Vehse et al v. Liberty Mutual Fire Insurance Company

Filing 61

ORDER denying (Doc. # 59 ) Motion to Vacate. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 3/10/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GOETZ D. VEHSE,
Plaintiff,
v.

Case No. 8:16-cv-599-T-33JSS

LIBERTY MUTUAL FIRE INSURANCE
COMPANY,
Defendant.
________________________________/
ORDER
This cause is before the Court pursuant to Plaintiff
Goetz Vehse’s Rule 60(b) Motion to Set Aside or Vacate the
Summary Judgment Order Based on Excusable Neglect and/or Other
Reasons Justifying Relief (Doc. # 59), which was filed on
March 3, 2017.

Defendant Liberty Mutual Fire Insurance

Company filed a Response in opposition to the Motion on March
9, 2017. (Doc. # 60).

As explained below, the Motion is

denied.
I.

Background
Liberty Mutual issued Vehse a homeowners insurance policy

# H32-251-404160-100 3 (the 2010 Policy), effective April 12,
2010, to April 12, 2011, for Vehse’s home in New Port Richey,
Florida. (Doc. # 42-2). The 2010 Policy states that Liberty
Mutual will pay for necessary repairs in case of a sinkhole
loss that occurs during the effective period. (Id. at 31-32).

On July 20, 2010, adjuster Jeff Pyatt reported a possible
sinkhole claim on behalf of Vehse to Liberty Mutual. (Van
Hooven Aff. Doc. # 42-3 at ¶ 5).
retained

Rimkus

Consulting

Liberty Mutual, in turn,

Group,

Inc.,

an

independent

engineering firm, to investigate Vehse’s claim. (Id. at ¶ 6).
Rimkus issued a Report dated October 28, 2010, concluding that
sinkhole activity existed at Vehse’s property and recommended
a repair protocol consisting of limited mobility displacement
grouting, underpinning of the structure, and polyurethane
injections. (Doc. # 42-4).
Rimkus’s

2010

Report

contained

several

limitations,

including:
Please be aware that the grouting program is
designed and intended to treat only for sinkhole
activity. The grouting program is not intended to
treat
or
remediate
other
detrimental
soil
conditions that may or may not exist at the site
such as buried debris, organic material, expansive
(shrink/swell) clays or improper foundation design
problems.
The homeowner should be aware that
compaction
grouting
may
induce
additional
settlements
and
additional
cracking
of
the
structure
before
deep
soil
conditions
are
stabilized.
. . . .
[I]t should also be noted that portions of the
observed damage are due to normal settlement,
material characteristics, deterioration due to age,
etc., and are unrelated to sinkhole activity. As
such, it is unrealistic to expect that cracks and
separation will never again form in the building
after the sinkhole has been remediated, regardless
of what method of remediation is performed.
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(Id. at 27, 29).
Liberty Mutual identified several available contractors
to perform the required repairs, and solicited bids for the
work. (Van Hooven Aff. Doc. # 42-3 at ¶ 2).
not

choose

any

contractors

suggested

by

But, Vehse did
Liberty

Mutual.

Instead, Vehse retained a company that he located and selected
on his own, RAB Foundation Repair, LLC. (Doc. # 42-5).

The

RAB Foundation Contract is dated November 17, 2010, and
specifies: “OBJECTIVE: RAB will provide sinkhole remediation
and/or foundation repair services [hereinafter referred to as
‘The

Work’]

at

the

above-referenced

property

using

Injection/Pressure Pier and/or Compression Grout System.

the
No

purpose, expressed or implied, other than to stabilize the
soil, is intended.” (Id. at 1).
RAB performed the repairs Rimkus recommended between
January and April of 2011, and Rimkus monitored the repairs,
as reflected in Rimkus’s Report of Findings dated June 9,
2011. (Doc. # 42-6). That Report noted that RAB completed the
subsurface

grouting

program,

steel

underpinning,

and

polyurethane injections as recommended by Rimkus. (Id.).
After these repairs, Vehse hired R.J. Simone Enterprises
to perform cosmetic or above-ground repairs to the property.
Vehse testified about this during his Examination Under Oath
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on July 24, 2015. (Doc. # 42-7 at 26). Liberty Mutual paid
Vehse for the cosmetic repairs. (Van Hooven Aff. Doc. # 42-3
at ¶ 10).

