Motion to Sever, Bifurcate, Trifurcate in FARRELL, JAIMIE v. LM GENERAL INSURANCE COMPANY| Trellis.Law

On November 21, 2022 a Motion,Ex Parte was filed involving a dispute between Jaimie Farrell, and Lm General Insurance Company, for C50 - Contracts - Uninsured/Underinsured Motorist Coverage in the District Court of New Haven County.

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DOCKET NO. UWY-CV226068125S : SUPERIOR COURT

JAIMIE FARRELL : J. D. OF WATERBURY

V. : AT WATERBURY

LM GENERAL INSURANCE : MARCH 17, 2023
COMPANY
PLAINTIFF’S OBJECTION TO
DEFENDANT’S MOTION TO BIFURCATE TRIAL

Pursuant to the Connecticut Rules of Court, the plaintiff hereby objects to

the defendant’s Motion to Bifurcate, dated March 3, 2023. In the defendant’s

motion, the defendant seeks to bifurcate the plaintiff’s contractual underinsured

motorist claims, from the plaintiff’s contractual breach of the implied covenant of

good faith and fair dealing claim. As set forth more fully below, the Motion to

Bifurcate should be denied because it would be inconvenient, inefficient, and a

waste of judicial resources. Any possible inconvenience or prejudice LM General

Insurance Company (“LM General”) claims would result is minimal and outweighed

by the need for judicial economy and justice.

I. BACKGROUND

This is a contractual claim that arises out of a motor vehicle collision between

the plaintiff, Jaimie Farrell, and a tortfeasor, John Corden. Pl.’s Compl., First

Count, ¶ 1-21. In her complaint, the plaintiff alleges that she exhausted the

tortfeasor’s motor vehicle liability insurance policy, and that it was inadequate to

fully compensate her for her injuries. Pl.’s Compl., First Count, ¶ 20.

On November 21, 2022, the plaintiff filed the subject Complaint. In her

Complaint, the plaintiff asserts two counts against the defendant, LM General. In
the first count, the plaintiff asserts a contractual underinsured motorist claim. In the

second count, the plaintiff asserts a breach of the implied covenant of good faith

and fair dealing claim arising from LM General’s numerous failures in connection

with the subject contract. Because both claims arise out of the same transaction

and occurrence, and are so intertwined, bifurcation of the claims, and further

staying discovery as to the second count, would be an enormous waste of judicial

resources and denial of justice.

II. LEGAL STANDARD

“In all cases, whether entered upon the docket as jury cases or court cases,

the court may determine that one or more of the issues be tried before the others.”

General Statutes § 52–205. “The interests served by bifurcated trials are

convenience, negation of prejudice and judicial efficiency.” Reichhold Chemicals,

Inc. v. Hartford Accident and Indemnity Co., 243 Conn. 401, 423, 703 A.2d 1132

(1997), rev'd on other grounds, 252 Conn. 774, 750 A.2d 1051 (2000). “Bifurcation

of trial proceedings lies solely within the discretion of the trial court ...” Swenson v.

Sawoska, 18 Conn.App. 597, 601, 559 A.2d 1153 (1989), aff'd, 215 Conn. 148,

575 A.2d 206 (1990).

III. LAW AND ARGUMENT

The defendant’s Motion to Bifurcate the claims, and to stay discovery, should

be denied for the following reasons: (1) bifurcation is unwarranted and would

amount to a waste of judicial resources; (2) any prejudice to the defendant is

outweighed by the need for judicial economy; (3) bifurcation is premature, and
should be considered only after completion of substantial discovery; and (4) even

if bifurcation is permitted, a stay of discovery is unwarranted.

A. Bifurcation is Unwarranted and Amounts to a Waste of Judicial
Resources

There is no legitimate need to bifurcate the first and second count. The

plaintiff’s claims arise out of the same transaction and occurrence, and are so

intertwined that the claims should be tried together. Specifically, both claims arise

out of the same car accident, will involve essentially the same witnesses (the

plaintiff, the corporate representative of LM General, police officer, and medical

providers), and will involve similar evidence.

Our superior courts have denied a motion to bifurcate where the claims

arise from the same occurrence and where bifurcation would amount to a waste of

judicial resources. See, e.g., Hennessey v. Travelers Property Cas. Ins. Co., 1999

WL 240231 (Conn. Super. Ct., April 14, 1999) (Moraghan, J.) (insurer’s motion to

bifurcate CUIPA and bad faith claims from underinsured motorist claims denied

because the claims stem from the same transaction with similar evidence and

witnesses); (Fontanez v. MetLife Auto & Home, 2022 WL 14418362 (Conn. Super.

