The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
LINDA MOORE,
individually and on behalf of all
similarly situated insureds,
Plaintiff,
v. Case No.: 3:22-cv-00385
INDIAN HARBOR INSURANCE COMPANY;
NEPTUNE FLOOD INCORPORATED; and
PENINSULA INSURANCE BUREAU, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Compel. (ECF No. 28). The Court
GRANTS, in part, and DENIES, in part, the motion as follows:
Defendants Indian Harbor Insurance Company and Neptune Flood
Incorporated’s admissions are amended as reflected in their responses
served on December 21, 2022.
Defendants Indian Harbor Insurance Company and Neptune Flood
Incorporated are ORDERED to respond to Plaintiff’s First Set of
Interrogatories and Requests for Production of Documents within seven
(7) days of this Order. Any objections to the relevance or scope of these
discovery requests are waived by Defendants complete failure to respond,
but the Court will allow Defendants to assert valid claims of attorney-client
privilege and/or work product, if applicable, with an accompanying
privilege log.
Defendant Peninsula Insurance Bureau, Inc., is ORDERED to supplement
its responses to Interrogatory Nos. 1, 13, 14, 18, 19, 20, 21, 22, 23, 24, 25, 26,
and 27 and Request for Production of Documents Nos. 1, 2, 4, 10, 11, 12, 13,
and 15 within seven (7) days of this Order. Defendant Peninsula shall fully
respond to the discovery requests as worded with the exception of
Interrogatory Nos. 18 through 20, which the Court limits to Indian
Harbor/Neptune policies; Interrogatory Nos. 24 through 27, as explained
below; and Request for Production No. 2, which the Court limits to claims
for damage to real property. All other wording of the requests remains in
effect.
The Court denies the motion to compel with respect to Interrogatory Nos.
3, 12, and 17 and Request for Production of Documents Nos. 5 and 6.
The parties shall bear their own costs and attorney fees associated with this motion
and any discovery compelled by this order.
I. Relevant Facts
A. Amended Complaint
Plaintiff Linda Moore (“Plaintiff”) filed this action on behalf of herself and “all
similarly situated insureds” (the “putative class”), and Defendants removed it to federal
court based on diversity jurisdiction. (ECF Nos. 1, 1-1 at 15). Plaintiff asserts that she held
a flood insurance policy issued by Defendant Indian Harbor Insurance Company
(“Defendant Indian Harbor”) and/or Neptune Flood Incorporated (“Defendant
Neptune”), which insured her home and property in Dunlow, West Virginia. (Id. at 16).
On March 1, 2021, a flood damaged Plaintiff’s property. (Id.). Thus, Plaintiff presented a
claim for insurance benefits. (Id. at 17). Defendants Indian Harbor and Neptune used
third-party administrator, Peninsula Insurance Bureau, Inc. (“Defendant Peninsula”), to
handle the claim. (Id.).
According to Plaintiff, Defendants sent a field adjuster from FKS Insurance
Services, LLC, to inspect her property on March 9, 2021. (Id.). The adjuster purportedly
determined that the risk qualified for full replacement cost coverage because it was
Plaintiff’s principal residence, which was insured for 80 percent value of the dwelling.
(Id.). Plaintiff hired a contractor, Wallace Construction, LLC, which determined that the
flood caused more than $85,000.00 damage to her residence. (Id.). As stated in the
amended complaint, Defendant Peninsula’s employee Michele Allen advised Plaintiff on
April 13, 2021 that Defendants would only pay a portion of her damages and would deduct
depreciation for the necessary repair and/or replacement of the property. (Id.).
Plaintiff asserts that Defendants Indian Harbor and Neptune were obligated to pay
her the full cost of repairing/replacing her property without deducting depreciation, and
their failure to do so breached the insurance policy contract and caused her economic and
non-economic damages. (Id. at 18). In addition, Plaintiff alleges (1) common law “bad
faith” against Defendants Indian Harbor and Neptune and (2) unfair trade practices
against all Defendants. (Id. at 21-25). She seeks declaratory judgment, compensatory and
punitive damages, attorney fees and expenses, and interest. (Id. at 25-26).
The putative class which Plaintiff seeks to represent under Rule 23 of the Federal
Rules of Civil Procedure includes:
Any person or entity:
1. Who is or was insured under an Indian Harbor or Neptune insurance
policy covering real property located in West Virginia at any time from
March 1, 2011 to the present;
2. Who, on or after March 1, 2011, suffered a covered cause of loss for
damage to their insured real property while insured under an insurance
policy issued by Indian Harbor and/or Neptune; and
3. Who received an offer or payment from or on behalf of Indian Harbor
and/or Neptune for the cost of repairing and/or replacing the damage to
their real property which reflected a deduction for depreciation in
connection with the cost of repairing and/or replacing the real property.
(Id. at 19).
B. Motion to Compel
On August 9, 2022, Plaintiff served substantively identical interrogatories,
requests for production of documents, and requests for admission separately on each of
the three defendants. (ECF Nos. 28-1, 28-2, 28-3). After removal of the case, the parties
stipulated that the discovery responses would be due on December 16, 2022, and the
deadline for Plaintiff to file a motion to compel concerning them was January 25, 2023.
(ECF Nos. 12, 29 at 3). Defendant Peninsula provided unverified responses to the
discovery requests on December 16, 2022, asserting many objections to the
interrogatories and not producing any documents in response to the requests for
production. (ECF No. 28-8). Defendants Indian Harbor and Neptune did not respond to
any of the requests by the deadline; they eventually answered only the requests for
admission on December 21, 2022, but they have yet to respond to Plaintiff’s First Set of
Interrogatories and Requests for Production of Documents. (ECF Nos. 10, 11).
On January 25, 2023, Plaintiff filed this motion to compel, asserting that the Court
should order the following:
1. Compel Defendant Peninsula to provide a verification for its answers to the
interrogatories and provide full and complete answers to the discovery requests
identified in Plaintiff’s memorandum of law;
2. Compel Defendants Indian Harbor and Neptune to answer the interrogatories
and requests for production in full without objection because any such
objections are untimely and should be deemed waived;
3. Deem admitted the Requests for Admission to Defendants Indian Harbor and
Neptune; and
4. Any other relief the Court deems proper, including awarding Plaintiff the costs
and attorney fees incurred in connection with this motion to compel.
(ECF Nos. 28, 29 at 16).
In response to the motion to compel, Defendants attached a copy of Plaintiff’s
insurance policy and explained their position that the flood policy only covered Plaintiff’s
dwelling. (ECF Nos. 30 at 1-2, 30-1). Defendants contend that Defendants Indian Harbor
and Neptune were not involved in the claims handling process, which was performed
exclusively by Defendant Peninsula pursuant to a third-party administrator agreement
which began on August 13, 2019. (Id.). Defendants state that they do not dispute that
Plaintiff’s residence was damaged from the flood, but rather, the parties disagree
regarding the nature and extent of the damages with a difference of approximately
$65,000.00. (Id. at 2). According to Defendants, the adjuster mistakenly applied
depreciation to the claim, but once the error was discovered, the amount deducted for
depreciation was reimbursed to Plaintiff. (Id. at 2-3). Defendants state that there is no
dispute that depreciation should not have been applied to Plaintiff’s claim. (Id. at 3).
