Santoro v GEICO

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Santoro v GEICO 2011 NY Slip Op 32564(U) September 27, 2011 Supreme Court, Nassau County Docket Number: 0016434-10 Judge: Vito M. DeStefano Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. , -- [* 1] SUPREME COURT - STATE OF NEW YORK Present: HON. VITO M. DESTEFANO, Justice TRIL/IS , PART 21 NASSAU COUNTY THERESA M. SANTORO, Decision and Order Plaintiff, -against- MOTION SUBMITTED: May 26, 2011 MOTION SEQUENCE:03, 04 INDEX NO. 001634- GEICO, Defendant. The following papers and the attachments and exhibits thereto have been read on this motion: Notice of Motion Notice of Cross Motion Affrmation in Opposition and Reply Reply Affrmation In an action to recover supplementa underinsured motorist (SUM) coverage pursuat to an automobile liabilty insurance policy issued by the Defendant , the Plaintiff moves for an order inter alia pursuant to CPLR 3124 , compellng the Defendant to produce: its insurance claims file; for a fuer deposition, the claims examiner responsible for handling the Plaintiff's SUM claim , and for a deposition, the " claims supervisor . The Plaintiff also moves , pursuant CPLR 2221 , for an order granting her leave to renew the branch of her motion which , in effect , sought an order pursuat to CPLR 3212 (g), and which was denied by the cour in an order dated July 2010. The Defendant cross-moves pursuant to CPLR 3103 (a) for a protective order: regarding the Plaintiff's demand for disclosure of the claims fie; and denying Plaintiffs motion to the extent that it seeks a fuer examination of the claims examiner and a deposition of the claims supervisor. The Defendant also opposes Plaintiff's motion for leave to renew and seeks an order , pursuat to CPLR 3124 , compelling the Plaintiff to provide an authorization to obtan medical records of a prior treating ortopedic surgeon. , . [* 2] For the reasons that follow, the Plaintiff's motion and the Defendant' s cross motion are granted in par and denied in par. Disclosure of the Defendant' s Claim File The burden of demonstrating that specific material is not subject to discovery under 3101 (d) (2) because it was prepared solely in anticipation of litigation is upon the par opposing such disclosure (McCarthy Klein, 238 AD2d 552 (2d Dept 1997)). The burden is met " identifying the paricular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation (Bombard Arnica Mutual Insurance Co., 11 AD3d 647 (2d Dept 2004); McCarthy Klein 238 AD2d at 553- , supra; Landmark Insurance Co. Beau Rivage Restaurant 121 AD2d 98 (2d Dept 1986)). At bar, the Defendant wrote in a letter, dated Februar 16, 2011 , that "the issue here is the evaluation of the value of a claim (and) (t)hat does not permit the Plaintiff to seek (Defendant' claim fie , which is otherwse privileged" (Ex. " 5" to Plaintiff's Motion). Given the Defendant' mere blanet assertion of privilege , the Defendant has failed to identify which documents are privileged and , thus, has a fortiori failed to demonstrate that such documents were prepared in anticipation of litigation (McCarthy Klein 238 AD2d at 554 supra; Gibson Encompass Insurance Co. 23 AD3d 1047 (4 Dept 2005 (affrming denial of the insurer s motion to strke the plaintiffs notice to produce the insurer s claim file )). Moreover, the payment or rejection of a claim is "par of the regular course of business of an insurance company (Bombard Arnica Mutual Insurance Co., 11 AD3d at 648 supra). this regard, reports prepared by insurance adjusters , investigators , etc. , before a decision is made on a claim are thus not privileged and are discoverable " even when those reports are mixed/multi-purose reports , motivated in par by the potential for litigation with the insured" American Transit Insurance Co. 280 AD2d 328 (1 Dept 2001) (materials (Id; Woodson prepared by an insurer in contemplation of defending a claim against an insured are not privileged in subsequent litigation by the insured against the insurer respecting the insurer handling of the claim); Fireman s Insurance Company of Newark, New Jersey 41 AD2d Gray, 1 It is also noted that the Defendant failed to comply with CPLR 3122(a), which provides that if par objects to disclosure , such objection must be made within 20 days of service of the notice for disclosure by serving a response stating with reasonable particularly the reasons for such objection. On December 14 , 2010 , the Plaintiff served a combined demand for discovery and inspection on defense counsel (Ex. " 2" to Plaintiffs Motion). The demand asked for the production of a complete and certified copy of the entire claim fie (Ex. "2" to Plaintiff's Motion). The Defendant did not oppose this demand until Februar 16 2011 (Ex. " 5" to Plaintiffs Motion). .. )). [* 3] 863 (3d Dept 1973) (underwiting and claim fies in an uninsured motorist coverage claim did not consist of material prepared for litigation as action for a declaratory judgment was agaist the insurers themselves as distinguishable from litigation of an action against their insureds which insurers were called upon to defend" The Defendant' s suggestion that discovery of the claim file is unwaranted because the Plaintiff's claim was not rejected is without merit. 