2018 WL 4343415

United States District Court, S.D. West Virginia,
Charleston Division.
Patricia A. LYLES, Plaintiff,
v.
FTL LTD., INC., et al., Defendants.
CIVIL ACTION NO. 2:17-cv-01974
|
Signed 09/11/2018
Attorneys and Law Firms
Jason P. Foster, Scott S. Segal, The Segal Law Firm, Charleston, WV, for Plaintiff.
Thomas H. Peyton, The Peyton Law Firm, Nitro, WV, Kierston E. Rosen, Lee Murray Hall, Sarah A. Walling, Jenkins Fenstermaker, Huntington, WV, Scott W. McMickle, McMickle Kurey & Branch, Alpharetta, GA, for Defendants.

MEMORANDUM OPINION AND ORDER
THOMAS E. JOHNSTON, CHIEF JUDGE
*1 Pending before this Court are cross-motions for summary judgment filed by Plaintiff Patricia A. Lyles (“Plaintiff”), (ECF No. 26), and by Defendant National Casualty Company (“NCC”), (ECF No. 28). For the reasons explained more fully herein, Plaintiff’s motion, (ECF No. 26), is DENIED, and NCC’s motion, (ECF No. 28), is GRANTED.

I. BACKGROUND
This declaratory judgment action arises from a motor vehicle collision between Plaintiff and the driver of a dump truck owned by K&K Trucking, Inc. (“K&K”) and leased to Defendant FTL, Inc. (“FTL”). Each trucking company held an insurance policy with NCC as the insurer, and each policy included the MCS-90 endorsement in compliance with federal law. Plaintiff sued K&K and FTL for compensation under these policies and ultimately agreed to a settlement with K&K. Plaintiff asks this Court to hold that the MCS-90 endorsement to FTL’s policy provides coverage for the accident.

Plaintiff and NCC filed cross-motions for summary judgment on December 7, 2017. (ECF Nos. 26, 28). Plaintiff filed a timely response to NCC’s motion, (ECF No. 32), and NCC and FTL each filed timely responses to Plaintiff’s motion, (ECF Nos. 30, 31). Plaintiff filed timely replies to the opposition briefs filed by NCC and FTL, (ECF Nos. 33, 34), and NCC timely replied to Plaintiff’s opposition, (ECF No. 35). As such, the motions have been fully briefed and are ripe for adjudication.

II. LEGAL STANDARD
Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is material when it ‘might affect the outcome of the suit under the governing law.’ ” Strothers v. City of Laurel, 895 F.3d 317, 326 (4th Cir. 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ). “A genuine dispute arises when ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ ” Id. (quoting Anderson, 477 U.S. at 248). “Thus, at the summary judgment phase, the pertinent inquiry is whether there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018) (alteration and internal quotation marks omitted).

“The burden is on the nonmoving party to show that there is a genuine issue of material fact for trial … by offering ‘sufficient proof in the form of admissible evidence’ ….” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). In ruling on a motion for summary judgment, this Court “view[s] the facts and all justifiable inferences arising therefrom in the light most favorable to the nonmoving party.” Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016) (quoting Libertarian Party of Va. v. Judd, 718 F.3d 308, 312 (4th Cir. 2013) ).

III. ANALYSIS
The facts of this case are largely undisputed. On November 19, 2014, Plaintiff was injured in a motor vehicle accident involving a dump truck. (ECF No. 28-3 at 3, 23–24.) At the time of the accident, the dump truck was hauling materials from a building demolition site in Chapmanville, West Virginia, to a landfill in Charleston, West Virginia. (ECF No. 28-4 at 5–6.) The dump truck’s route was entirely intrastate. (Id. at 3, 6.)

*2 The dump truck involved in the accident was operated by K&K, (ECF No. 26-9 at 21), pursuant to a trucking agreement between K&K and FTL, (see ECF No. 26-5). The agreement, which was executed on April 8, 2014, specifies that K&K will act as FTL’s independent contractor to “provide trucking services for the hauling of aggregate materials.” (Id. at 1, 3, 14.) It also requires K&K to obtain automobile liability insurance coverage in the amount of $1,000,000 and name FTL as an additional insured on the policy. (Id. at 5–6, 15.)

To fulfill these obligations, K&K obtained an automobile insurance policy through NCC. (ECF No. 28-1.) The policy named FTL as an additional insured. (Id. at 66.) The dump truck involved in the accident with Plaintiff was listed as a covered auto on the K&K policy. (Id. at 46.) FTL also carried its own automobile insurance policy through NCC, but the dump truck involved in the accident was not listed as a covered auto on FTL’s policy. (ECF No. 4-1 at 19.)

In May 2015, Plaintiff filed a personal injury action against FTL, K&K, and the driver of the dump truck, among other defendants. (ECF No. 28-6 at 7–55.) NCC agreed to defend FTL in the action as an additional insured on the K&K policy. (ECF No. 28-7.) However, NCC denied coverage under the FTL policy because the dump truck involved in the accident was not listed as a covered auto on that policy. (ECF No. 28-9.)

Plaintiff and NCC ultimately settled Plaintiff’s claims against FTL, K&K, and the driver of the dump truck for $945,679.55. (ECF No. 28-10 at 2.) The settlement agreement provides that the parties are “release[d] and discharge[d]” from further liability in the action, except that FTL is to remain a defendant “in name only, for the sole purpose of Plaintiff attempting to seek additional insurance coverage for the subject accident.” (Id. at 2, 3–4 (emphasis in original).)

Plaintiff now seeks that additional coverage. She argues that she is entitled to compensation under the FTL policy by way of the MCS-90 endorsement to that policy. The endorsement is required pursuant to the Motor Carrier Act of 1980 (“MCA”). “Congress enacted the MCA, in part, to address abuses that had arisen in the interstate trucking industry which threatened public safety, including the use by motor carriers of leased or borrowed vehicles to avoid financial responsibility for accidents that occurred while goods were being transported in interstate commerce.” Canal Ins. Co. v. Distribution Servs., Inc., 320 F.3d 488, 489 (4th Cir. 2003). Accordingly, the MCA imposes a liability insurance requirement “upon each motor carrier registered to engage in interstate commerce.” Id. (citing 49 U.S.C. § 13906(a)(1) ). “To satisfy this insurance requirement, most interstate trucking companies obtain a specific endorsement to one or more of their insurance policies—the MCS–90 endorsement….” Carolina Cas. Ins. Co. v. Yeates, 584 F.3d 868, 870 (10th Cir. 2009) (en banc) (citing 49 C.F.R. §§ 387.7, 387.9). The endorsement “creates a suretyship by the insurer to protect the public when the insurance policy to which the … endorsement is attached otherwise provides no coverage to the insured.” Distrib. Servs., 320 F.3d at 490.

