United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2009 Decided May 14, 2010
No. 08-7145
THOMAS P. ATHRIDGE, SR. AND THOMAS P. ATHRIDGE, JR.,
APPELLANTS
v.
AETNA CASUALTY AND SURETY CO.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:96-cv-02708)
Erik S. Jaffe argued the cause and filed the briefs for
appellants.
Steven M. Klepper argued the cause for appellee. With
him on the brief was Geoffrey H. Genth.
Before: ROGERS, GARLAND and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Tommy Athridge and his father
have spent more than a decade trying to collect the judgment
entered against the driver responsible for an accident that
severely injured Athridge. In this diversity action, the
Athridges seek to recover from the driver’s insurer, Aetna
Casualty and Surety Company. The Athridges appeal a jury
verdict that absolved Aetna of liability under its policy as well
as a grant of summary judgment in favor of Aetna on the
Athridges’ alternative theories of liability. We affirm.
I.
On July 29, 1987, Jorge Iglesias, then 16, went to the
house of his cousins, Francisco and Hilda Rivas, who were
out of town. Entering their house through an open window,
Iglesias found the keys to the Rivases’ car and took it for a
drive. What began as a joyride ended in tragedy when Iglesias
struck and seriously injured his friend Tommy Athridge, who
was on foot and became the victim in a game of “chicken”
gone awry. We have described the details of the accident
elsewhere. See Athridge v. Rivas, 141 F.3d 357, 359 (D.C.
Cir. 1998).
This lawsuit is one thread in the web of litigation spun
from that unfortunate event. Its premise is simple enough. The
Athridges won a $5.5 million judgment against Iglesias in a
previous lawsuit. He never paid. In an attempt to collect the
judgment, the Athridges brought this suit against Aetna,
Iglesias’s insurer. This is the second time some part of this
suit has come before us. In the previous appeal, we partially
reversed a grant of summary judgment in favor of Aetna and
explained that Aetna’s liability turned on the applicability of a
policy exclusion that barred coverage for any person using a
vehicle without a reasonable belief that he is entitled to do so.
3
See Athridge v. Aetna Cas. & Sur. Co. (Aetna I), 351 F.3d
1166, 1172 (D.C. Cir. 2003). Because Iglesias’s state of mind
at the time of the accident presented a disputed question of
material fact, we remanded the case for further proceedings.
Id. at 1172, 1177. On remand, Aetna prevailed when a jury
concluded that Iglesias lacked a reasonable belief that he was
entitled to drive the Rivases’ car. The Athridges appeal the
jury verdict, asserting that various procedural and evidentiary
errors at trial require reversal.
This appeal encompasses more than that verdict,
however. On remand, the Athridges renewed two alternative
theories of liability they had raised, but the district court
declined to address, prior to Aetna I. These theories spring
from Aetna’s participation in the Athridges’ original lawsuit
against Iglesias—the case in which the Athridges won the
$5.5 million judgment. See Athridge v. Iglesias, 950 F. Supp.
1187, 1194 (D.D.C. 1996).
For that trial, Iglesias retained his own lawyer, Irving
Starr, to defend him. A few days before the start of trial, Starr
ran into Paul Pearson, a lawyer Aetna had retained in a
previous matter related to the accident. Starr asked for
Pearson’s help in the impending trial, and Pearson agreed.
Starr made no offer to pay Pearson, knowing Iglesias could
not afford another lawyer, and when Pearson agreed to help,
Starr assumed he would do so for free. Unbeknownst to Starr,
Pearson then went to Aetna and persuaded it to pay him to
help Starr on the strength of his argument that securing a
verdict for Iglesias in this matter would be in the insurer’s
interest. Pearson entered an appearance for Iglesias on the
second day of trial, but only after Iglesias and Starr had
signed a handwritten document acknowledging that Pearson’s
assistance in no way indicated that Aetna was forfeiting its
right to disclaim coverage for the accident. Pearson
4
participated actively in Iglesias’s defense and withdrew only
after Aetna told him, while the appeal was pending, that it
would no longer pay him to help Iglesias.
