ROBERTO A. LANGE, District Judge.
Plaintiffs Robin Wiebers (Robin) and Darin Wiebers (Darin) (collectively the Wiebers) sued their insurance carrier Farmers Mutual Hail Insurance Company of Iowa (FMH) after FMH declined to pay its remaining underinsured motorist (UIM) coverage limit of $50,000 to the Wiebers. The Wiebers' complaint makes claims for breach of contract, first-party bad faith, intentional infliction of emotional distress, breach of fiduciary duty, and unfair or deceptive trade practices, and the Wiebers seek compensatory and punitive damages and attorney's fees. FMH filed a motion for partial summary judgment, Doc. 16, seeking summary judgment on all claims except the breach of contract claim, and a motion to bifurcate, Doc. 21, in the alternative to the extent this Court opts not to grant summary judgment on all non-contractual claims. For the reasons explained, this Court grants in part FMH's motion for partial summary judgment and bifurcates the contract claim for a separate trial preceding any other claim this Court might allow.
Robin was driving home from work on June 15, 2016, lawfully traveling between 45 and 55 miles per hour, when another car, driven by Kerri Ann Latendresse, ran a stop sign and collided with Robin's vehicle. Doc. 17 at ¶¶ 1-2; Doc. 26 at ¶¶ 1-2; Doc. 27-2 at 20. Robin was badly injured in the accident and taken by ambulance to a hospital in Sioux Falls. Doc. 17 at ¶ 3; Doc. 26 at ¶ 3; Doc. 27-2 at 6.
An emergency room doctor diagnosed Robin with a fractured right ankle and a broken rib. Doc. 32-1 at 1; Doc. 17 at ¶ 3; Doc. 26 at ¶ 3; Doc. 27-2 at 5. The ankle had punctured Robin's skin and she would later testify that the injury was "extremely, extremely painful." Doc. 27-2 at 7;
Robin also testified that the accident injured her neck, causing her pain in the neck and shoulder area and numbness in her fingers. Doc. 26 at ¶ 3; Doc. 27-2 at 5, 17-18. She had some injections for neck pain in October 2016, but at least through August 2018 appears not to have received any treatment for her neck since October 2016. Doc. 26 at ¶ 3; Doc. 27-2 at 18-19.
At the time of the accident, Progressive Northern Insurance Company (Progressive) insured Latendresse, with liability limits of $250,000. Doc. 17 at ¶ 3; Doc. 26 at ¶ 3. The Wiebers had $300,000 in UIM coverage with FMH. Doc. 17 at ¶ 3; Doc. 26 at ¶ 3. Under South Dakota law, "[u]nderinsured motorist coverage allows the insured to collect the amount of that insured's own coverage less the amount of the tortfeasor's liability coverage."
Kevin Templeton, an FMH claims adjuster, called Robin on June 21, 2016. Doc. 17 at ¶ 6; Doc. 26 at ¶ 6. He notified her of the $10,000 medical payment benefit under the FMH policy and began adjusting the property damage claim. Doc. 17 at ¶ 6; Doc. 26 at ¶ 6. FMH received medical bills for Robin on July 13, 2016, and paid the $10,000 medical payment benefit to Sanford Hospital the next day. Doc. 17 at ¶ 7; Doc. 26 at ¶ 7. FMH's file reflects that it had over one hundred pages of Robin's medical records by July 14, 2016. Doc. 26 at ¶ 7; Doc. 27-7.
Deborah Beeler, another FMH claims adjuster, contacted Robin on July 18, 2016, to discuss the loan on her damaged vehicle. Doc. 17 at ¶ 8; Doc. 26 at ¶ 8. Beeler investigated the matter and contacted Wells Fargo that day to obtain a pay-off amount. Doc. 17 at ¶ 8; Doc. 26 at ¶ 8. On July 20, 2016, FMH issued a check to Wells Fargo to pay off the vehicle loan and sent another check to Robin for her equity in the vehicle. Doc. 17 at ¶ 8; Doc. 26 at ¶ 8.
