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

Filing 311

MEMORANDUM AND ORDER granting 254 Motion for Leave to Take 30(b)(6) Deposition; granting 268 Motion to Deny or Continue Plaintiff's Summary Judgment Motion Pending Further Discovery, to extent motion requests stay of summary judgment. Additional instructions to parties contained in attached written Order. Signed by Magistrate Judge Kenneth G. Gale on 11/29/2012. (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

ORDER ON MOTION TO QUASH SUBPOENAS
Now before the Court is Defendant’s Motion for Leave to Take 30(b)(6)
Deposition. (Doc. 254). Having reviewed the submissions of the parties, the Court
GRANTS Defendant’s motion.
FACTS
Plaintiff in the matter before the Court is Wichita Firemen’s Relief
Association, a public body organized under the Firefighters Relief Act, K.S.A.
§40-1701, et seq., to administer public funds and consisting of members of public
fire departments. (See Doc. 1-1.) This case results from an alleged on-duty injury,
a rupture of the chordae tendinae, sustained by Captain Urban Eck (“Captain Eck”

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or “decedent”), an employee of the Wichita Fire Department, while fighting a local
fire.
Plaintiff contends the injury necessitated heart surgery and that Captain Eck
died as a result of surgical complications. Plaintiff, which had a group policy of
insurance issued by Defendant, brings its present claims seeking payment of an
accidental death and dismemberment (AD&D) benefit which Plaintiff contends
was a rider to the insurance policy issued by Defendant. Plaintiff alleges that
Defendant has “failed to support its claim that Captain Eck was diseased or ill
before he ruptured the tissues of his heart on December 13, 2009,” and, therefore,
Defendant’s refusal to pay the AD&D benefit is “without just cause and excuse.”
In both its state court Petition and Amended Complaint, Plaintiff alleged that
“this controversy is not governed by ERISA.” (Doc. 1-1, at 2; Doc. 69, at 2.)
However, Plaintiff has recently filed a “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” (hereinafter “summary judgment motion”).
(Doc. 204.) Plaintiff’s motion acts as a partial Motion for Summary Judgment and
it remains pending before this Court. Defendant contends that in this motion,
Plaintiff for the first time raised the argument “that the insurance contract between

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WFRA and KCL should be interpreted to mean that this case is governed by
ERISA.” (Doc. 255, at 3.)
DISCUSSION
A.

Motion for Leave to Take 30(b)(6) Deposition (Doc. 255).
In the matter presently before the Court, Defendant requests the opportunity

to conduct an additional 30(b)(6) deposition of a corporate representative of
Plaintiff. Defendant was correct to seek leave from the Court to do so because
“[t]he Rule 30(a)(2) limitation on re-deposing a deponent without leave of court
applies to Rule 30(b)(6) party deponents.” Terry v. Unified Gov’t of Wyandotte
County, No. 09-2094-EFM/KGG, 2011 WL 795816, at *3 (D. Kan. March 1,
2011). Pursuant to Fed.R.Civ.P. 26(b)(2)(C),
the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it
determines that:
(I) the discovery sought is 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 by discovery
in the action; or
(iii) the burden or expense of the proposed
discovery outweighs its likely benefit, considering
the needs of the case, the amount in controversy,
the parties' resources, the importance of the issues

