
attorney-work
product,
attorney-client
communications, information of material prepared in
anticipation of litigation and other information
similarly privileged. Further, the interrogatory seeks
the plaintiff to obtain information which is beyond the
scope of its obligations under the Federal Rules of Civil
Procedure and the local rules of the District of
Connecticut. The plaintiff refers the defendant to the
underwriting documents produced in response to the
defendant’s request for production of documents,
pursuant to Fed. R. Civ. P. 33(c).
And further answering, the Plaintiff states that it is
impossible to state with precision all “underwriting
rules or requirements or guidelines” in effect in
Connecticut. The plaintiff’s Underwriting Department
would
have
applied
and
considered
various
factors/guidelines
in
its
underwriting
process
including, but not limited to: value of the property;
construction materials used in the property; potential
hazards surrounding or within the property; age of the
property; use of the property; security measures and
other loss control measures associated with the
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property; upkeep of the property; location of the
property; current insurance in force on the property;
and prior losses associated with the property.
The plaintiff reserves the right to
Answer to this Interrogatory upon
discovery.

supplement the
completion of

Doc. #67-2 at 12-13.
As noted above, “[t]he underwriting file is relevant to
determining the risks that [PSIC] expected to cover in the
policy, how it interpreted the various policy terms, and whether
the terms of the policy are ambiguous in the first instance.”
Thompson, 2015 WL 753721, at *4 (internal citations and
quotation marks omitted). PSIC’s answer is nonresponsive. PSIC
has not met its burden and the Court does not agree that the
interrogatory is overly broad, unduly burdensome, or ambiguous;
that it implicates any privilege; or that it is beyond the scope
of permissible discovery. It is in fact narrowly focused on a
particular time frame and on only those underwriting rules that
applied to the particular policies listed. Accordingly, Mount
View’s motion is granted with respect to Interrogatory 4.
The Court also notes that PSIC’s response “refers the
defendant to the underwriting documents produced ... pursuant to
Fed. R. Civ. P. 33(c).” Doc. #67-2 at 12. Reference to documents
already produced is permitted, but a general reference to
documents is insufficient. See Synventive Molding Solutions v.
Husky Injection Molding Sys., 262 F.R.D. 365, 378 (D. Vt. 2009)
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(holding that Bates numbers must be provided when responding
pursuant to Rule 33(d)). To the extent plaintiff seeks to rely
on documents in response to this (or any other) interrogatory,
it must provide the Bates numbers of the particular documents
that provide the response.
III. Interrogatories 12 and 13
Mount View’s interrogatories 12 and 13 are similar to each
other, and PSIC’s responses to them are virtually identical.1
Interrogatory No. 12:
Identify any insurance policy forms used by PSIC with
policyholders other than Mount View at any time between
January 1, 2004 and the date of PSIC’s complaint against
Mount View that contains language with the same meaning
and effect as the “water leakage exclusion with anticoncurrent causation language” referenced in the
Complaint.
Doc. #67-2 at 20 (emphasis in original).
Interrogatory No. 13:
Identify any insurance policy forms used by PSIC with
policy holders other than Mount View at any time between
January 1, 2004 and the date of PSIC’s complaint against
Mount View that contains language with the same meaning
and effect as the “continuous or repeated seepage or
leakage of water that occurred over a period of 14 days
or more” referenced in the Complaint.
Doc. #67-2 at 20 (emphasis in original).

The sole difference is that an additional relevance objection
is posed to Interrogatory 13. The Court has addressed relevance
issues already and finds that this objection is not wellfounded. Materials concerning the water leakage language
referenced in the complaint are certainly relevant here.
1

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Answer No. 12:
Objection. This interrogatory is overly broad, unduly
burdensome, and ambiguous. This interrogatory is also
confusing to the extent that it does not set forth any
definition or scope for the referenced terms “meaning”
or “effect.” This interrogatory seeks information
outside the scope of permissible discovery, including
attorney-work product, attorney-client communications,
information of material prepared in anticipation of
litigation and other information similarly privileged.
Further, the interrogatory seeks the plaintiff to obtain
information which is beyond the scope of its obligations
under the Federal Rules of Civil Procedure and the local
rules of the District of Connecticut. Notwithstanding
this objection and without waiving the same, the
plaintiff states:
This dispute involved an insurance policy which
contained standardized insurance forms issued by ISO.
The plaintiff used the same, standardized insurance
forms in connection with other insurance policies.
Doc. #67-2 at 20.
Answer No. 13:
Objection. This interrogatory is overly broad, unduly
burdensome, and ambiguous. This interrogatory seeks
information that is not relevant to any issue in this
case. This interrogatory is also confusing to the extent
that it does not set forth any definition or scope for
the referenced terms “meaning” or “effect.” This
interrogatory seeks information outside the scope of
permissible discovery, including attorney-work product,
attorney-client communications, information of material
prepared in anticipation of litigation and other
information
similarly
privileged.
Further,
the
interrogatory seeks the plaintiff to obtain information
which is beyond the scope of its obligations under the
Federal Rules of Civil Procedure and the local rules of
the District of Connecticut. Notwithstanding this
objection and without waiving the same, the plaintiff
states:
This dispute involved an insurance policy which
contained standardized insurance forms issued by ISO.
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The plaintiff used the same, standardized insurance
forms in connection with other insurance policies.
Doc. #67-2 at 21.
To the extent PSIC argues that information responsive to
these requests might implicate confidentiality agreements, the
Court finds these arguments unpersuasive. No particular
agreement that might be violated has been identified. PSIC’s
objections on attorney-client privilege and work product grounds
are similarly misplaced; as discussed in the Court’s ruling on
the motion to compel the production of documents, investigation
of insurance claims is not protected by these privileges until
and unless there is some basis to anticipate litigation. See
Doc. #119. Indeed, PSIC’s paragraph of boilerplate objections
that do not appear applicable to these interrogatories presents
the impression that PSIC asserted general objections rather than
considering the merits of these particular interrogatories.
Again, PSIC has not met its burden of showing that Mount View’s
interrogatories are improper.
PSIC’s responses to Interrogatories 12 and 13 are
inadequate. Indeed, the objections lodged contradict the
responses provided. The responses state that the policy at issue
“contained standardized insurance forms issued by ISO” and that
PSIC “used the same, standardized insurance forms in connection
with other insurance policies.” Doc. #67-2 at 20, 21. As

