Blackmon v. Bracken Constr. Co.

TED MARIO BLACKMON, et al. v. BRACKEN CONSTRUCTION COMPANY, INC., et al.

CIVIL ACTION NO. 18-142-BAJ-SDJ

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

November 16, 2020

ORDER ON PLAINTIFFS' MOTIONS TO COMPEL, PLAINTIFFS' MOTION FOR LEAVE TO PROPOUND ADDITIONAL INTERROGATORIES, AND INSURER DEFENDANTS' MOTION FOR PROTECTIVE ORDER

After the Court's previous Order (R. Doc. 278), there are still 8 discovery motions that remain pending:

• Plaintiffs' Motion to Compel (R. Doc. 213) complete discovery responses from the Insurer Defendants, including any claim files associated with the underlying accident;

• Plaintiffs' Motion for Leave to Propound Additional Interrogatories (R. Doc. 237) regarding Shemika Robinson's claim and the settlement of her estate's lawsuit in Texas;

• the Insurer Defendants' Motion for Protective Order (R. Doc. 244) which, in reality, is just another opposition to Plaintiffs' earlier Motion to Compel (R. Doc. 213); and finally,

• Plaintiffs' Motions to Compel (R. Docs. 252, 253, 254, 255, 256) the various Defendants to respond to Requests for Production and Admission which largely concern the settlement of Shemika Robinson's lawsuit in Texas.

While this is a case for fraudulent concealment and bad faith in the handling of the two Plaintiffs' insurance claims, the car accident precipitating those claims actually injured four people. Two of them sustained bodily injuries and property damage—Plaintiff, Ted Blackmon, and non-party, Russell Koop. The 2 remaining victims unfortunately passed away—Khance Blackmon, the son of Ted Blackmon, whose estate is represented in this lawsuit by Plaintiff Ruthie Blackmon; and Shemika Robinson, Khance's mother. Insurance claims were filed by or on behalf of all 4 victims.

The outcome of each pending discovery Motion will, at least in part, depend on whether information related to the handling and eventual settlement of a non-party victim's claim falls within the scope of permissible discovery. For that reason, the Court considers all 8 Motions at the same time, resolving them below. (R. Docs. 213, 237, 244, 252-256). The Court has bifurcated "trial and discovery of Plaintiffs' fraud and rescission claims from trial and discovery of Plaintiffs' accident-related negligence claims." (R. Doc. 139 at 5). Discovery is currently proceeding on Plaintiffs' fraud and rescission claims, while all other discovery remains stayed. (R. Doc. 139 at 5).

I. FACTUAL BACKGROUND

In 2016, Jhon Jaramillo was a dual employee of 2 related companies, C3 Construction Services, Inc. and Bracken Construction. (R. Doc. 79 at 5). On June 15, 2016, Jhon Jaramillo drove a Ford F350 owned by C3 from Mississippi to Alabama, while in the course and scope of his employment with Bracken Construction. (R. Doc. 79 at 7). Near Mobile, Alabama, Jaramillo caused a head-on collision while attempting to pass the car in front of him. (R. Doc. 79-1). Jaramillo collided head on with a vehicle driven by Ted Blackmon, killing Blackmon's 2 passengers—Shemika Robinson and their 3-year-old son, Khance Blackmon. (R. Doc. 79-2 at 7). The driver of the car Jaramillo attempted to pass, Russell Koop, was also injured. (R. Doc. 79-1 at 3).

C3 carried a $1 million auto policy issued by Charter Oak Fire Insurance Company (Charter Oak). (R. Doc. 79-3). Bracken Construction carried a $1 million liability policy issued byTravelers Property Casualty Company (Travelers Property), and a $10 million excess policy issued by Travelers Excess and Surplus Lines Company (Travelers Excess). (R. Doc. 79 at 22).

Anthony Ver Meer was assigned by Charter Oak to adjust the claim under the $1 million policy issued on behalf of C3 Construction. He contacted the victims of the accident in July of 2016, informing them of C3's Policy and its $1 million limit. (R. Doc. 79-3). In August of 2016, Ver Meer realized that Jaramillo was likely in the course and scope of his employment with Bracken at the time of the accident, making the additional $11 million in coverage under Bracken's Policies potentially available. According to Ver Meer, he notified Ted Blackmon, Shemika Robinson's mother, and Russell Koop's attorney by certified letter on August 23, 2016. (R. Doc. 182 at 4).

The letter identified and included contact information for both Matt Willson, the adjuster for Travelers who would be handling the claim, and James Holland, the attorney for Bracken. (R. Doc. 88-6).

