WATERS EDGE LIVING LLC v. WESTCHESTER SURPLUS LINES INSURANCE COMPANY

Filing 108

ORDER DENYING 102 MOTION to Strike; GRANTING 93 MOTION for Reconsideration; VACATING 92 Clerk's Judgment. On Reconsideration of 91 Order on Motion for Summary Judgment, Summary Judgment is denied as to Count One (wron gful payout of settlement) and granted as to Counts Two and Three (bad faith). Trial set for 10/18/2010 at 08:30 AM in U.S. Courthouse, Tallahassee, Florida. A separate order setting a pretrial conference and deadlines for submissions issued at a date closer to trial. Signed by CHIEF JUDGE STEPHAN P MICKLE on 6/23/2010. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION WATERS EDGE LIVING, LLC, a Florida Limited Liability Company; and WATERS EDGE JW, LLC, a Florida Limited Liability Company, Plaintiffs, vs. WESTCHESTER SURPLUS LINES INSURANCE COMPANY, a Georgia Corporation, Defendant. ______________________________/ ORDER GRANTING MOTION FOR RECONSIDERATION This cause comes before the Court on Plaintiff's Rule 59(e) Motion for Reconsideration (doc. 93) and the briefings submitted by the parties. After the filing of the motion, the United States Court of Appeals issued an opinion in a related but separate case, Waters Edge Living, LLC. v RSUI Indemnity, Co., 335 Fed. Appx. 318 (11th Cir. 2009). Under almost identical facts, the Court of Appeals ruled that a reasonable factfinder could conclude that Waters Edge entered into a settlement agreement with the insurers, which created an enforceable contractual agreement independent of the policy and not limited by Prime's rights under the policy. Id. at 323, 326. Because the facts in this case CASE NO.: 4:08cv69-SPM/WCS

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are not materially different, Waters Edge should be allowed to proceed on its claim for wrongful payout under the settlement agreement. With regard to Waters Edge's bad faith claim, the Court stands by its previous ruling, which is unaffected by the Court of Appeals' opinion. Based on the foregoing, it is ORDERED AND ADJUDGED: 1. granted. 2. 3. 4. Plaintiffs' Motion to Strike (doc. 102) is denied. The Clerk shall vacate the judgment (doc. 93). On reconsideration of the Order on Cross Motions for Summary Plaintiffs' Rule 59(e) Motion for Reconsideration (doc. 93) is

Judgment (doc. 91), summary judgment is denied as to Count One (wrongful payout of settlement) and granted as to Counts Two and Three (bad faith). 5. Trial is set for 8:30 a.m. on October 18, 2010, at the United States

Courthouse in Tallahassee, Florida. A separate order setting a pretrial conference and deadlines for submissions will be issued at a date closer to trial. DONE AND ORDERED this 23rd day of June, 2010.

s/ Stephan P. Mickle
Stephan P. Mickle Chief United States District Judge

CASE NO.: 4:08cv69-SPM/WCS