Maryland Casualty Company et al v. Dublin Eye Associates, P.C. et al

Filing 66

ORDER denying 55 Motion for Reconsideration re 50 Order on Motion for Partial Summary Judgment. Signed by Judge Lisa G. Wood on 6/30/2017. (ca)

In t|ie ?Htttteb States! BiKtrtct Court
for
^ontfiem 29tOtrtct of C^eorgta
Jinbltn IBtlitOtott

MARYLAND CASUALTY COMPANY and
FOREMOST SIGNATURE INSURANCE

COMPANY,

Plaintiffs,

CV 315-81

V.

DUBLIN EYE ASSOCIATES, P.C.;
DR. ROGER D. SMITH;
and DR. JAMES Y. JONES;
Defendants.

ORDER

Pending before the Court is Plaintiffs' Maryland Casualty
Company

(^^MCC")

and

Foremost

(^'Foremost")

(collectively

Reconsideration

(Dkt.

Signature

Insurance

'"Plaintiffs")

No. 55).

For the

Company's

Motion

for

reasons stated

below.

Plaintiffs' motion is DENIED.
FACTUAL BACKGROUND

Many of the facts of this case

are

not in dispute.

On

April 13, 2011, Defendant Jones and two other parties filed an
Employee

against
Life")

A0 72A

(Rev. 8/82)

Retirement

Income

Massachusetts
in

the

U.S.

Security

Mutual

District

Life

Act

("ERISA")

Insurance

Court for the

Company

Eastern

lawsuit

("Mass.

District

of

Kentucky.

{Dkt. No. 1 H 13).

That court ultimately granted

summary judgment in Mass. Life's favor on July 12, 2013.

Dublin

Eye Assocs., P.C. v. Mass. Mut. Life Ins. Co., 957 F. Supp. 2d

843 (E.D. Ky. 2013).

On August 12, 2013, Mass. Life filed a

claim for attorney's fees pursuant to 29 U.S.C. § 1132(g)(1).
On March 24, 2014, the motion was granted.
P.C.

V.

1217664

Mass.

(E.D.

plaintiffs

in

$1,191,799.99.

Mut.

Ky.
the

Life

Mar.

Ins.

24,

Co.,

No.

2014).

underlying

5:ll-cv-128,

Defendant

lawsuit

Dkt. No. 1 t 22.

Dublin Eye Assocs.,

were

and

ordered

2014

WL

his

co-

to

pay

On May 4, 2015, Plaintiffs

were notified of the judgment and the award of attorney's fees.
At

the

time,

MCC

insured

Defendant

with

the

following

policy ('^Policy"):
We will pay those sums that the insured becomes
legally
obligated
to
pay
as
damages
because
of
^'personal
and
advertising
injury" to
which
this
insurance applies. We will have the right and duty to
defend the insured against any ^^suit" seeking those
damages.
However, we will have no duty to defend the
insured
against
any
^'suit"
seeking
damages
for
^^personal
and
advertising injury" to
which this
insurance does not apply.
We may, at our discretion,
investigate any offense and settle any claim or '^suit"
that may result.
(Dkt. No. 1 SI 28).

Further,

the

Policy

covered

injury" arising out of ''malicious

a

^^personal

and

advertising

prosecution" (as well as a

number of other offenses not at issue in this case).

LEGAL STANDABD

A party may seek to alter or amend a judgment in a civil
case within 28 days after the entry of the judgment.
Civ. P. 59(e).
should

be

Reconsideration is an extraordinary remedy which

used sparingly.

Bostic v. Astrue, No. l:12-CV-082,

2012 WL 3113942, at *1 (S.D. Ga. July 31, 2012).
motion

may not

arguments or
prior

to

granting

be

used to

re-litigate

entry

Rule

of

59(e)

judgment,

motion

are

manifest errors of law or fact."

1343

(11th

old

A Rule 59(e)

matters, raise

present new evidence that could have been

the
a

Fed. R.

Cir.

2007)

as

^'the

only

raised

grounds

newly-discovered

new

for

evidence or

Arthur v. King, 500 F.3d 1335,

(internal

quotations

omitted).

''"Rule

59(e) is not a vehicle for rehashing arguments already rejected

by

the

court

or

for

refuting

the

court's

prior

decision."

Bostic, 2012 WL 3113942, at *1 (quoting Wendy's Int'l v. Nu-Cape
Const., Inc., 169 F.R.D. 680, 686 (M.D. Ga. 1996)).
DISCUSSION

Plaintiffs

have

failed

to

demonstrate

newly

discovered

evidence or manifest errors of law or fact that would justify
reconsideration.
considered

and

Plaintiffs
raise

new

restyle

arguments

before dismissal of their claims.

that

arguments

previously

could

been

have

made

Neither form of argument is

appropriate on a motion to alter, amend, or vacate.

Id. at *1.

