Academic journal article Defense Counsel Journal

No Cents in Doing It Again: The Importance of Disclosing Insurance Coverage at Discovery

Academic journal article Defense Counsel Journal

No Cents in Doing It Again: The Importance of Disclosing Insurance Coverage at Discovery

Article excerpt

HENRY Ellis, the state of Georgia's second royal governor, is the attributed author of the famous admonition that one should not "make a mountain of a mole-hill." (1) The phrase offers a tenable explanation for the Supreme Court of Georgia's recent ruling in Ford Motor Co. v. Conley, (2) where the court attempted to convince subsequent interpreters of its opinion that "[their] decision... should be not be read as breaking any new ground, but rather as simply affirming... the application of settled rules of law to a set of facts that may well be peculiar to Ford's ill-considered discovery practice." (3) This is true in one respect, given the Conley decision reinforces a Georgia statute more than eighty years old; however, it cannot be denied that the court made a distinct and novel finding in this case. (4) The court's decision: (1) clarified the requirements for an extraordinary motion for new trial that is not based on newly discovered evidence; (2) developed a novel sliding-scale approach to interpret the veracity of discovery responses for the purpose of granting such motions; and (3) found that vague responses can be treated--in some circumstances--as equivalent to overtly false responses.

Though not quite as old as Governor Ellis' storied idiom, the basis of the Conley case stems from a longstanding law in Georgia that allows plaintiffs to question the jury to discover any relationships that may exist between the jury and the defendant's insurer. (5) The plaintiff has a right to request this information from the defendant during discovery, (6) and because this information is discoverable, the defendant is expected to give good faith responses to such requests. (7)

Courts strongly disfavor discovery responses that do not provide a party with a clear answer and are intended to manipulate the requesting party into prematurely stopping their inquiry. (8) In Conley, the Supreme Court recognized the vital impact of such discovery requests when it affirmed the plaintiffs extraordinary motion for new trial on the grounds that the plaintiff was intentionally misled by the defendant's response and was unduly prejudiced as a result. (9) The court recognized that extraordinary motions for new trial are not ordinary remedies. (10) However, it weighed this general aversion to extraordinary motions against the necessity of preserving an honest discovery process and, ultimately, chose to send a message to those who provide intentionally misleading responses that their misrepresentation will be revealed and the trial will be re-opened and re-tried as a result. (11) This article reviews Conley to demonstrate the risks that counsel may face should they choose to conceal the availability of insurance coverage.

I. Factual Background

In December 2007, Renee and Jordan Conley filed a product liability suit against Ford Motor Company in the State Court of Cobb County. (12) During discovery, the Conleys requested that Ford identify any insurance policies that would cover a possible judgment. Ford objected to the request claiming that it was overly broad and that it sought irrelevant evidence. (13) The company added qualifying language that gave the Conleys the impression Ford was self-insured. (14) The jury, as a result, was not qualified for any relationships with insurers. Trial commenced on November 9, 2009 and, ten days later on November 19, 2009, the jury returned a verdict in favor of Ford. The Conleys did not appeal. (15) Then on June 13, 2011, more than a year after the Conley's original action, the parents of Donald R. Young III filed a similar product liability action against Ford--in the same court and before the same judge as the Conley case. (16)

During discovery in Ford Motor Co. v. Young, (17) the plaintiffs requested that Ford disclose any insurance policies that might cover a judgment against the company. Ford did not object to the request, as it did in the Conley case, but responded using language very similar to its response in Conley. …

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