United States District Court, W.D. Washington, Tacoma
ORDER ON MOTIONS FOR RECONSIDERATION [DKT. #S 210,
211, 214, 216, 219, AND 220]
B. Leighton United States District Judge
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
Association claims that each is a re-hash of already-rejected
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.
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).
The Court's Order Denying the Insurers' Motions [Dkt.
St. Paul [Dkt. #210]
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.
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.
efficient proximate cause of the Association's loss is
question for the jury, and the Motion for Reconsideration on
this issue is DENIED.
Fireman's Fund [Dkt. #211]
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.
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.