Shathaia et al v. Travelers Casualty Insurance Company of America
Filing
71
OPINION AND ORDER denying 68 Motion for Reconsideration re 66 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment t filed by Travelers Casualty Insurance Company of America. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TAM SHATHAIA, SHATHAIA
BROTHERS PROPERTY, LLC and
SHATHAIA BROTHERS, INC. d/b/a
GRATIOT-MAYFIELD MARKET,
Plaintiffs,
Case No. 12-cv-13657
Honorable Patrick J. Duggan
v.
TRAVELERS CASUALTY INSURANCE
COMPANY OF AMERICA,
Defendant.
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OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR
RECONSIDERATION
This lawsuit arises from a fire at the Gratiot-Mayfield Market in Detroit,
Michigan, and Plaintiffs’ claims for coverage for the resulting loss under an
insurance policy issued by Defendant Travelers Casualty Insurance Company of
America (“Travelers”), Policy of Insurance #I-680-2642N436-ACJ-11 (“the
Policy”). Presently before the Court is Travelers’ December 3, 2013 motion for
reconsideration pursuant to Eastern District of Michigan Local Rule 7.1(h).
Specifically, Travelers challenges this Court’s November 21, 2013 holding that a
question of fact precludes summary judgment in its favor on Plaintiffs’ business
loss income claim. On December 5, 2013, this Court issued a notice informing the
parties that it will allow Plaintiffs to file a response to the motion to the extent they
wished to do so. Plaintiffs filed a response brief on December 12, 2013.
Local Rule 7 provides that motions for reconsideration will not be granted
unless the movant demonstrates that the court and the parties have been misled by
a palpable defect and that a different disposition of the case must result from a
correction of such a palpable defect. E.D. Mich. LR 7.1(h)(3). A “palpable
defect” is “a defect that is obvious, clear, unmistakable, manifest or plain.” United
States v. Lockette, 328 F. Supp. 2d 682, 684 (E.D. Mich. 2004). A motion that
merely presents the same issues already ruled upon by the court– either expressly
or by reasonable implication– will not be granted. E.D. Mich. L.R. 7.1(h)(3).
Travelers argues in its motion for reconsideration that the “Court’s finding
that Plaintiffs did not waive their business income claim and substantially
complied with the Proof of Loss requirement is legally and factually erroneous[.]”
(ECF No. 68 at Pg ID 2091.) The Court did not make such a finding, however.
Rather, the Court stated “that a reasonable fact-finder could conclude that Plaintiffs
did not waive [Shathaia Brothers, Inc.]’s business income claim and substantially
complied with the Policy’s proof-of-loss requirement.” (ECF No. 66 at 24,
emphasis added.) In short, the Court concluded that the issue should be resolved
by a jury. This determination is not contrary to the law. See Korn v. Paul Revere
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Life Ins. Co., 382 F. App’x 443, 448 (2010) (citing Griswold Properties, LLC v.
Lexington Ins. Co., 272 Mich. App. 543, 574, 740 N.W.2d 659, 677 (2007)).
Undoubtedly Mr. Shathaia did state during his Examination Under Oath
(“EUO”) that the amount contained in his Sworn and Signed Proof of Loss
Statement (“SSPOL”) represented the amount he was claiming and that there were
no additional amounts being claimed. (ECF No. 50 Ex. 1 at 279.) Nevertheless,
Travelers had other information in its possession which contradicted this statement,
including the specific statement on the SSPOL that the business loss claim is an
open item for which an amount could not be provided at that time. (ECF No. 52.)
Moreover, Travelers was provided with documentation supporting business loss
which it had the opportunity to review (and did review) with Mr. Shathaia during
his EUO. These facts make this case distinguishable from Olivia Marie, Inc. v.
Travelers Cas. Ins. Co. of Am., No. 2:11-cv-12394, 2013 WL 572230 (E.D. Mich.
Feb. 13, 2013), cited by Travelers earlier and again in its motion for
reconsideration.
For the above reasons, the Court concludes that it did not commit a palpable
defect warranting a different disposition of Traveler’s motion for partial summary
judgment.
Accordingly,
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IT IS ORDERED, that Defendant Travelers Casualty Insurance Company
of America’s Motion for Reconsideration is DENIED.
DATED: December 17, 2013
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Raechel M. Badalamenti, Esq.
Elizabeth P. Roberts, Esq.
Michele A. Chapnick, Esq.
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