U.S. District Judge Kim R. Gibson of the Western District of Pennsylvania recently ruled that an insurer has no say in drafting the verdict slip.  The ruling arose in the case of Ellis v. Gadley.  There, Jerry Ellis Construction was sued by Gary Gadley for the improper installation of structural insulated panels on Gary’s roof.

In an attempt to fashion the verdict slip to its advantage, Cincinnati Insurance Company filed a motion to intervene on behalf of its insured, Jerry Ellis Construction.  In its motion, Cincinnati requested that the court allow it to draft a verdict slip for the jury to show the “breakdown of damages by category.”  Cincinnati argued that the jury’s responses on the verdict slip might apply to issues in the insurer’s companion declaratory judgment action against Ellis, in which it seeks a decision that it is not obligated to defend Ellis against Gadley’s claims.  Judge Gibson denied the motion.

The Court’s reasoning for denying the motion appeared to turn on the timing of Cincinnati’s motion to intervene.  Filed on the eve of trial, Judge Gibson found Cincinnati’s argument that it only became aware of its need to intervene disingenuous, especially in light of the fact the Insurer had represented Ellis since 2012 and did not file the motion to intervene until April 8, 2015.  Judge Gibson also found reason to deny Cincinnati’s motion on the grounds that it would place an undue burden on the parties regarding discovery and delay of trial.  Judge Gibson was also concerned about confusing the jurors because it appeared that the suggested interrogatories might inject issues implicating the declaratory judgment action and unrelated to the instant case.

Ultimately, Judge Gibson’s real hang-up about the request, however, appeared to be that Cincinnati was “asking to create categories of damages on the jury verdict form consistent with its interpretation of the underlying insurance policy in the declaratory judgment action.”  Nice try, Cincinnati.  Please email Brian Gibbons with questions.  Thanks to Hillary Ladov for her contribution.