On remand from Aetna I, the Athridges maintained that
Pearson’s involvement at Iglesias’s trial created liability for
Aetna apart from whether the policy covered the accident.
First, they argued that Aetna was estopped from denying
coverage because it had participated in Iglesias’s legal
defense. Second, they claimed that, under its policy, Aetna’s
participation triggered an obligation to pay postjudgment
interest on the award against Iglesias, even in the absence of
any duty to pay on the underlying judgment.
The magistrate judge turned to these alternative theories
of liability after conducting the jury trial on Iglesias’s state of
mind and entered summary judgment for Aetna on both. He
rejected the estoppel claim because the Athridges presented
no evidence that Aetna controlled or prejudiced Iglesias’s
defense in any way. Athridge v. Aetna Cas. & Sur. Co., 510 F.
Supp. 2d 1, 7–8 (D.D.C. 2007). He was also unpersuaded by
the argument that Aetna was required to pay postjudgment
interest, finding no such duty when the insurer had no liability
for the underlying judgment. Id. at 3–5. The Athridges appeal
both decisions.
This court has jurisdiction to hear the Athridges’ appeal
pursuant to 28 U.S.C. §§ 636(c)(3) and 1291 (2006). In Part
II, we review the entry of summary judgment in Aetna’s
favor. In Part III we address the challenges to the jury verdict.
Because this is a diversity action, we apply the substantive
law of the District of Columbia. See Messina v. Nationwide
Mut. Ins. Co., 998 F.2d 2, 4 (D.C. Cir. 1993).
5
II.
At the outset, Aetna maintains that the Athridges
forfeited their theories of liability arising from Aetna’s
participation in Iglesias’s defense by failing to raise them in
Aetna I. The Athridges counter that they were not obliged to
make arguments the district court had failed to address. Not to
be outdone, the Athridges also reply that Aetna forfeited its
forfeiture argument by failing to raise it in a timely fashion in
the district court on remand following Aetna I. We need not
resolve these dueling claims of forfeiture. We assume for the
purposes of our analysis that the Athridges have preserved
these issues and nevertheless affirm the grant of summary
judgment in Aetna’s favor. See, e.g., Tax Analysts v. I.R.S.,
495 F.3d 676, 680 (D.C. Cir. 2007).
We review a grant of summary judgment de novo. See,
e.g., Woodruff v. Peters, 482 F.3d 521, 526 (D.C. Cir. 2007).
Summary judgment is appropriate if “there is no genuine
issue as to any material fact and . . . the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c)(2). “In
reviewing a grant of summary judgment, we must ‘view the
evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in its favor.’” Woodruff,
482 F.3d at 526 (quoting Mastro v. Potomac Elec. Power Co.,
447 F.3d 843, 850 (D.C. Cir. 2006)).
A.
The Athridges maintain that Aetna is estopped from
disclaiming coverage for the accident because it paid Pearson
to assist in Iglesias’s defense without a suitable reservation of
its right to disclaim coverage. See Appellants’ Br. at 15. But
under District of Columbia law, an insurer may be estopped
from denying coverage only if its participation somehow
6
prejudiced the insured by undermining his ability to defend
himself. See Diamond Serv. Co. v. Utica Mut. Ins. Co., 476
A.2d 648, 658 (1984). See generally In re Himmelfarb’s
Estate, 345 A.2d 477, 483 (D.C. 1975) (“An essential element
of estoppel is prejudice caused by detrimental reliance.”).
The Athridges contend that prejudice is not an element of
estoppel, and point to Continental Casualty Co. v. Hartford
Fire Insurance Co., 116 F.3d 932 (D.C. Cir. 1997), in
support. Continental involved an insurer that “waived the
right” to raise the breach of a policy provision as a defense to
coverage. Id. at 939 n.8. The Continental court made no
mention of prejudice, but that is of no help to the Athridges’
argument because waiver of a policy breach is distinct from
estoppel by defense:
Waiver is an act or course of conduct by the insurer
which reasonably leads the insured to believe that [a]
breach will not be enforced. Estoppel, on the other hand,
generally results when an insurance company assumes
the defense of an action [and] to prevail on this basis, the
insured is required, in some jurisdictions, to show
prejudice while in other jurisdictions prejudice will be
presumed.
