NEFFERDORF

v.

PROGRESSIVE AMERICAN INSURANCE COMPANY

In this underinsured-motorist-insurance-coverage case, the court is confronted with whether it should preclude plaintiff Rebecca Nefferdorf from deposing her insurer’s claims adjuster (Doc. 30) and whether it should defer consideration of the defendant insurer’s motion for summary judgment until she does (Doc. 82). Finding the contemplated deposition relevant and proportional, the court denies the insurer’s motion to preclude the deposition and grants Nefferdorf’s motion to defer consideration of summary judgment. Nefferdorf was involved in a motor vehicle accident as a back-seat passenger in a car driven by Matthew Simpson, which collided with a car driven by Jancarlo Camejo. Apparently based on contentions that both Simpson and Camejo were at fault for her injuries, Nefferdorf made claims against the bodily-injury coverage of both Simpson and Camejo. They each had their own policies with Progressive American Insurance Company, and, on behalf of its insureds, Progressive paid Nefferdorf the policy limits. Progressive paid Nefferdorf $250,000 under Simpson’s policy and $10,000 under Camejo’s policy. Nefferdorf also claimed she was entitled to underinsurance benefits under Simpson’s policy, and Progressive paid her $50,000 in underinsurance benefits.

This action is against Nefferdorf’s insurer, General Insurance Company of America, for underinsured-motorist benefits. The policy limit is $250,000. General has paid her $40,000 under this policy. Its math essentially works like this: Nefferdorf’s underinsurance benefit of $40,000 equals the $300,000 sum of the two

UIM benefits (Nefferdorf’s $250,000 and Simpson’s $50,000) less the $260,000 sum of the two BI benefits (Camejo’s $10,000 and Simpson’s $250,000). The rub is whether the $250,000 paid to Nefferdorf under Simpson’s bodily-injury coverage should be included in this equation. Nefferdorf argues the $250,000 paid to her by Progressive under Simpson’s bodily-injury coverage should be excluded from this calculation because it was impossible for her to demonstrate any legal entitlement to it.¹ Her contention—at least for purposes of this action—is that Simpson was wholly without fault and Camejo was the sole tortfeasor. Nefferdorf implicitly asserts the $250,000 was

General seeks to avoid the deposition on grounds of privilege and workproduct protection, and it simply rejects Nefferdorf’s theory of recovery to argue lack of relevance. But it does not appear that Pagenta’s communications with Progressive or Nefferdorf’s counsel would be privileged or entitled to work-product

Nefferdorf’s theory is for another day.⁵ As framed by the pleadings, a deposition of Pagenta about his communications with Progressive or Nefferdorf’s counsel is relevant to the parties’ claims and defenses and proportionate to the needs of the case. As such, it falls within the scope of discovery. Fed. R. Civ. P. 26(b)(1).6 Accordingly, General’s motion for protective order (Doc. 30) is DENIED, and its motion for leave to file a reply (Doc. 46) is DENIED as moot. Nefferdorf’s motion to defer summary disposition (Doc. 82) is GRANTED. The discovery

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NICHOLAS P. MIZEL

UNITED STATES MAGISTRATE JUDGE