Opinion
CIVIL ACTION NO. 01-707 c/w 01-708, SECTION "C" (2).
June 10, 2003.
ORDER AND REASONS
Before the Court is Plaintiffs', Boston Old Colony Insurance Company's ("Boston") and Bollinger Shipyards Lockport, L.L.C.'s ("Bollinger") (collectively "Plaintiff's") Motion for Reconsideration of Summary Judgment, or Alternatively Amendment of the Court's Findings pursuant to Fed.R.Civ.P. 52 or for New Trial or to Alter or Amend Judgment pursuant to Fed.R.Civ.P. 59 or 60. Specifically, Plaintiff's contend that: (1) the Court's interpretation of the Builder's Risk Policy at issue is directly contrary to the interpretation given to similar clauses and policies by the Fifth Circuit; and (2) liability to Bollinger and Boston is also covered under Defendant's, Underwriters at Lloyd's, London's ("Lloyd's) Legal Liability Policy. For the following reasons Plaintiffs' Motion for Reconsideration is DENIED.
I. Background
This case involves the collapse and loss of certain crane items fabricated and installed on the Derrick Barge SPRINGFIELD by AmClyde Engineered Products, Inc., a/k/a AmClyde Engineered Products Company, Inc. (collectively "AmClyde") and the resulting dispute between the various parties over insurance coverage. Defendant, Underwriters at Lloyd's, London ("Lloyd's") is AmClyde's insurer. On January 13, 2003, the Court granted summary judgment in favor of Lloyd's dismissing all claims brought by Plaintiff's against Lloyd's. (Rec. Doc. 81). A more complete factual background of this matter can be found in that ruling by the Court. (Id. at 2-3).
II. Standard of Review
The Federal Rules of Civil Procedure do not recognize a "Motion to Reconsider" in those exact terms. See Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990). However, the Fifth Circuit has held that a motion to reconsider a dispositive pre-trial motion is analogous to a motion to "alter or amend the judgment" under Federal Rule of Civil Procedure 59(e) or a motion for "relief from judgment" under Rule 60(b). See id. A motion for reconsideration is considered a Rule 59(e) motion if it is served within ten (10) days of the court's ruling and a Rule 60(b) motion if it is served more than ten (10) days after the court's ruling. See id. It appears that Plaintiffs' motion in this case was served, at the earliest, January 28, 2003, less than ten days after the Court rendered its Judgment. (See Rec. Doc.90 at 23).
Therefore, Rule 59(e) governs Plaintiffs' Motion for Reconsideration. In Washington v. CSC Credit Servs., Inc., 180 F.R.D. 309 (E.D. La. 1998), rev'd and vacated on other grounds, 199 F.3d 263 (5th Cir. 2000), this Court ruled that alteration or amendment of a previous ruling under Federal Rule of Civil Procedure 59(e) is proper only upon movant's showing of: "(1) an intervening change of controlling law; (2) the availability of new evidence; and/or (3) the need to correct a clear and manifest error of fact or law." Id. at 311.
A motion under Federal Rule of Civil Procedure Rule 52 "may accompany a motion for a new trial under Rule 59." Fed.R.Civ.P. Rule 52(b). Rule 52(b) provides that "on a party's motion filed no later than 10 days after entry of judgment, the court may amend its findings — or make additional findings — and may amend the judgment accordingly." Id. The purpose of Rule 52(b) is, generally, to correct manifest errors of law or fact. See Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986). Here, Plaintiffs' motion is based on an asserted errors of both fact and law.
III. Whether the Court's Interpretation of the Builder's Risk Policy is Contrary to Law
No error of law is evident in the Court's determination of the scope of the Builder's Risk Policy at issue. Although the Court stated "the terms of the Subcontract are indispensable in determining the intent of the parties and the scope and time period of coverage" (Rec. Doc. 81 at 7-8), nonetheless, the Court assessed the Builder's Risk Policy on its own terms.
