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Devese v. Transguard Ins. Co.

Supreme Court of Nebraska.

Sylvia DEVESE, Personal Representative of the Estate of Stephen O’Bryant, deceased, appellant,

v.

TRANSGUARD INSURANCE COMPANY OF AMERICA, INC., a foreign corporation, appellee.

 

No. S–10–250.

June 17, 2011.

 

Walter E. Zink II and Jarrod P. Crouse, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

 

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

 

McCORMACK, J.

NATURE OF CASE

Stephen O’Bryant was a commercial truckdriver. He was killed during the course of his employment as the result of a motor vehicle accident. The representative of his estate sought to recover under O’Bryant’s occupational accident policy with Transguard Insurance Company of America, Inc. (Transguard). Transguard denied the claim on the ground that O’Bryant did not have a valid commercial driver’s license (CDL) at the time of the accident, and the personal representative brought this action against Transguard for breach of contract and bad faith. The policy stated that no benefits would be paid for any “[i]njury, loss or claim caused or contributed to by or resulting from … any loss occurring while the Insured Person … is operating a Vehicle without a valid [CDL].” The trial court granted summary judgment in favor of Transguard, and the personal representative appeals. We find that Neb.Rev.Stat. § 44–358 (Reissue 2010) applies so as to require a showing of causation between the breach and the loss, despite the language of the policy.

 

BACKGROUND

On September 19, 2003, O’Bryant, a member of the National Association of Independent Truckers, LLC, entered into a group vehicle master policy with Transguard. The policy, which was effective until July 1, 2004, included occupational accident coverage.

 

An insured person is defined under the policy as an independent contractor who is a member of the National Association of Independent Truckers in good standing and who is a certificate holder of the coverage. Under the “General Exclusions and Limitations” section, the policy states: “This Coverage Part does not cover and no benefits will be paid for any Injury, loss or claim caused or contributed to by or resulting from: … any loss occurring while the Insured Person, covered Co–Driver, Partner or Helper is operating a Vehicle without a valid [CDL].” On April 14, 2004, O’Bryant’s CDL was suspended due to an unsatisfied judgment arising out of an automobile accident.

 

On June 30, 2004, O’Bryant was involved in a semi-truck collision and sustained injuries resulting in his death. It is undisputed that O’Bryant’s CDL was still suspended at the time of the accident. O’Bryant’s beneficiaries made a claim with Transguard for benefits under the occupational accident coverage of the policy. Transguard denied the claim, and Sylvia Devese, as the personal representative for O’Bryant’s estate, brought this action against Transguard for breach of contract and bad faith.

 

Relying on the CDL provision quoted above, Transguard moved for summary judgment. Devese responded that Transguard was required to show causation between the absence of a valid CDL and the accident and that Transguard had failed to present any such evidence. The trial court granted summary judgment in favor of Transguard.

 

Devese appealed. On December 20, 2010, the Nebraska Court of Appeals summarily affirmed the judgment in favor of Transguard, citing Omaha Sky Divers Parachute Club, Inc. v. Ranger Ins. Co. (Omaha Sky Divers ). We granted Devese’s petition for further review on the grounds that Omaha Sky Divers was recently overruled by D & S Realty v. Markel Ins. Co. (D & S Realty ).

 

ASSIGNMENTS OF ERROR

Devese asserts that the Court of Appeals erred in (1) affirming the order of the trial court granting Transguard’s motion for summary judgment and (2) holding that Omaha Sky Divers was controlling.

 

STANDARD OF REVIEW

Summary judgment is proper when the pleadings and evidence at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

 

In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all favorable inferences deducible from the evidence.

 

When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

 

ANALYSIS

In Omaha Sky Divers, we addressed an aircraft insurance policy clause which stated, under the exclusions section, that the policy did not apply to any occurrence while the aircraft was operated by someone other than a pilot as set forth under the declarations section. The declarations section, in turn, specified that only pilots having a valid medical certificate will operate the aircraft. We held that the exclusion was clear and unambiguous. Despite the fact that the accident was not contributed to by any medical issues of the pilot, the insurance company was not required under the contract to show causation between the breach and the accident.

 

We further held that the exclusion did not constitute a warranty or a condition within the meaning of § 44–358. Section 44–358 states in part:

 

The breach of a warranty or condition in any contract or policy of insurance shall not avoid the policy nor avail the insurer to avoid liability, unless such breach shall exist at the time of the loss and contribute to the loss, anything in the policy or contract of insurance to the contrary notwithstanding.

