IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Constance J. Pollock, :

 Plaintiff, :

 v. : Case No. 2:11-cv-581

State Farm Mutual Automobile : JUDGE ALGENON L. MARBLEY

Insurance Company, Magistrate Judge Kemp 

Defendant. : 

OPINION AND ORDER

This insurance case is before the Court for a ruling on

defendant State Farm Mutual Automobile Insurance Company’s motion

for a protective order. The motion relates to a Rule 30(b)(6)

notice of deposition served by plaintiff Constance J. Pollock and

an associated document request. For the following reasons, the

motion for a protective order will be granted.

I.

The basic facts of this case are simply stated. Ms. Pollock

was involved in a rear-end collision in 2009. She suffered a

back injury. State Farm insured the driver of the car, and Ms.

Pollock qualified as an “additional insured” under the policy.

Ms. Pollock sought and obtained medical treatment following

the accident. She submitted over $47,000.00 in bills to State

Farm. It refused to pay them in full. The unpaid bills related

to “lap band” surgery which was designed to help Ms. Pollock lose

weight. State Farm refused to pay those bills because, in its

view, that surgery was not related to the accident. Ms. Pollock

takes the opposite position, and has sued not only for payment of

the bills, but for compensatory and punitive damages based on

State Farm’s alleged bad faith in denying the claim.

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The parties have agreed that both discovery related to the

bad faith claim, and the trial of that issue, should be deferred

until after a decision is made on the coverage issue. However,

they apparently do not agree on where to draw the line between

discovery relating to coverage and discovery relating to bad

faith. Ms. Pollock has served a Rule 30(b)(6) deposition notice

on State Farm which includes topics which, State Farm argues,

relate only to the bad faith claim. The same issue exists with

respect to a document request which accompanied the deposition

notice. When the parties could not work out their differences on

this matter, State Farm filed its motion for a protective order. 

Responsive and reply memoranda have also been filed, and the

motion is now ready to decide.

II.

According to the motion for a protective order, the only

topics at issue are topics (c), (e), and (f) contained in the

Rule 30(b)(6) deposition notice and items (d), (f), and (g) of

the document request. State Farm describes these six items as

relating to four different topics:

(1) State Farm’s “policies and procedures” with

respect to the handling or adjustment of other claims

for medical payments coverage; 

(2) “Goals, objectives, or targets” established by

State Farm with respect to medical payment coverage

claims from 2007 through 2012; 

(3) “Bonus or other incentive programs” for State

Farm employees connected to the attainment of “goals,

targets, or objectives” with respect to claims for

medical payments coverage; and

(4) Criteria used for evaluating the performance

of State Farm’s employees for the handling of other

medical payment coverage claims.

State Farm’s Motion for Protective Order, Doc. 32, at 7-8. State

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Farm asserts that none of these topics relate to the breach of

contract claim, which, reduced to its essence, involves a

determination of whether the bills submitted for the surgery

which Ms. Pollock underwent were, under the terms of the policy,

“reasonable medical expenses incurred, for bodily injury caused

by accident ....” That, State Farm says, is an objective inquiry

involving medical testimony about the relatedness of the lap band

surgery and Ms. Pollock’s back injury, and information about how

State Farm compensated its employees based on their claims

performance would shed no light on the coverage issue (but might

well be relevant to the bad faith claim).

In her opposing memorandum, Ms. Pollock does not disagree

that this information relates to her bad faith claim; she alleges

that State Farm had a program in place which rewarded employees

who were able to settle insurance claims at less than market

value, and therefore encouraged employees to deny even legitimate

claims in order to earn bonuses. However, she argues that this

information also relates to the credibility of State Farm’s

witnesses. In her words, “[t]he jury cannot properly weigh the

credibility of any State Farm witness without knowing what

corporate incentives, if any, may be influencing their

testimony.” Memorandum in Opposition, Doc. 34, at 5. She also

analogizes this case to an ERISA benefits case where, even though

bad faith claims may not be asserted, the Courts have routinely

allowed discovery on the issue of whether the decision-maker is

subject to bias in favor of the employer or the plan, and against

the claimant. Id. at 4-5, citing, inter alia, Myers v.

