Grain Dealers Mutual Insurance Company v. Cooley et al
ORDER granting in part and denying in part 38 Motion to Amend Scheduling Order; granting in part and denying in part 43 Motion to Compel; and denying 51 Motion to Strike. Signed by Magistrate Judge Michael T. Parker on January 6, 2017. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
GRAIN DEALERS MUTUAL INSURANCE COMPANY
CIVIL ACTION NO. 2:16-cv-39-KS-MTP
TAMMY COOLEY, ET AL.
THIS MATTER is before the Court on Defendants’ Motion to Amend Scheduling Order
, Defendants’ Motion to Compel , and Plaintiff’s Motion to Strike . Having
considered the parties’ submissions, the record, and the applicable law, the Court finds that
Defendants’ Motion to Amend Scheduling Order  should be granted in part and denied in
part, Defendants’ Motion to Compel  should be granted in part and denied in part, and that
Plaintiff’s Motion to Strike  should be denied.
In this declaratory judgment action, Plaintiff Grain Dealers Mutual Insurance Company
seeks a declaration that its policy with the Defendants precludes coverage for third-party claims
relating to a gasoline leak that occurred at the Defendants’ gas station. Specifically, Plaintiff
argues that the policy’s pollution exclusion precludes coverage for claims relating to the leeching
of gasoline into the soil and/or water on neighboring landowners’ properties.
Motion to Compel 
On November 9, 2016, Defendants served interrogatories, requests for production of
documents, and requests for admissions on Plaintiff. See Notices   . On December
13, 2016, Plaintiff filed their discovery responses. See Notice . The parties had
disagreements over several discovery requests and responses, and on December 21, 2016, the
Court conducted a discovery conference with the parties to discuss their disagreements. The
parties were unable to resolve their disputes, and the Court set an expedited briefing schedule for
any discovery motions. See Order .
On December 27, 2016, Defendants filed their Motion to Compel . According to the
Motion, the parties were disputing more than twenty discovery requests. After the Motion was
filed, however, the parties were able to resolve many of their disputes. See Response ;
Rebuttal . Currently, six discovery requests remain in dispute.
Federal Rule of Civil Procedure 26(b)(1) provides that:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweights it likely benefits.
Fed. R. Civ. P. 26(b)(1). This Rule also specifies that “[i]nformation within this scope of
discovery need not be admissible in evidence to be discoverable.” Id. The discovery rules are
accorded a broad and liberal treatment to achieve their purpose of adequately informing litigants
in civil trials. Herbert v. Lando, 441 U.S. 153, 177 (1979). “It is well established that the scope
of discovery is within the sound discretion of the trial court.” Freeman v. United States, 566 F.3d
326, 341 (5th Cir. 2009).
In each of the discovery requests which remain in dispute, Defendants are attempting to
gather information concerning how Plaintiff has previously handled claims involving gasoline
leaks and whether Plaintiff has consistently characterized gasoline as a pollutant.
Interrogatory No. 4: Have you ever been party to any other similar lawsuit or
declaratory actions where the subject of the lawsuit was coverage related to a
gasoline leak at an insured’s property? If so, please state the style, cause number,
and place of filing of any such lawsuit, or other applicable claim.
Interrogatory No. 5: Identify all claims, lawsuits, or other actions where Grain
Dealers has taken the position that a claim is excluded from coverage under its
policy because the claim arises from a gas leak at a service station.
Interrogatory No. 8: With respect to each person who had any role whatsoever in
working on or adjusting insurance claims for damages sustained to property as a
result of gasoline leaks, please state:
a) the name;
c) telephone number;
d) title of each person;
e) whether each person has personal knowledge surrounding the claim; and
f) identify all documents that support or explain these facts.
(This Interrogatory seeks the name of every employee or contractor of Grain
Dealers who had anything to do with the claim, including the adjusters, branch
claim representatives, regional or home office claims auditors or claims examiners,
all claims managers and claims supervisors at any level, executive officers of the
company, and all members of any review committee or claims committee).
Interrogatory No. 12: List the names of any insureds who made claims within the
past 15 years on businessowners policies issued by you in which you concluded
that gasoline or gasoline additives are not “pollutants” as that term is defined in
those policies and provide the dates those claims were submitted to you.
Interrogatory No. 13: List the style of each legal proceeding to which you were a
party within the last 15 years in which the issue of whether gasoline or gasoline
additives were “pollutants” as that term is defined in an insurance policy was
considered by a court or jury. In your listing include parties’ names, identify the
court, identify the state or federal district where the proceedings occurred or are
pending, and state the case number.
Request No. 7: To the extent you have not done so, produce a copy of each
documents referred to in your Interrogatory answers.
In its Response  , Plaintiff argues that these requests seek information that is
neither relevant nor material to the issue before the Court. According to Plaintiff, the only issue
before the Court is one of contract interpretation, specifically, “whether the pollution exclusions
in Defendants’ policies preclude coverage for third-party claims or governmental action for
damage, loss, or injury resulting from the release of gasoline onto and into the soil of
Defendants’ property and the leeching of that gasoline into the soil/water on neighboring
landowners’ property.” Plaintiff argues that “there can be no question regarding the nonambiguity of the pertinent contract provisions,” and therefore, information concerning how
Plaintiff has previously handled claims involving gasoline leaks and whether Plaintiff has
consistently characterized gasoline as a pollutant is irrelevant.
“Where an insurance policy is clear and unambiguous, the meaning and effect of the
policy is a question of law.” Essex Ins. Co. v. Greenvill Convalescent Home, Inc., 236 Fed.
