Williams et al v. The Standard Fire Insurance Company et al

Filing 35

MEMORANDUM and ORDER denying 31 Motion for Reconsideration Signed by Honorable James M. Munley on 9/24/12 (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ELLEN WILLIAMS and ELLEN
MALONE,
Plaintiffs

:
No. 3:12cv354
:
:
(Judge Munley)
:
v.
:
:
THE STANDARD FIRE INSURANCE :
COMPANY and CORELOGIC, INC.,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM & ORDER
Before the court is Defendant The Standard Fire Insurance
Company’s (hereinafter “defendant”) motion for reconsideration. (Doc. 31).
Defendant moves for reconsideration of the court’s Memorandum and
Order dated August 30, 2012, in which the court denied defendant’s motion
for summary judgment. Defendant argues in the alternative that the court
should certify the case for interlocutory appeal. For the following reasons,
defendant’s motion for reconsideration is denied.
“The purpose of a motion for reconsideration is to correct manifest
errors of law or fact or to present newly discovered evidence.” Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) (citing Keene Corp. v.
Int’l Fidelity Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1983)); see also
Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677

(3d Cir. 1999). To succeed on a motion for reconsideration, a movant
must demonstrate one of the following three grounds (1) an intervening
change in the controlling law; (2) the availability of new evidence not
previously available; or (3) the need to correct a clear error of law or to
prevent manifest injustice. Max’s Seafood Café, 176 F.3d at 677. A
motion for reconsideration is not a proper vehicle to merely attempt to
convince the court to rethink a decision it has already made. Glendon
Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa.
1993); see also In re Blood Reagents Antitrust Litig., 756 F. Supp. 2d 637,
640 (E.D. Pa. 2010) (“It is improper on a motion for reconsideration to ask
the Court to rethink what it had already thought through–rightly or wrongly.”
(quotations and citations omitted)).
In the Memorandum and Order dated August 30, 2012, the court
denied defendant’s motion for summary judgment. The court first found
that Plaintiffs Ellen Williams and Ellen Malone’s (collectively “plaintiffs”)
state law claims are not preempted by federal law. (Doc. 27, Mem. &
Order dated Aug. 30, 2012 at 11-12). In reaching this decision the court
held the doctrine of express, field and conflict preemption to be
inapplicable because defendant’s allegedly wrongful conduct–failing to

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investigate the insurability of the property and confirm the flood
zone–occurred during the procurement of flood insurance as opposed to
during the handling of a claim. See Campo v. Allstate Ins. Co., 562 F.3d
751, 757-58 (5th Cir. 2009) (holding that the NFIA only preempts claims
arising from claims handling, and does not apply to preempt state-law
procurement claims); C.E.R. 1988, Inc. v. Aetna Cas. & Sur. Co., 386 F.3d
263, 272 n.12 (3d Cir. 2004) (holding that state causes of action involving
handling of claims are preempted, but choosing not to decide whether
claims that deal with misrepresentation during insurance procurement
would be preempted). Next, the court found that plaintiffs’ claims for
detrimental reliance and negligence do not fail as a matter of law because
genuine issues of material fact exist. (Doc. 27, Mem. & Order dated Aug.
30, 2012 at 13-14).
In its instant motion, defendant requests that the court reconsider its
prior ruling for the following for reasons:
First, this Court’s reliance on the Grissom case cannot be
reconciled with the holding of that case. Second, this Court
misapprehended the import of FEMA’s July 16, 2009, Bulletin
as well as the C.E.R. and Campo decisions. Third, this Court
overlooked overarching federal interests that give rise to field
and conflict preemption. Fourth, Plaintiffs’ state law claims fail
as a matter of federal and state law.