As to the discovery requests served on Defendant Peninsula, Defendants argue that
many of the responses were adequate, some will be supplemented, and the objections
were proper. (Id. at 3-11). They concede that Defendants Indian Harbor and Neptune have
not responded to the interrogatories or requests for production of documents. (Id. at 11).
Counsel, who collectively represents all three defendants, states that he mistakenly
believed that only one set of discovery had been served on Defendant Peninsula, the only
entity that was actually involved in the claims handling process. (Id. at n.2). Defendants
note that the discovery requests to each defendant are substantively identical, and
Defendants Indian Harbor and Neptune’s responses will mirror the information provided
by Defendant Peninsula. (Id. at 11). Defendants’ counsel blamed his busy caseload, trial
schedule, and other personal commitments to his family over the holiday season, and he
promised to “correct the oversight in the very near future.” (Id.).
Concerning the requests for admission served on Defendants Indian Harbor and
Neptune, counsel explained that, although the responses were five days late, Defendant
Peninsula responded to identical requests for admission in a timely manner. (Id. at 11-
12). Moreover, Defendants point out that Rule 36 of the Federal Rules of Civil Procedure
does not require the Court to deem facts as admitted when a party fails to timely respond
to requests for admission. (Id. at 12). Rather, in Defendants’ view, the Court can enlarge
the time for the party to respond, even if the responses were already untimely, or allow
withdrawal of admissions to promote the presentation on the merits if the Court is
persuaded that it would not prejudice the requesting party. (Id.). In this case, Defendants
argue that Plaintiff will not be prejudiced if the Court enlarges the time frame for
Defendants Indian Harbor and Neptune’s responses to the requests for admission to
deem them timely filed. (Id. at 13).
In reply, Plaintiff contends that Defendants failed to cooperate with her efforts to
resolve this matter without court intervention and did not properly supplement their
discovery responses even after being granted extensions. (ECF No. 31 at 2). Plaintiff
asserts that, only after forcing her to file a motion to compel, did Defendants admit their
errors and promise to correct them. (Id.). However, Defendants still do not provide any
target date for supplementation. (Id.). Plaintiff argues that Defendants do not establish
good cause for their failure to timely object or respond to discovery, particularly given the
fact that they have still done nothing to remedy the issues. (Id. at 3-7).
II. Discussion
Rule 26(b)(1) of the Federal Rules of Civil Procedure 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.
Fed. R. Civ. P. 26(b)(1). “Relevancy under this rule has been broadly construed to
encompass any possibility that the information sought may be relevant to the claim or
defense of any party.” Becton, Dickinson & Co. v. BioMedomics, Inc., No. 5:20-CV-536-
FL, 2021 WL 3864476, at *3 (E.D.N.C. Aug. 30, 2021) (citations omitted). Yet, even if
seeking relevant information, the discovery request must be proportional to the needs of
the case. Fed. R. Civ. P. 26(b)(1).
A party may serve interrogatories, requests for production of documents, and/or
requests for admission, which are generally all due within 30 days of service. Fed. R. Civ.
P. 33, 34, 36. However, the parties may stipulate under Rule 29 of the Federal Rules of
Civil Procedure to modify that timeframe. Fed. R. Civ. P. 29. Any objections to discovery
requests must be stated with specificity. Fed. R. Civ. P. 33(b)(4); 34(b)(2)(B); 36(a)(4),
(5).
A party dissatisfied with a discovery response or lack of response can move for an
order compelling disclosure or discovery after conferring or attempting to confer with the
party that submitted the response or failed to respond. Fed. R. Civ. P. 37(a). Importantly,
the party resisting discovery, not the party seeking discovery, bears the burden of
persuasion. Tinsley v. OneWest Bank, FSB, No. 3:13-CV-23241, 2014 WL 7005852, at *2
(S.D.W. Va. Dec. 10, 2014) (citations omitted). As such, conclusory and unsubstantiated
allegations are simply insufficient to support discovery objections based on the grounds
of annoyance, burdensomeness, oppression, or expense. Id. With those rules in mind, the
Court addresses the specific discovery disputes identified in Plaintiff’s motion.
A. Defendants Indian Harbor and Neptune
As noted, Defendants Indian Harbor and Neptune provided untimely responses to
Plaintiff’s requests for admission, and they have yet to respond to Plaintiff’s
interrogatories and requests for production of documents. Those issues are considered
below, in turn.
1. Requests for Admission
Requests for admission are governed by Rule 36 of the Federal Rules of Civil
Procedure. Webb v. Green Tree Servicing, LLC, Civ. No. ELH-11-2105, 2013 WL
5442423, at *15 (D. Md. Sept. 30, 2013). The Rule “allows any party to serve on another
party requests to admit the truth of facts, the application of law to fact, or opinions
relating to matters within the scope of discovery.” Want v. Bulldog Fed. Credit Union,
No. 1:19-CV-02827-JMC, 2021 WL 2589808, at *5 (D. Md. June 24, 2021); see Fed. R.
Civ. P. 36(a)(1). “The Rule’s purpose, as has often been said, is to narrow the array of
issues before the court, and thus expedite both the discovery process and the resolution
of the litigation.” Id. (citations and markings omitted). A matter is admitted if a party does
not respond or object within 30 days of being served. Fed. R. Civ. P. 36(a)(3). However,
“[a] shorter or longer time for responding may be stipulated to under Rule 29 or be
ordered by the court.” Id. A matter admitted under Rule 36 “is conclusively established
unless the court, on motion, permits the admission to be withdrawn or amended.” Fed.
R. Civ. P. 36(b). To that end, “the court may permit withdrawal or amendment if it would
promote the presentation of the merits of the action and if the court is not persuaded that
it would prejudice the requesting party in maintaining or defending the action on the
merits.” Id.
In the present matter, Plaintiff served seven identical requests for admission on all
three Defendants on August 9, 2022 prior to removal of this action to federal court. (ECF
Nos. 28-1 at 15-17, 28-2 at 15-17, 29 at 3). The parties held a planning meeting pursuant
to Fed. R. Civ. P. 26(f) on October 31, 2022. (ECF No. 5). Under the Federal Rules, the
discovery responses would have been due 30 days after the scheduling meeting, but
Plaintiff granted Defendants an extension to respond until December 16, 2022. (ECF No.
29 at 3). Plaintiff contacted Defendants’ counsel on December 21, 2022 regarding various
deficiencies, including the lack of discovery responses from Defendants Indian Harbor
and Neptune, and Defendants Indian Harbor and Neptune promptly filed responses to
the Requests for Admission the same day. (ECF Nos. 28-9 at 2, 29 at 3).
Plaintiff asks the Court to deem the Requests for Admission admitted because the
responses were filed five days late. (ECF No. 29 at 16). In response, Defendants Indian
Harbor and Neptune ask the Court to enlarge the time frame for the responses such that
they were timely filed. (ECF No. 30 at 13). Pursuant to Rule 36(a)(3) of the Federal Rules
of Civil Procedure, the matters in the requests for admission are automatically admitted
because Defendants Indian Harbor and Neptune did not timely respond. See Cullen v.