Robin called Beeler on August 16, 2016, to discuss the claims process. Doc. 17 at ¶ 9; Doc. 26 at ¶ 9. She was concerned that her own health insurance carrier was paying her medical bills, but Beeler assured her that this was normal, and that the health insurance carrier would be reimbursed through subrogation. Doc. 17 at ¶ 10; Doc. 26 at ¶¶ 9-10; Doc. 20-1 at 8. Robin said she was confused by the claims process and not sure whether she needed an attorney, and Beeler explained that hiring an attorney was Robin's choice. Doc. 17 at ¶ 11; Doc. 26 at ¶ 11; Doc. 20-1 at 8. FMH's claims notes from this discussion show that Robin had signed a HIPPA authorization
After the Wiebers retained counsel, the Wiebers' attorney on November 14, 2016, sent a letter to FMH that began:
Doc. 20-2 at 1. The letter then detailed the Wiebers' damages, including roughly $87,000 in past medical expenses, $6,254.06 in lost income, and prejudgment interest on those amounts. Doc. 20-2 at 2-3; Doc. 17 at ¶ 12; Doc. 26 at ¶ 12. Describing Robin's injuries as "life changing," the Wiebers' attorney predicted that a jury would award her "several hundred thousand dollars" for pain and suffering and loss of enjoyment of life. Doc. 20-2 at 3. As for future damages, the attorney wrote that Robin had suffered a disk injury in her neck and had been told that there "is the likelihood of future surgery." Doc. 20-2 at 4. He also claimed that Robin would need ankle surgery, either to remove the hardware or replace her ankle. Doc. 20-2 at 4. Although the attorney had yet to obtain estimates for Robin's future medical expenses, he opined that the cost of neck surgery, hardware removal, and a potential ankle replacement could range anywhere from $100,000 to $225,000. Doc. 20-2 at 4. The attorney included records from Robin's health insurer with the letter, but did not provide any medical or lost income records. Doc. 17 at ¶ 12; Doc. 26 at ¶ 12. The letter concluded with the following paragraph:
Doc. 20-2 at 4. FMH did not respond to the November 2016 letter despite the attorney's request that it do so within twenty days. Doc. 26 at ¶ 12; Doc. 20-2 at 4.
Beeler wrote a claims note in December 2016 recognizing that Robin's attorney had requested $50,000 in UIM coverage. Doc. 20-1 at 5. The note also stated: "Adjust Collision reserve from $90.48 to $0.00. Increase the sub reserve for collision to $12,000 and sub medpay for $10,000.00. Increase BIUI to $50,000 based on the medical bills, lost wages, out of packet [sic] expenses and general damages." Doc. 20-1 at 5. In Robin's view, this note shows that FMH realized that her damages would exceed Progressive's liability coverage. Doc. 25 at 6. FMH disagrees, asserting that the note reflects "an adjustment of the reserves because of how South Dakota allocates UIM coverage with a credit for the underlying policy limits." Doc. 30 at 4. FMH filed an affidavit from Beeler saying that she had simply increased the reserves and that the reserves "are not an indication of what a case is worth or valued at." Doc. 31 at ¶ 2.
The Wiebers' attorney sent FMH a letter on January 31, 2017, explaining that Progressive would pay Robin the $250,000 policy limits if FMH approved this settlement and waived its subrogation claim under the
Beeler wrote the Wiebers' attorney on February 8, 2017, requesting copies of all medical bills and records concerning the accident and documentation supporting the lost wages claim. Doc. 17 at ¶ 14; Doc. 26 at ¶ 14; Doc. 20-4. She explained that FMH needed this information before it could decide whether to waive its subrogation rights. Doc. 20-4.
The Wiebers' attorney did not respond to Beeler until a March 10, 2017 letter. Doc. 17 at ¶ 15; Doc. 26 at ¶ 15; Doc. 20-5. He wrote that Robin would sign a medical authorization if FHM sent one, even though he had already provided FMH with information about Robin's bills and damages in his November 2016 letter. Doc. 17 at ¶ 15; Doc. 26 at ¶ 15; Doc. 20-5. He also asked FMH to decide whether to waive subrogation or substitute its draft. Doc. 17 at ¶ 15; Doc. 26 at ¶ 15; Doc. 20-5.
Beeler emailed the Wiebers' attorney on March 16, 2017, writing that she was considering the March 10 letter but that she had not been able to gather the necessary decision makers because it was the week of spring break. Doc. 17 at ¶ 16; Doc. 26 at ¶ 16; Doc. 20-6. On March 23, 2017, Beeler forwarded a medical authorization and a letter stating that FMH would waive its "medpay subrogation right" and that the Wiebers could accept the settlement with Progressive. Doc. 17 at ¶ 16; Doc. 26 at ¶ 16; Doc. 20-7.
