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State Farm Fire & Casualty Company, Court File No. 19-HA-CV-18-905
The Honorable Jerome B. Abrams
Plaintiff,
v.
STATE FARM FIRE AND
David V. Rucki; Samantha Rucki; CASUALTY COMPANY’S
Gianna Rucki; Sandra Sue Grazzini- MEMORANDUM OF LAW IN
Rucki; Deirdre Elise Evavold; Destiny SUPPORT OF ITS MOTION TO
Equine Intervention d/b/a White Horse COMPEL THE DEPOSITION OF
Ranch, a Minnesota Nonprofit DEFENDANT DEIRDRE ELISE
Corporation; Gina Schmit Dahlen; EVAVOLD, ISSUANCE OF A
Douglas Dahlen; Destiny Church; DIRECTIVE TO DARIN
Steve Quernemoen and Trish EVAVOLD, AND MOTION TO
Quernemoen, MODIFY THE SCHEDULING
ORDER
Defendants.
INTRODUCTION
At its core, discovery is about gathering facts to take the surprise out
of cases. Discovery not only ensures all parties have the relevant facts and
that has been withheld from State Farm Fire and Casualty Company
cause exists for the Court to extend various deadlines, ensuring that State
Farm may obtain that discovery, which will likely lead to information that
Judgment;
Summary Judgment;
Summary Judgment;
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11. E-Serve confirmation of Notices of Taking Deposition of the
Evavolds;
12. The cover letter, dated July 1, 2019, enclosed with the Notices
Evavolds;
17. Letter dated August 8, 2019 from Mrs. Evavold to State Farm;
action;
20. Letter dated December 14, 2017 from State Farm to Mrs.
Evavold;
Evavold1;
1
At the time of this filing, State Farm has not yet formally effectuated
service on Mr. Evavold. Once State Farm formally effectuates service,
State Farm will supplement the record by filing the affidavit of service.
3
22. Consumer Justice Ctr. P.A. v. Trans Union L.L.C., Nos. A05-
975, A05-1433, 2006 WL 920182 (Minn. Ct. App. Apr. 11, 2006);
23. An email dated April 2, 2018 from Mrs. Evavold to State Farm;
and
Evavold.
FACTUAL BACKGROUND
underlying action against Mrs. Evavold and others, in which they alleged
Complaint and asserted two additional counts against Mrs. Evavold: (6)
4
Defamation and Defamation per se; and (7) Defamation by Implication. (Id.
II. Mrs. Evavold Notifies State Farm About the Underlying Action.
After Mrs. Evavold notified State Farm of the underlying action, State
Farm issued a letter to Mrs. Evavold dated December 14, 2017, while it
investigated coverage. (Id. at ¶ 21, Ex. No. 20). State Farm specifically
informed Evavold of her right to hire counsel at her own expense, subject
dated March 14, 2018, State Farm denied coverage for all the claims
No. 1). Notably, in an email dated April 2, 2018, Mrs. Evavold advised that
she was waiving her right to contest coverage for Counts 1 through 5—
under the Homeowner’s Policy—in the original Complaint. (Id. at ¶ 24, Ex.
No. 23).3
2
There appears to be a typographical error in the Amended Underlying
Complaint, as ¶¶ 58–59 appear twice; once under Count 6, and the other
under Count 7.
3
State Farm argued that, because of this email, Mrs. Evavold waived her
right to contest coverage. This Court found this waiver to not be effective in
its May 7, 2019 Order. (Pham Aff. ¶ 8, Ex. No. 7, pg. 11) (“Notwithstanding
the purported waiver for counts 1–5 the Court considers the waiver from
coverage was ineffective.”).
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tendered defense of these new claims to State Farm. (Id. at ¶ 6, Ex. No. 5,
pg. 1). Upon completing its investigation, by letter dated January 21, 2019,
State Farm disclaimed coverage for each new count under the governing
at pg. 5).
action. (Id. at ¶ 3, Ex. No. 2, pg. 11). State Farm later moved for summary
coverage under her Umbrella Policy as there are claims asserted, inter alia
4
State Farm agreed to postpone the original hearing date on its Motion for
Summary Judgment because the underlying plaintiffs were moving to
amend the underlying complaint. (Pham Aff. ¶ 5, Ex. No. 4). The hearing
date was rescheduled for February 22, 2019.
5
In other words, the Court has relieved State Farm of all coverage
obligations as to Counts 1 through 3 and 5 through 7, which were asserted
in the underlying action.
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in the underlying case that constitute ‘personal injury’ within the meaning of
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The Court completely relieved State Farm of any coverage obligations
under the Homeowner’s Policy:
...
7
By default, the PLUP provides liability coverage when a claim or suit
COVERAGES
Defense
following exclusion:
EXCLUSIONS
...
8
(Id. at pg. 16).
The Joint Discovery Plan was filed on August 24, 2018. (Id. at ¶ 10,
Ex. No. 9). Given that insurance coverage questions are generally
questions of law, the parties did not contemplate conducting any discovery.