Hall Auto., LLC, No. 2:21-CV-00047, 2022 WL 1561227, at *4 (E.D. Va. Jan. 7,
2022), report and recommendation adopted, 2022 WL 1262549 (E.D. Va. Apr. 28,
2022). The Court cannot disregard such admission. Id. Yet, the Court can permit the
admissions to be withdrawn or amended. Id. (citing Fed. R. Civ. P. 36(b)).
An admission can be withdrawn if it would promote the presentation of the merits
of the action, and if allowing the withdrawal would not prejudice the party that obtained
the admission. Id. (citing Adventis, Inc. v. Consol. Prop. Holdings, Inc., 124 F. App’x 169,
173 (4th Cir. 2005)). The first prong is “satisfied when the deemed admissions effectively
resolve the case and thus upholding the admissions would eliminate any need for a
presentation on the merits.” Id. (citation omitted). For some reason, neither party
attached to their filings the late responses that Defendants Indian Harbor and Neptune
ultimately filed to the requests for admission, which somewhat impedes the Court’s
analysis. However, Defendant Peninsula’s responses are in the record for the Court’s
review. (ECF No. 28-8 at 22-23). It appears, at least based on Defendant Peninsula’s
responses, that the requests for admission concern some contested facts and issues,
which, if admitted, could effectively preclude presentation on the merits of Plaintiff’s
claims against Defendants. (Id.). This factor weighs in favor of allowing Defendants
Indian Harbor and Neptune to withdraw or amend their admissions.
Even more compelling is the second factor of the analysis, which concerns whether
Plaintiff would be prejudiced if Defendants withdraw or amend the admissions.
Defendants Indian Harbor and Neptune responded five days late to the requests for
admission immediately after Plaintiff contacted them about their failure to respond. The
delay had negligible, if any, impact on Plaintiff’s ability to conduct discovery, which
extends through July 2023 with dispositive motions due in August 2023. (ECF No. 6).
There are three defendant insurers involved in this case, two that issued the policy and
one that performed all of the claims handling. Plaintiff served identical requests for
admission on all three defendants, and received timely responses from Defendant
Peninsula, the only entity that performed the claims handling that is the basis of this
lawsuit. The responses very clearly laid out which matters Defendant Peninsula admitted
and denied. Plaintiff did not file a motion to compel alleging that Defendant Peninsula’s
responses to the requests for admission were insufficient. Therefore, the fact that
Defendants Indian Harbor and Neptune’s responses to identical requests were five days
late seems of little consequence based upon these facts. Plaintiff does not articulate any
prejudice that she suffered to asserting her claims or otherwise. Bolen v. Smith, No. 3:19-
CV-00709-MR, 2023 WL 373885, at *2 (W.D.N.C. Jan. 24, 2023) (stating that the party
relying on the deemed admission has the burden of showing prejudice).
The Court has considerable discretion over the withdrawal of admissions once
they are made or to allow untimely answers to requests for admissions when such an
amendment will not prejudice the other party. Donovan v. Porter, 584 F. Supp. 202, 208
(D. Md. 1984). The undersigned finds that such a remedy is appropriate here. The Court
ORDERS that Defendants Indian Harbor and Neptune’s admissions are amended as
reflected in their responses previously served on December 21, 2022. See, e.g., Bolen v.
Smith, No. 3:19-CV-00709-MR, 2023 WL 373885, at *3 (W.D.N.C. Jan. 24, 2023).
2. Interrogatories and Requests for Production of Documents
Plaintiff further seeks an order compelling Defendants Indian Harbor and
Neptune to respond to her interrogatories and requests for production of documents.
(ECF No. 29 at 16). Plaintiff argues that any objections are waived by Defendants’ failure
to provide timely responses. (Id.). As previously discussed, Defendants Indian Harbor
and Neptune’s responses to Plaintiff’s discovery requests were due on December 16, 2022,
and Plaintiff notified them of their failure to respond on December 21, 2022. Over two
months elapsed since then, including full briefing of the instant motion to compel, yet
Defendants Indian Harbor and Neptune have still not responded to the interrogatories or
requests for production of documents. Defendants’ counsel promised to correct the
oversight in the very near future, but he has done nothing to rectify the situation. (ECF
No. 30 at 11).
At this point, Defendants has had ample time to prepare their responses.
Therefore, the Court ORDERS Defendants Indian Harbor and Neptune to respond to
Plaintiff’s First Set of Interrogatories and Requests for Production of Documents within
seven (7) days of the date of this Order. Further, given Defendants persistent failure to
respond to the discovery requests, the Court finds that any objections to the relevance or
scope of the requests are waived. See Fed. R. Civ. P. 33(b)(4) (“Any ground not stated in
a timely objection is waived unless the court, for good cause, excuses the failure.”). As
aptly stated by another district court in a similar circumstance, “the court cannot find that
the stated cause of a heavy workload establishes good cause to excuse the failure in light
of length of delay and total failure to respond.” Edwards v. Hooks, No. 5:21-CT-3270-D,
2022 WL 17367183, at *2 (E.D.N.C. Nov. 28, 2022). The Court will allow Defendants
Indian Harbor and Neptune to assert any valid claim of privilege with accompanying
privilege log to the extent that a privilege applies. Id.
B. Defendant Peninsula
As an initial matter, Plaintiff asks the Court to compel Defendant Peninsula to
verify its interrogatory responses. (ECF No. 29 at 16). Under the Federal Rules, responses
to interrogatories must be signed by the person making them, and objections must be
signed by the objecting attorney. Fed. R. Civ. P. 33(b)(5). The person verifying
interrogatories “must ensure that enough due diligence and investigation have been
conducted to be sure that the party’s answers are complete and the information is reliable
and accurate.” Shulin v. Werner Enterprises, Inc., No. 1:15CV87, 2017 WL 10379225, at
*5 (N.D.W. Va. Aug. 11, 2017) (citation omitted). This is not an optional requirement.
Corporations must appoint an officer or agent to answer and sign interrogatories on its
behalf, who must “furnish the information available to the party.” Id. (citing Fed. R. Civ.
P. 33(b)(1)(B), (5)). The responses by the corporate officer or agent do not reflect the
person’s personal knowledge, but are rather based on reasonable inquiry, including
questioning employees and searching business records. Selee Corp. v. McDanel
Advanced Ceramic Techs., LLC, No. 1:15-CV-00129-MR, 2016 WL 4546446, at *3
(W.D.N.C. Aug. 31, 2016). “Merely reading the answers and taking them at face value falls
far short of the verification standard.” Id. at *5. By signing the verification, the person
attests that “enough due diligence and investigation have been conducted to be sure that
the party’s answers are complete and the information is reliable and accurate.” Id.
In this case, Defendant Peninsula has failed to verify its interrogatory responses.
Not only is the verification mandatory, but the omission is particularly critical because
Defendant Peninsula responded to several of the inquiries that it was not aware of any
responsive information. A significant concern raised by Plaintiff in the motion to compel
is whether the person answering the interrogatories on behalf of Defendant Peninsula
performed a reasonable inquiry to verify that Defendant Peninsula did not have any
responsive information. Therefore, a verification is imperative so that Plaintiff can, if
necessary, depose the person who answered on behalf of Defendant Peninsula or conduct
any other discovery on the issue. The Court ORDERS Defendant Peninsula to verify its
interrogatories, including any supplemental responses ordered herein, within seven (7)
days of this Order.