A. Interpretation of the Builder's Risk Policy
First, the Builder's Risk Policy at issue provided coverage "until completion of the entire project under the contract(s) or agreement(s), and acceptance by client and/or customer and/or as per contracts(s) or agreement(s) ." (Rec. Doc. 56, Ex. D, ¶ I (4)). Thus, the "plain policy language" limits the coverage extended to Bollinger. See Saavedra v. Murphy Oil U.S.A., Inc., 930 F.2d 1104, 1010 (5th Cir. 1991) (finding that "plain policy language" defined contours of coverage and not underlying contract terms). In granting summary judgment in favor of Lloyd's, the Court determined that, by its own terms, coverage under the Builder's Risk Policy extinguished upon completion of the "entire project." Reference to the indispensability of the Subcontract pertained solely to the generic and undefined terms in the Builder's Risk Policy. The Court determined that the policy term "entire project" referred only to that "specific project" contemplated by the Subcontract between Bollinger and AmClyde, and that the term "contract(s) or agreement(s)" referred only to the Subcontract itself. To enlarge the scope of the term "entire project" to include Bollinger's prime contract with the United States Army as Plaintiff's suggest would be an overly expansive and erroneous interpretation of the agreement.
An insurance policy can not be interpreted in a vacuum. See Frierson v. Sheridan, 593 So.2d 655, 657 (La.App. 1 Cir. 1991) ("[The policy] must be connected to, identified with or related in some way to a factual foundation."). Thus, the Court found the Subcontract indispensable to understand the parties intent and the meaning of the undefined policy term "entire project." Here, the Builder's Risk Policy issued by Lloyd's was "part of an adaptable and comprehensive marine package policy issued to various interrelated companies," and designed to accommodate and provide coverage for many separate projects "without having to issue new and separate builder's risk policies specific to each project." (Rec. Doc. 97 at 7). Thus, the language of the Builder's Risk Policy is necessarily dependant upon the underlying project contracts. Further, unlike the commercial general liability ("CGL") coverage at issue in Saavedra, Builder's Risk Insurance is limited to a specific project under construction. Data Specialties, Inc. v. Transcontinental Ins., Co., 125 F.3d 909, 914 (5th Cir. 1997). Thus, by its very nature, Builder's Risk insurance is limited in scope.
B. Navigational and Territorial Limits
Second, Plaintiff's are correct that typewritten conditions on a contract prevail over any conflicting clauses in printed form. Sanders v. Collins, 551 So.2d 644, 648 (La.App. 1 Cir. 1989), writ denied, 556 So.2d 1261 (La. 1990); accord Delhomme Indus., Inc. v. Houston Beechcraft, Inc., 669 F.2d 1049, 1059 n. 25 (5th Cir. 1982), appeal after remand, 735 F.2d 177 (5th Cir. 1984). Plaintiff's are also correct that the "Navigational and Territorial Limits" in the Builder's Risk Policy include "Delivery Trips" to the "Named Assured's Yards and/or Worldwide," and include only those exceptions made by the American Institutes Trade Warranties, which does not exclude the situs of the accident, the Gulf of Mexico. ( See Rec. Doc. 90, Ex. C Rec. Doc. 56 Ex. D, Builder's Risk Policy, Section I). Although coverage for "Delivery Trips" encompasses the situs of the accident, such coverage only exists during the policy period. Because the Court previously found and maintains that the policy period had already extinguished when the incident occurred, coverage is precluded.
C. Maintenance Risks
Third, Plaintiffs' argument that the maintenance risks clause in the Builder's Risk Policy covers AmClyde's guarantee to Bollinger in the Subcontract via warranties contained in the Purchase Order is without merit. As a threshold matter, Plaintiff's concede that they had access to this "Purchase Order" prior to Lloyd's filing its motion for summary judgment ( see Rec. Doc. 90 at 11, n. 13), therefore, Plaintiff's had ample opportunity to present this document to the Court before our previous ruling. As such, this "new evidence" fails to satisfy Rule 59(e)'s standards. See e.g. Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996).
Nonetheless, even if the warranty found in the Purchase Order is "shifted to Lloyd's by Addendum No. 21 to the Builder's Risk Policy," and "Lloyd's has undertaken to insure AmClyde's liabilities to Bollinger to repair poor welds, replace the crane operator's cab and repair the BD-6803" (Rec. Doc. 90 at 13), such liability of Bollinger and any subsequent undertaking by Lloyd's beyond the coverage period remains expressly conditioned on the invocation of the maintenance risk extension. As previously noted, "Plaintiff's provide no evidence to suggest that the condition was ever invoked." (Rec. Doc. 81 at 12). Moreover, in this motion for reconsideration Plaintiff's fail to provide any new evidence to prove that the maintenance risks extension was ever invoked.
