UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

VALLEY FORGE INSURANCE

COMPANY, 

 PLAINTIFF, 

 VS. 

HARTFORD IRON & METAL, INC.

AND ALAN B. GOLDBERG (DBA

HARTFORD METAL & IRON), 

 DEFENDANTS. 

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CAUSE NO. 1:14-CV-006-RLM-SLC

OPINION and ORDER 

 

The court denied plaintiff and counterclaim defendant Valley Forge 

Insurance Company’s motion for partial summary judgment, holding that a 

conflict of interest prevented Valley Forge from exercising its contractual right to 

control the defense of its insured, defendant Hartford Iron. Valley Forge wants 

to appeal that denial without waiting until the end of this case, and to that end 

has moved for entry of partial final judgment or, alternatively, for certification of 

the issue for interlocutory appeal. For the reasons that follow, neither procedure 

is appropriate so the court denies Valley Forge’s motion. 

I. BACKGROUND

The factual background to this case is complex and known to the parties, 

so it need only be briefly sketched out here. Valley Forge issued a liability 

insurance policy covering Hartford Iron’s scrap metal yard. When the scrap yard 
was targeted by state and federal regulators for environmental violations, Valley 

Forge eventually agreed to cover the costs of both defending against the 

enforcement actions and remediating the site. The parties entered into a 

settlement agreement that gave Valley Forge had the right to control the 

remediation and defense. The parties disagreed on how best to fix the violations, 

leading to this protracted dispute in which each party brings breach of contract 

claims and accuses the other of preventing full remediation and running up 

unnecessary costs. 

In addition to demanding damages for the runaway remediation costs and 

penalties incurred so far, both parties also sought declaratory relief to clarify 

their respective rights and obligations going forward. Hartford Iron argued that 

Valley Forge’s suit for breach of contract created a conflict of interest because 

defense counsel tasked with representing Hartford Iron before the environmental 

regulators would be hired and controlled by Valley Forge – the same company 

attempting to blame Hartford Iron for the ongoing violations. Valley Forge moved 

for partial summary judgment, seeking a declaration that it – not Hartford Iron 

– retains the right to control both the remediation and the defense to the 

environmental enforcement actions. Hartford Iron opposed the motion, but didn’t 

itself move for summary judgment on the issue of who has control rights. The 

court issued an opinion holding that Valley Forge’s lawsuit for damages against 

Hartford Iron created a conflict of interest that prevents Valley Forge from 

controlling the defense and remediation under Indiana law; Valley Forge’s 

adversarial posture towards Hartford Iron in this lawsuit means that any 
attorney paid by and answering to Valley Forge would have his or her 

representation of Hartford Iron materially limited, in violation of Indiana’s 

attorney ethics rules. The court therefore denied Valley Forge’s summary 

judgment motion. 

II. DISCUSSION

Valley Forge disagrees with the court’s ruling, but can’t appeal yet. Under 

the Federal Rules of Civil Procedure, an order that resolves fewer than all the 

claims in an action is interlocutory, and may be revised at any time before final 

judgment. Fed. R. Civ. P. 54. Accordingly, an order such as the court’s denial of 

Valley Forge’s partial summary judgment motion – which resolved some issues 

in this case, but not all – isn’t final and so isn’t ordinarily appealable. See

Ahrenholz v. Bd. of Trustees of Univ. of Illinois, 219 F.3d 674, 676 (7th Cir. 2000) 

(“A denial of summary judgment is a paradigmatic example of an interlocutory 

order that normally is not appealable.”). By the time this case is over, Valley 

Forge argues, the site itself will likely have been fully remediated and any 

question of who has the right to control that remediation will be moot. 

Accordingly, Valley Forge asks that the court take the unusual step of permitting 

an immediate appeal of the summary judgment denial by either entering partial 

final judgment under Rule 54(b) or certifying the control issue for interlocutory 

appeal under 28 U.S.C. § 1292(b). 

