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Wetch v. Crum & Forster Commercial Ins.

United States District Court, D. South Dakota, Western Division

October 29, 2019

DAVID WETCH, Plaintiff,
v.
CRUM & FORSTER COMMERCIAL INS., NORTH RIVER INSURANCE COMPANY, and UNITED STATES FIRE INSURANCE COMPANY, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO COMPEL DOCKET NO. 150

          VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         This matter is before the court on plaintiff David Wetch's amended complaint. See Docket No. 44. After several rounds of motions, the claims allowed to go forward are Mr. Wetch's claim that defendants failed in bad faith to timely provide worker's compensation insurance benefits, defendants intentionally inflicted emotional distress on Mr. Wetch, a Medicare secondary payer action, and conversion. See Docket Nos. 44, 120 & 156. Mr. Wetch seeks compensatory and punitive damages for these claims. See Docket No. 44. Now pending is a motion to compel answers to Interrogatory Nos. 9 & 10 by defendants. See Docket No. 150. Mr. Wetch resists the motion. See Docket No. 157. This case has been referred to this magistrate judge for pretrial management by the Honorable Jeffrey L. Viken, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(A) & (B). See Docket No. 75.

         FACTS

         After three rounds of Rule 12 motions to dismiss, and cross-motions for partial summary judgment from both Mr. Wetch and the defendants, the facts are well known to the court. The below recitation of facts is a skeletal outline of just those facts necessary to give framework to the resolution of the pending discovery motion. Should the reader desire a fuller recitation of facts, reference is made to the court's orders at Docket Nos. 82, 131 & 142.

         Mr. Wetch suffered a work-related injury on July 30, 1991, for which defendants have paid him disability benefits and medical expenses pursuant to a policy of workers compensation insurance issued by them to Mr. Wetch's then-employer. After Mr. Wetch brought a bad faith action in 1992, for delayed or denied benefits, the parties settled the claim and defendants agreed to pay Mr. Wetch a lump-sum of money for permanent total disability benefits, reduced to present value, on November 8, 1994.

         Between February, 1992, and January, 2007, defendants paid various medical expenses incurred by Mr. Wetch related to his work injury, none of which are in issue in this case. Then, between October, 2006, and March 9, 2011, Mr. Wetch made no requests for any medical expense payments. Defendants closed Mr. Wetch's claim file.

         Mr. Wetch then suffered an injury at home that resulted in his loss of consciousness temporarily. Thereafter, on August 1, 2011, Mr. Wetch's treating physician requested that defendants re-open Mr. Wetch's claim file and resume paying Mr. Wetch's then-ongoing medical payments. Mr. Wetch alleges that defendants have failed to pay, or delayed paying, medical benefits during this period after March 9, 2011. There has been a multitude of allegations and pleadings in this court, before the South Dakota circuit court, and before the South Dakota Department of Labor regarding defendants' obligations to Mr. Wetch regarding various workers compensation benefits.

         This motion to compel concerns the following two interrogatories and Mr. Wetch's responses thereto:

