The Zodiac Group, Inc. et al v. Axis Surplus Insurance Company

Filing 41

ORDER denying 38 Motion for Reconsideration. See attached ORDER for details. Signed by Judge Robert N. Scola, Jr. on 1/29/2013. (jky)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-80299-Civ-SCOLA
THE ZODIAC GROUP, INC. et al.,
Plaintiffs,
vs.
AXIS SURPLUS INSURANCE CO.,
Defendant.
_____________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION
THIS MATTER is before the Court on the Motion for Reconsideration [ECF No. 38],
filed by Plaintiff Zodiac Group (“Zodiac”). For the reasons explained below, the Motion for
Reconsideration is denied.
Introduction
Zodiac seeks reconsideration of this Court’s Order [ECF No. 37] granting the Motion to
Dismiss [ECF No. 20], filed by Defendant Axis Surplus Insurance Co. (“Axis”). In that Order,
the Court found that the insurance policy did not afford coverage because Zodiac’s claim was
first made in 2008, not during the policy’s provided-for claims period, and the federal lawsuit
arose from the prior claim, as the two were related by common facts, circumstances, transactions,
events and/or decisions. The Court also found that prior to the policy’s inception date, Zodiac
had knowledge of circumstances that could reasonably be expected to lead to the subsequent
claim. Accordingly, the Court found dismissal required.
Zodiac asks the Court to reconsider that decision because, it argues, the majority of the
allegations and the addition of new claims in the federal case were “substantially different, new,
and unforeseeable from” the state court case, thereby creating “a viable ‘duty to defend’ claim.”
Mot. at 1-2. Zodiac also contends that the Court improperly resolved factual questions at the
dismissal stage. Id. at 9-11. Recognizing the limited scope of the reconsideration device, Zodiac
appears to abandon its first argument on reply, and instead solely argues that “this Court
improperly determined issues of fact, which go beyond the scope of a motion to dismiss.” Reply
at 1-2.

Legal Standards
The decision to grant or deny a motion for reconsideration is committed to the district
court’s sound discretion. See Chapman v. AI Transport, 229 F.3d 1012, 1023-24 (11th Cir.
2000) (reviewing reconsideration decision for abuse of discretion). Reconsideration is
appropriate only in very limited circumstances, such as where “the Court has patently
misunderstood a party, where there is an intervening change in controlling law or the facts of a
case, or where there is manifest injustice.” See Vila v. Padron, 2005 WL 6104075, at *1 (S.D.
Fla. Mar. 31, 2005) (Altonaga, J.). “Such problems rarely arise and the motion to reconsider
should be equally rare.” See id. (citation omitted). In order to obtain reconsideration, “the party
must do more than simply restate its previous arguments, and any arguments the party failed to
raise in the earlier motion will be deemed waived.” See id. “[A] motion for reconsideration
should not be used as a vehicle to present authorities available at the time of the first decision or
to reiterate arguments previously made.” Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561,
1563 (S.D. Fla. 1992) (Hoeveler, J.).
Discussion
The Court finds no occasion to revisit its prior ruling. Rather than presenting anything
new, Zodiac mostly just repackages and rehashes the arguments advanced in opposition to Axis’s
Motion to Dismiss. It does not identify any intervening change in the law or facts of the case,
nor any manifest injustice in the Court’s prior ruling. Rather, its request for reconsideration
amounts to nothing more than a complaint that the Court got it wrong and should go back and rethink what it already carefully considered. Reconsideration motions may not be used “to ask the
Court to rethink what the Court . . . already thought through – rightly or wrongly.” See Krstic v.
Princess Cruise Lines, Ltd., 706 F. Supp. 2d 1271, 1282 (S.D. Fla. 2010) (Gold, J.) (citation
omitted). Nor are they designed “to permit losing parties to prop up arguments previously made
or to inject new ones,” nor “to relieve a party of the consequences of its original, limited
presentation.” See Miss. Valley Title Ins. Co., 2012 WL 5328644, at *1 (S.D. Ala. Oct. 26, 2012)
(Steele, J.). The bulk of the arguments that Zodiac presents were considered and rejected by the
Court the first time around and, upon reviewing them a second time here, the Court once again
finds them to be unavailing.
Nor is Zodiac correct that this Court improperly decided questions of fact at the dismissal
stage. The Court decided the Motion to Dismiss based solely upon the allegations of the
Complaint, the exhibits attached thereto, matters of which it could take judicial notice, and

documents attached to the Motion to Dismiss that were central to Zodiac’s claim and undisputed
as to authenticity. See Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005); see also Horne v.
Potter, 392 F. App’x 800, 802 (11th Cir. 2010). Moreover, the issue that Zodiac accuses the
Court of improperly deciding – whether Zodiac had knowledge, prior to the policy’s inception
date, of a circumstance that could reasonably be expected to lead to the federal litigation – was
not wholly essential to the ruling. As the Court explained in granting dismissal, even without
deciding that issue, Axis would be entitled to dismissal because the federal claim was not first
made during the policy period. See Order at 5 n.4. The Court reached that determination based
on the plain language of the policy as to coverage for “Prior Wrongful Acts,” not based on the
impermissible resolution of factual matters. See id. at 4-5.
Conclusion
In short, Zodiac’s arguments in favor of reconsideration are without merit. As such, the
Court finds no basis to deviate from its prior decision. Accordingly, it is hereby ORDERED
and ADJUDGED that Zodiac’s Motion for Reconsideration [ECF No. 38] is DENIED.
DONE and ORDERED in chambers at Miami, Florida on January 29, 2012.

________________________________
ROBERT N. SCOLA, JR.
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of record