5th and Main Condominium Association Inc v. Great American Insurance Company of New York — Motion to Compel Discovery Denied

Jump To

Top Caption Trial Court Document The text of this document was obtained by analyzing a scanned document and may have typos.

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

April 22, 2026 Get Citation Alerts Download PDF Add Note

5th and Main Condominium Association, Inc. v. Great American Insurance Company of New York

District Court, M.D. Tennessee

• Citations: None known
• Docket Number: 3:24-cv-00553

• Precedential Status: Unknown Status

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

5TH AND MAIN CONDOMINIUM )
ASSOCIATION, INC. ) Case No. 3:24-cv-00553
) Judge Trauger
v. ) Magistrate Judge Holmes
)
GREAT AMERICAN INSURANCE )
COMPANY OF NEW YORK )

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff 5th and Main Condominium Association, Inc.’s
motion to compel (Docket No. 40), to which Defendant Great American Insurance Company of
New York responded in opposition (Docket No. 44) and Plaintiff replied in support (Docket No.
45). For the reasons set forth below, Plaintiff’s motion is DENIED.
I. BACKGROUND1
This litigation concerns insurance coverage for a condominium building that sustained
wind damage following a tornado. At issue is whether the insurance policy requires the insurer to
provide coverage for the replacement of only the aluminum panels on the insured’s building that
were damaged during the tornado, or for the replacement of all of the aluminum panels, even those
that were not damaged.
Plaintiff 5th and Main Condominium Association, Inc. commenced this litigation on April
1, 2024 in the Chancery Court for Davidson County, Tennessee against Defendant Great American
Insurance Company of New York, its insurer. (Docket No. 1-2.) On May 3, 2024, Defendant

1 While the Court presumes familiarity with this case, a brief history is recited below to
provide context to and explanation of the Court’s ruling on the instant discovery dispute.
removed the lawsuit to this Court on the basis of diversity jurisdiction pursuant to 28 U.S.C. §
1332 (a)(1). (Docket No. 1.)
In its complaint (Docket No. 1-2), Plaintiff alleges as follows: Plaintiff entered into an
insurance policy issued by Defendant with a policy period of February 25, 2020 to February 25,

1. (Id. at ¶ 8.) The policy provided “coverage to the subject building for any direct physical loss or damage to any Covered Property caused or resulting from any Covered Cause of Loss.” (Id. at ¶ 9.) On March 3, 2020, a tornado damaged the building’s roof and exterior façade, including 562 panels of the Aluminum Composite Material panel system (the “ACM Panel System”). (Id. at ¶¶ 7, 13.) Plaintiff submitted a claim to Defendant for coverage as a result of the tornado damage and Defendant issued payment to Plaintiff in excess of $2,000,000.00. (Id. at ¶¶ 10, 12.) However, Defendant will only cover the costs to replace the 562 individual panels that were damaged and will not cover the costs to replace the entire ACM Panel System. (Id. at ¶ 28.) Replacement of the entire ACM Panel System is recommended by various experts and required under the language of the applicable insurance policy. (Id. at ¶¶ 29–44.)

Accordingly, Plaintiff asserts three claims against Defendants: (1) a declaratory judgment
that Defendant must “provide coverage and payment under the Policy for miscellaneous damage
to various components of the subject building totaling $332,719.01 and to provide coverage and
payment for the full replacement cost of the entire ACM Panel System, estimated to be in excess
of $5,000,000.00”; (2) breach of contract; and (3) statutory bad faith under Tenn. Code Ann. § 56 -
7-105. (Id. at ¶¶ 54–74.) Plaintiff asks the Court to issue a declaratory judgment in its favor and
award it compensatory damages, extra-contractual damages for bad faith, punitive damages,
interest, costs, attorneys’ fees, prejudgment interest, and other relief. (Id. at 11–12.)
In Defendant’s amended answer to the complaint, it largely denies Plaintiff’s allegations
and asserts several affirmative defenses. (Docket No. 36.)
The parties must complete discovery by September 30, 2026 and file dispositive motions
by May 1, 2027. (Docket No. 38.) The trial is set for October 12, 2027. (Docket No. 39.)

