Tunnell Hill Reclamation LLC et al v. Endurance American Speciality Insurance Company

Filing 31

ORDER denying 9 Motion for Judgment on the Pleadings; granting in part and denying as moot in part 27 Motion to Bifurcate. Specifically, the motion to stay discovery pending resolution of the motion for judgment on the pleadings is DENIED AS MOOT. The motion to bifurcate the bad-faith claim and stay discovery on that claim is GRANTED. Signed by Judge Algenon L. Marbley on 7/12/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TUNNELL HILL RECLAMATION, LLC,
Plaintiff,
v.
ENDURANCE AMERICAN,
SPECIALTY INSURANCE CO.,
Defendant.

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Case No. 2:15-CV-2720
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

OPINION & ORDER
This insurance coverage dispute is before the Court on Defendant Endurance American
Specialty Insurance Company’s Motion for Judgment on the Pleadings. (Doc. 9.) The Court
DENIES the Motion. In addition, the Court DENIES AS MOOT in part and GRANTS in
part the Motion to Bifurcate and Stay Discovery. (Doc. 27.)
I.

BACKGROUND

A. Factual Background
On January 27, 2012, Defendant Endurance American Specialty Insurance Company
(“Endurance”), an insurance carrier incorporated in Delaware with a principal place of business
in New York, issued an insurance policy to Plaintiff Tunnell Hill Reclamation, LLC (“Tunnell
Hill”), a landfill operator in Perry County, Ohio, for a landfill at 2500 Township Road 205,
Route 2, New Lexington, Ohio. (Compl., Doc. 1 at ¶¶ 2, 9, 11.) The period of coverage for the
policy (“policy period”) was January 29, 2012 to January 29, 2013. (Id. at ¶ 14.) The policy
consisted of the following coverage sections: occurrence-based Commercial General Liability
(“CGL”); claims-based Contractors Pollution Liability (“CPL”); and claims-based
Environmental Impairment Liability (“EIL”). (Id. at ¶ 10.)
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The EIL portion of the policy reads as follows:
The Company shall pay, up to the Limits of Liability and in excess of the Self-Insured
Retention, on behalf of the Insured all:





Cleanup Costs of the Insured
Liabilities for Property Damage to a Third Party (including Cleanup Costs)
Liabilities for Bodily Injury to a Third Party; and
Defense Expenses

resulting from Pollution Conditions at, upon, within, under or migrating from a
Scheduled Location which commenced during the Policy Period or after the Retroactive
Date, if any and were Discovered and reported to the Company during the Policy Period,
the Automatic Extended Reporting Period or the Optional Extended Reporting Period, if
any. A Claim under this coverage must be reported to the Company in accordance with
Section VII. Conditions.
(Environmental Impairment Liability Policy, Doc. 1-1 at 4.) The retroactive date for the landfill
in question is January 29, 2000. (Compl., Doc. 1 at ¶ 15.)
The policy further defines the following terms:


Discovered
The term Discovered means the point in time at which any officer, director,
executive or employee responsible for environmental compliance of an Insured
becomes aware of the existence of a Pollution Condition.



Pollutant(s)
The term Pollutant(s) means any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, toxic
chemicals, liquids or gases, other irritants or contaminants or any discarded
materials of any kind . . . .



Pollution Conditions(s)
The term Pollution Condition(s) means the gradual or sudden unintended
discharge, dispersal, release or escape of Pollutants at, upon, within, under or
migrating from a Scheduled Location which the Insured had not Discovered at the
time of inception of this Policy, unless such previously Discovered Pollution
Condition has been listed by endorsement, is first reported to the Company during
the Policy Period, and commenced during the Policy Period or after the
Retroactive Date, if any.

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(Environmental Impairment Liability Policy, Doc. 1-1 at 8, 12.)
The policy contains an exclusion provision, which states that the policy “does not cover
any Claims arising out of, based upon, resulting from or with respect to . . . Known Conditions,”
which are defined as “[a]ny Pollution Conditions Discovered prior to the inception of this Policy.
This exclusion does not apply to Pollution Conditions disclosed to the Company prior to the
inception of this Policy and specifically listed by endorsement.” (Id. at 14-15.) The policy does
not list any pollution condition by endorsement. (See Doc. 1-1.)
Finally, the policy provides that Endurance “has the right and the duty to defend the
Insured against any Claim resulting from a Pollution Condition,” and that “[t]he Company’s duty
to defend the Insured shall terminate when the Company establishes (i) the absence of coverage
under the terms of conditions of this Policy; or (ii) the Limits of Liability have been exhausted.”
(Id. at 22.)
On September 20, 2012, during the policy period, several individuals filed suit against
Tunnell Hill and its parent company in the Perry County Court of Common Pleas (the “Baker
litigation”). (Compl., Doc. 1 at ¶ 16.) The plaintiffs in that case asserted that Tunnell Hill and
its parent company failed to control landfill gas emissions from the landfill, creating a nuisance
that harmed the plaintiffs. (Id.) The Baker plaintiffs’ amended complaint alleged that on or
shortly after July 2011, Tunnell Hill knew about the noxious odor. (Baker Am. Compl., Doc. 131 at ¶ 17.) Tunnell Hill notified Endurance of the Baker litigation on September 25, 2012 and
Defendant responded that it would not defend or indemnify Tunnell Hill for the claims in that
case. (Compl., Doc. 1 at ¶¶ 19-20.) After the Baker plaintiffs voluntarily dismissed some of
their claims, the case proceeded to trial on the sole remaining claim for qualified private
nuisance, and the jury returned a verdict in the plaintiffs’ favor on the question of Tunnell Hill’s

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negligence. (Id. at ¶¶ 21, 24.) The issue of damages owed to the Baker plaintiffs remains
pending before the state trial court. (Id. at ¶ 25.)
B. Procedural History
Tunnell Hill filed a complaint against Endurance on August 14, 2015, bringing claims for
bad faith, breach of contract, and unjust enrichment, as well as a declaratory judgment under 28
U.S.C. §§ 2201 and 2202 that Endurance has a duty to defend and indemnify Tunnell Hill in the
Baker litigation. (Doc. 1 at ¶¶ 27-54.) On October 12, 2015, Endurance filed an answer as well
as a counterclaim for declaratory judgment that it owes no duty to defend or indemnify Tunnell
Hill in that litigation. (Doc. 6.) Endurance then filed a Motion for Judgment on the Pleadings,
which Tunnell Hill opposes. (Docs. 9, 13.) Endurance later filed a motion seeking to: (1) stay
discovery pending the resolution of the motion for judgment on the pleadings; (2) bifurcate the
bad-faith and punitive-damages claims from all other claims; and (3) stay discovery on the badfaith claim pending the resolution of all other claims. (Doc. 27.) Tunnell Hill failed to respond
to that motion.
II.

STANDARD OF REVIEW

When a motion for judgment on the pleadings under Federal Rule of Civil Procedure
12(c) is based on the argument that the complaint fails to state a claim upon which relief may be
granted, it is judged under the same legal standard as a Rule 12(b)(6) motion. Morgan v.
Church’s Fried Chicken, 829 F.2d 10, 11 (6th Cir. 1987) (“Where the Rule 12(b)(6) defense is
raised by a Rule 12(c) motion for judgment on the pleadings, we must apply the standard for a
Rule 12(b)(6) motion in reviewing the district court’s decision.”). The Court will grant the Rule
12(c) motion “when no material issue of fact exists and the party making the motion is entitled to
judgment as a matter of law.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th

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Cir. 2007) (quoting Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th
Cir. 1991)).
When a party moves for judgment on the pleadings, the Court must construe “all wellpleaded material allegations of the pleadings of the opposing party . . . as true, and the motion
may be granted only if the moving party is nevertheless clearly entitled to judgment.” Id. at 581.
The Court is not required, however, to accept as true mere legal conclusions unsupported by
factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In addition to allegations in the complaint, the Court may take into account “matters of
public record, orders, items appearing in the record of the case, and exhibits attached to the
complaint.” Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997) (citation omitted).
Further, documents that the defendant attaches to its motion “are considered part of the pleadings
if they are referred to in the plaintiff’s complaint and are central to her claim.” Amini v. Oberlin
College, 259 F.3d 493, 502 (6th Cir. 2001) (quoting Weiner v. Klais & Co., 108 F.3d 86, 89 (6th
Cir. 1997)).
III.