Diamond, 476 A.2d at 654 (citation omitted). Thus for the
Athridges’ estoppel claim to succeed, Pearson’s participation
must have somehow harmed Iglesias’s defense.
Anticipating our conclusion that estoppel requires a
showing of prejudice, the Athridges maintain that prejudice
should be presumed in this case. This argument stands on
firmer ground: An insured may be entitled to a rebuttable
presumption of prejudice, depending on the amount of control
the insurer exercised over the defense. See Nat’l Union Fire
7
Ins. Co. of Pittsburgh v. Aetna Cas. & Sur. Co., 384 F.2d 316,
318 (D.C. Cir. 1967); Diamond, 476 A.2d at 657–58.
Assuming the Athridges were entitled to this presumption,
summary judgment was still proper because Aetna rebutted
the presumption with uncontroverted evidence that its
participation did not harm Iglesias. Cf. Curtis v. Cuff, 537
A.2d 1072, 1075 (D.C. 1987) (holding that where
“uncontroverted” evidence rebuts a presumption that a
defendant consented to the driver’s use of his vehicle, the
defendant is “entitled to judgment as a matter of law”). To
begin with, Iglesias knew that Aetna would not indemnify
him if he lost—the insurer had already won a declaratory
judgment absolving it of liability for the accident years
before. See Aetna Cas. & Sur. Co. v. Iglesias, C.A. No. 90-
11645 (D.C. Super. Ct. Feb. 22, 1991). Iglesias had every
incentive to muster his best defense. This is one reason why
he had his own “counsel readily available to [him] at all
relevant times,” a fact that tends to undermine any claim of
prejudice. Diamond, 476 A.2d at 658. It was Iglesias’s own
counsel, Starr, who invited Pearson to participate, and who
concluded that Pearson “did a magnificent job” at trial. Starr
Dep. at 121.
The only purported evidence of prejudice the Athridges
offered is a single ambiguous sentence in a letter from
Pearson to Aetna explaining that he and Starr tried the case
“primarily on the issue of liability, not damages.” Letter from
Pearson to Aetna (Apr. 2, 1996). The Athridges highlight this
statement to argue that Aetna, through Pearson, prejudiced
Iglesias’s defense by neglecting the issue of damages. The
Athridges ask this court to infer from this single statement
three conclusions: (1) Iglesias’s lawyers failed to adequately
contest damages at trial, (2) this failure was the doing of
Pearson or Aetna, and (3) this failure resulted in an inflated
damage award. There is simply no evidence to support any of
8
these. There is no indication that Pearson impeded Starr from
putting on the best defense possible under the circumstances.
See Aetna I, 351 F.3d at 1174–75 (noting that Pearson’s
participation in Iglesias’s defense was “a windfall benefit for
[Iglesias],” especially in the absence of any indication that
“Aetna, Svengali-like, talked [Iglesias’s] lawyers out of a
better defense”). The Athridges likewise failed to show what
arguments could have been made that might have resulted in a
lower award of damages.
In short, the Athridges ask this court to assume too much.
At oral argument, their counsel conceded their claim of
prejudice was largely “speculative.” Tr. of Oral Argument at
11. “The possibility that a jury might speculate in the
plaintiff’s favor . . . is simply insufficient to defeat summary
judgment.” Montgomery v. Chao, 546 F.3d 703, 708 (D.C.
Cir. 2008). The magistrate judge was correct to enter
summary judgment in favor of Aetna on the estoppel issue.
B.
The Athridges also argue that Aetna’s participation in
Iglesias’s defense triggered an obligation to pay interest on
the unpaid judgment against him, even if Aetna had no
obligation to pay the underlying judgment. Thirteen years of
interest on $5.5 million is no small sum—according to the
Athridges, it is more than $3 million. They locate this duty in
the “Supplementary Payments” section of the Aetna policy,
which provides:
In addition to our limit of liability, we will pay on behalf
of a covered person:
....
