Baker v. St. Paul Travelers Ins. Co.

• Decision Date: 28 February 2012
• Docket Number: No. 11–1897.,11–1897.
• Parties: Heidi M. BAKER, Plaintiff, Appellant, v. ST. PAUL TRAVELERS INSURANCE COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

670 F.3d 119

Heidi M. BAKER, Plaintiff, Appellant,

v.ST. PAUL TRAVELERS INSURANCE COMPANY, Defendant, Appellee.

No. 11–1897.

United States Court of Appeals, First Circuit.

Heard Jan. 9, 2012.Decided Feb. 28, 2012.

Merrill J. Friedemann, with whom Anthony J. Gianfrancesco, William F. Warren, and Baluch, Gianfrancesco & Mathieu were on brief, for appellant.

Paul V. Sullivan, with whom Sullivan, Whitehead & DeLuca LLP was on brief, for appellee.

Before BOUDIN, SELYA and STAHL, Circuit Judges.

STAHL, Circuit Judge.

In 2010, we remanded this state law insurance action for appropriate discovery on the narrow question of whether plaintiff-appellant Heidi M. Baker's employer “explicitly purchased” underinsured motorist (UIM) coverage from defendant-appellee St. Paul Travelers Insurance Company (St. Paul) for the purpose of providing such coverage to employees like Baker who are injured in the course of their employment. After that discovery occurred, the district court denied Baker's motion to compel further discovery and for sanctions against St. Paul, and the court granted summary judgment in favor of St. Paul. Baker appeals both rulings. We affirm.

I. Facts & Background

We recounted the factual and procedural history of this case in some detail in Baker v. St. Paul Travelers Insurance Co. (Baker I), 595 F.3d 391 (1st Cir.2010), and we thus summarize only the relevant background here.

Baker is a Rhode Island resident and a former employee of Safety Source Northeast (Safety), a Massachusetts corporation. On December 17, 2002, Baker was driving one of Safety's vehicles as part of her job duties and was seriously injured in a car accident caused by the other driver. The accident occurred in Boston, Massachusetts. Baker filed a third-party claim against the tortfeasor, whose insurance company paid the full policy limit of $20,000.00, which was insufficient to cover Baker's damages. She also filed for and received workers' compensation (WC) benefits through the Rhode Island WC system, and she made a UIM claim against her personal automobile insurance company, which she settled for the policy limit of $25,000.00. Finally, Baker sought to recover under the UIM provision of Safety's automobile insurance policy, which was provided by St. Paul.

St. Paul denied Baker's claim, citing Massachusetts law for the proposition that an employee cannot recover for work-related injuries under both WC and her employer's UIM coverage. Baker challenged that denial in Rhode Island state court, and St. Paul removed the case to federal district court. Baker argued that Rhode Island law should apply to the interpretation of the policy, but that even under Massachusetts law, the bar on recovery under both WC and the employer's UIM coverage would not apply, because the UIM coverage was a bargained-for provision.

In Baker I, we determined that Massachusetts law does indeed apply in this case. See id. at 392–93. In Massachusetts, an employee generally cannot recover under both WC and her employer's UIM policy, see Berger v. H.P. Hood, Inc., 416 Mass. 652, 624 N.E.2d 947 (1993); Nat'l Union Fire Ins. Co. v. Figaratto, 423 Mass. 346, 667 N.E.2d 877 (1996), except where the employer has “explicitly purchased” the UIM coverage “for the purpose of providing [such] coverage (or any other coverage) to employees injured in the course of their employment,” Nat'l Union, 667 N.E.2d at 881. We thus found that Baker's appeal turned on whether Safety had “explicitly purchased” its UIM coverage within the meaning of the National Union carve-out, and we remanded the case for appropriate discovery to answer that discrete question. Baker I, 595 F.3d at 395.

On remand, after discovery proceeded, Baker filed a motion to compel further discovery and to impose sanctions against St. Paul as a result of a dispute that arose during the deposition of St. Paul's Rule 30(b)(6) witness. See Fed.R.Civ.P. 30(b)(6). The parties also cross-moved for summary judgment. The district court denied Baker's discovery motion and granted summary judgment to St. Paul. This timely appeal followed.

II. Discussion

A. The discovery motion

We review discovery orders for abuse of discretion, Ji v. Bose Corp., 626 F.3d 116, 121 (1st Cir.2010), including the denial of a motion for discovery sanctions, Meléndez–García v. Sánchez, 629 F.3d 25, 33 (1st Cir.2010).

