WALKER et al v. North American Specialty Insurance Company et al

Filing 138

ORDER denying 112 Motion for Reconsideration; denying 115 Motion Rule 60 Relief from Order and Judgment; denying 121 Motion to Amend/Correct. Ordered by US DISTRICT JUDGE W LOUIS SANDS on 01/24/2016. (mdm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
:
DEANTE WALKER, INDIVIDUALLY,
:
AND AS ADMINISTRATOR OF THE
:
ESTATE OF REGINALD E. WALKER,
:
DECEASED, AND DEBORAH WALKER,
:
AS NEXT FRIEND AND CONSERVATOR :
OF REGINALD WALKER, JR.,
:
A MINOR CHILD,
:
:
Plaintiffs,
:
:
v.
:
:
NORTH AMERICAN SPECIALTY
:
INSURANCE COMPANY, FIREMAN’S
:
FUND INSURANCE COMPANY,
:
GREAT AMERICAN INSURANCE
:
COMPANY, AND FEDERAL
:
INSURANCE COMPANY,
:
:
Defendants.
:
:
CASE NO.: 1:14-CV-69 (WLS)
:
NORTH AMERICAN SPECIALTY
:
INSURANCE COMPANY,
:
:
Defendant/Counter-Plaintiff,
:
:
v.
:
:
DEANTE WALKER, et al.,
:
:
:
Plaintiffs/Counter-Defendants.
:
____________________________________ :
ORDER
Before the Court is Plaintiffs’ Motion for Reconsideration (Doc. 112), Plaintiffs’
Motion for Relief Pursuant to Fed. R. Civ. P. 60 (Doc. 115), and Plaintiffs’ Motion to
Amend Findings or Make Additional Findings Pursuant to Fed. R. Civ. P. 52(b) and to Alter

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or Amend Judgment Pursuant to Fed. R. Civ. P. 59(e) (Doc. 121.) These motions pertain to
this Court’s Order (Doc. 110) dated March 31, 2016, granting Defendant’s Motion for
Summary Judgment. After a recitation of the pertinent procedural history, the Court will
address each of the pending motions in turn.
PROCEDURAL HISTORY
On April 25, 2014, Defendants removed this case from the State Court of Dougherty
County, Georgia. (Doc. 1.) Plaintiffs’ Complaint alleged a breach of contract and a bad
faith claim against Defendants. (Doc. 1-6.) On May 16, 2014, Defendant North American
Specialty Insurance Company (“NAS”) answered Plaintiffs’ Complaint and filed a
Counterclaim against Plaintiffs seeking declaratory judgment that NAS did not owe any
underinsured motorist benefits or any other relief. (Doc. 21.)
On July 2, 2015, Defendants filed a Joint Motion for Summary Judgment. (Doc. 83.)
On August 21, 2015, Plaintiffs filed a Motion to Voluntary Dismiss Count Two of the
Complaint, alleging bad faith, without prejudice. (Doc. 95.) The Court entered a ruling on
Defendants’ Joint Motion for Summary Judgment on March 31, 2016. (Doc. 110.) The
Court’s found that NAS did not breach any contractual obligation to the Plaintiffs because
as of the time the Plaintiffs initiated the present action, Plaintiffs failed to exhaust available
liability coverage.

(Id. at 12.)

However, the Court also declined to grant declaratory

judgment in favor of NAS regarding its Counterclaim. (Id.) Because the Court found that
Plaintiffs’, at that time, potential settlement agreement with Electric could possibly trigger
NAS’s obligation to provide uninsured motorist coverage in the future, the Court declined to
enter a judgment that would essentially be premature. (Id.)
Plaintiffs subsequently filed a Motion for Reconsideration on April 14, 2016, a
Motion for Relief from Judgment on April 14, 2016, and a Motion to Amend Findings on
April 27, 2016. (Docs. 112, 115, 121.)
DISCUSSION
I.

Walkers’ Motion for Reconsideration
Plaintiffs filed the instant Motion for Reconsideration on April 14, 2016. (Doc. 112.)