The MCS-90 endorsement provides that the insurer issuing the policy to the motor carrier must “pay, within the limits of liability … any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the [MCA].” Fed. Motor Carrier Safety Admin., U.S. Dep’t of Transp., Endorsement for Motor Carrier Policies of Insurance for Public Liability Form MCS-90 (Jan. 5, 2017), https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/registration/47236/mcs-90-5-10-18-508.pdf; see 49 C.F.R. § 387.15.1 The insurer is responsible for payment “regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere.” Endorsement for Motor Carrier Policies of Insurance for Public Liability Form MCS-90, supra. In their cross-motions for summary judgment, Plaintiff argues that the MCS-90 endorsement furnishes compensation for the accident in this case, (ECF No. 27 at 6–9), while NCC contends that it does not, (ECF No. 29 at 7–16).

A. Accident Occurred During Intrastate Shipment
*3 NCC first contends that there is no liability under the MCS-90 endorsement for the accident in this case because the dump truck was engaged in an intrastate trip at the time of the accident. According to NCC, the applicability of the MCS-90 must be assessed on a “trip-specific” basis. This Court agrees with NCC.

The MCS-90 endorsement mandates payment by the insurer if three requirements are met: (1) a “final judgment” has been “recovered against the insured for public liability”; (2) the public liability “result[ed] from negligence in the operation, maintenance or use of motor vehicles”; and (3) the motor vehicle involved in the accident was “subject to the financial responsibility requirements of Sections 29 and 30 of the [MCA].” Endorsement for Motor Carrier Policies of Insurance for Public Liability Form MCS-90, supra. The principal issue in this case involves the third requirement. This Court must determine whether motor vehicles are subject to the MCA’s financial responsibility requirements generally or whether the specific trip renders those requirements applicable. The text of the relevant statutes and regulations supports the latter interpretation.

The MCA’s financial responsibility requirements differ depending on where the motor vehicle is traveling and what it is hauling. Specifically, a motor vehicle is subject to the financial responsibility requirements if it is used by “a motor carrier or private motor carrier” to transport property “in the United States between a place in a State and[ ] (A) a place in another State; (B) another place in the same State through a place outside of that State; or (C) a place outside the United States.” 49 U.S.C. § 31139(b)(1). In other words, the financial responsibility requirements apply when a motor carrier or motor private carrier “operat[es] motor vehicles transporting property in interstate or foreign commerce.” 49 C.F.R. § 387.3(a) (emphasis supplied). The requirements do not apply to “intrastate commerce” unless the motor carrier “operat[es] motor vehicles transporting hazardous materials, hazardous substances, or hazardous wastes.” Id. § 387.3(b). Further, if the motor carrier transports hazardous commodities, the minimum levels of financial responsibility are higher than those applicable to non-hazardous property. Id. § 387.9.

These differences in the financial responsibility requirements imply that a motor vehicle is not always “subject to the financial responsibility requirements of [49 U.S.C. § 31139].” Endorsement for Motor Carrier Policies of Insurance for Public Liability Form MCS-90, supra. For example, a motor vehicle is not subject to these requirements if it is involved in an accident while traveling outside of the United States. See Lincoln Gen. Ins. Co. v. De La Luz Garcia, 501 F.3d 436, 440–41 (5th Cir. 2007) (interpreting financial responsibility requirements applicable to motor carriers of passengers, which are substantively identical to requirements applicable to motor carriers of property). Whether the financial responsibility requirements apply thus depends on the facts of the accident at issue. Because the MCS-90 endorsement applies only when the motor vehicle involved is “subject to the financial responsibility requirements of [49 U.S.C. § 31139],” Endorsement for Motor Carrier Policies of Insurance for Public Liability Form MCS-90, supra, its applicability must be determined according to the circumstances that exist at the time of the accident. See Canal Ins. Co. v. Coleman, 625 F.3d 244, 249 (5th Cir. 2010) (“[T]he MCS–90 is a way of conforming with statutory minimum-financial-responsibility requirements.”).

*4 Indeed, this is the “majority approach.” Id. at 251. Under this approach, the MCS-90 endorsement “covers vehicles only when they are presently engaged in the transportation of property in interstate commerce.” Id. at 249. The endorsement does not provide compensation for every accident involving a motor vehicle operated by a motor carrier or private motor carrier. See McGirt v. Gulf Ins. Co., 207 F. App’x 305, 310 (4th Cir. 2006) (per curiam) (stating that the MCA “seeks to protect the public by guaranteeing some proof of financial responsibility by motor carriers, not by mandating a minimum payment to the injured”).

In this case, at the time of the accident the dump truck was transporting materials from a building demolition site in Chapmanville, West Virginia, to a landfill in Charleston, West Virginia. (ECF Nos. 26-8 at 1; 28-4 at 3.) Its route was entirely intrastate. (ECF No. 28-4 at 3.) It did not travel “between a place in a State and[ ] (A) a place in another State; (B) another place in the same State through a place outside of that State; or (C) a place outside the United States.” 49 U.S.C. § 31139(b)(1). Consequently, at the time of the accident, the dump truck was not “subject to the financial responsibility requirements of [49 U.S.C. § 31139].” Endorsement for Motor Carrier Policies of Insurance for Public Liability Form MCS-90, supra. The MCS-90 endorsement does not apply to the accident at issue in this case.

Plaintiff, citing Reliance National Insurance Co. v. Royal Indemnity Co., No. 99 cv 10920 NRB, 2001 WL 984737 (S.D.N.Y. Aug. 24, 2001), argues that the MCS-90 endorsement applies in this case because the leasing contract between FTL and K&K contemplated that motor vehicles leased to FTL by K&K would transport property in interstate commerce. (ECF No. 27 at 10–14.) Plaintiff’s argument fails for two reasons.

First, the principal issue involving the interpretation of the meaning of “interstate commerce” in Reliance National was not whether the MCS-90 endorsement applied to an accident but instead whether the insurer had an obligation to defend or indemnify the employees of its insured. 2001 WL 984737, at *3–4. To determine whether the employees were covered under the policy, the district court first had to ascertain whether certain federal regulations—which defined the term “employee”—applied. Id. at *4. It looked to the MCA’s jurisdictional grant, id., which provides for jurisdiction “over transportation by motor carrier and the procurement of that transportation,” 49 U.S.C. § 13501 (emphasis supplied). The district court then held that because “the essential character of the commerce” in the lease agreement used to procure the transportation “was interstate in nature,” the federal regulations applied even though the accident occurred during a wholly intrastate trip. 2001 WL 984737, at *5.

