Pham v. Hartford Fire Insurance

193 F.R.D. 659, 2000 WL 776413
CourtDistrict Court, D. Colorado
DecidedJune 16, 2000
DocketNo. CIV.A. 98-WM-1833
StatusPublished
Cited by15 cases

This text of 193 F.R.D. 659 (Pham v. Hartford Fire Insurance) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pham v. Hartford Fire Insurance, 193 F.R.D. 659, 2000 WL 776413 (D. Colo. 2000).

Opinion

ORDER

BOLAND, United States Magistrate Judge.

This matter is before me on plaintiffs’ Motion for Entry of Default or, In the Alternative, an Extension of Time to Designate Experts and Provide Expert Reports (the “Discovery Motion”). The Discovery Motion [660]*660originally was filed July 13, 1999, and was denied by Magistrate Judge Donald E. Abram.1 The plaintiffs objected to Judge Abram’s Order, and on March 30, 2000, Judge Walker D. Miller sustained the objection and referred the Discovery Motion to me “to determine whether sanctions against defendant are appropriate or whether the discovery period should be reopened.” The Discovery Motion is GRANTED IN PART and DENIED IN PART.

1. Adequacy of Defendant’s Rule 26(a)(1) Initial Disclosures

Plaintiffs first complain that the defendant has not satisfied its obligation to make initial disclosures under Fed.R.Civ.P. 26(a)(1). In general, Rule 26(a)(1) requires a party to disclose the following information, among other things, without the necessity of a discovery request:

A. The name, address, and telephone number of each individual likely to have discoverable information relevant to disputed facts;
B. A copy or a description of all documents and things in the party’s possession, custody, or control that are relevant to disputed facts; and
C. A copy of any insurance agreement which may be available to satisfy part or all of any judgment which may be entered in the case.

In this case, plaintiffs have received from Erwin Ovidid Guerra an assignment of any rights he may have against Hartford Fire Insurance Company (“Hartford”) for breach of an insurance contract, bad faith breach of that insurance contract, and exemplary damages. Plaintiffs’ complaint alleges that Mr. Guerra was an employee of OSP Consultants, Inc. (“OSP”); that Mr. Guerra was involved in an auto accident in which Louis Diep Pham was killed and other of the plaintiffs were injured; that OSP’s business auto policy, issued by Hartford, covered Mr. Guerra at the time of the auto accident; and that Hartford improperly refused to provide such coverage. The complaint alleges claims against Hartford for breach of contract, bad faith breach of contract, and willful and wanton breach of contract. The complaint also alleges with particularity, at paragraph 40, the following facts:

Despite clear language within the Defendant’s policy and its broad form endorsement providing coverage to Plaintiff Guerra, Defendant denied coverage to Plaintiff Guerra and denied that Plaintiff Guerra had a right to be indemnified under the policy, without a reasonable basis for its denial; and Defendant knew that its denial was unreasonable or recklessly disregarded that fact. Defendant Hartford further acted in bad faith by favoring the interest of the insurance company over the interest bf the insured.

Thus, the complaint puts at issue, with particularity, Hartford’s decision to deny coverage in the face of the specific language of the insurance policy.

Hartford’s initial disclosure listed as individuals likely to have discoverable information the plaintiffs, people involved in the auto accident, and one Hartford employee — Jeff Powell of Hartford’s office in Englewood, Colorado. Hartford’s initial disclosure also listed one document as relevant to the disputed facts — OSP’s business auto policy. On its face, Hartford’s initial disclosure must be read as indicating that Mr. Powell alone made the decision to deny coverage based solely on the language of the insurance policy; that no one else was consulted or involved in that decision; and that there is no written communication, internally or between Hartford, OSP, or Mr. Guerra, concerning that decision. If that is so, Hartford’s initial disclosure satisfies the requirements of Fed. R.Civ.P. 26(a)(1). If not, Hartford has failed to meet its disclosure obligation.

To the extent that there are other individuals “likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings” that Hartford has not identified, and other documents, data complications, and tangible things in the pos[661]*661session, custody, or control of Hartford “that are relevant to disputed facts alleged with particularity in the pleadings,” I order that Hartford to supplement its disclosure in full conformity with the requirements of Fed. R.Civ.P. 26(e).

2. Adequacy of Defendant’s Responses to Written Discovery

Plaintiffs also complain that Hartford has not properly responded io their written discovery. The file indicates that plaintiffs served interrogatories and production requests on Hartford on March 30, 1999. Hartford’s responses were due 33 days later, on or before May 3, 1999. On May 28, 1999, the plaintiffs sought to modify the Scheduling Order to extend all deadlines by 90 days, based in part on the fact that Hartford had not responded to the written discovery.2 Judge Abram denied the request to extend the Scheduling Order deadlines, see Minute Order dated June 1, 1999, but ordered that “[defendant shall respond to outstanding discovery no later than June 10,1999.” Id. I can find no explanation for Hartford’s failure to respond to the written discovery by May 3, 1999. In particular, no motion to extend time to respond was filed. There is no indication that an informal extension was granted by plaintiffs’ counsel, but any such agreement would be ineffective in any event. D.C.COLO.LR 7.1M (“No agreement of counsel to shorten or extend any time limitation provided by the federal rules of civil ... procedure ... will be recognized or enforced, nor will such an agreement be considered just cause for failing to perform within the time limits established by those rules. Only time variances specifically approved by court order upon motion made within the time limits prescribed by those rules will be recognized as having any binding or legal effect”).

Rule 33(b)(3), Fed.R.Civ.P., requires that a party upon whom interrogatories are served “shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories.” Rule 33(b)(4) specifies a sanction for failure to make objections in a timely manner:

Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown.

See Byrd v. Reno, 1998 WL 429676 at *4 (D.D.C. Feb.12, 1998) (“A failure to file a timely objection to interrogatories constitutes a waiver of any objection unless good cause is shown”); Jayne H. Lee, Inc. v. Flagstaff Industries Corp., 173 F.R.D. 651, 653 (D.Md.1997) (“Fed.R.Civ.P.33(b)(4) provides that any ground for objecting to an interrogatory ... is waived if not timely stated (i.e. within 30 days of service), unless the failure to object is excused by the court for good cause shown”); Casson Const. Co., Inc. v. Armco Steel Corp., 91 F.R.D.

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Bluebook (online)
193 F.R.D. 659, 2000 WL 776413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pham-v-hartford-fire-insurance-cod-2000.