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AMERICAN NAT'L v. TRAVELERS INDEM. CO.

May 1, 1996

AMERICAN NATIONAL RED CROSS, Plaintiff,
v.
THE TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, et al., Defendants.



The opinion of the court was delivered by: HARRIS

 Before the Court are defendant Travelers' motion to bifurcate trial in this case, plaintiff American Red Cross's ("ARC") opposition thereto, defendant Travelers' reply, and plaintiff's surreply. Several defendant excess insurance carriers (hereinafter excess insurers) (Transamerican, Insurance Company of North America, Granite State, Lexington, RLI, Eric Reinsurance, *fn1" Sentry, *fn2" and Dairyland) have filed responses joining Travelers' motion to bifurcate the trial; Granite State, Lexington, Sentry, and Dairyland also have filed a reply to plaintiff's opposition. Upon consideration of the pleadings and the entire record, Travelers' motion to bifurcate the trial is granted. The Court will not conduct separate trials before separate juries in this case, but will conduct one jury trial in two separate phases.

 Background

 The facts of this case have been fully set forth in the Court's 1993 and 1995 Opinions, and the Court will not restate the facts here. See American National Red Cross v. Travelers Insurance Co., 816 F. Supp. 755 (D.D.C. 1993) ("ARC I "); American National Red Cross v. Travelers Insurance Co., 896 F. Supp. 8 (D.D.C. 1995) ("ARC II "). In ARC I, this Court granted several excess insurers' motions for partial summary judgment and denied Travelers' motion for partial summary judgment, finding that plaintiff had not exhausted its per-occurrence limit of liability under the relevant Travelers policies, and that the "products hazard" and "completed operations hazard" aggregate liability limits were inapplicable to plaintiff's HIV-contaminated blood claims. *fn3" 816 F. Supp. at 761. In addition, this Court found that because Travelers had not demonstrated exhaustion of the policy limits, Travelers had a continuing duty to defend ARC "until it can demonstrate that [ARC's] underlying claims fall outside the scope of coverage of the insurance policies." Id. at 761-62.

 In ARC II, this Court denied three motions by plaintiff for partial summary judgment: one on its claim for punitive damages against Travelers; the second on several of Travelers' 22 affirmative defenses; and the third on the same affirmative defenses based specifically on the Fed. R. Civ. P. 30(b)(6) testimony of Timothy Yessman. This Court stated in ARC II that ARC's motion for summary judgment on its punitive damages claim was "premature," since "a final determination has not yet been made as to whether coverage exists for the underlying claims in this action." 896 F. Supp. at 11-12. The Court also held that plaintiff's substantive motion for summary judgment on six of Travelers' affirmative defenses must be denied because genuine issues of material fact as to the defenses, and as to the issues of waiver and estoppel, remained unresolved. Finally, this Court denied summary judgment on the same six affirmative defenses based on Travelers' Rule 30(b)(6) deposition testimony, holding that the fact that Travelers' designated deponent had refused to answer questions about the "facts and documents" Travelers intended to use to support its affirmative defenses was not grounds for summary judgment against Travelers.

 Following a November 1995 status hearing, defendant Travelers filed its motion to bifurcate the trial in this case. Travelers argues that the trial should be conducted in two separate parts: the first would address Travelers' affirmative defenses, and the second -- if it proved necessary -- would address ARC's claim for punitive damages. The above-named excess insurers join Travelers in its request, although, as discussed below, the excess insurers take a slightly different approach to the matter. ARC opposes Travelers' motion, arguing that bifurcating the trial would, among other things, involve needless duplication of issues, evidence, and witnesses.

 Discussion

 Under Fed. R. Civ. P. 42(b), a court may bifurcate claims or issues for separate trial "to advance judicial economy, to avoid the possibilities of confusion, to further convenience, to avoid delay and prejudice, and to serve the ends of justice." Webb v. Hyman, 861 F. Supp. 1094, 1119 (D.D.C. 1994) (citing O'Dell v. Hercules, 904 F.2d 1194, 1201 (8th Cir. 1990)). A court has broad discretion to choose whether to bifurcate claims in a case for separate trial, and a court may order a case bifurcated even if only one criterion from Rule 42(b) is satisfied. See Ricciuti v. New York Transit Authority, 796 F. Supp. 84, 86 (S.D.N.Y. 1992) (citing Ismail v. Cohen, 706 F. Supp. 243, 251 (S.D.N.Y. 1989), aff'd, 899 F.2d 183 (2d Cir. 1990)).

 Travelers requests the Court to bifurcate the trial because, in its view, bifurcation would accomplish not just one, but all of the goals enumerated in Rule 42(b). First, Travelers argues that conducting separate trials on Travelers' affirmative defenses and on ARC's bad-faith punitive damages claim would promote judicial efficiency, because a separate trial on Travelers' affirmative defenses "could eliminate the need to try ARC's punitive damages claim." Def.'s Mot. To Bifurcate at 9. Travelers relies heavily on this Court's Opinion in ARC II to support this contention. In ARC II, this Court declined to grant summary judgment for ARC on its punitive damages claim, holding that "an insured's claim of bad faith breach of contract against its insurer fails if coverage for the underlying claim does not exist." ARC II, 896 F. Supp. at 11. The Court concluded that a "determination . . . as to whether coverage exists . . . is a necessary first step before any resultant determination may be made as to Travelers' bad faith." 896 F. Supp. at 12. See also O'Malley v. United States Fidelity and Guaranty Co., 776 F.2d 494, 501 (5th Cir. 1985) (holding that, since recovery on plaintiff's bad faith claim would not have been possible unless plaintiff prevailed on his coverage claim, the district court "acted correctly in bifurcating the 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. *fn4"

 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). *fn5" 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. *fn6" 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 ...


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