MOTION FOR JUDGMENT ON THE PLEADINGS

Defendant argues that it is entitled to judgment because Plaintiff discovered the pollution
condition prior to the inception date of the policy but failed to report it to Endurance before the
policy went into effect or to obtain a “known condition” endorsement. (Doc. 9 at 11.)
A. Declaratory Judgment
The interpretation of clear, unambiguous terms in an insurance contract is ordinarily a
question of law. Costanzo v. Nationwide Mut. Ins. Co., 832 N.E.2d 71, 77 (Ohio Ct. App. 2005).
When the language of a contract is clear and unambiguous, a court may look no further than the
terms of the contract to discern the intent of the parties. Westfield Ins. Co. v. Galatis, 797 N.E.2d

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1256, 1261 (Ohio 2003). When “a contract is ambiguous, a court may consider extrinsic
evidence to ascertain parties’ intent.” Id. Ambiguous contract language is construed liberally in
favor of the insured and against the insurer. Faruque v. Provident Life & Acc. Ins. Co., 508
N.E.2d 949, 952 (Ohio 1987).
Tunnell Hill seeks a declaratory judgment that Endurance has a duty to defend and
indemnify it in the Baker litigation, and Endurance, in its counterclaim, requests a declaratory
judgment that it has no such duty. An insurer’s duty to indemnify arises when liability exists
under the policy. Riverside Ins. Co. v. Wiland, 474 N.E.2d 371, 375 (Ohio Ct. App. 1984). If
the act is indisputably outside the policy’s coverage, there is no duty to indemnify. Preferred
Risk Ins. Co. v. Gill, 507 N.E.2d 1118, 1124 (Ohio 1987). An insurer’s duty to defend is a
contractual obligation and is distinct from its duty to indemnify. There is no duty to defend if the
Court finds that the complaint’s “allegations do not fall within the coverage provided.” Zanco v.
Mich. Mut. Ins. Co., 464 N.E.2d 513, 515 (Ohio 1984) (per curiam).
Endurance contests coverage here, contending that Tunnell Hill has not pleaded facts that
it discovered the pollution condition at issue during the policy period. According to Endurance,
the trial testimony of Tunnell Hill Chief Executive Officer William Gay and General Manager
Rodney Deeds in the Baker litigation establishes that Tunnell Hill discovered the hydrogen
sulfide odor problem in December 2011, before the policy period commenced, and there is no
dispute that it did not report the problem to Endurance before the start of the policy period.
(Doc. 20 at 3.) Tunnell Hill does not deny that it discovered an odor problem in December 2011
but argues that this odor emission was a sporadic event, distinct from the later odor problems
identified by the Baker plaintiffs, and Deeds also characterized the December 2011 odor problem
as such during the Baker trial. (Doc. 13 at 8.) In support of this position, Tunnell Hill points out

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that the landfill was inspected numerous times by the Ohio Environmental Protection Agency
(“OEPA”) and the Perry County Health Department (“PCHD”) and on many occasions received
no notices of violation. (Id. at 7; Ex. E.) Accordingly, Tunnell Hill suggests that the noxious
odors emitted after the policy period commenced ought to be considered distinct pollution
conditions that are subject to coverage under the EIL policy.1 (Doc. 13 at 7.)

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Tunnell Hill invokes the doctrine of expressio unius est exclusio alterius, that is, that “where
specific items are listed in a document such as a contract, any item not so listed is typically
thought to be excluded.” Caldwell v. The PNC Fin. Servs. Grp., Inc., 835 F. Supp. 2d 510, 523
(S.D. Ohio 2011). Pointing to the CGL section of the policy, which defines “occurrence” as “an
accident, including continuous or repeated exposure to substantially the same general harmful
conditions,” Tunnell Hill contends that because the EIL coverage section of the policy was
drafted not to include “continuous or repeated exposure,” the EIL section should be construed as
providing coverage for the odor events at issue in the Baker litigation, which constituted separate
and distinct events discovered during, not before, the policy period. (Doc. 13 at 10-11.) Tunnell
Hill’s reliance on the definition of “occurrence” is somewhat misplaced. The EIL policy is a
claims-based policy while the CGL policy is an occurrence-based policy. (Insurance Policy,
Doc. 1-1 at 1-2.) These two types of policies are “materially different.” Buckeye Ranch, Inc. v.
Northfield Ins. Co., 839 N.E.2d 94, 98 (Ohio Ct. Com. Pl. 2005). “A claims-made policy
provides protection when claims are brought against an insured during the life of the policy,
while an occurrence-based policy provides coverage when allegedly wrongful acts occur during
the policy period without regard to when a claim is presented or a suit is filed.” Id. (citing
Mueller v. Taylor Rental Ctr., 667 N.E.2d 427, 429 (Ohio Ct. App. 1995)). In United States v.
A.C. Strip, the Sixth Circuit, applying Ohio law, held as follows:
The . . . policy coverage language is written in plain, unambiguous language and clearly
states that a claim must be made and reported within the policy period. It is exactly this
aspect of a claims made policy that distinguishes it from an occurrence policy. Claims
made policies, unlike occurrence policies, are designed to limit liability to a fixed period
of time. To allow coverage beyond that period would be to grant the insured more
coverage than he bargained for and paid for, and to require the insurer to provide
coverage for risks not assumed.
868 F.2d 181, 187 (6th Cir. 1989). Here, the policy adds a condition to the claims-based EIL
coverage that Tunnell Hill must not have discovered the pollution condition before the policy
period. Because this claims-based, or perhaps more accurately, discovery-based coverage is an
entirely different kind of coverage than the occurrence-based CGL coverage for which the
parties bargained, the Court finds it unconvincing that the language of the CGL policy
conclusively establishes the meaning of the disputed terms in the EIL policy. Because an
occurrence-based policy covers any event occurring within the policy period regardless of when
the claim is made, it is necessary to clarify that the “accident” covered could include continuous
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Defendant points to trial testimony in the Baker litigation from Deeds and Gay that they
gained knowledge of a hydrogen sulfide odor problem in December 2011. (Gay Tr., Doc. 9, Ex.
C at 17, 21; Deeds Tr., Doc. 9, Ex. B at 69-70.) Gay also testified that at this same time he
became aware that the pollution condition was caused by work on the tie-in project, an operation
to expand the facility to begin operating a new discrete waste cell adjacent to the existing waste
cells. (Gay Tr. at 21-22; see Deeds Tr. at 74.) The Baker amended complaint alleged that
between December 22, 2011 and November 9, 2012 (the date the Baker amended complaint was
filed), the OEPA had issued no fewer than 14 notices of violation for failure to control odors and
between January 12, 2012 and November 9, 2012, the PCHD had issued no fewer than 11
notices of violation for failure to control odors and implement an odor management plan. (Baker
Am. Compl., Doc. 13-1 at ¶¶ 30-31.)2
Deeds and Gay also testified at trial, however, that the odor events were “sporadic and”
and “not continuous.” (Deeds Tr., Doc. 13-6 at 126; Gay Tr., Doc. 13-7 at 35.) More
importantly, OEPA inspector Erika Jackson testified that it was unpredictable when a facility
would have hydrogen sulfide odors and that the OEPA had conducted other inspections that had
not identified any odors. (Jackson Tr., Doc. 13-2 at 86, 120.) And PCHD inspector Cary
Bowers testified that he had conducted an unannounced, weekly or twice-weekly visit to the
landfill during the time period in question, as well as thorough quarterly inspections, and that
most of the inspections yielded no odors. (Bowers Tr., Doc. 13-3 at 162-63, 247-48, 285.)

exposure (that is, the precipitating event that caused the continuous exposure might have
occurred before the policy period). Therefore, the Court does not rely on this argument in
denying Endurance’s motion for judgment on the pleadings.
2

