1550 Brickell Associates v. Q.B.E. Insurance Corporation

Filing 325

ORDER denying 291 Defendant's Motion to Bifurcate Counts I and III. Signed by Judge Joan A. Lenard on 11/10/2010. (mhz)

1 5 5 0 Brickell Associates v. Q.B.E. Insurance Corporation

D o c . 325

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 07-22283-CIV-LENARD/GARBER 1 5 5 0 BRICKELL ASSOCIATES, P l a in tif f , v. Q .B .E . INSURANCE C O R P O R A T IO N , D e f e n d a n t. ________________________________/ O R D E R DENYING DEFENDANT'S MOTION TO BIFURCATE COUNTS I AND I I I (D.E. 291) T H I S CAUSE is before the Court on Defendant Q.B.E. Insurance Corporation's (" Q B E " ) Motion to Bifurcate Counts I and III ("Motion," D.E. 291), filed on July 6, 2010. O n July 23, 2010, Plaintiff 1550 Brickell Associates ("1550") filed its response in opposition (" R e sp o n s e ," D.E. 297), to which QBE filed its reply ("Reply," D.E. 306) on August 2, 2010. H a v i n g considered the Motion, related pleadings, and the record, the Court finds as follows. I. B a c k gro u n d

T h is case involves 1550's attempt to collect the proceeds of an insurance policy u n d e rw ritte n by QBE after Hurricane Wilma severely damaged a pair of insured buildings n e a r downtown Miami. On August 31, 2007, 1550 filed its Complaint alleging three counts a g a in s t Defendant: breach of contract (Count I); breach of duty of good faith and fair dealing (C o u n t II); and one count for declaratory judgment (Count III). Part of the basis for 1550's

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C o m p la in t was that QBE had manipulated the appraisal process. On September 26, 2007, QBE moved to stay this action and compel appraisal. (See D .E . 4, 5.) QBE's motion sought to stay the action pending completion of the appraisal p ro c e ss . On October 17, 2007, QBE moved for leave to file an amended motion to compel a p p ra is a l and stay the litigation. (See D.E. 8.) On November 13, 2007, the Court denied Q B E 's motion to stay and compel appraisal and denied as moot QBE's motion to amend. (S ee D.E. 13.) On November 15, 2007, QBE moved for clarification or reconsideration of the Court's N o v em b er 13, 2007, Order. (See D.E. 15.) On December 4, 2007, the Court denied QBE's m o tio n for clarification or reconsideration. (See D.E. 22.) O n December 5, 2007, QBE filed a notice of appeal of the Court's November 13, 2 0 0 7 , Order. (See D.E. 23.) On December 12, 2007, QBE again moved to stay the litigation a n d argued that the appraisal process in this case was really arbitration. (See D.E. 25.) On D e c e m b e r 17, 2007, QBE also moved for relief from the Court's order requiring QBE finally file a response to 1550's Complaint. (See D.E. 27.) On December 19, 2007, the Court d e n ie d both motions and instructed QBE that default would be entered if it failed to respond to the Complaint. (See D.E. 29.) On December 21, 2007, QBE filed its motion to dismiss the Complaint. (See D.E. 3 1 .) On March 6, 2008, the Court denied QBE's motion to dismiss. (See D.E. 53.) On March 24, 2008, the Eleventh Circuit denied QBE's motion to stay. (See D.E. 56.)