Vehse testified that after R.J. Simone completed

its work, all damage to his home had been repaired and no
unrepaired damage remained. (Doc. # 42-7 at 27-28).
Liberty Mutual did not renew Vehse’s homeowners insurance
coverage after July of 2012, and Vehse procured homeowners
insurance

from

Citizens

Property

Insurance

Corporation,

without sinkhole coverage. (Doc. # 42-7 at 16).

Vehse

explained: “I did not [obtain sinkhole coverage] because I
figured everything was fixed; so I didn’t need it.” (Id.).
In June of 2015, years after the effective date of the
2010 Policy with Liberty Mutual, Vehse notified Liberty Mutual
of new damage to the home. (Id. at 30).
no

damage

to

the

home

occurred

at

Vehse testified that
his

home

after

the

completion of the 2011 repairs until 2015. (Id. at 29-37). He
further testified that the cracks at his home were new, rather
than re-opening of damage that existed prior to the 2011
repairs. (Id. at 37-38).
On January 21, 2016, Vehse sued Liberty Mutual in state
court for breach of contract. (Doc. # 2).

Liberty Mutual

removed the case to this Court based on complete diversity of
citizenship. (Doc. # 1). Vehse filed an Amended Complaint on
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May 13, 2016, containing two counts for breach of contract.
(Doc. # 18).
On May 23, 2016, Liberty Mutual filed its Answer and
Affirmative Defenses to Vehse’s Amended Complaint. (Doc. #
20). Among other defenses, Liberty Mutual claims that Vehse’s
suit “is barred by accord and satisfaction” because “Liberty
Mutual has tendered all amounts due under the Policy, and
these amounts were accepted by the Plaintiff.” (Id. at 4).
Liberty Mutual also contends that Vehse “did not suffer damage
during the Policy Period” with respect to the damages Vehse is
now claiming. (Id.).
II.

Summary Judgment Proceedings
On December 14, 2016, Liberty Mutual filed a timely and

procedurally compliant Motion for Summary Judgment. (Doc. #
42).

The Motion contained a Statement of Material Facts and

supported each fact with a citation to the record.

Liberty

Mutual provided the Court with an index of its exhibits and
organized the exhibits in an effort to streamline the summary
judgment process.

(Doc. # 42-1).

On January 17, 2017, Vehse

filed a response to the Motion and attached a single exhibit.
(Doc. # 46). Vehse’s submission did not include a response to
Liberty Mutual’s Statement of Material Facts.

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On January 25,

2017, Liberty Mutual filed its Reply Memorandum. (Doc. # 51).
Therein, Liberty Mutual commented:
Plaintiff failed to respond to Liberty Mutual’s
Statement of Material Facts in the manner required
by
this
Court.
The
Court’s
website,
www.flmd.uscourts.gov/judicialInfo/Tampa/jgCovingt
on.htm, instructs civil litigants that motions for
summary judgment must include a section titled
“Statement of Material Facts” and listing each fact
in a separate numbered paragraph. A response, in
turn, must include a section titled “Response to
Statement of Material Facts” that admits or denies
each fact in correspondingly numbered paragraphs.
(Doc. # 51 at 2).
When confronted with the Motion for Summary Judgment,
Response, and Reply, the Court agreed that Vehse failed to
carry his burden at summary judgment.

However, rather than

simply granting Liberty Mutual’s Motion for Summary Judgment
based on Vehse’s factually deficient response, the Court
entered a detailed Order explaining exactly what Vehse needed
to do and giving Vehse sufficient time in which to complete
the task.
Specifically, on February 23, 2017, this Court entered an
Order explaining that Vehse’s response to Liberty Mutual’s
Motion for Summary Judgment was procedurally deficient. (Doc.
# 56). The Court noted that Liberty Mutual’s “Motion
Summary

Judgment

directives

fully

regarding

complies
a

with

Statement
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of

the

for

undersigned’s

Material

Facts.

Specifically, Liberty Mutual outlines 35 specific Material
Facts.” (Id. at 1).

However, Vehse’s Response to the Motion

for Summary Judgment “is a ‘non-response’ when it comes to
either

admitting

contentions.”

or

(Id.

at

denying
2).

