OWNBEY et al v. AKER KVAERNER INDUSTRIAL CONSTRUCTORS et al
Filing
604
OPINION. Signed by Judge Katharine S. Hayden on 07/09/2018. (ek)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHELBY OWNBEY AND JOYCE
OWNBEY,
Civil No.: 07-2190 (KSH)
(CLW)
Plaintiffs,
v.
AKER KVAERNER
PHARMACEUTICALS INC., JOHN
DOE CORPORATIONS 1, 2, AND 3,
JOHN DOES AND JANE DOES 1, 2, 3,
4, AND 5, IMCLONE SYSTEMS, INC.,
MID-CONTINENT CASUALTY
COMPANY, EPIC INTERIORS, LLC,
ADVANTAGE BUILDINGS &
EXTERIORS, INC., ZURICH
AMERICAN INSURANCE CO.,
OPINION
Defendants.
Before the Court are motions for reconsideration (D.E. 591, 592, and 593)
filed by third party defendants Mid-Continent Casualty Company (“MCC”) and
Zurich American Insurance Company (“Zurich”), disputing this Court’s decision
(D.E. 589) that their insureds, defendants ImClone Systems, Inc. (“ImClone”) and
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Aker Kvaerner Pharmaceuticals (“Aker”), are entitled to additional-insured
coverage under the MCC and Zurich policies. The Court has considered the parties’
written submissions, and for the reasons stated below, the motions are denied.
I.
Factual Background
An accident severely injured plaintiff Shelby Ownbey while he was working
on the site of a pharmaceutical manufacturing plant under construction. After his
personal injury claims were settled, litigation focused on insurance contracts and
indemnity agreements between and among the various defendants: the construction
site owner, ImClone; the general contractor, Kvaerner Process, a division of
Kvaerner U.S., Inc. (“Kvaerner Process”); two subcontractors, Advantage Building
& Exteriors, Inc. (“Advantage”) and Epic Interiors, LLC (“Epic”), that performed
work on the site; and MCC and Zurich, whose policies were issued in connection
with the project. (Id. at 1-3.)
These motions evolve from summary judgment motions that the Court
decided in its September 2017 written opinion (D.E. 589) that revisited and changed
its earlier ruling (D.E. 545) in favor of MCC. The initial paragraphs of the 2017
opinion summarize the who, what, where, and when (and of course, these motions
challenge the why).
Before the Court are motions for summary judgment filed by Zurich
American Insurance Company (“Zurich”) (D.E. 570), ImClone Systems,
Inc. (“ImClone”) (D.E. 571), and Aker Kvaerner Pharmaceuticals, Inc.
(“Aker”) (D.E. 572) regarding the parties’ respective rights and
obligations under an insurance policy issued by Zurich. The Court and
the parties are familiar with the facts and long procedural history of
this case, which has been the subject of motion practice that has inched
along seeking to establish the rights and exposure of various players in
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a worksite accident that significantly injured plaintiff Shelby Ownbey.
He was compensated some years ago; what has driven the litigation
since are contractual indemnities offered to the property owner,
ImClone, and construction manager, Aker, by two subcontractors
employing Ownbey and others involved in the construction project that
led to the accident, and the purported coverage that ImClone and Aker
receive under these subcontractors’ general liability policies as
additional insureds.
In these motions, ImClone and Aker seek to recover defense costs as
additional insureds under a policy issued by Zurich to subcontractor
Epic. The Zurich policy and Aker’s rights under it present
substantially the same issues the Court considered in Aker’s effort to
recoup defense costs under a policy issued by Mid-Continent Casualty
Co. (“MCC”) to a different subcontractor, Advantage Building &
Exteriors, Inc. (“Advantage”). Specifically, Aker purchased rights and
liabilities regarding the construction project from ImClone’s previous
construction manager, Kvaerner Process, pursuant to an asset
purchase agreement. Both MCC and Zurich argue that Kvaerner
Process’s additional insured rights under their policies did not pass to
Aker.
In denying Aker’s partial summary judgment as to MCC (D.E. 545)
(the “MCC opinion”), the Court offered its own interpretation of the
MCC policy and held that coverage for Aker was precluded by antiassignment language in MCC’s primary and umbrella policies. Arguing
that its policy with Epic has the same anti-assignment language,
Zurich seeks a declaration from the Court that the law of the case
doctrine precludes Aker from arguing that it obtained any additional
insured rights from Kvaerner Process under the asset purchase
agreement. Aker opposes, arguing that the Zurich and MCC policies
are distinct enough on the issue of assignment such that the Court’s
prior ruling does not apply; alternatively, Aker argues that the MCC
opinion was wrong, and that the Court should exercise its authority
under Fed. R. Civ. P. 54(b) to amend its holding.