However, the district court’s analysis in Reliance National has no significance in this case because the relevant statute is not the MCA’s jurisdictional grant but Section 30 of the MCA. See Endorsement for Motor Carrier Policies of Insurance for Public Liability Form MCS-90, supra. Section 30 provides for “minimum levels of financial responsibility sufficient to satisfy liability amounts” for liability “for the transportation of property by motor carrier or motor private carrier.” 49 U.S.C. § 31139(b) (emphasis supplied). It does not mention the procurement of transportation. This Court thus agrees with another district court in this Circuit that the Reliance National court’s interpretation of the scope of the MCS-90 “does not meet the limited scope articulated in [49 U.S.C. § 31139].” Titan Indem. Co. v. Gaitan Enters., Inc., 237 F. Supp. 3d 343, 347 (D. Md. 2017).

*5 Second, even if this Court undertook Reliance National’s “essential character of the commerce” inquiry, no interstate commerce occurred under the facts of this case. “Whether transportation is interstate or intrastate is determined by the essential character of the commerce, manifested by [the] shipper’s fixed and persisting transportation intent at the time of the shipment, and is ascertained from all of the facts and circumstances surrounding the transportation.” Klitzke v. Steiner Corp., 110 F.3d 1465, 1469 (9th Cir. 1977) (emphasis deleted). In other words, “the existence of the requisite interstate nexus may be determined by looking to the intent of the goods’ seller or shipper with respect to the goods’ destination … at the time the transportation commenced.” Lyons v. Lancer Ins. Co., 681 F.3d 50, 58 (2d Cir. 2001).

Here, there is nothing in the record to indicate that the shipper of the materials from the demolition site in Chapmanville, West Virginia, intended that those materials be shipped to a final destination other than Charleston, West Virginia. (See ECF Nos. 26-8 at 1; 28-4 at 3.) The fact that the trucking agreement between FTL and K&K contemplates occasional interstate transportation of property does not alter the nature of the accident at issue, which occurred during an intrastate shipment.

In sum, this Court agrees with NCC that the applicability of the MCS-90 endorsement must be assessed according to the facts existing at the time of the accident. The endorsement provides compensation only when the motor vehicle involved is “subject to the financial responsibility requirements of [49 U.S.C. § 31139].” Endorsement for Motor Carrier Policies of Insurance for Public Liability Form MCS-90, supra. As relevant here, those requirements apply to transportation “in the United States between a place in a State and[ ] (A) a place in another State; (B) another place in the same State through a place outside of that State; or (C) a place outside the United States.” 49 U.S.C. § 31139(b)(1). Because the accident in this case occurred during a trip that neither crossed state lines nor was intended to cross state lines, the MCS-90 endorsement does not apply. Summary judgment in favor of NCC is therefore appropriate.

However, in the interest of thoroughness, this Court addresses the parties’ additional arguments in support of their motions for summary judgment.

B. Compensation Exceeding Levels of Financial Responsibility
NCC also argues that Plaintiff is not entitled to payment under the MCS-90 endorsement because she has received compensation exceeding the level of financial responsibility required by law. (ECF No. 29 at 15–16.) NCC claims that the $945,679.55 settlement Plaintiff received under the terms of K&K’s insurance policy renders the endorsement to FTL’s policy inapplicable. (Id.) This Court agrees.

The MCS-90 endorsement is triggered when “(1) the underlying insurance policy (to which the endorsement is attached) does not provide liability coverage for the accident, and (2) the carrier’s other insurance coverage is either insufficient to meet the federally-mandated minimums or non-existent.” Yeates, 584 F.3d at 879.2 “Once the federally-mandated minimums have been satisfied, … the endorsement does not apply.” Id. This is because the MCS-90 is not intended to substitute for the insurance coverage required under federal law; rather, it “creates a suretyship by the insurer to protect the public” in the event of an injury caused by “negligent authorized interstate carriers.” Distrib. Servs., 320 F.3d at 490. A “settlement payment to [the injured member of the public]” serves “the public protection purpose of the MCS-90 endorsement.” Id. at 493. Here, Plaintiff agreed to settle her claims for $945,679.55, (ECF No. 28-10 at 2), an amount well above the $750,000 minimum level of financial responsibility applicable to this case, 49 C.F.R. § 387.9.

*6 The root of Plaintiff’s counterargument is that NCC, as FTL’s insurer, cannot benefit from Plaintiff’s settlement under K&K’s insurance policy because the policy provided coverage only for K&K, not for FTL. (See ECF No. 32 at 10–11.) However, this argument discounts the nature of the trucking agreement between K&K and FTL and the settlement under the K&K policy. The trucking agreement required K&K to obtain $1,000,000 of automobile liability insurance and include FTL as an additional insured on the policy. (ECF No. 28-2 at 6–7, 16.) FTL was listed as an insured party on K&K’s policy. (ECF No. 28-1 at 66.) Therefore, FTL is entitled to any insurance coverage for the accident that K&K receives under the policy’s terms.

Further, the settlement agreement specifies that the parties to the settlement are Plaintiff, K&K, the driver of the dump truck, and FTL. (ECF No. 28-10 at 2.) This suggests that the funds Plaintiff received in the settlement were paid on behalf of FTL as well as K&K. Although the settlement’s terms provide that Plaintiff may “attempt[ ] to seek additional insurance coverage for the subject accident” from FTL, (id. at 4), “MCS–90 endorsements are not treated as coverage where other insurance policies are available to provide full coverage for the victim’s injuries.” Tri-Nat’l, Inc. v. Yelder, 781 F.3d 408, 415 (8th Cir. 2015) (emphasis in original). “The endorsement is a safety net in the event other insurance is lacking.” Yeates, 584 F.3d at 878. Because other insurance is available here, and because FTL can be said to have satisfied its obligations to Plaintiff pursuant to the K&K policy on which it was an additional insured, the MCS-90 endorsement does not apply.

Because Plaintiff has been compensated for an amount higher than the minimum level of financial responsibility applicable to the accident with proceeds from an insurance policy that named FTL as an insured, summary judgment in NCC’s favor is proper.

