SavaSeniorCare, LLC v. Starr Indemnity and Liability Company

Filing 216

ORDER: The Insurers' 194 and 198 motions for reconsideration, or in the alternative to certify an order for interlocutory appeal are DENIED. The 200 motion to stay discovery pending the Court's resolution of the Insurers' moti ons is DENIED AS MOOT. The parties also requested an extension of certain case deadlines. Within 14 days after the entry of this Order, the parties are DIRECTED to file a joint motion proposing modified deadlines. If the parties cannot reach an agreement, they are DIRECTED to utilize the procedure concerning discovery disputes outlined in the Court's Standing Order. Signed by Judge Steven D. Grimberg on 11/18/2020. (jed)

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SAVASENIORCARE, LLC,
Plaintiff/Counterclaim Defendant,
v.
STARR INDEMNITY AND LIABILITY
COMPANY,
Defendant/Counterclaim Plaintiff,

Civil Action No.
1:18-cv-01991-SDG

and
ASPEN AMERICAN INSURANCE
COMPANY,
Defendant/Counterclaim Plaintiff.
OPINION AND ORDER
This matter is before the Court on separate motions for reconsideration, or
in the alternative to certify an order for interlocutory appeal, filed by Defendants
Starr Indemnity and Liability Company (Starr) and Aspen American Insurance
Company (Aspen) (collectively, the Insurers) [ECF 194; ECF 198].1 For the
following reasons, the Insurers’ motions are DENIED.

1

Starr and Aspen have separately requested oral argument on their motions
[ECF 195; ECF 199]. Since the Insurers’ arguments here are largely duplicative
of those raised in prior briefing, oral argument is unnecessary and the motions
are DENIED.

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 2 of 17

I.

BACKGROUND
The facts of this case relevant to the instant motions are more thoroughly set

forth in the Court’s September 29, 2020 Order (the Order).2 In that Order, the Court
granted Sava’s motion for partial summary judgment and denied separate
motions to continue filed by the Insurers.3 The crux of the Court’s Order is that the
Insurers waived their ability to assert a late-notice defense to Sava’s claims under
the Georgia Supreme Court’s decision in Hoover v. Maxum Indemnity Company,
291 Ga. 402 (2012). As a consequence, the Court dismissed certain affirmative
defenses and counterclaims asserted by the Insurers.
The Insurers disagree with the Court’s ultimate conclusions in that Order.
Accordingly, on October 10 and 13, Starr and Aspen filed separate motions for
reconsideration, or in the alternative to certify certain questions for interlocutory
appeal.4 Sava filed a response in opposition to Starr’s motion on October 27 and to
Aspen’s motion on November 2.5 Starr filed its reply on November 10.6 Aspen filed
a reply to its motion for oral argument on November 13, but did not file a reply to

2

ECF 192.

3

Id.

4

ECF 194 (Sava’s motion); ECF 198 (Aspen’s motion).

5

ECF 202; ECF 205.

6

ECF 213.

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 3 of 17

its motion for reconsideration or interlocutory appeal. Since the Insurers’ separate
motions ostensibly seek the same relief, the Court considers them in tandem,
discussing each request in turn.
a.

Reconsideration Is Not Appropriate.

The Local Rules of this Court caution that “[m]otions for reconsideration
shall not be filed as a matter of routine practice.” LR 7.2(E), NDGa. Such motions
are appropriate only if “a party believes it is absolutely necessary.” Id.
Absolute necessity is recognized in three specific scenarios; where there is:
“(1) newly discovered evidence; (2) an intervening development or change in
controlling law; or (3) a need to correct a clear error of law or fact.” Davis v. Daniels,
655 F. App’x 755, 759 (11th Cir. 2016) (citing Bryan v. Murphy, 246 F. Supp. 2d 1256,
1258–59 (N.D. Ga. 2003)). See also Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)
(“The only grounds for granting a [reconsideration] motion are newly-discovered
evidence or manifest errors of law or fact.”). Reconsideration motions are afforded
a “narrow scope” and cannot be used simply “as an opportunity to show the court
how it could have done it better[,] . . . present the court with arguments already
heard and dismissed[,] or to repackage familiar arguments to test whether the
court will change its mind.” Bryan, 246 F. Supp. 2d at 1259 (citations omitted).
See also Pres. Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs,

