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QBE Insurance Corp. v. Burckhard

United States District Court, D. North Dakota

October 18, 2017

QBE Insurance Corporation, Plaintiff,
v.
Corrie Burckhard, as Personal Representative for the estate of Todd Burckhard; Maria Mack, as Personal Representative for the estate of Blaine H. Mack; BNSF Railway Company, a Delaware corporation; CUSA ES, LLC, d/b/a Coach America Crew Transport; and Timothy P. Rennick, Defendants,
v.
BNSF Railway Company, a Delaware Corporation and CUSA ES, LLC, d/b/a Coach America Crew Transport, Counter-Claimants,
v.
QBE Insurance Corporation, Counter-Defendant.

          ORDER DENYING QBE INSURANCE'S MOTION FOR CERTIFICATION UNDER 28 U.S.C. § 1292(B) OR ALTERNATIVELY UNDER RULE 54(B)

          Daniel L. Hovland, Chief Judge.

         Before the Court is “QBE's Motion for Certification Under 28 U.S.C. Section 1292(b) or Alternatively Under Rule 54(b)” filed on September 1, 2017. See Docket No. 165. For the reasons set forth below, the motion is denied.

         I. BACKGROUND

         On July 18, 2017, the Court issued an order in which the undersigned concluded Section 33-23-203 of the Montana Code Annotated applies to liability coverages. See Docket No. 145. The Court then applied Section 33-23-203 and determined:

the liability coverages for each of Keiser's five vehicles insured pursuant to QBE Insurance's policy may be stacked with the stacked policy limit of $1.5 million, the aggregate of $300, 000 liability limits for each of the five vehicles insured under the policy.

See Docket No. 145, p. 12. After the Court issued its order on July 18, 2017, QBE Insurance Corporation (“QBE Insurance”) filed a motion to amend the order because its policy covered four, instead of five, vehicles on the date of loss. See Docket No. 147. The Court granted the motion and entered an amended order on August 23, 2017, clarifying that QBE Insurance's policy covered four vehicles with a liability coverage policy limit of $1.2 million, the aggregate of $300, 000 liability limits for each of the four vehicles. See Docket Nos. 160 and 161.

         On August 15, 2017, QBE Insurance requested this Court reconsider its order of July 18, 2017 (amended on August 23, 2017), or alternatively certify the question answered by this Court in its July 18, 2017 Order, namely whether Montana law allows stacking of liability coverage, to the Montana Supreme Court. See Docket No. 153. The Court denied QBE Insurance's request for reconsideration and certification to the Montana Supreme Court. See Docket No. 156. After the Court's amended order of August 23, 2017, issues remain for the Court's consideration: (1) the allocation of the $1.2 million policy funds from QBE Insurance policy issued to Keiser between the Defendants and (2) CUSA ES, LLC (“Coach America”) and BNSF Railway Company's (“BNSF”) claims against QBE Insurance for bad faith and violations of Montana's Unfair Trade Practices Act.[1]

         Similar to QBE Insurance's previous motions, QBE Insurance again requests review of the Court's August 23, 2017 Amended Order before final judgment in the case has been duly entered. QBE Insurance specifically asks the Court to certify an interlocutory appeal of the Court's August 23, 2017 Amended Order pursuant to 28 U.S.C. § 1292(b) or, alternatively, certify the Court's amended order of August 23, 2017, as a final judgment under Federal Rule of Civil Procedure 54(b). BNSF and Coach America, as well as Burckhard and Mack, object to any interlocutory appeal of the Court's August 23, 2017 Amended Order to the Eighth Circuit Court of Appeals. See Docket Nos. 169 and 170.

         II. LEGAL DISCUSSION

         QBE Insurance is requesting this Court permit appellate review of one legal issue resolved by the Court before resolution of the remaining claims and entry of final judgment in this case. BNSF, Coach America, Burckhard, and Mack contend QBE Insurance has failed to meet its burden to demonstrate an immediate appeal is warranted and object to interlocutory review because such review will further delay proceedings. QBE Insurance seeks appellate review of the Court's August 23, 2017 Amended Order pursuant to 28 U.S.C. § 1292(b) or alternatively Rule 54(b) of the Federal Rules of Civil Procedure. The Court first turns to decide whether an interlocutory appeal pursuant to Section 1292(b) of the liability coverage stacking issue is appropriate under the circumstances of this case.

         A. 28 U.S.C. § 1292(b)

         “It has long been the policy of the courts to discourage piece-meal appeals because most often such appeals result in additional burdens on both the court and the litigants.” Union Cnty. v. Piper Jaffray & Co., Inc., 525 F.3d 643, 646 (8th Cir. 2008) (quoting White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994)). Pursuant to 28 U.S.C. § 1292(b), a court of appeals may, in its discretion, permit an appeal of a district court's order when:

a district judge, in making in a civil action an order not otherwise appealable [as an interlocutory order] shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.

28 U.S.C. § 1292(b). Certification of an appeal pursuant to Section 1292(b) is an extraordinary measure and not intended to serve as review by an appellate court of difficult rulings. Union Cnty., 525 F.3d at 646 (quoting Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). In fact, Section 1292(b) should only be used in exceptional cases where a decision on appeal may obviate “the need for protracted and extensive litigation.” White, 43 F.3d at 376. QBE Insurance bears the heavy burden of demonstrating the case is one which warrants immediate appeal. Id. To certify an appeal pursuant to Section 1292(b), the district court must be of the opinion that (1) the order involves a ...


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