Groat v. Equity American Ins. Co.

• Decision Date: 17 May 1994
• Docket Number: CA-CV,No. 1,1
• Citation: 180 Ariz. 342,884 P.2d 228
• Parties: Tami Lyn GROAT, a single woman, Plaintiff-Appellee, v. EQUITY AMERICAN INSURANCE CO., Garnishee-Appellant. 92-0063.
• Court: Arizona Court of Appeals

Page 228

884 P.2d 228

180 Ariz. 342

Tami Lyn GROAT, a single woman, Plaintiff-Appellee, v. EQUITY AMERICAN INSURANCE CO., Garnishee-Appellant.

No. 1 CA-CV 92-0063.

Court of Appeals of Arizona Division 1, Department E.

May 17, 1994.

Review Denied Nov. 29, 1994.

[180 Ariz. 344] Copple, Chamberlin & Boehm, P.C. by Steven D. Copple, Scott E. Boehm, Tryon, Heller & Rayes, P.C. by Douglas L. Rayes, Phoenix, for plaintiff-appellee.

Whissen, Tidmore & Guendel, P.C. by William K. Whissen, Phoenix, for garnishee-appellant.

OPINION

GERBER, Judge.

In this appeal, we consider whether the trial court properly struck appellant Equity American Insurance Co.'s ("Equity") answer to a writ of garnishment as a discovery sanction and entered a default judgment against Equity in the full amount of the underlying judgment. For the reasons which follow, we affirm the trial court's rulings in both respects.

FACTS AND PROCEDURAL HISTORY

On October 23, 1987, appellee Tami Lyn Groat was injured when a car driven by Shawn Ray Howard collided head-on with her car. Just before the accident, Howard, then a minor, had been drinking beer at Eve's Tease, an adult entertainment club. Although Eve's Tease did not sell liquor, customers were allowed to bring liquor onto the premises for personal consumption. Howard did so and was legally intoxicated when his vehicle struck Groat's car.

Eve's Tease was owned by S & F Entertainment ("S & F"), an Arizona corporation. Groat sued S & F and others to recover for her injuries. One of the alleged principals in S & F, Omar Aldabbagh, was insured by Equity, which is incorporated in the Turks and Caicos Islands. The Equity policy, which had a limit of $500,000, covered some of Aldabbagh's businesses. Equity elected to defend S & F under a reservation of rights.

Groat entered into a Damron agreement ¹ with S & F in which S & F admitted liability in exchange for Groat's agreement not to execute on the assets of S & F but to attempt instead to collect her judgment from Equity. The trial court eventually awarded her damages of $900,000.

After the judgment was entered, Groat served an application for writ of garnishment on Equity. For its answer, Equity denied that it was indebted to or possessed monies of S & F. The trial court set a hearing on Equity's answer within five days of Groat's request for a hearing as required by Ariz.Rev.Stat.Ann. ("A.R.S.") section 12-1580(B) (Supp.1993). Upon stipulation, the court gave the parties two months to undertake discovery.

Groat noticed a deposition under Rule 30(b)(6), Arizona Rules of Civil Procedure ("Rule"), of "one or more officers, directors or managing agents or other persons designated by Equity" who could testify to the following matters:

1. All applications for insurance for Omar Aldabbagh and/or for property and businesses located at the following addresses: 3522 Grand, 3737 Indian School, 4141 Indian School and 3712 Indian School in Maricopa County;

2. The existence or non-existence of liability insurance coverage for the claim of the plaintiff in this litigation;

3. All correspondence and all decisions regarding reservation of rights and denial of coverage relating to any party to this litigation and relating to Omar Aldabbagh.

Four days before the scheduled deposition, Equity's attorney advised Groat's attorney by letter that no representative of Equity would appear in Arizona for the noticed deposition but that the deposition could be conducted at Equity's offices in the Turks and Caicos Islands or by telephone. Groat then filed a motion to compel the appearance of Equity's representative at a deposition. The trial court denied the motion, leaving Groat to show her inability to effectively depose Equity's representative by telephone.

On November 20, 1990, Groat noticed a Rule 30(b)(6) deposition of Equity to be taken by telephone at 2 p.m. on December 14, 1990. The day before this deposition, Equity's attorney in Phoenix received a memorandum by facsimile from Equity stating that no representative of Equity would be available at the scheduled deposition time because 2 p.m. Arizona time was at the end of the business day in the Turks and Caicos Islands and no one from the company would be available at the scheduled time. On December 14, Equity's attorney advised Groat's attorney by hand-delivered letter that most of Equity's officers were taking extended vacations during the holiday season and thus would not be available for the deposition on December 14. He suggested that the deposition be rescheduled for January.

