United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION DENYING DEFENDANTS' MOTION FOR
before this Court is the Defendants' motion for
reconsideration . In their motion, Defendants ask this
Court to reconsider its previous denial of Defendants'
motion for summary judgment . Having considered the
matter, the Court finds the motion should be denied.
and Procedural Background
2015, nonparty Chickasaw County School District entered into
a contractual agreement ("Agreement" or "the
Agreement") with Defendant Sullivan Enterprises to
perform window restoration work on the Houlka Attendance
Center. See Affidavit of Dr. Betsy Collums [Doc. No.
107-1] at ¶ 7 & Document Al01-2007, Agreement
between Chickasaw County School District and Sullivan
Enterprises, Inc. [Doc. No. 107-2, Exhibit A]. On July 30,
2015, while construction work was ongoing a fire began that
consumed the entire Houlka Attendance Center Building. Doc.
No. 107-1 at ¶ 11.
result of this fire, Plaintiff Liberty Mutual, the school
district's property insurer, paid the school district
$4.3 million for the damages caused to the building.
Affidavit of Jay Goldstein [Doc. No. 107-4] at ¶ 13.
Liberty Mutual then brought this subrogation action against
the Defendants, alleging that their negligence started the
fire and seeking to recover insurance proceeds it paid out to
the School District.
their original motion, Defendants argued that the Agreement
between Sullivan Enterprises, the contractor, and the School
District provided a waiver of subrogation for the claims at
hand. This Court found that the waiver of subrogation
provision only extended to damages of property considered to
be "Work" property as defined by the Agreement. As
a result, the Agreement did not prevent Liberty Mutual from
seeking recovery for damages to non-Work property, and so
this Court denied Defendants' motion with respect to
Liberty Mutual's claims for those damages.
reach that decision, this Court had to decide whether the
scope of the provision was determined by the nature of
property damaged-an approach often described as the
"minority" approach and described by this Court as
the "damage type" approach-or by which insurance
policy paid for the damages, described as the
"majority" or "insurance source"
approach. See Trinity Universal Ins. Co. v. Bill Cox
Const, 75 S.W.3d 6, 11-12 (Tex. Civ. App. 2001). The
Court found the "damage type" approach applicable
and therefore found that the waiver of subrogation provision
did not prevent Liberty Mutual from seeking to recover
damages it paid for non-Work property. As a result, the Court
granted Defendants' motion with respect to damages for
Work property and denied the motion with respect to damages
for non-Work property.
now ask this Court to reconsider that opinion and order and
decide that the majority approach should apply and grant
summary judgment in their favor in full.
the Federal Rules of Civil Procedure do not provide for a
motion for reconsideration, such a motion may be considered
either a Rule 59(e) motion to alter or amend judgment or a
Rule 60(b) motion for relief from judgment or order."
Shepherd v. Int'l Paper Co., 372 F.3d 326, 328
n.l (5th Cir. 2004). Because the motion before this Court was
filed within 28 days of the Court's order, the Court will
treat the motion as a Rule 59(e) motion to alter or amend
judgment. See Fed. R. Civ. P. 59. A Rule 59 motion
is the proper vehicle by which a party can "correct
manifest errors of law or fact" or "present newly
discovered evidence." Templet v. HydroChem
Inc., 367 F.3d 473, 479 (5th Cir. 2004) (quoting
Waltman v. Int'l Paper Co., 875 F.2d 468, 473
(5th Cir. 1989)). A party should not attempt to use the Rule
59 motion for the purpose of "rehashing evidence, legal
theories, or arguments that could have been offered or raised
before the entry of judgment." Templet, 367
F.3d at 479, (citing Simon v. U.S., 81 F.2d 1154,
1159 (5th Cir. 1990)).
identify four issues they assert are manifest errors of law
1. The Court's opinion was manifestly in error in law and
fact when it mistakenly quoted from an affirmance by the
Fifth Circuit in Craig-Wilkinson, 101 F.3d 699, 1996
WL 661216 (5th Cir. 1996) and mistakenly found that the court
should follow the "minority rule" on the scope of
2. The Court's opinion misapprehended Defendants'
waiver of subrogation argument by not applying section 11.3.5
of the General Conditions of A201-2007.
3. The Court's opinion inaccurately concluded "the
relevant sections of Document A107-1987 [contained in
Fidelity & Guaranty Ins. Co. v. Craig-Wilkinson,
Inc., 948 Supp. 608 (S.D.Miss.) aff d 101 F.3d 699 are
identical to the sections [in General Conditions of Form
A201-2007] at issue here."
4. The Court's opinion was manifestly in error by finding
Liberty Mutual's Policy only waived damages to work
"because there is no evidence [Liberty Mutual's
Policy] was purchased specifically to cover the work, or that
it includes any ...