For the reasons set forth below, the Court is satisfied that its previous
ruling is in fact in error. Therefore, this opinion revisits the issue of
coverage for Aker under the MCC policy, as is the Court’s authority
(and obligation) under Rule 54(b). See Fed. R. Civ P. 54(b); United
States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973) (“so long as the district
court has jurisdiction over the case, it possesses inherent power over
interlocutory orders, and can reconsider them when it is consonant
with justice to do so”). The Court also finds that the Zurich policy
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provides additional insured coverage for Ownbey’s accident to ImClone
and Aker.
(D.E. 589, 1-3.)
II.
Standard
New Jersey Local Civil Rule 7.1(i) permits a litigant to seek reconsideration
of a prior decision. Such a motion is intended to “correct manifest errors of law or
fact or to present newly discovered evidence.” Howard Hess Dental Labs. Inc. v.
Dentsply Int’l, Inc., 602 F.3d 237, 251 (3d Cir. 2010) (quoting Max’s Seafood Café ex
rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). The standard is
high; reconsideration is not an opportunity for a party to “re-litigate the case.” OR
v. Hunter, 576 F. App’x 106, 110 (3d Cir. 2014).
A party moving for reconsideration must establish one of the following
grounds: “(1) an intervening change in the controlling law; (2) the availability of
new evidence that was not available when the court [issued its order]; or (3) the
need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s
Seafood, 176 F.3d at 677. A motion for reconsideration is not an alternative to the
appellate process, and one that merely raises “a difference of opinion with the
court’s decision” must be denied. Fellenz v. Lombard Inv. Corp., 400 F. Supp. 2d
681, 683 (D.N.J. 2005) (Thompson, J.).
III.
Discussion
a. MCC’s Motion for Reconsideration (D.E. 591)
MCC contends that the Court’s finding in its September 1, 2017 opinion that
Aker only sought additional-insured coverage under MCC’s primary policy is clearly
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erroneous and creates manifest injustice. (D.E. 591-2, MCC’s Motion for Recon., 8.)
Because Aker also sought coverage under the umbrella policy, the Court erred,
according to the argument, in failing to analyze that policy’s impact on whether
Aker is an additional-insured. MCC also argues the decision is wrong because
Ownbey’s accident did not arise out of Advantage’s performance of on-going
operations for Aker. (Id. at 18.)
But the Court explicitly rejected MCC’s position that Aker sought coverage
under both the primary and the umbrella policy, finding that “because Aker was
only seeking coverage under MCC’s primary policy, the Court erred in considering
anti-assignment language in the MCC umbrella policy.” (D.E. 589, 2017 Opinion, 9
(emphasis added).) The primary policy clearly and unambiguously barred
assignment by a named-insured, but it allowed assignment by an additionalinsured. (Id. at 10.) The Court found as well that “Advantage’s ‘ongoing operations’
on the day of the accident were being performed for Aker as well as for ImClone,”
because “Advantage owed ongoing obligations to Aker with respect to the project.”
(Id. at 12.) Both issues MCC raises in its motion for reconsideration now were
squarely analyzed and addressed by the Court. While MCC disagrees, it fails to
point to any intervening change in law or new evidence to warrant reconsideration
and a different result. Accordingly, the motion is denied.
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b. Zurich’s Motion for Reconsideration (D.E. 592)
Zurich argues that Aker should not be considered an additional-insured on its
policy with Epic because the underlying accident did not arise out of Epic’s work
under its contract with ImClone. (D.E. 592-2, Zurich’s Motion for Recon., 6.) The
contract, Zurich urges, covered only interior carpentry and sheet-rocking, but the
accident occurred when Ownbey fell from a scaffold on the exterior of the building.
(Id. at 7.)
ImClone’s opposition argues that the Court already addressed these issues
and “Zurich has failed to set forth any new facts or argument to warrant
reconsideration.” (D.E. 595, 4; emphasis in the original.) The Court agrees, with
the observation that both movants are making the same arguments they have made
before, arguments that have been sufficiently dealt with on the trial level. Any
insurers’ remedies lie with an appellate court.1
IV.
Conclusion
MCC and Zurich have not established “the need to correct a clear error of law
or fact or to prevent manifest injustice.” Estate of Jennings v. Delta Air Lines, Inc.,
No. 15-962, 2017 WL 401945, at *2 (D.N.J. Jan. 30, 2017) (Simandle, J.). Their
motions for reconsideration are denied, and an appropriate order will be entered.
The parties are directed to confer with Magistrate Judge Cathy Waldor to schedule
Zurich’s application (D.E. 593) to join MCC’s motion was untimely filed;
notwithstanding, it merits denial for the same reasons.
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the prompt resolution of coverage issues consistent with the summary judgment
rulings in D.E. 589.
s/ Katharine S. Hayden___________
Katharine S. Hayden, U.S.D.J.
July 9, 2018
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