For a discussion of Plaintiffs' burden of proof see Part II.B. at 17-18.
Additionally, the Court previously determined that Addendum No. 21 limits extended coverage for maintenance risks to the named assured's ( i.e., AmClyde's) "Co-Contractors and Sub-Contractors," which by definition excludes Bollinger. ( See id. at 11, n. 9). Plaintiff's have provided no new evidence to disturb this finding.
II. Whether the Lloyd's Commercial General Liability ("CGL") Policy Provides Coverage
Plaintiff's contend that AmClyde's liability to Bollinger and Boston is covered under Lloyd's CGL Policy, a legal liability policy, pursuant to, the Louisiana Direct Action Statute. Specifically, Plaintiff's submit that the "professional services" and/or "business risk" exclusions which the Court found excluded coverage to AmClyde are superceded by other policy language. Again, Plaintiffs' failure to raise this argument, or any argument whatsoever, with respect to the CGL Policy in their original opposition precludes raising it on a motion to amend or alter judgment. LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263 1267-68 (7th Cir. 1995). Nonetheless, the Court considers Plaintiff's arguments and finds them unpersuasive.
A. "Professional Services" Exclusion
Plaintiff's contend that the printed "professional services" exclusion under the "Marine Liability Exclusions No. 7" (Rec. Doc. 56, Ex. E at 23) is superceded by the typewritten "Conditions" at the beginning of the CGL Policy following the "Cover Note," which specifically states, "[i]ncluding "Architects/Engineers Professional Liability subject to full wording to be agreed by Underwriters and the Assured." (Id., Ex. E at 3). Thus, in reliance on Sanders, 551 So.2d at 648, Plaintiff's conclude that "AmClyde's liability for the professional services of its engineers, such as faulty design, was included in the policy." (Rec. Doc. 90 at 14).
Although the Court agrees with Plaintiff's in principle, the facts do not support coverage. As Lloyd's points out in its opposition, "CGL policies commonly exclude `professional services,'" and that separate special policies, " i.e., an Architects/Engineers Professional Liability Insurance Policy . . . must then be taken out to cover such services." (Rec. Doc. 97 at 23) (citing McCarthy v. Berman, 668 So.2d 721, 724 (La. 1996)). The plain language of the CGL Policy states that Architects/Engineers Professional Liability is "subject to full wording to be agreed by [the parties]" (Rec. Doc. 56, Ex. E at 3) (emphasis added), thus, this "Condition" unambiguously contemplates a separate agreement and does not preempt the printed "professional services" exclusion in the CGL Policy. Plaintiff's have failed to provide any proof of the existence of separate agreement or its terms.
For a discussion of Plaintiffs' burden of proof see Part II.B. at 17-18.
Further, although the Complaint lists "failure of design" as a cause for the loss (Rec. Doc. 1 at ¶ XIII), Plaintiff's fail to provide competent evidence of faulty design and instead affirmatively allege that "the cause of damages in this case is the improper welding attaching the crane operator's cab to the rest of the crane." (Rec. Doc. 90 at 14-15) (citing Report of Busch Assocs., Lloyd's Ex. G). In effect, Plaintiff's abandon their claim that faulty design caused the collapse of the crane, and instead argue that the "professional services" exclusion is inapplicable because negligent welding is not an activity in furtherance of a profession. See Sommers v. State Farm Fire Cas. Co., 764 So.2d 87, 91 (La.App. 4 Cir. 2000) (defining "profession" under professional services exclusion of CGL policy as vocation requiring specific formal education, special skills or training).
There is some mention of "inadequate welds as a result of poor joint design" in the report of Dr. Courtney C. Busch attached to Lloyd's initial motion for summary judgment. However, in an attempt to clarify his report, Dr. Busch composed an addendum letter, dated April 14, 2000, included in Exhibit G that does little for the sake of clarity. In the letter, Dr. Busch states that the welds were inadequate "not because of poor welder technique but rather poor joint design made it extremely difficult or impossible for the welder to make adequate welds," however, in this same letter, he states "the above comments are based on the assumption that the welders and/or fabricators did not deviate from the weld joint details provided on the design drawings." ( See Rec. Doc. 56, Ex. G). Thus, by his own admission, Dr. Busch states that his conclusion that poor joint design rather than poor welding technique was the cause of the failure of the welds is based on an assumption and not predicated solely on fact.
