“Certain Defendants” are: Government Employees Insurance Company; Republic Insurance 1

Company; Westchester Fire Insurance Company; AIU Insurance Company; Continental Insurance Company

as successor-in-interest to certain policies of insurance issued by Harbor Insurance Company; Lexington

Insurance Company; Sentry Insurance A Mutual Company, as assumptive reinsurer of Great Southwest Fire

Insurance Company, sued here as Vanliner Insurance Company; Travelers Casualty and Surety Company

(formerly known as The Aetna Casualty and Surety Company and incorrectly designated in the complaint

as “St. Paul Travelers”); and Westport Insurance Corporation, formerly known as Puritan Insurance

Company. Defs. mot. & br. (doc. no. 422 at 1 n.1 & 5 n.1).

1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

GENERAL REFRACTORIES COMPANY : CIVIL ACTION 

:

v. :

:

FIRST STATE INSURANCE CO., et al. : No. 04-3509 

MEMORANDUM

Ludwig, J. April 19, 2012

“Certain defendants,” nine in number, move for reconsideration of the order and 1

memorandum entered on February 22, 2012 (doc. nos. 417, 418). See General Refractories

Company v. First State Insurance Company, No. 04-3509, fn. 1 for decision and case history.

Jurisdiction is diversity. 28 U.S.C. § 1332. 

The reconsideration motion asserts that the denial of partial summary judgment (defs.

mot., doc. no. 324) was the result of “several clear errors.” Defs. br. at 5-6 (doc. no. 422).

Specifically, the decision erred in not “ruling that 40 P.S. § 477b, as a matter of law, neither

extends a private cause of action to plaintiff . . . nor authorizes the invalidation of asbestos

exclusions allegedly issued without the Insurance Department’s approval.” Id. at 5. These

errors purportedly “create manifest injustice.” Id. 

Case 2:04-cv-03509-EL Document 446 Filed 04/20/12 Page 1 of 7
2

Reconsideration requires either: “(1) an intervening change in the law; (2) the

availability of new evidence; or (3) the need to correct clear error of law or prevent manifest

injustice.” Cottrell v. Good Wheels, No. 11-3409, --- Fed. App’x ---- , 2012 WL 171941, *3

(3d Cir. Jan. 23, 2012) (citing N. River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218

(3d Cir. 1995)). The scope of reconsideration is “extremely limited” and “[s]uch motions are

not to be used as an opportunity to relitigate the case.” Blystone v. Horn, 664 F.3d 397, 415

(3d Cir. 2011). Nor are they “a vehicle for registering disagreement with the court’s initial

decision, for rearguing matters already addressed by the court, or for raising arguments that

could have been raised before but were not.” Bostic v. AT&T of the V.I., 312 F. Supp. 2d

731, 733-34 (D.V.I. 2004). None of these categories or reasons for reconsideration apply

here. 

 Movants incorrectly interpret the February 21, 2012 memorandum decision and

would develop evidentiary rulings of their own making that would remodel the summary

judgment record and in doing so perhaps try to manufacture law-of-the case. This somewhat

innovative strategem is not evidence. “‘[N]ew evidence,’ for reconsideration purposes, does

not refer to evidence that a party obtains or submits to a court after an adverse ruling. Rather,

new evidence in this context means evidence that a party could not earlier submit to the court

because that evidence was not previously available.” Howard Hess Dental Labs. Inc. v.

Dentsply Int’l, Inc., 602 F.3d 237, 251-52 (3d Cir. 2010). 

Case 2:04-cv-03509-EL Document 446 Filed 04/20/12 Page 2 of 7
 “Typically, a denial of summary judgment is not a final appealable order . . . .” Montanez v. 2

Thompson, 603 F.3d 243, 248 (3d Cir. 2010). “A judgment is not final unless there has been a decision by

the district court that ends the litigation on the merits and leaves nothing for the court to do but execute the

judgment. . . . An otherwise non-appealable order is final only if there are no longer any claims left to be

resolved by the district court.” Royal Ins. Co. of Am., Inc. v. KTA-Tator, Inc., 239 Fed. App’x 722, 724 (3d

Cir. 2007) (citations and internal quotation marks omitted). 

 Fed. R. Civ. P. 54(b): “When an action presents more than one claim for relief . . . or when

3

multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than

all, claims or parties only if the court determines that there is no just reason for delay. Otherwise, any order

or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities

of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at

any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”

3

The February 21, 2012 decision is interlocutory and did not terminate any claim on 2

the merits: “Today’s order holds that there are genuine issues of material fact as to the public

policies proposed by GRC and, therefore, none of the moving parties is entitled to judgment

as a matter of law.” Mem. at 6, 15. The decision did not “settle or even tentatively decide

anything about the merits of the claim[s]. It is strictly a pretrial order that decides only one

thing – that the case should go to trial.” Switzerland Cheese Ass’n, Inc. v. E. Horne’s

Market, Inc., 385 U.S. 23, 25 (1966); see Ingram v. S.C.I. Camp Hill, 448 Fed. Appx. 275,

278 & n.3 (3d Cir. 2011) (quoting Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 (Fed.

