Opinion
CIV 02-842 MV/KBM
August 7, 2003
ORDER ON PENDING DISCOVERY MOTIONS AND TO CORRECT RECORD RE: MISSING PLEADINGS
Plaintiffs are the beneficiary children of a deceased military retiree who did not convert a certain insurance policy to an available veteran's policy upon retirement. Therefore, after their father's death, Defendant denied benefits. The children are suing to recover the $200,000 benefits on the ground that their father's failure to convert the policy was due to his mental and physical disabilities. They claim that when they informed the insurer of his disabilities, it was obligated to honor their claim under breach of contract, estoppel and/or equity theories of recovery. See Doc. 1. Defendant is the subsidiary of the Prudential Life Insurance Company which administers federal veterans' insurance programs. See Doc. 4, ¶ 1; Doc. 38 at 4-5.
This matter is before the Court on Plaintiffs' and Defendant's motions to compel and their stipulated motion to extend discovery deadlines. See Docs. 18, 22, 34, 37. I grant in part Defendant's motion to compel, deny the other motions to compel, and require the parties to re-submit a stipulated motion to extend the discovery deadline that addresses new deadlines for experts.
I. Background
While employed by the New Mexico State National Guard, the decedent had a Servicemember's Group Life Insurance ("SGLI") policy. He retired on January 18, 1995. Plaintiffs assert that when he retired, the decedent "was in a state of mental and physical disability rendering him incapable of understanding his rights, making business decisions, or taking action to convert his existing SGLI life insurance policy to the Veterans' Group Life Insurance (VGLI) program." Doc. 1, ¶ 6.
Defendant takes the position that an entitlement to veterans' insurance benefits is governed exclusively by statute, 38 U.S.C. § 1965-1979, and that the Department of Veterans' Affairs publishes a "Servicemembers and Veterans' Group Life Insurance Handbook which describes the programs and their administration." Doc. 38 at 2; see also e.g., Doc. 19 at 2; Doc. 26 at 1. According to Defendant's construction of the statutes and "regulations" (presumably those found in the Handbook as opposed to Title 38 of the Code of Federal Regulations), see e.g., Doc. 19 at 2, a veteran normally has 120 days after retirement to "apply" for Veterans' Group Life Insurance ("VGLI") coverage.
It appears that the applicable statutory section speaks in terms of an "automatic" conversion, provided there is a "timely payment of the initial premium" and other applicable terms and conditions are met. See 28 U.S.C. § 1968(b)(1)(A).
If, however, a veteran is disabled on the date he retired, then he has up to one year to apply for VGLI coverage. Furthermore, an incompetent retiree's SGLI coverage will continue in effect past the 120-day period, but only if the retiree dies within a year after the 120-day deadline expires. For the purposes of this case then, Defendant maintains that Plaintiffs' father failed to timely convert the policy before May 18, 1995, and further missed the May 17, 1996 one-year mark for continued SGLI benefits by his passing on June 15, 1996.
In short, it appears Defendant's position is that coverage is conclusively determined by application of the relevant law to the uncontroverted dates when Plaintiffs' father retired and died. It has not, however, moved to dismiss on that basis.
II. Analysis A. Plaintiffs' Motion To Compel Is Denied
Plaintiffs want to discover how "a claim for life insurance benefits is handled and the method by which Defendant's legal and medical underwriting sections interpret the insurance policy involved." Doc. 35 at 1. Two of their requests for production are aimed at this inquiry. Request 7 asks for "a copy of any memorandum, regulations, internal communications or other documents concerning the process to handle a claim for life insurance benefits concerning a retiring . . . veteran who is alleged to have been disabled and/or incompetent at the time of their retirement." Over objections, Defendant produced the Handbook. Request 8 asks for "copies of any memorandum, regulation or other communication regarding the effect of a claim being made on a life insurance policy where the insured expired after the total time of 120 days and 1 year following retirement, and no application [to convert the existing policy] had been made prior to death." Over objections, Defendant responded by citing to the above-mentioned statutory sections. See Doc. 35, Exh. 1.
