PLEASANT GROVE MISSIONARY BAPTIST CHURCH OF RANDOLPH COUNTY INC v. State Farm Fire and Casualty Company
ORDER denying 10 Motion to Compel. Ordered by Judge Clay D. Land on 06/04/2012. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
PLEASANT GROVE MISSIONARY
BAPTIST CHURCH OF RANDOLPH
CASE NO. 4:11-CV-157 (CDL)
STATE FARM FIRE & CASUALTY
O R D E R
Missionary Baptist Church of Randolph County (“Pleasant Grove”)
seeks production of certain documents created and maintained by
State Farm contends that the documents are
protected from discovery under the work product privilege.
the reasons set forth below, the Court agrees that the documents
Pleasant Grove’s Motion to Compel (ECF No. 10).
State Farm in 2008 and renewed the policy in 2009.
A, Church Policy Renewal Certificate, ECF No. 1-2 at 21-22.
stated that the value of covered property “will be determined at
actual cash value as of the time of loss or damage” and that
State Farm would not pay more than the smaller of the policy
limit or “the actual cash value of the lost or damaged property
as of the time of loss or damage.”
Compl. Ex. A, Actual Cash
Value Endorsement, ECF No. 1-2 at 29.
The policy also contained
a “Fungus (Including Mold) Exclusion Endorsement,” which stated
that a loss due to the growth, proliferation, spread or presence
of mold or mildew was not a covered loss.
Compl. Ex. A, Fungus
(Including Mold) Exclusion Endorsement, ECF No. 1-2 at 31.
Roosevelt Zanders, contacted the church’s State Farm agent to
report that storms in early January 2010 had blown shingles off
E.g., Def.’s Resp. to Mot. to Compel Ex. A,
Dietrichs Aff. ¶ 3, ECF No. 13-1; accord Pl.’s Mot. to Compel
Ex. A, Activity Log 8, 2/9/2010 entry, ECF No. 10 at 8.
Zanders first noticed the water damage on the sanctuary ceiling
on the first Sunday in January 2010.
Dietrichs Aff. ¶ 3.
Farm assigned in-house adjuster Chandler Christie to investigate
Christie inspected the church on March 1, 2010 and
made the following entry into State Farm’s activity log on March
Inspected with Mr. Zanders on Monday afternoon. Wind
damage to both slopes over the sancurary [sic].
will need to be reroofed.
Interior damage to the
The ceiling will need re-texturing.
Explained to insd.
Explained RCB and ACV.
Pl.’s Mot. to Compel Ex. A, Activity Log 7, 3/3/2010 entry, ECF
No. 10 at 7.
Christie determined that the actual cash value of
replacing the roof over the sanctuary and repairing the water
damage to the interior sanctuary ceiling was $6,267.79.
Pleasant Grove on March 4, 2010, and he closed the claim.
In late May 2010, State Farm received two identical letters
from Rev. Zanders, one dated May 20, 2010 and the other dated
May 24, 2010.
Def.’s Resp. to Mot. to Compel Ex. B, Letter from
R. Zanders to State Farm (May 20, 2010), ECF No. 13-2; Def.’s
Resp. to Mot. to Compel Ex. C, Letter from R. Zanders to State
Farm (May 24, 2010), ECF No. 13-3.
In the letters, Rev. Zanders
evaluation of the church’s loss.
E.g., Def.’s Resp. to Mot. to
Compel Ex. B, Letter from R. Zanders to State Farm (May 20,
2010), ECF No. 13-2.
Rev. Zanders also stated that Pleasant
Grove had two contractors evaluate the damages.
contractors’ estimates for review.
Pl.’s Mot. to Compel Ex. A,
Activity Log 7, 5/21/2010 entry, ECF No. 10 at 7.
Shortly after State Farm reopened the claim, State Farm
received an invoice for water extraction from RU Group in Macon,
Pl.’s Mot. to Compel Ex. A, Activity Log 7, 5/26/2010
entry, ECF No. 10 at 7.
dated March 22, 2010.
The invoice was for $2,678.28 and was
State Farm employee Buffie Marshall
contacted Rev. Zanders to ask if the water extraction bill was
related to the loss that had been reported on February 8.
public adjuster named Jay Barnes to handle the matter for the
State Farm assigned Pleasant Grove’s claim to independent
representative Richard Tison.
Def.’s Resp. to Mot. to Compel
Ex. D, Tison Aff. ¶¶ 8-9, ECF No. 13-4.
On June 2, 2010, Tison
went to Macon, Georgia to interview someone from RU Group about
the water extraction invoice so he could determine whether it
was related to Pleasant Grove’s February claim.