C. “Circle of Indemnity”
Finally, NCC argues that any payment to Plaintiff pursuant to the MCS-90 endorsement would create a “circle of indemnity” that would effectively result in Plaintiff paying her own judgment. (ECF No. 29 at 16–18.) The terms of the endorsement require “[t]he insured … to reimburse the [insurer] … for any payment that the company would not have been obligated to make under the provisions of the policy” if not for the MCS-90 endorsement. Endorsement for Motor Carrier Policies of Insurance for Public Liability Form MCS-90, supra; see Yelder, 781 F.3d at 416. Thus, if NCC tenders payment to Plaintiff under the MCS-90 endorsement to FTL’s policy, FTL is required to reimburse NCC for that amount. According to NCC, the “circle” is completed because the settlement agreement requires Plaintiff to indemnify FTL for its payment to NCC. (ECF No. 29 at 16; see ECF No. 28-10 at 3 (agreeing to indemnify and hold harmless FTL against “any and all subrogation claims or liens of any kind or claims for reimbursement of any kind”).)

Plaintiff argues that she is not required to reimburse FTL for two reasons. First, she asserts that “there was never a meeting of the minds” as to this term because “NCC’s right of reimbursement under the [MCS-90 endorsement] was never contemplated during the negotiation of the terms of the Settlement Agreement.” (ECF No. 32 at 13.) This argument is clearly without merit. Plaintiff represents that she received FTL’s insurance policy with the MCS-90 endorsement on October 17, 2016, two weeks after the parties discussed and prepared a settlement agreement. (Id. at 12–13.) On December 7, 2016, NCC’s counsel sent Plaintiff’s counsel a letter detailing the “circle of indemnity” created by the terms of the MCS-90 and the settlement agreement. (ECF No. 35-1 at 3.) As NCC points out, Plaintiff executed the settlement agreement on January 24, 2017, (ECF No. 28-10 at 5), despite her knowledge—or, at a minimum, her counsel’s knowledge—that its terms could render any claim under FTL’s policy moot. Plaintiff represents that she revised the terms of the settlement agreement at least twice throughout the parties’ negotiations. (ECF No. 32 at 12.) There is no reason why she could not have done so after receiving FTL’s policy and being advised of the potential indemnity issue. Instead, Plaintiff executed the settlement agreement without further modification. She cannot now argue that the parties did not contemplate the indemnity term.

*7 Second, Plaintiff contends that the “made-whole” rule applies to preclude any right to reimbursement that NCC possesses. (ECF No. 32 at 14–15.)3 The made-whole rule provides that “in the absence of statutory law or valid contractual obligations to the contrary, an insured must be fully compensated for injuries or losses sustained (made whole) before the subrogation rights of an insurance carrier arise.” Syl. Pt. 3, Kanawha Valley Radiologists, Inc. v. One Valley Bank, N.A., 557 S.E.2d 277, 278 (W. Va. 2001). Plaintiff’s obligation to indemnify FTL under the terms of the settlement agreement is not governed by the made-whole rule because FTL is not an insurer, nor does it purport to assert subrogation rights. Moreover, the made-whole rule does not affect FTL’s obligation under the MCS-90 to reimburse NCC for any payment NCC might tender to Plaintiff because FTL is not an injured plaintiff and NCC’s right to reimbursement is a matter of federal law.

Therefore, even if the MCS-90 endorsement applied to the accident, NCC would be reimbursed by FTL under the endorsement’s terms for any judgment paid to Plaintiff. Under the terms of the settlement agreement, Plaintiff would then be required to indemnify FTL for that amount. This supports summary judgment in favor of NCC.

IV. CONCLUSION
For the foregoing reasons, this Court DENIES Plaintiff’s motion for summary judgment. (ECF No. 26.) This Court GRANTS NCC’s motion for summary judgment. (ECF No. 28.)

IT IS SO ORDERED.

All Citations
Slip Copy, 2018 WL 4343415

Footnotes

1
This Court refers to the current version of the MCS-90 endorsement because the relevant language is identical to that of the MCS-90 endorsement appended to the FTL policy. (See ECF No. 26-11.)

2
Plaintiff appears to suggest that the MCS-90 endorsement applies in any instance when the underlying insurance policy to which the endorsement is attached does not provide coverage. (See ECF No. 34 at 4.) However, that cannot be true under the endorsement’s plain language, as explained in III.A.

3
Plaintiff also argues that the provision in the trucking agreement between FTL and K&K requiring K&K to indemnify FTL is invalid under West Virginia law. (ECF No. 27 at 7.) Even if this is true, it has no effect on Plaintiff’s obligation in the settlement agreement to indemnify FTL directly. (See ECF No. 28-10 at 3.)

2018 WL 4431320

United States District Court, E.D. North Carolina.
PROGRESSIVE SOUTHEASTERN INSURANCE COMPANY, Plaintiff,
v.
ARBORMAX TREE SERVICE, LLC, ARBORMAX, LLC, TIMOTHY LAWRENCE ROBBINS, JENNIFER DAWN ROBBINS, DONALD WAYNE CAULDER, JR., MICHAEL BARLOW, Administrator of the Estate of Michelle Barlow, MICHAEL BARLOW, individually, Defendants.
5:16-CV-662-BR
|
Filed 09/17/2018

ORDER
James E. Gates United States Magistrate Judge
*1 This case comes before the court on remand from the presiding district judge for reconsideration of the contested motion (D.E. 32) by defendant Michael Barlow (“Barlow”), both as administrator of the estate of Michelle Barlow and individually, for an order compelling production of documents from plaintiff Progressive Southeastern Insurance Company (“plaintiff”). For the reasons set forth below, the motion will be allowed in part and denied in part.

I. BACKGROUND
This case concerns insurance coverage arising from a motor vehicle accident on 22 March 2016. Barlow’s Mot. to Appeal (D.E. 43) 1; Pl.’s Resp. to Mot. to Appeal (D.E. 54) 2. A truck driven by defendant Donald Wayne Caulder, Jr., struck a minivan driven by Michelle Barlow, resulting in her death. Barlow’s Mot. to Appeal 1-2; Pl.’s Resp. to Mot. to Appeal 2; Compl. (D.E. 1) ¶ 12. Caulder was operating the truck in the course of the business of defendant Timothy Robbins (Compl. ¶ 13; Barlow’s Ans. to Compl. (D.E. 19) ¶ 13) and, Barlow contends, for the benefit of defendant Arbormax Tree Service, LLC (“ATS”) (Barlow’s Resp. to Mot. to Appeal 6).

