Friday, Aug. 18, 2017 :: workcompcentral.com
Judge Sanctions Applied Underwriters, Orders Attorney to Submit to Deposition
By Emily Brill
A federal judge in Nebraska has approved sanctions against the embattled Berkshire Hathaway affiliate Applied Underwriters for failing to produce documents, fully answer questions and make its attorney available for a deposition during litigation against New Jersey employment agency Tops Personnel.
U.S. Magistrate Judge Cheryl Zwart ordered Applied to answer Tops’ questions fully, give Tops access to emails it requested and, in an unusual move, allow Tops’ attorneys to depose Applied’s attorney, Jeffrey Silver, who is also an executive at the company.
Applied Underwriters sold Tops Personnel a workers’ compensation insurance policy through its EquityComp program, which promised to save small businesses money by adjusting payments based on the number and cost of claims that were filed.
When enrolling in the program, employers sign an insurance contract with an Applied Underwriters affiliate, and a “reinsurance participation agreement” with Applied Underwriters, which governs the terms of the profit-sharing agreement at the heart of the company’s promise to save employers money.
The company has drawn fire for the way its RPA is worded — workers’ compensation consultant James Moore said he was “baffled” when he read it, and “the normal business owner never would have been able to figure it out” — and the fact that Applied Underwriters failed to file the document with state insurance officials.
The EquityComp program also drew fire for hitting employers with steep fees when they canceled their policies. A slew of dissatisfied employers alleged in lawsuits that the program was deceptive and failed to live up to its promise to save them money, often leaving them owing money instead.
Applied has responded by saying its programs save money for certain employers, and the dissatisfied companies faced price hikes only because of their workers’ compensation claims.
Tops Personnel signed an RPA with Applied Underwriters in December 2011. By May 2014, Tops was no longer insured through the EquityComp program. That month, the employment agency signed a document called a “promissory note” indicating that it owed Applied Underwriters $119,645.13. When Tops hadn’t paid by the next year, Applied sued.
Identifying who drew up the promissory note on Applied’s behalf has become a point of contention in the litigation currently playing out in Nebraska federal court.
During the lawsuit’s discovery phase, Tops asked Applied to describe the negotiations that led to the creation of the promissory note. The agency also asked which Applied employees had been involved.
After some back-and-forth, it came out that Silver, Applied’s general counsel, had negotiated the note on behalf of Applied. After this information came to light, Zwart decided to approve Tops’ motion to depose Silver.
Attorneys have to meet a heavy burden of proof in order to depose the opposing counsel, because deposing the opposing counsel can amount to a “harassing practice,” the federal court has held. In order to meet the burden, attorneys must prove that deposing the opposing counsel is the only way to gain relevant, nonprivileged information that is crucial to preparing their case.
In approving the motion, Zwart wrote that court documents filed during the discovery phase “clearly state that Mr. Silver is the only individual who was involved in negotiating the note on behalf of the Applied Underwriters.”
Applied argued that Tops could obtain the same information from deposing Tops’ insurance broker, Ted Juszczak, the other key party involved in the negotiations. But because Juszczak represented Tops in the negotiations, “he is not in possession of the same information known to Mr. Silver,” Zwart wrote.
One of Tops’ attorneys, Ralph Ferrara of the Trenton, New Jersey-based Ferrara Law Group, said that it came as a surprise to learn that Silver was a principal at Applied. Silver is listed as vice president of Applied in Zwart’s order. The company called him their general counsel in a recent press release.
“We found out that he was intimately involved with these negotiations, and we directed discovery toward that issue,” Ferrara said.
Ferrara said it isn’t illegal for Silver to represent Applied in litigation over a note that he was involved in drafting. But there are “conflicts involved,” he said.
Silver did not respond to requests for comment sent via email and left with his assistant on Thursday afternoon. Asked if Applied plans to appeal Zwart’s order or comply with its directives, Rob Stutzman, a public relations consultant working on the company’s behalf, said, “Applied is considering all of its options.”
In addition to compelling Silver to submit to a deposition, Zwart’s order sanctioned Applied for failing to comply with certain discovery requests. Zwart ordered the company to provide Tops’ attorneys with every email related to the note negotiation process. Applied said in court documents that the emails were unnecessary, and the discovery requests amounted to a “fishing expedition.”
“This case is analogous to a well-established football strategy — the best defense is a good offense,” Silver wrote in a court document filed July 7. “Tops has taken that concept to a new level, reflecting a pattern and practice of doing all that it can do to avoid addressing the merits of the lawsuit, which quite simply involve an unpaid promissory note.”
The court has not yet determined the cost of the sanctions, which will be linked to attorney’s fees and expenses. Ferrara estimates it will be about $10,000.
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