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Akh Company, Inc. v. Universal Underwriters Insurance Co.

United States District Court, Tenth Circuit

July 9, 2013

AKH COMPANY, INC., Plaintiff/Counter-Defendant,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Defendant/Counter-Claimant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

This case comes before the Court on Plaintiff AKH Company, Inc.'s Motion for Partial Summary Judgment (Doc. 7) and on Defendant Universal Underwriters Insurance Company's Motion to Bifurcate (Doc. 68). The motions are fully briefed, and the Court is prepared to rule. For the reasons explained in detail below, the Court denies both motions.[1]

I. Standards

A. Summary Judgment

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law."[2] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[3] "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party."[4] A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."[5] An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party.'"[6]

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[7] In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.[8]

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."[9] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[10] Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."[11] To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."[12] Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.[13] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.[14]

Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."[15] In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."[16]

B. Bifurcation

Courts have the discretion to order a separate trial of one or more distinct issues or claims "for convenience, to avoid prejudice, or to expedite and economize."[17] "While separation of issues for trial is not to be routinely ordered, it is important that it be encouraged where experience has demonstrated its worth."[18] A court should not order bifurcation if the issues are not clearly separable or if doing so would be unfair or prejudicial to a party.[19]

II. Uncontroverted Facts

The following facts are either uncontroverted or taken in the light most favorable to Defendant.

Universal issued insurance policy number 268140 to AKH for the coverage period of May 1, 2007 to May 1, 2008. The policy was renewed for five consecutive one-year periods through May 1, 2013. The policy's insuring agreement for Unicover V "Garage" Coverage Part 500 includes coverage for liability for "DAMAGES" because of "INJURY." Those terms are defined in relevant part as follows:

"DAMAGES" means amounts awardable by a court of law.
"INJURY" means, with respect to:...
Group 4 - plagiarism, misappropriation of advertising ideas or style, infringement of copyright, title, slogan or trademark.

The policy's insuring agreement for Unicover V "Umbrella" Coverage Part 980 also provides coverage for liability for "DAMAGES" because of "INJURY" and employs the same definitions. The policy also ...


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