Alterra Excess & Surplus Insurance Company v. Excel Title Agency, LLC et al
OPINION and ORDER Denying 68 Motion for Reconsideration. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ALTERRA EXCESS & SURPLUS
Case No. 2:13-cv-11672
HONORABLE STEPHEN J. MURPHY, III
EXCEL TITLE AGENCY, LLC, EXCEL
ESCROW SERVICES, LLC, and JANEL
WESTERN AMERICAN PROPERTIES,
OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION 
Defendant Western American Properties, Inc. ("WAP") moves the Court to set aside
its October 31, 2016 Order Granting Plaintiff Alterra-Excess & Surplus Insurance
Company's Motion for Summary Judgment, and the corresponding Judgment dismissing
the case with prejudice. The Court ordered a response from Plaintiff.
"It is an exception to the norm for the Court to grant a motion for reconsideration."
Maiberger v. City of Livonia, 724 F. Supp. 2d 759, 780 (E.D. Mich. 2010). The movant must
show (1) a "palpable defect by which the court and the parties and other persons entitled
to be heard on the motion have been misled"; and (2) that "correcting the defect will result
in a different disposition of the case." E.D. Mich. LR 7.1(h)(3). A "palpable defect" is one
that is "obvious, clear, unmistakable, manifest or plain." United States v. Cican, 156 F.
Supp. 2d 661, 668 (E.D. Mich. 2001).
When ruling on a motion for summary judgment, the Court is "not obliged to, and
indeed should not, rely on the nonmovant's version" of events if the non-movant's
allegations amount to "mere allegations" unsupported by factual evidence. Chappell v. City
of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009). In attempting to defeat a motion for
summary judgment, a non-moving party must rebut the movant's factual assertions with
"facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting Fed. R. Civ. P. 56(e)). Courts need not
afford the non-movant "the benefit of reasonable inferences required  to find a genuine
fact issue based on an unsupported hypothetical." Chappel, 585 F.3d at 913 (referencing
Scott v. Harris, 550 U.S. 372, 380–81 (2007)). Courts are not to "accept implausible
inferences from circumstantial evidence." Stegall v. Audette, 212 F. App'x. 402, 404 (6th
Cir. 2006) (citations omitted).
WAP presents three factual issues here as "palpable defects" sufficient to justify the
exceptional grant of a motion for reconsideration. ECF 68, PgID 1639. First, WAP argues
that the Court erred when it relied on the Perley E-Mail because there was no evidence that
ETA received it. ECF 68, PgID 1641–42. But that scenario constitutes a factually
unsupported hypothetical that Chipman did not check her email. The Court properly
discounted inferences arising from the unsupported hypothetical.
Second, WAP asserts that the Court erred when it relied on the Perley E-Mail even
though the plain reading of the email "reveals that it confirmed a settlement whereby WAP
would accept property from Metro Equity Group, LLC ("MEG") in lieu of a return of any
deposit money and there was no evidence regarding ETA's knowledge of the settlement's
status before its application was completed on March 22, 2010 because such knowledge
would be a precondition in foreseeing whether a future claim was likely[.]" ECF 68, PgID
1639, 1643–46. The record contradicts WAP's assertion. On December 10, 2009, Perley
filed a lawsuit against EES, Janel Chipman, and others in the U.S. District Court for the
Central District of California. ECF 50-23, PgID 1260. The lawsuit was filed during the period
between Perley's demand for payment by October 22, 2009 and ETA's execution of its
Alterra insurance policy on March 22, 2010. The escalation to litigation during that period
indicated that an amicable resolution of the dispute was not achieved on March 22, 2010.
And the Court cannot adopt the inference that the lawsuit did not provide Chipman or ETA
with "knowledge of the settlement's status" before executing the insurance policy with
Third, WAP contends that the Court erred when it relied on the Perley E-Mail "where
the only acts ETA engaged in were two transfers of WAP's funds to Excel Escrow Services,
LLC ("EES") (the first on August 18, 2008 and the second on September 10, 2008), which
were made at its underwriter's insistence and thereafter ETA took no further action related
to WAP or the underlying transaction[.]" ECF 68, PgID 1639, 1646–48. The record shows
that similar transactions with similarly situated investors resulted in lawsuits against MEG,
EES, ETA, and Chipman in 2008 and 2009. See ECF 50-15, 50-20, 50-21. But the
inference that past litigation related to similar plaintiffs and similar transactions does not
provide a basis for knowing or reasonably foreseeing a future claim is not dispositive.
After considering the arguments, the Court concludes that WAP does not offer a
showing of a palpable defect to justify reconsideration of the Court's prior decision.
WHEREFORE, it is hereby ORDERED that Defendant's Motion for Reconsideration
 is DENIED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: September 12, 2017
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on September 12, 2017, by electronic and/or ordinary mail.
s/David P. Parker
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