RYAN WILLIAMS, Plaintiff, v. CONDENSED CURRICULUM INTERNATIONAL, Defendant Case No. 20-cv-05292-YGR (RMI) United States District Court, N.D. California Filed August 23, 2021 Counsel Diyari Vazquez, Alexander Robert Safyan, VGC, LLP, Santa Monica, CA, for Plaintiff. Brendan Yeats Joy, Nicole Kamm, Fisher & Phillips LLP, Los Angeles, CA, for Defendant. Wang, Nina Y., United States Magistrate Judge ORDER REGARDING MOTION TO LIMIT DISCOVERY *1 Pending before the court is Plaintiff's Motion to Limit Discovery [#31, filed June 3, 2021],[1] which was referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated February 5, 2021 [#17], and the Memorandum dated June 3, 2021 [#32]. This court heard limited argument regarding this issue during the Scheduling Conference [#21]; reviewed the briefing on the issue [#32, #38, #39]; and considered the applicable legal authority. Upon consideration, this court finds that additional oral argument will not materially assist in the determination of this matter and respectfully DENIES the Motion to Limit Discovery. BACKGROUND The following facts are drawn from the record before this court. This case arises from the untimely death of Sarah Rowell (“Ms. Rowell” or “Insured”). [#4]. Effective January 6, 2019, Defendant The Northwestern Mutual Life Insurance Company (“Defendant” or “Northwestern”) issued a 20 Year Level Term Life Insurance Police (No. 22 805 974) (the “Policy”) with a total benefit of $400,000 to Ms. Rowell. [Id. at ¶¶ 9-10]. Ms. Rowell designated Plaintiff Andrew Rowell (“Plaintiff” or “Mr. Rowell”) as the beneficiary of that Policy. [Id. at ¶ 12]. The Policy was in full force and effect on April 24, 2019. [Id. at ¶ 13]. The Policy provides that Northwestern will pay the life insurance benefit after proof of death of the Insured and that such payment will be made to the beneficiary, Mr. Rowell. [Id. at 16 § 1.1]. It also contains an exclusion that reads, in full: “[i]f the Insured dies by suicide within one year from the Date of Issue, the amount payable by the Company will be limited to the premiums paid.” [Id. at § 1.5]. On April 24, 2019, Ms. Rowell died of a self-inflicted gunshot wound. [Id. at ¶ 14]. Post-mortem samples from Ms. Rowell indicated elevated blood alcohol levels indicating alcohol intoxication. [Id. at ¶ 16]. In addition, post-mortem drug screens were positive for oxycodone, oxymorphone, and THC-COOH. [Id. at ¶ 18]. The Medical Examiner's Report listed her cause of death as suicide. [#31-1 at 1]. After Ms. Rowell's death, Mr. Rowell filed a claim for life insurance benefits with Defendant. [#4 at ¶ 1]. Based on the Medical Examiner's Report, Northwestern denied the claim, invoking the Policy language limiting benefits for suicide within one year of the Date of Issue. [#31-1]. On January 13, 2021, Mr. Rowell filed this instant action, alleging two causes of action: (1) breach of contract; and (2) bad faith breach of contract. [#4]. As to his breach of contract claim, Mr. Rowell forwards one theory: the combination of alcohol, marijuana, and oxycodone/oxymorphone in Ms. Rowell's system would have impaired her to such a state that she could not have the mens rea needed to intentionally kill herself. [Id. at ¶¶ 14-24]. In forwarding this theory, Plaintiff cites the Colorado Supreme Court case of Renfandt v. N.Y. Life Ins. Co., 419 P.2d 576 (Colo. 2018). *2 Northwestern removed this action to federal District Court on January 13, 2021. [#1]. Defendant answered on January 20, 2021 [#12]. As part of that Answer, Defendant argued that “Plaintiff's claims are limited or barred by the provisions of the Policy, including Section 1.5 Suicide, which states: “If the Insured dies by suicide within one year from the Date of Issue, the amount payable by the Company will be limited to the premium paid.” [Id. at 5]. Northwestern also argued that Plaintiff's claim for exemplary damages was barred by C.R.S. § 13-21-102(1.5)(a).[2] [Id.]. The Parties appeared before this court on April 12, 2021 for a Scheduling Conference, during which the Parties first raised the issue of limitations on discovery. As reflected by the entered Scheduling Order, Plaintiff objected to any depositions to discover facts that could have, and should have, been learned during the adjustment of Mr. Rowell's claim. [#22 at 9-10]. Plaintiff also objected to any “depositions that attempt to discover facts related to Sarah Rowell's mental state prior to the time of her passing, as the only question regarding her mental state is whether she was (at the time of the event) too impaired to understand the physical nature and consequences of her act.” [Id. at 9]. Northwestern disagreed as to both points. This court set a Telephonic Discovery Dispute Conference for May 20, 2021 to discuss. [#21]. On May 20, 2021, the Parties appeared before the court to discuss certain issues, including discovery of Ms. Rowell's friends, family and psychiatrist to inquire about her state of