Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Weingarten v. Auto-Owners Insurance Company

United States District Court, D. Colorado

January 29, 2018

CONNIE WEINGARTEN, and EDWARD WEINGARTEN, Plaintiffs,
v.
AUTO-OWNERS INSURANCE COMPANY, Defendant.

          ORDER

          MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE

         Plaintiffs Connie and Edward Weingarten ask the Court to reconsider its order granting in part Defendant Auto-Owners Insurance Company's Motion for Summary Judgment. Because the Court does not find clear error in its order or a need to correct manifest injustice, the Court denies Plaintiffs' Motion for Reconsideration.

         BACKGROUND

         On May 9, 2017, Plaintiffs filed the present action in state court alleging that Auto-Owners improperly denied their property damage claim. Compl., ECF No. 4. Plaintiffs' insurance claim sought coverage for damages due to an illegal marijuana grow operation. Id. Plaintiffs assert causes of action for breach of insurance contract, breach of the duty of good faith and fair dealing, and statutory unreasonable delay or denial. Id. ¶¶ 20-37. On June 8, 2017, Auto-Owners removed the case to this Court. Notice of Removal, ECF No. 1.

         While the parties were engaging in discovery, they filed cross motions for summary judgment seeking coverage determinations. On September 25, 2017, Plaintiffs filed their motion, which asked the Court to find that the policy covers their losses as due to vandalism or malicious mischief. ECF No. 21. Auto-Owners filed its motion on October 13, 2017. ECF No. 22. Auto-Owners sought a legal determination that the policy does not cover Plaintiffs' claimed losses, because damage due to the marijuana grow operation is not vandalism, the property was not being used principally as a private residence, the losses are not accidental direct physical losses, and multiple policy exclusions preclude coverage. Id. at 7-11.

         On December 7, 2018, the Court issued its order on the parties' cross motions for summary judgment. ECF No. 30. The Court granted in part and denied without prejudice in part Plaintiffs' motion. Id. at 11-16. The Court defined vandalism or malicious mischief as intent to damage or destroy property or intent to perform an act that demonstrates reckless disregard for an individual's property rights. Id. at 12-14. However, the Court found that it would be premature to determine whether Plaintiffs' claimed losses are due to vandalism or malicious mischief. Id. at 15-16. As for Auto-Owners' motion, the Court found the policy does not cover damages to Plaintiffs' dwelling. Id. at 7-11. Importantly, Plaintiffs failed to demonstrate a disputed issue of fact as to whether the property was being used principally as a private residence. Id. In fact, Plaintiffs submitted evidence that virtually the entire house was being used to further the marijuana grow operation. Id. at 9. Although Plaintiffs also produced evidence that the individuals growing marijuana may have been residing at the property, the Court found this did not create a disputed issue of fact as to whether the property was being used principally as a private residence. Id. at 9. However, because the personal property section of the insurance policy did not include the “principal use as a private residence” requirement, the Court found that disputed issues of fact exist as to coverage for Plaintiffs' personal property losses. Id. at 10-11.

         On January 4, 2018, Plaintiffs filed the present Motion for Reconsideration, ECF No. 32. Plaintiffs contend the Court erred when it found a lack of a dispute regarding the property's principal use as a private residence. Id. Plaintiffs list four specific reasons in support of their argument: (1) Auto-Owners denied coverage on the basis that the damage was due to “hard living, ” (2) Auto-Owners did not argue in its motion that the property was not used principally as a private residence, (3) Auto-Owners did not present facts supporting the contention that the property was not used principally as a private residence, and (4) evidence in the record suggests the property was principally used as a private residence. Id. at 2. Accordingly, Plaintiffs ask the Court to deny Auto-Owners' Motion for Summary Judgment in its entirety.

         LEGAL STANDARDS

         The Federal Rules of Civil Procedure do not recognize a “motion to reconsider.” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Nevertheless, “motions for reconsideration are routinely entertained in one form or another, by federal courts.” United States ex rel. Superior Steel Connectors Corp. v. RK Specialities, Inc., No. 11-cv-01488-CMA, 2012 WL 3264296, at *1 (D. Colo. Aug. 10, 2012) (unpublished). The bases for granting reconsideration are extremely limited:

Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.

Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (internal citations omitted).

         ANALYSIS

         The Court declines to alter its finding that disputed issues of fact do not exist as to whether the property was principally used as a private residence. Because Plaintiffs do not point to an intervening change in the law or new evidence previously unavailable, the Court infers that Plaintiffs perceive a need to correct clear error. Plaintiffs primarily advance two arguments in support of their clear error contention: Auto-Owners did not argue in its motion that the property must be used principally as a private residence, and the evidence in the record demonstrates at least a disputed issue of fact as to the property's principal use.[1] However, far from committing clear error or misapprehending the facts, the Court finds that its holding is required by the evidence in the record.[2]

         Contrary to Plaintiffs' contention, Auto-Owners raised the principal use as a private residence requirement in its motion. Auto-Owners' motion states, “[T]he alleged damage caused by the grow operation is not covered because the property was not used principally as a private residence. Rather, the Property was being used for business purposes. In order to trigger coverage, the property ‘must be used principally as a private residence.'” Def.'s Mot. for Summ. J. 8, ECF No. 22. Furthermore, in its response brief, Plaintiffs acknowledged that Auto-Owners asserted this argument. Resp. to Def.'s Mot. for Summ. J. 3, ECF No. 27 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.