Gulfside, Inc. v. Lexington Ins. Co.
| Decision Date | 22 September 2021 |
| Docket Number | 2:19-cv-851-SPC-MRM |
| Parties | GULFSIDE, INC., Plaintiff, v. LEXINGTON INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Before the Court are the parties' Motions for Reconsideration (Docs. 80; 82) and responses (Docs. 84; 86). This is an insurance case governed by an insurance policy (the “Policy”). Last month, the Court ruled on the parties' cross motions for summary judgment. It granted in part Defendant Lexington Insurance Company's motion and denied Plaintiff Gulfside, Inc.'s motion (the “Order”). Now, the parties each move for reconsideration. The Court grants reconsideration in part.[2]
Reconsideration under Rule 59(e) may be proper to correct “manifest errors of law or fact.” Jenkins v. Anton, 922 F.3d 1257, 1263 (11th Cir. 2019). It may also be appropriate to account for intervening changes in law and newly discovered (or previously unavailable) evidence. Banister v. Davis, 140 S.Ct. 1698, 1703 n.2 (2020). And a 59(e) motion might fit “if there is a need to correct a manifest injustice.” E.g., LLC SPC Stileks v. Rep of Moldova, 985 F.3d 871, 882 (D.C. Cir. 2021). Ultimately, the decision to reconsider “is committed to the sound discretion of the district judge.” United States v. Jim, 891 F.3d 1242, 1252 (11th Cir. 2018) (citation omitted).
Motions for reconsideration are granted sparingly, and they are not chances to “relitigate old matters.” See Grange Mut. Cas. Co. v. Slaughter, 958 F.3d 1050 1059-60 (11th Cir. 2020) (citation omitted). Nor will courts “address new arguments or evidence that the moving party could have raised before the decision issued.” Banister, 140 S.Ct. at 1703. “The burden is upon the movant to establish the extraordinary circumstances supporting reconsideration.” U.S. ex rel. Matej v Health Mgmt. Assocs., 869 F.Supp.2d 1336, 1348 (M.D Fla. 2012) (citation omitted).
To start, the Court tackles the issue on which the parties partially agree. Then, it turns to the other matters.
Both parties contend the Order should have ruled on summary judgment as it related to Gulfside's claim for breach of contract. After further review, the Court agrees-this claim is distinct from Count 1 (addressed below) and not subject to the same post-loss condition analysis. Count 2 alleged Lexington breached the Policy by not paying replacement cost value (“RCV”) after Gulfside repaired its roof.
The parties seemingly agree that to get RCV, Gulfside must first complete repairs. (Doc. 32-1 at 47); Buckley Towers Condo., Inc. v. QBE Ins., 395 F.Supp. 659, 663 (11th Cir. 2010). What's more, they agree Gulfside repaired the roof. (Doc. 68 at 19 ()). The parties, however, dispute when Gulfside notified Lexington of actually completed repairs, along with the amount spent. According to Lexington, repairs were not complete (or notice at least insufficient) until it received documentation in discovery. So Lexington says it could not have been liable for breach at the time of suit. Gulfside disagrees, pointing to paperwork it provided presuit.
Given the briefing, the Court concludes Gulfside is entitled to judgment on Count 2. Lexington seems to concede RCV is due or would be if Gulfside filed a breach claim now. Its only argument is that Gulfside's presuit documentation was not enough to establish completed repairs or the amount spent. Yet repairs were undisputedly underway well before suit. And Gulfside sent Lexington substantial presuit evidence about complete repairs, including invoices and checks for amounts paid. While Lexington says this was not enough to conclude repairs were complete, no part of the Policy suggests Gulfside's notice was insufficient. If Lexington had an issue with the disclosure, it could have sought clarification. But Lexington presents no evidence of its response to the RCV disclosures or demand for more information.
Importantly, the only identified evidence on when repairs actually occurred shows they were presuit (in the summer of 2019). Lexington says repairs weren't complete until 2020 by pointing at a document showing final municipal certification of the roof four months after Gulfside sued. (Doc. 47-1). While this may be evidence of when the city approved the roof repairs, it says nothing about when they occurred.[3] The Policy provides for RCV after “the lost or damaged property is actually repaired or replaced.” (Doc. 32-1 at 47). A municipality need not approve the repairs under the Policy. Nor does it identify any specific documentation Gulfside needed to provide. Likewise, Lexington's argument on a released lien is unavailing. It allows no reasonable inference on when repairs happened. And it doesn't rebut Gulfside's evidence.