being in the time period leading up to her death and the designation of experts with respect to toxicology and psychiatry. [#26]. After argument by the Parties, this court found that Plaintiff's concerns were more directed at admissibility than discoverability, and advised that if Plaintiff sought to preclude discovery at this juncture, he should do so through formal motion. This instant Motion followed. LEGAL STANDARDS[3] I. Rule 26(b)(1) of the Federal Rules of Civil Procedure Rule 26(b)(1) of the Federal Rules of Civil Procedure defines the scope of permissible discovery in this action. Fed. R. Civ. P. 26(b)(1). The Rule permits discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Id. This scope for discovery does not include all information “reasonably calculated to lead to admissible evidence.” The amendments to Rule 26, effective December 1, 2015, purposefully removed that phrase. See Advisory Committee Notes to 2015 Amendments to Rule 26(b)(1) (“The former provision for discovery of relevant but inadmissible information that appears ‘reasonably calculated to lead to the discovery of admissible evidence’ is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery.”); In re Bard Filters Prods. Liability Litig., 317 F.R.D. 562, 563 (D. Ariz. 2016). As explained by the Bard court, the Advisory Committee on the Federal Rules of Civil Procedure was concerned that the phrase had been used incorrectly by parties and courts to define the scope of discovery, which “might swallow any other limitation on the scope of discovery.” Bard, 317 F.R.D. at 563 (citing Fed. R. Civ. P. 26 Advisory Committee Notes to 2015 Amendment). The applicable test is whether the evidence sought is relevant to any party's claim or defense, and proportional to the needs of the case. Fed. R. Civ. P. 26. Rule 401 of the Federal Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Fed. R. Evid. 401. In defining the scope of appropriate discovery, the Parties and the court are directed to consider the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). II. Breach of Contract *3 Defendant invoked this court's jurisdiction based on diversity jurisdiction under 28 U.S.C. § 1332. [#1 at ¶ 2]. Accordingly, the court applies Colorado substantive law[4] and federal procedural law. See Racher v. Westlake Nursing Home Ltd. P'ship, 871 F.3d 1152, 1162 (10th Cir. 2017) (“In diversity cases, the Erie doctrine instructs that federal courts must apply state substantive law and federal procedural law.”); Fed. R. Civ. P. 1 (“These rules govern the procedure in all civil actions and proceedings in the United States district courts”). The elements of a breach of contract claim under Colorado law are: (1) the existence of a contract; (2) performance by the plaintiff or some justification for nonperformance; (3) failure to perform the contract by the defendant; and (4) resulting damages to the plaintiff. PayoutOne v. Coral Mortg. Bankers, 602 F. Supp. 2d 1219, 1224 (D. Colo. 2009) (citing W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992)). Generally, the burden falls upon the plaintiff to prove breach of contract. Harper v. Mancos Sch. Dist. RE-6, 837 F. Supp. 2d 1211, 1217 (D. Colo. 2011). However, in insurance coverage disputes, “the insurer has the burden of proving that the facts fall within the policy's exclusions.” Praetorian Ins. Co. v. Axia Contracting, LLC, 488 F. Supp. 3d 1042, 1049 (D. Colo. 2020) (citing Rivelli v. Twin City Fire Ins. Co., 359 F. App'x 1, 4 (10th Cir. 2009) (unpublished); RK Mech., Inc. v. Travelers Prop. Cas. Co. of Am., 944 F. Supp. 2d 1013, 1020 (D. Colo. 2011) (“When an insurance company seeks to limit or exclude coverage under the terms of an insurance policy, the insurer bears the burden of proving that a particular loss falls within an exclusion in the contract.”)). III. Renfandt v. New York Life Insurance Company In Renfandt, this District Court certified, and the Colorado Supreme Court accepted, two questions for resolution: Under Colorado law, does a life insurance policy's exclusion for “suicide, sane or insane” exclude coverage (1) for all acts of self-destruction without regard to the insured's intent or understanding of the nature and consequences of his/her actions or (2) for only acts of self-destruction committed when the insured intends to take his/her own life or understands the nature and consequences of his/her actions? Renfandt, 419 P.3d at 578. The facts in Renfandt share commonalities, but are not identical, to the circumstances in this action. In that case, the decedent had a life insurance policy that contained a provision excluding coverage for “suicide of intentionally self-inflicted injury ... while sane or instane.” Id. A month after purchasing such policy, the decedent, Mark Renfandt (“Mr. Renfandt”) returned home after a night of drinking, at which time his wife (“Ms. Renfandt”) observed him “sleepwalking, zombie-like, with a blank, glazed-over look in his