Black & Veatch Corporation v. Aspen Insurance (UK) LTD et al

Filing 162

MEMORANDUM AND ORDER granting in part and denying in part 118 the Liability Insurers' Motion for Discovery Order. Signed by Magistrate Judge K. Gary Sebelius on 2/28/2014. (mrb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BLACK & VEATCH CORPORATION,
Plaintiff,
v.
ASPEN INSURANCE (UK) LTD, et al.,
Defendants.

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Case No. 12-2350-SAC

MEMORANDUM AND ORDER
This matter comes before the Court upon Defendants Aspen Insurance (UK) Ltd., Catlin
Lloyd’s Syndicate 2003, Liberty Mutual Insurance Europe (UK) Ltd.’s (collectively, the
“Liability Insurers”) Motion for Discovery Order (ECF No. 118). The Liability Insurers’ motion
seeks to: (1) preclude Plaintiff Black & Veatch Corporation (“B&V”) from using documents not
disclosed as required by the Scheduling Order; (2) compel B&V to amend its answers to certain
requests to admit or, in the alternative, deem those requests admitted; (3) require B&V to amend
its answers to certain interrogatories; and/or (4) amend the Scheduling Order. For the following
reasons, the Court hereby grants in part and denies in part the Liability Insurers’ motion.
I.

Background

As set forth in B&V’s amended complaint, this lawsuit stems from a series of agreements
between B&V and American Electric Power Service Corporation (“AEP”) in its own capacity
and/or as an agent for other power companies (collectively, the “Owners”), to engineer, procure
material and equipment for, and construct several wet flue gas desulfurization systems for
various power plants. These wet flue gas desulfurization systems are also known as jet bubble
reactors (“JBRs”). Although the design and construction of each JBR varies, they share common
characteristics. Generally, a JBR is a large steel tank structure (approximately ten stories tall)

that removes sulfur dioxide and other contaminants from exhaust gases of coal-fired power
plants.
After the construction of the JBRs were completed, the Owners alleged significant
defects in at least seven of the JBRs located at the following four power plants: (1) Cardinal
power plant, located in Brilliant, Ohio; (2) Conesville power plant, located in Conesville, Ohio;
(3) Kyger Creek power plant, located in Cheshire, Ohio; and (4) Clifty Creek power plant,
located in Madison, Indiana. These major deficiencies include latent defects in the JBRs’ internal
components and gas risers, which are a critical component for the JBRs and their structural
integrity. B&V alleges that these serious problems were the result of deficient installation work
and procurement of components by subcontractors, principally Midwest Towers, Incorporated
(“MTI”).
Because of these serious deficiencies and resulting damages, the Owners demanded the
complete replacement of both the internal components and the installed gas risers. After B&V
notified insurers of the Owners’ claims, it entered into a settlement agreement with the Owners.
As a part of the agreement, B&V agreed to pay a lump-sum to the Owners for repair costs and
also to replace defective components. Replacement of the internal components also required the
removal of and physical damage to non-defective components. The amounts paid to reimburse
the Owners and to repair and replace the various defective components cost B&V several
millions of dollars.
B&V submitted a claim to its professional liability carriers for the incidences arising
from the JBR projects. B&V also subsequently sued MTI to recover some of the incurred costs.
Moreover, B&V brought this breach of contract and declaratory judgment action against various

2

insurance providers, seeking damages and an adjudication of rights, duties, and obligations under
certain insurance policies.
Prior to the construction of the JBRs, B&V procured commercial general liability
coverage from several insurers. Zurich Insurance Company (“Zurich”) provided the primary
layer of general liability coverage. The coverage issued by the Liability Insurers is in excess to
the general liability coverage provided by Zurich. Defendants Aspen Insurance (UK) Ltd. and
Catlin Lloyd’s Syndicate 2003 provided the first layer of excess liability coverage. Defendant
Liberty Mutual Insurance Europe (UK) Ltd. provided a second layer of excess liability coverage.
In addition to B&V’s liability coverage, AEP and the various Owners of the power plants
procured property insurance from Defendants Factory Mutual Insurance Company and
Associated Electric & Gas Insurance Services, Ltd. (collectively, the “Property Insurers”) and
Energy Insurance Services, Inc., which has been dismissed from this matter.
After this litigation was initiated, the Court issued a Scheduling Order that required
various documents described in the respective parties’ Rule 26(a)(1) initial disclosures to be
produced at the time the parties exchanged initial disclosures. The Liability Insurers argue that,
despite their own compliance, B&V has not produced the documents identified in their initial
disclosures or any evidence supporting its claims. In addition to B&V’s purported failure to
produce documents, the Liability Insurers assert that B&V has inadequately responded to the
Liability Insurers’ requests for admissions, first set of interrogatories, and second set of
interrogatories. The Liability Insurers argue that these deficiencies still exist despite repeated
discussions between the parties and extensions of time granted by the Court.

3

II.

Procedural Conference Requirement

Fed. R. Civ. P. 37(a)(1) and D. Kan. Rule 37.2 require a moving party, in good faith, to
confer with opposing counsel before filing a motion to resolve any discovery disputes. When a
motion is filed, it “must include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in an effort
to obtain it without court action.”1 The duty to confer generally requires counsel to “converse,
confer, compare views, consult, and deliberate, or in good faith attempt to do so.”2 In this case,
the Liability Insurers have sent letters, e-mails, and conducted telephonic conference calls with
B&V to try and resolve these discovery disputes.3 These discussions appear to address and
compare the parties’ respective views on the current disputes. Based upon these meaningful
discussions, the Court finds that the Liability Insurers have satisfied their meet-and-confer
obligation.
III.

Discussion

As previously stated, the Liability Insurers’ motion seeks to preclude B&V from using
allegedly undisclosed documents, compel B&V to amend its answers to certain requests to admit
or deem them admitted, require B&V to amend its answers to certain interrogatories, and amend
the current Scheduling Order. The Court addresses each in turn.

1

Fed. R. Civ. P. 37(a)(1).

2

D. Kan. Rule 37.2.

3

See Ex. D, ECF No. 119-4; Ex. E, ECF No. 119-5; Ex. F, ECF No. 119-6; Ex. G, ECF No. 119-7; Ex. H, ECF No.
119-8.