The Wiebers' attorney emailed Beeler on April 3, 2017, asking her to confirm that FMH agreed to waive all of its subrogation rights, not just the medpay subrogation right Beeler mentioned in her March 23 letter. Doc. 27-3; Doc. 26 at ¶ 16. He also noted that he was attaching Robin's medical records and bills that Progressive had gathered. Doc. 27-3; Doc. 26 at ¶ 16. Beeler confirmed the following day that FMH waived all of its subrogation rights. Doc. 20-15. Doc. 17 at ¶ 17; Doc. 26 at ¶ 17. Thus, the waiver of FMH's subrogation rights and right to substitute its draft occurred about 65 days after the January 31, 2017 notice of Progressive having tendered liability limits, and that time included a 30-day delay in the Wiebers' attorney responding to FMH's February 8, 2017 letter.
FMH received Robin's medical authorization on April 17, 2017, along with a letter from the Wiebers' attorney opining that the medical records he had forwarded should be enough for FHM to resolve Robin's UIM claim. Doc. 17 at ¶ 18; Doc. 26 at ¶ 18; 20-8. Beeler replied by email, explaining that FMH was reviewing Robin's records and would get back to her attorney once this was done. Doc. 17 at ¶ 18; Doc. 26 at ¶ 18; 20-8 at 4.
On April 20, 2017, FMH sent Robin's medical records to ReMed Casualty Consultants (ReMed) for a nurse to review. Doc. 17 at ¶ 19; Doc. 26 at ¶ 19. The ReMed nurse replied the next day, saying that she needed some additional records to complete the review but that the records she did have showed a "high probability" of arthritis in the ankle and that future surgery could be necessary.
Beeler wrote the Wiebers' attorney on May 11, 2017, explaining that FMH was still gathering Robin's medical records for the review. Doc. 17 at ¶ 21; Doc. 26 at ¶ 21; Doc. 20-9. The Wiebers' attorney emailed Beeler that same day, saying that the Wiebers had given FMH ample opportunity to review the claim and asking whether litigation would be necessary. Doc. 26 at ¶ 16; Doc. 27-3 at 3.
On June 1, 2017, ReMed informed FMH that it had now gathered the necessary medical records and that its review should be complete by June 23, 2017. Doc. 17 at ¶¶ 22-23; Doc. 26 at ¶¶ 22-23; Doc. 20-1 at 2. Beeler updated the Wiebers' attorney on the status of Robin's claim that same day. Doc. 17 at ¶ 23; Doc. 26 at ¶ 23; Doc. 20-1 at 2.
FMH received the ReMed review on June 26, 2017. Doc. 17 at ¶ 24; Doc. 26 at ¶ 24; Doc. 20 at ¶ 21. ReMed stated that Robin had past medical bills of approximately $87,000 and an estimated wage loss of $6,254.06, although the Wiebers had not provided any documents from Robin's employer verifying her salary and the dates she missed. Doc. 17 at ¶ 24; Doc. 26 at ¶ 24; Doc. 20-11 at 5, 10. ReMed predicted that Robin could incur $46,000 in future medical expenses ($6,000 for removal of the hardware from her ankle and $40,000 for an ankle fusion surgery)
Beeler states that she and her supervisor Marty Mortvedt reviewed the ReMed report and the documents provided by the Wiebers. Doc. 17 at ¶ 25; Doc. 26 at ¶ 25; Doc. 20 at ¶ 22. They concluded that Robin's UIM claim was worth less than the $260,000 the Wiebers had received from Progressive and FMH's waiver of the $10,000 medical payments. Doc. 17 at ¶ 25; Doc. 26 at ¶ 25; Doc. 20 at ¶ 22. They based this decision on medical records from late July 2016 showing that the right ankle was in alignment and healing, imaging studies of Robin's neck from August 2016, and the ReMed nurse's opinion that Robin's neck problem stemmed from preexisting degenerative issues. Doc. 17 at ¶ 26; Doc. 26 at ¶ 26; Doc. 20 at ¶ 22; Doc. 20-11 at 5.