Ct. Oct. 18, 2022) (Young, J.) (Insurer’s motion to bifurcate denied where

underinsured motorist claim and tortfeasor claim arose out of same occurrence,

and two separate trials on the same occurrence would be a waste of judicial

resources).

There is significant wisdom in the decisions of Hennessey and Fontanez.

The court in those cases balanced any possible prejudice to the defendant insurer
against the need for judicial economy. In Fontanez, 2022 WL 14418362, the court

concluded:

“The defendant [MetLife] seems to suggest that bifurcation of this action into
two separate trials will require two separate juries. This is not conducive
to promoting judicial economy and preservation of judicial resources.
The defendant is correct that the issues as to coverage and damages are
separate and distinct. To that end, the defendant could have easily obtained
sufficient discovery and filed a motion for summary judgment as to the
coverage issue before the trial date arrived. This, or the original suggestion
of the court, would be practical. Bifurcation of the action into two trials
for one or two juries is neither practical nor necessary. So much of the
motion that seeks bifurcation is denied.”

Id. at *2. (Emphasis added.)

Similarly, in Hennessey, 1999 WL 240231, the court denied bifurcation and

concluded:

“In the present case, bifurcation would be more inconvenient and less
efficient because both claims stem from the same transaction, with
similar evidence and witnesses. This court concludes that any
possible prejudice to the defendant in having both issues tried
together is minimal and outweighed by the need for judicial economy.

Id. at *5. (Emphasis added.)

The cases cited by the defendant are inapposite. The defense cited to three

supporting cases: Jello-Pitkin v. Geico Indem. Co., 2011 WL 6934703 (Conn.

Super. Ct., Dec. 9, 2011); Falcone v. American Commerce Ins. Co., 2015 WL

6405801 (Conn. Super. Ct. Sept. 24, 2015); and Fowler v. Connecticut Life & Cas.

Ins. Co., 2008 WL 4150290 (Conn. Super. Ct., Aug. 19, 2008). Each case cited by

the defense contains flawed reasoning that runs counter to the astute logic of the

Fontanez and Hennessey decisions.
First, the Jello-Pitkin holding is speculative and, therefore, flawed. In Jello-

Pitkin, the court assumed, without knowing, that it would be “difficult to adjudicate

without first resolving the issue of whether [the plaintiff] is entitled to receive

underinsured motorist benefits and the amount of those benefits under her

automobile insurance.” 2011 WL 6934703, *3. The court did not explain what the

“difficulty” might be, nor did the court explain why it was necessary to first

adjudicate the underinsured motorist claim. Id. Unlike the court in Fontanez, the

Jello-Pitkin court did not perceive the real risk of waste of judicial resources.

Moreover, unlike the court in Fontanez, the Jello-Pitkin court failed to consider the

fact that discovery could rule in (or out) the need for bifurcation. In sum, the

Fontanez decision is far more practical and persuasive than Jello-Pitkin.

Second, the Falcone decision, while more practical than the Jello-Pitkin

decision, still is not as persuasive as Fontanez and Hennessey. In Falcone, the

court considered a similar issue regarding bifurcation of a breach of contract claim

and an implied covenant claim. 2015 WL 64058801, *1. The court held:

“Resolution of the plaintiffs' claim for breach of contract may well be
dispositive of their claim for breach of the implied covenant of good faith
and fair dealing. In the interest of convenience, negation of prejudice,
and judicial efficiency, therefore, the first and third counts of the
complaint—for breach of contract and loss of consortium—will be
tried first, and the trial of the second count—for breach of the implied
covenant of good faith and fair dealing—will proceed before the same
jury following adjudication of the breach of contract and loss of
consortium claims.”

Id. (Emphasis added).

The problem with Falcone, however, is the court does not explain the

balance between what it calls “negation of prejudice,” “interest of convenience,”
and “judicial efficiency.” In Hennessey, the court balanced the issue of prejudice

against the need for judicial efficiency, and found the prejudice to the defendant to

be minimal and outweighed by the need for judicial economy. Accordingly, the

plaintiff posits that the Hennessey court’s reasoning as to the issue of bifurcation

is more analytically sound than the reasoning in Falcone. Additionally, it is worth

noting that the Falcone court permitted discovery to continue on all claims prior to

the trial. Id. at *2. 1

Finally, the Fowler decision, while more analytically sound than both Jello-

Pitkin and Falcone, but is factually distinguishable from this case. In Fowler, 2008

WL 4150290, the court provided quite thorough reasoning, explaining the balance

of the issues of prejudice and judicial economy. Id. at *1. The Fowler court

bifurcated the claims, and permitted discovery to continue on all counts. Id. 2

The present case is distinguishable from Fowler. Specifically, Fowler dealt

with issues tied specifically to whether the plaintiff would recover more than her

available underinsured motorist coverage. Id. at *1. The Fowler court found that

bifurcation was appropriate when the litigation of one issue (whether plaintiff would

recover more than her available UIM coverage) would obviate the need to try the

bad faith claim. Id. This finding was central to the court’s holding. Id.

