Gebremedhin v. Am. Family Mut. Ins. Co.
| Decision Date | 15 July 2015 |
| Docket Number | Civil Action No. 1:13-cv-02813-CMA-NYW |
| Parties | WELDESAMUEL GEBREMEDHIN, an individual, TERHAS DESTA, an individual, ABRHAM GIDAY, a minor, by and through his guardians and natural parents, WELDESAMUEL GEBREMEDHIN and TERHAS DESTA, Plaintiffs, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER ON PENDING DISCOVERY MOTIONS
This matter comes before the court on Counsel for Dismissed Parties Veronica and Glen Turner Tiffaney Norton's Motion to Quash and for Protective Order, filed on June 15, 2015 [#216] (also "Norton Motion to Quash"); Dismissed Parties Granite State Insurance Company ("Granite State") and National Union Fire Insurance Company of Pittsburgh's ("National Union") Motion to Quash and for Protective Order as to American Family's Notices of Rule 30(b)(6) Depositions, filed on June 17, 2015 [#218] ("Rule 30(b)(6) Depositions Motion to Quash"); and Dismissed Parties Granite State and National Union's Amended Motion to Quash and for Protective Order Re Gorski Deposition, filed June 19, 2015 [#224] ("Gorski Motion to Quash") (collectively, the "Motions"). In addition, Defendant American Family Mutual Insurance Company("American Family") filed an Unopposed Motion to Reset Pre-Trial Conference and to Extend Time to Take Depositions ("Motion to Reset Pre-Trial Conference and to Extend Time"). [#235]. These Motions were referred to this Magistrate Judge pursuant to the Order Referring Case dated October 21, 2013 [#6], the Reassignment dated February 9, 2015 [#158], and the Memoranda dated June 17, 2015 [#219], June 22, 2015 [#225]; and July 14, 2015 [#236]. The court has carefully considered the Motions and related briefing, the arguments of the Parties' counsel at the July 1, 2015 oral argument on the Motions, the court file, and the applicable case law. For the reasons discussed below and as set forth herein, the court GRANTS IN PART and DENIES IN PART the Norton Motion to Quash, GRANTS IN PART and DENIES IN PART Granite State and National Union's Rule 30(b)(6) Motion to Quash, DENIES Granite State and National Union's Gorski Motion to Quash, and GRANTS American's Family's Motion to Reset Pre-Trial Conference and Extend Time.
Plaintiffs Weldesamuel Gebremedhin ("Mr. Gebremedhin"), Terhas Desta ("Ms. Desta"), and Abrham Giday ("Abrham") (collectively "Plaintiffs") originally filed their Complaint in District Court for the City and County of Denver in the State of Colorado on October 1, 2013. [#1-2]. On October 15, 2013, American Family removed the action to federal court in this district under 28 U.S.C. § 1332(a) and 28 U.S.C. § 1441(a) on the basis of diversity jurisdiction. [#1]. Plaintiffs' underlying Complaint in this action was re-docketed as [#3]; the following is a recitation of certain relevant allegations from same.
Mr. Gebremedhin and Ms. Desta are the birth parents of Abrham, who remains a minor child. [#3 at ¶ 2]. On April 24, 2009, Abrham was placed in the care of temporary foster parents Veronica Turner and Glen Turner (individually, "Ms. Turner" and "Mr. Turner," and collectively, the "Turners") due to a misdiagnosed skill fracture. [Id. at ¶ 8]. Within less than a week of that date in the early morning hours of April 30, 2009, Abrham became seriously ill while within the care of the Turners. [Id.]. Ms. Turner took Abrham to an urgent care facility, where Ms. Turner was instructed by a physician to immediately take the child to the nearest emergency room. [Id.] Ms. Turner failed to do so. [Id.] When Abrham was returned to the custody of his parents Mr. Gebremedhin and Ms. Desta at some point during the evening on April 30, 2009, "he began twitching and shaking and was transported to the hospital via ambulance where he was treated for a severe traumatic brain injury and other injuries." [Id.]
Plaintiffs subsequently filed a lawsuit sounding in negligence in a Colorado state court against the Turners based on the resulting injuries to Abrham (the "Underlying Litigation"). [Id. ¶ 9]. Plaintiffs also sought recovery as against "Special Kids Special Families . . . which had allegedly trained, employed, and certified the Turners as foster parents." [Id.]
In response, the Turners tendered the "Underlying Lawsuit to American Family and sought a defense and indemnification for the claims asserted against them by the Giday Plaintiffs" based on a homeowners insurance policy. [Id. at ¶ 11]. The Complaint alleges that American Family declined to do so, and "refused" to attend a July 10, 2012 mediation between the parties to the Underlying Lawsuit; shortly thereafter, Plaintiffs resolved their claims as against Special Kids Special Families. [Id. at ¶¶ 11-14].
