United States District Court, N.D. New York
QUICK RESPONSE COMMERCIAL DIVISION, LLC, as Assignee of Charbonneau Properties, LLC Plaintiff/ Counter Defendant,
CINCINNATI INSURANCE COMPANY, Defendant/Counter Claimant.
L. SHARPE UNITED STATES DISTRICT JUDGE.
is Cincinnati Insurance Company's motion for
reconsideration, (Dkt. No. 61), of the Summary Order denying
its second motion for summary judgment, (Dkt. No. 60). For
the reasons that follow, the motion is denied.
for reconsideration proceed in the Northern District of New
York under Local Rule 7.1(g). “In order to prevail on a
motion for reconsideration, the movant must satisfy stringent
requirements.” Clookey v. Citibank, N.A.,
8:14-cv-1318, 2016 WL 3365438, at *1 (N.D.N.Y. June 16, 2016)
(internal quotation marks and citation omitted). Such motions
“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); see Analytical Surveys, Inc. v. Tonga
Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012).
“The prevailing rule recognizes only three possible
grounds upon which motions for reconsideration may be
granted; they are (1) an intervening change in controlling
law, (2) the availability of new evidence not previously
available, or (3) the need to correct a clear error of law or
prevent manifest injustice.” Clookey, 2016 WL
3365438, at *1 (internal quotation marks and citation
Cincinnati alleges five different clear errors of law and
reasons to prevent manifest injustice. (Dkt. No. 61, Attach.
1 at 1-2.) The court addresses each in turn.
Cincinnati argues that the court mistakenly “allow[ed]
for a bad faith cause of action for claim adjusting.”
(Id. at 2.) But the court did not allow for such a
cause of action. As explained in the Summary Order, at issue
is whether Cincinnati breached the implied covenant of good
faith and fair dealing. (Dkt. No. 60 at 3-4 & n.3.) The
issue of bad faith was discussed in the context of an
exception to the general rule against recovery of
attorney's fees, not as a cause of action. (Id.
Cincinnati contends that “the Summary Order relies on
inapposite authority and fails to apply governing authority
on the issue of when the bad faith exception to the rule
against recovery of attorney[']s[ ] fees applies.”
(Dkt. No. 61, Attach. 1 at 2.) Cincinnati argues that there
was no denial of coverage, and the exception only applies
when coverage is denied. (Id. at 4-6.) However,
Cincinnati does not provide any authority that denial of
coverage must be complete for the exception to apply. Indeed,
the exception has applied in cases where an insurance company
did not completely deny coverage but rather sought to delay
payment or refused to make certain payments and conditioned
other payments. See Nat'l. R.R. Passenger Corp. v.
Arch Specialty Ins. Co., 124 F.Supp.3d 264, 280
(S.D.N.Y. 2015) (holding exception may apply where insurer
allegedly declined to make interim payments and conditioned
additional payments on certain legal concessions); Exim,
Inc. v. Innogarant, LLC, No. 10 civ. 5271, 2011 WL
240130, at *1, *7 (S.D.N.Y. Jan. 19, 2011) (awarding
attorney's fees for insurer's bad faith handling of
claim where insurer sought “to avoid or
delay” payments) (emphasis added); Sukup v.
State, 19 N.Y.2d 519, 522 (1967) (“It would
require more than an arguable difference of opinion between
carrier and insured over coverage to impose an
extra-contractual liability for legal expenses[.]”)
(emphasis added). And Cincinnati's argument regarding a
duty to defend, (Dkt. No. 61, Attach. 1 at 6), is inapposite
because it concerns a different exception to the general bar
against attorney's fees. See Liberty Surplus Ins.
Corp. v. Segal Co., 420 F.3d 65, 67-68, 70 (2d Cir.
2005) (explaining duty to defend in context of Mighty
Midgets exception and separately analyzing bad faith
Cincinnati disagrees with the court that the issue of bad
faith cannot be decided as a matter of law at summary
judgment. (Dkt. No. 61, Attach. 1 at 7-9.) Cincinnati argues
that Quick Response's admissions regarding the demand for
appraisal are dispositive of the bad faith issue.
