United States District Court, D. South Dakota, Southern Division
ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL
DOCKET NO. 18
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.
matter is before the court on plaintiffs Tommy Brown and
Heather McDougall's complaint based on the court's
diversity jurisdiction. See Docket No. 1. Plaintiffs
assert claims of breach of contract, fraudulent
misrepresentation and deceit, unfair trade practices, and
vexatious refusal to pay insurance benefits against defendant
Nationwide Affinity Insurance Company of America
(“Nationwide”), arising out of a claim plaintiffs
submitted on their homeowner's insurance policy.
Plaintiffs now move the court to compel certain discovery and
to increase the number of interrogatories they are permitted
to serve on Nationwide. See Docket No. 18.
Nationwide opposes the motion. See Docket No. 23.
The district court, the Honorable Lawrence L. Piersol,
referred plaintiffs' motion to this magistrate judge for
resolution pursuant to 28 U.S.C. § 636(b)(1)(A).
following facts are taken from plaintiffs' complaint
merely to provide context for the instant motion. The court
implies no endorsement of the verity of these facts.
August 1, 2017, plaintiffs owned a house insured by
Nationwide when a hailstorm came through their Sioux Falls,
South Dakota, neighborhood, causing significant damage.
Plaintiffs allege extensive, visible damage was done to their
shake shingle roof, windows and other elements of their home.
They timely submitted a claim under their insurance policy to
Nationwide. Hail damage was a covered loss under that policy.
hired Allcat Claims Service, LLC (“Allcat”), a
third party, to investigate the claim. Allcat sent its agent,
Merle Schmidt, Jr., to inspect the damage.
inspecting the plaintiff's home, Mr. Schmidt placed a
phone call to what he thought was Nationwide's phone
number. Inadvertently, however, he had in fact called
plaintiffs' phone. Mr. Schmidt proceeded to leave a
detailed voice message on “Nationwide's” (aka
message Mr. Schmidt recited detailed findings of his
inspection. He indicated he had “a little dilemma that
I'm running into” because he had seen evidence of
hail damage on the roof, including soft metal elements and
cedar-shake, and hail damage to the plaintiffs' windows.
Furthermore, he was of the opinion that the roof “would
not sustain repairs” and would have to be entirely
replaced, resulting in a large loss. He estimated the total
loss could be “well over $100, 000.” Mr. Schmidt
recommended to “Nationwide” that they send a
general adjuster who did not have specific knowledge and
experience with roofing issues to handle the claim.
days later, Nationwide gave plaintiffs a report on their loss
indicating they valued the loss at $30, 383.19. After
deducting depreciation and the deductible, Nationwide offered
to pay plaintiffs $3, 850.89. The report from Nationwide to
plaintiffs bore the signature of “Merle D. Schmidt,
Jr.” as its author. A Nationwide employee, Tracie
Althaus, sent plaintiffs an email along with the
“Schmidt” report explaining that their
“shingles do not show signs of hail damage. They show
hail spatter which happens when the hail knocks off the dirt
and oxidization (which essentially cleans the shingle and
does not cause damage).”
Brown contacted Ms. Althaus and asked her to explain the
discrepancy between the report Nationwide had given
plaintiffs and the voice mail message Mr. Schmidt had left on
plaintiffs' phone. Ms. Althaus stated that Mr. Schmidt
did not know what he was doing and his voicemail statements
should not be credited.
then hired an engineering firm from Kentucky to perform a
second inspection of plaintiffs' home. This Kentucky firm
concluded the hailstorm had not caused any damage to
plaintiffs' cedar-shake shingles.
present two issues in their motion to compel. First, they
seek to know what reserves Nationwide set for their claim.
Second, because Nationwide will not voluntarily share with
them information pertinent to electronic discovery,
plaintiffs seek an increase in the number of interrogatories
they are allowed to propound from 25 to 40 so that they can
query Nationwide about how it stores electronic information.
Good Faith Efforts to Resolve the Issues
motion to compel requests for the production of documents is
governed by Fed.R.Civ.P. 37. That rule provides in pertinent
part as follows:
On notice to other parties and all affected persons, a party
may move for an order compelling disclosure or discovery. The
motion must 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.
See Fed.R.Civ.P. 37(a)(1).
the local rules in this district require a movant to attempt
to informally resolve matters with his or her opponent before
filing a discovery motion:
No objection to interrogatories, or to requests for
admissions, or to answers to either relating to discovery
matters shall be heard unless it affirmatively appears that
counsel have met, either in person or by telephone, and
attempted to resolve their differences through an informal
conference. Counsel for the moving party shall call for such
conference before filing any motion relating to discovery
matters. . . .
See D.S.D. LR 37.1.
plaintiffs assert, and have provided evidence to the court,
that they exhausted their efforts to try to resolve these
discovery matters with Nationwide prior to filing the instant
motion. Nationwide does not dispute that the requirement of
good-faith efforts to resolve the matters have been
fulfilled. The court finds the prerequisite for filing the
instant motion to compel has been met.