United States District Court, M.D. Florida, Tampa Division
C. BUCKLEW, UNITED STATES DISTRICT JUDGE.
cause comes before the Court on Plaintiff's Motion for
Reconsideration. (Doc. No. 88). Defendant Kyla Roberts
opposes the motion. (Doc. No. 92). As explained below, the
motion is denied.
Standard of Review
are three major grounds justifying reconsideration: (1) an
intervening change in controlling law; (2) the availability
of new evidence; and (3) the need to correct clear error or
to prevent manifest injustice. Sussman v. Salem, Saxon
& Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla.
1994)(citations omitted). The Court notes that
reconsideration of a previous order is an extraordinary
remedy to be employed sparingly. See id. (citations
Evanston Insurance Company (“Evanston”) argues
that its motion is based on the need to correct clear error
and to prevent manifest injustice. However, the Court finds
that Plaintiff is merely attempting to refute the basis for
the Court's earlier decision. See Lamar Advertising
of Mobile, Inc. v. City of Lakeland, 189 F.R.D. 480, 490
(M.D. Fla. 1999)(stating that a motion to reconsider should
not be used to rehash arguments that the Court has already
rejected or to attempt to refute the basis for the
Court's earlier decision).
8, 2013, Namon Smith and Zachary Roberts were working on a
cell tower. Namon Smith was not properly secured to the cell
tower and fell and struck Zachary Roberts, which caused
Zachary Roberts to fall over 200 feet to the ground below.
Zachary Roberts died from his injuries.
Roberts is survived by his wife, Kyla Roberts, and she is the
personal representative of the Estate of Zachary Roberts.
Defendant Kyla Roberts, as personal representative of the
Estate of Zachary Roberts (hereinafter referred to as
“the Estate”), filed suit in state court against
Defendant Monarch Towers, Inc. (“Monarch”),
Defendant Jack Boone (an executive officer and/or director of
Monarch), Defendant Broadcast Tower Technologies, Inc.
(“Broadcast”), and Defendant Southeast Personnel
Leasing, Inc. (“SPL”).
Estate asserted vicarious liability and negligence claims
against Boone, Monarch, Broadcast, and SPL. Specifically, in
the vicarious liability claims asserted in state court, the
Estate alleged that Boone, Monarch, Broadcast, and/or SPL
employed Namon Smith, and that Smith negligently failed to
use reasonable care which caused him to fall and strike
Zachary Roberts. In the negligence claims asserted in state
court, the Estate alleged that Boone, Monarch, Broadcast, and
SPL acted negligently and that their negligence led to
Zachary Roberts' fall and death. The Estate also alleged
that Zachary Roberts was the employee of Monarch and/or Boone
and/or Broadcast and/or SPL at the time of the fall. The
state court action is ongoing.
issued a Commercial General Liability policy (“the CGL
Policy”) to Monarch. In this federal lawsuit, Evanston
seeks a declaration that: (1) there is no coverage for the
claims against Monarch, Boone, and Broadcast; (2) Broadcast
is not an additional insured; (3) Evanston has no duty to
defend Monarch, Boone, and Broadcast in the underlying state
court action; and (4) Evanston has no duty to indemnify
Monarch, Boone, and Broadcast for any liability assessed in
the underlying state court action. Evanston filed a motion
for summary judgment on these claims, and the Court found:
(1) Evanston has a duty to defend Monarch and Boone in the
state court action; (2) whether Evanston has a duty to
indemnify Monarch and Boone is not ripe for review, because
the Estate's claims against them in the state court
action have not yet been resolved; and (3) Broadcast is not
an additional insured, and as such, Evanston has no duty to
defend or indemnify Broadcast. (Doc. No. 83).
Motion for Reconsideration
instant motion, Evanston asks the Court to reconsider two
rulings in the summary judgment order. Specifically, Evanston
argues that the Court erred in finding that: (1) Evanston has
a duty to defend Monarch and Boone in the underlying state
court action; and (2) a determination regarding whether
Evanston has a duty to indemnify Monarch and Boone is not
ripe for review. As explained below, the Court rejects
Evanston's arguments of error.
Duty to Defend
contends that there is no duty to defend Monarch and Boone in
the state court action, because the CGL Policy provides an
exclusion from coverage for bodily injury to Monarch's
employees and its leased employees. Evanston contends that
the evidence before the Court shows that Zachary Roberts was