Agency One Insurance, Inc. et al v. Westport Insurance Corp.

Filing 150

ORDER granting in part and denying in part 136 Motion to Compel. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AGENCY ONE INSURANCE, INC.,
PAMELA A SIROKY, METROPOLITAN
PROPERTY AND CASUALTY
INSURANCE COMPANY, Assignee of the
Claims of Agency One Insurance, Inc. and
Pamela A. Siroky;

8:13CV78
ORDER

Plaintiffs,
vs.
WESTPORT INSURANCE CORP.,
Defendant.
As to Defendant Westport Insurance Corp.’s motion to compel, (Filing No. 136):

1)

The court has reviewed the document withheld by MetLife (MET000031)

and at this time, finds the document is an attorney-client communication for which the
privilege has not been waived.

2)

At the court’s request, David Dudley submitted to the court the documents

withheld as identified on his privilege log and finds:

a.

After reviewing the documents the defendant intends to use during
depositions of Mr. Phillips and Mr. Dudley, 1 and comparing them to the
documents withheld by Mr. Dudley, it is clear that the defendant has
already received nearly all the documents from another source.

1

Those documents were emailed to me today by the deposing counsel.

b.

Of those documents which the defendant has not yet received, the attached
pages are attorney-client communications, but do not provide legal advice
and do not include work product. 2

c.

The document identified as email correspondence between Randall Goyette
and David Dudley dated May 7, 2014 is wholly irrelevant to the claims in
this case.

d.

The

document,

identical

to

MET000031,

is

an

attorney-client

communication for which the privilege has not been waived.

April 14, 2015.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

2

Note: The court has redacted the portion of these documents identifying Mr.
Dudley’s communications with his staff regarding whether the document should be listed
on the privilege log.
2

From: Pam Siroky [mailto:[e-mail]]
Sent: Friday, May 02, 2014 11:42 AM
To: Doug Phillips
Cc: Donna Poznanski; David A. Dudley

Subject: Re: Met v. Agency One

Thank you. I am ready to move on. Have a good weekend too.
On May 2, 2014 11 :05 AM, Doug Phillips <[e-mail]> wrote:
John Gray just gave me the good news that he and David have worked out the details to resolve the Sioux City
case. Obviously, there will not be a trial at the end of the month. I will wait until John and David get the paperwork
done and signed and then John and I will get the case here dismissed and we will be done. Have a great weekend!
Douglas L. Phillips
Klass Law Firm, L.L.P.
4280 Sergeant Road
Mayfair Center, Suite 290
Sioux City, IA 51106
712-252-1866 ext. 230
[e-mail]
www.klasslaw.com
CONFIDENTIAL NOTICE: Unless otherwise indicated or obvious from the nature of the transmittal, the information
contained in this e-mail message is attorney/client privileged and confidential information intended for the use of the
individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent
responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of
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1

AGREEMENT

WHEREAS, Pamela A. Siroky, the owner and an agent for Agency One Insurance, Inc.
(Agency One) and Agency One are named Defendants by Metropolitan Property and Casualty
Insurance Company (MET PC) in Metropolitan Property and Casualty Insurance Company v.
Agency One Insurance, Inc. and Pamela A. Siroky (Cl2-4050-LTS) in the United States District

Court for the Northern District of Iowa;
WHEREAS, the trial in the matter is set for May 27, 2014;
WHEREAS, Pamela A. Siroky, Agency One and MET PC desire to fully settle all claims
which MET PC may have or had, against Pamela A. Siroky and Agency One in the issuance of
MET PC Policy 0930727292 to Patricia Potter; and
WHEREAS, all parties agree that Agency One was negligent in the binding and issuing
of MET PC policy 0930727292 to Patricia Potter; and
WHEREAS, Westport Insurance Company (Westport) has refused to provide a defense
or indemnity to Pamela A. Siroky or Agency One for the claims made against them by MET PC:
THEREFORE, Pamela A. Siroky and Agency One and their successors, heirs, and
assigns do hereby voluntarily acknowledge and agree with MET PC as follows :
1.

In exchange for due consideration provided to Pamela A. Siroky and Agency One,

Pamela A. Siroky and Agency One hereby expressly assign all rights, claims, interests, and
causes of action held by them or either of them pursuant to Westport Insurance Company
(Westport) (policy WED4ME006184505) and, in particular, Westport's refusal to defend and
indemnify Siroky and Agency One for the claims and causes of action that were made against
them by MET PC in a lawsuit entitled, Metropolitan Property Casualty Insurance Company v.

Agency One Insurance, Inc., and Pamela A. Siroky (Cl2-4050-LTS) in the United States District

Court for the Northern District oflowa.
2.

These rights, claims, interests and causes of action include, but are not limited to,

any claims for breach of contract, bad faith, breach of warranty of an implied duty of good faith
and fair dealing, and breach of fiduciary duty.
3.

Pamela A. Siroky and Agency One hereby grant MET PC the right to join in any

pending litigation in the United States District Court for Nebraska they now have or also to
initiate an action against Westport, and any right to file, in their name, an action against Westport
for breach of its obligations and duties owed to Pamela A. Siroky or Agency One under policy
WED4ME006184505.
4.

