Gagne v State Farm – an update

It’s been several tomorrows since the “tomorrow” I intended to post more about Gagne v State Farm – but “tis the season” for things that don’t go exactly as planned.

In the post that I put up the day before “yesterdays” ago, I quoted Judge Senter’s comment in the Order – for all practical purposes…[Gagne v State Farm]… is the only remaining insurance dispute between a homeowner and his insurance carrier filed in this Court in 2006. Obviously, we were already several years of tomorrows behind on this case so, I’m starting with background and then shifting to the two most recent items on the docket.

If you followed the link to the amended Complaint in the previous post, you saw that the Gagne property became a three-ring engineering circus post Katrina – comparable IMO to the three-ring adjusting circus at the heart of Payment v State Farm.

Gagne’s initial complaint was filed July 21, 2006 – a date that allows for a different perspective on various aspects of Katrina litigation such as this perspective on the mediation of State Farm claims:

…if State Farm successfully bullies its way home with…[mediation]…it, allows State Farm to earn interest on the monies State Farm should be dispensing to its policyholders as a reward for its unethical behavior. It also conveniently allows them to economically blackmail the good people of Mississippi so they will have “their mind right” when the leave their FEMA trailer or temporary abode and appear at State Farm’s proclaimed “only option for hurricane related claims” mediation session. The final bonus to State Farm and the obvious goal of their calculated and unethical corporate policy is that at mediation they can consolidate that unfair economic advantage, strike an “arm’s length deal” with a weakened adversary and face no recourse.

Contrast this with what happens if State Farm attempts to consolidate an unfair economic advantage during the adjustment process. A bad faith estimate designed to create an unfair economic advantage during the adjustment process will subject State Farm to the penalties associated with a breach of fiduciary duty to their insured, as well as bad faith and unfair dealing claims, unless… the insured gets frustrated and desperate and consents to cents on the dollar at a subsequent mediation.

The ruse that insurance companies are being forced to mediate by the strong armed will of the insurance commissioner is an insult to the thinking people of this state. Poor defenseless State Farm screaming all the way to an “arm’s length” deal with a bloodied citizen (that they have beaten down emotionally and economically) “please don’t through me in the briar patch.” State Farm is afraid of a fair playing field and is using economic blackmail and bad faith adjusting of homeowners’ claims in a frantic and unethical attempt to avoid a forum where they will be held responsible for their failure to meet even the minimum standards of good faith as an insurer in this State.

The insurance commission is either aiding them through intense ignorance, incompetence or outright collusion. As the Church Lady on Saturday Night Live would say, “How convenient!”(emphasis added to note that this is first SNL quote I’ve posted from a brief)

Fast forward to the current docket.  Judge Walker denied Plaintiff’s Motion to Compel

Before the Court is Plaintiff’s [419] Motion to Compel filed on December 2, 2008. In his motion, Plaintiff argues that he has sought documents and information (1) that indicate communication and/or collusion in writing engineering reports between Exponent, Inc., and State Farm; and, (2) that indicate a decision to deny a series of engineering assignments on slab claims that resulted in the denial of the engineering assignment on the Plaintiff’s claim. Plaintiff asserts that State Farm colluded with Exponent regarding the substance of the engineering reports and that certain uncompleted engineering assignments (including the Plaintiff’s) on slab claims were canceled at some point in the Fall of 2005. Plaintiff further asserts that State Farm has adopted the “tactic of pretending that these major events never occurred”, and thus not producing documents or information responsive to Plaintiff’s discovery requests. (emphasis added)

As an initial matter, the Court finds that the motion to compel is untimely and should be denied on this ground alone. See Local Rule 7.2(B)(2). The discovery deadline was November 14, 2008. Plaintiff did not file the instant motion to compel until December 2, 2008. Nor has Plaintiff demonstrated good cause for failing to file the motion to compel in a more timely manner.

Moreover, the Court is not persuaded by the substance of Plaintiff’s motion. Plaintiffs presented similar arguments to the Court in his [417] Motion for Review, which the Court rejected. See Plaintiff’s [417] Motion for Review at 10-13. In the instant motion, Plaintiff argues partly by inferring from the evidence, but primarily through speculation, that State Farm has conspired to modify or alter draft engineering reports and to deny all slab claims without conducting an investigation. Plaintiff fails, however, to demonstrate with any degree of probability that State Farm is withholding information or documents specific to the Plaintiff’s claim. Thus, there is no basis for granting this untimely motion to compel.

Since this is the second denial for failure to file in a timely manner, I wanted to know more and pulled the Memorandum in Support of the Motion to Compel – taking note there have been changes in Gagne’s legal team since the initial complaint was filed.   The Motion to Compel was filed by Jesse Hearin, III, one of the two attorneys representing Gagne at the time the complaint was filed, and Chip Merlin who first appeared in the case in January 2008.