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 4 of 17

916 F. Supp. 1557, 1560 (N.D. Ga. 1995) (finding request for reconsideration is held
to “onerous standard”). In this vein, the moving party cannot “relitigate old
matters, raise argument or present evidence that could have been raised prior to
the entry of judgment.” Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757,
763 (11th Cir. 2005). This encompasses “new arguments that were previously
available, but not pressed.” Lopez v. City of W. Miami, 662 F. App’x 733, 738
(11th Cir. 2016). The ultimate decision on reconsideration is “committed to the
sound discretion of the district court.” Reid v. BMW of N. Am., 464 F. Supp. 2d 1267,
1270 (N.D. Ga. 2006).
The Insurers do not point the Court to newly discovered evidence or a shift
in the governing law. Their requests are wholly premised on their belief that the
Court committed several clear errors of law. For example, according to Starr, the
Court erred by finding that it “denied coverage under Hoover and thus waived its
late notice defense,” and that it “failed to properly reserve [its] rights to a late
notice defense.”7 The Court’s conclusion, argues Starr, is contrary to
“the undisputed facts.”8 Starr further contends the Court misapplied Georgia law

7

ECF 194, at 11, 15.

8

Id. at 11.

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 5 of 17

in assessing the sufficiency of a reservation of rights disclaimer.9 Aspen agrees
with Starr’s positions and adds the Court equally erred by holding Aspen
“unambiguously denied coverage.”10
The problem with the Insurers’ requests is that they are premised on
arguments, case law, and evidence available prior to, or in fact expressly raised in,
the underlying summary judgment briefing. The Court fully analyzed and
considered the merits of the Insurers’ position, but ultimately concluded that
Hoover applied and the Insurers’ actions did not comport with its directives.
Now, the Insurers recycle those same arguments armed with their belief that the
Court got it wrong the first time. This is not an appropriate method to demonstrate
that the Court committed clear error for purposes of reconsideration.
Arthur, 500 F.3d at 1343. See also Brogdon ex rel. Cline v. Nat’l Healthcare Corp.,
103 F. Supp. 2d 1322, 1338 (N.D. Ga. 2000).
To the extent the Insurers assert the Court committed clear error by relying
on inapplicable Georgia law to find they did not properly reserve their rights, the
Court does not agree. In rendering its decision, the Court combed the factual
record and found each reservation of rights disclaimer issued by the Insurers to be

9

Id. at 15–17.

10

ECF 198, at 6.

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boilerplate.11 Boilerplate disclaimers are ineffective as a matter of law.12
Starr’s reliance on Wellons, Inc. v. Lexington Insurance Company, 566 F. App’x 813
(11th Cir. 2014), is misplaced. It is true, in Wellons, the Eleventh Circuit found that
“long-standing Georgia law [ ] supports our conclusion that an effective
reservation of rights need not specify every potential basis for the reservation.”
Id. at 822. But the appellate court equally remarked that, under Georgia law:
The reservation itself must be unambiguous: At a
minimum, the reservation of rights must fairly inform
the insured that, notwithstanding the insurer’s defense
of the action, it disclaims liability and does not waive the
defenses available to it against the insured. The
reservation of rights should also inform the insured of
the specific basis for the insurer’s reservations about
coverage.
Id. at 821 (citing World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., 287 Ga. 149,
152 (2010)).
That is precisely where the Insurers’ disclaimers fall short: “[A] boilerplate
reservation of rights[ ] does not clearly put the insured on notice of the insurer’s
position.” Latex Const. Co. v. Everest Nat. Ins. Co., 11 F. Supp. 3d 1193, 1203

11

ECF 195, at 5–10.

12

See id. at 22 (citing cases).

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 7 of 17

(N.D. Ga. 2014). Considering the undisputed, material facts presented here, the
Court did not commit a clear error of law or fact.
In sum, since the Insurers have not produced new evidence, pointed to a
change in the law, or otherwise shown that the Court made “manifest errors of
law or fact,” reconsideration is not warranted. Arthur, 500 F.3d at 1343.
b.

Certification for Interlocutory Appeal Is Not Appropriate.

