United States Court of Appeals

For the First Circuit

No. 11-1897

HEIDI M. BAKER,

Plaintiff, Appellant,

v.

ST. PAUL TRAVELERS INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Selya and Stahl, Circuit Judges.

Merrill J. Friedemann, with whom Anthony J. Gianfrancesco,

William F. Warren, and Baluch, Gianfrancesco & Mathieu were on

brief, for appellant.

Paul V. Sullivan, with whom Sullivan, Whitehead & DeLuca LLP

was on brief, for appellee.

February 28, 2012
STAHL, Circuit Judge. In 2010, we remanded this state

law insurance action for appropriate discovery on the narrow

question of whether plaintiff-appellant Heidi M. Baker's employer

"explicitly purchased" underinsured motorist (UIM) coverage from

defendant-appellee St. Paul Travelers Insurance Company (St. Paul)

for the purpose of providing such coverage to employees like Baker

who are injured in the course of their employment. After that

discovery occurred, the district court denied Baker's motion to

compel further discovery and for sanctions against St. Paul, and

the court granted summary judgment in favor of St. Paul. Baker

appeals both rulings. We affirm.

I. Facts & Background

We recounted the factual and procedural history of this

case in some detail in Baker v. St. Paul Travelers Insurance Co.

(Baker I), 595 F.3d 391 (1st Cir. 2010), and we thus summarize only

the relevant background here. 

Baker is a Rhode Island resident and a former employee of

Safety Source Northeast (Safety), a Massachusetts corporation. On

December 17, 2002, Baker was driving one of Safety's vehicles as

part of her job duties and was seriously injured in a car accident

caused by the other driver. The accident occurred in Boston,

Massachusetts. Baker filed a third-party claim against the

tortfeasor, whose insurance company paid the full policy limit of

$20,000.00, which was insufficient to cover Baker's damages. She

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also filed for and received workers' compensation (WC) benefits

through the Rhode Island WC system, and she made a UIM claim

against her personal automobile insurance company, which she

settled for the policy limit of $25,000.00. Finally, Baker sought

to recover under the UIM provision of Safety's automobile insurance

policy, which was provided by St. Paul.

St. Paul denied Baker's claim, citing Massachusetts law

for the proposition that an employee cannot recover for

work-related injuries under both WC and her employer's UIM

coverage. Baker challenged that denial in Rhode Island state

court, and St. Paul removed the case to federal district court. 

Baker argued that Rhode Island law should apply to the

interpretation of the policy, but that even under Massachusetts

law, the bar on recovery under both WC and the employer's UIM

coverage would not apply, because the UIM coverage was a

bargained-for provision. 

In Baker I, we determined that Massachusetts law does

indeed apply in this case. See id. at 392-93. In Massachusetts,

an employee generally cannot recover under both WC and her

employer's UIM policy, see Berger v. H.P. Hood, Inc., 624 N.E.2d

947 (Mass. 1993); Nat'l Union Fire Ins. Co. v. Figaratto, 667

N.E.2d 877 (Mass. 1996), except where the employer has "explicitly

purchased" the UIM coverage "for the purpose of providing [such]

coverage (or any other coverage) to employees injured in the course

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of their employment," Nat'l Union, 667 N.E.2d at 881. We thus

found that Baker's appeal turned on whether Safety had "explicitly

purchased" its UIM coverage within the meaning of the National

Union carve-out, and we remanded the case for appropriate discovery

to answer that discrete question. Baker I, 595 F.3d at 395. 

On remand, after discovery proceeded, Baker filed a

motion to compel further discovery and to impose sanctions against

St. Paul as a result of a dispute that arose during the deposition

of St. Paul's Rule 30(b)(6) witness. See Fed. R. Civ. P. 30(b)(6). 

The parties also cross-moved for summary judgment. The district

court denied Baker's discovery motion and granted summary judgment

to St. Paul. This timely appeal followed.

II. Discussion

A. The discovery motion

We review discovery orders for abuse of discretion, Ji v.