INTERROGATORY NO. 9: Identify and describe in detail each and every instance you assert was an unreasonable denial of benefits by Defendants, including the specific first aid, medical, surgical, and hospital services, or other suitable and proper care including medical and surgical supplies, apparatus, artificial members, and body aids prescribed and the dates Defendants were notified of each prescription.
ANSWER: OBJECTION: See Objections to Interrogatories 2, 4, and 7. The interrogatory is unduly broad, and overly burdensome; attorney work-product. Worker's compensation benefits are to be determined in the Department of Labor proceedings. Defendants failed to seek or exhaust their administrative remedies when they failed to provide benefits when prescribed or when they failed to seek relief before the Department of Labor under SDCL 62-7-33. It appears that the Defendants misunderstand the law and the procedural requirements pertaining to these issues and are attempting to have issues reserved for the jurisdiction of the South Dakota Department of Labor resolved in the federal proceeding. Moreover, denials have been addressed through workers' compensation proceedings and contempt actions where the Defendants' liability and obligation to pay has been established. Defendants can just as easily compile this information from the records; a list of such documents or care is attorney-work product. Moreover, the Amended Complaint identifies care denied by the Insurer. In addition to the issues outlined in Objection to Interrogatory No. 7, and to briefly illustrate Defendants' possession of these documents:
[there follows a list of 12 specified items or categories of benefits Mr. Wetch alleges defendants either denied or delayed payment for]
Defendants are aware of and have control of documents relating to their failure to provide benefits, or unreasonable delay, and subsequent payments, as discussed and established by the South Dakota Department of Labor and the Seventh Judicial Circuit Court. Defendants' request for repeated itemization is unduly burdensome and simply designed to harass. These issues have been addressed in other proceedings, or are a result of the Defendants' failure to investigate and address these issues in other proceedings. Moreover, Defendants have submitted payments on various items in the past year, which identifies the basis for payment and description of care. Defendants are aware of when, why, and how they made payments for such care. It is unreasonable and unduly burdensome to require Plaintiff or his attorneys to do Defendants' work for them or to simply reiterate Defendants' prior admissions and the prior prescriptions of Plaintiff's medical providers, which were approved by the South Dakota Department of Labor. Moreover, this Interrogatory attempts to elicit Plaintiff's attorney's theories and assessments of the case. For example, this Interrogatory appears to elicit legal opinions and theories because it presupposes that the Insurer could deny care unilaterally, without following SDCL 62-7-33 and the law of the state of South Dakota. As such, objection is made on the basis of res judicata, collateral and judicial estoppel, the failure to exhaust administrative remedies (Zuke v. Presentation Sisters), SDCL 62-4-1, 62-7-33. See generally, Plaintiff's Motion for Partial Summary Judgment (Dockets 59-62). Please also review the correspondence of T.J. Von Wald, dated May 15, June 7, July 19, 2018, and the correspondence of Mr. Jeffery D. Collins, dated July 25, 2018. Please also see correspondence dated January 20, 2016 to Mr. Travis and Mr. Hoier, noting payments and receipts. Defendants are well aware of the issues and the payments made. Please see all records previously provided in this case, in the worker's compensation proceedings, and in the contempt proceedings, which documents are in the possession or control of the Defendants.
Without waiving said objections:
Beginning in 2011, items were being prescribed by Dr. Goodhope, but not being provided and/or paid for by the insurer. Alanna Turnbaugh was submitting receipts and prescriptions to Crum & Forster, on my behalf, but we did not receive full payments or reimbursements until much later, after orders from the Department of Labor. The insurer denied 50% of some of the care and all of the rest. Some of the prescriptions weren't even addressed by the insurer in their responses.
Each and every time Defendants failed to pay, provide, or investigate the submitted medical prescriptions and bills was an unreasonable denial or delay action, including delay in the payment or processing. I had to go to the South Dakota Department of Labor to address these issues and to have the Department address what care needed to be provided. The failure to pay or provide the care admitted in response to the First, Second, Third, and Fourth Motions for Partial Summary Judgment was unreasonable. The delay in approving referrals, referred to in the Second Motion for Partial Summary Judgment was unreasonable. The insurer admitted it owed the remaining 50% of some of the payments, but didn't pay the 50% reimbursements until they were held in contempt by Judge Davis. The Department of Labor entered decisions in 2016-2018. Those documents explain what happened better than I can. The Amended Complaint sets out the history and denials.
