Preview
Date Filed 1/16/2024 4:40 PM
Superior Court - Middlesex
Docket Number 2381CV02713
Tab 14
{A0160866.1 }
Date Filed 1/16/2024 4:40 PM
Superior Court - Middlesex
Docket Number 2381CV02713
Maroun v. Norfolk & Dedham Mutual Fire Insurance Company, Slip Copy (2021)
os
2024 WL 413620
plaintiffs, Kristin Renee Maroun and George Charles
Maroun, Jr., who are residents of New Hampshire, filed a
2021 WL 413620
Only the Westlaw citation is currently available. complaint in this court against defendants, Jeffrey James
Owens, a former resident of Massachusetts, the Estate of
United States District Court, D. Massachusetts.
Jeffrey Owens (collectively, the Estate), Norfolk &
Kristin Renee MAROUN and George Charles Dedham Mutual Fire Insurance Company (Norfolk), an
Maroun, Jr., Plaintiffs, insurance company incorporated in Massachusetts with a
v. principal office located in Dedham, Massachusetts, and
NORFOLK & DEDHAM MUTUAL FIRE Geico General Insurance Company,’ pursuant to 28
INSURANCE COMPANY, Jeffrey James Owens USC. § 1332 (diversity of citizenship). See #1;
and the Estate of Jeffrey James Owens, Massachusetts Corporations Search Entity Summary,
Defendants. https://corp.sec.state.ma.us/CorpWeb/CorpSearch/CorpSu
mmary.aspx?sysvalue=K AJbnD7GbSqmPCzBEC6H74v
CIVIL ACTION NO. 1:20-11523-MPK: ZUHaNdPxfwY wfMjOoGYI- (last visited Feb. 3, 2021).
On September 30, 2020, plaintiffs filed an amended
Signed 02/05/2021 complaint against the Estate and Norfolk. #12.)
Plaintiffs’ amended complaint alleges claims for
negligence (counts I and II) and negligent infliction of
Attorneys and Law Firms
emotional distress (counts IV and V) against the Estate,
George C. Maroun, Jr., Law Offices of George C. Maroun and a claim for violations of Mass. Gen, Laws ch. 934
Jr., Methuen, MA, for Plaintiffs. and 176D, § 3 against Norfolk (count III). See id.
Christopher D. George, Healy & Healy, P.C., Needham, On November 5, 2020, Norfolk filed the present motion
MA, William L. Keville, Melick & Porter, LLP, Boston, to sever and stay. (#28.) The motion has been fully
MA, for Defendant Norfolk & Dedham Fire Insurance briefed. (## 28-1, 30.)
Company.
Linda M. Smith, Morrison Mahoney LLP, Boston, MA,
for Defendant Jeftrey Owens.
II. Factual Background.
The court takes the following facts from plaintiffs’
amended complaint, the operative pleading. (#12.)
On August 13, 2017, plaintiffs were passengers traveling
northbound on Interstate 93 in Salem, New Hampshire,
when their vehicle was “struck on the right rear quarter ...
MEMORANDUM AND ORDER ON DEFENDANT, by [a] vehicle operated by Owens.” Id. Ff] 13-14, 26.
NORFOLK & DEDHAM MUTUAL FIRE INSURANCE Plaintiffs allege that their “vehicle was hit with such
COMPANY" MOTION TO SEVER AND STAY impact [that] it rolled three times and ended up in a ditch
PLAINTIFFS’ CHAPTER 93A4/176D ACTION off of Interstate 93[,]” and that they were both seriously
PENDING RESOLUTION OF PLAINTIFFS” injured and required medical treatment at Parkland
UNDERLYING TORT CLAIM (#28). Medical Center, in Derry, New Hampshire. Jd. {| 17-18,
29-30. They claim that a Traffic Crash Report, generated.
KELLEY, U.S.M.J. by the New Hampshire State Police on the date of the
accident, determined that Owens had 1) failed to stay in
the proper lane; 2) disregarded road markings; and 3)
operated his vehicle in an inattentive, careless, negligent,
or erratic manner. Jd. §] 15, 27. They further allege that
I. Introduction. Owens was cited as being “Under the Influence of
Medication/Drugs/Alcohol” at the time of the crash. Id. 1]
*1 This is a negligence and unfair settlement case 16, 28.
following an automobile accident. On August 13, 2020,
oo oer
Date Filed 1/16/2024 4:40 PM
Superior Court - Middlesex
Docket Number 2381CV02713
Maroun v. Norfolk & Dedham Mutual Fire Insurance Company, Slip Copy (2021)
os
2024 WL 413620
Following the accident, plaintiffs filed a claim with previously-assessed common law damages for purposes
Norfolk, Owens’ automobile insurance carrier. See id. [§ of determining the 93A damages. Wyler v. Bonnell
2, 36. Plaintiffs allege that, although they “provided in a Motors, 35° Mass.
App. Ct. 563, 563-64 (1993).
timely fashion to Norfolk all requested medical bills, Furthermore, unlike here, Wyler involved common law
reports, photographs[,] and additional materials in their and 93A claims against the same party rather than
possession to allow Norfolk to properly investigate [their]
claim[,]” as well as a “demand package ... which clearly separate parties. Id. at 566.
outlined [their] injuries,” Norfolk refused to offer any
Second, Massachusetts appellate courts have recently held
reasonable settlement amount in violation of | chapters that where, as here, a plaintiff makes both tort claims
93A and 176D, § 3. Id. {fj 37-38, 40. Specifically, against an insured and unfair settlement claims against its
plaintiffs claim that Norfolk refused to pay their claims insurer in the same suit, it is “common . practice” to
“without conducting a reasonable investigation based sever the unfair settlement claims and “stay[ ] them
upon all information”; failed “to effectuate prompt, fair[.] pending resolution of the tort action.” Rivera y
and equitable settlement of [their] claims” although Commerce Ins Co. 84 Mass. App. Ct 146, 147 n4
liability had “become reasonably clear”; and failed “to (2013); see also M.J. Flaherty Co. v. U. & Guar.
provide a reasonable explanation of the basis” for its Co., 61 Mass. App. Ct. 337, 340 (2004) (“ifa claim for
denial of their claims. Jd. § 43. Plaintiffs allege that unfair settlement practices is brought with the original
Norfolk committed each of these actions in bad faith. Id. liability suit, Superior Court judges may take the sensible
44. Norfolk denies all of plaintiffs’ allegations. See #14; step of staying the unfair settlement claim pending the
#28-1 at 2. outcome of the underlying negligence claim”); see also
#28-3 at 5-7, 12-13 (citing Santacroce v. Sametz, No.
*2 For the following reasons, Norfolk’s motion to sever 2014-J-0383 (Mass. App. Ct. Oct. 31, 2014), Collins v.
and stay (#28) is GRANTED. Plaintiffs’ chapter 93A and Wayne Dalton Corp., No. ESCV2013-02092A (Mass.
176D claims against Norfolk are stayed pending the Super. Ct. Apr. 14, 2014), and Sdankus v. Broadspire
resolution of their underlying tort claims against the Servs. Inc., No. ESCV2013-00624D (Mass. Super Ct.
Estate. Aug. 27, 2013)).