The plaintiff in the present case, however, has pleaded bad faith claims

independent of whether the value exceeds UIM coverage. Specifically, she has

1
The plaintiff addresses the defendant’s request to stay discovery more deeply in Section D, below. Needless
to say, if a bifurcation of claims were to occur, the wisdom of Falcone, Hennessey, and Fontanez is that
discovery should not be stayed, regardless of whether the claims are bifurcated.
2
Once again, as in Falcone, Hennessey, and Fontanez, the Fowler court permitted discovery to continue on
all counts prior to trial.
pleaded, for example, LM General refused to make any offer with the intent to force

the plaintiff to institute litigation and, hence, attorneys fees and costs. Pl.’s Compl.,

Second Count ¶ 23 (f). This claim cannot be obviated by resolution of the

underinsured claim because the central point of the claim is the bad faith intent to

force the plaintiff to institute needless and costly litigation. Accordingly, because

the Fowler decision is materially distinguishable from the subject case, it should

be disregarded as unpersuasive.

For all of the above reasons, the plaintiff urges the court to adopt the

reasoning of Fontanez and Hennessey, and deny the defendant’s Motion to

Bifurcate.

B. Any Prejudice to Defendant is Outweighed by need for Judicial
Economy

The defense has not cited to any specific prejudice it would suffer if the

claims are litigated and tried together. On page 3 of its memorandum of law, the

defense cites vaguely to a concern: “if both counts are tried together, the potential

that the defendant will be prejudiced by the scope of the plaintiff’s discovery is high,

given the presence of privileged content in the defendant’s file for Farrell’s claim. .

. .” This concern is premature. First, any privileged information (attorney-client, for

instance) would be subject to a privilege log and stand before the court for

determination. Second, the defense does not explain how any prejudice from the

scope of discovery is ”high,” other than vague citation to “privileged content” and

the “possibility” that “defense counsel will be called to testify.” Yet, there is no

reasonable scenario under which a claims file in a bad faith claim is “privileged,”

nor a scenario under which it would be reasonable to depose outside defense
counsel. These vague concerns are far outweighed by the need for judicial

economy.

Judicial economy must be preserved. Post-Covid, the court dockets have

been essentially clogged, and the jury trials have come at slower rates than before.

A bifurcation of the trial would amount to essentially two jury trials on intertwined

claims that arise out of a common nucleus of operative facts. Specifically, both

claims arise out of the same car accident, and will involve essentially the same

witnesses (the plaintiff, the corporate representative of LM General, police officer,

and medical providers), and will involve similar evidence. The cost and expense of

a double jury trial far outweighs any prejudice cited by the defense. Accordingly,

the Motion to Bifurcate should be denied.

C. Bifurcation is Premature, and Should be Decided after Conclusion
of Discovery

Bifurcation should not occur until after the completion of discovery, if at all.

Specifically, a motion to bifurcate at this time is premature pending discovery, as

discovery may obviate the need for bifurcation. For instance, it is possible that

discovery and depositions may establish that the bad faith claim and underinsured

claim may or may not need to be tried together. It would be more prudent for the

court to assess the need to bifurcate after it has the full breadth of evidence gained

through discovery before ruling on the Motion.

It is notable that the decisions of Fontanez, Fowler, Hennessey, and

Falcone permitted discovery on all claims to continue, regardless of bifurcation of

claims. While there is great wisdom in these decisions, the plaintiff posits that the

more practical route is to permit discovery to proceed on all claims, and assess
the issue of bifurcation at a time closer to the trial date. Accordingly, for this

reason also, the plaintiff objects to the motion to bifurcate at this time on the

grounds that the motion is premature.

D. Even if the Matter is Bifurcated, a Stay of Discovery is Unwarranted

Even if the court decides that bifurcation is warranted at this juncture, a stay

of discovery is totally unwarranted. It does not make sense to disallow discovery

on a bifurcated issue especially where, as here, the claims are so intertwined. If

LM General has its way, this case will amount to an enormous waste of judicial

economy, and this case will sit on the court’s docket for years beyond the norm.

