Progressive Express Insurance Company v. Tate Transport Corporation et al, No. 2:2021cv00198 - Document 92 (M.D. Fla. 2022)
Court Description: OPINION AND ORDER denying 87 Motion for Reconsideration / Clarification re 86 Opinion and Order on Motion for Summary Judgment. Signed by Judge John E. Steele on 12/29/2022. (RKR)
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Progressive Express Insurance Company v. Tate Transport Corporation et al Doc. 92 Case 2:21-cv-00198-JES-KCD Document 92 Filed 12/29/22 Page 1 of 3 PageID 1320 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION PROGRESSIVE EXPRESS INSURANCE COMPANY, an Ohio Corporation, Plaintiff, v. Case No: 2:21-cv-198-JES-KCD TATE TRANSPORT CORPORATION, a Florida Corporation, RENEE NIENOW, ISLARY MARTINEZ, ISLAMARTI LLC, a Florida Limited Liability Company, DENNIS NIENOW, and ALBERTO DANIEL HERRERA MARTINEZ, Defendants. OPINION AND ORDER This matter comes before the Court on plaintiff's Motion for Reconsideration and Clarification (Doc. #87) filed on November 22, 2022. Defendant filed a Memorandum of Law in Opposition ((Doc. #88) on December 1, 2022, and plaintiff filed a Reply (Doc. #91) on December 14, 2022, with leave of Court. On November 16, 2022, the Court issued an Opinion and Order (Doc. #86) denying plaintiff’s Motion for Judgment/Motion for Default Judgment (Doc. #72). that the Court failed to consider the Final Summary Plaintiff argues Additional Insured Endorsement setting limitations of coverage as to Tate Transport. Dockets.Justia.com Case 2:21-cv-00198-JES-KCD Document 92 Filed 12/29/22 Page 2 of 3 PageID 1321 Plaintiff argues that it has no duty to defend Tate Transport based on this Additional Insured Endorsement. In the Opinion and Order, the Court noted that “Progressive’s summary judgment motion focuses on only one component of the Trucking Use exclusion. Progressive assumes for purposes of the motion that one of the three insured dump trucks was the truck involved in the accident.” (Doc. #86, p. 7.) Later, the Court again noted “Progressive’s summary judgment motion only relies upon the “in any business or for any business purpose” portion of the Trucking Use Exclusion. (Id., p. 11) (citing Doc. #72, p. 8). “The difficulty with Progressive’s duty to defend position is not that allegations of the state court Amended Complaint do not fall within the terms of the Trucking Use exclusion. Rather, there is a duty to defend in this case because the state court Amended Complaint is not confined to the March 25, 2020 accident.” (Id., p. 13.) Plaintiff has filed a motion to reconsider and clarify the Court’s ruling pursuant to Fed. R. Civ. P. 59(e). “In the interests judicial of finality and conservation of scarce resources, reconsideration of a previous order is an extraordinary remedy to be employed sparingly.” Lamar Advert. of Mobile, Inc. v. City of Lakeland, Fla., 189 F.R.D. 480, 489 (M.D. Fla. 1999) (citation omitted). “‘The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or - 2 - Case 2:21-cv-00198-JES-KCD Document 92 Filed 12/29/22 Page 3 of 3 PageID 1322 fact.’ In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). ‘[A] Rule 59(e) motion [cannot be used] to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.’ Michael Linet, Inc. v. Wellington, Fla., 408 F.3d 757, 763 (11th Cir.2005).” Village of Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). Plaintiff is raising a new argument, new defense not presented on the previous summary judgment, and not seeking reconsideration of the narrow Therefore, issues the clarification. motion determined is not in the Opinion and Order. one for reconsideration or Any argument based on the Additional Insured Endorsement should have been presented by summary judgment by the deadline to file dispositive motions that has now expired. Accordingly, it is hereby ORDERED: Plaintiff's Motion for Reconsideration and Clarification (Doc. #87) is DENIED. DONE and ORDERED at Fort Myers, Florida, this of December 2022. Copies: Counsel of Record - 3 - 29th day
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