Opinion
Civil Action No. 97-2121 (NHP).
January 27, 1999.
Ira S. Lipsius, Esq., Laurence J. Rabinovich, Esq., Jeffrey S. Rogoff, Esq., SCHINDEL, FARMAN LIPSIUS, LLP, East Brunswick, N.J., Attorneys for Plaintiff.
Frank R. Cinquina, Esq., GARRITY, GRAHAM, FAVETTA FLINN, Montclair, N.J., Attorneys for Defendant, National Union Fire Insurance Company of Pittsburgh, Pa.
John C. Lane, Esq., Glen Rock, N.J., Attorney for Intervening Defendants Maersk, Inc., Maersk Container Service Co., Inc.
Anthony Pasquarelli, Esq., METHFESSEL WERBEL, Rahway, N.J., Attorneys for Defendant, United National Insurance Company.
LETTER OPINION ORIGINAL ON FILE WITH CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on two separate motions, namely: (1) plaintiff Landmark American Insurance's Motion to Amend the Judgment and (2) defendants Maersk, Inc., Maersk Container Service Co., Inc. and National Union Fire Insurance Co. of Pittsburgh, Pa.'s Motions for Reconsideration and to Amend the Judgment. This Court heard oral argument on November 19, 1998. For the reasons stated herein, plaintiff Landmark American Insurance's Motion to Amend the Judgment is GRANTED. Furthermore, defendants Maersk, Inc., Maersk Container Service Co., Inc. and National Union Fire Insurance Co. of Pittsburgh, Pa.'s Motions for Reconsideration are DENIED.
DISCUSSION
I. Motion to Amend the Judgment
A proper motion to alter or amend a judgment "must rely on one of three major grounds: '(1)an intervening change in controlling law; (2) the availability of new evidence [not available previously]; or (3) the need to correct clear error [of law] or prevent manifest injustice.'" North River Insurance Company v. CIGNA Reinsurance Company, 52 F.3d 1194 (3d Cir. 1995) (citing Natural Resources Defense Council v. United States Envtl. Protection Agency, 705 F. Supp. 698, 702 (D.D.C. 1989) (quotingAll Hawaii Tours, Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 649 (D.Haw. 1987), rev'd on oth. grds, 855 F.2d 860 (9th Cir. 1988), vacated on oth. grds., 707 F. Supp. 3 (D.D.C. 1989)).
In this matter, plaintiff Landmark American Insurance ("Landmark") tendered a payment in the amount of $2 million, as required by a settlement agreement in an underlying California action. Landmark then filed the within action naming as defendants, National Union Fire Insurance Company of Pittsburgh, Pa.("National Union"), Maersk, Inc., Maersk Container Service Co., Inc. (collectively "Maersk"), and United National Insurance Company ("United National"). Landmark notified this Court of its earlier payment and requested that this matter be treated as an action for indemnification with prejudgment interest. Thereafter, each insurer submitted motions for summary judgment. This Court issued an Opinion on August 25, 1998 wherein it concluded that Landmark was entitled to reimbursement in the amount of $1,000,000.00 from National Union but was not entitled to reimbursement from United National. Although this Court noted in its Opinion that Landmark was seeking prejudgment interest, the Court did not address whether Landmark should be awarded such interest. See Letter Opinion, page 3. Landmark now seeks to recover prejudgment interest beginning from August 27, 1998 and through the present, as well as, postjudgment interest.
In a diversity action, whether to award prejudgment interest is a question of law. Jarvis v. Johnson, 668 F.2d 740, 746-47 (3d Cir. 1982). As this case arises under the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332, the Court will address the issue of whether to award prejudgment interest in accordance with the choice of law principles that would be applied by a New Jersey state court in this case. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). New Jersey's choice of law rule is that "the state whose law governs the substantive legal questions also governs the prejudgment interest issue."Draper v. Airco, Inc., 580 F.2d 91, 98 (3d Cir. 1978). Accord A-S Development, Inc. v. W.R. Graceland Corp., 537 F. Supp. 549, 556, n. 6 (D.N.J. 1982), aff'd, 707 F.2d 1388 (1983).
In this matter, the Court has already determined that the substantive law of California governs this case.
California Civil Code Section 3287(a) provides, in pertinent part, that:
Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover thereon from that day.