Norfolk correctly points out that litigation of the claims
against it is premature because the potential liability of
Owens and the Estate has yet to be determined. (#28-1 at
TIT. Legal Analysis.
4.) Specifically, “[i]f the defendants prevail in the
Norfolk argues that severing the 93A and 176D claims underlying [tort] action, judicial consideration of the
against it “would avoid unnecessary time, costs[,] and 93A/176D claim[s] against Norfolk ... will be moot[,]”
judicial efforts associated with litigating the claim[s].” and “all of the judicial resources expended on the matter
(#28-1 at 3.) “In addition, severance of [the claims] would might prove for naught[.]” Id. at 4, 6; see WV on V
prevent undue prejudice [against all defendants] by Copen, 244 F.3d 178, 180-81 (ist Cir. 2001) (noting that
shielding privileged information and work product from unfair settlement claim would not lie if insured was not
premature discovery.” Jd. Plaintiffs disagree, citing Wyler held liable in negligence); see also #28-3 at 13 (Sdankus,
y. Bonnell Motors, Inc., a 1993 Massachusetts Appeals No. ESCV2013-00624D, finding that “a stay ... will most
Court case, for the proposition “[t]hat bifurcation of [a] likely promote judicial economy, notwithstanding the
common law claim and [a chapter] 93A claim has little to possibility of two trials”).
[commend,]” and “it is the norm as well as the preferred
practice for a judge to try common law and ... 93A claims *3 Furthermore, allowing the claims to proceed
simultaneously.” (#30 at 2 (quoting L Wyler, 35 Mass.
simultaneously would be unfairly prejudicial to both
Norfolk and the Estate and could well compromise their
App. Ct. 563, 566 (1993).)) ability to defend against plaintiffs’ claims. The
Massachusetts Court of Appeals has explained: “With
The court agrees
with Norfolk. First, Wyler is respect to discovery, the insurer’s files are generally
distinguishable from the present case. Unlike the present viewed as likely containing two types of information,
case, Wyler did not involve a motion to sever and/or stay. namely, percipient evidence relevant to the underlying
Rather, the issue in Wyler was whether, if 93A damages tort action against its insured, and claims handling
were to be assessed after an underlying common law case information [concerning the insurer’s mental impressions
had gone to judgment, a different judge who heard the and conclusions prepared in anticipation of trial] which is
related 93A claim was bound to accept the likely immaterial to the underlying tort actio and
soe
Date Filed 1/16/2024 4:40 PM
Superior Court - Middlesex
Docket Number 2381CV02713
Maroun v. Norfolk & Dedham Mutual Fire Insurance Company, Slip Copy (2021)
os
2024 WL 413620
subject to privilege. (#28-3 at 6 (Santacroce, No. TV. Conclusion
2014-J-0383).) Having the tort claims and the unfair
settlement claims proceed at the same time creates the For the reasons stated above, defendant, Norfolk &
risk that Norfolk’s privileged materials would be Dedham Mutual Fire Insurance Company’s motion to
prematurely produced. See id. at 6-7. Depending on the sever and stay (#28) is GRANTED.
contents of Norfolk’s claims file, ie., if the file reveals
unfavorable impressions of liability, or that Norfolk knew
it should have taken more steps toward settlement, a jury All Citations
may look unfavorably on the Estate in the underlying tort
claims. In contrast, if the claims are severed, plaintiffs Slip Copy, 2021 WL 413620
will still be able to pursue their unfair settlement practices
claims against Norfolk after the tort suit is resolved.
Footnotes
With the parties’ consent, this case has been assigned to the undersigned for all purposes, including trial
and the entry of judgment, pursuant to 29 U.S.C. § 636(c). (#8.)
According to plaintiffs’ amended complaint, “Owens passed away suddenly sometime after” the automobile
accident. (#1 J] 10.) It is unclear from the pleadings whether the accident caused Owens’ death.
Geico has since been terminated as a party.
“
End of Document 2022 Thomson Reuters. No claim to original U.S. Goverment Wor
oo oer
Date Filed 1/16/2024 4:40 PM
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Docket Number 2381CV02713
Tab 15
{A0160866.1 }
Date Filed 1/16/2024 4:40 PM
Superior Court - Middlesex
Docket Number 2381CV02713
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No.
97-11049-NG
\
MARY AND ROBERT MILLER
Plaintiff
Vv.
RUDOLPH MUTO, M.D., ET AL.
Defendants wae
ORDER
August 31, 1998
COHEN, M.d.
Pursuant to Rules 7.1(d) and (e) of the Local Rules of this
Court [effective September 1, 1990], and upon review of the
relevant pleadings, the Renewed Motion for Stay (# 36) filed by
defendant ProMutal is allowed.
In this court's view, the reasoning of Associate Justice
Kass in Jacqueline R. Gross, et al. v. Liberty Mutual Insurance
Company, No. 84-0138 (Massachusetts Appeals Court, April 24,
1984) (Kass, Single Justice), and Jennifer Belcher v. Liberty
Pawtucket Mutual Insurance Company, No. 89-J-672 (Massachusetts
Appeals Court, September 27, 1987) (Kass, Single Justice), in
granting stays pending resolution of the underlying tort action
is compelling and sound. And, more to the point, the reasoning
of Associate Justice Kass is fully consistent with the spirit of
the Civil Justice Reform Act and its salutary goal that
Date Filed 1/1/2024 4:40 PM
Superior Court'- Middlesex
Docket Number 2381CV02713
unnecessary expenses not be incurred during the course of
discovery.
Accordingly, the Renewed Motion for Stay (# 36) filed by
defendant ProMutal is allowed, and the file is hereby ordered
returned to the Clerk.
cy Ale
UN: ITED STATES MAGISTRATE JUDGE
ee
-2-
Date Filed 1/16/2024 4:40 PM
Superior Court - Middlesex
Docket Number 2381CV02713
Tab 16
{90160866.1}
Date Filed 1/16/2024 4:40 PM
Superior Court - Middlesex
Dockpt'Number 2381 cvo271 3 ——_
COMMONWEALTH OFMASSACHUSETTS :
" SUFFOLK, ‘ss. SUPREME JUDICIAL COURT
FOR SUFFOLK COUNTY °
No. SJ-2004-0480
Trial Court: Falmouth District Court
No, 0489CV0128
BLIZABEBTH M, MONTY
YS,
.
MARY CENEDELLA and ONEBEACON INSURANCE GROUP, ii¢ .
M BMORANDUM OF DECISION AND iupGyenr
‘
Defendant OneBeacon Insurance Grow, LLC (CneBeacon) has filed the present petition
seeki hg relief under G.L. c. 211, § 3, from the order of the District Court denying its motion to
‘
sever and stay plaintiff's unfair settlement practices claim (G. L. c. 93A and G, L, °. 176D)
pending resolution of plaintiff's underlying motor vehicle tort claim against OneBeacon's
insured, The petition is ALLOWED. .
OneBeacon does not have an adequate remedy by means of normal appellate procedures.
