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Christian Naylor, An Individual; and v. Navigators Insurance Company

October 5, 2012

CHRISTIAN NAYLOR, AN INDIVIDUAL; AND
CHRISTIAN NAYLOR DBA NAYLOR CONSTRUCTION, PLAINTIFFS,
v.
NAVIGATORS INSURANCE COMPANY, A CORPORATION; NAVIGATORS MANAGEMENT COMPANY, INC., A CORPORATION; LINCOLN GENERAL INSURANCE COMPANY, A CORPORATION; GEMINI INSURANCE COMPANY, A CORPORATION, W.R. BERKLEY CORPORATION, A CORPORATION AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANT.



The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge, U.S. District Court

ORDER GRANTING IN PART, DENYING IN PART PLAINTIFF'S ) MOTION TO COMPEL ) [ECF No. 38.]

I. INTRODUCTION AND PROCEDURAL HISTORY

On September 10, 2012, the Court held a telephonic discovery conference in the above- entitled matter. After hearing from counsel of record regarding the status of Defendant Gemini Insurance Company's responses to Plaintiff's Requests for Production, the Court requested briefing on Plaintiffs' motion to compel. Plaintiff Christian Naylor of Naylor Construction is a general contractor. Defendant Gemini Insurance is the insurance company of one of Plaintiff's subcontractors, Coast Contracting & Development, Inc. Plaintiff contends it is an additional insured under the subcontractor's policy with Gemini. As proof of its status as an additional insured, Plaintiff argues it was provided with a Certificate of Insurance and Additional Insured Endorsement. In the course of discovery, Plaintiff propounded Requests for Production ("RFP") on Gemini and Gemini objected to the RFPs on the following grounds: (1) confidential trade secret; (2) privileged under the attorney-client and work product doctrines; (3) relevance; and (4) overbreadth. Gemini's responsive document production consisted only of objections and certified copies of Gemini's insurance policies. Plaintiff's filed the instant motion to compel to obtain Gemini's claims file and other documents it contends are relevant and needed to respond to Gemini's motion for summary judgment on the issue of whether Plaintiff is an additional insured as is required by the Gemini insurance policy. The hearing on Gemini's motion for summary judgment is scheduled for October 15, 2012 at 10:30 a.m. before the Honorable Roger T. Benitez. [ECF No.40.]

A. Gemini Insurance Company's Objections to Plaintiff's RFPs Gemini argues Plaintiff's discovery requests are irrelevant and boilerplate in light of the fact that each of its insurance policies includes language defining an "additional insured" as: "an insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy." (Italics added.) Gemini argues the Certificate of Liability Insurance provided to Plaintiff by its subcontractor's insurance broker does not qualify as a written contract to add an insured as is required under Gemini's policy, but is merely a receipt showing that some policy has been issued. Gemini argues the majority of Plaintiff's one-size-fits-all production requests are irrelevant to the threshold issue here which is, does the Certificate of Liability Insurance ("COI") constitute a written contract or agreement under the Gemini policy language? Gemini argues that the lack of an actual contract naming Plaintiff as an additional insured as required by Gemini makes Plaintiff's document requests on the issues of what may constitute an agreement or what would constitute a waiver of the additional insured policy provision irrelevant.

B. Plaintiff's Motion to Compel Responses to Its Requests for Production Plaintiff argues it has the right to review Gemini's claims file to determine whether it contains any information to support Plaintiff's allegations rather than allowing Gemini to determine what in the claims file may be likely to lead to relevant evidence. Specifically, Plaintiff states it might discover information in the claims file pertaining to: (1) Gemini's reasons for declining coverage; (2) Gemini's initial interpretation and review of the policy language such that a waiver argument could be made in support of Plaintiff's claim; and (3) communications between Gemini and its broker regarding the Certificate of Insurance or the additional insured provisions. Plaintiff also argues it needs claims file information to oppose Gemini's pending motion for summary judgment*fn1 on the issue of whether Plaintiff is an additional insured under its subcontractor's policy with Gemini. Plaintiff notes that the standard of review for a motion to compel is broad-based and designed to assist Plaintiff not only in proving its contract claim on the issue of whether Plaintiff qualifies as an additional insured, but Plaintiff's overall claim for bad faith.