(Id. at pgs. 1–2). After the Court’s May 7, 2019 Order, discovery became
necessary and proportional to the needs of this case, and so State Farm
(respectively). (Id. at ¶ 11, Ex. No. 10). The notices were served on July 1,
2019. (Id. at ¶ 12, Ex. No. 11). The depositions were set for August 13 and
14, 2019, in St. Paul, Minnesota. (Id. at ¶ 11, Ex. No. 10, pgs. 1, 3). State
Also, via letter dated July 8, 2019, State Farm advised the Evavolds
about their depositions and provided them with the contact information of
State Farm’s counsel should they have further questions. (Id. at ¶ 14, Ex.
No. 13). On July 17, 2019, Mrs. Evavold emailed State Farm requesting
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¶ 15, Ex. No. 14). On July 22, 2019, State Farm responded to Mrs.
Minnesota. (Id.) State Farm also advised Mrs. Evavold that her deposition
would take a full day; her husband’s deposition would take half-a-day. (Id.).
Amended notices with the updated location were promptly served. (Id. at
State Farm later received a letter via U.S. Mail from Mrs. Evavold
dated August 8, 2019; it received this letter the day before Mrs. Evavold’s
deposition was set to occur. (Id. at ¶ 16, Ex. No. 17). Mrs. Evavold
informed State Farm that neither her nor her husband would be submitting
letter, the Evavolds did not dispute the relevancy or proportionality of their
depositions. (Id.).
Further, because of Mrs. Evavold’s email dated July 17, 2019, State
Farm was under the impression that Mr. Evavold would voluntarily appear
for his deposition, so long as State Farm reasonably accommodated for his
schedule and changed his deposition’s location. (Id. at ¶ 15, Ex. No. 14).
To that end, State Farm did not believe that issuing a subpoena was
necessary to secure his appearance. State Farm now understands that Mr.
Evavold will not voluntarily appear for his deposition. (Id. at ¶ 16, Ex. No.
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17). And so, on September 3, 2019, State Farm issued a subpoena8 to Mr.
Evavold and scheduled his deposition for September 30, 2019. (Id. at ¶ 22,
ARGUMENT
amended to mirror the parallel provision under the Federal Rules of Civil
26(b)(1).9 And so, the current scope of discovery under Minnesota law is
that a party may obtain discovery that is “relevant to any party’s claim or
8
As of the time of this filing, State Farm has exercised reasonable efforts
to try to effectuate service on Mr. Evavold. But, State Farm’s process
server has run into certain issues serving Mr. Evavold at his residence.
(Pham Aff. ¶ 25, Ex. No. 24, pg. 1). State Farm will nonetheless continue
with its efforts to effectuate service on Mr. Evavold and promptly file the
corresponding affidavit of service upon receipt.
9
As further explained in the Advisory Committee Comment (2018
Amendments) to Minn. R. Civ. P. 26.02:
See also McKey v. U.S. Bank Nat’l Ass’n, Civ. No. 17-5058 (JRT/DTS),
2018 WL 3344239, at *1 (D. Minn. July 9, 2018) (recognizing that under
the amended scope of discovery how Rule 26 “‘is to be construed broadly
and thus encompasses ‘any matter that bears on, or that reasonably could
lead to other matters that could bear on, any issues that is or may be in the
case.’”) (citations omitted).
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defense and proportional to the needs of the case[.]” Minn. R. Civ. P.
other things, the burden, expense, benefit, and importance of the discovery
this litigation, the only issue remaining before the Court is whether State
Farm has a duty to defend or indemnify Mrs. Evavold (or anyone else) as
the underlying action. (Pham Aff. ¶ 8, Ex. No. 7, pg. 11). The Court found
that there remains a question of fact whether the false imprisonment claim
against Mrs. Evavold falls into the “personal injury” exclusion outlined in
the PLUP (Id.). The exclusion forecloses coverage for a personal injury
“when the insured acts with specific intent to cause any harm.” (Id. at ¶ 9,
12
To date, Mrs. Evavold has not disputed the relevancy or
how Mrs. Evavold “hiding the kids based on her belief it was necessary for
information into Mrs. Evavold’s intent behind the alleged taking and
concealing Samantha and Gianna for more than two years. (See Pham Aff.
Evavold, State Farm seeks to explore the following topics and allegations:
(1) why she facilitated the taking of Samantha and Gianna; (2) did she
sexually abusing either girl; (3) the facts surrounding the actual process in
taking the girls and concealing them at the White Horse Ranch; (4) the
extent of her communications with the girls while they were at the White
Horse Ranch; (5) how she managed to conceal the girls’ location for over
two years; and (6) what sort of harm she intended to inflict on David and
the two girls. Those topics fall within the scope of discovery. And so,
through examining those topics with Mrs. Evavold, State Farm will be
motion—why and how Mrs. Evavold acted with “specific intent to cause
any harm” to the underlying plaintiffs, and how to that end State Farm
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owes no coverage obligations over the false imprisonment claim under the
PLUP.
