Travelers Property Casualty Company of America et al v. Centex Homes

Filing 65

Order by Hon. Samuel Conti denying 64 Motion for Leave to File Motion for Reconsideration.(sclc1, COURT STAFF) (Filed on 6/12/2012)

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IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA, a Connecticut
corporation; FIDELITY & GUARANTY
INSURANCE COMPANY, an Iowa
corporation; THE TRAVELERS
INDEMNITY COMPANY OF CONNECTICUT,
a Connecticut corporation, ST.
PAUL MERCURY INSURANCE COMPANY, a
Minnesota corporation,

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Plaintiffs,
v.

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CENTEX HOMES, a Nevada
partnership; and DOES 1 through
10 inclusive,
Defendant.

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Case No. 11-3638-SC
ORDER DENYING MOTION FOR
LEAVE TO FILE MOTION FOR
RECONSIDERATION

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Plaintiffs Travelers Property Casualty Company of America, et

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al. ("Travelers") now move for leave to file a motion for

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reconsideration of the Court's Order Granting Defendant Centex

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Homes' ("Centex") motion for partial summary judgment.

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("Mot.").

ECF No. 64

For the reasons set forth herein, the Motion is DENIED.

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Under Civil Local Rule 7-9, a party moving for leave to file a

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motion for reconsideration must show: (1) "a material difference in

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fact or law exists from that which was presented to the Court

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before entry of the interlocutory order," (2) "[t]he emergence of

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new material facts or a change of law," or (3) "[a] manifest

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failure by the Court to consider material facts or dispositive

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legal arguments which were presented to the Court before such

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interlocutory order."

Civ. L.R. 7-9(b).

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Centex's motion for summary judgment raised the issue of

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whether Travelers, an insurer, had waived its right to control the

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defense of Centex, its insured, when Travelers initially refused to

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provide such a defense.

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partial summary judgment, Travelers argued that "Centex has failed

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to establish that Travelers waived its contractual right to control

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Centex's defense."

In its opposition to Centex's motion for

ECF No. 41 ("Opp'n") at 18 (emphasis added).

United States District Court

For the Northern District of California

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Travelers further argued that "[a]n Insured that claims the Insurer

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waived its contractual rights has the burden to establish by clear

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and convincing evidence that the Insurer intentionally relinquished

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a known right after knowledge of the facts."

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rejected this argument, holding "a court need not discern an

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insurer's intent to determine whether it has breached [its] duty

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[to defend].

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13.

A delay is evidence enough."

Id.

The Court

ECF No. 56 ("Order") at

In its motion for leave to file a motion for reconsideration,

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Travelers takes a different tack, reframing this as an issue of

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"forfeiture" rather than "waiver."

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in its prior briefing, Travelers argues that "California law

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prohibits the imposition of forfeiture of an insurer's rights under

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an insurance policy without first determining that the insurer

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acted in bad faith."

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reconsideration is warranted since the Court failed to address this

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new argument in its Order.1

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Mot. at 1.

Relying on authority not cited

Travelers contends that

Mot. at 2.

In its opposition to Centex's motion for partial summary
judgment, Travelers had argued, without citing legal authority,
that "Centex presents absolutely no evidence in support of its

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Civil Local Rule 7-9(b), allows for reconsideration where

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there has been "[a] manifest failure by the Court to consider

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material facts or dispositive legal arguments which were presented

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to the Court before [the challenged] interlocutory order."

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Travelers' forfeiture theory was never mentioned before, the Court

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could not have wrongfully failed to consider it in deciding

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Centex's motion for partial summary judgment.

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reviewed the authority cited by Travelers in its Motion, the Court

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finds that its decision to grant Centex's motion for partial

United States District Court

For the Northern District of California

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As

Further, having

summary judgment was not in error.
Accordingly, Travelers' motion for leave to file a motion for
reconsideration is DENIED.

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IT IS SO ORDERED.

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Dated: June 12, 2012
UNITED STATES DISTRICT JUDGE

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motion that Travelers 'wrongfully' rejected Centex's tender."
Opp'n at 23. However, Travelers never raised the issue of
forfeiture in that brief.

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