United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge.
plaintiffs, marine insurance underwriters, have moved under
Federal Rule of Civil Procedure 59(e) to alter or amend this
court's July 9, 2019, Memorandum and Opinion granting
summary judgment and entering final judgment for American
Global Maritime. (Docket Entry No. 149). The Underwriters
argue that previously unavailable deposition testimony
supports a reasonable inference that American Global Maritime
fell under an exception to the antisubrogation rule and that
the court's ruling was manifestly erroneous because their
action is for reimbursement, not subrogation. (See
Id. at 1-8). American Global Maritime responded that the
deposition testimony does not change the analysis. (Docket
Entry No. 150). After a careful review of the motion,
response, prior rulings, the record evidence, and the
applicable law, the court denies the motion to alter or amend
Rule of Civil Procedure 59 allows a party to move “to
alter or amend a judgment” within “28 days after
the entry of the judgment.” Fed.R.Civ.P. 59(e).
“Under Rule 59(e), amending a judgment is appropriate
(1) where there has been an intervening change in the
controlling law; (2) where the movant presents newly
discovered evidence that was previously unavailable; or (3)
to correct a manifest error of law or fact.” Demahy
v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir.
2012) (citing Schiller v. Physicians Res. Grp. Inc.,
342 F.3d 563, 567 (5th Cir. 2003)). “A motion to alter
or amend the judgment under Rule 59(e) must clearly establish
either a manifest error of law or fact or must present newly
discovered evidence and cannot be used to raise arguments
which could, and should, have been made before the judgment
issued.” Matter of Life Partners Holdings,
Inc., 926 F.3d 103, 128 (5th Cir. 2019) (quoting
Schiller, 342 F.3d at 567). “[R]econsideration
of a judgment after its entry is an extraordinary remedy that
should be used sparingly.” Edionwe v. Bailey,
860 F.3d 287, 295 (5th Cir. 2017) (quoting Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004)).
“The Fifth Circuit generally reviews a decision on a
motion to alter or amend judgment under Rule 59(e) for abuse
of discretion.” Allen v. Walmart Stores,
L.L.C., 907 F.3d 170, 184 (5th Cir. 2018) (alterations
omitted) (quoting Miller v. BAC Home Loans Serv.,
L.P., 726 F.3d 717, 721-22 (5th Cir. 2013)).
“Under this standard, the district court's decision
need only be reasonable.” Life Partners, 926
F.3d at 128.
court's July 2019 Memorandum and Opinion granted summary
judgment for American Global Maritime based on the rule that
an insurer cannot sue an insured for a risk covered and paid
for under the insurance policy. (Docket Entry No. 147 at 27).
The Underwriters argue that the court erred because the
antisubrogation rule does not bar claims based on alleged
breaches of duties that American Global Maritime owed to
them. (Docket Entry No. 149 at 6). Relatedly, the
Underwriters ask the court to reconsider the July 2019
Memorandum and Opinion because June 2019 depositions of
American Global Maritime employees support an inference that
American Global Maritime owed the Underwriters legal duties
that it breached.
arguments largely restate arguments previously raised and
addressed in this litigation. See Edionwe, 860 F.3d
at 295 (a Rule 59(e) motion “is not the proper vehicle
for rehashing evidence, legal theories, or arguments that
could have been offered or raised before the entry of
judgment” (alteration omitted) (quoting
Templet, 367 F.3d at 479)). The court did not
dismiss the Underwriters' claims under the
antisubrogation rule; rather, the court found, that the
Underwriters asserted direct, not subrogated, claims.
(See Docket Entry No. 147 at 7-8, 10). After
examining the case law in depth, the court found that the
claims against the Underwriters were barred as a matter of
law because an insurer may not sue an insured for risks
covered and paid for under the insurance policy. (See
Id. at 20-27).
deposition testimony does not affect this result. Even
assuming that the deposition testimony supports an inference
that American Global Maritime owed duties to the Underwriters
under Louisiana law, as the Underwriters contend, those
duties would not change American Global Maritime's status
as an Other Assured under the Offshore Construction Risk
Policy. The rule that an insurer cannot sue an insured for a
covered risk would still apply. The Underwriters presumably
knew the contents of the depositions after they were taken in
June 2019, which is before the July 2019 Memorandum and
Opinion issued. While the Underwriters did move under Rule
56(d) for more discovery, they neither mentioned the
depositions nor identified “specific facts likely to
emerge from discovery that [were] likely to change the
outcome.” (Id. at 27-28).
Underwriters argue that this court's ruling was
manifestly erroneous because their claims were for
reimbursement, an exception to the rule that an insurer
cannot sue an insured for a covered risk. (Docket Entry No.
149 at 6). The court considered and rejected this argument in
the July 2019 Memorandum and Opinion. (Docket Entry No. 147
at 23-24, 27). The Underwriters have not adequately
explained, including in their Rule 59(e) motion, how their
action is one for reimbursement. See 16 Couch on
Insurance § 226:4 (3d ed. 2019) (reimbursement is
“the contractual right of an insurer to a refund
directly from the insured when the insured also receives
payment for those same expenses from another source”).
Underwriters argue that the July 2019 Memorandum and Opinion
“ignores the commercial reality of the relationship
between [u]nderwriters on an offshore construction project
and the [marine warranty surveyors].” (Docket Entry No.
149 at 8). The July 2019 Memorandum and Opinion was based on
the record evidence as to the specific contractual
relationships between the Underwriters, Chevron, and American
Global Maritime. The record evidence showed that the
Underwriters chose to insure American Global Maritime for the
property damage to the Bigfoot Project that they have sued to
recover, “run[ning] afoul of the principle that an
insurer may not sue an insured to recover money paid for the
risk that the insurer promised to insure.” (Docket
Entry No. 147 at 27).
Underwriters have not identified sufficient grounds to
justify the “extraordinary remedy” of setting
aside or amending the final judgment. Templet, 367
F.3d at 479. The Underwriters' disagreements with the