The Cincinnati Insurance Company v. Harleysville Insurance Company, et al

Filing 46

DECISION AND ORDER granting 34 Motion for Attorney Fees; denying 34 Motion to Alter Judgment with prejudice; denying 35 Motion for Reconsideration with Prejudice. Signed by Hon. Michael A. Telesca on 1/23/17. Clerk to close case. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
THE CINCINNATI INSURANCE COMPANY,
Plaintiff,

15-CV-6501

v.
HARLEYSVILLE INSURANCE COMPANY,
et al,

DECISION
and ORDER

Defendants.
__________________________________________
I.

INTRODUCTION
Plaintiff Cincinnati Insurance Company (“Cincinnati”) brought

this

declaratory

jurisdiction
involving

judgment

seeking

action

under

interpretation

defendants

of

Harleysville

the
an

Court’s

diversity

insurance

Insurance

contract
Company

(“Harleysville”), University of Rochester Medical Center/Strong
Medical Center (“UR” or “the Hospital”), Lechase Construction
Corp., LeChase Construction Services LLC (“Lechase”), J.T. Mauro
Co., Inc. (“Mauro”), and The Kimmel Company, Inc. (“Kimmel”).
Cincinnati (the insurance carrier to Mauro) specifically claimed
that Harleysville (the insurance carrier to Kimmel) was required to
defend

and

provide

primary

insurance

coverage

to

defendants

LeChase, Mauro, and UR in a pending action in New York Supreme
Court in which a Kimmel employee sought damages for injuries
sustained while performing repairs to a building owned by UR.
As a result of Harleysville’s refusal to defend and indemnify
Mauro, LeChase and UR in the state action, Cincinnati commenced the
instant federal court action on August 20, 2015 requesting, inter

alia, a determination that the Harleysville insurance contract
issued to Kimmel provided additional insured status coverage to UR,
LeChase, and Mauro.

On May 16, 2016, Cincinnati moved for summary

judgment against Harleysville, and, on July 15, 2016, Harleysville
filed a cross-motion for summary judgment requesting that the Court
interpret the insurance contract in its favor.

By Decision and

Order dated October 25, 2016, this Court granted in part and denied
in part the parties’ respective motions for summary judgment,
finding that Harleysville was required to afford insurance coverage
to Mauro and UR as additional insureds under its insurance policy
with Kimmel but not LeChase, which the Court found did not qualify
as an additional insured under the same policy.
On November 9, 2016, Cincinnati filed motions for attorney’s
fees and to alter judgment (Docket No. 34).

On November 21, 2016,

Harleysville filed a motion for reconsideration of the Court’s
October 25, 2016 decision and order and a memorandum of law in
opposition to Cincinnati’s motion for attorney fees and to alter
judgment (Docket Nos. 35 and 36).
II.

DISCUSSION

A.

Harleysville’s Motion for Reconsideration
The Local Rules of Civil Procedure for the Western District of

New York provide that reconsideration motions fall within the scope
of Rule 59(e) of the Federal Rules of Civil Procedure. See L.R.
Civ. P. 7(d)(3). “Reconsideration of a court’s previous order is an

Page -2-

‘extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources.’” Parrish
v. Sollecito, 253 F.Supp.2d 713, 715 (S.D.N.Y. 2003), quoting In re
Health Mgmt.

Sys.,

Inc.

Sec.

Litig.,

113

F.Supp.2d

613, 614

(S.D.N.Y.2000); see also In re Houbigant, Inc., 914 F.Supp. 997,
1001 (S.D.N.Y.1996) (a reconsideration motion is not an opportunity
for the moving party “to reargue those issues already considered
[by the Court] when a party does not like the way the original
motion was resolved.”).

Nevertheless, “[r]econsideration may be

granted to correct clear error, prevent manifest injustice or
review the court’s decision in light of the availability of new
evidence.” Id., citing Virgin Atlantic Airways, Ltd. v. Nat'l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992).
Here, Harleysville has failed to raise any issue that would
constitute an intervening change of controlling law, new evidence,
or the need to correct a clear error or prevent a manifest
injustice.

Harleysville asserts that reconsideration should be

granted to correct a “clear error” in the Court’s October 25, 2016
holding that UR was an additional insured under the Harleysville
insurance policy issued to Kimmel.

There is no question that

Harleysville disagrees with the Court’s determination for the
reasons set forth in its original summary judgment motion, which
are reiterated in its present reconsideration motion.

Page -3-

As stated

above, however, a movant is not permitted to reargue an issue that
the Court has previously considered.
This

Court

initially

reviewed

and

throughly

considered

Harleysville’s reasoning in support of its contention that the
Harleysville insurance policy does not confer additional insured
status to UR, the owner of the subject premises.

