Fountain, Jr. d/b/a Eastbrook Apartments v. Zurich American Insurance Company, a New York corporation et al
Filing
123
ORDER by US Magistrate Judge Kimberly A. Swank: GRANTING IN PART and DENYING IN PART 32 Motion to Compel; GRANTING IN PART and DENYING IN PART 52 Motion for Protective Order; GRANTING IN PART and DENYING IN PART AND DISMISSING AS MOOT IN PART [ 73] and 110 Plaintiff's Motion to Compel; GRANTING IN PART and DENYING IN PART AND DISMISSING AS MOOT IN PART 75 Motion for Extension of Time to Complete Discovery; DISMISSING AS MOOT 81 Motion for Protective Order; DISMISSING AS MOOT [8 9] Motion to Compel; GRANTING IN PART and DENYING IN PART AND DISMISSING AS MOOT IN PART 106 Motion for Extension of Time. Signed by US Magistrate Judge Kimberly A. Swank on 12/3/14. Counsel is reminded to read the order in its entirety for critical deadlines and information. (O'Brien, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:13-CV-120-D(2)
REGINALD M. FOUNTAIN, JR.,
d/b/a Eastbrook Apartments, LLC,
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Plaintiff,
v.
FARMERS INSURANCE EXCHANGE
and MARYLAND CASUALTY
COMPANY, a Maryland corporation,
Defendants.
ORDER
This matter is before the court on the following motions:
1.
[DE #32];
Plaintiff’s
Motion
to
Compel
Discovery
Responses
2.
Defendants’ Motion for a Protective Order from Plaintiff’s
Request for Additional Depositions [DE #52];
3.
Plaintiff’s Motion to Compel (re: Plaintiff’s Multiple
Discovery Requests) [DE #73 and #110];
4.
Plaintiff’s Motion to Extend Discovery [DE #75];
5.
Defendants’ Motion for a Protective Order from Rule
30(b)(6) Deposition Notices Regarding Responses to Requests for
Admission [DE #81];
6.
Plaintiff’s Motion to Compel Defendant to Provide Better
Responses to First Request for Admissions [DE #89]; and
7.
Defendants’ Motion to Extend Expert Disclosures and
Subsequent Deadlines Pending Ruling on Pending Discovery Motions
[DE #106].
The parties have fully briefed the issues. A hearing was held on December 1, 2014,
at which the court heard the arguments of counsel and announced its rulings on the
aforesaid motions. For the reasons stated in open court, which are incorporated
herein by reference, the court enters the orders set forth herein.
BACKGROUND
Following Hurricane Irene in August 2011, Plaintiff filed an insurance claim
for damages to commercial property covered under his policy with Defendant
Maryland Casualty Company (“Maryland Casualty”).
Following resolution of
Plaintiff’s claim, Plaintiff filed this action in state court asserting claims for unfair
claims handling and bad faith adjustment of Plaintiff’s claim.
Defendants
subsequently removed the action to this court.
DISCUSSION
A.
Plaintiff’s Motion to Compel [DE #32]
This motion was previously the subject of a hearing held on September 19,
2014. As a result of that hearing, the court entered a temporary, non-prejudicial
protective order and ordered Defendants to review their discovery responses and to
make such further or supplemental response as may be appropriate. (See Order at
DE #104.) Defendants have since made additional disclosures, but Plaintiff seeks to
compel further response to the following requests contained in Plaintiff’s First
Request for Production of Documents: #35 (seeking Maryland Casualty’s “claims
files relating to every reported hurricane in the State of North Carolina” from 2011
through 2012); #36 (for certain personnel records and information concerning
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“claims’ handling personnel, adjusters and supervisors involved with [Plaintiff’s]
claim”); and #37 (requesting copies of personnel or Human Resources manuals for
Maryland Casualty’s “first party real property and/or hurricane claims’ handling
personnel, adjusters and supervisors for the State of North Carolina from 2009
through 2012”).
With respect to this motion, the court hereby ORDERS Defendants to
produce the following to Plaintiff within twenty-one (21) days:
1.
With regard to request #35, Defendants shall provide
claims summaries or such other documentation indicating the
following as to each commercial hurricane catastrophe claim made
from 2011 through 2012:
a.
Date of loss;
b.
The amount claimed, if applicable;
c.
The amount(s) and date(s) of any payments made
on the claim;
d.
litigation);
How the claim was resolved (e.g., settlement,
e.
Whether any experts were retained to assist in
resolution of the claim; and
f.
The loss ratio, if tracked by Defendants.
2.
In response to request #36, Defendants shall produce
documentation of the following information with respect to Nathaniel
Brown (“Brown”) and Ryan Sprecker (“Sprecker”):
a.
Job description(s) from 2009-2012;
b.
Any applications of employment from 2009-2012;
c.
History of salary and promotions/demotions from
2009-2012;
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d.
