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Kiley v. Metropolitan Property and Casualty Insurance Co.

United States District Court, D. Massachusetts

January 27, 2016

INGRID B. KILEY, Plaintiff,
v.
METROPOLITAN PROPERTY AND CASUALTY INSURANCE CO. Defendant.

ORDER

TIMOTHY HILLMAN, District Judge.

Background

Plaintiff, Ingrid Kiley ("Kiley" or "Plaintiff"), asserts claims against Defendant, Metropolitan Property and Casualty Insurance Co. ("Metropolitan") for breach of contract (Count I), breach of the covenants of good faith and fair dealing (Count II), and for unfair or deceptive practices under Mass.Gen.L ch.176D and Mass.Gen.L. ch. 93A (Count III) arising out of Metropolitan's denial of Plaintiff's insurance claim. During Metropolitan's investigation of Plaintiff's claim, it employed the services of ISE Engineering, Inc. ("ISE") to evaluate the condition of Plaintiff's home. Plaintiff seeks to depose Jeffrey Raiche ("Raiche"), the ISE employee who conducted the on-site evaluation of her home, and John Certuse ("Certuse"), the Director of Engineering for ISE who issued the report to Metropolitan regarding the property. This Order addresses Defendant, Metropolitan Property And Casualty Insurance Company's Motion For Protective Order Pursuant To Fed.R.Civ.P. 26(c)(Docket No. 13) seeking a protective order against notices of taking depositions served on Raiche and Certuse. For the following reasons, that motion is denied . This Order also addresses Defendant, Metropolitan Property and Casualty Insurance Company's Motion To Compel Reference Pursuant To Mass.Gen.L. ch. 175, §99, Clause Twelfth (Docket No. 17). For the following reasons, that motion is allowed .

Discussion

Metropolitan's Motion For Protective Order Relevant Facts

Kiley owns the home at which she resides in Brookfield, MA (the "dwelling"). At all relevant times, the dwelling was insured by a homeowner's insurance policy issued by Metropolitan. At some unknown point during the winter of 2013-2014, the pipes in the dwelling burst causing water damage to the dwelling; Kiley had been visiting at her daughter's home since December 24, 2013 and first learned of the damage when she returned on March 15, 2014. On or about April 2, 2014, Kiley notified Metropolitan of the loss. She advised Metropolitan that she had set the temperature in the dwelling at 65 or 66 degrees (Fahrenheit). She did not have anyone check on the dwelling while she was away. Kiley did not report the damages to Metropolitan right away, because she initially assumed that the claim would not be covered under her policy and therefore, had been attempting to extract the water herself. The dwelling was primarily heated by oil. Kiley had 201 gallons of oil delivered to the dwelling on December 2, 2013; she did not have automatic delivery, rather she received oil on a will call basis. One upstairs room was heated by electricity; Kiley had left an electric heater on in that room.

As part of the investigation of the insurance claim, Metropolitan retained the services of ISE to review the claim and complete an evaluation of the dwelling. Kiley was notified of this on April 14, 2014. On April 16, 2014, Mr. Raiche conducted the on-site evaluation of the dwelling. Raiche found that the forced hot water boiler connected to the system piping in the basement was not in service. The boiler had had been submerged in two inches of water and water had fallen onto the boiler from above, contacting the burner head and entering the combustion chamber. He further found that the flue passages were plugged, the jacket insulation was soot-stained, and the inside of the chimney thimble contained a thin layer of soot. Testing of the boiler showed that it had not run out of fuel. The heating system had last undergone routine maintenance in December of 2007. Based on the amount of oil left in tank at the time of his inspection (206 gallons), he determined that the heating system was not in operation after December 2, 2013. Raiche's visual evaluation, along with an examination of Kiley's utility bills and oil delivery records, provided the basis for the April 28, 2014 report signed off on by Certuse. On May 8, 2014, Metropolitan notified Kiley that the loss was not covered under the policy because their "investigation and engineer have concluded that reasonable care was not taken to maintain heat in the home resulting in the pipe freeze."

On March 3, 2015, Kiley served deposition notices on Raiche and Certuse. Both depositions were noticed for March 31, 2015 to be conducted at ISE's office in Attleboro, Massachusetts. Metropolitan intends to call Raiche and Certuse as expert witnesses. Kiley does not intend to compensate them for their time in responding to discovery.

