Robertson et al v. Cincinnati Life Insurance Company et al

Filing 51

MEMORANDUM OPINION and ORDER granting in part and denying in part Plaintiff's 41 MOTION for an Order Compelling Discovery, as more fully set forth herein; directing Defendant to provide Plaintiff with the information specified herein as relates to Interrogatories 16 and 24 within 10 days of the date of this Order. Signed by Magistrate Judge Cheryl A. Eifert on 4/18/2017. (cc: counsel of record) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
HEATHER ROBERTSON,
Individually and as the personal
Representative of Jon Robertson,
deceased,
Plaintiff,
v.

Case No.: 3:16-cv-04242

THE CINCINNATI INSURANCE
COMPANY,
Defendant.

MEMORANDUM OPINION and ORDER
Pending is Plaintiff’s Motion for an Order Compelling Discovery. (ECF No. 41).
Defendant has filed a memorandum in opposition to the motion, and Plaintiff has filed a
reply brief. (ECF Nos. 45, 46, 47, 48). Therefore, the matter is fully briefed, and oral
argument is not necessary to resolve the issues in dispute. For the reasons that follow, the
court GRANTS, in part, and DENIES, in part, the motion to compel.
Plaintiff, Heather Robertson, alleges that Defendant, The Cincinnati Insurance
Company (“TCIC”), is liable for breach of insurance contract, violations of the West
Virginia Unfair Trade Practices Act, common law bad faith, and breach of reasonable
expectations related to a life insurance policy covering the decedent, Jon Robertson. On
January 20, 2017, Plaintiff served TCIC with interrogatories and requests for the
production of documents. TCIC answered the discovery requests; however, Plaintiff was
not satisfied with all of the responses. The parties exchanged correspondence regarding
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the alleged deficiencies and managed to resolve some, but not all, of their differences.
Plaintiff then filed the instant motion to compel. After the motion was filed, the parties
continued to confer and narrow the issues in dispute. Currently at issue are TCIC’s
answers to Interrogatory No. 16, and Requests for the Production of Documents Nos. 13,
17, 23, 24, 26, and 27.
Interrogatory No. 16
Interrogatory No. 16 asks TCIC to “identify and describe the procedure used by
Defendant with respect to any information it obtained from MIB, Inc. with respect to
applicant.” (ECF No. 41-1 at 7). TCIC responded: “The information obtained from the MIB
is reviewed as part of the underwriting process.” (ECF No. 41-3 at 6). Plaintiff argues that
this response is inadequate, because it fails to describe the procedure used. (ECF No. 42
at 4). According to Plaintiff, “it is illogical to thing [sic] that Cincinnati Life requires its
underwriters to obtain information from MIB, Inc., but that it provides no guidance on
the procedure used to review the information obtained.” (ECF No. 48 at 4). TCIC contends
that the procedure “is a simple one of which no further explanation can be made.” (ECF
No. 46 at 3).
While TCIC’s answer to the interrogatory may be correct and complete as written,
if there was any other guidance or instruction provided by TCIC to its underwriter
regarding how to handle, use, and store information about Jon Robertson provided by
MIB, Inc., Plaintiff is entitled to discover the nature of that guidance or instruction.
Therefore, to the extent such guidance or instruction was given, TCIC shall supplement
its response in ten (10) days of the date of this Order and provide that information. If
there was no other guidance or instruction provided, then TCIC shall supplement its
response and indicate so.
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Request Nos. 13 and 17 (financial information)
Plaintiff seeks production of TCIC’s financial statements, profit and loss
statements, and federal income tax returns for the years of 2012 through 2016. Plaintiff
alleges that this information is relevant to her claim for punitive damages. (ECF No. 42 at
11-12). TCIC objects, arguing that the requests are premature given that Plaintiff has not
demonstrated a viable claim for punitive damages. (ECF No. 46 at 11). In reply, Plaintiff
asserts that she has provided TCIC with multiple affidavits, which establish that TCIC
failed to conduct a fair evaluation of her claim. (ECF No. 48 at 5-6). Therefore, she
believes she has met her burden and, thus, is entitled to TCIC’s financial information.
This Court has previously held that a plaintiff must “make a prima facie claim for
punitive damages before being entitled to discovery of a defendant's financial records. To
make a prima facie claim for punitive damages ... a plaintiff must produce some factual
evidence in support of her claim.” Robinson v. Quicken Loans Inc., No. CIV.A. 3:12-0981,
2013 WL 1704839, at *4 (S.D. W. Va. Apr. 19, 2013). Surviving a motion for summary
judgment, or filing a motion to compel “that includes sufficient supporting evidence (i.e.,
affidavits, documentary evidence) to demonstrate a viable claim for punitive damages”
are two avenues by which Plaintiff may make such a showing in this case. Id. at n. 3.
Plaintiff has not survived a summary judgment motion on punitive damages, because no
such motion has been filed and is not due to be filed until October. Moreover, Plaintiff
supplied no evidence with her motion to compel to demonstrate to the court a viable
punitive damages claim. Accordingly, as Plaintiff has not made a sufficient factual
