Welton Enterprises, Inc. et al v. The Cincinnati Insurance Company

Filing 171

ORDER precluding defendant from presenting non-cooperation defense and allowing plaintiff to submit proffer on bad faith claim. Final conference Monday at 10:30 am with jury selection at 11:00 am. Signed by District Judge William M. Conley on 09/25/2015. (mfh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WELTON ENTERPRISES, INC., WELTON
FAMILY LIMITED PARTNERSHIPS and 3PP
PLUS LIMITED PARTNERSHIP,

Plaintiffs,

ORDER

v.
13-cv-227-wmc
THE CINCINNATI INSURANCE COMPANY,
Defendant.

Upon learning during a telephonic status conference held yesterday, September 24th,
that plaintiffs’ counsel was laboring under the misimpression that the court had afforded
plaintiffs the right to make a new proffer on their bad faith claim on the morning of jury
selection -- ostensibly based on comments of the court during the final pretrial conference
held on Tuesday, September 22nd -- the court will endeavor in writing in this order to state
simply what actually remains for trial, as well as what is expected from the parties in advance.
As a preliminary matter, having reviewed the rough transcript from the final pretrial
conference, it is plain that plaintiffs’ counsel was not listening with any care, or as likely
simply heard what he or perhaps his client wanted to hear.1 Contrary to plaintiffs’ counsel’s
characterizations yesterday, the court repeatedly stated during Tuesday’s pretrial conference,
including in the context of discussing plaintiffs’ motion for reconsideration, that plaintiffs’
bad faith claim was no longer in this case. (For example, the court stated at various times

Perhaps this should be unsurprising, since misunderstandings have marked the interactions between
the parties since shortly after the hail storm at issue here. Defendant’s counsel also shares in the
confusion by stating in a letter it electronically filed on Wednesday, September 23rd, the day after the
pretrial conference, that it understood the court wanted to “hear offers of proof” on “plaintiffs’ bad
faith case” on the morning of jury selection.
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that “bad faith is out,” “the bad faith issue is one that has been decided as a matter of law”
and, again, “bad faith is out.”)
In an obviously failed attempt to avoid confusion, the court did state during the
pretrial conference that defendant’s counsel would have the opportunity to make a written
proffer with respect to its noncooperation defense by noon on Thursday, in advance of
yesterday’s telephonic conference. If necessary, the court also indicated that it would hear
evidence on this defense on the Monday of trial outside the jury’s presence. Only in the
context of such a hearing did the court refer to plaintiffs’ counsel proffering counter-evidence
regarding Cincinnati’s own lack of cooperation.

Toward the end of the final pretrial

conference, in response to defendant’s counsel expressing a concern about “whether bad faith
and cooperation are in or out,” the court even emphasized that:

“bad faith is out and

noncooperation is teetering” for lack of a showing of prejudice. The court then indicated that
it would take up the noncooperation defense on Monday morning if defendant had shown
“by Thursday afternoon whether there’s anything to try.” Despite all this, plaintiffs’ counsel
somehow heard from this exchange that plaintiff had a renewed opportunity -- on the
morning of trial – to present evidence on the issue of bad faith, including additional evidence
that plaintiffs should have, but did not, present at summary judgment.
As explained at the outset of the conference yesterday afternoon, since defendant
failed to come forth with either facts or law supporting its claim of prejudice due to plaintiffs’
claimed noncooperation, defendant was precluded from presenting that defense at trial and,
of course, there would be no need for an evidentiary hearing.

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Histrionics from plaintiffs’ counsel followed.2 Even so, in direct contrast to plaintiffs’
counsel’s protestations of unfairness, the court did give plaintiffs one last opportunity to
make a proffer in writing on its bad faith case, provided it designated what facts had been
presented to the court in support of its bad faith claim at summary judgment. As plaintiffs’
counsel is hopefully now fully well aware, plaintiffs’ bad faith claim against defendant was
denied at summary judgment and has not been reconsidered. Nevertheless, the court will
carefully consider any written proffer on bad faith that plaintiffs submit today.
ORDER
IT IS ORDERED that:
1) defendant is precluded from presenting its non-cooperation defense;
2) plaintiffs may submit a written proffer on their bad faith claim by the end of the
day on Friday, September 25;
3) the court will hold a final conference at 10:30 am and begin selecting a jury at
11:00 am on Monday, September 28; and
4) the trial will begin at 8:30 am on Wednesday.
Entered this 25th day of September, 2015.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

At one point, plaintiffs’ counsel exhibited his perceived sense of unfairness by exclaiming “geez
louise!” The court attributes plaintiffs’ counsel’s lack of decorum during this telephonic hearing to
fatigue and surprise, but expects no similar outburst, especially in the presence of the jury.
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