McBrayer et al v. Hartford Insurance Company of the Midwest
Filing
31
MEMORANDUM OPINION AND ORDER pursuant to the 11 MOTION by Hartford Insurance Company of the Midwest to Bifurcate and Stay; denying said motion as to discovery; inasmuch as the motion requests bifurcation for the purposes of trial, directing that defendant's motion is denied without prejudice to its renewal after the completion of discovery. Signed by Judge John T. Copenhaver, Jr. on 8/14/2018. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JOHN MCBRAYER, and
VIRGINIA MCBRAYER
Plaintiffs,
v.
Civil Action No. 2:17-cv-4384
HARTFORD INSURANCE COMPANY
OF THE MIDWEST
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant’s motion to
bifurcate and stay, filed May 22, 2018.
I.
This case arises from a car accident that occurred on
Interstate 77 in Kanawha County, West Virginia on or about
October 20, 2015.
Complaint ¶¶ 3-5.
Plaintiff John McBrayer
was operating a vehicle while traveling south on Interstate 77
when he applied his brakes to avoid an obstruction in the road.
Id. at ¶ 3.
At that time, another driver, Hayley Keyser,
crashed into the rear of Mr. McBrayer’s vehicle, causing him to
suffer “harms and losses . . . injur[ies] in and about his neck,
back and shoulder, and other parts of his body . . . permanent
injuries . . . pain and suffering, both in the past and in the
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future . . . an impairment of the capacity to enjoy life both
past and future . . . last wages . . . and annoyance,
aggravation, and mental anguish.”
Id. at ¶¶ 5-6.
As a result
of these harms and injuries, plaintiff Virginia McBrayer “has
been deprived of the loss of society, companionship, and
consortium of her husband, John McBrayer.”
Id. at ¶ 7.
Hayley Keyser was operating an underinsured motor
vehicle and was, at all times relevant to the complaint, an
underinsured motorist.
Id. at ¶ 14.
The McBrayers were insured
under a policy issued to them by Hartford Insurance Company of
the Midwest (“Hartford”), which included underinsured motorist
coverage in the amount of $50,000.00.
Id. at ¶ 9.
Any claims
plaintiffs had against the other driver, Hayley Keyser, were
settled by payments of her bodily injury liability insurance
carrier, Erie Insurance Company.
Id. at ¶ 13.
subrogation and consented to this settlement.
Hartford waived
Id. at ¶ 14.
On April 11, 2017, plaintiffs submitted medical
records to Hartford detailing Mr. McBrayer’s permanent injuries
as a result of the October 20, 2015 crash and demanding payment
of $50,000.00 under plaintiffs’ underinsured motorist coverage.
Id. at ¶ 15.
Hartford made an initial offer of $7,500.00 to
settle the claim on April 27, 2017.
Id. at ¶ 16.
On June 5,
2017, Hartford increased its offer to $10,000.00 with no
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explanation as to why the offer was increased.
Id. at ¶¶ 20-21.
On September 25, 2017, plaintiffs’ counsel rejected the offer of
$10,000 and reiterated the demand for $50,000.00 per the policy
limits.
Id. at ¶ 22.
The next day, Hartford made an offer of
$15,000.00 to settle the claim and again provided no information
to support this offer or the increase over previous offers.
at ¶¶ 23-24.
Id.
Unsatisfied with the third offer, plaintiffs then
brought this suit against Hartford alleging breach of contract,
common law bad faith, and unfair trade practices in violation of
W. Va. Code § 33-11-4(9) and W. Va. Code R. § 114-14-6.4.
See
Id. at ¶¶ 33-35, 41-50.
Defendant now moves to bifurcate this case “so as to
isolate the contractual issue and stay all proceedings and
discovery on the remaining claims.”
Def’s. Mot. at 1.
Hartford
represents that such bifurcation would promote judicial economy,
avoid undue prejudice to defendant, prevent confusion of issues,
and will not result in duplicative efforts because “resolution
of the breach of contract issue could eliminate the need to try
plaintiffs’ remaining claims.”
Def’s. Mem. Supp. Mot. 1, 4.
Plaintiffs oppose this motion.
See generally Pls.’ Resp.
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II.
Federal Rule of Civil Procedure 42(b) provides as
follows:
(b) Separate Trials. For convenience, to avoid
prejudice, or to expedite and economize, the court
may order a separate trial of one or more separate
issues, claims, crossclaims, counterclaims, or
third-party claims. When ordering a separate trial,
the court must preserve any federal right to a jury
trial.
Fed. R. Civ. P. 42(b).
In Light v. Allstate Ins. Co., 203 W.
Va. 27, 506 S.E.2d 64 (1998), the Supreme Court of Appeals of
West Virginia revisited its holding in State ex rel. State Farm
Fire & Casualty Co. v. Madden, 192 W. Va. 155, 451 S.E.2d 721
(1994).
In Madden, it was implied that bifurcation and stay of
a third-party claim of bad faith against an insurer are
mandatory; however, the Light decision provides that “in a
first-party bad faith action . . . ., bifurcation and stay of
the bad faith claim from the underlying action are not
mandatory,” thus leaving it to the discretion of the court.
203 W. Va. at 35, 506 S.E.2d at 72; see Scarberry v. Huffman,
Id.
No. 3:10-0831, 2010 WL 4068923, 2010 U.S. Dist. LEXIS 110239
(S.D. W. Va. Oct. 15, 2010).