showing to justify an order compelling production of TCIC’s financial records, her motion
to compel Requests for Production of Documents Nos. 13 and 17 is DENIED as
premature.
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Request Nos. 23, 24, 26 and 27 (insurance department and bad faith
complaints; audits and market conduct examinations)
Plaintiff requests (1) all insurance department complaints against TCIC within the
last 10 years; (2) a list of all bad faith complaints filed against TCIC in the last 10 years;
(3) all documents relating to reviews and audits of TCIC’s claims handling in the last five
years; and (4) all documents relating to market conduct examinations made in the last
five years. TCIC indicates that it provided Plaintiff with responses pertaining to the State
of West Virginia, but objects to further production on the basis that the requests are not
geographically limited to West Virginia and, consequently, are overly broad and
burdensome. Plaintiff asserts, to the contrary, that TCIC likely has all of this information
electronically stored, and the requested reports can be generated “with a few keystrokes.”
(ECF No. 48 at 8-9).
At the outset, the undersigned notes that TCIC has not provided any evidentiary
support for its claim of burdensomeness. Conclusory and unsubstantiated allegations are
simply insufficient to support an objection based on the grounds of annoyance,
burdensomeness, oppression, or expense. Convertino v. United States Department of
Justice, 565 F. Supp.2d 10, 14 (D.D.C. 2008) (the court will only consider an unduly
burdensome objection when the objecting party demonstrates how discovery is overly
broad, burdensome, and oppressive by submitting affidavits or other evidence revealing
the nature of the burden); Cory v. Aztec Steel Building, Inc., 225 F.R.D. 667, 672 (D. Kan.
2005) (the party opposing discovery on the ground of burdensomeness must submit
detailed facts regarding the anticipated time and expense involved in responding to the
discovery which justifies the objection); Bank of Mongolia v. M & P Global Financial
Services, Inc., 258 F.R.D. 514, 519 (S.D. Fla. 2009) (“A party objecting on these grounds
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must explain the specific and particular way in which a request is vague, overly broad, or
unduly burdensome. In addition, claims of undue burden should be supported by a
statement (generally an affidavit) with specific information demonstrating how the
request is overly burdensome”).
Nevertheless, the undersigned agrees with TCIC regarding the overly broad nature
of three of the requests. Rule 26(b)(1) outlines the scope of discovery:
[U]nless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense and proportional to the needs
of the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
Accordingly, to be discoverable, information must be nonprivileged, relevant, and
proportional to the needs of the case. From a proportionality standpoint, a request for all
insurance department complaints filed against TCIC in all 49 states in which it does
business, regarding all types of matters, is simply too broad-based to constitute discovery
focused on the claims and defenses in this case. Undoubtedly, much of the information
that would be received in response to such a request would be entirely irrelevant to
Plaintiff’s situation. If Plaintiff truly searches for similar claims to show “other instances
of misconduct” and to demonstrate a “pattern and practice,” (ECF No. 42), then the
request should be tailored to the facts of this case. For the same reason, Plaintiff’s request
for claims handling reviews and audits for each individual, unit, office, and region, as well
as her request for all documents related to all market conduct examinations conducted in
all 49 states, are facially disproportionate to the needs of the instant action. Therefore,
Plaintiff’s motion to compel answers to Requests for Production Nos. 23, 26, and 27 is
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DENIED.
On the other hand, with respect to the request for information regarding “bad
faith” lawsuits, providing a list of similar suits should not be particularly onerous, and the
resulting information should be more informative than generic insurance department
complaints. Plaintiff asks for a list of the cases filed against TCIC in the last ten years,
including style, jurisdiction, and disposition. That request seeks relevant information and
is not disproportionate to the case. Furthermore, TCIC offers no factual basis upon which
the court can conclude that collecting the information would be burdensome. Therefore,
Plaintiff’s motion to compel Request for Production of Documents No. 24 is GRANTED.
Within ten (10) days of the date of this Order, TCIC is ORDERED to supply Plaintiff
with a list of all bad faith lawsuits filed against it during the last ten (10) years, which
involve an allegation that TCIC wrongfully denied a claim for life insurance benefits on
the ground of material misrepresentation by the applicant. Plaintiff is granted leave to reassert her motion to compel additional responsive information pertinent to these requests
should the information produced by TCIC Mutual provide a factual ground justifying a
broader search.
The Clerk is directed to provide a copy of this Order to counsel of record.
ENTERED: April 18, 2017

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