For instance, if the underinsured motorist count is tried to verdict, and the plaintiff

is successful, a “brand new” discovery phase must then commence. This “new”

discovery phase will be targeted toward the implied covenant claim will take a

significant period of time to resolve (nonstandard written discovery, depositions,

etc.), and a new trial date will have to be set for this count. Rather than risk this

significant waste of financial and judicial resources to occur, the court should

permit discovery as to the second count to proceed now.

In Perras v. Allstate Ins. Co., 2003 WL 178863 (Conn. Super. Ct. Jan. 6,

2003), the court faced a similar issue. In Perras, the defendant insurer argued that

the breach of contract claim should be bifurcated from CUIPA and CUTPA claims,

and all discovery as to the CUIPA/CUTPA claims should be stayed. Id. at *1. The

court bifurcated the trial of the claims, but denied a stay of discovery. Id. In doing

so, the court held:

“Accordingly, pursuant to General Statutes § 52-205 and Practice Book §
15-1, the court orders that the trial of the second, third and fourth counts be
bifurcated, in part, from the trial of the breach of contract action. Specifically,
the count one breach of contract claim will be heard first during the actual
trial. In the interest of convenience, expense to the parties, and judicial
economy, the court further orders, however, that pursuant to Practice
Book § 13-5,3 the discovery phase of the trial is not bifurcated and the
parties are to proceed accordingly on all counts of the joined
complaint during the discovery phase of the trial.”

Id. (Emphasis added.)

Similarly, in Falcone V. American Commerce Ins. Co., 2015 WL 6405801

(Conn. Super. Ct., Sept. 24, 2015), the court similarly ordered a bifurcation of the

breach of contract and bad faith claims, but allowed discovery to proceed on all

claims. Specifically, the court held:

“The court does not find a similarly compelling reason for bifurcating
and staying all discovery in this action as to the bad faith claim. This
case is scheduled to begin jury selection on May 18, 2016. Therefore,
discovery shall continue on all claims. See Perras v. Allstate Insurance
Company, supra, Superior Court, Docket No. CV–02–0067400–S (“In the
interest of convenience, expense to the parties, and judicial economy, the
court further orders, however, that ... the discovery phase of the trial is not
bifurcated ...”).”

Id. at *2. (Emphasis added).

Additionally, as set forth above in Section A, the decisions of Hennessey,

Fontanez, and Fowler, also permitted discovery to continue on all claims. Here, as

in Perras, Falcone, Fowler, Fontanez, and Hennessey, the sensible approach is to

allow discovery to proceed as to all claims. There is significant interest in saving

financial expense and judicial economy by permitting discovery to continue as to

both claims. If, after discovery, the defense feels that it has a strong claim

regarding the second count, it may elect to file a motion for summary judgment.

The defense has not cited to any significant reason to stay discovery, nor has it

addressed the Perras, Falcone, Fowler, Fontanez, and Hennessey decisions on
this issue. For all the foregoing reasons, if the court decides to bifurcate the trial of

the two claims at this juncture, the plaintiff urges the court to permit discovery as

to all claims to proceed.

IV. CONCLUSION

WHEREFORE, the plaintiff hereby requests the court sustain her objection,

and deny the Motion to Bifurcate, and deny the Defendant’s request to stay

discovery as to the Second Count.

THE PLAINTIFF,
JAIMIE FARRELL

By__/s/Ron Etemi__________
Ron Etemi, Esq.
Her Attorney
76 Westbury Park Rd, Ste210E
Watertown, CT 06795
Telephone: 203-680-8080
Facsimile: 203-951-9030
E-Mail: Ron@EtemiLaw.com
Juris Number: 432062
CERTIFICATION

I hereby certify that a copy of the above was mailed or electronically

delivered on March 17, 2023 to all counsel and pro se parties of record and that

written consent for electronic delivery was received from all counsel and pro se

parties of record who were electronically served.

Philip T. Newbury Jr., Esq.
Howd & Ludorf, LLC
65 Wethersfield Avenue
Hartford, CT 06114
Email: pnewbury@hl-law.com

_________/s/ Ron Etemi___________
Ron Etemi, Esq.
Commissioner of the Superior Court
EXHIBIT A
Falcone v. American Commerce Ins. Co., Not Reported in A.3d (2015)
61 Conn. L. Rptr. 150

if the plaintiffs were permitted access to the defendant's
2015 WL 6405801 entire claims file while the underlying claim for underinsured
Only the Westlaw citation is currently available. motorist benefits remains pending. In response, the plaintiffs
maintain that bifurcation is not warranted at all, but if the
UNPUBLISHED OPINION. CHECK court were to bifurcate the trial of the claims, a stay of all
COURT RULES BEFORE CITING. proceedings, including discovery, on the claim for breach of
the implied covenant of good faith and fair dealing would
Superior Court of Connecticut, be prejudicial to the plaintiffs, inconvenient, and a waste of
Judicial District of Stamford-Norwalk. judicial resources.