A. Partial Final Judgment under Rule 54 
Rule 54(b) provides that a district court “may direct entry of a final 

judgment as to one or more, but fewer than all, claims or parties only if the court 

expressly determines that there is no just reason for delay.” Entry of partial final 

judgment under Rule 54 allows a party to appeal a distinct claim, while other 

claims remain active and move forward. See Ty, Inc. v. Publications Int’l, 292 

F.3d 512, 515 (7th Cir. 2002). The Rule permits entry of partial final judgment 

only “when all of one party’s claims or rights have been fully adjudicated, or 

when a distinct claim has been fully resolved with respect to all parties.” Factory 

Mut. Ins. Co. v. Bobst Group USA, Inc., 392 F.3d 922, 924 (7th Cir. 2004). The 

Rule “is not intended to provide an option to the district court to certify issues 

for interlocutory appeal,” but rather “allows appeal without delay of claims that 

are truly separate and distinct from those that remain pending.” Lottie v. W. Am. 

Ins. Co., of Ohio Cas. Grp. of Ins. Companies, 408 F.3d 935, 939 (7th Cir. 2005). 

“There are no bright-line rules for determining whether two claims are 

separate for Rule 54(b) purposes,” and courts instead look to the practical 

overlap between the claims on which final judgment is sought and the claims 

still pending. Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 518 

F.3d 459, 464 (7th Cir. 2008). A claim that involves largely the same facts as 

others that remain pending isn’t a “separate” claim for which partial final 

judgment is appropriate. Ty, Inc. v. Publications Int’l, 292 F.3d at 515; see also

Cont’l Cas. Co. v. Anderson Excavating & Wrecking Co., 189 F.3d 512, 516 (7th 

Cir. 1999) (noting that Rule 54(b) properly applies only to “separate” claims, with 

“‘separate’ meaning having minimal factual overlap.”); Horwitz v. Alloy Auto. Co., 
957 F.2d 1431, 1434 (7th Cir. 1992) (“If there is a great deal of factual or legal 

overlap between counts, then they are considered the same claim for Rule 54(b) 

purposes.”). This limitation is intended to conserve judicial resources; requiring 

that claims be truly separate works “to spare the court of appeals from having to 

keep relearning the facts of a case on successive appeals.” Indiana Harbor Belt 

R. Co. v. Am. Cyanamid Co., 860 F.2d 1441, 1444 (7th Cir. 1988) (quoting Jack 

Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d 698, 702 (7th Cir. 1984)). 

Entry of partial final judgment under these circumstances would be 

improper, because the declaratory judgment issue the court resolved in the 

summary judgment order isn’t “separate” for Rule 54 purposes; it overlaps 

substantially with other claims in the case that remain active. The issue of who 

has the right to control the defense is inextricably bound up with the question 

of which party breached which obligations under the contract, a question that 

remains pending in this litigation. In fact, the conflict of interest issue Valley 

Forge wishes to appeal underlies nearly every facet of the parties’ increasingly 

complex dispute, including all five of the counts in Valley Forge’s complaint. 

Count I seeks a declaration that Hartford Iron’s conduct breached the 

settlement agreement by cooperating insufficiently with the defense counsel and 

environmental consultant Valley Forge selected, and by refusing to communicate 

with Valley Forge’s attorneys. The extent to which Hartford Iron was obligated to 

cooperate with the remediation and defense plan chosen by Valley Forge depends 

in large part on whether Valley Forge had the right to control the remediation 

and defense. Count II seeks a declaration that Hartford Iron breached the 
contract by denying Valley Forge’s environmental contractors access to the scrap 

yard. Again, whether Hartford Iron breached an obligation to cooperate in Valley 

Forge’s remediation plan hinges on whether Valley Forge had the right to select 

those contractors and guide the remediation efforts in the first place. The other 

counts present the same problem: Valley Forge claims that specific acts and 

omissions by Hartford Iron breached the agreement, but whether that is true 

depends at least in part on how the rights created by the agreement changed due 

to the subsequent conflict of interest. 

Accordingly, allowing an interlocutory appeal on the issue of whether a 

conflict of interest abrogated Valley Forge’s control rights would waste judicial 

resources on appeal. The facts an appellate court must grapple with to 

understand the control question include: the terms of the insurance policies and 

the 2012 settlement agreement; the tangled history of the parties’ 

communications with each other, the environmental consultants, and the 

enforcement agencies; and the repeated hiring and replacement of defense 

counsel. All of that background bears on the existence of the conflict of interest, 

and all of it would have to be revisited were the case to come back to an appellate 

court after resolution of the other claims. 

