Bancinsure, Inc. v. McCaffree et al

Filing 239

MEMORANDUM AND ORDER overruling 223 Motion to Amend/Correct. Signed by District Judge Kathryn H. Vratil on 4/24/14. (mm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BANCINSURE, INC.,

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Plaintiff,
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v.
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CARL L. MCCAFFREE, et al.,
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Defendants.
)
__________________________________________)

CIVIL ACTION
No. 12-2110-KHV

MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff’s Motion To Amend Judgment (Doc. #223)
filed March 26, 2014. For the following reasons, plaintiff’s motion is overruled.
First, the Pretrial Order (Doc. #160) filed June 27, 2013, does not seek damages. Plaintiff
cites pages 10 and 31 for its position that in this case, it has “maintained its claim to repayment.”
Memorandum In Support Of Motion To Amend Judgment (Doc. #224) filed March 26, 2014 at 3.
In fact, the referenced pages merely recite the terms of a binding settlement agreement by which the
parties settled the underlying action.
Second, plaintiff did not seek summary judgment on any theory of damages. If it wished to
obtain summary judgment on damages, it should have filed a timely motion to that effect. In the
alternative, it could have sought partial summary judgment on the coverage issue and left damage
issues for trial or other resolution.
Third, plaintiff has no present right to recover under the settlement agreement. The
agreement expressly contemplates that until all appeal rights are exhausted, plaintiff’s claim is
premature. Stated otherwise, no breach of the settlement agreement has occurred and no case or
controversy exists as to performance of the settlement agreement.

Fourth, even if amendment would not prevent defendants from appealing, it would be unjust
to require defendants to post a supersedeas bond for the amount of the required judgment in order
to appeal the coverage decision. As noted, their liability for that judgment has not been established
under the settlement agreement or otherwise, at this time.
IT IS THEREFORE ORDERED that plaintiff’s Motion To Amend Judgment (Doc. #223)
filed March 26, 2014 be and hereby is OVERRULED.
Dated this 24th day of April, 2014, at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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