If a party voluntarily chooses not to file a claim with his insurance company for a covered loss, does that relieve the party of any responsibility to produce that insurance policy per NRCP 16.1(a)(1)(D)?
I observed this scenario play out A-14-694977-C on January 5. From what I could gather, A sued B, who counterclaimed. A had an insurance policy that might have applied to the counterclaim. A chose not to submit the counterclaim to his insurance company under the policy. A instead determined the policy had an exclusion that applied and there would be no coverage. Fair enough, but then A refused to produce a copy of the policy to B. A instead produced only the page containing the policy exclusion that A believed would exclude coverage. B moved to compel, citing Vanguard, as previously discussed here.
I have not read the briefing. The oral argument had 2 primary components. First, A said he had performed a coverage analysis and there was no coverage, so he did not need to produce a meaningless document. That failed miserably as there is nothing in the rule that permits a party to make a unilateral determination about whether coverage applies. A also argued that he did not want to produce the document because then a claim might be reported and, although there was no coverage, his insurance rates would go up. That went as far as a snowball in hell. DC Beecroft noted no authority had been cited to support either proposed exception and, in any event, it was all contrary to Vanguard. $1,000 in fees and costs imposed on A.
If you have an insurance policy that arguably applies to a loss, it is probably going to be produced. Having said that, like I have said before, if you are the plaintiff and the case is worth $50,000 soaking wet, don’t move to compel the excess policy that attaches at $1,000,000.01.