Bonasera v. New River Electrical Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

THOMAS J. BONASERA,

Plaintiff,

Case No. 2:19-cv-3817

v. Judge Edmund A. Sargus, Jr.

Magistrate Judge Chelsey M. Vascura

NEW RIVER ELECTRICAL

CORP., et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendant Pennsylvania National Mutual Casualty Ins.

Co.’s (“Penn National”) Motion for Judgment on the Pleadings or Alternatively Motion to

Bifurcate and Stay (ECF No. 44); Plaintiff Thomas J. Bonasera’s (““Bonasera”) Motion for Partial

Summary Judgment (ECF No. 58); and Penn National’s Motion for Additional Time to File a

Response to Bonasera’s Motion for Partial Summary Judgment (ECF No. 65). For the following

reasons, Penn National’s Motion for Judgment on the Pleadings is DENIED; Penn National’s

Alternative Motion to Bifurcate and Stay is GRANTED IN PART and DENIED IN PART;

Bonasera’s Motion for Partial Summary Judgment is GRANTED; and Penn National’s Motion

for Additional Time to File a Response is DENIED.

I. BACKGROUND

This case arises from the death of Alaina Steele, who was struck and killed by a vehicle

while retrieving road signs during her job as a road flagger.

A. Undisputed Facts Leading Up to Alaina Steele’s Death

In the summer of 2017, Alaina Steele and her niece, Samantha Steele, applied for positions

as “road flagger[s]” at Wright Brothers, Inc. (“Wright Brothers”). (Affidavit of Samantha Steele

{ 4-5, hereinafter “Steele Aff.,” ECF No. 58-1.) Wright Brothers hired the pair and put them

through a “road-flagger certification class.” (Jd. ]7.) The class showed them “how to stand in the

road, how to hold the signs, how and where to place the signs, and to always have an escape route.”

(Id. 7 10.) The class also taught them to use six different signs, with three for each direction of

traffic. Ud. 15.) Alaina and Samantha completed the class and passed a flagger certification test.

(id. 17-19.) They were issued an “ATSSA flagger certification card”, which certified them to

flag anywhere in the United States for four years. (/d.)

After becoming certified to work as flaggers, a supervisor at Wright Brothers would send

Alaina and Samantha a daily “group text” informing them which job they would work on a given

day. (/d. 23.) From July of 2017 until August of 2017, Wright Brothers sent the two together to

work as flaggers at job sites for various companies around Ohio. (/d. | 40; Deposition of Samantha

Steele at 25:2, hereinafter “Steele Dep.,” ECF No. 57-1.) At first, Alaina and Samantha were

issued a white van to take equipment to and from job sites that had “Wright” in large letters on

both sides and an orange strobe light on the hood. (Steele Aff. 36.) Wright Brothers told the

pair that one of them would be the driver for the first six months and the other would drive for the

six months after that. (7d. 38.) Alaina and Samantha agreed that Alaina would be the first driver.

(id. 7 39.)

In early August of 2017, Wright Brothers sent Alaina and Samantha a group text instructing

them to go to a new job for New River Electric (“New River”) in Granville, Ohio. (4d. ] 45.) The

two worked at the New River job site for a week prior to the accident that killed Alaina. (Steele

Dep. at 24:20-23.) New River was working on electric poles that lined the road. (Jd. at 25:3-15.)

The foreman for New River showed Alaina and Samantha which poles New River would be

working on the following day, instructing them where to place the flagger signs. (Steele Aff. {

47.) So, at the beginning of each day, Alaina and Samantha set up road flags at different parts of

the road depending on where New River was working. (Steele Dep. at 25:3-15.) When the New

River employees were finished with work for the day, Alaina and Samantha retrieved the signs

they had placed on the road. (Jd. ]53.) When retrieving the signs, Alaina would “drive the Wright

van in front of the area where the sign was located, stop the vehicle, place it in park, but leave the

vehicle running” while she and Samantha loaded signs into the van. (/d. 155.) Alaina pulled the

two right-sided tires into the grass on the side of the road while leaving the two left-sided tires in

the road, with the white “fog line” running through the middle of the van. (/d. 54.) Alaina turned

on the strobe light and hazard lights when pulling over to retrieve signs. (Jd. 56.)

While working at the New River site, the tires on Wright Brothers van began to go flat.

(id. J 58.) Alaina and Samantha retrieved a replacement vehicle from Wright Brothers on August

9, 2017 during their lunch break. (Jd. 158.) The replacement vehicle was a 2017 Chevy Silverado

pickup truck that had same large “Wright” letters on each side and an orange strobe light on top,

just as the van had. (/d. FJ 58-59.)

On the morning of August 11, 2017, Alaina and Samantha arrived at the New River job

site using the 2017 Chevy Silverado. (/d. ff 61, 63-65.) They set up signs around 7:00 a.m. (id.

{J 65.) They stopped work for the day at 1:00 p.m. and began to retrieve the six signs they had

placed in the morning. (/d. {| 68-69.) When they approached the fifth of six signs, “Alaina

stopped the vehicle and put it in park but left the vehicle running to retrieve the fifth sign.” (/d. J

70.) The truck was partially on the road, with a ditch to the right of the truck. (Steele Dep. at

44:13-19.) Alaina and Samantha both stepped out of the vehicle and retrieved the sign and base

of the sign, and placed the objects in the bed of the truck. (Steele Dep. at 43:19—22, 47:16.)

After Alaina and Samantha placed the sign in the bed of the truck, Samantha heard a “loud

vehicle” behind them. (Steele Aff. § 71.) She then turned to witness a Jeep coming toward them

from over a hill roughly 150 yards away, travelling “approximately 65 to 75 miles per hour.” □□□□

At that moment, Alaina was standing by the passenger side taillight and Samantha was standing

on the driver’s side next to the tailgate. (Steele Dep. at 43:25-45:14.) As the Jeep approached,

Samantha saw the driver of the Jeep slam on the brakes, causing the front end of the Jeep to “nose

dive[.]” (Steele Dep. at 47:12-22.) Both women took off running; Samantha ran to the driver’s

side and Alaina “ran on the passenger side” toward the ditch. (/d. at 47:12-22, 196:12-14.)

Samantha then witnessed the Jeep roll over toward the ditch, hit Alaina in the ditch, roll up on the

embankment and then settle down on top of Alaina’s leg. (/d. at 47:12-22, 49:7-11, 196:1—-197:3;

Steele Aff. 73.)