As an alternative remedy, the Insurers separately request the Court certify
at least five questions for interlocutory appeal. The Court may certify an order for
interlocutory appeal in only limited circumstances:
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of
the opinion that such order involves a controlling
question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing
in such order.
28 U.S.C. § 1292(b).
Interlocutory appeals should be reserved for those “exceptional cases where
a decision of the appeal may avoid protracted and expensive litigation . . . [and]
where a question which would be dispositive of the litigation is raised and there
is serious doubt as to how it should be decided.” McFarlin v. Conseco Servs., LLC,
381 F.3d 1251, 1265 (11th Cir. 2004). See also Caterpillar Inc. v. Lewis, 519 U.S. 61, 74

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 8 of 17

(1996) (“Routine resort to § 1292(b) requests would hardly comport with Congress’
design to reserve interlocutory review for exceptional cases while generally
retaining for the federal courts a firm final judgment rule.”) (punctuation omitted).
This is because “[t]he proper division of labor between the district courts and the
court of appeals and the efficiency of judicial resolution of cases are protected by
the final judgment rule, and are threatened by too expansive use of the § 1292(b)
exception to it.” McFarlin, 381 F.3d at 1259. The Court’s decision on certification is
“wholly discretionary,” but must comport with § 1292(b)’s “high threshold for
certification to prevent piecemeal appeals.” OFS Fitel, LLC v. Epstein, Becker &
Green, P.C., 549 F.3d 1344, 1358–59 (11th Cir. 2008).
Starr frames its request in the form of four broad questions:
1.
Does Hoover apply to an insurance policy without
a duty to defend provision, but that requires payment of
defense costs and gives the insurer the right to associate
in the defense of its policyholder?
2.
Is an insurance company deemed to deny
coverage subject to waiver under Hoover when it agrees
to associate in its policyholder’s defense and agrees to
provide coverage under a policy’s sublimit of liability,
subject to a reservation of rights?
3.
Does a nonwaiver clause reserving the right to
assert additional defenses, in an insurer’s coverage letter
asserting a policy sublimit applies, preserve an insurer’s
right to later assert unknown defenses?

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 9 of 17

4.
Does an insurer automatically waive unknown
defenses that it does not identify in a letter denying
coverage under Hoover?13
Aspen posits an additional, multi-faceted question:
Is a follow-form excess insurer deemed to deny coverage
subject to waiver under Hoover when it (i) adopts the
primary insurer’s coverage position limiting coverage
for a claim to a sublimit of liability, (ii) explains that the
excess policy does not drop down as a result
(iii) recognizes erosion of the underlying limit as a result
of the claim, and (iv) reserves its rights under the
policy?14
The Insurers argue that certification is warranted because each of the above is a
“question of pure law” that, taken together, constitute a “substantial part of this
case and [are] important to the parties.”15 The Court addresses each element of
§ 1292(b) in turn.
i.

The Proposed Questions Are Not Controlling Questions of
Law.

A “controlling question of law” is not one that involves “the application of
settled law to fact.” McFarlin, 381 F.3d at 1258. Such a question should likewise not
“require[ ] rooting through the record in search of the facts or of genuine issues of

13

E.g., ECF 194, at 27.

14

ECF 198, at 6–7.

15

E.g., ECF 194, at 21–22.

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 10 of 17

fact,” but be one of “pure law” on an issue the Eleventh Circuit “can decide quickly
and cleanly without having to study the record.” Id. To be “controlling,” it must
have “the potential of substantially accelerating disposition of the litigation, even
if it would not terminate the case.” Georgia State Conference of NAACP v. Fayette
Cnty. Bd. of Comm’rs, 952 F. Supp. 2d 1360, 1362 (N.D. Ga. 2013) (hereinafter, Ga.
NAACP) (highlighting the “artificiality of attempting to identify a controlling
question as an inquiry separate from the prediction whether appeal may
materially advance the ultimate termination of the litigation”).
As a threshold matter, although accompanied by a three-Justice dissent,
Hoover is established law. E.g., G.M. Sign, Inc. v. St. Paul Fire & Marine Ins. Co.,
677 F. App’x 639, 642 (11th Cir. 2016). The Insurers do not challenge the principles
underpinning Hoover in this case. The proposed questions are directed at the
application of Hoover to the specific facts of this particular case. Such a technical
dispute is not of the type appropriate for interlocutory certification. McFarlin,
381 F.3d at 1258.
What is more, these are not issues of “pure law.” The Insurers are correct
that the Order did not turn on the presence or absence of a genuine issue of
material fact. But that does not mean the factual record was irrelevant. To the
contrary, the Court probed the entire factual record. The sheer breadth of the five

