Edebali v. Bankers Standard Ins. Co.
| Decision Date | 17 July 2017 |
| Docket Number | CV 14-7095 (JS) (AKT) |
| Parties | YUCEL EDEBALI, Plaintiff, v. BANKERS STANDARD INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
I. PRELIMINARY STATEMENT
Plaintiff Yucel Edebali ("Plaintiff" or "Edebali") brings the instant action against Defendant Bankers Standard Insurance Company ("Defendant" or "Bankers Standard") seeking damages in conjunction with an insurance claim filed in the aftermath of "Superstorm Sandy." See generally Complaint ("Compl.") [DE 1-2]. Specifically, Plaintiff asserts claims for breach of contract and violations of New York General Business Law ("GBL") Section 349.1 Id. Presently before the Court is Defendant's motion to quash two subpoenas (the "Subpoenas") served on non-party Brian Gibbons, Esq., Bankers Standard's outside counsel. See DE 50. For the reasons that follow, Defendant's motion is DENIED, without prejudice.
II. RELEVANT FACTUAL BACKGROUND
The relevant facts are taken from the Complaint, the January 25, 2017 Affirmation of Scott E. Agulnick as well as the Affidavits of Jeffrey Maffucci and Cara DiGiovanna, attached as exhibits to the December 21, 2016 Affirmation of Paul C. Ferland, counsel for Bankers Standard in this action. All facts are assumed to be true for the purposes of the instant motion.
Plaintiff is the owner of a residential dwelling located at 546 Long Beach Road, Nissequogue, New York 11780 (the "Property"). Compl. ¶ 5. Plaintiff contracted with Defendant for a homeowner's insurance policy in order to protect the Property against risk of loss, including "physical loss from wind, power surge, vandalism, theft, as well as for lost rents." Id. ¶ 6. In consideration of the premium paid by Plaintiff, Defendant issued Plaintiff a policy "bearing policy number 268-02-80-38" (the "Policy"). Id.
On October 29, 2012, Superstorm Sandy ravaged much of the east coast of the United States. The Property, which was located in the direct path of the storm, sustained significant damage due to wind and power surges. Id. ¶¶ 8-9. Specifically, as a result of the storm, the Property suffered damages to the following areas: structure, electronics and home automation systems, HVAC systems, irrigation controls, sprinkler system, exterior lighting and electrical, landscaping, outdoor and indoor swimming pools, bluff stairs and live coral reef. Id. ¶ 10. Based upon the aggregate scope of the damages, the Property was "rendered uninhabitable and unusable." Id. ¶ 11.
After being apprised of the loss (the "Sandy Claim"), Defendant assigned Jeffrey Maffucci ("Maffucci") as "the in-house adjuster, to investigate the Sandy Claim." December 20, 2016 Affidavit of Jeffrey Maffucci ("Maffucci Aff."), attached as Exhibit ("Ex.") C to the December 21, 2016 Affirmation of Paul C. Ferland ("Ferland Aff.") [DE 50-2], ¶ 4. In his roleas Defendant's in-house claims adjuster, Maffucci was responsible for "gathering information and advising [Defendant] concerning the scope of the loss and facts that might affect its coverage determination" concerning the Sandy Claim. Id. ¶ 5. As part of this information gathering role, Maffucci "requested invoices, estimates, and other documentation from Plaintiff that would support his Sandy Claim." Id. ¶ 10. Notwithstanding these requests, Maffucci states that "Plaintiff failed to provide all necessary documentation, and any information he did provide was submitted in piecemeal fashion." Id. ¶ 11. In light of the difficulties in collecting complete records from Plaintiff, Defendant "ultimately decided to conduct Plaintiff's examination under oath ("EUO") to clarify the facts of the Sandy loss and establish the components of the Sandy Claim." Id. ¶ 11. In order to provide legal advice in conjunction with the pending Sandy Claim (including representing Defendant at Plaintiff's EUO), Defendant retained the law firm of Wade Clark Mulcahy ("WCM"). Id. ¶ 12. Despite retaining WCM, Maffucci states that the firm "played no role in the Adjustment of the Sandy Claim during [his] time as the adjuster of the Sandy Claim." Id. ¶ 9; see, e.g., December 20, 2016 Affidavit of Brian Gibbons ("Gibbons Aff."), attached as Ex. C to the Ferland Aff. ( part, that Brian Gibbons, Esq., a partner with WCM, was retained in July 2013 as "coverage counsel" and was charged with providing Defendant "legal advice regarding the Sandy Claim" and representing Defendant at Plaintiff's EUO); but see January 25, 2017 Affirmation of Scott E. Agulnick ("Agulnick Aff.") [DE 51-1], ¶¶ 7-8 ().