Lori FALCONE et al. “A trial court may order that one or more issues that are joined
v. be tried before the others ... Bifurcation of trial proceedings
lies solely within the discretion of the trial court ...
AMERICAN COMMERCE
The interests served by bifurcated trials are convenience,
INSURANCE COMPANY. negation of prejudice and judicial efficiency ...” (Citations
omitted.) Reichhold Chemicals, Inc. v. Hartford Accident and
No. FSTCV146024174S. Indemnity Co., 243 Conn. 401, 423, 703 A.2d 1132 (1997).
| Practice Book § 10–21 provides that when several causes of
Sept. 24, 2015. action are joined in a single complaint “the court may order
a separate trial of any such cause of action” when it appears
Attorneys and Law Firms
“that they cannot all be heard conveniently together.” Practice
Silver Golub & Teitell, Stamford. Book § 10–21; see also General Statutes § 52–97.

Weber R.J. III, Law Office of LLC, Wallingford. “Bifurcation may be appropriate in cases in which litigation
of one issue may obviate the need to litigate another
Opinion issue.” (Citation omitted.) Reichhold Chemicals, Inc. v.
Hartford Accident and Indemnity Co., supra, 243 Conn. at
HELLER, J.
423–44. Practice Book § 15–1 provides that “[i]n all cases,
*1 The plaintiffs Lori Falcone and William Perkins whether entered upon the docket as jury cases or court cases,
commenced this action, returnable December 30, 2014, the court may order that one or more of the issues joined
against the defendant American Commerce Insurance be tried before the others.” Practice Book § 15–1; see also
Company. In their three-count complaint, the plaintiffs assert General Statutes § 52–205.
claims for breach of contract regarding underinsured motorist
benefits (first count); breach of the implied covenant of good Resolution of the plaintiffs' claim for breach of contract may
faith and fair dealing (second count); and loss of consortium well be dispositive of their claim for breach of the implied
covenant of good faith and fair dealing. In the interest of
(third count).1 On April 21, 2015, the defendant moved to
convenience, negation of prejudice, and judicial efficiency,
bifurcate and stay the proceedings in this action (# 108.00).
therefore, the first and third counts of the complaint—for
The plaintiffs objected to the defendant's motion on May
breach of contract and loss of consortium—will be tried first,
28, 2015 (# 109.00). The defendant replied to the plaintiffs'
and the trial of the second count—for breach of the implied
objection on June 3, 2015 (# 111.00). The motion to bifurcate
covenant of good faith and fair dealing—will proceed before
was on the court's individual calendar as a non-arguable
the same jury following adjudication of the breach of contract
matter on June 1, 2015.
and loss of consortium claims. See Fowler v. Connecticut Life
& Casualty Insurance Co., Superior Court, judicial district of
The defendant has moved to bifurcate the plaintiffs' claim
New Haven, Docket No. CV–07–5010045–S (Aug. 19, 2008;
for breach of the implied covenant of good faith and fair
Lager, J.) (46 Conn. L. Rptr. 206); Perras v. Allstate Insurance
dealing from their breach of contract and loss of consortium
Company, Superior Court, Docket No. CV02–0067400–S
claims and to stay the prosecution of the bad faith claim
(Jan. 6, 2003; Foley, J.).
until the underinsured motorist benefits issue is resolved.
The defendant argues that it would be severely prejudiced

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1
Falcone v. American Commerce Ins. Co., Not Reported in A.3d (2015)
61 Conn. L. Rptr. 150

1. The plaintiffs' claims for breach of contract and loss of
*2 The court does not find a similarly compelling reason for
consortium will be heard first during the trial of this action.
bifurcating and staying all discovery in this action as to the
bad faith claim. This case is scheduled to begin jury selection
2. The plaintiffs' claims for breach of the implied covenant
on May 18, 2016. Therefore, discovery shall continue on all
of good faith and fair dealing will proceed before the same
claims. See Perras v. Allstate Insurance Company, supra,
jury after adjudication of the breach of contract and loss of
Superior Court, Docket No. CV–02–0067400–S (“In the
consortium claims.
interest of convenience, expense to the parties, and judicial
economy, the court further orders, however, that ... the
3. Discovery shall continue on all claims.
discovery phase of the trial is not bifurcated ...”).