Once the Jeep came to a rest, Samantha ran to assist Alaina. (Steele Aff. { 74.) The EMS

arrived, told Samantha that Alaina did not have a pulse, and attempted CPR. (/d. 77-78.) After

attempting CPR, the EMS informed Samantha that Alaina Steele had passed away. (/d. J 79.)

B. Allegations Against Penn National Insurance

Following Alaina Steele’s death, this action was initiated by Bonasera, the administrator

of Alaina’s estate. (Second Am. Compl. J 1, ECF No. 37.) Bonasera brings wrongful death and

survivorship claims against W.D. Wright Contracting, Inc. (“W.D. Wright”) and New River. (id.

ji-S.) Bonasera alleges that W.D. Wright is affiliated with Wright Brothers, Alaina’s employer

at the time of the accident. (/d. 11.)

More pertinent for this Opinion and Order, Bonasera also brings a declaratory judgment

action, a breach of contract claim, and a bad faith claim against Penn National. (Ud. fj 136-61.)

An insurance card was located inside the 2017 Chevy Silverado at the time of the accident listing

W.D. Wright as the “insured” and the insurer as “Penn National Insurance[.]” (/d. 4128.) The

policy number was listed as “AU90682932.” (id. 7 130.) Bonasera alleges that this policy

provides underinsured motorist coverage to Alaina Steele because Alaina Steele qualified as an

“insured” at the time of the accident. (/d. | 130.)

Bonasera claims that he first sent letters requesting information about insurance coverage

pertaining to the accident on August 25, 2017. (Ud. ff] 119-20.) After sending letters, an attorney

from Reminger Co., L.P.A., responded on September 12, 2017 informing Bonasera that the

attorney was representing W.D. Wright. (/d. J 122.) The attorney “refused” to provide any

insurance information. (/d.) Bonasera then sent letters on September 27, 2017 and November 1,

2017, to a litigation specialist at Penn National and an attorney for Wright Brothers requesting

consent to settle with the driver of the Jeep, Rebecca Cook. (/d. 4 123.) Cook carried an insurance

policy for $25,000 from Safe Auto Insurance Company. (/d.) The “recipients [at Penn national

and Wright Brothers] refused to provide the information” his letter sought. (/d.) He again sent a

letter to all defendants on January 18, 2018 requesting consent to settle with Cook and Safe Auto

and requesting any insurance information relating to the accident. (/d. 7 124.) And he claims that

the defendants again “refused to provide responsive information to” the request. (Jd. | 125.)

Following unsuccessful attempts to obtain insurance information, Bonasera received a

letter on January 24, 2018 from an attorney representing Wright Brothers and Penn National. (/d.

126.) The letter stated: “we are still in the process of reviewing the relevant insurance policies

and investigative materials surrounding the collision that occurred on August 11, 2017. As such

we will need more time to determine our position on your request for the potential [underinsured

motorist] carrier to consent to settle the offer from the tortfeasor’s insurance carrier.” (/d.)

Bonasera claims that, after this letter, he did not hear back from the defendants on his request for

information and consent to settle. 7d. J 127.)

Penn National did not provide Bonasera “with a copy of the insurance policy or

declarations pages relating to policy AU90682932 until after this action was filed and did so only

in response to Plaintiff's discovery requests” in March of 2020. (Ud. § 130-33.) According to

Bonasera, Penn National had been “reviewing” the relevant insurance policy “since at least

January 2018 and, upon information and belief, since at least November 2017” but “refused to

produce the applicable insurance policy” until discovery in this case. (/d.) Penn National’s answer

to one of Bonasera’s interrogatories indicates that it denied coverage to Alaina Steele because she

“is not an ‘Insured’ under the policy because she was not ‘occupying’ the vehicle in question even

though, under the facts of this case and Ohio law, such a position is not reasonably justifiable.”

(id. J 133.)

Bonasera’s first cause of action against Penn National is for a declaratory judgment. □□□□

{ 136.) He seeks “‘a declaration of rights, duties, and liabilities of the parties under the insurance

policy or policies with respect to which policy or policies of insurance issued by” Penn National.

(Id. J 143.) Bonasera next brings a breach of contract claim against Penn National, seeking to

“recover applicable UIM policy limits[.]” (a. {J 145-51.) Last, Bonasera brings a claim for bad

faith against Penn National for allegedly “failing to properly investigate Plaintiff's claims for over

two years”; “never prepar[ing] an evaluation of Plaintiff's damages”; and for refusing to provide

the applicable insurance policy until discovery in this case. (/d. §J152-58.) Bonasera alleges that

Penn National’s conduct “constitutes malice and a conscious disregard for the rights of its

insureds.” (Id. | 159.) Bonasera claims that, as a result of Penn National’s bad faith, he has

“suffered compensatory damages as set forth in this amended complaint” and is also entitled to

punitive damages and attorneys’ fees. (/d. | 160-61.)

II. DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS

Penn National moves for judgment on the pleadings on Bonasera’s bad-faith claim, arguing

that Bonasera has not sufficiently pleaded compensatory damages. (See Def.’s Mot. J. on

Pleadings, ECF No. 44.)

A. Standard

The Federal Rules of Civil Procedure provide that, “after the pleadings are closed—but

early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ.

P. 12(c). The standard of review for a Rule 12(c) motion for judgment on the pleadings is identical

to the standard for a motion to dismiss under Rule 12(b)(6). Sensations, Inc. v. City of Grand

Rapids, 526 F.3d 291, 295 (6th Cir. 2008). To state a claim upon which relief may be granted,

Plaintiffs must satisfy the pleading requirements set forth in Rule 8(a). While Rule 8(a)(2) requires

a pleading to contain a “short and plain statement of the claim showing that the pleader is entitled

to relief,” in order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 677-78 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Jd. (clarifying

the plausibility standard articulated in Twombly). Furthermore, “[a]lthough for purposes of a

motion to dismiss [a court] must take all the factual allegations in the complaint as true, [it][is] not

bound to accept as true a legal conclusion couched as a factual allegation.” /d. at 677-79 (quoting

Twombly, 550 U.S. at 55) (internal quotations omitted).

In Twombly, the Supreme Court concluded that, to meet the Rule 8 standard, a complaint

must “nudge [] [a plaintiff's] claims across the line from conceivable to plausible.” 550 U.S. at

570. The Court held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his

[entitlement] to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Jd. at 555 (internal citations and quotations omitted).

“Naked assertion[s] . . . without some further factual enhancement” stop short of the line between

“possibility and plausibility of entitle[ment] to relief.” Jd. at 557 (internal quotations omitted).

