Heidi M. BAKER, Plaintiff, Appellant, v. ST. PAUL TRAVELERS INSURANCE COMPANY, Defendant, Appellee.
No. 11-1897.
United States Court of Appeals, First Circuit.
Heard Jan. 9, 2012. Decided Feb. 28, 2012.
670 F.3d 119
In the end, Nazario‘s federal action is a garden variety federal diversity case requiring only the application of settled principles of state law to an ordinary contract dispute. The parallel litigation, though giving rise to some normal risks of inexpediency, does not display exceptional circumstances that clearly justify departure from the federal court‘s obligation to exercise jurisdiction in this contract damages case.
We note an additional aspect of this case. In her brief, the appellant suggests that the company‘s filing of the local declaratory judgment was based on what she asserts is an improper motive. This accusation raises the question of whether a party‘s motivation in pursuing parallel state litigation may be a relevant ingredient in the exceptional-circumstances mix. The Supreme Court has remarked that such an angle has “considerable merit.” See Moses H. Cone, 460 U.S. at 17-18 n. 20, 103 S.Ct. 927; see also Villa Marina Yacht Sales, Inc., 915 F.2d at 15 (indicating approval for reviewing vexatious or contrived nature of both the federal and state court litigation). We need not consider this aspect further, though, because even if the company filed the local action in good faith, no exceptional circumstances exist in this case warranting dismissal on abstention grounds.
Finally, our decision revives at least Nazario‘s motions for partial summary judgment and for default, and perhaps other related pleadings. While the appellant urges us to resolve her motion for partial summary judgment, we decline to do so in the first instance. Additionally, we leave it for the district court to consider on remand the extent to which the local court‘s merits decision on the release question impacts the issues pending in the federal action.
IV. Conclusion
The judgment is reversed and the case is remanded to the district court for further proceedings consistent with this opinion. Costs to appellant.
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.
Before BOUDIN, SELYA and STAHL, Circuit Judges.
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
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 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., 416 Mass. 652, 624 N.E.2d 947 (1993);
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
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, Melendez-García v. Sánchez, 629 F.3d 25, 33 (1st Cir.2010).
In response to Baker‘s
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
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.
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
Baker‘s second argument is that Restaine was not sufficiently knowledgeable or
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
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, 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
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,
B. The motion for summary judgment
We review de novo the district court‘s decision to grant St. Paul‘s summary judgment motion.4 Hartford Fire Ins. Co. v. CNA 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 non-moving 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.” 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 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
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 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 “[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.”5 And Muenzberg testified that, if Safety had a policy 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) cre-
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 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.