Applicable Legal Standard

The Court may "issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense" for good cause. Fed.R.Civ.P. 26(c). The burden is on the moving party to demonstrate good cause. Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 789 (1st Cir. 1988). A district court is given broad discretion to decide "when a protective order is appropriate and what degree of protection is required." Poliquin v. Garden Way, Inc., 989 F.2d 527, 532 (1st Cir. 1993) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)).

Whether Kiley Should Be Required to Reimburse Raiche and Certuse

This Court's rules of procedure permit a party to "depose any person who has been identified as an expert whose opinions may be presented at trial." Fed.R.Civ.P. 26(b)(4)(A). For any such experts, the party seeking discovery must pay a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A), unless manifest injustice would result. Fed.R.Civ. P. 26(b)(4)(E). The impetus behind Rule 26(b)(4)(A)'s reimbursement requirement is "that it is unfair to let one party have for free what the other party has paid for.... that unfairness can be remedied, in an appropriate case, by requiring the party seeking discovery to share the cost." 8A CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE & PROCEDURE § 2034 (3d ed.).

Metropolitan has moved for a protective order in response to notices from Kiley for the taking of the depositions of Raiche and Certuse. Metropolitan states that it intends to designate both Raiche and Certuse as expert witnesses who are anticipated to testify at trial, and should be compensated a reasonable fee for their time spent in responding to discovery. See Fed.R.Civ.P. 26(b)(4)(E). In support of its argument, Metropolitan points out that the principal claims asserted by Kiley in her Amended Complaint do not challenge the opinions of Raiche and Certuse or assert that it erroneously relied on their factual conclusions. Metropolitan's position is that the deposition testimony of Raiche and Certuse are not required or vital to Kiley's trial preparation and, therefore, she should reimburse them for their deposition preparation and testimony. Kiley opposes the motion on the grounds that Raiche had not been identified as an expert witness at the time that she issued the deposition notice, and that requiring her to pay the reasonable fees of these deponents would cause manifest injustice.[1]

Rule 26 only applies to experts "who will testify under Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and other specialized matters... If the individual is not providing testimony under Rule 702, he is not an expert witness for the purpose of Rule 26." Gomez v. Rivera Rodriguez, 344 F.3d 103, 113 (1st Cir. 2003) (internal citations and quotations omitted); see also Fed.R.Civ.P. 26(a)(2) advisory committee notes (1993 Amendment)(Rule 26 "use[s] the term expert' to refer to those persons who will testify under Rule 702 of the Federal Rules of Evidence with respect to scientific, technical, and other specialized matters."). Moreover, "if the expert is an actor or viewer with regard to the events in issue, and therefore subject to discovery on this knowledge without reference to Rule 26(b)(4), it would not be appropriate to view deposition inquiry into those areas as time spent responding to discovery authorized by Rule 26(b)(4)." 8A CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE & PROCEDURE § 2034 (3d ed.); see also Gomez, 344 F.3d at 113 (as used in Rule 26(b)(4), term expert "does not encompass a percipient witness who happens to be an expert."); Turner v. Delta Air Lines, Inc., No. 06 CV 1010NG, 2008 WL 222559, at *1 (E.D.N.Y. Jan. 25, 2008)(The provision in Rule 26(b)(4)(C) for "reasonable compensation" for experts is not "automatically triggered" whenever witness who may also be an expert in his or her field is asked to testify, rather, it is the substance of witness's testimony that determines whether witness is entitled to an expert fee).[2]

Under Rule 702, a witness is an expert witness when they are qualified as an expert and they provide "scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue..." Fed.R.Evid. 702. As the party seeking a protective order, Metropolitan bears the burden of showing that Raiche and Certuse are expert witnesses under this rule. See Emerson Elec. Co. v. Suzhou Cleva Elec., 2014 WL 5519152, at *3 (E.D. Mo. Nov. 3, 2014). Metropolitan must show that the essence of the proffered testimony is consistent with Rule 702 to trigger the application of Rule 26's expert witness requirements. See Gomez, 344 F.3d at 113 (citing Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993)). At the time Kiley issued the notices of deposition, Raiche had not been designated or identified as an expert witness by Metropolitan. He has since been identified as an expert witness for Metropolitan, but at present, the record contains no information regarding his intended testimony. Certuse, on the other hand, had been identified as an expert witness in Defendant, Metropolitan Property and Casualty Insurance Company's ...


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