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Ebert v. Secura Insurance

United States District Court, E.D. Missouri, Eastern Division

November 13, 2019

PHILIP V. EBERT Plaintiff
v.
SECURA INSURANCE Defendant

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff's Motion to Compel pursuant to Federal Rule of Civil Procedure 26 (ECF No. 29) and Plaintiff's Motion for Extension of Plaintiff's Expert Disclosure Deadline. (ECF No. 31). The matters are fully briefed and ready for disposition.

         DISCUSSION

         Plaintiff's cause of action arises out of a motor vehicle collision that occurred on or about October 28, 2015. Plaintiff was driving a dump truck for Schaefer Hauling, Inc. when he was struck by a vehicle driven by Gregory Newlon. Mr. Newlon's insurance company tendered its policy limits to the injured parties in the amount of $16, 666.67 each. Schafer Hauling, Inc. is insured by Defendant Secura Insurance. Plaintiff seeks underinsured motorist coverage in this case. Plaintiff asks the Court to compel a response to Interrogatories Nos. 4, 5, 13, 14, 16, 17 and Requests for Production Nos. 1, 6-9, 15, and 16, and requests that the Court compel the Defendant to turn over its privilege log in this case. The Interrogatories and Requests specifically state:

Interrogatory 4: State whether you have any photographs of the vehicles involved in the occurrence described in Plaintiff's Petition and the following: (a) [s]tate the name and address of the person presently having control or custody of each photograph; and, (b) [a]ttach copies of said photos to your answers.
Interrogatory 5: Are you aware of any statement made by Plaintiff regarding the occurrence mentioned in the Petition, whether oral, written or recorded in any way, including but not limited to, a stenographic, mechanical, electrical, audio, video, motion picture, photograph or other recording, or transcription thereof, and if so, please state the following: (a) [d]ate, place and time taken; [n]ame and address of the person or persons connected with taking it; (c) [n]ames and addresses of all persons present at the time it was taken; [w]hether the statement was oral, written, shorthand, recorded, taped etc.; € [w]as it signed; (f) names and addresses of the persons or organizations under whose direction and upon whose behalf it was taken or made; and (g) [p]lease attach an exact copy of the original of the statement, interview, report, film or tape to your answers to these interrogatories; if oral please state verbatim the contents thereof.
Interrogatory 13: List the names, addresses, and job titles of all employees and agents of Defendant involved in evaluating Plaintiff's underinsured motorist benefits claims and all such individuals involved in ultimate decisions regarding payment of such benefits to Plaintiffs.
Interrogatory 16: State whether Defendant conducted any investigation into whether Defendant Garry Davis[1] was an underinsured motorist as defined by Defendant's insurance policy at issue. If so, state: (a) [t]he names and address of each person performing such investigation; (b) [t]he date the investigation was performed; and (c) the determination ultimately made.
Interrogatory 17: State whether or not statements have been obtained from any witnesses with regard to the facts or circumstances surrounding the occurrence at issue and, if so state the following: (a) [t]he names, addresses and employers of persons whose statements were obtained; (b) [t]he date, time, and place of the taking of each statement; (c) [n]ames and addresses of all persons present at the time each statement was taken; (d) [w]as the statement oral, written or recorded? (e) Was it signed? (f) Names and addresses of persons organizations under whose direction and upon whose behalf each statement was taken; and (g) [n]ame, addresses, employer, and job title of the person presently having control or custody of each statement.
Answer: Defendant objects to this Interrogatory because it seeks information protected from discovery under the work-product doctrine. Defendant's investigation, evaluation, and decision-making processes with regard to Plaintiffs claims, including any photographs, were undertaken in anticipation of and in preparation for litigation. See Fed.R.Civ.P. 26(b); State ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. O'Malley, 898 S.W.2d 550, 552-53 (Mo. banc 1995). An insurer's file for and actions taken on a first-party claim, including its investigations, evaluations, and decision-making processes with respect to whether coverage is or may be available, the claimant insured's damages, or otherwise, are work product and are protected from discovery. See generally State ex rel. State Farm Mut. Auto. Ins. Co. v. Keet, 601 S.W.2d 669 (Mo.Ct.App. 1980); State ex rel. Safeco Nat'l Ins. Co. of Am. v. Rauch, 849 S.W.2d 632 (Mo.Ct.App. 1993).
Defendant also objected to Interrogatories No. 13 and 16 on the basis of attorney-client privilege and that it is beyond the scope of discovery; that it is overly broad and seeks information not relevant or reasonably calculated to leaf to the discovery of admissible evidence.
Interrogatory 14: State in detail the basis of Defendant's refusal to pay underinsured motorist benefit to Plaintiffs in this case.
Answer: Defendant denies that it refused to pay underinsured motorist benefits to Plaintiff. Defendant made several offers to pay underinsured motorist benefits pursuant to the terms, conditions, and exclusions of the policy which were rejected by Plaintiff.

(ECF No. 29-1).

Request for Production 1: All photographs taken of the vehicles, persons and scene involved in the subject wreck mentioned in Plaintiff's Petition;
Request for Production 6: Documents that are identified in, relating to, or relied upon in formulating your answers to any of Plaintiff's Interrogatories to Defendant;
Request for Production 7: Transcripts, recordings, and/or summaries of statements from any person stating or claiming to have facts relevant to the subject motor vehicle collision and/or Plaintiff's injuries obtained by or available to Defendant before litigation;
Request for Production 8: Defendant's entire pre-litigation claim file and all claims documents regarding the subject wreck and ...

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