In Igbal, the Court explained that one of the “principles” underlying Twombly is that the

ordinary rule that courts must accept as true allegations made in pleadings for purposes of deciding

a Rule 12(b)(6) motion does not apply to legal conclusions. Jd. at 678. In other words, “{w]hile

legal conclusions can provide the framework of a complaint, they must be supported by factual

allegations. When there are well-pleaded factual allegations, a court should assume their veracity

and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.

A motion for judgment on the pleadings may be granted only if the moving party is clearly

entitled to judgment. Source Assocs. v. Valero Energy Corp., 273 F. App’x. 425, 427 (6th Cir.

2008).

B. Analysis

In Ohio, insureds may bring a tort claim for bad faith against insurers who fail to act in

good faith in the procession of a claim. See Zoppo v. Homestead Ins. Co., 644 N.E.2d 397, 400

(Ohio 1994). An insurer “fails to exercise good faith in the processing of a claim of its insured

where its refusal to pay the claim is not predicated upon circumstances that furnish reasonable

justification therefor.” Jd. (citation omitted). Whether an insurer is liable for bad faith is not

dependent on whether the insurer breached the insurance contract. Valley Force Ins. Co. v. Fisher

Klosterman, Inc., No. 1:14-CV-792, 2016 WL 1642961, at *3 (S.D. Ohio Apr. 26, 2016) (citing

Gerken v. State Auto Ins. Co., No. 13CA14, 2014-Ohio—4428, § 46 (4th Dist. Sept. 8, 2014)).

“Rather, the liability arises from the breach of a positive legal duty imposed by law due to the

relationship of the parties.” Jd. (citing Gerken, 2014-Ohio—-4428, { 46) (internal quotations

omitted).

An insurer “who acts in bad faith is liable for those compensatory damages flowing from

the bad faith conduct of the insurer[.]” Zoppo, 644 N.E.2d at 402. These “extra-contractual

damages” are “actual damages over and above those covered by the insurance contract sustained

by the insured as a consequence of the insurer’s bad faith[.]” Asmaro v. Jefferson Ins. Co. of New

York, 574 N.E.2d 1118, 1123 (Ohio Ct. App. Mar. 31, 1989). Ifa plaintiff succeeds on a bad-faith

claim, “punitive damages are available upon a showing of actual malice.” Jd. Attorneys’ fees “may

be awarded as an element of compensatory damages where the jury finds that punitive damages

are warranted.” Zoppo, 644 N.E.2d at 402.

Penn National argues that Bonasera’s bad-faith claim is futile because he has failed to

sufficiently plead compensatory damages. The crux of this argument is that Bonasera “fails to

allege any damages sustained by the decedent as a result of the insurer’s alleged bad faith.”

(Def.’s Mot. J. on Pleadings at 5 (emphasis added).) Penn National’s causation argument focuses

on paragraph 160 of the Complaint, which states: “‘As a direct and proximate result of Defendant’s

acts, omissions, and conduct, Plaintiff has suffered compensatory damages as set forth in this

amended complaint.” (Second Am. Compl. { 160.) Penn National claims that, because Bonasera’s

bad-faith claim only alleges that he suffered damages as set forth in the amended complaint,

Bonasera has not actually alleged any damages caused by Penn National’s bad faith. According

to Penn National, the compensatory damages “set forth” in the amended complaint only flow from

damages suffered by the decedent as a result of other causes of action in the complaint—wrongful

death, survivorship, and breach of contract. (Def.’s Mot. J. on Pleadings at 5 (emphasis added).)

Thus, according to Penn National, Bonasera fails to state a claim for bad faith under Ohio law

because he does not allege he suffered any damages. Penn National further argues that, because

Bonasera fails to allege compensatory damages on his bad-faith claim, he cannot recover punitive

damages or attorneys’ fees either. (/d. at 6.)

Bonasera responds that his bad-faith claim sufficiently alleges compensatory damages.

(P1.’s Response at 2.) He argues that the complaint provides “a litany of facts, bad faith allegations

and allegations of damages that when assumed are true are sufficient to have pleaded compensatory

damages.” (id. at 10.)

Bonasera relies on Valley Force Ins. Co. vy. Fisher Klosterman, Inc. to defend the

sufficiency of his pleading. No. 1:14-CV-792, 2016 WL 1642961 (S.D. Ohio Apr. 26, 2016). In

Valley Force Ins. Co., the insurer mounted several challenges to the insured’s counterclaim for

bad faith, including the argument that the insured failed to allege any compensatory damages as

part of its claim. Jd. at *12. The paragraph containing the insured’s damages allegation stated:

“By reason of the foregoing, FKI is entitled to compensatory and punitive damages, in an amount

to be determined at trial[.]” Jd. at *2. In analyzing the sufficiency of this allegation under Rule 8,

the Court rejected the insurer’s argument that the allegation was insufficient. Jd. at *12. The

allegation for “compensatory damages” sufficiently placed the insurer on notice that the insured

was requesting compensatory damages as part of its recovery. Jd. The facts pleaded in the

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paragraphs prior to the compensatory-damages paragraph sufficiently supported “a cause of action

for bad faith from which compensatory damages would naturally flow.” Jd. The fact that the

insured did not “specify each and every form of compensatory damages it [was] seeking” did not

preclude the insured from recovering compensatory damages. Jd.

Valley Force Ins, Co. is on point. Just like the insured in Valley Force Ins. Co., Bonasera’s

well-pleaded factual allegations support a cause of action for bad faith “from which compensatory

damages would naturally flow.” Jd. Bonasera pleads several factual allegations that, taken as true,

plausibly allege that Penn National failed to act in good faith in the processing of a claim of its

insured without reasonable justification. (See Second Am. Compl. ff 119-58.) And Bonasera’s

allegation that he “has suffered compensatory damages as set forth in this amended complaint”

sufficiently places Penn National on notice that Bonasera is seeking compensatory damages for

the alleged bad faith. Ud. 160.)

Penn National does not contest the sufficiency of these factual allegations. Its argument

focuses only on the compensatory-damages paragraph. Penn National interprets the phrase

“compensatory damages as set forth in the amended complaint” as referring only to the

compensatory damages alleged for Bonasera’s other claims because those damages are “set forth”

elsewhere in the complaint. (/d.) But this phrase can just as plausibly be interpreted as referring

to the damages as set forth from the factual allegations regarding Penn National's bad faith in the

complaint. Rule 8 does not dictate such a narrow framing of Bonasera’s compensatory damages

allegation; it does not require Bonasera to “specify each and every form of compensatory damages”

he is seeking. Valley Force Ins. Co., 2016 WL 1642961, at *12. Thus, Penn National’s argument

fails. Bonasera has sufficiently alleged compensatory damages. Penn National’s argument that

“because Plaintiff has not alleged compensatory damages on the bad faith claim, punitive damages

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[and attorneys’ fees] cannot be awarded” also necessarily fails because Bonasera has alleged

compensatory damages. (Def.’s Mot. J. on Pleadings at 6.)

