Accident Insurance Company, Inc. v. Deep South Roofing, LLC et al

Filing 68

ORDER finding as moot 58 Motion to Continue; denying 59 Motion for Interlocutory Appeal; denying 62 Motion for Reconsideration. Signed by District Judge Kristi H. Johnson on 5/9/2022. (ANT)

Case 3:19-cv-00010-KHJ-FKB Document 68 Filed 05/09/22 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

ACCIDENT INSURANCE COMPANY
V.

PLAINTIFF
CIVIL ACTION NO. 3:19-CV-10-KHJ-FKB

DEEP SOUTH ROOFING, LLC;
BERKLEY SOUTHEAST INSURANCE GROUP;
and LAKE CAROLINE GOLF CLUB, LLC

DEFENDANTS

ORDER
Before the Court are Defendants Berkley Southeast Insurance Group
(“Berkley”) and Lake Caroline Golf Club, LLC’s (“Lake Caroline”) Motion for
Reconsideration [62] and Plaintiff Accident Insurance Company, Inc.’s (“AIC”)
Motion to Continue [58] and Motion for Certification for Interlocutory Appeal [59].
For the following reasons, the Court denies the motions.
I.

Facts and Procedural History
These motions arise from the Court’s Order dated August 17, 2021. See Order

[56]. In that Order, the Court denied all parties’ summary judgment motions
because it found ambiguity in the Roofing Limitation Endorsement provision of
AIC’s insurance policy. Id. at 6–7. The Roofing Limitation Endorsement states,
For roofing operations, by or on your behalf, we do not cover damages,
claims, loss, costs or expense arising out of “bodily injury”, “property
damage” or “personal and advertising injury” as a result of any
operations, from initial inspection and pre-installation work to ongoing
operations and including completed operations, involving any hot tar,
wand, sprayed-on material, torch or heat applications, hot membrane
roofing or any membrane roofing system requiring heat for application.

Case 3:19-cv-00010-KHJ-FKB Document 68 Filed 05/09/22 Page 2 of 4

Policy [44-1] at 90. The policy does not define “roofing operations.”
AIC moved the Court to certify this case for interlocutory appeal “in
accordance with 28 U.S.C. § 1292(b), with a recommendation that the Court of
Appeals certify the question of law addressed in [the] Court’s Order to the
Mississippi Supreme Court, pursuant to Rule 20(a) of the Mississippi Rules of
Appellate Procedure.” [59] at 1. In response, Defendants Berkley and Lake Caroline
moved the Court to reconsider and alter/amend the August 2021 Order to enter
judgment for Defendants “so that the parties can pursue a direct appeal . . . .” [62].
AIC counters that the Roofing Limitation Endorsement unambiguously excludes
coverage but agrees with the Court that once an ambiguity is found and questions of
fact remain, the questions of fact should be resolved by the trier of fact. Mem. in
Opp. [67] at 1–2.
II.

Motion for Reconsideration [62]
Because Berkley and Lake Caroline filed the Motion for Reconsideration in

response to the Court’s Order denying summary judgment, the Court analyzes the
motion under Rule 60(b). See PHI, Inc. v. Apical Indus., Inc., 6:13-cv-15, 2017 WL
5196016, at *1 (W.D. La. Nov. 9, 2017). The Court may offer relief from a judgment
or order under Rule 60(b) for these reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule
59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;

2

Case 3:19-cv-00010-KHJ-FKB Document 68 Filed 05/09/22 Page 3 of 4

(5) the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying
it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Defendants do not show how these circumstances apply here. Nor do they
provide new argument that would otherwise justify relief under 60(b). As a result,
the Court denies the motion.
III.

Motion for Certification for Interlocutory Appeal [59] and Motion to
Continue [58]

“[A]s a general rule, parties must litigate all issues in the trial court before
appealing any one issue.” Henry v. Lake Charles Am. Press LLC, 566 F.3d 164, 171
(5th Cir. 2009). The Court may certify an otherwise-unappealable issue for
immediate appeal if: (1) it involves a controlling question of law; (2) there is
substantial ground for difference of opinion; and (3) an immediate appeal may
materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b).
District courts have “unfettered discretion to deny certification, even when all three
[statutory criteria] are satisfied.” Nieman v. City of Dallas, No. 3:14-cv-3897, 2016
WL 470235, at *3 (N.D. Tex. Feb. 8, 2016). Here, the Court found the Roofing
Limitation Exception was ambiguous according to its plain language and issues of
fact remained. See [56]. Because the Court finds not all three factors are present
and may deny certification even if they were, the Court denies both motions.
The Motion for Interlocutory Appeal [59] is denied and the Motion to
Continue [58] is denied as moot.

3

Case 3:19-cv-00010-KHJ-FKB Document 68 Filed 05/09/22 Page 4 of 4

IV.

Conclusion
The Court has considered all the arguments set forth by the parties. Those

arguments not addressed would not have changed the outcome of the Court’s
decision. For these reasons, Defendants’ Motion to Reconsider [62] is DENIED,
AIC’s Motion for Certification for Interlocutory Appeal [59] is DENIED, and AIC’s
Motion to Continue [58] is DENIED AS MOOT.
SO ORDERED AND ADJUDGED this the 9th day of May, 2022.
s/ Kristi H. Johnson
UNITED STATES DISTRICT JUDGE

4