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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Jury’s Findings Interpreting Insurance Contract Affirmed
Post 5105
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Madelaine Chocolate Novelties, Inc. (“Madelaine Chocolate”) appealed the district court’s judgment following a jury verdict in favor of Great Northern Insurance Company (“Great Northern”) concerning storm-surge damage caused by “Superstorm Sandy” to Madelaine Chocolate’s production facilities.
In Madelaine Chocolate Novelties, Inc., d.b.a. The Madelaine Chocolate Company v. Great Northern Insurance Company, No. 23-212, United States Court of Appeals, Second Circuit (June 20, 2025) affirmed the trial court ruling in favor of the insurer.
BACKGROUND
Great Northern refused to pay the full claim amount and paid Madelaine Chocolate only about $4 million. In disclaiming coverage, Great Northern invoked the Policy’s flood-exclusion provision, which excludes, in relevant part, “loss or damage caused by ....
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Post 5104
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Contract Interpretation is Based on the Clear and Unambiguous Language of the Policy
In Associated Industries Insurance Company, Inc. v. Sentinel Insurance Company, Ltd., No. 23-CV-10400 (MMG), United States District Court, S.D. New York (June 16, 2025) an insurance coverage dispute arising from a personal injury action in New York State Supreme Court.
The underlying action, Eduardo Molina v. Venchi 2, LLC, et al., concerned injuries allegedly resulting from a construction accident at premises owned by Central Area Equities Associates LLC (CAEA) and leased by Venchi 2 LLC with the USDC required to determine who was entitled to a defense from which insurer.
KEY POINTS
Parties Involved:
CAEA is insured by Associated Industries Insurance Company, Inc. ...
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Post 5103
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Attack by Vicious Dog Excluded
In Foremost Insurance Company, Grand Rapids, Michigan v. Michael B. Steele and Sarah Brown and Kevin Lee Price, Civil Action No. 3:24-CV-00684, United States District Court, M.D. Pennsylvania (June 16, 2025)
Foremost Insurance Company (“Foremost”) sued Michael B. Steele (“Steele”), Sarah Brown (“Brown”), and Kevin Lee Price (“Price”) (collectively, “Defendants”). Foremost sought declaratory relief in the form of a declaration that
1. it owes no insurance coverage to Steele and has no duty to defend or indemnify Steele in an underlying tort action and
2. defense counsel that Foremost has assigned to Steele in the underlying action may withdraw his appearance.
Presently before the Court are two ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
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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 ...
A Heads I Win, Tails You Lose Story
Post 5062
Posted on April 30, 2025 by Barry Zalma
"This is a Fictionalized True Crime Story of Insurance Fraud that explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help everyone to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime."
Immigrant Criminals Attempt to Profit From Insurance Fraud
People who commit insurance fraud as a profession do so because it is easy. It requires no capital investment. The risk is low and the profits are high. The ease with which large amounts of money can be made from insurance fraud removes whatever moral hesitation might stop the perpetrator from committing the crime.
The temptation to do everything outside the law was the downfall of the brothers Karamazov. The brothers had escaped prison in the old Soviet Union by immigrating to the United...
