Moss v. Geico Indemnity Company

Filing 73

ORDER granting [Doc. 70] Plaintiff's Motion to compel depositionsof John Quagliato, Sallie Curie and Gary Gertz. Signed by Magistrate Judge Philip R. Lammens on 7/17/2012. (AR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ELEANOR C. MOSS, as Personal
Representative of the Estate of Roy
L. Moss, deceased
Plaintiff,
v.

Case No:5:10-CV-104-Oc-10PRL

GEICO INDEMNITY COMPANY
Defendant.
___________________________________/
ORDER
Pending before the Court is Plaintiff’s Motion to Compel Depositions of John
Quagliato, Sallie Currie and Gary Gertz. (Doc. 70). Defendant has filed a response in
opposition. (Doc. 72). For the reasons discussed below, Plaintiff’s Motion is due to be
GRANTED.
This action for statutory bad faith arises out of GEICO’s handling of an uninsured
motorist (“UM”) benefits claim made by Plaintiff, Eleanor C. Moss, as Personal
Representative of the Estate of Roy L. Moss, Deceased (‘Moss wrongful death claim”).
Issues central to Plaintiff’s action are what monetary value was placed on the Moss
wrongful death claim; who at GEICO placed a value; and who decided what settlement
offers would be extended to settle the claim.
In its Rule 26 Initial Disclosures, GEICO identified five employees -- Sallie Currie,
Mary Ellen Murphy, Sharon Seavy, Gary Gertz, and Lawrence Corry – as being
“involved in the handling of the underlying claim.” On May 9, 2012, Plaintiff’s counsel
deposed Sally Currie, a GEICO claims examiner and Gary Gertz, a Regional Claims

Manager.

During her deposition, Ms. Currie testified that she did not assign a dollar

value to the claim and that she had no opinion on whether the claim exceeded policy
limits. Likewise, Mr. Gertz testified that he was not involved in evaluating the claim;
placing a settlement value on the claim; or deciding what settlement offers GEICO
would make on the claim.
On May 9, 2012, shortly after the depositions concluded, the Court issued its
ruling on Plaintiff’s Motion to Compel Production of Documents. (Doc. 67). The Court
ordered GEICO to produce numerous documents that had been withheld on the basis of
attorney/client or work product privilege, and were not available to Plaintiff at the time of
Ms. Currie and Mr. Gertz’s depositions. Plaintiff contends that two of those documents
contradict the deposition testimony and show that both Ms. Currie and Mr. Gertz were
involved in evaluating the monetary value of the Moss wrongful death claim.
After discovery closed on May 15, 2012, Plaintiff’s counsel deposed Larry Corry,
a GEICO Home Office Claims Attorney.1 Mr. Corry confirmed that Ms. Currie and Mr.
Gertz were involved in evaluating the monetary value of the claim.

He also testified

that John Quagliato, a GEICO Assistant Vice President of Claims, was the ultimate
decision maker in deciding the amount of settlement offers that GEICO would make in
settlement of the Moss wrongful death claim. Accordingly, Plaintiff seeks leave to
reopen discovery to re-depose Ms. Currie and Mr. Gertz and to take the deposition of
John Quagliato.
Because Ms. Currie and Mr. Gertz were previously deposed in this action and the
parties have not stipulated to re-deposing them, Plaintiff “must obtain leave of court, and
1

The Court granted Plaintiff’s unopposed motion to depose Mr. Corry after the
discovery deadline. (Doc. 69).
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the court must grant leave to the extent consistent with Rule 26(b)(2).”

See

Fed.R.Civ.P. 30(a)(2). Pursuant to Rule 26(b)(2), discovery should be limited if the
Court determines that the requested discovery is (1) unreasonably cumulative or
duplicative, or can be obtained from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking discovery has had ample
opportunity to obtain the information sought; or (iii) the burden or expense of the
proposed discovery outweighs the likely benefit.

The Advisory Committee Notes to

Rule 30(d) -- which limits depositions to “1 day of 7 hours” – provides that the party
seeking a court order to extend a deposition must show good cause. See Advisory
Committee Note to 2000 Amendment to Fed.R.Civ.P. 30(d). Further, in order to reopen discovery, Plaintiff must show good cause to modify the Court’s Case
Management and Scheduling Order. Fed.R.Civ.P. 16(b)(4).
Under the circumstances presented here, the Court finds that good cause exists
to allow Plaintiff to re-depose Ms. Currie and Mr. Gertz and that doing so is consistent
with the principles set forth in Rule 26(b)(2). As discussed above, Plaintiff’s counsel did
not have access to documents that appear to be inconsistent with the deposition
testimony of both Ms. Currie and Mr. Gertz on issues central to this action – i.e., what
monetary value was placed on the Moss wrongful death claim and by whom. Plaintiff’s
counsel should be afforded the opportunity to fairly examine the witnesses with the
benefit of these documents.2 However, Plaintiff’s examination of these witnesses (i.e.,
Ms. Currie and Mr. Gertz) shall be limited to questions directly related to the documents

2

Although the Court is granting Plaintiff’s motion, the Court notes that it is not
persuaded by Plaintiff’s argument that she reserved the right to re-depose Ms. Currie
and Mr. Gertz and that Defendant waived its objections.
3

produced by GEICO in response to the Court’s recent Order (Doc. 67), along with their
respective roles, if any, in placing a monetary value on the wrongful death claim.
Likewise, Plaintiff has shown good cause to re-open discovery to depose Mr.
Quagliato. Mr. Quagliato first was identified as a potential witness during Mr. Gertz’s
May 9, 2012 deposition. However, it was not until Mr. Corry’s deposition that Plaintiff
realized that Mr. Quagliato was the ultimate decision maker. The Court is sympathetic
to Defendant’s argument that Plaintiff could have learned of Mr. Quagliato earlier if she
had not waited until the very end of discovery to depose Mr. Gertz and after the close of
discovery to depose Mr. Corry. GEICO, however, failed to identify Mr. Quagliato as a
potential witness in its Rule 26 initial disclosures and failed to supplement its
disclosures as required by Fed.R.Civ.P 26(e). While neither party was without fault, the
Court finds that the equities weigh in favor of Plaintiff because Mr. Quagliato may
ultimately be an important witness in this action.
Accordingly, Plaintiff’s Motion to Compel Depositions of John Quagliato, Sallie
Currie and Gary Gertz (Doc. 70) is GRANTED to the extent that on or before July 31,
2012, Plaintiff may:
(1)

re-depose Ms. Currie and Mr. Gertz, but shall limit such examination
to questions directly related to the documents produced by GEICO in
response to the Court’s recent Order (Doc. 67), along with their
respective roles, if any, in placing a monetary value on the wrongful
death claim; and

(2)

depose Mr. Quagliato.

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DONE and ORDERED in Ocala, Florida on July 17, 2012.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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