Free Motion to Compel - District Court of Colorado - Colorado

Case 1:00-cv-02098-REB-MJW

Document 219

Filed 04/16/2007

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-02098-REB-MJW

KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and all others similarly situated, Plaintiffs, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

PLAINTIFF'S MOTION TO COMPEL

COMES NOW the Plaintiff, Kelly Fincher, by and through her undersigned counsel, and pursuant to Rule 37(a), F.R.C.P., moves for an Order of the Court, compelling discovery as more fully explained below. 1. Certificate of Compliance. Pursuant to L.R. 7.1, the undersigned has made

efforts to resolve this discovery dispute with opposing counsel prior to the initiation of this Motion, but without success. Correspondence pertaining to efforts to resolve discovery disputes is attached hereto. 2. This case has been pending since 2001, and has been the subject of at least

one Tenth Circuit Appeal. It now has a trial date of October 15, 2007. Written Discovery Cutoff in this matter was April 9, 2007, and Fact Discovery Cutoff deadline is May 4, 2007. 1

Case 1:00-cv-02098-REB-MJW

Document 219

Filed 04/16/2007

Page 2 of 4

3.

In anticipation of the May 4, 2007, deadline, on March 11, 2007, counsel for

Plaintiff sent the attached letter requesting the supplemental Rule 30(b)(6) deposition of the Prudential representative with knowledge regarding the items outlined in that letter (Exhibit A). 4. Counsel for Prudential, in a letter dated March 23, 2007, opposed said

discovery request (Exhibit B). 5. The Plaintiff's entitlement to this discovery is clear. First, there has been a

considerable passage of time since a Prudential representative has been deposed on the issues of the company's handling of this claim, including its perception of its obligation to pay benefits to or on behalf of Ms. Fincher. The case law establishes that bad faith issues in an insurance case can be ongoing even during litigation. See Tait v. Hartford

Underwriters Insurance Co., 49 P.3d 337 (Colo. App. 2001); Southerland v. Argonaut Insurance Co., 794 P.2d 1102 (Colo. App. 1990); Dale v. Guar. Nat'l Ins. Co., 948 P.2d 545 (Colo. 1997). 6. After a Prudential representative was deposed in this case, the trial court

ruled that the subject policy is deemed reformed and established an effective date of reformation of May 8, 1994, the date of Ms. Fincher's accident. Because these

developments postdate the last deposition, Plaintiff needs to address facts that weren't at issue previously. One of the fundamental issues in this case is about why Prudential did not tender payment at various times after the effective date of reformation. Because the effective date was not established until after the initial deposition, Fincher is entitled to discover facts surrounding Prudential's knowledge and conduct at all times relating to the

2

Case 1:00-cv-02098-REB-MJW

Document 219

Filed 04/16/2007

Page 3 of 4

effective date of reformation. 7. These issues have not been altered by the court's recent denial of class

certification, as they relate just as readily to Ms. Fincher's individual case. If Prudential has "stonewalled" payment of benefits in light of controlling case law or paid other claims while leaving this one unpaid for a period of time, then such conduct is relevant to the pending bad-faith claims. Prudential's claim that it is without employees who are knowledgeable is irrelevant or not entirely accurate. Under Rule 30(b)(6), Prudential has to designate the a knowledgeable person, regardless of that person's actual knowledge. Moreover, because Prudential necessarily still has to adjust PIP claims, including Ms. Fincher's, and indeed made payment to her after the court's recent rulings, there must be a person who can speak to the designated issues with actual knowledge. WHEREFORE, the Plaintiff moves for an Order of this Court, pursuant to F.R.C.P. 37, compelling Defendant to produce the Prudential representatives under Rule 30(b)(6) for the purpose of submitting to an oral deposition regarding the issues identified in the March 11, 2007, letter.

3

Case 1:00-cv-02098-REB-MJW

Document 219

Filed 04/16/2007

Page 4 of 4

Respectfully submitted this 16th day of April, 2007. s/L. Dan Rector L. Dan Rector FRANKLIN D. AZAR & ASSOCIATES, PC 5536 Library Lane Colorado Springs, CO 80918 s/Robert B. Carey Robert B. Carey Leif Garrison THE CAREY LAW FIRM 2301 East Pikes Peak Avenue Colorado Springs, CO 80909

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on 16th day of April, 2007, electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] s/L. Dan Rector L. Dan Rector

4