During the pendency of the adjustment period for the Sandy Claim, the Property sustained additional damages on two separate occasions — September 28, 2013 and October 5,2013 — due to vandalism and theft (the "Vandalism Claim"). Compl. ¶¶ 41-42. These damages consisted of "a direct physical loss to the radiant heating system, HVAC systems, electronics damage and theft, theft of art, small appliances, televisions, damage to furniture [and] copper piping. . . ." Agulnick Aff. ¶ 6. Upon receiving notice of this additional claim, Defendant assigned Cara DiGiovanna ("DiGiovanna") "as the in-house adjuster, to investigate the Vandalism Claim." December 20, 2016 Affidavit of Cara DiGiovanna ("DiGiovanna Aff."), attached as Ex. C to the Ferland Aff., ¶ 5. Similar to the responsibilities of Maffucci — the in-house adjuster assigned to the Sandy Claim — DiGiovanna "was tasked with gathering information and advising [Defendant] concerning the scope of the vandalism loss and facts that might affect [Defendant's] coverage determination." Id. ¶ 7. Significantly, DiGiovanna stated that she "supervised, coordinated, and directed the investigation of the vandalism incidents" and that "Mr. Gibbons played no role" in any of these activities. Id. ¶ 11. Rather, according to DiGiovanna, Attorney Gibbons' "only role . . . was to provide legal advice . . . [and, as such] [h]e never adjusted, investigated, or handled the Vandalism Claim in any way." Id. ¶ 12.
Similar to the characterizations of his involvement as set forth in the Maffucci and DiGiovanna Affidavits, Gibbons himself characterizes his role with respect to the claims process as one limited to "providing legal advice" concerning Defendant's "duties and obligations." Gibbons Aff. ¶¶ 5-10. As such, according to Attorney Gibbons, he "never acted as a claims adjuster, but rather, provided legal advice to the claims adjuster assigned by [Defendant] to each claim." Id. ¶ 10; but see Agulnick Aff. ¶ 11, Exs. A-C (coverage determination and adjustment letters from Attorney Gibbons to Attorney Agulnick which Plaintiff asserts illustrate that Attorney Gibbons was integral to the "handling of the claims in the ordinary course of business").
III. APPLICABLE LEGAL STANDARDS
Rule 26(b)(1), as amended on December 1, 2015, recognizes that "[i]nformation is discoverable . . . if it is relevant to any party's claim or defense and is proportional to the needs of the case." Rule 26 Advisory Committee Notes to 2015 Amendments; see Sibley v. Choice Hotels Int'l, No. CV 14-634, 2015 WL 9413101, at *2 (E.D.N.Y. Dec. 22, 2015) () (internal citation omitted); Denim Habit, LLC v. NJC Boston, LLC, No. 13 CV 6084, 2016 WL 2992124, at *3 . Notably, although Rule 26 still permits a wide range of discovery based upon relevance and proportionality, the "provision authorizing the court . . . to order discovery of any matter relevant to the subject matter involved in the action" has been eliminated. Rule 26 Advisory Committee Notes to 2015 Amendments; see Sibley, 2015 WL 9413101, at *2 (internal citation omitted). The rationale behind the elimination of this phrase is the finding that it "has been used by some, incorrectly, to define the scope of discovery." Rule 26 Advisory Committee Notes to 2015 Amendments. Thus, Rule 26(b)(1), as amended, although not fundamentally different in scope from the previous version "constitute[s] a reemphasis on the importance of proportionality in discovery but not a substantive change in the law." Vaigasi v. Solow Mgmt. Corp., No. 11 CIV 5088, 2016 WL 616386, at *13 (S.D.N.Y. Feb. 16, 2016); see Robertson v. People Magazine, No. 14 Civ. 6759, 2015 WL 9077111 at *2 (S.D.N.Y. Dec. 16, 2015) ().
Notwithstanding the foregoing principles, however, "[t]he party seeking discovery must make a prima facie showing that the discovery sought is more than merely a fishing expedition." Barbara v. MarineMax, Inc., No. 12 Civ. 368, 2013 WL 1952308, at *2 (citing Wells Fargo Bank, N.A. v. Konover, No. 05 Civ. 1924, 2009 WL 585430, at *5 (D. Conn. Mar. 4, 2009)); Evans v. Calise, No. 92 Civ. 8430, 1994 WL 185696, at *1 ); Denim Habit, LLC, 2016 WL 2992124, at *3. In general, "[a] district court has broad latitude to determine the scope of discovery and to manage the discovery process." EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012) (citing In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008)); Barbara, 2013 WL 1952308, at *3 (); Coggins v. Cnty. of Nassau, No. 07 Civ. 3624, 2014 WL 495646, at *2 (E.D.N.Y. Feb. 6, 2014) (...
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