Wherein, Plaintiffs request that this Court reconsider its grant of Defendants’ Motion for

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Summary Judgment and enter an order denying said Motion instead. (Doc. 112-1 at 1.)
Plaintiffs aver grounds for reconsideration are that the (1) Court overlooked evidence in its
prior order, (2) new evidence developed since briefing, and (3) that a clear error of law was
inadvertently made by the Court. (Id.) The Court will now consider each of Plaintiffs’
proffered reasons in turn.
Under the Local Rules, motions for reconsideration “shall not be filed as a matter of
routine practice.” M.D. Ga. L.R. 7.6. “The only grounds for granting a motion for
reconsideration are newly discovered evidence or manifest errors of law or fact.” Smith v.
Ocwen Finan., 488 Fed. App’x 426, 428 (11th Cir. 2012)(citing Arthur v. King, 500 F.3d 1335,
1343 (11th Cir. 2007)). “A motion for reconsideration cannot be used to relitigate old
matters, raise argument or present evidence that could have been raised prior to the entry of
judgment.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009)(citation
omitted). “This prohibition includes new arguments that were ‘previously available, but not
pressed.’” Id. at 957; see also Pennamon v. United Bank, No. 5:09-CV-169 (CAR), 2009 U.S.
Dist. LEXIS 64825, 2009 WL 2355816, at *1 (M.D. Ga. July 28, 2009)(finding motions for
consideration are only appropriate where the movant can show “(1) there has been an
intervening change in the law, (2) new evidence has been discovered that was not previously
available to the parties at the time the original order was entered, or (3) reconsideration is
necessary to correct a clear error of law or prevent manifest injustice.”)(citation omitted);
McCoy v. Macon Water Auth., 966 F. Supp. 1209, 1223 (M.D. Ga. 1997)(“In order to
demonstrate clear error, the party moving for reconsideration must do more than simply
restate his prior arguments, and any arguments which the party inadvertently failed to raise
earlier are deemed waived.”).
A. Mistake
Plaintiffs argue the Electric policy was exhausted by the time Plaintiffs opposed
Defendants’ Motion for Summary Judgment, and that the proof of exhaustion on the record
created, at minimum, a genuine issue of material fact sufficient to deny summary judgment.
(Doc. 112-1 at 2.) Plaintiffs note that the Court, in it’s prior order (Doc. 110), stated that the

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Electric policy was not exhausted. (Id.) Although Plaintiffs do not plainly state this as a
mistake by the Court, the Court infers as much.
The Court finds that it was not a mistake or error for the Court to conclude that the
Electric policy was not exhausted by March 10, 2014. In its prior order, the Court found
settlement between Electric and the Walkers was not final and thus a mere possibility at that
time. Electric offered to settle the claim for a set amount. (Doc. 98 at 4.) Counsel for
Plaintiffs accepted the offer, but conditioned acceptance of the offer upon certain terms,
specifically the settlement could not discharge Williams or Doors. (Id. at 6.) Those facts were
all the facts available to the Court concerning the Electric Policy. But one fact was
unequivocally clear from the evidence, the Electric policy was not exhausted before suit was
initiated.
The Court was unaware whether continuing liability of Williams and Doors would
eradicate the settlement agreement. Thus, from the information available to the Court
regarding the Electric policy, settlement appeared to be plausible but not yet final. Further,
Plaintiffs’ response brief argued the Electric policy was exhausted. (Doc. 102 at 6.) This
contention and supporting documentation was considered by the Court in its prior order.
Lastly, the Court notes that its finding was based upon the relevant time period in question.
The Court’s conclusion does not go so far to express an opinion that Plaintiff would never
exhaust the Electric policy.
B. Newly Discovered Evidence
Plaintiffs claim to provide the Court with new and additional information. (Doc. 1121.) Counsel for Plaintiff submitted a new affidavit attached to Plaintiff’s Motion for
Reconsideration. (Doc. 112-3.) Attached to the affidavit are exhibits purporting to evidence
exhaustion of the underlying Electric policy and execution of a limited liability release by
Plaintiff in receipt of the policy’s funds. (Id.)
“Where a party attempts to introduce previously unsubmitted evidence on a motion
to reconsider, the court should not grant the motion absent some showing that the evidence
was not available during the pendency of the motion.” Mays v. United States Postal Service, 122
F.3d 43, 46 (11th Cir. 1997). “On a motion for reconsideration a party is ‘obliged to show

