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Beyer v. Medico Insurance Group

November 13, 2009

BETHYL (BETTY) BEYER, PLAINTIFF,
v.
MEDICO INSURANCE GROUP, MEDICO INSURANCE COMPANY, ABILITY INSURANCE COMPANY ) F/K/A MEDICO LIFE INSURANCE COMPANY, ABILITY RESOURCES, INC., DEFENDANTS.



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

ORDER GRANTING PLAINTIFF'S SECOND MOTION TO COMPEL

Plaintiff Bethyl Beyer seeks a second order compelling discovery to her Second Requests for Production of Documents to Defendants. [Docket No. 51]. This court previously granted in part and denied in part Ms. Beyer's First Motion to Compel. [Docket Nos. 16, 32]. Ms. Beyer now requests that the court order production of various documents, based on her assertions that Medico has failed to comply with its discovery obligations and this court's previous order.

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 were some areas of disagreement between the parties over other areas. Ms. Beyer filed her first motion to compel on January 23, 2009. This court granted in part and denied in part Ms. Beyer's motion, subject to a protective order, based on Medico's representations that it would comply with several of Ms. Beyer's requests. See Docket Nos. 32, 33. Although Medico has apparently provided some documents in response to its discovery obligations and this court's order, Ms. Beyer asserts that Medico has remained largely noncompliant with discovery and has failed to produce documents in response to this court's order. Consequently, Ms. Beyer brought the present second motion to compel production of documents. The court will address each of the disputed discovery requests in turn.

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. Thus, the court finds that the good faith requirements of Local Rule 37.1 and Federal Rule 37 have been met.

B. Request Number Seven--Bonus Programs

Ms. Beyer's request number seven sought "[a]ny and all copies of documents that reference bonus programs for which claims personnel are eligible, from January 1, 2000 to present." Medico objected based on relevance and stated that no such documents were believed to exist. Despite Medico's assertion, signed by Medico's counsel under pain of sanction pursuant to Fed. R. Civ. P. 11, Ms. Beyer sought an order from the court requiring Medico to produce documents responsive to request number seven.

This court made clear that Medico was ordered to produce any and all documentation about any bonus programs responsive to Ms. Beyer's request number seven, now, or at any future time should evidence of such bonus programs become known to Medico or its counsel. Ms. Beyer's motion references a letter written by former Medico employee Tricia Bliujus which specifically mentions increased compensation, raises and bonuses received from Medico over the course of her employment. Docket No. 52-5. Ms. Beyer also refers the court to a letter specifically referring to Medico's Christmas Bonus program, which had been in place "for many years," and its reported high value to Medico employees. Docket No. 60-2. Despite these letters, Medico continues to claim it has no bonus program and no documents showing a bonus plan, and thus that it cannot comply with this request. Docket No. 55, at 2.

Ms. Beyer's counsel points out that in numerous bad faith cases he has brought, insurance companies have denied the existence of bonus programs, but discovery ultimately shows that such programs indeed existed. Therefore, Ms. Beyer moves this court to issue an order requiring Medico to comply with request number seven so that Medico's obligation to produce documentation of bonus programs is clear.

Medico's response and lack of explanation for Ms. Bliujus' remarks, as well as Medico's assertion that no bonus program or any documents related thereto exist, is wholly unconvincing. Ms. Beyer refers to letters written by Medico employees which lead the court to believe that some form of bonus or incentive program exists. Medico's lack of explanation for those employees' statements, plus its attempt to shift the burden of explaining them to Ms. Bliujus, leads this court to believe that Medico is obstructing discovery with respect to documents showing the existence of a bonus program. Accordingly, the court grants Ms. Beyer's motion to compel as to request number 7. To the extent a bonus program exists or existed at Medico, regardless of whether Medico called it a "bonus program," the court's order that Medico produce documents relating to any such bonus program remains in effect.

To the extent Medico continues to claim that no bonus program exists or has existed, and that there are no documents available to respond to this request, Medico is hereby ordered to produce (1) all documents related to any compensation provided to Patricia Bliujus by any of the named defendants from January 1, 2004 to the present; (2) all documents related to any compensation provided to Donald Lawler by any of the named defendants from January 1, 2004 to the present. The court wishes to make clear that this request is granted to the extent that the documents relate in any way to incentives, bonuses, or other compensation received, in addition to the named employees' regular compensation. If Medico uses alternative terms for ...


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