MAY 2014 BAD FAITH CASES: COURT PERMITS MOST OF INSURER’S DISCOVERY REQUESTS ADDRESSING THE INSURED’S RESIDENCE WHERE INSURER WAS DECLINING COVERAGE BASED ON ALLEGED MATERIAL MISREPRESETATION ABOUT RESIDENCE; COURT PROHIBITS DISCOVERY OF INSURED’S THIRD PARTY LITIGATION FILE WHERE CLAIM AGAINST INSURER WAS FOR FIRST PARTY MEDICAL BENEFITS (Middle District)
In McBride v. Infinity Prop. & Cas. Corp., the court addressed an insurer’s subpoenas to third parties, arising out of personal injuries from an auto accident. The carrier had refused to pay its insured first party medical benefits on the basis that the insured allegedly misrepresented his state of domicile at the time he made his application for insurance; and that stating the residence as Bushkill, Pennsylvania rather than New York was a material misrepresentation, and there is no coverage due.
The court observed the general propositions that discovery is generally permitted of any items that are relevant or may lead to the discovery of relevant information, and that discovery need not be confined to items of admissible evidence but may encompass that which appears reasonably calculated to lead to the discovery of admissible evidence.
However, a court will not permit discovery where a request is made in bad faith, unduly burdensome, irrelevant to the general subject matter of the action, or relating to confidential or privileged information. A party objecting to discovery bears the burden of demonstrating in specific terms why a discovery request is improper, and must show that the requested materials do not fall within the broad scope of relevance or else are of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.
The carrier had requested the insured’s litigation file with respect to his third party action against the tortfeasor’s insurer. Thus, because the claim at issue only concerned the right to recoup $5,000 in first party medical benefits the court did not permit discovery into the third party case. The information was irrelevant to the question whether the insured incurred medical costs aggregating to $5,000.00 in connection with the accident.
The insurer could find the answer from the records of the treating physicians’ records, or by deposition if necessary. There was “no need to intrude into Plaintiff’s litigation file, which includes documents that generally fall under the protection of the attorney/client privilege, when the relevant information is easily obtainable from other reliable sources.”
Second, the carrier asked for tax returns. The insured admitted he moved to Pennsylvania in 2012, so tax returns before that time were irrelevant, but on or after that time were relevant because the residence identified on the tax return would be relevant in comparing that to the residence listed on the insurance application.
The same logic followed in permitting discovery on voter identification. Next, the court permitted discovery of bank statements and credit card records as relevant to showing travel patterns, as the application stated the insured would generally be within a 50 mile radius of Bushkill; but again, this was limited to 2012 and thereafter. The actual balances and amounts could be redacted.
The court permitted subpoenas on banks, but these had to be reissued to encompass only the relevant time period.
Next plaintiff was required to produce documents relating to the receipt of government benefits for the relevant time period, and documents related to the insured driving a motor vehicle for the same time. The court refused to order documents for a business related to the insured, even though they would have been discoverable, because the company never got off the ground and so did not exist, and the court was not going to order production of nonexistent documents.
Noting that property ownership did not necessarily reveal residence, the court still permitted discovery of real property records for the relevant time period. On the other hand, the court readily permitted discovery of documents exchanged between the insured and his landlords in Pennsylvania and New York during the relevant period (other than anything of a truly personal nature).
Next the court permitted a subpoena to the New York Office of Temporary and Disability Assistance, which was potentially relevant to resolution of the main issue in this case, but its temporal scope had to be narrowed. If reissued along these lines, the court cautioned against further objection to this subpoena. Finally, the court permitting a subpoena directed to the Doe Fund, Inc. so long as temporally limited, and if done in accord with that directive, the court instructed the insured not to lodge any further objections.