CRANMER et al v. HARLEYSVILLE INSURANCE COMPANY et al
OPINION. Signed by Judge Esther Salas on 6/30/16. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PHILADELPHIA INDEMNITY INSURANCE :
COMPANY & HARLEYSVILLE INSURANCE :
ANNA CRANMER, as an individual,
BRIAN CRANMER, as an individual, &
TINY TOTS DAYCARE PRESCHOOL, LLC,
a Limited Liability Company,
Civil Action No. 14-3206
SALAS, DISTRICT JUDGE
Before the Court is Plaintiffs’ motion for reconsideration pursuant to Local Civil Rule
7.1(i). (D.E. No. 41). The Court has considered the parties’ submissions and decides this motion
without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons below,
the Court denies Plaintiffs’ motion for reconsideration.
FACTUAL AND PROCEDURAL BACKGROUND
On September 18, 2015, the Court issued an Opinion and Order granting Defendant
Philadelphia Indemnity Insurance Company’s (“PIIC”) motion for summary judgment and
dismissing Plaintiffs’ claims against PIIC: Counts II and IV of the Complaint. (D.E. No. 39,
Opinion). Notably, the Court found that PIIC’s tender of the $28,582 settlement check, combined
with Plaintiffs’ depositing of that check, constituted an “accord and satisfaction” of Plaintiffs’
outstanding claims on its insurance policy with PIIC. Id.
On October 2, 2015, Plaintiffs filed the instant motion for reconsideration, asking the Court
to reconsider its September 18, 2015, Order and Opinion, arguing that summary judgment should
not have been granted for Defendant PIIC. (D.E. No. 41, Memorandum of Law in Support of
Plaintiff’s Motion for Reconsideration (“Pl. Mov. Br.”)). On October 14, 2015, Defendant PIIC
filed a brief in opposition.
(D.E. No. 45, Brief in Opposition to Plaintiffs’ Motion for
Reconsideration (“Def. Opp. Br.”)). On November 9, 2015, Plaintiff Tiny Tots filed a brief in
reply. (D.E. No. 49, Plaintiff Tiny Tots’ Reply Brief, (Pl. Reply Br.”)).
On June 14, 2016, the Court ordered the parties to submit supplemental briefing on the
following three issues:
1. Whether evidence shows that attorneys for Plaintiffs acted outside the scope of
their authority in cashing the settlement check at issue;
2. If so, can this fact vitiate Plaintiffs’ acceptance of the settlement check for the
purposes of “accord and satisfaction;”
3. Whether such a finding warrants the granting of Plaintiffs’ motion for
reconsideration in order to prevent “manifest injustice.”
(D.E. No. 58).
Accordingly, on June 22, 2016, the parties submitted simultaneous supplemental briefing.
(D.E. Nos. 59, 60). On June 27, 2016, the parties submitted simultaneous responses. (D.E. Nos.
60, 61). The matter is now ripe for resolution.
STANDARD OF REVIEW
Local Civil Rule 7.1(i) governs motions for reconsideration in this District. It requires a
movant to set forth “the matter or controlling decisions which the party believes the Judge or
Magistrate Judge has overlooked.” L. Civ. R. 7.1(i). “A motion for reconsideration is ‘an
extraordinary remedy to be granted very sparingly.’” Watkins v. DineEquity, Inc., No. 11-7182,
2013 WL 396012, at *2 (D.N.J. Jan. 31, 2013) (quoting In re Lord Abbett Mut. Funds Fee Litig.,
417 F. Supp. 2d 624, 627 (D.N.J. 2005)).
To succeed on a motion for reconsideration, the movant must show “at least 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 granted the motion for summary judgment; or (3)
the need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood
Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). “To prevail under the
third prong, the movant must show that ‘dispositive factual matters or controlling decisions of law
were brought to the court’s attention but not considered.’” Catlett v. N.J. State Police, No. 12153, 2013 WL 6095824, at *2 (D.N.J. Nov. 19, 2013) (quoting P. Schoenfeld Asset Mgmt. LLC v.
Cendant Corp., 161 F. Supp. 2d 349, 353 (D.N.J. 2001)).