A list of educational courses taken by each from
2009-2012, if such information is maintained by Defendants;
Defendants shall further submit to the court for in camera
review the following documentation concerning Nathaniel Brown and
Ryan Sprecker:
a.
Annual performance evaluations from 2009-2012;
b.
and
Any letters of commendation or complaint.
3.
As to request #37, Defendants shall produce any
provisions concerning the following matters contained in Human
Resources Manuals from 2009 to 2012 as may be applicable to
commercial property claims adjusters and supervisors:
a.
b.
Salary grade classifications;
c.
Criteria for promotion/demotion;
d.
Performance evaluations and activity review;
e.
Performance-based compensation plans;
f.
Incentive programs and retirement funds; and
g.
B.
Job descriptions;
Profit-sharing and stock ownership.
Motion for Protective Order [DE #52]
Given the additional disclosures made and to be made by Defendants since
the Rule 30(b)(6) depositions previously held in this matter, the court determines
that Plaintiff should be allowed to conduct additional Rule 30(b)(6) depositions
concerning the following topics:
1.
Claims manuals and guidelines for commercial property
claims in North Carolina for Maryland Casualty from 2010-2013 and
for Farmers Insurance Exchange (“Farmers”) for the years 2010-2012;
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2.
Personnel matters, payment, salary, and performance
reviews for Brown and Sprecker, as well as Defendants’ employment
practices and procedures concerning the salary and performance
evaluations of North Carolina personnel involved in commercial
property claims;
3.
Training manuals and materials for commercial property
claims in North Carolina for Maryland Casualty from 2010-2013 and
for Farmers for the years 2010-2012;
4.
Employee handbooks for commercial property claims in
North Carolina for Maryland Casualty from 2010-2013 and for
Farmers from 2010-2012;
5.
Defendants’ financial stability and assets/liabilities;
6.
Farmers’ preferred vendor lists from 2010-2012;
7.
claim; and
Agreements authorizing Farmers to adjust/pay Plaintiff’s
8.
Any documents or information the production of which is
ordered herein.
Prior to noticing any Rule 30(b)(6) depositions in this matter, Plaintiff shall
provide Defendants with notice of the particular topics to be addressed. As soon as
practicable and in no event later than two weeks prior to the deposition, Defendants
shall identify the names of the deponents and the topics upon which each will be
testifying as a Rule 30(b)(6) designee. If no more than four deponents are named,
Plaintiff shall be limited to eight hours in the aggregate for direct examination of all
Rule 30(b)(6) deponents and a total of two hours for redirect/rebuttal. Should more
than four deponents be named, the parties shall confer in an attempt to reach an
agreement concerning a reasonable duration for the depositions.
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C.
Motion to Compel [DE #73 & 110]
1.
Second and Third Requests for Production
At the hearing of this matter, Plaintiff withdrew his motion to compel further
responses to his Second Requests for Production of Documents and his Third
Requests for Production of Documents in light of additional disclosures that have
since been made by Defendants.
Accordingly, this part of Plaintiff’s motion to
compel is dismissed as moot.
2.
Fourth Request for Production
As to Plaintiff’s Fourth Request for Production of Documents, Plaintiff seeks
to compel further response to requests #8 (regarding consumer complaints) and #9
(concerning Farmers’ net worth). Defendants maintain that they have complied
with request #8 by providing Plaintiff with a copy of commercial property
complaints filed with the North Carolina Commissioner of Insurance from 20092013. Nevertheless, Defendants have agreed to produce any log or report that may
be maintained by Maryland Casualty or Farmers concerning complaints made by
consumers with respect to commercial property claims. Additionally, Defendants
agreed to produce documentation of Farmers’ net worth upon the parties’ agreement
that such information shall be subject to the protective order entered by this court
on November 19, 2014 [DE #109]. Accordingly, the court orders production of such
material.
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3.
Fifth Request for Production
In lieu of any further written response to requests #6-14, the parties have
agreed that Plaintiff should be permitted to depose affiants Christopher Shawn
Carder and Lance Fuller (see Affidavits at DE #46-7, #46-8) in their respective
states of residence. The depositions of these individuals shall be limited to the
contents of their respective affidavits, any testimony provided at the deposition, and
any follow-up questions responsive to their testimony. Plaintiff shall be permitted
four hours for each deposition, which shall include any redirect/rebuttal time;
provided, however, that if Defendants’ cross-examination of a deponent shall exceed
one hour, then Plaintiff shall be given one-half of the time exceeding one hour, in
addition to any time reserved for redirect/rebuttal.
Plaintiff’s motion to compel Defendants to respond to requests #15 and #16 is
denied.
4.
Sixth Request for Production
Prior to the hearing in this matter, Plaintiff withdrew his motion as to
requests #16-20 (see Jt. Status Rep. [DE #112] at 6) but seeks to compel further
responses to requests # 1-15 of his Sixth Request for Production.