(Id. at 7.) Depending on how the factual disputes
still at issue are resolved, it may well be that Quick
Response's rejection of the demand for appraisal caused
the delay of Cincinnati's payment. (Id.) But, as
explained in the Summary Order, factual disputes over such
things as project delays, the timeliness of the adjustment,
the fairness of the adjustment, and the timeliness of
payments need to be resolved to decide the issue of bad
faith. (Dkt. No. 60 at 3 & n.4, 6.) And Cincinnati is
wrong that the only alleged evidence offered by Quick
Response to show bad faith is the Serafini affidavit. (Dkt.
No. 61, Attach. 1 at 8.) There are other exhibits in the record,
including e-mails, which the court cited in its Summary
Order. (Dkt. No. 60 at 3 & n.4.)
Cincinnati argues that it was not precluded from opposing the
Serafini affidavit in its reply. (Dkt. No. 61, Attach. 1 at
9-11.) Cincinnati is correct that the Serafini affidavit
dated August 29, 2016, (Dkt. No. 58, Attach. 1 at 2-5), was
filed, for the first time, before Cincinnati's reply,
(Dkt. No. 61, Attach. 1 at 9). However, Cincinnati did not
object to the Serafini affidavit filed in conjunction with
the first summary judgment motion, (Dkt. No. 25, Attach. 2),
which is substantially the same as the later-filed Serafini
affidavit, (Dkt. No. 58, Attach. 1 at 2-5). Moreover, the
Summary Order gave an alternate basis for rejecting
Cincinnati's argument that Serafini “improperly
asserts what is essentially an expert opinion based on his
1990s work as a claims adjuster.” (Dkt. No. 59 at 4.)
The Summary Order stated that “[i]n any event,
Cincinnati's conclusory argument does not explain how or
why Serafini's affidavit is essentially an expert
opinion.” (Dkt. No. 60 at 6 (internal quotation marks
and citation omitted).) That is, Cincinnati's argument
gave no explanation as to what the improper opinion was or
why it was an improper expert opinion. (Dkt. No. 59 at 4.)
Additionally, the Serafini affidavit is not an improper
affidavit of the type in the cases cited by Cincinnati, (Dkt.
No. 59 at 2-3; Dkt. No. 61, Attach. 1 at 10-11), as it
contains factual detail and is not merely conclusory or
self-serving, (Dkt. No. 58, Attach. 1 at 2-5).
fifth ground for reconsideration is that the Summary Order
did not address some of its arguments. (Dkt. No. 61, Attach.
1 at 11.) This contention is incorrect. Cincinnati argued
that interest cannot be awarded under the New York
prejudgment interest statute if there is no breach of
contract. (Id.) Likewise, it argued that
“interest cannot be awarded as a consequential damage
unless there was a breach of contract with a breach of the
covenant of good faith and fair dealing.”
(Id.) Both of these arguments were addressed because
the Summary Order explained that whether Cincinnati breached
the implied covenant of good faith and fair dealing is
squarely at issue, and such a breach is a means of breaching
the contract, (Dkt. No. 60 at 3 & n.3)-a point that
Cincinnati seemingly still does not understand. The Summary
Order also explained why interest is potentially
available-not under the insurance policy itself, as
Cincinnati misapprehends, (Dkt. No. 61, Attach. 1 at 11)-but
as part of Quick Response's consequential damages, (Dkt.
No. 60 at 2 & n.2). Cincinnati's argument that
“Quick Response should not be rewarded with interest
because it was Quick Response's own actions that caused
the delay, ” (Dkt. No. 61, Attach. 1 at 11), was
addressed not only by explaining that interest may be
recoverable as part of consequential damages but also by
noting the existence of factual disputes, including that
“[t]he parties . . . dispute the timeliness of
Cincinnati's adjustment and payments to Quick
Response.” (Dkt. No. 60 at 3 & n.4.)
motion to reconsider should not be granted where the moving
party seeks solely to relitigate . . . issue[s] already
decided.” Shrader, 70 F.3d at 257.
it is hereby
that Cincinnati's motion for reconsideration (Dkt. No.
61) is DENIED; and it is further
that the Clerk provide a copy of this Summary Order to the