Plaintiffs believe there are "internal manuals and policy guidelines" responsive to their request, and move to compel those documents arguing that, although Defendant raised attorney "work product" as one of the objections, it did not provide a privilege log or state that it does not possess any documents. Despite Defendant's apparent boilerplate invocation of attorney/client and privilege, in its response Defendant asserts it is not raising those grounds as a basis for objection. See Doc. 38, at 4 n. 1. Defendant also asserts that the "documents and materials Plaintiffs seek . . . do not exist." Id. at 4. Finally, Defendant argues that Prudential's policies concerning how it administers nonveteran policies are irrelevant, because its administration of the federal veteran programs is based on the statute and Handbook. In two letters to Plaintiffs' counsel, counsel for Defendant warrants that the only information Prudential relied upon in denying the claim was the statute and Handbook. See Doc. 38, Exhs. A-B. Based on those representations, nothing exists to compel and Plaintiffs have the relevant documents. Accordingly, their motion is denied.
B. Defendant's Motion To Compel Is Granted In Part And Denied In Part
Defendant wants to discover details about the decedent's physical and mental health history, particularly around the crucial dates of the decedent's retirement, the 120-day mark, and one year following retirement. Defendant also wants to discover Plaintiffs' interpretation of the applicable statutes. See Doc. 19 at 3. Consequently, it issued a number of interrogatories and requests for production aimed at those topics. After a delay in receiving Plaintiffs' responses, on April 23, 2003, counsel for Defendant wrote counsel for Plaintiffs asking for supplemental information to the above interrogatories and requests. Counsel agreed to April 30, 2003, as the date for supplementation. By May 8, 2003, the supplementation had not been transmitted and Defendant filed its motion. See Doc. 19 at 3, 7 Exh. A; see also Undocketed Plaintiffs' Response Dated As Filed May 28, 2003 at 1; Undocketed Plaintiffs' Memorandum In Opposition Dated As Filed May 28, 2003 at 1-2.
Eleven interrogatories and five requests for production comprise Defendant's motion to compel. It further requests that Plaintiffs comply with FED. R. CIV. P. 33(b) and verify its answers. The motion is denied in part and granted in part as follows.
Verification Was Sent. In their response to the motion, counsel for Plaintiffs asserts that "[v]erification will be forwarded as soon as all answers are reviewed." Undocketed Plaintiffs' Memorandum In Opposition Dated As Filed May 28, 2003 at 6. Counsel for Defendant does not indicate that the verification was not received. Alternatively, in the event it was not sent, Plaintiffs shall provide the verification within 48 hours of receipt of this order.
Decedent's History — Supplementation In Response Sufficient.
For reasons that are not entirely apparent from the record, Plaintiffs may not have had much of a relationship with their father. For example, they initially asserted that they know little about his educational, work, and medical history, and evidently they learned some of that information from discovery provided by Defendant and from locating his Social Security Administration disability file as well as other sources. See Undocketed Plaintiffs' Memorandum In Opposition Dated As Filed May 28, 2003; see also Doc. 25 (also filed as Doc. 28).
Counsel for Plaintiffs only states that "their father lived in a state of severe depression in an (sic) small apartment prior to his separation from the New Mexico National Guard . . . and thereafter he was totally disabled and mentally incompetent at all time." Undocketed Plaintiffs' Memorandum In Opposition Dated As Filed May 28, 2003 at 2.
Counsel for Plaintiffs belatedly supplied some of the information Defendant sought in their response to the motion. In its reply, Defendant inexplicably fails to acknowledge the substance of that information. Thus, in addition to finding any argument about the sufficiency of the substance of the belated information waived, I also reviewed the substance of the responses. Based on that review, I find that the supplemental responses for Interrogatories 2, 3, 4, 8, 9, and 21 sufficient, given what Plaintiffs have learned to-date, the decedent's possible transientness, and the medical records they anticipate receiving.
