Pollock v. State Farm Mutual Automobile Insurance Company

Filing 38

OPINION AND ORDER granting 32 Motion for Protective Order. Signed by Magistrate Judge Terence P Kemp on 6/12/12. (jcw1) Modified text on 6/13/2012 (sr1).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Constance J. Pollock,

:

Plaintiff,

:

v.

:

State Farm Mutual Automobile
Insurance Company,
Defendant.

Case No.

2:11-cv-581

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
OPINION AND ORDER

This insurance case is before the Court for a ruling on
defendant State Farm Mutual Automobile Insurance Company’s motion
for a protective order.

The motion relates to a Rule 30(b)(6)

notice of deposition served by plaintiff Constance J. Pollock and
an associated document request.

For the following reasons, the

motion for a protective order will be granted.
I.
The basic facts of this case are simply stated.
was involved in a rear-end collision in 2009.
back injury.

Ms. Pollock

She suffered a

State Farm insured the driver of the car, and Ms.

Pollock qualified as an “additional insured” under the policy.
Ms. Pollock sought and obtained medical treatment following
the accident.
Farm.

She submitted over $47,000.00 in bills to State

It refused to pay them in full.

The unpaid bills related

to “lap band” surgery which was designed to help Ms. Pollock lose
weight.

State Farm refused to pay those bills because, in its

view, that surgery was not related to the accident.

Ms. Pollock

takes the opposite position, and has sued not only for payment of
the bills, but for compensatory and punitive damages based on
State Farm’s alleged bad faith in denying the claim.

The parties have agreed that both discovery related to the
bad faith claim, and the trial of that issue, should be deferred
until after a decision is made on the coverage issue.

However,

they apparently do not agree on where to draw the line between
discovery relating to coverage and discovery relating to bad
faith.

Ms. Pollock has served a Rule 30(b)(6) deposition notice

on State Farm which includes topics which, State Farm argues,
relate only to the bad faith claim.

The same issue exists with

respect to a document request which accompanied the deposition
notice.

When the parties could not work out their differences on

this matter, State Farm filed its motion for a protective order.
Responsive and reply memoranda have also been filed, and the
motion is now ready to decide.
II.
According to the motion for a protective order, the only
topics at issue are topics (c), (e), and (f) contained in the
Rule 30(b)(6) deposition notice and items (d), (f), and (g) of
the document request.

State Farm describes these six items as

relating to four different topics:
(1) State Farm’s “policies and procedures” with
respect to the handling or adjustment of other claims
for medical payments coverage;
(2) “Goals, objectives, or targets” established by
State Farm with respect to medical payment coverage
claims from 2007 through 2012;
(3) “Bonus or other incentive programs” for State
Farm employees connected to the attainment of “goals,
targets, or objectives” with respect to claims for
medical payments coverage; and
(4) Criteria used for evaluating the performance
of State Farm’s employees for the handling of other
medical payment coverage claims.
State Farm’s Motion for Protective Order, Doc. 32, at 7-8.

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State

Farm asserts that none of these topics relate to the breach of
contract claim, which, reduced to its essence, involves a
determination of whether the bills submitted for the surgery
which Ms. Pollock underwent were, under the terms of the policy,
“reasonable medical expenses incurred, for bodily injury caused
by accident ....”

That, State Farm says, is an objective inquiry

involving medical testimony about the relatedness of the lap band
surgery and Ms. Pollock’s back injury, and information about how
State Farm compensated its employees based on their claims
performance would shed no light on the coverage issue (but might
well be relevant to the bad faith claim).
In her opposing memorandum, Ms. Pollock does not disagree
that this information relates to her bad faith claim; she alleges
that State Farm had a program in place which rewarded employees
who were able to settle insurance claims at less than market
value, and therefore encouraged employees to deny even legitimate
claims in order to earn bonuses.

However, she argues that this

information also relates to the credibility of State Farm’s
witnesses.

In her words, “[t]he jury cannot properly weigh the

credibility of any State Farm witness without knowing what
corporate incentives, if any, may be influencing their
testimony.”

Memorandum in Opposition, Doc. 34, at 5.