As to the other claimed deficiencies in Defendant Peninsula’s discovery responses,
the Court rules as follows:
Interrogatory No. 1
Plaintiff seeks information regarding the non-clerical Peninsula employees that
were involved in handling her claim, including their personal addresses and job titles.
Defendant Peninsula identified three claim adjusters in response to this interrogatory:
Michele Allen, Steve Haugen, and John Frelier. (ECF No. 28-8 at 2). Defendant Peninsula
provided a business address for the adjusters, but it objected to providing their personal
addresses on the basis that the request sought irrelevant information and was not
reasonably calculated to lead to the discovery of admissible evidence. (Id.). Defendant
Peninsula also identified in response to Interrogatory Number 4 that Victor Fedossenko
and Mike Francus had supervisory roles in the claim process, but it did not list them in
response to Interrogatory Number 1. (Id. at 3).
Plaintiff asks the Court to order Defendant Peninsula to provide the job titles and
personal addresses for the non-clerical employees involved in handling her claim. (ECF
No. 29 at 5-6). Plaintiff supposedly needs this information for: (1) jury selection and (2)
to determine the witnesses’ involvement in the claim and their ability to make decisions
regarding the flood loss (Id. at 6). In response to the motion to compel, Defendant
Peninsula contends that none of the people that it listed are parties or West Virginia
residents. Defendant Peninsula agrees to produce them for deposition without the need
for a subpoena to the extent that it is able to produce them. (ECF No. 30 at 3). In the event
that it cannot produce them for deposition, Defendant Peninsula agrees to supplement its
discovery response with the individuals’ last known contact information. (Id.). Plaintiff
asserts in reply that Defendant Peninsula’s suggested resolution is inadequate because
the individuals might also be needed for trial. (ECF No. 31 at 9). According to Plaintiff,
the employees involved in the claim process are fact witnesses, and their addresses are
discoverable. (Id.).
As the party resisting discovery, Defendant Peninsula has the burden of
establishing that the information sought is not discoverable. In this case, Defendant
attempts to meet that burden by arguing that the information is irrelevant. However, that
assertion is unavailing given the nature of Plaintiff’s claims in this action. Plaintiff
contends that Defendants acted in bad faith and committed unfair trade practices with
respect to her flood loss claim. The individual employees that handled the insurance claim
are very clearly key witnesses, and Defendant asserts no basis for withholding their job
titles and addresses from Plaintiff. Indeed, “[p]ersonal information is often requested of
former and current employees during discovery for access to those individuals,” and
Plaintiff is merely inquiring about a way to contact those witnesses. Shaffer v. Nat'l
Health Ins. Co., No. 1:17-CV-195, 2018 WL 9988202, at *7 (N.D.W. Va. July 26, 2018).
The Court GRANTS the motion to compel regarding this discovery request and
ORDERS Defendant Peninsula to supplement its response to this interrogatory within
seven (7) days of this Order.
Interrogatory No. 3
This interrogatory asks if Defendant Peninsula destroyed, discarded, or altered any
records related to Plaintiff’s claim. Defendant responded that it “is not aware of any
information responsive to this Interrogatory.” (ECF No. 28-8 at 3). In her motion to
compel, Plaintiff asserts that Defendant Peninsula’s answer is vague and non-responsive,
and Peninsula should be required to clarify its response to confirm that no records have
been destroyed, discarded, or altered, or supplement its response if that is not the case.
(ECF No. 29 at 7). In response to the motion, Defendant Peninsula confirmed that it does
not know of any responsive information, and it maintains that Plaintiff does not get to
choose the wording of the response. Finally, in reply, Plaintiff states that Defendant
Peninsula should be required to clarify its response to indicate whether it actually sought
to confirm that no records have been destroyed, discarded, or altered. (ECF No. 31 at 9).
The Court finds that Defendant Peninsula properly responded to the interrogatory.
Plaintiff did not ask what efforts Defendant Peninsula undertook to find responsive
information. Therefore, the Court will not compel it to articulate such information. As
previously discussed, Defendant Peninsula was required to conduct a reasonable
investigation for responsive information, and it must verify its interrogatory responses to
confirm the same. If Defendant Peninsula had any information that any records were
destroyed, discarded, or altered, it was obligated to identify them. Further, if it discovers
any such information, it must supplement its answer. For those reasons, the Court
DENIES the motion to compel regarding this interrogatory.
Interrogatory No. 12
Plaintiff asks Defendant Peninsula to identify any lawsuits filed in the past five
years in West Virginia which alleged bad faith, unfair claims handling practices, and the
like. Defendant Peninsula responded that it “is not aware of any information responsive
to this Interrogatory.” (ECF No. 28-8 at 8). Plaintiff claims that it cannot determine
whether Defendant has undertaken the necessary investigation to determine if there is
responsive information, and Defendant Peninsula should be compelled to clarify the
response to indicate whether it has done so. (ECF No. 31 at 9). Again, Plaintiff asks the
Court to compel information that it did not request. Plaintiff did not ask Defendant
Peninsula to describe what efforts it expended to search for lawsuits that are responsive
to this interrogatory. As Defendant Peninsula stated, it is not aware of any responsive
information. Therefore, it fully responded to the question posed. Furthermore, it was
incumbent upon Defendant Peninsula to answer this discovery request based on a
reasonable investigation. As ordered, an agent or officer of Defendant Peninsula must
verify its response to confirm that a reasonable inquiry was conducted for responsive
information. That verification should satisfy Plaintiff’s concern regarding Defendant
Peninsula’s response to this discovery request. The Court DENIES the motion to compel
regarding this interrogatory.
Interrogatory No. 13
Plaintiff asks for the names of witnesses that Defendant Peninsula interviewed or
from whom it obtained statements regarding Plaintiff’s insurance claim, and the dates of
the interview or statement. (ECF No. 28-8 at 8). Defendant Peninsula responded to the
interrogatory, but it did not provide the dates of the statements. (Id.). It has stated that it
will supplement the dates “in the near future” and correct a slight error in the response.
(ECF No. 30 at 4). However, as of the filing of Plaintiff’s reply, Defendant Peninsula has
not supplemented its responses or provided any indication of when it will supplement.
(ECF No. 31 at 10). A review of the docket indicates that Defendant Peninsula has not filed
any certificates of service for supplemental responses. The Court GRANTS the motion to
compel regarding this discovery request and ORDERS Defendant Peninsula to
supplement its response to this interrogatory within seven (7) days of this Order.
Interrogatory No. 14
Plaintiff asked Defendant Peninsula to identify all requests for information that it
made to any entity regarding Plaintiff’s claim. (ECF No. 28-8 at 9). Defendant Peninsula
responded to the interrogatory, but it indicated in response to Plaintiff’s motion to compel
that it has further responsive information. (ECF Nos. 28-8 at 9, 30 at 4). Defendant
Peninsula stated that it “is in the process” of supplementing its response and producing
its claim notes along with a privilege log. (ECF No. 30 at 4). However, it has yet to
supplement according to Plaintiff’s reply brief and the docket sheet. Therefore, the Court
GRANTS the motion to compel regarding this discovery request and ORDERS
Defendant Peninsula to supplement its response to this interrogatory within seven (7)
days of this Order.