Neither Mrs. nor Mr. Evavold have disputed the relevancy or proportionality
information concerning Mrs. Evavold’s intent behind the alleged taking and
concealing Samantha and Gianna; and what harm she intended to inflict
on the underlying plaintiffs. And so, State Farm deposing Mr. Evavold is
State Farm has acted in good faith to attempt to reduce any alleged
scheduled to take one day. The location was changed to be closer to her
would take half-a-day. And, State Farm agreed to move Mr. Evavold’s
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has demonstrated why their depositions are proportional to the needs of
this litigation and it has acted in good faith to reduce any alleged burden or
13, 2019 violated Minn. R. Civ. P. 37, which provides the Court the power
Florence, 181 N.W.2d 873, 876 (Minn. 1970) (“‘[A] lawsuit should be an
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considerations of tactics and surprise.”’) (citations omitted). The Court has
goal. Minnesota Twins P’ship v. State ex rel. Hatch, 592 N.W.2d 847, 850
(Minn. 1999) (“A district court has broad discretion ‘to issue discovery
appear for a properly noticed deposition, the court may make “such orders
The Court should exercise its broad discretion and issue an order
that compels Mrs. Evavold to appear for her deposition. She is a party to
this action. She did not appear for her deposition after being properly
U.S. Mail to inform State Farm that she would not be attending her
deposition. Mrs. Evavold did not articulate how or why her deposition falls
outside the scope of discovery, nor has she sought a protective order in
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moving for protective order, which triggers application of Rule 37.04.10 To
that end, the Court in exercising its broad direction, should issue an order
under Rule 37.04 that compels Mrs. Evavold to appear for a deposition
IV. Given That Mr. Evavold Will not Voluntarily Appear for His
Deposition, State Farm has Issued a Subpoena to Secure his
Appearance.
Even though State Farm initially believed that Mr. Evavold would
voluntarily appear for his deposition, it now appears he will not. To that
Evavold, and set his deposition for September 30, 2019. Even with that
subpoena, State Farm remains concerned that Mr. Evavold will not appear
for his scheduled deposition. Should he fail to comply with the subpoena,
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Rule 37.04 also empowers the Court to award State Farm with
reasonable expenses and attorney’s fees in bringing this Motion to
Compel:
Should the Court grant this Motion, State Farm will file an itemized
statement of expenses and fees within 7 days of the Court filing its order.
17
Failure by any person without adequate excuse to obey a
subpoena served upon that person may be deemed a
contempt of the court on behalf of which the subpoena was
issued. An adequate cause for failure to obey exists when a
subpoena purports to require a non-party to attend or produce
at a place not within the limits provided by Rule 45(c)(1)(B).
To that end, State Farm requests that the Court exercise its
subpoena and appear for his deposition on September 30, 2019, 10:00
Farm’s counsel must promptly advise the Court via telephone or written
correspondence. The Court will then issue a contempt order and compel
Under Rule 16.02, State Farm may seek to modify the Court’s
Scheduling Order “upon a showing of good cause.” And under Minn. Gen.
this Court’s discretion. Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982)
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(recognizing that trial courts have “great discretion to determine the
Here, ample good cause exists for the Court to modify the current
claim has become necessary. State Farm then acted diligently to secure
the Evavolds’ depositions. Not long after the Court issued the May 7, 2019
Order, State Farm served the Evavolds with their deposition notices and
set their depositions for August 13–14, 2019. No dispute exists that the
Evavolds received those notices. Then, on August 12, 2019, State Farm
received (via U.S. Mail) the letter dated August 8, 2019, in which Mrs.
Evavold advised State Farm that neither her nor her husband would
appear for their depositions. One day later, State Farm promptly filed this
pending motion.
12This Court, in its discretion, may even deviate from the Scheduling Order
without State Farm showing good cause:
Consumer Justice Ctr. P.A. v. Trans Union L.L.C., Nos. A05-975, A05-
1433, 2006 WL 920182, at *2 (Minn. Ct. App. Apr. 11, 2006).
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Moreover, State Farm expects that the information learned from the
during those depositions will also ensure productive discussions during the
discovery is entirely fair, just, and produces no harm to any party. To those
ends, State Farm requests that the Court modify the current Scheduling
Order, so that State Farm may depose the Evavolds and later move for
CONCLUSION
requests that the Court issue a directive to Mr. Evavold that he complies
with the issued subpoena, and should he fail to comply, the Court will hold
him in contempt. State Farm further respectfully requests that the Court
Farm may conduct the requested discovery and later move for summary
13
Per the current Scheduling Order, the discovery deadline was
September 4, 2018. The deadline for hearing dispositive motions was
October 4, 2018. Should the Court agree that extending these deadlines is
appropriate, State Farm contends that a teleconference with the Court
about scheduling matters makes the most sense.
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Dated: September 4, 2019 HKM, P.A.
s/ Lehoan T. Pham
C. Todd Koebele, #1728X
Lehoan T. Pham, #0397635
30 East Seventh Street, Suite 3200
St. Paul, MN 55101-4919
Telephone: (651) 227-9411
Fax: (651) 223-5199
tkoebele@hkmlawgroup.com
lpham@hkmlawgroup.com
4818-8373-3410, v. 1
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