From FC&S Legal: Insurers in Federal DJ Action Granted Protective Order Against Discovery Sought by Third Parties Suing Their Insured in State Court.
A federal district court in Georgia has granted a protective order to insurance companies that filed a declaratory
judgment action, which order protects the insurers against discovery sought not by their insured, but by third parties
suing their insured in a parallel state court case.
Insurers in Federal DJ Action Granted Protective Order Against Discovery Sought by Third Parties Suing Their Insured in State Court
1. The Insurance Coverage Law Information Center
The following article is from National Underwriter’s latest online resource,
FC&S Legal: The Insurance Coverage Law Information Center.
INSURERS IN FEDERAL DJ ACTION GRANTED PROTECTIVE ORDER
AGAINST DISCOVERY SOUGHT BY THIRD PARTIES SUING THEIR
INSURED IN STATE COURT
January 6, 2014 Steven A. Meyerowitz, Esq., Director, FC&S Legal
A federal district court in Georgia has granted a protective order to insurance companies that filed a declaratory
judgment action, which order protects the insurers against discovery sought not by their insured, but by third parties
suing their insured in a parallel state court case.
The Case
Thurman Lee Howard allegedly drove his car along Interstate 95 in Georgia, became “road-raged,” pulled alongside the
Frank Powers family, took out his pistol, and fired at least five rounds into their vehicle. Mr. Powers claimed that he:
suffered physical injury from flying glass, emotional harm, and physical and mental pain and suffering as a direct and
proximate result of ... [Mr.] Howard’s actions.
He and his family sued Mr. Howard in a state court in Georgia for, among other things, negligence, assault, and intentional
infliction of emotional distress.
The two insurance carriers that had issued vehicle and umbrella policies to Mr. Howard subsequently filed a declaratory
judgment action in federal district court in Georgia, naming Mr. Howard and the Powerses as defendants. The carriers
sought a judgment declaring that the policies did not extend to Mr. Howard’s allegedly intentional conduct because of
the policies’ intentional-conduct exclusions.
The Powerses served Fed.R.Civ.P. 30(b)(6) deposition notices on the insurers in the declaratory judgment action. They
sought to have their designated witness bring to the deposition things including the policies and procedures that they
used to process Mr. Howard’s coverage claim. They also sought:
[a] complete copy of any and all documentation related to and/or generated in response to claims evaluation and/or
policy interpretation utilized in processing ... [Mr.] Howard’s claim in connection with [their case against him].
Additionally, they sought:
all documentation related to and/or generated in response to claims evaluation and/or policy interpretation utilized in
the processing of ... [Mr.] Howard’s claim in connection with [the declaratory judgment action].
The insurers sought a protective order from the federal district court, arguing that the Powerses wanted claims adjuster
and attorney work product memos, legal billing, and other information. The insurers contended that such “claims
handling” materials were irrelevant and violated various privileges.
The Court’s Decision
The court granted a protective order to the insurers.
In its decision, it first explained that the Powerses, as parties in the case, were entitled to conduct discovery. The court
then ruled that enabling a “stranger to the contract” – the Powerses, who pointed to no assignment of any claim from
Call 1-800-543-0874 | Email customerservice@SummitProNets.com | www.fcandslegal.com
2. Mr. Howard against his insurers – to “rake through the work-product/attorney communications portion of [the insurers’]
claims file [was] not warranted under Rule 26(b)(1).”
The court added that the Powerses were “literally at the scene” of the accident so that they were “in the best position to
prove via direct testimony what [Mr.] Howard did to them that day.” In the court’s view, the insurers’ claims files likely had
“only hearsay-based recitations, as gathered by an investigator, if not also attorney work product.”
The court conceded that it was conceivable that the files could contain a direct admission from Mr. Howard as well as
third party eyewitness statements, but it added that courts typically did not order such work product disclosures
(i.e., information beyond gathered facts) even for insureds.
The court did not grant the insurers everything they wanted. The court denied the insurers’ request for a protective
order to the extent that they were objecting to any Rule 30(b)(6) document request aimed at eliciting what facts they had
gathered as a matter of routine claims investigation in this case. The court, however, granted a protective order to the
insurers “against any demand to produce documents containing its agents’ and attorneys’ assessment of the strength
of [Mr.] Howard’s coverage claim against it, as well as other mental-impression based writings,” and the balance of the
insurers’ request.
The case is State Farm Mutual Automobile Ins. Co. v. Howard, No. CV412–215 (S.D. Ga. Dec. 27, 2013). Attorneys
involved include: Mason White, Brennan, Harris Rominger, LLP, Savannah, GA, for Plaintiffs; Travis D. Windsor,
Brennan Wasden, LLP, Savannah, GA, Stephen G. Lowry, Kristy B. Sweat, Harris, Penn Lowry, LLP, Savannah, GA,
for Defendants.