Liberty
The

Mutual’s

Court’s

factual

practices

and

procedures, which are prominently displayed on the Court’s
website,

require

a

party

opposing

a

Motion

for

Summary

Judgment to
include a specifically captioned section titled,
“Response to Statement of Material Facts.”
The
opposing party’s response must mirror the statement
of material facts by admitting and/or denying each
of the moving party’s assertions in matching
numbered paragraphs. Each denial must set forth a
pinpoint citation to the record where the fact is
disputed. Although the opposing party’s response
must correspond with the paragraph scheme used in
the statement of material facts, the response need
not repeat the text of the moving party’s
paragraphs. In deciding a motion for summary
judgment, the Court will deem admitted any fact in
the statement of material facts that the opposing
party does not specifically controvert, provided
that the moving party’s statement is supported by
evidence in the record.
(Id.).
Here, the Court warned Vehse that it would be acting well
within its discretion to grant Liberty Mutual’s Motion for
Summary Judgment based on Vehse’s deficient response, but in
an abundance of fairness, granted Vehse the opportunity to
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conform to the Court’s procedures.

The Court directed Vehse

“to file a submission admitting or denying Liberty Mutual’s
factual allegations, with citation to the record, by February
28, 2017.” (Id. at 3).
Vehse did not file anything in response to the Court’s
Order.

Thereafter, on March 1, 2017, the Court entered an

Order granting Liberty Mutual’s Motion for Summary Judgment.
(Doc. # 57).

The Court’s Order largely relied on Liberty

Mutual’s Statement of Material Facts because the facts were
supported by the record and because Vehse failed to rebut
them.
After outlining the material facts, the Court found that
Liberty Mutual was entitled to judgment as a matter of law
because, among other reasons, it did not contract for the
repairs of the home.

“The 2010 Policy is an indemnity

contract, not a repair contract.” (Id. at 10). In accordance
with the 2010 Policy, Liberty Mutual was responsible to pay
for repairs, but not responsible for conducting the repairs
itself. Vehse contracted directly with RAB to perform the
repairs and Liberty Mutual was not a party to the contract.
Liberty Mutual had no relationship with RAB.

Liberty Mutual

certainly made suggestions to Vehse as to who Vehse should
hire to make the repairs, and even solicited bids in an effort
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to ensure that a qualified contractor was available to render
all repairs.

However, Vehse independently selected RAB and

contracted with RAB to make repairs.

As suggested by Liberty

Mutual, if Vehse now contends that RAB negligently repaired
the land, Vehse should sue RAB, not Liberty Mutual. (Doc. # 42
at 14).
The Court also explained: “Vehse has not provided any
citation

to

facts

in

the

record

that

justify

extending

liability years after the effective date of the 2010 Policy
and years after the termination of the relevant 2010 insurance
policy.” (Id. at 13).

The Clerk entered Judgment in favor of

Liberty Mutual on March 2, 2017, and thereafter closed the
case. (Doc. # 58). At this juncture, Vehse seeks an Order
vacating the Court’s Summary Judgment Order, explaining that
a malware attack on his law firm’s server caused Vehse to miss
the February 28, 2017, deadline to rebut Liberty Mutual’s
Statement of Material Facts.
III. Legal Standard
Federal Rules of Civil Procedure 59(e) and 60 govern
motions for reconsideration.

Ludwig v. Liberty Mutual Fire

Ins. Co., Case No. 8:03-cv-2378-T-17MAP, 2005 U.S. Dist. LEXIS
37718, at *6 (M.D. Fla. Mar. 30, 2005).

The time when the

party files the motion determines whether the motion will be
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evaluated under Rule 59(e) or Rule 60. Id.

A Rule 59(e)

motion must be filed within 28 days after the entry of the
judgment.

Motions filed after the 28-day period will be

decided under Federal Rule of Civil Procedure 60(b).
As stated in

Florida College of Osteopathic Medicine,

Inc. v. Dean Witter Reynolds, Inc., 12 F. Supp. 2d 1306, 1308
(M.D.

Fla.

1998),

“A

motion

for

reconsideration

must

demonstrate why the court should reconsider its past decision
and set forth facts or law of a strongly convincing nature to
induce the court to reverse its prior decision.” Further, “in
the interests of finality and conservation of scarce judicial
resources, reconsideration is an extraordinary remedy to be
employed sparingly.” Lamar Adver. of Mobile, Inc. v. City of
Lakeland, 189 F.R.D. 480, 489 (M.D. Fla. 1999).
Likewise, Rule 60(b), Fed. R. Civ. P., is available to
relieve a party from a final judgment or order for the
following reasons:
(1)
(2)

(3)
(4)
(5)
(6)

mistake, inadvertence, surprise, or excusable
neglect;
newly
discovered
evidence
that,
with
reasonable diligence, could not have been
discovered in time to move for a new trial
under Rule 59(b);
fraud . . . misrepresentation, or misconduct
by the opposing party;
the judgment is void;
the judgment has been satisfied . . .; or
any other reason that justifies relief.
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Fed. R. Civ. P. 60(b).
Whether asserted under either Rule 59 or 60, “a motion
for reconsideration is not the proper forum for the party to
vent dissatisfaction with the Court’s reasoning.” Ludwig, 2005
U.S. Dist. LEXIS 37718, at *11 (internal citation omitted).
IV.

