Wichita Firemen's Relief Association v. Kansas City Life Insurance Company

Filing 231

MEMORANDUM AND ORDER denying 204 Motion for Protective Order. Summary Judgment portions of motion will be addressed under separate order. Signed by Magistrate Judge Kenneth G. Gale on 8/31/2012. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WICHITA FIREMEN’S RELIEF
ASSOCIATION,

)
)
)
Plaintiff,
)
)
v.
)
)
KANSAS CITY LIFE INSURANCE )
COMPANY,
)
)
Defendant. )
______________________________ )

Case No. 11-1029-KGG

MEMORANDUM AND ORDER
DENYING MOTION FOR PROTECTIVE ORDER
Plaintiff has filed a pleading styled “Plaintiff’s Motion for Protective Order
and a Determination as a Matter of Law Pursuant to Fed.R.Civ.P. 56 That Plaintiff
is Entitled to A De Novo Review of Defendant’s Decision to Deny Coverage – On
the Administrative Record– and Quashing and Staying Defendant’s Discovery of
Post Administrative Appeal Matters.” (Doc. 204.) On August 30, 2012, the Court
held a hearing at which counsel for the parties appeared to discuss the effect of this
motion on pending discovery. Plaintiff provided some clarification of the motion’s
purpose, aims and contentions. Defendant has filed a response to the portion of the
motion relating to requested discovery relief.
The filed motion is essentially two motions. One is a motion for partial

summary judgment under Rule 56 requesting a determination as a matter of law
that because of documents Plaintiff contends were recently discovered, the
insurance contract that is the subject of this action is either directly controlled by
the Employment Retiree Income Security Act (ERISA), or, because ERISA rights
were part of the insurance contract, is subject to certain incorporated ERISA rules
and procedures even if not directly subject to the Act. The motion includes a
request for a determination by the Court that the review by the Court of
Defendant’s denial of coverage should, because ERISA standards apply, be limited
to a de novo review of the medical coverage issues based only on evidence that was
before the insurer at the time of the denial (referred to by Plaintiff as the
“administrative record”). The time for Defendant to respond to this portion of the
motion under D. Kan. Rule 6.1(d) has not passed, and the motion for summary
judgment portion of the motion is not ripe.
The portion of the motion presently at issue is a request that all discovery be
stayed or quashed, and that the Court enter a protective order, because the
discovery is directed to facts, primarily medical facts, which are beyond the
“administrative record.” Defendant has filed a response opposing this request.
Plaintiff contends that because the scope of the Court’s review of the insured’s
medical qualification for coverage should now be limited to the “administrative
record” (the argument in the motion for partial summary judgment), any additional

discovery into medical facts not considered by Defendant at the time of the denial
is improper. Plaintiff asks the Court to stop discovery directed to such information
as beyond the scope of discovery under Rule 26.
Defendant has urged the Court to deny the request because of flaws in the
motion to Quash under Rule 45 and flaws in the request for Protective Order under
Rule 26. The Court, however, views Plaintiff’s motion, as a practical matter, as a
motion to stay current discovery while the Court considers the pending motion for
summary judgment.1 The Court does not doubt its authority to limit discovery to
its proper scope under Rule 26, or to stay discovery if that action would result in
the more “just, speedy and inexpensive” resolution of this matter. Fed.R.Civ.P. 1.
However, the Plaintiffs request is not correct or practical. Plaintiff has
previously attempted unsuccessfully to limit additional medical discovery. The
Court has ruled that the Plaintiff’s plead cause of action for breach of contract,
which has not changed (Amended Complaint, Dkt. 69), alleges the medical
condition of the insured, and that discovery into his condition was proper. (See
Memorandum and Order, Dkt. 128). The Plaintiff has not changed or withdrawn
those contentions. Neither has the plaintiff committed to adopting its new ERISA

1

Because Plaintiff presented the substantive issue under Rule 56, the Court cannot
make an actual decision concerning the correctness of the new legal theory, and thus the
substantive relevance of pending discovery, until the motion for summary judgment is
ripe.

theory as its only theory of recovery in this case. The defense is still entitled to
conduct that discovery, which remains within the proper scope inquiry under Rule
26.
There are practical considerations. The motion for summary judgment,
which asks the Court to endorse the new ERISA theory, will not be decided for
some time. Defendant’s response is not due until September 11, and Plaintiff will
have a right to file a reply fourteen days thereafter. It is also far from clear to the
Court that resolution of that motion will finally decide the propriety of completing
pending discovery. The deadline for the completion of discovery is October 3,
20123, and the Pretrial Conference is scheduled for October 31, 2012. The
remaining discovery, to be completed in the next few weeks, includes four
depositions of local witnesses (one of which, a non-medical provider witness, may
not be affected by the new theory), and the tying up of some loose ends on some
pending written discovery and document production.2 Much discovery on medical
issues has been completed, and the parties have exchanged expert reports on
medical issues. Staying discovery at the end of the discovery period, and
rescheduling the Pretrial Conference (and the trial date) while the Court considers
the motion for partial summary judgment (which will not dispose of the case), will

2

The Court understands that this currently-planned discovery may not be the only
discovery attempted before the close of discovery.

not promote the efficient resolution of this dispute.
The Plaintiff’s motion for a Protective Order, to Quash discovery or
otherwise to stay discovery is, therefore, DENIED. To the extent that the motion
requests in limine relief and a ruling that evidence outside the alleged
“administrative record” will not be considered at trial, the motion is DENIED
without prejudice.
IT IS SO ORDERED.
Dated this 31st day of August, 2012, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE