Wenzel v. National Union Fire Insurance Company of Pittsburgh, PA et al

Filing 18

ORDER granting 9 Motion to Consolidate Cases. 11cv303-JD and 11cv335-JD are consolidated into one case. 11cv335-JD is statistically closed. 11cv327-JL and 11cv335-JD are not consolidated. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

:

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Cody Wenzel
v.

Civil No. 11-cv-335-JD

National Union Fire Insurance
Company of Pittsburgh, PA, and
National Grange Mutual Insurance Company
and
National Union Fire Insurance Company
of Pittsburgh, PA
v.

Civil No.

11-cv-303-JD

National Grange Mutual Insurance Company
and Cody A. Wenzel

o

R D E R

On June 2, 2011, Cody Wenzel brought suit in state court
against Great Lakes Hydro America, LLC after he was injured while
working on a piece of machinery, a Rack Rake, at Great Lakes. 1
The suit was removed to this court from Coos County (New
Hampshire) Superior Court. 2

Great Lakes then filed a third-party

complaint in that case against Wenzel's employer, Daniels
Landscaping, LLC.
IGreat Lakes Hydro America, LLC is also known as and does
business as Brookfield Renewable Power.
2Wenzel v. Great Lakes Hydro America, LLC, 11-cv-327-JL
(D.N.H. removed July 5, 2011) (personal injury action) .

National Union Fire Insurance Company of pittsburgh, PA,
("NUFIC") insured Great Lakes under a commercial general
liability policy.

National Grange Mutual Insurance Company

("NGMIC") insured Daniel's Landscaping under a commercial general
liability insurance policy.

In response to Wenzel's personal

injury claim against Great Lakes, asserted prior to bringing
suit, NUFIC provided a defense to Great
Wenzel's claim of $625,000 to NGMIC.

Lake~

and tendered

NGMIC denied any obligation

to defend or indemnify Great Lakes.
NUFIC brought a declaratory judgment action against NGMIC
and Wenzel in this court, seeking a determination of the rights
and obligations of NUFIC and NGMIC with respect to Wenzel's
claims in the personal injury action against Great Lakes and as
to each other. 3

Wenzel brought a declaratory judgment in state

court against NUFIC and NGMIC, seeking a declaration that either
NUFIC or NGMIC is liable to provide coverage for his claims in
the personal injury action.

Wenzel's suit was removed to this

court. 4

3National Untion Fire Insurance Company of pittsburgh, PA v.
National Grange Mutual Insurance Company and Cody Wenzel, 11-cv­
303-JD (D.N.H. filed June 23, 2011).
4Wenzel v. National Union Fire Insurance Company of
pittsburgh, PA, and National Grange Mutual Insurance Company, 11­
cv-335-JD (D.N.H. removed July 11, 2011).

2

Because Wenzel's declaratory judgment action is referenced
in his personal injury action as a related case, the clerk's
office entered an order of potential consolidation in both cases,
stating that unless counsel objected by August 26, 2011, the
cases would be consolidated.

NUFIC filed a motion, with NGMIC's

assent, to consolidate the two declaratory judgment actions.
NUFIC, NGMIC, and Great Lakes object to consolidating Wenzel's
declaratory judgment action with the personal injury action.
Wenzel objects to NUFIC's motion to consolidate his declaratory
judgment action with NUFIC's declaratory judgment action.

Standard of Review
The court may consolidate two or more pending actions which
share a cornmon question of law or fact,

in appropriate

circumstances.

In deciding whether to

Fed. R. Civ. P. 42{a).

consolidate actions, the court considers the benefits of
eliminating unnecessary repetition and confusion and also the
potential for unfair prejudice.

See, e.g., Horizon Asset Mgmt.

Inc. v. H & R Block, Inc., 580 F.3d 755, 768 (8th Cir. 2009);
Bristol-Myers Squibb Co. v. Safety Nat'l Cas. Corp., 43 F. Supp.
2d 734, 745 (E.D. Tex. 1999).

Whether or not to consolidate

actions is committed to the court's discretion.
Corp., 135 F.3d 543, 551 (8th Cir. 1998).