Id. ¶ 10.
he arrived at the address on the invoice, he found that it was a
beauty supply store, but the woman who was working at the store
did not know where RU Group was located.
Id. ¶ 11; Pl.’s Mot.
to Compel Ex. A, Activity Log 6, 6/3/2010 entry, ECF No. 10 at
Martin was later able to contact Carlton Pitts of RU Group,
who sent State Farm photos of the damage, but the photos were
too small to be of use.
Pl.’s Mot. to Compel Ex. A, Activity
Log 5, 6/8/2010 entry, ECF No. 10 at 5.
When questioned about
the amount of equipment he used, Pitts stated that he did an
Pl.’s Mot. to Compel Ex. A, Activity Log 6,
6/7/2010 entry, ECF No. 10 at 6.
Martin also contacted Barnes because Rev. Zanders advised
When Martin spoke with Barnes, Barnes said
that he was not serving as a public adjuster but as a contractor
providing a damage estimate to Pleasant Grove.
Def.’s Resp. to
Mot. to Compel Ex. E, Martin Aff. ¶ 6, ECF No. 13-5.
17, 2010, Martin went to inspect the church, and Rev. Zanders
was present for the inspection.
Id. ¶ 7.
Martin evaluated the
damage to the roof and then walked through the inside and around
the outside of the building, observing the damage and taking
Martin found “water damaged ceilings in main
sanctuary, foyer, secretary office, storage room at front of
main bldg., mens bath entry, ladies bath entry, hallway on left
of church, Pastor’s office and kitchen at rear of structure.”
Mot. to Compel Ex. A, Activity Log 5, 6/18/2010 entry, ECF No.
10 at 5.
presented her with his estimate for repairing the church in the
amount of $181,260.11.
Martin Aff. ¶ 8; Pl.’s Mot. to Compel
Ex. A, Activity Log 5, 6/18/2010 entry, ECF No. 10 at 5.
estimate to renovate and upgrade the entire Church building and
not just the damaged roof area and sanctuary ceiling from the
“realized that there were likely to be some problems with this
Martin Aff. ¶ 8.
Martin noted in the activity log that
Pl.’s Mot. to Compel Ex. A, Activity Log 4, 6/20/2010 entry, ECF
No. 10 at 4.
Martin contacted Richard Wallace of State Farm’s Special
Investigative Unit (“SIU”) to discuss her concerns about the
Martin Aff. ¶ 10.
SIU “is not normally involved in the
investigation of routine property damage claims;” rather, SIU is
regarding the merits of the claim.”
Compel Ex. F, Wallace Aff. ¶ 4,
Wallace met on June 22, 2010.
Def.’s Resp. to Mot. to
ECF No. 13-6.
During that meeting, Wallace
repaired the sanctuary ceiling.
Id. ¶ 8.
Wallace also learned
that Barnes had provided the $181,260.11 estimate; Wallace was
familiar with Barnes from a previous case and had concerns based
on Barnes’s background and on the large increase from Christie’s
initial estimate to Barnes’s estimate.
Id. ¶¶ 13-14.
Wallace discussed the claim with Fire Field Claims Team
Manager Randy Ragans, and he recommended that State Farm retain
an attorney, Mark Dietrichs, who was familiar with Barnes and
who had previously represented State Farm “in the handling of
resolve the claim with Wallace’s assistance.
Id. ¶ 16; Activity
Log 3, 6/22/2010 1:41 PM entry, ECF No. 10 at 3.
formally retained Dietrichs on June 24, 2010.
Wallace Aff. ¶
On June 23, 2010, Martin started making entries based on
her June 17 inspection into State Farm’s “Xactimate program,
without regard to whether or not the damage [she] had observed
was covered, in an effort to compare and analyze the information
calculated by Chandler Christie and Jay Barnes.”
Martin never completed this task because the claim was
reassigned to Tison and Wallace.
On August 3, 2010, Tison and Wallace interviewed Carlton
Pitts and Doug Watson of RU Group regarding the water extraction
Tison Aff. ¶ 18.
Tison and Wallace took a recorded
statement from Pitts, and the statement was later transcribed.
engineer, to inspect the church building.
Pl.’s Mot. to Compel
Ex. F, Def.’s Resp. to Pl.’s 1st Interrogs. 7, ECF No. 10 at 25.
Peters “found no evidence of any damage to the roofing system of
the church or to any other parts of the sanctuary or church
building from wind or other direct weather-related event or any
damage from fungal growth associated with any roofing system
“significant shingle slippage on the sanctuary roof, openings in
leakage on the steeple.”
He also observed improper nailing
concluded that the damage to the ceiling inside the church “had
occurred over a long period of time from numerous events.”
work product: (1) Laura Martin’s post-June 22, 2010 analysis of
scope of damage; (2) Richard Tison’s July 2010 analysis of scope
of damage; (3) State Farm’s activity log after June 22, 2010;
and (4) the transcript of Carlton Pitts’s interview.