Interest accruing after a judgment is entered in any
suit we defend. Our duty to pay interest ends when we
9
offer to pay that part of the judgment which does not
exceed our limit of liability for this coverage.
Aetna Personal Auto Policy (Aetna Policy) at 1–2. The
Athridges read this to require Aetna to pay postjudgment
interest whenever it defends any suit against a covered person,
regardless of whether it is liable for the judgment itself.
Iglesias was a covered person at the time of the accident, and
Pearson’s participation in his defense made that case a “suit
[Aetna] defend[s],” therefore Aetna must pay interest on the
award against him. Under this reading, even when a policy
exclusion denies the insured coverage, the insurer is liable for
postjudgment interest if the insured fails to pay. Aetna could
terminate that obligation only by paying the judgment it did
not owe. The magistrate judge rejected this argument,
concluding that if the insurer is not liable on the judgment, it
cannot be liable for postjudgment interest. We review this
issue de novo. Segar v. Mukasey, 508 F.3d 16, 22 (D.C. Cir.
2007).
We agree with the magistrate judge that any obligation to
pay postjudgment interest under the policy is contingent upon
an obligation to indemnify the insured for its liability on the
underlying claim. An insurer will often defend a lawsuit
against the insured even when an exclusion absolves the
insurer of any duty to indemnify. See Stevens v. United Gen.
Title Ins. Co., 801 A.2d 61, 67 (D.C. 2002) (“[T]he duty to
defend is broader and more extensive than the duty to
indemnify.”). Under the Athridges’ view, defending an
insured would require Aetna to assume liability on a judgment
in order to avoid a bill for postjudgment interest that could
exceed the policy’s limits. See Aetna Policy at 1–2 (“In
addition to our limit of liability, we will pay . . . [i]nterest
accruing after a judgment is entered . . . .” (emphasis added)).
This reading effectively renders the policy exclusions that
10
follow the supplementary payment provisions a dead letter in
any suit Aetna defends. To adopt it would contravene our
obligation to “construe the contract as a whole, giving effect
to each of its provisions, where possible.” Akassy v. William
Penn Apartments Ltd. P’ship, 891 A.2d 291, 303 (D.C. 2006);
see Stevens, 801 A.2d at 66 (“Because an insurance policy
constitutes a contract, we construe it according to contract
principles.”). Accordingly, we hold that the Aetna policy does
not require the payment of interest on a judgment for which
Aetna has been adjudged to have no liability and affirm the
magistrate judge’s entry of summary judgment in favor of
Aetna on this issue.
The Athridges direct our attention to no case that
convinces us to do otherwise. The cases they cite hold only
that an insurer’s duty to pay costs in a suit it defends does not
depend on the insurer’s liability for the judgment. See
Knippen v. Glens Falls Ins. Co., 564 F.2d 525, 530 (D.C. Cir.
1977); Pac. Employers Ins. Co. v. Alex Hofrichter, P.A., 670
So. 2d 1023, 1025 (Fla. Dist. Ct. App. 1996). These cases
provide no support for allowing the defense of a suit to create
de facto indemnification liability.
The Athridges concede that ours is a plausible reading of
the policy, Tr. of Oral Argument at 19, but insist theirs is as
well. Relying on the principle of contra proferentum, which
holds that “any reasonable doubt which may arise as to the
meaning or intent of” an insurance policy provision “will be
resolved against the insurer,” Cameron v. USAA Prop. & Cas.
Ins. Co., 733 A.2d 965, 968 (D.C. 1999), they maintain that
we must construe the policy as they do. But contra
proferentum “does not require courts to indulge in ‘forced
constructions to create an obligation against the insurer.’” Id.
(quoting Boggs v. Motors Ins. Corp., 139 A.2d 733, 735 (D.C.