On March 2, 2026, Plaintiff filed the instant motion to compel and an accompanying joint
discovery dispute statement. (Docket Nos. 40, 40-1). On March 3, 2026, Judge Trauger referred
the motion to compel to the undersigned for disposition. (Docket No. 41.) On March 5, 2026, the
undersigned ordered the parties to meet and confer in person over their discovery dispute and to
then file joint status report indicating whether and to what extent they resolved their discovery
dispute. (Docket No. 42.) The parties complied with the Court’s order and filed a report on April
20, 2026 indicating that counsel met in person but were not able to resolve the dispute. (Docket
No. 43.) Accordingly, the parties completed briefing on the motion to compel, which is decided as
set forth below.
II. APPLICABLE LAW

The scope and management of discovery are within the sound discretion of the trial court.
In re Flint Water Cases, 960 F.3d 820, 826 (6th Cir. 2020) (quoting Criss v. City of Kent, 867 F.2d
259, 261 (6th Cir. 1988)); see also Crawford-El v. Britton, 523 U.S. 574, 598–99 (1998) (trial
court is afforded broad discretion to control and dictate the sequence of discovery); Marie v.
American Red Cross, 771 F.3d 344, 366 (6th Cir. 2014) (district courts have broad discretion to
manage the discovery process and control their dockets) (internal citations omitted).”[I]n deciding
discovery disputes, a magistrate judge is entitled to that same broad discretion, and [her] order is
overruled only if the district [judge] finds an abuse of discretion.” Spencer v. DTE Elec. Co., No.
15-11421, 2016 WL 8308942, at *2 (E.D. Mich. Mar. 11, 2016).
Generally, parties may obtain discovery “regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P.
26(b)(1).2 Rule 26 of the Federal Rules of Civil Procedure sanctions a broad search and the
information sought by a party need not be admissible to be discoverable. Id. Further, the former

provision for discovery of relevant but inadmissible information that appears “reasonably
calculated to lead to the discovery of admissible evidence” was deleted in the 2015 amendments
to Rule 26 because of the incorrect reliance on that phrase to resist discovery. Instead, the concept
of reasonably calculated to lead to the discovery of admissible evidence was replaced by the direct
statement that information within the scope of relevancy “need not be admissible in evidence to
be discoverable.”
However, the scope of discovery has “ultimate and necessary boundaries.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). It is also “well established that the scope of
discovery is within the sound discretion of the trial court.” In re Flint Water Cases, 960 F.3d 820,
826 (6th Cir. 2020) (quoting Criss v. City of Kent, 867 F.2d 259, 261 (6th Cir. 1988)); see also

Crawford-El v. Britton, 523 U.S. 574, 598–99 (1998) (trial court is afforded broad discretion to
control and dictate the sequence of discovery); Marie v. American Red Cross, 771 F.3d 344, 366 (6th Cir. 2014) (district courts have broad discretion to manage the discovery process and control
their dockets) (internal citations omitted); McNeil v. Cmty. Prob. Servs., LLC, No. 1:18-cv-00033, 2019 WL 5957004, *1 (M.D. Tenn. Oct. 29, 2019) (ultimately, the scope of discovery is within
the broad discretion of the trial court) (internal citations omitted).3 Nevertheless, Fed. R. Civ. P.

