Affton Fabricating & Welding Co., Inc. et al v. Carolina Casualty Insurance Company

Filing 48

ORDER denying 45 Motion for Reconsideration. Signed by Chief Judge David R. Herndon on 5/19/11. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AFFTON FABRICATING & WELDING CO.,
INC., and AMERISURE MUTUAL INSURANCE
COMPANY,
Plaintiffs/Counter-Defendants,
v.
CAROLINA CASUALTY INSURANCE
COMPANY,
Defendant/Counter-Plaintiff.

No. 10-0084-DRH

MEMORANDUM and ORDER
HERNDON, Chief Judge:
I. Introduction and Background
Pending before the Court is Carolina Casualty Insurance Company’s
motion to reconsider (Doc. 45). Specifically, defendant/counter-plaintiff moves the
Court to reconsider its January 24, 2011 Order granting summary judgment on
behalf of Affton Fabricating & Welding Co., Inc. (“Affton”) and Amerisure Mutual
Insurance Company (“Amerisure”) and against Carolina Casualty Insurance Company
(“Carolina Casualty”) (Doc. 43). Obviously, plaintiffs oppose the motion (Doc. 47).
Based on the following, the Court denies the motion.
On January 24, 2011, the Court entered an Order granting summary
judgment in favor of plaintiffs/counter-defendants and against defendant/counterplaintiff finding and declaring that Carolina Casualty owes a duty to defend and
indemnify Affton for any liability it may have to any claimant for damages on account
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of the incident of June 29, 2008 involving the trailer owned by Parrish Leasing
Company (Doc. 43).

That same day, the Clerk of the Court entered judgment

reflecting the same (Doc. 44).

Thereafter, Carolina Casualty filed a motion to

reconsider pursuant to Federal Rule of Civil Procedure 59(e) (Doc. 44). Specifically,
Carolina Casualty argues that the Court erred in relying upon the word “use” as
defined in Schultz v. Illinois Farmers Ins. Co., 237 Ill.2d 391 (Ill. 2010); that the
Court erred in summarily rejecting as distinguishable two Illinois Appellate cases in
a footnote; the Court erred by failing to address other cases it cited, including a
Michigan appellate court decision; the Court erred in characterizing Affton’s use of
the trailer as “constant” and Affton’s actions in parking the trailer as part of
“business relationship” between Affton and Parrish Leasing Company; that the Court
erred in finding Carolina Casaulty’s policy to be primary and the Court erred in
finding that Carolina Casualty owes a duty to indemnify as premature.1 Plaintiffs
respond, and the Court agrees, that Carolina Casualty presents no new reasoning,
law or facts which would justify reconsideration of the Court’s Order.
II. Analysis
First, a “Motion to Reconsider” technically does not exist under the
Federal Rules of Civil Procedure. The Seventh Circuit has held, however, that a
motion challenging the merits of a district court order will automatically be
considered as having been filed pursuant to Rule 59(e) or Rule 60(b) of the Federal

1

As to the indem nification issue, this argum ent is m oot. Affton’s response states that the
underlying m atter has been resolved on behalf of Affton in a settlm ent of $5,000.00. (Doc. 47, p. 6).

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Rules of Civil Procedure. See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir.1994);
United States v. Deutsch, 981 F.2d 299, 300 (7th Cir.1992). When, as here, the
motion to reconsider was filed within 28 days of the entry of the challenged order,
whether the motion is analyzed under Rule 59(e) or Rule 60(b) depends upon the
substance of the motion, not on the timing or label affixed to it.2 Borrero v. City of
Chicago, 456 F.3d 698, 701–02 (7th Cir. 2006).
A motion to alter or amend judgment filed pursuant to Rule 59(e) may
only be granted if a movant shows there was mistake of law or fact, or presents newly
discovered evidence that could not have been discovered previously. Harrington v.
City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006); Romo v. Gulf Stream Coach,
Inc., 250 F.3d 1119, 1121 n. 3 (7th Cir. 2001)(“Rule 59(e) requires that the moving
party ... ‘present newly discovered evidence’ or ‘clearly establish a manifest error of
law or an intervening change in the controlling law.’”); Matter of Prince, 85 F.3d 314
(7th Cir.1996), reh'g and suggestion for reh'g en banc denied, cert. denied 519 U.S.
1040; Deutsch v. Burlington Northern R. Co., 983 F.2d 741 (7th Cir.1993). Rule
60(b) provides for relief from judgment for “mistake, inadvertence, surprise, or
excusable neglect.” Fed. R. Civ. P. 60(b)(1). However, the reasons offered by a
movant for setting aside a judgment under Rule 60(b) must be something that could
not have been employed to obtain a reversal by direct appeal. See, e.g., Bell v.
Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000); Swam v. U.S., 327 F.2d

2

As of Decem ber 1, 2009, m otions under Rule 59(e) must be filed “no later than 28 days
after the entry” of the challenged order.

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431, 433 (7th Cir.), cert. denied, 379 U.S. 852 (1964) (a belief that the Court was
mistaken as a matter of law in dismissing the original petition does “not constitute
the kind of mistake or inadvertence that comes within the ambit of rule 60(b).”).
Here, Carolina Casualty’s clearly attacks the merits of the Court’s Order, thus, the
Court will analyze the motion under Rule 59(e) standards.
Although Rule 59 relief is appropriate if the movant “presents newly
discovered evidence that was not available at the time of trial or ... points to evidence
in the record that clearly establishes a manifest error of law or fact,” such relief is not
properly awarded based on arguments or theories that could have been proffered
before the district court rendered judgment. County of McHenry v. Insurance Co.
of the West, 438 F.3d 813, 819 (7th Cir. 2006)(citing LB Credit Corp. v. Resolution
Trust Corp., 49 F.3d 1263 (7th Cir. 1995)). The Seventh Circuit has emphasized
that Rule 59(e) may not be used to relitigate issues already argued or to present new
arguments that could have been presented before judgment was entered. See, e.g.,
Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d at 1264, 1270 (7th
Cir. 1996); Bally Export Corp. v. Balicar Ltd., 804 F.2d 398, 404 (7th Cir. 1986);
Publishers Resource, Inc., v. Walker-Davis Publications, Inc., 762 F.2d 557, 561
(7th Cir. 1985).
The Court finds that defendant/counter-plaintiff neither presented newly
discovered evidence nor identified a manifest error of law or fact. Here, Carolina
Casualty rehashes arguments already presented to and rejected by the Court. The
motion merely takes umbrage with the Court’s ruling. Carolina Casualty has not

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demonstrated -and the record reveals -no basis warranting relief under Rule 59(e).
The Court remains convinced of the correctness of its decision.
III. Conclusion
Accordingly, the Court DENIES the motion to reconsider (Doc. 45).
IT IS SO ORDERED.
Signed this 19th day of May, 2011.
Digitally signed by
David R. Herndon
Date: 2011.05.19
12:26:58 -05'00'

Chief Judge
United States District Court

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