The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This case is before the Court on Plaintiff Brenda Burke's motion for
sanctions.*fn1 For the reasons set forth below, the Court finds that
Plaintiff's motion should be granted in part and denied in part.
Plaintiff filed this action against Defendant Prudential Insurance
Company of America alleging that Prudential has denied her the long term
disability benefits that she is entitled to under a policy issued by
Prudential to AON Corporation, Plaintiffs former employer. The disability
policy excludes any disability that is caused even partially by a
psychological problem, except for the first 24 months of disability.
Prudential claims that the 24 month benefit limitation applied to
Plaintiff and that it did not pay Plaintiff beyond the 24 months because
she no longer met the qualifications for benefits under the policy.
On March 12, 2003, Plaintiff propounded discovery requests on
Prudential. Prudential responded on April 23,*fn2 but some of its
responses noted: "Prudential repeatedly requested that Plaintiff pro vide
psychiatric medical records and history and to date, Plaintiff has failed
to comply." (E.g. Prudential Resp. to Interrog. No. 6.)
Prudential also objected to "the form of Interrogatory No. 8 [and 9] in
that Prudential did not deny Plaintiffs claim, rather, Plaintiff's 24
month Initial Duration expired." The text of the disputed interrogatories
will be set forth in the Discussion section below.
On May 21, Plaintiff sent a letter to Prudential detailing the
incompleteness of its responses, and Prudential responded by producing
claim notes entries. Next, and of significance to our analysis, Plaintiff
sent another letter to Prudential seeking more information on June 20.
The letter conceded, with respect to the disagreement over the word
"deny," that "it is clear from the nature of this dispute and the
discovery propounded upon Prudential that the plaintiffs are referring to
Prudential's decision to rely upon the `mental, psychoneurotic or
personality disorder" exclusion, which is clearly set forth in
Prudential's October 18, 2001, letter."
Prudential responded seven days later and produced documents relating
to its policies regarding Social Security benefit offsets. It also
reiterated its position that "Prudential did not deny benefits in this
case, rather, based on Plaintiff's failure to cooperate in producing her
psychological records, Prudential had no other alternative but to
determine that Plaintiff no longer met the qualifications under the
On My 15, 2003, Plaintiff filed motions to extend discovery, to compel,
and for sanctions. The parties appeared before Judge Grady on July
23, 2003, who instructed them to
meet and work out the discovery issues together. After the parties
met in early August, Prudential sent Plaintiff a letter reminding her
that she was supposed to memorialize the substance of their meeting. Two
days later, on August 28, Plaintiff sent an e-mail to Prudential which
reiterated again what discovery was still incomplete. Prudential sent a
letter to Plaintiff informing her that "investigation continues" on
Finally, on October 3, a few days before the parties were scheduled to
appear for status in front of this Court, Prudential further supplemented
its answers to the interrogatories and provided an Affidavit of
Completeness that was (inexplicably) dated September 9.
This Court heard oral argument on the motion for sanctions (the motion
to extend discovery having been granted and the motion to compel having
been terminated as moot). The parties were given the opportunity to
additionally brief this issue after the oral argument and have provided
Plaintiff asks this Court for sanctions against Prudential for its
failure to respond to discovery which necessitated the motion to compel.
Pursuant to Federal Rule of Civil Procedure 37(a)(4)(A), if a motion to
compel is granted, or the nonmoving party produces the information sought
after the motion to compel is filed, the moving party may be awarded
reasonable expenses, including attorney's fees, incurred in bringing the
motion. The motion for sanctions will be granted unless the moving party
failed to make a good faith effort to obtain the information without
court action. Fed.R.Civ.P. 37(a)(4)(A). The nonmoving party may also
avoid the sanctions if its position was "substantially justified, or that
other circumstances make
an award of expenses unjust." Fed.R.Civ.P. 37(a)(4)(A); see
also Rickels v. City of South Bend, 33 F.3d 785, 787 (7th Cir. 1985)
(noting that Rule 37(a)(4) is a fee-shifting rule and the victor is
entitled to fees and expenses). If the motion to compel is granted in
part and denied in part, the court may apportion the reasonable expenses
in a just manner. Fed.R.Civ.P. 37(a)(4)(C).
The non-moving party cannot avoid sanctions by producing the
information after the motion to compel is filed. Illinois Tool Works,
Inc. v. Metro Mark Prods., Ltd., 43 F. Supp.2d 951, 960 (N.D. Ill.
1999). Instead, it bears the burden of proving that its initial position
was substantially justified. Rickels, 33 F.3d at 787. If the
nonmoving party cannot show this, then the moving party is entitled to
reasonable incurred costs and fees that were the product of the nonmoving
party's failure to provide the requested information and the resulting
motion practice. Illinois Tool Works, 43 F. Supp.2d at 962.
We first note that Plaintiff made the requisite good faith effort to
resolve the discovery disputes without court intervention. She sent
various letters detailing what she believed was inadequate about
Prudential's answers to the interrogatories. We agree with Plaintiff that
Prudential's dispute over Plaintiffs use of the word "denial" was merely
a question of semantics. This Court agrees with Plaintiff that where an
insurance company fails to pay that which a claimant requests, it has
denied a claim. And, if there is any legal significance of this ...