 

Because § 44–358 did not apply to impose a causation requirement as a matter of law, the plain language of the policy controlled and we affirmed judgment in favor of the insurer.

 

At the hearing on its motion for summary judgment, Transguard argued that the language of the policy in this case was similar to the one discussed in Omaha Sky Divers. We agree. Both policies clearly make coverage dependent upon the existence of valid, specified licenses. We do not read the policies as requiring causation between those licenses and the loss.

 

But in D & S Realty, we overruled Omaha Sky Divers to the extent that we had concluded § 44–358 did not apply so as to require, as a matter of law, a showing of causation between the absence of the required license and the accident. D & S Realty involved a property insurance contract which stated that the carrier would not pay for loss caused by water damage if the building was vacant for more than 60 consecutive days prior to the loss. Looking at the provision’s purpose and function, we found that the relevant clause was a “condition,” as contemplated by § 44–358, and not an “exclusion.” Therefore, despite the plain language of the insurance contract, the insurer was required by § 44–358 to demonstrate a causal connection between the condition and the loss in order to avoid liability.

 

[4–6] We explained in D & S Realty that a condition subsequent is distinct from an exclusion. An exclusion is a limitation of liability, or a carving out of certain types of loss, to which the insurance coverage never applied. A preloss condition subsequent, in contrast, is a provision that allows insurers to suspend or avoid coverage for a loss that occurs while a failure of the condition exists after the risk has attached. We held that “increased hazard” clauses, such as the vacancy clause of the property insurance policy in issue in that case, were conditions subsequent and not exclusions. We said, “[R]egardless of an insurer’s labeling, a clause that requires an insured to avoid an increased hazard is a condition subsequent for coverage.” 0

 

We said that Omaha Sky Divers presented a similar classification problem: “The certification provision excluded coverage unless the pilot possessed the necessary medical certification, which was proof of the pilot’s medical fitness. The proof was intended to protect the insurer from the increased hazard of a pilot with health problems flying the plane.” 1 We overruled Omaha Sky Divers to the extent that it could be read to hold that increased hazard conditions are exclusions.2

 

As explained, the policy provision in Omaha Sky Divers avoided coverage for an occurrence while the plane was operated by a pilot without a medical certification. And the risk of loss had clearly attached. Thus, as a postattachment, preloss condition (subsequent) to the insurer’s obligation to pay benefits, the insured was required to maintain proof of a pilot’s medical fitness.

 

Maintaining proof of an insured’s qualification to perform a covered activity is the type of condition subsequent that § 44–358 was intended to address. The policy in Omaha Sky Divers did not provide that coverage would be voided for loss caused by the plane’s being operated by a medically unfit pilot. Clearly, the insurer could limit its coverage to loss occurring when the plane was operated by a qualified and medically fit pilot. That was the insured risk. But by requiring the insured to maintain proof of a pilot’s medical fitness regardless of any causal connectedness to the loss, the insurer avoided liability for a failure of condition that “in no way contributed to the accident,” 3 which was caused by a brake failure.

 

As we explained in D & S Realty, § 44–358 was intended to limit an insurer’s ability to avoid liability for a failure of preloss conditions subsequent that are “so broad that an insured’s violation of them is not causally relevant to the loss.” 4 Thus, we erred in Omaha Sky Divers by holding that the contribute-to-the-loss standard under § 44–358 did not apply to a preloss condition subsequent that required the insured to maintain proof of a pilot’s medical fitness to fly a plane.

 

Similarly, the issue here involves the distinction between an insured’s qualification to perform an activity and proof of the insured’s qualification. “License” has more than one meaning. It can be authorization to do what would otherwise be illegal.5 But a license is also proof that the holder is qualified to perform an activity.6 It is the latter sense that is relevant here. The policy does not purport to avoid coverage if the insured violated a motor vehicle statute.

 

We agree that an insurer can require an insured to have a valid CDL as a condition for coverage, because the license functions as proof that the insured is qualified to operate commercial vehicles. But if licensure is a requisite to being a qualified insured, the insurer would have presumably required this proof as part of the application process. Further, if an insured had falsely represented his or her qualifications in the application, then the insurer would have had reason to seek a revocation.

