Atlantic Specialty Insurance Company v. Mr. Charlie Adventures, LLC et al

Filing 89

ORDER DENYING Dfts' 78 Motion to Alter or Amend as set out. Signed by Judge Callie V. S. Granade on 5/5/2015. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ATLANTIC SPECIALTY
INSURANCE COMPANY,
Plaintiff,
vs.
MR. CHARLIE ADVENTURES,
LLC and KIM P. KORNEGAY,
Defendants.

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) CIVIL ACTION NO. 13-458-CG-N
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ORDER

This matter is before the court on Defendants’ motion to alter or amend
pursuant to FED. R. CIV. PROC. 59(e) (Doc. 78), Plaintiff’s opposition (Doc. 83), and
Defendants’ reply (Doc. 84). For the reasons stated below, Defendants’ motion to
alter or amend is due to be denied.
BACKGROUND
This case involves an insurance claim for damage to Defendants’ yacht, the
“Mr. Charlie,” and its contents by a fire that occurred on March 3, 2013. Plaintiff,
Atlantic Specialty Insurance Company (“Atlantic”) filed its complaint seeking a
declaration that it does not owe coverage for the fire and Defendants asserted
counterclaims for breach of contract and bad faith. (Docs. 1, 16).
Atlantic’s experts, Guy Plaisance and Gary Jones, concluded that the fire
originated in the engine compartment in the vicinity of the aft end of the starboard

engine and resulted from the seawater intake screen for the starboard strainer
being restricted by marine growth. (Docs. 34-2, 35-6). Atlantic denied the insurance
claim based on the reports of Jones and Plaisance. Atlantic concluded that coverage
was excluded by the policy because the loss results from “marine life” and/or
Defendants’ “failure to maintain the covered yacht in good condition and repair.”
Defendants moved to exclude the opinions of Guy Plaisance and Gary Jones
under Rules 403 and 702. (Docs. 34 & 35). This Court granted Defendants’ motions
to exclude, finding that Plaisance and Jones’ determination of the cause of the fire
did not stem from a reliable methodology, sufficient factual basis, and reliable
application of the methodology to the facts. (Doc. 75). The Court found, after
reviewing Mr. Plaisance’s qualifications, that he had sufficient experience to offer
opinion testimony on the cause and origin of the fire, (Doc. 75, p. 6), but that some
of the data Plaisance relied upon was inaccurate or unreliable and he was unsure
where some of his information came from.1 As such, the Court found that Plaisance
had failed to fully support his conclusion that the fire was caused by the screen
being occluded by marine growth. (Doc. 75, p. 10). Because Jones relied on the
conclusions of Plaisance and the information Plaisance relied upon and did not

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For instance, Plaisance confused data from one water intake screen for another,

relied on opinions of an employee for a company that manufactures the screens
without knowing the employee’s qualifications, relied on calculations using data
from a different engine, and was not sure who told him that the exhaust gas could
get hot enough to burn the hose and gas pipe without overheating the engine.
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complete additional inspections or tests that might have proved or disproved his
theory, Jones’ opinion was also found to be unreliable. (Doc. 75, pp. 12-13).
On November 7, 2014, this Court granted summary judgment in favor of
Defendants on their claim for breach of contract, but granted summary judgment in
favor of Atlantic as to Defendants’ counterclaim for bad faith. (Doc. 76).
Specifically, the Court found that because the opinions of Atlantic’s experts had
been excluded as unreliable, Atlantic had no reliable evidence as to the cause of the
fire and could not support its contention that the cause of the fire was excluded by
the policy of insurance. (Doc. 76, p. 9). As to Defendants’ bad faith claim, the Court
discussed the elements of such a claim and found that Defendants’ claim failed
because Defendants failed to show that those elements were met. The Court
explained that the evidence showed that Atlantic had an arguable reason to deny
the claim and there was no evidence that Atlantic knew there was no arguable
reason. The Court reasoned as follows:
Atlantic reports that it diligently investigated the claim and relied on
the opinions of its experts, Guy Plaisance and Gary Jones. Although
this court has now excluded those opinions, there is no evidence
Atlantic knew that the opinions should not be relied upon. “To defeat a
bad faith claim, the defendant does not have to show that its reason for
denial was correct, only that it was arguable.” Liberty Nat. Life Ins.
Co. v. Allen, 699 So.2d 138, 143 (Ala. 1997). Accordingly, at the time of
the denial Atlantic appears to have had an arguable reason to deny the
claim.
(Doc. 76, p. 10). The Court also stated that “there is no evidence that Atlantic or its
claim agents had any reason to disbelieve the experts when they ultimately opined
that the cause of the fire was marine growth on the screens.” (Doc. 76, p. 15). The