Pursuant to § 3287, the award of prejudgment interest is typically required when the sum in question is capable of exact determination.Parvin v. Davis Oil Co., 655 F.2d 901, 905 (9th Cir. 1979), cert.denied, 445 U.S. 965 (1980). "Section 3287(a) `does not authorize prejudgment interest as a matter of law where the amount of damages depends upon a judicial determination based upon conflicting evidence.'"Highlands Insurance Co. v. Continental Casualty Co., 64 F.3d 514, 521 (9th Cir. 1995) (quoting Polster, Inc. v. Swing, 164 Cap. App.3d 427, 210 Cal.Rptr. 567, 572 (1985)). In fact, prejudgment interest should be awarded when the issue before the court is a question of law, such as the prioritization of insurance policies. Hartford Acc. and Indem. Co. v. Sequoia Ins. Co., 211 Cal.App.3d 1285, 1307, 260 Cal.Rptr. 190, 202 (Ct.App. 1989); see also Fireman's Fund Inc. v. Allstate Ins., 234 Cal.App.3d 1154, 286 Cal.Rptr. 146, 159 (Ct.App. 1991). The amount of interest awarded pursuant to § 3287(a) should be calculated at 10 percent per annum, unless the contract specifies a different rate. Cal. Civ. Code § 3289(b). In this matter, Landmark contends that it is entitled to recover prejudgment interest beginning on May 17, 1998 through August 27, 1998 at the rate of 10% per annum. Accordingly, Landmark asserts that it is entitled to $27,777.78 and an unquantified amount of postjudgment interest, pursuant to 28 U.S.C. § 1961(a).See Landmark's Brief in Support of Motion to Amend the Judgment, Exhibit 3.
National Union argues that its policy does not permit it to be responsible for interest because it is not authorized by its policy or, alternatively, prejudgment interest may not be awarded in excess of policy limits.
National Union's policy, however, expressly authorizes the payment of interest. Section II A.2 provides:
In addition to the Limit of Insurance, we will pay for the "insured":
(6) All interest on the full amount of any judgment that accrues after entry of the judgment in any "suit" we defend, but our duty to pay interest ends when we have paid, offered to pay or deposited in court the part of the judgment that is within our Limit of Insurance.
Since Landmark is seeking interest on the amounts that it paid pursuant to the settlement agreement and the Consent Judgment that was entered by the California Superior Court against National Union's insureds, Landmark clearly has the right under the policy to seek what is actually "postjudgment" interest on the California judgment, but "prejudgment" interest in this matter.
Moreover, the cases which National Union cite for the proposition that prejudgment interest cannot be awarded are inapposite. Those cases address the factual situation where the plaintiff is seeking prejudgment interest entered against an insured in an underlying action. Here, Landmark is not seeking prejudgment interest entered against an insured but is, instead, seeking interest on the proceeds used to satisfy the underlying Consent Judgment. Additionally, the cases cited by National Union do not address the factual situation where one insurer is seeking equitable contribution from another insurer who failed to contribute to an underlying settlement or judgment.
See Strauss v. Farmers Insurance Exchange , 26 Cal.App.4th 1017, 31 Cal.Rptr.2d 811 (Ct.App. 1994); State farms Mutual Automobile Ins. Co. v. Crane , 217 Cal.App.3d 1127, 266 Cal.Rptr. 422 (Ct.App. 1990).
Therefore, since this Court found that National Union must indemnify Landmark by paying its $1 million of the judgment entered by the California, Landmark should be entitled to collect prejudgment interest on the amount. Furthermore, since the amount of prejudgment in question is capable of exact determination and is not based upon conflicting evidence, this Court will award Landmark prejudgment interest in the amount of $27,778.78. Finally, Landmark is also entitled to receive postjudgment interest beginning from August 27, 1998 through January 27, 1999 pursuant to 28 U.S.C. § 1961.
II. Motion for Reconsideration
In a motion for reconsideration, the movant must set forth concisely the "matters or controlling decisions which counsel believes the Court has overlooked." Local Civil Rule 7.1(g). "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986). A motion for reconsideration is not the vehicle by which attorneys can recapitulate arguments already been raised to the court. See Waye v. First Citizens' Nat'l Bank, 846 F. Supp. 310, 314, n. 3 (M.D.Pa.), aff'd 31 F.3d 1175 (3d Cir. 1994); see also Database Am v. Bellsouth Advertising Publ., 825 F. Supp. 1216, 1220 (D.N.J. 1993).
The Court is satisfied that its prior decision is correct, that there is no case or controversy remaining before the Court and that this Court has not overlooked any relevant cases. Furthermore, defendants have not pointed to any errors of law or fact and, instead, have simply "rehashed" their previous arguments. Therefore, defendants' Motions for Reconsideration are hereby DENIED.
CONCLUSION
Based upon the foregoing, plaintiff Landmark American Insurance's Motion to Amend the Judgment is GRANTED. Furthermore, defendants Maersk, Inc., Maersk Container Service Co., Inc. and National Union Fire Insurance Co. of Pittsburgh, Pa.'s Motions for Reconsideration and to Amend the Judgment are DENIED.
An appropriate Order accompanies this Letter Opinion indicating that this is the Court's Final Judgment in this matter.