1958)). The Athridges’ interpretation of the policy, which
11
permits a supplementary payment provision to manufacture
primary liability where none otherwise exists, is the epitome
of such a forced construction. We will not indulge it.
III.
We turn now to the Athridges’ challenges to the jury
verdict that absolved Aetna of liability under the policy. In
Aetna I, we held that the policy covered the accident only if
Iglesias had a reasonable belief that he was entitled to use the
Rivases’ car and remanded the case for a determination of
whether that was in fact the case. A jury found in Aetna’s
favor. The Athridges, presenting a variety of issues, ask us to
set aside the verdict. We find no reason to do so.
A.
The Aetna policy purchased by Iglesias’s parents for their
family excluded from coverage accidents involving “any
person using a vehicle without a reasonable belief that the
person is entitled to do so.” Aetna Policy at 2 (emphasis
added). The Athridges argue that this provision did not
exclude coverage for family members like Iglesias. We
already rejected that interpretation in Aetna I, explaining that
the phrase “any person” unambiguously encompasses family
members. 351 F.3d at 1172. The Athridges ask us to reverse
that decision.
Under the law-of-the-case doctrine, we reconsider our
previous holding in a case with multiple appeals only in
“extraordinary circumstance[s],” such as an “intervening
change in controlling legal authority” or if our prior decision
is “clearly erroneous and would work a manifest injustice.”
LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996)
(en banc). Neither condition obtains here. For an intervening
12
change in controlling law, the Athridges indentify a District of
Columbia Court of Appeals decision that took an expansive,
contextual approach to the interpretation of an insurance
policy. See Richardson v. Nationwide Mut. Ins. Co., 826 A.2d
310, reh’g en banc granted, 832 A.2d 752 (D.C. 2003),
vacated as moot, 844 A.2d 344 (D.C. 2004). The Athridges
contend that Richardson casts doubt on the plain meaning
approach we employed in Aetna I. But Richardson is not a
controlling authority. Not only does it not address the issue
presented in Aetna I, but the Court of Appeals granted
rehearing en banc and then vacated the opinion after the
parties settled. Nor can the Athridges show clear error by the
Aetna I court, whose holding is in accord with the conclusions
reached by a number of other courts. See, e.g., Gen. Accident
Fire & Life Assurance Corp. v. Perry, 541 A.2d 1340, 1349
(Md. Ct. Spec. App. 1988); St. Paul Ins. Co. v. Rutgers Cas.
Ins. Co., 557 A.2d 1052, 1054 (N.J. Super. Ct. App. Div.
1989); Hartford Ins. Co. of Midwest v. Halt, 646 N.Y.S.2d
589, 594 (App. Div. 1996); Newell v. Nationwide Mut. Ins.
Co., 432 S.E.2d 284, 290 (N.C. 1993).
In an attempted end run around the law-of-the-case
doctrine, the Athridges ask us to certify the issue decided in
Aetna I to the District of Columbia Court of Appeals. But in
the absence of any reason for us to reconsider our prior
decision, we see no reason to ask another court to do so. We
deny this belated request for certification.
B.
The Athridges also challenge the magistrate judge’s
exclusion of certain evidence under Federal Rule of Evidence
403. Rule 403 permits the exclusion of relevant evidence “if
its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the
13
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” FED. R. EVID.
403. We review the magistrate judge’s decision for abuse of
discretion, mindful that “[t]he trial court has broad discretion
to weigh the extent of potential prejudice against the
probative force of relevant evidence.” Fredrick v. District of
Columbia, 254 F.3d 156, 159 (D.C. Cir. 2001).