 

The availability of a revocation defense shows that the license provision was not intended to relieve Transguard of liability because an insured was never qualified to operate a commercial vehicle. Instead, the unlicensed driver provision operated to avoid liability for a loss, after the risk attached, if an insured was operating a commercial vehicle while he or she had failed to maintain a valid CDL. An insurance provision that conditions benefits based solely on whether the insured has failed to comply with a licensing or certification requirement seeks to broadly control a potential cause of loss—an unqualified insured.7

 

We conclude in this case that Transguard sought to avoid the risk of loss of an unqualified driver. As applied to the insured, the license requirement functions as a condition for coverage that the insured maintain proof of his or her continuing qualification. Because the provision imposes conditions for coverage on the insured’s conduct after the risk has attached, it is a preloss condition subsequent. As we explained in D & S Realty, there is no meaningful difference between a policy that excludes coverage unless specified conditions are met and one that provides coverage if specified conditions are met.8

 

But the lack of the license, in itself, did not show that O’Bryant was unqualified to operate a commercial vehicle. Transguard’s failure of a condition defense illustrates that the condition was broader than necessary to protect Transguard from assuming liability for the risk that O’Bryant was unqualified to operate commercial vehicles.9 A significant difference exists between a suspension of a license for failure to pay a judgment and a revocation or refusal of a license for reasons that show the licensee is unfit to drive a commercial vehicle. By requiring O’Bryant to maintain his CDL as a condition for coverage without any requirement that the loss occurred because the insured was unqualified to operate a commercial vehicle, Transguard could avoid liability for technical reasons. That is, it could avoid liability if O’Bryant’s license lapsed or was suspended for reasons that were unrelated to his qualifications.

 

Because of the condition’s excessive breadth and its failure to require any causal connectedness to the loss, it is the type of condition to which § 44–358 was intended to apply. Thus, Transguard could not avoid liability unless it showed that O’Bryant’s breach of the condition contributed to the loss.

 

We also disagree with Transguard that it has demonstrated a causal link between the breach and the loss because it was undisputed that O’Bryant was driving when he was not supposed to. The mere act of driving was not a breach of the condition. The breach was failing to maintain a valid CDL. Under § 44–358, Transguard was required to demonstrate a causal connection between the breach and the loss.

 

Transguard did not present any evidence as to the cause of the accident or O’Bryant’s abilities as a commercial driver. Therefore, viewing the evidence in the light most favorable to Devese, it was inappropriate to issue summary judgment in favor of Transguard. We reverse the decision of the Court of Appeals summarily affirming the trial court’s order of summary judgment and remand the cause to the Court of Appeals with directions to remand the cause to the trial court for further proceedings consistent with this opinion.

 

CONCLUSION

For the foregoing reasons, we reverse the decision of the Court of Appeals and remand the cause with directions.

 

Reversed and remanded with directions.

 

WRIGHT, J., not participating.

 

Omaha Sky Divers Parachute Club, Inc. v. Ranger Ins. Co., 189 Neb. 610, 204 N.W.2d 162 (1973).

 

D & S Realty v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d 1 (2010).

 

Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011).

 

Id.

 

State v. Peterson, 280 Neb. 641, 788 N.W.2d 560 (2010).

 

Omaha Sky Divers, supra note 1.

 

D & S Realty, supra note 2.

 

See id.

 

See id.

 

0. Id. at 581, 789 N.W.2d at 13.

 

1. Id. at 580, 789 N.W.2d at 13.

 

2. D & S Realty, supra note 2.

 

3. Omaha Sky Divers, supra note 1, 189 Neb. at 612, 204 N.W.2d at 163.

 

4. D & S Realty, supra note 2, 280 Neb. at 580, 789 N.W.2d at 13.

 

5. See Syracuse Rur. Fire Dist. v. Pletan, 254 Neb. 393, 577 N.W.2d 527 (1998).

 

6. See, Mulholland v. DEC Int’l, 432 Mich. 395, 443 N.W.2d 340 (1989); Osborn v. Hertz Corp., 205 Cal.App.3d 703, 252 Cal.Rptr. 613 (1988); Asdourian v. Araj, 38 Cal.3d 276, 696 P.2d 95, 211 Cal.Rptr. 703 (1985).

 

7. See Robert Works, Insurance Policy Conditions and the Nebraska Contribute to the Loss Statute: A Primer and A Partial Critique, 61 Neb. L.Rev. 209 (1982).

