Cluck v. MetroCare Services - Austin, LP et al
ORDER DENYING 34 Motion to Compel. Signed by Judge Andrew W. Austin. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
METROCARE SRVCS-AUSTIN, L.P., et al. §
Before the Court are Plaintiff’s Motion to Compel (Dkt. No. 34), the responses of all
Defendants (Dkt. Nos. 42, 51, 52, and 53), as well as Plaintiff’s reply (Dkt. No. 67). The District
Judge referred the above motion to the undersigned for resolution pursuant to 28 U.S.C.
§636(b)(1)(A), FED. R. CIV. P. 72, and Rule 1(c) of Appendix C of the Local Rules. The Court held
a hearing on the motion on September 11, 2017.
Essentially, this case is a ten-year old slip-and-fall negligence action brought by Plaintiff
Alicia Cluck against her former employer, MetroCare Services-Austin, LP (MetroCare). Yet, after
years of stalling in state court, this case ended up in federal court over what is, in essence, a
discovery dispute. Cluck argues that MetroCare has failed to produce one or more insurance policies
that provide coverage to MetroCare for her claim against it. Not getting what she wanted from
MetroCare, and having been denied relief on a motion to compel in state court, Cluck proceeded to
sue GHS Property and Casualty Insurance Company (GHS), Fort Dearborn National Life Insurance
Company (FDL), National Casualty Company (National Casualty), and Acadian Ambulance Services
of Texas (Acadian) to attempt to find these policies she believes may exist, and that she claims are
somehow relevant to her claim against MetroCare. After the case was removed to federal court, at
the instruction of Judge Robert Pitman, Cluck filed the instant Motion to Compel seeking the policy
or policies she believes exist.
Setting aside the merits—or lack thereof—of the claims against each of these parties, the
evidence is undisputed that each Defendant has adequately searched for and produced any insurance
policy that might have a bearing on the claims Cluck is making against MetroCare. GHS and
Dearborn have stated that, despite a diligent search, they have been unable to locate a copy or the
original of the Combined Benefit Group Accident policy written by FDL, insuring MetroCare at the
time of Cluck’s injury.1 They have, however, located a copy of the standard form for that time
period, and have stated that they would stipulate that the relevant policy was written on those exact
terms. Similarly, they have not been able to locate the original or a copy of the Employer Liability
policy GHS issued to MetroCare for the time period including the date of Cluck’s injury, but have
produced the relevant form for that time period and made the same stipulation regarding that policy’s
National Casualty has produced in full the only insurance policy it issued to MetroCare
covering the time of the Plaintiff’s accident, which was a Commercial Auto Coverage policy. As
for Acadian, notwithstanding Plaintiff’s claims, it has no part in this case. Rather, it acquired the
assets of MetroCare on June 1, 2007, six months after the Plaintiff’s injury, and several months after
Plaintiff ceased working for MetroCare. Cluck’s argument that because Acadian was listed as an
“additional insured” under the National Casualty policy, it must have some potential liability to
Cluck, and because it must have some potential liability to Cluck, it must produce to her all of its
This policy provided health and disability coverage to MetroCare employees injured in the
course and scope of their employment. Indeed, Cluck received $388.39 in benefits under this policy
for the cost of emergency room services following her fall.
This policy provided coverage to MetroCare for defense costs and indemnity against claims
of negligence by MetroCare employees injured at work—the type of claim Cluck is making against
insurance policies during the time period of the fall, is totally baseless. The evidence is undisputed
that Acadian purchased the assets of MetroCare months after the fall; that Acadian expressly
disclaimed assuming any liabilities of MetroCare, and that its addition as a named additional insured
under the National Casualty policy had an effective date of June 1, 2007. Dkt. No. 52 at 121. In
short, Acadian never was a proper party to this lawsuit, and should never have been sued. It has
properly responded to Cluck’s demand for insurance policies that might offer coverage for her
injuries, by stating that it has none. Finally, MetroCare has properly responded as well, indicating
that it has done everything it can to locate any of these policies, and, having been out of business
since 2008, it was unable to find anything more than what it already produced in state court many
years ago. Moreover, given National Casualty’s, GHS’s and FDL’s responses, MetroCare’s inability
to locate a copy of the policies is effectively irrelevant.
This case has gone from a simple negligence action to a convoluted dispute due mainly to
Cluck’s insistence that these parties produce insurance policies which, by all accounts, they either
have already produced, or, to the extent they have not, appear not to exist. Because the Defendants
have fully and adequately responded to Plaintiff’s request for relevant insurance policies, Plaintiff’s
Motion to Compel (Dkt. No. 34) is DENIED.
SIGNED this 11th day of September, 2017.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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