This repeated

reasoning, however, continues to be unpersausive.

Therefore,

Harleysville’s reargument of this issue in its present motion does
not warrant the extraordinary remedy of reconsidering the Court’s
finding for the reasons set forth in its October 25, 2016 decision
and order, which concluded that UR is entitled to additional
insured status pursuant to the Kimmel subcontract.
B.

Cincinnati’s Motion to Alter Judgment
With respect to Cincinnati’s motion to alter judgment under

Rule 59(e), Cincinnati again attempts to reiterate an argument that
was

raised

in

its

original

motion

previously considered by this Court.
to

entertain

Court’s

Cincinnati’s

previous

finding

request
that

for

summary

judgment

and

As such, the Court declines
for

Lechase

reconsideration
was

not

of

entitled

the
to

additional insured status under the Harleysville policy by the
language in the Kimmel subcontract and finds no ground raised in
Cincinnati’s motion sufficient to compel alteration of the Court’s
judgment.

Page -4-

C.

Cincinnati’s Motion for Attorney Fees
In support of Cincinnati’s request for attorney fees and costs

incurred in the underlying state court action, it has submitted the
attorney affirmation of Patrick B. Nylon, Esq. with attached
invoices and a copy of defendants’ answer to the amended complaint
filed in Monroe County Supreme Court.

Mr. Nylon affirms that the

total fees and costs billed and paid by Cincinnati in that action
amounts to $29,938.45.

Harleysville opposes the request for fees

and costs as set forth in Mr. Nylon’s affirmation, contending that
Cincinnati has failed to establish that its defense of the three
defendants in the underlying action was so inextricably intertwined
such that Cincinnati should be entitled to reimbursement for the
full $29,938.45.

The Court, however, finds that Cincinnati is

entitled to an award for the full amount of fees incurred in the
defense of all three defendants in the underlying state court
action.
Where, as here, an insurer (Harleysville) wrongfully refuses
to provide defense to its insured, the insurer is liable for
reasonable attorney fees and the necessary expenses incurred for
the defense.

See U.S. Underwriters Ins. Co. v. Weatherization,

Inc., 21 F.Supp.2d 318, 327 (S.D.N.Y. 1998).

Despite the Court’s

finding that Lechase was not entitled to additional insured status
under the Harleysville insurance policy, Cincinnati is entitled to
an award of the total amount of fees and costs related to the

Page -5-

inextricably intertwined defense of all three defendants.

“Where

the district court determines that the successful and unsuccessful
claims are inextricably intertwined and involve a common core of
facts or are based on related legal theories, it is not an abuse of
discretion for the court to award the entire fee.” Reed v. A.W.
Lawrence

&

Co.,

95

F.3d

1170,

1183

(2d

Cir.

1996)(internal

quotation marks omitted).
The Court notes that “[a] fee applicant bears the burden of
adequately documenting the request, including the hours expended
and the hourly rate applied to those hours.” See Cruz v. Local
Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160
(2d Cir. 1994).

Fee awards must be supported by a sufficiently

detailed record that sets forth an adequate basis for calculating
the requested award.

The invoices submitted by Cincinnati reveal

that the billings submitted for the time spent, the rates charged,
and the work performed by Mr. Nylon at the request of Cincinnati
for his representation of all three defendants was so intertwined
that

the

billings

could

not

be

separated.

These

documents

sufficiently support an adequate basis for payment of the requested
fee.
In his affirmation, Mr. Nylon stated that he was retained by
Cincinnati to undertake the defense of the three defendants in the
underlying state court lawsuit. He attached copies of the invoices
submitted to Cincinnati for his firm’s singular representation of

Page -6-

defendants in the underlying action.

Therefore, Cincinnati’s

submissions are sufficient to provide an adequate record from which
the Court can determine that a separate fee award based on the
defense of Mauro and UR alone would require an impractical attempt
to parcel out costs that are undisputedly related to the defense
which benefitted all three defendants in the underlying lawsuit.
Consequently, the Court finds that Cincinnati has met its burden of
setting forth an adequate basis for its claim that the defense of
all three defendants was so intertwined as to preclude separate
billing for each defendant.

Cincinnati’s motion for an award of

attorney fees incurred in the underlying state action is thereby
granted.
III. Conclusion
For
judgment

the

foregoing

(Docket

reconsideration

No.

(Docket

reasons,
34)

and

No.

Cincinnati’s

35)

motion

Harleysville’s
are

denied

with

to

alter

motion

for

prejudice.

Cincinnati’s motion for attorney fees in the amount of $29,938.45
(also Docket No. 34) is granted for the reasons stated above.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
January 23, 2017

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