United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE.
Court has reviewed the Plaintiffs' Motion for
Reconsideration of January 4, 2018 Order and Judgment
Order (Document 104) and supporting memorandum (Document
105), the Defendants' Memorandum of Law in Opposition
to Plaintiffs' Motion for Reconsideration of January 4,
2018 Order and Judgment Order (Document 107), and the
Plaintiffs' Reply in Support of Reconsideration of
January 4, 2018 Order and Judgment Order (Document 109).
case has had a somewhat convoluted history. The Plaintiff,
referred to collectively as “the Greenbrier, ”
filed a Complaint (Document 1-1) in the Circuit
Court of Greenbrier County, West Virginia, on March 14, 2014.
The Greenbrier sought recovery from the Defendants, a group
of insurers, for damages arising from a 2012 derecho
windstorm. The derecho occurred on June 29, 2012,
and the Greenbrier hosted its Greenbrier Classic golf
tournament just days later. The tournament went forward as
scheduled, and the Insurers promptly paid portions of the
Greenbrier's claim. However, the Insurers largely denied
a business interruption claim related to a projected increase
in profits following the Greenbrier Classic. That denial is
the subject of this lawsuit.
Insurers requested that the case be dismissed or stayed
pending appraisal. On February 18, 2015, the Court granted
the motion and entered a stay to permit appraisal in
accordance with the insurance policies. (See
Memorandum Opinion and Order, Document 75.) On May 1, 2017,
after receiving notice that the appraisal process was
complete, the Court entered an order lifting the stay and
setting a schedule for the filing of any motions to overturn
the appraisal award. (See Order, Document 79.) The
appraisal panel determined that the Insurers owed an
additional $57, 000, but found that the Greenbrier was not
entitled to the remainder of its $16, 497, 138.63 claim.
Greenbrier filed a motion to vacate the decision of the
appraiser/umpire on May 23, 2017. On June 13, 2017, the
Insurers filed a cross-motion seeking partial summary
judgment on the underlying complaint as a result of the
appraisal decision. The Court denied the motion to vacate and
granted the cross-motion for partial summary judgment.
(See Memorandum Opinion and Order, Document 93.)
Greenbrier's amended complaint (Document 1-3) contains
the following counts: Count One: Breach of the Insurance
Contract; Count Two: Declaratory Relief determining that
appraisal was not required; and Count Three: Unfair and
Unlawful Claims Practices. The Court found that the first
opinion staying the case pending appraisal resolved Count
Two, and the second opinion granting partial summary judgment
and enforcing the appraisal award resolved Count One.
Therefore, the Court requested that the Greenbrier indicate
whether it intended to pursue Count Three and what type of
discovery it anticipated. The Greenbrier responded that it
intended to proceed with Count Three, but might wish to
appeal the Court's prior decisions before
proceeding.The Insurers filed a response contending
that the Greenbrier would have no damages that were not
premised on the success of Count One, the improper refusal to
pay the Greenbrier's claim.
careful review of the amended complaint, the Court ordered
that Count Three be dismissed, explaining that it appeared to
be dependent on the success of Count One. (See
Order, Document 101.) The Greenbrier seeks reconsideration.
59(e) of the Federal Rules of Civil Procedure permits a
motion to alter or amend a judgment within 28 days of the
entry of judgment. The Fourth Circuit has “recognized
that there are three grounds for amending an earlier
judgment: (1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.” Pac. Ins. Co. v. Am.
Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).
“Rule 59(e) motions may not be used, however, to raise
arguments which could have been raised prior to the issuance
of the judgment, nor may they be used to argue a case under a
novel legal theory that the party had the ability to address
in the first instance.” Id. The Fourth Circuit
has further cautioned that reconsideration after entry of
judgment should be used sparingly. Id.
60(b), in turn, permits relief from a final judgment for the
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct ...