Colo. Cas. Ins. Co. v. Brock USA LLC, Case No. 11-cv-02527-DME-KMT
Decision Date | 28 August 2013 |
Docket Number | Case No. 11-cv-02527-DME-KMT |
Parties | COLORADO CASUALTY INSURANCE COMPANY, Plaintiff, v. BROCK USA LLC, Defendant. |
Court | United States District Courts. 10th Circuit. United States District Court of Colorado |
ORDER DENYING BROCK USA LLC'S MOTION FOR RECONSIDERATION
Before the Court is a Motion for Reconsideration ("Motion") (Doc. 83), filed by Defendant Brock USA LLC ("Brock") in response to the Court's order granting summary judgment to Plaintiff Colorado Casualty Insurance Company ("Colorado Casualty") (Doc. 79). Although the Court previously indicated to the parties that it anticipated a hearing would be necessary to resolve the issues Brock raises in its Motion, on further consideration, the Court has determined that a hearing would not materially assist it in resolving the dispute. For the reasons discussed below, the Court DENIES Brock's Motion.
The Court's Order Granting Summary Judgment on Plaintiff's Claim and on Two of Three of Defendant's Counterclaims (the "Order") was a non-final ruling because it did not dispose of all of Brock's counterclaims. See Rodeman v. Foster, 767 F. Supp. 2d 1176, 1188 (D. Colo. 2011). When addressing a motion for reconsideration in this procedural posture, the Court is "not bound by the strict standards for altering or amending a judgment encompassed in Federal Rules of Civil Procedure 59(e) and 60(b)." Id. (quoting Fye v. Okla Corp. Comm'n, 516 F.3d 1217, 1224 n. 2 (10th Cir. 2008)); see also Fed. R. Civ. P. 54(b) (). Instead, Brock's Motion "invok[es] the district court's general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment." Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991).
Nevertheless, even in the interlocutory-order context, "[a] party's failure to present his strongest case in the first instance does not entitle him to a second chance in the form of a motion [for reconsideration]." Renfro v. City of Emporia, Kan., 732 F. Supp. 1116, 1117 (D. Kan. 1990) (internal quotation marks omitted). Indeed, although judges are "not necessarily required to do so," they commonly circumscribe "their broad discretion to revisit interlocutory orders . . . by incorporating . . . analyses" from Rules 59 and 60 and the law of the case doctrine. United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, No. 06-CV-00037-PAB-CBS, 2010 WL 420046, at *3 (D. Colo. Feb. 1, 2010)(unreported), aff'd, 633 F.3d 951 (10th Cir. 2011); accord Beat v. United States, 08-1267-JTM, 2011 WL 1375290, at *7 (D. Kan. Apr. 12, 2011) (unreported) (same).
Mindful of these principles, this Court will not alter its previous Order unless "new evidence or legal authority has emerged or . . . the prior ruling was clearly in error." Rodeman, 767 F. Supp. 2d at 1189; accord Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) ( ).
In its earlier Order, this Court ruled (1) that in the underlying civil action between the City of Coquitlam, British Columbia (the "City") and Brock, et. al (the "Athletica Action"), the City's allegations in the final three amended versions of its complaint (the "Complaint") potentially stated a claim that Brock was liable for "property damage" caused by an "occurrence" as those terms are defined under four materially identical commercial general liability ("CGL") policies (the "Policy") that Colorado Casualty issued to Brock; and (2) that standing alone, those allegations would have been sufficient to trigger Colorado Casualty's duty to defend Brock in the Athletica Action; but (3) that the "Products-Completed Operations Hazard Exclusion" (the "PCOH Exclusion" or "Exclusion") applied to bar coverage, and so Colorado Casualty had no duty to defend Brock in the Athletica Action.
In its Motion, Brock advances two arguments in support of its claim that the Court erred when it concluded that the PCOH Exclusion obviated coverage in this case. First, Brock argues that "the pleadings contain allegations that Brock was involved in the installation of the Brockpad," and that "such allegations, coupled with allegations that the damage occurred prior to the field's completion, trigger the exception to the Products Completed Operations Hazard Exclusion for 'work that has not yet been completed or abandoned.'" Doc. 83 at 2. Second, Brock claims that "the real property exception to the definition of 'your product' applies and prevents coverage from being defeated by the Products Completed Operations Hazard Exclusion." Id. The Court addresses each argument in turn.
Order at 14. Brock now argues that in addition to alleging "property damage" arising out of "your product," the Complaint "contains allegations that Brock was involved in the installation of the Brockpad at Percy Perry Field, not merely for providing a defective product." Doc. 83 at 5 (emphasis added). Therefore, Brock claims, the Complaint alleged "property damage" arising out of "[your] work" as "the project was nearing completion," and the "Court [was] obligated to consider these allegations in determining whether Colorado Casualty had a duty to defend." Id. at 6 (emphasis added).
Regardless of any potential merit to Brock's argument that the Complaint alleged "property damage" arising out of "your work" that triggered the exception restoring coverage for "[w]ork that has not yet been completed," Brock never raised such a claim before the Court issued its Order, and so the Court declines to consider it now. See Servants of Paraclete, 204 F.3d at 1012 ( ). Indeed, while it was Colorado Casualty's "heavy burden" to "establish that the allegations in the complaint are solely and entirely within the exclusions in the insurance policy," Hecla Mining Co. v. N.H. Ins. Co., 811 P.2d 1083, 1089-90 (Colo. 1991), that burden did not absolve Brock of the responsibility to refute Colorado Casualty's viable arguments that the Exclusion obviated coverage. To rule otherwise would effectively place the onus on the Court to imagine scenarios that might fall outside of the exclusion to coverage that Colorado Casualty invoked. And "[i]t is not this court's task to comb through" the Policy and the Complaint "in an effort . . . to construct Plaintiff's arguments for him." See Barcikowski v. Sun Microsystems, Inc., 420 F. Supp. 2d 1163, 1179 (D. Colo. 2006); accord Mitchell v. City of Moore, 218 F.3d 1190, 1199 (10th Cir. 2000) ().
Brock claims that it did argue, "at pages 29-30 of its Consolidated Reply," that "th[e] exception [for 'work that has not yet been completed'] applied" to restore coverage in this case. Doc. 83 at 6 n.4; accord Doc. 89 at 5. To reiterate, where the complaint alleges "property damage" arising out of "your product" or "your work" and occurring away from "premises you own or rent," there are two exceptions to the Exclusion which, if applicable, result in coverage: First, coverage applies where the property damage alleged arises out of "your product," and "your product" is still in "your physical possession"; and second, coverage applies where the property damage alleged arises outof "your work," and "your work" is "[w]ork that has not yet been completed." Doc. 8-4 at 30, Sec. V, ¶ 16(a).
Based on the context in which Brock's claim appeared, however, the Court reasonably understood Brock's argument to be that even if the Court determined that the Brockpad qualified as "your product," the exception for "[w]ork that has not yet been completed" applied to...
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