 

8. See, D & S Realty, supra note 2; Works, supra note 17.

 

9. See Works, supra note 17.

 

B&S Equipment Co., Inc. v. Truckla Services, Inc.

United States District Court,

E.D. Louisiana.

B & S EQUIPMENT CO., INC.

v.

TRUCKLA SERVICES, INC., et al.

 

Civil Action Nos. 09–3862, 10–0832, 10–1168, 10–4592.

June 20, 2011.

 

Robert Seth Reich, Michael T. Wawrzycki, Reich, Album & Plunkett, LLC, Metairie, LA, for Plaintiff.

 

Kent B. Ryan, Andrew M. Stakelum, Stephen R. Remsberg, Lemle & Kelleher, LLP, New Orleans, LA, Brad M. Boudreaux, Keith L. Richardson, Daniel R. Atkinson, Jr., Perry, Atkinson, Balhoff, Mengis & Burns, LLC, Baton Rouge, LA, Anthony John Staines, Ashley E. Boyd, Corey Patrick Parenton, Craig Wren Brewer, Staines & Eppling, Metairie, LA, for Defendants.

 

ORDER

KAREN WELLS ROBY, United States Magistrate Judge.

Before the Court is a Motion to Compel (R. Doc. 228) filed by the Defendant, Travelers Casualty and Surety Company of America (“Travelers”) seeking an Order compelling the Plaintiff, B & S Equipment Company, Inc. to respond to its discovery requests. B & S filed a response. (R. Doc. 232.) On May 17, 2011, Travelers filed a reply in support of its motion. (R. Doc. 245.) B & S filed a sur-reply. (R. Doc. 264.) This motion was set to be heard with oral argument on Wednesday, May 18, 2011. However, the parties moved for a continuance which was granted by the undersigned. Thereafter, the motion was heard with oral argument on Wednesday, May 25, 2011 .

 

I. Background

The instant action diversity action concerns various contract and insurance coverage disputes arising out of damaged equipment and barges used in a federal floor control project. In March 2009, Truckla Services, Inc. (“Truckla”) was awarded a government contract to build a revetment along the banks of the Upper Mississippi River in Cairo, Illinois. Specifically, the United States Army Corps of Engineers contracted with Truckla to transfer rocks from barges onto the bank of the river in an effort to prevent erosion. Thereafter, Truckla entered into two contracts with B & S to rent equipment and barges. The first contract was an oral bareboat barge charter for the use of two spud barges, the Dove 4 and KS 417. The second contract was a written equipment lease for the use of two B & S excavators, a Caterpillar 375L and a Caterpillar 385CL.

 

The Dove 4 was owned by White Dove Marine, LLC, and the KS 417 was owned by McDonough Marine Service. B & S arranged the oral bareboat barge charter through a vessel broker, T.L.C. Marine Services, Inc.

 

Under the terms of the agreements between B & S and Truckla, Truckla was to pay for any damages to the excavators, return the excavators in good condition, and perform ordinary maintenance during the course of the lease. The lease was to continue on a month-to-month basis until Truckla gave B & S 30 days written notice or until B & S resumed possession of the equipment.

 

In order to fulfill its responsibility to transport the vessels and equipment from New Orleans to St. Louis, Truckla contracted with T & M Boat Rentals, LLC to bring the excavators up the Mississippi on the barges. T & M in turn made arrangements with Adams Towing Corporation for the Master Cad to move the Dove 4 and KS 417 to and from New Orleans. Truckla maintained two policies of insurance, including a commercial inland marine policy issued by Montgomery Insurance company and a commercial general liability policy from Canal Indemnity.

 

After one month, B & S and Truckla began to disagree as to the condition of the equipment and the barges. The barges and the equipment were subsequently returned to B & S. Truckla maintains that the Caterpillar 375 excavator was defective and unsound and that one of the barges required constant pumping and repair to stay afloat. B & S contends that their barges were seaworthy and fit for Truckla’s use and that the excavators were in good condition and working properly. B & S contends that Truckla negligently performed its work, failed to maintain the barges, and breached its contractual obligation to B & S.

 

On June 15, 2009, B & S sued Truckla contending that Truckla breached its obligations under the lease by failing to provide 30 days written notice of its intent to terminate the lease. It further complains that Truckla was negligent which resulted in the loss of equipment. In an amended complaint, B & S added Montgomery Insurance as a defendant, asserting that Montgomery issued a policy to Truckla that covered the damaged equipment. B & S filed a second a third amended complaint adding T & M Boat Rentals and Adams Towing asserting that as owner and operator or charterer of the towing barge, the M/V Master Cade, negligently transported the barges to and from the project causing damage. In a fourth amended complaint, B & S sued Canal Indemnity, as Truckla’s liability insurer. Various cross claims and counterclaims resulted.