eyes.” Id. at 579. Immediately prior to his self-inflicted gunshot wound, she again observed Mr. Renfandt staring “blankly ahead, completely unresponsive and appearing to be in a sleepwalking state, unaware of his surroundings or actions.” Id. The coroner's death certificate listed the manner of death as suicide. Id. A toxicology report showed his blood-alcohol content as 0.325%, id., and the Colorado Supreme Court noted that “[a]ccording to the National Institute of Health, a BAC between 0.31% and 0.45% is considered “life threatening,” and can cause “loss of consciousness, danger of life-threatening alcohol poisoning, [and] significant risk of death in most drinkers due to suppression of vital life functions.” Id. at n.1 (citing National Institute on Alcohol Abuse and Alcoholism, “Alcohol Overdose: The Dangers of Drinking too Much,” https://pubs.niaaa.nih.gov/publications/AlcoholOverdoseFactsheet/Overdosefact.htm)). Id. The toxicology report also reflected that Mr. Renfandt had clonazepam[5] and marijuana in his system and contained an annotation of “BAC: coma, alcohol poisoning.” Id. After Ms. Renfandt submitted a claim for benefits that was denied based on the policy exclusion, she brought an action for breach of contract; breach of the duty of good faith and fair dealing; and unjust enrichment. Id. at 577; Renfandt v. N.Y. Life Ins. Co., Case No. 16-cv-01812-MSK-GPG, ECF No. 3. *4 In determining the two certified questions, the Colorado Supreme Court extensively considered the history and development of the interpretation of suicide and suicide exclusion clauses in life insurance policies. Beginning with felonious suicide under English common law, the Supreme Court observed that “suicide,” from a criminal perspective, required both the deliberate act of ending one's own life and the mens rea, i.e., the understanding of the moral character of the act of self-destruction. Renfandt, 419 F.3d at 580. But when interpreting suicide exclusion clauses in insurance policies, the majority of English judges interpreted such exclusion to only require proof of an act of self-destruction, with no requirement to understand the moral character of such act. Id. at 582. When the same issue reached American courts, the United States Supreme Court followed the approach that encompassed criminal law principles, holding that an insurance policy exclusion deeming the policy void if the insured “shall die by his own hand,” did not apply if the “death occurs when the insured's ‘reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences, and effect’ of his act of intentional self-destruction.” Id. (citing Mutual Life Ins. Co. v. Terry, 82 U.S. 580, 590-91 (1873)). From Terry, the Colorado Supreme Court drew two applicable tenets: (1) “suicide” requires a “voluntary and intentional act of self destruction;” and (2) a person's state of mind can impact whether an act of self-destruction constitutes “suicide” by preventing him from understanding the moral nature of his act of self-destruction; by rendering him unable to understand even the physical nature and consequences of his act such that he lacks the intent to kill himself; or creating in him such an irresistible impulse compelling him to kill himself, thus negating the voluntary nature of the act. Id. at 583 (quotation marks and citations omitted). Under Colorado law, the Renfandt Court interpreted the policy exclusion at issue, i.e., “suicide ... while sane or insane,” to require the insurer to show that the decedent, while sane or insane, committed an act of self-destruction with the intent to kill himself. Id. at 584-85. “Put differently, if the insured—whether he was sane or insane—did not understand the physical nature and consequences of the act, then he did not intentionally kill himself. In that event, there is simply no ‘suicide.’ ” Id. at 586. The Colorado Supreme Court further held that its interpretation of “suicide” comported with Colo. Rev. Stat. § 10-7-109, which provides that the suicide of a policyholder within the first policy year could be a valid defense against the payment of a life insurance policy to protect against fraud by persons who purchase life insurance policies when they intend to kill themselves. Id. In so ruling, the Colorado Supreme Court did not pass on whether Mr. Renfandt had, or had not, committed suicide. See generally Renfandt, 419 P.3d at 576. Nor did it answer the question of whether Mr. Renfandt, given his state of intoxication, could or could not form the requisite intent to kill himself. Id. Rather, it answered the question of whether an insurer could avail itself of a suicide exclusion simply by proving the insured's death resulted from an act of self-destruction with a “no.” Nor did this District answer these questions. Ultimately, within four months of the Colorado Supreme Court's resolution of the certified questions, the parties in Renfandt settled the case and voluntarily dismissed the action. Renfandt