Accordingly, Penn National is not entitled to judgement on the pleadings.

Ill. DEFENDANT’S ALTERNATIVE MOTION TO BIFURCATE AND STAY

Penn National moved in the alternative to: (1) stay discovery and bifurcate the proceedings

on Bonasera’s bad-faith claim “until the resolution of all coverage issues”; and (2) bifurcate the

punitive damages phase of the trial. (Def.’s Mot. J. on Pleadings at 7.)

A. Bifurcation of the Bad-Faith Claim

Penn National asks the Court to bifurcate the bad-faith claim and stay of discovery on the

bad-faith claim pending resolution of the underlying coverage claims. (Def.’s Mot. J. on Pleadings

at 7.) It argues that bifurcation and stay are necessary to prevent “unfair prejudice” to Penn

National and that bifurcation and stay would “promote judicial economy.” (/d. at 8, 15.)

Federal Rule of Civil Procedure 42(b) governs the analysis of Penn National’s bifurcation

motion. The Court has discretion to bifurcate the bad faith or punitive damages claims “for

convenience, to avoid prejudice, or to expedite and economize[.]” Fed. R. Civ. P. 42(b). “Federal

courts in Ohio have at times also bifurcated bad-faith claims and stayed discovery pending

resolution of other case-dispositive claims.” Woods v. State Farm Fire & Casu. Co., No. 2:09-

CV-482, 2010 WL 1032018, at *2 (S.D. Ohio Mar. 16, 2010). Because bad-faith claims permit

an insured to discover “materials containing attorney-client communications related to the issue of

coverage that were created prior to the denial of coverage[,]” the Court may also stay discovery

on the bad-faith claim if “it finds that the release of this information will inhibit the insurer’s ability

to defend on the underlying claim[.]” Boone v. Vanliner Ins. Co., 744 N.E.2d 154, 158 (Ohio

2001).

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Whether claims should be bifurcated depends “on the facts and circumstances of each

case.” Saxion, 86 F.3d at 556. Defendants in bad-faith cases faced with disclosure of privileged

documents are not automatically entitled to bifurcation of claims and a stay of discovery. Woods,

2010 WL 1032018, at *3. Instead, the defendant must make a “specific showing” of how the bad-

faith claim will prejudice its defense of the underlying coverage claim. Jd. (citing Gaffney v.

Federal Ins. Co., No. 5:08-CV-76, 2008 WL 3980069, at *3 (N.D. Ohio Aug. 21, 2008)); Penn-

Starr Ins. Co. v. Barr Bros. Plastering Co., No. 2:10-CV-00587, 2011 WL 1256623, at *3 (S.D.

Ohio Mar. 31, 2011). “Similarly, a defendant may not rely on the mere possibility that resolution

of the coverage issue may preclude plaintiff's bad-faith claim.” Woods, 2010 WL 1032018, at *3

(citing General Electric Credit Union v. National Fire Ins., No. 1:09-CV-143, 2009 U.S. Dist.

LEXIS 96085, at *15 (S.D. Ohio Sep. 30, 2009)). The “party seeking bifurcation has the burden

of showing that concerns such as judicial economy and prejudice weigh in favor of granting the

motion.” Jd. at *1 (citing Wright & Miller, Fed. Prac. and Proc. § 2388 (2d ed. 2006)).

1. Prejudice

Penn National’s primary argument for bifurcation is that discovery on the bad-faith claim

will include the claims file, which contains attorney-client and work-product privileged

communications. (/d. at 9.) It argues that discovery of the claims file “would be prejudicial to

Penn National and hinder its defense of the breach of contract claim.” (/d. at 9.) It further argues

that disclosure of privileged documents will reveal the legal theories, impressions, and strategies

that Penn National will use to defend against Plaintiff's breach of contract and declaratory

judgment claims” and would “likewise reveal Penn National’s counsel’s unfettered legal

assessment and thought process on the viability of the strategies on the breach of contract and

declaratory judgment claims.” (/d. at 13.)

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Penn National relies on Ohio cases Boone, 744 N.E.2d 154, and Garg v. State Auto. Mut.

Ins. Co., 800 N.E.2d 757 (Ohio Ct. App. Nov. 7, 2003). Boone is the seminal case on bifurcation

in bad-faith cases; it has been cited by Ohio federal courts in decisions granting bifurcation and

denying bifurcation. Compare Woods, 2010 WL 1032018, at *2 with RLI Ins. Co. v. Fifth Third

Bankcorp, No. 1:14-CV-802, 2016 WL 8201161, at *3 (S.D. Ohio July 27, 2016). In Boone, the

Ohio Supreme Court thoroughly analyzed individual documents that had been submitted to the

trial court in camera. Boone, 744 N.E.2d at 159. The court ultimately permitted the insured to

discover privileged information created before coverage was denied, while denying discovery of

privileged documents created after coverage was denied. Jd. The court also made explicit that

trial courts have discretion to stay discovery on bad-faith claims if discovery of privileged

materials would prejudice the insurer’s ability to defend itself on the underlying coverage claims.

Id. at 158.

Following Boone, an Ohio appellate court in Garg was likewise presented with specific

claims-file documents that the insurer sought to shield from discovery. Garg, 800 N.E.2d at 763.

Relying on Boone, the court in Garg held that the trial court properly compelled discovery of

privileged documents. Jd. But the court in Garg held that trial court’s failure to grant the insurer’s

motion to bifurcate the bad-faith claim and stay discovery until the underlying claims were

resolved was “grossly prejudicial” to the insurer. Jd. The court reasoned that the specific

documents at issue were “highly relevant to [the insurer’s] defense of the breach-of-contract and

unfair-claims-practices claims” and would “unquestionably impact” its ability to defend against

those claims. /d. at 764; see also Ferro Corp. v. Cont’l Cas. Co., No. 1:06CV1955, 2008 WL

5705575, at *3 (N.D. Ohio Jan. 7, 2008) (citing Garg and holding that, after a “review in camera

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of the documents submitted by Defendants ... the unique facts of this case justify bifurcation of

the bad faith claim, and a stay of discovery on that issue.”).

Penn National claims that, like the insurer in Garg, it would suffer unfair prejudice if it

were forced to hand over its claims file to Bonasera while still defending the coverage claims.