Excusable Neglect Not Demonstrated
Vehse is represented by the law firm of Smith, Kling, &

Thompson, P.A.

Vehse’s counsel maintain that this Court

should vacate its Order granting summary judgment in favor of
Liberty Mutual because “on February 21, 2017, a malware attack
compromised the Smith, Kling & Thompson, P.A. (‘SKT’) server
and email system.” (Doc. # 59 at 2).

A SKT partner was

informed of the malware attack “the same day.” (Id.).

The

very next day, February 22, 2017, “all backups dating back to
October were analyzed and motions were put into place to
upload and clean backup of the site to the hosting server.”
(Id.).
issued

On February 23, 2017, the same day that the Court
its

opportunity

Order
to

providing

comply

Vehse

with

with

regard

to

direction
summary

and

an

judgment

procedures, Vehse’s law firm “migrated across to [a] new
server.” (Id.). According to SKT, “[d]uring this propagation
period no one would have been able to access smithkling.com

-11-

nor could any email attach to this domain name and be received
by the firm.” (Id.).
“[E]verything appeared to be working as expected and the
site was back up and running” on February 23, 2017. (Id.).
But, on February 27, 2017, “it was brought to the firm’s
attention that emails were not being received.” (Id. at 3).
“Despite rectification of the error,” SKT maintains “there was
no way to know which, if any, emails the smithkling domain
rejected

while

the

site

and

server

were

down.

As

a

consequence, SKT did not receive the February 23, 2017 Order
requesting that Plaintiff file the requested submission.”
(Id.).
Vehse argues that these circumstances amount to excusable
neglect. Excusable neglect is “a somewhat elastic concept and
is not limited strictly to omissions caused by circumstances
beyond the control of the movant.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993). This
Court’s determination is guided by four factors, each outlined
in Pioneer: “the danger of prejudice to the [nonmovant], the
length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it
was within the reasonable control of the movant, and whether
the movant acted in good faith.” Id. at 395.
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Vehse missed a Court deadline due to a problem with its
email server.

Yet, in his Motion to Vacate, counsel discuss

factually inapposite cases.

For instance, in the Argument

section of the Motion, Vehse discusses Brother v. Rossmore
Tampa Limited Partnership, No. 8:03-cv-1253-T-24MAP, 2004 U.S.
Dist. LEXIS 28524, at *5 n.2 (M.D. Fla. Aug. 19, 2004)(finding
excusable neglect in an ADA access case when plaintiff’s
attorney failed to file a response to motion for summary
judgment due to a calendaring error: “Plaintiff’s counsel
states that he calendared the motion on his computer and when
the to-do reminder appeared, he confused the instant case with
one of the other 70 cases in which Steven Brother is a
plaintiff.”) and Cheney v. Anchor Glass Container Corp., 71
F.3d 848, 850 (11th Cir. 1996)(finding excusable neglect in an
age

discrimination

case

when,

after

an

arbitration,

a

secretary failed to inform lead counsel of a deadline for
moving for a new trial).

Vehse does not discuss any cases in

which a deadline was missed due to a malware attack or a
firm’s server being “down.”
In contrast, Liberty Mutual directs the Court’s attention
to Yeschick v. Mineta, 675 F.3d 622 (6th Cir. 2012), which
affirmed a district court’s denial of a Rule 60(b) motion -finding no excusable neglect.

There, the defendant moved for

-13-

summary judgment and the plaintiff failed to respond. Id. at
624. The court adopted the undisputed facts advanced by the
defendant and granted the motion for summary judgment. Id. at
627.

Similar to the arguments asserted in the present case,

the plaintiff’s attorney moved to vacate the summary judgment
order

explaining

that

email

notification

from

the

court

“bounced” because his “original email address on file with the
Clerk of the Court was an ‘alltel.net’ email address [and] in
2009, all alltel.net email addresses became ‘windstream.net’
addresses.” Id. at 627.
The Yeschick court explained why the email mistake could
not constitute excusable neglect: “Now that electronic dockets
are widely available, the burden imposed by this affirmative
duty [to monitor the docket] is minimal.