2 Unless otherwise noted, all references to rules are to the Federal Rules of Civil Procedure.
3 That sentiment has continued throughout revisions to Fed. R. Civ. P. 26 including the
most recent ones. The Court also possesses inherent authority to manage litigation. As noted by
the First Circuit, “as lawyers became more adept in utilizing the liberalized rules, the bench began
to use its inherent powers to take a more active, hands-on approach to the management of pending
37 authorizes the filing of a motion to compel discovery when a party fails to “answer an
interrogatory” or “produce documents” in response to requests under Fed. R. Civ. P. 33 and 34,
among other failures. Fed. R. Civ. P. 37(a)(3)(B).
III. DISCOVERY AT ISSUE

In its motion, Plaintiff asks the Court to compel Defendant to provide information in
response to two discovery requests that concern exclusionary insurance policy language that is
sometimes referred to as a “mismatch exclusion.”
The first request at issue is Plaintiff’s Interrogatory No. 1 from its second set of
interrogatories, which requests the following:
Please identify whether [Defendant] GAIC has ever drafted, created, approved,
issued, implemented, circulated, or utilized any policy form, endorsement,
exclusion, or other insurance contract language that contains wording identical or
substantially similar to the following exclusionary language:

“We will not pay to repair or replace undamaged material due to
mismatch between undamaged material and new material used to
repair or replace damaged material.”

or

“We do not cover the loss in value to any property due to mismatch
between undamaged material and new material used to repair or
replace damaged material.”

If your answer is yes, please identify for each such form or endorsement:

(a) The form number;
(b) The title;
(c) The date created or first used;
(d) The date withdrawn or last used (if applicable);
(e) Whether the form was filed with any state Department of Insurance
(identify each state); and

litigation.” In re San Juan DuPont Plaza Hotel Fire Litig., 859 F.2d 1007, 1011 (1st Cir. 1988)
(cleaned up). “The judiciary is free, within reason, to exercise this inherent judicial power in
flexible pragmatic ways.” Id. at 1011 n.2 (quoting HMG Prop. Invs., Inc. v. Parque Indus. Rio
Canas, Inc., 847 F. 2d 908, 916 (1st Cir. 1988)) (cleaned up).
(f) Whether the form was used in any policy issued to the Plaintiff or
applicable to the subject property.

(Docket No. 40-1 at 26–27.) The second request at issue is Plaintiff’s Request for Production No.
1 from its second set of requests for production, which is directly related to Interrogatory No. 1.
This discovery request asks Plaintiff to produce “all documents, files, drafts, policies,
endorsements, exclusions, internal memoranda, communications, filings, and other materials” that
relate to any of the forms, endorsements, exclusions, etc. that were identified in response to
Interrogatory No. 1. (Id. at 31.) Defendant responded to both requests by objecting on the bases of
privilege and scope, as well as by stating that it did not issue any policy forms to Plaintiff that
included the quoted language. (Id. at 26–27, 31–32.)
In its motion to compel, Plaintiff argues that it should be able to discover other policies
that have been issued by Defendant that contain language excluding coverage for undamaged
materials for the purposes of matching. (Docket No. 40 at 3.) It argues that its request seeks
information that is both relevant and proportionate to the needs of the case. With respect to
relevancy, Plaintiff states that it is “entitled to know whether [Defendant] provides such
exclusionary language on other forms, endorsements, policies, etc.” (Id. at 6.) It contends that these
other policies are the sort of “extrinsic evidence” that courts often rely on to interpret ambiguous
terms in contract. (Id.) Plaintiff also argues that other insurers have used mismatch exclusions to
“expressly exclude coverage to undamaged material for the purpose of matching,” so evidence of

whether Defendant has these forms will assist the jury in determining Defendant’s intent in
drafting the policy it issued to Plaintiff. (Id. at 6–7.) As for proportionality, Plaintiff asserts that
searching for and producing the requested policies would not be unduly burdensome, particularly
given the amount of money at issue.
In response, Defendant argues that it should not be compelled to produce the requested
information because it is not relevant and because its production would not be proportional to the
needs of the case. (Docket No. 44 at 4–10.) Defendant contends that the only policy at issue in this
litigation is the one that it issued to Plaintiff, which did not contain a mismatch exclusion. (Docket