We first affirm the magistrate judge’s exclusion of a jury
verdict rendered in the Athridges’ separate lawsuit against the
Rivases. The Athridges sued on the theory that, as owners of
the car, the Rivases were vicariously liable for the accident
because they consented to Iglesias’s use of the car. Under
District of Columbia law, which we discuss in the next
section, see infra Part III.C, the Rivases could avoid liability
by showing they gave no such consent, see Athridge v. Rivas,
312 F.3d 474, 475 (D.C. Cir. 2002). The jury found that the
Rivases failed to prove that they did not consent to Iglesias’s
use of the car, and the case eventually settled on appeal for
$2.8 million. Although there is no absolute bar to the use of
prior verdicts, courts are wary that their admission into
evidence “creates the possibility that the jury will defer to the
earlier result and thus will, effectively, decide a case on
evidence not before it.” Coleman Motor Co. v. Chrysler
Corp., 525 F.2d 1338, 1351 (3d Cir. 1975). This possibility
was especially problematic here. The magistrate judge noted
that the jury found only a double negative—that the Rivases
had not shown by a preponderance of evidence that they did
not consent to Iglesias’s use of the car. To permit that verdict
to be used to prove an affirmative—that the Rivases had
consented—would imply a conclusion that the jury did not
necessarily reach. Keeping the verdict out of evidence was not
an abuse of discretion.
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The magistrate judge also blocked the Athridges’ attempt
to introduce the judge’s opinion from Iglesias’s trial, which
included a description of Iglesias’s driving on the day of the
accident. They hoped the judge’s description would support
their claim that Iglesias reasonably believed he could use the
Rivases’ car. According to the Athridges, that description
suggests Iglesias was familiar with the car’s manual
transmission, which might suggest that the Rivases had let
him drive the car before, which in turn could suggest that
Iglesias thought he could take the car on that day. This
attenuated reasoning, relying upon suggestion upon
suggestion upon suggestion, is offered in support of a
conclusion that was expressly rejected by the judge’s finding
that Iglesias “t[ook] the car without the permission of the
owner.” Iglesias, 950 F. Supp. at 1189. As the magistrate
judge appropriately noted, if the Athridges wanted to
demonstrate Iglesias’s facility with the Rivases’ car, there was
better evidence at hand: the testimony of witnesses who saw
him driving it on the day of the accident. See Henderson v.
George Washington Univ., 449 F.3d 127, 137 (D.C. Cir.
2006) (“It is well established that under Rule 403, a court
should weigh the probative value of evidence in light of
appropriate evidentiary alternatives.”). The magistrate judge
did not abuse his discretion in excluding the opinion.
The Athridges finally argue that the magistrate judge
should not have applied Rule 403 at all because Aetna was
“bound” by the previous judge’s opinion and could not
contest its version of the facts. Appellants’ Br. at 46. Though
the Athridges do not use the phrase, this is an argument of
issue preclusion, which bars relitigation of matters previously
adjudicated. Under District of Columbia law, issue preclusion
does not apply where issues are only similar, but not identical,
or where the determination of an issue was “dictum” and not
“essential to the judgment.” Hogue v. Hopper, 728 A.2d 611,
15
614 (D.C. 1999). The issues essential to the judgment in
Iglesias’s trial were his negligence, Tommy Athridges’s
contributory negligence, the last clear chance doctrine, and
damages. See Iglesias, 950 F. Supp. at 1190–94. Iglesias’s
belief about whether he had permission to use the Rivases’ car
or even whether he had used it before had no bearing on any
of these. Statements in the judge’s opinion addressing these
concerns could have no preclusive effect in this matter, and
the magistrate judge was free to apply the Rule 403 balancing
test.
C.
The Athridges also argue that the magistrate judge erred
by failing to include in the jury instruction a reference to the
D.C. Motor Vehicle Safety Responsibility Act (MVSRA),
D.C. CODE § 50-1301.08, which creates a presumption that
any person driving a car does so with the consent of the
registered owner, making the owner vicariously liable for the
driver’s conduct. This presumption “places the burden of
proof as to the question of consent upon the defendant-
owner.” Curtis, 537 A.2d at 1074. The Athridges wanted the
magistrate judge to explain to the jury that “[t]here is a
powerful presumption under the MVSRA that a driver
operated the car with the owner’s consent.” Athridge v. Aetna
Cas. & Sur. Co., 585 F. Supp. 2d 20, 29 (D.D.C. 2008).