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 11 of 17

questions proposed by the Insurers challenge all the Court’s findings of fact. This
would require the Eleventh Circuit to scour the evidence again to answer these
fact-dependent questions. Binding precedent militates against certification under
these circumstances. McFarlin, 381 F.3d at 1259 (“The legal question must be stated
at a high enough level of abstraction to lift the question out of the details of the
evidence or facts of a particular case and give it general relevance to other cases in
the same area of law.”).
Finally, the Insurers’ questions cannot be considered “controlling.”
An immediate answer to each—even if uniformly contrary to the Court’s Order—
would not materially advance this litigation. As stated, the Order concerned only
certain affirmative defenses and counterclaims asserted by the Insurers.
Sava’s claims would remain entirely undisturbed no matter the outcome of an
interlocutory appeal. Put another way, no matter the result, the parties would still
be required to complete fact and expert discovery, brief dispositive motions, and
potentially proceed to trial. At best, a favorable ruling for the Insurers would
provide additional arrows in their quivers to mount a defense on a future motion
for summary judgment, but do nothing to “substantially shorten the litigation.”
McFarlin, 381 F.3d at 1259.

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 12 of 17

ii.

There Is Not a Substantial Difference of Opinion Regarding
the Proposed Questions.

Not just any contrary interpretation will do for an interlocutory appeal;
a movant must “clear a high bar” to demonstrate a substantial ground for
difference of opinion. Consumer Fin. Prot. Bureau v. Frederick J. Hanna & Assocs., P.C,
165 F. Supp. 3d 1330, 1335 (N.D. Ga. 2015). It is not enough that an issue is “one of
first impression.” Ga. NAACP, 952 F. Supp. 2d at 1362. See also Frederick J. Hanna,
165 F. Supp. 3d at 1339 (“The novelty of a legal question alone cannot carry the
day here.”); In re Sci.-Atlanta, Inc. Sec. Litig., No. 1:01-cv-1950RW, 2003 WL
25740734, at *1 (N.D. Ga. Apr. 15, 2003) (“[T]he mere lack of authority as to a
disputed issue does not necessarily establish a substantial ground for difference of
opinion.”). And neither is the movant’s disagreement with the Court’s conclusion.
Sci.-Atlanta, 2003 WL 25740734, at *1 (“[T]he mere claim that the district court’s
ruling is incorrect does not support a finding that there is substantial ground for
difference of opinion.”). Even on questions of state law, the Court has a “duty to
analyze the strength of the arguments in opposition to the challenged ruling when
deciding whether the issue for appeal is truly one on which there is a substantial
ground for dispute.” Ga. NAACP, 952 F. Supp. 2d at 1362.
The Insurers posit that the concept of waiver under Hoover “is a vexing and
disputed issue of Georgia law” that “federal district courts have interpreted [ ]

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 13 of 17

differently.”16 But this argument relies on an incorrect premise. Hoover is binding,
established precedent. None of the cases cited by the Insurers call the lawfulness
of that opinion into question. Rather, these authorities highlight the uniquely
challenging inquiry under Hoover that Georgia courts have applied in different
ways depending on the discrete facts of each case. E.g., AEGIS Elec., 967 F.3d at
1228 n.1 (Wilson, J., concurring in part and dissenting in part) (“[T]he waiver
issue . . . is a vexing and disputed issue of Georgia law.”); Century Cmtys. of Ga.,
LLC v. Selective Way Ins. Co., No. 1:18-cv-5267-ODE, 2019 WL 7491504, at *3 (N.D.
Ga. Oct. 25, 2019) (“Courts have interpreted Hoover differently.”). Based on the
facts of this case, the Court found Hoover applicable and controlling.17 That the
Insurers steadfastly disagree with the Court’s conclusions is not enough to justify
certification for interlocutory review. U.S., ex rel. Powell v. Am. InterContinental
Univ., Inc., 756 F. Supp. 2d 1374, 1379 (N.D. Ga. 2010) (holding “claim that the
district court’s ruling is incorrect” does not constitute “a substantial ground for
difference of opinion”). At bottom, the Insurers’ objections do not present the

16

ECF 194, at 22–23 (citing AEGIS Elec. & Gas Int’l Servs. Ltd. v. ECI Mgmt. LLC,
967 F.3d 1216, 1228 n.1 (11th Cir. 2020) (Wilson, J., concurring in part and
dissenting in part).

