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Brighton Crossing Condominium Association v. American Family Mutual Insurance Co.

United States District Court, W.D. Missouri, Western Division

September 6, 2016

BRIGHTON CROSSING CONDOMINIUM ASSOCIATION, ET AL., Plaintiffs,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.

          ORDER

          FERNANDO J. GAITAN, JR. UNITED STATES DISTRICT JUDGE

         The parties have contacted the Court regarding disagreements related to discovery issues. The Court requested that the parties brief these issues and after reviewing the briefs, the Court hereby rules as follows.

         Defendant's Interrogatory No. 2: Describe the damage which you claim was sustained by each Property by reason of the event set forth in the Complaint and indicate when the damage ended and the date said damage ended.

         ANSWER: Each of the Subject Properties referenced in Plaintiffs' Complaint sustained damage from the wind and hail events on the date of the Subject Storm referenced in Plaintiffs' Complaint. In addition, for detail of each of the Subject Properties, please see documents produced in Plaintiffs' Rule 26 disclosures, bates labeled Brighton 000208-000559 and 000666-000697.

         American Family states that most of the documents referenced comprise plaintiff's expert report, but this does not specify the type of damage sustained by each property. Plaintiffs state that their expert report documents damage requiring replacement of all siding and all roofing in order to repair the damage and match materials. Plaintiffs also state that defendant is scheduled to inspect the properties on September 8 and defendant may document every damaged piece of siding and every damaged roof shingle if they wish. American Family acknowledges that Rule 33(d) permits production of documents in lieu of providing a response, but states that it cannot be used as a procedural device to avoid the duty to give information by shifting the obligation to find out whether information is ascertainable from the records. American Family states that plaintiffs' answer to Interrogatory No. 2 does not describe the type of damage suffered by each building. The Court agrees with American Family and finds that plaintiffs must supplement their response to this interrogatory. The expert report which plaintiffs refer to in their response simply lists line items broken down by each unit of what it would cost to replace the roofs, gutters, siding and various other items. There are also photos of the various buildings and other items such as downspouts, air conditioners, etc. but there is no narrative description as to what the damage is to these items. As the Court stated in Handi-Craft Co. v. Action Trading, S.A., No. 4:02CV1731LMB, 2004 WL 6043510 (E.D.Mo. May 21, 2004):

Regarding the specificity of the documents identified, “[t]he option afforded by Rule 33(d) is not a procedural device for avoiding the duty to give information.” In Re G-I Holdings, Inc., 218 F.R.D. 428, 438 (D.N.J. 2003). Further, “[t]he responding party may not avoid answers by imposing on the interrogating party a mass of business records from which the answers cannot be ascertained by a person unfamiliar with them.” R.W. Thomas Construction Management Co., Inc., 1995 WL 592539 at *1; see also T.N. Taube Corp., 136 F.R.D. [449], at 455 (“[D]irecting the opposing party to an undifferentiated mass of records is not a suitable response to a legitimate request for discovery”)(quotation omitted) . . .Thus, the interrogated party must specify the records from which the answers may be gleaned. “Otherwise, [the interrogated party] must completely answer the interrogatories without referring to the documents.” Pulsecard, Inc. v. Discover Card Services, Inc., 168 F.R.D. 295, 305 (D.Kan.1996).

Id. at * 5-6.

         Interrogatory No. 3: State the names and address of all general contractors who have treated, examined or inspected the properties, since the event in question and who provided repair services for any damages you referred to in your Complaint and for each listed state: the name and address, dates of treatment, examinations or inspections, nature of any and all treatments, examinations or inspections; amount of expenses and provide copies of bills.

         ANSWER: K2 Consulting & Services, LLC - inspected in December 2014; TASK Construction - inspected July 2014 and have performed various repairs while this matter is pending; DOTec Corp. - inspected July 2014; Foundation Engineering Specialists, LLC - inspected August 2014. In addition see documents produced in plaintiffs Rule 26 disclosures, defendant's employees and retained consultants inspected the properties.

         American Family states that this answer does not breakdown the services according to each building and also fails to supply information about the nature of the work completed, the costs of the work provided and copies of bills or invoices verifying the work done.

         Plaintiffs state that they the documents they identified in their response reflect further details in the engineering reports, estimates, etc. Plaintiffs assert that their original answer is complete and also state that TASK Construction is a retained non-testifying consultant and their contact with plaintiffs is not discoverable.

         For the same reasons as stated above, plaintiffs are hereby directed to supplement their response to this interrogatory with the nature of the work completed, costs of work and copies of bills or invoices verifying the work done. As discussed below, plaintiffs are not required to provide this information with regard to TASK Construction, as they are a retained non-testifying expert.

         Interrogatory No. 10: Describe in detail and give a complete list of any and all financial losses, of any nature which you claim to have sustained by reason of the occurrence set forth in the Complaint.

         ANSWER: Plaintiff have incurred financial losses including the cost of storm damage repairs which are insured by Defendant, costs of mitigation repairs in the amount of approximately $10, 000 to $15, 000 in labor and materials, costs of litigation, costs for legal ...


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