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O n July 22, 2008, the Eleventh Circuit dismissed QBE's appeal of the Court's November 13, 2 0 0 7 , Order denying QBE's motion to compel appraisal. (See D.E. 109.) On September 17, 2009, the Court sua sponte stayed and administratively closed this c a se , stating in part: O n March 9, 2009, the Eleventh Circuit certified, inter alia, the following q u e stio n to the Florida Supreme Court, "[d]oes Florida law recognize a claim f o r breach of the implied warranty of good faith and fair dealing by an insured a g a in s t its insurer based on the insurer's failure to investigate and assess the in s u re d 's claim within a reasonable period of time?" Chalfonte Condo. A p artm en t Ass'n, Inc. v. QBE Ins. Corp., 561 F.3d 1267, 1274 (11th Cir. 2 0 0 9 ). That issue is currently pending before the Florida Supreme Court. See Q B E Ins. Corp. v. Chalfonte Condo. Apartment Ass'n, Inc., Case No. S C 0 9 -4 4 1 . Count II of the Complaint in this action alleges Defendant breached th e implied covenant of good faith and fair dealing by failing to timely in v e s tig a te Plaintiff's claim. (See D.E. 1.) Because the Florida Supreme C o u rt's decision could potentially render issues in this case moot, it is hereby O R D E R E D AND ADJUDGED that this case is STAYED and A D M IN IS T R A T IV E L Y CLOSED pending the Florida Supreme Court's d e c is io n in QBE Insurance Corporation v. Chalfonte Condominium Apartment A s s o c ia tio n , Inc., Case No. SC09-441, whereupon the Parties shall have tw e n ty (20) days to file a status report indicating the Parties' positions as to the re o p e n in g of the case. (D .E . 252.) On October 19, 2009, 1550 filed a motion to reopen the case and voluntarily d is m is s Count II of the Complaint. (See D.E. 253.) On January 5, 2010, the Court granted 1 5 5 0 's motion, stating in part: P la in tif f 's Motion seeks to reopen this case, voluntarily dismiss Count II, and lif t the stay, in order to avoid further delay. Accordingly, after weighing the re le v a n t equities and doing justice between the parties, as Defendant has not d e m o n s tra te d that it would suffer any "clear legal prejudice" or lose any s u b s ta n tia l right, see Pontenberg v. Boston Scientific Corp., 252 F.3d 1253, 1 2 5 5 -1 2 5 6 (11th Cir. 2001); McCants v. Ford Motor Co., 781 F.2d 855, 8 5 6 -5 7 (11th Cir. 1986), as a result of Plaintiff voluntarily dismissing Count 3

II, it is hereby ORDERED AND ADJUDGED that: (1) Plaintiff's Motion to R e o p e n is GRANTED; (2) Count II of the Complaint is DISMISSED W IT H O U T PREJUDICE; (3) the stay is LIFTED; and (4) this case is R EO PEN ED . (D .E . 256.) On April 16, 2010, the Court issued a revised trial order re-setting this case for trial on November 22, 2010. (See D.E. 266.) II. M o tio n

QBE's Motion seeks to bifurcate 1550's breach of contract claim from its declaratory re lie f claim. Specifically, QBE wishes the case proceed initially only as to Count III. QBE s ta te s that a limited determination can be made then as to whether the binding effect of the C ity of Miami's May 2006 letter must be established in order for the appraisal process to p ro c e e d . QBE argues that once Count III is determined and the appraisal process is c o m p le te d , then the breach of contract claim could proceed to a jury trial, if necessary. QBE a rg u e s bifurcation would avoid inconvenience, expedite the resolution of this case, and e c o n o m ize the resources of the Court. (See Motion at 5.) QBE also suggests that it would b e prejudiced if bifurcation is not permitted. (Id. at 6.) In response, 1550 argues that QBE is merely attempting to delay this litigation yet a g a in under the guise of completing appraisal. 1550 points to this Court's and the Eleventh C irc u it's numerous denials of QBE's attempts to stay litigation and compel appraisal. 1550 a lso argues that the appraisal panel has "long since been disbanded due to QBE's unfortunate co n d u ct." (See Response at 2.) In reply, QBE argues that 1550's assertions as to the status of the apprisal panel are 4

c o n tra d ic te d by its statements in the Complaint that the appraisal process has not yet been co n clud ed . (See Reply at 2-4.) III. D is c u s s io n

R u le 42(b) of the Federal Rules of Civil Procedure provides that, "[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one o r more separate issues, claims, crossclaims, counterclaims, or third-party claims." The d e c is io n of whether to bifurcate a trial is discretionary. See e.g., Brown v. Toscano, 630 F. S u p p . 2d 1342, 1345-46 (S.D. Fla. 2008). In addition, the moving party bears the burden of d e m o n s tra tin g the benefits of bifurcation. See e.g., Computer Assocs. Int'l, Inc. v.

S im p le .c o m , Inc., 247 F.R.D. 63, 67 (E.D.N.Y. 2007). The Court finds bifurcation inappropriate in this case. Contrary to QBE's arguments, b if u rca tio n would be inconvenient and would only serve to delay this litigation further. M o re o v e r, it would prejudice 1550 through additional unnecessary delay. Accordingly, c o n s is te n t with this Order, it is hereby ORDERED AND ADJUDGED that Defendant's M o t io n to Bifurcate Counts I and III (D.E. 291), filed on July 6, 2010, is DENIED. D O N E AND ORDERED in Chambers at Miami, Florida, this 10th day of November, 2010. ____________________________________ J O A N A. LENARD U N I T E D STATES DISTRICT JUDGE

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