James River Insurance Company et al v. Indian Harbor Insurance Comapny

Filing 57

ORDER denying 39 Motion for Reconsideration. The motion for reconsideration is denied in its entirety. The Clerk of Court is directed to close the motion at Docket Number 39. So Ordered. (Signed by Judge J. Paul Oetken on 6/23/2020) (js)

Case 1:18-cv-00767-JPO Document 57 Filed 06/23/20 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JAMES RIVER INSURANCE
COMPANY et al.,
Plaintiffs,

18-CV-767 (JPO)
ORDER

-vINDIAN HARBOR INSURANCE
COMPANY,
Defendant.

J. PAUL OETKEN, District Judge:
Plaintiffs James River Insurance Company and Certified Safety, Inc. move this Court to
reconsider the Opinion and Order entered on October 31, 2019, in which the Court denied
Plaintiffs’ motion for summary judgment. (Dkt. No. 37.) The motion for reconsideration is
denied.
Reconsideration is an “extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources.” Drapkin v. Mafco Consol. Grp., Inc., 818
F. Supp. 2d 678, 695 (S.D.N.Y. 2011). It will “generally be denied unless the moving party can
point to controlling decisions or data that the court overlooked — matters, in other words, that
might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995).
Plaintiffs first argue that they are entitled to summary judgment on the issue of notice.
On the undisputed facts, Plaintiffs argue, they gave timely notice to Indian Harbor of their
insurance claim. Although neither Certified (the insured) nor Assurance Agency (its insurance
broker), gave actual notice of the claim to Indian Harbor, Plaintiffs argue that Certified provided

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timely notice to Assurance and that such notice sufficed because Assurance was acting as an
agent of Indian Harbor.
In its Opinion and Order, the Court denied summary judgment on this issue because the
existence of an agency relationship is “normally a question of fact” that is “inappropriate for
resolution on a motion for summary judgment.” Green Door Realty Corp. v. TIG Ins. Co., 329
F.3d 282, 289 (2d Cir. 2003). Plaintiffs’ motion for reconsideration identifies no reason to
disturb that judgment. Although Plaintiffs cite record evidence suggesting that Assurance
sometimes accepted insurance claims on behalf of Indian Harbor (see Dkt. No. 39-1 at 5–8), the
record also contains contrary evidence suggesting that, for example, officers of Certified
understood that Assurance could not accept claims on behalf of Indian Harbor (see Dkt. No. 44
at 9–11; see also Dkt. No. 29-1 ¶¶ 47, 48; 30-1 at 12–13.).1 Such factual disagreement precludes
summary judgment.
Plaintiffs next argue that they are entitled to summary judgment on the issue of coverage
under the “professional services” provision of their insurance policy with Indian Harbor. In its
Opinion and Order, the Court denied summary judgment on this issue because of factual
uncertainty about the precise nature of the services rendered by Certified. In their
reconsideration motion, Plaintiffs now dispute the Court’s construction of the term “professional
services.” (Dkt. No. 9–13.) In support, however, Plaintiffs only repeat arguments already
advanced in favor of their interpretation. The Court rejected those arguments in its initial

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Plaintiffs dispute the admissibility of deposition testimony from Certified’s Chief
Operating Officer, Robert Matteson, because the testimony “was solicited improperly by a
nonfactual hypothetical.” (Dkt. No. 45 at 2.) The deposition transcript, however, indicates that
Matteson was testifying about his own understanding of Assurance’s relationship with Indian
Harbor, which is permissible under the Federal Rules of Evidence. (See, e.g., Dkt. No. 31-1 at
13 (“Q. So you understand that in order to get the coverage, Assurance Agency would have to
provide [actual] notice to [Indian Harbor]? A. Yes.”).
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Opinion and Order, and the Court does so again, for the same reasons. (See Dkt. No. 37 at 6
n.4.)
Finally, Plaintiffs argue for reconsideration on the ground that Indian Harbor waived its
ability to deny coverage under the “professional services” provision. The Court originally
denied summary judgment on this issue because Indian Harbor asserted, in its initial denial of
coverage, that “to the extent that any damages are awarded that do not arise from
PROFESSIONAL LOSS and PROFESSIONAL SERVICES as defined above, coverage is not
afforded.” (Dkt. No. 27-18 at 4.) Plaintiffs now argue that waiver can be inferred from Indian
Harbor’s “equivocal” language. (Dkt. No. 39-1 at 16.) That argument stands the doctrine of
waiver on its head. See, e.g., Gilbert Frank Corp. v. Fed. Ins. Co., 520 N.E.2d 512, 514 (N.Y.
1988) (“Waiver is an intentional relinquishment of a known right and should not be lightly
presumed.”). Without a “clear manifestation of intent” from Indian Harbor, id., Plaintiffs cannot
establish that Indian Harbor waived its ability to deny coverage.
The motion for reconsideration is denied in its entirety.
The Clerk of Court is directed to close the motion at Docket Number 39.
SO ORDERED.
Dated: June 23, 2020
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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