Bose Corp., 626 F.3d 116, 121 (1st Cir. 2010), including the denial

of a motion for discovery sanctions, Meléndez-García v. Sánchez,

629 F.3d 25, 33 (1st Cir. 2010). 

In response to Baker's Rule 30(b)(6) subpoena, St. Paul

designated Deborah Restaine, a Product Management Director. Toward

the very end of Restaine's nearly three-hour deposition, St. Paul

instructed Restaine not to answer several of Baker's questions,

which St. Paul believed were outside the scope of the discovery

that we had ordered on remand. Baker concluded the deposition and,

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eighteen days later, moved to compel further discovery and for

sanctions, arguing that Restaine was not sufficiently knowledgeable

to have served as a Rule 30(b)(6) witness and that St. Paul had

violated Rule 30(c)(2) by instructing Restaine not to answer. The

magistrate judge denied Baker's non-dispositive motion, and the

district court affirmed. See Fed. R. Civ. P. 72(a).

Though Baker's initial motion requested both further

discovery and sanctions against St. Paul, she has focused her

appeal on the district court's denial of her motion for sanctions. 

In other words, she has made no real argument that we should order

St. Paul to make Restaine available for further questioning or

designate another Rule 30(b)(6) witness. Baker has therefore

waived any review of the denial of her motion to compel. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived."). However, if

Baker had properly put the issue before us, we would affirm the

lower court's refusal to order further discovery. Baker has not

demonstrated that she was unable to obtain information during the

deposition that fell within the scope of the discovery we mandated

in Baker I. We thus fail to see how either St. Paul's 1

The only claim Baker has made in this regard is that, but 1

for the instructions not to answer, she would have questioned

Restaine regarding the existence of a second Safety insurance

policy, BA 01320676, which included an endorsement in which Safety

certified, in exchange for a reduced premium, that the vehicles

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instructions not to answer or Restaine's alleged lack of knowledge

"resulted in substantial prejudice" to Baker, nor has Baker come

close to convincing us that the lower court's order on the motion

to compel "was plainly wrong." Ji, 626 F.3d at 122 (citations and

internal quotation marks omitted). 

Turning to the motion for sanctions, we begin with St.

Paul's act of instructing Restaine not to answer a series of

questions at the end of her deposition. Rule 30(c)(2) states that

"[a] person may instruct a deponent not to answer only when

necessary to preserve a privilege, to enforce a limitation ordered

by the court, or to present a motion under Rule 30(d)(3)." Fed. R.

Civ. P. 30(c)(2). Baker argues that St. Paul's instructions not to

answer violated Rule 30(c)(2) and that St. Paul is thus

sanctionable under Rule 30(d)(2), which allows a district court to

"impose an appropriate sanction -- including the reasonable

expenses and attorney's fees incurred by any party -- on a person

who impedes, delays, or frustrates the fair examination of the

deponent." Fed. R. Civ. P. 30(d)(2).

covered by that policy would only carry employees. However, BA

01320676 is not the policy that covered the vehicle Baker was

driving when she was injured, and its endorsement is thus

inapplicable here. The question for remand was whether Safety

explicitly purchased the UIM coverage under policy MA 05700143 to

provide that coverage to its employees. The inability to question

Restaine, or another Rule 30(b)(6) witness, about policy BA

01320676 therefore did not substantially prejudice Baker. Ji, 626

F.3d at 122.

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Though the magistrate judge found that it was

procedurally improper for St. Paul to instruct Restaine not to

answer, he reviewed the ninety-eight-page transcript of Restaine's

deposition and determined that all but one of Baker's objected-to,

unanswered questions (which began on page eighty-six) were indeed

outside the narrow scope of the discovery that we prescribed in

Baker I. The only question that fell within the scope of discovery

related to the premium that Safety had paid for the optional UIM

coverage included in the policy at issue. The magistrate judge

found, however, that Baker already knew the answer to that question

and therefore was not prejudiced when St. Paul instructed Restaine

not to answer it.

We need not address whether it was proper under Rule 30

for St. Paul to instruct Restaine not to answer Baker's questions

"to enforce a limitation ordered by the court." Fed. R. Civ. P.

30(c)(2). Even assuming, as the magistrate judge concluded, that

St. Paul should not have issued the instructions, Baker has not 2

satisfied the abuse of discretion standard. See Meléndez-García,

629 F.3d at 33. Because "[t]rial judges have considerable

discretion in the selection and imposition of sanctions," Barreto

v. Citibank, N.A., 907 F.2d 15, 16 (1st Cir. 1990), a party

Indeed, St. Paul's instruction to Restaine not to answer 2

Baker's question regarding the premium that Safety paid for the UIM

coverage was clearly improper under Rule 30(c)(2), since, as the

magistrate judge found, that question fell within the scope of the

discovery we ordered.