As of the time of the accident, plaintiff had issued a commercial automobile policy to Timothy Robbins (“Robbins policy”). Barlow’s Mot. to Appeal 5; Robbins Policy Decl. Page (D.E. 44-3). Plaintiff does not dispute coverage of the accident under the Robbins policy. Pl.’s Resp. to Mot. to Compel 2. Plaintiff had also issued a commercial automobile policy to ATS (“ATS policy”). Compl. ¶ 14; Ans. to Compl. ¶ 14; ATS Policy (D.E. 1-1) 1. Plaintiff has denied coverage of the accident under the ATS policy. Decl. of Emily G. Rice (“Rice Decl.”)1 (D.E. 38-1) ¶ 5.

On 1 April 2016, plaintiff received notice that Barlow had obtained counsel. Pl.’s Resp. to Mot. to Appeal 2; Rice Decl. ¶ 6. On 3 May 2016, plaintiff made its denial of coverage under the ATS policy. Rice Decl. ¶ 5. On 8 June 2016, Barlow filed a negligence lawsuit in Wake County Superior Court against Caulder, Timothy Robbins, Jennifer Robbins, ATS, and Arbormax, LLC. Barlow’s Mot. to Appeal 2; Pl.’s Resp. to Mot. to Appeal 3; Compl. ¶ 19.

On 8 July 2016, plaintiff filed the instant action for a declaratory judgment providing that the ATS policy affords no coverage for the accident in issue. Barlow’s Mot. to Appeal 2; Pl.’s Resp. to Mot. to Appeal 3; Compl. ¶ 25. Named as defendants were the defendants in the Wake County case as well as Barlow, both individually and as administrator of the estate of Michelle Barlow. Compl. ¶¶ 2-6. Barlow is the only defendant that answered the complaint, and default was entered against the other defendants (Entry of Default (D.E. 21)).

Pursuant to the scheduling order in this case, which approved plaintiff’s and Barlow’s proposed discovery plan, discovery was to be commenced in time to be completed by 1 March 2017. Sched. Ord. (D.E. 27) ¶ 1. The discovery deadline was later extended to 15 May 2017. 17 Mar. 2017 Ord. (D.E. 31) ¶ 1.

*2 On 16 December 2016, Barlow sent plaintiff his first request for production of documents seeking, in relevant part, “The Plaintiff’s complete claim file as a result of the vehicular wreck of March 22, 2016 as set forth in the Complaint filed in this matter.” Pl.’s Resp. to First Prod. of Documents (D.E. 45-1) 2 no. 1. Plaintiff responded as follows:
Plaintiff objects to the request on the basis of attorney-client privilege, work product privilege, and because it is not likely to lead to the discovery of admissible evidence. Subject to and without waiving said objections, Plaintiff produces the attached documents. Pursuant to its objections, Plaintiff is withholding portions of the claims file that relate only to liability and damages in the underlying tort litigation.
Id. After further discussions with Barlow, plaintiff sent him a letter asking him to provide a subpoena for certain documents. 23 Feb. 2017 Ltr. (D.E. 45-6) 1-2. Barlow subsequently provided two subpoenas to plaintiff. 22 Mar. 2017 Subp. (D.E. 45-7); 4 May 2017 Subp. (D.E. 45-8).

On the last day to conduct discovery, 15 May 2017, Barlow filed the instant motion seeking an order compelling plaintiff “to fully and completely produce the complete claims files for any and all claims filed with Plaintiff during any time Plaintiff provided coverage to [ATS]; Arbormax, LLC; Timothy Lawrence Robbins, Jennifer Dawn Robbins, and Donald Wayne Caulder, Jr., from January 1, 2012, until today to include all of the records related to the March 22, 2016, crash that killed Michelle Barlow” as sought by the 4 May 2017 subpoena. Barlow’s Mot. to Compel 1. Plaintiff filed a memorandum opposing the motion. Pl.’s Resp. to Mot. to Compel (D.E. 38). The parties had by that point narrowed the documents in dispute to portions of the coverage file on the ATS policy and of the claims file on the Robbins policy. See, e.g., id. at 3, 5-6. The undersigned denied plaintiff’s motion to compel. 13 June 2017 Ord. (D.E. 42).

Barlow appealed the ruling to the presiding district judge and submitted additional information in support of the motion. Barlow’s Mot. to Appeal (D.E. 43). Plaintiff responded in opposition. Pl.’s Resp. to Mot. to Appeal (D.E. 54). The presiding district judge vacated the denial order and remanded the motion to compel to the undersigned for reconsideration in light of additional facts and argument presented in the appeal. 16 Feb. 2018 Ord. (D.E. 69) 3-4.

The documents whose production remains in dispute are documents in plaintiff’s coverage file on the ATS policy and its claims file on the Robbins policy. Plaintiff produced a privilege log (D.E. 38-4) for documents it is withholding from the claims file on the Robbins policy, but not for the documents it is withholding from the coverage file on the ATS policy.

II. APPLICABLE LEGAL PRINCIPLES

A. Discovery
The Federal Rules of Civil Procedure enable parties to obtain information by serving requests for discovery on each other, including requests for production of documents. See generally Fed. R. Civ. P. 26-37. Rule 26 provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
*3 Fed. R. Civ. P. 26(b)(1).

The district court has broad discretion in determining relevance for discovery purposes. Seaside Farm, Inc. v. United States, 842 F.3d 853, 860 (4th Cir. 2016); Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992). The party resisting discovery bears the burden of establishing the legitimacy of its objections. Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016) (“[T]he party or person resisting discovery, not the party moving to compel discovery, bears the burden of persuasion.” (quoting Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243 (M.D.N.C. 2010))); Brey Corp. v. LQ Mgmt., L.L.C., No. AW-11-cv-00718-AW, 2012 WL 3127023, at *4 (D. Md. 26 Jul. 2012) (“In order to limit the scope of discovery, the ‘party resisting discovery bears the burden of showing why [the discovery requests] should not be granted.’ ” (quoting Clere v. GC Servs., L.P., No. 3:10-cv-00795, 2011 WL 2181176, at *2 (S.D.W. Va. 3 June 2011))).

Rule 34 governs requests for production of documents. A party asserting an objection to a particular request “must specify the part [to which it objects] and permit inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C). Objections not timely asserted are waived. See, e.g., Frontier-Kemper Constructors, Inc., 246 F.R.D. 522, 528 (S.D.W. Va. 2007); Drexel Heritage Furnishings, Inc. v. Furniture USA, Inc., 200 F.R.D. 255, 258 (M.D.N.C. 2001). The signer of a response to a production request certifies that “reasonable inquiry” has been made regarding the requested documents. Fed. R. Civ. P. 26(g)(1).