It is unclear from the face of the complaint or any of the attached documents or other public
records submitted by either party how many of these violations occurred before the beginning of
the policy period on January 29, 2012.
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Inspection records attached to Plaintiff’s opposition to Defendant’s motion for judgment on the
pleadings show that on dozens of occasions between July 11, 2011 and April 2, 2015 the landfill
was inspected by OEPA and PCHD and the inspections revealed no violations, including odor
problems, at the landfill. (See Doc. 13-5.) Most notably, there were inspections that yielded no
violations on the following dates during the year preceding the inception of the policy and the
year of the policy period: March 29, 2012, July 11, 2012, December 20, 2012, March 26, 2013,
April 16, 2013, April 23, 2013, July 11, 2013, August 30, 2013, October 28, 2013, and
November 5, 2013. (Doc. 13-5 at 15, 17, 22, 24-25, 26, 27, 28, 30, 32, 34.)
The parties dispute whether the term “pollution conditions” in the EIL policy was
intended to include odor events such as those at issue in the Baker litigation, and both have
reasonable arguments in light of the language of the contract and the history of inspections
regarding odor events at the landfill. But to the extent that the parties offer “plausible
interpretations of the agreement drawn from the contractual language itself[,] [this] demonstrates
that the provision is ambiguous” and thus the Court finds that it is not appropriate for resolution
on a motion for judgment on the pleadings. Int’l Union UAW Local 91 v. Park-Ohio Indus., Inc.,
876 F.2d 894, 1989 WL 63871, at *6 (6th Cir. 1989) (unpublished).
Nor does the Court find convincing Defendant’s assertion in its reply brief that the
“known loss,” or “loss-in-progress,” doctrine requires judgment in its favor because “one cannot
buy insurance coverage for a loss already known to be in progress.” (Doc. 20 at 9.) The known
loss doctrine generally stands for “the principle that losses which exist at the time of the insuring
agreement, or which are so probable or imminent that there is insufficient ‘risk’ being transferred
between the insured and the insurer, are not proper subjects of insurance.” Burlington Ins. Co. v.
PMI Am., Inc., 862 F. Supp. 2d 719, 732-3 (S.D. Ohio 2012) (quoting 7 Couch on Insurance §

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102.8). But this doctrine has not been adopted by Ohio courts. See id. at 733 (recognizing that
no Ohio court has adopted the loss-in-progress doctrine and two Ohio courts have rejected it);
see also Fifth Third Mortg. Co. v. Chicago Title Ins. Co., 692 F.3d 507, 513 (6th Cir. 2012)
(“Whether Ohio recognizes the known-loss doctrine is unclear.”); Owens-Corning Fiberglas
Corp. v. Am. Centennial Ins. Co., 660 N.E.2d 770, 777-78 (Ohio Ct. Com. Pl. 1995). One Ohio
trial court, in declining to apply the doctrine, reasoned that “awareness by the [insured] of an act
that might someday result in ‘damages’ is not equivalent to knowledge of damages.” Buckeye
Ranch, Inc. v. Northfield Ins. Co., 839 N.E.2d 94, 105 (Ohio Ct. Com. Pl. 2005). It is unclear
whether the damages that ultimately resulted from the hydrogen sulfide odor events during the
policy period would have been known to Tunnell Hill before the inception of the policy period
simply because Tunnell Hill knew that the tie-in project caused the earlier odor events. This is
especially so because, according to Deeds, Tunnell Hill had conducted at least three other tie-in
projects that did not result in noxious odors. (See Deeds Tr., Doc. 9, Ex. B. at 71-72.) The
Court, therefore, declines to apply the doctrine here.
Construing the testimony in the Baker litigation in the light most favorable to Tunnell
Hill as required on a Rule 12(c) motion, Endurance is not “clearly entitled to judgment.” Winget,
510 F.3d at 581. The Court DENIES Endurance’s motion for judgment on the declaratoryjudgment claims.
B. Breach of Contract and Bad Faith Claims
Endurance argues that it cannot be held liable for breach of contract or bad faith because
it owed no duty to defend or indemnify Tunnell Hill for the claims at issue in the Baker litigation
and, therefore, these claims must fail as a matter of law. (Doc. 9 at 19-21.) Because Endurance
makes no other argument that these claims should be dismissed absent the dismissal of Tunnell

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Hill’s declaratory judgment claims, Endurance’s motion for judgment on these claims is
DENIED.
C. Unjust Enrichment
It is well established that Ohio law does not permit recovery under the theory of unjust
enrichment when an express contract covers the same subject. See Aultman Hosp. Ass’n v.
Community Mut. Ins. Co., 544 N.E.2d 920, 924 (Ohio 1989). Plaintiff acknowledges as much
but argues that it is entitled to plead alternative theories of recovery under Federal Rule of Civil
Procedure 8(d). (Doc. 13 at 13.); Miami Valley Paper, LLC v. Lebbing Eng’g & Consulting
GMBH, No. 1:05-cv-702, 2006 WL 2924779, at *3 (S.D. Ohio Oct. 10, 2006) (rejecting
defendant’s argument that plaintiff’s unjust-enrichment claim was preempted even though it was
undisputed that the parties had an express contract). See also United States ex rel. Roby v.
Boeing Co., 184 F.R.D. 107, 112-13 (S.D. Ohio 1998); Auto Chem Laboratories, Inc. v. Turtle
Wax, Inc., No. 3:07-cv-156, 2008 WL 4372697, at *15 n.20 (S.D. Ohio Sept. 23, 2008). The
Court agrees that under Rule 8(d) a plaintiff may plead both breach of contract and unjust
enrichment even though it may not ultimately recover for both. Defendant’s motion for
judgment on the unjust-enrichment claim is DENIED.
IV.