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A.

Allegedly Undisclosed Documents

The Liability Insurers assert that B&V has not produced documents along with its initial
disclosures as required by the Scheduling Order. As such, the Liability Insurers seek to preclude
B&V from using these documents in this litigation.
The Scheduling Order states:
The parties shall exchange by March 29, 2013, the information
required by Fed. R. Civ. P. 26(a)(1). In order to facilitate
settlement negotiations and to avoid unnecessary expense, the
parties have agreed that, without any need for formal requests for
production, copies of the various documents described in the
parties’ respective Rule 26(a)(1) disclosures shall be exchanged by
March 29, 2013.4
Rule 26(a)(1)(A)(ii) requires disclosure of all documents, electronically stored information, and
tangible things that the disclosing party has in its possession, custody, or control which may be
used to support its claim or defenses, unless the use would be solely for impeachment. Rule
26(a)(1)(A)(iii) also requires the parties to provide:
a computation of each category of damages claimed by the
disclosing party—who must also make available for inspection and
copying as under Rule 34 the documents or other evidentiary
material, unless privileged or protected from disclosure, on which
each computation is based, including materials bearing on the
nature and extent of injuries suffered[.]
The main purpose of Rule 26(a)(1) disclosures “is to accelerate the exchange of basic
information about the case and to eliminate the paper work involved in requesting such
information.”5 Initial disclosures should provide the parties with information essential to the
proper litigation of all relevant facts and to eliminate surprise and promote settlement.6 In short,

4

Scheduling Order at 3-4, ECF No. 57 (emphasis in original).

5

Fed. R. Civ. P. 26(a), advisory committee’s note (1993).

6

Hertz v. Luzenac Am., Inc., No. CIVA04CV1961LTBCBS, 2006 WL 994431, at *5 (D. Colo. Apr. 13, 2006).

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the Rule 26(a)(1) disclosure requirements should “be applied with common sense in light of the
principles of Rule 1, keeping in mind the salutary purposes that the rule is intended to
accomplish. The litigants should not indulge in gamesmanship with respect to the disclosure
obligations.”7 A party’s obligation to make available the supporting documents pertaining to the
calculation of damages “applies only with respect to documents then reasonably available to it
and not privileged or protected as work product.”8 In addition to providing initial disclosures,
Rule 26(e) states:
A party who has made a disclosure under Rule 26(a)—or who has
responded to an interrogatory, request for production, or request
for admission—must supplement or correct its disclosure or
response:
(A) in a timely manner if the party learns that in some
material respect the disclosure or response is
incomplete or incorrect, and if the additional or
corrective information has not otherwise been made
known to the other parties during the discovery
process or in writing; or
(B) as ordered by the court.
As set forth in the Scheduling Order and in Fed. R. Civ. P. 37(c)(1), if a party fails to
provide information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless. Before imposing these

7

Fed. R. Civ. P. 26(a), advisory committee’s note (1993).

8

Id.

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sanctions, courts must first find that a party failed to disclose the information required by Rule
26(a) or Rule 26(e)(1).9
Here, the Liability Insurers acknowledge that B&V made its initial disclosures by the
March 29, 2013 deadline.10 Their dispute, however, rests on the alleged non-production of
documents that detail B&V’s claims against the Liability Insurers. The Liability Insurers
concede that B&V has produced some documents. Nonetheless, the Liability Insurers assert that
these documents fail to address each element of B&V’s claims, incurred costs, and damages (e.g.
incurred expenses, rebuild costs, or third-party damage information).
B&V disagrees and asserts that it has produced documents relating to its asserted claims
and that the real dispute is about the reasonableness of production. B&V proclaims that it
provided the Liability Insurers, their counsel, adjusters, and consulting experts access to the
JBRs before the damaged property was torn out and during remediation. B&V also claims to
have provided documents pertaining to estimates of costs for the claimed covered loss as well as
details of the initial engineering, procuring, and constructing efforts.
Moreover, B&V avers that it produced over 9 gigabytes of data (almost 50,000 files)
before this action commenced. After filing of this action, B&V claims it made available 98.7
gigabytes of data (approximately 531,000 files) it received from AEP and 350 gigabytes (more
than one million files) from its electronically stored information.11 In addition, B&V asserts it
has provided detailed coverage analysis under the general liability excess policy with supporting
documentation to the Liability Insurers. Also, the coverage analysis purports to address, among
9

See Asia Strategic Inv. Alliances LTD. v. Gen. Elec. Capital Servs., Inc., No. 95-2479-GTV, 1997 WL 122568, at
*3 (D. Kan. Mar. 11, 1997) (“Before imposing sanctions pursuant to . . . [Rule 37(c)(1)], the court must first find a
failure to disclose information required by Fed. R. Civ. P. 26(a) or 26(e)(1).”).
10

See Mem. in Supp. of Mot. for Disc. Order at 4, ECF No. 119; B&V’s Certificate of Service of Rule 26(a)(1)
Initial Disclosures, ECF No. 66.
11

Mem. in Opp’n of Mot. for Disc. Order at ¶ 3, ECF No. 124.

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other issues, the physical damage to internal components leading to the remediation work and to
the AEP backcharges, estimates of remediation costs, determination of percentage completed for
those projects still under construction at the time of the first occurrence, and a summary of
claimed damages. B&V also claims to have provided an allocation of recoveries made from
other sources (i.e. B&V’s litigation with subcontractor MTI, as well as the payments received
from other coverage sources and payments made by AEP) and credits to the losses sustained.
Finally, B&V submits that it met with the Liability Insurers and its consultants and answered
questions in connection with the loss incurred.
The Liability Insurers argue that the information B&V turned over still does not address
the elements of its claims. They assert that the pre-litigation documents merely provide an
estimate of costs incurred without showing what amount was spent, how it was spent, and
whether B&V is legally liable for it. In addition, they purport that the documents provided after
this litigation commenced (i.e. AEP documents, MTI documents, and accounting documents) do
not include all the documents necessary to determine B&V’s claim of damages. Moreover, the
Liability Insurers assert that B&V refuses to run new search terms through the electronically
stored information from the MTI litigation and will not produce data from its accounting files
until it produces a damage report by B&V’s consultant.
After examining the parties’ briefs on this matter, the Court is unable to find that B&V
failed to produce the documents required by Rule 26(a)(1) and the Scheduling Order. At this
juncture, the Court simply is not in the position to determine whether the approximately 457.7
gigabytes of data B&V has made available to the Liability Insurers fails to contain such
information. The Court declines to enter an order that might preclude the use of such documents
under Rule 37(c)(1). The Court does, however, order B&V to supplement its initial disclosures

