Hallmark American Insurance Company v. Tom Wasson, et al

Filing 46

ORDER re briefing and trial. Bench Trial set for 3/1/2017 at 10:00 AM before Hon. Richard Seeborg. Signed by Judge Richard Seeborg on 1/13/17. (cl, COURT STAFF) (Filed on 1/16/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HALLMARK AMERICAN INSURANCE
COMPANY,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 15-cv-05536-RS
ORDER RE BRIEFING AND TRIAL

v.
RONALD C. BROYLES, et al.,
Defendants.

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As directed by a prior order, the parties have submitted a joint statement regarding the

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issues they believe remain to be resolved in this matter. The parties propose a proceeding that

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nominally would constitute a “bench trial,” but they will present stipulated facts and briefing,

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rather than any live witness testimony.

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The parties are in agreement that the question of “whether Jean Broyles suffered a ‘bodily

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injury’ and, if so, what her damages might be is a matter for the state court.” Hallmark contends,

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however, that neither the prior orders nor the Broyles “have addressed Hallmark’s argument that

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the claim alleged by Jean Broyles is not a claim for ‘bodily injury’ ‘arising out of service

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operations performed by the insured in connection with the ownership, maintenance, operation or

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use of the airport if the occurrence happens after the services have been completed or abandoned’

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as required under the Hallmark policy.” Hallmark repeats the position it advanced in its summary

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judgment motion that Jean Broyles’ claim is “wholly derivative of Ronald Broyles’ claim for

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bodily injury and is subject to the same ‘each person’ limit applicable to Ronald Broyles’ claims

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for bodily injury.”

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The prior order concluded that “[u]nder Abellon and Fibus, there is separate

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coverage for Jean Broyles’ loss of consortium claim as a matter of law.” Abellon expressly

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rejected an argument that appears indistinguishable from what Hallmark is contending here. See

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Abellon v. Hartford Ins. Co., 167 Cal. App. 3d 21, 25 (“Hartford urges Jeanne’s loss of consortium

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is derived from the injuries Carlos sustained and her consequential damages are therefore subject

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to the ‘per person’ limitation . . . . By merging Jeanne’s injury with that of her husband, her

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injury, in effect, becomes derivative and noncompensable under the terms of the insurance

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contract, thus effectively negating public policy . . . . [Case law] supports the inevitable conclusion

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Jeanne has suffered an independent, nonparasitic personal injury as a result of an automobile

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accident negligently caused by Hartford’s insured. She is a second person injured by the
accident.” (emphasis added)). Fibus is to the same effect. See Allstate Ins. Co. v. Fibus, 855 F.2d

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United States District Court
Northern District of California

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660, 663 (9th Cir. 1988).

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Accordingly, it is not clear why Hallmark believes the prior orders have not addressed its

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argument that Jean Broyles’ claim is “wholly derivative” and not a claim for “bodily injury.” The

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orders found that argument to be untenable in light of Abellon and Fibus. Nevertheless, because

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the parties are in agreement that further briefing and a bench trial (without live testimony) is

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appropriate for a complete and final resolution of the issue, their proposal to proceed in that

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manner will be adopted. Hallmark shall file its opening brief by January 31, 2017. The Broyles

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may file a responsive brief by February 14, 2017. Any reply shall be filed within one week

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thereafter. The matter will be set for hearing as a “bench trial” on March 1, 2017, at 10:00 a.m.,

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with the understanding that no live testimony will be introduced and that arguments will be

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concluded no later than 11:30 a.m.

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IT IS SO ORDERED.

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Dated: January 13, 2017
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RICHARD SEEBORG
RICHARD SEEBORG
O
United States District Judge

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CASE NO.

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15-cv-05536-RS