MOTION TO BIFURCATE AND STAY DISCOVERY

On May 31, 2016, Defendant filed a motion seeking to: (1) stay discovery pending the
resolution of the motion for judgment on the pleadings; (2) bifurcate the bad-faith claim from the
other claims in this suit; and (3) stay discovery on the bad faith claim pending resolution of the
other claims in the suit. (Doc. 27 at 1.) Plaintiff did not respond to the motion.
Because the Court has now ruled on the motion for judgment on the pleadings, the
motion to stay discovery pending resolution of that motion is DENIED AS MOOT.

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As to the request to bifurcate the bad-faith claim from the other claims and stay discovery
on that claim, Endurance argues that such a ruling is necessary because it would prevent
prejudice to Endurance that “would undoubtedly result from the disclosure of attorney-client
communications and work product materials that would flow from Tunnell Hill's entitlement to
discovery in connection with its cause of action for bad faith.” (Doc. 27 at 9.) Endurance also
asserts that bifurcation and a stay would serve the interests of judicial economy and avoid juror
confusion because resolution of the coverage issue in its favor would potentially moot the badfaith claim and dispose of the litigation entirely. (Id.) Finally, Endurance contends that
bifurcation is mandatory here because Tunnell Hill seeks punitive damages for its bad faith
claim, and Ohio Revised Code § 2315.21(B) mandates that a court bifurcate the compensatory
and punitive damages phases of a tort action. (Id. at 11.)
The decision whether to bifurcate discovery lies within the sound discretion of the trial
court. Smith v. Allstate Ins. Co., 403 F.3d 401, 407 (6th Cir. 2005). Plaintiff has failed to
respond to Defendant’s motion, and the Court generally finds Defendant’s arguments, at least as
to the mandatory nature of bifurcation of the bad faith claim from the other claims at trial, well
taken. See Maxey v. State Farm Fire & Cas. Co., 569 F. Supp. 2d 720, 724 (S.D. Ohio 2008)
(“Plaintiff's claims for bad faith are torts, and therefore subject to [Ohio Rev. Code] §
2315.21(B)(1).”); Stewart v. Siciliano, 985 N.E.2d 226, 233 (Ohio Ct. App. 2012) (“Although [§
2315.21(B)(1)] does not require bifurcation of the breach of contract claim and the bad faith
claim, it does require the bifurcation of the presentation of evidence of compensatory damages
and that of punitive damages regarding the bad faith tort claim.”).
Although Ohio law does not require a stay of discovery on the bad-faith claim even when
the presentation of evidence at trial must be bifurcated, see Boone v. Vanliner Ins. Co., 744

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N.E.2d 154, 158 (Ohio 2001) (holding that a stay of discovery is within the discretion of the
district court), the Court finds that a stay is appropriate here. Because the merits of the bad-faith
claim depend on the outcome of the coverage issue, it is reasonable to stay discovery of the badfaith claim until the resolution of the coverage-related claims. Smith, 403 F.3d at 407. Such a
course of action is likely to streamline and expedite final adjudication of this action. Defendant’s
motion to bifurcate the bad-faith and punitive-damages claims from the other claims in this suit
and to stay discovery of the bad-faith and punitive-damages claims pending resolution of the
other claims is GRANTED.
V.

CONCLUSION

For the foregoing reasons, Defendant’s Motion for Judgment on the Pleadings is
DENIED. (Doc. 9.) Defendant’s Motion to Bifurcate and Stay Discovery is DENIED AS
MOOT in part and GRANTED in part. (Doc. 27.) Specifically, the motion to stay discovery
pending resolution of the motion for judgment on the pleadings is DENIED AS MOOT. The
motion to bifurcate the bad-faith claim and stay discovery on that claim is GRANTED.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: July 12, 2016

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