Interrogatory No. 17
This interrogatory asks Defendant Peninsula to identify written complaints made
against it in the past three years concerning West Virginia claims. (ECF No. 28-8 at 10-
11). Defendant Peninsula responded that it “is not aware of any information responsive to
this Interrogatory.” (Id.). According to Defendant Peninsula, the response clearly
indicates that it does not have any responsive information. (ECF No. 30 at 4). However,
like previous interrogatories, Plaintiff claims that Defendant Peninsula should be
compelled to provide further information. Plaintiff takes issue with the fact that
Defendant Peninsula did not indicate whether it reviewed its claim register or other files,
if it even maintains such a record as required by state law. (ECF No. 31 at 10). The Court
finds that Defendant Peninsula was not required to answer those questions because they
were not asked in the interrogatory. The Court DENIES the motion to compel regarding
this interrogatory.
Interrogatory Nos. 18 through 20
Interrogatory numbers 18 through 20 inquire about the number of West Virginia
insureds who received an estimate, offer, or payment from Defendant Peninsula for
repairing or replacing real property that reflected a deduction for depreciation.
Specifically, the requests ask:
Interrogatory No. 18: Identify the total number of Peninsula insured
who suffered a covered cause of loss for damage to real property
located in West Virginia from March 1, 2011 to the present, who
received an estimate and/or offer from Peninsula for the cost of
repairing and/or replacing the damage to their real property which
reflected a deduction by Peninsula for depreciation in connection
with the cost of repairing and/or replacing the real property.
Interrogatory No. 19: Identify the total number of Peninsula insureds
who suffered a covered cause of loss for damage to their real property
located in West Virginia from 2/11/12 to present, who received a
payment for the cost of repairing and/or replacing the damage to
their real property which included a deduction by Peninsula for
depreciation.
Interrogatory No. 20: With respect to the Peninsula insureds who
suffered a covered cause of loss for damage to real property located
in West Virginia from 2/11/12 to the present, and who received an
estimate, offer or payment for the cost of repairing and/or replacing
damage to their real property, which included a deduction by
Peninsula for depreciation, identify the total number of said insureds
who rejected the estimates, offers or payments and were ultimately
paid the total cost of repairing and/or replacing the damage to their
real property (less any applicable deductibles) without a deduction
for depreciation.
Answers to All: Peninsula objects to this Interrogatory as it is
patently overbroad and unduly burdensome as phrased. Moreover,
the request for information is not sufficiently narrowed in scope or
duration. Peninsula does not track or record when depreciation is
taken on any particular claim and gathering this information would
require an intensive hand review of potentially hundreds of claims
file to determine whether depreciation was applied to the claims
process.
(ECF No. 28-8 at 11-12).
Plaintiff claims that these interrogatories seek information regarding the putative
class so that she can establish the numerosity requirement for class certification. (ECF
No. 31 at 10). In response to the motion to compel, Defendant Peninsula suggested
limiting the scope and durational limits in the interrogatories to Neptune/Indian Harbor
flood policies from August 13, 2019, which is when the relationship between Peninsula
and Neptune/Indian Harbor began, to the date of Plaintiff’s flood loss on March 1, 2021.
(ECF No. 30 at 2, 6-7). According to Peninsula, approximately ten claims fall within those
parameters. (Id. at 7).
However, Plaintiff disagrees with those proposed limits. Plaintiff responds that the
putative class includes all customers who were subjected to improper deductions for
depreciation for losses to real property regardless of the exact nature of the claims or
policies. (ECF No. 31 at 11). Plaintiff cites W. Va. Code § 33-17-9, a provision which relates
to fire loss, as standing for the proposition that insurers cannot apply depreciation to
claims for loss or damage to real property, and Plaintiff contends that the obvious purpose
of that requirement is to ensure that insureds receive all of the funds necessary to repair
or replace their property. (ECF No. 31 at 11). According to Plaintiff, Defendant should not
be able to unilaterally limit the parameters of the putative class. (Id.). Also, Plaintiff points
out that Defendant has only stated that it would potentially be required to review
hundreds of claim files to obtain the information, but it did not specify the number of files
at issue or the burden it would impose. (Id. at 12). Plaintiff expresses the opinion that
reviewing hundreds of claim files to obtain this relevant information would not be overly
burdensome, especially considering the importance of the information.
Under the Federal Rules, class certification is proper if (1) the class is so numerous
that joinder of all members is impracticable, (2) there are questions of law or fact common
to the class, (3) the claims or defenses of the representative parties are typical of the claims
or defenses of the class, and (4) the representative parties will fairly and adequately
protect the interests of the class. Fed. R. Civ. P. 23(a). Once those requirements are met,
the proposed class must still satisfy one of three additional requirements for certification
under Rule 23(b).
District courts in the United States Court of Appeals for the Fourth Circuit have
allowed plaintiffs to engage in “pre-certification discovery to establish the record the
court needs to determine whether the requirements for a class action suit have been met.”
Buchanan v. Consol. Stores Corp., 217 F.R.D. 178, 185–86 (D. Md. 2003). “Such discovery
is permitted because the class determination generally involves considerations that are
enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Miller
v. Baltimore Gas & Elec. Co., 202 F.R.D. 195, 200 (D. Md. 2001) (markings and citations
omitted).
The putative class that Plaintiff attempts to certify includes any person or entity:
1. Who is or was insured under an Indian Harbor or Neptune insurance
policy covering real property located in West Virginia at any time from
March 1, 2011 to the present;
2. Who, on or after March 1, 2011, suffered a covered cause of loss for
damage to their insured real property while insured under an insurance
policy issued by Indian Harbor and/or Neptune; and
3. Who received an offer or payment from or on behalf of Indian Harbor
and/or Neptune for the cost of repairing and/or replacing the damage to
their real property which reflected a deduction for depreciation in
connection with the cost of repairing and/or replacing the real property.
(ECF No. 1-1 at 19).
Reviewing the arguments presented, Defendant Peninsula has not met its burden
of showing that discovery on these matters will be overly burdensome. The Court finds
that the geographical and temporal scope of the interrogatories is appropriately narrow
to reflect the putative class. However, the Court notes that the proposed class is expressly
limited to individuals who were insured under Indian Harbor/Neptune policies.
Therefore, the discovery requests should be limited to Indian Harbor/Neptune policies to
be relevant of the numerosity requirement for class certification. Given the fact that the
putative class is not limited exclusively to flood policies, it would be overly restrictive to
limit Defendants’ response to flood policies, as Defendants suggest. Therefore,
considering the relevancy and proportional limits imposed by Rule 26 of the Federal
Rules of Civil Procedure, the Court GRANTS the motion to compel, in part, concerning
interrogatory numbers 18 through 20 as worded except limited to only Indian
Harbor/Neptune policies. It ORDERS Defendant Peninsula to supplement its responses
to these interrogatories within seven (7) days of this Order.