However, unlike the insurer in Garg, Penn National has not made a “specific showing” of how it

will be prejudiced if discovery is permitted on the bad-faith claim. Woods, 2010 WL 1032018, at

*3. Penn National’s assertions of prejudice lack “the specificity and particularity necessary to

sustain their burden of proof.” Terra Jennings, et al. v. Allstate Vehicle and Property Ins. Co., et

al., No. 1:20-CV-464, 2020 WL 7046890, at *3 (S.D. Ohio Dec. 1, 2020). In other words, Penn

National cannot meet its burden merely by stating that it will be prejudiced—it must present

specific evidence to support that assertion. See Penn-Starr Ins. Co. v. Barr Bros. Plastering Co.,

No. 2:10-CV-00587, 2011 WL 1256623, at *3 (S.D. Ohio Mar. 31, 2011); Excel Direct, Inc. v.

Nautilus Ins. Co., No. 2:16-CV-446, 2017 WL 127480, at *2 (S.D. Ohio Jan. 13, 2017); see also

Woods, 2010 WL 1032018, at *3 (“State Farm argues that the resulting disclosure of otherwise

privileged information will give the plaintiffs insight into the legal theories and strategies it may

use to defend the breach of contract claim and is therefore certain to result in significant prejudice.

State Farm, however, does not offer any specifics as to how it will be prejudiced.”).

2. Judicial Economy

Penn National also argues that bifurcation is warranted because it would “be conducive to

judicial economy and the conservation of resources[.]” (Def. Mot. J. on Pleadings at 15.) It claims

that “[i]f Plaintiff fails to prevail on the breach of contract or declaratory judgment actions, there

will be no need to litigate the bad faith claim” because “the bad faith claim is dependent on

coverage under the policy.” (/d.) It also asserts that bifurcation is necessary because presenting

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both the bad-faith claim and the breach of contract claim to the jury simultaneously would confuse

the issues for the jury to decide. The Court disagrees.

Nothing suggests that the jury would be confused by hearing the bad-faith claim alongside

the other claims. Any confusion will be alleviated through proper jury instructions. See United

States v. Bradley, 917 F.3d 493, 508 (6th Cir. 2019) (citation omitted) (“[JJurors are presumed to

follow the trial court’s instructions.”). Further, Penn National cannot meet its burden by relying

“on the mere possibility that resolution of the coverage issue may preclude plaintiff's bad-faith

claim.” Woods, 2010 WL 1032018, at *3 (citing General Electric Credit Union, 2009 U.S. Dist.

LEXIS 96085, at *15). Penn National has not shown that bifurcation of the bad-faith claim will

“avoid prejudice,” or “expedite and economize[.]” Fed. R. Civ. P. 42(b). If anything, staying

discovery and holding separate trials would protract the litigation and increase costs for both sides.

As discovery proceeds, to the extent Bonasera seeks privileged documents, Penn National

may challenge such requests pursuant to Fed. R. Civ. P. 26 and S.D. Ohio Civ. R. 37.1. See Penn-

Starr Ins. Co., 2011 WL 1256623, at *3 (citing Steinberger v. State Farm Auto. Ins., No. 3:10-cv—

015, 2010 WL 3603791, at *4 (S.D. Ohio Sept.9, 2010) (“Under Fed. R. Civ. P. 26(b)(5),

Defendants may, in their response to discovery requests, expressly claim the privilege as to certain

identified documents or information and describe in sufficient detail to permit assessment of the

claim, first by opposing counsel and then, if necessary, by the Court.”). A blanket privilege

objection to the entire claims file will not suffice to show prejudice. If necessary, Penn National

may request in camera review of specific documents it claims are privileged. Because privileged

documents are discoverable on bad-faith claims, Penn National must show not only that the

documents are privileged, but that they also hinder its ability to defend the other claims against it.

See Garg, 800 N.E.2d at 763 (“Under Boone, neither attorney-client privilege nor the work-product

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doctrine protects materials in a claims file, created prior to the denial of the claim, that may cast

light on whether the insurer acted in bad faith in handling an insured’s claim.”). If, after an in

camera review, the Court determines that discovery on the bad-faith claim will prejudice Penn

National’s defense in this case, then Bonasera and Penn National may jointly ask for bifurcation

or Bonasera may choose to litigate his claim without the prejudicial privileged material. As for

now, Defendant’s request for bifurcation and stay of the bad-faith claim is denied.

B. Bifurcation of Punitive Damages Phase

Penn National also asks the Court to bifurcate the punitive damages phase of the trial. The

parties initially dispute whether bifurcation of the punitive damages phase is controlled by Ohio

law or Rule 42(b). Penn National argues that Ohio Revised Code § 2315.21 is directly on point

and makes bifurcation mandatory in this case. (Def.’s Mot. J. on Pleadings at 7.) That statute

mandates that, in a tort action tried to a jury, the compensatory and punitive damages stage “shall

be bifurcated” “upon the motion of any party[.]” Ohio Rev. Code § 2315.21(B).

Initially, the Court notes that that Ohio Revised Code § 2315.21 is not applicable here.

That statute only forbids “evidence that relates solely to the issue of whether the plaintiff is entitled

to recover punitive or exemplary damages” during the compensatory damages phase. Id. §

23 15(B)(1)(a) (emphasis added). As Bonasera points out, the evidence of Penn National’s conduct

relevant to the punitive damages standard is the same evidence relevant to determining liability

and compensatory damages on the bad-faith claim. Even if the statute did apply, it is displaced by

Rule 42(b). Under the Erie doctrine, a federal court sitting in diversity applies “the substantive

law of the forum state and federal procedural law.” Biegas v. Quickway Carriers, Inc., 573 F.3d

365, 374 (6th Cir. 2009) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). When a Federal

Rule of Civil Procedure is in “direct collision” with state law, the Federal Rule controls if its scope

17

is “sufficiently broad to control the issue before the Court.” Walker v. Armco Steel Corp., 446

U.S. 740, 749 (1980) (citing Hanna v. Plumer, 380 U.S. 460, 470 (1965)). So long as the Federal

Rule does not run afoul of the Rules Enabling Act—that is, so long as it really “regulates

procedure” and does not “abridge, enlarge or modify any substantive right’—the federal court

applies the Federal Rule instead the conflicting state law, even if the state law is substantive. Shady

Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407-09 (2010) (quoting 28

U.S.C. § 2072(b)).

In this case, Ohio Revised Code § 2315.21(B)}—which mandates bifurcation of

compensatory and punitive damages claims in Ohio tort cases upon a motion of either party—

directly conflicts with Fed. R. Civ. P. 42(b). Rule 42(b) states that the district court may order

bifurcation for “convenience, to avoid prejudice, or to expedite and economize[.]” Fed. R. Civ. P.