When a party withholds information on the basis of privilege, including work-product protection and attorney-client privilege, it must expressly assert the privilege objection in response to the particular discovery request involved. Id. (b)(5)(A). In addition, the party must serve with its discovery responses a privilege log in conformance with Rule 26(b)(5)(A). See id. The privilege log must “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Id. (emphasis added). “A party’s conclusory assertion that a document is privileged is inadequate to meet the burden imposed by Rule 26(b)(5)(A).” Johnson v. Ford Motor Co., 309 F.R.D. 226, 232 (S.D.W. Va. 28 Aug. 2015) (citing United Stationers Supply Co. v. King, No. 5:11-CV-00728, 2013 WL 419346, at *2 (E.D.N.C. 1 Feb. 2013)).

Rule 37 allows for the filing of a motion to compel discovery responses. See Fed. R. Civ. P. 37(a)(3)(B). Rule 37 requires that a motion to compel discovery “include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Id.(a)(1). Similarly, Local Civil Rule 7.1(c), E.D.N.C. requires that “[c]ounsel must also certify that there has been a good faith effort to resolve discovery disputes prior to the filing of any discovery motions.” Local Civ. R. 7.1(c) (E.D.N.C.); see Jones v. Broadwell, No. 5:10-CT-3223-FL, 2013 WL 1909985, at *1 (E.D.N.C. 8 May 2013) (denying motion to compel which did not state that party complied with Rule 37(a) or Local Civil Rule 7.1(c)).

*4 In addition, Rule 37 requires that the moving party be awarded expenses when a motion to compel discovery is granted, except when the movant filed the motion without attempting in good faith beforehand to obtain the discovery without court intervention, the opposing party’s opposition to the discovery was substantially justified, or other circumstances would make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). If a motion to compel is denied, expenses must be awarded to the person opposing the motion, except when the motion was substantially justified or other circumstances would make an award of expenses unjust. Id. (a)(5)(B). If a motion to compel is allowed in part and denied in part, the court may apportion the expenses for the motion. Id.(a)(5)(C).

B. Attorney-Client Privilege
“[I]n a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Fed. R. Evid. 501. “A federal court exercising diversity jurisdiction is obligated to apply the substantive law of the state in which it sits, including the state’s choice-of-law rules.” Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 599-600 (4th Cir. 2004). In the instant case, the court must apply the choice of law rules of North Carolina as the forum state. See Homeland Training Ctr., LLC v. Summit Point Auto. Research Ctr., 594 F.3d 285, 290 (4th Cir. 2010).

Generally, under North Carolina choice of law rules, “an insurance contract is governed by the law of the state in which the policy is delivered.” Amerisure Mut. Ins. Co. v. Superior Constr. Corp., No. 3:07-cv-00276-W, 2008 WL 3842958, at *2 (W.D.N.C. 15 Aug. 2008) (citing Roomy v. Allstate Ins. Co., 256 N.C. 318, 123 S.E.2d 817 (1962)). However, a choice-of-law provision in a contract may overcome the general rule. Volvo Constr. Equip. N. Am., Inc., 386 F.3d at 601 (citing Bueltel v. Lumber Mut. Ins. Co., 134 N.C. App. 626, 631, 518 S.E. 2d 205, 209 (1999)).

The parties do not address which state’s law governs the insurance contracts in issue. In the case of the ATS policy, it states, “Any disputes as to the coverages provided or the provisions of this policy shall be governed by the law of the state listed in your application as your business location.” ATS Policy (D.E. 1-1) 31. Further, it is undisputed that ATS is located in North Carolina. Compl. ¶ 2; Barlow’s Ans. to Compl. ¶ 2. Accordingly, to the extent the court has considered the merits of plaintiff’s claim of attorney-client privilege with respect to the coverage file on the ATS policy, it has applied the substantive law of North Carolina.

The court does not have a copy of the Robbins policy (other than the declaration page). The parties appear to agree, however, that Robbins is a citizen and resident of North Carolina. Compl. ¶ 3; Barlow’s Ans. to Compl. ¶ 3. The court therefore deems the law of North Carolina to apply to claims of attorney-client privilege relating to that policy as well.

Under North Carolina law, the attorney-client privilege exists if:
(1) the relation of attorney and client existed at the time the communication was made, (2) the communication was made in confidence, (3) the communication relates to a matter about which the attorney is being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated and (5) the client has not waived the privilege.
Friday Invs., LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., 370 N.C. 235, 240, 805 S.E. 2d 664, 669 (2017) (quoting State v. Murvin, 304 N.C. 523, 531, 284 S.E. 2d 289, 294 (1981)). “The rationale for having the attorney-client privilege is based upon the belief that only ‘full and frank’ communications between attorney and client allow the attorney to provide the best counsel to his client.” In Re Miller, 357 N.C. 316, 329, 584 S.E. 2d 772, 782 (2003) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). The burden is on the party asserting the privilege to demonstrate that it is applicable. Id. at 328, 584 S.E. 2d at 782. If a party demonstrates that the attorney-client privilege applies, all communications between the attorney and client are entitled to absolute and complete protection from disclosure. Id.

C. Work-Product Doctrine
*5 The work-product doctrine, as codified in Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure, is based on the Supreme Court’s seminal decision in Hickman v. Taylor, 329 U.S. 495 (1947), and protects against the disclosure of certain materials “prepared in anticipation of litigation or for trial by or for [a] party or its representative (including the … party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). The proponent of work-product protection has the burden of establishing its applicability. Sandberg v. Va. Bankshares, Inc., 979 F.2d 332, 355 (4th Cir. 1992). “The party seeking protection must make this showing with a specific demonstration of facts supporting the requested protection, preferably through affidavits from knowledgeable persons.” E.I. Du Pont de Nemours and Co. v. Kolon Industries, Inc., No. 3:09cv58, 2010 WL 1489966, at *3 (E.D. Va. 13 Apr. 2010) (internal quotations omitted).

