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Weingarten v. Auto-Owners Insurance Co.

United States District Court, D. Colorado

April 17, 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 me to reconsider my order granting in part Defendant Auto-Owners Insurance Company's Motion for Summary Judgment. In support of their motion, Plaintiffs submit a video and photographs they recently obtained. They claim this new evidence supports their theory that the property underlying their insurance claim was used principally as a private residence, which is sufficient to avoid summary judgment on that issue. Although a close call, I find the new evidence demonstrates just enough of a disputed issue of material fact as to whether Plaintiffs' property was being used principally as a private residence. Accordingly, I grant Plaintiffs' Motion for Reconsideration.

         BACKGROUND

         Plaintiffs filed this case in state court on May 9, 2017. Compl., ECF No. 4. Plaintiffs allege that Auto-Owners improperly denied their insurance claim, which sought coverage for property damage 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. Auto-Owners subsequently removed the case to this Court. Notice of Removal, ECF No. 1.

         The parties filed cross motions for summary judgment while they were engaging in discovery. Relevant here, Auto-Owners sought a legal determination that the policy does not cover Plaintiffs' claimed losses, because the property was not being used principally as a private residence. Auto-Owners' Mot. for Summ. J. 7-11, ECF No. 22. I found that the policy does not cover damage to Plaintiffs' dwelling, because Plaintiffs did not 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 produced a document stating that the individuals growing marijuana were residing at the property, I found this single conclusory statement insufficient to create a disputed issue of fact. Id. at 9. Indeed, finding a triable issue of fact based on this evidence would have essentially written the term “principally” out of the insurance contract.

         On January 4, 2018, Plaintiffs filed a Motion for Reconsideration. First Mot. for Reconsideration, ECF No. 32. In denying Plaintiffs' motion, I clarified that evidence indicating merely that the property was used for residential purposes was not sufficient. Order on First Mot. for Reconsideration 5-7, ECF No. 37. The insurance policy requires that the property be used principally as a private residence, and Plaintiffs failed to present evidence that this requirement was met. Id. I found it important that Plaintiffs did not produce documents or testimony suggesting the house was furnished or that the residents left their clothing and other belongings at the house. Id. at 7. In short, Plaintiffs' conclusory statement in their proof of loss form that individuals were living at the house was insufficient to create a triable issue of fact. Id.

         Then, on March 12, 2018, Plaintiffs filed the present Motion for Reconsideration, ECF No. 38. Plaintiffs contend that previously unavailable evidence demonstrates a factual dispute as to the principal use of the property. Id. at 4-5. The pictures and video attached to Plaintiffs' motion show the property's condition when law enforcement discovered the grow operation. ECF No. 38-2. In response, Auto-Owners first asserts the new evidence is untimely, because the discovery deadline has passed. Resp. to Second Mot. for Reconsideration 3, ECF No. 40. Additionally, Auto-Owners contends the video and photographs illustrate that the property was principally used as a marijuana grow operation. Id. at 5.

         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

         Plaintiffs' motion focuses entirely on the second basis for reconsideration-that previously unavailable evidence demonstrates a disputed issue of fact. Second Mot. for Reconsideration 3, ECF No. 38. Plaintiffs claim the attached photographs and video show that the growers may have been using the property principally as a private residence. ECF No. 38-2. I first address whether I can consider the new evidence at this stage. Then, I analyze whether the evidence demonstrates a disputed issue of material fact as to whether the growers used the property principally as a private residence.

         The video and photographs constitute previously unavailable evidence that I may consider at this stage. Plaintiffs' counsel submits an affidavit asserting that the evidence only recently became available, because it was part of the District Attorney's file for the prosecution of the individuals allegedly growing marijuana at the property. Aff. of Aldo DelPiccolo ¶ 3, ECF No. 38-1. Defendant does not contradict that the evidence became available only recently. This is sufficient to demonstrate that the new evidence was previously unavailable. I am aware that documents the government plans to use in the prosecution of a criminal case are frequently unavailable to the public throughout the duration of the criminal trial. Thus, although “an unexcused failure to present evidence available at the time of summary judgment provides a ...


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