42(b). The “language of Rule 42(b) places the decision to bifurcate within the discretion of the

district court”, Saxion v. Titan-C-Mfg., Inc., 86 F.3d 553, 556 (6th Cir. 1996), unlike the text of

Ohio Revised Code § 2315.21. Therefore, so long as Rule 42(b) does not violate the Rules

Enabling Act, it will control bifurcation over the Ohio statute.

Rule 42(b) is a valid procedural rule and therefore controls a bifurcation analysis in federal

court despite the conflicting Ohio law. See Wolkosky v. 21st Century Centennial Ins. Co., No.

2:10-CV-439, 2010 WL 2788676, at *3 (S.D. Ohio July 14, 2010) (“This conclusion accords with

‘ample precedent’ that federal law should govern bifurcation in diversity cases.”); Tuttle v. Sears,

Roebuck & Co., No. 1:08 CV 333, 2009 WL 2916894, at *2 (N.D. Ohio Sept. 4, 2009) (“the Court

retains its discretion over the issue of bifurcation as granted under Rule 42(b), and the mandatory

language of O.R.C § 2315.21 does not apply.”); Patel Family Tr. v. AMCO Ins. Co., No. 2:11-CV-

1003, 2012 WL 2883726, at *1 (S.D. Ohio July 13, 2012) (“the question of whether bifurcation is

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appropriate is governed by federal law under the teachings of Erie R.R. Co. v. Tompkins’); but see

Maxey v. State Farm Fire & Cas. Co., 569 F. Supp. 2d 720 (S.D. Ohio 2008) (applying Ohio Rev.

Code § 2315.12 in a case where the plaintiff did not request application of the Federal Rules);

Columbia Gas Transmission Corp. v. Interden Indus., Inc., No. 1:08 CV 1493, 2010 WL

11664995, at *1 (N.D. Ohio May 13, 2010) (discussing Maxey and finding that the case was not

persuasive because the court did not address Erie or explain its reasoning).

Furthermore, Rule 42(b) controls despite the Ohio Supreme Court’s decision in Havel v.

Villa St. Joseph, 963 N.E.2d 1270 (Ohio 2012) holding that Section 2315.21(B) of the Ohio

Revised Code created a substantive right. “Just because the Ohio Supreme Court has interpreted”

this statute “to provide a ‘substantive’ right to bifurcation does not mean that a federal court is

bound by the characterization. A state’s characterization of its own rule as ‘substantive’ instead of

‘procedural’ must ‘yield to the strong presumptive validity of the properly promulgated federal

procedural rule, which will be upheld as controlling the procedure in the federal court.’” Patel

Family Tr., 2012 WL 2883726, at *2 (citation omitted).

As a matter of standard trial procedure, this Court will bifurcate evidence admissible only

for purposes of punitive damages from the compensatory damages phase. However, as noted

above, the evidence of Penn National’s alleged bad faith relevant to proving liability and

compensatory damages will overlap with evidence relevant to the punitive damages standard.

Thus, should the bad-faith claim proceed to trial, it will proceed in two phases. In the first phase,

the jurors will hear all evidence, except for evidence only admissible for determining punitive

damages. If the jurors find Penn National liable and indicate by interrogatory that the standard for

punitive damages has been met, the trial will proceed to the second phase. In the second phase,

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the jurors will be permitted to hear evidence that is admissible only as to punitive damages, such

as Penn National’s financial condition.

Accordingly, the Court grants in part and denies in part Penn National’s alternative motion

to bifurcate and stay. Specifically, Penn National’s motion is granted only as to bifurcation of the

punitive damages phase as described above, which is the Court’s routine procedure for trying a

claim for punitive damages. Discovery on Bonasera’s bad faith and punitive damages claims may

proceed.

IV. PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

The Court next addresses Bonasera’s Motion for Partial Summary Judgment. (Pl.’s Mot.

Summ. J., ECF No. 58.) Bonasera moves for summary judgment on the issue of whether Alaina

Steele was “occupying” the truck at the time of the accident and thus was an insured under the

policy’s underinsured motorist provision. (/d.)

A. Standard

A party may move for summary judgment on all or part of a claim. Fed. R. Civ. P. 56(a).

Summary judgment is appropriate “if the movant shows that there is no genuine issue as to any

material fact and the movant is entitled to judgment as a matter of law.” Jd. The Court may

therefore grant a motion for summary judgment if the nonmoving party who has the burden of

proof at trial fails to make a showing sufficient to establish the existence of an element that is

essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The “party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion and identifying those portions” of the record which

demonstrate “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The

burden then shifts to the nonmoving party who “must set forth specific facts showing that there is

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a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.

R. Civ. P. 56(e)). “The evidence of the nonmovant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Jd. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-

59 (1970)).

A genuine issue of material fact exists “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Jd. at 248; see also Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986) (The requirement that a dispute be “genuine” means

that there must be more than “some metaphysical doubt as to the material facts.”). Consequently,

the central issue is “whether the evidence presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Hamad v.

Woodcrest Condo. Ass’n., 328 F.3d 224, 234-35 (6th Cir. 2003) (quoting Anderson, 477 U.S. at

251-52).

B. Analysis

Bonasera moves for partial summary judgment resolving whether Alaina Steele, the

decedent, was “occupying” the truck at the time of the accident. (PI.’s Mot. Summ. J. at 9.) Penn

National initially denied insurance coverage to Alaina on the basis that she was not “occupying”

the truck at the time of the accident under the terms of the policy and was therefore not an insured.

(See Penn National’s Answer to Interrogatory No. 10, ECF No. 58-3.) Bonasera argues that the

undisputed facts show that Steele was “occupying” a “covered motor vehicle” and is therefore

entitled to underinsured motorist coverage under the policy issued by Penn National to W.D.

Wright. (P1.’s Mot. Summ. J. at 15.)

Penn National responds that Bonasera “has taken an incorrect position” regarding whether

Alaina is entitled to coverage. (Def.’s Response to Mot. Summ. J. at 5, ECF No. 65.) After

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Bonasera filed the instant motion for partial summary judgment, Penn National supplemented its

responses to Bonasera’s first set of interrogatories and indicated that, in addition to its conclusion

that Alaina was not occupying the vehicle, it also denied coverage because she was not “legally

entitled” to recover under a comparative negligence theory. (Def.’s Response at 13; Abshier Aff.,

Ex 1, Answer to Interrogatory No. 10, ECF No. 65-1.) Thus, Penn National argues that “even if

the Court finds that Alaina Steele is an insured under the subject policy, that does not mean there

is underinsured/uninsured coverage for this subject accident.” (Def.’s Response at 13.) It argues

that there are genuine disputes of fact precluding summary judgment because a jury could find that

Alaina was more than 50% at fault for the accident, which would render her not “legally entitled”

to recover under the terms of the policy. (/d.) It also argues that there are genuine disputes of fact

regarding whether Alaina was “occupying” the vehicle at the time of the accident. (/d. at 16.)

