If an insurance adjuster states in deposition there was no damage to your property after a hail storm, but he had previously issued reports finding the properties around and including yours were damaged by hail, you should be able to obtain those files (with reasonable limitations) in discovery in your case. Discovery of relevant information does not necessarily mean every single piece of information would be admissible as evidence at trial of the case. A New York trial and appellate court recently followed this common sense approach in an insurance case and ordered the independent adjuster to produce the files.
In American Heritage Realty, LLC v. Strathmore Insurance Company, the policyholder owned five apartment complexes that were insured by Strathmore Insurance Company. The policyholder sued the insurance carrier alleging it breached the insurance policies by failing to cover losses caused by hail storms in 2008 and 2009. The policyholder issued a subpoena requesting documents from Robert Marks, an independent adjuster hired by the carrier to handle the claims. The independent adjuster gave deposition testimony that allegedly contradicted his previous conclusion in reports that the properties sustained hail damage. The subpoena demanded all documents concerning hail damage claims adjusted by Marks for the years 2008 and 2009—evidently about 40 additional claims. The policyholder agreed to limit the subpoena to documents reflecting the date and nature of hail damage claims in 2008 and 2009, the addresses where the claims arose, whether Marks recommended payment of the claims, and to redaction of the names of insureds and insurers. The trial court ordered Marks to comply with the subpoenas and the carrier filed an appeal of that ruling.
The appellate court noted that in such questions of discovery, trial courts have broad discretion in determining whether the information sought is “material and necessary,” terms that encompass “any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” In addition, “something more than mere relevance or materiality must be shown to obtain disclosure from a nonparty witness.” The party requesting disclosure must show that “sufficient independent evidence is not obtainable.”
The appellate court noted the policyholder sought the documents at issue to demonstrate whether hail damaged the roofs of other properties in proximity to their apartment complexes, whether the damage was sufficient to cause other property owners to submit claims, and whether Marks recommended payment of those claims. Marks evidently adjusted approximately 40 other hail damage claims during the relevant time frame and indicated he could retrieve those files on his computer by conducting a word search.
The appellate court held:
In our view, the documents are relevant to both Marks’ credibility and defendant’s claim that plaintiff did not sustain a loss as a result of hail damage during the relevant policy period. Moreover, sufficient independent evidence is not obtainable.
It seems the policyholder will obtain those other files and see if there is contradictory evidence contained within them. This outcome certainly seems just.
1 American Heritage Realty, LLC v. Strathmore Ins. Co., 2012 NY slip OP 09120 (N.Y. 3d App. Div. December 27, 2012).
