Sidell et al v. Selective Insurance Company of Amercia

Filing 41

ORDER denying 33 Motion to Compel. Signed by Hon. H. Kenneth Schroeder Jr. on 6/28/2017. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RALPH SIDELL and
LYNN SIDELL,
Plaintiffs,
14-CV-0558A(Sr)
v.
SELECTIVE INSURANCE COMPANY
OF AMERICA,
Defendant.

DECISION AND ORDER
This matter was referred to the undersigned by the Hon. Richard J.
Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and
report upon dispositive motions. Dkt. #5.

Currently before the Court is defendant’s motion to compel. Dkt. #33. For
the following reasons, the motion is denied.

BACKGROUND
Ralph Sidell was injured during the course of his employment at a
construction site at 2155 Eggert Road in Amherst, New York on August 30, 2007. Dkt.
#33-1, ¶ 3. Selective Insurance Company of America’s (“Selective”), insured Kainos
Partners, LLC, pursuant to a commercial insurance policy in effect on August 30, 2007.
Dkt. #33-1, ¶ 5.

On July 28, 2010, Mr. Sidell and his wife commenced suit in New York
State Supreme Court, County of Erie, pursuant to New York State Labor Law, seeking
damages for personal injury and loss of consortium against, inter alia, Kainos Partners,
LLC and Kainos Eggert Road, LLC (“Kainos”). Dkt. #33-1, ¶ 4.

Selective’s internal claims notes indicate that on August 25, 2010,
Selective became aware of contact information for Pat Cosentino, who previously
worked for Kainos. Dkt. #38. The claims notes indicate that a representative from
Selective
called and spoke with Pat. He confirmed that all of the
Kainos entities have gone bankrupt and the partners have
dispersed. He will attempt to reach out to some people to
try and identify a better contact as he is not able to help me
with regard to this property.
Dkt. #38.

By letter dated August 30, 2010, Selective denied coverage to Kainos
because, inter alia, the location where Mr. Sidell was injured was not listed as a
covered location on the policy and because Selective had not received timely notice of
the incident. Dkt. #33-1, ¶ 6.

Plaintiffs obtained a default judgment against Kainos in New York State
Supreme Court, County of Erie and commenced this declaratory judgment action
against Selective, claiming that the disclaimer of coverage was improper. Dkt. #33-1,
¶¶ 9 & 10.
-2-

On October 27, 2016, one day before the deadline for completion of
discovery set forth in this Court’s Amended Case Management Order, Selective served
plaintiffs with a Third Notice to Produce seeking copies of any and all statements of
Kainos. Dkt. #33-4. By letter dated November 21, 2016, Selective reminded plaintiffs
that their response to the Third Notice to Produce was outstanding. Dkt. #33-1, ¶ 20.
On December 21, 2016, Selective sent another letter requesting a response to the
Third Notice to Produce as well as any correspondence between plaintiff’s counsel and
any of the underlying defendants or their carriers which may have been sent prior to
commencement of the underlying litigation. Dkt. #33-5.

By letter dated December 22, 2016, plaintiffs responded that the only
communications between plaintiffs’ counsel and a defendant or its insurer prior to
commencement of the personal injury action were two disclaimer letters issued by
Selective. Dkt. #33-6, p.3. Plaintiffs further responded that the Third Notice to Produce
was untimely and objected to the disclosure of any statements of Kainos on the
grounds that “any such statement[s] constitute attorney work product and/or materials
prepared exclusively and solely in anticipation of litigation.” Dkt. #33-6. Selective filed
this motion to compel disclosure of any such statements, and an opportunity to depose
the individual(s) providing such statements, on December 28, 2016. Dkt. #33.

On December 29, 2016, plaintiffs disclosed an affidavit from Patrick
Cosentino dated October 11, 2016. Dkt. #37. Mr. Cosentino affirms that he was
employed by Kainos as its Director of Operations in the Buffalo area on the date of Mr.
-3-

Sidell’s injury but neither he “nor anyone else from Kainos to [his] knowledge was
present on that site on August 30, 2007.” Dkt. #37, ¶¶ 1-2. Mr. Cosentino further
affirms that he did not learn of the incident until after the Summons and Complaint was
filed in the personal injury action sometime during the second half of August, 2010 and
that he “know[s] of no person affiliated with Kainos who had any knowledge of the
alleged incident involving Mr. Sidell prior to the day that [he] learned of the alleged
incident.” Dkt. #37, ¶¶ 4-5.

Plaintiffs counsel affirms that this is the only item responsive to Selective’s
Third Notice to Produce. Dkt. #39, ¶ 5. As a result of this representation, Selective’s
motion to compel disclosure of any statements of Kainos is moot.

Selective argues that it “did not subpoena Mr. Consentino [sic] based
upon his own representations that he was ‘not able to help’ relative to this matter . . ..”
Dkt. #36, ¶ 12. Asserting that “Mr. Consentino [sic] now claims to have more
information than he relayed to Selective, Selective seeks the opportunity to subpoena
him in order to obtain deposition testimony . . ..” Dkt. #36, ¶ 13.

Plaintiffs oppose Selective’s request to depose Mr. Cosentino. Dkt. #39.
Specifically, plaintiffs’ counsel affirms that “Mr. Cosentino’s affidavit is in no way
inconsistent with any contention that he was without any information regarding Plaintiff,
Ralph Sidell’s accident, or any information that had previously been obtained by
defendant from Mr. Cosentino, as noted in its claims file.” Dkt. #39, ¶ 8. In other
words, plaintiffs argue that Mr. Cosentino’s affidavit does not suggest “that any further
-4-

information regarding notice would be obtained if this court were to grant defendant’s
motion for an extension of the discovery deadline in order to depose Mr. Cosentino.”
Dkt. #39, ¶ 8.

Mr. Cosentino’s affidavit does not provide good cause to extend the
discovery deadline to permit his deposition. Selective was aware of Mr. Cosentino and
spoke to him on August 25, 2010, yet determined not to ask him more specific
questions or seek his deposition at any time prior to the close of discovery.
Accordingly, this aspect of defendant’s motion to compel is denied.

Based upon plaintiffs’ representations in the December 22, 2016 letter
that no communications were sent by plaintiffs’ counsel or plaintiffs to the Kainos
entities or their insurers prior to the filing of the summons and complaint in the
underlying personal injury action, Selective also seeks to depose plaintiffs “relative to
any efforts they took to provide notice to Selective in light of their counsel’s
representations that no such attempts were documented in writing.” Dkt. #36, p.3. As
Selective fails to establish good cause for failing to depose plaintiffs on this issue prior
to the close of discovery, this request is also denied.

SO ORDERED.

DATED:

Buffalo, New York
June 28, 2017
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
-5-