American Family Mutual Insurance Company v. Miller et al

Filing 136

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendants to amend the October 18, 2016, order to allow for an interlocutory appeal, or in the alternative for an entry of final judgment (ECF No. 116 ) is DENIED. IT IS FURTHER ORDER ED that the motion of defendants for separate trials (ECF No. 118 ) is DENIED. IT IS FURTHER ORDERED that the parties' final pre-trial conference is set for November 8, 2016, at 1:30 p.m., with jury selection to commence on November 9, 2016, at 9 a.m., and the trial to begin on November 16, 2016, at 9 a.m. ( Pretrial Conference set for 11/8/2016 01:30 PM in Courtroom 17N before Magistrate Judge David D. Noce.) Signed by Magistrate Judge David D. Noce on 11/2/2016. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
Plaintiff,
v.
MARSHALL MILLER,
DINA MILLER, and
SIGN IT UP, LLC,
Defendants.

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No. 4:15 CV 1127 DDN

MEMORANDUM AND ORDER
Before the court are two pretrial motions of the defendants: (1) to amend this
court’s October 18, 2016 order to add a certification for interlocutory appeal or, in the
alternative, for entry of a final judgment as to their Count 4 counterclaim of public
disclosure of private financial information (ECF No. 116); and (2) to bifurcate the trial of
this action into a nonjury trial of plaintiff's claim for a declaratory judgment and a jury
trial of defendants' breach of contract and vexatious refusal claims (ECF No. 118). Both
motions are denied.

Motion for interlocutory appeal
Defendants seek an interlocutory appeal under 28 U.S.C. § 1292(b). Section
1292(b) permits the district court to certify an order for interlocutory appeal, if it is “of
the opinion that such order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).
Section 1292(b) criteria do not apply to the October 18, 2016, order dismissing

defendants' Count 4 counterclaim.

Defendants' Count 4 state law claim for public

disclosure of private facts is distinct from their other claims, and an appeal would have no
substantial effect on the ultimate determination of those claims. Accordingly, the motion
for certification for interlocutory appeal is denied.
The court also denies defendants’ request for entry of an appealable final
judgment. Federal Rule of Civil Procedure 54 allows the court to “direct entry of a final
judgment as to one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). In
determining whether there is no just reason for delay, the court is to consider the equities
of the situation and judicial administrative interests, especially the prevention of
piecemeal appeals. McAdams v. McCord, 533 F.3d 924, 927 (8th Cir.2008). Appeals
certified under Rule 54(b) are generally disfavored. Clark v. Baka, 593 F.3d 712, 714
(8th Cir. 2010). The Eighth Circuit has held that only the special case warrants an
immediate appeal of a partial disposition of an action. Interstate Power Co. v. Kansas
City Power & Light Co., 992 F.2d 804, 807 (8th Cir. 1993). An important factor in
determining whether a case ought to be immediately appealed is whether "there is some
danger of hardship or injustice which an immediate appeal would alleviate.” Baka, 593
F.3d at 715. While the defendants’ Count 4 counterclaim is distinct from their other
claims, defendants have not established any potential substantial danger of hardship or
injustice that would occur by waiting for the resolution of the entire case. Accordingly,
defendants’ alternative motion is also denied.

Motion for separate trials
Defendants also seek an order that plaintiff's claim for a declaratory judgment be
tried first without a jury, then to be followed by a jury trial of their counterclaims for
breach of the insurance policies and vexatious refusal. Plaintiff commenced this action
with its claim for a declaratory judgment. At base, plaintiff alleged defendants breached
the applicable insurance policies, claims on which plaintiff could have demanded a jury.
See Smith Flooring, Inc. v. Pa. Lumbermens Mut. Ins. Co., 713 F.3d 933, 936–37 (8th
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Cir. 2013). However, it did not demand a jury in its complaint (ECF No. 1), and thereby
waived one. Fed. R. Civ. P. 38(b), (d).
However, on its own motion the court is authorized to submit the factual
allegations of plaintiff's claim to an advisory jury. Fed. R. Civ. P. 39(c). But it need not
do so, because those same issues of fact are set to be tried to a jury as a matter of right on
defendants' counterclaims for breach of the same insurance policies and for vexatious
refusal. The court intends to submit the factual issues on all parties' claims to a jury on a
special verdict form. Fed. R. Civ. P. 49. The jury’s answers to the special verdict
questions will inform the court on the proper judgment to be issued not only on
defendants' counterclaims but also on plaintiff's claim for a declaration of the relative
rights of the parties. Nor-W. Cable Commc'ns P'ship v. City of St. Paul, 924 F.2d 741,
745 (8th Cir. 1991) (“Where a case has been submitted to the jury on special verdicts . . .
the jury’s findings are usually binding on the district court unless they are against the
weight of the evidence.”).
Defendants argue that separate trials are necessary to avoid jury confusion when
certain evidence is offered on their vexatious refusal claim, which evidence is not
admissible on the parties' breach of contract claims. The court is confident that, with the
assistance of counsel on both sides, it can properly instruct the jury on the purpose for
which any evidence may be considered and for which it may not be considered. Fed. R.
Evid. 105; United States v. Wisecarver, 598 F.3d 982, 989 (8th Cir. 2010) (ruling that
jurors are presumed to follow all court instructions); cf. Joiner v. Auto-Owners Mut. Ins.
Co., 891 S.W.2d 479 (Mo. Ct. App. 1995).
For these reasons,
IT IS HEREBY ORDERED that the motion of defendants to amend the October
18, 2016, order to allow for an interlocutory appeal, or in the alternative for an entry of
final judgment (ECF No. 116) is DENIED.
IT IS FURTHER ORDERED that the motion of defendants for separate trials
(ECF No. 118) is DENIED.

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IT IS FURTHER ORDERED that the parties’ final pre-trial conference is set for
November 8, 2016, at 1:30 p.m., with jury selection to commence on November 9,
2016, at 9 a.m., and the trial to begin on November 16, 2016, at 9 a.m.

/s/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed and filed on November 2, 2016.

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