As an initial matter, Penn National’s comparative negligence argument exceeds the scope

of Bonasera’s motion for partial summary judgment. While Alaina Steele’s alleged comparative

negligence is relevant to whether she is entitled to recover under the policy, it is not relevant to

whether she qualifies as an insured. Bonasera’s motion only pertains to the limited issue of

whether Alaina was “occupying” a “covered motor vehicle” under the terms of the policy. In other

words, Bonasera has only moved for summary judgment on one element of his claims against Penn

National; he has not moved for summary judgment on any of the claims as a whole.

The sole disputed issue on this motion is whether the Alaina Steele was “occupying” the

vehicle at the time of the accident as that term is defined in the insurance policy. The parties do

not dispute that the policy issued to W.D. Wright by Penn National provided underinsured

motorists coverage for the 2017 Chevy Silverado that Alaina was using on the day of the accident.

(Dillard Aff., Ex. B at PAGEID # 2504, 2559, ECF No. 58-2.) The policy specifies that Penn

22

National would “pay all sums the ‘insured’ is legally entitled to recover as compensatory damages

from the owner or driver of an ‘uninsured motor vehicle’.” (/d.) The policy defines “Insured” as,

among other things: “Anyone else ‘occupying’ a covered ‘motor vehicle’... .” (id. at PAGEID #

2560.) That leaves whether Alaina qualifies as an “Insured” up to whether she was “occupying”

the truck at the time of the accident. “‘Occupying’ means in, upon, getting in, on, out or off.” (Jd.

at PAGEID # 2562.)

The interpretation of a contract, such as an insurance policy, is a matter of law. Uebelacker

v. Cincom Sys., Inc., 549 N.E.2d 1210, 1215 (Ohio Ct. App. Dec. 28, 1988). “Courts must give

common words their ordinary meaning unless manifest absurdity would result or some other

meaning is clearly evidenced from the face or overall contents of the written instrument.” Willis

v. Gall, 2015-Ohio-1696, § 12 (citation omitted). “If a contract is clear and unambiguous, the

court need not go beyond the plain language of the agreement to determine the parties’ rights and

obligations; instead, the court must give effect to the agreement’s express terms.” Jd. (citing

Uebelacker, 549 N.E.2d at 1215). But if an insurance contract is ambiguous, the court must

construe it “in favor of the insured against the insurer.” Jd. (citing Dominish v. Nationwide Ins.

Co., 953 N.E.2d 820, 822 (Ohio 2011)).

“Although the term ‘occupying’ as defined in the insurance contract may not seem

ambiguous on its face, it often becomes ambiguous when determining whether insurance coverage

should be extended in certain factual circumstances.” Etter v. Travelers Ins. Cos., 657 N.E.2d 298,

300 (Ohio Ct. App. Mar. 31, 1995). In interpreting “occupying” in underinsured motorist

provisions, “the determination of whether a vehicle was occupied by the claimant at the time of an

accident should take into account the immediate relationship the claimant had to the vehicle, within

a reasonable geographic area.” Joins v. Bonner, 504 N.E.2d 61, 63-64 (Ohio 1986). In Joins, a

23

child was struck in the middle of a cross walk after exiting the insured vehicle to reach his

babysitter’s house across the street. /d. at 62. The insurance company denied coverage because

the child was not “occupying” the vehicle. Jd. The policy defined “occupying” as “in or upon or

entering into or alighting from.” Jd. The court found that the child was “occupying” the vehicle

when he was struck because he was within a “reasonable geographic area” of the vehicle and

therefore was “in the process of ‘alighting from’ it.” Jd. at 64.

To summarize, Joins identified two requirements for finding that a claimant was

“occupying” the insured vehicle: (1) the insured was within a reasonable geographic area of the

vehicle; and (2) the insured “had a sufficient relationship” to vehicle at the time of the accident.

Etter, 657 N.E.2d at 302. The “sufficient relationship” requirement looks to whether the

claimants’ conduct was “foreseeably identifiable” with the normal use of the vehicle. Jd. at 301

(citation omitted). These factors are the “universal standard for determining whether a person is

‘occupying’ a vehicle” in Ohio. Etter, 657 N.E.2d at 301 (claimant was “occupying”! vehicle

when he was 20 to 30 feet away from the vehicle and was helping another motorist push a car out

of the median while the claimant waited for a tow truck for his car); see also Martens v. Auto-

Owners Ins. Co., 2019-Ohio-5423, 2019 WL 7369244, at *3-4 (claimant was “occupying”

vehicle when standing “mere feet” from his employer’s insured truck while talking to his boss

after unloading work equipment from an attached trailer to perform driveway sealing services);

Anderson vy. Nationwide Mut. Fire Ins. Co., 2005-Ohio-3043, 2005 WL 1415185, at *1 (claimant

was “occupying”? employer’s van when he was struck by an underinsured motorist while

surveying for an engineering firm roughly 20 to 25 feet from where the van was parked).

1 “Occupying” in Etter meant “in, upon, getting in, on, out, or off.” Jd. at 300.

2 “Occupying” in Martens meant “being in or on an automobile as a passenger or operator, or being

engaged in the immediate acts of entering, boarding or alighting from an automobile.” Jd. at *3.

3 “Occupying” in Anderson meant “in, upon, getting in, on, out or off.” Jd. at *2.

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When applying these factors, “reasonable geographic distance is not measured as a matter

of law in feet.” Disbennet v. Utica Nat. Ins. Grp., 2003-Ohio-2013, 2003 WL 1906748, at *3.* In

Disbennet, a man was performing surveying work in the middle of the road 80 feet from his

employer’s parked vehicle when he was struck by a car and killed. /d. at *1. The insurance

company denied underinsured motorist coverage and the man’s wife sued. The trial court

concluded as a matter of law that the man was an “insured” under the policy. /d. On appeal, the

court affirmed, holding that “reasonable minds can only conclude that [the man] was within a

reasonable geographic distance to the insured vehicle and that he was engaged in an activity that

was foreseeably identifiable with the use of the insured vehicle at the time of the accident.” Jd. at

*3. Though the man had been 80 feet from the insured vehicle when he was struck, the “measure

of feet is only one factor to be considered when determining whether the issue is a question of fact

for the jury or may be determined as a matter of law.” Jd.

