Axelson v. Hartford Insurance Company of the Midwest
Filing
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ORDER Denying 23 Defendant's Motion for Protective Order Regarding its Litigation Conduct. Signed by Magistrate Judge George Foley, Jr on 02/13/2013. (Copies have been distributed pursuant to the NEF - AC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ESTHER AXELSON,
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Plaintiff,
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vs.
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HARTFORD INSURANCE COMPANY OF THE )
MIDWEST,
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Defendant.
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__________________________________________)
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Case No. 2:11-cv-01827-RCJ-GWF
ORDER
Motion for Protective Order (#23)
This matter comes before the Court on Defendant’s Motion for a Protective Order (#23),
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filed on December 19, 2013. Plaintiff filed a timely Opposition (#25) on January 2, 2013.
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Defendant filed a timely Reply (#26) on January 8, 2013. The Court conducted a hearing on the
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Motion on January 12, 2013. See Minutes of Proceedings, Doc. #32.
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The basis of Plaintiff’s claim is Defendant’s allegedly bad-faith refusal to pay Plaintiff the
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limits of an automobile insurance policy after an accident. Defendant represents that the subject
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policy included an uninsured motorist (“UIM”) benefit of up to $100,000, and that Defendant paid
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Plaintiff $5,000 in medical and $39,285 in UIM benefits. In support of her claim to the policy
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limits, Plaintiff provided a letter to Defendant from her treating physician, Dr. Elkanich, that stated
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Plaintiff “may be a candidate for multilevel cervical reconstruction.” See Doc. #23, Ehx. 1.
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Defendant claims Plaintiff refused to allow Defendant to ask Dr. Elkanich whether he believes
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Plaintiff’s medical issues are causally related to the accident at issue in this case. Plaintiff filed her
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bad faith claim in the Eighth Judicial District Court of Nevada on March 9, 2011, See Doc. #1, Exh.
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A, and Defendant filed its Petition for Removal (#1) on November 14, 2011.
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...
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Defendant now moves the Court for a protective order regarding any discovery into
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Defendant’s reasoning for not deposing Dr. Elkanich. On October 28, 2012, Plaintiff obtained the
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opinion of an insurance coverage expert, Joseph Vaccaro (“Vacccaro”). See Doc. #23, Exh. 2.
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Vaccaro concluded that Defendant acted in bad faith by, among other things, failing to promptly
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depose Dr. Elkanich after this action was filed to evaluate Plaintiff’s injuries.
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Federal Rule of Civil Procedure 26(b)(1) provides that parties may “obtain discovery
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regarding any non-privileged matter that is relevant to any party’s claim or defense.” Courts may
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limit discovery, however, “to protect a party or person from annoyance, embarrassment,
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oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). The party opposing disclosure
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has the burden of proving “good cause,” which requires a showing “that specific prejudice or harm
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will result” if the protective order is not granted. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
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1122, 1130 (9th Cir. 2003).
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Defendant argues its reason for not immediately deposing Dr. Elkanich is irrelevant and
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privileged. The Ninth Circuit has held that post-litigation conduct is properly excluded as evidence
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to prove bad faith. See, e.g., Storner v. Paul Revere Life Ins. Co., 220 Fed.Appx. 566, 567 (9th Cir.
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2007). Other courts have also held that an insurer’s post-litigation conduct is not relevant to bad
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faith or any other claim. See, e.g., Dakota, Minn, & E. R.R. Corp. v. Acuity, 771 N.W.2d 623, 635
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(S.D. 2009). Rule 26(b)(3)(B) provides that courts “must protect against disclosure of the mental
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impressions, conclusions, opinions, or legal theories of a party’s attorney [...] concerning the
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litigation.” Rule 26(c)(1), however, allows “a party or any person from whom discovery is sought”
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to move for a protective order (emphasis added). Here, Plaintiff has not propounded any discovery
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regarding Defendant’s litigation conduct or sought to depose Defendant’s counsel. Plaintiff’s
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counsel further represented at the January 12, 2013 hearing that he does not intend to seek any such
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discovery. Therefore, the Court finds that Defendant has not shown good cause for a protective
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order.
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Defendant should promptly file a motion in limine if it seeks to exclude Vaccaro’s opinion
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regarding Defendant’s litigation conduct. In the event the District Judge determines the opinion is
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admissible, Defendant’s rebuttal expert shall be afforded an opportunity to amend his/her report to
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address the litigation conduct issue, and Plaintiff shall be permitted to depose Defendant’s expert
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on the issue prior to trial. Accordingly,
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IT IS HEREBY ORDERED that Defendant’s Motion for Protective Order Regarding its
Litigation Conduct (#23) is denied.
DATED this 13th day of February, 2013.
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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge
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