Opinion
C.A. No. 95C-07-210-JOH.
Submitted: February 23, 2000.
Decided: March 14, 2000.
Defendant's Motion for Reargument and/or New Trial and/or a Reversal of its Earlier Decision — DENIED
Edward T. Ciconte, Esq.
David P. Cline, Esq.
Counsel:
Defendant Regnier's Refrigerated Express, Inc., has moved for reargument and/or a new trial and/or reversal of this Court's post-trial decision of February 4, 2000. Regnier's contends this Court erred in several respects: (1) misstating whether plaintiff Progressive Insurance was insuring it in 1992, (2) that this Court failed to address Progressive's failure to abide by C.A.I.P. Rule 25, (3) this Court misapplied C.A.I.P. Rule 34 and (4) Progressive's 1994 audit was erroneous.
After re-examining its prior decision and the exhibits, this Court sees no reason to change its earlier decision with but one exception. That exception relates to this Court's statement in the opinion that the record was unclear about with whom Regnier's was insured when the June 1992 Equifax audit was done.
In its current motion, Regnier's points to its trial exhibit number one which shows that Progressive insured Regnier's from October 12, 1991 to October 12, 1992. This exhibit removes any lack of clarity about who was Regnier's insurer when the 1992 audit was issued. But, the source of the Court's earlier statement comes from the stipulation of facts the parties submitted, signed by both counsel, found in defendant's exhibit one, "This audit [Equifax] was done prior to the issuance of insurance with Progressive."
Stipulation, Defendant's Exhibit 1 at 1.
It is now clear that Progressive insured Regnier's in 1991-1992 when the Equifax audit was ordered. It was incorrect, therefore, for the Court to state there was confusion about how it came to pass that Progressive ordered the Equifax audit of Regnier's business. This correction makes it more clear why Progressive did so. But, by the same token, Regnier's knew by signing the 1991 insurance application that the premium quoted was an estimate subject to later adjustment. This same language appeared on the 1992 application which it signed and which this Court referred in its earlier decision. If anything, this language in the insurance application puts Regnier's on notice and removes any reliance argument.
Progressive Ins. v. Regnier's Refrigerated Express, Inc., Del.Super., C.A. No. 95C-07-210, Herlihy, J. (February 4, 2000) at 3.
Accordingly, the Findings of Fact are revised to reflect that Progressive insured Regnier's during the period it requested and obtained Equifax's audit. This change, however, has no affect on this Court's earlier decision.
Regnier's next argues that this Court failed to mention that Progressive did not follow C.A.I.P. Rule 25. Its reliance upon Rule 25, as written in the period applicable to this case, is far from clear. Upon examining Rule 25 after trial, the Court wrote counsel on January 24, 2000. Counsel's responses clarified how the Rule was written then and what was amended later. Regnier's current motion suggest, at a minimum, that in reaching its decision, this Court overlooked Rule 25. This Court's January 24th letter shows otherwise. The Court understood at trial, during its post-trial review and now what Regnier's argument was and is, but found and finds it to be unpersuasive.
In its third argument seeking reversal, Regnier's reargues its position about C.A.I.P. Rule 34. As with Rule 25, Regnier's argument was carefully considered. Being the hub around which this case revolved, the Court gave Rule 34 much consideration. Regnier's offers nothing new.
Finally, Regnier's attacks again Progressive's own audit in 1994. It restates its position in its current motion. That restated argument was considered and rejected before. It has offered nothing new to prompt this Court to change its earlier decision.
At trial and again in its current motion, Regnier's points to the financial impact on it of an award to Progressive of this increased premium. In part, this argument is contained in the contention that its business did not change from the 1992 Equifax audit to the 1994 Progressive audit. This Court has already addressed the more thorough nature of the 1994 Progressive audit. A thrust of reviewing Regnier's financial situation, while noting the increased premium, may be an appeal to sympathy.
The Court was and is not unmindful of this impact on Regnier's. But, sympathy cannot play a role in the decision. Weighing against this sympathy appeal is an equally irrelevant sympathy appeal that Progressive had been insuring a risk for which it was not properly reimbursed. That Regnier's chose C.A.I.P. because it was "cheaper" is also irrelevant.
CONCLUSION
For the reasons stated herein, the motion of defendant Regnier's Refrigerated Express, Inc., for reargument and/or new trial and/or a reversal is DENIED.
IT IS SO ORDERED.
JEROME HERLIHY, JUDGE.