RPM Pizza, LLC v. Argonaut Great Central Insurance Company

Filing 126

RULING AND ORDER denying 111 and 112 Motions for Reconsideration; denying as moot 119 and 125 Ex Parte MOTIONS for Leave to File a Reply to Argonaut's Memorandum in Opposition. Signed by Chief Judge Brian A. Jackson on 07/30/2013. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

RPM PIZZA, LLC D/B/A DOMINO’S PIZZA
CIVIL ACTION
VERSUS
NO. 10-684-BAJ-SCR
C/W NO. 12-147

ARGONAUT GREAT CENTRAL INSURANCE
COMPANY
RULING AND ORDER
This

matter

is

before

the

Court

pursuant

to

two

Motions

for

Reconsideration. These Motions include: (1) a Motion for Reconsideration filed
on behalf of Plaintiff-In-Intervention Domino’s Pizza, LLC (“Plaintiff Domino’s
Pizza”) (doc. 111);1 and (2) a Motion for Reconsideration filed on behalf of
Plaintiff RPM Pizza, LLC (“Plaintiff RPM Pizza”) (doc. 112).2
Defendant Argonaut Great Central Insurance Company (“Defendant
Argonaut”) has filed oppositions to the Motions by both Plaintiffs (docs. 113,
115). Because each Motion for Reconsideration involves subject matter that
comprises a material part of the subject matter of the other, both motions are
handled jointly. This is a consolidated suit brought under the diversity jurisdiction
of this Court pursuant to 28 U.S.C. § 1332.

1

Plaintiff-In-Intervention Domino’s Pizza seeks reconsideration of this Court’s judgment solely regarding
Domino’s entitlement to penalties under Louisiana Revised Statues section 22:1892.
2
Plaintiff RPM Pizza seeks reconsideration of this Court’s judgment on the same grounds as Plaintiff-inIntervention Domino’s Pizza. However, RPM also asks that this Court reconsider its judgment of
Argonaut’s alleged breach of its duty to defend RPM.

The Court denies the Motions for Reconsideration of this Court’s judgment
regarding either party’s entitlement to penalties under Louisiana Revised Statues
section 22:1892. The Court also denies RPM’s Motion to Reconsider this Court’s
judgment of Argonaut’s alleged breach of its duty to defend RPM. The Court,
however, amends its prior order deferring the determination of the amount of
defense expenses and costs owed to Plaintiffs to the Magistrate Judge. The
Court defers those amounts to trial. The Court reaches these conclusions for the
following reasons.
First, with regard to the Motions for Reconsideration before the Court,
neither Plaintiff cites to new case law in support of their position. Motions to
reconsider should not be granted unless there is: (1) an intervening change in
controlling law; (2) the availability of new evidence not previously available; and
(3) the need to correct a clear error of law or fact or to prevent a manifest
injustice. Brown v. Mississippi Co-op. Extension Serv., 89 Fed. Appx. 437, 437
(5th Cir. 2004) (citing cases).
Here, each Plaintiff relies on prior arguments to support the contention that
there is no genuine issue of material fact with regard to each Plaintiff’s
entitlement to statutory penalties.

Both Plaintiffs contend that Defendant

Argonaut’s failure to pay defense costs within the thirty-day statutory period
automatically deems its actions arbitrary, capricious, or without probable cause.
The Court disagrees.

2

As noted in this Court’s prior ruling, the extent of Defendant Argonaut’s
liability under the agreement remains disputed.

In fact, prior to this Court’s

Ruling and Order, the parties disputed whether Louisiana law even applied under
the agreement (doc. 110, at 5-6). When there are “substantial, reasonable,
and legitimate questions as to the extent of an insurer’s liability or an insured’s
loss, failure to pay within the statutory time period is not arbitrary,
capricious or without probable cause.” (emphasis added) Louisiana Bag Co.,
Inc. v. Audubon Indem. Co., 2008-0453 (La. 12/2/08), 999 So. 2d 1104, 1114.
Similarly, RPM fails to raise new arguments for the reconsideration of this
Court’s judgment regarding Argonaut’s alleged breach of its duty to defend RPM.
The Court denies Plaintiff RPM’s Motion for Reconsideration on those grounds
also, as RPM merely rehashes the same arguments that were presented in its
Motion for Partial Summary Judgment.
Finally, the Court amends its prior order deferring the determination of the
amount of defense expenses and costs owed to Plaintiffs to the Magistrate
Judge. The Court defers those amounts to trial. The Advisory Committee Notes
after the 1993 amendments to Rule 54 give clarity to this issue. Specifically, the
Advisory Committee Notes explain that attorney’s fees/expenses by motion
procedure do not apply to fees recoverable as an element of damages, as when
sought under the terms of a contract; such damages typically are to be claimed in
a pleading and may involve issues to be resolved by a jury. Fed. R. Civ. P. 54.

3

According to the pleadings in this case, the defense expenses and costs
owed to Plaintiffs are part of Plaintiffs’ breach of contract damages (for both
Domino’s and RPM).

Since there are genuine issues of material fact as to

whether Defendant breached its duty to defend and as to the amount of defense
expenses and costs owed, such issues shall be considered by the jury.
Accordingly, the Court defers the determination of the amount of defense
expenses and costs owed to Plaintiffs to trial.
CONCLUSION
For the foregoing reasons, Plaintiff-In-Intervention Domino’s Pizza’s Motion
for Reconsideration (doc. 111) and Plaintiff RPM Pizza, LLC.’s Motion for
Reconsideration (doc. 113) are hereby DENIED. Further, the Court amends its
prior ruling and defers the determination of the amount of defense expenses and
costs owed to Plaintiffs to trial. Both Domino’s and RPM’s Ex Parte Motions for
Leave to File a Reply to Argonaut’s Memorandum in Opposition are hereby
DENIED as moot (docs. 119, 125).
Baton Rouge, Louisiana, July 30, 2013.

_____________________________
BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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