Attorneys for State Farm Fire and Casualty Company1: Mark T. Whitford, Esq., Barclay Damon LLP, Rochester, NY. Attorneys for United Farm Family Insurance Company2: Frederic P Gallin, Esq., Methfessel & Werbel, No 1. Order to Show Cause dated December 13, 2023; and Attorney Affirmation of Benjamin F. Neidl, Esq., dated December 12, 2023 with Exhibits A-F. 2. Affirmation in Opposition of Roland T. Koke, Esq., dated December 14, 2023. 3. Attorney Affirmation of Mark T. Whitford, Esq., dated January 23, 2024; and Memorandum of Law in Partial Opposition. 4. Reply Attorney Affirmation of Benjamin F. Neidl, Esq., dated January 30, 2024. DECISION/ORDER This motion, pursuant to CPLR §602(a), seeks to join two related actions to the main action for discovery and trial. The main action involves a negligence claim by Plaintiffs, Richard G. Harrison and Cecile Harrison, landlords of certain real property located in Chatham, NY, against Defendants, Ashley Hover and Daniel Wiessner, tenants, for property damage arising out of a fire at the premises. The first related action, Richard G. Harrison and Cecile Harrison v. State Farm Fire & Casualty Co., Supreme Court, Columbia County, Index #: E012023020889, involves the Harrisons’ claim for property damage under Ashley Hover’s renters’ insurance policy issued by State Farm Fire & Casualty Company (“State Farm”). The second related action, United Farm Family Insurance Company a/s/o Richard Harrison v. Daniel Wiessner, Ashley M. Hover and State Farm Fire & Casualty Company, Supreme Court, Columbia County, Index #: E012023020796, involves a subrogation claim by the Harrisons’ insurer, United Farm Family Insurance Company, (“Farm Family”), for amounts paid out to the Harrisons arising from the same house fire. In response, Hover and State Farm consent to joinder for discovery but not for trial. Wiessner and Farm Family do not oppose. DISCUSSION/JOINDER FOR DISCOVERY All three actions arise from the same incident, and no party opposes joinder for discovery. Accordingly, the motion to join all three actions for purposes of discovery is granted. DISCUSSION/JOINDER FOR TRIAL As the two related actions are for insurance coverage, Hover and State Farm contend that joinder for trial would be inappropriate, because the fact of insurance coverage is generally inadmissible in a jury trial to prevent prejudice to an insured defendant. See, Salm v. Moses, 13 NY3d 816, 817 (2009). State Farm notes that it is well settled under New York law that it is prejudicial to the insurer and its insured to try a main liability action before the same jury as the related third-party insurance coverage action. See, Kelly v. Yannotti, 4 NY2d 603, 607 (1958); Medick v. Millers Livestock Mkt., 248 AD2d 864, 865 (3d Dept., 1998) (“It is generally recognized that, even where common facts exist, it is prejudicial to insurers ‘to have the issue of insurance coverage tried before the jury that considers the underlying liability claims’”); see also, Cascade Bldrs. Corp. v. Rugar, 154 AD3d 1152, 1156 (3d Dept., 2017) (trial court’s denial of motion to sever overruled where jury in negligence action will discover existence of liability insurance, possibility of inconsistent verdicts does not outweigh prejudice to insurer and its insured). The Harrisons argue that the main action and Farm Family’s subrogation claim share an issue of fact, because both actions require a determination of whether Hover and/or Wiessner negligently started the fire. They claim it would be wasteful to try that same issue twice, and it would present the disfavored possibility of the two juries reaching opposite conclusions. The Harrisons agree that the tort claim against Hover and Wiessner should not be tried simultaneously with the insurance coverage claim against State Farm. Instead, they suggest that the Court can bifurcate the trial, trying the tort liability and damages of Hover and Wiessner in one phase, followed by any remaining coverage issues in the second phase thereby allowing proof of the State Farm coverage only after the liability and damages have been determined. The Harrisons note that CPLR §603 provides that the Court may order “a separate trial of any separate issue” or may “order the trial of any claim or issue prior to the trial of others”. There is no way to conduct a joint trial of the main action with either of the two related actions without the jury discovering the existence of liability insurance. Consequently, the Court finds that the possibility of inconsistent verdicts is outweighed by the prejudice which would occur if the jury were to discover the existence of the liability insurance, requiring denial of the motion to join the actions for trial. Finally, the fact that the Harrisons and Farm Family may have competing claims to the finite resource which is the State Farm coverage does not mandate a different result. Any other contentions of the parties have been considered and are deemed to be without merit. Accordingly, it is ORDERED, that this action is joined for purposes of discovery with the two related actions, Richard G. Harrison and Cecile Harrison v. State Farm Fire & Casualty Co., Supreme Court, Columbia County, Index #: E012023020889 and United Farm Family Insurance Company a/s/o Richard Harrison v. Daniel Wiessner, Ashley M. Hover and State Farm Fire & Casualty Company, Supreme Court, Columbia County, Index #: E012023020796; and it is further ORDERED, that the motion to join the two related actions with the main action for trial is denied; and it is further ORDERED, that this action, referred to herein as the main action, shall be tried prior to the trials of the two related actions; and it is further ORDERED, that the Court will conduct a preliminary conference on all three actions at the Columbia County Courthouse on Friday, March 22, 2024, at 10:30 AM, at which all counsel and self-represented parties must appear. This shall constitute the Decision/Order of the Court. The Court is e-filing the original of this Decision/Order, relieving the parties of their obligations under CPLR §2220, regarding filing and entry of same, but that does not relieve the parties of their obligations with respect to serving same with Notice of Entry. Dated: March 15, 2024
