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Tilcon of New York, Inc. v. Indemnity Insurance Company of North America

United States District Court, D. Connecticut

June 16, 2017

TILCON OF NEW YORK, INC., Plaintiff,
v.
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Defendant.

          RULING ON DEFENDANT'S MOTION FOR RECONSIDERATION

          JANET BOND ARTERTON, U.S.D.J.

         On May 10, 2017, the Court issued a ruling [Doc. # 83] (the "Summary Judgment Ruling") denying the parties' cross-motions for summary judgment. On May 18, 2017, eight days after entry of the order, Defendant Indemnity Insurance Company of North America ("UNA") moved [Doc. # 84] for reconsideration, seeking an entry of summary judgment on behalf of UNA, claiming the Court misconstrued the scope of coverage in the underlying Protection and Indemnity ("P&I") policy and claiming the Court misconstrued the fifth endorsement, an "Affiliated Companies Clause." Additionally, by letter [Doc. # 88] Defendant requests permission to supplement its Motion to Reconsider to reference two quotations from this Court's prior Ruling on the Motion to Transfer or Dismiss [Doc. # 40].[1] The Court assumes familiarity with the underlying facts and recites them only as necessary to provide proper context. For the reasons set forth below, the Court denies Defendant's Motion.

         I. Background

         Defendant UNA, an insurer, sold a bumbershoot policy (a type of marine umbrella insurance policy) to Plaintiff Tilcon of New York ("Tilcon"), a New York road-construction and related services company that owns and operates a quarry and maritime terminal on the Hudson River. (See Summary Judgment Ruling at 2.) The bumbershoot policy provided excess coverage to an underlying Protection and Indemnity Policy (the "P&I Policy") that Tilcon carried with American Home. (Id.)

         This dispute arises out of Defendant's refusal to cover Plaintiffs indemnification claim under the bumbershoot insurance policy related to litigation against Plaintiff by Mr. Richard Ronkese, a Tilcon employee who was badly injured when struck by a cable while loading gravel onto a barge called the Nicola Lizza. (Id.)

         Several facts are undisputed by the parties: Tilcon does not own the Nicola Lizza, which is held in trust with Buchanan Marine, L.P. as beneficiary of the trust and A.P. Franz Jr. as trustee. (Id. at 4.) Although it is not an owner of the barge, Tilcon is listed as a Named Assured on the Declaration Page of the underlying P&I policy. (Id.) The underlying P&I policy provides the following promise:

The Assurer hereby undertakes to make good to the Assured... all such loss and/or damage and/or expense as the Assured shall as owners of the vessel named herein have become liable to pay and shall pay on account of the liability, risks, events and/or happenings herein set forth:
(1) liability for loss of life of, or personal injury to, or illness of, any person, excluding, however, unless otherwise agreed by endorsement herein, liability under any Compensation Act to any employee of the Assured (other than a seaman) or in case of death to his beneficiaries or others----

(Id. at 6.) The fifth endorsement to the P&I policy, an "Affiliated Companies Clause, " modifies the scope of coverage, although the parties dispute how it modifies coverage. In pertinent part, it reads:

In respect of the vessel insured hereunder, this policy also covers the Assured and affiliated, subsidiary, interrelated and associated companies and persons, be they owners, or bareboat charterers, sub-charterers, or operators, including stockholders, officers, directors, partnerships, limited liability partnerships or corporations, executors, estates trustees, fiduciaries, and any other associated, owned, affiliated, allied or subsidiary entities or persons as now exist or may hereafter be constituted and shall continue to cover, notwithstanding the provisions of this policy with respect to change of ownership or management.

(Id. at 7.)

         II. Legal Standard

         Motions for reconsideration "shall be filed and served within seven (7) days of the filing of the decision or order from which such relief is sought, and shall be accompanied by a memorandum setting forth concisely the controlling decisions or data the movant believes the Court overlooked." D. Conn. L. Civ. R. 7(c)l. The Second Circuit has explained that "[t]he major grounds justifying reconsideration are 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18B C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 4478). This standard is "strict" and reconsideration should be granted only if "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). If "the moving party seeks solely to relitigate an issue already decided, " the court should deny the motion for reconsideration and adhere to its prior decision. Id.

         III. ...


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