To guide the trial court’s exercise of discretion
concerning the propriety of a bifurcation and stay, Light
contains six applicable factors for consideration: (1) the
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number of parties in the case, (2) the complexity of the
underlying case against the insurer, (3) whether undue prejudice
would result to the insured if discovery is stayed, (4) whether
a single jury will ultimately hear both bifurcated cases, (5)
whether partial discovery is feasible on the bad faith claim and
(6) the burden placed on the trial court by imposing a stay on
discovery.
Id.
The proponent of the stay and bifurcation bears
the burden of persuasion.
Id.
The court now considers the Light factors in turn.
1. Number of Parties
There are relatively few parties to the pending
action: plaintiffs, the McBrayers, and defendant Hartford.
All
parties are concerned with all three of the counts asserted
against Hartford.
This factor weighs in favor of proceeding
with discovery on all claims.
2. Complexity of Underlying Case
The facts and claims at issue in this matter do not
appear to be complex.
All claims asserted against Hartford stem
from the same accident and alleged deficiencies in Hartford’s
claim negotiations.
While the claims for bad faith and unfair
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trade practices are separate from the question of whether a
breach of contract occurred, they do not render this case so
complex that a bifurcation of discovery is necessary.
3. Undue Prejudice to Insured
The plaintiffs, as the insured, would likely be unduly
prejudiced by the delay and costs associated with potentially
duplicative discovery that could result from a bifurcation at
this time.
While it is true that resolution of plaintiffs’
claims for bad faith and unfair trade practices could be
rendered moot by a finding that Hartford did not breach the
contract, this does not summarily outweigh the potential
prejudice of a protracted discovery process.
If discovery is
bifurcated, plaintiffs may be put in the position of having to
depose Hartford’s representatives multiple times.
Additionally,
the parties have an increased ability to settle these claims
without court intervention when all facts on all issues are
known to the parties.
4. Single Jury
The bifurcation and stay of discovery could result in
two jury trials before separate juries.
Inasmuch as discovery
for the second phase would not begin until verdict by the first
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jury, a new jury would in due course be required if plaintiffs
prevailed in the first phase.
This imposes an additional burden
on the court and the parties.
5. Feasibility of Partial Discovery
There is no indication that partial discovery would be
unfeasible.
Even so, the practical advantages of unified
discovery as well as the potential burden on plaintiffs in
staying discovery on two of their three claims tends to outweigh
this factor.
6. Burden on Court by Imposing Stay
Again, the burden on the court would likely be
increased by the bifurcation and stay of discovery on a portion
of the plaintiffs’ claims, resulting in two jury trials instead
of one.
If discovery were bifurcated, the court may be put in
the position of resolving similar discovery disputes at both
stages.
Further, the evidence and witnesses will likely have
significant overlap on all claims, and the resolution of
potential dispositive motions may be more easily done when the
court is in receipt of all of the relevant evidence.
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Because the Light factors weigh strongly in favor of
proceeding with unified discovery, Hartford’s motion is denied.
This determination comports with the result reached in similar
cases in this court, the majority of which deny such motions to
bifurcate and stay discovery.
See, e.g., Sheppard v. Direct
Gen. Ins. Co., No. 3:16-11418 2017 U.S. Dist. LEXIS 93616 (S.D.
W. Va. June 19, 2017); Wilkinson v. Mut. Of Omaha Ins. Co., No.
2:13-cv-09356, 2014 WL 880876, 2014 U.S. Dist. LEXIS 28599 (S.D.
W. Va. March 6, 2014); Scarberry v. Huffman, No. 3:10-0831, 2010
WL 4068923, 2010 U.S. Dist. LEXIS 110239 (S.D. W. Va. Oct. 15,
2010); Chaffin v. Watford, No. 3:08-0791, 2009 WL 772916, 2009
U.S. Dist. LEXIS 22314 (S.D. W. Va. March 18, 2009); Holley v.
Allstate Ins. Co., No. 3:08-1413, 2009 U.S. Dist. LEXIS 75794
(Feb. 12, 2009); Tustin v. Motorists Mut. Ins. Co., No.
5:08CV111, 2008 WL 5377835, 2008 U.S. Dist. LEXIS 103368 (S.D.
W. Va. Dec. 22, 2008).
Contra Ferrell v. Brooks, No. 5:05CV115,
2006 WL 1867267, 2006 U.S. Dist. LEXIS 48918 (N.D. W. Va. June
30, 2006) (granting bifurcation and stay of discovery upon
parties’ joint motion).
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Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain events must occur:
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
III.
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
In accordance with the foregoing discussion, it is
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016
Last day for Rule 26(f) meeting.
ORDERED that defendant’s motion to bifurcate and stay be, and it
02/15/2016
Last day discovery. Inasmuch as the motion
hereby is, denied as to to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
requests bifurcation for the purposes of trial, it is ORDERED
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
that defendant’s motion be, and it hereby is, denied without
the undersigned, unless canceled. Lead counsel
directed to appear.
prejudice to its renewal after the completion of discovery.
02/29/2016
Entry of scheduling order.
03/08/2016The Clerk day directed to forward P 26(a)(1) this
Last is to serve F.R. Civ. copies of disclosures.
written opinion and order to all counsel of record and any
The Clerk is requested to transmit this Order and
unrepresented parties. of record and to any unrepresented
Notice to all counsel
parties.
DATED: August 14, 2018
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge
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