Free Motion to Amend/Correct - District Court of Arizona - Arizona

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Wayne Gill, Esq. (Fla Bar. No. 114953) WALTON LANTAFF SCHROEDER & CARSON LLP 1700 Palm Beach Lakes Boulevard, 7th Floor West Palm Beach, Florida 33401 Telephone: (561) 689-6700 Facsimile: (561) 689-2647 Steven Plitt, Esq. (State Bar No. 007481) Daniel Maldonado, Esq. (State Bar No. 018483) BESS KUNZ, A Professional Corporation 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1092 Telephone: (602) 331-4600 Facsimile: (602) 331-8600 Attorneys for Defendant/Counter-Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA U-Haul International, Inc.; U-Haul Company Of Pennsylvania; U-Haul Company Of Florida; and Republic Western Insurance Company, Plaintiffs, vs. Lumbermens Mutual Casualty Company, Defendants. No. CIV 04-0662 PHX DGC (Maricopa County Superior Court Cause No. CV 2004-002438) MOTION FOR AMENDED AND ADDITIONAL FINDINGS, MOTION FOR AMENDMENT OF JUDGMENT, AND MOTION FOR NEW TRIAL (Assigned to the Honorable David G. Campbell) LUMBERMENS MUTUAL CASUALTY

Defendant/Counter-Plaintiff,
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COMPANY ("LMC"), by its undersigned counsel moves the court for amendment of the court's findings of fact and conclusions of law (Doc. #162) pursuant to Fed.R.Civ.P.

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52(b), for amendment of the judgment (Doc. #166) pursuant to Fed.R.Civ.P. 52(b) and Fed.R.Civ.P. 59(e), and for a new trial under Fed.R.Civ.P. 59(a). 1. Following the trial held before this Court on March 8, 2007, this Court

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issued an order on March 14, 2007, and which was filed on March 15, 2007. Pursuant to Rule 52(b) of the Federal Rules of Civil Procedure, LMC moves this Court for an amendment of the Court's finding of fact and conclusions of law. In addition, pursuant to Rule 52(b) and Rule 59(e) of the Federal Rules, Lumbermens respectfully request the

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entry of an order amending the judgment. Finally, pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, Lumbermens respectfully request that this Court order a new trial. LMC has filed a single consolidated Memorandum of Law in support of its motions.

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2.

As further detailed in that Memorandum of Law, LMC respectfully

request that this Court make additional findings with respect to the following facts: that AON was the agent of the plaintiffs, that plaintiffs, through its agent, AON, made representations that were inaccurate and misleading, and that LMC justifiably relied to its detriment on such representations. 3. With respect to its Motion to Amend the Findings, again as detailed in the

Memorandum of Law, LMC respectfully requests that this Court amend the findings of fact and law regarding LMC's equitable estoppel defense as follows. a. That the Court amend the Court's conclusion that LMC did not justifiably rely upon the representations of plaintiffs and their agents;

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b.

That there was no evidence that LMC was sent or ever received U-Haul's handwritten 1998 application. That each of LMC's binders contained an explicit statement that the LMC policy will not respond "until such time as the indemnity portion if the loss exceeds the underlying or self-insured limit." That this Court find that the RU policies expressly state that the RU policies shall not apply to LAE "covered by underlying insurance" and that Republic's obligation to reimburse the insured for expenses under its RU policies is "payable by the Company in addition to the applicable limit of liability" of the RU policies. That the RU policies' definition of ultimate loss is limited solely to "expenses incurred by the insured." That LMC's counsel did not admit that LMC knew during the underwriting of the LMC policies that the RX policies were defense in addition to limits policies. Accordingly, LMC respectfully request that this Court shall amend its

c.

d.

e.

f.

