Southern-Owners Insurance Company v. MAC Contractors of Florida, LLC et al

Filing 70

OPINION AND ORDER denying 64 Plaintiff's Motion for Reconsideration or to Alter or Amend the Judgment. Signed by Judge John E. Steele on 8/9/2018. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SOUTHERN-OWNERS
COMPANY,

INSURANCE

Plaintiff,
v.

Case No:

2:18-cv-21-FtM-29CM

MAC CONTRACTORS OF FLORIDA,
LLC,
PAUL
S.
DOPPELT,
Trustee of Paul S. Doppelt
Revocable
Trust
dated
12/08/90, and DEBORAH A.
DOPPELT, Trustee of Deborah
A. Doppelt Revocable Trust
dated 12/08/90,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Reconsideration or to Alter or Amend the Judgment (Doc. #64) filed
on July 5, 2018.

Defendants have not filed a response after

provided the opportunity to do so (Doc. #67) and the time to do so
has expired.

For the reasons set forth below, the Motion is

denied.
I.
The decision to grant a motion for reconsideration is within
the sound discretion of the trial court and may be granted to
correct an abuse of discretion.

Region 8 Forest Serv. Timber

Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993).

“The

courts

have

delineated

three

major

grounds

justifying

reconsideration of such a decision: (1) an intervening change in
controlling law; (2) the availability of new evidence; (3) the
need

to

correct

clear

error

or

prevent

manifest

injustice.”

Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.
Fla. 1994).

In this case, plaintiff argues that the third ground

warrants reconsideration – the need to correct clear error or
prevent manifest injustice.

(Doc. #64, ¶ 9.)

“A motion for reconsideration should raise new issues, not
merely readdress issues litigated previously.”

PaineWebber Income

Props. Three Ltd. P’ship v. Mobil Oil Corp., 902 F. Supp. 1514,
1521 (M.D. Fla. 1995).

The motion must set forth facts or law of

a strongly convincing nature to demonstrate to the court the reason
to reverse its prior decision.

Taylor Woodrow Const. Corp. v.

Sarasota/Manatee Airport Auth., 814 F. Supp. 1072, 1073 (M.D. Fla.
1993); PaineWebber, 902 F. Supp. at 1521.

“When issues have been

carefully considered and decisions rendered, the only reason which
should commend reconsideration of that decision is a change in the
factual or legal underpinning upon which the decision was based.
Taylor Woodrow, 814 F. Supp. at 1072-73.
A motion for reconsideration does not provide an opportunity
to simply reargue - or argue for the first time - an issue the
Court has already determined.

Court opinions “are not intended

as mere first drafts, subject to revision and reconsideration at

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a

litigant’s

pleasure.”

Quaker

Alloy

Casting

Co.

Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988).

v.

Gulfco

“The burden

is upon the movant to establish the extraordinary circumstances
supporting

reconsideration.”

Mannings

v.

School

Bd.

of

Hillsborough County, Fla., 149 F.R.D. 235, 235 (M.D. Fla. 1993).
Unless the movant’s arguments fall into the limited categories
outlined above, a motion to reconsider must be denied.
II.
In

this

diversity

case

brought

pursuant

to

the

Federal

Declaratory Judgment Act, 18 U.S.C. §§ 2201-02, plaintiff-insurer
filed an Amended Complaint (Doc. #21), seeking a declaration that
it

has

no

duty

to

defend

or

indemnify

defendant-insured

MAC

Contractors of Florida, LLC (d/b/a KJIMS Construction) for claims
asserted in a currently pending state-court lawsuit brought by
Paul and Deborah Doppelt, styled Doppelt et al. v. MAC Contractors
of Florida, LLC d/b/a KJIMS Construction, No. 2016-CA-1530 (the
“Doppelt Action”).

The Doppelt Action was filed against MAC for

breach of contract, alleging construction defects.
Owners

sought

a

declaratory

judgment

that

Southern-

certain

policy

exclusions apply and thus, Southern-Owners has no duty to defend
or indemnify MAC for the claims Doppelts asserts against it.
#21.)

(Doc.

MAC (d/b/a KJIMS Construction) filed a counterclaim seeking

a declaration that Southern-Owners was obligated to defend and
indemnify MAC.

(Doc. #31.)

The Dopplets were named as parties

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in this case and filed an Answer and Affirmative Defenses (Doc.
#37) but did not participate in the summary judgment briefing.

It

is undisputed that MAC is the only named insured in the two
Commercial General Liability (CGL) policies at issue in this case.
(Docs. ##21-1 – 21-2.)
Southern-Owners

and

MAC

filed

cross-motions

for

summary

judgment (Docs. ##42, 51), seeking judgment as to defendant’s duty
to defend pursuant to the CGL Policies.
Court

granted

summary

judgment

in

On June 21, 2018, the

favor

of

Southern-Owners,

finding that it did not have a duty to defend or indemnify MAC in
the Dopplet Action due to certain policy exclusions.

(Doc. #54.)

Thereafter, judgment was entered “in favor of Southern-Owners
Insurance Company and against MAC Contractors of Florida, LLC d/b/a
KJIMS Construction”, and the case was closed.