The Court agrees with both parties that welding is not included in the "professional services" exclusion, nor is it included in the Architects and Engineers Professional Liability, which is a special species of professional services liability coverage. See generally Medical Records Assocs. v. American Empire Surplus Lines Ins. Co., 142 F.3d 512 (1st Cir. 1998) ("A professional errors and omissions insurance policy provides limited coverage, usually as a supplement to a general comprehensive liability (CGL) policy, for conduct undertaken in performing or rendering professional acts or services.") (citations omitted). As a form of professional liability insurance, Architects/Engineers Liability insures only against "liability arising out of a special risk such as negligence, omissions, mistakes and errors inherent in the practice of the profession." St. Paul Fire Marine Ins. Co. v. National Real Estate Clearinghouse Inc., 957 F. Supp. 187, 189 (Minn. 1997) (citing Crum Forster Corp. v. Resolution Trust Corp., 156 Ill.2d 384, (Ill. 1993), citing 7AJ. Appleman J. Appleman, Insurance Law Practice, § 4504.01, at 310 (rev. 1979)). Improper welding is a construction defect that falls squarely outside the scope of "errors inherent in the practice of [architecture and/or engineering]." St. Paul Fire Marine, 957 F. Supp at 189.
Therefore, in as much as the collapse of the crane items was the result of faulty design, the "professional services" exclusion properly applies and coverage is precluded. Further, in as much as the collapse of the crane items was the result of faulty welding technique, the Architects and Engineers Professional Liability does not apply to extend coverage for construction defects. Finally, as discussed below, coverage for inadequate welding is not covered under the "completed-products operation hazard," because Plaintiff's have provided no proof of any property damage except to the crane itself.
B. "Business Risks" Exclusions "j(6)," "1" and "k"
Plaintiff's contend that despite the preclusion of coverage in "property damage" exclusions "k" "1" and "j(6)," the "products-completed operations hazard" provision referenced in exclusions "1" and "j(6)" and defined in § V, 11.a. creates an ambiguity regarding the exclusion of faulty workmanship, which must be construed against the insurer. (See Rec. Doc. 56, Ex. E at 14-15 21).
In interpreting insurance contracts, Louisiana law requires the court to utilize the ordinary principles of contract interpretation. See Calcasieu-Marine Nat. Bank of Lake Charles v. American Emp. Ins. Co., 533 F.2d 290, 295 (5th Cir.), cert. denied, 429 U.S. 922 (1976). The parties' intentions, as reflected by the words of the policy, determine the extent of coverage. See Trinity Indus. Inc. v. Insurance Co. Of N.A., 916 F.2d 267, 269 (5th Cir. 1990). Where the terms are clear and unambiguous, they should be construed in their plain, ordinary, and popular sense. See Calcasieu-Marine, 533 F.2d at 295. Any ambiguities must be construed against the insurer and in favor of the insured. See Auster Oil and Gas v. Stream, 891 F.2d 570, 580 (5th Cir. 1990); see also La.C.C. art. 2056. However, the court "ought not strain to find such ambiguities, if, in so doing, they defeat the probable intentions of the parties." See Sharp v. Federal Sav. Loan Ins. Corp., 858 F.2d 1042, 1045 (5th Cir. 1988).
The "products-completed operations hazard" provides:
"products-completed operations hazard" includes all "bodily injury" and "property damage" occurring away from premises you own or rent arising out of "your product" or "your work" except:
A. Products that are still in your physical possession; or
B. Work that has not yet been completed or abandoned.
(Rec. Doc. 56, Ex. E, Section V, ¶ 11.a. at 21). Here, the incident occurred in the Gulf of Mexico, away from AmClyde's facility and as a result of AmClyde's work, i.e. faulty welding, thus Plaintiff's correctly assert that the "products-completed operations hazard" applies.
Neither of the two exceptions in ¶ 11.a. apply because at the time of the incident AmClyde's work was completed and the barge was outside of its physical possession.