Accordingly, the defendant's motion to bifurcate and stay All Citations
proceedings (# 108.00) is GRANTED IN PART and DENIED
IN PART, and it is hereby ORDERED as follows: Not Reported in A.3d, 2015 WL 6405801, 61 Conn. L. Rptr.
150

Footnotes
1 The scheduling order (Heller, J.) (# 106.00), entered on March 18, 2015, provided that the defendant was to respond to
the plaintiffs' complaint by April 18, 2015. To date, the defendant had not done so.

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 2
Fontanez v. MetLife Auto & Home, Not Reported in Atl. Rptr. (2022)

Moreover, if the defendant seeks to have a jury decide
2022 WL 14418362 coverage issues and then have the same jury await the
Only the Westlaw citation is currently available. undertaking of discovery as to damages, this is impractical if
not impossible. If the defendant seeks to seat separate juries as
UNPUBLISHED OPINION. CHECK to issues of coverage and damages, this will double the burden
COURT RULES BEFORE CITING. on the court's resources, not relieve it. So much of the motion
that seeks a stay of discovery is denied.
Superior Court of Connecticut,
JUDICIAL DISTRICT OF NEW HAVEN. The court next addresses the issue of bifurcation. “Pursuant
to General Statutes § 52–205 and Practice Book § 15–1, a
Aida FONTANEZ, et al. trial court may order that one or more issues that are joined
v. be tried before the others. Bifurcation may be appropriate in
cases in which litigation of one issue may obviate the need
METLIFE AUTO & HOME, a Brand of
to litigate another issue. The bifurcation of trial proceedings
Metropolitan Property and Casualty Ins. Co. lies solely within the discretion of the trial court.” (Citation
omitted.) Saczynski v. Saczynski, 109 Conn. App. 426, 428,
DOCKET NO. NNH CV-21-6111816 S 951 A2d 670 (2008).
|
OCTOBER 18, 2022 The defendant argues that it will be prejudiced by the jury's
awareness of insurance coverages when deciding damages.
The issues of whether the defendant's denial of coverage;
MEMORANDUM OF DECISION RE: MOTION TO whether the other vehicle was uninsured; and whether the
BIFURCATE TRIAL AND STAY DISCOVERY plaintiffs have valid uninsured motorist claims do not require
the disclosure of coverage limits to the jury. The defendant's
Robert E. Young, J. first and second special defenses as to setoff and the third
special defense as to policy limits are not properly presented
*1 This is an uninsured motorist claim brought by two
to the jury.
plaintiffs against the defendant insurer. The defendant has
moved to bifurcate the trial of coverage issues from the issue
“In Bennett v. Automobile Ins. Co. of Hartford, ... 230 Conn.
of damages. The defendants also seek to stay discovery as to
at 802 n. 15, 646 A.2d 806, citing with approval Bennett v.
issues other than that of coverage. The plaintiffs have objected
Automobile Ins. Co. of Hartford, 32 Conn. App. 617, 626–27,
to the motion. The action has been claimed for a jury trial.1 630 A.2d 149 (1993) (Lavery, J., dissenting), it was noted that
in an underinsured motorist case “[t]he jury's only task [is]
At the hearing on the subject motion, the court suggested that to assign the appropriate level of damages arising from the
the parties stipulate to having the coverage issues heard by the [underinsured] motorist's tort. Because the contractual limits
court, with the remaining issues tried to the jury. The parties [do] not prove or disprove the plaintiffs’ damages, they [are]
have not responded to the court's suggestion. Thus, the court irrelevant.” The Bennett court also stated that ‘henceforth an
will adjudicate this motion. insurer should raise issues of policy limitation, even when
undisputed, by special defense. When a jury determination of
Addressing the issue of stay of discovery, the defendant's the facts raised by special defense is not necessary, the special
assertion that “staying discovery as to the damages claims defense will not be submitted to the jury but, rather, will be
would promote judicial economy and thereby preserve resolved by the trial court prior to the rendering of judgment.
judicial resources” is without merit. The court generally does Compliance with this procedure will place the trial court and
not participate in the gathering of discovery except to resolve the opposing party on proper notice of the policy limitation
disputes as they may arise. Therefore, there is no judicial issue so that it may be resolved in accordance with § 38a–336
economy to be promoted or judicial resources to be preserved. (b).’ Bennett v. Automobile Ins. Co. of Hartford, supra, 230
To the contrary, discovery often assists in resolution of actions Conn. at 806, 646 A.2d 806. In addition, Practice Book (1998
short of trial.2 Rev.) § 10–791 sets forth nearly identical language. (Brackets

