Collins v. Encompass Insurance Co. et al, No. 2:2006cv08547 - Document 48 (E.D. La. 2010)
Court Description: ORDER denying 43 Motion for New Trial. Signed by Judge Ivan L.R. Lemelle on 3/24/2010. (lag, )
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Collins v. Encompass Insurance Co. et al Doc. 48 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA VIOLET B. COLLINS CIVIL ACTION VERSUS No. 06-8547 ENCOMPASS INSURANCE CO. a/k/a ENCOMPASS INDEMNITY COMPANY, et al. SECTION "B" ORDER AND REASONS Before pursuant to Memorandum the Court Rule in is 59(e). Plaintiff’s (Rec. Opposition. Doc. (Rec. Doc. Motion 43). for New Defendant 44). In Trial filed addition, a an Amicus Curiae Memorandum supporting the Motion for New Trial was filed by former counsel for plaintiff, D’Aqula, Volk, Mullins & Contreras A.P.L.C. Defendant asserts that Plaintiff failed to establish either a manifest error of law or fact and/or fails to present newly discovered evidence in accordance with Rule 59(e). For the following reasons, IT IS ORDERED that the instant motion is DENIED. Facts of the Case: Plaintiff, Violet B. Collins, filed suit to recover additional insurance proceeds for damage to her home at 3721 Vincennes Place, New Orleans, incurred during Hurricane Katrina. (Rec. Doc. 1). Emergency Plaintiff’s property was insured by the Federal Management Agency (“FEMA”) with a Standard Flood 1 Dockets.Justia.com Insurance Policy (“SFIP”) for $225,000 in building coverage and $12,500 in contents coverage. (Rec. Doc. 13 at 2). On September 6, 2005, Plaintiff contacted FEMA to provide notification Hurricane of her Katrina loss on as a August result 29, of 2005. flooding (Rec. caused Doc. by 13-4). Thereafter, on October 22, 2005, Jim Sabolick, an adjuster with the National Catastrophe Claims, issued a final report assessing the actual cash value of plaintiff’s loss at $172,096.00 after the $2,000.00 deductible for both building contents loss ($12,500.00). (Rec. Doc. 13-4). ($159,596.00) and FEMA subsequently issued Plaintiff checks between November 2, 2005 and February 8, 2006, totaling $172,096.00. (Rec. Doc. 13-4). On July 26, 2006, Plaintiff submitted supplemental documentation to her insurance provider because the adjuster missed certain items on the original adjustment, and FEMA issued Plaintiff additional checks in the amount of $1,196.00 and $302.00 on July 26 and 28, 2006, respectively. (Rec. Doc. 13-4). On August 31, 2005, David I. Maurstad, the then Acting Federal Insurance Administrator, issued a partial limited waiver of the deadline to file a sworn Proof of Loss (“POL”), allowing payment of undisputed claims without a formal POL and allowing the policy holder to file a POL within one year from the date of the loss if the policy holder disputes the claim settlement. 2 (Rec. Doc. 17-2). The memo contains the following language, which is at issue in this litigation: [I]n the event a policyholder disagrees with the insurer’s adjustment, settlement, or payment of the claim, a policyholder may submit to the insurer a proof of loss within one year from the date of the loss. The POL must meet the requirements of VII.J.4. of the SFIP… (Rec. Doc. 17-2)(emphasis added). Thus, the Maurstad Memorandum extended the filing deadline for a POL from 60 days to one year from the date of loss for all insureds that dispute the insurer’s adjustment, settlement, or payment of the claim. On August 28, 2007, Plaintiff filed the instant suit against her NFIP provider and FEMA in the Civil District Court for the Parish of Orleans, State of Louisiana, alleging the sums recovered are not sufficient to satisfy the terms of her policy. (Rec. Doc. 1). POL stating Defendant argues Plaintiff has not submitted a the amount of her supplemental claim, and thus cannot sue Defendant. (Rec. Doc. 1 at 7). Plaintiff argues the Maurstad Memorandum, “Waiver of the Proof of Loss Requirement in the Standard Flood Insurance Policy,” (Maurstad Memorandum) rendered the POL claim requirement permissive. (Rec. Doc. 17 at 7). On June 24, 2009, the Defendant's 3 Motion