Hansen et al v. Liberty Mutual Fire Insurance, et al

Filing 51

ORDER Denying 32 Emergency Motion to Alter, Amend, Set Aside, Reconsider, and/or Provide Relief from the September 30, 2012 Order of the Court. Signed by Judge Gloria M. Navarro on 5/28/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STEPHEN TANNER HANSEN, individually;
CLARK LEFEVRE, individually, and as parent of
CRAIG LEFEVRE,
Plaintiffs,

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vs.
LIBERTY MUTUAL FIRE INSURANCE
COMPANY, a foreign corporation; C.R.
CHANDLER; DOES 1 through 10; and ROE
CORPORATIONS 1-10.

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Defendants.

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) Case No. 2:11-cv-01519-GMN-CWH
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ORDER
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Pending before the Court is Plaintiffs Stephen Tanner Hansen and Clark Lefevre’s

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Emergency Motion to Alter, Amend, Set Aside, Reconsider, and/or Provide Relief from the

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September 30, 2012 Order of the Court. (ECF No. 32.) For the reasons below, the Motion is

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denied.

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I.

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BACKGROUND
This case arises out of the denial of coverage under a homeowner’s insurance policy.

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The facts of the case are set forth in the Court’s prior Order (ECF No. 30), which granted

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Defendant Liberty Mutual Fire Insurance’s (“Defendant”) Motion for Summary Judgment.

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Shortly after that Order was entered, Plaintiffs filed this Motion seeking reversal of the Order.

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Plaintiffs also filed a notice of appeal (ECF No. 36); however, the Ninth Circuit ordered that

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the notice of appeal is ineffective pending the resolution of the Motion presently before the

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Court. (ECF No. 49.)

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II.

LEGAL STANDARD

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Although not mentioned in the Federal Rules of Civil Procedure, motions for

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reconsideration may be brought under Rules 59(e) and 60(b). Rule 59(e) provides that any

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motion to alter or amend a judgment shall be filed no later than 28 days after entry of the

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judgment. The Ninth Circuit has held that a Rule 59(e) motion for reconsideration should not

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be granted “absent highly unusual circumstances, unless the district court is presented with

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newly discovered evidence, committed clear error, or if there is an intervening change in the

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controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873,

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880 (9th Cir. 2009) (quoting 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.

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1999)).
Under Rule 60(b), a court may relieve a party from a final judgment, order or proceeding

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only in the following circumstances: (1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged

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judgment; or (6) any other reason justifying relief from the judgment. Backlund v. Barnhart,

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778 F.2d 1386, 1387 (9th Cir. 1985). “Relief under Rule 60(b)(6) must be requested within a

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reasonable time, and is available only under extraordinary circumstances.” Twentieth Century-

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Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981) (internal citations omitted).

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A motion for reconsideration must set forth the following: (1) some valid reason why the

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court should revisit its prior order; and (2) facts or law of a “strongly convincing nature” in

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support of reversing the prior decision. Frasure v. United States, 256 F. Supp. 2d 1180, 1183

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(D. Nev. 2003). However, a motion for reconsideration is not a mechanism for rearguing issues

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presented in the original filings, Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985), or

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“advancing theories of the case that could have been presented earlier, Resolution Trust Corp.

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v. Holmes, 846 F. Supp. 1310, 1316 (S.D. Tex. 1994) (footnotes omitted). Thus, Rule 59(e)

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and 60(b) and are not “intended to give an unhappy litigant one additional chance to sway the

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judge.” Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977).

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III.

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DISCUSSION
Plaintiffs bring this motion under both Fed R. Civ. P. 59(e) and 60(b). However, the

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motion has merit under neither. Plaintiffs, with one possible exception, do not present any

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newly discovered evidence or change in the law, or any different argument from that brought

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previously in their Opposition (ECF No. 16) to Defendant’s Motion for Summary Judgment

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(ECF No. 11). Plaintiffs appear simply to claim that the Court committed clear error in its

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determination and attempts to reargue and expound upon the issues presented previously. The

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Court considered and addressed these issues in its prior Order (ECF. No. 30), and Plaintiffs

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reiteration here does not constitute facts or law of a strongly convincing nature supporting a

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reversal.