On November 6, 2008 , counsel for Plaintiff requested in writing that Defendant, State Farm, produce to Plaintiff the documents described in Plaintiff’s Motion to Compel (Doc. 419). A copy of the request is attached to the motion as Exhibit “L” and is incorporated by this reference. The documents at issue are communications between State Farm and its employees and/or contractors and State Farm and its vendors.

“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . .” Fed. R. Civ. P. 26(b)(1). In reviewing a motion to compel discovery, the reviewing court should determine “[i]f the documents sought by the subpoena are ‘relevant and are sought for good cause.’” Bariteau v. Krane, 206 F.R.D. 129, 130 (W.D. Ken. 2001) (citation omitted) ); see also Saylavee LLC v. Hockler, 2005 U.S. Dist. LEXIS 39802 at *3 (D. Conn. June 14, 2005) . If they are, “then the subpoena should be enforced ‘unless the documents are privileged or the subpoenas are unreasonable, oppressive, annoying, or  embarrassing.’” Bariteau, 206 F.R.D. at 130 To this end, “a request for discovery would be considered relevant . . . if there was ‘any possibility’ that the information sought may be relevant to the subject matter to the action.”  Garrett v. Sprint PCS, 2002 U.S. Dist. LEXIS 1914 at *3 (D. Kan. Jan. 31, 2002) (citations omitted) ;
see also Martin Mathys N.V. v. Maint. Repair Tech. Co., 2006 U.S. Dist. LEXIS 33403 (D. Conn. May 25 2006) (motion to compel third parties granted to the extent the parties have relevant documents).

In the Second Circuit, “[t]his obviously broad rule is liberally construed.” Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991). “Thus . . . a request for discovery should be allowed unless it is clear that the information sought can have no possible bearing on the claim or defense of any party.” Garrett v. Sprint PCS, 2002 U.S. Dist. LEXIS 1914 at *3); see also Kimbro v. I.C. Sys., 2002 U.S. Dist. LEXIS 14599, at *2 (D.Conn. Jul. 22, 2002) (citation omitted) (“Discovery is normally allowed into any matter that bears upon the issues or reasonably could lead to relevant information.”)

Next up on the Docket, we see Merlin step up with the First Joint Motion to Extend Response Times agreed to by all parties.

Movants respectfully request that the Court extend the time to respond to motions to December 29, 2008; and the time to reply to the responses to January 9, 2009 respectively.

Who wouldn’t agree to extend response time with this list of motions?

First MOTION for Extension of Time to File Response/Reply as to MOTION to Exclude the Testimony of Plaintiff’s Expert Witness Michael R. Dombrowski, P.E. MOTION for Evidentiary “Daubert” Hearing,  MOTION for Summary Judgment,  MOTION for Summary Judgment,  MOTION to Strike Plaintiff’s Evidence of Out-Of-State Conduct, MOTION to Exclude the Report and Testimony of E.J. Dennis,  MOTION for Partial Summary Judgment as to Plaintiff’s Misrepresentation-Based Claims and Claims for Replacement Costs, Emotional Distress Damages, Deceptive Advertising, Negligence Per Se, Bad Faith, and Extra-Contractual and Punitive Damages, First MOTION Rule on Effect of Cashing NFIP Check Under Circumstances of the Case (SF Adjuster Admission)First MOTION Rule on Effect of Cashing NFIP Check Under Circumstances of the Case (SF Adjuster Admission),  First MOTION to Exclude Testimony & Opinions of Dr. Robert Dean Not Fully Disclosed,  MOTION to Exclude the Testimony and Report of Plaintiff’s Replacement Cost Expert Jerry Wiggins,  MOTION for Summary Judgment,  First MOTION Preclude Affirmative Defenses After Breach of Contract on NOVEMBER 11, 2005, MOTION to Exclude The Proposed Testimony And Strike The Expert Report of Plaintiff’s Expert Donald L. Dinsmore,  MOTION to Exclude The Testimony And Report Of Plaintiff’s Expert Witness Richard Henning,  MOTION to Exclude Expert Testimony of Neil Hall, MOTION for Summary Judgment,  MOTION for Summary Judgment  by Calvin Thomas (edited last entry, docket correction expected)

IMO, the extra time is needed – time to write and time to think.

2 thoughts on “Gagne v State Farm – an update”

  1. Chasing docs that State Farm most likely shredded plays straight into the Farm’s hands. I don’t disagree with anything the plaintiff’s lawyers wrote per se but they can go into the courtroom and win with the wind water protocol and a good expert. Extracontracual damages follow from that. All the rest, while important from a public policy perspective does not advance Mr Gagne’s cause IMHO.

    All that said I do not see this case going to trial Nowdy.


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