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Mkb Constructors v. American Zurich Insurance Co.

United States District Court, W.D. Washington, Seattle

October 2, 2014



JAMES L. ROBART, District Judge.


Before the court is MKB Constructors' ("MKB") motion for reconsideration (Mot. Dkt. # 130)) of the court's September 29, 2014, order excluding MKB's use at trial of a supplemental damages computation that MKB did not disclose until after the discovery cutoff (Order (Dkt. # 129)). The court has considered the motion, the record, and the applicable law. Being fully advised, the court DENIES MKB's motion for reconsideration.


In a December 28, 2012, letter to Defendant American Zurich Insurance Company ("American Zurich"), MKB asserted a claim under its Builders Risk policy for the following specific items:

(7/22/14 Videa Decl. (Dkt. # 94) Ex. 40 at 2; 7/22/14 Mullenix Decl. (Dkt. # 92) Ex. 32 at 2.) With respect to the $669, 508.99 claimed for additional foundational materials, MKB originally calculated "that 4, 773 tons of extra [gravel] fill, beyond plan quantities, had cost them that amount of money." ( See 8/27/14 Videa Decl. (Dkt. # 115) Ex. 10 (MKB Supp. Resp. to 1st Int.) at 8.)

In its May 31, 2013, Initial Disclosures, MKB identified the same costs as those listed in its December 28, 2012, letter. (MKB Initial Disclosures (Dkt. # 115-6) at 5, 8 (Ex. A), 9 (Ex. C).) During the course of discovery, MKB reconfirmed the foregoing damages computation at least twice. (MKB Resp. to 1st Int. (Dkt. # 115-6) at 15 ("... MKB has summarized and provided backup documentation for these costs before for American Zurich in MKB's initial disclosures and its December 28, 2012, claim submission...."); see also 2/18/14 Jensen Dep. (Dkt. # 115-7) at 35:3-5.)

On June 5, 2014, MKB timely disclosed that the amount of earth settlement it intended to prove at trial was equivalent to "9, 869 tons of [gravel] fill." (MKB Resp. to 3d Int. (Dkt. # 106-4) at 61-62.) Nowhere in this disclosure, however, does MKB indicate that its original damages computation had changed based on this new amount of alleged settlement. ( See id. )

MKB did not supplement its damages computation until July 17, 2014, more than three weeks following the discovery cutoff and just five days before the dispositive motions deadline. (8/27/14 Videa Decl. Ex. 10 (MKB Supp. Resp. to 1st Int.) at 7-9.) At that time, MKB disclosed that it intended to assert a damages claim for $1, 384, 324.63. ( Id. ) The relationship between MKB's original damages computation and its revised computation was never clear in its discovery responses or in its original briefing in opposition to American Zurich's motion. ( See Order at 6-9.) Nevertheless, MKB clarifies in its present motion for reconsideration that "the new calculation reduces the combined $1, 436, 419 and $669, 509 amounts from the December 28 claims letter to a smaller claim for approximately $1.3 million." (Mot. at 2.)

On July 22, 2014, both MKB and American Zurich filed motions for summary judgment. (MKB SJ Mot. (Dkt. # 91); AZ SJ Mot. (Dkt. # 93).) American Zurich moved for summary judgment on each category of damages listed in MKB's original damages computation. ( See AZ SJ Mot. at 12-18.) The court granted American Zurich's motion with respect to the $1, 436, 419 in withheld contract payments because undisputed evidence confirmed that MKB ultimately had received this amount from the owner of the project covered by the Builders Risk policy. (9/25/15 Order (Dkt. # 128) at 16-27.)

In the meantime, on August 27, 2014, American Zurich moved to exclude use of MKB's revised damages computation at trial on grounds that MKB had not timely disclosed it. (AZ Mot. (Dkt. # 115).) On September 29, 2014, the court granted MKB's motion and pursuant to Federal Rule of Civil Procedure 37(c)(1) ordered that MKB is not allowed to use its untimely supplemental damages computation at trial. ( See generally Order.) MKB now moves for reconsideration of that order. ( See generally Mot.)


Pursuant to the court's Local Rules, "[m]otions for reconsideration are disfavored." Local Rules W.D. Wash. LCR 7(h)(1). The court will ordinarily deny such motions in the absence of (1) "a showing of manifest error in the prior ruling" or (2) "a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence." Id. MKB has not brought to the court's attention any new facts or legal authority that it could not have brought to the court's attention earlier and so the ...

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