In their motion for reconsideration, Plaintiffs ask the Court to reconsider its decision to
grant summary judgment in favor of Defendant PIIC on Counts II and IV of the Complaint. (Pl.
Mov. Br. at 4-5). Generally, Plaintiffs contend that “the Court’s decision is incorrect as material
facts clearly demonstrate that the elements of the doctrine of Accord and Satisfaction were not met
in the case at hand.” (Id.). According to Plaintiffs, the motion should have been denied as
premature because discovery is still incomplete. (Id. at 17).
In response, Defendant argues that the motion for reconsideration should be denied because
Plaintiffs (1) improperly introduce new evidence which was not presented in opposition to the
summary judgment motion, (2) rehash arguments already raised and decided on the motion, and
(3) raise additional arguments that they failed to raise in opposition to the motion. (Def. Opp. Br.
at 1). The Court will address each argument in turn below.
A. Arguments Raised on the Underlying Motion for Summary Judgment
Plaintiffs’ motion for reconsideration reiterates two arguments which were made
previously in opposition to the motion for summary judgment. First, Plaintiffs argue that summary
judgment was granted in error because the third element of accord and satisfaction, “acceptance,”
was not met. (Pl. Mov. Br. at 14-15). Specifically, Plaintiffs argue that there was no accord and
satisfaction because “Plaintiff viewed the check at issue as a partial payment of the undisputed
amount of the overall claim.” (Id. at 14). And second, Plaintiffs argue that summary judgment
should not have been granted because discovery in this case was incomplete at the time the motion
was decided. (Pl. Mov. Br. at 17-19; D.E. No. 28 at 7).
“[A] motion for reconsideration may not be used to re-litigate old matters or argue new
matters that could have been raised before the original decision was reached.” Fletcher v. St.
Joseph Reg’l Med. Ctr., No. 10-1499, 2013 WL 3146879, at *3 (D.N.J. June 19, 2013); see also
Warren v. Fisher, No. 10-5343, 2013 WL 6805668, at *3 (D.N.J. Dec. 20, 2013).
Here, Plaintiffs raised both arguments in their brief in opposition to the summary judgment
motion, and the Court ruled on both arguments in its September 18, 2015 Opinion. Regarding the
first argument, Plaintiffs argued in opposition to summary judgment that there was no accord and
satisfaction, despite depositing the settlement check, because “there was no acceptance of the sum
as a final settlement.” (D.E. No. 28 at 6).
The Court nevertheless found that the element of
“acceptance” was met because the law required the Court to impute agreement to Plaintiffs since
they deposited the check. (See Opinion at 8-9). The Court similarly addressed the second
argument in its September 18, 2015 Opinion, finding that it lacked merit because Plaintiffs failed
to explain “how any additional discovery could reveal any genuine issue of material fact” to defeat
summary judgment. (Opinion at 10).
Clearly, both arguments in support of the present motion constitute attempts to re-litigate
matters already decided by the Court. Accordingly, these arguments are not appropriate for a
reconsideration motion and will not be considered. Fletcher, WL 3146879, at *3.
B. Arguments Raised for the First Time on the Present Motion
Plaintiffs’ motion for reconsideration also presents several arguments that were not raised
in opposition to the underlying motion for summary judgment. First, Plaintiffs argue that the first
element of accord and satisfaction was not met because the amount of the payment owed to
Plaintiff was in fact “undisputed,” despite the Court’s holding to the contrary. (Pl. Mov. Br. at 14,
16). Specifically, Plaintiffs now argue that the check at issue constituted “an undisputed amount
in connection with a much larger, multi-tiered disputed amount.” (Id. at 14). However, as the
Court noted in its September 18, 2015 Opinion, Plaintiffs did not squarely address this issue in
their opposition brief on the underlying summary judgment motion, (See Opinion at 5), and thus
the Court will not consider any newly raised arguments on this issue in support of reconsideration.
Second, Plaintiffs argue for the first time that summary judgment should not have been
granted because Defendant PIIC violated N.J.S.A. 17:29B-1 et. seq. and N.J.A.C. 11:2-17.11(b),
which allegedly governs the practice of insurers in New Jersey under certain circumstances. (Pl.
