STATE AUTO PROPERTY AND CASUALTY COMPANY v. TPI CORPORATION
ORDER finding as moot 25 Motion for Extension of Time; denying 29 Motion to Compel. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 5/1/17 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
STATE AUTO PROPERTY AND
No. 5:16‐CV‐148 (CAR)
ORDER ON DEFENDANT’S MOTION TO COMPEL
Before the Court is Defendant TPI Corporation’s Motion to Compel Plaintiff
State Auto Property and Casualty Insurance Company to respond to five requests for
production of documents. On February 6, 2017, the Court held a telephone conference
with the lawyers to resolve several discovery disputes. During the conference,
Defendant and Plaintiff disputed whether the documents requested are necessary to
support Defendant’s defense theories. To resolve the discovery issue, the Court
directed Defendant to submit a brief explaining why his defense theories were viable
under Georgia law and asked Plaintiff to respond. Now, having fully considered the
parties’ arguments and applicable law, the Court DENIES Defendant’s Motion to
Compel [Doc. 29].
Plaintiff State Auto, subrogated to the interests of its insured Lolos Real
Estate/Nu‐Way Weiners, Inc. (“Nu‐Way”), brings this products liability action against
Defendant TPI. Plaintiff alleges that Defendant’s defective infrared heater caused a
fire on Nu‐Way’s premises on March 13, 2015, and Plaintiff seeks to recover for the
resulting property damage losses.
On February 6, 2017, the Court held a telephone conference with the lawyers to
resolve several discovery disputes. One of those disputes involves Defendant’s
requests for production of Plaintiff’s underwriting file for NuWay and its written
guidelines, policies, and procedures for underwriting (collectively “underwriting
files”). Defendant argues these underwriting files are relevant to its apportionment of
fault and voluntary payment defenses. However, Plaintiff objects to the requests and
maintains these documents are not relevant to any claims or defenses. To resolve this
issue, the Court directed Defendant to submit a brief explaining why its arguments
concerning the discoverability of Plaintiff’s underwriting files are viable theories
under Georgia law. Thereafter, Defendant filed a Motion to Compel to support its
request for production of documents and explain its defense theories, and Plaintiff
responded. The Motion is now ripe for decision.
Under Federal Rule of Civil Procedure 26, parties are entitled to discovery
regarding any non‐privileged matter that is relevant to any claim or defense.1
Generally, a district court’s decision to compel discovery is not an abuse of discretion
where the items requested are arguably relevant to the case.2 The information sought
need not be admissible at trial but must only be likely to lead to relevant admissible
information.3 Thus, the degree of need sufficient to justify granting a motion to
compel will vary to some extent with the burden of producing the requested
information. In other words, the relevance of discovery requests must be weighed
against “oppressiveness” in deciding whether discovery should be compelled, and a
plaintiff seeking a broad range of documents must show a more particularized need
and relevance.4 However, discovery is not limitless—“[t]he information sought must
be relevant and not overly burdensome to the responding party.”5
Defendant contends Plaintiff’s underwriting files are directly relevant to the
affirmative defenses of contributory negligence, assumption of risk, non‐party fault,
and voluntary payment. The Court will address each argument in turn.
Fed. R. Civ. P. 26(b)(1).
See Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997); Fed. R. Civ. P. 37.
3 Fed. R. Civ. P. 26(b)(1).
4 See United States v. R. Enters., Inc., 498 U.S. 292, 306 n.4 (1991) (illustrating generally the standard for
ruling on civil discovery disputes) (internal cites and quotes omitted).
5 Wright v. AmSouth Bancorporation, 320 F.3d 1198, 1205 (11th Cir. 2003) (internal quotations omitted).
Non‐Parties’ Comparative Fault
First, Defendant argues non‐parties to this action, including Nu‐Way and the
installer of the infrared heater, are contributorily negligent for the fire and assumed
such risk because the infrared heater was installed improperly, combustible materials
were stored too close to the heater, and there was not an operable fire sprinkler system
on the premises. To support these arguments, Defendant seeks Plaintiff’s
underwriting files and its general policies and procedures for underwriting risks.
However, Plaintiff argues it has already produced its property inspection report and
the entire claim file, and there is nothing else in the underwriting files that are relevant
to Defendant’s defenses. The Court agrees.
Plaintiff already produced the entire 1,200 page claim file during the initial
disclosures. The file contained a property inspection report from February 14, 2013,
that clearly identified the sprinkler system as being inoperative; thus, Plaintiff does
not dispute this fact. Additionally, the Court directed Plaintiff to turn over any other
property inspection reports or related documents to Defendant. Plaintiff produced the
additional documents related to the February 2013 property inspection and confirmed
no other inspections were conducted of the Nu‐Way property. Because this
information has already been produced, and Defendant has not shown how the
remaining documents are relevant to the non‐parties’ knowledge or comparative fault,
the Court will not require Plaintiff to produce all of its underwriting files and general
policies and procedures for underwriting risks.6
Plaintiff’s Direct Fault
Next, Defendant asserts its defense theories of contributory negligence and
assumption of risk directly against Plaintiff and, thus, seeks the underwriting files to
determine Plaintiff’s assessment and knowledge of these risks. During the telephone
conference, the Court directed Defendant to show how these theories were viable
under Georgia law, which Defendant failed to do. Instead, Defendant points to an
unpublished West Virginia case.7 The Court does not find this case or any cases cited
therein persuasive.8 Accordingly, as there is no Georgia law to support its defense
theories against Plaintiff directly, Defendant is not entitled to Plaintiff’s underwriting
See Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 702‐703 (S.D. Fla. 2007) (discussing when an
automobile insurer’s underwriting files are discoverable, and finding where there is no underwriting
issues in the case the files are not discoverable). Defendant provides no persuasive authority to support
its arguments that the insurer’s underwriting files or guidelines should be admitted to show a non‐
party’s comparative fault.