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appealing an order with regard to sanctions "bears a formidable

burden in attempting to convince the court of appeals that the

lower court erred," Koken v. Black & Veatch Constr., Inc., 426 F.3d

39, 53 (1st Cir. 2005) (citation and internal quotation marks

omitted). Baker has not even attempted to argue that any of her

unanswered questions fell within the scope of discovery, nor has

she demonstrated that St. Paul "impede[d], delay[ed], or

frustrate[d] the fair examination of the deponent." Fed. R. Civ.

P. 30(d)(2). She therefore has not met her "formidable burden" of

convincing us that the district court abused its discretion. 

Koken, 426 F.3d at 53.

Baker's second argument is that Restaine was not

sufficiently knowledgeable or prepared for the deposition, so the

district court should have treated her testimony as a nonappearance and issued sanctions under Rule 37. See Fed. R. Civ. P.

37(d)(1)(A)(i). A Rule 30(b)(6) designee must be able to testify

on behalf of an organization "about information known or reasonably

available to the organization." Fed. R. Civ. P. 30(b)(6). Rule

37(d)(1)(A)(i), in turn, allows a court to issue sanctions if the

Rule 30(b)(6) witness "fails, after being served with proper

notice, to appear for that person's deposition." Fed. R. Civ. P.

37(d)(1)(A)(i). Baker cites a Fifth Circuit case for the

proposition that, when an organization's Rule 30(b)(6) designee is

not knowledgeable about the relevant facts, "the appearance is, for

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all practical purposes, no appearance at all," and the organization

is susceptible to sanctions under Rule 37. Resolution Trust Corp.

v. S. Union Co., 985 F.2d 196, 197 (5th Cir. 1993); see also, e.g.,

Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275,

299-305 (3d Cir. 2000).

What Baker overlooks is that we held in R.W.

International Corp. v. Welch Foods, Inc., 937 F.2d 11 (1st Cir.

1991), that sanctions for non-appearance are only available when a

deponent "'literally fails to show up for a deposition session.'" 

Id. at 15 n.2 (quoting Salahuddin v. Harris, 782 F.2d 1127, 1131

(2d Cir. 1986)). R.W. International did not distinguish between

the deposition of a natural person and a Rule 30(b)(6) deposition,

which the Fifth Circuit found "presents a potential for abuse which

is not extant where the party noticing the deposition specifies the

deponent." Resolution Trust, 985 F.2d at 197. Because a

corporation controls whom to designate for a Rule 30(b)(6)

deposition, the Fifth Circuit concluded, the corporation should be

subject to sanctions if it designates a witness who is not

knowledgeable about the relevant facts. Id.

We need not decide today whether we agree with the Fifth

Circuit, because Baker has failed to even mention R.W.

International in her brief, much less convince us why it is

distinguishable. See Zannino, 895 F.2d at 17 ("It is not enough

merely to mention a possible argument in the most skeletal way,

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leaving the court to do counsel's work, create the ossature for the

argument, and put flesh on its bones."). In any event, on these

facts, we would not carve out an exception to the R.W.

International rule for Rule 30(b)(6) depositions. In Resolution

Trust, both Rule 30(b)(6) designees literally "possessed no

knowledge relevant to the subject matters identified in the Rule

30(b)(6) notice." Resolution Trust, 985 F.2d at 196. Similarly, 3

when the Third Circuit affirmed an award of sanctions for

constructive non-appearance of a Rule 30(b)(6) witness in Black

Horse Lane, it was based on a record demonstrating that the Rule

30(b)(6) designee had done "nothing except show his face," "refused

to answer questions in an intelligent way," "refused to prepare,"

"and just literally thumbed his nose at the defendants and,

frankly, at the Court." 228 F.3d at 300.

That was clearly not the case here. Restaine had worked

extensively in the insurance industry and specifically in

underwriting for much of her career. She testified that she had

reviewed the documents at issue in this case, and she answered all

of Baker's questions, except when she was instructed not to do so

at the very end of her deposition. Tellingly, Baker has pointed us

to no evidence that she ever objected to Restaine's qualifications

During one of the depositions at issue in Resolution Trust, 3

counsel for the defendant "recited each item of inquiry designated

in the notice and asked if [the Rule 30(b)(6) designee] had any

knowledge thereof. In every instance the answer was 'no.'" 985

F.2d at 197. 