 

B & S subsequently initiated another lawsuit against Travelers Casualty and Surety Company of America on April 22, 2010, pursuant to the Miller Act, 40 U.S.C. § 3131. B & S asserts that Travelers and Truckla executed a payment bond in which they bound themselves to secure prompt payment of all persons supplying labor and material to the Corps’ project such that Travelers, as Truckla’s surety, is responsible to pay B & S all monies due under the contract and for damage to the equipment and barges. The case was transferred and consolidated with the master case.

 

As to the instant motion, on February 1, 2011, Travelers propounded its discovery requests on B & S. B & S did not provide their responses until May 10, 2011, after the instant motion was filed in the Court. Travelers contends that B & S’s responses are deficient, and that any objections to the requests have been waived pursuant to Rule 37 of the Federal Rules of Civil Procedure. B & S opposes the motion.

 

II. Standard of Review

Rule 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1). The Rule specifies that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). The discovery rules are accorded a broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 176 (1979). Nevertheless, discovery does have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). Furthermore, “it is well established that the scope of discovery is within the sound discretion of the trial court.” Coleman v. American Red Cross, 23 F.3d 1091, 1096 (6th Cir.1994).

 

Under Rule 26(b)(2)(c), discovery may be limited if: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the information sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. Fed .R.Civ.P. 26(b)(2)(c). In assessing whether the burden of the discovery and outweighs the benefit, a court must account for: (1) the needs of the case; (2) the amount in controversy; (3) the parties’ resources; (4) the importance of the issues at stake in the litigation; and (5) the importance of the proposed discovery in resolving the issues. Id.

 

III. Analysis

Initially, Travelers sought to compel responses from B & S. However, after the instant motion was filed, B & S provided responses to the propounded discovery requests. Travelers thereafter filed a memorandum in support of its motion to compel contending that B & S’s discovery responses were deficient and that their objections asserted were waived pursuant to the Federal Rules of Civil Procedure. Specifically, Travelers contested Interrogatories 5, 11, and 13 and Request for Production 4, and 7. At the hearing, Travelers represented that B & S provided supplemental responses the night before the hearing. Travelers further represented that although it maintains that some of the responses are still deficient, it is only concerned with Interrogatory 13.

 

Interrogatory 13 requested that B & S

 

state[ ] whether you have rented the excavator since the project in issue. If so, provide the following: (a) the number of times the excavators have been rented; (b) the dates the excavators were rented; (c)the amount for which the excavators were rented; and (d) the identify of the individual or companies that rented the excavators.

 

(R. Doc. 228–2, p. 6.) In response, B & S stated, “B & S objects to Interrogatory No. 13 insofar and to the extent that it seeks information not related to the subject matter of this lawsuit and is not reasonably calculated to lead to the discovery of admissible evidence.” (R. Doc. 245–2, pp. 11–12.)

 

Travelers initially contends that B & S’s objection has been waived due to its failure to respond to the discovery requests within thirty (30) under Rule 33(b)(4) of the Federal Rules of Civil Procedure. Travelers contends that B & S has not demonstrated good cause for their delay and therefore their objections are waived as a matter of law.

 

Alternatively, Travelers contends that the objection should be overruled. Travelers asserts that the interrogatory is relevant to B & S’s claim for loss of profits. Travelers contends that if the excavators were rented from May 22, 2009, through August 29, 2009 , this information is relevant to determine whether Travelers are seeking double recovery.

 

This time frame represents the date in which the excavators were returned, May 22, 2009, through the end of the project, August 29, 2009.

 

In response, B & S acknowledged at the hearing that Rule 33 provides a waiver if interrogatories are not responded to within thirty (30) days. However, it contends that courts have found that if a party can demonstrate good cause for its failure to timely respond, the Court need not find a waiver.

 

B & S contends that it has good cause to excuse its failure to timely respond because on February 1, 2011, it received the discovery requests from Travelers. However, some of the requests required information which was not in B & S’s possession and was instead in possession of White Dove. On February 2, 2011, it propounded discovery on White Dove which included questions relating to the damages of the barges. B & S contends that this information was only in the possession of White Dove, and therefore B & S was waiting on White Dove’s responses to its discovery requests before it planned to respond to Travelers so that it could respond to all of the questions posed by Travelers. Responses were not forthcoming from White Dove until April 19, 2011.