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at stake in the action, and the importance of the
discovery in resolving the issues.
Defendant argues that the requested deposition is necessary because at the
time the prior 30(b)(6) deposition occurred in June 2011, Plaintiff “had not [yet]
asserted that the insurance contracts at issue incorporated or were otherwise
governed by ERISA.” (Doc. 255, at 2.) Defendant contends that this argument
was raised for the first time in Plaintiff’s motion for summary judgment, filed on
August 21, 2012 (and “clarified” at a status hearing with the Court on August 30,
2012). (Id., at 1-2.) Defendant also contends that at the time the prior 30(b)(6)
deposition occurred, it “had no basis to collect ERISA-related evidence . . . and did
not include any ERISA-specific topics” in that deposition notice.” (Id.) As such,
Defendant argues that the present deposition would not be unreasonably
cumulative or duplicative. (Id.)
Plaintiff responds that the “Statement of ERISA rights” was “made a part of
the contract” by Defendant and that Defendant was in possession of it at all times.
(Doc. 271, at 4, 10.) Although the subject of ERISA had not been raised in the law
suit previously, Plaintiff contends that is because Defendant made a “strategic
decision not to bring the matter up.” (Id., at 10.)
Plaintiff also contends that the discovery is cumulative because Defendant is
seeking “to discover information already in its possession.” (Id., at 8.) According
to Plaintiff, “[t]here is no WFRA witness who has any additional information about
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the ERISA rights granted WFRA by KCL, apart from that which has already been
provided by KCL . . . .” (Id.)
Defendant replies that it wants to use the deposition to “confirm this lack of
‘additional information’ . . . by establishing that WFRA did not believe any ERISA
rights were being conveyed at the time the insurance agreements were
consummated . . . .” (Doc. 281, at 6.) According to Defendant, because “no
WFRA witness has provided sworn testimony on these topics to date,” the
discovery cannot be considered cumulative or duplicative. (Id.) The Court agrees.
Also, the Court finds that Defendant did not have “ample opportunity,” or even the
need, to conduct discovery regarding these issues based on the issues raised by
Plaintiff’s state court Petition and federal court Amended Complaint. As such, the
Court also finds that the requested discovery is not unduly burdensome.
Plaintiff also argues that it has offered to allow Defendant to submit its
questions by other method, such as interrogatory or written question. (Doc. 271, at
9.) This is inappropriate as it is Defendant’s “prerogative to choose the method of
discovery [it] prefers.” Sellers v. Wesley Medical Center, L.L.C., No. 11-1340JAR-KGG, 2012 WL 5362977, at *7 (D. Kan. Oct. 31, 2012).
Defendant’s motion (Doc. 254) is therefore GRANTED. The deposition of
Plaintiff’s representative pursuant to 30(b)(6) shall occur at a time and place agreed
upon by the parties within 45 days of the date of this Order.

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B.

Defendant’s “Motion Pursuant to Rule 56(d) to Deny or Continue
Plaintiff’s Summary Judgment Motion Pending Further Discovery”
(Doc. 268).
On a related matter, Defendant has also asked that Plaintiff’s summary

judgment motion (Doc. 204) be denied or continued “until KCL has had an
opportunity to conduct an ERISA-related Rule 30(b)(6) deposition of WFRA.”
(Doc. 268, at 2.) In support of the motion, Defendant merely incorporates the
arguments and authorities it made in support of the motion addressed in section A,
supra, as well as those made in response to Plaintiff’s summary judgment motion.
(See, id.) Because the Court has granted Defendant’s request to take an additional
30(b)(6) deposition, supra, the Court finds this additional request to be reasonable.
Therefore, the Court also GRANTS Defendant’s motion to the extent it seeks to
continue Plaintiff’s summary judgment motion. The decision whether to grant or
deny Plaintiff’s underlying summary judgment motion will be addressed under
separate order following Defendant’s opportunity to conduct the relevant 30(b)(6)
deposition. Should Defendant glean information at this deposition that Defendant
finds relevant to the determination of Plaintiff’s underlying summary judgment
motion, Defendant shall supplement, if necessary, its response to the summary
judgment motion within 14 days of the 30(b)(6) deposition. Plaintiff shall have 14
days thereafter to file any sur-reply it deems necessary. Each party shall limit such
additional briefing to no more than ten (10) pages. If either party decides that

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additional briefing will not be submitted, counsel for that party is to instruct the
Court of the same by e-mail copied to opposing counsel as soon as possible.

IT IS THEREFORE ORDERED that Defendant’s “Motion for Leave to
Take 30(b)(6) Deposition” (Doc. 255) is GRANTED.
IT IS FURTHER ORDERED that Defendant’s “Motion Pursuant to Rule
56(d) to Deny or Continue Plaintiff's Summary Judgment Motion Pending Further
Discovery” (Doc. 268) is GRANTED.
IT IS SO ORDERED.
Dated this 29th day of November, 2012, at Wichita, Kansas.
S/ KENNETH G. GALE

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

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