Moreover, even if the issue resolved by the court’s summary judgment 

order didn’t overlap with the other claims in Valley Forge’s complaint, it still 

wouldn’t be eligible for partial final judgment under Rule 54(b) because it mirrors 

unresolved claims in Hartford Iron’s countercomplaint. “[T]wo claims are not 

separate for purposes of Rule 54(b) merely because one is in the complaint and 
the other in the countercomplaint.” In re Berke, 837 F.2d 293 (7th Cir. 1988). 

Where the mirror image of a claim from the complaint is still unresolved in a 

counterclaim, “the condition for the entry of a final judgment under Rule 54(b) 

is not satisfied and [the court of appeals has] no appellate jurisdiction over a 

decision disposing of just the complaint.” Automatic Liquid Packaging, Inc. v. 

Dominik, 852 F.2d 1036, 1037 (7th Cir. 1988). The court denied Valley Forge’s 

motion for summary judgment, finding that Valley Forge doesn’t have the right 

to control the remediation and defense of the scrapyard due to the conflict of 

interest. Count 16 of Hartford Iron’s countercomplaint, however, seeks damages 

allegedly arising from the conflict of interest as well as a declaration that Hartford 

Iron has the right to designate defense counsel, control the defense, and retain 

and supervise environmental contractors. Because Hartford Iron didn’t move for 

summary judgment, this counterclaim is still pending and is the mirror image of 

the relief sought by Valley Forge. As the claim and counterclaim are mirror 

images, they are the same claim for Rule 54(b) purposes and partial final 

judgment isn’t available unless both have been resolved. 

Finally, Rule 54(b) only permits, and doesn’t mandate, entry of final 

judgment. “The judge is required to make a discretionary judgment, balancing 

the advantage of allowing an immediate appeal against the advantage of delaying 

the appeal until the pending claims can be resolved so that all can be decided in 

a single appeal at a later time.” Cont’l Cas. Co. v. Anderson Excavating & 

Wrecking Co., 189 F.3d 512, 518-519 (7th Cir. 1999). So even if the right-tocontrol issues qualified as separate claims eligible for Rule 54(b) partial final 
judgment, the court wouldn’t grant Valley Forge’s motion. Piecemeal appeals are 

heavily disfavored in the federal courts. See Curtiss-Wright Corp. v. Gen. Elec. 

Co., 446 U.S. 1, 8 (1980) (noting “the historic federal policy against piecemeal 

appeals”). In addition, Valley Forge’s proposed interlocutory appeal would 

require grinding this long-running litigation to a halt. As already discussed, 

resolving the remaining claims – deciding who breached what duties under the 

settlement agreement, and who is to blame for the remediation woes – depends 

on whether a conflict of interest caused Valley Forge to lose its bargained-for 

right to control. Therefore, if the court’s findings as to the conflict of interest are 

on appeal, no other part of this case can be resolved for fear of inconsistent 

verdicts. 

The interdependence of the many disputes in this litigation mean that 

claims can’t be neatly segregated in the way Rule 54(b) contemplates, so partial 

final judgment to permit an immediate appeal isn’t appropriate. 

B. Certification for Interlocutory Appeal 

In the alternative to entry of partial final judgment under Rule 54, Valley 

Forge asks for certification of the control issue for interlocutory appeal under 28 

U.S.C.A. § 1292(b), which provides: 

When a district judge, in making in a civil action an order not otherwise 

appealable under this section, shall be of the opinion that such order 

involves a controlling question of law as to which there is substantial 

ground for difference of opinion and that an immediate appeal from the 

order may materially advance the ultimate termination of the litigation, he 

shall so state in writing in such order. The Court of Appeals which would 
have jurisdiction of an appeal of such action may thereupon, in its 

discretion, permit an appeal to be taken from such order, if application is 

made to it within ten days after the entry of the order: Provided, however, 

That application for an appeal hereunder shall not stay proceedings in the 

district court unless the district judge or the Court of Appeals or a judge 

thereof shall so order. 

To certify an order under the statute: there must be a question of law, that 

question must be controlling, it must be contestable, and answering the question 

must promise to speed up the litigation. See Ahrenholz v. Bd. of Trustees of Univ. 

of Illinois, 219 F.3d 674, 675-676 (7th Cir. 2000). “Unless all these criteria are 

satisfied, the district court may not and should not certify its order ... for an 

immediate appeal under section 1292(b).” Id. (emphasis in original). 