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Court also discussed at length three cases relied upon by Defendants to support
their contention that Atlantic could not rely on its expert reports as an arguable
reason for denial: White v. State Farm & Cas. Co., 953 So.2d 340, 350 (Ala. 2006);
Alfa Mut. Fire Ins. Co. v. Thomas, 738 So.2d 815, 822-23 (Ala. 1999); and Livingston
v. Auto Owners Ins. Co., 582 So.2d 1038, 1042-43 (Ala. 1991). (Doc. 76, pp. 10-14).
This Court found that these three cases did not apply to this case.
DISCUSSION
Defendants move to alter or amend this Court’s Order of November 7, 2014,
granting summary judgment in favor of Atlantic as to Defendants’ counterclaim for
bad faith (Doc. 76). Specifically, Defendants request this Court to reconsider its
interpretation of the law of bad faith and the evidentiary record because Defendants
contend that the record provides substantial evidence that Atlantic knew its
experts’ opinions should not have been relied upon, that Atlantic had reason to
disbelieve the opinions of the experts, and that Atlantic knew there was no reason
to deny the claim.
“’In the interests of finality and conservation of scarce judicial resources,
reconsideration of an order is an extraordinary remedy and is employed sparingly.’”
Garrett v. Stanton, 2010 WL 320492, *2 (S.D. Ala. 2010) (quoting Gougler v. Sirius
Products, Inc., 370 F.Supp.2d 1185, 1189 (S.D. Ala. 2005); see also Spellman v.
Haley, 2004 WL 866837, *2 (M.D. Ala. Feb. 22, 2002) (“litigants should not use
motions to reconsider as a knee-jerk reaction to an adverse ruling”). “A motion to
reconsider is not a vehicle ‘to relitigate old matters, or to raise arguments or present
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evidence that could have been raised prior to entry of judgment.’” Id. (quoting
Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S.Ct. 2605, 2617 n. 5, 171 L.Ed.2d
570 (2008). “It is… improper to utilize a motion to reconsider to ask a district court
to rethink a decision once made, merely because a litigant disagrees” because
“[i]magine how a district court’s workload would multiply if it was obliged to rule
twice on the same arguments by the same party upon request.” Garrett, 2010 WL
320492 at *2 n. 1.
Defendants move for reconsideration under Rule 59(e). However, because
this court’s order granting summary judgment is not a final order or judgment, the
decision whether to reconsider the order must be analyzed under the stricter
provision of 60(b), rather than 59(e). See FED. R. CIV. P. 59(e); Bayshore Ford Truck
Sales, Inc., 471 F.3d 1233, 1260–61 (11th Cir. 2006) (grant of partial summary
judgment is an interlocutory order); Toole v. Baxter Healthcare Corp., 235 F.3d
1307, 1315 (11th Cir. 2000) (an interlocutory order is not subject to the limitations
of Rule 59). Federal Rule of Civil Procedure 60(b) provides that a court may relieve
a party from a final judgment or order for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise
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vacated, or it is no longer equitable that the judgment should have
prospective application; or
(6) any other reason justifying relief from the operation of the
judgment.
Generally, a “motion to reconsider is only available when a party presents the
court with evidence of an intervening change in controlling law, the availability of
new evidence, or the need to correct clear error or manifest injustice.” Gipson v.
Mattox, 511 F. Supp. 2d 1182, 1185 (S.D. Ala. 2007). The only provisions of Rule
60(b) under which the court can determine that Defendant could be seeking
reconsideration are 60(b)(1), and 60(b)(6).
A. Rule 60(b)(1)
Rule 60(b)(1) permits a court to relieve a party from a final judgment, order
or proceeding for “mistake, inadvertence, surprise, or excusable neglect.” Rule
60(b)(1) can be used “to permit the district court to reconsider and correct its own
errors, particularly if they are of an obvious nature amounting to little more than
clerical errors.” Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir. 1977). “[S]ome courts
have applied 60(b)(1) to theories of mistake of law when the motion was filed before
the time to file a notice of appeal had expired.” Wendy’s Intern., Inc. v. Nu-Cape
Const., Inc., 169 F.R.D. 680, 687 (M.D. Fla. 1996) (citing Morris v. Adams-Millis
Corp., 758 F.2d 1352, 1358 (10th Cir. 1985)). “However such relief is available only
for obvious errors of law and limited to ‘perfunctory correction.” Id. (citing Alvestad
v. Monsanto Co., 671 F.2d 908, 912-13 (5th Cir.), cert. denied, 459 U.S. 1070 (1982));
see also Nisson v. Lundy, 975 F.2d 802, 806 (11th Cir. 1992) (“where a district

