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Allied World Assurance Company (U.S.), Inc v. Lincoln General Insurance Company

February 2, 2012

ALLIED WORLD ASSURANCE COMPANY (U.S.), INC.,
PLAINTIFF
v.
LINCOLN GENERAL INSURANCE COMPANY, DEFENDANT



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Presently before the court is Plaintiff, Allied World Assurance Company's ("Allied World") motion to enforce a subpoena against Lincoln General Insurance Company ("Lincoln"). (Doc. 2.) The motion has been briefed and is ripe for disposition. For the reasons below, the motion will be granted in part and denied in part.

I. Background*fn1

This matter involves a bad faith insurance action ("bad faith action") brought by Plaintiffs Vanessa Lymon, as Plenary Guardian of Kendra Lymon and Assignee of Bynum Transport Inc., ("Bynum") and Robert Bohn ("Bohn") against Allied World, Bohn's excess insurer, for allegedly acting in bad faith by failing to settle Lymon's personal injury claim against Bynum and Bohn ("underlying lawsuit"). The bad faith action is currently pending in the United States District Court for the Middle District of Florida, docketed at 8:10-cv-1927-T-23TBM. At issue here is a subpoena, dated October 7, 2011, that was issued in the Middle District of Pennsylvania by Allied World to Lincoln, a non-party in the bad faith action, requesting various documents relating to the underlying lawsuit.

Some background regarding the underlying lawsuit is necessary to understand the nature of the bad faith action. The lawsuit was commenced following a collision on August 21, 2007, between a car driven by Kendra Lymon and a truck and tank trailer operated by Robert Bohn and owned by Bynum Transport, Inc. (Pl.'s Br. in Supp., Doc. 3 at 3.) At the time of the collision, Bynum and Bohn were insured by a primary insurance policy issued by Lincoln, which had $1 million in liability limits, and an excess policy from Allied World, which provided an additional $1 million in liability limits. (Id. at 2.) Following the accident, Lymon filed a personal injury claim against Bynum and Bohn (the aforementioned "underlying lawsuit"). (Id.) It is undisputed that Lincoln, as the primary insurer, investigated the claim and defended Bynum and Bohn. (Id. at 3.) Allied World did not defend Bynum and Bohn in that action. Lincoln, through its adjuster, Greg Fetcho ("Fetcho"), retained an agency to investigate the facts and an attorney to represent its insureds. (Id.)

In May, 2008, Lincoln and Allied World offered their combined $2 million of coverage to Lymon. (Id.) Lymon rejected the offer, claiming that Lincoln's retained attorney "never properly disclosed the extent of Bynum and Bohn's insurance coverage." (Id.) Lincoln's attorney was subsequently discharged and replaced. (Id.)

On March, 20, 2009, a jury returned a $65 million verdict against Bynum and Bohn. (Id. at 2, 4.) Following the judgment, a series of mediations took place that involved Lymon, Bynum, Bohn, Lincoln, Allied World, as well as Lincoln's first attorney and his replacement. (Id. at 4.) As a result of the mediations, the judgment was satisfied as to Bynum and partially satisfied as to Bohn as well as Lincoln, which paid more than its $1 million policy limit. (Id.) Thereafter, Bohn and Vanessa Lymon, as Plenary Guardian of Kendra Lymon and Assignee of Bynum Transport Inc., commenced this bad faith action seeking to recover the balance of the judgment from Allied World. (Id.) Lymon and Bynum contend that Allied World breached its "fiduciary duty with respect to the investigation, evaluation, negotiation, settlement and defense of the Lymon claim" by, inter alia, failing to settle Lymon's claim within the policy limits. (Doc. 3, Ex. B, Cons. Compl. ¶¶ 23, 25). To defend against this claim, Allied World is seeking, by way of a subpoena duces tecum, documents from Lincoln related to Lincoln's investigation and defense of Bynum and Bohn in the underlying lawsuit. (Doc. 3, Ex. A.) Prior to the issuance of that subpoena, which is at issue here, other subpoenas were issued, to which Lincoln objected via letters to Allied World, stating several objections including technical deficiencies regarding service of the subpoena and also objecting to the nature of the document requests on grounds of privilege, confidentiality, and over breadth. (See, e.g., Doc. 3, Exs. H & I.) Lincoln did, however, produce approximately 420 pages of materials which contained copies of non-privileged communications. (Doc. 13 at 10.) Following numerous correspondence between counsel for Allied World and Lincoln, and the issuance of several refined subpoenas, Lincoln's objections remained, resulting in the present motion to enforce the subpoena.

