United States District Court, D. Colorado
MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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
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
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).
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
However, far from committing clear error or misapprehending
the facts, the Court finds that its holding is required by
the evidence in the record.
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