Unpublished Dispositionjohn Snyder, Jr., and Carol Snyder, Plaintiffs, v. Norfolk & Western Railway Company, Defendant-appelleeandweaver Trucking, Inc., William D. Watts, and Paxton Nationalinsurance Company Defendants and Third-partyplaintiffs-appellants, v. American Interinsurance Exchange, Third-party Defendant, 935 F.2d 271 (6th Cir. 1991)

This is an appeal from a district court order granting summary judgment to the defendant railroad company on a supplemental petition the railroad filed against one of the two insurance company defendants after the railroad had obtained judgment against the driver of a truck involved in a truck/train accident. On appeal, the insurance company against which judgment was rendered contends (1) that the coverage provided by the other insurer was primary; (2) that the district court should not have ruled on the railroad's summary judgment motion before deciding the primary/secondary coverage issue; and (3) that the district court erred in failing to grant a motion to stay the entire proceeding because of liquidation proceedings against the other insurance company. Finding the first contention irrelevant and the second and third unpersuasive, we shall affirm the judgment in favor of the railroad.

* In 1983 a train owned by defendant Norfolk & Western Railway Co. collided with a tractor-trailer owned by defendant Weaver Trucking, Inc. With its driver, defendant William Watts, the tractor-trailer had been leased to defendant Able Express, Inc., under a trip lease agreement.

In January of 1985 plaintiff John Snyder--the train's engineer--and his wife, Carol, instituted a personal injury action in the United States District Court for the Northern District of Ohio pursuant to the Federal Employer's Liability Act and state law. As originally filed, the complaint named only Norfolk & Western, Weaver Trucking, and Mr. Watts as defendants; the complaint was subsequently amended to include a claim against Able Express.

Norfolk & Western filed cross-claims against Mr. Watts and Weaver Trucking, along with a third-party complaint against Able Express. Able Express, similarly, filed cross-claims against Weaver Trucking and Mr. Watts; they, in turn, cross-claimed against Able Express.

Weaver Trucking and Mr. Watts then joined their insurance carrier, defendant Paxton National Insurance Company, and with Paxton National they filed a third-party complaint against Able Express' insurance carrier, third-party defendant American Interinsurance Exchange.

In January of 1988 Mr. Watts, Weaver Trucking, and Paxton National filed a motion for summary judgment against American Interinsurance Exchange. This motion, which is still pending, seeks a determination as to which insurer's coverage is primary.

On January 21, 1988, in response to requests for admissions served on it by Norfolk & Western, Paxton National admitted that "William D. Watts is an insured under the Paxton National Insurance Company policy that is the subject matter of the third-party complaint in this action." Paxton National further admitted that " [t]he amount of the coverage to which William D. Watts is entitled under said policy is $750,000." With these admissions in hand, Norfolk & Western agreed to dismiss its cross-claims against Weaver Trucking and Able Express. With respect to the Norfolk & Western cross-claim against Mr. Watts, all parties stipulated to the entry of judgment in favor of the railroad in the amount of $70,417.81.

When its judgment against Mr. Watts remained unsatisfied for more than 30 days, Norfolk & Western filed a supplemental petition against Paxton National--Mr. Watts' insurer--pursuant to Ohio Revised Code Sec. 3929.06. Thereafter, three relevant motions were filed with the district court: (1) Norfolk & Western moved for summary judgment on its supplemental petition; (2) American Interinsurance Exchange moved to stay the entire proceeding on the ground that an order of rehabilitation had been entered against it by an Indiana state court;¹  and (3) Norfolk & Western moved for prejudgment interest.

The district court granted Norfolk & Western's motion for summary judgment and denied the motion for prejudgment interest. Weaver Trucking, Mr. Watts and Paxton National filed the instant appeal before either of the remaining motions was decided.

At oral argument, noting that there appeared to be no final decision that could be appealed under 28 U.S.C. § 1291, we asked the parties to address the issue of appellate jurisdiction. The upshot of our inquiry was that the parties obtained from the district court, within a time limit set by this court, a nunc pro tunc order directing the entry of a final judgment on Norfolk & Western's summary judgment motion and determining that there was no just reason for delay. See Rule 54(b), Fed. R. Civ. P. The procedure thus followed appears to have been recognized by this court in Lewelling v. Farmers Insurance of Columbus, Inc., 879 F.2d 212, 214-215 (6th Cir. 1989). The district court now having issued an appropriate Rule 54(b) certification, and because the interests of judicial economy would be ill-served by requiring another panel of this court to familiarize itself with the issues that the parties want this court to decide, we shall proceed to determine the merits.

II

The appellants argue that the district court ought not to have granted summary judgment to Norfolk & Western on its supplemental petition before deciding which of the two insurance companies is obligated to provide primary coverage. It is well settled, however, that matters of docket and trial management rest within the sound discretion of the district court. See Daniel J. Hartwig Associates, Inc. v. Kanner, 913 F.2d 1213, 1222 (7th Cir. 1990). The district court's decisions on such matters will not be reversed on appeal unless the reviewing court is left with the "definite and firm conviction that the trial court committed a clear error of judgment." Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). No such error occurred here; it was well within the province of the district court to conclude that just as disputes between insurers regarding the obligation to defend an insured must be settled without expense to the insured (see O.R.C. Sec. 3937.21, which so provides), resolution of the dispute as to which coverage was primary in this case should not hold up satisfaction of a judgment on which Norfolk & Western was clearly entitled to be paid.

The appellants also contend that the district court erred in failing to grant a motion to stay the entire proceeding because of the Indiana liquidation proceedings against American Interinsurance Exchange. Nothing in the federal bankruptcy code could have necessitated a stay, the liquidation proceedings having been instituted in state court, and we are aware of no other reason why the status of either insurance company should have obligated the district court to defer a ruling on the judgment-holder's supplemental petition against the healthier insurance company. The railroad is entitled to have its judgment paid by Paxton National regardless of what Paxton National may be able to collect from American Interinsurance Exchange or the Indiana Guaranty Fund.

Accordingly, the order entered by the district court is AFFIRMED.