The opinion of the court was delivered by: WOLIN
Pursuant to Local Civil Rule 7.1(g), Elizabethtown Water Company ("Elizabethtown") moves for reargument of this Court's Opinion and Order dated March 27, 1998. Although Elizabethtown has presented the Court with two creative arguments, the Court will deny Elizabethtown's motion because the arguments do not alter the Court's initial analysis.
On March 27, 1998, this Court issued an Opinion and Order denying Centennial Insurance Company's ("Centennial"), defendant, motion for summary judgment and granting Hartford Casualty Insurance Company's ("Hartford"), defendant, motion for summary judgment. Only two of the Court's rulings are relevant for the purposes of considering Elizabethtown's motion for reargument. First, the Court determined that a genuine issue of material fact existed as to whether an "occurrence," which the insurance policies defined as an accident, caused the damages that the developers sustained. In reaching that decision, the Court explained that an insured can prove that there was an occurrence (accident) by proving the elements for a negligence cause of action. The Court then stated: "Elizabethtown settled its case with the developers on the negligence cause of action. . . . A settlement termed as negligence does not prove . . . a negligence cause of action." Thus, the Court found that a jury must decide whether Elizabethtown was negligent in its dealings with the developers. The Court added that Elizabethtown would have to provide independent proof of its negligence.
Second, the Court found that Hartford's General Exclusion K(3)(b), which provided that Hartford did not have to cover "property damage to . . . property that has not been physically injured, arising out of . . . failure by any insured . . . to perform a contract or agreement in accordance with its terms," barred Elizabethtown's claim for coverage. The Court reasoned that the exclusion applied "because the developers' damages were the lost use of their property . . . and because Elizabethtown did not fulfill its agreement." The Court explained:
The Court recognizes that Elizabethtown based its settlement with the developers on an asserted negligence claim, but to permit Elizabethtown to use "negligence" to frustrate the plain and unambiguous language of the exclusion would yield to form rather than substance. The exclusion was intended to cover situations like this one . . . .
Local Civil Rule 7.1(g) provides that the moving party "set forth concisely the matters or controlling decisions which counsel believes the Court has overlooked." "A proper motion to alter or amend 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 Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Moreover, the Rule "does not contemplate a Court looking to matters which were not originally presented." Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). Thus, a party "must show more than a disagreement with the court's decision." Panna v. Firstrust Savings Bank, 760 F. Supp. 432, 435 (D.N.J. 1991). A mere "recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." Carteret Savings Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989), appeal dismissed, 919 F.2d 225 (3d Cir. 1990), cert. denied, 506 U.S. 817, 121 L. Ed. 2d 29, 113 S. Ct. 61 (1992).
Elizabethtown presents two arguments for why the Court should grant its motion for reargument.
II. Occurrence v. General Exclusion K(3)(b)
First, Elizabethtown asserts that the Court overlooked its ruling that a jury must decide whether there was an "occurrence" when it decided that the exclusion in Hartford's policy applied. In essence, Elizabethtown contends that if a jury decides that its negligence was an occurrence, then General Exclusion K(3)(b) cannot apply because it did not arise out of any breach of its agreement with the developers. Elizabethtown adds that contrary to the Court's Opinion, it did not argue that its settlement with the developers rendered General Exclusion K(3)(b) inapplicable. Elizabethtown concludes that its basis for coverage was the same throughout its brief--its negligence was an occurrence that required Hartford to provide coverage.
The Court did not overlook its prior ruling on occurrence when it rendered its decisions on "occurrence" and on General Exclusion K(3)(b). First, the Court entertained the issue of negligence as an "occurrence" because the parties hotly debated the issue, because the Court wanted to engage in the academic and theoretical musing associated with the issue, and ...