JASON C. POWELL, ESQ., As personal representative of the ESTATE OF MARK KRIEGER, Plaintiff,
AMGUARD INSURANCE COMPANY, Defendant.
Submitted: April 26, 2019
Defendant's Motion for Reconsideration of a
John S. Spadaro, Esquire, John Sheehan Spadaro, LLC, Smyrna,
Delaware, Attorney for Plaintiff.
Thaddeus J. Weaver, Esquire, Dilworth Paxson, LLP,
Wilmington, Delaware, Attorney for Defendant.
MEMORANDUM OPINION AND ORDER
Jeffrey J Clark, Judge.
AmGUARD Insurance Company ("AmGUARD") moves for
reconsideration of a commissioner's order that compelled
it to produce forty-one defense medical examination
(hereinafter "DME") reports involving unrelated
claimants. In this bad faith insurance litigation, the
commissioner's order compelling production of these
reports was not clearly erroneous, contrary to law, or an
abuse of discretion. Accordingly, AmGUARD's motion for
reconsideration is DENIED.
AND PROCEDURAL BACKGROUND
relevant facts for this discovery motion include those
alleged in the amended complaint and those facts of record
identified by the parties in their original motion, response,
and motion for reconsideration. As alleged, Mr.
Krieger suffered a May 20, 2017 work-related
accident. AmGUARD insured Mr. Krieger's employer and
provided workers' compensation coverage for his injury.
Krieger alleged that AmGUARD unjustifiably delayed paying him
benefits after his injury, thereby breaching its insurance
contract in bad faith. For purposes of this motion, the Court
accepts that Mr. Krieger promptly claimed benefits and that
AmGUARD delayed paying them for approximately four months
before it made its first payment on October 2, 2017.
Mr. Krieger awaited payment, AmGUARD sent him to Dr. Robert
Smith on August 29, 2017 for a DME. Dr. Smith then issued a
report opining that Mr. Krieger suffered a crush injury to
his foot, and that the injury was directly related to the
work incident. Dr. Smith's DME report also provided that
Mr. Krieger's lost wages and medical expenses were
reasonable, necessary, and related to the incident.
Furthermore, he offered the opinion that Mr. Krieger had been
fit to return to light duty work as of July 1, 2017. Finally,
Dr. Smith opined that Mr. Krieger could return to full duty
when confirmatory imaging demonstrated that his fracture and
bone bruise had healed. Thirty-three days after Dr.
Smith's examination and report, AmGUARD issued its first
check and continued to pay him until it learned of his death
November 2017, Mr. Krieger sued AmGUARD alleging two modes of
wrongful conduct. First, Mr. Krieger alleged that AmGUARD
failed to timely pay him wage replacement benefits as
required by 19 Del. C. § 2324. Second, he
alleged that it unjustifiably delayed paying his covered
medical expenses within the thirty days required by 19
Del. C. § 2322F. He alleged that AmGUARD acted
in bad faith as to both charges, and his amended complaint
sought punitive damages.
litigation to date, Mr. Krieger's estate has gathered and
produced to AmGUARD eighty-two DME reports authored by Dr.
Smith for other carriers involving other claimants. When
producing the reports to AmGUARD, the estate proferred that
Dr. Smith, in all but one of the reports, provided opinions
supporting the insurance carriers' positions to the
detriment of their insureds. The estate then requested
AmGUARD to produce all Dr. Smith reports in its
possession from the three years prior to Mr. Krieger's
claim. AmGUARD objected and the estate filed a motion to
conclusion of a lengthy oral argument, the commissioner
required AmGUARD to identify the number of reports Dr. Smith
had provided to AmGUARD over the three years before Mr.
Krieger's DME. AmGUARD then identified forty-one such
reports while maintaining its objection to producing them.
considering the written submissions and oral argument, the
commissioner issued a letter order (hereinafter "the
order") requiring AmGUARD to produce the forty-one Dr.
Smith reports. The commissioner also required AmGUARD to
redact all dates of birth, social security numbers, and other
personal identifying information from the reports before
producing them pursuant to a confidentiality agreement.
AmGUARD filed a timely motion for reconsideration of the
commissioner's order. The Court reviewed the transcript
of the oral argument, all written submissions, and held oral
argument on the matter on April 26, 2019.
OF THE PARTIES
AmGUARD argues that the commissioner applied the improper
legal standard. It relies upon the order's lack of
reference to Superior Court Civil Rule 26(b)(1)'s
standard that requires discovery to be relevant to the
subject matter involved and that it be "reasonably
calculated to lead to the discovery of admissible
evidence." In this regard, AmGUARD emphasizes the
commissioner's recitation in the order that she felt
"it unlikely that under the facts of this case that the
reports would be relevant at trial [but that there]
may possibly be something in the reports that
may be relevant to proving the Plaintiff's
AmGUARD argues that the amended complaint alleges only that
the company delayed paying benefits. AmGUARD asserts that
these delays, as alleged, were independent of Dr. Smith's
DME opinion. Accordingly, it alleges that the order
constituted an abuse of discretion because the DME reports
are not relevant to the subject matter in the pending action.
Because the estate alleges only unjustified delays in
payment, AmGUARD argues that DME reports addressing different
claimants are not relevant to this bad faith claim, and that
a request for them is not reasonably calculated to lead to
the discovery of admissible evidence.
Krieger's estate counters that the reports are relevant
to show Dr. Smith's bias. Furthermore, the estate argues
that AmGUARD's other allegedly bad conduct (hiring a DME
doctor who automatically recommends denying benefits) is
separately relevant to demonstrate AmGUARD's state of
mind regarding unfair dealing. The estate emphasizes that in
this bad faith claim, it must show an "I don't care
attitude." It argues that AmGUARD's choice to send
Mr. Krieger to Dr. Smith is relevant to its overall state of
mind, which the estate must prove at trial. Finally, the
estate argues that these state of mind issues are separately
relevant because a jury will be asked, when determining the
amount of punitive damages, to determine how much AmGUARD
"does not care."
either case-dispositive or non-case-dispositive matters, a
"party may serve and file written objections to the
Commissioner's order which set forth with particularity
the basis for the objections." In this case, AmGUARD's
motion challenges the commissioner's decision regarding a
non-case-dispositive matter. Pursuant to Superior Court Civil
Rule 132(a)(3)(iv) the Court may reconsider a
commissioner's decision regarding such a matter
"only where it has been shown on the record that the
Commissioner's order is based upon findings of fact that
are clearly erroneous, . . . is contrary to law, or is an
abuse of discretion." This deferential standard of
review does not permit a reviewing judge to substitute his or
her judgment for that of the commissioner, absent one of the
three referenced infirmities.
regard to the standard applicable to discovery disputes,
Delaware Superior Court Civil Rule 26(b)(1) (hereinafter the
"Rule") addresses general scope and limits. Absent
privilege, "[p]arties may obtain discovery regarding any
matter . . . which is relevant to the subject matter involved
in the pending action."Furthermore, the Rule provides
that "[i]t is not ground for objection that the
information sought will be inadmissible at the trial if the
information sought appears to be reasonably calculated to
lead to the discovery of admissible
THE COMMISSIONER DID NOT CITE THE GENERAL DISCOVERY STANDARD
IN HER ORDER, SHE CORRECTLY APPLIED IT IN HER
claim that the commissioner applied the incorrect legal
standard is an issue of law that must be reviewed de
novo. Here, the commissioner issued ...