II. Standard under Rule 26 of the Federal Rules of Civil Procedure "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). This rule is to be considered broadly, to include "any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

III. DISCUSSION

The Court has reviewed the parties' briefing as well as Plaintiff's RFPs and Gemini's objections and responses. The Court finds many of Plaintiff's requests are general and overbroad (such as RFP Nos. 28-38 on data retention policies) and unlikely to assist Plaintiff in collecting facts to support its opposition to the motion for summary judgment on the limited issue of whether Plaintiff is an additional insured under the Gemini insurance policy. In its motion to compel, Plaintiff acknowledges the time is not yet ripe for discovery on data retention issues and requests the Court reserve ruling on RFP Nos. 28 to 38 until, if necessary, a further document production and meet-and-confer process have been done. [ECF No. 38 at p. 8.] The Court agrees. Therefore, Plaintiff's motion to compel responses to RFP Nos. 28 to 38 is DENIED WITHOUT PREJUDICE. As for requests that pointedly address the policy interpretation and claims handling information that Plaintiff contends is vital to support its claim and oppose the motion for summary judgment, Plaintiff's specifically identifies the following RFPs in the chart below for the Court's consideration in its motion to compel. The Court's ruling appears in the third and last column.

Request for Production Arguments re: Relevance Court's Ruling No.

#2: Any and all Plaintiff contends underwriting Risk assessment and the costs DOCUMENTS or tangible information would indicate of coverage and/or premiums things RELATING TO the whether Gemini included is not at issue in this case and underwriting or issuance of Plaintiff as a factor in its is irrelevant on the issue of YOUR liability Insurance assessment of risk. whether the COI qualifies as POLICY numbers ... a written agreement sufficient including all Schedules, to name Plaintiff as an Endorsements and Forms additional insured. attached and made a part Plaintiff's motion as to RFP of the policy. No. 2 is DENIED.

#3: Any and all Plaintiff contends reinsurance Risk management between DOCUMENTS pertaining information would indicate two or more insurance to reinsurance, between whether Gemini included companies in an insurer/ February 26, 2004, and the Plaintiff as a factor in its reinsurer relationship is not at present for the subject assessment of risk. issue here and is irrelevant as POLICY. to whether the COI qualifies as a written agreement sufficient to name Plaintiff as an additional insured. Plaintiff's motion as to RFP No. 3 is DENIED.

#4: Any and all Plaintiff contends the The threshold issue which DOCUMENTS establishment of a reserve may permeates this case and is RELATING TO reserves show whether Gemini believed presented by Defendant's for any CLAIMS made on there was coverage under the motion for summary the policy. policy for additional insureds. judgment is whether there is coverage for Plaintiff as an additional insured. The establishment of, or amount of, reserves kept by Gemini in order to meet its insurance obligations is not at issue here and is irrelevant on the issue of whether the COI qualifies as a written agreement sufficient to name Plaintiff as an additional insured. Plaintiff's motion as to RFP No. 4 is DENIED.

#5 and #6: Any and all Plaintiff argues cost information The costs incurred by Gemini DOCUMENTS...COMMU is typically requested in a bad as a result of claims made on NICATIONS.... faith insurance case and cost the policy has no bearing on RELATING TO the costs information may suggest the issue of whether the COI of any CLAIMS made on whether Gemini acted as if qualifies as a written the POLICY that was there was contract between agreement sufficient to name handled by YOU from Plaintiff and the subcontractor. Plaintiff as an additional February 26, 2004 to insured. Plaintiff's motion present, including but no as to RFP Nos. 5 and 6 is limited to memorandums, DENIED. letters and electronic mail.

#7: The originals of any Plaintiff contends underwriting Risk assessment and the costs and all DOCUMENTS information would indicate of coverage and/or premiums RELATING TO YOUR whether Gemini included is not at issue in this case and complete underwriting file Plaintiff as a factor in its is irrelevant on the issue of for the POLICY, including assessment of risk. whether the COI qualifies as all information related to a written agreement sufficient your investigation for any to name Plaintiff as an CLAIMS made on the additional insured. POLICY from ...


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