Beeler informed the Wiebers of FMH's decision in a June 26, 2017 letter. Doc. 17 at ¶ 27; Doc. 26 at ¶ 27; Doc. 20-12. She wrote that while Robin's medical bills totaled nearly $87,000, the "related charges" for the accident were only $43,548.46 after "contractual adjustments." Doc. 17 at ¶ 27; Doc. 26 at ¶ 27; Doc. 20-12. This reference to "contractual adjustments" apparently came from the ReMed report, which stated that Robin's medical insurer had paid only $43,548.46 in medical bills because of agreements for discounts with Robin's healthcare providers. Doc. 20-11 at 6-10. Beeler concluded the letter by writing "[w]e certainly understand the inconvenience this accident may have caused; however, based on the expenses reported, potential charges, and the settlement from Progressive, we feel the bodily injury settlement of $250,000 with Progressive fully compensates your client for her injuries and inconveniences." Doc. 20-12.
The Wiebers' attorney sent FMH a letter on July 6, 2017, threatening litigation if FMH did not reconsider its position. Doc. 17 at ¶ 28; Doc. 26 at ¶ 28; Doc. 20-13. Beeler replied on August 30, 2017, advising that FMH had not changed its position but that it was "offering the Arbitration clause" in the policy since the parties disagreed. Doc. 17 at ¶ 29; Doc. 26 at ¶ 29; Doc. 20-14. The Wiebers' attorney responded that arbitration provisions in insurance contracts are unenforceable and that the Wiebers would proceed with litigation. Doc. 26 at ¶ 29; Doc. 27-3 at 4.
The Wiebers filed this suit in mid-September 2017, alleging claims for breach of contract (Count I); bad faith (Count II); intentional infliction of emotional distress (Count III); breach of fiduciary duty (Count IV); unfair or deceptive trade practices (Count V); punitive damages (Count VI); and attorney's fees (Count VII). Doc. 1. FMH moved for summary judgment on Counts II through VII, but not on Count I. Doc. 16. It also moved to bifurcate Count I from Counts II through VII if any of Counts II through VII survived summary judgment. Doc. 21.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). On summary judgment, the evidence is "viewed in the light most favorable to the nonmoving party."
First-party bad faith is an intentional tort that "typically occurs when an insurance company consciously engages in wrongdoing during its processing or paying of policy benefits to its insured."
An insurer has a reasonable basis for denying benefits—and therefore cannot be liable for bad faith—if the claim is "fairly debatable" in either law or fact.
The Wiebers assert that FMH's "failure to investigate" is the "crux of their bad faith claim." Doc. 25 at 15. They argue that FMH's conclusion would have been different had it "properly investigated their claim and considered all proper elements of damages." Doc. 25 at 15. An insurer's flawed investigation and consideration of a claim may justify a bad faith claim.
The Wiebers argue that FMH acted in bad faith because: 1) FMH's own notes reflect that FMH believed Robin's damages would exceed the liability coverage; 2) FMH never interviewed Robin or asked her to submit to an independent medical examination (IME); 3) FMH used the discounted amounts of Robin's medical bills rather than the face value a jury would consider; and 4) FMH failed to consider other allowable items of damages including pain and suffering, loss of enjoyment of life, aggravation, disability and disfigurement, future lost wages, loss of earning capacity, and loss of consortium. Doc. 25 at 16-17.
These assertions do not necessarily establish bad faith under the circumstances. First, Beeler's claims notes may or may not show that Beeler thought Robin's claim was worth more than Progressive's limits of liability. Again, Beeler's note at issue stated "Adjust Collision reserve from $90.48 to $0.00. Increase the sub reserve for collision to $12,000 and sub medpay for $10,000.00. Increase BIUI to $50,000 based on the medical bills, lost wages, out of packet [sic] expenses and general damages." Doc. 20-1 at 5. Beeler filed an affidavit after the Wiebers responded to FMH's motion for summary judgment explaining that she was increasing the reserves "based on the medical bills, lost wages, out of pocket expenses and general damages. I was still waiting for medical records and other information from the Wiebers at this time. Obviously, reserves are not an indication of what a case is worth or valued at." Doc. 31 at ¶ 2. Reserves may be relevant and admissible evidence,
Second, FMH's decision not to interview Robin or ask her to undergo an IME does not establish bad faith. By the time Robin made a claim for UIM benefits, she was represented by counsel, her counsel did not suggest that FMH call Robin to conduct a recorded interview of her, and her counsel likely would have strong misgivings about any such interview occurring without his involvement. While never having done a recorded interview of Robin, FMH representatives had prior conversations with Robin about the claim, none of which were improper. Doc. 20-1 at 6-13. The decision by FMH not to do a recorded interview of a represented party is not in itself bad faith. Nor is it bad faith for FMH to have chosen to have a nurse do a records review in lieu of an IME.