7 See Clean Earth of Maryland, Inc. v. Total Safety, Inc., No. 2:10‐cv‐119, 2001 WL 4832381 (N.D. W. Va. Oct.
12, 2011) (discussing cases from Colorado, Florida, and Nevada).
8 Defendant did not present any cases that are binding authority on the Court, and the Court has not
found any itself. Additionally, the Court notes the West Virginia case is distinguishable, as it is not
subrogation cases, Defendant has not presented a similar issue of ambiguity in the insurance policy, and
Defendant has waived his voluntary payment defense. Cf. id. (finding the underwriting files are
discoverable when the scope of coverage is in dispute, there is evidence of ambiguity in the insurance
policy, and a defense that the claim falls outside the policy’s coverage).
Voluntary Payment Defense
Lastly, Defendant contends it has a voluntary payment defense to Plaintiff’s
claims under Georgia law, and the underwriting files are relevant to support this
theory. In Georgia, “[t]he general rule is that an insurer’s voluntary payment to its
insured does not give rise to a right of subrogation.”9 Defendant argues Plaintiff did
not acquire a right of subrogation to bring this suit because the fire was excluded from
coverage under the insurance policy, and the payment to NuWay was voluntary.
Defendant maintains the underwriting files are necessary because the files contain
information supporting this interpretation of Plaintiff’s insurance policy. However,
the Court finds Defendant waived its purported voluntary payment defense, and thus,
the underwriting files are not discoverable.
Defendant’s voluntary payment defense is considered an affirmative defense.10
Generally, “failure to plead an affirmative defense in the pleadings results in a waiver
of the defense.”11 Here, Defendant’s answer did not contain any reference to its
voluntary payment defense, and Defendant never amended its answer to include this
defense. This action commenced on April 19, 2016, and Defendant filed its answer on
June 9, 2016. Thereafter, the Court entered the Scheduling and Discovery Order with
Southern Mut. Church Ins. Co. v. ARS Mechanical, LLC, 306 Ga.App. 748, 751 (2010).
See Twin City Fire Ins. Co v. Hartman, Simons & Wood, LLP, 609 F. App’x 972, 978 (11th Cir. 2015) (per
curiam) (“The district court recognized that the voluntary payment doctrine, like waiver, is considered an
affirmative defense ….”).
11 Proctor v. Fluor Enterprises, Inc., 494 F.3d 1337, 1350 (11th Cir. 2007).
discovery to be complete by January 9, 2017. On September 27, 2016, the Court
granted the parties’ joint motion to extend discovery until April 9, 2017, and again on
March 17, 2017, the Court granted the parties’ joint motion, extending the discovery
deadline to May 10, 2017. During this extensive discovery period, Defendant has
never filed a motion to amend its answer.
Instead, in a footnote in its Motion to Compel, Defendant now requests to
amend its Answer to include the voluntary payment defense under Federal Rule of
Civil Procedure 15. Rule 15 states the Court should “freely give leave [to amend
pleadings] when justice so requires.”12 Defendant contends leave to amend its Answer
should be freely given here because there is no evidence of undue delay, bad faith or
motive, undue prejudice, or repeated failures to cure deficiencies. However, Plaintiff
correctly points out that Defendant’s argument ignores Federal Rule of Civil
Specifically, when a party seeks to amend a pleading outside of the time
prescribed by the district court’s scheduling order, the court must first analyze the
motion under the stricter Rule 16 framework before considering Rule 15. 13 In this
case, the Amended Scheduling and Discovery Order states the deadline for filing
See Wasdin v. Cheetah Transp., LLC, No. 5:05‐cv‐340(DF), 2006 WL 3534969, at *1‐2 (M.D. Ga. Dec. 7, 2006)
(citing Sosa v. Airprint Sys., 133 F.3d 1417, 1419 (11th Cir. 1998)).
motions to amend the pleading is December 9, 2016.14 Because Defendant did not
request to amend its Answer until February 21, 2017, the Court must first analyze the
request under Rule 16.
Rule 16 states a “schedule may be modified only for good cause and with the
judge’s consent.”15 Because Defendant did not demonstrate good cause here, the
Court cannot allow Defendant to amend its Answer to include the voluntary payment
defense.16 Thus, the Court finds Defendant waived its voluntary payment defense,
and Plaintiff’s underwriting files are not relevant or likely to lead to relevant
Accordingly, Plaintiff’s Motion to Compel [Doc. 29] is DENIED.17
SO ORDERED, this 1st day of May, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
[Doc. 17]. In the last Stipulated Motion to extend discovery, the Parties did not extend the deadline to
file motions amending the pleadings. See [Doc. 31].
15 Fed.R.Civ.P. 16(b)(4) (emphasis added).
16 See Sosa, 133 F.3d at 1418 (“This good cause standard precludes modification unless the schedule cannot
‘be met despite the diligence of the party seeking the extension.’” (citing Fed.R.Civ.P. 16 Advisory
17 Additionally, Defendant’s Motion for Extension of Time to File Expert Report Disclosure [Doc. 25] is
now MOOT per the telephone conferences on February 6 and March 7, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?