IN THE WORKERS' COMPENSATION
COURT OF THE STATE OF MONTANA
2002 MTWCC 52
WCC No. 2002-0589
LIBERTY MUTUAL FIRE
HR LOGIC, INCORPORATED
MOTION IN LIMINE
In a case involving a request for penalty and attorney fees (other matters
being settled), claimant moves in limine to exclude any evidence by insurer
which is not set out in the insurer's answers to interrogatories.
Where the insurer has identified its witnesses and exhibits, claimant's
motion in limine to exclude evidence not identified in answer to an interrogatory
is denied since the insurer objected to the interrogatory requesting the
written discovery regarding the matter and claimant failed to move to
compel an answer.
Discovery. Court will not exclude evidence on the grounds that
the party failed to identify the evidence in answer to written discovery
requests where the answering party objected to the discovery and the
propounding party failed to move to compel answers to the discovery.
Discovery. Where opposing party objects to written discovery,
the party propounding the discovery must move to compel discovery. A
party cannot sit on his or her hands and then seek to exclude evidence
because it was not identified in response to the discovery.
Failure to Provide Discovery. Court will not exclude evidence
on the grounds that the party failed to identify the evidence in answer
to written discovery requests where the answering party objected to
the discovery and the propounding party failed to move to compel answers
to the discovery.
¶1 The only issue remaining
before the Court in this matter is whether the insurer should be required
to pay a penalty and attorney's fees. Claimant has filed a motion in limine
to exclude any testimony,
evidence or argument from the Respondent Liberty Northwest Insurance
Company not contained in Respondent's Responses to Petitioner's First
Combined Discovery Requests regarding the identity of witnesses, information
or evidence regarding the reasonableness in the handling and the adjustment
of Adam Ganje's claim for workers compensation benefits. The basis for
the exclusion of this evidence is that it was requested in written discovery
and Liberty Northwest failed and refused to provide the information
(Adam Ganje's Motion in Limine
and Brief in Support at 1.)
¶2 Claimant does not specify
the discovery request at issue, but simply attaches a copy of Respondent's
Response to Petitioner's First Combined Discovery Requests. Interrogatory
No. 10 concerns the reasonableness of respondent's conduct. The interrogatory
and response are as follows:
INTERROGATORY NO. 10:
If you contend that you acted reasonably in the handling and adjustment
of the claim for benefits which forms the basis of the Petition for
Hearing then for each such action taken by you set forth a description,
in as much detail as you may present to the Workers' Compensation Court,
of each such action, identify the date each action was taken, and identify
any documents which memorialize or record each such action.
this interrogatory violates ARM 24.5.323(6) which limits interrogatories
to 20 in the aggregate inclusive of subparts.
(Respondent's Response to Petitioner's
First Combined Discovery Requests at 3.)
¶3 Claimant did not move to
compel respondent to answer interrogatory number 10. The motion in limine
is denied on that basis. If claimant disagreed with respondent's
counting of subparts of interrogatories, or its interpretation of ARM
24.5.323(6), and desired a substantive answer of the interrogatory, the
remedy was a motion to compel. Not having presented the issue on that
basis, claimant cannot now ask the Court to exclude evidence on the basis
of respondent's objection to answering the interrogatory.
¶4 Moreover, as noted by respondent:
Liberty had already disclosed
to Petitioner its potential witness with regard to the handling and
adjustment of his claim. Pursuant to Court Rule 24.5.302, Liberty filed
its Response to the Petition and listed as a potential witness Chris
Stobb and briefly described the subject matter of her testimony as the
"handling and adjustment of claimant's claim." Liberty further complied
with the rule by listing the documents that it may us [sic] during trial,
including the claim file. To state now that Petitioner is surprised
or unfairly prejudiced is disingenuous. Petitioner knew who the adjuster
was and chose not to take her deposition. Petitioner's failure to take
the adjuster's deposition is not Liberty's fault or responsibility.
(Response to Motion in Limine
and Brief at 3.)
¶5 Without suggesting a party
may refuse to respond to an interrogatory and then fall back on prior
witness and document disclosure in response to a properly filed motion
to compel, the Court notes that claimant has not identified, nor even
argued, any actual prejudice or surprise to warrant consideration of the
extreme remedy he suggests.
The motion in limine is denied.
DATED in Helena, Montana, this
24th day of October, 2002.
c: Mr. Geoffrey C. Angel
Mr. Larry W. Jones
Submitted: October 23, 2002