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Corsentino v. Hub International Insurance Services, Inc.

United States District Court, D. Colorado

March 7, 2018

KIMBERLY CORSENTINO, Plaintiff,
v.
HUB INTERNATIONAL INSURANCE SERVICES, INC. and THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT, Defendants. and JASON BROCKMAN and MENDY BROCKMAN, Plaintiff-Intervenors,

          ORDER

          Scott T. Varholak United States Magistrate Judge.

         This matter comes before the Court on Plaintiff Intervenors' Motion for a Protective Order to Prevent Defendant Travelers from Deposing Its Opponent's Counsel [#137] (the “Motion”). The Motion has been referred to this Court. [#139] This Court has carefully considered the Motion and related briefing, related oral argument held on November 27, 2017 [#167, 176], the entire case file and the applicable case law. For the following reasons, the Court GRANTS the Motion.

         I. BACKGROUND

         On July 5, 2013, Plaintiff Kimberly Corsentino turned her Jeep in front of Plaintiff Intervenors Jason and Mendy Brockman's Honda causing an accident injuring Ms. Brockman and rendering her a tetraplegic.[1] [#173 at ¶¶ 8-9] At the time of the accident, Ms. Corsentino was a named driver on an insurance policy (the “Policy”) issued by Defendant The Travelers Indemnity Company of Connecticut (“Travelers”) to Corsentino Dairy Farms, Inc. (the “Farm”), and the Jeep was listed as a scheduled vehicle. [Id. at ¶ 10]

         Ms. Corsentino alleges that the Policy, which has a bodily injury liability limit of $500, 000 per accident, imposed a duty upon Travelers to defend and indemnify her in any action brought by the Brockmans related to the accident. [Id. at ¶¶ 12-13] On or about July 8, 2013, the Farm and Ms. Corsentino submitted a claim to Travelers under the Policy. [Id. at ¶ 29] At that time, Travelers retained a law firm on behalf of the Farm and Ms. Corsentino to begin investigating the accident, and authorized the law firm to retain an accident reconstructionist. [Id. at ¶ 30] On July 12, 2013, Travelers informed the law firm that it was denying Ms. Corsentino's claim and instructed the law firm to no longer represent Ms. Corsentino; Travelers did not communicate to Ms. Corsentino that she was no longer represented. [Id. at ¶ 31] Travelers then sent a letter to Ms. Corsentino on July 18, 2013, stating that it was denying her claim, because “the Farm had no insurable interest in the 2008 Jeep Grand Cherokee at the time of the Accident, as the Jeep was not owned by the Farm and was being driven by its owner, Ms. Corsentino.” [Id. at ¶ 32] Nonetheless, on August 20, 2013, Travelers paid benefits to the Farm for the damage sustained by the Jeep in the accident. [Id. at ¶ 34]

         On August 8, 2014, the Brockmans told Travelers that they would release all claims against Ms. Corsentino if Travelers paid the bodily injury liability limit on the Policy. [Id. at ¶ 33; see also #137-4] Travelers responded on September 3, 2014, refusing to pay any liability injury coverage to the Brockmans. [#173, ¶ 35; see also #182-5] The Second Amended Complaint then alleges that “[a]s a direct result of Travelers' refusal to pay liability benefits owed to the Brockmans, the Brockmans filed suit [(the “Underlying Action”)] against Ms. Corsentino . . . on June 17, 2015.” [#173, ¶ 36] After Ms. Corsentino was served with a copy of the complaint in the Underlying Action, she asked Travelers to defend her, and Travelers refused. [Id. at ¶¶ 37-38] The Underlying Action concluded on December 5, 2016 with the entry of a $31, 761, 724.04 judgment against Ms. Corsentino. [Id. at ¶ 40] On December 28, 2016, Ms. Corsentino asked Travelers to indemnify her from this judgment, and Travelers refused on February 3, 2017. [Id. at ¶¶ 41-42]

         Ms. Corsentino originally filed this lawsuit in Denver District Court on July 1, 2016. [#3] On July 27, 2016, Hub (with Travelers' consent) removed the case to this Court. [#1 at 1, 4] Travelers subsequently filed a Motion to Compel Joinder of Additional Parties, asking the Court for an order compelling the joinder of the Brockmans. [#33] Before the Court resolved Travelers' Motion to Compel Joinder, the Brockmans filed a Motion to Intervene. [#73] The Court granted the Motion to Intervene, and the Brockmans were given leave to intervene. [#75]

         On March 15, 2017, Ms. Corsentino filed an Amended Complaint asserting six claims for relief: (1) declaratory judgment; (2) breach of contract; (3) bad faith breach of contract; (4) violation of Colorado Revised Statute § 10-3-1115 (statutory bad faith); (5) negligent procurement; and (6) negligent misrepresentation. [#80 at 12-17] On that same day, the Brockmans filed their Complaint in Intervention and Jury Demand, which “incorporate[d] all paragraphs, allegations and claims” set forth in Ms. Corsentino's Amended Complaint. [#83 at 19] On December 5, 2017, this Court granted Ms. Corsentino's Motion to Amend Scheduling Order [#149] and Motion to Amend Complaint to Add Prayer for Exemplary Damages [#148, 151], thereby authorizing Ms. Corsentino to file a Second Amended Complaint adding a claim for exemplary damages. [#172]