Discovery into and ial of the urifair clair settlement practices claim prior to trial of the
= d 3 1, It thus held that “neither the
Tickman v. Tavlor (1947), 329 U.S. 495, 67 S.Ct. 385. attorney-client privilege nor the so-called work
91 L.Ed. 451, which held that an attorney's work product exception precludes discovery of the contents
product, prepared in anticipation of litigation, is not of an insurer's claims file. The only privileged matters
subject to discovery. Grange states that the Boone contained in the file are those that go directly to the
court did not create an exception to the work-product theory of defense of the underlying case in which the
doctrine, because it confined itself solely to the issue decision or verdict has been rendered.” (Emphasis
of whether attorney-client communications should be added.) Id. at paragraph three of the syllabus.
produced. Grange notes that the Boone litigation dif-
fers from the instant case in that the Gargs threatened {4 14} The Boone court rejected the distinction
litigation prior to the denial of their claim, whereas in made by the court of appeals, which distinguished
Boone, the litigation was not anticipated until after a Moskovitz based on whether the underlying claim
decision was reached on the claim. Grange further remained pending before a court. (In the present case,
argues that the work-product materials at issue were the underlying claims are the breach-of-contract and
prepared in anticipation of litigation, because the the unfair-claims-practices claims.) The Boone court
Gargs had previously threatened litigation, and thus noted that “[oJur ruling in Moskovitz did not turn on
they fall within no exception to the doctrine preclud- the status of the underlying claim, but rather upon our
ing discovery of such documents. recognition that certain attorney-client communica-
tions and work-product materials were undeserving of
**760 *262 {§ 13} As noted by Grange, the protection, i.e., materials ‘showing the lack of a good
Boone court did not expressly hold that an insured is faith effort to settle.’ ” Boone, 91 Ohio. .3d at 212.
entitled to discover claims-file materials containing 744 2d 154. The court continued:
attorney work product that were created in anticipa-
tion of litigation but prior to the denial of the claim. In {J 15} “Like the trial court, we find that the ra-
Boone, the discoverability of work-product materials tionale behind our holding in Moskovitz is applicable
was not at issue. However, the Boone court provided to actions alleging bad faith denial of coverage. That
guidance for the lower courts on this matter. In ruling is, claims file materials that show an insurer's lack of
on whether attorney-client communications in the good faith in denying coverage are unworthy of pro-
claims file are discoverable, the court applied its prior tection. It appears, however, that in determining which
reasoning in Moskovitz Mi. Sinai Med, Ctr, (1994 *263 documents were protected in this case, the trial
69 Ohio St3d 638, 635 N. 2d 331. In that case, after court applied the specific holding in Moskovitz, i.e.,
a substantial jury award for a medical malpractice only those documents containing attorney-client
claim, the plaintiffs sought prejudgment interest, communications and work product that go directly to
pursuant to R.C. 1343.03(C), which requires the pre- the theory of defense of the underlying claim are
vailing party to prove, among other things, that the protected. We find this holding inapplicable in the
opposing party failed to make a good-faith effort to present case because, while the lack of a good faith
settle the case. The Moskovitz court recognized that effort to settle involves conduct that may continue
one of the most difficult problems regarding R.C. throughout the entire claims process, a lack of good
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Date Filed 1/16/2024 4:40 PM
Superior Court - Middlesex
Docket Number 2381CV02713
800 N.E.2d 757 Page 5
155 Ohio App.3d 258, 800 N.E.2d 757, 2003 -Ohio- 5960
(Cite as: 155 Ohio App.3d 258, 800 N.E.2d 757)
faith in determining coverage involves conduct that homeowner's insurance policy fall within the Boone
occurs when assessment of coverage is being consid- exception. Grange further asserts *264 that none of the
ered. Therefore, the only attorney-client and disputed documents relates to coverage and, thus, they
work-product documents that would contain infor- fall outside Boone's exception for attorney-client
mation related to the bad faith **761 claim, and, thus, privilege.
be unworthy of protection, would have been created
prior to the denial of coverage.” Id. at 213, 744. 2d {§ 18} The Gargs respond that Grange interprets
154. The Boone court found fault with the trial court's Boone too narrowly. They contend that the Supreme
application of Moskovitz (which addressed both at- Court of Ohio has concluded that claims-file materials
torney-client communications and work-product ma- that demonstrate an insurer's lack of good faith in
terials) only to the extent that the lower court allowed denying coverage are unworthy of protection. Thus,
the discovery of otherwise protected materials after the Gargs argue, otherwise privileged communica-
the denial of coverage. 91 Ohio St.3d_at 213, 744 tions that demonstrate bad faith on the part of the
N.E.2d 154. insurer are discoverable, regardless of whether the
communications relate to the issue of coverage. In so
1)[2] {§ 16} Upon review of Boone, we conclude arguing, the Gargs have “recognize[d] that the sylla-
that the Supreme Court of Ohio has given no basis for bus is worded in language which, at first blush, and
distinguishing materials that are otherwise protected taken out of context, would seem to restrict discov-
by attorney-client privilege and those otherwise pro- erable materials to those containing attorney-client
tected by the work-product doctrine. The Boone communications related to the issue of coverage.”
court's failure to reference work-product materials in They contend, however, that “when the syllabus is
the syllabus appears to have been based solely on the read in pari materia with the language of the full
fact that the circumstances giving rise to the case did opinion, it becomes apparent that the actual holding of
not involve work-product materials. Moreover, the the Court might have been more clearly stated if the
court's unequivocal adoption of the rationale in Mos- word ‘including’ were substituted for the word ‘con-
kovitz, which stated that both attorney-client commu- taining. aos
nications and work-product materials may be unwor-
thy of protection, indicates that attorney-client com- {4 19} As indicated by Grange, the syllabus in
munications and work-product materials are to be Boone indicates which attorney-client communica-
treated similarly. Thus, both attorney-client commu- tions are subject to discovery in a bad-faith claim: “In
nications and work-product materials are subject to an action alleging bad faith denial of insurance cov-
disclosure during discovery on bad-faith claims. erage,**762 the insured is entitled to discover claims
file materials containing attorney-client communica-
{17} Turning to the issue of whether attor- tions related to the issue of coverage that were created
ney-client communications and work-product materi- prior to the denial of coverage.” (Emphasis added.) Id.
als are discoverable only if related to the issue of However, as argued by the Gargs, although the syl-
coverage, Grange asserts that the trial court erred labus is narrowly tailored to the facts of the case, the
when it concluded that all attorney-client communi- opinion in Boone is written with broader strokes.
cations are discoverable up to the time that the insur- Framing the issue before the court, the Boone court
ance claim is denied. It argues that Boone limited the stated: “The issue before us is whether, in an action
discoverable communications to those that “relate to alleging bad faith denial of insurance coverage, the
the issue of coverage,” and that the trial court should insured is entitled to obtain, through discovery, claims
have reviewed the otherwise protected attorney-client file documents containing attorney-client communi-
communications to determine whether they so related. cations and work product that may cast light on
Grange cites Black's Law Dictionary, which defines whether the denial was made in bad faith.” Boone,
Boone, 91
91
“coverage” as “inclusion of a risk under an insurance Ohio St.3d at 211-212. 744 N.E.2d 154. Thus, in the
policy; the risks within the scope of an insurance body of the opi jon, the Boone court expressed a
policy.” The company asserts that only those com- broader inquiry than that indicated by the syllabus.
