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Evanston Insurance Co. v. Boone

United States District Court, M.D. Florida, Tampa Division

October 21, 2019

EVANSTON INSURANCE COMPANY, Plaintiff,
v.
JACK BOONE, ET AL., Defendants.

          ORDER

          SUSAN C. BUCKLEW, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Standard of Review

         There 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 omitted).

         Plaintiff 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).

         II. Background

         On July 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.

         Zachary 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”).

         The 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.

         Evanston 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).

         III. Motion for Reconsideration

         In the 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.

         A. Duty to Defend

         Evanston 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 ...


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