No. 44 at 3.) Further, Defendant points out that Plaintiff has not identified any ambiguity in the
policy that would merit the discovery of extrinsic evidence. (Id. at 9–10.)
Defendant filed an affidavit from underwriting officer Katie Kazemi in support of its
response to the motion. (Docket No. 44-2.) Ms. Kazemi states that she performed an electronic
search of Defendant’s policy forms database, which revealed no policies with identical or similar
wording to the mismatch exclusions included by Plaintiff in its discovery requests. (Id. at ¶¶ 3–5.)
She also states that “to complete a search inclusive of everything Plaintiff seeks in its Motion to
Compel would be an extensive endeavor.” (Id. at ¶ 6.)
In its reply, Plaintiff contends that discovery of information regarding the “mismatch
exclusion” is relevant because, although the exclusion is not in the policy at issue, Defendant has

essentially read the exclusion into the policy. (Docket No. 45 at 1.) It also argues that Ms. Kazemi’s
declaration shows that Defendant is capable of using search terms to locate any responsive
documents in its database, and offers search term suggestions that would alleviate any potential
undue burden.
The Court has reviewed Plaintiff’s discovery requests and the parties’ arguments and finds
the requested discovery is not relevant. The Court agrees with Defendant that whether it has “ever
drafted, created, approved, issued, implemented, circulated, or utilized any policy form,
endorsement, exclusion, or other insurance contract language” is not an issue before the Court in
this litigation. Instead, the primary issue is whether Defendant is obligated to provide coverage for
replacement of the entire ACM Panel System under the language of the policy issued to Plaintiff.
The Court finds persuasive the reasoning in both Erie Ins. Co. v. Rauser, No. 3:19-cv-
00375-TRM-HBG, 2020 WL 13889466 (E.D. Tenn. Dec. 18, 2020), and First Horizon Nat'l Corp.

v. Houston Cas. Co., No. 2:15-CV-2235-SHL-DKV, 2016 WL 5869580 (W.D. Tenn. Oct. 5,
2016). In Erie, the insured asked the insurer to “identify each ErieSecure Policy and builders’ risk
policy it issued since 2015 for a home under construction on the date of inception of coverage,” 2020 WL 13889466, at *2, and in First Horizon, the insured asked the insurers to produce what
the Court described as “information and documents concerning [the insurers’] treatment of other
insurance claims,” 2016 WL 5869580, at *4. Those courts held that information related to other
insurance claims or policies was not relevant to interpreting the insurance policy at issue in the
lawsuit:
As the [insurers] maintain, the positions they took in other claims depended on the
policy language and the facts of the particular case, which are necessarily different
from the policies and facts of the instant case. Even if the [insurers] have in fact
taken conflicting positions in the past regarding the same terms at issue in this case,
it would not aid the court in interpreting the policy language at issue or in
determining the Defendants' intent in the instant case. Any relevance would be
remote and the discovery requested would amount to nothing more than a fishing
expedition.

First Horizon, 2016 WL 5869580, at *7.
In a similar vein [to First Horizon], the Court finds Plaintiff’s unwritten business
practices not relevant. In fact, Defendants acknowledge that the “central
component” of their claims is “whether Plaintiff and the Third-Party Defendants
issued an improper policy of insurance under the circumstances of this case.” . . .
Thus, the Court finds other instances are not relevant.

Erie, 2020 WL 13889466, at *4.4 Also, as the First Horizon court stated, discovery of information
related other claims or policies is “irrelevant” to a bad faith claim for the same reason that it is
irrelevant to contract interpretation. 2016 WL 5869580, at *7 (“Other bad faith claims ‘involve
circumstances unique to each’ policyholder, such as different facts, different policies, and different
applicable law.”) (citing Connecticut Indem. Co. v. Markman, No. CIV. 93-799, 1993 WL 452104,
at *9 (E.D. Pa. Oct. 28, 1993)).
Here, the Court finds that any policy form, endorsement, exclusion, or other insurance
contract language containing a “mismatch exclusion” that Defendant has included in other policies
for other insureds is not relevant to the key issue in this case, which is, as Plaintiff puts it, whether
“the plain language of the Policy requires [Defendant] to replace damaged ‘Covered Property’
which includes the entire ACM Panel System as broadly defined under the Policy, not limited to
those ACM Panels exhibiting signs of storm damage.” (Docket No. 40 at 2.)
Further, even if this discovery sought was relevant, the Court finds that it is disproportional
to the needs of the case. While the amount of Plaintiff’s alleged damages is significant, the Court
finds that this amount does not outweigh the burden that would be imposed on Defendant in
responding to the requests. This is evidenced in Ms. Kazemi’s declaration, which states that a

