ORDER RE: JURY TRIAL AND ORDER OF PROOF
This case involves a contested claim for coverage under the terms of an insurance policy for damages suffered to a piece of property at 451-459 Main Street in Holyoke, Massachusetts. Plaintiff Middlesex Mutual Assurance Company ("Middlesex") brought suit against Defendant Puerta de La Esperanza, LLC ("Puerta"), seeking a declaratory judgment from the court to the effect that the damage to Defendant's building was not covered by Defendant's insurance policy. Defendant filed a counterclaim alleging breach of contract, violation of the implied covenant of good faith, negligence, and violation of Mass. Gen. Laws ch. 93A, §§ 2, 9, and 11.
On June 29, 2010, the court issued its Memorandum entering summary judgment for Defendant on the declaratory judgment and otherwise denying the cross-motion by Defendant for summary judgment on the counterclaims. Thus, what is currently before the court are the claims set forth in the counterclaim for breach of contract, violation of the implied covenant of good faith, negligence, and violation of Chapter 93A. The case is scheduled for trial to commence on February 7, 2011, and counsel estimate that the case will take four to five days.
An issue has arisen with regard to Defendant's right to a jury trial on its counterclaim and with regard to the order of proof. A number of motions in limine are also pending. To assist counsel in their preparation for trial, the court orders as follows:
1. This will be a trial by jury on the three counterclaims for breach of contract, breach of the covenant of good faith, and negligence. The court will simultaneously try the claim for violation of Chapter 93A non-jury, hearing the evidence at the same time as the jury.
2. Since Defendant will bear the burden of proof, Defendant will begin first with the presentation of its evidence, will open first, and will close last.
The court will issue its rulings on the pending motions in limine shortly.
It is So Ordered.
MICHAEL A. PONSOR U.S. District Judge