Prudential Ins. Co. of America, 581 F.Supp. 2d 904, 906-07 (E.D.

Tenn. 2008).

While this is a creative argument, the Court agrees with

State Farm that any motives which its claims employees might have

had to deny Ms. Pollock’s claim are not relevant to the coverage

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issue - something which Ms. Pollock appears to concede - and that

the issue of credibility she has raised is nothing more than the

question of motive phrased in different words. A case like this

one involves construction of the insurance contract - often done

by the Court without reference to extraneous evidence, and almost

never an issue where a witness’ credibility is a deciding or even

a relevant consideration - and expert testimony about the

relationship between a bodily injury and a medical procedure. As

to the latter issue, there are, of course, some cases where

expert testimony is not needed, such as “[w]hen it is a matter of

common knowledge that a certain act may produce injury,” see

LeForge v. Nationwide Mut. Fire Ins. Co., 82 Ohio App. 3d 692,

700-01 (Clinton Co. 1992), but that is not the situation here,

nor would any such testimony likely come from State Farm

employees. The Court cannot conceive of any way in which a

decision on the issue of the relationship between Ms. Pollock’s

injuries and her lap band surgery would turn on the credibility

of any testimony to be given by State Farm’s own employees,

unless those employees were being offered as experts (if they

have the requisite medical training) on the relatedness issue. 

If that were to occur, State Farm would, of course, be required

to make a disclosure under Fed.R.Civ.P. 26(a)(2)(B), at which

point discovery on credibility issues might become relevant - but

only as to those witnesses who would be offering such testimony,

and not as to witnesses who will simply be testifying pursuant to

a 30(b)(6) deposition notice.

The same holds true for testimony about what the policy

language means. Ordinarily, it is for the Court to construe

language in an insurance policy, and to do so based either on the

policy language or certain legal rules of contract construction. 

As one Ohio court has explained it, if 

[[t]he language of this policy is not ambiguous ... the

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case turns on the application of the language of the

policy to the facts... [and] no testimony [is] needed

to explain the plain meaning of the language used. 

Even if the policy language [is] ambiguous, it is the

court that must decide what it means, based on well

known rules construing the language against the drafter

of the policy. Faruque v. Provident Life & Acc. Ins.

Co. (1987), 31 Ohio St.3d 34, 31 OBR 83, 508 N.E.2d

949, syllabus. No help is needed from the insurer in

this regard.

West American Ins. Co. v. Sluder, 119 Ohio App. 3d 211, 215

(Hamilton Co. 1997). So it is very unlikely that the Court’s

decision about what the policy means would be influenced in any

way by testimony from State Farm employees; rather, the

likelihood is that they would not even be competent witnesses on

this issue. 

State Farm has cited several cases from Florida that are

almost squarely on point. See, e.g., Royal Bahamian Ass'n, Inc.

v. QBE Ins. Corp., 268 F.R.D. 692 (S.D. Fla. 2010). That case

did leave open the possibility that this type of information

might be relevant if it had impeachment value, but, of course,

impeachment evidence is relevant only to the extent that a

witness has testified to some fact which is material to the

Court’s decision. Again, it does not appear at this time that

the particular witnesses to whom this type of evidence applies,

namely the State Farm employees who processed this claim, will be

offering any evidence material either to the issue of what the

policy says and means about the relatedness of medical expenses

to an injury, or whether the required degree of relatedness

exists. If that should change, the Court can, of course, revisit

this issue, but as things stand now, the Court agrees with State

Farm that the topics in the Rule 30(b)(6) notice and the document

request which State Farm has identified in its motion as being at

issue are irrelevant to the breach of contract part of the case. 

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Since that is so, State Farm is entitled to a protective order at

this time. 

III.

For the reasons set forth above, the motion of defendant

State Farm Insurance Company for a protective order (#32) is

granted.

IV.

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp 

United States Magistrate Judge

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