munications between Grange and its attorney that
related to whether the risk of loss of personal property, [3] {§] 20} Throughout the opinion, the Boone
by fire or otherwise, was covered under the Grange court indicated that its focus was not limited only to
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Date Filed 1/16/2024 4:40 PM
Superior Court - Middlesex
Docket Number 2381CV02713
800 N.E.2d 757 Page 6
155 Ohio App.3d 258, 800 N.E.2d 757, 2003 -Ohio- 5960
(Cite as: 155 Ohio App.3d 258, 800 N.E.2d 757)
those documents related to coverage. In Moskovitz, the
court had indicated that the documents showing the {§ 23} Documents numbered 1738 through 1778
lack of a good-faith effort to settle included virtually were created after the Gargs' February 26, 2002 cor-
everything in the claims file. It held that “[t]he only respondence, which threatened litigation if Grange
privileged matters contained in the file are those that failed to resolve and to adjust their claim **763
go directly to the theory of the defense of the under- promptly. Thus, these documents may contain attor-
lying case in which the decision or verdict has been ney work product. However, as stated above, attorney
rendered.” Moskovitz, 69 Ohio St.3d at 663-664, 635 work product is discoverable to the same extent as
N.E.2d 331. Adopting the rationale in Moskovitz, the attorney-client communications. Documents num-
Boone court stated, as quoted in its entirety above, that bered 1738 through 1741 and 1773 through 1776
materials in the claims file “that show an insurer's lack relate to the factual investigation of the Gargs' claim.
of good faith in denying coverage are unworthy of Documents numbered 1742 through 1772 contain
protection.” (Emphasis added.) Boone, 91 Ohio St.3d attorney Mark Chilson's advice to Grange regarding
at_213. 744 N.E.2d 154. The Boone court further the factual investigation of the claim and his analysis
emphasized that in *265 bad-faith-denial-of-coverage regarding the civil arson defense. Documents num-
cases, “the only attorney-client and work-product bered 1777 and 1778 reference that correspondence.
documents that would contain information related to All of these documents were created prior to the denial
the bad faith claim, and, thus, be unworthy of protec- of the Gargs' claim and may shed light on whether
tion, would have been created prior to the denial of Grange acted in bad faith in its investigation and
coverage.” Id. Thus, reading Moskovitz and Boone handling of their claim. Accordingly, the trial court
together, the Supreme Court of Ohio has indicated that properly ruled that documents numbered 1738 through
the critical issue in evaluating the discoverability of 1778 were discoverable.
otherwise privileged materials is not whether the at-
torney-client communications related to the existence
{4 24} In summary, the trial court properly
of coverage but, rather, whether they may cast light on compelled production of the entire claims file. Under
bad faith on the part of the insurer. Boone, neither attorney-client privilege nor the
work-product *266 doctrine protects materials in a
{§ 21} Having set forth which claims-file mate- claims file, created prior to the denial of the claim, that
rials are discoverable with regard to a bad-faith claim may cast light on whether the insurer acted in bad faith
under Boone, we now address whether the trial court in handling an insured's claim.
erred by compelling the production of the disputed
materials, i.e., the documents in the Privileged Log. {4 25} The first assignment of error is overruled.
Grange asserts that documents numbered 1738
through 1772, and 1773 and 1777, were prepared in {§ 26} “IL. The trial court abused its discretion by
anticipation of litigation and contain or reflect attor-
ney work product and, therefore, are protected from
ordering Grange to produce protected work-product
discovery under the work-product doctrine. Grange
materials and/or privileged attorney-client communi-
further asserts that documents numbered 1727 through
cations without bifurcating the underlying claims from
the bad faith claims for trial, and staying discovery of
1778 are attorney-client communications that do not
relate to the issue of coverage.
the bad faith claims until after resolution of the un-
derlying claims.”
{§ 22} Upon review of the documents contained
in the Privileged Log, we agree with the trial court that {§ 27} In its second assignment of error, Grange
documents numbered 1727 through 1778 must be asserts that the trial court erred in ordering it to pro-
disclosed. Documents numbered 1727 through 1737 duce the otherwise protected work-product materials
were created both prior to the threat of litigation and and attorney-client communications without bifur-
the denial of coverage, and they may cast light on cating the bad-faith claim from the other pending
whether Grange acted in bad faith in failing to respond
claims for trial and without staying discovery on the
to the Gargs' insurance claim. Accordingly, the trial
bad-faith claim until after the resolution of the
court did not err when it compelled the production of breach-of-contract and unfair-claims-practices claims.
these materials. The Gargs respond that the trial court, having re-
viewed the disputed documents and having heard the
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Date Filed 1/16/2024 4:40 PM
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Docket Number 2381CV02713
800 N.E.2d 757 Page 7
155 Ohio App.3d 258, 800 N.E.2d 757, 2003 -Ohio- 5960
(Cite as: 155 Ohio App.3d 258, 800 N.E.2d 757)
arguments, exercised its discretion, ordered the pro- result from the disclosure of attorney-client commu-
duction of the documents, and declined to bifurcate nications and work-product materials due to a
the claims for trial. They argue that Boone recognized bad-faith claim. Specifically, Boone instructs that
the potential for disclosure to “inhibit the insurer's courts may bifurcate the trial on a bad-faith claim from.
ability to defend on the underlying claim.” They note, the remaining claims and may stay the discovery for a
however, that Boone does not require bifurcation and, bad-faith claim until after a resolution of those claims.
thus, they argue that the trial court did not abuse its In light of the prejudice to Grange that likely will
discretion when it declined to order bifurcation in the result from the disclosure of the attorney-client
present action. communications and the work-product materials in the
claims file, we conclude that the trial court acted un-
[4] {§] 28} Although the trial court did not ex- reasonably when it failed to prevent that prejudice by
pressly address Grange's motion to bifurcate, we bifurcating the trial and staying discovery on the
presume that it has been overruled. State ex rel. The v. bad-faith claim.
C y farshall (1998), 81 Ohio St.3d 467, 469, 692
d 198 (“when a trial court fails to rule on a pre- {4 31} The second assignment of error is sus-
trial motion, it may ordinarily be presumed that the tained.
court overruled it”). We review a denial of a motion to
bifurcate claims or issues for trial under an {4 32} The judgment of the trial court will be af-
abuse-of-discretion standard. Amerifirst Savings Bani firmed in part, reversed in part, and remanded to the
of Xenia v. Krug (1999). 136 Ohio App.3d 468, 485, trial court for further proceedings consistent with this
77 NE. 68. The term “abuse of discretion” con- opinion.
notes more than a mere error of law or judgment, it
implies that the court's attitude was unreasonable, Judgment affirmed in part, reversed in part and
arbitrary, or unconscionable. Id; Blakemore y cause remanded.
lakemore (1983). 5 Ohio $t.3d 217,219, 5 OBR 481
450 N_E.2d 1140.
IN. J., and GL ER, J., concur.
