United States District Court, W.D. Missouri, Western Division
ORDER ON DISCOVERY DISPUTE
KAYS, CHIEF JUDGE
case involves an insurance coverage dispute. Now before the
Court is a discovery dispute between the parties concerning
certain deposition and request for production topics.
reviewing the parties' memoranda regarding the discovery
dispute (Docs. 85, 87, 88, 89) and hearing argument from
counsel during a teleconference on October 27, 2017, the
Court rules as follows.
is a development company who intends to develop the former
Sunflower Ammunition Plant (“Plant”) for
commercial use. Central to this case is the coverage of two
insurance policies, Premise Pollution Liability
(“PPL”) and Remediation Cost Containment
case is being managed in two phases. The first phase
addressed whether the PPL policy excluded particular polluted
areas of the Plant. The second phase addressees what costs
qualify for coverage under the PPL policy.
deciding the issues on summary judgment in phase one, the
Court found none of the exclusions to the PPL policy excluded
coverage of the pollution conditions at issue. Relevant to
this discovery dispute, the Court also ruled: (1) The
insurance policies are unambiguous; (2) Endorsement 001 of
the PPL policy did not contain “mirroring
language” as to exclude from coverage all things
covered by the RCC policy; and (3) It was unable to determine
whether the pollution conditions at issue were covered by the
RCC policy, because that issue was not properly before the
Court in phase one.
of phase two discovery, Plaintiff objects to certain
categories of documents Defendant is seeking, and certain
deposition topics posed in preparation for a 30(b)(6)
deposition of Plaintiff's representative on two bases.
First, it asserts the topics are irrelevant because they seek
to uncover extrinsic evidence of what the parties intended
when formulating the insurance contracts, which is
unnecessary given the Court's finding the policies are
unambiguous. Second, it argues topics relating to whether the
policies provide overlapping coverage is irrelevant because
the Court rejected this argument its order on summary
argues this information is necessary because it is relevant
to their defense and supports their theory that Plaintiff
engaged in a particular course of conduct in the year prior
to this lawsuit. Defendant asserts the Court has not decided
whether the policies overlap so seeking this information
should not be foreclosed.
Plaintiff's objection request for production topics 13
and 14, and deposition topics 9 and 12 is sustained.
parol evidence rule is one of substantive law, Sylvia v.
Wisler, No. 13-2534-EFM-TJJ, 2015 WL 6454794, *3 (D.
Kan. Oct. 26, 2015), and accordingly, Kansas law
applies.Under Kansas law, “if an insurance
policy's language is clear and unambiguous, it must be
taken in its plain, ordinary, and popular sense.”
O'Bryan v. Columbia Ins. Grp., 56 P.3d 789, 792
(Kan. 2002); Liggatt v. Emp'rs Mut. Cas. Co., 46
P.3d 1120, 1125 (Kan. 2002) (“If the terms of the
contract are clear, there is no room for rules of
construction, and the intent of the parties is determined
from the contract itself.”).
parol evidence rule prohibits the admission of extrinsic
evidence to vary or contradict the terms of a written
agreement when the contract is unambiguous. Sylvia,
2015 WL 6454794 at *3. This includes agreements,
understandings, and negotiations made prior to or
contemporaneous with the execution of the contract.
Id. While the parol evidence rule is an evidentiary
rule that limits what is admissible and not what is
discoverable, it is proper to refuse discovery where
all of the discoverable evidence would be excluded by the
parol evidence rule. Metro. Life Ins. Co. v.
Muldoon, No. CIV.A. 06-2026CMDJW, 2007 WL 4561142, at *5
(D. Kan. Dec. 20, 2007).
for production topics 13 and 14, and deposition topic 12 seek
information relating to the negotiation of the insurance
policies. The Court finds the negotiations between the
parties, which occurred prior to executing the contract,