Third, the record is less than clear whether FMH did or did not consider the full amount of Robin's past medical expenses of approximately $87,000. Beeler's letter informing the Wiebers of FMH's decision not to pay UIM benefits acknowledged that the medical bills totaled nearly $87,000 but referenced "contractual adjustments" making the "related charges" just $43,548.46. Doc. 20-12. The letter then concluded with the opinion that the $250,000 Progressive payment "fully compensates [Robin] for her injuries and inconveniences." Doc. 20-12. Even if FMH had considered the full amount of Robin's bills and had undervalued the cost of her future medical costs as the estimate from Sanford seems to suggest, it remains fairly debatable whether Robin's claim was worth more than the $250,000 Progressive payment combined with waiver of the $10,000 in medical payments coverage. FMH may have been stingy, but a reasonable jury with the information FMH had in late June 2017 could have awarded $260,000 for Robin's injuries or could have awarded more. The valuation of Robin's claim in June 2017 as being at or alternatively above $260,000 seems fairly debatable regardless of whether medical expenses are taken to have been $87,000 or closer to $43,000.
Fourth, the essence of Robin's bad faith claim seems to be that FMH undervalued the damages the Wiebers could recover for Robin's pain and suffering, loss of enjoyment of life, aggravation of a preexisting condition, disability and disfigurement, future lost wages, loss of earning capacity, and for Darin's loss of consortium. Doc. 25 at 16-18. The Wiebers assert that FMH "wholly failed to consider" these potential damages, but that assertion is not entirely accurate. The claims notes indicate that Beeler at least considered Robin's future lost wages, Doc. 20-1 at 2, and Beeler's note about increasing the reserves says she made the increase "based on the medical bills, lost wages, out of packet [sic] expenses and general damages." Doc. 20-1 at 5. Beeler also submitted an affidavit after the Wiebers replied to FMH's motion for summary judgment saying that FMH considered "general damages such as pain and suffering, disability and disfigurement, loss of enjoyment of life, and other general damages in valuing this case." Doc. 31 at ¶ 3. While Robin believes that FMH undervalued her potential damages, it is difficult to quantify a potential jury award with any certainty.
In addition to their argument about an inadequate investigation, the Wiebers include a section in their brief entitled: "FMH's Additional Actions/Inactions Evidencing Bad Faith." Doc. 25 at 21. The Wiebers' main argument in this section is that FMH's delayed response to their November 2016 letter asking FMH to "substitut[e] its draft or waiv[e] its subrogation rights" is evidence of bad faith. But the Wiebers did not have a settlement offer from Progressive in November 2016, which is a condition precedent to receiving UIM benefits.
When viewed in a light most favorable to the Wiebers, the evidence to justify a bad faith claim against FMH is thin. Whether the Wiebers' recoverable damages exceed $260,000 is certainly possible and perhaps probable, but still fairly debatable. FMH should have in courtesy and under statute responded to the November 14, 2016 letter from the Wiebers' counsel, but conditions precedent to a UIM claim had not been met at that point. FMH could have started its investigation into the extent of Robin's injuries earlier, and perhaps by doing so FMH could have more rapidly waived its
Plaintiffs alleging intentional infliction of emotional distress in South Dakota must show four elements:
The Wiebers claim that FMH engaged in extreme and outrageous conduct by denying Robin's claim without a reasonable basis, failing to investigate and consider all possible elements of damages, and engaging in other unspecified "actions and inactions." Doc. 25 at 34. For the reasons discussed above, the Wiebers' bad faith claim is thin and may or may not survive summary judgment. The alleged conduct that the Wiebers contend was bad faith was not "so extreme in degree as to go beyond all possible bounds of decency, and be regarded as atrocious, and utterly intolerable in a civilized community."
The Wiebers acknowledge that there is no separate cause of action for breach of fiduciary duty in a first-party insurance case like this.
