Amerisure Ins. Co. v. Auchter Co., Case No. 3:16-cv-407-J-39JRK
| Decision Date | 14 February 2019 |
| Docket Number | Case No. 3:16-cv-407-J-39JRK |
| Parties | AMERISURE INSURANCE COMPANY and AMERISURE MUTUAL INSURANCE COMPANY, Plaintiffs, v. THE AUCHTER COMPANY, ARCH INSURANCE COMPANY, LANDMARK AMERICAN INSURANCE COMPANY, TSG INDUSTRIES INC, and B & B OF DUVAL COMPANIES, INC., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
THIS CAUSE is before the Court on the following motions: Amerisure Insurance Company and Amerisure Mutual Insurance Company's ("Amerisure") Motion for Reconsideration and Reversal of Order on Cross Motions for Partial Summary Judgment [Doc. 216] (Doc. 224); Amerisure's Motion to Bar the Expert Opinions and Testimony of Steven C. Shimp at Trial (Doc. 246); Amerisure's Motion for Partial Summary Judgment against Landmark American Insurance Company ("Landmark") (Doc. 247); Amerisure's Motion for Partial Summary Judgment against Arch Insurance Company ("Arch") regarding Claims for Insurance Coverage for the "Punch List" and "Delay Damage" Components of the Final Judgment (Doc. 248); Landmark's Motion for Summary Judgment on the Duty to Defend and the Duty to Indemnify Related to the Equitable Exception (Doc. 249); Landmark's Motion for Summary Judgment on the Duty to Indemnify (Doc. 250); Amerisure's Objections to the Magistrate Judge's Non- Dispositive Order (Doc. 257); and Amerisure's Motion for the Entry of a Partial Final Summary Judgment against Landmark (Doc. 271). The Court also considered the responses in opposition to these motions as well as the replies to the responses. (Docs. 230, 258-264, 266, 268-270, 272-274, and 277).
This most recent round of motion practice represents the final portion of dispositive motion practice. Because most of the relevant facts and case law have previously been established, the Court will not recite them in detail. (See, e.g. Docs. 157-58 and 216). The motions seek to establish each party's liability as to various aspects of a long running dispute involving the construction of a 13-story office building, the Riverside Avenue Project (the "Project"). The Project did not go as planned and resulted in a litany of claims, counterclaims, and cross-claims involving, among others, the property owner, the general contractor, and subcontractors in state court (the underlying state action).1 The matter was eventually resolved following a 28-day non-jury trial that resulted in the following judgment:
(Doc. 24-1 at 86-88; Final Judgment). The Final Judgment included $2,586,625.86 in damages that was comprised of the money expended to complete the Project, including "punch list items" and $3,613,856.88 for delay damages. Id. at 52 and 55. Thus, the Final Judgment created the following categories of damages: (1) Window System repair, $5,067,033.01; (2) Punch List completion, $2,586,625.86; and Delay Damages, $3,613,856.88. Id. at 56.
On March 27, 2018, the Court granted Arch's Motion for Summary Judgment (Doc. 160) for indemnity as it pertained to roughly $5,000,000.00 for the repair and replacement of windows (or "Window System").2 (Doc. 216; Order). That Order also denied Plaintiffs' Motion for Summary Judgment (Doc. 169) on that same issue. Plaintiffs now seek reconsideration of the Order.
Within the Motion, Plaintiffs cite to both Rule 60 and Rule 59 of the Federal Rules of Civil Procedure. Rule 60 allows a court to relieve a party from an order because ofmistake, inadvertence, surprise, excusable neglect, or for any other reason that justifies relief. Rule 59(e) also allows the Court to relieve a party from an order, but it must be made within twenty-eight days after the entry of judgment. The functions of both Rule 60 and Rule 59 are similar insomuch as they "provide a mechanism for those situations in which relief must be obtained after judgment." Brown v. Spells, No. 7:11-CV-91 HL, 2011 WL 4543905, at *1 (M.D. Ga. Sept. 30, 2011) (). Because Plaintiffs' Motion was made within twenty-eight days of the Court's Order, the Court will review Plaintiffs' Motion as one for reconsideration under Rule 59(e).3 See Mahone v. Ray, 326 F.3d 1176, 1178 n.1 (11th Cir. 2003).
Reconsideration is only appropriate where controlling law has changed or new evidence has become available, or where reconsideration is necessary to correct a clear error or prevent manifest injustice. Delaware Valley Floral Grp., Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374, 1383 (Fed. Cir. 2010). "A motion for reconsideration cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (citation and quotation omitted). "[W]here a party attempts to introduce previously unsubmitted evidence on a motion to reconsider, the court should not grant the motion absent some showing that the evidence was not available during the pendency of the motion." Shuford v. Fid. Nat'l Prop. & Cas. Ins. Co., 508 F.3d 1337,1345 (11th Cir. 2007) (citation and quotation omitted). Indeed, "a reconsideration of a previous order is an extraordinary remedy to be employed sparingly." Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994) (internal citations omitted). Here, Plaintiffs fail to offer newly available evidence; the controlling law has not changed; the Court finds no mistake, inadvertence, surprise, or excusable neglect; and there is no clear error or manifest injustice in the Court's Order or any other reason to justify the relief requested.
While Plaintiffs cite to "new" evidence in the form of deposition testimony about a settlement agreement in one of their arguments for reconsideration (Motion at 12), the evidence needed for Plaintiffs' argument was in existence years before the Court's Order. (Docs. 24.17 and 169.1). In fact, Plaintiffs relied on this evidence in framing other arguments in their motion for summary judgment. (Doc. 169 at 2 n.1). While Plaintiffs argue this evidence needed to be explored more fully before they could fully brief their argument as to allocation, Plaintiffs had several options available to them including seeking to postpone a ruling on summary judgment until they could develop more evidence through deposition testimony. Instead, Plaintiffs presented no argument as to allocation in either their Motion for Summary Judgment or their responses in opposition. It would be inappropriate for the Court to consider Plaintiffs' argument now. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009).
Amerisure seeks to establish that Landmark is the primary insurer responsible for paying for damages in connection with the Window System. (Doc. 247 at 11).4 Landmark responds by claiming that it never had the duty to defend anyone and that property damage as contemplated by its policies in light of Georgia law never occurred. (Doc. 258 at 1-2). The Court previously explained that Landmark had a duty to defend Auchter in the underlying action and that Landmark's role is primary to that of Amerisure. (See Doc. 267 at 28). For the reasons explained in its previous Order (Doc. 216) and because Landmark failed to present anything that undermines the Court's previous Order, Landmark has a duty to indemnify Arch for the costs to repair the Window System. For the reasons explained below, the Court also finds that the undisputed evidence establishes both an occurrence and property damage such that coverage pursuant to Landmark's policies is invoked. This coverage requires Landmark to indemnify Arch for an amount up to Landmark's policy limits.
Landmark argues that an extrinsic fact to the Complaint in the underlying case demonstrates that it had no duty to defend its insureds, TSG and Auchter. (Doc. 249 at 1-2). Landmark goes on to conclude that because it had no duty to defend its insureds,it also has no duty to indemnify others for damages caused by TSG or Auchter. Id. at 2. Landmark cites to the December 25, 2006 water intrusion event that was paid by Auchter's risk insurer Zurich. Id. at 10. Landmark's argument is that because the water intrusion event was the only one implicating the windows as the cause of the water intrusion and because Zurich paid that claim, there is nothing left that could support a claim that Landmark had a duty defend its insureds. Id. at 10-11. Without a duty to defend, Landmark claims it has no...
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