Dr. Goodhope prescribed a case manager to assist me with obtaining care, because I can't get this care on my own. This prescription was approved by the Department of Labor in the First Motion for Partial Summary Judgment. The case manager was not provided for a long time. That made it really hard, because I can't do this myself. On Easter weekend of 2018, I was provided with aides to assist me, who were provided by the insurer. I had obtained some of this aid in the past through public assistance programs, including rent assistance and other care workers. I still have not been provided suitable living accommodations, even though the insurer admitted it had to provide me this care.
INTERROGATORY NO. 10: Identify and describe in detail each and every instance you assert was an unreasonable delay of benefits by Defendants, including the specific first aid, medical, surgical, and hospital services, or other suitable and proper care including medical and surgical supplies, apparatus, artificial members, and body aids prescribed, and the dates Defendants were notified of the prescription, and the date payment was made.
ANSWER: OBJECTION: See Objections to Interrogatories 2, 4, 7, and 9. Defendants are asking Plaintiff to organize the case for them and provide Plaintiff's attorneys' theories and approaches to the case. This is not discoverable as attorney work-product.
Moreover, these issues have been addressed before the South Dakota Department of Labor and the Seventh Judicial Circuit Court. Defendants have failed to exhaust their administrative remedy in the forum with jurisdiction to hear these issues. These issues are identified and documented in the Amended Complaint and attached documentation.
Without waiving these objections: Please see the answer to Interrogatory No. 9. An unreasonable delay of benefits began when I started seeing Dr. Goodhope again in 2011. He prescribed walkers, handrails, a lift chair, TENS unit, a life assessment, and Cymbalta and SOMA medications, and other care. A number of these items were delayed by requiring me to pay the full amount and then seek reimbursement for 50%. I had to get help from my family to pay for the care. I had to go to the Department of Labor to get my prescriptions filled and provided. I had to pay out of pocket. Later, Defendants admitted they couldn't have this reduction/denial, and that they were responsible 100%. Even though they admitted it, and the Department of Labor ordered it, Defendants did not pay the remaining 50% of the denied bills, or the other stuff they were ordered to pay by the life needs plan and the Form 485. I had to go to circuit court. Even then, some of the care wasn't provided or paid. A third and fourth decision came out from the Department requiring the insurer to pay. This delay was entirely unreasonable.
Payments were made by the insurer in 2017 for some of the 50% reimbursements. But the Soma and other bills weren't paid until 2018. More payments were received in 2018, around the time of the fourth letter decision, for reimbursements of other care I received along the way. I still am not in a fully handicapped accessible apartment. A number of other items were delayed as well. See Answer to Interrogatory No. 7 in Plaintiff's Objections, Answers, and Responses to Defendant United States Fire Insurance Company's First Set of Interrogatories and Requests for Production to Plaintiff. I got a life needs assessment from Linda Graham, that Dr. Goodhope had prescribed and then approved. The Department of Labor ordered the insurer to provide that care. But it didn't. It has taken a long time to get that care provided, even after the Department approved the care again at the end of 2016. In 2018, we filed again with the Department because the insurer wasn't getting me care they agreed to provide. After that, the insurer started paying what was owed, including medications, aides, a van, and other care. The Amended Complaint sets out the history and delays.

See Docket No. 152-2 at pp. 2-5.

         Defendants move to compel Mr. Wetch to provide “full answers” to these two interrogatories and to overrule his objections to the discovery. See Docket No. 150. Mr. Wetch resists the motion. See Docket No. 157.

         DISCUSSION

         A. Meet and Confer Requirement

         Both the Federal Rules of Civil Procedure and this district's local rules of procedure require that parties meet and confer in an attempt to resolve discovery disputes before filing discovery motions. See Fed.R.Civ.P. 37(a)(1); DSD LR 37.1. A certification must be part of any discovery motion and the certification must show that a good-faith effort was made to resolve disputes before filing the motion. Id. Defendants outlined their efforts to discuss Mr. Wetch's responses to Interrogatory Nos. 9 & 10 with Mr. Wetch's counsel, both in writing and via telephone. Mr. Wetch does not take issue with defendants' satisfaction of this condition precedent. Therefore, the court turns to the merits of the dispute.

         B. Scope of Discovery ...


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