GEORG R, J., retired, of the Sixth
[5] {4 29} We agree with Grange that the trial Appellate District, sitting by assignment.
court's failure to bifurcate the bad-faith claim for trial
and to stay discovery on that claim would be grossly Ohio App. 2 Dist.,2003.
prejudicial to Grange and, thus, an abuse of discre-
Garg v. State Auto. Mut. Ins. Co.
tion.**764 The Gargs are not entitled to discover
Grange's attorney-client communications and attorney
155 Ohio App.3d 258, 800 N.E.2d 757, 2003 -Ohio-
work-product materials for purposes of their 5960
breach-of-contract and unfair-claims-practices claims,
absent waiver of those privileges. See Moskovitz, END OF DOCUMENT
supra. Documents numbered 1742-1772 contain
Chilson's analysis of the factual investigation*267 of
the claim and of the defense of arson. Although that
correspondence may cast light on whether Grange
acted in bad faith in handling the Gargs' claim and,
thus, is discoverable for purposes of the bad-faith
claim, it is also highly relevant to Grange's defense of
the breach-of-contract and unfair-claims-practices
claims. To require Grange to divulge its otherwise
privileged information prior to a resolution of those
other claims would unquestionably impact Gr
Preview
Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 Tab 14 {A0160866.1 } Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 Maroun v. Norfolk & Dedham Mutual Fire Insurance Company, Slip Copy (2021) os 2024 WL 413620 plaintiffs, Kristin Renee Maroun and George Charles Maroun, Jr., who are residents of New Hampshire, filed a 2021 WL 413620 Only the Westlaw citation is currently available. complaint in this court against defendants, Jeffrey James Owens, a former resident of Massachusetts, the Estate of United States District Court, D. Massachusetts. Jeffrey Owens (collectively, the Estate), Norfolk & Kristin Renee MAROUN and George Charles Dedham Mutual Fire Insurance Company (Norfolk), an Maroun, Jr., Plaintiffs, insurance company incorporated in Massachusetts with a v. principal office located in Dedham, Massachusetts, and NORFOLK & DEDHAM MUTUAL FIRE Geico General Insurance Company,’ pursuant to 28 INSURANCE COMPANY, Jeffrey James Owens USC. § 1332 (diversity of citizenship). See #1; and the Estate of Jeffrey James Owens, Massachusetts Corporations Search Entity Summary, Defendants. https://corp.sec.state.ma.us/CorpWeb/CorpSearch/CorpSu mmary.aspx?sysvalue=K AJbnD7GbSqmPCzBEC6H74v CIVIL ACTION NO. 1:20-11523-MPK: ZUHaNdPxfwY wfMjOoGYI- (last visited Feb. 3, 2021). On September 30, 2020, plaintiffs filed an amended Signed 02/05/2021 complaint against the Estate and Norfolk. #12.) Plaintiffs’ amended complaint alleges claims for negligence (counts I and II) and negligent infliction of Attorneys and Law Firms emotional distress (counts IV and V) against the Estate, George C. Maroun, Jr., Law Offices of George C. Maroun and a claim for violations of Mass. Gen, Laws ch. 934 Jr., Methuen, MA, for Plaintiffs. and 176D, § 3 against Norfolk (count III). See id. Christopher D. George, Healy & Healy, P.C., Needham, On November 5, 2020, Norfolk filed the present motion MA, William L. Keville, Melick & Porter, LLP, Boston, to sever and stay. (#28.) The motion has been fully MA, for Defendant Norfolk & Dedham Fire Insurance briefed. (## 28-1, 30.) Company. Linda M. Smith, Morrison Mahoney LLP, Boston, MA, for Defendant Jeftrey Owens. II. Factual Background. The court takes the following facts from plaintiffs’ amended complaint, the operative pleading. (#12.) On August 13, 2017, plaintiffs were passengers traveling northbound on Interstate 93 in Salem, New Hampshire, when their vehicle was “struck on the right rear quarter ... MEMORANDUM AND ORDER ON DEFENDANT, by [a] vehicle operated by Owens.” Id. Ff] 13-14, 26. NORFOLK & DEDHAM MUTUAL FIRE INSURANCE Plaintiffs allege that their “vehicle was hit with such COMPANY" MOTION TO SEVER AND STAY impact [that] it rolled three times and ended up in a ditch PLAINTIFFS’ CHAPTER 93A4/176D ACTION off of Interstate 93[,]” and that they were both seriously PENDING RESOLUTION OF PLAINTIFFS” injured and required medical treatment at Parkland UNDERLYING TORT CLAIM (#28). Medical Center, in Derry, New Hampshire. Jd. {| 17-18, 29-30. They claim that a Traffic Crash Report, generated. KELLEY, U.S.M.J. by the New Hampshire State Police on the date of the accident, determined that Owens had 1) failed to stay in the proper lane; 2) disregarded road markings; and 3) operated his vehicle in an inattentive, careless, negligent, or erratic manner. Jd. §] 15, 27. They further allege that I. Introduction. Owens was cited as being “Under the Influence of Medication/Drugs/Alcohol” at the time of the crash. Id. 1] *1 This is a negligence and unfair settlement case 16, 28. following an automobile accident. On August 13, 2020, oo oer Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 Maroun v. Norfolk & Dedham Mutual Fire Insurance Company, Slip Copy (2021) os 2024 WL 413620 Following the accident, plaintiffs filed a claim with previously-assessed common law damages for purposes Norfolk, Owens’ automobile insurance carrier. See id. [§ of determining the 93A damages. Wyler v. Bonnell 2, 36. Plaintiffs allege that, although they “provided in a Motors, 35° Mass. App. Ct. 563, 563-64 (1993). timely fashion to Norfolk all requested medical bills, Furthermore, unlike here, Wyler involved common law reports, photographs[,] and additional materials in their and 93A claims against the same party rather than possession to allow Norfolk to properly investigate [their] claim[,]” as well as a “demand package ... which clearly separate parties. Id. at 566. outlined [their] injuries,” Norfolk refused to offer any Second, Massachusetts appellate courts have recently held reasonable settlement amount in violation of | chapters that where, as here, a plaintiff makes both tort claims 93A and 176D, § 3. Id. {fj 37-38, 40. Specifically, against an insured and unfair settlement claims against its plaintiffs claim that Norfolk refused to pay their claims insurer in the same suit, it is “common . practice” to “without conducting a reasonable investigation based sever the unfair settlement claims and “stay[ ] them upon all information”; failed “to effectuate prompt, fair[.] pending resolution of the tort action.” Rivera y and equitable settlement of [their] claims” although Commerce Ins Co. 84 Mass. App. Ct 146, 147 n4 liability had “become reasonably clear”; and failed “to (2013); see also M.J. Flaherty Co. v. U. & Guar. provide a reasonable explanation of the basis” for its Co., 61 Mass. App. Ct. 337, 340 (2004) (“ifa claim for denial of their claims. Jd. § 43. Plaintiffs allege that unfair settlement practices is brought with the original Norfolk committed each of these actions in bad faith. Id. liability suit, Superior Court judges may take the sensible 44. Norfolk denies all of plaintiffs’ allegations. See #14; step of staying the unfair settlement claim pending the #28-1 at 2. outcome of the underlying negligence claim”); see also #28-3 at 5-7, 12-13 (citing Santacroce v. Sametz, No. *2 For the following reasons, Norfolk’s motion to sever 2014-J-0383 (Mass. App. Ct. Oct. 31, 2014), Collins v. and stay (#28) is GRANTED. Plaintiffs’ chapter 93A and Wayne Dalton Corp., No. ESCV2013-02092A (Mass. 176D claims against Norfolk are stayed pending the Super. Ct. Apr. 14, 2014), and Sdankus v. Broadspire resolution of their underlying tort claims against the Servs. Inc., No. ESCV2013-00624D (Mass. Super Ct. Estate. Aug. 27, 2013)). Norfolk correctly points out that litigation of the claims against it is premature because the potential liability of Owens and the Estate has yet to be determined. (#28-1 at TIT. Legal Analysis. 