‘ “The application of the work product doctrine is particularly difficult in the context of insurance claims.’ ” Gilliard v. Great Lakes Reinsurance (U.K.) PLC, No. 2:12-cv-00867-DCN, 2013 WL 1729509, at *2 (D.S.C. 22 Apr. 2013) (quoting Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 536, 541–42 (N.D. W. Va. 2000)); Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd’s London, No. 6:07cv00042, 2009 WL 1043929, at *2 (W.D. Va. 17 Apr. 2009) (“With respect to work product claims by insurance companies, ‘[t]he nature of the insurance business requires an investigation prior to the determination of the insured’s claim.’ ”) (quoting State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984)); Miller v. Pruneda, No. 3:02-CV-42, 2004 WL 3951292, at *5 (N.D. W. Va. 5 Nov. 2004) (“Because an insurance company is in the business of investigating claims, investigatory files are normally prepared in the ordinary course of the insurance company’s business although the files were prepared with an eye toward reasonably foreseeable litigation.”); Pete Rinaldi’s Fast Foods, Inc. v. Great Am. Ins. Cos., 123 F.R.D. 198, 202 (M.D.N.C. 1988) (“Because an insurance company has a duty in the ordinary course of business to investigate and evaluate claims made by its insureds, the claims files containing such documents usually cannot be entitled to work product protection.”). “[T]here is no bright-line test for when work product protection applies for insurance companies, and instead courts must undertake a case-by-case analysis.” Botkin v. Donegal Mut. Ins. Co., No. 5:10cv00077, 2011 WL 2447939, at *3 (W.D. Va. 15 Jun. 2011).

Generally, information obtained by an insurance company regarding a claim is deemed to be in anticipation of litigation and therefore subject to work-product protection only if the information is obtained after the insurance company denies the claim. Pete Rinaldi’s, 123 F.R.D. at 202; Schwartz & Schwartz, 2009 WL 1043929, at *3 (finding that work product production attached only after insurance company disclaimed coverage). “[I]f the insurer argues it acted in anticipation of litigation before it formally denied the claim, it bears the burden of persuasion by presenting specific evidentiary proof of objective facts demonstrating a resolve to litigate.” Pete Rinaldi’s, 123 F.R.D. at 202. The “pivotal point” in deciding when the activity changes from ordinary business to anticipation of litigation is “when the probability of litigation becomes ‘substantial and imminent,’ or stated otherwise, when litigation becomes ‘fairly foreseeable.’ ” Botkin, 2011 WL 2447939, at *3 (quoting State Farm, 102 F.R.D. at 237)).

III. COVERAGE FILE ON ATS POLICY
*6 Barlow seeks production of the documents in plaintiff’s coverage file on the ATS policy that plaintiff has not already produced. Plaintiff contends that the entire file is protected by the work-product doctrine because it was compiled in anticipation of litigation. More specifically, it states that it began the coverage investigation that is the subject of the file, in April 2016, shortly after it received a claim for the accident and learned that Barlow had retained counsel, and because it knew that coverage did not exist under the policy and that coverage had been or would be denied. Pl.’s Resp. to Mot. to Compel 5; Pl.’s Resp. to Mot. to Appeal 3, 10; Rice Decl. ¶¶ 3, 8, 9. Plaintiff also alleges that the coverage file contains documents protected by the attorney-client privilege. Pl.’s Resp. to Mot. to Compel 6; Pl.’s Resp. to Mot. to Appeal 3.

Notwithstanding its contention that the entire coverage file is protected under the work-product doctrine, plaintiff states that it has produced “factual, non-privileged documents such as photographs, documents of title, underwriting files, witness statements, etc.” (Pl.’s Resp. to Mot. to Compel 6; Rice Decl. ¶ 12) because such documents “are not documents [plaintiff] created in anticipation of litigation” (Pl.’s Resp. to Mot. to Appeal 10 n.4). Plaintiff describes the documents it is withholding from production variously as “the internal claims notes created by [plaintiff’s] adjusters, which were prepared in anticipation of litigation” (Pl.’s Resp. to Mot. to Appeal 10 n.4) and “its claims notes or internal or attorney-client correspondence, which is privileged” (Pl.’s Resp. to Mot. to Compel 6; Rice Decl. ¶ 12).

As noted, plaintiff has not produced a privilege log for the documents in the coverage file on the ATS policy it is withholding. It argues that it was not required to produce a privilege log because “to do so would waive the work product and attorney-client privilege” and that “[a] privilege log would require [plaintiff] to identify dates and communications between [claim manager Rice] and other claim representatives, and such information is protected by work product and attorney-client privileges.” Pl.’s Resp. to Mot. to Compel 3-4.

As previously discussed, a party withholding information on the grounds that it is protected by the work-product doctrine or attorney-client privilege is required to produce a privilege log that must “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). Plaintiff has failed utterly to demonstrate that it cannot comply with this requirement without waiving the protection it claims for the withheld documents, particularly in light of the flexibility Rule 26 permits with respect to identification of withheld materials. Plaintiff essentially asks Barlow and the court to accept its determination at face value that such a waiver would occur. It does not provide information sufficient to enable Barlow or the court to meaningfully evaluate the contention.

The need for such evaluation is enhanced by the apparent inconsistency in plaintiff’s description of the contents of the coverage file and the standards it is using to determine what is protected from disclosure. As set out above, plaintiff at one point describes the entire coverage file as protected by the work-product doctrine, but at another states that it, in fact, contains material that is not covered that it has produced. Similarly, plaintiff describes the withheld documents at one point as only internal claims notes, but at another as such notes in addition to internal and attorney-client correspondence. In addition, aside from this cursory reference to attorney-client correspondence, plaintiff makes no showing as to the nature of the material for which it claims the attorney-client privilege or how it qualifies for such protection.

*7 Assuming without deciding that plaintiff did anticipate litigation relating to the ATS policy in April 2016, not all documents created after any such anticipation began would necessarily be protected under the work-product doctrine. For example, documents created after litigation is anticipated but in the normal course of business would not be subject to such protection. See Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir. 1992) (“[W]e have held that materials prepared in the ordinary course of business or pursuant to regulatory requirements or for other non-litigation purposes are not documents prepared in anticipation of litigation within the meaning of Rule 26(b)(3).” (citing Goosman v. A. Duie Pyle, Inc., 320 F.2d 45, 52 (4th Cir. 1963))); Meighan v. TransGuard Ins. Co. of Am., Inc., 298 F.R.D. 436, 446 (N.D. Iowa 2014) (“Even if the parties reasonably anticipate litigation, the work product privilege does not apply to documents that are generated in the ordinary course of business.” (citing St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 197 F.R.D. 620, 636-38 (N.D. Iowa 2000))).

Lastly, particularly given the extended proceedings on Barlow’s motion to compel, plaintiff has had ample opportunity to compile a privilege log for the documents it is withholding from the coverage file on the ATS policy or, alternatively, to develop its contention for not doing so. Plaintiff did not exploit this opportunity.