         On May 22, 2017, Ms. Corsentino served the parties with Supplemental Fed.R.Civ.P. 26(a)(1) Disclosures, which identified eleven individuals with knowledge of facts relevant to her claims. [#137-3] Among the individuals identified were Thomas Metier and Phillip Chupik, two of the Brockmans' attorneys in this lawsuit who also represented the Brockmans in their underlying lawsuit against Ms. Corsentino. [Id. at 5] On or about September 21, 2017, Travelers noticed the depositions of Mr. Metier and Mr. Chupik. [#137-1] On October 9, 2017, the Brockmans filed the instant Motion seeking a protective order to prevent Travelers from deposing Mr. Metier and Mr. Chupik. [#137] On October 30, 2017, Travelers filed its response in opposition to the Motion [#145], and the Brockmans then filed a reply in support of the Motion [#157]. Neither Defendant Hub International Insurance Services, Inc. (“Hub”) nor Ms. Corsentino initially took a position with regard to the Motion. On November 27, 2017, the Court conducted a hearing on the Motion and invited the parties to submit supplemental briefing on the Motion. [#167, 176] On December 21, 2017, Ms. Corsentino filed a supplemental brief, stating that she “continues to take no position, for or against, on whether the Brockmans' counsel should or may be deposed in this case.” [#179, ¶ 2] In addition, Ms. Corsentino's brief provides additional information regarding why she identified Mr. Metier and Mr. Chupik on her Rule 26(a)(1) Disclosures and why “Plaintiff continues to believe that the Brockmans' counsel could be witnesses in this case.” [Id. at ¶ 3] On December 22, 2017, Travelers filed its supplemental briefing in support of its response in opposition to the Motion. [#182] On January 11, 2018, the Brockmans filed a brief responding to Ms. Corsentino's and Travelers' supplemental briefing. [#188]

         II. LEGAL STANDARD

         Pursuant to Federal Rule of Civil Procedure 26(c)(1), “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The “good cause” standard of Rule 26(c) is “highly flexible, having been designed to accommodate all relevant interests as they arise.” Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008) (quotation omitted). The entry of a protective order “is left to the sound discretion of the district court.” Id. Generally, the party requesting a protective order “bears the burden to show that good cause exists for the issuance of a protective order.” O'Hare v. TRS Recovery Servs., Inc., No. 08-cv-01735-RPM-KLM, 2008 WL 5169519, at *2 (D. Colo. Dec. 9, 2008).

         However, where, as here, a party seeks to depose an opposing party's attorney in the litigation, courts have required the party seeking the deposition to make a specific showing of need to justify the deposition. In Shelton v. American Motors Corporation, the Eighth Circuit held that the deposition of an opposing party's trial counsel should be limited to situations “where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” 805 F.2d 1323, 1327 (8th Cir. 1986) (internal citation omitted). The Tenth Circuit has expressly approved and adopted the criteria set forth in Shelton. See Boughton v. Cotter Corp., 65 F.3d 823, 830 (10th Cir. 1995); Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1112 n.15 (10th Cir. 2001).

         Travelers argues that the Shelton test is inapplicable to the facts of this matter, because Travelers seeks to depose Mr. Metier and Mr. Chupik with regard to the prior, underlying litigation between the Brockmans and Ms. Corsentino and not with regard to their involvement in the present case. [#145 at 7-9] In support of this argument, Travelers cites to a subsequent decision of the Eighth Circuit in which it held that the Shelton test “was not intended to provide heightened protection to attorneys who represented a client in a completed case and then also happened to represent that same client in a pending case where the information known only by the attorneys regarding the prior concluded case was crucial.” Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 730 (8th Cir. 2002). The Eighth Circuit thus held that the party seeking to depose an opposing party's trial counsel in an indemnification case “need not satisfy Shelton to depose [the opposing party's] attorneys regarding information involving the concluded patent infringement case.” Id. at 730-731. Neither the Tenth Circuit nor any of the District Courts in this Circuit, however, have discussed let alone adopted the holding in Pamida.

         Travelers also cites to dicta from a decision of another court in this District stating that the Shelton test “only appl[ies] to depositions of trial counsel-or counsel directly representing the party in the pending litigation-and then only if the deposition would reveal litigation strategy in the pending case.” Luster v. Schafer, No. 08-CV-02399-PAB-KMT, 2009 WL 2219255, at *2 (D. Colo. July 23, 2009). Luster is readily distinguishable, however, because the attorney the plaintiff sought to depose was not the attorney representing the defendant in the pending case. Id. at *1. To the extent Luster may be read, as Travelers suggests, to hold that the Shelton test does not apply unless the requested deposition “would reveal litigation strategy in the pending case, ” the Court finds that holding inconsistent with the Tenth Circuit's holding in Boughton. In Boughton, the plaintiffs sought damages based upon “alleg[ed] exposures of their persons and property to hazardous emissions of a uranium mill owned by the defendant.” 65 F.3d at 825. Plaintiffs sought to depose one of the outside counsel representing the defendant in the litigation related to his prior role as a spokesperson for the defendant corporation and his involvement in preparing license applications and providing business advice related to the construction of the uranium mill in ...


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