3

E.E.O.C. v. HBE

Discussion
The potential consolidation order pertains to consolidating
Wenzel's personal injury action, 11-cv-327-JL, with his
declaratory judgment action, 11-cv-335-JD.

NUFIC, NGMIC, and

Great Lakes oppose consolidation of those cases.
~Response"

Wenzel filed a

to the potential consolidation order, which is unclear

as to whether he objects to consolidation or not.

NUFIC moves to

consolidate the two declaratory judgment actions, 11-cv-303-JD
and 11-cv-335-JD.

I.

Only Wenzel opposes NUFIC's motion.

Potential Consolidation Order
Wenzel's declaratory judgment action requires the

interpretation of insurance policies, which is a legal question
based on contract law principles.

See, e.g., Progressive N. Ins.

Co. v. Argonaut Ins. Co., 161 N.H. 778, 781 (2011).
injury action is based on tort law.
share common legal questions.

The personal

As such, the cases do not

See, e.g., Lancer Ins. Co. v.

Hitts, 2010 WL 2867836, at *4 (M.D. Ga. July 20, 2010);
Monticello Ins. Co. v. Kendall, 1997 WL 557326, at *2 (D. Kan.
Aug. 29, 1997)

(noting impropriety of consolidating insurance

coverage case with underlying personal injury action) .
As the objecting parties point out, the lack of common legal
issues and a variety of other differences between the personal

4

injury case and Wenzel's declaratory judgment action weigh
against consolidation.

Although Wenzel appears to suggest

consolidation for purposes of a preliminary pretrial conference,
he failed to address the relevant considerations to support
consolidation.

In addition, to the extent Wenzel is seeking

separate relief, beyond the scope of the potential consolidation
order, he must file a separate motion for that purpose.

LR

7.1(a) (1).
The personal injury action, 11-cv-327-JL, and Wenzel's
declaratory judgment action, 11-cv-335-JD, will not be
consolidated.

II.

Declaratory Judgment Actions
NUFIC, with the assent of NGMIC, moves for consolidation of

the declaratory judgment actions, National Union Fire Insurance
Company of Pittsburgh, PA v. National Grange Mutual Insurance
Company and Cody Wenzel, 11-cv-303-JD (D.N.H. filed June 23,
2011), and Wenzel v. National Union Fire Insurance Company of
Pittsburgh, PA, and National Grange Mutual Insurance Company, 11­
cv-335-JD (D.N.H. removed July 11, 2011).

In support, NUFIC

points out that the two cases involve the same parties and the
same dispute about the coverage under the same insurance
policies.

In his objection, Wenzel states only that the cases
5

are separate and that consolidation would be inappropriate and
inefficient, without providing any explanation.
Because the declaratory judgment actions appear to raise
common legal issues of policy interpretation and likely would
share factual issues, if any were to arise, consolidation is
appropriate.

Conclusion
The parties have filed timely objections to the potential
consolidation order (document no. 4 in 11-cv-335-JD and documents
2 and 3 in 11-cv-327-JL).

For the reasons stated in this order,

Wenzel v. Great Lakes Hydro America, LLC, 11-cv-327-JL (D.N.H.
removed July 5, 2011), and Wenzel v. National Union Fire
Insurance Company of pittsburgh, PA, and National Grange Mutual
Insurance Company, 11-cv-335-JD (D.N.H. removed July 11, 2011),
are not consolidated.
The motion to consolidate the declaratory judgment actions
(document no. 8 in 11-cv-303-JD and document no. 9 in ll-cv-335­
JD) is granted.

National untion Fire Insurance Company of

pittsburgh, PA v. National Grange Mutual Insurance Company and
Cody Wenzel, 11-cv-303-JD (D.N.H. filed June 23, 2011), and
Wenzel v. National Union Fire Insurance Company of pittsburgh,
PA,

and National Grange Mutual Insurance Company, 11-cv-335-JD
6

· .

(D.N.H. removed July 11, 2011), are consolidated for all
purposes.
SO ORDERED.

September 1, 2011
cc:

Christopher E. Grant, Esq.
Alexander G. Henlin, Esq.
Elizabeth L. Hurley , Esq.

7