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September 11, 2024
Insurance Litigants Should Never Play Games With Discovery

Litigants Must Meet & Confer to an Impasse Before Bringing Discovery Disputes to Court

Post 4889

PLAINTIFF ACTED INAPPROPRIATELY IN DISCOVERY DISPUTE

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In an insurance coverage action where Plaintiff alleged that Defendant breached its flood insurance policy by paying less than what Plaintiff asserts was the appropriate coverage amount under the policy, there was a dispute as a result of Plaintiff’s first set of interrogatories and first requests for production. On July 2, 2024, Plaintiff sought to initiate a Local Civil Rule 37 conference to discuss resolution of certain disputed items. The parties met on July 9, 2024. On July 26, 2024, Defendant sent Plaintiff a letter in response to the July 9, 2024, conference articulating Defendant’s position on certain discovery requests and agreeing to supplement its production where possible.

In Shane Collins v. American Bankers Insurance Company Of Florida, No. C23-1959-JCC, United States District Court, W.D. Washington, Seattle (August 29, 2024) the discovery dispute was resolved by the USDC finding the Plaintiff did not establish an impasse existed about the discovery discussions.

BACKGROUND

The record did not demonstrate an impasse, any subsequent conferral or attempt to confer, or any agreement in filing the Joint Submission.

DISCUSSION – Legal Standard

Parties may obtain discovery regarding any non privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. If requested discovery is withheld inappropriately or goes unanswered, the requesting party may move to compel such discovery. The Court also has broad discretion to decide whether to compel discovery.

A party filing a motion to compel under Local Rule 37 may do so unilaterally or jointly. The joint option follows an expedited procedure and affords parties the benefit of same day noting. Importantly, the parties must affirmatively agree to utilize the expedited procedure.

The motion must include a certification that the moving party has “in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to resolve the dispute without court action.” Fed.R.Civ.P. 37(a)(1).

A good faith effort to resolve discovery disputes requires an exchange of information until no additional progress is possible.

Plaintiff’s “Joint” Submission

Here, there is no indication that the parties agreed to file the LCR 37 Joint Submission. In fact, based on the record, it appears Plaintiff has entirely neglected the expedited procedure detailed in Local Rule 37 and proceeded without affirmative agreement from Defendant. Rather than share an initial draft with Defendant and allow Defendant seven days to insert its rebuttal, Plaintiff instead sent a final draft on July 31, 2024 and then only gave Defendant two days to respond.

Plaintiff ultimately filed the motion 12 days after it sent Defendant the “final” draft. However, the Court had no way of knowing if the parties agreed to or even complied with LCR 37’s procedural requirements in the meantime because the only record of discussion between the parties specifically regarding the motion is insignificant. Moreover, after receiving the purported final draft from Plaintiff, Defendant continued to question the need for a joint motion. The fact that Defendant questioned the need for a joint motion even after Plaintiff shared the purported final draft demonstrates the lack of agreement.

There is also no indication that the parties were at an impasse when Plaintiff filed the “joint” motion. Indeed, post-conference communications show that the parties agreed and expected that Defendant would continue to supplement its discovery responses. Ongoing discussions after an LCR 37 conference preclude a finding that no additional progress was possible. Defendant also provided Plaintiff with at least one supplemental production between the July 9, 2024, conference and the day Plaintiff filed the motion. The post-conference communications and supplemental production show the parties had not and have not reached an impasse justifying the Court’s intervention. As such, the Court concluded that the parties have not met the meet and confer certification requirements of Rule 37.

For the foregoing reasons, the Court denied the LCR 37 “Joint” Submission without prejudice.

ZALMA OPINION

Discovery in insurance disputes often bring about a lack of respect and cooperation between the parties. The courts, by rules like LCR 37, expect the litigants and their counsel to resolve their disputes – as much as possible – before seeking the assistance of the court. The parties submitted a discovery dispute to the court before they reached an impasse while meeting and conferring about the dispute. They failed to work together and the “Joint” submission was not joint and not submitted after the parties reached an impasse.

(c) 2024 Barry Zalma & ClaimSchool, Inc.

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00:08:18
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May 01, 2026
Zalma’s Insurance Fraud Letter – May 1, 2026

Happy Law Day

ZIFL – Volume 30, Issue 9 – May 1, 2026

Read the full article at https://www.linkedin.com/pulse/zalmas-insurance-fraud-letter-may-1-2026-barry-zalma-esq-cfe-2tywc, see the video at at and at https://zalma.com/blog plus more than 5300 posts.

THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL

ZIFL – Volume 30, Issue 9 – May 1, 2026

Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year and is written by Barry Zalma.

DOJ Creates National Fraud Enforcement Division

Will the Feds Take on Insurance Fraud? Possibly as Part of a National Anti-Fraud Effort

On April 7, 2026, the Acting Attorney General, Todd Blanche, issued a memorandum establishing the Department of Justice National Fraud Enforcement Division (NFED). The memo describes an ambitious, but perhaps redundant, vision for this ...

