Monday, February 24, 2014

Split of Authority on Allowing Deposition of Claims Representatives in Post-Koken Cases Continues

In a February 20, 2014 Order (with explanatory rationale in a footnote) in the case of Wagner v. State Farm Mut. Automobile Ins. Co., No. 5:13 - CV - 06645 (E.D. Pa. Feb. 20, 2014 Sitarski, M.J.),  Magistrate Judge Lynne A. Sitarski of the Eastern District Federal Court of Pennsylvania denied the Plaintiff's Motion to Compel and granted State Farm's Motion for a Protective Order to prevent the deposition of a State Farm claims representative and claims manager as requested by the Plaintiff in this Post-Koken UIM case.

According to the explanatory details provided by the court, the Plaintiff contended that the depositions of the claims professionals was necessary to enable the Plaintiff to meet his burden of proof at trial. 

The Defendant carrier countered with a primary argument that information about the process of claims handling was not relevant in the Plaintiff's breach of contract claim particularly where no bad faith was being asserted.  The defense additionally asserted that it would be unreasonable, inconvenient, and expensive to require the claims professionals to attend a deposition where the redacted claims file had already been produced by the carrier.

The Court found that that the Defendant carrier had demonstrated good cause for the issuance of a protective Order to preclude the requested depositions.  As such, the carrier's Motion for a Protective Order was granted and the Plaintiff's Motion to Compel was denied.

Anyone wishing to review this Order containing the Court's rationale may click this LINK.


There remains a split of authority, and currently no appellate guidance, on this Post-Koken issue of whether or not the depositions of the claims professionals handling the UM/UIM claim can be secured in a Post-Koken breach of contract action against the UM/UIM carrier. 

To review at least some of the decisions on this issue, go to the Tort Talk Post-Koken Scorecard by going to and scrolling down the right hand column to "Post-Koken Scorecard" and clicking on that title and/or the date noted below it.

Once you get to the Tort Talk Post-Koken Scorecard, scroll down the Scorecard until you get to this particular topic. 

Please feel free to email me for a copy of any cases you see that you may need.  If I have a copy--and I do have a copy of most of the cases listed--I will send it to you.

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