James H. Pogue v. Principal Life Insurance Company

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0352p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES H. POGUE,
Plaintiff-Appellant,
v.
PRINCIPAL LIFE INSURANCE COMPANY,
Defendant-Appellee.
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No. 20-5133
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:14-cv-00599—Claria Horn Boom, District Judge.
Decided and Filed: November 4, 2020
Before: SUTTON, THAPAR, and READLER, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Michael D. Grabhorn, Andrew M. Grabhorn, GRABHORN LAW
| INSURED RIGHTS®, Louisville, Kentucky, for Appellant. Edna S. Kersting, WILSON,
ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP, Chicago, Illinois, for Appellee.
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OPINION
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THAPAR, Circuit Judge. James Pogue believed that he had a severe anxiety disorder
that prevented him from practicing as a family doctor. So he submitted a disability claim to his
two long-term disability insurers: Northwestern Mutual and Principal Life Insurance Company.
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When submitting his claim, however, Pogue left out one detail—the Tennessee Board of
Medical Examiners had suspended his license for mis-prescribing painkillers. His insurers found
out and denied both of his claims.
After the insurers denied his claims, Pogue filed two lawsuits—one against Northwestern
Mutual and one against Principal. He alleged, among other things, breach of contract and breach
of the duty of good faith and fair dealing.
Pogue’s lawsuit against Northwestern Mutual (“Pogue I”) reached summary judgment
first. The Pogue I district court granted summary judgment for Northwestern Mutual on two
alternative grounds: (1) the suspension occurred before Pogue became disabled, and (2) the
suspension caused stress and anxiety and thus contributed to his disability. Pogue v. Nw. Mut.
Life Ins. Co., No. 3:14-CV-00598-CRS, 2018 WL 1189415, *5–6 (W.D. Ky. Mar. 7, 2018). On
appeal, this court affirmed on the first ground and declined to consider the second ground.
Pogue v. Nw. Mut. Life Ins. Co., No. 18-5291, 2019 WL 1376032, *2–4 (6th Cir. Feb. 7, 2019)
(order).
When Pogue’s lawsuit against Principal reached summary judgment, the district court
applied issue preclusion. The court relied on the Pogue I district court’s holding that the
suspension of Pogue’s license contributed to his disability. The court held that this finding was
fatal for Pogue’s breach-of-contract claim and granted summary judgment for Principal. In view
of that ruling, the court did not address whether the suspension occurred before Pogue became
disabled. The court also granted summary judgment for Principal on Pogue’s bad-faith claims.
On appeal, Pogue contends that the district court erred by giving preclusive effect to an
alternative holding on which this court declined to opine. We agree and reverse.
Breach of Contract. The doctrine of issue preclusion bars parties from relitigating any
issue “essential to the prior judgment” that was “actually litigated and resolved in a valid court
determination.” Herrera v. Wyoming, 139 S. Ct. 1686, 1697 (2019) (citation omitted); see J.Z.G.
Res., Inc. v. Shelby Ins. Co., 84 F.3d 211, 214 (6th Cir. 1996) (“[W]e shall apply federal res
judicata principles in successive federal diversity actions.”); Bryan A. Garner, et al., The Law of

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No. 20-5133 Pogue v. Principal Life Insurance Comp Page 3
Judicial Precedent 373 (2016). Essentially, parties get only one chance to litigate an issue of
fact or law.
But there are exceptions to this general rule. For example, issue preclusion does not
apply to issues an appellate court declines to consider on appeal, even when the appellate court
affirms the overall judgment. See Restatement (Second) of Judgments § 27, cmt. o (Am. Law
Inst. 1982); 18 Federal Practice & Procedure § 4421 (3d ed. 2020 update) (“The federal
decisions agree with the Restatement view that once an appellate court has affirmed on one
ground and passed over another, preclusion does not attach to the ground omitted from its
decision.”). Thus, whenever an appellate court affirms on an alternative ground, “issue
preclusion no longer attaches to the ground on which the trial court decided the case, and instead
attaches to the alternative ground on which the appellate court affirmed the judgment.” Jennings
v. Stephens, 574 U.S. 271, 278 (2015).
That’s what happened here. The Pogue I district court analyzed two issues; we affirmed
one issue and declined to consider the other. As a result, the issue we declined to consider lost
any preclusive effect. See id. So we reverse and remand the district court’s grant of summary
judgment on Pogue’s breach-of-contract claim.
Bad Faith. Pogue also argues the district court erred by granting summary judgment on
his bad-faith claims. Under Kentucky law, an insurer cannot act in bad faith if the insurer did not
have to pay in the first place. State Auto Prop. & Cas. Ins. Co. v. Hargis, 785 F.3d 189, 197–98
(6th Cir. 2015); see Pogue I, 2019 WL 1376032, at *5. Thus, when the district court determined
that Principal wasn’t obligated to pay, it held that Pogue’s bad-faith claims could not succeed.
Because we now hold that issue preclusion does not bar Pogue’s breach-of-contract claim, his
bad-faith claims no longer fail as a matter of law.
Finally, Pogue contends the district court abused its discretion by granting summary
judgment without allowing any discovery on his bad-faith claims. But district courts may stay
discovery on bad-faith claims when “the merits of the bad faith claim[s]” depend on the outcome
of the breach-of-contract claim. Smith v. Allstate Ins. Co., 403 F.3d 401, 407 (6th Cir. 2005); see

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No. 20-5133 Pogue v. Principal Life Insurance Comp Page 4
Gettings v. Bldg. Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300, 304 (6th Cir. 2003).
So the district court’s stay was permissible.
We reverse and remand.

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