Advance Cable Company, LLC et al v. The Cincinnati Insurance Company
Filing
93
ORDER granting in part and denying in part 82 Motion to Compel. Signed by District Judge William M. Conley on 1/2/14. (rep)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ADVANCE CABLE COMPANY, LLC
and PINEHURST COMMERCIAL
INVESTMENTS, LLC,
Plaintiffs,
OPINION & ORDER
v.
13-cv-229-wmc
THE CINCINNATI INSURANCE
COMPANY,
Defendant.
In this civil action, plaintiffs Advance Cable Company, LLC and Pinehurst
Commercial Investments, LLC (collectively, “Advance Cable”) have sued The Cincinnati
Insurance Company (“Cincinnati Insurance”) for breach of contract and bad faith in failing
to pay for denting to a commercial building caused by hail in April 2011. The court held a
telephonic hearing on plaintiffs’ Motion to Compel Discovery (dkt. #82) today. Much of
the discovery that plaintiffs seek is related to their bad faith claim, which requires plaintiffs
to proffer some evidence of objective unreasonableness on Cincinnati Insurance’s part.
Because the court does not find that plaintiffs have met that initial burden to date, it will
deny the motion to compel with respect to bad faith discovery at this time.
Some of
plaintiffs’ requests do require an answer at this stage, however, and so the court will order
Cincinnati Insurance to respond to those requests.
Under Wisconsin law, “a prerequisite to discovery in a bad-faith case is . . . some
evidence that what the insurance company did was objectively unreasonable because there is
no claim for bad faith if it was not.” Farmers Auto. Ins. Ass’n v. Union Pac. Ry. Co., 2008 WI
App 116, ¶ 26, 313 Wis. 2d 93, 756 N.W.2d 461. The court does not find that plaintiffs
have met that burden, at least not at this stage of the case. Cincinnati Insurance’s position
is based on a February 2012 report from an outside expert indicating that any denting to
the roof did not affect the roof’s structural integrity, nor was it visible from the ground.
This assessment, which plaintiffs apparently did not controvert until September of 2013,
suggests that even if Cincinnati Insurance is ultimately wrong, their position -- that the
roof’s value was unaffected and that, accordingly, there was no compensable loss -- is at least
objectively reasonable. Therefore, at this point in the litigation, plaintiffs have not shown
they are entitled to discovery on their bad faith claim.
Some of plaintiffs’ discovery requests are not limited to their bad faith claim,
however, and so the court will grant their motion as regards defendants’ objections to those
requests.
First, with regard to Request No. 2, which seeks communications between
Advance Cable and Cincinnati Insurance regarding the Policy, the court will strike
Cincinnati Insurance’s objection and order it to respond. With regard to Requests Nos. 3
and 4, which seek the underwriting files, the court will grant those requests to the extent
that the files contain information on the condition of the roof at issue in this case before or
after the hailstorm.
With regard to Request No. 5, which seeks the Atmospheric and
Environmental Research Hail Damage Score regarding the property, the court strikes
Cincinnati Insurance’s objection and orders it to respond to the request. With regard to
Request No. 6, which seeks the claims file or files regarding the subject hail damage, the
court will also order Cincinnati Insurance to produce that discovery to the extent that the
file contains information on the condition of the roof at issue before or after the hailstorm.
Finally, with regard to Request No. 31, which seeks “[a]ll documents regarding the Property
not produced in response to any request for production above,” the court orders Cincinnati
2
Insurance to respond to this “catch-all” request except as it concerns objections interdicted
by defendant and upheld by this court with respect to discovery regarding plaintiffs’ bad
faith claim.
Except as noted above, the court finds that the remainder of the information
plaintiffs seek is protected by attorney-client and work product privileges and denies the
remainder of plaintiffs’ motion at this time.
ORDER
IT IS ORDERED that plaintiffs’ Motion to Compel Discovery (dkt. #82) is
GRANTED IN PART and DENIED IN PART, consistent with the opinion above.
Entered this 2nd day of January, 2014.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?