Turubchuk et al v. E.T. Simonds Construction Company et al
Filing
223
ORDER DENYING Motion for Review filed by Southern Illinois Asphalt Company, Inc. (Doc. 208 ). Signed by Judge Staci M. Yandle on 4/14/2017. (mah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LILIYA TURUBCHUK, et al.,
Plaintiffs,
vs.
E.T. SIMONDS CONSTRUCTION
COMPANY, et al.,
Defendants.
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Case No. 12-CV-594-SMY-SCW
MEMORANDUM AND ORDER
Plaintiffs bring this action against Defendants E.T. Simonds Construction Company
(“ETS”) and Southern Illinois Asphalt Company (“SIAC”), alleging that Defendants committed
fraud by misrepresenting their insurance coverage in an underlying action which sought damages
for injuries sustained by Plaintiffs following a single vehicular accident. On January 31, 2017,
the Court granted in part Plaintiffs’ motion for summary judgment (Doc. 199). The Court denied
Defendants’ motions for summary judgment on February 3, 2017 (Docs. 200, 201).
Now
pending before the Court is SIAC’s Motion for Review (Doc. 208) in which SIAC seeks
reconsideration of the Court’s determination that no joint venture existed between SIAC and
ETS. For the following reasons, the motion is DENIED.
Motions to reconsider should rarely be granted. Bank of Waunakee v. Rochester Cheese
Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). A court should grant such a motion only in two
extraordinary situations: where the court's misapprehension has produced a manifest error of fact
or law, or where a controlling or significant change in fact or law has materialized since the court
issued its initial ruling. Id.; Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.
1987). An error of misapprehension occurs where the court patently misunderstands the issue or
decides the matter based on considerations beyond the issues presented by the parties for review.
See Bank of Waunakee, 906 F.2d at 1191.
The motion to reconsider is not an opportunity for a party whose position has been
rejected to try a different approach. See Bank of Waunakee, 906 F.2d at 1192 (distinguishing
between “a misunderstood litigant” and “an irresolute litigant that was uncertain what legal
theory it should pursue”). Evidence is not “new” if the movant could have offered it the first
time he was before the court, and the movant may not advance legal theories that—although they
were available—he declined or neglected to raise in the first instance. See Granite State Ins. Co.
v. Degerlia, 925 F.2d 189, 192 n. 7 (7th Cir.1991).
SIAC asserts that this Court made an improper sua sponte ruling in finding that, as a
matter of law, a joint venture did not exist between SIAC and ETS. SIAC further asserts that it
was not given notice or a reasonable time to respond to the contention that a joint venture did not
exist. Additionally, SIAC maintains that the Court made factual determinations without
considering all of the evidence and that if given the opportunity, SIAC could have provided
“significant evidence” establishing that a joint venture existed.
The existence of the joint venture between SIAC and ETS has been a contentious issue
since the inception of this case. Plaintiffs have persistently asserted that Defendants were not
sued as a joint venture in the underlying action. Defendants have maintained that they were
acting as a joint venture and, thus, properly produced the only relevant insurance policy – the
joint venture policy – in the underlying action. Moreover, the joint venture issue was raised
either directly or indirectly in each of the parties’ summary judgment briefings. ETS specifically
moved for the Court to find as a matter of law that Defendants were acting as a joint venture:
[A]ny notion by the plaintiffs that ETS and SIAC did not form a joint venture and
did not perform their work pursuant to IDOT Contract No. 98836 as a joint
venture is wholly without factual support. Because there is no genuine triable
issue of material fact as to whether ETS and SIAC were acting as a joint venture
in performing their work pursuant to IDOT Contract No. 98836, summary
judgment should be entered in favor of ETS as to this issue.
(See Doc. 118). Thus, SIAC’s contention that it was “taken by surprise” with the Court’s ruling
is not well taken. The Court’s determination that a joint venture did not exist was neither
improper nor sua sponte.
The Court also rejects SIAC’s argument that it could have provided “significant
evidence” establishing the existence of a joint venture. SIAC has not provided any newly
discovered facts or evidence. Whether by strategic choice or neglect, SIAC failed to provide this
alleged “significant evidence” establishing the existence of a joint venture during the summary
judgment briefings. Instead, Defendants relied almost exclusively on the language in the Joint
Venture Agreement to assert that as a matter of law they formed a joint venture – language the
Court found clearly did not support Defendant’s contentions.
In any event, SIAC’s alleged “significant evidence” – several cobbled together pages of
deposition testimony from Bill Simonds and Jim McPhail – do not create an issue of fact
regarding the joint venture status of Defendants. Rather both Simonds and McPhail testified
consistent with the Agreement, that SIAC and ETS kept their work separate (see Docs. 202-1,
202-2). The testimony also does not negate the crucial fact that neither contractor could control
the other in performing their portion of the work.
Upon review of the record, the Court remains persuaded that its ruling was correct and
that, as a matter of law, a joint venture did not exist between ETS and SIAC with respect to the
Project. Accordingly, SIAC’s motion is DENIED.
IT IS SO ORDERED.
DATED: April 14, 2017
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
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