Altschuler v. Chubb National Insurance Company

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Douglas Altschuler, et al., No. CV-21-00119-TUC-DCB

10 Plaintiffs, ORDER

11 v.

12 Chubb National Insurance Company,

13 Defendant. 14 15 The Court denies reconsideration of its Order granting summary judgment in part 16 for Defendant and denying it in part for Plaintiff’s claim that Defendant breached the 17 insurance contract by denying coverage for the loss of the Rolex watch. (Amended Order 18 (Doc. 211)). Plaintiff asks the Court to reconsider summary judgment in favor of Defendant 19 related to its denial of coverage for the Andy Mouse Artwork. 20 The Local Rules of Practice for the United States District Court for the District Court 21 of Arizona (LRCiv), Rule 7.2(g) sets forth the standard under which the Court reviews a 22 Motion for Reconsideration. It states:

23 The Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal 24 authority that could not have been brought to its attention earlier with reasonable diligence. Any such motion shall point out with specificity the 25 matters that the movant believes were overlooked or misapprehended by the Court, any new matters being brought to the Court's attention for the first 26 time and the reasons they were not presented earlier, and any specific modifications being sought in the Court's Order. No motion for 27 reconsideration of an Order may repeat any oral or written argument made by the movant in support of or in opposition to the motion that resulted in the 28 Order. Failure to comply with this subsection may be grounds for denial of the motion. 1 LRCiv. 7.2(g) 2 Accordingly, in the District of Arizona, motions for reconsideration will be granted 3 when:

4 (1) There are material differences in fact or law from that presented to the Court and, at the time of the Court's decision, the party moving for 5 reconsideration could not have known of the factual or legal differences through reasonable diligence; 6 (2) There are new material facts that happened after the Court's decision; 7 (3) There has been a change in the law that was decided or enacted after the 8 Court's decision; or

9 (4) The movant makes a convincing showing that the Court failed to consider material facts that were presented to the Court before the Court's 10 decision. 11 Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 586 (D. Ariz. 12 2003). It is quite clear: “Reconsideration is indicated in the face of the existence of new 13 evidence, an intervening change in the law, or as necessary to prevent manifest injustice.” 14 Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 15 1041, 1046 (9th Cir. 2003), School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 16 5 F.3d 1255, 1263 (9th Cir.1993). Granting reconsideration is within the sound discretion 17 of the trial court, Navajo Nation, 331 F.3d at 1046; a denial of a motion for reconsideration 18 is reviewed for abuse of discretion, Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 19 877, 883 (9th Cir. 2000). 20 The Court denies Plaintiff’s Motion for Reconsideration because he does not raise 21 new material facts or evidence that happened after the Court's decision, nor does he raise 22 an intervening change in law that would affect the Court's decision. Plaintiff also does not 23 assert that any “material differences in fact or law” brought forward in their Motion for 24 Reconsideration could not have been brought to the Court's attention earlier with 25 reasonable diligence. Plaintiff’s Motion for Reconsideration includes no discussion of the 26 “reasonable diligence” standard. Therefore, the Court finds that Plaintiff’s Motion for 27 Reconsideration rests upon an underlying, though not explicitly stated, assertion of either 28 manifest error or manifest injustice, including the possibility that “the Court failed to 1 consider material facts that were presented to the Court before the Court's decision.” 2 Motorola, Inc., 215 F.R.D. at 586. As explained below, the Court is satisfied that its Order 3 (Doc. 211) was not the result of manifest error and did not result in manifest injustice and 4 that it sufficiently considered the material facts presented by Plaintiff in reaching its 5 decision. A motion for reconsideration should not be used to ask a court “to rethink what 6 the court had already thought through, rightly or wrongly.” Above the Belt, Inc. v. Mel 7 Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983). 8 On reconsideration, the Plaintiff asks the Court to consider that Defendant “waived 9 any claim that Mr. Altschuler had not adequately identified the artwork that he had 10 purchased.” (Motion Reconsideration (MR) (Doc. 212)). This waiver argument is based on 11 assertions that Defendant took his premiums to secure coverage of the artwork, controlled 12 the proof of ownership aspects of that coverage and failed to seek the proof of ownership 13 evidence it relied on to deny the claim even when Plaintiff offered to provide any further 14 information it may have needed when coverage was being established. Plaintiff argues:

15 Mr. Altschuler is not an insurance expert. He provided what he was asked for. He offered to provide more. His description of Chubb’s conduct is 16 correct—it sought no further information, despite even some concern about the appraisal, as long as it was receiving premium payments, but Chubb then 17 declared the information to be inadequate when asked to pay a claim. Chubb was the entity that knew what information it needed to insure the art item, 18 and did not request any additional information. As such, it is now estopped from denying coverage. See Darner Motor Sales, Inc. v. Universal 19 Underwriters Ins. Co., 140 Ariz. 383, 395–96 (1984) (insured estopped from denying coverage where representations of agent differed from language of 20 insurance policy).

21 (MR (Doc. 212) at 4.) 22 Without reaching the merits of this argument, the Court finds that the 23 Plaintiff could have and did not raise it during the dispositive motions’ briefings. 24 The Court has reviewed the Plaintiff’s Motion for Partial Summary Judgement 25 (Doc. 170), his Response (Doc. 193) to the Defendants’ dispositive motion, and his 26 Reply (Doc. 208) supporting his partially dispositive motion. The only argument 27 related to waiver presented in these briefs was that Defendant should be estopped 28 from challenging coverage based on any argument other than fraudulent 1 || misrepresentation or concealment. The Court addressed this waiver/estoppel □□ argument and found it unpersuasive. (Amended Order (Doc. 211) at 7-8.) 3 Cases rarely arise which meet the standard for review on reconsideration and 4|| granting a motion to reconsider should be equally rare. Above the Belt, Inc. v. Mel || Bohannon Roofing, Inc., 99 F.R.D. at 101, see also, Sullivan vy. Faras-RLS Group, Ltd., || 795 F. Supp. 305, 308-09 (D. Ariz. 1992). This is not a rare case. 7 Accordingly, 8 IT IS ORDERED that the Motion for Reconsideration (Doc. 212) is DENIED. 9 Dated this 1*' day of April, 2024. 10 11

8 Honorable David C. But 14 United StatesPrstrict Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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