The magistrate declined to invoke the MVSRA, correctly
noting that it would have been redundant. The jury
instructions already explained that Aetna, because its defense
rested on a policy exclusion, bore the burden of proving that
Iglesias lacked a reasonable belief that he was entitled to use
the Rivases’ car. See Cameron, 733 A.2d at 969 (explaining
that an insurer bears the burden of proving the applicability of
a policy exclusion). The burden-shifting mechanism of the
16
MVSRA thus had no work to do. Assuming without deciding
that the MVSRA applies when the liability of a vehicle’s
owner is not at issue, we review the magistrate judge’s
“choice of the language to be used in a particlar instruction
. . . for abuse of discretion,” Joy v. Bell Helicopter Textron,
Inc., 999 F.2d 549, 556 (D.C. Cir. 1993), and affirm.
D.
The magistrate judge separated the case into two parts,
conducting the jury trial on whether Iglesias believed he was
permitted to use the car before resolving the issues arising
from Aetna’s role in Iglesias’s defense. The Athridges appeal
this bifurcation, arguing that all the theories of liability should
have been tried together. We review for abuse of discretion
the decision to separate issues for trial, which may be done in
the interest of “convenience, to avoid prejudice, or to expedite
and economize.” FED. R. CIV. P. 42(b); see, e.g., Angelo v.
Armstrong World Indus., Inc., 11 F.3d 957, 964 (10th Cir.
1993).
Bifurcation may be appropriate “where the evidence
offered on two different issues will be wholly distinct, or
where litigation of one issue may obviate the need to try
another issue.” Vichare v. AMBAC Inc., 106 F.3d 457, 466
(2d Cir. 1996) (citation omitted). Both conditions were
present here. Evidence of Aetna’s involvement in Iglesias’s
trial in 1996 had no relation to what Iglesias believed when he
took the wheel of the Rivases’ car in 1987. And had the jury
found in favor of the Athridges on the latter issue, there would
have been no need to consider the former.
Even so, bifurcation would have been improper if it was
“unfair or prejudicial” to the Athridges. Angelo, 11 F.3d at
964. Their claims of prejudice, however, fall flat. They first
17
contend that bifurcation unfairly kept them from using the
judge’s opinion with its supposedly preclusive findings to
show that Iglesias had permission to use the car. But we have
just held that the Athridges could not use the judge’s opinion
in this way. The next alleged harm from bifurcation came
from the magistrate judge granting Aetna’s motion to open
and close the case. He did so because Aetna bore the burden
of proof on the sole issue to be argued at the first stage:
whether Iglesias lacked permission to drive the Rivases’ car.
See Silver v. New York Life Ins. Co., 116 F.2d 59, 61–62 (7th
Cir. 1940) (upholding the district court’s decision to permit an
insurer to open and close the case where the only contested
issue was the insurer’s affirmative defense). The Athridges,
however, completely fail to explain how the order of
presentation hindered their case. Cf. Lillycrop v. Kinsky, 300
F.2d 736, 737 (D.C. Cir. 1962) (“[T]he ruling of a trial court
on the question as to who should open and close is usually not
reversible on appeal.”). Finally, the Athridges assert that
bifurcation prevented them “from presenting their case to a
jury in a way that made sense and told the full story.”
Appellants’ Br. at 45. The insinuation that the jury could not
determine what Iglesias reasonably believed on the day of the
accident without considering the other possible bases of
Aetna’s liability is not only logically deficient, but is belied
by how the Athridges litigated this case. They did not see fit
to mention their alternative theories of liability in Aetna I
even though a major question in that appeal was whether
Iglesias’s state of mind was subject to a genuine factual
dispute. We thus see no prejudice in omitting the alternative
theories of liability from the jury’s consideration, and the
Athridges identify no other parts of their “story” that went
untold. Finding no prejudice, we conclude there was no abuse
of discretion in the magistrate judge’s bifurcation of the case.
18
Having dispatched the challenges to the magistrate
judge’s conduct of the trial, we uphold the jury verdict.
IV.
For the foregoing reasons, the judgment is
Affirmed.