3.
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Findings of Fact and Law in light of these issues. 4. follows: a. Moreover, LMC moves for an amended findings as to damages as

That U-Haul International, Inc. failed to introduce any evidence whatsoever that it suffered any damages. Sums paid by Republic Western, and for which Republic Western is seeking recovery from LMC are not damages to U-Haul International, Inc. That Republic Western has failed to prove and to carry its burden of evidence that the attorneys' fees and other LAE expenses for which it is seeking recovery as damages against the excess carrier, LMC, were reasonable or related to the defense of the underlying lawsuits. That plaintiffs have failed to prove that they have properly or fully exhausted the RG, RX and RU policy limits in connection with the Martinez lawsuit.

b.

c.

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d.

That the damages sought include U-Haul's own self-insured retention, and other expenses that are unreasonable and unrelated to the defense of the underlying lawsuits. That plaintiffs have failed to establish that they are entitled to prejudgment interest because the amount for which they are seeking recovery was not litigated until the time of trial. In the alternative, plaintiffs' claim for pre-judgment interest for the Nelson settlement contained an error, and should be remitted to $64,811. Accordingly, in light of these amended/additional Findings of Fact, and

e.
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5.

the insufficiency of the evidence, LMC is entitled to an order granting this motion and
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holding that plaintiffs are not entitled to recover damages from LMC. 6. Further, pursuant to Rules 52 and 59, LMC respectfully request that this

Court amend the Court's Finding and Conclusions of Law to find in favor of LMC on LMC's defense of equitable estoppel, and an award to LMC of the sums of damages

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proved in connection with LMC's counterclaim. 7. LMC, pursuant to Fed.R.Civ.P. 59(a), alternatively respectfully requests

that the Court grant a new trial on all or part of the issues that were tried by bench trial on March 8, 2007. LMC further states that the verdict against LMC is against the clear or great weight of the evidence, and that a new trial is necessary in order to prevent a miscarriage of justice because of two separate and independent reasons. First, based on the evidence, the court should find that LMC has proven its defense of equitable estoppel. Second, plaintiffs have failed to prove their damages claim because plaintiffs have not proven that LMC's coverage was triggered by exhaustion of all applicable

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underlying limits, including but not limited to the RA policies, and have not proven that any of Republic Western's alleged LAE payments were reasonable. 8. LMC has submitted a Memorandum of Law in support of its motion.

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WHEREFORE, LMC respectfully requests that the court grant LMC's motion for a new trial and proceed to: (1) address all of LMC's trial arguments regarding plaintiffs' failure to prove exhaustion of underlying limits; (2) grant all of LMC's requests for amended and additional findings of fact and law; and (3) direct the entry of a new

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judgment in favor of LMC on plaintiffs' claim against LMC and on LMC's counterclaim against plaintiffs, as previously requested herein, and for such other and further relief as is just and necessary under the evidence and the circumstances. DATED this 28th day of March, 2007. WALTON LANTAFF SCHROEDER & CARSON LLP Wayne T. Gill, Esq. Southtrust Center 1700 Palm Beach Lakes Blvd., #700 West Palm Beach, FL 33401 KUNZ PLITT HYLAND DEMLONG KLEIFIELD

By: s/Daniel Maldonado Steven Plitt, Esq. Daniel Maldonado, Esq. 3838 N. Central Ave., Suite 1500 Phoenix, AZ 85012-1902 Attorneys for Defendant/Counter-Plaintiff

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CERTIFICATE OF SERVICE Filed electronically this 28th day of March, 2007 and copies electronically served/mailed to: Gerald Gaffaney, Esq. David J. Ouimette, Esq. Attorneys for Plaintiffs/Counter-Defendants Mariscal, Weeks, McIntyre & Friedlander, P.A. 2901 North Central, Suite 200 Phoenix, AZ 85012 Bruce Friedman, Esq. Mark S. Fragner, Esq. Attorneys for Plaintiffs/Counter-Defendants Rubin, Fiorella & Friedman, LLP 292 Madison Avenue New York, NY 10017

s/ Tracey Barnes

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