In January 1991, Groat moved to strike Equity's answer due to Equity's refusal to submit to the December 14 deposition. The trial court declined to strike the answer. Instead, it ordered Equity to appear by telephone for a deposition at 10 a.m. on March 1, 1991. The court further ordered that if Equity, without good cause, failed to participate in the Rule 30(b)(6) deposition as ordered, the court, upon request by Groat, would consider imposing sanctions on Equity, including striking Equity's answer and permitting Groat to take judgment against Equity by default.

On March 1, Equity produced for the deposition 23-year-old office worker Lyndon Gardiner who was not employed by Equity. In fact, Gardiner worked for Windsor Paramount Trust Corporate Service, Ltd. ("Windsor"), which was located in the Turks and Caicos Islands and provided a mailing address, performed administrative services, and accepted service of process for about seventy-five foreign and local companies, including Equity. He was not a director or officer of Equity; his only relationship to Equity was that he worked for Windsor, the registered agent for Equity.

Although Gardiner knew the names of the officers and directors of Equity, he refused to disclose them because, in his view, such disclosure was forbidden by the laws of the Turks and Caicos Islands. Gardiner acknowledged that a copy of the Equity policy issued to Aldabbagh was in the file Windsor kept for Equity. However, he had nothing to do with deciding whether the policy covered Groat's claim.

Gardiner did not make decisions for Equity on whether there was insurance coverage for claims submitted or whether claims should be paid or settled. He said those decisions were made by Equity directors, whom he could not name, and by Burney Watkins, a claims agent who worked for G-W Insurance, the claims manager for Equity. He believed that an Equity director made the decision on coverage for Groat's claim on Watkins' recommendation. Gardiner did not know who made the decision to defend S & F under a reservation of rights nor who at Equity was involved in the decision to deny coverage. Beyond these modest pieces of information, Gardiner could not provide relevant policy data.

Groat filed a motion to strike Equity's answer on the grounds that Equity violated the court's order by refusing to produce for the deposition an officer, director, or managing agent who could testify on the subjects listed in the Rule 30(b)(6) deposition notice. Groat noted that Equity had produced Gardiner, but it also noted that Gardiner was neither an officer, director, or employee of Equity, nor was he able to answer any of the relevant deposition questions.

After argument, the trial court granted the motion to strike Equity's answer and ordered that Groat could proceed to judgment against Equity by default. Pursuant to A.R.S. sections 12-1583 and -1585 (Supp.1993), Groat then filed a motion for entry of default judgment seeking the principal amount of $900,000 plus interest, costs, and attorneys' fees. Equity moved for reconsideration of the order striking its answer. In that motion, as an attempt to cure its past obstructions, Equity provided the names of its officers and directors and admitted that the decision to deny coverage was made by G-W Insurance.

The trial court denied Equity's motion for reconsideration and indicated that it would enter final judgment against Equity in the principal amount of $900,000. Following entry of judgment, Equity filed a motion for new trial and motion to alter or amend judgment and motion to amend findings and judgment, arguing that the court could not enter judgment in a garnishment proceeding without holding a garnishment hearing on the merits. Equity also asserted that the amount of the judgment was excessive because the policy limit was $500,000. The trial court denied the motions. Equity timely appealed.

DISCUSSION

We first consider whether the trial court abused its discretion in striking Equity's answer as a sanction for abuse of discovery. Equity argues that the trial court entered only one order compelling it to participate in the telephone deposition and that by producing Gardiner it in fact did appear and participate in the deposition as ordered. Equity contends that Groat did not argue that the court's order was violated but merely that Gardiner's answers did not measure up to Groat's subjective expectations. It further maintains that the sanction was unwarranted because its representative was prohibited by law from giving some of the answers Groat sought and because the unanswered questions were irrelevant. We do not share Equity's rosy interpretation of the facts.

Rule 37(b)(2) provides the sanctions imposable against a party who fails to comply with a discovery order:

If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

....

(C) An order striking out pleadings or parts thereof, ... or rendering a judgment by default against the disobedient party.

The trial court has broad discretion in imposing these sanctions. Poleo v. Grandview Equities, Ltd., 143 Ariz. 130, 133, 692 P.2d 309, 312 (App...