The Wiebers allege that FMH violated SDCL § 58-33-67 by not responding to the November 2016 letter from their attorney within thirty days. Section 58-33-67 provides in relevant part:
SDCL 58-33-67(1). The Wiebers recognize that § 58-33-67 does not provide them with a private right of action. SDCL § 58-33-69 ("Nothing in §§ 58-33-66 to 58-33-69, inclusive, grants a private right of action.");
As discussed above, FMH should have responded to the November 2016 letter, but at the time Progressive had not offered its limits of liability, so a requested response on waiver of
The Wiebers also argue that FMH's alleged violation of § 58-33-67 provides a basis for them to recover attorney's fees. Section 58-33-46.1 of South Dakota's chapter on unfair trade practices reads: "Any person who claims to have been damaged by any act or practice declared to be unlawful by this chapter shall be permitted to bring a civil action for the recovery of all actual and consequential damages suffered as a result of such act or practice including reasonable attorneys' fees to be set by the court." SDCL § 58-33-46.1. The Wiebers do not appear to have sustained any damages from FMH not responding to the November 2016 letter. The Wiebers' attorney had to write another letter to FMH in January to advise of Progressive's tender of its $250,000 limits, which letter had to be sent to make a UIM claim regardless of the lack of response by FMH. The Supreme Court of South Dakota recently stated: "[W]hile SDCL 58-33-67(1) does not by its own terms grant a private right of action according to SDCL 58-33-69, a violation thereof provides a cause of action under 58-33-46.1."
Count VI of the Wiebers' complaint seeks punitive damages under SDCL § 21-3-2. That section reads:
SDCL § 21-3-2. FMH argues that the Wiebers don't have a claim for punitive damages because it is entitled to summary judgment on all of the Wiebers' other claims. Because this Court is reserving ruling on summary judgment on a part of the Wiebers' bad faith claim, this Court will likewise defer entry of summary judgment on the punitive damages claim.
Count VII of the Wiebers' complaint requests attorney's fees under SDCL § 58-12-3. FMH seeks summary judgment on this claim, arguing that the Wiebers can't recover attorney's fees under § 58-12-3 because FMH did not act vexatiously or unreasonably by denying Robin's UIM claim.
A plaintiff can recover attorney's fees under § 58-12-3 for a breach of contract claim but not for a bad faith claim.
Rule 42(b) of the Federal Rules of Civil Procedure allows district courts to try claims or issues separately "[f]or convenience, to avoid prejudice, or to expedite and economize." Fed. R. Civ. P. 42(b). District courts have broad discretion to bifurcate under this Rule, but they should consider the "preservation of constitutional rights, clarity, judicial economy, the likelihood of inconsistent results and possibilities for confusion."
FMH argues that the breach of contract claim must be tried separately from the other claims to avoid prejudice and promote judicial economy. It points out that the breach of contract claim could be dispositive of the Wiebers' case and argues that trying all the claims together would more than double the time for trial. FMH also contends that it would be prejudiced if all claims are tried together because the jury would hear evidence about Progressive's settlement with Robin and FMH's reserves, and because the jury could have difficulty keeping track of what information was and was not available to FMH when it decided to deny Robin's claim for UIM benefits. The Wiebers disagree, arguing that separate trials would be inefficient because the evidence on all claims overlaps and that courts have rejected the arguments of prejudice that FMH makes here. The Wiebers also argue that separate trials would prejudice them because they would be required to pay twice for testimony by medical providers and experts and would have to miss work on two occasions.
For the reasons explained above, this Court will bifurcate the contract action from any trial of a bad faith claim. The bad faith claim is supported by thin evidence, and indeed this Court has it under advisement whether summary judgment should enter on that claim. Trial of the amount to compensate Robin for personal injuries is readily separable from trial of the alleged bad faith through deficient investigation. If this Court allows the bad faith claim to survive summary judgment, it seems possible, and indeed efficient, to stage the trial in two halves before the same jury to avoid needing to call medical providers twice.
For the reasons explained, it is
ORDERED that FMH's motion for partial summary judgment, Doc. 16, is granted in part and denied in part. It is further
ORDERED that, if this Court does not enter summary judgment on all claims other than the breach of contract claim, FMH's motion to bifurcate, Doc. 21, is granted. It is further
ORDERED that the parties contact this Court's judicial assistant to set a conference call with the Court to schedule a pretrial conference and trial.