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within fourteen (14) days from the date of this order if such disclosures are incomplete or contain
incorrect information as described in Rule 26(e)(1)(A). B&V’s supplemental disclosures shall
particularly include a specific computation of each category of claimed damages and make
available for inspection and copying the documents for which each computation it currently has
in its possession, custody, or control.
The Court will address the parties’ arguments regarding ESI production and search terms
in its forthcoming order on B&V’s Motion for Protective Order (ECF No. 131). In addition, the
Court recognizes that the Liability Insurers’ motion states that B&V also has not produced
documents in response to requests for production propounded on B&V during discovery.
However, it is unclear whether the Liability Insurers are seeking an order compelling production
of these documents because their prayer for relief only pertains to precluding documents not
initially disclosed. In addition, the Liability Insurers do not direct the Court to which specific
requests for production for which they seek to compel or attach the requests to their briefs as
required by D. Kan. Rule 37.1(a). As a result of the Liability Insurers’ unsupported claim
pertaining to requests for production of documents propounded on B&V, the Liability Insurers’
request to preclude B&V from using these documents is denied.
B.

Requests for Admission

The Liability Insurers assert that B&V improperly responded to several requests for
admission and seek an order compelling amended responses or deem those requests admitted.
Pursuant to Fed. R. Civ. P. 36, a party may serve on any other party a written request to admit
the truth of any matters within the scope of Rule 26(b)(1) which relate to: (A) facts, the
application of law to fact, or opinions about either; and (B) the genuineness of any described
documents. Such requests serve “two vital purposes, both of which are designed to reduce trial

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time. Admissions are sought, first to facilitate proof with respect to issues that cannot be
eliminated from the case, and secondly, to narrow the issues by eliminating those that can be.”12
Generally, the purpose “is not to discover additional information concerning the subject of the
request, but to force the opposing party to formally admit the truth of certain facts, thus allowing
the requesting party to avoid potential problems of proof.”13
As set forth in Rule 36(a)(4),
If a matter is not admitted, the answer must specifically deny it or
state in detail why the answering party cannot truthfully admit or
deny it. A denial must fairly respond to the substance of the matter;
and when good faith requires that a party qualify an answer or
deny only a part of a matter, the answer must specify the part
admitted and qualify or deny the rest. The answering party may
assert lack of knowledge or information as a reason for failing to
admit or deny only if the party states that it has made reasonable
inquiry and that the information it knows or can readily obtain is
insufficient to enable it to admit or deny.
Any objections to a request must be stated and must not be made solely on the ground that the
request presents a genuine issue for trial.14 “Unless the court finds an objection justified, it must
order that an answer be served.”15 If applicable, a requesting party may file a motion with the
court to determine the sufficiency of an answer or objection.16 A sufficient response must fairly
meet the substance of the requested admissions.17 Determining the sufficiency of a response is

12

Fed. R. Civ. P. 36, advisory committee’s note (1970); see Bowers v. Mortg. Elec. Registration Sys., No. 10–4141–
JTM–DJW, 2012 WL 2798801, at *2 (D. Kan. July 9, 2012) (stating that same).
13

Solis v. La Familia Corp., No. 10–2400–EFM–GLR, 2012 WL 1906508, at *2 (D. Kan. May 25, 2012) (citation
omitted).
14

Fed. R. Civ. P. 36(a)(5).

15

Fed. R. Civ. P. 36(a)(6).

16

Id.

17

Ash Grove Cement v. Emp’r Ins. of Wausau, No. 05–2339–JWL, 2007 WL 2333350, at *2 (D. Kan. Aug. 17,
2007) (internal citation and quotation marks omitted).

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within the discretion of the court.18 “When ruling on a motion to determine the sufficiency of
answers or objections to requests for admission, the court must consider the phraseology of the
requests as carefully as that of the answers or objections.”19 “On finding that an answer does not
comply with this rule, the court may order either that the matter is admitted or that an amended
answer be served.”20
In this case, the Liability Insurers call the Court’s attention to five distinct groups of
allegedly improper responses. The first group pertains to B&V restating the request for
admission, admitting the stated material, and then stating “otherwise denied.” The second group
relates to a set of requests for admission in which B&V responded, in part, by stating that it
would provide future information. The third group is a set of requests pertaining to specific
elements of damages sought from the Liability Insurers that B&V allegedly failed to either admit
or deny. The fourth group pertains to a set of allegedly improper responses as to whether the
Owners’ claims were covered under the Property Insurers’ policies, either generally or with
respect to particular plants. The fifth group includes alleged miscellaneous deficiencies relating
to Request Nos. 11 and 78 and other various requests.
1)

“Otherwise Denied” Responses—Requests Nos. 1-9, 20, 24, 28,
31, 34-36, 38, 40-45, 48, 51, 53, 58, 59, 62, 67, 69-72, 77, 85, 91,
96, 101, 116, 121, 127, 128, 132, 134, 138, 143, 146, 147, 150,
and 151

As an initial matter, “[t]he courts do not address the sufficiency of an answer unless they
first find an asserted objection invalid or improper.”21 “A justified objection may eliminate the

18

Id.

19

Id. at *3 (citing Audiotext Commc’ns Network, Inc. v. U.S. Telecom, Inc., Civ. A. No. 94–2395–GTV, 1995 WL
625744, at *2 (D. Kan. Oct. 5, 1995)).
20

Fed. R. Civ. P. 36(a)(6).

21

Solis, 2012 WL 1906508, at *2 (citing Audiotext Commc’ns Network, Inc., 1995 WL 625744, at *4).