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not only that this evidence was newly discovered or unknown to it until after the hearing,
but also that it could not have discovered and produced such evidence.’” Id. at n.6. The
Court finds that Plaintiffs’ information is not “newly” discovered evidence and should have
been produced during the pendency of the motion for summary judgment.
Here, Defendants filed a Joint Motion for Summary Judgment on July 2, 2015. (Doc.
83.) Plaintiff filed a response thereto on August 21, 2015. (Doc. 102.) Defendants filed a
joint reply on September 22, 2015. (Doc. 106.) The Court, however, did not enter an order
ruling upon Defendants’ Motion for Summary Judgment until March 31, 2016. (Doc. 110.)
Exhibits A and B (Doc. 112-3) attached to Plaintiff Counsel’s second affidavit are email
communications that were already on the record prior to this Court’s entry of summary
judgment. (Doc. 98 at 3-7.) What is “new” is a copy of the “Release of All Claims and
Indemnity Agreement” between the Walkers and Electric, executed on October 22, 2015,
and a copy of the check issuing policy funds to the Walkers, dated September 2, 2015. (Doc.
112-3 at 9-17.)
The Court finds that the information Plaintiffs’ characterize as “new” was both
discoverable and could have and should have been produced upon the record in this case
during the pendency of the summary judgment motion. The Court notes that based upon
the date of the “new evidence,” the information was available to Plaintiff shortly after
briefing had concluded but well before the Court entered an order ruling upon Defendants’
Motion for Summary Judgment. Although Plaintiffs had highlighted some of the
information to the Court in its response, Plaintiffs had the duty of updating the Court with
any important changes or new and relevant information regarding its claims. Therefore, the
Court declines to review the “new” evidence as grounds for reconsideration.
C. Clear Error or Manifest Injustice
In Plaintiffs’ Motion for Reconsideration, Plaintiffs attempt to rehash an issue the
Court has already duly considered and ruled upon. Although Plaintiffs claim that they did in
fact exhaust the Electric Policy, their argument is based upon untimely exhaustion. Plaintiffs
contend that they exhausted the Electric policy “by the time they opposed [Defendants’]

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summary judgment motion.” (Doc. 112-1 at 3.) The Court in its prior Order has stated the
following regarding Plaintiffs’ argument:
The Walkers’ first argument is largely predicated on their assertion that
exhaustion on insurance coverage of a tortfeasor is a prerequisite to recovery,
not a prerequisite for bringing a claim. The Walkers argument is a distinction
that attempts to conflate and confuse the central question before the Court
here: whether or not Defendants breached their contractual obligation to the
Walkers. At the time the Walkers initiated this case, they failed to exhaust all
available insurance of Williams and Door. O.C.G.A. § 33-7-11 is unequivocal
in its requirement that uninsured motorist coverage attaches after, not before,
the tortfeasor’s insurance is exhausted. As a consequence, there is no evidence
supporting the Walkers’ assertion Defendants were obligated to provide
uninsured or underinsured motorist insurance prior to the point of proper
attachment.
(Doc. 110 at 11.)
“In Georgia, insurance is a matter of contract.” Ga. Cas. & Sur. Co. v. Woodcraft by
McDonald, Inc., 726 S.E.2d 793, 797 (Ga. Ct. App. 2012)(citation omitted). “The elements for
a breach of contract claim . . . are the (1) breach and the (2) resultant damages (3) to the
party who has the right to complain about the contract being broken.” Duke Galish, LLC v.
Manton, 707 S.E.2d 555, 559 (Ga. Ct. App. 2011). Further, “[e]xcess or secondary coverage is
coverage whereby, under the terms of the policy, liability attaches only after a predetermined
amount of primary coverage has been exhausted.” Coker v. Am. Guar. & Liab. Ins. Co., 825
F.3d 1287, 1924 (11th Cir. 2016). “Thus, excess policies, by their very nature, contain an
exhaustion requirement.” Id.; see Atl. Wood Indus. v. Lumbermen’s Underwriting All., 396 S.E.2d
541, 545 (Ga. Ct. App. 1990)(concluding that the exhaustion of the limits of a primary
liability policy was “a condition precedent” to recovery under an excess policy).
Plaintiffs seem to not understand the underlying contract principle of breach. In
order for there to be a breach, there first must have been an underlying duty to perform.
Basic contract principles dictate that there cannot be a breach before there is a duty. Georgia
law requires that before Defendants’ duty to perform (i.e. provide uninsured or underinsured
motorist benefits) arises, Plaintiffs’ must exhaust other underlying policies. Thus, there is a
prerequisite to Defendants’ duty arising: exhaustion. See Atl. Wood Indus., 396 S.E.2d at 545
(finding exhaustion to be a condition precedent to excess liability insurer’s duty and plaintiff

