Lloyd's Acceptance Corp. v. Affiliated FM Insurance Company

Filing 365

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motions of defendants to bifurcate the issues of insurance coverage from the issue of vexatious refusal to pay (Docs. 353 , 355 ) are sustained. IT IS FURTHER ORDERED that the final pretrial con ference is reset from October 2, 2014, to October 7, 2014 at 9:00 a.m. IT IS FURTHER ORDERED that, when the parties file their papers complying with the court's pretrial scheduling order, the parties shall identify separately as to Phase 1 an d Phase 2 the witnesses whose testimony and the exhibits which "will be" and "may be" offered. IT IS FURTHER ORDERED that, prior to filing motions in limine that object to witnesses and exhibits, counsel for the parties confer in an effort to settle potential objections. re 353 MOTION to Bifurcate filed by Travelers Property Casualty Company of America, 355 MOTION to Bifurcate Trial filed by Affiliated FM Insurance Company. Signed by Magistrate Judge David D. Noce on 9/8/14. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LLOYD'S ACCEPTANCE CORP., d/b/a
LLOYD'S DEVELOPMENT COMPANY,
and
AFFORDABLE COMMUNITIES OF
MISSOURI,
Plaintiffs,
v.
AFFILIATED FM INSURANCE COMPANY,
and
TRAVELERS PROPERTY CASUALTY
OF AMERICA,
Defendants.

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No. 4:05 CV 1934 DDN

MEMORANDUM AND ORDER
This matter is before the court on the motions of defendants Travelers Property Casualty
Company of America (Doc. 353) and Affiliated FM Insurance Company (Doc. 355) to bifurcate
the jury trial of this action. The court heard oral argument on the motions on August 26, 2014.
Defendants seek an order that the trial proceed in two phases. In the first phase, the issues
of coverage under the two insurance policies issued by the defendants would be tried; the second
phase would try the issue of vexatious refusal to pay.
Federal Rule of Civil Procedure 42(b) authorizes the court to sever claims for separate
trials in the interest of convenience, the avoidance of prejudice, and the expediting and
economizing of proceedings. From the court's understanding of this case and from the statements
of counsel, the issues of coverage and vexatious refusal to pay that will be presented to the jury are
complex and the relevant evidence may require extensive cautionary instructions. Plaintiffs
argue in part that conduct of the voir dire questioning of venire panel will be awkward. The court
disagrees. The sees no reason counsel may not question the prospective jurors about all issues
related to the claims to coverage and to the claim of vexatious refusal to pay in a fashion that does
not prejudice any party. The proper language to be used in voir dire will be an appropriate topic
for discussion in the final pretrial conference.

The court concludes that bifurcating the issues of coverage (Phase 1) and vexatious refusal
to pay (Phase 2) will avoid unnecessary complexity in the submission of the case to the jury.
Justice will be best served, if the case proceeds before the jury in these two phases.
Further, as discussed in the hearing, the court has concluded that the issues of the amounts
of any attorneys' fees and the application of a statutory penalty, under Revised Statute of Missouri
§ 375.420 be submitted to the court following the return of the jury's findings. R.S.Mo. §
374.420.
Therefore,
IT IS HEREBY ORDERED that the motions of defendants to bifurcate the issues of
insurance coverage from the issue of vexatious refusal to pay (Docs. 353, 355) are sustained.
IT IS FURTHER ORDERED that the final pretrial conference is reset from October 2,
2014, to October 7, 2014 at 9:00 a.m.
IT IS FURTHER ORDERED that, when the parties file their papers complying with the
court's pretrial scheduling order, the parties shall identify separately as to Phase 1 and Phase 2 the
witnesses whose testimony and the exhibits which "will be" and "may be" offered.
IT IS FURTHER ORDERED that, prior to filing motions in limine that object to
witnesses and exhibits, counsel for the parties confer in an effort to settle potential objections.

_____________________________________
UNITED STATES MAGISTRATE JUDGE

Signed on September 8, 2014.

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