 

B & S acknowledges that on April 18, 2011, Travelers contacted B & S and indicated that it was going to file a motion to compel if responses to discovery were not received. B & S agreed to provide discovery responses by April 27, 2011. However, counsel for B & S represented at the hearing that it “just didn’t happen.” Counsel for B & S contended at the hearing that Travelers filed a Motion for Summary Judgment in May which required counsel to focus his attention on the reply rather than the discovery requests. Further, counsel for B & S was involved in an unrelated trial during the same time frame. Therefore, he was unable to respond until May 10, 2011, and therefore had good cause for his failure. Counsel for B & S further represented at the hearing that he “had no reason to believe that if [discovery] wasn’t answered on day 30 that some party [was] going to come in and demand that all of [B & S’s] objections, including privilege [were] waived.”

 

Federal Rule of Civil Procedure 33 provides in relevant part “[t]he responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the Court.” Fed.R.Civ.P. 33(b)(2). “Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed.R.Civ.P. 33(b)(4); see also In re United States, 864 f.2d 1153, 1156 (5th Cir.1989)(“[A]s a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived.”).

 

The Court first notes that the discovery requests were served on February 1, 2011. Therefore, B & S’s responses were due no later than March 3, 2011. B & S did not respond to the discovery requests until May 10, 2011, two (2) months and one (1) week after the deadline. Therefore, B & S’s objections were waived pursuant to Rule 33(b)(4) unless good cause is shown.

 

The Court is not persuaded by B & S’s assertion of good cause. First, B & S asserted that it delayed its response while it waited for Dove’s responses to B & S’s discovery requests. However, B & S conceded that he was aware that he could have responded to Traveler’s discovery responses indicating that they were not in possession of information responsive to the requests and reserve the right to supplement upon receipt of responses from Dove. However, counsel for B & S failed to do so, simply because he assumed that Traveler’s would not use the force of Rule 33(b)(4) against him. B & S also conceded that he could have requested an extension with the undersigned, but failed to do so.

 

Secondly, B & S contends that it had good cause for its delay because Traveler’s filed a Motion for Summary Judgment in May to which Traveler’s had to respond. B & S contends that it had to choose which task to focus on, and clearly chose to work on the Motion for Summary Judgment. Further, counsel for B & S was also involved in another trial during this time frame. However, B & S concedes that during this time frame he did not seek an extension with the undersigned. Therefore, this contention is not persuasive.

 

Finally, the Court is not persuaded that B & S had “no reason to believe” that Traveler’s would invoke the Rule 33(b)(4) waiver. According to B & S’s testimony, Traveler’s contacted B & S on April 18, 2011, and informed B & S that it intended to file a motion to compel if discovery responses were not received. B & S promised to provide responses by April 27, 2011, and failed to do so. Therefore, B & S was on notice of Traveler’s intent to enforce the Federal Rules of Civil Procedure.

 

Although the Court finds that B & S waived its objections, the Court will only enforce this waiver insofar as B & S waived its relevancy objection to Interrogatory 13. However, the Court finds that the interrogatory is over broad because it is not limited to any period of time. The Court finds that it would be unduly burdensome to require B & S to respond to the interrogatory which does not limit the time frame of the request in any fashion. Therefore, the Court orders B & S to supplement its response to Interrogatory 13, but will limit its response from May 22, 2009 through August 29, 2009.

 

IV. Conclusion

Accordingly,

 

IT IS ORDERED that Traveler’s Casualty and Surety Company of America’s Motion to Compel (R. Doc. 228) is hereby GRANTED IN PART and DENIED IN PART:

 

• IT IS GRANTED insofar as the Court finds that B & S Equipment Company, Inc. has waived its objections to Traveler’s discovery requests by its failure to respond within thirty (30) days pursuant to Fed.R.Civ.P. 33(b)(4). B & S therefore is ORDERED to supplement its discovery requests within ten (10) days from the signing of this Order.

 

• IT IS DENIED insofar as the Court declines to require B & S to respond to Interrogatory 13 as it is not limited in temporal scope. B & S is required to respond only as applicable for the time frame of May 22, 2009 through August 29, 2009.

 

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