Mov. Br. at 16-17).1
The Court notes that in Plaintiffs’ “Statement of Material Facts” included with their brief in opposition to
summary judgment, Plaintiffs cited to N.J.S.A. 17:29B-1 and asserted that under this statute, “Philadelphia
had an obligation to investigate, bargain, and settle claims in good faith.” (D.E. No. 28 at 1). However,
Plaintiffs’ briefing provided no argument on this point, and did not explain how the statute was allegedly
violated. The Court thus did not consider a violation of this statute in its summary judgment analysis, and
treats it as raised for the first time on the present motion.
Furthermore, the Court notes that Plaintiffs expanded upon their “good faith” argument in their
supplemental briefing on the present motion. (See D.E. No. 60 at 5, 15-17). However, the Court permitted
supplemental briefing only on three discreet issues, as outlined in Section I, supra, and did not permit
supplemental briefing on any other matter. Plaintiffs’ continued introduction of such arguments—even in
contravention of explicit instructions from the Court—reinforces the conclusion that Plaintiffs
impermissibly seek to use the present motion as a “second bite at the apple” of summary judgment.
Garzella v. Borough of Dunmore, No. 5-1626, 2007 WL 1450416, at *2 (M.D. Pa. May 15, 2007) (noting
In making these arguments, however, Plaintiffs fail to establish a proper basis for
reconsideration. Rather, Plaintiffs appear to be using the present motion to litigate new arguments
that should have been raised on the motion for summary judgment. Accordingly, the Court will
not consider either argument on the present motion. See Warren, 2013 WL 6805668, at *3
(“[r]econsideration is not . . . an opportunity to present new legal arguments that were available
but not advanced when the underlying motion was decided.”).
C. New Evidence Submitted in Support of Plaintiffs’ Motion for Reconsideration
Plaintiffs attach numerous items of evidence in support of their motion for reconsideration.
(See D.E. Nos. 41, 49).2 Defendant argues that this evidence should not be considered on the
present motion because Plaintiffs offer no explanation as to why the documents “were not included
in [Plainitffs’] initial opposition or supplemental filing in opposition to summary judgment.” (Def.
Opp. Br. at 7).
In considering evidence presented in support of a motion for reconsideration, courts
should, “[a]bsent unusual circumstances . . . reject new evidence which was not presented when
the court made the contested decision.” Waller v. Foulke Mgmt. Corp., No. 1:10-06342, 2012 WL
924865, at *1 (D.N.J. Mar. 19, 2012). Rather, on such a motion, the moving party may only
present evidence that it “could not earlier submit to the court because that evidence was not
that “a motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should
have been raised in connection with an earlier motion, should not provide the parties with a second bite at
Evidence attached to Plaintiffs’ moving brief, (D.E. No. 41), includes the Certification of Anna Cranmer,
a statement of loss, and a disbursement letter from the RAIN Law Firm to Cranmer, (Exhibit A); the
Certification of Matthew Kotzen, Esq., (Exhibit B); a copy of the insurance policy, (Exhibit C); PIIC’s
initial acknowledgment letter, (Exhibit D); emails from the New Jersey Department of Banking and
Insurance, (Exhibit E); and correspondence from the RAIN Law Firm, (Exhibit G). Plaintiffs attach further
evidence in support of their reply brief, (D.E. No. 49), including excerpts of the deposition testimony of
Anna Cranmer, (Exhibit AA), Michael Fromosky, (Exhibit BB), and Karl Held, (Exhibit CC).
previously available.” Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 252
(3d Cir. 2010). Thus, for example, where the moving party seeks to submit an affidavit in support
of its motion for reconsideration, courts may properly disregard the affidavit where it “contain[s]
evidence that was available prior to the summary judgment.” Harsco Corp. v. Zlotnicki, 779 F.2d
906, 909 (3d Cir. 1985).