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need for an answer.”22 The objecting party must specifically state the grounds for its objection.23
The objecting party also has “the burden of persuasion to justify” the objection.24 Courts will
consider only those objections that were timely asserted and relied upon in response to a
motion.25 Objections initially raised but not supported in the objecting party’s response to the
motion to compel are deemed abandoned.26
For a majority of the requests within this category, B&V initially responds by asserting
boilerplate objections and then providing an answer subject to and without waiving those
objections. Both parties only address these objections in passing throughout their briefs. B&V’s
arguments do not go beyond mere conclusory assertions for these particular requests within this
category.27 The Court finds that B&V has failed to justify its objections within this category, and
therefore, responses are required.
Turning to B&V’s responses, the Liability Insurers claim that the single most prevalent
type of response is one in which B&V restates the request, admits the restated material, and then
states “otherwise denied.” The Liability Insurers purport that it is difficult to tell exactly what is
22

Solis, 2012 WL 1906508, at *2; See Fed. R. Civ. P. 36(a)(6) (“Unless the court finds an objection justified, it must
order that an answer be served.”).
23

Fed. R. Civ. P. 36(a)(5).

24

Moses v. Halstead, 236 F.R.D. 667, 680 (D. Kan. 2006).

25

See Ice Corp. v. Hamilton Sundstrand Corp., No. 05-4135-JAR, 2007 WL 1364984, at *6 (D. Kan. May 9, 2007);
Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164-MLB- DWB, 2007 WL 756631, at *10
(D. Kan. Mar. 8, 2007).
26

Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 615 (D. Kan. 2005) (citing Sonnino v. Univ. of Kan. Hosp.
Auth., 221 F.R.D. 661, 670 (D. Kan. 2004); Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655,
662 (D. Kan. 1999)).
27

The Court notes that B&V objected to Request No. 9 as vague and ambiguous and, subject to and without waiving
its objections, admits in part to the request. See B&V’s Resp. to Defs.’ Req. to Admit at 7, ECF No. 119-1. B&V
does specifically address this request in its brief but only argues that its qualified response was justified because the
request was not straight forward. See Mem. in Opp’n of Mot. for Disc. Order at 9. ECF No. 124. However, B&V
objections are unsupported, and therefore, overruled.

12

being admitted and what is being denied. They argue this approach is improper and wrongfully
frustrates their ability to discover B&V’s claims. B&V disagrees with this characterization and
asserts that its responses are qualified admissions that are precise in scope, with the remainder of
the request being denied.
After a review of each “otherwise denied” response, the Court finds that B&V’s
responses appear to be good faith qualified answers to fairly meet the substance of the requested
admission as permitted under Rule 36.28 The Court finds B&V’s “otherwise denied” responses
appear to be sufficient to put the Liability Insurers on notice of what is admitted and what is
denied. The Liability Insurers shall consider admitted the portion that B&V admits or qualifies as
admitted, and the remainder of their request is denied. In the event that any of B&V’s responses
merely restate the request and admit it, the Liability Insurers shall consider this response
admitted. The Liability Insurers’ request to compel amended responses or deem these requests
admitted is hereby denied. Nevertheless, B&V shall supplement any of its responses as required
under Rule 26(e) within fourteen (14) days of this order.
2)

Promise of Future Information—Requests Nos. 74, 90, 95, 100,
105, 110, 115, 120, 129-131, 133, 137, and 142

Before examining the sufficiency of B&V’s responses to these requests, the Court must
first determine if B&V’s met its burden to justify its objections to several of the requests within
this category. Like the previous category, both parties only address these objections in passing.
Further, to the extent B&V provides nothing more than unsupported boilerplate objections, the
Court finds that B&V has failed to justify its objections to the requests within this category, and
therefore, responses are required.
28

See Harris v. Oil Reclaiming Co., 190 F.R.D. 674, 677 (D. Kan. 1999) (finding defendant’s response appropriate
because it is a good faith qualification of the answer in order to fairly meet the substance of the requested
admission); see also Fed. R. Civ. P. 36(a)(4) (“[W]hen good faith requires that a party qualify an answer or deny
only a part of a matter, the answer must specify the part admitted and qualify or deny the rest.”).

13

The Liability Insurers contend that several of B&V’s responses to their requests for
admission directed at B&V’s damages claim are insufficient because they merely promise to
provide such information at an unspecified date. However, after reviewing each of the specific
requests for admissions and B&V’s responses, the Court finds B&V’s responses are sufficient. In
general, Request Nos. 74, 90, 95, 100, 105, 110, 115, and 120 ask B&V to admit that it
communicated a specific amount of damages for each JBR at a particular time in the past. For
each, B&V either admits or denies that it previously gave those respective amounts. B&V goes
on further to state that it is amending and updating the previously provided documents to convert
certain estimated costs into actual costs, which will be provided to the Liability Insurers. Even
though it appears that B&V unnecessarily reiterates its obligation to timely supplement its initial
disclosures under Rule 26(e), B&V’s responses clearly admit or deny these particular requests.
The Court also finds B&V’s responses to Requests Nos. 129-131, 133, 137, and 142 to be
sufficient. In general, these requests relate to specific admissions about B&V’s damages claim.
B&V’s responses either deny in part and admit in part,29 or deny altogether. B&V also states that
it is amending and updating the previously provided documents and claim numbers and will
provide those to the Liability Insurers. Again, B&V appears to sufficiently respond to these
requests and only merely reiterates its obligation to supplement. The Liability Insurers’ request
to compel amended responses or deem these requests admitted is hereby denied. The Court does,
however, order B&V to supplement any of these requests as required under Rule 26(e).

29

The Court notes that B&V’s responses to Requests Nos. 129, 133, 137, and 142 assert objections and, subject to
and without waiving those objections, admits in part and denies in part. B&V does not support these objections, and
therefore, they are overruled.

