a defendant insurance company risks being prejudiced if an insured is permitted to try its bad faith claims to a jury along with the underlying coverage issues. See O'Malley, 776 F.2d at 501 (affirming district court's bifurcation of trial "to avoid prejudice" that would result if coverage and bad-faith issues tried together); Aetna Cas. & Sur. Co. v. Nationwide Mut. Ins. Co., 734 F. Supp. 204, 208 (W.D. Pa. 1989) (district court ordered trial bifurcated "because of the substantial risk of prejudice to [the defendant insurer] from joining the coverage and bad faith issues").
Finally, Travelers argues that resolving Travelers' affirmative defenses prior to trying ARC's bad-faith claims would be less burdensome for the Court, for the parties, and for the witnesses, and that bifurcating the issues would minimize the likelihood of jury confusion. The excess insurers agree that bifurcating the trial would surely be less burdensome on them; since the excess insurers share Travelers' affirmative defenses, and since plaintiff has not brought a bad faith claim against them, the excess insurers play a part only in the affirmative defenses portion of this case.
Plaintiff disputes Travelers' initial contention that bifurcating the trial would dispose of its bad faith claim, if a jury were to find in Travelers' favor on its affirmative defenses. ARC contends that even if Travelers were to prevail on one or more of its affirmative defenses, a jury could still find that Travelers acted in bad faith when it refused to defend ARC against contaminated-blood claims, since an insurer's duty to defend is broader than its duty to indemnify. See Berkeley v. Home Ins. Co., 68 F.3d 1409, 1418 (D.C. Cir. 1995).
ARC also disputes Travelers' assertion that bifurcating the trial would be unduly prejudicial to defendants; it argues that courts "routinely" try bad faith claims together with coverage claims. See McLaughlin v. State Farm Mut. Auto. Ins. Co., 30 F.3d 861, 870-71 (7th Cir. 1994) (finding that the district court did not abuse its discretion in denying defendant's motion to bifurcate the trial into separate trials on compensatory and punitive damages issues).
ARC further contends that whatever clarity could be gained from bifurcating the trial would be far outweighed by the duplication of testimony and evidence that would result therefrom. ARC argues that Travelers' motion to bifurcate the trial excluded reference to an important aspect of the trial: namely, ARC's assertions that Travelers waived, or is estopped from asserting, its affirmative defenses. ARC contends that the waiver and estoppel issues overlap with both Travelers' affirmative defenses and ARC's bad-faith claim, and therefore bifurcation would invite submission of the same evidence and testimony at least twice. Such duplication of evidence, ARC argues, would not reduce the complexity of the case, but would only confuse a jury further.
The excess insurers and Travelers apparently disagree on how to address ARC's waiver and estoppel claims in the course of a bifurcated trial. Travelers states in its reply brief that a trial on Travelers' affirmative defenses "would also resolve ARC's waiver and estoppel defense." Def.'s Reply at 10 n.9, 13.
In their joint reply brief, defendants Granite State, Lexington, Dairyland, and Sentry argue that ARC's waiver and estoppel claims "solely relate to the alleged conduct of Travelers and its relationship with the Red Cross," and that "the same evidence and witnesses are pertinent to the Red Cross' waiver/estoppel and bad faith claims." Excess Ins. Defs.' Reply at 2. The excess insurers argue, unlike Travelers, that since the common affirmative defenses are the only issues shared by Travelers and the excess insurers, the affirmative defenses should be "the sole issues tried" in the first portion of a bifurcated trial. Id.
The Court recognizes the possibility that certain evidence may be presented more than once, and certain witnesses may have to testify more than once, if proceedings in this case were to take place in separate trials on the coverage and potential punitive damages issues. The Court is persuaded, however, by the excess insurers' contention that, since the excess insurers only play one part in this trial, considerations of fairness and efficiency militate toward allowing trial of that one part before continuing on. In addition, the Court cannot disregard the defendants' assertion that trial of the defendants' affirmative defenses along with ARC's bad faith claims could subject defendants to undue prejudice.
