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Berry v. Mullet

Court of Appeals of Ohio, Fifth District, Holmes

June 24, 2019

PATRICIA J. BERRY, ET AL. Plaintiffs-Appellees
v.
TYLER A. MULLET, ET AL. Defendants-Appellees and HOME-OWNERS INSURANCE CO. Defendant-Appellant.

          Appeal from the Holmes County Court of Common Pleas, Case No. 16CV048

          For Plaintiffs-Appellees: THOMAS J. INTILI INTILI & GROVES, L.P.A.

          For Defendant-Appellant: CRAIG G. PELINI NICOLE H. RICHARD PELINI, CAMPBELL & WILLIAMS, LLC

          JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Delaney, J.

         {¶1} Appellant Home-Owners Insurance Company ["HOIC"] appeals from a July 24, 2018 Judgment Entry of the Holmes County Court of Common Pleas overruling its motion to bifurcate the punitive-damages and bad-faith claims of appellees, Patricia J. and Craig P. Berry.

         FACTS AND PROCEDURAL HISTORY

         {¶2} This case arose from a motor vehicle collision on June 7, 2014 in Holmes County, Ohio.[1] Appellees were struck by a vehicle driven by Tyler Mullet when Mullet failed to stop at a stop sign.

         {¶3} Appellees are Michigan residents and have an automobile insurance policy with HOIC. The policy includes a type of coverage known as personal injury protection ("PIP").

         {¶4} Appellee Patricia Berry was seriously injured in the crash and has incurred significant expenses. As the beneficiary of a Michigan auto insurance policy, the PIP provision potentially entitles her to lifetime medical payments coverage for injuries sustained in the collision.

         {¶5} Mullet's vehicle was insured by State Farm. Patricia's collision-related losses exceed the liability limits of Mullet's policy, therefore Mullet is an underinsured motorist under the terms of appellees' HOIC policy.

         {¶6} HOIC has paid "at least" $155, 861.21 for Patricia's collision-related medical treatment and lost wages pursuant to the PIP provision of the HOIC policy.[2]

         {¶7} On June 3, 2016, appellees filed a complaint against Mullet and HOIC.

         {¶8} Patricia underwent a defense medical examination in Michigan on March 9, 2017. In anticipation of mediation, a Civ.R. 35 examination of Patricia occurred on August 1, 2017. Appellees assert both physicians hired by HOIC concluded that Patricia's post-collision symptoms and treatment are related to the collision.

         {¶9} HOIC advanced Mullet's $100, 000 auto policy liability limits in April 2017. Appellees complain, though, that HOIC has failed or refused to waive its claims for subrogation and reimbursement; failed or refused to settle the underinsured-motorist claim; and threatened to terminate Patricia's PIP benefits.

         {¶10} Appellees sought and were granted permission to file an amended complaint on March 14, 2018, adding new claims against HOIC for insurance bad faith and wrongful termination of PIP benefits. Appellees allege HOIC failed, refused, or unreasonably delayed paying their underinsured-motorist claim. Further, appellees asserted the bad-faith failure or refusal to settle, and the wrongful termination of the PIP benefits, entitled them to an award of punitive damages.

         {¶11} In the meantime, the pending mediation was canceled. Both parties allude to discovery disputes throughout the course of the litigation.

         {¶12} On June 14, 2018, HOIC moved the trial court to bifurcate the tort and underinsured action from the bad-faith and punitive-damages claims. HOIC asked the trial court to try the case in two stages, the first being the underinsured-motorist claim. At the first stage, appellees would be precluded from presenting evidence on the bad-faith and punitive-damage claims. The second stage, trial of the bad-faith and punitive-damages claims, would proceed only if appellees prevailed in the first stage.[3] Further, appellees would be permitted to present evidence in support of punitive damages only if the jury awarded compensatory damages in the first stage.

         {¶13} HOIC also moved the trial court to stay discovery on the bad-faith and punitive-damages claims.

         {¶14} On June 15, 2018, appellees served a second set of interrogatories and request for production of documents upon HOIC relative to the bad-faith and punitive-damages claims. Appellees requested, e.g., HOIC's claims file on appellees' claims; the methods and criteria by which HOIC valued appellees' underinsured claim; the internal analysis regarding appellees' potential comparative negligence;[4] and HOIC's internal investigation reports and procedures relating to appellees' claims.

         {¶15} Appellees sought and were granted an extension of time to respond to HOIC's motions to bifurcate and to stay discovery. Appellees ...


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