United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge
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.
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.
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.
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.
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.
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).
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
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 ...