In response to Baker's Rule 30(b)(6) subpoena, St. Paul designated Deborah Restaine, a Product Management Director. Toward the very end of Restaine's nearly three-hour deposition, St. Paul instructed Restaine not to answer several of Baker's questions, which St. Paul believed were outside the scope of the discovery that we had ordered on remand. Baker concluded the deposition and, eighteen days later, moved to compel further discovery and for sanctions, arguing that Restaine was not sufficiently knowledgeable to have served as a Rule 30(b)(6) witness and that St. Paul had violated Rule 30(c)(2) by instructing Restaine not to answer. The magistrate judge denied Baker's non-dispositive motion, and the district court affirmed. See Fed.R.Civ.P. 72(a).

Though Baker's initial motion requested both further discovery and sanctions against St. Paul, she has focused her appeal on the district court's denial of her motion for sanctions. In other words, she has made no real argument that we should order St. Paul to make Restaine available for further questioning or designate another Rule 30(b)(6) witness. Baker has therefore waived any review of the denial of her motion to compel. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”). However, if Baker had properly put the issue before us, we would affirm the lower court's refusal to order further discovery. Baker has not demonstrated that she was unable to obtain information during the deposition that fell within the scope of the discovery we mandated in Baker I.¹ We thus fail to see how either St. Paul's instructions not to answer or Restaine's alleged lack of knowledge “resulted in substantial prejudice” to Baker, nor has Baker come close to convincing us that the lower court's order on the motion to compel “was plainly wrong.” Ji, 626 F.3d at 122 (citations and internal quotation marks omitted).

Turning to the motion for sanctions, we begin with St. Paul's act of instructing Restaine not to answer a series of questions at the end of her deposition. Rule 30(c)(2) states that “[a] person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Fed.R.Civ.P. 30(c)(2). Baker argues that St. Paul's instructions not to answer violated Rule 30(c)(2) and that St. Paul is thus sanctionable under Rule 30(d)(2), which allows a district court to “impose an appropriate sanction—including the reasonable expenses and attorney's fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.” Fed.R.Civ.P. 30(d)(2).

Though the magistrate judge found that it was procedurally improper for St. Paul to instruct Restaine not to answer, he reviewed the ninety-eight-page transcript of Restaine's deposition and determined that all but one of Baker's objected-to, unanswered questions (which began on page eighty-six) were indeed outside the narrow scope of the discovery that we prescribed in Baker I. The only question that fell within the scope of discovery related to the premium that Safety had paid for the optional UIM coverage included in the policy at issue. The magistrate judge found, however, that Baker already knew the answer to that question and therefore was not prejudiced when St. Paul instructed Restaine not to answer it.

We need not address whether it was proper under Rule 30 for St. Paul to instruct Restaine not to answer Baker's questions “to enforce a limitation ordered by the court.” Fed.R.Civ.P. 30(c)(2). Even assuming, as the magistrate judge concluded, that St. Paul should not have issued the instructions,² Baker has not satisfied the abuse of discretion standard. See Meléndez–García, 629 F.3d at 33. Because “[t]rial judges have considerable discretion in the selection and imposition of sanctions,” Barreto v. Citibank, N.A., 907 F.2d 15, 16 (1st Cir.1990), a party appealing an order with regard to sanctions “bears a formidable burden in attempting to convince the court of appeals that the lower court erred,” Koken v. Black & Veatch Constr., Inc., 426 F.3d 39, 53 (1st Cir.2005) (citation and internal quotation marks omitted). Baker has not even attempted to argue that any of her unanswered questions fell within the scope of discovery, nor has she demonstrated that St. Paul “impede[d], delay[ed], or frustrate[d] the fair examination of the deponent.” Fed.R.Civ.P. 30(d)(2). She therefore has not met her “formidable burden” of convincing us that the district court abused its discretion. Koken, 426 F.3d at 53.

Baker's second argument is that Restaine was not sufficiently knowledgeable or prepared for the deposition, so the district court should have treated her testimony as a non-appearance and issued sanctions under Rule 37. See Fed.R.Civ.P. 37(d)(1)(A)(i). A Rule 30(b)(6) designee must be able to testify on behalf of an organization “about information known or reasonably available to the organization.” Fed.R.Civ.P. 30(b)(6). Rule 37(d)(1)(A)(i), in turn, allows a court to issue sanctions if the Rule 30(b)(6) witness “fails, after being served with proper notice, to appear for that person's deposition.” Fed.R.Civ.P. 37(d)(1)(A)(i). Baker cites a Fifth Circuit case for the proposition that, when an organization's Rule 30(b)(6) designee is not knowledgeable about the relevant facts, “the appearance is, for all practical purposes, no appearance at all,” and the organization is susceptible to...