On October 12, 2012, American Family allegedly expressly advised the Turners that American Family did not intend to participate in the Turners' defense in the Underlying Lawsuit, or to provide indemnification for any liability flowing from it. [Id.] On November 29, 2012, American Family "was apprised that the Giday Plaintiffs were willing to resolve their claims against the Turners in exchange for payment of the Policy's $500,000 liability limits within 21 days." [Id. at ¶ 15]. American Family again "maintained its denial of a defense and indemnity." [Id. at ¶ 16].
Default was entered as against the Turners, who "assigned to the Giday Plaintiffs their rights, title, and interest in their claims against American Family for collection of the judgment entered against them in the Underlying Lawsuit, including their rights to prosecute those claims in a civil action and keep the proceeds of those claims." [Id. at ¶ 19]. Pursuant to the assignment, on May 23, 2013, an arbitral hearing as to damages was held. [Id. at ¶ 20]. Shortly thereafter, an arbitration award of $14,533,606.86 was entered as against the Turners, and judgment in the amount of $12,583,543.34 was entered in the Underlying Lawsuit (reflecting a set off as to moneys previously received by Plaintiffs in their settlement with Special Kids Special Families). [Id. at ¶ 21] .
The settlement agreement between Plaintiffs and the Turners included a covenant not to execute the judgment awarded in the underlying litigation against the Turners. [#148-5 at 2 ¶ G]. As noted in Plaintiffs' Complaint, the potential enforceability of such agreements under Colorado substantive law was again addressed by theColorado Supreme Court in Nunn v. Mid-Century Ins. Co., 244 P.3d 116 (Colo. 2010). [Id. ¶ 18].1
On October 7, 2013, American Family filed its answer. [#7]. American Family's Eleventh Affirmative defense asserted as follows: "The default judgment in the Underlying Lawsuit is void and/or unenforceable as to this Defendant as it was a product of collusion and/or a civil conspiracy." [Id. at 5].
On December 11, 2013, filed a Third Party Complaint against the Turners, Special Kids Special Families, Granite State Insurance Company ("Granite State"), and National Union Fire Insurance Company of Pittsburgh ("National Union"). [#16]. In reaction to motions to dismiss filed by the Third Party Defendants, American Family filed a First Amended Third Party Complaint. [#70]. The core of the Third Party Complaint was premised on assertions that American Family owed no duty of defense or indemnification to the Turners under the American Family policy at issue, and that it was in fact Granite State and/or National Union that as "primary insurers" owed (and breached) a duty of defense as to the Turners. [Id.]. On the basis of these and other allegations, American Family brought claims as against the Turners, Special Kids Special Families, Granite State, and National Union Fire (collectively, the "Third-PartyDefendants"), asserting claims for declaratory relief, subrogation, contribution, and breach of the covenant of good faith and fair dealing. [Id.].
The Third Party Defendants moved to dismiss these claims. [#71, #83, #95]. On March 31, 2015, the court entered an ordered dismissing the First Amended Third Party Complaint in its entirety, and also mooting then pending motions to compel further production of documents based on party-directed discovery propounded by American Family upon the Turners, Granite State, and National Union Fire. [#177].
Three fully briefed discovery motions that were argued before the court on July 1, 2015 are now before the court for resolution. Tiffaney Norton, the attorney hired by Granite State to represent the Turners with respect to resolution of the Underlying Litigation, has filed a Motion to Quash Subpoena and Motion for Protective Order as to a subpoena served upon her by American Family. [#216]. Ms. Norton principally argues that her deposition should not be taken because the proposed lines of inquiry are likely to intrude upon information protected by attorney-client privilege, the attorney work-product doctrine, or some other applicable privilege or protection from disclosure. [Id.] In response, American Family argues that Ms. Norton's deposition should proceed because she may be able to offer non-privileged testimony going to a number of different issues relevant to the subject matter of this litigation. [#227]. American Family takes the position that no heightened showing of need should be required of a party who seeks to take an adverse party's counsel's deposition, asserting that as "long as Ms. Norton likely has knowledge of discoverable facts not protected by privilege, she may be deposed." [Id. at 13].
In addition, Granite State and National Union have filed a Motion to Quash and Motion and for Protective Order as to American Family's Notices of Rule 30(b)(6) Depositions to each of their organizations. [#218]. Granite State and National Union argue that some or all of the topics are relevant only to the claims raised by American Family's previously dismissed Third P...
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