App’x. 49, 51 (5th Cir. 2007) (citing Love By Smith v. McDonough, 758 F.Supp. 397, 399 (S.D.
Miss. 1991)). The policy itself is the sole manifestation of the parties’ intent, and no extrinsic
evidence is permitted absent a finding by a court that the language is ambiguous and cannot be
understood from a reading of the policy as a whole. Cherry v. Anthony, Gibbs & Sage, 501 So.
2d 416, 419 (Miss. 1987). If the terms of the policy are ambiguous, however, courts may
consider extrinsic evidence to determine the meaning of the terms. See Pursue Energy Corp. v.
Perkins, 558 So. 2d 349, 352 (Miss. 1990).
As previously mentioned, Plaintiff argues that there is no question regarding the nonambiguity of the pollution exclusion as issue in this case. However, courts are not in agreement
regarding the ambiguity of pollution exclusions provisions,1 and this Court has not ruled in this
case, with its particular facts, that the policy terms at issue are unambiguous. The parties may
address the merits of that issue via appropriate dispositive or other motion. At this stage of
litigation, the Court declines to rule on the ambiguity of the subject policy terms. Thus,
See American States Ins. Co. v. Koloms, 281 Ill. App. 3d 725, 729 (Ill. App. 1996) (compiling
information which might be produced in response to the subject discovery requests could be
relevant to the issues before the Court.2
Plaintiff also objected to these requests as not limited to a reasonable time or geographic
scope. Subsequently, Defendants offered to limit their requests to “Mississippi gasoline leak
claims made in the past five years.” See Rebuttal . Plaintiff, however, argues that even with
these limitations, the requests remain unduly burdensome. According to Plaintiff, 3,596 claims
from insureds in Mississippi were submitted to Plaintiff during that time period, and it would
have to manually review each of those claim files in search of gasoline leak claims. The Court
finds that this is not unduly burdensome considering the factors delineated in Federal Rule of
Civil Procedure 26(b)(1). It appears to the Court that a brief review of a claim file should suffice
to determine whether a claim involves a gasoline leak.
Finally, Plaintiff argues that Defendants’ discovery requests seeks information which
may be protected by the attorney-client privilege, the work product doctrine, or other privileges.
Plaintiff does not identify any specific information which is allegedly protected by the attorneyclient privilege, the work product doctrine, or other privileges. Thus, the Court is not able to
make a determination on the validity of any privileges asserted. As permitted by the Federal
Rules of Civil Procedure and Local Rules, Plaintiff may supplement its privilege log to properly
identify all allegedly privileged information being withheld, if any.
The Court notes that, in their Answer , Defendants requested “any relief allowed under the
holdings of Universal Life Ins. v. Veasley, 610 So. 2d 290, 295 (Miss. 1992).” Pursuant to
Veasley and subsequent cases, an insurer not liable for punitive damages may still be liable for
extra-contractual damages if its decision to deny a claim lacks a reasonably arguable basis, but
otherwise fails to rise to the level of an independent tort. Broussard v. State Farm Fire & Cas.
Co., 523 F.3d 618, 628 (5th Cir. 2008).
Accordingly, Defendants’ Motion to Compel  shall be granted in part. Plaintiff shall
supplement its responses to Defendants’ discovery requests (except for Interrogatory No. 8) by
providing the requested information concerning Mississippi gasoline leak claims for a period of
three years prior to the filing of this action to the present. As for Interrogatory No. 8, the Court
finds that the request should be limited as follows: Plaintiff shall provide the name, address, title,
and telephone number of the employee or contractor who adjusted any claim made for a period
of three years prior to the filing of this action to the present concerning Mississippi gasoline
Motion to Amend Scheduling Order 
In their Motion to Amend Scheduling Order , Defendants request that the Court
extend the discovery and motions deadlines by two weeks in order to provide the parties
adequate time to resolve their discovery disputes. As the discovery deadline is currently January
10, 2017, the Court will extend the discovery deadline to January 17, 2017, for the sole purpose
of allowing Plaintiff to produce the discovery ordered herein. Additionally, the Court will
extend the motions deadline to January 31, 2017.
Motion to Strike 
In support of its Motion to Compel, Defendants submitted a scholarly article along with it
Rebuttal . See Exhibit [50-2]. The article discusses the issue of insurance companies
denying coverage based on pollution exclusions. Plaintiff filed its Motion , requesting that
the Court strike the exhibit as improperly submitted expert testimony. The Court, however, has
ruled on the Motion to Compel and did not reference or rely on the exhibit in making that ruling.
According, the Court finds that the Motion to Strike should be denied as moot.
IT IS, THEREFORE ORDERED that:
1. Defendants’ Motion to Amend Scheduling Order  is GRANTED in part and
DENIED in part;
2. The discovery deadline is extended to January 17, 2017, for the sole purpose of
allowing Plaintiff to produce the discovery ordered herein;
3. The deadline for motions (other than motions in limine) is extended to January 31,
4. All other provisions and deadlines contained in the Case Management Order 
remain in place;
5. Defendants’ Motion to Compel  is GRANTED in part and DENIED in part as set
6. On or before January 17, 2017, Plaintiff shall supplement its responses to Defendants’
discovery responses as set forth above; and
7. Plaintiff’s Motion to Strike  is DENIED as moot.
SO ORDERED this the 6th day of January, 2017.
s/Michael T. Parker
UNITED STATES MAGISTRATE JUDGE
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