Interrogatory Nos. 21 through 23
These three interrogatories ask Defendant Peninsula to identify its claims
manuals, guidelines, training materials, e-mails, and other directives which permit,
direct, prohibit, forbid, address, or discuss deducting depreciation for the cost of repairing
or replacing damage to real property. (ECF No. 28-8 at 12-14). The requests are limited
to information made available to Peninsula claim adjusters handling West Virginia claims
in the past 10 years. (Id.). Defendant Peninsula objected to producing the materials, if
they exist, because they are confidential business records. (Id. at 13-14). Defendant
Peninsula also objected that the information is irrelevant because Defendant Peninsula
admits that depreciation was mistakenly taken, and that amount has already been
tendered to Plaintiff. (Id.).
As Plaintiff noted, these interrogatories seek the identification, not production, of
the documents. Therefore, Defendant Peninsula’s argument about the proprietary nature
of the documents is misplaced. (ECF No. 30 at 8). Furthermore, regarding the relevance
of the information, Plaintiff alleges that Defendants acted in bad faith and committed
unfair trade practices claim by unlawfully deducting depreciation from offers and
payments made on insurance claims for damage to real property. Thus, the issue of what
Defendants’ employees were trained to do regarding deducting depreciation from such
claims is directly relevant to Plaintiff’s allegations in this lawsuit and her request for
punitive damages. As Plaintiff discussed, this information could be probative of whether
Defendant Peninsula had a general business practice of handling claims in the allegedly
unlawful manner that it handled Plaintiff’s claim. (ECF No. 31 at 12). The Court GRANTS
the motion to compel concerning interrogatory numbers 21 through 23 and ORDERS
Defendant Peninsula to supplement its responses to these interrogatories within seven
(7) days of this Order.
Interrogatory Nos. 24 through 27
Plaintiff asks Defendant Peninsula to identify every other instance from February
11, 2012 to the present when one of its adjusters applied a deduction for depreciation in
connection with the cost of repairing and/or replacing damage to real property in West
Virginia; the name, address, and telephone number of Defendant Peninsula’s insureds
that received an offer, estimate, or payments reflecting such depreciation for damage to
real property located in West Virginia on or after February 11, 2012; the insureds that
rejected the offer that deducted depreciation and subsequently received an offer,
estimate, and/or payment that did not include such deduction; and the total amount of
depreciation that Defendant Peninsula deducted from payments for repairing or
replacing real property in West Virginia on or after February 11, 2012. (ECF No. 28-8 at
14-16).
Defendant Peninsula objected to these interrogatories on the basis that they were
overly broad and unduly burdensome. (Id.). It stated that it did not track when
depreciation was applied to any particular claim. (Id.). Thus, “gathering this information
would require an intensive hand review of potentially hundreds of claims file[s] to
determine whether depreciation was applied to the claims process.” (Id.). Despite its
boilerplate objections, Defendant Peninsula has not provided any affidavits or other
specific evidence of the alleged burden of responding to these requests. Its vague assertion
that it will potentially have to review hundreds of claim files is insufficient. Furthermore,
Defendant Peninsula now argues in response to the motion to compel that the
information sought is irrelevant because it refunded to Plaintiff the amount deducted for
depreciation. (ECF No. 30 at 10). However, Defendant Peninsula did not object to these
requests based on relevance. (ECF No. 28-8 at 14-16). For the reasons previously
discussed, the information sought is relevant to Plaintiff’s claims, and Plaintiff is entitled
to discover information that bears on the issue of class certification, as well as Defendant
Peninsula’s general business practice of applying depreciation concerning real property.
The Court GRANTS the motion to compel concerning interrogatory numbers 24 through
27 and ORDERS Defendant Peninsula to supplement its responses to these
interrogatories within seven (7) days of this Order.
Because Peninsula represents that gathering the information responsive to these
interrogatories would require an intensive manual search of hundreds of records, the
Court permits Peninsula to first supplement its answers to these discovery requests by
submitting to Plaintiff proof of the burdensomeness of the requests. This proof should be
provided within seven (7) days of this Order and shall take the form of affidavits and
other specific evidence demonstrating the time and expense of conducting the search for
and collection of responsive information. For example, Peninsula should be able to
discern rather easily the total number of claims for damage to real property in West
Virginia that was processed on or after February 11, 2012; how the records of those claims
are stored (electronically or in paper form); whether the records can be searched
electronically; whether there is a certain form that is used to calculate depreciation that
can easily be culled from each file if, in fact, depreciation was a factor in the claim, etc. . .
From that information, Peninsula should be able to calculate the time and personnel
needed to review the records to answer the interrogatories.
Upon a showing of burdensomeness, the parties are ORDERED to meet and
confer to determine whether there is a way to tailor the requests to make them less
burdensome and more proportional to the needs of the case in its present posture, bearing
in mind that while it is not currently a class action, information needed to establish class
certification is relevant. If, on the other hand, Peninsula fails to show through specific
evidence that the interrogatories are burdensome, and thus disproportional to the needs
of the case, then the responses shall be supplemented with the requested information.
Request for Production No. 1
This request seeks the complete investigation and claim files related to Plaintiff’s
insurance claim. (ECF No. 28-8 at 16-17). Defendant Peninsula responded on December
16, 2022 that it was “in the process of gathering these materials from the date of claim to
the date of filing suit,” but it “claims attorney client privilege for all aspects of the claim
file once suit was initiated.” (Id. at 17). Plaintiff argues that Defendant Peninsula’s broad
assertion of attorney-client privilege is inappropriate because the privilege only applies to
communications between attorney and client, and Defendant Peninsula also waived the
privilege because Defendant Peninsula did not timely respond to the discovery request
with a privilege log. (ECF No. 29 at 12). “Given the sanctity of the attorney-
client privilege and the seriousness of privilege waiver, courts generally find waiver only
in cases involving unjustified delay, inexcusable conduct and bad faith.” Johnson v. Ford
Motor Co., 309 F.R.D. 226, 234–35 (S.D.W. Va. 2015) (quoting Smith v. James C. Hormel
Sch. of Va. Inst. of Autism, No. 3:08cv00030, 2010 WL 3702528, at *5 (W.D. Va. Sept.
14, 2010) (collecting cases). The Court finds that the circumstances do not justify deeming
that Defendant Peninsula waived its attorney-client privilege at this point.
Although it is premature to rule on the applicability of the attorney-client privilege
to certain documents because the documents and accompanying privilege log have not
been produced, the Court preemptively advises Defendant Peninsula to be cognizant of
the fact that the attorney-client privilege does not apply to swaths of information simply
because litigation was filed. Rather, the privilege shields from discovery communications
between a lawyer and client that are confidential and made for the purpose of securing
legal advice. United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). Employees
within a corporation may “communicate privileged information at various levels [of the
corporation] without waiving the attorney-client privilege.” See e.g. Santrade, Ltd. v.
General Electric Co., 150 F.R.D. 539, 545 (E.D.N.C. 1993) (citation omitted); Deel v. Bank
of Am., N.A., 227 F.R.D. 456, 460 (W.D. Va. 2005).
Defendant Peninsula’s reference to documents created after litigation was filed
appears to rely, at least in part, on the work product doctrine. Information that is
documented in anticipation of litigation can qualify as work product. Nicholas v.