for Summary Judgment was granted in part with respect to the Court's recognition that Plaintiff failed to submit a Proof of Loss and the legal interpretation that filing mandatory rather than permissive. respect to Defendant's a Proof of Loss is The motion was denied with request that Plaintiff's claims be dismissed for failure to submit a POL. In light of Plaintiff’s argument that her eye disease may be related POL, to the her court unintentional directed failure to parties to conduct timely file additional a discovery and provide supplemental briefs on the issue of Plaintiff’s eye disease and its effect on her failure to file a sworn proof of loss. (Rec. Doc. 29, Order and Reasons). On October 15, 2009, after reviewing the additional discovery and supplemental briefs, this court granted defendant’s motion for summary judgment. (Rec. Doc. 41). Law and Analysis: I. Standard of Review for New Trial The Court should refrain from altering or amending a ruling or judgment under Rule 59(e) of the Federal Rules of Civil Procedure unless one of the following grounds is present: (1) the judgment is based upon manifest errors of law or fact; 4 (2) the existence of newly discovered or previously unavailable evidence; (3) manifest injustice will result; or intervening change in controlling law has occurred. (4) an See 11 Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d ' 2810.1, p. 125-27 (1995) ("Wright & Miller"). Altering, extraordinary amending, measure, or reconsidering which courts a should judgment use is an sparingly. Southern Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993)(noting that the standards applicable to Rule 59(e) favor the denial of motions to alter or amend a judgment); see also 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure: Civil 2d ' 2810.1, p. 124 (1995). Accordingly, rulings should only be reconsidered "where the moving party has presented substantial reasons for consideration." Id.; see also Baustian v. Louisiana, 929 F. Supp. 980, 981 (E.D. La. 1996). II. Discussion The email from FEMA’s attorney Kristen Shedd, dated April 25, 2007, cannot be considered previously unavailable evidence. newly discovered evidence or The information contained in the email only serves to supplement documents indicating that Ms. Collins believed the proof of loss requirement was waived, 5 which this Court has previously reviewed and rejected. (Rec. Doc. 17, Exhibits A-D, Rec. Doc. 40). "A Rule 59(e) motion should not be used to re-litigate prior matters that should have been urged earlier or that simply have been resolved to the movant's dissatisfaction." In re Self, 172 F. Supp. 2d 813, 816 (W.D. La. Oct. 10, 2001); Wright & Miller, ' 2810.1 at 127-28; and Clay v. Daichi Shipping, 2000 WL 6269, at *1 (E.D. La. Jan. 5, 2000); Compare also with Louisiana v. Sprint Communications,Co.,899 F. Supp.282, 284(M.D. La. 1995). Conclusion The Fifth Circuit has held that a motion for new trial "must clearly establish a manifest error of law or fact or must present newly discovered evidence." Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990); see also First Commonwealth Corp. v. Hibernia Nat. Bank of New Orleans, 896 F. Supp. 634, 635 (E.D. La. 1995). The arguments presented by Plaintiff do not satisfy the criteria imposed by the Fifth Circuit to justify the granting of Rule 59(e) relief. Plaintiff has failed to show that the court must correct a manifest error of law or fact, that she has newly discovered or previously unavailable evidence, that the court must prevent a manifest injustice, or 6 that an intervening change in controlling law has occurred since the time of the ruling. Finding that Plaintiff has not provided the Court any basis for altering its ruling or judgment, the motion for a new trial should be denied. Accordingly, IT IS ORDERED that the Motion for a New Trial is DENIED. Hello This is a Test New Orleans, Louisiana, this _____ 2010. March 24th day of ________, ______________________________ UNITED STATES DISTRICT JUDGE 7
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