Benchmark Insurance Company v. GL Construction Company et al

Filing 104

ORDER denying 93 Motion for Reconsideration. Signed by Judge Robert C. Jones on 6/1/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BENCHMARK INSURANCE COMPANY,

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Plaintiff,

3:14-cv-00326-RCJ-VPC

vs.

ORDER

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GL CONSTRUCTION COMPANY et al.,

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Defendants.

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This case arises from an insurance dispute. Defendant GL Construction Company

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(“GL”) and its owner, Defendant Gordon Lemich, were sued in state court by Defendants

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Cerberus Holdings, LLC (“Cerberus”) and Northern Nevada Homes, LLC (“NNH”) for

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negligent and intentional trespass arising from GL’s dumping of dirt and other debris on property

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owned by NNH (“the Cerberus Action”). During time relevant to that case, GL held a general

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commercial insurance policy (“the Policy”) from Plaintiff Benchmark Insurance Company

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(“Benchmark”). GL tendered a claim for coverage under the Policy, which Benchmark denied.

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Benchmark then sued Defendants for a declaratory judgment that it owed GL no coverage for

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Cerberus’s and NNH’s allegations.

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The Court recently granted Benchmark’s motion for summary judgment on the issue of

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whether it owed a duty to defend GL in the Cerberus Action. (ECF No. 90). This ruling came

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after the Court had denied GL and Lemich’s motion for summary judgment on the same issue,

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(ECF No. 36), as well as at least two subsequent motions for reconsideration, (ECF Nos. 56, 69).

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Now pending before the Court is a Motion for Reconsideration filed by Cerberus and NNH.

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(ECF No. 93). Cerberus and NNH claim as the basis of this Motion that recently taken

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deposition testimony demonstrates that three separate acts of dumping or trespassing occurred on

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the property at issue. Cerberus and NNH argue that even if the Policy’s deemer provision

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precludes coverage as to the first act of dumping, which they call “cut and fill,” the deemer

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provision does not preclude coverage on a “stockpiling” of dirt that occurred in 2011-2013, or a

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third instance of trespass that occurred in 2009. (Mot. for Recon. 4–8, ECF No. 93).

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A motion to reconsider must set forth “some valid reason why the court should reconsider

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its prior decision” and set “forth facts or law of a strongly convincing nature to persuade the

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court to reverse its prior decision.” Frasure v. United States, 256 F. Supp. 2d 1180, 1183 (D.

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Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is

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an intervening change in controlling law.” Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263

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(9th Cir. 1993). “A motion for reconsideration is not an avenue to re-litigate the same issues and

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arguments upon which the court already has ruled.” Brown v. Kinross Gold, U.S.A., 378 F. Supp.

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2d 1280, 1288 (D. Nev. 2005).

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The Court finds that reconsideration is not warranted here. Cerberus and NNH’s Motion

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is brought under a theory of newly discovered evidence in the form of the deposition testimony

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cited above. Evidence, however, is not considered newly discovered simply because an

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opposing party did not have the evidence prior to the order being challenged. Rather, the party

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asserting additional evidence “must show that he failed to discover that evidence earlier although

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he exercised due diligence.” Moylan v. Siciliano, 292 F.2d 704, 705 (9th Cir. 1961). Cerberus

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and NNH offer no persuasive explanation as to why they could not have obtained the depositions

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of Lemich, Fitzgerald, or any other party related to this case prior to the Court’s April 13, 2015

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order. Indeed, the Court first ruled on the issue of Benchmark’s duty to defend GL in the

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Cerberus Action back in October 2014. There is no reason why Cerberus and NNH could not

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have deposed Lemich after that ruling, or even after the Court’s denial of the first motion for

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reconsideration in January 2015, to determine whether GL’s dumping was continuous or could

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somehow be divided into different “types” of dumping as is now alleged. For this reason alone,

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reconsideration is not proper.
Furthermore, the Court finds that even if the “newly” discovered evidence were properly

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presented now, it would have no effect on the outcome of this case. The deposition testimony

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does not convince the Court that GL’s dumping should be divided into separate instances as

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Cerberus and NNH suggest. The harm alleged in the Cerberus Action is damage caused by GL’s

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dumping regardless of the purpose or objective of that dumping. The Motion to Reconsider is

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denied.

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CONCLUSION
IT IS HEREBY ORDERED that Cerberus and NNH’s Motion for Reconsideration (ECF
No. 93) is DENIED.
IT IS SO ORDERED.

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Dated: June 1, 2015
Dated: _______________________

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_____________________________________
ROBERT C. JONES
United States District Judge

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