Opinion
CIVIL ACTION NO: 02-3682, SECTION: "R" (1)
December 15, 2003
ORDER AND REASONS
Before the Court is defendant Fireman's Fund Insurance Company's Motion for a New Trial or, in the alternative, Motion for Reconsideration pursuant to Federal Rule of Civil Procedure 59. By Order and Reasons dated October 22, 2003, this Court granted plaintiff Henry's Marine Service, Inc.'s Motion for Summary Judgment on the issue of insurance coverage and denied defendant Fireman's Cross-Motion for Summary Judgment. (Rec. Doc. No. 22).
The Federal Rules of Civil Procedure do not formally recognize a motion to reconsider in haec verba. See Pryor v. United States Postal Serv., 769 F.2d 281, 285 (5th Cir. 1985). Nevertheless, the Fifth Circuit has held that a motion for reconsideration to reinstate a case may be classified under either Rule 59 or Rule 60, depending upon the time of filing. See id.; see also Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n. 14 (5th Cir. 1994) (en bane). Because defendant filed his motion within ten days of the Court's October 22 order, the Court treats defendant's request as a motion to reconsider under Rule 59. Therefore, defendant's request to reconsider the Court's order is a Rule 59(e) motion to "alter or amend the judgment". See Pryor, 769 F.2d at 285.
A district court has considerable discretion to grant or to deny a motion under Rule 59(e). See Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993); Lavespere, 910 F.2d at 173. A court's reconsideration of a prior order is an extraordinary remedy which should be used only sparingly. See Fields v. Pool Offshore, 1998 WL 43217, No. Civ. A. 97-3170, at *2 (E.D. La. 1998), aff'd, 182 F.3d 353 (5th Cir. 1999); Bardwell v. George G. Sharp, Inc., 1995 WL 517120, Civ. A. No. 93-3590, at *1 (E.D. La. 1995). The court must "strike the proper balance between the need for finality and the need to render a just decision on the basis of all the facts." Bohlin, 6 F.3d at 355. Courts in this district hold that a moving party must satisfy at least one of the following criteria to prevail on a Rule 59(e) motion: (1) the motion is necessary to correct a manifest error of fact or law; (2) the movant presents newly discovered or previously unavailable evidence; (3) the motion is necessary in order to prevent manifest injustice; or (4) the motion is justified by an intervening change in the controlling law. See Fidelity Deposit Co. v. Omni Bank, 1999 U.S. Dist. LEXIS 16649, 1999 WL 970526, *3 (E.D. La. 1999); Jupiter v. BellSouth Telecomms., Inc., 1999 WL 796218, No. Civ. A. 99-0628, at *1 (E.D. La. 1999); Burma Navigation Corp. v. Seahorse, 1998 WL 781587, No. Civ. A. 94-0795, at *1 (E.D. La. 1998); Fields, 1998 WL 43217 at *2.
Defendant fails to offer any evidence or arguments that merit reconsideration. Defendant states that his grounds for a new trial or reconsideration are that the Court erred in interpreting the Boat Broker's ("BB") Liability policy. Defendant then reiterates, in detail, the very arguments that the Court considered and rejected in its original rulings.
Defendant now asserts that two provisions of the BB insurance policy, Sections 11 and 13, may abrogate its liability to Henry's. Section 11 provides that Fireman's insurance is in excess of any other valid and collectible insurance. Section 13 provides that Henry's warrants to obtain from all vessels chartered $1,000,000 in Protection and Indemnity coverage at the vessel owner's expense, naming Henry's as an additional insured and waiving rights of subrogation. Defendant argues that it is the insured's burden to prove that it has complied with all provisions of the policy before it can claim coverage.
First, the Court notes that this is by no means "newly discovered or previously unavailable evidence." Defendant had ample opportunity to assert these provisions in its cross-motion for summary judgment or in its opposition to Henry's motion for summary judgment if it believed that such provisions limited its insurance liability.
Second, although defendant is correct in its assertion that the insured has the burden of proving that his claim falls within the provisions of the insurance policy, see Barber v. Best, 394 So.2d 779, 781 (La.Ct.App. 1981), defendant ignores that "[a]n insurer that relies on a provision in its contract to negate or preclude coverage otherwise provided, has the burden of proving the circumstances under which the negation or preclusion applies." McWright v. Modern Iron Works, Inc., 567 So.2d 707, 711 (La.Ct.App. 1990) (citing Capital Bank Trust v. Equitable Life, 542 So.2d 494 (La. 1989)). The insurer's burden extends to proving "the existence of other collectible, primary insurance" in support of its proposition that its insurance is excess to any other insurance. Beauregard v. Salmon, 205 So.2d 634, 639 (La. 1967); McWright, 567 So.2d at 711. This burden also extends to proving by at least a preponderance of the evidence that the insured breached a warranty in the insurance policy. See, e.g., Rodriguez v. Northwestern Nat'l Ins. Co., 358 So.2d 1237, 1241 (La. 1978) ("Breach of warranty is a special defense which the insurer has the burden of proving by at least a preponderance of the evidence."); Lee v. Travelers Ins. Co., 53 So.2d 692, 695 (La. 1951) (" [T]he Supreme Court has stated . . . that, where an insurance company seeks to avoid liability because of the breach of a material warranty contained in the policy, the defense must be pleaded specially and that the insurer has the burden of proving by a preponderance of the evidence that the breach did increase the moral hazard of the risk."); Benjamin v. Connecticut Indem. Ass'n, 11 So. 6287 629 (La. 1892) (same).
Here, defendant sets forth no evidence that Henry's has other valid and collectible insurance. Neither does defendant provide evidence that Henry's breached its warranty to obtain from all vessels chartered $1,000,000 in Protection and Indemnity insurance. Defendant merely states that these two provisions may abrogate its liability. The Court finds that Fireman's Fund has not met its burden.
Nothing in defendant's motion for reconsideration demonstrates that the motion is necessary to correct a manifest error of fact or law, that defendant presents newly discovered or previously unavailable evidence, that the motion is necessary in order to prevent manifest injustice, or that the motion is justified by an intervening change in the controlling law. See Fidelity Deposit Co., 1999 WL 950526 at *3, Therefore, the Court denies defendant's motion to reconsider its October 22, 2003 order.