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3)

Requests for Admission Relating to Specific Elements of
Damages—Requests Nos. 18, 33, and 64

The Liability Insurers argue that B&V’s responses to Request Nos. 18, 33, and 64 do not
clearly admit or deny these requests, and therefore, are insufficient. The Court addresses each
request separately.
Request No. 18 asks B&V to admit “that Black & Veatch does not seek to recover from
the Defendants the costs of correcting defective work.” B&V’s responded by first objecting to
the request as vague and ambiguous. B&V further explains that the term “costs of correcting
defective work” is vague and ambiguous because it could mean the costs of replacing the
defective components or the costs incurred as a result of correcting those defects (e.g. damaging
non-defective components). The Court agrees that this request is vague and ambiguous on its
face, and therefore, sustains B&V’s objections. As a result, a response is not required. The
Liability Insurers should take note that B&V’s brief on this motion explains that it does not seek
damages for the replacement of the defective work itself or certain defective components but
“other costs incurred to correct these defects, including the cost to rip and tear non-defective
work/components to get to defective work/components are clearly being sought by B&V . . . .”
Request No. 33 asks B&V to admit that it “only seeks compensation from Defendants for
damages resulting from construction defects, and does not seek compensation for the cost of the
defective material itself.” B&V’s responded by stating:
B&V objects to this request on the grounds that it is vague and
ambiguous. Subject to and without waiving said objections, the
request is denied. B&V seeks compensation for all damages
covered by Defendants’ policies, which would also include, by
way of example, damages falling within the terms of Endorsement
No. 27 of the Aspen/Catlin policies. B&V admits that in an effort
to settle this claim, it does not seek compensation for certain costs
of defective materials, as set forth in document previously
provided to Defendants.
15

Before addressing B&V’s response, the Court again finds that B&V does not substantiate
its vague and ambiguous objections either initially or in its response brief. Therefore, B&V fails
to meet its burden to justify its objections, and consequently, a response is required. Turning to
B&V’s response, Request No. 33 does not appear to be so complex to warrant the qualified
response by B&V, which does not appear to meet the substance of the request. This especially
holds true given the fact that it appears that B&V does seek to recover some of the costs of
correcting defective work. The Court finds that B&V’s response fails to address the substance of
the request and B&V is ordered to serve an amended response to this request within fourteen
(14) days of this order.
Request No. 64 asks B&V to admit “that Black & Veatch seeks compensation from
Defendants for the costs of accessing non-covered Jet Bubble Reactor internals in order to
replace them.” B&V responsed by stating:
B&V objects to this request on the grounds that it is vague and
ambiguous. Subject to and without waiving said objections, the
request is denied, except B&V admits that its claim includes
certain costs necessarily incurred to obtain greater access to the
interior of the JBRs to allow the repair or replacement of damaged
property, as set forth in documents previously provided to
Defendants.
Again, B&V does not substantiate is vague and ambiguous objections, and therefore, these
objections are overruled. Turning to B&V’s response, B&V argues that a qualified response was
necessary because of the language “non-covered Jet Bubble Reactor internals.” B&V asserts that
it is seeking compensation for accessing covered JBR internals, not non-covered JBRs. The
Court agrees that a qualified response was necessary in this instance. The Liability Insurers’
request to compel an amended response or deem this request admitted is denied.

16

4)

Requests for Admission Pertaining to the Owners’ Claims and
the Property Insurers’ policies—Requests Nos. 47, 75, 83-84,
94, 99, 104, 109, 114, 119, 152-53

The Liability Insurers argue that B&V insufficiently responded to requests for admission
that ask B&V to admit the Owners’ claims were covered under the Property Insurers’ policies,
either generally or with respect to particular plants. In response to these requests, B&V objected,
arguing that the Liability Insurers seek a legal conclusion. For some of these requests B&V,
subject to and without waiving its objections, provided qualified admissions. The Liability
Insurers argue that B&V should fully respond to these requests because they are not pure issues
of law.
Requests for admissions may ask the party to admit or deny the truth of any matters
within the scope of Rule 26(b)(1) relating to facts, the application of law to fact, or opinions
about either.30 A request to admit a pure matter of law is improper and objectionable.31 An
interpretation of what is covered under an insurance policy is generally a question of law.32
Therefore, these requests that seek B&V to admit that the Owners’ claims are covered under the
Property Insurers’ policies do not require a response by B&V. The Liability Insurers’ request to
compel amended responses or deem these requests admitted is denied.

30

Fed. R. Civ. P. 36(a)(1).

31

C.R.K. v. U.S.D. 260, No. 99–1301–WEB, 2000 WL 1477194, at *1 (D. Kan. Aug. 31, 2000).

32

See Emp’rs Reinsurance Corp. v. Jefferson Pilot Fin. Ins. Co., 176 F. Supp. 2d 1183, 1191 (D. Kan. 2001) (citing
AMCO Ins. Co. v. Beck, 929 P.2d 162, 165 (Kan. 1996)) (applying Kansas law); Allianz Ins., Co. v. Lerner, 416 F.3d
109, 115 (2nd Cir. 2005) (citing Hartford Accident & Indem. Co. v. Wesolowski, 305 N.E.2d 907 (N.Y. 1973))
(applying New York Law). The Court notes that the parties do not address which state law applies in this matter. For
purposes of this pending motion, the Court assumes that either Kansas law applies, New York law applies, or that no
conflict exists between Kansas or New York law and the applicable state law.

17

5)

Alleged Miscellaneous Deficiencies—Request Nos. 11 and 78
and Other Various Requests

