United States District Court, D. Kansas
JAMES HARLAN and CARMAN ANGE, as the natural parents and heirs at law of CURTIS HARLAN, deceased, and as Special Administrators of the Estate of Curtis Harlan, deceased. Plaintiffs,
UNITED FIRE AND CASUALTY COMPANY, Defendant.
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
Plaintiffs James Harlan and Carman Ange filed this breach of contract suit on behalf of themselves as natural parents and heirs of Curtis Harlan, and as Special Administrators to the Estate of Curtis Harlan. Curtis Harlan's former employer, R.A. Knapp Construction, Inc. ("R.A. Knapp"), maintained a Commercial General Liability Policy of Insurance (the "Policy") with United Fire and Casualty Company ("United"). Curtis Harlan was employed as a member of R.A. Knapp's construction crew. On August 5, 2012, Curtis Harlan was operating a "Georgia Buggy" on Interstate 470 near Topeka, Kansas, when an oncoming car struck him. Curtis Harlan died because of the injuries he sustained in this collision.
Plaintiffs' Complaint alleges that the Georgia Buggy that Curtis Harlan was operating when the accident occurred was a covered "auto" under the Policy. They seek to recover the benefits they claim United owes under the Policy's underinsured motorist coverage. United has filed a motion for summary judgment asserting that the accident did not trigger the Policy's underinsured motorist coverage because Curtis Harlan was not operating an "auto" as the term is defined in the Policy. This matter is before the Court on United's motion for summary judgment (Doc. 24) and plaintiffs' motion to compel United to produce for deposition Kevin Smith, a field claims representative for United (Doc. 32). For the reasons explained below, the Court grants plaintiffs' motion to compel and denies United's motion for summary judgment as premature.
Plaintiffs filed their Complaint on August 23, 2014 (Doc. 1). After the parties had exchanged preliminary discovery (interrogatories and requests for document production only), United filed a motion for summary judgment (Doc. 24). In their response, plaintiffs ask the Court to deny United's motion for summary judgment as premature. See Doc. 28 at 5-7. In compliance with Rule 56(d), plaintiffs have submitted an affidavit of one of their attorneys, Kala Spigarelli (Doc. 28-2). It states that plaintiffs need time to conduct more discovery, namely, to depose Kevin Smith and other witnesses "to prove the intended use of the Georgia Buggy by decedent Curtis Harlan was for road maintenance." Id. at 1. Plaintiffs assert that such discovery is essential to develop facts justifying their opposition to United's motion for summary judgment.
United, by contrast, consistently has maintained that their motion for summary judgment only requires the Court to construe an unambiguous contract. Because construction of an unambiguous written contract is a legal question for the Court to resolve, United asserts that additional discovery is not necessary. Consistent with this position, United has refused plaintiffs' requests to produce Kevin Smith for a deposition. See Doc. 32-4. Under the Scheduling Order that Judge O'Hara issued in this case, discovery closed on April 1, 2015. Plaintiffs now have filed a motion seeking an order requiring United to produce Kevin Smith.
II. Legal Standard
"Summary judgment is appropriate only where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue [about] any material fact and that the moving party is entitled to a judgment as a matter of law." Morales v. McKesson Health Solutions, LLC, 136 F.App'x 115, 117 (10th Cir. 2005). There is no rule against early summary judgment motions-"a party may file a motion for summary judgment at any time until 30 days after the close of all discovery." Fed.R.Civ.P. 56(b). But under Rule 56(d), if a party shows by affidavit that it cannot present facts essential to justify its opposition, "the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order."
To obtain relief under Rule 56(d), a party must do more than assert "that the evidence supporting [the party's] allegation is in the hands of the [opposing party]." Weir v. Anaconda Co., 773 F.2d 1073, 1083 (10th Cir. 1985). Rather, the party must identify with some degree of specificity the facts it believes that additional discovery will uncover. See Jensen v. Redevelopment Agency of Sandy City, 998 F.2d 1550, 1554 (10th Cir.1993). "Unless dilatory or lacking in merit, " a party's Rule 56(d) request "should be liberally treated." Id. at 1553-54 (internal quotation marks and citations omitted). The decision to grant additional discovery under to Fed.R.Civ.P. 56(d) is within the district court's discretion. Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir. 1984); see also Pfenninger v. Exempla, Inc., 116 F.Supp.2d 1184, 1194 (D. Colo. 2000) ("The district courts exercise discretion in deciding whether to grant a [Rule 56(d)] motion.").
Plaintiffs' motion requires the Court to decide whether this case presents legal questions only or whether it presents factual issues that justify plaintiffs' request for additional discovery. Plaintiffs have persuaded the Court that United's motion for summary judgement presents at least two questions of fact.
First, the parties agree that the Policy's underinsured motorist provision applies to employees when they operate an "auto, " but not when they operate "mobile equipment." However, the Policy carves out exemptions for certain types of mobile equipment.
Vehicles not described in Paragraph 1., 2., 3., or 4. above maintained primarily for purposes other than the transportation of persons or cargo. However, self-propelled vehicles with the following types of permanently attached ...