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court’s mistake was ‘clear on the record’ and involved a ‘plain misconstruction of the
law..., compelling policies of basic fairness and equity reflected by 60(b)’ may
mandate amendment to ‘conform its judgment to the law.’” (citations omitted)). In
this case, the court finds that there were not any facially obvious errors of law in
the November 7, 2014 order. For the most part, Defendants’ motion reiterates the
arguments previously raised in support of their motion for summary judgment and
in response to Atlantic’s motion for summary judgment. Defendants assert that
Atlantic had no legitimate or arguable reason for denying the claim and thus, that
Atlantic was not entitled to summary judgment on Defendants’ claim of bad faith.
Defendants assert that to overcome a motion for summary judgment they need only
show that they are entitled to a directed verdict on the underlying claim for breach
of contract.
In their briefs submitted on summary judgment Defendants cited three cases
to support their contention that Atlantic cannot rely on its expert reports as an
arguable reason for denial: White v. State Farm & Cas. Co., 953 So.2d 340, 350
(Ala. 2006); Alfa Mut. Fire Ins. Co. v. Thomas, 738 So.2d 815, 822-23 (Ala. 1999);
and Livingston v. Auto Owners Ins. Co., 582 So.2d 1038, 1042-43 (Ala. 1991). This
court found that none of these cases applied to this case. Defendants now cite
several more cases to support their directed verdict argument: Nat. Sav. Life Ins.
Co. v. Dutton, 419 So.2d 1357, (Ala.1982); Lord v. Allstate Ins. Co., 2014 WL
4686441 (N.D. Ala. Sept. 17, 2014); Intercontinental Life Ins. v. Lindblom, 571
So.2d 1092 (Ala. 1990), vacated on other grounds, 499 U.S. 956 (1991); Continental

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Assur. Co. v. Kountz, 461 So.2d 802 (Ala. 1984); and National Sec. Fire & Cas.v.
Coshatt, 690 So.2d 391 (Ala. Civ. App. 1996). “A motion for reconsideration should
not be used as a vehicle to present authorities available at the time of the first
decision or to reiterate arguments previously made: [It is an improper use] of the
motion to reconsider to ask the Court to rethink what the Court ... already thought
through—rightly or wrongly[.]” Z.K. Marine Inc. v. M/V Archigetis, 808 F.Supp.
1561, 1563 (S.D. Fla. 1992) (citations omitted). Defendants cannot rely on cases
that do not represent an intervening change in controlling law and that could have
been cited in their prior opposition to summary judgment. Mantilla v. U.S. Dept. of
State, 2013 WL 424433, *4 (S.D. Fla. Feb. 1, 2013). As this court has stated
previously: a motion to reconsider “may not be used as a vehicle to inject new
arguments into the underlying motion, or to submit evidence previously available
but not properly presented on the underlying motion.” Bell v. Integrated Health
Services, Inc. 2007 WL 433561, *1 (S.D. Ala. Feb. 5, 2007) (citation omitted). The
additional case law submitted by Defendants does not demonstrate that summary
judgment on the bad faith claim was an obvious error that requires perfunctory
correction. Moreover, the court is not persuaded that if Defendants had cited the
additional cases at the summary judgment stage that a different result would have
been reached.
While the newly cited cases all generally discuss the requirements for
establishing a prima facie case of bad faith refusal to pay, the facts of those cases
are not analogous to the instant case. Defendants’ arguments overstate the

