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Eagle Harbour Condominium Association v. Allstate Insurance Co.

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

May 9, 2017

EAGLE HARBOUR CONDOMINIUM ASSOCIATION, Plaintiff,
v.
ALLSTATE INSURANCE COMPANY, et al., Defendants.

          ORDER ON MOTIONS FOR RECONSIDERATION [DKT. #S 210, 211, 214, 216, 219, AND 220]

          Ronald B. Leighton United States District Judge

         THIS MATTER is before the Court on the following motions: (1) the insurers' Motions for Reconsideration of the Court's Order [Dkt. #200] denying their motions for summary judgment [Dkt. #s 210 (St Paul), 211 (Fireman's Fund), 214 (Commonwealth), and 219 (Eagle West, joining the others)]; and (2) a subset of the defendant insurers' Motions for Reconsideration or Clarification of the Court's Order [Dkt. #201] on Plaintiff Eagle Harbour Condominium Association's motions for summary judgment. [Dkt. #s 216 (St. Paul), 211 (Fireman's Fund), and 220 (Commonwealth)].

         The Association claims that each is a re-hash of already-rejected arguments.

         Motions for reconsideration are disfavored, and will ordinarily be denied unless there is a showing of (a) manifest error in the ruling, or (b) facts or legal authority which could not have been brought to the attention of the Court earlier, through reasonable diligence. See LCR 7(h)(1). Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). “[A] Motion for Reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.” Marlyn Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).

         Neither the Local Civil Rules nor the Federal Rules of Civil Procedure, which allow for a Motion for Reconsideration, provides litigants with a second bite at the apple. A Motion for Reconsideration should not ask a court to rethink what the court has already thought through- rightly or wrongly. See Defenders of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D. Ariz. 1995). Mere disagreement with a previous order is an insufficient basis for reconsideration, and reconsideration may not be based on evidence and legal arguments that could have been presented at the time of the challenged decision. See Haw. Stevedores, Inc. v. HT & T Co., 363 F.Supp.2d 1253, 1269 (D. Haw. 2005). “Whether or not to grant reconsideration is committed to the sound discretion of the court.” Navajo Nation v. Confederated Tribes & Bands of the Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003).

         A. The Court's Order Denying the Insurers' Motions [Dkt. #200].

         1. St. Paul [Dkt. #210]

         St Paul argues first that its motion to dismiss the Association's “collapse” claim against it was not opposed and should have been granted. The Association argues it never made a “collapse” coverage claim against St. Paul and that the Motion for Reconsideration should be denied as moot. The Court agrees. In any event, there is no “collapse” claim against St. Paul. The Motion for Reconsideration on this point is DENIED.

         St. Paul[1] also argues the Court's determination that the efficient proximate cause of the Association's loss was a question of fact for the jury cannot be squared with a case it relied on, Kish v. Ins. Co. of N. Am., 125 Wn.2d 164, 883 P.2d 308 (1994). Kish held (unremarkably) that a policy with a flood exclusion did not cover a flood, even though the insureds had characterized the cause of the inundation damage as “record rainfall.” Here, the Association claims the efficient proximate cause of their loss was (covered) wind-driven rain, not (excluded) deterioration, rot, or inadequate construction. St. Paul argues weather is to rain as deterioration is to flood, in Kish. The Association's claim may be tough to sell to a Pacific Northwest jury, but the distinction is not as plain as it was in Kish. See Windsong v Bankers Standard Cause No. C08 - 0162 JCC (W.D.Wa. 2008), and other cases cited in the Order and in the Association's initial briefing.

         The efficient proximate cause of the Association's loss is question for the jury, and the Motion for Reconsideration on this issue is DENIED.

         2. Fireman's Fund [Dkt. #211]

         Fireman's Fund seeks reconsideration of the Court's Order, describing as “unclear” the issue of whether damages commences at the first occurrence of the type of loss claimed, or each occurrence of loss in a series of multiple losses. It claims that even if some hypothetical loss might be covered under the latter interpretation, the Association has not pointed to any evidence from which a jury could find an instance of a new or identifiable loss commencing during the Fireman's Fund policy. In other words, it argues, there is still no evidence that any loss commenced during the Fireman's Fund policy.

         Fireman's Fund also argues that its “commencement” policy makes it not jointly and severally liable with prior insurers, as a matter of law, and seems to suggest the Court ruled otherwise. The Court denied the Association's motion for summary judgment on its claim that St. Paul is jointly and severally liable for all of the damage at Eagle Harbour [Dkt. #131; denied at Dkt. #200]. It did not determine that St. Paul, or any other insurer, is jointly and severally liable, or that any insurer is liable, at all. There is nothing to reconsider on this point, and the Motion for Reconsideration on it is DENIED.

         3. Commonweal ...


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