Grove asserts that the documents are not privileged and should
tangible things that are prepared in anticipation of litigation
indemnitor, insurer, or agent).”
Fed. R. Civ. P. 26(b)(3)(A).
A party seeking “fact” work product—the type of work product at
issue here—may discover the materials if the party seeking it
shows “that it has substantial need for the materials to prepare
The first question for the Court is whether
the documents at issue here were “prepared in anticipation of
If the answer is yes, the Court must determine
whether Pleasant Grove has a substantial need for the materials
and cannot obtain their substantial equivalent by other means.
“The general rule for determining whether a document can be
said to have been ‘prepared in anticipation of litigation’ is
whether ‘the document can fairly be said to have been prepared
or obtained because of the prospect of litigation, . . . (and
not) in the regular course of business.’” Carver v. Allstate
Ins. Co., 94 F.R.D. 131, 134 (S.D. Ga. 1982) (alteration in
original) (quoting 8 Wright & Miller, Fed. Practice & Procedure:
Civil § 2024 (1970)).
The courts have recognized that insurance
company investigating documents may be both “because it is the
investigate a claim with an eye toward litigation.”
question whether insurance company investigatory documents were
“prepared in anticipation of litigation” turns on the facts of
Id.; accord, e.g., Allstate Ins. Co. v. Ever Island
Elec. Co., Civil Action No. 1:03-CV-3817-JEC, 2007 WL 2728979,
investigation is focused not on the contingency of litigation
but on whether to pay the claim, at some point, an insurance
company’s activity may shift “from mere claims evaluation to a
strong anticipation of litigation.”
Carver, 94 F.R.D. at 134.
At that point, when “the probability of litigating the claim is
substantial and imminent,” the insurance company’s investigatory
documents are considered work product.
For example, in Carver, the court found that diary sheets
investigation of a fire loss were discoverable but that diary
sheets prepared by insurance company’s investigative unit after
the insurance company determined that the fire was suspicious
Carver, 94 F.R.D. at 132, 135.
Similarly, in Lett v.
State Farm Fire & Cas. Co., 115 F.R.D. 501 (N.D. Ga. 1987), the
court found that work product privilege applied to documents
created by the insurance company’s special investigation unit
after the insurance company determined that the loss was caused
by a suspicious fire.
Lett, 115 F.R.D. at 503; accord Ever
Island Elec. Co., 2007 WL 2728979, at *6 (finding that work
insurance company referred the claim to its subrogation counsel
because an investigator determined that the cause of the fire
was a faulty extension cord).
documents created by State Farm’s employees and agents are work
product; Pleasant Grove simply contends that State Farm did not
strongly anticipate litigation until September 23, 2010, when
Randall Peters inspected the church and concluded that the loss
was not due to a single windstorm.
See Pl.’s Br. in Supp. of
Mot. to Compel 14-15, ECF No. 11 (“Coverage was not in question,
and the only issue between the parties was the amount of the
litigation on June 22, 2010, after State Farm received Pleasant
nearly thirty times the amount State Farm initially paid for the
circumstances, State Farm decided to have its investigative unit
handle the claim, and State Farm determined that it would be
necessary to hire an attorney to help handle the claim.
e.g., Cordell v. Pac. Indem. Co., No. CIVA 4:05CV167 RLV, 2006
WL 3335128, at *3 (N.D. Ga. Nov. 13, 2006) (finding that “proper
line of demarcation” was when claim was turned over to special
investigations unit based on suspicion that loss was not covered
investigatory documents created by State Farm after June 22,
2010 were prepared in anticipation of litigation, including (1)
Laura Martin’s post-June 22, 2010 analysis of scope of damage;
(2) Richard Tison’s July 2010 analysis of scope of damage; (3)
transcript of Carlton Pitts’s interview.
substantial equivalent by other means.
Given that State Farm
depositions, the Court finds that Pleasant Grove has available
to it a method for obtaining the substantial equivalent of the
documents that were created in anticipation of litigation.
e.g., Lett, 115 F.R.D. at 504 (finding that plaintiffs had not
established substantial need for work product because they could
obtain the facts through depositions of the persons who prepared
the privileged reports); Carver, 94 F.R.D. at 136 (same).
Court therefore holds that investigatory documents created by
See Rule 26(b)(3).
In conclusion, the Court finds that investigatory documents
created by State Farm after June 22, 2010 are protected under
Therefore, the Court denies Pleasant Grove’s
Motion to Compel (ECF No. 10).
IT IS SO ORDERED, this 4th day of June, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
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