Defendant: PROGRESSIVE CASUALTY INSURANCE COMPANY COURT USE ONLY Counsel for Plaintiff: Marc R. Levy, #11372

Transcription

1 GRANTED Movant shall serve copies of this ORDER on any pro se parties, pursuant to CRCP 5, and file a certificate of service with the Court within 10 days. Dated: May 27, 2010 DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock St., Rm. 256 Denver, Colorado R. Michael Mullins District Court Judge DATE OF ORDER INDICATED ON ATTACHMENT Plaintiff: NORMAN UTLEY CONSTRUCTION, INC. v. Defendant: PROGRESSIVE CASUALTY INSURANCE COMPANY COURT USE ONLY Counsel for Plaintiff: Marc R. Levy, #11372 Case No.: 2009CV9741 Brian J. Waters, # Joshua R. Proctor, #33835 Courtroom: 19 LEVY, MORSE & WHEELER, P.C. Plaza Tower One, Suite S. Fiddlers Green Cir. Greenwood Village, CO Phone: (303) Fax: (303) mlevy@levymorsewheeler.com, bwaters@levymorsewheeler.com, jproctor@levymorsewheeler.com PLAINTIFF S MOTION FOR PROTECTIVE ORDER RE: RECORDS DEPOSITION AND SUBPOENA DUCES TECUM SERVED UPON BITUMINOUS INSURANCE COMPANY PLAINTIFF, Norman Utley Construction, Inc. ( Utley ), through counsel, submits its Motion for Protective Order Re: Records Deposition and Subpoena Duces Tecum Served upon Bituminous Insurance Company and states as follows: Certification Pursuant to C.R.C.P (8) Undersigned counsel for Plaintiff certifies that they conferred with defense counsel about this motion and are advised that Defendant opposes the relief requested herein. 1. This motion requests the Court issue a Protective Order precluding Defendant from obtaining certain records from Plaintiff s liability insurance carrier that are 1) irrelevant to

2 the case at bar and/or 2) subject to the protection of the attorney-client privilege and/or work product doctrine. 2. On April 19, 2010, Defendant served Plaintiff with a copy of its Subpoena to Attend Deposition Subpoena Duces Tecum directed toward Bituminous Insurance Company. See Exhibit 1. The subpoena requests Bituminous appear for and produce records at an April 30, 2010 deposition. 3. Bituminous is Plaintiff s liability insurance carrier who defended and indemnified Plaintiff against the claims made against Plaintiff in the underlying personal injury lawsuit of Knol v. Norman Utley Construction, Inc., (Montezuma County District Court Case No. 2009CV9741). Bituminous provided defense and indemnity pursuant to a liability insurance contract issued by Bituminous to Plaintiff. 4. Plaintiff and its counsel communicated with Bituminous during the course of the underlying personal injury lawsuit regarding Plaintiff s defense against Mr. Knol s claims. Such communications were made in the context of the attorney-client relationship and/or in anticipation of and directly related to litigation against Plaintiff. These communications whether written, electronic or otherwise, are subject to the protection of the attorney-client privilege and/or the work product doctrine. See C.R.S ; C.R.C.P. 26(b)(3)(expressly including documents and materials prepared and/or exchanged between a party, its attorney and its insurer within the scope of the work product doctrine). 5. Defendant s subpoena toward Bituminous expressly requests that Bituminous produce these types of privileged communications between and among Plaintiff, its attorneys and Bituminous Insurance. Specifically, the subpoena requests Bituminous to produce the following: 2

3 2. all original documents in your custody or control relating to your claim number regarding your insured, Norman Utley Construction, including any and all legal correspondence, consultations, coverage analysis or opinions; 3. the entire claim file pertaining to your investigation, handling, litigation, and settlement of your claim , regarding your insured Norman Utley Construction as related to a June 22, 2005, accident in or near Cortez, Colorado, including any and all records, reports, correspondence, notes, log notes, memoranda, photographs, and all other materials pertaining to the claim, whether currently in paper or electronic format. 4. all legal bills received and legal bills paid pertaining to your investigation, handling, litigation, and settlement of your claim , regarding your insured Norman Utley Construction as related to a June 22, 2005, accident; 5. all legal documents, correspondence, opinions, sent or received by you, pertaining to your investigation, handling, litigation, and settlement of your claim , regarding your insured Norman Utley Construction as related to a June 22, 2005, accident This request to produce includes any and all correspondence, , facsimiles, and any other written documents, to and from any person or entity, including all attorneys consulted or retained concerning the handling, adjustment, litigation, and settlement of claim Exhibit 1, p. 2 (emphasis added). 6. Because it seeks disclosure and production of materials that are subject to the protection of the attorney client privilege and/or work product doctrine, good cause exists for entry of a protective order. This Court should enter a Protective Order precluding Defendant from obtaining these materials from Bituminous. See C.R.C.P. 26(c) (entry of protective order appropriate to protect party from annoyance, embarrassment, oppression or undue burden or expense). 7. The Court should also issue a Protective Order precluding Defendant from obtaining documents from Bituminous on the basis of relevance. In this case, Plaintiff is suing Defendant for breach of insurance contract. Specifically, Defendant owed Plaintiff a duty to 3

