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Zurich American Insurance Co. v. Andrew

United States District Court, D. Nebraska

May 4, 2016

ZURICH AMERICAN INSURANCE COMPANY, a New York Corporation, Plaintiff,
v.
RICHARD ANDREW, JANE ANDREW, LUKE ANDREW, and BRYCE ANDREW, Defendants.

ORDER

F.A. Gossett United States Magistrate Judge

This matter is before the court on the Objection to Notice of Subpoena (Filing No. 27) filed by the defendants, Richard Andrew, Jane Andrew, Luke Andrew, and Bryce Andrew (collectively, “Defendants”) and the Motion to Allow Issuance of Subpoenas (Filing No. 29) filed by the plaintiff Zurich American Insurance Company (“Zurich”). For the following reasons, the court will grant Defendants’ objections and deny Zurich’s motion.

BACKGROUND

Zurich filed this subrogation action to recover amounts it paid pursuant to an insurance policy with Magellan Midstream Partners, LP (“Magellan”) to clean-up and remediate gasoline and fuel released from pipelines under real property in Nemaha County, Nebraska. Zurich alleges that on December 10, 2011, two defendants, Luke Andrew and Bryan Andrew, negligently struck two of Magellan’s pipelines while engaged in excavation activities on the property, causing the release of approximately 2, 167 barrels of mixed gasoline and jet fuel and 643 barrels of diesel fuel. (Filing No. 6 at p. 2 ¶ 16). Magellan was required by state and federal law to clean-up and remediate the release. (Filing No. 6 at pp. 2-3 ¶¶ 13-14, 17). Defendants allege Luke was engaged in farming-related activities authorized by Magellan at the time of the pipeline strike. (Filing No. 14 at pp. 2-3 ¶¶ 11-14).

Zurich alleges that pursuant to its insurance policy with Magellan, Zurich has paid more than $3 million on behalf of Magellan and anticipates future damages of more than $1.1 million related to the clean-up and remediation of the release from the pipeline strike. (Filing No. 6 at pp. 3-4, ¶¶ 19, 26-28). Zurich seeks to recover more than $4 million in damages from Defendants and to impute negligence to all Defendants, alleging they were agents of each other, engaged in a joint venture and partnership, and acting in the course and scope of the joint venture at the time of the pipeline strike. (Filing No. 6 at p. 2). Defendants deny the existence of any agency, partnership, or joint venture. (Filing No. 14 at pp. 1-2 ¶¶ 8-10 and Filing No. 16 at p. 2 ¶¶ 8-10).

On February 22, 2016, pursuant to Fed. R. Civ. P. 45 and NECivR 45.1, Zurich filed its notice of intent to issue subpoena to produce documents on a third-party, Farmers Alliance Mutual Insurance Company (“Farmers”). (Filing No. 26). The notice directs Farmers to produce documents and communications related to Defendants’ insurance policy with Farmers between December 23, 2010 and December 23, 2011 (“the Farmers Alliance Policy”). Namely, the notice requests Farmers produce, from the time period of January 1, 2011, to the present:

(1) any and all communications between Farmers and counsel for Defendants concerning the Farmers Alliance Policy;
(2) any and all documents reflecting or relating to any claims made by any of the Defendants against the Farmers Alliance Policy;
(3) any and all communications between Farmers and Defendants concerning the Farmers Alliance Policy;
(4) any and all documents reflecting or relating to any communications between Farmers and “Auto-Owners Insurance Company” concerning any claims submitted by any of the Defendants;
(5) all documents comprising the complete claim file of any claim with a date of loss occurring in December of 2011;
(6) all documents comprising Farmers’ complete underwriting file relating to the Farmers Alliance Policy;
(7) any and all insurance cancellation notices relating to the Farmers Alliance Policy;
(8) any and all documents reflecting or relating to Farmers’ decision to issue the ...

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