4.) Specifically, “[i]f the defendants prevail in the Norfolk argues that severing the 93A and 176D claims underlying [tort] action, judicial consideration of the against it “would avoid unnecessary time, costs[,] and 93A/176D claim[s] against Norfolk ... will be moot[,]” judicial efforts associated with litigating the claim[s].” and “all of the judicial resources expended on the matter (#28-1 at 3.) “In addition, severance of [the claims] would might prove for naught[.]” Id. at 4, 6; see WV on V prevent undue prejudice [against all defendants] by Copen, 244 F.3d 178, 180-81 (ist Cir. 2001) (noting that shielding privileged information and work product from unfair settlement claim would not lie if insured was not premature discovery.” Jd. Plaintiffs disagree, citing Wyler held liable in negligence); see also #28-3 at 13 (Sdankus, y. Bonnell Motors, Inc., a 1993 Massachusetts Appeals No. ESCV2013-00624D, finding that “a stay ... will most Court case, for the proposition “[t]hat bifurcation of [a] likely promote judicial economy, notwithstanding the common law claim and [a chapter] 93A claim has little to possibility of two trials”). [commend,]” and “it is the norm as well as the preferred practice for a judge to try common law and ... 93A claims *3 Furthermore, allowing the claims to proceed simultaneously.” (#30 at 2 (quoting L Wyler, 35 Mass. simultaneously would be unfairly prejudicial to both Norfolk and the Estate and could well compromise their App. Ct. 563, 566 (1993).)) ability to defend against plaintiffs’ claims. The Massachusetts Court of Appeals has explained: “With The court agrees with Norfolk. First, Wyler is respect to discovery, the insurer’s files are generally distinguishable from the present case. Unlike the present viewed as likely containing two types of information, case, Wyler did not involve a motion to sever and/or stay. namely, percipient evidence relevant to the underlying Rather, the issue in Wyler was whether, if 93A damages tort action against its insured, and claims handling were to be assessed after an underlying common law case information [concerning the insurer’s mental impressions had gone to judgment, a different judge who heard the and conclusions prepared in anticipation of trial] which is related 93A claim was bound to accept the likely immaterial to the underlying tort actio and soe Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 Maroun v. Norfolk & Dedham Mutual Fire Insurance Company, Slip Copy (2021) os 2024 WL 413620 subject to privilege. (#28-3 at 6 (Santacroce, No. TV. Conclusion 2014-J-0383).) Having the tort claims and the unfair settlement claims proceed at the same time creates the For the reasons stated above, defendant, Norfolk & risk that Norfolk’s privileged materials would be Dedham Mutual Fire Insurance Company’s motion to prematurely produced. See id. at 6-7. Depending on the sever and stay (#28) is GRANTED. contents of Norfolk’s claims file, ie., if the file reveals unfavorable impressions of liability, or that Norfolk knew it should have taken more steps toward settlement, a jury All Citations may look unfavorably on the Estate in the underlying tort claims. In contrast, if the claims are severed, plaintiffs Slip Copy, 2021 WL 413620 will still be able to pursue their unfair settlement practices claims against Norfolk after the tort suit is resolved. Footnotes With the parties’ consent, this case has been assigned to the undersigned for all purposes, including trial and the entry of judgment, pursuant to 29 U.S.C. § 636(c). (#8.) According to plaintiffs’ amended complaint, “Owens passed away suddenly sometime after” the automobile accident. (#1 J] 10.) It is unclear from the pleadings whether the accident caused Owens’ death. Geico has since been terminated as a party. “ End of Document 2022 Thomson Reuters. No claim to original U.S. Goverment Wor oo oer Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 Tab 15 {A0160866.1 } Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Civil Action No. 97-11049-NG \ MARY AND ROBERT MILLER Plaintiff Vv. RUDOLPH MUTO, M.D., ET AL. Defendants wae ORDER August 31, 1998 COHEN, M.d. Pursuant to Rules 7.1(d) and (e) of the Local Rules of this Court [effective September 1, 1990], and upon review of the relevant pleadings, the Renewed Motion for Stay (# 36) filed by defendant ProMutal is allowed. In this court's view, the reasoning of Associate Justice Kass in Jacqueline R. Gross, et al. v. Liberty Mutual Insurance Company, No. 84-0138 (Massachusetts Appeals Court, April 24, 1984) (Kass, Single Justice), and Jennifer Belcher v. Liberty Pawtucket Mutual Insurance Company, No. 89-J-672 (Massachusetts Appeals Court, September 27, 1987) (Kass, Single Justice), in granting stays pending resolution of the underlying tort action is compelling and sound. And, more to the point, the reasoning of Associate Justice Kass is fully consistent with the spirit of the Civil Justice Reform Act and its salutary goal that Date Filed 1/1/2024 4:40 PM Superior Court'- Middlesex Docket Number 2381CV02713 unnecessary expenses not be incurred during the course of discovery. Accordingly, the Renewed Motion for Stay (# 36) filed by defendant ProMutal is allowed, and the file is hereby ordered returned to the Clerk. cy Ale UN: ITED STATES MAGISTRATE JUDGE ee -2- Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 Tab 16 {90160866.1} Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Dockpt'Number 2381 cvo271 3 ——_ COMMONWEALTH OFMASSACHUSETTS : " SUFFOLK, ‘ss. SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY ° No. SJ-2004-0480 Trial Court: Falmouth District Court No, 0489CV0128 BLIZABEBTH M, MONTY YS, . MARY CENEDELLA and ONEBEACON INSURANCE GROUP, ii¢ . M BMORANDUM OF DECISION AND iupGyenr ‘ Defendant OneBeacon Insurance Grow, LLC (CneBeacon) has filed the present petition seeki hg relief under G.L. c. 211, § 3, from the order of the District Court denying its motion to ‘ sever and stay plaintiff's unfair settlement practices claim (G. L. c. 93A and G, L, °. 176D) pending resolution of plaintiff's underlying motor vehicle tort claim against OneBeacon's insured, The petition is ALLOWED. . OneBeacon does not have an adequate remedy by means of normal appellate procedures. Discovery into and ial of the urifair clair settlement practices claim prior to trial of the = d 3 1, It thus held that “neither the Tickman v. Tavlor (1947), 329 U.S. 495, 67 S.Ct. 385. attorney-client privilege nor the so-called work 91 L.Ed. 451, which held that an attorney's work product exception precludes discovery of the contents product, prepared in anticipation of litigation, is not of an insurer's claims file. The only privileged matters subject to discovery. Grange states that the Boone contained in the file are those that go directly to the court did not create an exception to the work-product theory of defense of the underlying case in which the doctrine, because it confined itself solely to the issue decision or verdict has been rendered.” (Emphasis of whether attorney-client communications should be added.) Id. at paragraph three of the syllabus. produced. Grange notes that the Boone litigation dif- fers from the instant case in that the Gargs threatened {4 14} The Boone court rejected the distinction litigation prior to the denial of their claim, whereas in made by the court of appeals, which distinguished Boone, the litigation was not anticipated until after a Moskovitz based on whether the underlying claim decision was reached on the claim. Grange further remained pending before a court. (In the present case, argues that the work-product materials at issue were the underlying claims are the breach-of-contract and prepared in anticipation of litigation, because the the unfair-claims-practices claims.) The Boone court Gargs had previously threatened litigation, and thus noted that “[oJur ruling in Moskovitz did not turn on they fall within no exception to the doctrine preclud- the status of the underlying claim, but rather upon our ing discovery of such documents. recognition that certain attorney-client communica- tions and work-product materials were undeserving of **760 *262 {§ 13} As noted by Grange, the protection, i.e., materials ‘showing the lack of a good Boone court did not expressly hold that an insured is faith effort to settle.’ ” Boone, 91 Ohio. .3d at 212. entitled to discover claims-file materials containing 744 2d 154. The court continued: attorney work product that were created in anticipa- tion of litigation but prior to the denial of the claim. In {J 15} “Like the trial court, we find that the ra- Boone, the discoverability of work-product materials tionale behind our holding in Moskovitz is applicable was not at issue. However, the Boone court provided to actions alleging bad faith denial of coverage. That guidance for the lower courts on this matter. In ruling is, claims file materials that show an insurer's lack of on whether attorney-client communications in the good faith in denying coverage are unworthy of pro- claims file are discoverable, the court applied its prior tection. It appears, however, that in determining which reasoning in Moskovitz Mi. Sinai Med, Ctr, (1994 *263 documents were protected in this case, the trial 69 Ohio St3d 638, 635 N. 2d 331. In that case, after court applied the specific holding in Moskovitz, i.e., a substantial jury award for a medical malpractice only those documents containing attorney-client claim, the plaintiffs sought prejudgment interest, communications and work product that go directly to pursuant to R.C. 1343.03(C), which requires the pre- the theory of defense of the underlying claim are vailing party to prove, among other things, that the protected. We find this holding inapplicable in the opposing party failed to make a good-faith effort to present case because, while the lack of a good faith settle the case. The Moskovitz court recognized that effort to settle involves conduct that may continue one of the most difficult problems regarding R.C. throughout the entire claims process, a lack of good © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 800 N.E.2d 757 Page 5 155 Ohio App.3d 258, 800 N.E.2d 757, 2003 -Ohio- 5960 (Cite as: 155 Ohio App.3d 258, 800 N.E.2d 757) faith in determining coverage involves conduct that homeowner's insurance policy fall within the Boone occurs when assessment of coverage is being consid- exception. Grange further asserts *264 that none of the ered. Therefore, the only attorney-client and disputed documents relates to coverage and, thus, they work-product documents that would contain infor- fall outside Boone's exception for attorney-client mation related to the bad faith **761 claim, and, thus, privilege. be unworthy of protection, would have been created prior to the denial of coverage.” Id. at 213, 744. 2d {§ 18} The Gargs respond that Grange interprets 154. The Boone court found fault with the trial court's Boone too narrowly. They contend that the Supreme application of Moskovitz (which addressed both at- Court of Ohio has concluded that claims-file materials torney-client communications and work-product ma- that demonstrate an insurer's lack of good faith in terials) only to the extent that the lower court allowed denying coverage are unworthy of protection. Thus, the discovery of otherwise protected materials after the Gargs argue, otherwise privileged communica- the denial of coverage. 91 Ohio St.3d_at 213, 744 tions that demonstrate bad faith on the part of the N.E.2d 154. insurer are discoverable, regardless of whether the communications relate to the issue of coverage. In so 1)[2] {§ 16} Upon review of Boone, we conclude arguing, the Gargs have “recognize[d] that the sylla- that the Supreme Court of Ohio has given no basis for bus is worded in language which, at first blush, and distinguishing materials that are otherwise protected taken out of context, would seem to restrict discov- by attorney-client privilege and those otherwise pro- erable materials to those containing attorney-client tected by the work-product doctrine. The Boone communications related to the issue of coverage.” court's failure to reference work-product materials in They contend, however, that “when the syllabus is the syllabus appears to have been based solely on the read in pari materia with the language of the full fact that the circumstances giving rise to the case did opinion, it becomes apparent that the actual holding of not involve work-product materials. Moreover, the the Court might have been more clearly stated if the court's unequivocal adoption of the rationale in Mos- word ‘including’ were substituted for the word ‘con- kovitz, which stated that both attorney-client commu- taining. aos nications and work-product materials may be unwor- thy of protection, indicates that attorney-client com- {4 19} As indicated by Grange, the syllabus in munications and work-product materials are to be Boone indicates which attorney-client communica- treated similarly. Thus, both attorney-client commu- tions are subject to discovery in a bad-faith claim: “In nications and work-product materials are subject to an action alleging bad faith denial of insurance cov- disclosure during discovery on bad-faith claims. erage,**762 the insured is entitled to discover claims file materials containing attorney-client communica- {17} Turning to the issue of whether attor- tions related to the issue of coverage that were created ney-client communications and work-product materi- prior to the denial of coverage.” (Emphasis added.) Id. als are discoverable only if related to the issue of However, as argued by the Gargs, although the syl- coverage, Grange asserts that the trial court erred labus is narrowly tailored to the facts of the case, the when it concluded that all attorney-client communi- opinion in Boone is written with broader strokes. cations are discoverable up to the time that the insur- Framing the issue before the court, the Boone court ance claim is denied. It argues that Boone limited the stated: “The issue before us is whether, in an action discoverable communications to those that “relate to alleging bad faith denial of insurance coverage, the the issue of coverage,” and that the trial court should insured is entitled to obtain, through discovery, claims have reviewed the otherwise protected attorney-client file documents containing attorney-client communi- communications to determine whether they so related. cations and work product that may cast light on Grange cites Black's Law Dictionary, which defines whether the denial was made in bad faith.” Boone, Boone, 91 91 “coverage” as “inclusion of a risk under an insurance Ohio St.3d at 211-212. 744 N.E.2d 154. Thus, in the policy; the risks within the scope of an insurance body of the opi jon, the Boone court expressed a policy.” The company asserts that only those com- broader inquiry than that indicated by the syllabus. munications between Grange and its attorney that related to whether the risk of loss of personal property, [3] {§] 20} Throughout the opinion, the Boone by fire or otherwise, was covered under the Grange court indicated that its focus was not limited only to © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 800 N.E.2d 757 Page 6 155 Ohio App.3d 258, 800 N.E.2d 757, 2003 -Ohio- 5960 (Cite as: 155 Ohio App.3d 258, 800 N.E.2d 757) those documents related to coverage. In Moskovitz, the court had indicated that the documents showing the {§ 23} Documents numbered 1738 through 1778 lack of a good-faith effort to settle included virtually were created after the Gargs' February 26, 2002 cor- everything in the claims file. It held that “[t]he only respondence, which threatened litigation if Grange privileged matters contained in the file are those that failed to resolve and to adjust their claim **763 go directly to the theory of the defense of the under- promptly. Thus, these documents may contain attor- lying case in which the decision or verdict has been ney work product. However, as stated above, attorney rendered.” Moskovitz, 69 Ohio St.3d at 663-664, 635 work product is discoverable to the same extent as N.E.2d 331. Adopting the rationale in Moskovitz, the attorney-client communications. Documents num- Boone court stated, as quoted in its entirety above, that bered 1738 through 1741 and 1773 through 1776 materials in the claims file “that show an insurer's lack relate to the factual investigation of the Gargs' claim. of good faith in denying coverage are unworthy of Documents numbered 1742 through 1772 contain protection.” (Emphasis added.) Boone, 91 Ohio St.3d attorney Mark Chilson's advice to Grange regarding at_213. 