Attorneys may

monitor the docket from the comfort of their offices; they
simply need to log-on to the CM/ECF system from a computer.”
Id. at 629.
The circumstances described in Yeschick are similar to
the present server malware attack.

In both cases, the

attorney responsible for appropriately responding to a well
supported

motion

for

summary

judgment

did

not

electronic notification of a relevant court filing.

receive
As in

Yeschick, Vehse’s counsel did not meet the affirmative duty to
-14-

monitor the docket, or he would have learned of the Court’s
February 23, 2017, Order.

Even if Vehse’s counsel’s failure

to receive notice of the February 23, 2017, Order, was outside
of his control, counsel nevertheless had a duty to monitor the
docket in this active case, regardless of any separate issue
taking place with the law firm server.

Any reasonable

attorney confronted with knowledge that his or her email is
compromised

would monitor the docket in his or her cases to

ensure that no deadlines are missed.
This

Court

has

considered

the

Pioneer

factors

and

determines that they do not weigh in favor of an excusable
neglect finding.

The danger of prejudice to Liberty Mutual

would be great if the Court were to vacate its summary
judgment order and Judgment in favor of Liberty Mutual.

The

Court has conducted a complete summary judgment analysis with
a ripe motion for summary judgment and over 600 pages of
relevant exhibits on file.

It would be extremely prejudicial

to Liberty Mutual to vacate an Order in its favor and re-open
summary judgment now that the Court’s
has been revealed.

analysis and reasoning

The Court provided Vehse with a second

bite of the proverbial apple prior to the entry of summary
judgment.

The Court declines to extend the invitation to

weigh in on these matters after (1) entry of a detailed
-15-

summary judgment Order; (2) entry of the Clerk’s Judgment in
a Civil Case; and (3) case closure.

“Litigation must come to

an end.” Gary v. Ga. Diagnostic Prison, 686 F.3d 1261, 1275
(11th Cir. 2012).
In addition, the length of the delay militates against a
finding of excusable neglect.

Although Vehse concentrates on

the delay between the Court’s February 23, 2017, warning Order
regarding Vehse’s deficient response and the March 1, 2017,
Order granting summary judgment, review of the file reveals
that Vehse was placed on notice regarding his deficient
response much earlier.

Liberty Mutual’s Reply (Doc. # 51),

filed on January 25, 2017, plainly and correctly states:
“Plaintiff failed to respond to Liberty Mutual’s Statement of
Material Facts in the manner required by this Court.” (Id. at
2).

Liberty Mutual even quoted the consequences the Court

imposes, namely that it “will deem admitted any fact in the
statement of material facts that the opposing party does not
specifically controvert, provided the moving party’s statement
is

supported

by

evidence

in

the

record.”

There

is

no

indication that the SKT server was down on January 25, 2017,
when Liberty Mutual’s Reply was filed.
As

stated

by

Liberty

Mutual:

“Plaintiff

could

have

requested leave from the Court to file a Response to the
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Statement of Material Facts.

Plaintiff also could have

contacted Liberty Mutual’s counsel and requested that the
undersigned stipulate to an order allowing Plaintiff to file
the Response.

Instead, Plaintiff’s counsel sat idle for more

than a month. Plaintiff has not argued, and cannot argue, that
this month-long failure to at least try to rectify this
shortcoming was caused by excusable neglect.” (Doc. # 60 at
9).
Liberty Mutual posits that Vehse’s counsel did not act in
good faith and even suggests that Vehse’s counsel violated
Rules 4-1.1 and 4-1.3 of the Rules Regulating the Florida Bar.
Although the Court is not prepared to make a finding of bad
faith,

the

Court

can

hardly

characterize

the

situation

presented as a good faith attempt to rectify a technological
problem. Affidavits filed by SKT attorneys and staff describe
technical difficulties encountered due to a malware attack.
However, all of the good faith in the world cannot stand in
the place of an attorney’s duty to monitor the docket.

“Even

a lack of notice of the entry of an order does not constitute
excusable neglect, as it is the party’s affirmative duty to
monitor the dockets.” Duncan v. Bucciarelli, No. 07-13114-WHD,
2010 Bankr. LEXIS 1543, at *3 (N.D. Ga. Bankr. Apr. 28,

-17-

2010)(internal citation omitted).

The Court thus denies the

Motion.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Goetz Vehse’s Rule 60(b) Motion to Set Aside or
Vacate the Summary Judgment Order Based on Excusable Neglect
and/or Other Reasons Justifying Relief (Doc. # 59) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 10th
day of March, 2017.

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