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significance of a prima facie case. Establishing a prima facie case does not
necessarily mean that the claim survives summary judgment. A “prima facie case”
refers to “[t]he establishment of a legally required rebuttable presumption.” Black’s
Law Dictionary 1209 (7th ed. 1999). It is generally the minimum that must be
shown for a claim to survive summary judgment. But, once met, the presumption
merely shifts the burden of production or persuasion to the opposing party. The
presumption can sometimes be overcome by the opposing party.
In the instant case, the court found that Defendants were entitled to
judgment on their breach of contract claim. The elements for a breach of contract
claim are: “(1) the existence of a valid contract binding the parties in the action, (2)
[plaintiff’s] own performance under that contract, (3) the defendant’s
nonperformance, and (4) damages.” Southern Med. Health Sys., Inc. v. Vaughn, 669
So.2d 98, 99 (Ala. 1995) (citations omitted). These four elements must generally be
established to maintain a claim for bad faith denial. However, the tort of bad-faith
refusal to pay a claim has additional elements:
(a) a breach of insurance contract, (b) the refusal to pay claim, (c) the
absence of arguable reason, (d) the insurer's knowledge of such
absence—with a conditional fifth element: “(e) if the intentional failure
to determine the existence of a lawful basis is relied upon, the plaintiff
must prove the insurer's intentional failure to determine whether
there is a legitimate or arguable reason to refuse to pay the claim.”
EMCASCO Ins. Co. v. Knight, 2014 WL 5020044, *15 (N.D. Ala. Oct. 7, 2014)
(quoting National Sec. Fire & Cas. Co. v. Bowen, 417 So.2d 179, 183 (Ala. 1982)).
The first two elements of a bad faith claim are necessarily met when the insured is
entitled to judgment on a breach of contract claim. However, judgment on a breach
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of contract claim does not demonstrate that the insurer had no arguable reason or
knowledge that there was no arguable reason at the time it made the decision to
deny the claim. Nor does it demonstrate that the insurer intentionally failed to
investigate whether there was a legitimate reason to deny the claim.
Atlantic proffered that it had an arguable reason to deny the claim because it
relied on the opinions of hired experts. The experts grappled with causation issues
throughout their investigation, but ultimately arrived at their conclusions and
advised Atlantic. This court found that the experts had the experience and
background to give expert opinions on the cause and origin of the fire and there was
no evidence that Atlantic knew or should have known that those opinions should
not have been relied upon. Accordingly, the presumption was overcome, and there
being no evidence to show the absence of arguable reason which is a required
element of a bad faith claim, summary judgment was proper for Atlantic.
The Dutton case cited by Defendants found that “[o]rdinarily, if the evidence
produced by either side creates a fact issue with regard to the validity of the
[insurance] claim and, thus, the legitimacy of the denial thereof, the [bad faith] tort
claim must fail and should not be submitted to the jury.” Dutton, 419 So.2d at 1362.
The Dutton court stated that to make out a prima facie case of bad faith refusal to
pay, the insured must show that he is entitled to a directed verdict on the contract
claim. Id. The court also stated that “[w]hether an insurance company is justified in
denying a claim under a policy must be judged by what was before it at the time the
decision is made.” Id. Thus, although this Court found that Defendants have

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demonstrated their breach of contract claim as a matter of law, the Dutton holding
merely shows that such facts are necessary to establish a prima facie case of bad
faith refusal to pay. Where, as here, the insurance company had an arguable
reason to deny the claim at the time of the decision, the bad faith claim will still
fail.
The Lord case generally discussed the directed verdict standard. The court
stated that the plaintiff could overcome summary judgment for the insurer on a
“normal” bad faith claim only by showing that he is entitled to judgment as a
matter of law on the underlying breach of contract claim. Lord, 2014 WL 4686441 at
*10. The Lord court stated that bad faith could also exist “where the insurer
intentionally or recklessly fails to properly investigate whether a claim is covered.”
Id. The court further stated that in such reckless bad faith claims, negligent failure
to investigate is not enough; there must be evidence from which a jury can infer an
intentional or reckless failure to properly investigate. Id. at *11. However, the
parties in Lord did not move for summary judgment of the contract claim. Id. at *10.
The court ultimately found that there was an issue of fact regarding when the
insurance company denied the insurance claim and whether it had a reasonably
legitimate or arguable basis for denying it at the time of the denial. In Lord, the
insurance company had agreed to pay for damage sustained to the insured’s house
from a tornado, but denied a portion of the claim on the basis that the structural
damage was not caused by the tornado, but by settling. The insurance company
had two adjustors inspect the damaged house who both found that the damage in