744 N.E.2d 154. The Boone court further the factual investigation of the claim and his analysis emphasized that in *265 bad-faith-denial-of-coverage regarding the civil arson defense. Documents num- cases, “the only attorney-client and work-product bered 1777 and 1778 reference that correspondence. documents that would contain information related to All of these documents were created prior to the denial the bad faith claim, and, thus, be unworthy of protec- of the Gargs' claim and may shed light on whether tion, would have been created prior to the denial of Grange acted in bad faith in its investigation and coverage.” Id. Thus, reading Moskovitz and Boone handling of their claim. Accordingly, the trial court together, the Supreme Court of Ohio has indicated that properly ruled that documents numbered 1738 through the critical issue in evaluating the discoverability of 1778 were discoverable. otherwise privileged materials is not whether the at- torney-client communications related to the existence {4 24} In summary, the trial court properly of coverage but, rather, whether they may cast light on compelled production of the entire claims file. Under bad faith on the part of the insurer. Boone, neither attorney-client privilege nor the work-product *266 doctrine protects materials in a {§ 21} Having set forth which claims-file mate- claims file, created prior to the denial of the claim, that rials are discoverable with regard to a bad-faith claim may cast light on whether the insurer acted in bad faith under Boone, we now address whether the trial court in handling an insured's claim. erred by compelling the production of the disputed materials, i.e., the documents in the Privileged Log. {4 25} The first assignment of error is overruled. Grange asserts that documents numbered 1738 through 1772, and 1773 and 1777, were prepared in {§ 26} “IL. The trial court abused its discretion by anticipation of litigation and contain or reflect attor- ney work product and, therefore, are protected from ordering Grange to produce protected work-product discovery under the work-product doctrine. Grange materials and/or privileged attorney-client communi- further asserts that documents numbered 1727 through cations without bifurcating the underlying claims from the bad faith claims for trial, and staying discovery of 1778 are attorney-client communications that do not relate to the issue of coverage. the bad faith claims until after resolution of the un- derlying claims.” {§ 22} Upon review of the documents contained in the Privileged Log, we agree with the trial court that {§ 27} In its second assignment of error, Grange documents numbered 1727 through 1778 must be asserts that the trial court erred in ordering it to pro- disclosed. Documents numbered 1727 through 1737 duce the otherwise protected work-product materials were created both prior to the threat of litigation and and attorney-client communications without bifur- the denial of coverage, and they may cast light on cating the bad-faith claim from the other pending whether Grange acted in bad faith in failing to respond claims for trial and without staying discovery on the to the Gargs' insurance claim. Accordingly, the trial bad-faith claim until after the resolution of the court did not err when it compelled the production of breach-of-contract and unfair-claims-practices claims. these materials. The Gargs respond that the trial court, having re- viewed the disputed documents and having heard the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Date Filed 1/16/2024 4:40 PM Superior Court - Middlesex Docket Number 2381CV02713 800 N.E.2d 757 Page 7 155 Ohio App.3d 258, 800 N.E.2d 757, 2003 -Ohio- 5960 (Cite as: 155 Ohio App.3d 258, 800 N.E.2d 757) arguments, exercised its discretion, ordered the pro- result from the disclosure of attorney-client commu- duction of the documents, and declined to bifurcate nications and work-product materials due to a the claims for trial. They argue that Boone recognized bad-faith claim. Specifically, Boone instructs that the potential for disclosure to “inhibit the insurer's courts may bifurcate the trial on a bad-faith claim from. ability to defend on the underlying claim.” They note, the remaining claims and may stay the discovery for a however, that Boone does not require bifurcation and, bad-faith claim until after a resolution of those claims. thus, they argue that the trial court did not abuse its In light of the prejudice to Grange that likely will discretion when it declined to order bifurcation in the result from the disclosure of the attorney-client present action. communications and the work-product materials in the claims file, we conclude that the trial court acted un- [4] {§] 28} Although the trial court did not ex- reasonably when it failed to prevent that prejudice by pressly address Grange's motion to bifurcate, we bifurcating the trial and staying discovery on the presume that it has been overruled. State ex rel. The v. bad-faith claim. C y farshall (1998), 81 Ohio St.3d 467, 469, 692 d 198 (“when a trial court fails to rule on a pre- {4 31} The second assignment of error is sus- trial motion, it may ordinarily be presumed that the tained. court overruled it”). We review a denial of a motion to bifurcate claims or issues for trial under an {4 32} The judgment of the trial court will be af- abuse-of-discretion standard. Amerifirst Savings Bani firmed in part, reversed in part, and remanded to the of Xenia v. Krug (1999). 136 Ohio App.3d 468, 485, trial court for further proceedings consistent with this 77 NE. 68. The term “abuse of discretion” con- opinion. notes more than a mere error of law or judgment, it implies that the court's attitude was unreasonable, Judgment affirmed in part, reversed in part and arbitrary, or unconscionable. Id; Blakemore y cause remanded. lakemore (1983). 5 Ohio $t.3d 217,219, 5 OBR 481 450 N_E.2d 1140. IN. J., and GL ER, J., concur. GEORG R, J., retired, of the Sixth [5] {4 29} We agree with Grange that the trial Appellate District, sitting by assignment. court's failure to bifurcate the bad-faith claim for trial and to stay discovery on that claim would be grossly Ohio App. 2 Dist.,2003. prejudicial to Grange and, thus, an abuse of discre- Garg v. State Auto. Mut. Ins. Co. tion.**764 The Gargs are not entitled to discover Grange's attorney-client communications and attorney 155 Ohio App.3d 258, 800 N.E.2d 757, 2003 -Ohio- work-product materials for purposes of their 5960 breach-of-contract and unfair-claims-practices claims, absent waiver of those privileges. See Moskovitz, END OF DOCUMENT supra. Documents numbered 1742-1772 contain Chilson's analysis of the factual investigation*267 of the claim and of the defense of arson. Although that correspondence may cast light on whether Grange acted in bad faith in handling the Gargs' claim and, thus, is discoverable for purposes of the bad-faith claim, it is also highly relevant to Grange's defense of the breach-of-contract and unfair-claims-practices claims. To require Grange to divulge its otherwise privileged information prior to a resolution of those other claims would unquestionably impact Gr