United States District Court, E.D. Louisiana
ORDER AND REASONS
ENGELHARDT UNITED STATES DISTRICT JUDGE
dismissal of the main claims in this matter, trial of the
counterclaim was held before the Court October 24, 2016.
See Rec. Docs. 70 and 109. The Court orally entered
its Order and Reasons into the record on December 16, 2016,
and judgment was entered in favor of Zurich American
Insurance Company of Illinois (“Zurich”) on
January 10, 2017. See Rec Docs. 113, 115, and 118.
Thereafter, Gulf Coast Workforce, LLC (“Gulf
Coast” or “GCW”) filed the motion for a new
trial relative to Zurich's counterclaim that is now
before the Court. For the reasons stated herein, IT IS
ORDERED that Gulf Coast's motion (Rec. Doc. 116) is
support of its motion, Gulf Coast argues that the Court
“has misapplied the law to the facts shown in evidence
and considered facts not in evidence.” See
Rec. Doc 116, p.1. More specifically, Gulf Coast offers three
(1) In reasons for judgment rendered orally, the Court
impermissibly relied on portions of the record not introduced
at the time of trial by citing to and relying upon deposition
testimony by GCW's insurance broker, Blaine Vedros.
However, Mr. Vedros testified live. His deposition was not
introduced at the trial nor was it introduced to contradict
(2) The Court erroneously relied on the Southern District of
Mississippi's inapposite decision in Blue Diamond v.
Liberty Mutual Insurance Co., 21 F.Supp.2d 631
(S.D.Miss. 1998) for the proposition that an insurer is
authorized to collect an “estimated audit.” Gulf
Coast reasons the Mississippi federal court determined that
it was not bad faith to cancel a policy for failure to pay an
“estimated audit, ” but “did [not] hold
that an ‘estimated audit' constitutes the actual
additional premium owed.”
(3) In its reasons for judgment rendered orally, the Court
held that GCW was estopped from disputing the
“estimated audit.” Contending the “Four
Corners Rule” requires that a party's remedy for
breach of contract must be found under law or within the four
corners of the contract, Gulf Cost contends the policy,
i.e., the contract, written by Zurich, provides no
remedy in the event an insured fails to provide access to
financial records. Accordingly, Gulf Coast argues Zurich is
not entitled to recover an estimated audit and that the
“Court has fashioned a remedy where one does not
Regarding Gulf Coast's first assertion, the Court's
oral reasons reference Blaine Vedros's deposition
testimony based on Zurich's citation of it in support of
Zurich's Proposed Findings of Fact Nos. 13 and 15, to
which Gulf Coast's counsel confirmed Gulf Coast had no
objection when given the opportunity to assert one at the
beginning of trial. See Rec. Doc. 105; Rec. Doc.
117, pp. 10-14; and Rec. Doc. 118, p. 6. Furthermore, the
trial testimony provided by Ms. Kathleen Smith and Mr.
Vedros, when considered together with the documentary
evidence introduced, sufficiently supports the factual
findings in question.
Coast's second assertion, regarding the Southern District
of Mississippi's decision in Blue Diamond
likewise is unavailing. Although Gulf Coast is correct that
the particular issues that were before the Blue
Diamond court are not identical to those presented here,
the Court never considered the case to be directly on point.
Nevertheless, the decision provides some evidence of an
industry practice relative to the use of estimated audits in
calculating unpaid workers' compensation premiums under
the circumstances presented here, i.e., where an
insured has not fulfilled its obligation to provide the
additional detailed information necessary to complete an
audit of its actual, rather than estimated, payroll data.
Coast's third assertion - that the policy provides Zurich
no remedy - essentially reasserts the same argument that it
presented at trial, which the Court has now twice rejected.
See Rec. Doc. 117 at pp. 12, 17, 57-61; Rec. Doc.
118, pp. 11-12. Federal Rule of Civil Procedure 59(a) allows
a court after a bench trial to grant a new trial on some or
all issues “for any reason for which a rehearing has
heretofore been granted in a suit in equity in federal
court.” Fed.R.Civ.P. 59(a)(1)(B). A motion for new
trial “‘should not be used to re-litigate prior
matters that . . . simply have been resolved to the
movant's dissatisfaction.'” Bernard v.
Grefer, Civil Action No. 14-887, 2015 WL 3485761, at *6
(E.D. La. June 2, 2015) (Fallon, J.) (quoting Voisin v.
Tetra Technologies, Inc., 2010 WL 3943522, at *2 (E.D.
La. Oct. 6, 2010)). Rather, “reconsideration of an
earlier order is an extraordinary remedy, which should be
granted sparingly, and requires [the moving party to] clearly
establish a manifest error of law or fact or  present newly
discovered evidence.” Equip. Leasing, LLC v. Three
Deuces, Inc., 2011 WL 4965501, at *2 (E.D. La. Oct. 19,
2011) (Vance, J.). “When there exists no independent
reason for reconsideration other than mere disagreement with
a prior order, reconsideration is a waste of judicial time
and resources and should not be granted.”
Bernard, 2015 WL 3485761, at *6 (quoting
Southern Snow Mfg. Co., Inc. v. SnoWizard Holdings,
Inc., 921 F.Supp.2d 548, 566 (E.D. La. 2013)). See
also Sibley v. Lemaire, 184 F.3d 481, 487 (5th
Cir.1999), cert. denied, 529 U.S. 1019 (2000)
(“courts do not grant new trials unless it is
reasonably clear that prejudicial error has crept into the
record or that substantial justice has not been done, and the
burden of showing harmful error rests on the party seeking
new trial.”); In re TT Boat Corp., Civil
Action NO. 98-0494, 2000 WL 222848, at *1 (E.D. La. Feb. 17,
2000) (Duval, J.) (“A motion for new trial in a nonjury
case or a petition for rehearing should be based upon
manifest error of law or mistake of fact, a judgment should
not be set aside except for substantial reasons.; 11 Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure, § 2804 (1995)).
Coast's motion does not satisfy these standards.
Furthermore, as the Court previously stated: “The
completion of a final audit might be considered a suspensive
condition to a valid bill for premium due; however, when this
condition is effectively defeated by one party, it cannot
benefit from such action or inaction. La. Civil Code Art.
1772; Grimsley v. Lenox, et ux., 643 So.2d 203 (3rd
Cir. 1994).” See Rec. Doc. 118, p. 12.
Accordingly, Gulf Coast's motion fails.
See Rec. Doc. 116-1, p.