ACE American Insurance Company v. Dish Network, LLC

Filing 135

ORDER denying 69 Joint Motion To Bifurcate Pursuant to FRCP 42(b); approving and adopting 75 Recommendation of United States Magistrate Judge; approving and adopting 81 Recommendation of United States Magistrate Judge; granting 134 Stipula ted Motion To Continue Pretrial Conference Scheduled for September 18, 2015.The combined Trial Preparation Conference and Final Pretrial Conference set September 18, 2015, at 10:30 a.m. (MDT), is vacated and continued without date pending further order.The trial set to begin October 2, 2015, at 8:30 a.m.(MDT), is vacated and continued without date pending further order. By Judge Robert E. Blackburn on 9/9/2015.(mlace, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Case No. 1:13-cv-00560-REB-MEH
ACE AMERICAN INSURANCE COMPANY,
Plaintiff,
v.
DISH NETWORK, LLC,
Defendant.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Joint Motion To Bifurcate Pursuant to
FRCP 42(b) [#69]1 filed January 29, 2015; (2) the Recommendation of United States
Magistrate Judge [#75] filed February 6, 2015; (3) the Recommendation of United
States Magistrate Judge [#81] filed February 23, 2015; and (4) the Stipulated Motion
To Continue Pretrial Conference Scheduled for September 18, 2015 [#134] filed
September 8, 2015.
No objections to the recommendations were filed. Therefore, I review them only
for plain error. See Morales-Fernandez v. Immigration & Naturalization Service,
418 F.3d 1116, 1122 (10th Cir. 2005). Finding no error, much less plain error, in the
recommendations, I find and conclude that recommendations should be approved and

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“[#69]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

adopted. I deny the joint motion to bifurcate and adopt, as an alternative, the schedule
recommended by the magistrate judge. I grant the motion to continue the pretrial
conference and, thus, continue both the combined Final Pretrial Conference and Trial
Preparation Conference and the trial currently set in this case.
This is a declaratory judgment action by the plaintiff, Ace American Insurance
Company, seeking a determination that it has no duty to defend and, concomitantly, no
duty to indemnify the defendant insured, Dish Network, LLC, in an underlying lawsuit.
The underlying lawsuit is pending in the United States District Court for the District of
Illinois. Currently, under a reservation of rights, Ace is paying some, but not all, of
requested defense costs in the underlying case.
In the motion to bifurcate [#69], the parties seek to litigate separately via
separate trials the duty to defend and the duty to indemnify. The magistrate judge
recommends that this motion be denied because the efficiencies which might be gained
through bifurcation are substantially outweighed by the inherent inefficiencies. I concur.
As noted in the second recommendation [#81], after the first recommendation
[#75] was filed, the parties requested separate discovery deadlines and separate
briefing schedules related to the duty to defend and the duty to indemnify. The
magistrate judge concluded that this approach has some benefits and the parties have
been following the schedule recommended by the magistrate judge. Adherence to that
schedule, however, requires that the trial and combined Final Pretrial Conference and
Trial Preparation Conference be continued.
The underlying lawsuit is set for trial beginning January 5, 2016. Resolution of
the underlying lawsuit will inform the duty to indemnify in this case. For this reason and
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others, the schedule recommended by the magistrate judge in his recommendation
[#81] is appropriate, although further adjustment of the schedule of briefing concerning
the duty to indemnify may be appropriate as the underlying lawsuit develops.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#75] filed
February 6, 2015, is approved and adopted as an order of this court;
2. That the Joint Motion To Bifurcate Pursuant to FRCP 42(b) [#69] filed
January 29, 2015, is denied;
3. That the Recommendation of United States Magistrate Judge [#81] filed
February 23, 2015, is approved and adopted as an order of this court;
4. That the Stipulated Motion To Continue Pretrial Conference Scheduled
for September 18, 2015 [#134] filed September 8, 2015, is granted;
5. That the combined Trial Preparation Conference and Final Pretrial
Conference set September 18, 2015, at 10:30 a.m. (MDT), is vacated and continued
without date pending further order;
6. That the trial set to begin October 2, 2015, at 8:30 a.m.(MDT), is vacated and
continued without date pending further order;
7. That counsel shall contact the court’s administrative assistant at (303) 3352350 on September 17, 2015, at 9:30 a.m. (MDT), to reschedule the combined Final
Pretrial Conference and Trial Preparation Conference and the trial; provided, further,
that counsel for the plaintiff shall arrange the conference call necessary to facilitate the
telephonic (non-appearance) setting conference; and

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8. That the Trial Preparation Conference Order [#60] entered July 14, 2014, is
amended and supplemented accordingly.
Dated September 9, 2015, at Denver, Colorado.
BY THE COURT:

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