The Liability Insurers argue that B&V’s responses to Request Nos. 11 and 78 are
insufficient for various reasons. Before turning to B&V’s responses, the Court recognizes that
B&V initially objected to Nos. 11 and 78 for being vague and ambiguous. Like several of B&V
previous objections, B&V fails to provide any further explanation beyond mere boilerplate
objections. These objections are overruled.
Request No. 11 asks B&V to admit “that in the resolution of the Midwest Towers
Litigation, Black & Veatch received monies from three policy periods relating to the
Commercial General Liability Coverage provided by the insurers for Midwest Towers.” B&V
admits that $500,000 of the payments received from MTI’s primary general liability insurer was
allocated to the 2009-2010 policy. However, MTI’s insurers did not admit that the 2009-2010
policy was triggered. B&V also states “otherwise denied” in its response. The Liability Insurers
claim that this answer is non-responsive. After reviewing B&V’s response, it appears that B&V
makes a qualified admission that it received monies for the 2009-2010 policy and denies the rest.
This appears to respond to the substance of the matter as required under Rule 36. The Liability
Insurers’ request to compel an amended response or deem this request admitted is denied.
Request No. 78 asks B&V to admit “that Black & Veatch obtained the Owners’ right of
action against the Property Insurers as part of the Settlement referred to in Request to Admit No.
76.” In response, B&V states that it “admits that it obtained certain rights of the Owners with
respect to the Property Insurers, as set forth in documents previously provided to Defendants. To
the extent this request is inconsistent with the agreements between the Owners and B&V, it is
denied.” After reviewing B&V’s response, it appears that B&V does not address the substance of
the matter requested. In addition, the request does not appear to be so complex to warrant a
18

qualified response by B&V. Therefore, the Court orders B&V to serve an amended response to
this request within fourteen (14) days from the date of this order.
The Liability Insurers also argue that several denied requests for admission should be
deemed admitted because they are “basic” questions in which B&V’s only permissible response
was to admit them.33 However, the “election to admit or deny belongs to the party responding to
the requests.”34 If at a later point, the Liability Insurers prove a denied matter is true, Rule
37(a)(2) provides the proper recourse.35 That Rule States:
If a party fails to admit what is requested under Rule 36 and if the
requesting party later proves a document to be genuine or the
matter true, the requesting party may move that the party who
failed to admit pay the reasonable expenses, including attorney’s
fees, incurred in making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a); (B) the
admission sought was of no substantial importance; (C) the party
failing to admit had a reasonable ground to believe that it might
prevail on the matter; or (D) there was other good reason for the
failure to admit.
Accordingly, the Liability Insurers’ request to deem these requests admitted is denied.
C.

Interrogatories

The Liability Insurers assert that several of B&V’s responses to the interrogatories they
propounded on B&V were insufficient and incomplete. For this reason, the Liability Insurers
request a court order requiring B&V to amend its responses to these specific interrogatories.
Even though not specifically requested, the Court considers the Liability Insurers’ motion for
B&V to amend its interrogatory responses as a motion to compel under Rule 37(a). In this case,
the Liability Insurers have divided the alleged deficiencies into the following three separate
33

Reply in Supp. of Mot. for Disc. Order at 19-22, ECF No. 126.

34

Ash Grove Cement, 2007 WL 2333350, at *2.

35

Id.

19

groups: (1) responses that state information will be provided later, (2) responses referring to
unspecified documents, and (3) answers that are allegedly unresponsive.
1.

Responses that State Information Will be Provided Later—
First Set of Interrogatories Nos. 4, 7, 11, 12, 15, 16, 18, 19, and
30; and Second Set of Interrogatories Nos. 5, 6, 8, 9, and 11

In general, First Set of Interrogatories Nos. 4, 7, 11, 12, 15, 16, 18, 19, and 30 and
Second Set of Interrogatories Nos. 5, 6, 8, 9, and 11 seek information relating to B&V’s claims
for covered costs and allocation of recoveries. B&V asserts various objections to several of these
interrogatories, including objections for being vague, ambiguous, overbroad, unduly
burdensome, and protected by varies privileges (i.e. attorney-client privilege and the workproduct doctrine). As previously stated, objections initially raised but not supported in the
objecting party’s response to the motion to compel are deemed abandoned.36 The party objecting
to the interrogatories has the burden to support its objections.37 Both parties only generally
discuss these objections, if at all. Therefore, the Court finds that B&V fails to carry its burden to
support these objections. These objections are overruled.
In addition to asserting objections, B&V also provides responses to these interrogatories.
The Liability Insurers assert that B&V’s responses are insufficient because they state that B&V
is in the process of amending and updating its previously provided information instead of
identifying its claim.38 B&V counters by arguing that it answered these specific interrogatories
by relying on estimated damage figures previously provided to the Defendants. B&V concedes

36

Cardenas, 230 F.R.D. at 615 (citing Sonnino, 221 F.R.D. at 670; Cotracom Commodity Trading Co., 189 F.R.D.
at 662).
37

Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164-MLB-DWB, 2007 WL 2192860, at
*1 (D. Kan. July 25, 2007).
38

See Mem. in Supp. of Mot. for Disc. Order at 15, ECF No. 119.

20

that its answers were largely based on estimates but promises to update such estimates with
actual costs as these figures become available.
After reviewing these disputed interrogatories, the Court recognizes that B&V’s answers
include one of the following statements: (1) in accordance with Rule 33(d), the information
sought may be determined by examining documents already in Defendants’ possession or that
are being produced to Defendants by B&V, and the burden of ascertaining the information is
substantially the same for Defendants as it is for B&V, (2) B&V will provide further breakdown
of how the monies identified have been allocated upon completing its final compilation of actual
costs, or (3) B&V is preparing an updated and amended summary of its cost and will be provided
to Defendants. The Court acknowledges that B&V may still be in the process of gathering actual
damage figures. However, this does not permit B&V to withhold discoverable information that it
may presently have in its possession, custody, or control.39 Therefore, the Court orders B&V to
supplement its responses to these interrogatories within fourteen (14) days from the date of this
order with information it presently has in its possession, custody, or control.
2.

Response Referring to Unspecified Documents—First Set of
Interrogatories Nos. 3-5, 7-14, 17-19, 21-22, 24-27, and 29; and
Second Set of Interrogatories Nos. 2, 4-6, 8-12, 16, and 18-20

Yet again, B&V responds to several of these specific interrogatories only after asserting
objections on various grounds. However, B&V only provides conclusory assertions that these

39

Bradley v. Val-Mejias, No. 00-2395-GTV, 2001 WL 1249339, at *2 (D. Kan. Oct. 9, 2001) (“The fact that a
plaintiff may later supplement his interrogatory response with an expert report does not permit him to initially refuse
to respond with whatever discoverable information he presently holds.”).