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question was not caused by wind. Id. at *19. However, the adjustors acknowledged
that an engineer should inspect the house and offer an opinion and requested that
an engineer be assigned to the claim. Id. The insurance company refused to hire an
engineer. Id. There was also evidence provided to the insurer that prior to the
tornado the house was in good condition and did not have any of the structural
damage that was obvious after the storm. Id. Thus, the court found that there was
a question of fact whether the information possessed by the insurance company
constituted a reasonably legitimate or arguable basis for refusing to pay for the
structural damage. In the instant case, unlike the Lord case, Atlantic hired experts
to determine the cause of the damage. At the time Atlantic denied the contract
claim it had the expert reports of Plaisance and Jones. The experts had concluded
that the fire resulted from the seawater intake screen for the starboard strainer
being restricted by marine growth. Unlike the Lord case, there is no evidence here
that Atlantic or its claim agents had any reason to disbelieve the experts at that
time. There were questions about the cause of the fire during the investigation, but
the experts ultimately concluded that the cause of the fire was marine growth on
the intake screen. Although this Court later excluded those opinions, there is no
evidence that Atlantic knew or should have known that they were unreliable at the
time it decided to deny the insurance claim.
In Lindblom, the Supreme Court of Alabama pointed to case law that held
that a prima facie case of “normal” bad faith refusal to pay an insurance claim
requires that “the proof offered must show that the plaintiff is entitled to a directed

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verdict on the contract claim.” 571 So.2d at 1097. The Lindblom court, however,
found that in extraordinary cases, where the evidence showed that the insurer had
intentionally failed to determine whether there was a lawful basis for denying the
claim, that showing could support an inference of bad faith. Id. at 1098. The court
concluded that the insurance company’s effort to investigate the claim was “wholly
insufficient to amount to an investigation into the basis for the denial of payments.”
Id. at 1099. The “intentional failure to investigate whether there was a valid reason
to deny the claim amount[ed] to an intentional failure to determine whether there
was any lawful basis for denying the claim and creat[ed] the inference of bad faith.”
Id. As such, the court found that even if the insured was not entitled to a directed
verdict, the insured could still maintain her bad faith claim. Id. The Lindblom court
concluded that the directed verdict doctrine did not apply to that case. Id. In the
instant case, unlike the Lindblom case, Atlantic hired two experts to investigate the
claim. The Court found that these experts had the experience and background to
give expert opinions on the cause and origin of the fire. Because the evidence shows
that there were problems with the experts’ investigation, their opinions were struck
by this Court. However, the evidence does not show that Atlantic knew they should
not rely on the experts’ opinions or that Atlantic intentionally failed to investigate
the claim.
The Kountz court found that the evidence at trial showed that the plaintiff
was entitled to a directed verdict on her breach of contract claim. 461 So.2d at 807.
The Kountz court further found that there was sufficient evidence that the

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insurance company had failed to determine whether there was a lawful basis for
denying the plaintiff’s claim. Id. at 808. The Plaintiff in Kountz had received a blow
to the mouth during a robbery attempt. Id. at 803. The plaintiff’s dentist
determined that she had chronic periodontal disease, but that eight of the plaintiff’s
teeth needed to be extracted because of the blow to plaintiff’s mouth. Id. at 804. The
insurance company denied plaintiff’s claim for coverage on the basis that there was
no evidence of an accidental injury and the hospital record listed “dental caries, and
gum disorder” as the plaintiff’s ailment. Id. at 808. However, the insurance
company had been provided with the police report that described the assault and
plaintiff’s dentist had provided a form statement that the plaintiff had undergone
oral surgery due to a mugging. Id. The insurance company did not contact
plaintiff’s dentist even though the dentist’s statement invited the insurance
company to contact him if more information was needed. The insurance company
also did not have anyone with any dental expertise review the claim. Id. Unlike the
insurance company in Kountz, Atlantic hired and relied on two experts to determine
the cause of the fire in question. This case, like the above cases cited by
Defendants, is simply not analogous to the instant case.
Lastly, Coshatt involved a home that was damaged by a snowstorm. 690
So.2d at 392. An agent for the insurance company spoke to the homeowners several
times and advised them to make any necessary repairs, which they did. Id. The
insurance agent had discussed the claim with his supervisors and told them that
the claim was due to be paid. Id. An independent adjuster, hired by the insurance

