Commercial Union Ins. Co. v. Westrope

• Decision Date: 23 April 1984
• Docket Number: No. 83-7259,83-7259
• Citation: 730 F.2d 729
• Parties: COMMERCIAL UNION INSURANCE COMPANY, Plaintiff-Appellee, v. Eugene WESTROPE, John Jetter, Loretta Jetter, and Joe Alday, Defendants, Nathan Overstreet, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 729

730 F.2d 729

39 Fed.R.Serv.2d 664

COMMERCIAL UNION INSURANCE COMPANY, Plaintiff-Appellee, v. Eugene WESTROPE, John Jetter, Loretta Jetter, and Joe Alday Defendants Nathan Overstreet, Jr., Defendant-Appellant.

No. 83-7259.

United States Court of Appeals Eleventh Circuit.

April 23, 1984.

Marc E. Bradley, Fairhope, Ala., for Overstreet.

Robert G. Kendall, Mobile, Ala., for Jetter.

David F. Daniell, Mobile, Ala., for Westrope.

Robert M. Girardeau, Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before KRAVITCH, JOHNSON and HATCHETT, Circuit Judges.

PER CURIAM:

In this declaratory judgment action, we examine whether the district court erred in denying Nathan Overstreet's motion to compel Eugene Westrope to submit to further deposition. The district court improperly ruled upon Overstreet's motion. We therefore reverse the district court's grant of summary judgment for Commercial Union Insurance Company (Commercial Union) and remand to the district court for a proper ruling on the discovery question.

Background

On April 18, 1979, Nathan Overstreet, a union hall employee, was injured while working for Delta Painters, Inc. Overstreet filed suit in the Circuit Court of Washington County, Alabama, against Westrope, the superintendent of the Delta Painter's job site where Overstreet was injured, and various other defendants. Commercial Union, the liability insurer for Delta Painters, defended Westrope in the tort action, but indicated to Westrope that the assumption of the defense was not a waiver of its right to later deny coverage under the liability insurance policy. The relevant section of the policy states that those insured include any executive officer while acting within the scope of his duties. Commercial Union advised Westrope that he had no coverage under the Delta policy because Commercial Union did not view him as an executive officer.

In a separate suit, Commercial Union instituted a declaratory judgment action seeking a declaration that Westrope was not covered as an executive officer under the liability policy. Subsequently, Commercial Union amended its complaint by adding Nathan Overstreet as a party defendant. Westrope alleged that (1) Commercial Union was estopped from denying coverage at the time it filed its lawsuit and (2) that he was in fact provided coverage by the policy at the time of Overstreet's injury.

On January 26, 1983, during his deposition, Westrope refused to answer a question posed by Overstreet's lawyer regarding his responsibility for job site safety and his authority to handle safety complaints. Westrope's lawyer advised him not to answer the question because the lawyer felt the question was irrelevant to this particular coverage action.

On February 4, 1983, Commercial Union filed a motion for summary judgment. Commercial Union alleged that no genuine issue existed as to any material fact and that it was entitled to judgment as a matter of law. It contended that Westrope was not an executive officer of Delta Painters and thus, was not entitled to coverage. Additionally, Commercial Union stressed that it had not waived, nor was it estopped from asserting its rights under the policy.

On February 16, 1983, Westrope filed with the district court a motion asking the court to enter a consent judgment declaring that he had no coverage under the liability insurance policy. The district court, that same day, signed a consent judgment in favor of Commercial Union declaring that Westrope was not covered by the liability insurance policy issued to Delta Painters.

On February 18, 1983, lawyers for Commercial Union attended a pretrial hearing in which a consolidated pretrial on both the coverage issue and Overstreet's liability claim were held.

On March 8, 1983, Overstreet filed a motion requesting the district court to order Westrope to answer the question which he did not answer at the earlier deposition and other questions. In the motion to compel party to submit to deposition, Overstreet asked the court to enter an order compelling Westrope to submit to additional questioning regarding his job responsibilities and activities. Overstreet contends these questions are relevant to the declaratory judgment action filed by Commercial Union because the answers to those questions could reveal facts showing that Westrope was an executive officer of Delta Painters, and was covered under the liability insurance policy. On March 21, 1983, the district court denied Overstreet's motion to compel Westrope to submit to further deposition. ¹ The magistrate stated that the proposed deposition testimony was irrelevant since the district judge had earlier executed a consent judgment declaring that Westrope was not entitled to coverage.

On March 30, 1983, the district court entered an order granting Commercial Union's motion for summary judgment in its declaratory judgment action against all remaining defendants, and entered a final judgment declaring that Westrope had no coverage under Delta Painters' liability insurance policy. After reviewing Commercial Union's motion for summary judgment, supporting affidavits, memorandum of law, supplemental argument with reference to the deposition, and the agreed facts in the pretrial order, the district court concluded that Westrope was not an executive officer. The court considered the nature of Westrope's duties, the form of his remuneration, and the absence of the types of authority generally held by an officer of a corporation in making the determination. ²

Overstreet appeals arguing that the district court incorrectly ruled on his motion to compel Westrope to submit to further deposition. The parties extensively analyzed in their briefs the question of whether Westrope was an executive officer of Delta Painters.

Discussion

Federal Rule of Civil Procedure 37(a)(2) states that "if a deponent fails to answer a question propounded or submitted under rules 30 or 31 ... the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request." The district court denied Overstreet's motion to compel Westrope to submit to further deposition, stating that the proposed deposition testimony was irrelevant because the court had earlier executed a consent judgment declaring that Westrope was not entitled to coverage. Nine days after this ruling, the district court entered an order granting Commercial Union's motion for summary judgment and entered a final judgment declaring that Westrope had no coverage under the liability insurance policy.

Case law states that a motion to compel discovery is committed to the discretion of the trial court, and the function of this court is to determine whether the trial court abused its discretion in entering the challenged order. Zerilli v. Smith, 656 F.2d 705, 710 (D.C.Cir.1981); Montecatini Edison S.P.A. v. E.I. Dupont De Nemours & Co., 434 F.2d 70, 72 (3d Cir.1970). "The trial court's exercise of discretion regarding discovery orders will be sustained absent a finding of abuse of that discretion to the prejudice of a party." Hastings v. N.E. Independent School District, 615 F.2d 628, 631 (5th Cir.1980).

The district court denied Overstreet's motion to compel further deposition upon its belief that the proposed deposition testimony was no longer relevant. A district court may deny a motion to compel further deposition questioning when the court determines that the questions are irrelevant. Fowkes v. Dravo Corp., 7 F.R.D. 291 (E.D.Pa.1947). The problem with the district court's decision in this...