United States Aviation Underwriters, Inc et al v. WestAir, LLC, et al.,

Filing 59

ORDER Denying 45 Defendant James Tygrett's Motion for Summary Judgment. Signed by Judge Philip M. Pro on 4/12/10. (Copies have been distributed pursuant to the NEF - EDS)

1 2 3 UNITED STATES DISTRICT COURT 4 D IS T R IC T OF NEVADA 5 6 7 8 P la in tif f s , 9 v. 10 W E S A IR , LLC and JAMES TYGRETT, 11 Defendants. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 U N IT E D STATES AVIATION U N D E R W R IT E R S , INC. and UNITED S T A T E S AIRCRAFT INSURANCE G RO U P, *** ) ) ) ) ) ) ) ) ) ) ) ) )

2 :0 8 -C V -0 0 8 9 1 -P M P -L R L ORDER

P re se n tly before the Court is Defendant James Tygrett's Motion for Summary J u d g m e n t (Doc. #45), filed on December 16, 2009. Plaintiffs United States Aviation U n d e rw rite rs, Inc. and United States Aircraft Insurance Group filed a Response (Doc. #49) w ith a supporting affidavit (Doc. #50) on January 14, 2010. Defendant James Tygrett filed a Reply (Doc. #51) on January 22, 2010. I . BACKGROUND O n June 4, 2007, Defendant James Tygrett ("Tygrett") filed a complaint in N e v a d a state court alleging negligence on the part of his employer, Defendant WesAir, LLC (" W e s A ir" ), after an airplane tire Tygrett was inflating while at work exploded, resulting in th e traumatic amputation of his right arm. (Compl. (Doc. #1), Ex. 1 at 1-3.) WesAir's in s u ra n c e providers, Plaintiffs United States Aviation Underwriters, Inc. and United States A irc ra f t Insurance Group, filed a Complaint in this Court seeking a declaratory judgment th a t the insurance policy ("Policy") with WesAir did not cover Tygrett's injuries because th e Policy excluded claims covered by worker's compensation. (Compl. at 4-6.) On

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D e c e m b e r 31, 2008, Plaintiffs moved for summary judgment, arguing that the Policy did n o t cover Tygrett's claims as a matter of law. (Pls.' Mot. Summ. J. (Doc. #21).) Both T yg re tt and WesAir, in their separate Responses, argued that Paragraph five of a Broad C o v e ra g e Expansion Endorsement covered Tygrett's claims because the Broad Coverage E x p a n s io n Endorsement was not subject to the Policy's Worker's Compensation Exclusion. (Def.'s Resp. to Pls.' Mot. for Summ. J. (Doc. #22) at 6-9; Def. WesAir, LLC's Resp. to P ls .' Mot. for Summ. J. (Doc. #23) at 13-14.) O n June 15, 2009, this Court denied Plaintiffs' Motion for Summary Judgment, c o n c lu d in g that: th e Broad Coverage Expansion does not alter the application of the W o rk e r's Compensation Exclusion. The Broad Coverage Expansion s ta te s it expands or adds coverage to the basic USAIG Policy, but " d o e s not change any of [WesAir's] coverage except as stated above." (MSJ, Ex. 1, Endorsement 11 at 1, 8.) Although the Broad Coverage E x p a n s io n makes a change to the "assumed liability" subsection of th o s e "Liability claims [Plaintiffs] won't cover," it does not change, re p la c e , or amend the subsection on "Worker's Compensation." (Id. a t 4 ¶ 13.) Because no such change exists for the Worker's C o m p e n s a tio n Exclusion, that exclusion still applies. (O rd e r (Doc. #32) at 12 (alterations in original).) However, genuine issues of fact remained a s to whether Tygrett was acting within the scope of his employment when he was injured. (Id. at 12-13.) In his current Motion for Summary Judgment, Tygrett argues the Court was m ista k e n in its construction of the Broad Coverage Expansion. Tygrett contends the C o u rt's conclusion is not supported by Nevada law because Nevada law requires any a tte m p t to restrict insurance coverage be done explicitly. Plaintiffs respond that this Court a lre a d y rejected Tygrett's arguments in its Order. I I . DISCUSSION T h is Court is not bound by the label a party gives its document. Andersen v. U n ite d States, 298 F.3d 804, 807 (9th Cir. 2002). Although Tygrett titles his motion as one 2

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f o r summary judgment, his motion more aptly is characterized as a motion for re c o n s id e ra tio n . This Court has inherent jurisdiction to reconsider its interlocutory orders.1 U n ite d States v. Martin, 226 F.3d 1042, 1048-49 (9th Cir. 2000). Under Federal Rule of C iv il Procedure 54(b), this Court may revise any order adjudicating fewer than all the c la im s in an action at any time before the entry of a final judgment. "Reconsideration is a p p ro p ria te if the district court (1) is presented with newly discovered evidence, (2) c o m m itte d clear error or the initial decision was manifestly unjust, or (3) if there is an in te rv e n in g change in controlling law." Sch. Dist. No. 1J, Multnomah County, Or. v. A C a n d S , Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). "A motion for reconsideration is not an a v e n u e to re-litigate the same issues and arguments upon which the court already has ru le d ." In re AgriBioTech, Inc., 319 B.R. 207, 209 (D. Nev. 2004). In his present motion, Tygrett asserts no new facts or change in controlling law. This Court construes Tygrett's arguments that the Order was not supported by Nevada law a s an argument that this Court committed clear error. However, Tygrett's arguments in his c u rre n t Motion are the same as those he presented in his Opposition to Plaintiffs' Motion f o r Summary Judgment. The Court already has considered and rejected those arguments. To the extent Tygrett presents any new arguments, Tygrett waived those arguments because th e y were available but not raised in Tygrett's Response to Plaintiffs' Motion for Summary J u d g m e n t. The Court therefore will deny the Motion. /// /// ///

A denial of summary judgment is generally considered interlocutory in character and is not a final judgment. Brodheim v. Cry, 584 F.3d 1262, 1274 (9th Cir. 2009). As such, F e d e r a l Rules of Civil Procedure 59(e) and 60(b) do not apply to this case because they are in v o k e d only when a party moves for reconsideration of "final, appealable orders." United S ta te s v. Martin, 226 F.3d 1042, 1048 n.8 (9th Cir. 2000). 3

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I I I . CONCLUSION IT IS THEREFORE ORDERED that Defendant James Tygrett's Motion for S u m m a ry Judgment (Doc. #45) is hereby DENIED.

D A T E D : April 12, 2010 _______________________________ PHILIP M. PRO United States District Judge

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