v. N.Y. Life Ins. Co., Case No. 16-cv-01812-MSK-GPG, ECF Nos. 60, 61, 62. ANALYSIS Applying the principles of Renfandt to the question of discovery in this action, this court concludes that it is not proper to limit Northwestern from seeking discovery regarding Ms. Rowell's death for the following reasons. I. Is Northwestern Precluded From Discovery On Issues It Did Not Investigate Prior to Denying Benefits? First, Mr. Rowell contends that “[n]owhere in its appeal denial letter did Northwestern address the toxicology report, the forensic toxicology analysis, or the medical literature that [he] submitted with his appeal [of the denial of benefits],” and therefore, Northwestern should be precluded from any further investigation through discovery. [#31 at 4-5]. He argues that all insurers are required to act in good faith and must fully investigate before denying a claim, and thus, Northwestern is “not entitled to create new evidence in order to try to support its earlier coverage decision,” but must only be evaluated based on evidence before it when it made its coverage decision. [Id. at 8]. Plaintiff relies on Schultz v. GEICO Casualty Co., 429 P.3d 844, 847 (Colo. 2018). [Id.]. In Schultz, the plaintiff had been paid full policy limits and brought an action only asseting claims for bad faith breach of insurance contract and statutory bad faith for the unreasonable delay in payment of covered benefits. 429 P.3d at 846. The Colorado Supreme Court considered whether the plaintiff was properly subject to an independent medical examination, over her objection, and held that: *5 the reasonableness of an insurer's decision to deny or delay benefits to its insured must be evaluated based on the information that was before the insurer at the time it made its coverage decision. The question thus becomes whether GEICO's requested IME could provide information that is somehow relevant to the decision that it made over a year ago to pay Schultz the limits of her UM/UIM coverage. For two reasons, we conclude that it cannot. Id. at 848-49 (emphasis added). Here, Northwestern has not conceded that Ms. Rowell's death was not a suicide and there remains a breach of contract claim as to those benefits. Unlike Mr. Rowell's second cause of action for bad faith breach of an insurance contract, the question of reasonableness is not an element of a breach of contract claim, or more importantly in this case, whether the suicide policy limitation applies. Thus, as it and other courts have found before, an insurer's failure to seek certain information during the adjustment of a claim does not necessarily form a bar to further discovery once litigation commences for breach of contract. See Curtis Park Grp., LLC v. Allied World Specialty Ins. Co., No. 20-cv-00552-CMA-NRN, 2020 WL 5406130, at *5 (D. Colo. Sept. 9, 2020) (finding Schultz inapposite in a case where there was still an underlying question as to whether there is coverage for the loss under the policy); Anchondo-Galaviz v. State Farm Mut. Auto. Ins. Co., No. 18-cv-01322-JLK-NYW, 2019 WL 11868519, at *10 (D. Colo. July 19, 2019) (citing Morrison v. Chartis Prop. Cas., Co., No. 13-cv-116-JED-PJC, 2014 WL 1323743, at *2 (N.D. Okla. Apr. 1, 2014)); Ligotti v. Provident Life & Cas. Ins. Co., 857 F. Supp. 2d 307, 318-19 (W.D.N.Y. 2011)) (same). See also Palmer v. Owners Ins. Co., No. 18-cv-01953-JLK, 2019 WL 7290935, at *2 (D. Colo. Nov. 6, 2019) (distinguishing Schultz and denying a motion in limine seeking to bar expert testimony based on evidence that existed before the insurer made its decision). Indeed, Plaintiff cites no authority, and this court did not independently find any, that suggests that Schultz has been applied by any court to preclude discovery when an underlying breach of contract claim remains at issue in the litigation. II. Does Renfandt Preclude the Discovery Sought by Northwestern? Mr. Rowell also argues that only evidence relating to Ms. Rowell's intoxication is relevant in this action, because Ms. Rowell's past medical or psychiatric history cannot make the effect of her intoxication at the time of her death any more or less probable. [#31 at 9-11]. Mr. Rowell concedes that if Ms. Rowell was not “too intoxicated” at the time of her death to understand the nature and consequences of her act, then there was a “suicide” for the purposes of her life insurance policy. [Id. at 11]. Northwestern disagrees, arguing that it seeks information regarding Ms. Rowell's history of alcohol abuse, mental health history, and information from Donald and Mary Rowell (the last adults known to have been in Ms. Rowell's presence before her death), which all go to her intent at the time of her death. [#38 at 14]. This court begins by noting an uncontested legal principle—that the burden lies with Northwestern to establish that the policy limitation applies. [#31 at 10]. Because there is no dispute that Ms. Rowell died by a self-inflicted gunshot