ACE American Insurance Company v. Dish Network, LLC

Filing 169

ORDER CONCERNING MOTIONS TO BIFURCATE, STAY, & CONTINUE TRIAL. Defendant Dish Network L.L.C.'s Motion To Stay or Transfer and Supporting Memorandum of Law [#92] filed June 5, 2015, is denied; That the Stipulated Motion To Continue Trial and Modi fy Scheduling Order [#148] filed September 29, 2015, is granted to the extent that the currently scheduled trial in this case is continued; granting in part and denying in part 162 Renewed Motion To Bifurcate Pursuant To FRCP 42(b) and To Administ ratively Stay Indemnity-Related Claims. That the combined Final Pretrial Conference and Trial Preparation Conference set for February 26, 2016, and the trial set to begin March 14, 2016, arevacated and continued without date, pending further order. By Judge Robert E. Blackburn on 2/19/2016.(agarc, )

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

ORDER CONCERNING MOTIONS TO BIFURCATE, STAY, & CONTINUE TRIAL
Blackburn, J.
This matter is before me on the following: (1) Defendant Dish Network L.L.C.’s
Motion To Stay or Transfer and Supporting Memorandum of Law [#92]1 filed June
5, 2015; (2) the Stipulated Motion To Continue Trial and Modify Scheduling Order
[#148] filed September 29, 2015; and (3) the Renewed Motion To Bifurcate Pursuant
To FRCP 42(b) and To Administratively Stay Indemnity-Related Claims [#162] filed
December 29, 2015. Concerning [#92], a response [#111] and reply [#117] were filed.
Concerning [#162], a response [#165] and reply [#166] were filed. I deny the motion to
stay or transfer, grant the motion to continue, and grant in-part and deny in-part the
motion to bifurcate and stay.
This is an action for declaratory judgment brought by the plaintiff, Ace American
Insurance Company, seeking a determination that it has no duty to defend and,
1

“[#92]” 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.

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.
The underlying lawsuit is not yet resolved. The parties agree that resolution of
the duty to indemnify claims properly should await resolution of the underlying lawsuit.
However, there is no reason the duty to defend claims cannot be resolved now.
Discovery concerning the duty to defend claims is complete, and the parties have fully
briefed their cross-motions for summary judgment on the duty to defend claims.
Depending on the resolution of the underlying case, it may or may not be
necessary to resolve the duty to indemnify claims in the above-captioned case.
Resolution of the underlying lawsuit will inform the duty to indemnify claims in this case.
Based on the need for a resolution of the underlying litigation, the parties agree that
resolution of the duty to indemnify claims should be stayed until after the underlying
litigation is resolved fully. I agree.
I have considered the arguments of the defendant in support of a transfer of this
case to the United States District Court for the Central District of Illinois, as stated in its
motion for stay or transfer [#92], as well as the arguments asserted in the response
[#111] and reply [#117]. I am not persuaded by the contention of the defendant, as
asserted in this motion, that this case should be stayed. Further, applying the standards
relevant to a transfer under 28 U.S.C. § 1404, I find and conclude that a transfer of this
case is not merited. See Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d
1509, 1515 (10th Cir. 1991).

2

Previously, the court concluded that a trial in this case properly should include
both the duty to defend and the duty to indemnify claims, if trial on both classes of
claims proves to be necessary. However, trial on the duty to indemnify claims is, at this
point in time, premature. Currently, trial in this case is set to begin March 14, 2016.
The parties agree that it is unlikely the underlying litigation will be resolved fully before
March 14, 2016. Thus, a trial of the above-captioned case beginning on March 14,
2016, is not practicable. I continue to find and conclude that, if a trial proves to be
necessary, a joint trial of both the duty to defend and the duty to indemnify claims is the
most efficient approach. To the extent the plaintiff seeks in its motion to bifurcate [#162]
trials of these two classes of claims, I deny that motion.
The United States Court of Appeals for the Tenth Circuit has outlined four
primary factors that should be considered to determine if a continuance is necessary.
See, e.g., Morrison Knudsen Corp. v. Fireman's Fund Ins. Co.,175 F.3d 1221, 1230
(10th Cir. 1999) (citing U.S. v. West, 828 F.2d 1468, 1469 (10th Cir. 1987) (listing
factors)). The key relevant factors are
(1) the diligence of the party requesting the continuance; (2) the likelihood
that the continuance, if granted, would accomplish the purpose underlying
the party’s expressed need for the continuance; (3) the inconvenience to
the opposing party, its witnesses, and the court resulting from the
continuance; [and] (4) the need asserted for the continuance and the harm
that [movant] might suffer as result of the district court’s denial of the
continuance.
United States v. Rivera, 900 F.2d 1462, 1475 (10th Cir. 1990) (quoting United States
v. West, 828 F.2d 1468, 1470 (10th Cir. 1987)).2

2

In my civil practice standards, I specify that a motion to continue shall be determined pursuant
to, inter alia, the West factors. See REB Civil Practice Standard II.F.2.

3

Applied to the present case, these factors augur toward a continuance of the trial
and the combined Final Pretrial Conference and Trial Preparation Conference. There is
no indication that counsel for either of the parties, or the parties themselves, have not
been diligent. A continuance, if granted, will permit resolution of the underlying
litigation. Resolution of the underlying litigation will permit efficient resolution of the duty
to indemnify claims in this case, if such a resolution proves to be necessary.
In sum, the court will resolve the currently pending motions for summary
judgment addressing the duty to defend claims. Then, the court will close this case
administratively with the duty to indemnify claims unresolved. Once the underlying
litigation is resolved, either party may move to re-open this case to permit a resolution, if
necessary, of the duty to indemnify claims in this case.
THEREFORE, IT IS ORDERED as follows:
1. That Defendant Dish Network L.L.C.’s Motion To Stay or Transfer and
Supporting Memorandum of Law [#92] filed June 5, 2015, is denied;
2. That the Stipulated Motion To Continue Trial and Modify Scheduling
Order [#148] filed September 29, 2015, is granted to the extent that the currently
scheduled trial in this case is continued;
3. That the combined Final Pretrial Conference and Trial Preparation
Conference set for February 26, 2016, and the trial set to begin March 14, 2016, are
vacated and continued without date, pending further order;
4. That the Renewed Motion To Bifurcate Pursuant To FRCP 42(b) and To
Administratively Stay Indemnity-Related Claims [#162] filed December 29, 2015, is
denied to the extent the plaintiff seeks separate trials of the duty to defend claims and
the duty to indemnify claims; and
4

5. That the Renewed Motion To Bifurcate Pursuant To FRCP 42(b) and To
Administratively Stay Indemnity-Related Claims [#162] filed December 29, 2015, is
granted to the extent the plaintiff seeks an administrative closure of this case once the
pending cross-motions for summary judgment are resolve.
Dated February 18, 2016, at Denver, Colorado.
BY THE COURT:

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