Call 1-800-543-0874 | Email customerservice@SummitProNets.com | www.fcandslegal.com
![The Insurance Coverage Law Information Center
The following article is from National Underwriter’s latest online resource,
FC&S Legal: The Insurance Coverage Law Information Center.
INSURERS IN FEDERAL DJ ACTION GRANTED PROTECTIVE ORDER
AGAINST DISCOVERY SOUGHT BY THIRD PARTIES SUING THEIR
INSURED IN STATE COURT
January 6, 2014 Steven A. Meyerowitz, Esq., Director, FC&S Legal
A federal district court in Georgia has granted a protective order to insurance companies that filed a declaratory
judgment action, which order protects the insurers against discovery sought not by their insured, but by third parties
suing their insured in a parallel state court case.
The Case
Thurman Lee Howard allegedly drove his car along Interstate 95 in Georgia, became “road-raged,” pulled alongside the
Frank Powers family, took out his pistol, and fired at least five rounds into their vehicle. Mr. Powers claimed that he:
suffered physical injury from flying glass, emotional harm, and physical and mental pain and suffering as a direct and
proximate result of ... [Mr.] Howard’s actions.
He and his family sued Mr. Howard in a state court in Georgia for, among other things, negligence, assault, and intentional
infliction of emotional distress.
The two insurance carriers that had issued vehicle and umbrella policies to Mr. Howard subsequently filed a declaratory
judgment action in federal district court in Georgia, naming Mr. Howard and the Powerses as defendants. The carriers
sought a judgment declaring that the policies did not extend to Mr. Howard’s allegedly intentional conduct because of
the policies’ intentional-conduct exclusions.
The Powerses served Fed.R.Civ.P. 30(b)(6) deposition notices on the insurers in the declaratory judgment action. They
sought to have their designated witness bring to the deposition things including the policies and procedures that they
used to process Mr. Howard’s coverage claim. They also sought:
[a] complete copy of any and all documentation related to and/or generated in response to claims evaluation and/or
policy interpretation utilized in processing ... [Mr.] Howard’s claim in connection with [their case against him].
Additionally, they sought:
all documentation related to and/or generated in response to claims evaluation and/or policy interpretation utilized in
the processing of ... [Mr.] Howard’s claim in connection with [the declaratory judgment action].
The insurers sought a protective order from the federal district court, arguing that the Powerses wanted claims adjuster
and attorney work product memos, legal billing, and other information. The insurers contended that such “claims
handling” materials were irrelevant and violated various privileges.
The Court’s Decision
The court granted a protective order to the insurers.
In its decision, it first explained that the Powerses, as parties in the case, were entitled to conduct discovery. The court
then ruled that enabling a “stranger to the contract” – the Powerses, who pointed to no assignment of any claim from
Call 1-800-543-0874 | Email customerservice@SummitProNets.com | www.fcandslegal.com](https://image.slidesharecdn.com/insurersinfederaldjactiongrantedprotectiveorderagainstdiscovery-140504165708-phpapp02/85/Insurers-in-Federal-DJ-Action-Granted-Protective-Order-Against-Discovery-Sought-by-Third-Parties-Suing-Their-Insured-in-State-Court-1-320.jpg?cb=1399222822)
![Mr. Howard against his insurers – to “rake through the work-product/attorney communications portion of [the insurers’]
claims file [was] not warranted under Rule 26(b)(1).”
The court added that the Powerses were “literally at the scene” of the accident so that they were “in the best position to
prove via direct testimony what [Mr.] Howard did to them that day.” In the court’s view, the insurers’ claims files likely had
“only hearsay-based recitations, as gathered by an investigator, if not also attorney work product.”
The court conceded that it was conceivable that the files could contain a direct admission from Mr. Howard as well as
third party eyewitness statements, but it added that courts typically did not order such work product disclosures
(i.e., information beyond gathered facts) even for insureds.
The court did not grant the insurers everything they wanted. The court denied the insurers’ request for a protective
order to the extent that they were objecting to any Rule 30(b)(6) document request aimed at eliciting what facts they had
gathered as a matter of routine claims investigation in this case. The court, however, granted a protective order to the
insurers “against any demand to produce documents containing its agents’ and attorneys’ assessment of the strength
of [Mr.] Howard’s coverage claim against it, as well as other mental-impression based writings,” and the balance of the
insurers’ request.
The case is State Farm Mutual Automobile Ins. Co. v. Howard, No. CV412–215 (S.D. Ga. Dec. 27, 2013). Attorneys
involved include: Mason White, Brennan, Harris Rominger, LLP, Savannah, GA, for Plaintiffs; Travis D. Windsor,
Brennan Wasden, LLP, Savannah, GA, Stephen G. Lowry, Kristy B. Sweat, Harris, Penn Lowry, LLP, Savannah, GA,
for Defendants.
Call 1-800-543-0874 | Email customerservice@SummitProNets.com | www.fcandslegal.com](data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7)