wound, the relevant inquiry in this case is whether she voluntarily and intentionally killed herself. Mr. Rowell contends that given Ms. Rowell's physical state, she could not have formed the requisite intent to kill herself at the precise moment of her death as established solely by the level of chemicals found in her system. But as the party who carries the burden, Northwestern is not necessarily confined to that theory. Indeed, given Ms. Rowell's unfortunate unavailability to testify about her state of mind at the time of her death, Northwestern must necessarily rely upon other sources of information in an attempt to establish that she intentionally engaged in an act of self-destruction, such as her prior medical and psychological records or testimony from individuals who encountered her. This court finds that the state of Ms. Rowell's physical and/or mental health leading up to her death may likely make it more probable than not that she intentionally killed herself, so that such discovery is relevant and proportionate to the needs of the case. *6 Even focusing upon the chemical aspects of intoxication, this court notes that it is well-understood that intoxicants impair individuals in different ways. Prior medical records could elucidate whether that amount of chemicals would have actually impaired Ms. Rowell based on any type of developed tolerance or intolerance. Cf. Rosales v. Milyard, No. 10-cv-03101-CMA, 2013 WL 1302657, at *15 (D. Colo. Mar. 29, 2013) (recounting expert testimony regarding the impact of a blood alcohol analysis upon the ability or inability to form the required specific intent). It is also clear that even experts have differing opinions as to the impact of intoxicants on individuals. Cf. United States v. Cope, No. 11-cr-00106-JRT, 2011 WL 2491283, at *4 (D. Colo. June 17, 2011), aff'd, 676 F.3d 1219 (10th Cir. 2012). Thus, it may be appropriate for the factfinder to consider other evidence, apart from toxicology and related expert testimony, to determine Ms. Rowell's intent. For instance, in recounting the facts in Renfandt, the Colorado Supreme Court noted Ms. Renfandt's observations that Mr. Renfandt appeared to be in a “sleep-walking” or “zombie-like” state. Renfandt, 419 P.3d 579. As applied here, the testimony of Donald and Mary Rowell may very well reinforce Plaintiff's theory that Ms. Rowell was in such an impaired state that she could not have formed the requisite intent to engage in a voluntary and intentional act of self-destruction, or it could cast doubt on such a theory. Nor does this court find that the discovery, as generally described, is overly burdensome or not proportional to the needs of the case. Though this court recognizes the inherent difficulty for Plaintiff and other witnesses arising from the potential substance of the discovery sought, this court cannot conclude that it is sought for harassment or any other improper purpose. To the extent that Plaintiff has specific concerns regarding the discovery propounded by Defendant, see e.g. [#31-6], it is more appropriate for the court to consider specific objections through its ordinary discovery dispute procedures once the Parties engage in a robust meet and confer, given the differing nature and scope of the different requests. In so ruling, this court again affirms that discovery is different than admissibility. Rule 26(b)(1) expressly acknowledges that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1); see e.g., Cribari v. Allstate Fire & Cas. Ins. Co., No. 16-cv-02450-NRN, 2018 WL 7892719, at *3 (D. Colo. Sept. 13, 2018). And this court does not pass on admissibility of any discovered information at this juncture. CONCLUSION For the reasons set forth herein, IT IS ORDERED that: (1) Plaintiff's Motion to Limit Discovery [#31] is DENIED. Footnotes [1] This court uses the convention of [#___] to refer to filings on the court's Electronic Court Filing (“ECF”) System in this action. When referring to docket entries in other cases filed in the United States District Court for the District of Colorado, the court uses the convention [ECF No. ___]. [2] Colo. Rev. Stat. § 13-21-102(1.5)(a) bars a claim for exemplary damages to be included in any initial claim for relief. [3] Though Northwestern invokes Rule 12(c) of the Federal Rules of Civil Procedure, this court finds that Rule inapt as neither Party has moved for judgment on the pleadings. Accordingly, this court does not include the standard for Rule 12(c), nor does it proceed with any Rule 12(c) analysis. [4] Neither side argues for application of another state's substantive law, nor does the Policy seem to include a forum selection clause identifying a different state's substantive law. [#39-1]. [5] Clonazepam is a drug within the class of benzodiazepines that are widely prescribed for a variety of conditions, particularly anxiety and insomnia. Lance P. Longo, M.D. and Brian Johnson, Am Fam Physician. 2000 Apr 1;61(7):2121-2128.