Bituminous Cas. Corp., 235 F.R.D. 325, 331 (N.D.W. Va. 2006). “Opinion work product,”
which is defined as “the mental impressions, conclusions, opinions or legal theories of an
attorney or other representative of a party concerning the litigation” receives the greatest
work-product protection. Id. at 332 (citing In re Grand Jury Proceedings, 33 F.3d 342,
348 (4th Cir.1994)). In this case, Defendant Peninsula did not mention the work-product
doctrine in its initial response to this discovery request, and Plaintiff thereby argues that
it waived that protection. (ECF No. 28-8 at 17).
A party generally waives an objection to a request for production of documents that
it did not timely assert in its initial discovery response. See, e.g., Drexel Heritage
Furnishings, Inc. v. Furniture USA, Inc., 200 F.R.D. 255, 258 (M.D.N.C. 2001). However,
courts typically evaluate whether good cause exists to excuse a failure to timely object. It
considers relevant factors such as whether there is a history of bad faith or delays, the
length of and reason for the delay, whether there was any dilatory or bad faith action from
the party that failed to raise the objection properly, whether the party seeking discovery
has been prejudiced by the failure, whether the document production request was
properly framed and not excessively burdensome, and whether waiver would impose an
excessively harsh result on the defaulting party. Hall v. Sullivan, 231 F.R.D. 468, 474 (D.
Md. 2005). Here, it would impose an overly harsh result on Defendant Peninsula to rule
at this stage that it waived work-product protection regarding its claim notes and other
materials. The delay has not significantly prejudiced Plaintiff because ample time remains
in the discovery period, and the record does not reflect a history of delay or bad faith by
Defendants other than the circumstances that prompted this motion.
Notwithstanding that finding, the Court is not inclined to extend infinite leniency
regarding Defendant Peninsula’s failure to respond to discovery. The Court GRANTS the
motion to compel concerning this discovery request and ORDERS Defendant Peninsula
to supplement its response to this request for production within seven (7) days of this
Order. The Court cautions Defendant Peninsula that any claims of attorney-client
privilege and/or work product in its supplemental response must be asserted judiciously
and accompanied by a proper privilege log.
Request for Production No. 2
Plaintiff seeks copies of Defendant Peninsula’s claim manuals that were used or
available to its employees from February 11, 2012 to the present regarding West Virginia
claims or policies. (ECF No. 28-8 at 17). Plaintiff explicitly agreed to enter into a
Protective Order to protect the proprietary nature of said materials. (Id.). Nonetheless,
Defendant Peninsula objected to this request on the basis that the records are confidential
and irrelevant because Defendant Peninsula admits that depreciation was mistakenly
taken in this matter, and it was repaid. (Id.).
As to confidentiality, the undersigned notes that a Protective Order has been
entered in this case, which would adequately protect the proprietary nature of these
documents should Plaintiff find that it is necessary to mark them confidential. (ECF No.
27). Claims manuals are routinely produced in discovery subject to similar protective
orders in bad faith and unfair trade practices cases. See, e.g., Moses Enterprises, LLC v.
Lexington Ins. Co., No. 3:19-CV-00477, 2020 WL 7634165, at *4 (S.D.W. Va. Dec. 22,
2020); Williamson v. Liberty Mut. Fire Ins. Co., No. 3:15-CV-07812, 2015 WL 8489980,
at *2 (S.D.W. Va. Dec. 9, 2015); Ohio Cas. Ins. Co. v. Firemen’s Ins. Co. of Washington,
D.C., No. 5:07-CV-149-D, 2008 WL 413849, at *1 (E.D.N.C. Feb. 13, 2008).
Despite the discoverability of the claim manuals, the Court finds that the request,
as worded, seeks irrelevant information and should be narrowed in scope. This case
exclusively concerns insurance claims for damage to real property and the allegedly
improper depreciation that Defendants applied to those types of claims. Although
Request for Production Number 2 is restricted to West Virginia policies or claims, Plaintiff
did not limit it to property damage claims. (Id. at 17). Considering Rule 26 of the Federal
Rules of Civil Procedure, claims manuals that have nothing to do with property damage
claims are not relevant to Plaintiff’s claims, nor are they proportional to the needs of the
case. Fed. R. Civ. P. 26(b)(1).
For those reasons, the Court GRANTS the motion to compel concerning this
discovery request, in part, as limited to documents pertaining to claims for damage to real
property. The Court ORDERS Defendant Peninsula to supplement its response to this
request for production within seven (7) days of this Order.
Request for Production No. 4
This request seeks decisional manuals, directives, procedures, rules, or guidelines
pertaining to Plaintiff’s claim. (ECF No. 28-8 at 18). Defendant Peninsula lodged the
same objection as it did above, stating that the materials are confidential and irrelevant
to Plaintiff’s claims. (Id.). The Court finds that the confidentiality of such documents
would be adequately protected by the Protective Order entered in this case. (ECF No. 27).
Further, the documents are, at a minimum, very clearly relevant to Plaintiff’s unfair trade
practices claim. The Court GRANTS the motion to compel concerning this discovery
request and ORDERS Defendant Peninsula to supplement its response to this request
for production within seven (7) days of this Order.
Request for Production No. 5
Plaintiff seeks production of Defendant Peninsula’s Complaint Registry, which is
required by W. Va. Code § 33-11-4(10), for the past five years concerning West Virginia
claims. (ECF No. 28-8 at 18). Defendant Peninsula responded that “[u]pon information
and belief, [it] does not have any complaints that are responsive to this request.” (Id.).
Plaintiff argues that the response is vague and nonresponsive because this request seeks
the complaint register, not the actual complaints. (ECF No. 29 at 13). According to
Plaintiff, it is unclear whether Defendant Peninsula maintained a complaint record as
required by law. (Id.). Plaintiff contends that Defendant Peninsula should be required to
clarify whether it has a complaint register and to produce it if it exists. (Id.). Plaintiff
highlights the fact that Defendant Peninsula did not specifically indicate that it made a
proper inquiry to determine whether such information exists. (ECF No. 31 at 15).
West Virginia law requires insurers to “maintain a complete record of all the
complaints which it has received,” indicating “the total number of complaints, their
classification by line of insurance, the nature of each complaint, the disposition of these
complaints, and the time it took to process each complaint.” W. Va. Code § 33-11-4(10).
“For purposes of this subsection, ‘complaint’ shall mean any written communication
primarily expressing a grievance.” Id. The Court does not find Defendant Peninsula’s
response to Plaintiff’s request for the complaint log to be vague or non-responsive.
Plaintiff did not ask in this request whether Defendant Peninsula maintains a complaint
register or what efforts it made to determine whether it has a complaint log. Rather,
Plaintiff asked for a copy of Defendant Peninsula’s complaint register for West Virginia
complaints in the past five years. Defendant Peninsula clearly responded that it does not
have any responsive complaints. It goes without saying that there would be no complaint
register of complaints that do not exist. Plaintiff is again arguing over semantics and
asking Defendant Peninsula to prove a negative. The Court DENIES Plaintiff’s motion to
compel regarding this discovery request.
