Veloz v. Green Tree Servicing LLC

Filing 66

ORDER granting in part and denying in part 63 Motion for Reconsideration. Signed by Judge David G Campbell on 6/13/2014.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Maria Veloz,

No. CV-13-00915-PHX-DGC
Plaintiff,

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v.

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ORDER

Green Tree Servicing LLC,

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Defendant.

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Plaintiff Maria Veloz has filed a motion for reconsideration of the Court’s order

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dated May 29, 2014 (Doc. 61) granting in part and denying in part Defendant’s motion

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for summary judgment (Doc. 49). Doc. 63. Defendant has responded. Doc. 65. For the

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reasons set forth below, the Court will grant the motion in part and deny it in part.

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Courts in this district have identified four circumstances where a motion for

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reconsideration will be granted: (1) the moving party has discovered material differences

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in fact or law from those presented to the Court at the time of its initial decision, and the

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party could not previously have known of the factual or legal differences through the

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exercise of reasonable diligence, (2) material factual events have occurred since the

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Court’s initial decision, (3) there has been a material change in the law since the Court’s

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initial decision, or (4) the moving party makes a convincing showing that the Court failed

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to consider material facts that were presented to the Court at the time of its initial

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decision. See, e.g., Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D.

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581, 586 (D. Ariz. 2003).

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A.

Mold Coverage.

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The Court’s May 29, 2014 order stated that Plaintiff had identified no portion of

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the Mercury policy that provided coverage for mold remediation. Doc. 61 at 4. Plaintiff

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has identified a portion of her controverting statement of facts which she contends the

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Court failed to consider. Specifically, she notes that her controverting statement of facts

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cites to a portion of the Mercury policy that provides coverage for mold remediation and

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living expenses.1 See Doc. 54, ¶ 28. Plaintiff is correct. The Court erred in not

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considering this citation.

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The cited portion of the Mercury policy provides that Mercury will pay for

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remediation of “fungi, other microbes or rot from the covered property” where a “loss

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caused by a Peril Insured Against results in fungi, other microbes or rot[.]” Doc. 50-4 at

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necessary increase in living expense you can incur [s]o that your household can maintain

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its normal standard of living[.]” Id. The policy states that the “most [Mercury] will pay

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under this additional coverage is $5,000.” Id.

The policy further provides that Mercury will pay for “[a]ny reasonable and

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In its reply in support of its motion for summary judgment, Defendant argued that

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Plaintiff cannot rely on the Mercury policy because it was not authenticated and an

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unauthenticated document cannot create an issue of material fact. This argument is

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without merit because the Mercury policy relied on by Plaintiff was submitted by

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Defendant as an exhibit to its motion for summary judgment, clearly suggesting that

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Defendant did not have difficulty with its authentication. See Doc. 50-4.

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In its response to the motion for reconsideration, Defendant argues that Plaintiff

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cannot rely on the mold policy language because the Mercury policy expired in January

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2013. Doc. 65 at 2. But the gravamen of Plaintiff’s claim is that the policy expired

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because Defendant failed to pay the premium as promised. Although it is possible that

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any continuing policy would have had different terms, that mere possibility is not enough

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Plaintiff’s controverting statement of facts cites this provision as appearing on
page 12 of Defendant’s exhibit D. Doc. 54, ¶ 28. Although the cited page is page 12 of
the Mercury policy, it is actually page 17 of Defendant’s exhibit D. See Doc. 50-4 at 17.
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to grant summary judgment.

In ruling on a motion for summary judgment, “[t]he

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evidence of the non-movant is to be believed, and all justifiable inferences are to be

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drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The

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facts to be believed, therefore, are (1) that Plaintiff’s policy provided mold coverage, and

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(2) that the policy was cancelled because Defendant failed to pay the premium.

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Justifiable inferences that may be drawn from these facts include that the policy would

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have remained in place had Defendant paid the premium and would have continued to

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provide mold coverage.

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The Court’s initial order stated that “Plaintiff must show not only that she incurred

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the expenses, but also that the Mercury policy would have covered them.” Doc. 61 at 4.

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Plaintiff submitted with her amended complaint a copy of an estimate from Stratton

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Restoration totaling $47,832.37. See Doc. 33-7. Although Plaintiff does not cite to the

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Stratton estimate in either her statement of facts supporting her motion for summary

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judgment or her controverting statement of facts opposing Defendant’s motion for

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summary judgment, the Stratton estimate does include some expenses related to mold

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testing (id. at 3) and hazardous material remediation (id. at 10). Aside from her affidavit,

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Plaintiff did not submit any evidence of her alleged additional living expenses. Plaintiff’s

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cited evidence is sufficient to create an issue of fact as to whether the Mercury policy

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provided coverage for mold remediation and whether Plaintiff incurred expenses related

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to mold remediation. The Court therefore will deny Defendant’s motion for summary

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judgment as to the issue of mold remediation. Because Plaintiff has not presented

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evidence demonstrating that she incurred additional living or storage expenses, the Court

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will grant summary judgment for the Defendant as to these issues.

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B.

Evidence of Damages.

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Plaintiff’s motion for reconsideration also asks the Court to amend its original

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order to allow “Plaintiff to present evidence on [ ] damages as well.” Doc. 63 at 2. To

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the extent Plaintiff is seeking permission to submit additional evidence of damages, that

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request is denied. Plaintiff was required to submit evidence in response to Defendant’s

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motion for summary judgment. The Court will not allow Plaintiff to submit additional

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evidence without a showing that she could not previously have known of the evidence

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through the exercise of reasonable diligence. See Motorola, Inc., 215 F.R.D. at 586.

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Plaintiff has made no such showing.

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IT IS ORDERED that Plaintiff’s motion for reconsideration (Doc. 63) is granted
in part and denied in part as set forth above.
Dated this 13th day of June, 2014.

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