Primarily, Plaintiffs point to arguments that were already
considered

on

their

motion

for

summary

judgment,

Plaintiffs assume the Court misunderstood or ignored.
not so.

which
This is

Plaintiffs assert that the Court did not address their

primary argument-that the elements of a motion for attorney's
fees under 29 U.S.C. § 1132(g)(1) need to be comparable to an

action for malicious prosecution under Kentucky law in order for
Defendant to survive summary judgment.
The

Court

only

considers

underlying

case

could

prosecution

under

Kentucky

similar,

as

Plaintiff

have

Dkt. No. 55-1.

whether

also

law—not

suggests.

the

facts

sustained
whether

See

Atl.

the
Mut.

a

from

the

malicious

two

laws

Ins.

Co.

are
v.

Atlanta Datacom, Inc., 139 F.3d 1344, 1345-46 (11th Cir. 1998)

(per

curiam).

The

holding

in

Atlanta

Datacom

undercuts

Plaintiffs' 29 U.S.C. § 1132(g)(1) arguments and therefore the
Court did not choose to analyze the cross-motions for summary
judgment through Plaintiffs' incorrect framework.

Plaintiffs assert that the Court misinterpreted the fourth
element of malicious prosecution under Martin v. 0'Daniel, 507

S.W.3d 1 (Ky. 2016).

This element requires that the malicious

prosecution proceeding must be terminated in favor of the person

against

whom

it

was

brought.

Plaintiffs

attempt to

clarify

their previous argument in that they assert that an action must
have

terminated

in

Mass.

Life's
4

favor

before

they

could

conceivably have a right to sue for malicious prosecution.
No.

55-1.

However,

underlying lawsuit.

this

is

exactly

what

occurred

Dkt.

in

the

Mass. Life was granted summary judgment and

then filed for attorney's fees.

It is difficult to conceive how

a grant of summary judgment is not a "termination" in favor of
Mass. Life.

Plaintiffs

also

re-argue

that

even

if

this

was

a

"termination," it was not on the "merits," because the case was

dismissed

on

statute

of limitations grounds.

Plaintiffs

rely

heavily on Alcorn v. Gordon, which holds that a grant of summary

judgment on the basis of the statute of limitations is not a

"success on the merits" for malicious prosecution purposes.
S.W.2d

809,

reiterates

811

that

(Ky.
the

Ct.

App.

underlying

1988).

order

First,

at

issue

the

here

762
Court

plainly

discussed the merits, under a heading aptly titled "Success On
the Merits."

Dublin Eye Assocs., 2014 WL 1217664, at *3-4.

Court

would be

was a

resolution

The

hard-pressed to deny that the underlying order
on the merits

when the judge

who issued the

decision clearly intended and labeled it to be just that.
Regardless,

the

Court

applied

the

revised

elements

set

forth by Kentucky's highest court in Martin, not those set out
by

its

intermediate

court

in

Alcorn.

These

revised

elements

simply require that the "proceeding be terminated in favor of
the

accused,"

not

that

this

termination

be

on

the

merits.

Martin, 507 S.W.Sd at 11.

In fact, the Martin decision seems to

reject the notion that a decision needs to be ^'on the merits."

For example, the Court specifically stated that the old elements^
as applied by Alcorn
Finally,

were in ^'need of revision."

Plaintiffs

argue

that

the

Court

found a fact question regarding malice.
Plaintiffs argue

that the issue

of

at 8.
inappropriately

Dkt. No. 55-1 p. 17.

whether the

action

in the

underlying lawsuit constitutes malicious prosecution is an issue
of contract construction and therefore must
Court.

However,

Instead,

the

contract

issue

is

construction
whether

is

be

decided

not the

Defendant's

by the

issue

actions

here.

in

the

underlying lawsuit support the elements of malicious prosecution
or not.

Under Kentucky law, malice is typically decided by the

fact-finder
Plaintiffs

be.

at
also

trial.

Martin,

misunderstand

2016

what the

WL

5244518,

fact-finder's

at

role

*3.
would

The Court does not, as Plaintiffs suggest, task the fact-

finder
ruling.

with

interpreting

the

Eastern

Instead, the fact-finder

Defendant's

conduct

and

decide

District

will

whether

of

Kentucky's

apply Kentucky law
Defendant

acted

^ The parties argue over whether or not Alcorn has been overruled.

to

with

While

Martin makes no mention of Alcorn, it expressly abrogates Raine v. Drasin,
621 S.W.2d 895, 899 (Ky. 1981), which is the basis of Alcorn^ s analysis.
Alcorn also relies heavily on a comment to Restatement (Second) of Torts
§ 653. The Kentucky Supreme Court appears to have considered this section in
a fair amount of detail in Martin, yet made no mention of this comment, nor
the "on the merits" requirement.
Martin, 507 S.W.Sd at 11.
As such, while
the Court cannot say whether or not Martin
decision certainly shakes Alcorn^ s foundation.

overrules

Alcorn,

the

Martin

malice or not.

See id.

As such. Plaintiffs' arguments on this

motion for reconsideration fail, and the motion will be denied.
CONCLUSION

For the reasons stated above. Plaintiffs' Maryland Casualty

Company

and

Foremost

Signature

Insurance

Company's

Partial

Motion for Reconsideration (Dkt. No. 55) is DENIED.

SO ORDERED, this 30th day of June, 2017.

HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

A0 72A

(Rev. 8/82)