Accordingly, the Court will bifurcate the trial. It will not conduct separate proceedings before separate juries, but it will conduct trial before one jury in two phases. The first phase will address the defendants' affirmative defenses; the second phase will address ARC's waiver and estoppel claims and ARC's bad faith claims against Travelers. See Laitram Corp. v. Hewlett-Packard Co., 791 F. Supp. 113, 117 (E.D. La. 1992) (denying defendant's motion to fully bifurcate the trial, but ordering that trial would proceed in three separate phases: liability, compensatory damages, and punitive damages).
Dividing trial into two segments will not invite unduly duplicative evidence and testimony, since the phases of trial will deal, for the most part, with separate time frames: the first phase encompasses approximately the years 1982 through 1985, and the second encompasses approximately the years 1985 through 1991. While bifurcating the trial in this fashion does not erase the apparent disagreement between Travelers and the excess defendants regarding the proper treatment of ARC's waiver and estoppel claims, Travelers itself at one point characterized ARC's estoppel claims as being interwoven with ARC's bad faith claims. See supra note 6.
The Court does not intend this Opinion to state that evidence of Travelers' alleged bad faith automatically will be submitted to the jury for their consideration of punitive damages. While a verdict for ARC on defendants' affirmative defenses may justify an award of compensatory damages, ARC's bare assertion of bad faith does not, in and of itself, justify sending the punitive damages issue to the jury as well. See Oulds v. Principal Mut. Life Ins. Co., 6 F.3d 1431, 1436-37 (10th Cir. 1993) ("The mere allegation that an insurer breached the duty of good faith and fair dealing does not automatically entitle a litigant to submit the issue to a jury for determination . . . . Until the facts . . . have established what might reasonably be conceived as tortious conduct on the part of the insurer, the legal gate to submission of the issue to the jury remains closed") (citations omitted). See also Washington v. GEICO, 769 F. Supp. 383, 388 (D.D.C. 1991) (punitive damages only available in breach of contract action "where a breach of contract merges with and assumes the character of a wilful [sic ] tort, calculated rather than inadvertent, flagrant, and in disregard of obligations of trust . . . .") (citing Central Armature Works v. Am. Motorists Ins. Co., 520 F. Supp. 283, 292 (D.D.C. 1980)).
Finally, as noted above, ARC contends that even if Travelers successfully asserts its affirmative defenses to coverage (and, assumedly, if the jury also finds that Travelers is not estopped from asserting those defenses), ARC still may present evidence to support a punitive damages claim, based on Travelers' refusal to defend ARC. This argument appears to be fully foreclosed by the Court's Opinion in ARC II.7 If the above-described circumstances come to pass, however, the Court will hear argument at that time on the continued viability of ARC's punitive damages claim.
A trial date has not yet been set in this case. The Court requests that, in lieu of a formal status hearing, ARC and Travelers confer and, after conferring as well with the excess insurer defendants, jointly submit to the Court a proposed date or dates for trial in either late September 1996 or November 1996. (The joint submission should also indicate how long the parties anticipate the trial will last.)
An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: MAY 1 1996
In accordance with the accompanying Opinion, it hereby is
ORDERED, that defendant Travelers' motion to bifurcate trial is granted. It hereby further is
ORDERED, that trial shall proceed before one jury in two separate phases. The first will address defendants' affirmative defenses; the second will address plaintiff's waiver and estoppel claims and plaintiff's bad faith claim for punitive damages against Travelers. It hereby further is
ORDERED, that counsel for ARC and Travelers shall confer and, after conferring as well with counsel for the excess insurers, shall submit to the Court by May 27, 1996, a proposed trial date or dates in late September 1996 or November 1996, along with the parties' best estimations as to how many days the Court should set aside for trial.
Stanley S. Harris
United States District Judge
Date: MAY 1 1996