Plaintiff's submit that "your work" is defined by the CGL Policy to include "[w]arranties or representations made at any time with respect to the fitness, quality, durability, or performance of "your work." (Id. at ¶ 15). Further, Plaintiff's submit that the Subcontract between Bollinger and AmClyde specifically includes a warranty of merchantability. ( See Rec. Doc. 90, Ex. A B).
Specifically, Plaintiff's suggest that exclusion "j (6)," by its terms "does not apply to `property damage' included in the `products-completed operations hazard'" and that exclusions "k" and "1" arguably exclude coverage included in the "products-completed operations hazard." (Rec. Doc. 90 at 17). As such, Plaintiff's contend that coverage under the "products-completed operations hazard" and the purported exclusion of that coverage under exclusions "j(6)," "k" and "1" included in the printed form of the policy make the policy ambiguous.
In support, Plaintiff's rely on Mike Hooks, Inc. v. Jaco Services, Inc., 674 So.2d 1125 (La.App. 3 Cir. 1996), writ denied, 681 So.2d 1264 (La. 1996). In Mike Hooks, a Louisiana appellate court found a work product exclusion identical to exclusion "1" swallowed up an equally identical "products-completed operations hazard" provision, and therefore held that an ambiguity existed in the policy. Lloyd's counters that in a later case, a different Louisiana appellate court faced with identical policy provisions found no ambiguity existed and criticized Mike Hooks for failing to recognize that "the insurer covered risks unrelated to repair or replacement of the insured's work, such as claims for injury to persons and other property that commonly are asserted to arise our of defective work or products." Joe Banks Drywall Acoustics, Inc. v. Transcontinental Ins., Co., 753 So.2d 980, 985 (La.App. 2 Cir. 2000), citing W.S. McKenzie H.A. Johnson, Insurance Law and Practice, § 183 at p. 362 in 15 La. Civil Law Treatise (2d Ed. 1996).
The Court does not find the CGL Policy at issue ambiguous. The Court has visited this precise question and distinguished Mike Hooks on its particular facts, in Lindy Invs., L.P. v. Shakertown Corp., No. 94-4112, 1998 U.S.Dist. LEXIS 2817, at *8, n. 10 (E.D.La. Mar. 5, 1998). Faced with nearly identical provisions in a general liability policy, the Court, in Lindy affirmed its previous reluctance "to find an inherent conflict between the products hazard coverage declaration and the work product exclusion such as to cause an ambiguity in the policy." Id. at *7, citing Enviro Sys., Inc. v. Diamond Shamrock Refining Mrktg. Co., Inc., No. 93-119, 1995 U.S. Dist LEXIS 1049, (E.D.La. Jan. 23, 1995). The Court specifically found:
The two provisions are reconcilable. The products hazard definition allows generally for coverage for property damages "arising out of" the insured's product. The work product exclusion precludes recovery for damage to the product itself. Coverage remains for personal injury and "other property" damage. The purpose of any exclusion is to limit the coverage provided elsewhere in the policy; the fact that this exclusion effectively limits some of the coverage provided does not yield an automatic ambiguity. An argument that a policy provision is "somewhat confusing" does not warrant a finding of ambiguity. See Gulf Fleet Marine Operations, Inc. v. Wartsila Power, Inc., 797 F.2d 257, 261 (5th Cir. 1986).Lindy, 1998 U.S.Dist. LEXIS 2817, at *7-*8. In discussing Mike Hooks, the Court noted that in that case "the defective work was performed on the bearings in an engine of a dredge. The defective work damaged the engine, disabled the dredge and required use of another dredge." Id. at *8, n. 10. The Court noted that it had no quarrel with the decision in Mike Hooks "in light of the factual context." Id. Yet, the Court's reasoning in Lindy is squarely in line with that in Joe Banks.
As in both Lindy and Joe Banks, the Court finds no ambiguity between work-product exclusions "j(6)," "1" and "k" and the "products-completed operations hazard" in the CGL Policy at issue. Coverage is unambiguously excluded for damage to "your product" and "your work" in exclusions "1" and "k," but specifically reserved for "`property damage' arising out of `your product' or `your work'" in the "products-completed operations hazard." This means that coverage for damage to the crane is excluded, whereas, damage that the crane may cause to other property is included. Also, coverage is unambiguously excluded for repair and replacement costs to "any property" (i.e., the D/B SPRINGFIELD) attendant to faulty work under exclusion "j(6)," except with respect to "property damage" covered under the "products-completed operations hazard." This means that repair and replacement costs for the faulty work are excluded, whereas, any damage to other property that may result is included.
