The Victoria Select Insurance Company v. Vrchota Corporation et al

Filing 29

ORDER AND OPINION denying 20 Motion for Reconsideration re 13 Order on Motion to Dismiss. Signed by Judge Kenneth A. Marra on 2/25/2010. (ir)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA NO. 09-80979-CIV-MARRA/JOHNSON VICTORIA SELECT INSURANCE COMPANY, Plaintiff, v. VRCHOTA CORPORATION, JOHN J. GIACOBBA, JR., and MONICA KELLY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MICHAEL KELLY, Defendants. _______________________________________/ ORDER AND OPINION THIS CAUSE is before the Court upon Defendant Monica Kelly, as Personal Representative of the Estate of Michael Kelly's Motion for Reconsideration (DE 20), filed January 15, 2010. Plaintiff Victoria Select Insurance Company ("Plaintiff" or "Victoria Select") filed an opposition to the motion (DE 28). No reply was filed and the deadline to reply has passed. The Court has carefully reviewed the motion and response, and is otherwise fully advised in the premises. Standard of Review A motion for reconsideration is appropriate where (1) an intervening change in controlling law has occurred; (2) new evidence has been discovered; or (3) there is a need to correct clear error or prevent a manifest injustice. Williams v. Cruise Ships Catering & Svc. Int'l, N.V., 320 F.Supp.2d 1347, 1357-58 (S.D. Fla. 2004); Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994); see also 18 Wright, Miller & Cooper, Federal Practice

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and Procedure: Jurisdiction § 4478 (1981). In order to reconsider a ruling, there must be a reason why the court should reconsider its prior decision, and the moving party must set forth facts or law of a "strongly convincing nature" to induce the court to reverse its prior decision. Id. The Court notes that reconsideration of a previous order is an extraordinary remedy to be employed sparingly. See Sussman, 153 F.R.D. at 694. Discussion Plaintiff, Victoria Select Insurance Company, filed a claim for declaratory relief seeking a declaration of the parties' rights and obligations regarding the extent of coverage under a business automobile policy issued by Plaintiff to Defendant Vrchota Corporation. Specifically, Plaintiff seeks a declaration that it has no obligation under the policy to provide a defense to Vrchota in a pending state court action for wrongful death, Kelly ex rel. Estate of Kelly v. Vrchota Corp., No. 502009CA02483XXXXMB (Fla. 15th Cir. Ct.), based on a January 15, 2008 motor vehicle accident. Defendant Monica Kelly, as Personal Representative of the Estate of Michael Kelly (hereinafter, "Defendant") moved to dismiss the federal declaration action in favor of the pending state court proceedings. See DE 4. The Court denied Defendant's motion, ruling that Brillhart v. Excess Ins. Co. of America, 316 U.S. 491 (1942) does not apply to the facts at hand because the state court proceedings concern the alleged negligence of Vrchota Corporation and John J. Giacobba, Jr., not Victoria Select's duty to defend or provide coverage. See DE 13 at 4. Defendant now moves the Court for reconsideration of its Order denying Defendant's motion to dismiss. Defendant notes that on December 24, 2009, Victoria Select filed a motion to intervene in the state court action for the limited purpose of requesting a stay of the underlying 2

wrongful death case until the issue of Victoria Select's duty to defend or provide coverage is resolved in the federal action. Defendant erroneously asserts that the Court's prior order was based "wholly . . . [on] the fact that the INSURANCE COMPANY was not a party the State Court action involving the same parties." This Court's ruling was also premised on the fact that the state court action did not relate to the coverage issues presented in this case. The fact that the insurer has intervened in the state court action has not eliminated this deficiency. The intervention in the state court action was only sought to obtain a stay of that proceeding until the coverage issues presented in this case are resolved. Thus, nothing has changed in the state court action which would justify this Court receding from its prior ruling. Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant Monica Kelly, as Personal Representative of the Estate of Michael Kelly's Motion for Reconsideration (DE 20) is DENIED. DONE AND ORDERED in Chambers at West Palm Beach, Florida, this 25th day of February, 2010. Copies furnished to: all counsel of record _________________________________ KENNETH A. MARRA United States District Judge

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