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The one possible exception mentioned is that Plaintiffs have produced deposition

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testimony obtained after the filing of its Opposition to Defendant’s Motion for Summary

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Judgment, which establishes that Liberty Mutual provided a defense and paid the settlement

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costs for Jeff Hart in relation to another lawsuit arising out of a 311 Boyz incident. Plaintiffs

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argue that, in providing this defense, Defendant waived any right to deny coverage for a lawsuit

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arising out of Jeff Hart’s actions as a member of the 311 Boyz. This argument was addressed

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in the Court’s prior Order, but the Court dismissed it, in part, because Plaintiffs had not

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presented any admissible evidence that Defendant provided coverage in a separate matter.

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However, even with the coverage of a separate incident established, Plaintiffs’ waiver

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argument still fails as a matter of law. “[A]n insurer does not waive its right to assert an

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exclusion where it has provided its insured with adequate notice of an unambiguous exception.”

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Vitale v. Jefferson Ins. Co. of New York, 5 P.3d 1054, 1059 (Nev. 2000). In the insurance

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context, “waiver applies only in instances where the insurer engaged in misconduct, such as

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‘sandbagging’ or failing to investigate a claim, or where the insured relied on an insurer’s

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misrepresentation to his detriment.” Id. (citing Intel Corp. v. Hartford Accident & Indemnity

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Co., 952 F.2d 1551, 1559-60 (9th Cir. 1991)).

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As an initial matter, the facts of the separate, covered incident are distinct from those at

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issue in this case. The deposition testimony included in Plaintiffs’ Motion also details that the

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complaint in the separate lawsuit did not allege that Hart committed an intentional act. Rather,

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all claims against Hart in that other suit were based in negligence. This stands in stark contrast

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to the facts of this case, where the event underlying all causes of action was Hart’s alleged

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throwing of rocks at the vehicle. Consequently, providing representation in the separate suit

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was not a waiver of Defendant’s known right to exclude coverage for an intentional act, but

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rather compliance with the terms of the policy.
Additionally, even assuming Plaintiffs’ factual account where Jeff Hart did not throw a

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rock,1 providing coverage for the separate incident cannot be considered a waiver under Nevada

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law. Defendant investigated the claim, and promptly notified the Harts of the denial of

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coverage and provided the reason for the denial under an unambiguous exception in the policy.

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Additionally, Defendant made no representation at the time of the separate incident that it

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would continually provide coverage for intentional acts of Mr. Hart on future, separate claims.2

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Furthermore, even if Defendant had made such representations, explicit or implicit, Plaintiffs

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have not produced any evidence that the Harts relied on the representation to their detriment.

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Thus, the new evidence presented by Plaintiffs does not affect the Court’s prior

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determination and there is no basis to reverse the Order.

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As discussed in the Court’s prior Order, Plaintiffs failed to raise a question of material fact by producing any
admissible evidence refuting Defendant’s evidence that Mr. Hart threw rocks and supporting their version of the
facts.
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It should also be noted that the parties contractually agreed that any waiver must be in writing. (ECF No. 11-5.)
Thus, it would not be reasonable for the Harts to have relied on a representation merely implied through
Defendant’s providing coverage in a separate, prior incident.

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IV.

CONCLUSION

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IT IS HEREBY ORDERED that Plaintiffs Stephen Tanner Hansen and Clark

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Lefevre’s Emergency Motion to Alter, Amend, Set Aside, Reconsider, and/or Provide Relief

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from the September 30, 2012 Order of the Court (ECF No. 32) is DENIED.

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DATED this 28th day of May, 2013.

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_____________________________
Gloria M. Navarro
United States District Judge

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