II. Discussion

Allied World's subpoena contains a five-page attachment listing twenty-one document requests. The general types of documents the subpoena seeks include:

(1) Lincoln's entire claim file for the underlying case and the claim made by Kendra Lymon against Lincoln and Allied World's insureds, Bynum and Bohn, and documents one would expect to find within a claims file such as notes and settlement and reserve authority requests; (2) the underwriting file for the Lincoln Policy and documents one would expect to find in an underwriting file; (3) the personnel file -- except for confidential personal information -- for Lincoln's adjuster Greg Fetcho; (4) all communications -- whether maintained in the claims file or elsewhere -- between and among Greg Fetcho, other Lincoln employees, the insureds, Bynum and Bohn, defense counsel retained by Lincoln to represent the insureds; and any other parties that relate to the defense of Lincoln and Allied World's insureds in the Underlying Case; (5) all communications between and among Lincoln's bad faith counsel and third parties such as Lymon, Bynum, Bohn, and defense counsel, which were shared among adverse parties and, thus, are not attorney-client privileged or work product; (6) copies of insurance polices, including reinsurance, providing coverage for Lincoln for the bad faith claims made against it as a result of the underlying case and claims made under those polices; and (7) documents regarding any claims made against Lincoln as a result of the way Lincoln handled the underlying case. (See Pl.'s Reply Br., Doc. 14 at 3.)*fn2

Allied World categorizes the objections memorialized in letters from Lincoln's attorneys as (1) technical objections, (2) work product objections, (3) attorney-client privilege objections, (4) settlement or mediation privilege objections, and (5) an unwarranted intrusion objection. Lincoln's brief in opposition does not dispute this characterization of its objections. The only category of documents specifically identified by Lincoln as undiscoverable is the employment file of Greg Fetcho. The court will analyze each objection in turn.

A. Technical Objections

Allied World represents that Lincoln objected to the subpoena on the ground that no related action had been opened in the Middle District of Pennsylvania and that the attorney issuing the subpoena must be admitted to the district court from which the subpoena was issued. (Doc. 3 at 7.) These objections lack merit. Under Federal Rule of Civil Procedure 45(a)(3), an attorney may issue and sign a subpoena as an officer of "a court for a district where a deposition is to be taken or production is to be made, if the attorney is authorized to practice in the court where the action is pending." Fed. R. Civ. P. 45(a)(3). Here, Kathryn Christian, attorney for Allied World, signed the subpoena and is authorized to practice in the Middle District of Florida, where this bad faith insurance action is pending. (Id.; Doc. 3, Ex. A.)

Lincoln also argues that the subpoena was not properly served because the Proof of Service states that the subpoena was served on October 11, 2011, to "Chris Klimes as administrative assistant." (Doc. 13 at 13.) Lincoln argues that this service was improper because "personal service of the subpoena on 'an officer or authorized agent of Lincoln General' was necessary" to comply with Federal Rule of Civil Procedure 45(b)(4). (Id.) Lincoln appears to be inferring, without explicitly stating, that Chris Klimes is not an officer or authorized agent of Lincoln, or at least that Allied World has failed to make such a showing. That this objection is repeated in its Brief in Opposition is somewhat curious given that Lincoln stated earlier in its Brief, when defending its "technical objections," that "Lincoln General's objections ultimately forced Allied World to issue a proper subpoena in a proper jurisdiction . . . ." (Id. at 4.) It would appear that, although Lincoln's objections are renewed, they are also conceding that the subpoena has been issued properly. In any event, Lincoln's argument fails. Federal Rule of Civil Procedure 45(b) (dealing with service of subpoenas) does not require that service of a subpoena upon a corporation be done personally and to an authorized agent or officer. Furthermore, Federal Rule of Civil Procedure 4(h) (regarding service of a corporation) permits service to be made in "a manner prescribed by Rule 4(e)(1) for serving an individual." Fed. R. Civ. P. 4(h)(1)(A). Federal Rule of Civil Procedure 4(e)(1) permits an individual to be served "following state law for serving a summons in an action brought in courts of general jurisdiction . . . ." Turning then to Pennsylvania law, Pennsylvania Rule of Civil Procedure 424 provides:

Service of original process upon a corporation or similar entity shall be made by handing a copy to any of the following persons provided the person served is not a plaintiff in the action:

(1) an executive officer, partner or trustee of the corporation or similar entity, or

(2) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or

(3) an agent authorized by the corporation or similar entity in writing to receive service of process for it.

Pa. R. Civ. P. 424 (emphasis added). An affidavit from a process server attached to Allied World's reply indicates that the process server identified himself and stated that he had legal papers to serve on Lincoln. (Doc. 14-2.) In response, Chris Klimes appeared and agreed to accept service of the subpoena. (Id.) The court is ...


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