Free Motion for Reconsideration - District Court of Delaware - Delaware

Case 1 :07-cv-00640-GIV|S—IV|PT Document 65 Filed 08/01 /2006 Page 1 of 3
DJC/mmt/387205 2245.4;-75-63]
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NEW CENTURY MORTGAGE )
CORP., )
) Case No.: 05 C 2370
Plaintiff, )
) Judge Coar
v. )
)
GREAT NORTHERN INSURANCE )
COMPANY, FEDERAL INSURANCE )
COMPANY, )
)
Defendants. )
GREAT NORTHERN INSURANCE COMPANY ’S AND FEDERAL INSURANCE COMPANY’S
MOTION FOR RECONSIDERATION
NOW COME the Defendants, GREAT NORTHERN INSURANCE COMPANY and FEDERAL
INSURANCE COMPANY (collectively "Defendants") by and through their attorneys, TRESSLER,
SODERSTROM, MALONEY & PRIESS, LLP, and respectfully request that this Court reconsider the
denial of their Motion for Summary Judgment because the Court apparently did not apprehend that the
question of fact it identified regarding the Prior Act Exclusion was mooted by the Cou1t’s determination
that the underlying Bernstein claim does not involve "advertising injury." In support of this Motion,
Defendants state as follows:
l. In its July 25, 2006 Memorandum Opinion and Order, this Court agreed with Defendants
that the underlying Bernstein action does not involve “advertising injury." Mem. Op. at ll-12. The Court
also found that Bernstein does not involve covered "property damage." Mem. Op. at 14. In tandem, these
two conclusions should have entitled Defendants to summary judgment because, in the absence of
"advertising injury" or "property damage," Defendants cannot owe a duty to indemnify NCMC for its
$1.95 million settlement.
2. However, rather than grant summary judgment to the Defendants, in its Memorandum
Opinion and Order, the Court went on to consider an alternative argument also advanced by

Case 1:07-cv—OO640-G|V|S—lV|PT Document 65 Filed 08/O1/2006 Page 2 of 3
Defendants—that the Prior Acts Exclusion would bar coverage in the unlikely event that Bernstein did
involve "advertising injury." With regard to this issue, the Court found a question of fact as to the timing
of the fax transmissions at issue and, therefore, denied Defendants’ Motion for Summary Judgment in its
entirety. Mem. Op. at 13. In so holding, the Court apparently did not apprehend that the alternative
argument regarding the applicability of the Prior Acts Exclusion became m00t or irrelevant once the
Court found that Bernstein did not involve "advertising injury.”
3. The prior publication exclusion provides:
This insurance does not apply to advertising injury or personal injury arising out of
oral or written publication of material whose first publication took place before the
beginning of the policy period.
Defendants’ Memorandum of Law In Support of Motion for Summary Judgment at 14. By its terms, the
exclusion limits the scope of coverage available for claims involving "advertising injury." Once the
Court found that Bernstein did not involve "advertising injury," all exclusions potentially applicable to
"advertising injury," including the prior publication exclusion, became moot or irrelevant. Put another
way, as the Bernstein settlement does not fall within the scope of the "advertising injury" coverage
afforded by the policy, Defendants do not need to rely upon an exclusion to prevail because there is
nothing left to exclude. As such, the question of fact identified by the Court pertains to a moot issue, and
Defendants were entitled to summary judgment in their favor.
4. To require the parties to proceed to trial to determine the dates of transmission of the
faxes at issue would be pointless. Even if the trier of fact ultimately were to conclude that no faxes were
sent prior to the policy period, Defendants still would not owe coverage because the Court has now found
that the claim does not involve "advertising injury" or "property damage." Quite simply, as there was no
"advertising injury" or "property damage," the timing of the faxes is immaterial.
5. Motions for reconsideration are appropriate when the law or facts have changed or when
the Court has patently misunderstood a party or has made an error not of reasoning but of apprehension.
Bank of Waunakee v. Rochester Cheese Sales, 906 F.2d 1185, 1191 (7'h Cir. 1990). By this motion,
Defendants do not seek to challenge the Court’s reasoning, and, in fact, agree that Bernstein did not
2

Case 1:07-cv—OO640-G|V|S—lV|PT Document 65 Filed 08/O1/2006 Page 3 of 3
involve "advertising injury" or "property damage." Rather, Defendants suggest that, upon determining as
a matter of law that Bernstein did not involve "advertising injury," the Court misapprehended the
relevance of the Prior Act Exclusion. As that exclusion became moot once the Court resolved the
"advertising injury" issue in Defendants’ favor, the question of fact identified by the Court pertaining to
that exclusion should not have prevented summary judgment in Defendants’ favor. Thus, just as the
insurer in American States v. Capital Associates of Jackson County, Inc., 392 F.3d 939 (7th Cir. 2005) was
entitled to summary judgment, so too are the insurers here entitled to summary judgment.
6. For the reasons stated above, Defendants respectfully request that this Court reconsider
the denial of their Motion for Summary Judgment in the Court’s July 25, 2006 Memorandum Opinion and
Order.
GREAT NORTHERN INSURANCE
COMPANY AND FEDERAL INSURANCE
COMPANY
By: s/Daniel J Cunningham
One of Their Attomeys
Daniel J. Cunningham
Kathy Karaboyas Malamis
TRESSLER, SODERSTROM, MALONEY & PRIESS, LLP
Sears Tower, 22nd Floor
233 South Wacker Drive
Chicago, Illinois 60606-6399
(312) 627-4000
3

Case 1:07-cv-00640-GMS-MPT

Document 65

Filed 08/01/2006

Page 1 of 3

Case 1:07-cv-00640-GMS-MPT

Document 65

Filed 08/01/2006

Page 2 of 3

Case 1:07-cv-00640-GMS-MPT

Document 65

Filed 08/01/2006

Page 3 of 3