Mississippi Farm Bureau Casualty Insurance Company v. Amerisure Insurance Company

Filing 86

ORDER denying 78 Motion for Reconsideration. Signed by District Judge Carlton W. Reeves on 02/28/2013. (JA)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
MISSISSIPPI FARM BUREAU
CASUALTY INSURANCE COMPANY,
INDIVIDUALLY AND AS EQUITABLE
SUBROGEE OF THE CONLAN COMPANY
V.

PLAINTIFF

CIVIL ACTION NO.: 3:11-CV-706-CWR-FKB

AMERISURE INSURANCE COMPANY

DEFENDANT

ORDER DENYING MOTION FOR RECONSIDERATION
Before the Court is Plaintiff Mississippi Farm Bureau Casualty Insurance Company’s
Motion for Reconsideration, Docket No. 78. The Plaintiff seeks reconsideration of the Court’s
January 24, 2013, Memorandum Opinion and Order, Docket No. 71, granting Defendant
Amerisure Insurance Company’s Motion for Summary Judgment, Docket No. 36. The
Defendant opposes the Plaintiff’s Motion for Reconsideration, Docket No. 80. The Court, after
reviewing the parties’ submissions and relevant law, finds that the motion must be DENIED.
I. LEGAL STANDARD
Motions to reconsider are treated as motions to alter or amend a judgment under Federal
Rule of Civil Procedure 59(e). Nationwide Mut. Fire Ins. Co. v. Pham, 193 F.R.D. 493, 494
(S.D. Miss. 2000); Lopez v. City of Biloxi, Miss., No. 1:03-cv-122-WJG-JMR, 2006 WL
2255149, at *1 (S.D. Miss. Aug. 6, 2006). “Reconsideration of a judgment is an extraordinary
remedy which should be used sparingly and should not be used to relitigate old matters, raise
new arguments or present evidence that could have been raised prior to entry of judgment.”
Sevel v. BP Products North America, Inc., No. 1:10cv179HSO-JMR, 2010 WL 2776369, at *1
(S.D. Miss. July 13, 2010) (citations omitted). There are only three possible grounds for
reconsideration: “(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 prevent
manifest injustice.” Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss.
1990).
II. DISCUSSION
On January 24, 2013, the Court granted Amerisure Insurance Company’s (“Amerisure”)
Motion for Summary Judgment, concluding that Mississippi Farm Bureau Casualty Insurance
Company (“Farm Bureau”) could not recover from Amerisure a portion of the costs that Farm
Bureau expended while defending The Conlan Company (“Conlan”) in an Alabama state court
lawsuit. See Docket No. 71. The Court’s Order states, “Because Farm Bureau had no
contractual obligation to defend Conlan against counts two and four [of the Alabama lawsuit],
but chose to do so without exercising the legal remedies available to it to resist Conlan’s and
Amerisure’s demands for Conlan’s full defense, Mississippi’s volunteer payment doctrine bars
Farm Bureau from recovering costs from Amerisure in this action.” Docket No. 71, at 17.
Mississippi’s voluntary payment doctrine provides that “a voluntary payment can not be
recovered back, and a voluntary payment within the meaning of this rule is a payment made
without compulsion, fraud, mistake of fact, or agreement to repay a demand which the payor
does not owe, and which is not enforceable against him, instead of invoking the remedy or
defense which the law affords against such demand.” McDaniel Bros. Constr. Co. v. BurkHallman Co., 175 So. 2d 603, 605 (Miss. 1965) (quoted in Genesis Ins. Co. v. Wausau Ins. Cos.,
343 F.3d 733, 736 (5th Cir. 2003)).
After the Court granted summary judgment in favor of Amerisure, Farm Bureau timely
filed its Motion for Reconsideration under Federal Rule of Civil Procedure 59 on February 19,
2013, asserting that “the Court’s opinion contains manifest errors of law and fact, and that the
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Plaintiff will suffer substantial harm should the Court adhere to its present ruling.” Docket No.
78, at 1. Farm Bureau’s brief in support of its motion echoes the arguments that Farm Bureau
put forth in its opposition to Amerisure’s Motion for Summary Judgment. Farm Bureau asserts
that the volunteer payment doctrine does not apply in this case because at the time Farm Bureau
provided Conlan’s defense, a genuine dispute of material fact existed regarding whether defense
costs could be allocated between the claims for which Farm Bureau was responsible for