4 defend and indemnify Plaintiff against Mr. Knol s claims in the underlying personal injury case. Whether Defendant owed this duty is a function of the underlying complaint and the insurance contract. As a matter of law, Bituminous actions regarding the underlying personal injury claim against Plaintiff are irrelevant. See Broderick v. McElroy and McCoy, Inc., 961 P.2d 504, 507 (Colo.App. 1997). Bituminous Insurance has nothing to do with Defendant s fulfillment of its own contractual obligations to Plaintiff. Unlike the Defendant here, Bituminous Insurance fulfilled its contractual obligations to Plaintiff by defending and indemnifying Plaintiff in the underlying personal injury lawsuit. 8. Moreover, the Bituminous file materials are irrelevant because Defendant did not deny defense and indemnity to Plaintiff on the basis of any actions of Bituminous. Instead, Defendant refused to defend or indemnify Plaintiff because it had exhausted the purported policy limits to settle claims brought against another insured. Accordingly, Defendant is precluded from arguing a new or different basis for denying coverage to Plaintiff. See Colard v. American Family Mut. Ins. Co., 709 P.2d 11, 15 (Colo.App. 1985); see also Peiffer v. State Farm Mutual Automobile Insurance Co., 940 P.2d 967, 970 (Colo.App. 1996). In short, the universe of relevant, discoverable information regarding Defendant s coverage decision is already known, and nothing Defendant could obtain from the Bituminous file would have any bearing on the outcome of the claims or issues in this case. 9. Finally, Plaintiff has already disclosed any relevant documents related to the underlying personal injury case that may be contained in the Bituminous claim file. Attached hereto as Exhibits 2 and 3 are Plaintiff s C.R.C.P. 26(a)(1) disclosures in this case. As shown therein, Plaintiff has already disclosed all pleadings, disclosures and discovery from the 4

5 underlying case; investigative reports taken at the direction of Bituminous; recorded statements taken at the direction of Bituminous; correspondence between Plaintiff s counsel and Defendant Progressive; the attorney billing statements for its defense in the underlying case; and other miscellaneous documents. See Exhibits 2 and 3. In short, Defendant already has a complete record of documents and materials necessary to respond to Plaintiff s outstanding motions and to address the purely contractual issue of its defense and indemnity obligations owed to Plaintiff that are the subject of the case at bar. To the extent Defendant seeks to obtain these materials again from Bituminous, a Protective Order should issue pursuant to C.R.C.P. 26(c). 10. Alternatively, because the Bituminous file materials are not in the possession, custody or control of Plaintiff, Plaintiff requests that if the Court is not inclined to issue a Protective Order, Plaintiff requests that 1) it be afforded the opportunity to review the Bituminous file and prepare a privilege log; and 2) the Bituminous file along with a privilege log from Plaintiff be submitted to the Court for an in camera review prior to any disclosure to Defendant in this case. WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests the Court enter an Order GRANTING this motion and issuing a Protective Order pursuant to C.R.C.P. 26(c). Alternatively, if the Court is not inclined to issue a Protective Order, Plaintiff requests that 1) it be afforded the opportunity to review the Bituminous file and prepare a privilege log; and 2) the Bituminous file along with a privilege log from Plaintiff be submitted to the Court for an in camera review prior to any disclosure to Defendant in this case. 5

6 DATED: April 29, Respectfully submitted, LEVY, MORSE & WHEELER, P.C. Original signature on file at Levy, Morse & Wheeler, P.C. By: s/ Joshua R. Proctor Marc R. Levy, #11372 Brian J. Waters, # Joshua R. Proctor, #33835 Attorneys for Plaintiff Norman Utley Construction, Inc. 6

7 CERTIFICATE OF SERVICE I hereby certify that on April 29, 2010, a true and correct copy of the foregoing PLAINTIFF S MOTION FOR PROTECTIVE ORDER RE: RECORDS DEPOSITION AND SUBPOENA DUCES TECUM SERVED UPON BITUMINOUS INSURANCE COMPANY was e-filed through LexisNexis File & Serve and served electronically on the following: Franklin D. Patterson, Esq. Adam B. Kehrli, Esq. Patterson, Nuss & Seymour, P.C DTC Parkway, Suite 400 Greenwood Village, CO Original signature on file at the offices of Levy, Morse & Wheeler, P.C. /s/ Tracie Jenkins 7

8 Court: CO Denver County District Court 2nd JD Judge: Ronald M Mullins File & Serve Transaction ID: Current Date: May 27, 2010 Case Number: 2009CV9741 Case Name: NORMAN UTLEY CONSTR INC vs. PROGRESSIVE CASUALTY INS CO /s/ Judge Ronald M Mullins