A U.S. Magistrate Judge faced unique issues concerning Depositions, Errata Sheets and a proper Corporate Representative, in AIG Centennial Insurance Co. v. O'Neill, Download AIG Centennial Insurance co. v. O'Neill (S.D. Fla. Case No. 09.60551, U.S.M.J. Order Filed October 22, 2010) PUBLIC ACCESS, also published as 2010 WL 4363176 (S.D. Fla. U.S.M.J. Order October 22, 2010)(authorized password required to access Westlaw).
The Insurance Coverages at issue in that case did not at first present themselves in what seemed to be a universally appealing way, it is fair to say. "This matter arises out of an insurance dispute over a luxury yacht." The Marine Insurance Policy at issue provided contested Property Damage Coverage "for an agreed value of $2,350,000.00, with a deductible of $47,000.00 for hull damage claims." AIG Centennial Insurance Co. v. O'Neill, 2010 WL 4363176 at *1.
The Policyholder retained several Experts to present the cause of loss. AIG Centennial issued a Reservation of Rights letter and filed suit for Declaratory Judgment that there was no Coverage under its Policy, according to the Court. Id. at *2-*3.
In the DJA, the Policyholder noticed the Deposition of a Corporate Representative of the Defendant to address specified Underwriting Issues. The Defendant produced one Roethke as its Corporate Representative. After the Corporate Rep Deposition concluded, Mr. Roethke filed an Errata Sheet which may or may not have changed his substantive testimony. In addition, it did not appear that he was the appropriate person to testify about at least some of the specified Underwriting Issues; he said so himself. See id. at *3.
The Issue of the Errata Sheet. In reaching a holding on this issue, the Magistrate Judge first pointed out that there is a conflict in the case law. Some Federal Courts allow substantive changes to be made in Deposition Errata Sheets; others do not. The Federal Courts that do allow substantive changes to be made in Deposition Errata Sheets are reportedly of the view that there is nothing in Federal Rule of Civil Procedure 30(e)(1)(B) which prohibits them. The Federal Courts that do not allow substantive changes to be made in Deposition Errata Sheets construe the same Rule, "narrowly," and allow "changes in substance only when the transcript evidences 'obvious confusion' ...." Id. at *4.
Noting that the Eleventh Circuit Court of Appeals "has not ruled directly on this issue in a binding decision," the Court in this case allowed substantive changes to be made in the Corporate Representative's Deposition Errata Sheet "[w]here, as here, the deponent timely submits changes to his deposition testimony and an opportunity remains for the court to allow the reopening of the deposition should the court deem it necessary ...." However, the Magistrate Judge coupled costs and fees to this holding as well. "[T]o the extent that this Court finds that a party deponent materially altered his testimony in a substantive way, this Court will require the deponent to pay the costs and fees associated with re-opening the deposition." Id. at *5.
The issue of Costs and Fees for the Rule 30(b)(6) Underwriting Corporate Representative. Working under a different Rule of Federal Civil Procedure, i.e., Rule 30(b)(6), the Magistrate Judge declined to assess fees and costs as sanctions in this Case. It appears that, in this Case, the deponent was finished testifying at the end of the day anyway. There would not likely have been much time left to also depose another Corporate Representative who might be able to address the Underwriting Issues. Under the circumstances of this peculiar Case, the Magistrate Judge denied a Motion for Sanctions "with the understanding that [the Defendant Insurance Company] will ensure the immediate availability of ... some other suitable corporate representative prepared to testify regarding the underwriting issues." Id. at *12.
Dennis Wall is the Author of the leading book on Insurance Bad Faith, "Litigation and Prevention of Insurance Bad Faith" (Shepard's/McGraw-Hill Second Edition; West Publishing Company 2010 Supplement), and he has handled many Insurance Coverage and Bad Faith Cases and Catastrophe Claims. Mr. Wall will speak on a panel at the American Conference Institute's Bad Faith Litigation Conference in Orlando, Florida on November 30, 2010. The author has been advised by the American Conference Institute that the ACI is continuing to offer its discount to readers of this Blog: Download ACI Advises Readers of the Insurance Claims and Issues and Insurance Claims and Bad Faith Law Blog are entitled to a discount.
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