AMW Sports, LLC et al
Filing
51
RULING denying 35 Motion to Quash Records Deposition. Signed by Magistrate Judge Stephen C. Riedlinger on 1/4/2012. (LSM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
AMW SPORTS, LLC D/B/A THE
ATHLETE’S FOOT
CIVIL ACTION
VERSUS
NUMBER 10-651-SCR
STATE FARM FIRE AND CASUALTY
COMPANY
RULING ON MOTION TO QUASH RECORDS DEPOSITION
Before the court is the Motion to Quash Records Deposition of
Lafayette Insurance Company.
Record document number 35.
The
motion is opposed.1
As was the case with the plaintiffs’ earlier Motion to Quash
Records Deposition of CAP LLC, there is no need to set out in
detail the procedural history of the case and events which led to
filing this motion.
The brief summary of the procedural history,
taken from the Ruling on Motion to Quash Records Deposition, is
sufficient.2
Plaintiffs seek recovery from the defendant for the
cost of repairing a hole in the wall of the store operated by AMW
Sports, LLC, allegedly caused by burglars.
Defendant specifically
pled as an affirmative defense in its answer the “other insurance”
provision of its policy.
Defendant had been asking the plaintiffs
for the identity of the owner of the building who or which leased
the property to AMW since at least July 2011. Defendant’s need for
1
Record document number 46.
2
Record document number 37.
the information is and was obvious: so it could find out whether
the owner had insurance which covered physical damage to the
building. Despite repeated promises, or at least indications, from
the plaintiffs and counsel for the plaintiffs that the information
would be provided, the plaintiffs did not provide it until December
9, 2011.
Defendant promptly issued a deposition subpoena to the
owner, CAP LLC, to obtain certified copies of the lease and any
property insurance policies for the property.
Defendant then learned that Lafayette Insurance Company policy
number 8530511 was obtained by CAP LLC and insured the building.
Defendant issued a deposition notice and subpoena to Lafayette
Insurance Company to obtain a copy of the policy.3
Plaintiffs’ arguments in support of their motion are, again,
disingenuous
and
unpersuasive
in
these
circumstances.
Additionally, the plaintiffs argued that because the defendant
denied the property damage claim on a basis other than because of
the existence of other applicable insurance, the defendant should
now
be
precluded
from
conducting
discovery
on
this
issue.4
Plaintiffs are making a waiver argument – i.e. the defendant cannot
now rely on the “other insurance” provision in the policy as a
defense because it was not the basis for denying the claim.
It is apparent from the deposition testimony of Heather
3
Record document number 35-2, Exhibit 1.
4
Record document number 35-1, pp. 2-3.
2
Blevins (which is essentially confirmed by defendant’s Response to
Interrogatory No. 13) that the defendant did not rely on the “other
insurance” provision to deny the AMW’s cost-of-repair claim because
it determined that plaintiff AMW had not shown that a theft had
occurred.5
But the plaintiffs did not cite any legal authority to
support their waiver argument in this motion or in the plaintiffs’
Memorandum in Support of Plaintiffs’ Motion for Partial Summary
Judgment,6 or in their Response in Opposition to State Farm’s
Motion for Summary Judgment.7
A few days after filing this motion the plaintiffs filed a
Motion in Limine Concerning “Other Insurance” Evidence in which
they did make a waiver argument.8
Plaintiffs acknowledged in the
supporting memorandum that “it is the party who seeks to avoid the
application of a policy’s provisions who must come forward with
evidence
sufficient
to
support
a
waiver.”9
Plaintiffs
also
acknowledged therein that the November 24, 2009 letter from the
defendant denying the claim included the following statement in a
separate paragraph: “The Company does not intend, by this letter,
5
Id. at 4.
6
Record document number 21-1
7
Record document number 29, pp. 11-14.
8
Record document number 47.
9
Record document number 47-1, p. 11, citing Maddox v. Keen,
33,072, 756 So.2d 1279, 1285 (La.App. 2 Cir. 2000).
3
to waive any policy defenses in addition to those stated above, but
specifically reserves the right to assert such additional policy
defenses
at
plaintiffs
any
time.”10
argued
the
that
Notwithstanding
the
defendant
the
foregoing,
waived
the
the
“other
insurance” defense.11
To the extent the plaintiffs’ argument in their Motion in
Limine Concerning “Other Insurance” Evidence may be considered in
support of their motion to quash, it is unpersuasive.
Plaintiffs
have pointed to no evidence that the defendant acted in a manner
consistent with waiving the “other insurance” provision. Defendant
determined that “the theft claimed cannot be established from the
records” provided by plaintiff AMW.12
Consequently, there was
simply no reason to invoke the “other insurance” provision when the
theft was not established.
Plaintiffs have not cited binding
statutory or case authority for the proposition that an insurer
waives
a
potentially
applicable
policy
provision
by
not
specifically invoking it when denying a claim for another reason.
For essentially the same reasons stated in the previous
Ruling
on
Motion
to
Quash
Records
Deposition,
and
for
the
additional reasons above, the plaintiffs’ motion has no merit.
10
Id., Exhibit 7, p. 3.
11
Plaintiffs characterized this non-waiver paragraph as
“boiler plate,” but they did not contend it is equivocal, unclear
or misleading.
12
Record document number 47-8, Exhibit 7, p. 1.
4
Accordingly,
the
plaintiffs’
Motion
to
Quash
Records
Deposition of Lafayette Insurance Company is denied.
Baton Rouge, Louisiana, January 4, 2012.
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
5
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