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H&L Associates of Kansas City, LLC v. The Midwestern Indemnity Co.

United States District Court, Tenth Circuit

November 1, 2013

H&L ASSOCIATES OF KANSAS CITY, LLC, Plaintiff,
v.
THE MIDWESTERN INDEMNITY COMPANY, Defendant.

MEMORANDUM AND ORDER

DAVID J. WAXSE, Magistrate Judge.

In this insurance coverage dispute, the parties disagree on whether damages to a commercial building owned by Plaintiff are covered under an insurance policy issued by Defendant. Pending before the Court is Defendant's Motion to Compel Discovery (ECF No. 49). Defendant requests an order pursuant to Fed.R.Civ.P. 37 compelling Plaintiff to withdraw its objections and fully respond to Defendant's Second Request for Production Nos. 47, 58-60, and 61-65. As set out in more detail below, the motion is granted in part and denied in part.

I. Relevant Background Facts

Plaintiff H&L Associates of Kansas City, LLC obtained a commercial insurance policy from Defendant The Midwestern Indemnity Company to insure a commercial building located in Kansas City, Missouri. Plaintiff alleges that on April 6, 2012, the building experienced a "roof collapse, " which is a cause of loss covered under the policy. On April 30, 2012, Defendant denied coverage of Plaintiff's claim. It contends that the event did not involve a "collapse" as defined by the policy, nor was it abrupt or unexpected. On November 7, 2012, Plaintiff filed this action asserting claims for breach of contract, vexatious refusal to pay, breach of duty of good faith and fair dealing, and willful and wanton misconduct.

Relevant to the instant motion, Defendant served its Second Request for Production of Documents on Plaintiff on June 28, 2013. Plaintiff served its responses and objections to Defendant's Second Request for Production of Documents on August 2, 2013. After attempting to confer as required by Fed.R.Civ.P. 37(a)(1) and D. Kan. Rule 37.2, Defendant filed its motion to compel discovery on September 3, 2013.

II. Discovery Sought by Defendant

In its motion, Defendant claims that Plaintiff's responses and accompanying objections to Defendant's Second Request Nos. 47, 58-60, [1] and 61-65[2] are deficient in several respects. It requests that the Court overrule Plaintiff's objections and order Plaintiff to fully respond to its discovery requests.

A. Second Request Nos. 47, 58-60 (Roof Condition Correspondence, Inspection and Repair Records)

Defendant's Second Request No. 47 asks Plaintiff to produce communications between it and its property management company for the subject premises regarding the roof of the property from 1997 to the present. Request No. 58 seeks communications between Plaintiff and its insurance agent pertaining to the condition of the roof of the premises in the 15 years prior to the incident identified in the complaint. Request No. 59 asks for documents that reflect or pertain to any inspection of the roof or roofing system of the premises in the 15 years prior to April 6, 2012. Request No. 60 seeks documents that reflect or pertain to any recommendation, estimate, proposal or bid to perform any repairs to, replace or otherwise modify the roof or roofing system of the premises in the 15 years prior to April 6, 2012.

Plaintiff objected to all four discovery requests as overbroad in time because they seek documents dating back more than 15 years. It also objected to them as being facially overbroad with regard to the scope of the subject matter. It specifically objected to Request Nos. 47 and 58 on the grounds the requests are overbroad in scope because they "relate[] to any condition' of the Premises regardless of whether the condition is related to the roof collapse incident or is otherwise relevant in this case." It objected to Request No. 59 as being overbroad in scope because it "relates to any inspection of the roof of the Premises regardless of the purpose of the inspection or the focus of the inspection." It objected to Request No. 60 as being overbroad in scope because it "relates to any repair, replacement or modification of the roof of the Premises regardless of the nature of such work or whether the work is relevant to the roof collapse incident that is the subject of this lawsuit." Finally, Plaintiff objected to all four discovery requests as unduly burdensome. Subject to its objections, it responded to the requests as follows:

Request No. 47 - Plaintiff has produced communications concerning the roof collapse incident that is the subject of this lawsuit.

Request No. 58 - Plaintiff has no such documents in its possession, custody or control.

Request Nos. 59 and 60 - Plaintiff states that the roof of the premises was periodically inspected and routine maintenance was performed by the Quality Roofing Company and record of ...


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