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(Doc. 32, Br. in Supp. of Mot. for Recons. at 6). The court will deny
defendant’s motion for reconsideration. The four arguments defendant
presents fail to amount to a clear error of law or manifest injustice; rather,
the reasons presented by defendant represent little more than recycled
arguments that attempt to convince the court to re-think our decision.1

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In its first argument, defendant contends that our citation of
Grissom v. Liberty Mutual Fire Insurance Company, a 2012 Fifth Circuit
decision cited in footnote two of our August 30, 2012 Memorandum and
Order, represents a clear error of law and a manifest injustice. The court
disagrees. The Grissom case recognizes a difference between claims
handling actions, which are preempted by federal law, and permissible
state law procurement process claims. See Grissom v. Liberty Mut. Fire
Ins. Co., 678 F.3d 397, 400-01 (5th Cir. 2012). Unlike the plaintiff in
Grissom, who had a valid insurance policy at the time of the dispute,
plaintiffs in the instant matter allege that they did not have a valid policy
because defendant retroactively revoked it. Thus, the court does not find
that our citation to Grissom amounts to a clear error of law or manifest
injustice.
In its second argument, defendant disagrees with the amount of
weight the court provided to a FEMA memorandum. This memorandum
was authored by Edward Connor, the Acting Flood Insurance
Administrator, three years ago, and although it calls for the review and
clarification of FEMA regulations, it appears to have inspired no regulatory
changes. (See Doc. 32-1, Ex. A, FEMA Memo). The Supreme Court of
the United States directs district courts to provide little deference to an
agency’s interpretation of its own regulations when the court finds that the
agency’s interpretation does not reflect the agency’s fair consideration and
judgment on the matter. See Christopher v. SmithKline Beecham Corp.,
132 S. Ct. 2156, 2166 (2012) (citations omitted). Guided by this legal
precept, we afforded little weight to Acting Administrator Connor’s
memorandum. Thus, this argument similarly fails to meet the high
standard of review necessary to succeed in a motion for reconsideration.
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Defendant requests in the alternative that the court certify the case
for appeal pursuant to 28 U.S.C. § 1292(b). This section provides, in part,
as follows:
When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion
that such order involves a controlling question of law as to
which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially
advance the ultimate termination of the litigation, he shall so
state in writing in such order. . . .
28 U.S.C. § 1292(b). Certification of an interlocutory appeal pursuant to
Section 1292(b) “is not to be granted routinely, but is to be used in the rare
cases where an immediate appeal will avoid costly and protracted litigation.
Bush v. Adams, 629 F. Supp. 2d 468, 474 (E.D. Pa. 2009) (citing Sporck v.
Peil, 759 F.2d 312, 315 n.4 (3d Cir. 1985)). All of the factors of Section
1292(b) must be satisfied for the certification of an interlocutory appeal to

Moreover, defendant’s assertion that the court’s reliance on a “wrongly
decided” Fifth Circuit Court of Appeals decision falls far short of the
standard announced by the Third Circuit Court of Appeals in Max’s
Seafood Café.
In their third argument, defendant maintains that the court
“overlooked” important points pertaining to field and conflict preemption.
Similarly, in their fourth argument, defendant reasserts their contention that
plaintiffs’ claims fail as a matter of law. These arguments do little more
than ask the court to re-think the conclusions in our August 30, 2012
Memorandum & Order.
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be proper. See Katz v. Carte Blanch Corp., 496 F.2d 747, 754 (3d Cir.
1974).
When this standard is applied, the court finds that the necessary
factors of Section 1292(b) are not satisfied. This case turns on issues of
fact, such as whether the insurance policy was revoked because of an
improper flood zone determination and what the proper determination
should have been at the time the policy was issued. Given these genuine
issues of material fact in this case, and in light of the fact that another
defendant is joined in this case, the court finds that the instant matter is not
the exceptionally rare case that would benefit from an interlocutory appeal.
AND NOW, to wit, this 24th day of September 2012, Defendant The
Standard Fire Insurance Company’s motion for reconsideration (Doc. 31) is
hereby DENIED.
BY THE COURT:

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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