Interrogatory 10 Is Insufficient. Plaintiffs' Complaint seeks the $200,000 in insurance benefits, prejudgment interest, costs and attorney fees. Interrogatory 10 asks for the type of damages Plaintiffs claim, the basis for them, and how they were calculated. Plaintiffs' initial answer seemed to add theories of recovery for an undetermined sum "to be determined by the jury," and their supplemental information contemplates perhaps adding even more theories of recovery after discovery by requesting leave to amend. These responses are wholly insufficient. As I have held before, regardless of what a jury may award, Plaintiffs must identify whether they are seeking compensatory damages beyond the proceeds of the insurance policy, and how they arrived at that figure. E.g., Saavedra v. Albuquerque Public Schools, CIV 99-878 MV/KBM-ACE (Doc. 76, at 5-6, and decisions cited therein).
A motion to amend is for the district judge to decide, though I note Plaintiffs stated in their Provisional discovery plan that they would amend their pleadings by January 24, 2003. See Doc. 7 at 2.
Contention Interrogatories Are Premature. Interrogatories 11, 12, 13, and 14 are essentially contention interrogatories and, while the answers provided are entirely sufficient for Defendant to identify the theory Plaintiffs are pursuing, Plaintiffs have not yet identified witnesses or documents in support of their contentions. When the case is nearing the close of discovery, such interrogatories are permissible and should be answered. E.g., Saavedra, supra, at 5-6 (and decisions cited therein). However, this case is not at the close of discovery. The parties have moved to extend that deadline again, this time to September 23, 2003. See Doc. 37. Accordingly, Defendant's request for this supplemental information is premature.
C. Defendant's Motion To Exclude Plaintiffs' Experts Or To Compel Expert Disclosure
Plaintiffs identified three experts. For Dr. Fredman, who will testify whether the decedent was mentally incompetent or totally disabled as of retirement, Plaintiffs provided his "preliminary" report based on the medical records available to him at that time, as well as his resume. For Dr. Kreiger, a disability evaluator for Social Security disability benefits purposes, Plaintiffs stated that he might be called to testify about the decedent's disability. They did not provide a report from Dr. Krieger because Plaintiffs had not received a copy of decedent's Social Security file. They also did not provide Dr. Krieger's resume. The third and unnamed expert Plaintiffs are looking for will presumably testify about veterans' benefits procedures. Of course, no name, resume, or report was submitted for the third expert. See Doc. 22, Exhs. A-B. Defendant seeks to strike all of Plaintiffs' experts for these failings.
Plaintiffs respond that they are in the process of submitting the necessary information for the doctor experts as they receive decedent's medical records. They respond that the veterans' benefits expert cannot be located until receipt of the decedent's veterans records. See Doc. 25 (also filed as Doc. 28).
Per one extension, Plaintiffs were required to identify their experts and provide their reports by April 14, 3002. See Doc. 15. Although the parties have stipulated to discovery extensions, and currently want to move it again, they have not mentioned an extension of the expert deadline. Plaintiffs now do so in their response, requesting more time to submit their experts' materials and offering to give Defendant additional time to obtain experts. See Doc. 24 (also filed as Doc. 27). Because the parties are agreed that discovery should be extended, and because Plaintiffs are in the process of attempting to cure the prior deficiencies, I agree that an extension of the expert deadlines is the proper course to take at this point. Accordingly, I will deny the motion.
Wherefore,
IT IS HEREBY ORDERED AS FOLLOWS:
1. Defendant's Motion To Compel Discovery (Doc. 18) is GRANTED IN PART AND DENIED IN PART in accordance with the foregoing;
2. Defendant's Motion To Exclude Experts Or, In The Alternative, To Compel Expert Disclosure (Doc. 22) is DENIED;
3. Plaintiffs' Motion To Compel (Doc. 34) is DENIED;
4. The parties' stipulated motion to extend deadlines (Doc. 37) is DENIED; the parties are to resubmit a stipulated motion for an extension that addresses new deadlines for experts, as well as the discovery deadline; and 5. Counsel for Plaintiffs shall confer with the Clerk to determine whether the wrong pleadings were scanned as docket entries 27 and 28, or whether Plaintiffs' Response and Memorandum in Opposition To Defendant's Motion To Compel was inadvertently not docketed, and to correct the record.