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discussed during the conference on September 2, 2016, if PSIC
uses standard forms, it should be a simple matter to identify
and provide those forms to Mount View. Accordingly, defendant’s
motion is granted with respect to Interrogatories 12 and 13.
IV.

Interrogatories 14, 15 and 16
It appears that PSIC believes it has no obligation to

respond to Interrogatories 14, 15 and 16, perhaps because of its
objections to Interrogatories 12 and 13. The primary objection
actually lodged in response to the interrogatories is that these
requests are “overly broad, unduly burdensome, and ambiguous.”
Doc. #67-2 at 21. However, PSIC asserts a new objection in its
brief in opposition to the motion to compel, which it describes
as “even more concerning,” that is, the possibility that
identifying prior disputes arising out of similar policy
language would implicate confidentiality agreements. Doc. #86 at
9. The interrogatories request information only about
arbitration proceedings or lawsuits actually commenced, and
about PSIC’s positions in those arbitrations or lawsuits as to
the interpretation of the relevant policy provisions. The Court
sees no obvious basis for concern regarding confidentiality. The
Court also sees no basis for an assertion that these requests
are ambiguous, as they use language employed by PSIC in the
Complaint, see Doc. #1 at ¶¶ 1, 22, 23, and PSIC has represented
that it always uses form complaints.
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The Court agrees that, as framed, the interrogatories are
overly broad as to time. Accordingly, the Court will grant Mount
View’s motion only in part. PSIC must disclose any arbitration
proceeding or lawsuit brought by or against PSIC from January 1,
2012, to the present, in which coverage under, or interpretation
of, language identical to or with the same meaning as
“continuous or repeated seepage or leakage of water that
occurred over a period of 14 days or more” or “water leakage
exclusion with anti-concurrent causation language” was at issue.2
As to each such arbitration proceeding or lawsuit identified,
PSIC shall identify any documents or testimony known to PSIC
regarding PSIC’s interpretation or application of this language,
and any decisions rendered by any court or arbitrator
interpreting the language.
V.

Interrogatory 20
Interrogatory 20 requests information relating to other

cases in which PSIC has “refused to participate in appraisal” on
certain grounds. Doc. #67-2 at 24. When these interrogatories
were propounded, there was an open dispute regarding whether or
not the parties to this case would participate in appraisal

As PSIC contends that it used form language in all of its
policies, the Court presumes that there will be no need to
evaluate whether particular provisions have “the same meaning”
in different policies because identical form language will have
been used.
2

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proceedings. There have been disputes regarding the appointment
of appraisers, the selection of an umpire, the parameters of the
appraisal proceeding, and the need for an inspection of the
affected property. However, at this time, the parties’
appraisers and umpire are in place, and the process is underway.
Accordingly, there no longer appears to be a need for inquiry
into this matter. However, counsel for Mount View represented in
a conference today that a counterclaim remains to be addressed
alleging that PSIC breached its contract with Mount View by
failing to engage in the appraisal process. Accordingly, this
request is denied, without prejudice to renewal.
VI.

Conclusion
For the reasons set forth herein, Mount View’s motion is

hereby GRANTED, in part. PSIC shall provide supplemental
responses to Mount View’s interrogatories as directed herein
immediately, but in no event later than 12:00 p.m. on September
9, 2016. The Court notes that it advised counsel for PSIC during
the September 2, 2016, conference, and again during today’s
conference, that it should expect to be required to provide
information regarding the “form policies” referenced in its
prior responses, and to provide specific Bates numbers for any
documents on which its interrogatory responses purport to rely.
This is not a Recommended Ruling. This is an order
regarding case management which is reviewable pursuant to the
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“clearly erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 7th day of
September 2016.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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