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1
Fontanez v. MetLife Auto & Home, Not Reported in Atl. Rptr. (2022)

sufficient discovery and filed a motion for summary judgment
in original). Fahey v. Safeco Ins. Co. of Am., 49 Conn. App.
as to the coverage issue before the trial date arrived. This,
306, 310–11, 714 A2d. 646 (1998).
or the original suggestion of the court, would be practical.
Bifurcation of the action into two trials for one or two juries
*2 “The trial court has discretion to allow an insurance
is neither practical nor necessary. So much of the motion that
company to submit proof of specific policy limits after the
seeks bifurcation is denied.
verdict and to enter judgment limiting the insurer's liability
to the amount of coverage.” Id., 49 Conn. App. 316, (1998).
Therefore, the defendant's claim of prejudice is unavailing.
ORDER
The defendant seems to suggest that bifurcation of this action
into two separate trials will require two separate juries. The motion to bifurcate and stay discovery is denied.
This is not conducive to promoting judicial economy and
preservation of judicial resources. The defendant is correct
All Citations
that the issues as to coverage and damages are separate and
distinct. To that end, the defendant could have easily obtained Not Reported in Atl. Rptr., 2022 WL 14418362

Footnotes
1 The jury claim was not timely filed. General Statutes § 52-215. However, in its discretion, the court is not striking the
jury claim at this time.

2 Jury selection is scheduled for October 27, 2022. At this juncture and in accordance with the scheduling order, discovery
should have been completed. This motion was filed after the deadline for completion of discovery, April 15, 2022, had
passed. See scheduling order 104.00.

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 2
Fowler v. Connecticut Life & Cas. Ins. Co., Not Reported in A.2d (2008)
46 Conn. L. Rptr. 206

as reasons in favor of bifurcation. Barry v. Quality Steel
2008 WL 4150290 Products, Inc., 263 Conn. 424, 448–49, 820 A.2d 258 (2003).
Only the Westlaw citation is currently available.
Bifurcation is appropriate when the litigation of one issue
UNPUBLISHED OPINION. CHECK could obviate the need to litigate other issues. Id.; Reichold
COURT RULES BEFORE CITING. Chemicals, Inc. v. Hartford Accident & Indemnity Co., 243
Conn. at 401, 423, 703 A.2d 1132 (1997). In this case, that
Superior Court of Connecticut, is certainly true. The complaint alleges, and Connecticut
Judicial District of New Haven. Life concedes, that the underinsured motorist coverage
available to Fowler is $200,000.00. She has already collected
Therese FOWLER $20,000.00 from the tortfeasor and it was represented that
v. her medical bills of approximately $15,000.00 have also been
paid. Her counsel agreed that Fowler would be hard-pressed
CONNECTICUT LIFE & CASUALTY
to prove bad faith if she received a jury award of $220,000.00
INSURANCE COMPANY. or less and if she were awarded a larger sum that might
create an incentive for a settlement to be negotiated before
No. CV075010045S. the trial of the bad faith claims. Furthermore, bifurcation of
| the underinsured motorist benefits claim from the bad faith
Aug. 19, 2008. claims would minimize the potential prejudice to Connecticut
Life.
Attorneys and Law Firms

