Opinion
Civil Action Number 3:03CV441.
April 5, 2004
FINAL ORDER
THIS MATTER comes before the Court on the Motion to Deem Defendant Pennsylvania Manufacturers' Association Insurance Co.'s Motion for Summary Judgment Withdrawn, and Motion for Entry of Final Order Dismissing Case, filed by Wal-Mart Stores, Inc. ("Wal-Mart") on March 9, 2004. Pennsylvania Manufacturers' Association Insurance Co. ("PMA") is unopposed to Wal-Mart's Motion to Withdraw. Accordingly, the Motion to Withdraw is hereby GRANTED, and PMA's Motion for Summary Judgment is MOOT. In addition, Wal-Mart's Motion for Entry of Final Order is GRANTED. This action is hereby DISMISSED.
Let the Clerk send a copy of this Order to all parties of record.
It is SO ORDERED.
ORDER
THIS MATTER comes before the Court on Plaintiff Travelers Indemnity Company of America's Motion for Reconsideration of the Court's Memorandum Opinion and Order of December 24, 2003. For the reasons stated in the accompanying Memorandum, Plaintiff's Motion for Reconsideration is hereby DENIED.Let the Clerk send a copy of this Order to all parties of record.
It is SO ORDERED.
MEMORANDUM OPINION
THIS MATTER comes before the Court on Plaintiff Travelers Indemnity Company of America's Motion for Reconsideration of the Court's Memorandum Opinion and Order of December 24, 2003. For the reasons stated below, Plaintiff's Motion for Reconsideration is DENIED.I.
Plaintiff Travelers Indemnity Company of America ("Travelers") provided Miller Building Corporation ("Miller") standard Commercial General Liability ("CGL") coverage from December 31, 1998 to February 1, 2001 (the "Policies"). On October 11, 1996, Wal-Mart Stores, Inc. ("Wal-Mart") and I.B. Ventures, LLC ("I.B. Ventures") signed a Joint Development Agreement for the development of a Chesterfield County retail complex commonly known as the Shoppes at Ironbridge Plaza ("Ironbridge"). The complex was built on two tracts of land, one owned by Wal-Mart and the other owned by I.B. Ventures. Wal-Mart was to build a Wal-Mart store on its parcel, while I.B. Ventures was to construct various other buildings on its parcel. Miller served as the general contractor for the construction of the Wal-Mart store, and he performed Site Development Work on I.B. Ventures' buildings. Ironbridge was substantially completed in or around December 1996.
On June 24, 2002, Wal-Mart and I.B. Ventures brought suit against Miller and others in the Circuit Court for the County of Chesterfield ("Underlying Suit"), alleging that Miller performed deficient site work and that he furnished defective fly ash fill material. J.H. Martin, Miller's subcontractor, selected and placed the fill material. Wal-Mart and I.B. Ventures maintain that the fill material expanded rapidly upon contact with water, causing the buildings to shift and resulting in buckled and cracked flooring, distressed wallboard, and other damage.
On May 20, 2003, Plaintiff brought this declaratory action, asserting that its Policies do not cover the claims raised in the Underlying Suit. Plaintiff and Defendants Wal-Mart and I.B. Ventures then filed cross-motions for summary judgment. By Memorandum Opinion and Order dated December 24, 2003, the Court granted summary judgment in favor of Wal-Mart and I.B. Ventures, finding that the damage to the Ironbridge buildings constituted "property damage" caused by an "occurrence" within the meaning of the Policies. See Memo. Op. (Dec. 24, 2003).
II.
Plaintiff now moves for reconsideration of the Court's December 24, 2003 Memorandum Opinion and Order, pursuant to Federal Rule of Civil Procedure 54(b). Under Rule 54(b), an interlocutory order "is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Fed.R.Civ.P. 54(b). A "controlling or significant change in the law" is an appropriate basis for a motion for reconsideration. Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). Here, Plaintiff urges the Court to reconsider its holding in light of two new cases: Hotel Roanoke Conference Center Commission v. Cincinnati Insurance Company and Pulte Home Corporation v. Fidelity and Guaranty Insurance Company.
The December 24, 2003 Order was an interlocutory order because it entered final judgment only as to Travelers, Wal-Mart, and I.B. Ventures. PMA did not join the parties' cross-motions for summary judgment.
In Hotel Roanoke, the United States District Court for the Western District of Virginia held that "damages resulting from the insured's work or product is not covered by a commercial general liability policy because it is `expected' from the standpoint of the insured." Hotel Roanoke, Civ.A. No. 703CV00109, 2004 WL 326712, at *3 (W.D.Va. Feb. 23, 2004) (Pl. Mot. Recons. Ex. A). Similarly, in Pulte, the Fairfax County Circuit Court held that "defective workmanship cannot constitute a covered `occurrence' under the [policy], as faulty workmanship by the insured is almost always foreseeable." Pulte, Law No. 210454, at 11 (Va. Cir. Fairfax Feb. 6, 2004) (Pl.Mot.Recons. Ex. B).
The Policies' coverage terms require Plaintiff to defend and to indemnify Miller for claims arising from "property damage" caused by an "occurrence." Pl. Mot. Summ. J. Exs. D, E, F, at 1. Under Virginia law, an "occurrence" is "an incident that was unexpected from the viewpoint of the insured." Utica Mut. Ins. Co. v. Travelers Indem. Co., 286 S.E.2d 225, 226 (Va. 1982).
However, the Hotel Roanoke and Pulte cases are inapposite because they do not represent a controlling or significant change in the law. In its Memorandum Opinion, this Court primarily relied upon the plain language of the Policies in determining that the subcontractor exception to the "your work" exclusion provided potential coverage for damages arising from a subcontractor's defective work product. See Memo. Op. at 8-11.Hotel Roanoke and Pulte are not controlling because neither case relies upon the subcontractor exception. Accordingly, these cases provide no compelling basis for reconsideration.
Plaintiff also rehashes its discussion of Travelers Indemnity Company of America v. Miller Building Corporation, No. 7:02CV41BO(3), 2003 WL 21357206 (E.D.N.C. Mar. 31, 2003), andHarbor Court Associates v. Kiewit Construction Company, 6 F. Supp.2d 449 (D. Md. 1998). However, using a motion to reconsider to reiterate earlier arguments is improper, because it "asks the Court to rethink what the Court ha[s] already thought through — rightly or wrongly." Above the Belt, Inc., 99 F.R.D. at 101.
III.
For the reasons stated above, Plaintiff's Motion for Reconsideration is DENIED.An appropriate Order shall issue.