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would only have a viable breach of contract claim if, and only if, exhaustion occurred). Said
exhaustion according to Plaintiffs occurred after initiation of the instant suit but before
Plaintiffs opposed Defendants’ motion for summary judgment. Therefore, prior to Plaintiffs
filing suit, Defendants did not have a duty and because Defendants did not have a duty,
Defendants could not have breached said duty. Plaintiffs’ Complaint is thus both defective
and premature as it alleges a breach where there was not a duty to perform. See O.C.G.A.
§ 13-3-4 (“Conditions may be precedent or subsequent. A condition precedent must be
performed before the contract becomes absolute and obligatory upon the other party.”).
Thus, Plaintiffs’ Motion for Reconsideration is hereby DENIED.
II.

Walkers’ Motion to Amend Findings and Alter or Amend Judgment Pursuant
to Fed. R. Civ. P 52(b) and 59(e)
Plaintiffs filed the instant Motion seeking relief pursuant to Federal Rules of Civil

Procedure 52(b) and 59(e) on April 27, 2016. (Doc. 121.) The Court construes Plaintiffs’
Motion as a motion filed pursuant to Rule 59(e) alone. 1 A motion for reconsideration and a
motion to amend pursuant to Rule 59(e) are, in all respects, substantially the same. See Jacobs
v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010)(“In Arthur v. King, we observed
that [t]he only grounds for granting [a Rule 59] motion are newly-discovered evidence or
manifest errors of law or fact. [A] Rule 59(e) motion [cannot be used] to relitigate old
matters, raise argument or present evidence that could have been raised prior to the entry of
judgment.”)(quotations and citations omitted). Plaintiffs’ Motion to Amend contains
language, if not almost, then completely identical to its Motion for Reconsideration. (See
Doc. 112.) As such, the Court applies its same analysis provided for Plaintiffs’ Motion for
Reconsideration here. The Court rests on its prior Order and the aforementioned reasons
stated herein, as the law has not changed, Plaintiffs provided no additional support for their
defective argument, or any additional rationale as grounds for reconsideration other than the
same argument the Court has already rejected. In the interests of brevity and efficiency, the

Some Courts have held that a Rule 52(b) motion is improper where a district court has entered an order on
a motion for summary judgment because the court does not engage in fact-finding within the meaning of
Rule 52. See Silva v. Potter, No. 804-CV-2542-T1-EAJ, 2009 WL 3219232, 2006 U.S. Dist. LEXIS 80907 at *46 (M.D. Fla. Nov. 6, 2006)(discussing difference between Rule 52(b) and Rule 59(2) and surveying caselaw).
1

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same law and findings will not be repeated. Accordingly, Plaintiffs’ Motion to Amend is
hereby DENIED.
III.