As in Lindy, "[t]he controlling factor with regard to the work product exclusion here is whether or not the plaintiff's have alleged and can prove damages to property other than the insured's product." Id. at *9. Plaintiff's identify the D/B SPRINGFIELD, the larger work into which the product was incorporated, as the other property damaged by the allegedly defective crane items. However, there is no showing of proof that the D/B SPRINGFIELD was "physically injured" in any way "arising out of" the collapse and loss of the crane items into the Gulf of Mexico, other than the reported loss overboard of the crane items and reported damage to portions of the crane tower.
Work-product exclusions in a general liability policy do not insure any obligation of the policyholder to repair or replace his own defective work or defective product. Thorn v. Caskey, 745 So.2d 653, 665 (La.App. 2 Cir. 1999). Further, "Louisiana jurisprudence has consistently recognized that liability policies are not performance bonds." Id. Thus, there is no coverage under the CGL Policy with respect to damages associated with the loss of or damage to any part of the crane items. At best, coverage is extended only for those incidental damages that might have occurred to other parts of the barge as a result of the collapse of the crane. See Lindy, 1998 U.S.Dist. LEXIS 2817, at *9-*11.
Although the Court could speculate that some physical damage to the barge would likely accompany the collapse of a large structure such as the crane items, there is no proof before the Court that any of Plaintiffs' alleged damages derive from direct physical injury to the barge as a result of the incident. The only evidence of physical injury to any structure is limited to that product supplied by AmClyde. ( See Rec. Doc. 56, Ex. G) (detailing the total loss overboard of cab operator tower and indicating fractures, dents and tears in the flanges of the beams on the tower support structure). This is a Court of proof, and Plaintiff's have failed to provide, on two occasions, any evidence whatsoever, of physical injury to the D/B SPRINGFIELD, other than to those components supplied by AmClyde.
Plaintiff's fail to allege or prove that this support structure is not part of AmClyde's product.
Likewise, Plaintiff's have failed to provide proof of: (1) any invocation of the maintenance risks extension; or (2) the existence of a separate Architects/Engineers Professional Liability Policy or its terms.
The Court believes that this conclusion comports with the purposes and language of the unambiguous policy exclusions. The Court finds that Plaintiff's have not shown damages sufficient to avoid summary judgment. The failure of proof is definitive at this stage of the proceedings, when adequate time has been provided for discovery. As the Court recognized in Lindy, Lloyd's is entitled to call on the rule of Celotex Corp. v. Catrett, 477 U.S. 317, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986) and require that Plaintiff's make a sufficient showing of proof to support their claims that the damages they claim are covered under the policy. Construing all inferences in a light most favorable to the Plaintiff's will not protect them against summary judgment.
This incident occurred on or about March 17, 2000, and Plaintiffs' Complaint was filed over two years ago on March 16, 2001. Also, this Motion for Reconsideration is Plaintiffs' second attempt to defeat Lloyd's Motion for Summary Judgment.
The Supreme Court explained in Celotex:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.Celotex, 477 U.S. at 322. The Fifth Circuit has explained:
This burden is not satisfied with "some metaphysical doubt as to material facts," . . . by "conclusory allegations," . . . by "unsubstantiated assertions," . . . or by only a "scintilla" of evidence. . . . We resolve factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (citations omitted).
III. Conclusion
Upon review of the motions, memoranda, the record as a whole and the applicable law, the Court finds that Plaintiff's have failed to provide any new evidence or controlling law to alter or amend the Court's findings under Rule 52. Further, Plaintiff's have failed to show an intervening change of controlling law, the availability of new evidence, or even the re-presentation of previously available evidence, to establish a genuine issue of fact, and/or the need to correct a clear and manifest error of fact or law under Rule 59. Accordingly, IT IS ORDERED that Plaintiffs', Boston Old Colony Insurance Company's and Bollinger Shipyards Lockport, L.L.C.'s Motion for Reconsideration of Summary Judgment, or Alternatively Amendment of the Court's Findings or for New Trial or to Alter or Amend Judgment is DENIED.