The partial summary judgment ruling isn’t eligible for certification under 

§ 1292(b). As an initial matter, the term “question of law” in the statute has a 

very narrow meaning: it refers only to “a question regarding the meaning of a 

statutory or constitutional provision, regulation or common law doctrine.” Boim 

v. Quranic Literacy Institute & Holy Land Foundation for Relief and 

Development, 291 F.3d 1000, 1007 (7th Cir. 2002). Interlocutory review is 

appropriate only for “a ‘pure’ question of law,” meaning something that “the court 

of appeals could decide quickly and cleanly without having to study the record.” 

Ahrenholz v. Bd. of Trustees, 219 F.3d at 677. 

The question of law Valley Forge seeks to challenge is “whether a conflict 

exists for defense counsel, and, if so, whether that conflict limits Valley Forge’s 

bargained-for rights” under the parties’ contracts. That isn’t on its face a 

question regarding the meaning of a statute, regulation or common law doctrine. 

Valley Forge isn’t asking the appellate court to interpret of a bare statute or 
contract term; it’s asking for a judgment as to how Indiana law governing 

conflicts of interest applies to the convoluted factual and procedural history of 

this particular case. Application of the conflict rules to these facts isn’t a pure 

question of law for purposes of § 1292(b). See In re Text Messaging Antitrust 

Litigation, 630 F.3d 622, 626 (7th Cir. 2010) (noting that “routine applications 

of well-settled legal standards to facts alleged in a complaint” aren’t appropriate 

for interlocutory appeal). 

As the court’s summary judgment order made clear, whether a conflict of 

interest exists depends on whether Valley Forge’s control of the regulatory 

defense and the remediation has the potential to influence this litigation between 

the parties. Answering that question requires an inquiry into the nature of both 

the underlying environmental enforcement actions by IDEM and the course of 

the insurance and contract disputes between the parties – and Valley Forge’s 

conduct in the remediation and defense thus far is clearly relevant. Because the 

legal ruling underlying the court’s denial of summary judgment was at least 

partially bound up in the facts of the case, it isn’t appropriate for interlocutory 

appeal. See Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 941 n.3 (7th Cir. 

2015) (declining to reach an issue in part “because it poses a mixed question of 

law and fact unsuitable for interlocutory review”). 

Even if the conflict of interest and control issues that formed the basis of 

the court’s summary judgment order qualify as pure questions of law, Valley 

Forge hasn’t shown that interlocutory appeal would materially advance the 

ultimate termination of this case. The only argument Valley Forge provides is 
that “[i]f granted on appeal, the declaratory relief that Valley Forge seeks would 

speed up the litigation by providing a final determination of a critical issue, 

removing it from dispute well in advance of final judgment.” Even if the court of 

appeals were to reverse the denial of Valley Forge’s summary judgment motion, 

the lions’ share of the case – three of Valley Forge’s four declaratory judgment 

counts, Valley Forge’s breach of contract count, and all but one of Hartford Iron’s 

25 counterclaims and third-party claims – would remain for trial. The question 

of who has the right to control the remediation and defense is certainly relevant 

to many of those claims (as already discussed), but it isn’t dispositive as to any 

of them. And because the control issues are so inextricably intertwined with 

essentially all the claims and counterclaims that remain pending, an 

interlocutory appeal would mean that this litigation would grind to a halt while 

the court and parties waited an indeterminate amount of time for a ruling from 

the court of appeals. Accordingly, certification would delay rather than expedite 

the resolution of this case, regardless of the outcome of the interlocutory appeal. 

C. Motion for Hearing 

Valley Forge also moved for a hearing on the issues raised in its motion for 

entry of judgment. Because the parties’ briefs were thorough and helpful, the 

court was able to decide the issue without the benefit of oral argument and a 

hearing is unnecessary. 
III. CONCLUSION

For these reasons, the court DENIES Valley Forge’s motion for entry of 

judgment (Doc. No. 322) and DENIES Valley Forge’s motion for a hearing (Doc. 

No. 377). 

SO ORDERED. 

 ENTERED: March 30, 2016 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court