Walkers’ Motion for Relief Pursuant to Fed. R. Civ. P 60
Plaintiffs filed the instant Motion seeking relief pursuant to Rule 60 on April 14,

2016. (Doc. 115.) Plaintiffs’ Rule 60 Motion contains substantially the same arguments
Plaintiffs’ asserted in its Motion for Reconsideration and Motion to Amend. However, Rule
59(e) and Rule 60(b) are distinct. Aird v. United States, 399 F.Supp.2d 1305, 1310 n.7 (S.D.
Ala. 2004)(citing Finch v. City of Vernon, 845 F.2d 256, 258 (11th Cir. 1988)). The Eleventh
Circuit has distinguished Rule 59(e) motions from Rule 60(b) motions in the past on the
notion that Rule 59 applies to motions for reconsideration on the merits, while Rule 60
applies to motions for reconsideration on matters collateral to the merits. Id. But the
Eleventh Circuit has also acknowledged that Rule 59(e) and Rule 60(b) appear to overlap to
some extent. Id. Under a Rule 60 Motion, a party is able to raise additional basis for relief
from judgment aside from mistake, newly discovered evidence and clear error. See Fed. R.
Civ. P. 60; see also Gulf Power Co. v. Coalsales II, LLC, 2011 WL 3269412, 2011 U.S. Dist.
LEXIS 83428 at *2-4 (N.D. Fla. July 29, 2011)(discussing difference between Rule 59(e) and
Rule 60). Plaintiffs have not raised any additional arguments not included in its Motion for
Reconsideration and Motion to Amend or that the Court has not already duly considered.
Plaintiffs do attempt to argue that if the Court finds Plaintiffs’ suit is premature then
relief from judgment is warranted, concluding it would be necessary to avoid future expense
and litigation. (Doc. 115-1 at 5.) The Court construes this argument as request for relief
under Rule 60(b)(6). “Relief from judgment under Rule 60(b)(6) is an extraordinary remedy.”
Arthur, 739 F.3d at 628. “Consequently relief under Rule 60(b)(6) requires showing
extraordinary circumstances justifying the reopening of a final judgment.” Id. (citing Gonzalez
v. Crosby, 545 U.S. 524, 535 (2005)). “Even then, whether to grant the requested relief is a
matter for the district court’s sound discretion.” Id. (citing Toole v. Baxter Healthcare Corp., 235
F.3d 1307, 1317 (11th Cir. 2000)).
The Court disagrees with Plaintiffs. The Court does not find any facts warranting
final judgment in this case to be reopened. The Court finds that if this case were reopened, it

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would cause considerably even more expense and litigation in the future. This particular case
deals with one alleged act of breach of contract. Plaintiffs may still be able to file a claim in
the future alleging and pertaining to future or post-judgment breaches of contract.2 The law
is clear that a subsequent breach of contract arising after initiation of a prior suit is not
barred by either claim preclusion or res judicata.3 Therefore, the Court does not find any
harm to the Plaintiff. Thus, Plaintiffs’ Motion to Relief Pursuant to Rule 60 is DENIED.
CONCLUSION
For the aforementioned reasons, Plaintiffs’ Motion for Reconsideration (Doc. 112),
Motion for Relief from Judgment (Doc. 115) and Motion to Amend Judgment (Doc. 121)
are hereby DENIED.
SO ORDERED, this 24th day of January, 2016.
/s/ W. Louis Sands
W. LOUIS SANDS, SR. JUDGE
UNITED STATES DISTRICT COURT

But see Coker, 825 F.3d at 1296 (11th Cir. 2016)(finding O.C.G.A. § 33-7-11 does not supersede a vertical
exhaustion requirement in an excess insurance policy.)
3
See Sherrod v. School Bd. of Palm Beach County, 272 Fed. App’x 828, 830-31(11th Cir. 2008)(“Preclusion of
claims that ‘could have been brought’ does not include claims that arose after the original complaint was filed
in the prior action, unless the plaintiff actually asserted the claim in an amended pleading, but res judicata
does not bar the claim simply because the plaintiff elected not to amend his complaint. This is true even if the
plaintiff discussed the facts supporting the subsequent claim in support of his claims in the prior case.”).
2

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