UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

THE MEDICAL PROTECTIVE 

COMPANY OF FORT WAYNE 

INDIANA, 

 Plaintiff, 

v. CAUSE NO.: 1:13-CV-357-HAB 

AMERICAN INTERNATIONAL 

SPECIALTY LINES INSURANCE 

COMPANY, 

 Defendant. 

OPINION AND ORDER 

Plaintiff Medical Protective Company of Fort Wayne, Indiana (MedPro), has sued 

Defendant American International Specialty Insurance Company (AISLIC), now known 

as AIG Specialty Insurance Company, for breach of the terms of a 2006 policy AISLIC 

issued to MedPro. MedPro alleges that AISLIC breached the policy when it refused to 

cover MedPro’s extra-contractual liability and eventual settlement of a third party’s bad 

faith claim against MedPro. 

This matter is set for a four-day jury trial to begin on January 28, 2020. In setting 

the trial, the Court invited the parties to file a report as to whether a trial in this case 

should be to the bench, or before a jury. Although both MedPro and AISLIC demanded 

a jury trial in their pleadings, only a bench trial was mentioned in the parties’ Rule 26(f) 

report of initial planning meeting [ECF No. 19] that was approved by the Court during 

the March 28, 2014, Rule 16 preliminary pretrial conference [ECF No. 21]. 
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On July 24, 2019, the Parties submitted their Report Regarding Jury or Bench Trial 

Proceedings [ECF No. 110]. MedPro continues to seek a jury trial in this matter. While 

acknowledging that the parties’ Rule 26(f) report of initial planning meeting indicated 

that the case would be “ready for a bench trial” by a certain date, MedPro argues that this 

does not constitute a waiver, and that the inclusion was inadvertent, and most likely the 

result of re-using a report from another case. MedPro’s counsel has no recollection, or 

written evidence, suggesting that its client agreed to waive a jury trial. 

Taking the opposite view, AISLIC argues that both parties withdrew their jury 

trial demands in the Rule 26(f) report. AISLIC submits that the Rule 26(f) report, as 

approved by the Court, meets the Rule 39(a)(1) standard for withdrawal of a jury 

demand. In addition, MedPro’s counsel should be presumed to have had full authority 

to bind MedPro when it signed the Rule 26(f) report. 

“When a jury trial has been demanded under Rule 38,” as it has here, “the action 

must be designated on the docket as a jury action. The trial on all issues so demanded 

must be by jury unless: (1) the parties or their attorneys file a stipulation to a nonjury trial 

or so stipulate on the record.” Fed. R. Civ. P. 39(a)(1). Because AISLIC contends that the 

Rule 26(f) report constitutes a stipulation to a bench trial, the Court has listened to the 

recording of the March 28, 2014, preliminary pretrial conference that Magistrate Judge 

Roger Cosbey conducted before adopting the report. Upon review, the Court finds that 

there has not been a valid waiver of the right to a jury trial. 

Magistrate Judge Cosbey addressed the discrepancy in the report, noting that “if 

the case proceeds to trial, it would be —surprisingly enough, it says the case should be 
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ready for a bench trial April 6, and that’s in your report, but both plaintiff and defendant 

have . . . jury demands.” He then asked counsel for each party, “is it your contemplation, 

then, that you’re going to waive a jury and go to trial to the bench?” MedPro’s counsel 

responded that he would need to run the matter by primary lead counsel, and asked for 

permission to do so. 

Counsel for AISLIC noted the inclusion of a jury demand to avoid waiving it, but 

also indicated that there had been discussion of a bench trial. He further advised, “I think 

everyone is in agreement on our side that this case is probably amenable for resolution 

on dispositive motions, and so if there would be a trial, that would be on a very, very 

limited set of factual issues.” AISLIC’s counsel concluded his remarks by stating, “But I 

don’t think at this point we are necessarily in a position to waive a jury, but we certainly 

discussed the concept of a bench trial.” Magistrate Judge Cosbey acknowledged that he 

understood, and there was no further discussion on the point. 

The Court concludes, based on these comments, that the reference to a bench trial 

in the Rule 26(f) report was not a “stipulation to a nonjury trial.” Rather, it was an 

acknowledgement that a bench trial was a possible option, if the matter proceeded to a 

trial at all. At that point in the litigation, neither party was ready to withdraw its demand 

to a jury trial. In light of the “presumption against waiver of the constitutional right to 

jury trial,” Middle Tenn. News Co. v. Charnell of Cincinnati, Inc., 250 F.3d 1077, 1083 (7th Cir. 

2001) (first citing Winter v. Minnesota Mut. Life Ins. Co., 199 F.3d 399, 408 n.11 (7th Cir. 

1999); then citing Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir. 1998) (explaining that 
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courts must use every reasonable presumption against waiver of a jury demand)), the 

Court concludes that the parties’ jury demands remain in effect. 

CONCLUSION 

 For the reasons stated above, the jury trial scheduled to begin on January 28, 2020, 

is CONFIRMED. 

SO ORDERED on August 13, 2019. 

 

 s/ Holly A. Brady 

JUDGE HOLLY A. BRADY 

UNITED STATES DISTRICT COURT