United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT
to Federal Rule of Civil Procedure 60(b)(3), Plaintiff
Anderson moves for reconsideration of the Court's Order
(Doc. 82) granting Defendant American Family Insurance
Company's (“AFIC”) motion for summary
judgment. That motion (Doc. 94) is DENIED,
and Anderson's motion for a hearing (Doc. 98) is
alleges AFIC failed to assess his home for diminished value
and failed to compensate him for diminished value in
adjusting a claim for water damage from a burst pipe in
January 2014. Docs. 27; 82 at 8. At the summary judgment
hearing, AFIC admitted that its policy covered diminished
value due to stigma, but it argued there was no evidence
Anderson's home had suffered diminished value.
See Doc. 81 at 10-15. The Court reasoned that in
light of this admission, Anderson presented a “garden
variety insurance claim. Anderson suffered an admittedly
covered loss. He claims that AFIC did not pay him enough for
his loss. AFIC claims it did.” Doc. 82 at 7. Because
Anderson presented no evidence his home had suffered
diminished value due to stigma from the water damage, the
Court granted AFIC's motion for summary judgment.
Anderson appealed, and that appeal is pending. Doc. 87.
now moves for reconsideration, arguing that AFIC, in its
briefing on appeal, “takes the position that its
policies do not cover diminished value as that term is used
in Mabry and Royal Capital and that it has
no duty to assess for diminished value unless its insureds
can prove AFIC owes them such a duty on a case-by-case
basis.” Doc. 94-1 at 1-2. AFIC claims that
Anderson's argument misconstrues AFIC's statements on
appeal and that it fails to state an appropriate basis for
the Court to grant relief. Doc. 95 at 1-10. AFIC also argues
that “[i]f American Family is bound by legal positions
taken in this Court, the Eleventh Circuit can bind American
Family to those positions.” Id. at 10.
Rule 60(b)(3) Standard
60(b)(3) allows a court to relieve a party from a final
judgment for fraud, misrepresentation, or misconduct by an
opposing party. The movant has the burden of proving that
assertion by clear and convincing evidence. Evidence of an
opposing party's carelessness is insufficient to justify
relief. Litigants cannot use a motion for reconsideration to
ask a district court to ‘relitigate old matters, raise
arguments, or present evidence that could have been raised
prior to the entry of judgment.'” Attea v.
Univ. of Miami, 678 Fed.Appx. 971, 974 (11th Cir. 2017)
(quotation marks and citations omitted). Further,
“[t]he conduct complained of must be such as prevented
the losing party from fully and fairly presenting his case or
defense.” Rozier v. Ford Motor Co., 573 F.2d
1332, 1339 (5th Cir. 1978).
a general matter, the filing of a notice of appeal deprives
the district court of jurisdiction over all issues involved
in the appeal. However, it does not prevent the district
court from taking action in furtherance of the appeal. . . .
Consistent with these principles, we have held that district
courts retain jurisdiction after the filing of a notice of
appeal to entertain and deny a Rule 60(b) motion. . . .
However, following the filing of a notice of appeal district
courts do not possess jurisdiction to grant a Rule 60(b)
motion. Accordingly, a district court presented with a Rule
60(b) motion after a notice of appeal has been filed should
consider the motion and assess its merits. It may then deny
the motion or indicate its belief that the arguments raised
are meritorious. If the district court selects the latter
course, the movant may then petition the court of appeals to
remand the matter so as to confer jurisdiction on the
district court to grant the motion.” Mahone v.
Ray, 326 F.3d 1176, 1179-1180 (11th Cir. 2003)
(quotation marks and citations omitted); see Fed. R.
App. P. 12.1.
initial matter, the Court can find no support for
Anderson's argument that AFIC denies that its policies
cover diminished value. In response to the motion for
reconsideration, AFIC cites to its appellate brief, which
American Family did not dispute in summary judgment briefing
or oral argument that: 1) its homeowners' policies cover
diminished value losses, and 2) the existence of a duty to
assess for those losses would not require any specific
assertion of diminished value by the insured.
Doc. 94-2 at 62. Anderson claims that even if AFIC does admit
that its policies cover a category of damages labeled
“diminished value, ” AFIC's definition of
that term differs from the Court's. According to
Anderson, AFIC's “definition of diminished value .
. . exclud[es] stigma and [is] limited to uncured
defects.” Doc. 94-1 at 8. In response, AFIC repeats its
admission that its policies cover diminished value, including
diminished value due to stigma. Doc. 95 at 4-6. AFIC also
argues that “Anderson offers no evidence that [AFIC] is
refusing to recognize coverage or disclaiming any duty to
conduct assessments for stigma-diminished value for
policyholders in Georgia.” Doc. 95 at 5. The Court
agrees: AFIC clearly admitted and continues to admit that its
policies cover diminished value resulting from stigma.
AFIC concedes the issue of coverage, its position on the
scope of what it calls its “duty to assess” is
more complex. As the Court understands AFIC's argument,
it does not deny that an insurer owes a general duty to
assess every element of a loss, including diminished value.
If AFIC were to argue it had no such duty, it would be an
argument flatly contrary to Georgia law and AFIC's
admissions in this Court. Rather, AFIC has denied that it had
a “duty to assess [Anderson's] property
for diminished value.” Doc. 94-2 at 62. AFIC appears to
argue that although the insurer's duty to assess
“would not require any specific assertion of diminished
value by the insured, ” the “duty” to
assess is not automatic in every case. Id. AFIC
appears to claim that the insurer has a “duty” to
assess for diminished value in a particular loss only where
there is evidence of the “potentiality for diminished
value.” Id. at 62-63.
AFIC's contention, arguably stated inartfully, is that in
Anderson's particular loss, there are no facts suggesting
a need to go out and assess Anderson's loss for
diminished value. That is because, AFIC argues, there is no
indication Anderson suffered diminished value. Again, AFIC
does not deny that it, like any insurer, has a duty to assess
every element ...