4 The Court is not convinced by Plaintiff’s attempt to distinguish Erie by arguing that
Plaintiff has merely requested policy “forms” whereas the insurer in Erie requested the actual
policy. (Docket No. 40 at 9–10.) In its discovery requests, Plaintiff asks Defendant to state
“[w]hether the form was used in any policy issued to the Plaintiff or applicable to the subject
property” and to produce any policies related to those forms. Accordingly, pursuant to the
discovery requests themselves, Plaintiff has, indeed, requested the production of policies in
addition to policy forms.
search of the information requested by Plaintiff “would need to be completed by several . . .
employees over a span of multiple days and weeks.” (Docket No. 44-2 at ¶ 6.) Although the Court
has found document searches of this magnitude to be proportionate in other situations, the amount
of time and cost that this particular search would take is disproportionate to the importance of the

information in resolving the question of whether the subject policy requires Defendant to provide
coverage to Plaintiff for the replacement of the entire panel system or only the damaged panels.
Therefore, under the circumstances of this particular case, allowing Plaintiff to discover
information regarding “mismatch exclusions” from other policy forms, endorsements, exclusions,
or other insurance contract language created by Defendant would result in a fishing expedition
with little or no relevance to the Plaintiff’s request for declaratory judgment or its breach of
contract or bad faith claims. Further, allowing this discovery would be a significant and
disproportionate burden to Defendant. Accordingly, Plaintiff’s motion to compel is denied.
IV. PAYMENT OF EXPENSES
Both parties ask the Court to award them fees under Rule 37(a)(5) either for the grant or

denial of the motion to compel. (Docket No. 40 at 10–12; Docket No. 44 at 10–11.) Under Rule
37(a)(5)(B), the Court must require Plaintiff, its attorney, or both to pay Defendant its reasonable
expenses incurred in opposing the motion, including attorney’s fees, unless the motion was
“substantially justified or other circumstances make an award of expenses unjust.”
“Substantially justified” means “justified to a degree that could satisfy a reasonable
person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The Sixth Circuit has held that a party
meets the “substantially justified” standard if “there is a genuine dispute, or if reasonable people
could differ as to the appropriateness of the contested action.” Doe v. Lexington–Fayette Urban
Co. Gov't, 407 F.3d 755, 765 (6th Cir. 2005) (quoting Pierce, 487 U.S. at 552)). As noted by the
Supreme Court, “the one [connotation] most naturally conveyed by the phrase before us here is
not ‘justified to a high degree,’ but rather ‘justified in substance or in the main’—that is, justified
to a degree that could satisfy a reasonable person.” Pierce, 487 at 565.
Although the Court ultimately was not persuaded by Plaintiffs position, the Court finds
that the position was nevertheless one that a “reasonable person” could have made under the
applicable legal authority and one that was “justified in substance or in the main.” Doe, 407 F.3d
at 765; Pierce, 487 at 565. Accordingly, the Court finds that the motion to compel was
“substantially justified” under Rule 37(a)(5)(B) such that the Court will not require Plaintiff or its
attorneys to pay expenses related to the motion.
V. CONCLUSION
For these reasons, Plaintiff 5th and Main Condominium Association, Inc.’s motion to
compel (Docket No. 40) is DENIED.
It is SO ORDERED.

United States Magistrate Judge

1]