21

interrogatories are vague and ambiguous.40 As a result, B&V has failed to meet its burden to
support these objections, and therefore, they are overruled.
Turning to B&V responses to these specific interrogatories, B&V makes the statement
“in accordance with Rule 33(d), the information sought may be determined by examining the
documents produced to Defendants by B&V, and the burden of ascertaining the information is
substantially the same for Defendants as it is for B&V.” The Liability Insurers argue that the
burden of identifying such documents is not substantially the same for each party and, even if it
was, B&V does not specify the records that must be reviewed. B&V, however, argues that in
each instance where it asserts Rule 33(d), it also either gives a specific response to the
interrogatory or identifies the documents where the information can be obtained.
After reviewing B&V’s responses, a majority of the responses directly answer the
interrogatories in addition to asserting Rule 33(d). The Court notes that several of these answers,
however, state that B&V will further provide updated information in the future. Like the
previous category of interrogatories, the Court orders B&V to supplement its responses to these
interrogatories within fourteen (14) days from the date of this order with information it presently
has in its possession, custody, or control.
Turning to the interrogatories for which B&V does not provide an answer (i.e. First Set
of Interrogatories Nos. 25 and 26, and Second Set of Interrogatories No. 4), B&V states that such
information can be determine by examining document it has produced or will be produced. Even
though directing an interrogating party to business records is permissible, the responding party
must specify the records in sufficient detail to enable the interrogating party to locate and

40

The Court notes that B&V provides First Set of Interrogatories No. 2 as an example of the alleged vague and
ambiguous nature of all these interrogatories. See Mem. in Opp’n of Mot. for Disc. Order at 16, ECF No. 124.
However, B&V fails to support these objections beyond mere conclusory assertions.

22

identify such documents.41 Also, the responding party must give the “interrogating party a
reasonable opportunity to examine and audit the records and to make copies, compilations,
abstracts, or summaries.”42
B&V’s response to First Set of Interrogatories Nos. 25 and 26 direct the Liability Insurers
to numerous demand letters and other documents that have been produced, without much further
detail. The Court finds these responses fail to satisfy the specificity requirement under Rule
33(d) by not providing sufficient detail to enable the Liability Insurers to locate and identify such
documents. Because of the sheer number of documents involved in this litigation, further details
(e.g. date of each document, its identity, and where it can be located) are necessary to meet the
Rule 33(d) specificity requirement. B&V shall amend their answers to these specific
interrogatories in compliance with Rule 33(d) within fourteen (14) days of this order and include
any supplemental material as required under Rule 26(e), if applicable.
In addition, Second Set of Interrogatories No. 4 states that responsive documents are
being produced and the answer may be determined by examining those documents. The Court is
without knowledge if such responsive documents have been produced, and therefore, the Court
orders B&V to either answer this interrogatory or provide the responsive documents to the
Liability Insurers within fourteen (14) days of this order.
3.

Alleged Nonresponsive Answers—First Set of Interrogatories
Nos. 2, 20, 22, and 29; and Second Set of Interrogatories No. 14

First Set of Interrogatories No. 2 asks: “Do you contend that each backcharge stands as
an ‘Occurrence’? [sic] If you [sic] answer is in the negative, state your basis for seeking
compensation for each backcharge.” B&V responded by stating:
41

Fed. R. Civ. P. 33(d).

42

Id.

23

B&V objects to this Interrogatory on the grounds that it is vague,
ambiguous and overbroad. Subject to and without waiving the
foregoing objections, B&V does not contend that each backcharge
stands as an “Occurrence,” as that term is defined in the Policies.
Rather, the backcharges represent liability imposed upon B&V for
property damage caused by an accident, including continuous or
repeated exposure to substantially the same general harmful
conditions, which liability is covered under Policies.
The Liability Insurers argue that B&V’s response is “clearly evasive” because B&V’s statement
that “the backcharges represent liability imposed upon B&V for property damage caused by an
accident, including continuous or repeated exposure to substantially the same general harmful
conditions” is the definition of “Occurrence.”
As an initial matter, B&V does not substantiate its objections beyond mere conclusory
assertions, and therefore, the Court overrules its objections. The Court next turns to B&V’s
response to this contention interrogatory. The plain meaning of B&V’s response states that it
does not contend that each backcharge stands as an “Occurrence.” The Liability Insurers’
argument that B&V later describes backcharges as “Occurrences” is unsupported. Without
further information, the Court finds that B&V adequately answered this interrogatory.
First Set of Interrogatories No. 20 asks B&V to “State and identify the ‘money damages’
identified in Paragraph 94 of the Amended Complaint in this matter.” B&V responds by
incorporating its initial disclosures, providing a generalized definition of what it considers
money damages, and incorporated its response to Interrogatory No. 4. On its face, this
interrogatory appears to seek the type of information that is required by B&V’s initial disclosures
under Rule 26(a)(1)(A)(iii). Interrogatories are not meant to duplicate Rule 26(a)(1) initial
disclosures.43 In addition, B&V may respond to interrogatories with a specific reference to its

43

Williams v. Sprint/United Mgmt. Co., 235 F.R.D. 494, 503 (D. Kan. 2006) (citing Hilt v. SFC, Inc., 170 F.R.D.
182, 187-88 (D. Kan. 1997); Lawrence v. First Kan. Bank & Trust Co., 169 F.R.D. 657, 662, 664 (D. Kan. 1996)).

24

initial disclosures and corresponding documents.44 However, as explained above, B&V’s initial
disclosures may not include the most current damage figures and corresponding documents.
B&V shall amend its response to this interrogatory to the extent of providing supplemental
information to its initial disclosures as required under Rule 26(e) with the information sought in
this interrogatory. This supplementation, if warranted, shall be served within fourteen (14) days
from the date of this order.
First Set of Interrogatories No. 22 generally asks B&V certain questions with respect to
each backcharge, including the amount claimed. At the outset, B&V provides unsupported
boilerplate objections (i.e. vague, ambiguous, and unduly burdensome). Accordingly, these
objections are overruled. B&V’s response also asserts Rule 33(d) and refers the Liability Insurers
to documents it previously provided or documents B&V is in the process of producing. Some of
the documents include: Outage Reports, Outage Backup Documentation, AEP claim and demand
letters, Backcharge Summary provided in December 2009 and continuing through November
2010. In addition, B&V provides that “at least $7.5 million of the total backcharges are covered
by Defendants’ Policies.”
The Liability Insurers claim that B&V’s response lacks specifics as required under Rule
33(d)(1) for them to locate and identify said documents. In addition, the Liability Insurers argue
that B&V’s response only contains the bulk figure of $7.5 million for total backcharges instead
of amounts for each backcharge. After a review of B&V’s response, the Court finds it likely that
B&V does not provide the Liability Insurers with sufficient detail to enable them to locate and
identify the documents B&V lists. Specifically, B&V states a wide array of documents over an
extended period of time (e.g. December 2009 to November 2010) without providing specific
44

Williams, 235 F.R.D. at 504 (D. Kan. 2006) (“Plaintiffs may, however, answer the interrogatory with specific
references to the documents listed in their original and supplemental Rule 26 disclosures.”).