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company, inspected the repairs and recommended payment of the claim. Id.
However, the insurance company denied the claim on the ground that the
homeowners did not allow the insurance company to investigate the cause and
extent of the loss. Id. The court found that the trial court did not err in granting a
directed verdict in favor of the homeowners as to their breach of contract claim. Id.
at 394. The court also found that the trial court had correctly submitted the bad
faith claim to the Jury. The insurance company’s argued that the bad faith claim
should not have been submitted to the jury because the home owners were not
entitled to a directed verdict on their breach of contract claim. Id. at 395. The court
found it was proper to submit the bad faith claim to the jury because the
homeowners were entitled to a directed verdict and because there were a number of
facts to support the inference that the insurance company had actual knowledge
that it had no legitimate basis for denying the claim. Id. In the instant case, unlike
the Coshatt case, Atlantic had an arguable reason for denying the claim and there
is no evidence that at the time it denied the claim that Atlantic knew it had no
legitimate basis to deny the claim.
Thus, even upon a thorough review of the cases cited by Defendants, the
Court is not persuaded that its previous conclusions were in error. At the time
Atlantic denied the claim, it had an arguable reason for doing so. Further, the
undisputed evidence shows that Atlantic investigated the claim. Atlantic hired two
knowledgeable and experienced experts to investigate the cause and origin of the
fire and denied the claim based on the opinions of those experts. Defendants have

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not cited, nor is this Court aware of, any cases that have held that because a court
later excluded an expert’s opinion, the insurer did not have an arguable reason to
deny the claim at the time of the denial. Defendants admit that an insurer can
have a debatable reason to deny a claim based on a debatable legal position that is
later determined to be wrong, but Defendants deny that there are any other
exceptions to the directed verdict rule. (Doc. 78, p. 4 n. 1 citing Safeco Ins. Co. of
America v. Sims, 435 So.2d 1219 (Ala. 1983)). However, the Sims case cited by
Defendants does not hold that such exceptions to the directed verdict rule are
limited to debatable legal positions. The Sims Court stated that “exceptions to the
‘directed verdict’ rule will undoubtedly arise.” Id. at 1225. The court merely offered
an arguable legal position as one example where the insurer could be entitle to
judgment on the bad faith claim even though the insured was entitled to a directed
verdict on the breach of contract claim. As discussed above, the directed verdict
rule provides a presumption and presumptions can be overcome.
Defendants also contend that there is evidence that Atlantic had reason to
doubt the experts’ conclusions. The Court disagrees. There is evidence that the
experts had questions or issues during their investigation concerning the cause of
the fire and that Atlantic was aware of some of the issues. However, questions and
issues are what an investigation normally entails. That is why experts are hired to
investigate and resolve issues. There is no evidence that Atlantic knew that the
experts had made mistakes in their investigation or that the experts’ final opinions
should not be believed. Reliance on the experts’ opinions proved to be a mistake,

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but “[p]roof of mere negligence or mistake is not sufficient to support a claim of bad
faith; there must be a refusal to pay, coupled with a conscious intent to injure.”
Peachtree Cas. Ins. Co., Inc. v. Sharpton, 2001 WL 286919, *5 (M.D. Ala. March 20,
2001) (citation omitted).

B. Rule 60(b)(6)
Under Rule 60(b)(6), a court may grant relief for "any other reason justifying
relief from the operation of judgment." "[R]elief under this clause is an
extraordinary remedy which may be invoked only upon a showing of exceptional
circumstances." Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir.
2001)(quoting Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir.1984)). Even
if a movant can persuade the Court that the circumstances are sufficiently
extraordinary to warrant relief, whether to grant the relief is “a matter for the
district court's sound discretion." Toole v. Baxter Healthcare Corp., 235 F.3d 1307,
1317 (11th Cir. 2000) (quoting Booker v. Singletary, 90 F.3d 440, 442 (11th Cir.
1996)).
In addition, 60(b)(1) and (b)(6) are mutually exclusive. Cavaliere v. Allstate
Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993). “Therefore, a court cannot grant
relief under (b)(6) for any reason which the court could consider under (b)(1). Id.
(quoting Solaroll Shade, 803 F.2d at 1133); see also Tansit Cas. Co. v. Security
Trust Co., 441 F.2d 788, 792 (5th Cir. 1971) (“The reason for relief set forth in Rule
60(b)(1) cannot be the basis for relief under Rule 60(b)(6).”). Because Defendants’

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contentions fit more naturally under Rule 60(b)(1), relief under (b)(6) is unavailable.
See Cavaliere, 996 F.2d at 1115. Furthermore, this Court finds that there are no
exceptional circumstances that warrant relief.
CONCLUSION
For the reasons stated above, Defendants’ motion to alter or amend pursuant
to FED. R. CIV. PROC. 59(e) (Doc. 78), is DENIED.
DONE and ORDERED this 5th day of May, 2015.

/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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