Opinion
CV-20-375
06-25-2021
ONSITE AUTO GLASS, as assignee of Bill Ciccarone, Plaintiff v. INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, Defendant
ORDER
Thomas D. Warren Justice.
Before the court is a Rule 59(e) motion by plaintiff Onsite Auto Glass, as assignee of Bill Ciccarone, to alter the court's May 4, 2021 order granting summary judgment against Onsite. Judgment was entered on May 6, 2021.
In its Rule 59(e) motion Onsite largely reiterates the same arguments that the court considered and found unpersuasive in granting AAA's motion for summary judgment and the court sees no reason to alter its decision. The court accepted for purposes of summary judgment that notice had been given - albeit by Onsite rather than by the policyholder - but that the notice was not effective and did not comply with the policy because it was given only after repairs had been completed.
Onsite argues that this does not matter because AAA did not dispute the claim within 30 days of receiving Onsite's August 1, 2018 email. To the extent that Onsite is relying on 24-AM.R.S. § 2436(1), the sending of an invoice directing AAA to pay Onsite for repairs performed before any notice was given does not constitute an adequate proof of loss under that statute.
In addition, Onsite argues that the court incorrectly found that Ciccarone had authorized Onsite to invoke the arbitration provision in the insurance contract. However, the document submitted by Onsite as evidence that it that it had submitted an invoice to AAA containing an assignment of benefits by Ciccarone consists of two pages, both signed by Ciccarone and attached as an exhibit to the affidavit of Betty Jo Cash. The first page states in small print, "Subject to the completion of work, I assign any claim that I have under my insurance policy to recover, and authorize my insurance company to pay ONSITE AUTO GLASS the balance due." The second page states, "in the event that Onsite Auto Glass should be short paid, I authorize them to invoke the appraisal clause on my behalf. . ." (emphasis added).
See Betty Jo Cash affidavit ¶¶ 13 and 14, cited in Onsite's Rule 56(h)(2) statement of additional material facts at ¶¶ 2 and 3
Onsite also complains that It did not waive its right to conduct discovery and that AAA had declined its request for depositions, However, Onsite did not respond to AAA's motion for summary judgment by filing a Rule 56(e) motion. See Bay View Bank N.A. v. Highland Golf Mortgagees Realty Trust, 2002 ME 178 ¶ 22, 814 A, 2d 449, It is too late for Onsite to contend that summary judgment should not be granted before it had an opportunity to engage in discovery.
In sum, the court does not conclude that Onsite has provided a sufficient basis for the court to alter its judgment pursuant to Rule 59(e).
The entry shall be;
The motion by plaintiff Onsite Auto Glass to alter the judgment entered on May 6, 2021 is denied. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).