What's more, even if repairs were not complete until March 2020, it would mean Gulfside filed Count 2 prematurely (i.e., before breach). Even if the RCV claim were unripe earlier, it isn't anymore. The parties agree Gulfside completed the repairs and now provides evidence to confirm. So under the Policy, RCV is due, and Lexington is now in breach for not paying.
Lexington cites nothing suggesting RCV claims becoming ripe during litigation should be dismissed with prejudice. The only law Lexington cites differs because those insureds never completed repairs. Oriole Gardens Condo Ass'n I v. Aspen Specialty Ins., 875 F.Supp.2d 1379, 1384-85 (S.D. Fla. 2012); Save Money & Retain Temperature, LLC v. Lexington Ins., No. 18-61714-CIV-COHN/SELTZER, 2019 U.S. Dist. LEXIS 79797, at *11-13 (S.D. Fla. Mar. 13, 2019). Here, however, Gulfside finished repairs and now has the right to sue for RCV benefits. See Garden Apartments, Inc. v. Chubb Custom Ins., No. 20-CV-23116-ROSENBERG, 2021 WL 3173251, at *4-5 (S.D. Fla. July 26, 2021) (); Save Money, 2019 U.S. Dist. LEXIS 79797, at *12 & n.4 (); see also Breakwater Commons Ass'n v. Empire Indem. Ins., No. 2:20-cv-31-JLB-NPM, 2021 WL 1214888, at *4 (M.D. Fla. Mar. 31, 2021).
In short, there is no genuine dispute and Gulfside is entitled to judgment on Count 2. So the Court grants each Motion in part. Having resolved that issue, the Court takes the rest of the Motions in turn.
Gulfside moves to reconsider on four other grounds. Before addressing those, it is necessary to emphasize the narrowness of Count 1. This was labelled “Declaratory Judgment Compelling Appraisal.” (Doc. 32 at 5). And it sought an order declaring Lexington must comply with Gulfside's appraisal demand and compelling appraisal (along with any other necessary orders like appointing appraisers and confirming their award) (Doc. 32 at 5-7). All Gulfside wanted in Count 1 was to move forward with the appraisal process. The Order held because Gulfside ignored a condition precedent to suing, it had no right to file a complaint to compel appraisal as it was premature (unripe).
First, Gulfside contends it was error to focus on events after invoking appraisal rather than determine whether appraisal was ripe when invoked. The Order considered and rejected this argument. (Doc. 78 at 5-9 ()). So the Motion is denied on the first basis. Slaughter, 958 F.3d at 1059-60.
Second, Gulfside contends it was error not to find its deposition cured failing to sit for an examination under oath (“EUO”). Gulfside never argued the deposition cured noncompliance. So reconsideration is unnecessary. Banister, 140 S.Ct. at 1703. Even if it were, the Order explained how Florida law treats depositions and EUOs differently. So the Motion is denied on the second basis. Slaughter, 958 F.3d at 1059-60.
Third, Gulfside contends it would be error not to reconsider because Lexington won't schedule an EUO now. Even if it were appropriate to consider post-dismissal facts, Gulfside's delayed offer to sit for the EUO does not affect the Order's conclusion on ripeness. In part, the Court dismissed because Gulfside made no effort to comply with its obligation. Reconsideration is not the time to make new argument, including the tardy EUO bid. How the parties choose to proceed may be relevant to a potentially refiled suit. But it does not impact the holding Gulfside filed Count 1 prematurely and did not even offer to remedy its noncompliance until after dismissal. Gulfside must accept the consequences of its refusal. See S. Home Ins. v. Putnal, 49 So. 922, 932 (Fla. 1909) (). So the Motion is denied on the third basis. Banister, 140 S.Ct. at 1703.
And fourth, Gulfside contends it was error not to hold an evidentiary hearing. To be sure, Florida courts hold evidentiary hearings when there are factual disputes about compliance with post-loss obligations. First Protective Ins. v. Ahern, 278 So.3d 87, 89 (Fla. Dist. Ct. App. 2019). But Gulfside's refusal to sit for an EUO was (and still is) undisputed. Because the Order held that was dispositive, there were no...
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