The Quinn Law Firm LLC, Milford, for Therese Fowler. On the other hand, as Fowler has pointed out, evidence
relevant to the claim for underinsured motorist benefits is
Gasser & Huget LLC, Avon, for Connecticut Life & Casualty also relevant to the bad faith claims because “the decision
Insurance Company. as to whether the defendant's failure to settle the claims
was reasonable [necessitates] inquiry into the nature of the
Opinion accident, the terms and conditions of the policy ... and the
medical evidence regarding the claimed disability.” Powell v.
LINDA K. LAGER, Judge.
Infinity Insurance Co., 282 Conn. 594, 609, 922 A.2d 1073
*1 Therese Fowler (Fowler) has brought an action against (2007). In this regard, however, Connecticut Life posits that it
her insurance carrier Connecticut Life & Casualty Insurance may have to call plaintiff's counsel as a witness with respect to
Company (Connecticut Life) in which she seeks underinsured settlement negotiations that were undertaken with the carrier.
motorist benefits in the first count and claims that the carrier Issue bifurcation may solve any dilemma that this may create.
acted in bad faith in the second and third counts. Connecticut Id., 282 Conn. at 594, n. 6.
Life has moved to bifurcate the bad faith claims from
the claim for underinsured motorist benefits arguing that if Accordingly, the court orders the bifurcation of the trial
Fowler does not recover more than her available coverage the of the first count of the complaint from the trial of the
bad faith claims would become moot. Fowler objects to trial second and third counts.1 No evidence or arguments regarding
bifurcation, but does not dispute that issue bifurcation may be settlement negotiations or the investigation of the claim may
appropriate. be advanced during the trial of the first count. In the discretion
of the trial judge, a reasonable continuance may be granted
Bifurcation is within the court's discretion. Both General between the conclusion of the trial of the underinsured
Statutes § 52–97 and Practice Book § 10–21 provide that motorist benefits claim and the bad faith claims; however, all
when several causes of action are joined in a single complaint claims shall be heard by the same jury.
“the court may order a separate trial of any such cause
of action” when it appears “that they cannot all be heard
conveniently together.” In addition to convenience, the All Citations
avoidance of prejudice and judicial efficiency have been cited
Not Reported in A.2d, 2008 WL 4150290, 46 Conn. L. Rptr.
206

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1
Fowler v. Connecticut Life & Cas. Ins. Co., Not Reported in A.2d (2008)
46 Conn. L. Rptr. 206

Footnotes
1 This order contemplates that discovery will proceed on all claims. To the extent that Connecticut Life has specific
objections to the plaintiff's non-standard discovery request relating to the bad faith claims, it must file a separate motion
directed to that discovery request.

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 2
Hennessey v. Travelers Property Cas. Ins. Co., Not Reported in A.2d (1999)
24 Conn. L. Rptr. 368

“The purpose of a motion to strike is to contest the legal
sufficiency of the allegations of any complaint ... to state
KeyCite Yellow Flag - Negative Treatment a claim upon which relief can be granted. In ruling on a
Disagreement Recognized by Peck v. Public Service Mut. Ins. Co., D.Conn.,
motion to strike, the court is limited to the facts alleged in the
August 31, 2000
complaint. The court must construe the facts in the complaint
1999 WL 240231
most favorably to the plaintiff ... If facts provable in the
UNPUBLISHED OPINION. CHECK COURT RULES complaint would support a cause of action, the motion to
BEFORE CITING. strike must be denied.” (Citations omitted; internal quotation
Superior Court of Connecticut. marks omitted.) Waters v. Autuori, 236 Conn. 820, 825-26,
676 A.2d 357 (1996). See also Practice Book § 152, now
Jon M. HENNESSEY, et al., Practice Book (1998 Rev.) § 10-39. “The motion [to strike]
may be used to test whether Connecticut is ready to recognize
v.
some newly emerging ground of liability.” (Internal quotation
THE TRAVELERS PROPERTY marks omitted.) Castelvetro v. Mills, Superior Court, judicial
CASUALTY INSURANCE COMPANY. district of New Haven, Docket No. 320396 (February 1, 1994)
(Gray, J.) (11 Conn. L. Rptr. 29).
No. CV 980332786S.
| Our Supreme Court has established that uninsured and
April 14, 1999. underinsured motorist coverage is “person oriented,” not
“vehicle oriented” when it held that “[a]n insured's status
at the time of the injury, whether passenger, pedestrian, or
MEMORANDUM OF DECISION driver of an insured or uninsured vehicle, is irrelevant to
recovery under the statutorily mandated coverage ... The
MORAGHAN. coverage is portable: The insured and family members ... are
insured no matter where they are injured. They are insured
*1 Jon Hennessey instituted this proceeding on behalf of his when injured in an ... unowned vehicle, on a motorcycle,
minor son, Blaike, to recover underinsured motorist benefits on a bicycle, whether afoot or on horseback or even on a
from Travelers Property Casualty Insurance Co., as a result pogo stick ...” (Citations omitted; internal quotation marks
of an accident in which Blaike was hit by a car while riding omitted.) Harvey v. Travelers Indemnity Co., 188 Conn. 245,
his bicycle. The operator of the motor vehicle settled with 250, 449 A.2d 157 (1982).
the plaintiffs for one hundred thousand ($100,000) dollars,
the limit of his policy. The plaintiffs then proceeded under *2 The defendant argues that a common law bad faith
his underinsured motorist coverage which has a five hundred claim must allege outrageous conduct and ill will, which the
thousand ($500,000) dollar limit. After attempts at settlement plaintiffs have failed to do and therefore, count two is legally
failed, this action was brought in three counts-breach of insufficient. It continue

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