United States District Court, D. Nevada
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND DENYING DEFENDANTS' MOTION TO STRIKE [ECF
NOS. 51, 63]
P. GORDON, UNITED STATES DISTRICT JUDGE.
United Specialty Insurance Company (United) seeks a
declaration that it has fulfilled its duties under a
liability insurance policy issued to defendant Hachiman, LLC.
I previously found that United's duty to defend in the
underlying litigation against the defendants was limited by
the policy's “Limited Coverage Assault or Battery
Related Claims” endorsement because the underlying suit
arises from an alleged assault and battery. ECF No. 44 at 6.
But I denied summary judgment in part because the $100, 000
limit under the endorsement had not been reached.
Id. at 6-7.
that the $100, 000 limit has been exhausted, United again
moves for summary judgment. ECF No. 51. The defendants
respond that I should reconsider my prior order in light of
the deposition testimony of one of the plaintiffs in the
underlying suit. ECF No. 56. They argue that the shooting in
the underlying case may have been accidental and not part of
an assault and battery. United replies that reconsideration
is inappropriate because the defendants failed to diligently
conduct discovery in the underlying case and that, in any
event, the deposition testimony does not undermine my prior
order. ECF No. 62. The defendants move to strike portions of
the reply. ECF No. 63. Because the reply addresses the
evidence that the defendants raise in their opposition, I
deny the motion to strike. And I grant United's motion
for summary judgment because the newly-discovered evidence
supports my prior conclusion that the underlying litigation
arises from an assault and battery.
issued a liability insurance policy to Hachiman, LLC in 2016.
ECF No. 39-1 at 4-5. The policy identified defendants
Palomino Club, LLC and Lacy's, LLC as additional named
insureds. Id. at 29. Defendants Adam Gentile and
Greg Parks are managing members of Lacy's. ECF No. 39-4
at 2. The policy excluded claims “directly or
indirectly, actually or allegedly, arising out of or related
to any” assault or battery. ECF No. 39-1 at 20. The
policy was later endorsed to provide coverage for claims
arising out of assault or battery, but only up to a $100, 000
limit. Id. at 56-57.
is a gentleman's club in Las Vegas. The plaintiffs in the
underlying suit, Alexander Potasi and Derek Fesolai, claim
that while they were at Lacy's, another patron shot them.
ECF No. 39-7 at 10. They filed suit in state court, asserting
claims of assault and battery, intentional infliction of
emotional distress, and negligent infliction of emotion
distress against the patron, and two negligence claims
against the defendants in this case for allowing the other
patron to bring a firearm into the club. Id. at
13-16. United agreed to defend the case but reserved its
rights and filed this suit. ECF Nos. 1, 39-10.
my order granting in part United's motion for summary
judgment, Potasi was deposed in the underlying lawsuit. ECF
No. 60-1. He testified that the gunman got into an
“aggressive” verbal altercation with a third
party before withdrawing and cocking his weapon. Id.
at 41, 46. Potasi stated that the gunman hid the weapon
behind his back, where both Potasi and Fesolai could see it.
Id. at 48. Fesolai then “went for the gun,
” and the gunman shot him twice. Id. at 49-50.
Potasi then intervened and was himself shot five times.
Id. at 50-54. Potasi believes that even if Fesolai
had not intervened, “somebody was going to get shot
that night.” Id. at 112.
denied United's prior motion for summary judgment in part
because the $100, 000 limit had not yet been exhausted. ECF
No. 44 at 6-7. As of April 22, 2019, United has spent in
excess of $100, 000 defending the claims at issue. ECF Nos.
53-1, 53-2. United moves for summary judgment and a
declaration that it has fulfilled its obligations under the
policy. ECF No. 51.
Summary Judgment and Reconsideration Standards
judgment is appropriate if the movant shows “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000); Sonner v. Schwabe N. Am.,
Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To
defeat summary judgment, the nonmoving party must produce
evidence of a genuine dispute of material fact that could
satisfy its burden at trial.”). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
the defendants ask me to reconsider my prior order, I must
also apply the standard for reconsideration of an
interlocutory order. A district court “possesses the
inherent procedural power to reconsider, rescind, or modify
an interlocutory order for cause seen by it to be sufficient,
” so long as it has jurisdiction. City of L.A.,
Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885
(9th Cir. 2001) (quotation and emphasis omitted); see
also Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 12 (1983) (citing Fed.R.Civ.P.
54(b)). “Reconsideration is appropriate if the district
court (1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” Sch. Dist. No. 1J, Multnomah
Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993). A district court also may reconsider its decision if
“other, highly unusual, circumstances” warrant
it. Id. “A motion for reconsideration is not
an avenue to re-litigate the same issues and arguments upon
which the court already has ruled.” In re
AgriBioTech, Inc., 319 B.R. 207, 209 (D. Nev. 2004).