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Beyer v. Medico Insurance Group

March 17, 2009

BETHYL (BETTY) BEYER, PLAINTIFF,
v.
MEDICO INSURANCE GROUP, MEDICO INSURANCE CO., MEDICO LIFE INSURANCE CO., AND ABILITY RESOURCES, INC., DEFENDANTS.



The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL

INTRODUCTION

Plaintiff Bethyl "Betty" Beyer has filed a motion to compel defendants' response to various discovery requests. Docket 16. The district court, the Honorable Karen E. Schreier, Chief Judge, referred this motion to this magistrate judge for determination pursuant to 28 U.S.C. § 636(b)(1)(A). Docket 25.

FACTS

The facts, insofar as they are pertinent to the pending motion, are as follows. Ms. Beyer purchased a long term care policy of insurance from Mutual Protective Insurance Company, which later became Medico Insurance Company (hereinafter "Medico").*fn1 In June, 2007, Ms. Beyer experienced medical problems that led her to file a claim with Medico for benefits under her policy. Specifically, Ms. Beyer sought benefits for her placement at an assisted living facility. Ms. Beyer's doctor filed a certification supporting Ms. Beyer's claim for benefits, stating that Ms. Beyer suffered from Parkinson's disease and that she needed assisted living care or, in the alternative, nursing home care. The doctor's certification included a statement that Ms. Beyer's condition would not improve after a period of treatment or rehabilitation such that she could return to independent living.

Medico then hired Nation's CareLink to provide an independent assessment of Ms. Beyer's need for assisted living care. A registered nurse conducted the evaluation and concurred with the assessment submitted by Ms. Beyer's doctor that Ms. Beyer needed assisted living care.

Medico denied Ms. Beyer's claim twice. Then, after receiving a video recording of Ms. Beyer's activities of daily living, Medico reversed course and paid Ms. Beyer's claim retroactively to June of 2007. Medico never explained why it had denied Ms. Beyer's claim in the first instance nor why it changed its decision and paid the claim. However, Medico had denied an earlier claim of Ms. Beyer's filed in August 2006 for home health benefits. As to this earlier claim, Medico relied on its assertion that Ms. Beyer did not meet the "benefit qualifiers" for her policy that were prerequisites to the receipt of home health benefits.

Ms. Beyer thereafter initiated this civil action against Medico, alleging bad faith denial of her claim. Medico denies that it acted in bad faith and asserts the affirmative defenses of failure to state a claim upon which relief may be granted and payment.

Ms. Beyer served Medico with 39 discovery requests. Although some discovery was provided by Medico pursuant to these requests, there are some areas of disagreement between the parties over other areas. Accordingly, Ms. Beyer filed the pending motion to compel.

DISCUSSION

A. Good Faith Certification

Pursuant to Local Rule 37.1 and Fed. R. Civ. P. 37, Ms. Beyer certifies that she contacted Medico prior to filing the instant motion to compel and attempted in good faith to resolve the parties' discovery disputes. Medico does not dispute this.

B. Confidentiality Order

Medico has indicated to Ms. Beyer that it will provide documents in response to Ms. Beyer's requests for the production of documents nos. 2, 3, 15, 16, 19, and 35 subject to a confidentiality order. Ms. Beyer submitted a proposed confidentiality order along with her motion to compel. Medico has not objected to the terms of that order. Accordingly, the court will grant the confidentiality order by separate order and hereby additionally orders Medico to provide the responsive documents to requests 2, 3, 15, 16, 19, and 35 pursuant to that order.

C. Request Number One--Claims

Files Ms. Beyer's request for production number one seeks claims files and other documents relating in any way to the claims or benefits paid to Betty Beyer, including electronic data not included in the hard copy files, including e-mails, or other computerized data.

Specifically, Ms. Beyer points out that, in a letter written by Medico to the South Dakota Division of Insurance in October, 2007, Medico makes mention of an internal auditor's recommendation that Ms. Beyer's claim be reconsidered. Although Ms. Beyer has claims documents from Medico, there is no documentation of this internal auditor's recommendation. Therefore, Ms. Beyer believes that there may be electronic data evidencing this recommendation.

Similarly, Medico initially denied Ms. Beyer's claim for assisted living benefits, and then reversed course and paid the claim. Nothing in the claims files already produced to Ms. Beyer documents the fact that this decision was made or why. Therefore, Ms. Beyer believes that there may be electronic data evidencing this decision and the reason for it.

In its response to Ms. Beyer's motion to compel, Medico only asserts that it has produced all claim file documents. It states that "[a]ny internal audit would be conducted on an informal basis" and "would most likely be verbal." However, Medico does not confirm that ...


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