(Doc. # 56.)

has appealed the Court’s decision to the Eleventh Circuit.

MAC
(Doc.

#65.)
III.
Southern-Owners now moves for reconsideration or to alter or
amend the judgment pursuant to Fed. R. Civ. P. 59, stating that
the judgment should not only have been entered against MAC, but
also against the Doppelts.

In support, plaintiff states that the

Doppelts are required parties pursuant to Fed. R. Civ. P. 19 and
if they are not included in the judgment they would not be bound
by this Court’s determination that plaintiff has no duty to defend

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nor indemnify MAC in the Doppelt Action.

Southern-Owners believes

that if it does not obtain a judgment against the Doppelts in this
case, the Doppelts may pursue the insurance company for benefits
under MAC’s insurance policy stemming from the underlying state
court action.
The sole case cited by plaintiff in support is Amerisure Ins.
Co. v. R.L. Lantana Boat Yard, LTD., 2010 WL 4628231 (S.D. Fla.
Nov.

8,

2010).

In

Amerisure,

the

plaintiff-insurer

sought

declaratory relief that it did not have a duty to indemnify the
defendant developers in an underlying suit brought against them.
Id. at *1.

The plaintiff in the underlying action was the

condominium (the Moorings) suing the developer/contrator (R.L.
Lantana Boatyard, Ltd.) for construction defects.
explained

that

since

Amerisure’s

declaratory

Id.

The court

action

could

potentially eliminate its duty to the plaintiff condominium in the
underlying lawsuit, the condominium was a necessary party.
at *2.

Id.

The court found that the legal effect of the court’s

declaratory

judgment

would

be

undermined

if

the

Moorings

condominium could later sue Amerisure for damages under the terms
of the insurance policy.
Fla. Stat. § 627.4136.

Id.

In so finding, the court cited

The Court does not find Amerisure to be

directly on point because the Doppelts are already parties to this
action.

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A more relevant case would examine whether Southern-Owners’
argument rings true; that is, whether the Doppelts may pursue
Southern-Owners for benefits under the CGL Policies issued to MAC
if they prevail in the Doppelt Action.

The Eleventh Circuit has

addressed the issue of whether third parties have standing to sue
under liability insurance policies in Florida.

See Morales v.

Zenith Ins. Co., 714 F.3d 1220 (11th Cir. 2013).

In Morales, the

court noted that in response to Florida Supreme Court cases, the
Florida

Legislature

enacted

a

statute

“which

limited

the

circumstances under which an injured third party could sue an
insurer as a third-party beneficiary to a liability policy.”
at 1232.

Id.

Florida’s nonjoinder statute specifically states:

It shall be a condition precedent to the accrual or
maintenance of a cause of action against a liability
insurer by a person not an insured under the terms of
the liability insurance contract that such person shall
first obtain a settlement or verdict against a person
who is an insured under the terms of such policy for a
cause of action which is covered by such policy.
Fla. Stat. § 627.4136(1).

However, “ultimately, an insurer’s

liability depends on whether the insured’s claim is within the
coverage of the policy.”

Morales, 714 F.3d at 1227.

In a second Morales opinion by the Eleventh Circuit following
the Florida Supreme Court’s resolution of certified issues, the
court found that although a non-party to an insurance contract may
have standing to bring a claim for recovery against an insured
after obtaining a settlement or verdict against a person who is an

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insured,

certain

exclusions

to

the

policy

collecting any judgment from the insurer.

prevented

it

from

Morales v. Zenith Ins.

Co., 776 F.3d 1285, 1287-88 (11th Cir. 2015) (“Morales II”).

This

is analogous and provides guidance to the Court in this case.
Here, although the Doppelts are not insured under the CGL
Policies issued to MAC, they may have standing to pursue any
judgment it might obtain from Southern-Owners.

However, the Court

has determined – based upon a review of the allegations in the
underlying Amended Complaint - that certain exclusions in the CGL
Policies

unambiguously

(Doc. #54, p. 13.)

deny

coverage

for

the

Doppelt

Action.

Because any judgment the Doppelts may obtain

in the Doppelt Action arises from an injury that falls within the
CGL Policies’ exclusions, Southern-Owners would have no obligation
under the Policies to pay the judgment.

See Morales II, 776 F.3d

at 1288.
Therefore,
established

the

the

reconsideration

and

Court

finds

that

extraordinary
it

is

Southern-Owners

circumstances

unnecessary

to

alter

has

not

supporting
or

amend

the

judgment to include the Doppelts to prevent manifest injustice or
correct clear error. 1

1Furthermore,

Southern-Owners’ Motion for Summary Judgment
(Docs. #51) did not request that the Court determine that it had
no duty to defend or indemnify the Doppelts.
A motion for
reconsideration does not provide an opportunity to make an argument
for the first time.

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Accordingly, it is hereby
ORDERED:
Plaintiff’s Motion for Reconsideration or to Alter or Amend
Judgment (Doc. #64) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this __9th__ day of
August, 2018.

Copies:
Counsel of Record

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