25

details that will enable the Liability Insurers to locate such document. In addition, this
interrogatory asks for figures for each occurrence, not the total amount. Therefore, B&V shall
amend its answer to this interrogatory to provide specific details about each backcharge claimed,
the documents the Liability Insurers are to review to obtain that information, and/or provide a
breakdown of each backcharge.
First Set of Interrogatories No. 29 asks B&V to “Identify all amounts which you are
seeking from Defendants which were not part of the judgment entered in the Midwest Towers
Litigation.” B&V first responds by asserting boilerplate objections (i.e. vague, ambiguous, and
unduly burdensome) that are unsupported, and therefore, are overruled. B&V next refers the
Liability Insurers to unspecified documents currently in the Liability Insurers’ possession or that
are being produced. B&V further states that it “is seeking, among other things, attorneys’ fees,
interest and payment of certain supplementary payments that were not part of the judgment
entered in the Midwest Towers Litigation.” Like First Set of Interrogatories No. 20, this
interrogatory appears on its face to seek the type of information that is required by B&V’s initial
disclosures under Rule 26(a)(1)(A)(iii). In addition, B&V’s initial disclosures may not include
the most current figures and corresponding documents. The Court therefore orders B&V to
amend its answer for this interrogatory to the extent that it shall provide supplemental
information to its initial disclosures with the information sought in this interrogatory as required
under Rule 26(e). Likewise, B&V is directed to supplement its initial disclosures, if warranted,
within fourteen (14) days from the date of this order.
Second Set of Interrogatories No. 14 asks:
Are the claims being made by Black & Veatch different with
respect to the Property Insurers and the Liability Insurers? If the
claims and/or claim amounts being made against the Liability
Insurers and the Property Insurers are different, state the amount of
26

the claim being made against the Liability Insurers for each
operating unit, the amount of the claim being made against the
Property Insurers for each operating unit, and explain the
difference between what you contend is covered by the Property
Insurers and the Liability Insurers for each operating unit.
Again, B&V responds by asserting unsupported boilerplate objections, and therefore, these
objections overruled. B&V also states that the liability and property policies cover certain
accidental and physical damages to the JBRs but the policies differ significantly and the court is
asked to decide where the coverages overlap. B&V also states that it does not contend that the
property policies cover defense costs, supplementary payment, or certain other costs covered by
the Policies. B&V further incorporates its responses to Nos. 19 and 29 of the Liability Insurers’
first set of interrogatories. After reviewing B&V’s response, the Court finds that B&V does not
address the substance of the interrogatory. B&V does not state whether its claims are different
with respect to the Property and Liability Insurers or, if different, how they are different.
Accordingly, the Court orders B&V to serve an amended answer providing specific information
sought by this interrogatory within fourteen (14) days of this order.
D.

Amend the Scheduling Order

The Liability Insurers also request the Scheduling Order in this matter be amended. B&V
does not oppose such an amendment. After reviewing the record and the parties’ current
discovery disputes, the Court finds good cause exists to modify the current Scheduling Order in
accordance with Fed. R. Civ. P. 16(b)(4). The parties shall submit a jointly proposed amended
scheduling order within fourteen (14) days after the Court’s forthcoming order on B&V’s
Motion for Protective Order (ECF No. 131) to [e-mail].

27

IV.

Conclusion

The Court universally orders B&V to supplement any discovery response or Rule 26(a)
disclosure as required by Rule 26(e), if applicable, within fourteen (14) days of this order. The
Court denies the Liability Insurers’ motion to compel amended responses to requests for
admission or deem those requests admitted, except for Request Nos. 33 and 78. B&V shall serve
amended responses to Request Nos. 33 and 78 within fourteen (14) days of this order. B&V shall
also supplement its interrogatory responses, if applicable, within fourteen (14) days from the date
of this order with information it presently has in its possession, custody, or control. The Court
orders B&V to amend its answers to First Set of Interrogatories Nos. 25 and 26 in compliance
with Rule 33(d) within fourteen (14) days of this order. Further, B&V shall either answer Second
Set of Interrogatories No. 4 or provide the responsive documents to the Liability Insurers within
fourteen (14) days of this order. B&V shall also amend its answer to First Set of Interrogatories
No. 22 to provide specific details about the documents the Liability Insurers are to review
pursuant to Rule 33(d) and/or provide a breakdown of each backcharge. Moreover, the Court
orders B&V to serve an amended answer to Second Set of Interrogatories No. 14 within fourteen
(14) days of this order.
The Court finds the parties should bear their own costs incurred as a result of the briefing
on this motion.45
Accordingly,
IT IS THEREFORE ORDERED that Defendants Aspen Insurance (UK) Ltd., Catlin
Lloyd’s Syndicate 2003, Liberty Mutual Insurance Europe (UK) Ltd.’s Motion for Discovery
Order (ECF No. 118) is hereby granted in part and denied in part.

45

See Fed. R. Civ. P. 37(a)(5)(C) (stating that when a motion to compel is granted in part and denied in part, the
court may apportion expenses).

28

IT IS FURTHER ORDERED that within fourteen (14) days from the date of this order,
B&V shall supplement or amend its disclosures or responses to discovery requests as directed in
this Memorandum and Order.
IT IS SO ORDERED.
Dated this 28th day of February, 2014, at Topeka, Kansas.
s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge

29