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during the deposition itself. The fact that Restaine had to review

certain documents before answering Baker's questions about those

documents, which Baker makes much of on appeal, does not convince

us that Restaine was an unfit Rule 30(b)(6) witness.

B. The motion for summary judgment

We review de novo the district court's decision to grant

St. Paul's summary judgment motion. Hartford Fire Ins. Co. v. CNA 4

Ins. Co., 633 F.3d 50, 53 (1st Cir. 2011). We will uphold the

grant of summary judgment "if the record, evaluated in the light

most favorable to the nonmoving party, shows that there is no

genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law." Id. at 54 (citation and

internal quotation marks omitted). "A dispute is 'genuine' if the

evidence about the fact is such that a reasonable jury could

resolve the point in favor of the non-moving party. A fact is

'material' if it has the potential of determining the outcome of

the litigation." Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77

(1st Cir. 2009) (citation omitted). 

The only question for remand was whether Safety

"explicitly purchased" the UIM coverage under policy MA 05700143

"for the purpose of providing [such] coverage (or any other

coverage) to employees injured in the course of their employment." 

Because we find that the district court properly granted 4

summary judgment to St. Paul, we need not address the denial of

Baker's cross-motion for summary judgment.

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Nat'l Union, 667 N.E.2d at 881. In National Union, the

Massachusetts Supreme Judicial Court did not explain what it meant

by "explicitly purchased," see id., but in Baker I, we found that

the crucial inquiry was "whether Safety . . . bargained for the UIM

coverage contained in its policy with the intention of protecting

its workers from damage caused by uninsured [or underinsured]

motorists," 595 F.3d at 395. Thus, to demonstrate her eligibility

for UIM benefits under the policy, Baker would have to show that,

in purchasing or bargaining for the UIM coverage, Safety

specifically intended to provide that coverage to its employees. 

Nat'l Union, 667 N.E.2d at 881; Baker I, 595 F.3d at 395. 

Otherwise, the general rule preventing an employee in Massachusetts

from recovering under both WC and her employer's UIM provision

would apply. Nat'l Union, 667 N.E.2d at 880.

Having now had the opportunity to conduct appropriate

discovery on remand, Baker has pointed to no evidence in the record

that would permit a reasonable jury to resolve this case in her

favor. Scottsdale Ins. Co., 561 F.3d at 77. Specifically, she has

not pointed to any evidence that Safety purchased or bargained for

the UIM coverage under policy MA 05700143 to provide its "employees

with additional protection from damages caused by underinsured

motorists." Baker I, 595 F.3d at 394. Nor has she presented any

evidence that Safety strictly prohibited non-employees from riding

in company vehicles, or that the company ever represented to her

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that she would receive UIM coverage as an employee, such that we

might infer that Safety purchased or bargained for the UIM coverage

to protect its employees.

The testimony that was elicited from Safety's president

and its insurance agent during their depositions on remand directly

contradicts Baker's claim that Safety intended to provide UIM

coverage to its employees. Rather, that testimony indicates that

Safety was unaware of the very existence of UIM coverage under

policy MA 05700143 and that the insurance agent included the UIM

coverage in order to protect the company in the event that an

employee was involved in an accident outside of Massachusetts or

carried a non-employee passenger in the vehicle.

Safety's president, Robert Kingman, testified that he was

the sole person at the company responsible for purchasing insurance

and making insurance-related decisions. Kingman had been working

with insurance agent Robert Muenzberg, Jr. since sometime in the

1990s. Kingman testified that he never told Muenzberg to put UIM

coverage or any other particular provisions in the policy at issue,

that he "never even understood" that he was purchasing UIM coverage

under the policy, and that it "never would have occurred to [him]"

that the UIM coverage would protect employees from damage caused by

underinsured motorists. 

Muenzberg testified that he "probably" discussed UIM

coverage with Kingman "at some point," because it was a "typical

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conversation" that he had with clients purchasing commercial auto

insurance policies in Massachusetts, though he did not remember

such a conversation specifically. It was Muenzberg's understanding

that a UIM provision would not apply to an employee in

Massachusetts, because the employee would be covered by WC. Thus,

as Muenzberg explained during his deposition, if he did discuss UIM

coverage with Kingman, that conversation would have been about the

need for UIM coverage in the event of "out-of-state exposure beyond

the compulsory Massachusetts limits and the possibility that the

vehicle might have a passenger in it that's not an employee,

perhaps a customer." What is clear from Muenzberg's deposition

testimony is that Safety certainly never communicated to him that

the company wanted UIM coverage to protect its employees. 