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April 30, 2026
The Efficient Proximate Cause Doctrine Saves a Claim

When Abalone Died As a Result of Multiple Causes The Efficient Proximate Cause Requires Payment

Post number 5345

Read the full article at https://www.linkedin.com/pulse/efficient-proximate-cause-doctrine-saves-claim-barry-zalma-esq-cfe-yndlc, see the video at and at and at https://zalma.com/blog plus more than 5300 posts.

In American Abalone Farms, LLC v. Star Insurance Company et al., H052643, California Court of Appeals, Sixth District (April 27, 2026) the Court of Appeals dealt with an insurance coverage issue that required application of the efficient proximate cause doctrine.

FACTS

American Abalone Farms, LLC ("American Abalone" ) operates an aquaculture farm in Santa Cruz County, California, raising abalone in tanks. In August 2020, the CZU Lightning Complex Fires led to a prolonged power outage and road closures near the farm. As a result, the farm’s water pumps failed, causing the death of most of the ...

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April 29, 2026
Breach of a Specific Condition Precedent Is a Complete Defense

Breach of a Specific Condition Precedent Is a Complete Defense

See the video at and at and at https://zalma.com/blog plus more than 5300 posts.

In United Services Automobile Association and State Farm Mutual Automobile Insurance Company v. Anthony Wenzell, 2026 CO 25 (Colo. Apr. 27, 2026) Anthony Wenzell was rear-ended in a car accident. He had a significant prior 2014 accident that required back surgery.

Wenzell claimed underinsured-motorist (UIM) benefits under three policies: (1) the tortfeasor’s liability policy, (2) his own primary UIM policy with State Farm, and (3) an excess UIM policy issued by USAA (under his brother’s policy, which contained an “other insurance” clause making USAA’s coverage excess over any collectible insurance).

After receiving the claims, both USAA and State Farm repeatedly requested that Wenzell execute comprehensive medical-release authorizations so they could obtain his full medical records and ...

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12 hours ago

It is Fraud to Make the Same Claim Twice

Read the full article at https://www.linkedin.com/pulse/fraud-make-same-claim-twice-barry-zalma-esq-cfe-c4g8c and at https://zalma.com/blog.

Chutzpah: After Being Paid for a New Roof Insured Makes Second Claim For Same Damages

Post number 5347

No One is Entitled to be Paid for the Same Loss Twice

In Mohammed Ali Khalili v. State Farm Lloyds, No. 14-25-00611-CV, Court of Appeals of Texas (April 30, 2026) Khalili maintained a State Farm Lloyds homeowners insurance policy for decades. In 2008 he filed a roof-damage claim; State Farm paid him to replace the entire roof (shingles and gutters). Khalili never replaced the roof and repeated his claim.

BACKGROUND

In 2021 he filed a second roof claim. State Farm’s inspectors found the roof “very old” with extensive non-storm-related damage. The claim was denied because (1) the damage did not exceed the deductible and (2) State Farm had already paid for a full roof replacement.

PROCEDURAL HISTORY

State Farm filed motion for summary...

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12 hours ago

It is Fraud to Make the Same Claim Twice

Read the full article at https://www.linkedin.com/pulse/fraud-make-same-claim-twice-barry-zalma-esq-cfe-c4g8c and at https://zalma.com/blog.

Chutzpah: After Being Paid for a New Roof Insured Makes Second Claim For Same Damages

Post number 5347

No One is Entitled to be Paid for the Same Loss Twice

In Mohammed Ali Khalili v. State Farm Lloyds, No. 14-25-00611-CV, Court of Appeals of Texas (April 30, 2026) Khalili maintained a State Farm Lloyds homeowners insurance policy for decades. In 2008 he filed a roof-damage claim; State Farm paid him to replace the entire roof (shingles and gutters). Khalili never replaced the roof and repeated his claim.

BACKGROUND

In 2021 he filed a second roof claim. State Farm’s inspectors found the roof “very old” with extensive non-storm-related damage. The claim was denied because (1) the damage did not exceed the deductible and (2) State Farm had already paid for a full roof replacement.

PROCEDURAL HISTORY

State Farm filed motion for summary...

post photo preview
April 30, 2026
Investigation of First Party Property Claims

What Must be Done after Notice of a Claim is Received by the Insurer

Read the full article at https://lnkd.in/gzvvdkMZ and at https://zalma.com/blog.

Below you will read from this post until you reach the the end of this blog post as the free part of an Excellence in Claims Handling post. To read the full article and receive all articles for members of Excellence in Claims Handling you should consider joining as a paid member to get full access to articles for members only, to our news, analysis, insurance coverage, claims, insurance fraud and insurance webinars, by clicking at the subscription link below.

A first party property policy does not insure property: it insures a person, partnership, corporation or other entity against the risk of loss of the property. Before an insured can make a claim for indemnity under a policy of first party property insurance the insured must prove that there was damage to property the risk of loss of which was insured by the policy. The obligation imposed on the insured ...

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