In further consideration of this assignment MET PC expressly agrees to refrain

from executing on or in any manner seeking to enforce the judgment against Pamela A. Siroky
and Agency One entered in the United States District Court for the Northern District of Iowa in
the matter of (Cl2-4050-LTS).
5.

MET PC further agrees to refrain from in any manner seeking to enforce said

judgment against Pamela A. Siroky and Agency One.
6.

It is agreed by the parties that this Agreement will remain in force and in effect

notwithstanding any judgment, order, decision, or result in any suit filed by MET PC, Pamela A.
Siroky, Agency One, or their successors heirs or assigns against Westport.
DATED this_ day of _ _ _ _ _ _ _ _ _., 2014.

Charlie Cavas
MetLife Auto & Home
P. 0. Box 410250
Charlotte, NC 28241

Pamela A. Siroky, on her own behalf
And as President of Agency One Insurance

From: Pam Siroky [mailto:[e-mail]]

Sent: Tuesday, June 17, 2014 8:01 AM
To: David A. Dudley
Subject: RE: Agreement with revisions (00509054xB7457)
What is a good time to talk?

P~VtA.

slrok?.t:J

Agency One Insurance
594 N 4th Street
David City, NE 68632
402-367-3177
fax [phone]
NOTICE: The information in this email is confidential proprietary property of Agency One Insurance. If you are
not the intended recipient be advised that you have received this email in error and any use, dissemination,
forwarding, printing or copying of it is strictly prohibited. If you have received this email in error you should
notify the sender by return email and delete this message from your computer system.
From: David A. Dudley (mailto:[e-mail]]

Sent: Monday, June 16, 2014 5:08 PM
To: Pam Siroky
Subject: Agreement with revisions (00509054xB7457)
Pam
Attached is the agreement with Met PC. Call me when you get a chance.
David Dudley
Baylor, Evnen, Curtiss, Grimit & Witt, LLP
Wells Fargo Center
1248 0 Street, Suite 600
Lincoln, Nebraska 68508-1499
402.475.1075
[e-mail]

1

Emily G Morgan I Legal Adm in. Associate II
02887 I Tel: [phone]

I MetLife Auto & Home I 700 Quaker Lane, Warwick, RI

The information contained in this message may be CONFIDENTIAL and is for the intended
addressee only. Any unauthorized use, dissemination of the information, or copying of this
message is prohibited. If you are not the intended addressee, please notify the sender
immediately and delete this message.

2

From: Pam Siroky [mailto:[e-mail]]

Sent: Tuesday, June 17, 2014 5:09 PM
To: David A. Dudley
Subject: RE: Agreement
Here you go. It will probably be best to just schedule a time to meet. We are crazy busy here and if mother nature
keeps throwing tantrum's it is not going to get any better. Later in the day seems to work best for me and Mondays and
Wednesdays are out because of kids ball games. If you guys want to throw out some dates and times I will just make it
work. I will wait to hear back from one of you. Thank you!! Have a good evening!!!

:Pei VIA,

SLrORkj

Agency One Insurance
594 N 4th Street
David City, NE 68632
402-367-3177
fax [phone]
NOTICE: The information in this email is confidential proprietary property of Agency One Insurance. If you are
not the intended recipient be advised that you have received this email in error and any use, dissemination,
forwarding, printing or copying of it is strictly prohibited. If you have received this email in error you should
notify the sender by return email and delete this message from your computer system.

From: David A. Dudley [mailto:[e-mail]]

Sent: Tuesday, June 17, 2014 4:55 PM
To: Pam Siroky
Cc: Win C. Lombardi

Subject: Fwd: Agreement
Pam
Attached to this email is the agreement signed by Chuck. Go ahead and print the attachment and then sign where
indicated.
I have talked to Chris Miller a couple of times today. He is making arrangements to review documents. He's already
reviewed most of the depositions. During my conversation, he indicated that in the fairly near future, he would like to sit
down and meet you. I suggested that at some point, we could initially meet together and I could introduce you. If you're
going to be in Lincoln in the next several days, maybe there would be an opportunity to conference. Let me know if you
have questions or concerns.

1

David Dudley
Sent from my iPhone
Begin forwarded message:
From: John Gray <[e-mail]>
Date: June 17, 2014, 4:30:14 PM CDT
To: "David A. Dudley" <[e-mail]>
Cc: John Gray <[e-mail]>
Subject: FW: Agreement

FYI.
From: Morgan, Emily [mailto:[e-mail]]

Sent: Tuesday, June 17, 2014 3:24 PM
To: John Gray; [e-mail]
Cc: cavas, Charles
Subject: Agreement
On behalf of Chuck Cavas, please find the attached agreement.
Thank you,
Emily G Morgan I Legal Admin. Associate II
02887 I Tel: [phone]

I MetLife Auto & Home I 700 Quaker Lane, Warwick, RI

The information contained in this message may be CONFIDENTIAL and is for the intended
addressee only. Any unauthorized use, dissemination of the information, or copying of this
message is prohibited. If you are not the intended addressee, please notify the sender
immediately and delete this message.

2