Cincinnati Ins. Co. v. Energy Wise Homes, No. 339-9 -12 Bncv (Wesley, J. Apr. 10, 2014).

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.]



### Cincinnati Insurance Company vs. Energy Wise Homes

ENTRY REGARDING MOTION

Count 1, Declaratory Judgment (339-9-12 Bncv) Count 2, Declaratory Judgment (339-9-12 Bncv)

Count 3, Declaratory Judgment (339-9-12 Bncv) Count 4, Declaratory Judgment (339-9-12 Bncv)

Title: Motion to Reconsider and Opposing Judgment for Defendants (Motion 6) Filer: Cincinnati Insurance Company Attorney: Shapleigh Smith Filed Date: February 21, 2014

Response filed on 03/28/2014 by Attorney Thomas P. Aicher for Defendant Michael D. Uhler

The motion is DENIED.

Opinion and Order Granting Cincinnati’s Motion to Enlarge Time, Denyi ng Cincinnati’s Motion to Reconsider, and Granting Judgment to Defendants

Cincinnati Specialty Underwriters Insurance Company sues Energy Wise Homes, Inc. for a declaratory judgment. Cincinnati issued a commerc ial general liability policy to Energy Wise. The policy contained a total pollution exclusion. I n a related case, Shirley and Michael Uhler sue Energy Wise for damages from Shirley Uhler’s respir atory illness allegedly caused by Energy Wise’s spraying of foam insulation. **See Uhler v. Energy Wise Homes, Inc.** , Doc. No. 295-4-12 Rdcv. In this suit, Cincinnati seeks a declaration that it is not obligated to cover Energy Wise for
the Uhlers’ suit.

On September 23, 2013, Cincinnati moved for summar y judgment. Cincinnati argued the total pollution exclusion excluded coverage for Uhl ers’ suit. On November 22, 2013, the Uhlers opposed the motion for summary judgment. On Decembe r 20, 2013, Cincinnati responded to the opposition. Neither Energy Wise nor the Uhlers moved for summary judgment against

Cincinnati.

On January 23, 2014, the Court denied summary judgm ent to Cincinnati. The Court determined the policy language was ambiguous and de termined Energy Wise was entitled to coverage. The Court also gave notice, under V.R.C.P . 56(f), that it intended to issue judgment in 

## S TATE OF 

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SUPERIOR COURT CIVIL DIVISION Bennington Unit Docket No. 339-9-12 Bncvfavor of Defendants. The Court gave Cincinnati ten days to respond. 1 On February 21, 2014,

Cincinnati filed a motion to reconsider. Cincinnati also opposed granting summary judgment to Defendants. Cincinnati argued the policy was not a mbiguous and excluded coverage for Energy Wise’s claims. On March 28, 2014, the Uhlers respo nded to Cincinnati’s motion.

Parties may seek reconsideration of an order. **See In re SP Land Co., LLC** , 2011 VT 104, ¶ 16, 190 Vt. 418; **Brislin v. Wilton** , No. 2009-236, 2010 WL 712556, *3 (Vt. Feb. 2010). The Court may reconsider its rulings where a party shows a ma nifest error of fact or law. **See Brislin** , 2010 WL 712556, *3. However, motions to reconsider shou ld not be used to allow a party a second chance to reassert or reframe arguments already mad e and rejected. **See id.**

In this case, Cincinnati reargues many of points th e Court considered in its January 23, 2014 order. The Court already considered whether th e policy language was ambiguous. After a detailed analysis, the Court determined the policy was ambiguous. **See MacKinnon v. Truck Ins.**
**Exch.** , 73 P.3d 1205, 1209–10, 1214–18 (Cal. 2003). None of the points raised in Cincinnati’s motion to reconsider undermine the Court’s original determination and Cincinnati is unable to point to a manifest error of fact or law. **See Brislin** , 2010 WL 712556, *3. Therefore, the Court
denies Cincinnati’s motion to reconsider.

Next, the Court considers whether to grant summary judgment in favor of Defendants. As indicated earlier, the Court noted in its Januar y 23 order that the Court intended to grant summary judgment in favor of Defendants. The Court grants summary judgment “if the movant shows that there is no genuine dispute as to any ma terial fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a). The C ourt makes all reasonable inferences and resolves all doubts in favor of the non-moving part y. **Lamay v. State** , 2012 VT 49, ¶ 6, 191 Vt.

635.

In this case, Defendants are entitled to summary ju dgment. There are no material disputed facts and the case raises a question of la w. As discussed in the January 23 order, the Court finds the policy language about the total pol lution exclusion is ambiguous. **See**

**MacKinnon** , 73 P.3d at 1209–10, 1214–18. Further, the Court m ust interpret ambiguous policies
in favor of the insured. **See Vt. Mut. Ins. Co. v. Parsons Hill P’ship** , 2010 VT 44, ¶ 21, 188 Vt. 80. Energy Wise is entitled to coverage because the pol icy language is ambiguous.

WHEREFORE, it is hereby ORDERED :

The Court GRANTS Cincinnati’s motion to enlarge time. The Court DENIES Cincinnati’s
motion to reconsider. The Court GRANTS summary judgment in favor of Defendants, and issues a declaratory judgment that Energy Wise is entitled to coverage on the policy issued by Cincinnati, including the obligation on the part of Cincinnati to provide a defense to Energy

Wise in **Uhler v. Energy Wise Homes, Inc.** , Doc. No. 295-4-12 Rdcv.

1 On February 6, 2014, Cincinnati filed a motion to enlarge time. Cincinnati requested additional time because it needed to prepare for mediation in this case. The m ediation occurred on February 4, 2014 and was unsuc cessful. The Court did not review the motion to enlarge time bef ore receiving Cincinnati’s substantive response. Th e Court now grants Cincinnati’s motion to enlarge time.So ordered.

Electronically signed on April 09, 2014 at 04:38 PM pursuant to V.R.E.F. 7(d).

______________________________________ John P. Wesley Superior Court Judge

Notifications: Shapleigh Smith (ERN 3224), Attorney for Plaintiff Cincinnati Insurance Company Jennifer Deck Samuelson (ERN 5914), Attorney for De fendant Energy Wise Homes Thomas P. Aicher (ERN 3254), Attorney for Defendant Shirley Uhler Thomas P. Aicher (ERN 3254), Attorney for Defendant Michael D. Uhler Neutral Mediator/Arbitrator/Evaluator Michael Marks

wesley