Recognizing that there is no direct evidence that Safety

explicitly purchased or bargained for the UIM coverage with the

intention of protecting its employees, Baker claims that Safety had

a policy prohibiting non-employees from riding in company vehicles

and that we should therefore infer that Safety purchased the UIM

coverage for its employees. We reject that claim because we find

no evidence of such a policy. Kingman specifically testified

during his deposition that there was no formal or informal policy

and that allowing non-employees in the vehicles was "just not [a]

very good business practice." Kingman's son, Brian Kingman,

confirmed that, while the company "van was meant for work" and

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"[i]t would be frowned upon" for an employee to bring a passenger

in the van, an employee could do so if the trip "was business

related." And Muenzberg testified that, if Safety had a policy 5

forbidding passengers in the vehicles, Kingman would have told him

and "we would have thought about the coverage differently." Absent

any evidence that Safety believed the vehicle in question only

carried employees, and given the testimony to the contrary, we will

not infer that the company must have purchased the UIM coverage for

the explicit purpose of covering its workers injured on the job. 

Grasping at straws, Baker claims that the existence of a

second Safety Massachusetts insurance policy (BA 01320676) creates

a genuine issue of material fact, because that policy included an

endorsement in which Safety certified that the vehicles covered by

the policy would only carry employees. As discussed above, BA 6

01320676 is not the policy that covered the vehicle Baker was

driving when she was injured. Nonetheless, Baker argues in her

Baker points to the fact that Brian Kingman told her that 5

she could not use the company vehicle to pick up her children at

school, but, as the district court found, "discouraging or

prohibiting personal use of the vehicles does not correlate with a

prohibition on all non-employee passengers at all times,

specifically with regard to customers." Baker v. Safety Source

Ne., No. 07–314–ML, 2011 WL 2181175, at *5 (D.R.I. June 3, 2011). 

The endorsement stated in relevant part: "You paid a reduced 6

premium for Personal Injury Protection Coverage because you

certified that your covered 'auto' would be used only in your

business and only to carry your 'employees' and that you have and

will continue to have a Massachusetts Workers' Compensation Policy

during the period of this policy."

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brief that the BA 01320676 endorsement "confirms unmistakably that

Ms. Baker's employer demanded that no one other than the employees

were permitted to be in the company vehicles." If that were true,

however, Baker fails to explain why Safety would not have executed

a similar endorsement for policy MA 05700143. Though we must draw

all reasonable inferences in Baker's favor, she cannot rely

exclusively on "unsupported speculation" to defeat St. Paul's

motion for summary judgment. Barry v. Moran, 661 F.3d 696, 703

(1st Cir. 2011) (citation and internal quotation marks omitted). 

Baker's final claim -- that there remains a genuine issue

of material fact as to whether Safety's witnesses and documentary

evidence are credible -- "is squarely foreclosed by our case law." 

Harriman v. Hancock Cnty., 627 F.3d 22, 33 (1st Cir. 2010); see

also Sears, Roebuck & Co. v. Goldstone & Sudalter, P.C., 128 F.3d

10, 18 (1st Cir. 1997) ("A party cannot create an issue for the

trier of fact by relying on the hope that the jury will not trust

the credibility of witnesses." (citation and internal quotation

marks omitted)).

Although Safety apparently discouraged its employees from

bringing passengers in company vehicles, the evidence indicates

that the company either purchased the UIM coverage unwittingly or

out of a recognition that non-employees, including customers, might

nonetheless wind up in company cars. Because Baker has failed to

demonstrate a genuine issue of material fact as to whether Safety

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explicitly purchased or bargained for the UIM coverage under policy

MA 05700143 with the specific intention of providing such coverage

to employees injured on the job, the National Union carve-out does

not apply here. See 667 N.E.2d at 881. The district court

therefore properly granted St. Paul's motion for summary judgment

and denied Baker's. Hartford Fire Ins. Co., 633 F.3d at 53.

III. Conclusion

We affirm the district court's orders. No costs are

awarded.

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