Discovery in Suits Against Insurers are Aggressive and Expensive
Post 4837
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The USDC conducted a discovery conference with the parties concerning their discovery disputes. Federal discovery rules are accorded a broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials. At some point discovery yields diminishing returns, needlessly increases expenses, and delays the resolution of the parties’ dispute. Finding a just and appropriate balance in the discovery process is one of the key responsibilities of the Court.
In Kwame Moore v. Western World Insurance Company, Civil Action No. 3:23-cv-3029-KHJ-MTP, United States District Court, S.D. Mississippi, Northern Division (July 12, 2024) the USDC dealt with discovery disputes between parties who could not resolve their differences.
THE DISCOVERY RULE
Federal Rule of Civil Procedure 26(b)(1) provides that: “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 benefits.”
FACTUAL BACKGROUND
According to Defendant, “Plaintiff has failed to produce emails, text messages and other documents which Western World knows were sent to Plaintiff.” As an example, Defendant stated that in response to a subpoena, Tom Weems (a third party who provided a report to Plaintiff indicating that hail caused damage to Plaintiff’s building) produced text messages between he and Plaintiff, which have not been produced by Plaintiff in response to requests for such information.
Plaintiff, through counsel, asserts that he has “conducted a search of his files and has no other documents to produce” and “cannot produce documents he does not have.”
Ordinarily, the representation of a party’s attorney that no additional documents exist is sufficient to defeat a motion to compel absent credible evidence that the representation is inaccurate. At this time the record does not establish that Plaintiff did or did not conduct a reasonable search. Plaintiff does not explain what efforts he made to find and produce responsive information or why responsive information he once possessed is no longer in his possession. Defendant has also not made this showing. Thus, Defendant has not demonstrated that Plaintiff is unlawfully withholding responsive information despite Plaintiff’s representations. Without more, counsel’s representation that Plaintiff does not possess responsive information is sufficient to defeat the Motion to Compel.
The denial of the Motion to Compel, however, was issued without prejudice to Defendant’s right to reassert it if Defendant can show Plaintiff possesses the information, failed to conduct a reasonable search, wrongfully disposed of the information, or otherwise violated his duties in discovery.
Defendant also requested that the Court compel a forensic examination of Plaintiff’s computers, cellphones, and mail servers. The Court found that the request is premature. If Plaintiff no longer possesses this information, the Court cannot determine whether a forensic examination is warranted. Thus, this request was denied without prejudice.
The Court also noted that Plaintiff also argued that he should not be required to produce duplicative documents which are already in Western World’s possession. However, it is not a bar to the discovery of relevant material that the same material may be in the possession of the requesting party or obtainable from another source. That Plaintiff makes this objection is curious given Plaintiff’s representations that he has no such information, duplicative or otherwise. To the extent Plaintiff is withholding responsive information based on this or any other objection, the Court grants the Motion to Compel.
On or before July 22, 2024, Plaintiff shall produce any responsive information previously withheld based on this objection or inform Defendant in writing that he is not withholding information based on this objection.
ZALMA OPINION
Before I retired from the practice of law I was an active insurance litigator and dealt with multiple annoying and overbroad discovery disputes designed to cost the insurer or the policyholder, rather than obtain information that would assist in the trial of the matter. The bludgeon of discovery became a weapon used to force a settlement unfavorable to the insurer or policyholder to avoid excessive attorneys fees and costs. The court tried to calm the excesses.
(c) 2024 Barry Zalma & ClaimSchool, Inc.
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Chutzpah: After Criminal Prosecution Defendant Sues USA
Post 5164
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Dr. Segun Patrick Adeoye, a medical doctor, filed a lawsuit against the United States of America, seeking damages for alleged violations during his criminal prosecution. He was acquitted by a jury but claims to have suffered significant harm, including financial losses, damage to his professional reputation, and personal distress.
In Dr. Segun Patrick Adeoye v. The United States Of America, Civil Action No. 4:25-cv-83, United States District Court, E.D. Texas, Sherman Division (July 23, 2025) the USDC dismissed Adeoye’s suit.
FACTUAL BACKGROUND
Dr. Adeoye was indicted on charges of conspiracy to commit wire fraud and money laundering. The indictment alleged that he and his co-conspirators obtained at least seventeen million dollars through various fraudulent schemes. Despite being acquitted, Dr. Adeoye claims that his ...
Payment of Appraisal Award Defeats Claim of Bad Faith
Post 5163
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Hurricane Damage to Dwelling Established by Appraisal Award
In Homeowners Of America Insurance Company v. Emilio Menchaca, No. 01-23-00633-CV, Court of Appeals of Texas, First District (July 31, 2025) after a hurricane Homeowners of America Insurance Company (“HAIC”) estimated that the cost of covered repair to Menchaca’s house was $3,688.54, which was less than his deductible, and therefore no payment would be made.
FACTS
After Menchaca retained counsel HAIC advised that, under the terms of the policy, Menchaca was required to first invoke the appraisal process prior to filing suit, and that HAIC reserved the right to request that Menchaca and any adjuster hired on his behalf submit to an Examination Under Oath (“EUO”).
On August 23, 2018, Menchaca’s counsel ...
Payment of Appraisal Award Defeats Claim of Bad Faith
Post 5163
Read the full article at https://lnkd.in/dNpKKcYx, see the full video at https://lnkd.in/dNgwRP8q and at https://lnkd.in/dA9dvd-D, and at https://zalma.com/blog plus more than 5150 posts.
Hurricane Damage to Dwelling Established by Appraisal Award
In Homeowners Of America Insurance Company v. Emilio Menchaca, No. 01-23-00633-CV, Court of Appeals of Texas, First District (July 31, 2025) after a hurricane Homeowners of America Insurance Company (“HAIC”) estimated that the cost of covered repair to Menchaca’s house was $3,688.54, which was less than his deductible, and therefore no payment would be made.
FACTS
After Menchaca retained counsel HAIC advised that, under the terms of the policy, Menchaca was required to first invoke the appraisal process prior to filing suit, and that HAIC reserved the right to request that Menchaca and any adjuster hired on his behalf submit to an Examination Under Oath (“EUO”).
On August 23, 2018, Menchaca’s counsel ...
Rulings on Motions Reduced the Issues to be Presented at Trial
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CASE OVERVIEW
In Richard Bernier v. State Farm Mutual Automobile Insurance Company, No. 4:24-cv-00002-GMS, USDC, D. Alaska (May 28, 2025) Richard Bernier made claim under the underinsured motorist (UIM) coverage provided in his State Farm policy, was not satisfied with State Farm's offer and sued. Both parties tried to win by filing motions for summary judgment.
FACTS
Bernier was involved in an auto accident on November 18, 2020, and sought the maximum available UIM coverage under his policy, which was $50,000. State Farm initially offered him $31,342.36, which did not include prejudgment interest or attorney fees.
Prior to trial Bernier had three remaining claims against State Farm:
1. negligent and reckless claims handling;
2. violation of covenant of good faith and fair dealing; and
3. award of punitive damages.
Both Bernier and State Farm dispositive motions before ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
See the full video at https://lnkd.in/gK_P4-BK and at https://lnkd.in/g2Q7BHBu, and at https://zalma.com/blog and at https://lnkd.in/gjyMWHff.
Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:
Health Care Fraud Trial Results in Murder for Hire of Witness
To Avoid Conviction for Insurance Fraud Defendants Murder Witness
In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...
Professional Health Care Services Exclusion Effective
Post 5073
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This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.
In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:
Insurance Coverage Dispute:
Travelers issued a Commercial General Liability ...