2 Significantly, the Defendant' s payment of $75 000 pursuat to a SUM policy with a $300 000 limit is akin to a parial rejection of the clai (see, Palmieri Allstate Insurance Co. 289 AD2d 314 (2d Dept 2001)). Accordingly, disclosure of Defendant' s claim fie up until the time Defendant made its ' offer of $75 000 is material and necessar for the prosecution of Plaintiffs action. 3 In this regard , a deposition of the senior claims examiner ZeZe Giwa- Osagie (" claims examiner ) is waranted , limited in scope to the contents of the claim fie prepared prior to the time that Defendant conveyed its offer of $75, 000. fuer Plaintiff's request to depose the claim s supervisor , Travis Huebner (" supervisor ), is denied inasmuch as it was the claims examiner who set up the claim file and handled the Plaintiffs claim from its inception (Ex. " 6" to Plaintiff's Motion at pp. 28- 29). The isolated statements at the deposition of the claims examiner that the supervisor " set the reserve" and "had input with regard to this claim " are insufficient , at this junctue , to require his deposition (see Yeshiva Tiferes Torah Kesher International Trading Corp. 246 AD2d 538 (2d Dept 1998)). With respect to that branch of the Plaintiff's motion seeking leave to renew her motion for sumar judgment , the cour notes the following: In a prior motion for sumar judgment the Plaintiff, in effect , asked the cour to determine for trial , issues of liabilty respecting the happenig of the accident and that she suffered a serious injur (CPLR 3212(g)). In its decision and order dated , July 20 , 2010 , the cour inter alia denied the branch of the motion seeking a determination respecting liabilty for the happening of the accident. In the instat motion , the Plaintiff seeks renewal based on deposition testimony from the claims examiner taen subsequent to the July 20 2010 order in which she stated that the Defendant had determined that Plaintiff was not responsible for the happening of the accident. Neverteless , inasmuch as the relief previously requested sought a determination of " liabilty" - 2 The Plaintiff asserts that " (i)fthere had been a rejection of coverage, then the basis upon which the carier reached that conclusion could arguably be discoverable " (Affidavit in Support of Cross Motion at p 7). 3 The claims examiner testified at her deposition that the claim was " put made the offer of$75 OOO (Ex. " 6" to Plaintiffs Motion at p 61). into suit after (she . ,- [* 4] that is, actul for the happening of the accident, and the evidence presented herein though germane to Defendant's alleged bad faith , does not establish the fact of Plaintiff's freedom from fault in the accident. Accordingly, the branch of the motion seeking leave to renew is denied. responsibility Defendant' s Cross Motion The branch of the Defendant' s cross motion seeking an order compellng the Plaintiff to provide an authorization to obtain medical records from the Plaintiff's prior treating ortopedic surgeon (Dr. Daniel Rich) is granted. Notwthstanding Plaintiff's arguent that the ortopedic surgeon treated her for unelated injures and that she " is not claiming an injur to her knees (plaintiffs Affirmation in Opposition and Reply at 20- 21), her bil of pariculars alleges that she suffered inter alia a contusion on her right knee and decreased range of motion in her knee and that such injures will " affect the plaintiff's mobilty and consequently the quaity of her life (Ex. " D" to Defendant's Motion). Accordingly, Plaintiff is directed to provide an authorization of the Plaintiffs prior treating ortopedic surgeon. Based on the foregoing, it is hereby ordered that: the branch of the Plaintiff's motion seeking production of the claim fie is granted to the extent indicated herein and said file shall be produced within 15 days of the date hereof; the branch of the Plaintiffs motion seeking a deposition of ZeZe Giwa- Osagie is granted and such deposition shall be limited in scope to matters pertning to the claim fie and shall take place withn 45 days of the date hereof; the Plaintiff's motion is denied in all other respects. The branch of Defendant' s cross motion seeking a protective order with respect to its claim fie is granted in par and denied in par , as indicated herein; the branch of Defendant's cross motion seeking a protective order regarding the fuer deposition of Zeze Giwa- Osagie is granted in par and denied in par, as indicated herein; the Defendant' s cross motion is , in all other respects , granted , and the Plaintiff shall provide the requested authorization within 15 days of the date hereof. fuer This constitutes the decision and order of the cour. DATE: September 27 2011 ENTERED SEP 28 2011 NAHAU COUNTY COUNTY CLERK" OfFICE

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