The court in Disbennet relied State Farm Mut. Auto. Ins. Co. v. Cincinnati Ins. Co., No.

62930, 1993 WL 215450 (Ohio Ct. App. June 17, 1993). In State Farm, two men were driving a

truck with several cases of two-liter soda bottles in the back when two cases fell off and landed on

the highway. Jd. at *1. The driver pulled the truck over and the passenger exited the vehicle to

retrieve the bottles from the highway. Jd. The passenger who went to retrieve the bottles walked

back “100-110 feet” from the pulled-over truck when he was struck by a passing vehicle. Jd. The

court held as a matter of law that the man was “occupying” the vehicle for purposes of

underinsured motorist coverage because the man’s “express purpose for temporarily leaving the

vehicle was to retrieve these cases of pop and return them to the truck in order that he and [the

driver] might continue their trip.” Jd. at *5.

4 The policy’s definition of “occupying” was not provided by the court in Disbennet.

> “Occupying” in State Farm meant “in, upon, getting in, on, out or off.” Id. at *2.

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In this case, both parties utilize the Joins factors. Applying those factors, the Court

concludes as a matter of law that Alaina was “occupying” the covered motor vehicle at the time

she was struck by Jeep. Under the first Joins factor, Alaina was within the reasonable geographic

area of the truck when she was hit by the Jeep. See Joins, 504 N.E.2d at 63-64. It is undisputed

that, just prior to the Jeep coming over the hill, Alaina was standing right next to the truck’s

passenger side taillight. (Steele Dep. at 45:14, 47:7-9.) Immediately after Alaina placed the sign

in the truck, Samantha heard a Jeep coming over the hill and turned to witness the Jeep approach

their location at “approximately 65 to 75 miles per hour.” (Steele Aff. 71; Steele Dep. 47:12-

13.) Samantha and Alaina then both fled as the Jeep approached; Alaina ran away from the

passenger side of the truck toward the ditch. (Steele Aff. { 72; Steele Dep. at 47:12—22.) The fact

that Alaina was ultimately struck and killed by the Jeep in the ditch next to the truck means that

there can be no genuine dispute of fact regarding whether Alaina was within the reasonable

geographic area of the insured vehicle.

Under the second Joins factor, Alaina had a sufficient relationship with the insured truck.

See Joins, 504 N.E.2d at 63-64. She had been using the truck to drive down the road and retrieve

signs as part of her job duties as a flagger with Wright Brothers. See, e.g., Willis, 31 N.E.3d at 685

(claimant was “occupying” vehicle when he was struck by a vehicle while feeding branches into

a wood chipper attached to the insured truck after “repeatedly enter[ing] and exit[ing] the truck”

to travel to different sets of debris along the roadway). Alaina’s use of the truck was therefore

“foreseeably identifiable” with the normal use of the vehicle. Etter, 657 N.E.2d at 301. Penn

National does not dispute this point.

§ “Occupying” in Willis meant “being in or on an automobile as a passenger or operator, or being

engaged in the immediate acts of entering, boarding or alighting from an automobile.” Jd. at 680.

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Penn National argues that “reasonable geographic area” is a question for the jury because

Alaina’s precise distance from the truck when she was struck by the Jeep is unknown. But

“reasonable geographic distance is not measured as a matter of law in feet.” Disbennet, 2003 WL

1906748 at *3. Penn National does not dispute that Alaina was struck and killed by the Jeep in

the ditch next to the truck. When the Jeep came speeding over the hill and set the accident in

motion, Alaina was standing much closer to the vehicle—right next to the passenger taillight—

than the passenger in State Farm who was 100-110 feet from his truck retrieving soda bottles, or

the surveyor in Disbennet who was working 80 feet from his parked vehicle. And, like the man in

State Farm, Alaina’s “purpose for temporarily leaving the vehicle” was to retrieve a sign from the

road and return to the truck. State Farm, 1993 WL 215450, at *5. This was the very purpose for

which Alaina and Samantha were issued the truck by Wright Brothers. (See Steele Aff. □□□

59.) Thus, even though Alaina was fleeing away from the truck when she was struck, “reasonable

minds can only conclude that” Alaina “was within a reasonable geographic distance to the insured

vehicle and that [she] was engaged in an activity that was foreseeably identifiable with the use of

the insured vehicle at the time of the accident.” Jd.

Accordingly, the Court concludes as a matter of law that Alaina Steele was “occupying”

the 2017 Chevy Silverado at the time of the accident. Therefore, the Court grants Bonasera’s

motion for partial summary judgment.

V. DEFENDANT’S RULE 56(d) MOTION FOR ADDITIONAL TIME

Penn National has also asked for more time to respond to Bonasera’s motion under Fed. R.

Civ. P. 56(d). In support, Penn National submits that the parties have completed only one

deposition. (Def.’s Response at 3.) Penn National further submits that it will depose several

witnesses with relevant information. (/d.) Most of these witnesses go toward the issue of

27

comparative negligence, which, as discussed above, is not relevant to Bonasera’s motion for partial

summary judgment on the issue of whether Alaina Steele was “occupying” the truck. Penn

National also wishes to depose the deputy who conducted the accident investigation. (/d.) It

argues that his testimony would be relevant to the “occupying” question. (/d.) While the deputy’s

testimony could provide a more precise estimate of the distance between Alaina and the truck at

the time of the accident, the deputy’s testimony could not create a triable issue on whether Alaina

was within a reasonable geographic area of the truck. “[R]easonable geographic distance is not

measured as a matter of law in feet[.]” Disbennet, 2003 WL 1906748 at *3; (See Steele Dep. at

47:7-22, 196:1-197:3.) Therefore, Penn National’s Motion for Additional Time Under Rule 56(d)

is denied.

VI. CONCLUSION

For the reasons stated above,

(1) The Court DENIES Defendant Penn National’s Motion for Judgment on the

Pleadings. (ECF No. 44.)

(2) The Court GRANTS IN PART and DENIES IN PART Defendant Penn

National’s Alternative Motion to Bifurcate and Stay. (ECF No. 44.)

(3) The Court GRANTS Plaintiff Thomas J. Bonasera’s Motion for Partial Summary

Judgment. (ECF No. 58.)

(4) The Court DENIES Penn National’s Motion for Additional Time to File a

Response to Bonasera’s Motion for Summary Judgment. (ECF No. 65.)

This case is to remain open.

IT IS SO ORDERED.

2- A-90)\

UN ATES DISTRICT JUDGE

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