Request for Production No. 6
This request seeks copies of the files for any claims or complaints identified in
interrogatory numbers 12 and 15. (ECF No. 28-8 at 19). Defendant Peninsula responded
by referring Plaintiff to its objections to those interrogatories. (Id.). Plaintiff asserts that
Defendant Peninsula’s response to this request is vague, and Defendant waived any
objections. (ECF No. 29 at 13). The Court finds that Defendant Peninsula’s response is
not vague, but instead patently incorrect. Defendant Peninsula did not object to
interrogatory numbers 12 and 15. It answered that it did not have any information that
was responsive to either interrogatory. (ECF No. 28-8 at 8, 10). Nonetheless, despite
Defendant Peninsula’s error in responding to this document request, there is no practical
purpose in ordering Defendant Peninsula to supplement its response because no
responsive documents exist. Defendant Peninsula did not identify any claims or
complaints in response to interrogatory numbers 12 or 15; thus, there are no documents
to produce regarding them. The Court DENIES Plaintiff’s motion to compel regarding
this discovery request.
Request for Production No. 10
Plaintiff seeks copies of documents that Defendant Peninsula relied upon to deny
any portion of Plaintiff’s claim. (ECF No. 28-8 at 20). In response, Defendant Peninsula
referred Plaintiff to the subject policy and report of FKS Insurance and Keystone
Engineering. (Id.). However, it did not produce those documents. Defendant Peninsula
claims that Plaintiff possesses these materials, as identified in her initial disclosures, but
agrees to produce them to her. (ECF No. 30 at 11). The Court GRANTS the motion to
compel concerning this discovery request and ORDERS Defendant Peninsula to
supplement its response to this request for production within seven (7) days of this
Order.
Request for Production No. 11
Plaintiff seeks copies of all training manuals that Defendant Peninsula used to
train its representatives handling West Virginia homeowners claims from February 11,
2012 to the present. (ECF No. 28-8 at 20). Defendant Peninsula objected on the ground
that the materials, if they exist, are confidential business records, and the request seeks
irrelevant information because Defendant Peninsula admits that depreciation was
erroneously applied and refunded to Plaintiff. (Id.). However, Defendant Peninsula has
not offered any support for those objections or responded to Plaintiff’s motion to compel
a response to this request for production. See (ECF No. 30 at 11). Defendant Peninsula
has very clearly failed to meet its burden as the party opposing discovery. Furthermore,
the Court finds that the Protective Order adequately protects the purported
confidentiality of the records, and the information sought is relevant to Plaintiff’s unfair
trade practices claim and proportional to the needs of the case. The Court GRANTS the
motion to compel concerning this discovery request and ORDERS Defendant Peninsula
to supplement its response to this request for production within seven (7) days of this
Order.
Request for Production No. 12
Plaintiff requests a certified copy of her insurance policy. (ECF No. 28-8 at 20).
Defendant Peninsula responds that Plaintiff already has a copy of the policy, but it will
nonetheless produce it. (ECF No. 30 at 11). The Court GRANTS the motion to compel
concerning this discovery request and ORDERS Defendant Peninsula to supplement its
response to this request for production within seven (7) days of this Order.
Request for Production No. 13
This request seeks a complete copy of the electronic claim diaries and/or data
relating to Plaintiff’s claim, such as the claim log and other documents. (ECF No. 28-8 at
20-21). Defendant Peninsula referenced its response to Request for Production of
Documents Number 1, which stated that Defendant Peninsula was in the process of
gathering the materials from the date of the claim to the filing of suit because attorney-
client privilege governed all aspects of the claim file once suit was initiated. (Id. at 17, 21).
Defendant Peninsula provides no response to Plaintiff’s motion to compel a response to
this discovery request. See (ECF No. 30 at 11). For the reasons discussed with respect to
Request for Production of Documents Number 1, the Court GRANTS the motion to
compel concerning this request and ORDERS Defendant Peninsula to supplement its
response to this request for production within seven (7) days of this Order. The Court
refers Defendant Peninsula to its previous discussion regarding claims of attorney-client
privilege and/or work product and a proper privilege log.
Request for Production No. 15
Plaintiff seeks a copy of the underwriting file concerning Plaintiff and/or the policy
at issue. (ECF No. 28-8 at 21). Defendant Peninsula objected that the request seeks
irrelevant and confidential information. (Id.). Plaintiff argues that the underwriting file is
reasonably calculated to lead to the discovery of relevant and admissible evidence because
it should contain photographs, evaluations, and letters and statements concerning the
condition of Plaintiff’s property at the time of underwriting, as well as documenting the
coverage sought by Plaintiff and the coverage ultimately provided. (ECF No. 29 at 15). The
Court finds that the underwriting file is discoverable in this action as it might bear on any
ambiguity in the insurance contract and is relevant to Plaintiff’s bad faith and unfair trade
practices claims. See, e.g., Clean Earth of Maryland, Inc. v. Total Safety, Inc., No. 2:10-
CV-119, 2011 WL 4832381, at *8 (N.D.W. Va. Oct. 12, 2011); Paull Assocs. Realty, LLC v.
Lexington Ins. Co., No. 5:13-CV-80, 2014 WL 12596397, at *10 (N.D.W. Va. Jan. 9, 2014).
The Protective Order entered in this action is available to protect the alleged
confidentiality of the documents. The Court GRANTS the motion to compel concerning
this request and ORDERS Defendant Peninsula to supplement its response to this
request for production within seven (7) days of this Order.
Wherefore, For the reasons stated, the Court GRANTS, in part, and DENIES, in
part, the motion to compel, (ECF No. 28), as follows:
Defendants Indian Harbor Insurance Company and Neptune Flood
Incorporated’s admissions are amended as reflected in their responses
served on December 21, 2022.
Defendants Indian Harbor Insurance Company and Neptune Flood
Incorporated are ORDERED to respond to Plaintiff’s First Set of
Interrogatories and Requests for Production of Documents within seven
(7) days of this Order. Any objections to the relevance or scope of these
discovery requests are waived by Defendants complete failure to respond,
but the Court will allow Defendants to assert valid claims of attorney-client
privilege and/or work product, if applicable, with an accompanying
privilege log.
Defendant Peninsula Insurance Bureau, Inc., is ORDERED to supplement
its responses to Interrogatory Nos. 1, 13, 14, 18, 19, 20, 21, 22, 23, 24, 25, 26,
and 27 and Request for Production of Documents Nos. 1, 2, 4, 10, 11, 12, 13,
and 15 within seven (7) days of this Order. Defendant Peninsula shall fully
respond to the discovery requests as worded with the exception of
Interrogatory Nos. 18 through 20, which the Court limits to Indian
Harbor/Neptune policies; Interrogatory Nos. 24 through 27, as explained
above; and Request for Production No. 2, which the Court limits to claims
for damage to real property. All other wording of the requests remains in
effect.
e The Court denies the motion to compel with respect to Interrogatory Nos.
3, 12, and 17 and Request for Production of Documents Nos. 5 and 6.
The Clerk is instructed to provide a copy of this Order to counsel and any
unrepresented parties.
ENTERED: March 14, 2023
META
aN
Chey Eifert
U Cr Magistrate Judge
35