United States District Court, D. New Mexico
ORDER GRANTING IN PART MOTION TO COMPEL
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Plaintiff's
Motion to Compel Insurance Policies (the
“Motion”), (Doc. 38), filed June 4, 2019;
Pecos Valley of New Mexico, LLC's Response to
Plaintiffs' Motion to Compel Insurance Policies (the
“Response”), (Doc. 46), filed June 11, 2019; and
Plaintiff's Reply in Support of Her Motion to Compel
Insurance Policies (the “Reply”), (Doc. 47),
filed June 13, 2019. Having reviewed the Motion, Response,
Reply, record of the case, and relevant law, the Court finds
the Motion shall be GRANTED IN PART.
their Motion, Plaintiffs ask the Court to order Defendant
Pecos Valley of New Mexico, LLC (“Pecos Valley”)
to provide all insurance agreements that may be required to
satisfy any judgment or settlement in this case. (Doc. 38 at
1). Plaintiffs state that Defendants have only provided
Defendant Dr. Good's Certificate of Liability Insurance,
but have not produced the entire insurance agreement.
Plaintiffs state that Defendants have taken the position that
the policy must be produced pursuant to a protective order.
Id. at 2. However, Plaintiffs will only agree to a
protective order if Defendants produce all insurance policies
that might apply to Plaintiffs' claim-not just Dr.
Good's policy. Id. at 2-3. Further, Plaintiffs
state that Pecos Valley's insurance policy is
particularly relevant to the issue of whether Pecos Valley
was a qualified healthcare provider, which is disputed by the
parties. Id. at 4-5. For example, Plaintiffs state
the insurance policies will show whether Pecos Valley
complied with the statutory requirement that only
“occurrence policies” may be written for
qualified healthcare providers. Id. at 4.
Response, Defendants argue that both Pecos Valley and Dr.
Good are qualified healthcare providers whose liability is
limited by the Medical Malpractice Act to $600, 000. (Doc. 46
at 1). Therefore, Defendants state the only applicable policy
is a policy issued by Preferred Professional Insurance
Company (“PPIC”), which provides coverage up to
the cap. Id. at 2. Defendants state they are willing
to produce the PPIC policy in its entirety, but only pursuant
to a protective order because information in the policy is
proprietary. Id. at 2-3. Defendants attach a copy of
their proposed protective order to their Response. (Doc.
argue in their Reply that Defendants should be required to
produce all insurance policies under which Pecos Valley is a
named insured, as required by Fed.R.Civ.P. 26(a)(1)(A)(iv).
(Doc. 47 at 1-5). Moreover, Plaintiffs contend all of Pecos
Valley's insurance policies are relevant to the issue of
whether Pecos Valley was a qualified healthcare provider
during the relevant time period, and will be necessary for
the Court to determine this issue. Id. at 2-3.
Additionally, Plaintiffs argue that Pecos Valley has not set
forth good cause for entry of a protective order because it
does not state how the information in the insurance policies
constitutes confidential information. Id. at 5-8.
Plaintiffs state they would be willing to enter into a
protective order that prohibits Plaintiffs from disseminating
the insurance policies to Pecos Valley's competitors, but
Plaintiffs do not agree to Defendants' proposed
protective order because it does not provide for use of the
policies in examining witnesses. Id. at 7.
Therefore, Plaintiffs argue the proposed protective order is
overly broad and should not be entered as it is currently
written. Id. at 7-8.
to Rule 26(a)(1)(A)(iv), a party must provide in its initial
disclosures “any insurance agreement under which an
insurance business may be liable to satisfy all or part of a
possible judgment in the action or to indemnify or reimburse
for payments made to satisfy the judgment.” Moreover,
parties must produce all policies under which they may be
liable to satisfy a possible judgment, even if they dispute
liability under the policies. See Fed. R. Civ. P.
26, Advisory Commentary (“Disclosure of insurance
coverage will enable counsel for both sides to make the same
realistic appraisal of the case, so that settlement and
litigation strategy are based on knowledge and not
speculation. . . . Thus, an insurance company must disclose
even when it contests liability under the policy, and such
disclosure does not constitute a waiver of its
argue they are not required to produce any insurance policies
other than the PPIC policy because that policy will provide
coverage up to the damages limit. (Doc. 46 at 1-2). However,
Defendants' argument relies on their position that Pecos
Valley is a qualified healthcare provider whose liability is
limited by the Medical Malpractice Act, which is disputed by
Plaintiffs. Id. Moreover, Plaintiffs argue they need
to know the policies in which Pecos Valley is the named
insured in order to brief the issue of whether it is a
qualified healthcare provider. Id.; see
also (Doc. 21) (Order Setting Briefing Schedule on the
issue of whether Pecos Valley is a qualified healthcare
provider under the New Mexico Medical Malpractice Act).
Therefore, the Court finds that Defendants must produce
copies of all insurance policies that may apply to this
claim, regardless of Defendants' status as a qualified
healthcare provider. While some of these polices may
ultimately be irrelevant if the Court finds that Pecos Valley
is not a qualified healthcare provider, production of the
policies is nevertheless required under Rule 26.
Court further finds that Defendants' request for a
protective order for disclosure of their insurance policies
is reasonable. However, Defendants' proposed protective
order is overly broad. For example, the proposed order limits
disclosure of the insurance policies only to the parties to
this case and their counsel, and allows the parties to label
any document or information as confidential and prohibit
dissemination of that information. (Doc. 46-2 at 2-4,
¶¶ 2, 4, 6, 7, 9). The proposed protective order is
overly broad because it does not provide for using the
insurance policies in examining witnesses and does not define
“confidential information.” Therefore, the Court
will order the parties to prepare a joint protective order
that prevents disclosure of Defendants' insurance
policies to persons or entities not involved in this
litigation and clearly defines “confidential
information” for this case.
IS THEREFORE ORDERED that Plaintiffs' Motion
to Compel Insurance Policies, (Doc. 38), is
GRANTED IN PART.
IS FURTHER ORDERED that, by June 24,
2019, the parties shall file a joint motion for a
protective order as set forth above. When that order is
entered by the Court, Defendants shall promptly produce
copies of all insurance policies that may be required to
satisfy any judgment or settlement in this case regardless of
Defendants' status as qualified healthcare providers.