DAWN RESTAURANT, INC. v. PENN MILLERS INSURANCE COMPANY
Filing
73
MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 12/2/2013. (jjc)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAWN RESTAURANT, INC. t/a KC
PRIME RESTAURANT STEAKHOUSE,
CIVIL ACTION NO. 10-2273 (MLC)
MEMORANDUM OPINION
Plaintiff,
v.
PENN MILLERS INSURANCE COMPANY,
Defendant.
THE PLAINTIFF, Dawn Restaurant, Inc. t/a KC Prime Restaurant
Steakhouse (“KC Prime”), bringing the action against the defendant,
its insurer, Penn Millers Insurance Company (“PMIC”) (see dkt.
entry no. 25, Am. Compl.); and it appearing that the action
concerns (1) KC Prime’s discovery that certain roof trusses on its
property had collapsed, (2) KC Prime’s filing of an insurance claim
(“the Claim”) against its PMIC insurance policy (“the Policy”), and
(3) PMIC’s denial of the Claim; and
KC PRIME raising three claims against PMIC; and in the first
claim, KC Prime seeking a declaration that the Policy “provides
insurance coverage to [KC Prime] for the collapse of the roof
trusses described above” and that PMIC “is obligated to pay [KC
Prime] for all sums and losses which [KC Prime] has incurred as a
result of the collapse of the roof trusses described above” (id. at
5); and KC Prime also seeking equitable relief in that claim, i.e.,
specific performance of the Policy (see id.); and KC Prime seeking
damages in the second claim for breach of contract (see id. at 56); and seeking damages in the third claim for breach of the
covenant of good faith and fair dealing (“the bad faith claim”)(see
id. at 6-7); and PMIC counterclaiming against KC Prime for alleged
violations of the New Jersey Insurance Fraud Prevention Act,
N.J.S.A. 17:33A-1, et seq. (“the Counterclaim”) (dkt. entry no. 39,
Am. Answer & Counterclaim at 12-13); and
PMIC having moved for summary judgment in its favor and
against KC Prime on all of the claims asserted against it in the
Amended Complaint (see dkt. entry no. 59, PMIC Mot.); and KC Prime
having opposed that motion (see dkt. entry no. 61, KC Prime Opp’n
Br.); and KC Prime separately moving for summary judgment in its
favor and against PMIC on the Counterclaim (see dkt. entry no. 58,
KC Prime Mot.); and PMIC opposing that motion and cross-moving for
summary judgment in its favor and against KC Prime on the
Counterclaim (see dkt. entry no. 66, Cross Mot.; dkt. entry no. 653, Br. in Opp’n to KC Prime Mot. & Supp. of Cross Mot.); and
THE COURT, finding that material facts are in dispute (see
dkt. entry no. 70, 6-3-13 Order), having denied without prejudice:
(1) KC Prime’s motion for summary judgment (dkt. entry no. 58); (2)
2
PMIC’s cross motion for summary judgment (dkt. entry no. 66); and
(3) PMIC’s motion for summary judgment (dkt. entry no. 59); and
PMIC moving pursuant to Local Civil Rule 7.1(i) for
reconsideration of the Court’s June 3, 2013 order denying summary
judgment in its favor with regard to KC Prime’s bad faith claim
(dkt. entry no. 71); and KC Prime opposing that motion (dkt. entry
no. 72); and
IT APPEARING that the Court may grant a motion for
reconsideration “only where (1) an intervening change in the law
has occurred, (2) new evidence not previously available has
emerged, or (3) the need to correct a clear error of law or
prevent a manifest injustice arises,” NL Indus., Inc. v.
Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J. 1996);
and that “such a motion should be granted only where facts or
controlling legal authority were presented to but overlooked by
the District Court,” Mauro v. N.J. Supreme Court, 238 Fed.Appx.
781, 791 (3d Cir. 2007); and that a court should only entertain
a motion for reconsideration where the overlooked matters, “if
considered by the court, might reasonably have resulted in a
different conclusion,” United States v. Compaction Sys. Corp.,
88 F.Supp.2d 339, 345-46 (D.N.J. 1999); and
IT APPEARING that under controlling law, a plaintiff must
be able to establish a right to summary judgment on the
3
substantive claim for coverage in order to establish a bad faith
claim; and that “if there are material issues of disputed fact
which would preclude summary judgment as a matter of law, an
insured cannot maintain a cause of action for bad faith,”
Ketzner v. John Hancock Mut. Life Ins. Co., 118 Fed.Appx. 594,
599 (3d Cir. 2004); see also Robeson Indus. Corp. v. Hartford
Accident & Indem. Co., 178 F.3d 160, 169 (3d Cir. 1999); Pickett
v. Lloyd’s, 131 N.J. 457, 473 (1992); and
IT APPEARING that the Court found “material issues of
disputed fact which precluded summary judgment as a matter of
law,” Ketzner, 118 Fed.Appx. at 599 (see 6-3-13 Order at 3-4);
and that PMIC raised this controlling authority in its briefing
on its motion for summary judgment (see dkt. entry no. 60-1,
Def. Br. in Supp. of Mot. for Summ. J. at 4-8); and that the
Court inadvertently overlooked this controlling authority; and
4
THE COURT intending to (1) grant the motion to reconsider,
(2) grant summary judgment in part to PMIC on the bad faith
claim, (3) deny summary judgment in part without prejudice to
PMIC on KC Prime’s remaining claims, and (4) enter judgment in
PMIC’s favor on KC Prime’s bad faith claim; and for good cause
appearing, the Court will issue an appropriate order.
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:
December 2, 2013
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?