As to these
requests, the court orders as follows:
a.
#1 – Plaintiff withdrew this request at the hearing;
b.
#2 (customer surveys) – the court denies Plaintiff’s request;
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c.
#3-7 (audits) – Defendants shall produce, within twenty-one
days, any Quality Assurance or SCR Team audits of claims adjusted by
Brown or Sprecker from 2010-2012.
d.
#8-9 (caseload or performance) – Defendants shall produce,
within twenty-one days, any reports or tracking documents concerning the
caseload or performance of Brown or Sprecker from 2010-2012.1
e.
#10-12 – Plaintiff’s motion as to these requests is deemed moot
in light of the court’s ruling herein ordering an in camera inspection of
certain personnel records.
f.
#13-15 (reports of litigation) – Plaintiff’s request for this
information is denied in light of defense counsel’s representations that the
only type of cases tracked by Defendants responsive to this request are bad
faith claims and there have been no bad faith claims filed from 2010-2012.
D.
Motion for Protective Order from Rule 30(b)(6) Depositions [DE #81]
In this motion, Defendants seek to prevent Plaintiff from conducting Rule
30(b)(6) depositions of Maryland Casualty and Zurich American Insurance
Company, notice of which was made in response to Defendants’ answers to requests
for admission propounded by Plaintiff. Defendants’ motion is dismissed as moot in
light of the court’s ruling with respect to the Motion for Protective Order at DE #52.
As to Sprecker, this applies only to any caseload carried separately by
Sprecker and shall not be construed to require the production of any reports or
tracking documents concerning caseloads of other employees supervised by
Sprecker.
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E.
Motion to Compel [DE #89]
At the hearing of this matter, Plaintiff withdrew his objections to Defendants’
responses to his First Requests for Admissions.
Accordingly, this motion is
dismissed as moot.
F.
Scheduling Matters
The discovery deadline previously set in this case has passed.
However,
given the discovery recently made in this case, as well as the disclosures ordered
herein, the court orders that the discovery deadlines be extended for a reasonable
period of time in order to allow the parties sufficient time to provide and review any
additional discovery, to conduct the depositions authorized herein, to give the
parties’ experts time to review any relevant materials prior to completion of their
expert reports, and for completing expert depositions. With the exception of expert
discovery and the discovery authorized herein, no further discovery shall be
propounded by either party without leave of court.
In order to assist the court in entering a new scheduling order, the parties
shall confer in person or by telephone and submit to the court, on or before January
5, 2015, a proposed amended Rule 26 discovery plan for the court’s consideration.
Plaintiff’s motion to extend discovery [DE #75] and Defendants’ motion to extend
expert disclosures and subsequent deadlines [DE #106] are granted in part, denied
in part, and dismissed as moot in part.
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CONCLUSION
The court hereby orders as follows:
1.
Plaintiff’s Motion to Compel Discovery Responses [DE #32] is
GRANTED IN PART and DENIED IN PART as more fully set forth herein;
2.
Defendants’ Motion for Protective Order from Plaintiff’s Request for
Additional Depositions [DE #52] is GRANTED IN PART and DENIED IN PART as
more fully set forth herein;
3.
Plaintiff’s Motion to Compel (re: Plaintiff’s Multiple Discovery
Requests) [DE #73 and #110] is GRANTED IN PART, DENIED IN PART and
DISMISSED AS MOOT IN PART as more fully set forth herein;
4.
Plaintiff’s Motion to Extend Discovery [DE #75] is GRANTED IN
PART, DENIED IN PART and DISMISSED AS MOOT IN PART as more fully set
forth herein;
5.
Defendants’ Motion for a Protective Order from Rule 30(b)(6)
Depositions [DE #81] is DISMISSED AS MOOT as more fully set forth herein;
6.
Plaintiff’s Motion to Compel Defendant to Provide Better Responses to
First Request for Admissions [DE #89] is DISMISSED AS MOOT;
7.
Defendants’ Motion to Extend Expert Disclosures and Subsequent
Deadlines Pending Ruling on Pending Discovery Motions [DE #106] is GRANTED
IN PART, DENIED IN PART and DISMISSED AS MOOT IN PART as more fully
set forth herein;
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8.
The parties shall confer in person or by telephone and submit to the
court, on or before January 5, 2015, a proposed amended Rule 26 discovery plan for
the court’s consideration;
9.
Disclosure of any information concerning Farmers’ net worth shall be
subject to the protective order entered by the court on November 19, 2014
[DE #109];
10.
Plaintiff’s Motion to Amend/Correct its Motion to Compel [DE #110] is
GRANTED and the motion filed therein is deemed filed; and
11.
The clerk is DIRECTED to remove the images at DE #46 and #73
pursuant to the court’s November 7, 2014, orders [DE #101, #102].
This 3rd day of December 2014.
____________________________________
KIMBERLY A. SWANK
United States Magistrate Judge
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