Ted Blackmon claims he never got the August 23, 2016 letter and that he and his mother, Ruthie Blackmon, the representative of Khance's estate, were fraudulently induced into settling Khance's wrongful death claim for well below what it was worth on October 19, 2017. (R. Doc. 79 at 18, 26, 28); (R. Doc. 88-18). Ver Meer claims he had multiple discussions with Ted Blackmon about the additional coverage but that Mr. Blackmon was having financial trouble, making him desperate for a quick settlement. (R. Doc. 182 at 4-6). Matt Willson also claims that Mr. Blackmon called him on his direct line after receiving the letter and that he had multiple phone calls with Blackmon about the additional coverage available under the Bracken policies. (R. Doc. 145-2). Defendants later obtained Mr. Blackmon's phone records during discovery,¹ whichindicate that Mr. Blackmon placed calls to both Matt Willson and James Holland (Bracken's attorney) on September 2, 2016. (R. Doc. 258 at 2-3); (R. Doc. 258-6) (Ted Blackmon's phone records); (R. Doc. 258-8) (Holland's phone records).

On January 11, 2018, Ted and Ruthie Blackmon filed this lawsuit against Bracken Construction Company, C3 Construction Services, Jhon Jaramillo, the Charter Oak Fire Insurance Company, Travelers Property Casualty Company of America and Travelers Excess and Surplus Lines Company. Relevant here, Ted and Ruthie Blackmon claim Defendants fraudulently induced them into settling the claims of both Ted Blackmon and the estate of Khance Blackmon and are liable for: insurance bad faith and unfair settlement practices under the laws of Louisiana and Florida; equitable estoppel; unjust enrichment; detrimental reliance and promissory estoppel; and "failure/lack of cause and/or consideration." (R. Doc. 79). Plaintiffs also seek rescission of both settlement agreements due to error or mistake of fact and have filed personal injury claims arising out of the accident. (R. Doc. 79).

A. Plaintiffs' Motion to Compel (R. Doc. 213)

During discovery, on May 13, 2019, Plaintiffs sent Requests for Admission, Interrogatories, and Requests for Production to the Insurer Defendants: Anthony Ver Meer,² Charter Oak Fire Insurance Company, Travelers Property Casualty Company of America, and Travelers Excess and Surplus Lines Company. (R. Doc. 237-4). In response, the Insurer Defendants objected to most of Plaintiffs' written discovery and provided a 758-page privilege log. (R. Docs. 213-3 and 213-4). When the parties were unable to resolve their issues over the withheld information, Plaintiffs filed the instant Motion to Compel. (R. Doc. 213). There are 2main issues: (1) the number of interrogatories propounded by Plaintiff and (2) Defendants' refusal to provide certain information, including the majority of their respective claim files. (Defs.' Opp'n, R. Doc. 231); (Pls.' Reply, R. Doc. 242); (Defs.' Supplemental Opp'n, R. Doc. 238-1). Plaintiffs propounded 20 Interrogatories. (R. Doc. 237-4). However, Defendants only answered the first 16, claiming the limit had been met based on the number of discrete subparts included in Plaintiffs' requests. (R. Doc. 213-3). As for the information requested, the Insurer Defendants have withheld much of their claim files as privileged and refused to provide other information (e.g., employee manuals, employee incentive programs, personnel files) because they claim the information is either privileged, irrelevant, or both.

B. Plaintiffs' Motion for Leave to Propound Additional Interrogatories

Shortly after filing their Motion to Compel, Plaintiffs learned that the estate of Shemika Robinson had settled its Texas lawsuit against Bracken, C3, and Jaramillo for her wrongful death. Wishing to obtain information about the settlement but anticipating Defendants would object that Plaintiffs had already served over 25 interrogatories, Plaintiffs filed a Motion for Leave (R. Doc. 237) to propound additional interrogatories about the settlement. Defendants object that the information is confidential, not admissible, and irrelevant. (R. Doc. 243).

C. Insurer Defendants' Motion for Protective Order

Although it had already filed an Opposition (R. Doc. 231, 238-1) to Plaintiffs' Motion to Compel (R. Doc. 213), the Insurer Defendants later moved the Court for a protective order stating they did not owe any further responses. (R. Doc. 244). In other words, the Insurer Defendants filed what amounts to a second opposition. In the alternative, they ask that the Court conduct an in-camera review of the documents they withheld as privileged, which are at issue in Plaintiffs' earlierMotion to Compel (R. Doc. 213). The Court notes that the Insurer Defendants' privilege log is 758 pages long. (R. Doc. 213-3). Plaintiffs object to the Motion as untimely.

D. Plaintiffs' Motions to Compel (R. Doc. 252-256)

Although they had already moved the Court for leave to serve additional interrogatories related to Ms. Robinson's settlement, Plaintiffs nonetheless served Requests for Production on the various Defendants seeking documents related to the negotiation and settlement of Ms. Robinson's lawsuit in Texas. (R. Docs. 252-256). When the various Defendants objected to the production as irrelevant, inadmissible, and confidential, Plaintiffs filed 5 separate Motions to Compel (R. Doc. 252-256). Also at issue are the sufficiency of the Defendants' responses to certain Requests for Admission. (R. Docs. 252-256).

II. LEGAL STANDARD

Rule 26(b)(1) of the Federal Rules of Civil Procedure permits discovery of "any nonprivileged matter that is relevant to...