LANDMARK AMERICAN INSURANCE COMPANY v. MOULTON PROPERTIES INC et al

Filing 553

ORDER denying as moot 507 Motion to Reopen Case. This case shall remain closed, and the Court will address the matter of attorney fees and costs in due course; granting 508 Motion to Alter Judgment only to the extent that the Court hereby clarifies that dismissal of their claim of breach of contract was without prejudice; granting 512 Motion for Relief. The Clerk of Court is directed to amend both Judgments entered on September 23, 2009, to reflect the substitution of party name from "ARCH INSURANCE GROUP" to "ARCH SPECIALTY INSURANCE COMPANY;" granting 513 Motion to Alter Judgment only to the extent that the Court hereby clarifies that dismissal of their claim of rescission was with prejudice. Signed by SENIOR JUDGE LACEY A COLLIER on November 24, 2009. (kvg)

IN THE UNITED STATES DISTRICT COURT FOR THE N O R T H E R N DISTRICT OF FLORIDA P E N S A C O L A DIVISION L A N D M A R K AMERICAN INSURANCE COM PA N Y , P la in tif f /C o u n te r-D e f e n d a n t,

A R C H SPECIALTY INSURANCE COMPANY, I n te r v e n o r /P la in tif f /C o u n te r - D e f e n d a n t,

v. M O U L T O N PROPERTIES, INC., M O U L T O N BROTHERS, INC., and T H E MOULTON TRUST,, D e f e n d a n t/C o u n te r - P la in tif f s , _______________________________/ ORDER

Case No. 3:05cv401/LAC

T H IS CAUSE is before the Court on a Motion to Reopen Case (doc. 507) and a M o t io n to Alter Judgment (doc. 508) filed by Defendant/Counter-Plaintiff Moulton P ro p e rtie s , Inc., et al., ("the Moultons"). Also before the Court are a Motion for Relief from O rd e r and Summary Judgments (doc. 512) filed by Intervenor/Plaintiff/Counter-Defendant A rc h Specialty Insurance Company ("Arch") and a Motion to Alter or Amend Judgment (d o c . 513) filed jointly by Arch and by Plaintiff/Counter-Defendant Landmark American In s u ra n c e Company ("Landmark"). Responses have been filed to all the motions.

In their Motion to Alter Judgment, the Moultons seek modification of the Court's S u m m a ry Judgment ruling to reflect that the dismissal of their Third Amended Counterclaim f o r breach of contract was without prejudice. The Court's ruling on the counterclaim was b a s e d upon the conclusion that Landmark and Arch, having been denied in their request for a declaratory judgment that would have entitled them to rescind the insurance policies,1 had n o t yet had the opportunity to properly administrate the Moultons' insurance claims. Thus, th e Court ruled that the Moultons' counterclaim was not yet ripe. Obviously, should the M o u lto n s conclude that Landmark and Arch's forthcoming administration of the claim amounts to a breach of contract or other actionable claim, they would be entitled to raise that c la im . In their Motion to Alter Judgment, Landmark and Arch similarly seek modification o f the Court's ruling to state that the dismissal of their claim of rescission or fraud based u p o n misrepresentations allegedly made by the Moultons after the arrival of Hurricane D e n n is and continuing through the litigation process was without prejudice. While the Court g ra n te d summary judgment against Landmark and Arch on their claims of rescission p e rta in in g to the application and underwriting process for the Moultons' insurance policy, th e ir post-Hurricane Dennis claims were found not to be properly before the Court because

The Court realizes that at times it may have referred to a singular insurance policy contract in the summary judgement order. As the parties no doubt realize, this derives from the fact that the Arch policy incorporates the Landmark policy by reference in the relevant aspects of this litigation.
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they were never pled. Because the Court did not address these claims on the merits, their d is m is s a l is appropriately deemed without prejudice. N e ith e r of the above matters require that the Court amend the Judgment, however. The scope and limitations of the Judgments were made plain in the Court's Summary J u d g m e n t Order, and nothing in the language of the Judgments themselves forecloses either p a rty from pursuing further litigation related to insurance policies. Nothing in the Order or e ith e r Judgment precludes the Moultons from pursuing a separate action based upon a breach o f contract should it henceforth occur, and nothing precludes Landmark or Arch from p u rs u in g litigation relevant to the Moultons' insurance claim so long as it is not based upon m isre p re s e n ta tio n or fraud in the procurement of the policies. Last, Arch's Motion for Relief from Order and Summary Judgments seeks an Order c o rre c tin g the two Judgments to reflect that Arch Specialty Insurance Company is the real p a rty in interest, not Arch Insurance Group as stated in the Judgments and the Order. On A rc h 's motion, Arch Specialty Insurance Company was substituted for Arch Insurance Group a s the real party in interest by Court Order dated August 16, 2007 (doc. 335).2 The J u d g m e n ts should therefore be amended accordingly.

The Order stated: "The Motion to Substitute Party (doc. 266) filed by Intervenor/Plaintiff/CounterDefendant, Arch Insurance Group is GRANTED to the extent that the Clerk shall substitute ARCH SPECIALTY INSURANCE COMPANY as the real party in interest for ARCH INSURANCE GROUP. The Court expresses no opinion as to whether this substitution acts as a bar to any future claims that Defendant/Counter-Plaintiff Moulton Properties, Inc., et al., may bring against ARCH INSURANCE GROUP."
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Accordingly, IT IS HEREBY ORDERED: 1. T h e Motion to Alter Judgment (doc. 508) filed by Defendant/CounterP la in tif f Moulton Properties, Inc., et al., is GRANTED only to the e x te n t that the Court hereby clarifies that dismissal of their claim of b re a c h of contract was without prejudice, as specified herein and in the C o u rt's Summary Judgment Order of September 22, 2009. The Motion to Alter or Amend Judgment (doc. 513) filed jointly by In te rv e n o r/P la in tif f /C o u n te r-D e f e n d a n t Arch Specialty Insurance C o m p a n y and Plaintiff/Counter-Defendant Landmark American In su ra n c e Company ("Landmark") is GRANTED only to the extent th a t the Court hereby clarifies that dismissal of their claim of rescission b a s e d upon the application and underwriting process for the Moultons' in s u ra n c e policies was with prejudice, and dismissal of their claim of m is re p re s e n ta tio n occurring after the Hurricane Dennis claim was w ith o u t prejudice, as specified herein and in the Court's Summary J u d g m e n t Order of September 22, 2009. T h e Motion for Relief from Order and Summary Judgments (doc. 512) f ile d by Intervenor/Plaintiff/Counter-Defendant Arch Specialty In su ra n c e Company is GRANTED. Pursuant to Fed.R.Civ.P. 60(a), th e Clerk of Court is directed to amend both Judgments entered on S e p te m b e r 23, 2009, to reflect the substitution of party name from " A R C H INSURANCE GROUP" to "ARCH SPECIALTY IN S U R A N C E COMPANY." T h e Motion to Reopen Case (doc. 507) filed by Defendant/CounterP la in tif f Moulton Properties, Inc., et al., is DENIED as moot. This c a s e shall remain closed, and the Court will address the matter of a tto rn e y fees and costs in due course.

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O R D E R E D on this 24th day of November, 2009.

s/L.A. Collier Lacey A. Collier S e n io r United States District Judge

Case No. 3:05cv401/LAC

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