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Travelers Casualty and Surety Co. v. Ribi Immunochen Research3/1/2005
have been so materially affected as to allow a possible miscarriage of justice. In re H.D., 256 Mont. at 77, 844 P.2d at 119. A court may award costs under Rule 37(a)(4), M.R.Civ.P., for expenses incurred in relation to litigating motions for a protective order. If the motion is denied, the court shall require the moving party to pay the opposing party "the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified . . . ." Rule 37(a)(4), M.R.Civ.P.
We agree with the District Court that Ribi should have been allowed to discover the drafting history of the CGL policy's pollution exclusion and that Travelers, as the party seeking protection, failed to show good cause for its omission. Although the issues were ultimately adjudged in its favor, Travelers was not substantially justified seeking a protective order at the time due to the substantial case law relying on the drafting history in interpreting the "sudden and accidental" clause and its potential relevancy in aiding the court's determination. See, e.g., Textron v. Aetna Cas. & Sur. Co. (R.I. 2000), 754 A.2d 742, 751 (holding that the drafting history of the "sudden and accidental" exception to the pollution exclusion clause of a CGL policy facilitated an interpretation of "sudden" to include unexpected); Nestle Food Corp. v. Aetna Cas. & Sur. Co. (D. N.J. 1990) 135 F.R.D. 101, 104-105 (holding that the drafting history of operative language from a general liability policy is discoverable when ambiguity in policy has not been resolved); Morton Intern, Inc. v. General Acc. Ins. Co. of America (N.J. 1993), 629 A.2d 831, 847-48 (holding that the pollution exclusion's drafting and regulatory history enhanced a fuller understanding of the meaning of its terms). Further, the District Court found Travelers's systematic obstruction during discovery "clearly and unequivocally stonewalling," and intentionally sought to prevent the discovery of potentially relevant material.
The record reveals the District Court administered the discovery process fairly. Thus, we conclude that the District Court exercised appropriate discretion in controlling discovery and did not violate Travelers's rights in compelling discovery and awarding fees. In re H.D., 256 Mont. at 77, 844 P.2d at 119.
For the foregoing reasons, we affirm the District Court.
BRIAN MORRIS
We Concur:
KARLA M. GRAY
W. WILLIAM LEAPHART
JAMES C. NELSON
JOHN WARNER
PATRICIA O. COTTER
JIM RICE
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