providing Conlan a defense, and the claims for which Farm Bureau had no duty to provide a
defense. See Docket No. 79, at 5. If the defense costs were incapable of being allocated, Farm
Bureau opines that it would have been responsible for the entire cost of defending Conlan. See
id. Hence, Farm Bureau insists that it did not volunteer to provide Conlan a full defense because
it possibly had a legal obligation to pay the defense costs. See id. The Court addressed each of
these arguments in its Order granting summary judgment, and Farm Bureau has failed to
demonstrate that the Court clearly erred in its analysis of the law and facts on these issues.
Reconsideration is, therefore, inappropriate.
Farm Bureau also asserts that the consequences it may have faced if it did not pay for
Conlan’s entire defense “was of a sufficiently dire magnitude to justify a finding that any
payments made in defending the claims not covered under the applicable Farm Bureau policy
were compelled.” Docket No. 79, at 10-11. On this issue, Farm Bureau mentions the possibility
of being sued for bad faith if a court were to determine that it was required to defend Conlan
against all claims. Farm Bureau did not raise or present evidence on this issue in its opposition
to Amerisure’s Motion for Summary Judgment and, therefore, has waived the argument. See
Indep. Coca-Cola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola Bottling Co.
United, Inc., 114 F. App’x 137, 143-44 (5th Cir. 2004) (unpublished) (holding that party’s failure
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to raise an argument in opposition to summary judgment waived the argument). See also Nabers
ex rel. Emergystat, Inc. v. Morgan, No. 3:09-cv-70-CWR-FKB, 2011 WL 1884721, at *1 (S.D.
Miss. May 17, 2011) (motion for reconsideration is not proper vehicle through which to raise
new arguments); Patterson v. Alcorn County Sch. Dist., No. 1:06CV339, 2008 WL 2164691, at
*1 (N.D. Miss. May 22, 2008) (arguments raised for the first time via motion for reconsideration
are procedurally barred).
Even if Farm Bureau’s argument regarding its potential liability has not been waived,
Mississippi law specifically provides that the threat of a lawsuit does not amount to compulsion.
See McLean v. Love, 157 So. 361, 362 (Miss. 1934) (“[T]he only compulsion suggested was a
threat to sue, which is not compulsion . . . .”). Thus, Farm Bureau’s fear of a suit against it if it
did not provide a full defense to Conlan does not amount to compulsion. Furthermore, Farm
Bureau has still not addressed whether the financial risk that it faced if it refused to provide
Conlan a full defense was “different and disproportionately greater” than the cost of defending
Amerisure against claims that were not covered under Farm Bureau’s policy. See Genesis, 343
F.3d at 739-40. Farm Bureau merely points to the $25,000.00 limit of the applicable insurance
policy, which is irrelevant to the issue in this case—the cost of Farm Bureau providing a defense
to Conlan for claims not covered under the insurance policy.
The Court also notes that Farm Bureau, an insurance company that regularly litigates
coverage issues, including defending itself against bad faith claims, has not suggested that its
potential costs for refusing to provide Conlan a defense for noncovered claims would have such
“a disastrous effect to business” that Farm Bureau was compelled to provide the defense. Id. at
740 (citation omitted). Nor has Farm Bureau demonstrated that at the time it paid for Conlan’s
full defense, it had the requisite “sense of immediacy often accompanied by compelled
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payments.” Id. at 739.
Having failed to establish an intervening change in controlling law, new evidence not
previously available, clear error of law, or manifest injustice, Farm Bureau is not entitled to
reconsideration of the Court’s Order granting summary judgment in favor of Amerisure.
III. CONCLUSION
For the foregoing reasons, the Plaintiff’s Motion for Reconsideration is DENIED.
SO ORDERED, this the 28th day of February, 2013.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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