She also

analogizes this case to an ERISA benefits case where, even though
bad faith claims may not be asserted, the Courts have routinely
allowed discovery on the issue of whether the decision-maker is
subject to bias in favor of the employer or the plan, and against
the claimant.

Id. at 4-5, citing, inter alia, Myers v.

Prudential Ins. Co. of America, 581 F.Supp. 2d 904, 906-07 (E.D.
Tenn. 2008).
While this is a creative argument, the Court agrees with
State Farm that any motives which its claims employees might have
had to deny Ms. Pollock’s claim are not relevant to the coverage
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issue - something which Ms. Pollock appears to concede - and that
the issue of credibility she has raised is nothing more than the
question of motive phrased in different words.

A case like this

one involves construction of the insurance contract - often done
by the Court without reference to extraneous evidence, and almost
never an issue where a witness’ credibility is a deciding or even
a relevant consideration - and expert testimony about the
relationship between a bodily injury and a medical procedure.

As

to the latter issue, there are, of course, some cases where
expert testimony is not needed, such as “[w]hen it is a matter of
common knowledge that a certain act may produce injury,” see
LeForge v. Nationwide Mut. Fire Ins. Co., 82 Ohio App. 3d 692,
700-01 (Clinton Co. 1992), but that is not the situation here,
nor would any such testimony likely come from State Farm
employees.

The Court cannot conceive of any way in which a

decision on the issue of the relationship between Ms. Pollock’s
injuries and her lap band surgery would turn on the credibility
of any testimony to be given by State Farm’s own employees,
unless those employees were being offered as experts (if they
have the requisite medical training) on the relatedness issue.
If that were to occur, State Farm would, of course, be required
to make a disclosure under Fed.R.Civ.P. 26(a)(2)(B), at which
point discovery on credibility issues might become relevant - but
only as to those witnesses who would be offering such testimony,
and not as to witnesses who will simply be testifying pursuant to
a 30(b)(6) deposition notice.
The same holds true for testimony about what the policy
language means.

Ordinarily, it is for the Court to construe

language in an insurance policy, and to do so based either on the
policy language or certain legal rules of contract construction.
As one Ohio court has explained it, if
[[t]he language of this policy is not ambiguous ... the
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case turns on the application of the language of the
policy to the facts... [and] no testimony [is] needed
to explain the plain meaning of the language used.
Even if the policy language [is] ambiguous, it is the
court that must decide what it means, based on well
known rules construing the language against the drafter
of the policy. Faruque v. Provident Life & Acc. Ins.
Co. (1987), 31 Ohio St.3d 34, 31 OBR 83, 508 N.E.2d
949, syllabus. No help is needed from the insurer in
this regard.
West American Ins. Co. v. Sluder, 119 Ohio App. 3d 211, 215
(Hamilton Co. 1997).

So it is very unlikely that the Court’s

decision about what the policy means would be influenced in any
way by testimony from State Farm employees; rather, the
likelihood is that they would not even be competent witnesses on
this issue.
State Farm has cited several cases from Florida that are
almost squarely on point.

See, e.g., Royal Bahamian Ass'n, Inc.

v. QBE Ins. Corp., 268 F.R.D. 692 (S.D. Fla. 2010).

That case

did leave open the possibility that this type of information
might be relevant if it had impeachment value, but, of course,
impeachment evidence is relevant only to the extent that a
witness has testified to some fact which is material to the
Court’s decision.

Again, it does not appear at this time that

the particular witnesses to whom this type of evidence applies,
namely the State Farm employees who processed this claim, will be
offering any evidence material either to the issue of what the
policy says and means about the relatedness of medical expenses
to an injury, or whether the required degree of relatedness
exists.

If that should change, the Court can, of course, revisit

this issue, but as things stand now, the Court agrees with State
Farm that the topics in the Rule 30(b)(6) notice and the document
request which State Farm has identified in its motion as being at
issue are irrelevant to the breach of contract part of the case.

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Since that is so, State Farm is entitled to a protective order at
this time.
III.
For the reasons set forth above, the motion of defendant
State Farm Insurance Company for a protective order (#32) is
granted.
IV.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp
United States Magistrate Judge

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