Free Order on Motion for Reconsideration - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) Plaintiffs, ) ) vs. ) Lumbermens Mutual Casualty Company, ) ) Defendant/Counter-Claimant. ) ) ) ) Lumbermens Mutual Casualty Company, ) ) Defendant/Counter-Claimant, ) ) vs. ) ) U-Haul International, Inc., et al, ) ) Counter-Defendants. ) ) ) U-Haul International, Inc., et al, No. CV 04-0662 PHX-DGC ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Defendant/Counter-Plaintiff Lumbermens Mutual Casualty Company ("LMC") has filed a Motion for Reconsideration/Motion for Clarification. Doc. #132. For the reasons set forth below, the Court will deny the motion in part and request additional briefing on the unresolved portions. 1. Motion for Reconsideration.

Paragraphs 1-6 of LMC's motion seek reconsideration of a portion of the Court's order of June 12, 2006. Doc. #124. The Local Rules provide that, "[a]bsent good cause shown, any motion for reconsideration shall be filed no later than ten (10) days after the
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filing of the order that is the subject of the motion." LRCiv.P. 7.2(g). LMC's motion for reconsideration was filed on July 28, 2006, more than six weeks after the Court's order. LMC makes no attempt to establish good cause for the late filing. The request for reconsideration contained in paragraphs 1-6 will be denied as untimely.1 2. RG and RX Policy Arguments.

Paragraph 7(a) of LMC's motion seeks clarification of whether the Court ruled on LMC's argument regarding the RG and RX policies' "products-completed operations aggregate limits." Doc. #132 at 5. The Court found this request for clarification to be quite confusing because it is devoid of any citation to the record or to LMC's prior motion, and LMC's motion for summary judgment used the phrase "products-completed operations aggregate limit" in connection with the LMC's policy, not the RG and RX policies. See Doc. #111 at 16. After several readings of LMC's motion and its prior motion for summary judgment, the Court concludes that LMC must be referring to section IV.B of its motion for summary judgment. Doc. #111 at 13-16. Although this section does not use the phrase "products-completed operations aggregate limits," it does refer to "aggregate limit" and "products aggregate endorsement" in connection with the RG and RX policies. Having read this section of LMC's motion for summary judgment several more times, the Court concludes that LMC's argument was not addressed in the Court's order of June 12, 2006. Doc. #124. Plaintiffs' response to this argument in LMC's motion for summary judgment was, unfortunately, fairly unhelpful as well. The response (Doc. #116 at 10) quotes several policy provisions but contains no citations to the record. The Court cannot determine where among the voluminous contracts and endorsements the quoted language can be found. LMC's reply is equally unhelpful, quoting a number of provisions but providing no citations. Doc. #122 at 10. On top of this, neither party cites a single case in support of its argument with respect to the meaning of the RG and RX policies.
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The Court notes that it sees no inconsistency in its order of June 12, 2006. The order holds that the underlying policies may be exhausted both by payments of indemnity and by payments of LAE, and that the LMC policy is triggered after such exhaustion. Doc. #124.
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Additional briefing will be required. Plaintiffs shall file a response to the argument contained in section IV.B of LMC's original motion for summary judgment (Doc. #111 at 12-16) on or before September 1, 2006. The response shall be no longer than seven pages in length, shall contain specific citations to the relevant language of the policies, and shall attach as exhibits copies of the policies with the relevant language identified. LMC shall file a reply on or before September 8, 2006, also no longer than seven pages in length, that similarly shall include specific citations to the record. After receiving these briefs, the Court will rule on LMC's argument. 3. New Argument.

Paragraph 7(b) of LMC's motion argues that the representations made by U-Haul's insurance agent to LMC establishes the intent of the policies at issue. Doc. #132 at 6. This argument was not made in LMC's motion for summary judgment. See Doc. #111. Although LMC addressed the representations allegedly made by U-Haul's insurance agent, that discussion was found in LMC's reasonable expectations argument, an argument decided in the Court's order of June 12, 2006. Doc. #124 at 9. Because this argument was not raised in LMC's original motion, it need not be addressed now. Motions for reconsideration are not the place for parties to make new arguments not raised in their original briefs. See Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1998). 4. Estoppel.

Paragraph 7(c) of LMC's motion asks the Court to rule on the equitable estoppel argument made in LMC's motion for summary judgment. Doc. 132 at 6. The Court's previous order did not address this argument, probably because it was raised in only one sentence of LMC's 18-page motion for summary judgment (Doc. #111 at 17) and was not mentioned in Plaintiffs' response (Doc. #116) or LMC's reply (Doc. #122). Because it appears that the argument was at least raised in the original motion, the Court will address it after receiving the additional briefing mentioned above. memoranda should address this issue. The parties' seven-page

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5.

Request for Clarification.

Paragraph 8 of LMC's motion asks the Court to clarify various terms from the Court's previous order. In response, the Court states that Plaintiffs' motion for summary judgment was denied only to the extent that the Court was unable to understand and rule on the damages numbers discussed in Plaintiffs' memoranda. LMC's motion for summary

judgment was denied in its entirety (with the exception, the Court now realizes, of the two issues identified above, which will be the subject of further briefing). The Court's order stated that LMC's motion for summary judgment was "denied in part" only because the Court could not understand and rule on the various damages numbers discussed in LMC's memoranda. 6. Next Steps.

After the Court has ruled on the two issues identified above, the Court will determine what additional steps must be taken to resolve this case. As both parties contend that they have overpaid, additional briefing or a hearing will be scheduled to determine recoveries in light of the Court's rulings. IT IS HEREBY ORDERED that Defendant/Counter-Plaintiff Lumbermens Mutual Casualty Company's Motion for Reconsideration/Motion for Clarification (Doc. #132) is granted in part and denied in part. DATED this 25th day of August, 2006.

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