Walker et al v. Progressive Direct Insurance Company
Filing
80
OPINION AND ORDER by Judge Terence Kern ; denying 71 Motion for New Trial; denying 77 Motion for Hearing (cds, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
ROCKY WALKER and
KRISTI WALKER,
Plaintiffs,
vs.
PROGRESSIVE DIRECT
INSURANCE COMPANY,
Defendant.
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Case No. 09-CV-556-TCK-PJC
OPINION AND ORDER
Before the Court are Plaintiffs’ Motion for New Trial (Doc. 71) and Motion for Hearing
(Doc. 77).
I.
Background1
On June 12, 2009, Plaintiffs brought suit against Defendant Progressive Direct Insurance
Company (“Progressive”) in the District Court in and for Tulsa County, State of Oklahoma,
asserting a single claim of bad faith and requesting punitive damages. The case was removed, and
the Court subsequently granted Progressive’s Motion for Summary Judgment, finding Plaintiffs had
not demonstrated a genuine issue for trial. Plaintiffs now move for relief under Federal Rule of Civil
Procedure 59(e) (“Rule 59(e)”), arguing that the Court should amend its summary judgment order.
II.
Discussion
A motion to alter or amend judgment pursuant to Rule 59(e) should be granted only to
address (1) an intervening change in controlling law; (2) new evidence previously unavailable; or
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A more extensive factual background is provided in the Court’s summary judgment order
and incorporated herein. (See Doc. 66.)
(3) the need to correct clear error or prevent manifest injustice. Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). Such a motion is not an appropriate vehicle to “revisit issues
already addressed or advance arguments that could have been raised in prior briefing.” Id.
In this case, Plaintiffs’ response to Progressive’s Motion for Summary Judgment was sparse
in terms of substantive argument. For example, in the approximately six pages of argument
provided by Plaintiffs (see Resp. to Def.’s Mot. for Summ. J. 16-22), there was very little explicit
discussion of how the facts of the instant case satisfy the bad faith standard under Oklahoma law.
Although Plaintiffs provided various case summaries and legal standards, Plaintiffs did not provide
accompanying evidentiary analysis of the facts presented here. (See id. 18-21.) Rather, Plaintiffs
generally claimed that Progressive conducted an “untimely” and “improper” investigation and
supported such claim with only two pieces of evidence – namely, (1) Progressive’s handling of the
“third key issue” and (2) the photographs from Plaintiffs’ Branson vacation, (see id. 17, 21). The
Court addressed these two items in its summary judgment order and found that Plaintiffs had not met
their burden of demonstrating a genuine issue for trial on the basis of such evidence, as required
under Federal Rule of Civil Procedure 56(e).
Plaintiffs now seek amendment of the Court’s summary judgment Order, and in so doing,
rehash arguments surrounding the third key and Plaintiffs’ vacation photographs. Plaintiffs’ Motion
for New Trial also contains new arguments which were notably excluded from the summary
judgment briefing. For example, Plaintiffs now cite discovery responses as evidence that they
suffered emotional distress and embarrassment as a result of Progressive’s treatment of their claim.
(See Mot. for New Tr. 9.) Plaintiffs also include argument regarding, inter alia, Progressive’s
knowledge of the “red flags” of fraud, what was communicated to Plaintiffs by Progressive and
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when such communications took place, Progressive’s allegedly incomplete efforts at determining
whether the Vehicle could have been driven without keys, and the value of Plaintiffs’ claim as
determined by Progressive.
The Court finds that because these arguments “revisit issues already addressed [in the
summary judgment briefing] or advance arguments that could have been raised in prior briefing,”
Servants of Paraclete, 204 F.3d at 1012, Plaintiffs are not entitled to relief under Rule 59(e).
Plaintiffs were afforded an opportunity to demonstrate a genuine issue for trial in responding to
Defendants’ Motion for Summary Judgment. However, as previously noted, Plaintiffs failed to
provide sufficient evidentiary support and argument necessary to make such a showing at the
summary judgment stage. Plaintiffs now seemingly seek another “bite of the apple” in their Rule
59(e) motion. Because this is an improper use of Rule 59(e), and because Plaintiffs have not
demonstrated clear error or manifest injustice, the Court denies Plaintiffs’ motion and request for
a hearing.
III.
Conclusion
For the reasons outlined herein, Plaintiffs’ Motion for New Trial (Doc. 71) and Motion for
Hearing (Doc. 77) are DENIED.
SO ORDERED this 2nd day of August, 2011.
______________________________
TERENCE C. KERN
United States District Judge
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