17

Id. at 21.

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necessary substantial disagreement needed for certification. McFarlin, 381 F.3d at
1259 (11th Cir. 2004) (“The antithesis of a proper § 1292(b) appeal is one that turns
on whether there is a genuine issue of fact or whether the district court properly
applied settled law to the facts or evidence of a particular case.”).
iii.

Interlocutory Appeal Would Not Materially Advance the
Ultimate Termination of the Litigation.

The third consideration significantly overlaps with the first. Ga. NAACP, 952
F. Supp. 2d at 1362. As noted, immediate answers to the Insurers’ proposed
questions would not “substantially reduce the amount of litigation left in the case.”
McFarlin, 381 F.3d at 1259. And, because the Insurers seek an immediate appeal to
revive affirmative defenses and counterclaims, the requests fall squarely within
the type of piecemeal litigation disfavored by the Eleventh Circuit. Id. (“Because
permitting piecemeal appeals is bad policy, permitting liberal use of § 1292(b)
interlocutory appeals is bad policy.”).
The Court also notes that an interlocutory appeal would substantially
delay—rather than advance—the resolution of this action. The fact discovery
deadline is currently set for November 30, 2020.18 Although the deadline to file
summary judgment motions is not until March 22, 2021, Starr has already filed

18

ECF 189.

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 15 of 17

such a motion.19 An interlocutory appeal would stop this litigation in its tracks for
an indefinite period without the prospect of narrowing the issues for trial.
E.g., Frederick J. Hanna, 165 F. Supp. 3d at 1339 (“A detour of many months or a
year to the Eleventh Circuit on these issues is not likely to advance this lawsuit; it
is likely to delay it.”). See also Gass v. CBOCS, Inc., No. 4:10-cv-0225-HLM, 2011 WL
13323674, at *2 (N.D. Ga. Dec. 16, 2011) (“[A]n interlocutory appeal would not
necessarily materially advance the ultimate termination of this litigation. Instead,
an interlocutory appeal would be more likely to delay the resolution of this case
even further.”).
Starr additionally raises concerns regarding the potential duplication of
efforts—i.e., if the Insurers appeal the Order after trial and prevail, the parties may
be required to redo discovery, dispositive motions, and potentially retry the case.
But the Insurers’ allusions to judicial economy are purely speculative at this stage.
And, other courts in this circuit have outright rejected such arguments.
E.g., In re Fundamental Long Term Care, No. 8:11-bk-22258-MGW, 2019 WL 3429546,
at *3 (M.D. Fla. July 30, 2019) (“[I]f all a party had to show was that an appeal
would prevent a retrial, then all interlocutory appeals would be granted,

19

ECF 207.

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 16 of 17

inconsistent

with

public

policy

of

doing

so

only

sparingly.”);

Campbell v. Blasingame, Burch, Garrard, & Ashley, P.C., No. 1:10-cv-1663-WCOLTW, 2012 WL 13129938, at *2 (N.D. Ga. Apr. 10, 2012) (“If district courts certified
every question for an interlocutory appeal that may result in less resources being
consumed, as plaintiff advocates, then the rare exception would swallow the
rule.”).
In sum, the Court finds that the facts of this case do not warrant the
extraordinary remedy of certification for interlocutory appeal.
II.

CONCLUSION
The Insurers’ motions for reconsideration, or in the alternative to certify an

order for interlocutory appeal [ECF 194; ECF 198], are DENIED. The parties
additionally filed a consent motion to stay discovery pending the Court’s
resolution of the Insurers’ motions [ECF 200]. In light of this Order, that motion is
DENIED AS MOOT. The parties also requested an extension of certain case
deadlines. Within 14 days after the entry of this Order, the parties are DIRECTED
to file a joint motion proposing modified deadlines. If the parties cannot reach an

Case 1:18-cv-01991-SDG Document 216 Filed 11/18/20 Page 17 of 17

agreement, they are DIRECTED to utilize the procedure concerning discovery
disputes outlined in the Court’s Standing Order.20
SO ORDERED this the 18th day of November 2020.

Steven D. Grimberg
United States District Court Judge

20

ECF 97.