As Defendant notes, all of the evidence submitted in support of the present motion appears
to have been available during the pendency of summary judgment, and Plaintiffs provide no
explanation why this evidence was not submitted in opposition to the motion. This alone
constitutes a sufficient basis for the court to disregard the new evidence. Howard Hess Dental
Labs. Inc., 602 F.3d at 252 (affirming district court’s refusal to consider new evidence on
reconsideration where “[n]othing in the record suggests that the evidence the [p]laintiffs sought to
present post-summary judgment was unavailable to them when they filed their summary judgment
However, representations made by Plaintiffs in these new submissions seem to suggest that
Plaintiff Anna Cranmer’s attorneys may have acted without actual or apparent authority in
depositing the settlement check on her behalf, potentially vitiating the resulting accord and
satisfaction.3 United States v. Lightman, 988 F. Supp. 448, 464 (D.N.J. 1997) (“Under New Jersey
law, it has been held that negotiations of an attorney are not binding on the client unless the client
has expressly authorized the settlement or the client’s voluntary act has placed the attorney in a
For example, the Certification of Anna Cranmer submitted with Plaintiffs’ moving brief, Cranmer certifies
that “at no time did I accept a check or even see a check from PIIC in the amount of $28,542.84.” (D.E.
No. 41-1, Certification of Anna Cranmer). Cranmer makes similar representations in her deposition, as
attached to her reply brief. (D.E. No. 49-1, Transcript of Cranmer Deposition at 320:7-21).
situation wherein a person of ordinary prudence would be justified in presuming that the attorney
had authority to enter into a settlement, not just negotiations, on behalf of the client.”).
Because of this, at the June 14, 2016 Telephone Conference, the Court granted Plaintiffs
leave to file additional certifications clarifying the circumstances surrounding their attorneys’
depositing of the settlement check on Plaintiff Anna Cranmer’s behalf. (See D.E. No. 58). The
Court also requested supplemental briefing on whether a showing that Plaintiffs’ attorneys acted
without authority would necessitate reconsideration to avoid “manifest injustice.” (Id. (citing
Max’s Seafood Cafe ex rel. Lou-Ann, Inc. 176 F.3d at 677).
On June 22, 2016, Cranmer submitted a new certification clarifying that she had in fact
been informed that her attorneys at the RAIN Law Firm had received the settlement check, and
that she had subsequently allowed the firm to deposit the check in its trust account. (D.E. No. 601, Certification of Anna Cranmer II at 6). The certification of Matthew Kotzen at the RAIN Law
Firm further supports these assertions. (See D.E. No. 60-2, Certification of Matthew Kotzen).
Based on these submissions, the Court is satisfied that Plaintiffs’ attorneys at the RAIN Law Firm
did not act outside the scope of their authority by depositing the settlement check.4 Thus, the
possibility of a “manifest injustice” resulting from a denial of reconsideration is not implicated by
these facts. See Max’s Seafood Cafe ex rel. Lou-Ann, Inc. 176 F.3d at 677 (setting forth grounds
In their supplemental briefing, Plaintiffs slightly revise their argument regarding “acceptance” of the
$28,542.84 check by contending that neither Cranmer nor her attorneys at the RAIN Law Firm intended
the depositing of the check to constitute a complete satisfaction of Defendant’s debt. (See D.E. No 60,
Plaintiffs’ Supplemental Brief at 9). However, because the new certifications requested by the Court show
that Cranmer and her counsel both approved the deposit, the Court finds this argument to be no different
than the one already decided in the Court’s September 18, 2015 Opinion. (See Opinion at 9 (finding that
“the law requires the Court to impute agreement to Plaintiffs because they deposited the check”)).
Accordingly, this argument will not be considered on the present motion for reconsideration. See Fletcher,
2013 WL 3146879, at *3 (holding that “a motion for reconsideration may not be used to re-litigate old
matters” previously decided by the court).
for reconsideration). As such, even if the Court were to consider the new certifications and
depositions submitted for the first time in support of the present motion, such evidence would not
warrant reconsideration of the motion for summary judgment. Id.
Accordingly, the Court concludes that Plaintiffs’ submissions fail to establish grounds for
For the foregoing reasons, Plaintiffs’ motion for reconsideration is denied. An appropriate
Order follows this Opinion.
/s Esther Salas
Esther Salas, U.S.D.J.
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