The court concludes that by failing to produce a privilege log for the documents in the coverage file for the ATS policy that it is withholding plaintiff has waived its claims of work-product protection and attorney-client privilege as to these documents. See Westchester Surplus Lines Ins. Co. v. Clancy & Theys Constr. Co., No. 5:12-CV-636-BO, 2013 WL 6058203, at *5 (E.D.N.C. 15 Nov. 2013) (finding party had waived work-product protection for documents not included in the privilege log); Herbalife Intern., Inc. v. St. Paul Fire and Marine Ins. Co., Civil Action No. 5:05CV41, 2006 WL 2715164, at *4 (N.D.W. Va. 22 Sept. 2006) (“Failure to timely produce a privilege log or the production of an inadequate privilege log may constitute waiver of any asserted privileges.” (citing Atteberry v. Longmont United Hosp., 221 F.R.D. 644, 649 (D. Colo. 2004))). The court will accordingly allow the portion of Barlow’s motion seeking production of the documents in plaintiff’s coverage file on the ATS policy that it has not already produced.

IV. CLAIMS FILE ON ROBBINS POLICY
Barlow seeks production of the documents from the claims file on the Robbins policy listed in the privilege log plaintiff has provided for that file. The privilege log lists 83 documents as protected under the attorney-client privilege, 15 documents as protected under the work-product doctrine, and 2 documents as protected under both the attorney-client privilege and work-product doctrine, for a total of 100 documents. Privilege Log 2-6. Barlow contends that the privilege log is deficient because it fails to show that the documents listed are subject to the work-product doctrine or attorney-client privilege. The court agrees.

Indeed, the privilege log actually shows that eight documents—documents 5, 9, 35, 41, 91, 92, 93, and 94—do not meet the requirements of the attorney-client privilege as claimed. Attach. A.2 Specifically, documents 5, 9, 93, and 94, which are identified as letters, and documents 35, 41, 91, and 92, which are identified as emails, all have Barlow’s counsel of record or attorneys in the same firm as Barlow’s counsel of record listed as recipients. Attach. A. Accordingly, these eight documents are not protected from disclosure. Although Barlow is necessarily already in possession of these documents and plaintiff will not be ordered to produce them, the inclusion of these documents in the privilege log highlights its insufficiency.

*8 Furthermore, for each of the remaining 92 documents, the privilege log lacks a description that “enable[s] other parties to assess the claim” of attorney-client privilege or work-product protection. See Fed. R. Civ. P. 26(b)(5)(A)(ii). The omissions also preclude the court from assessing the claims of protection. Among the missing information is any description of the content of the document. Barlow and the court are left to rely on the general characterization of the documents collectively as relating to potential claims against Robbins arising from the accident.

Also missing is any identification of the persons listed that makes clear their role with respect to the events in question. While the identity and role of many persons listed in the log are apparent, that is not true for many others.

Plaintiff argues that all documents listed are subject to work-product protection because they were prepared after 1 April 2016, when plaintiff contends it received notice that Barlow had retained counsel. Pl.’s Resp. to Mot. to Compel 4-5; Rice Deck. ¶¶ 6, 8, 11. This contention is belied by the log itself which, as detailed above, identifies only a small proportion of the documents—17 of 100—as protected by the work-product doctrine. The only protection claimed as to the overwhelming majority of the documents is the attorney-client privilege. Notwithstanding that fact, plaintiff presents scant argument supporting its claims of attorney-client privilege.

Further, while the court will defer ruling on the issue of when plaintiff first anticipated litigation pending the in camera review provided for herein, even assuming the date was 1 April 2016, the work-product doctrine would not necessarily apply to all such documents. For example, as previously noted, documents created after litigation is anticipated but in the normal course of business would not be subject to work-product protection. See Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 967 F.2d 980 at 984; Meighan, 298 F.R.D. at 446.

Plaintiff contends that if it were to provide the level of detail requested by Barlow, it would waive its claim of work-product protection. It has failed to demonstrate that this contention has any merit. Notably, it makes no such contention with respect to the attorney-client privilege.

The court finds that the proper course for addressing the deficiencies in the privilege log is to conduct an in camera review of the documents listed in it that have not already been produced. While the court has considered whether the deficiencies warrant a finding that plaintiff has waived the protections claimed as to all the listed documents it has not already produced, it has concluded that such a resolution is inappropriate in light of plaintiff’s seemingly conscientious attempt to comply with the requirement for a privilege log. Plaintiff will therefore be required to submit for in camera inspection the documents listed in the privilege log it has not already produced.

V. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Barlow’s motion to compel (D.E. 32) is ALLOWED IN PART and DENIED IN PART on the following terms:
1. a. Plaintiff shall produce to Barlow no later than 24 September 2018 all documents in the coverage file on the ATS policy that it is has not previously produced to Barlow.
b. Plaintiff shall serve with these documents a duly signed supplemental response identifying: (i) each production request as to which plaintiff is producing responsive documents; (ii) each document (by Bates number) that is being produced in response to each such production request; and (iii) each document (by Bates number) not being produced on the grounds that plaintiff has previously produced it.
*9 2. a. Except for documents 5, 9, 35, 41, 91, 92, 93, and 94, plaintiff shall file with the court ex parte and under seal for in camera review by 24 September 2018 each of the documents identified in plaintiff’s privilege log.
b. If there are multiple emails to be reviewed in the same email chain, plaintiff shall produce one copy of the chain and indicate in an appropriate way the emails in it to be reviewed. The court does not seek multiple copies of the same email chain.
c. Each document shall be identified by the number assigned it in Attachment A.
d. Plaintiff shall include with the documents a listing of the identification of all persons named in the privilege log, other than counsel of record in this case, making clear their role with respect to the events at issue.

3. The court finds that the award of expenses would be unjust. Each party shall accordingly bear its respective expenses incurred on plaintiff’s motion to compel. See Fed. R. Civ. P. 37(a)(5)(A)(iii), (B).

SO ORDERED, this 17th day of September 2018.

*10 All other documents in this claims file have been produced.

All Citations
Slip Copy, 2018 WL 4431320

Footnotes

1
In her declaration, Rice states that she has managed the claim for plaintiff arising from the accident since it was filed with plaintiff. Rice Decl. ¶ 2.

2
The documents in the privilege log are not numbered. To facilitate reference to them, the court has prepared and appended to this order as Attachment A a copy of the privilege log with the documents numbered sequentially.