Cir. 1986) (“order denying summary judgment ‘does not foreclose trial on the issues on

which summary judgment was sought’”)); Fed. R. Civ. P. 54(b). Accord: Warner Bros. Inc. 3

v. Am. Broadcasting Cos., 720 F.2d 231, 245-46 (2d Cir. 1983) (“ruling denying summary

judgment on all claims was not an order ‘adjudicating’ any of them; it simply left them for

adjudication at trial”); Andrews Farms v. Calcot, Ltd., 693 F. Supp. 2d 1154, 1163-65 (E.D.

Cal. 2010) (rejecting analogous attempt to generate findings, citing Switzerland and Dessar

Case 2:04-cv-03509-EL Document 446 Filed 04/20/12 Page 3 of 7
 As was stated in Dessar almost fifty years ago: “There is no merit to appellant’s claim that the 4

denial of appellee’s first motion for summary judgment was a ruling that the trust was invalid, or that such

a ruling is the law of the case. The order does not purport to decide the question. It merely denies the motion

because, in the court’s then view, there were ‘issuable facts.’ Such a denial merely postpones decision of

any question; it decides none. To give it any other effect would be entirely contrary to the purpose of the

summary judgment procedure. The court did nothing more than it purported to do, that is, refuse to grant

the motion.” Dessar v. Bank of Am. Nat’l Trust & Sav. Ass’n, supra.

4

v. Bank of Am. Nat’l Trust & Sav. Ass’n, 353 F.2d 468, 470 (9th Cir. 1965)). See Moore’s 4

Federal Practice § 56.121[1][c] at 56-302 (3rd ed. 2011) (“A denial of a motion for summary

judgment cannot determine the law of a case . . . . It does not conclusively resolve any legal

issue or find any fact . . . and has no claim- or issue-preclusive effect”). 

Summary judgment decisions involve burden analyses. Here, plaintiff met its

oppositional burden, and movants did not fulfill their burden of establishing the absence of

triable issues. “On a motion for summary judgment, the movant must show that there is ‘no

genuine issue as to any material fact,’ such that he is ‘entitled to judgment as a matter of

law.’” NAACP v. N. Hudson Reg’l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (citing

Fed. R. Civ. P. 54(a)). Moreover, the record must be viewed “‘in the light most favorable

to the nonmovant.’” Id. (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)); see also Patrick

v. Great Valley Sch. Dist., 296 Fed. App’x 258, 260 (3d Cir. 2008) (citing Ideal Dairy Farms,

Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. 1996) (“Summary judgment may not be

granted . . . if there is a disagreement over what inferences can be reasonably drawn from the

facts even if the facts are undisputed.”) (citation and internal quotation marks omitted)). 

Movants mistakenly read into the denial of partial summary judgment various

decisional findings inconsistent with their view of the record. Positing error, they ask for

Case 2:04-cv-03509-EL Document 446 Filed 04/20/12 Page 4 of 7
5

an adjudication in their favor as a matter of law. For example, movants: “[T]he Court

correctly stated that GRC bears a heavy burden of establishing a ‘dominant public policy’

prohibiting enforcement of asbestos exclusions and that GRC failed to meet that burden.”

Defs. br. at 6. And: “[T]he Court recognized that GRC failed to meet its burden to

demonstrate a dominant public policy.” Id. at 7. “[T]his Court’s express holding that

GRC’s circumstantial evidence ‘would not satisfy the standard of a ‘dominant’ public policy

. . . .” Id. at 8. However, no rulings to that effect were made. 

Movants also point to the court’s consideration of the affidavit of Deputy Insurance

Commissioner, Michael R. Powers, Ph.D. The affidavit incorporates two letters written by

Insurance Department examiners in 1985 to show the Department’s policy of rejecting

asbestos-related exclusions as against public policy. Movants contend that inconsistent

rulings were made in regard to those letters. This conclusion is created by their factitious

findings and is at odds with the record: the “Court’s reliance on these two letters . . . is based

upon the very same evidence that the Court earlier . . . determined is inadequate to meet the

. . . standard of a ‘clearly-expressed,’ ‘dominant’ public policy.” Defs. br. at 10-11. “[T]hese

letters were part of the evidence specifically considered by the Court when it held that

‘[c]ircumstantial proof of the Insurance Department’s activities alone would not satisfy the

standard of a “dominant” public policy’ . . . [which “directly conflicts with” the] Court’s

suggestion later in the Opinion that the letters establish a genuine dispute of fact . . . .” Defs.

br. at 11; see also defs. reply br. at 2; but see mem. at 8 & n.8, 9. Again, no such rulings

Case 2:04-cv-03509-EL Document 446 Filed 04/20/12 Page 5 of 7
6

were made. The attributed error is a reiteration of movants’ attempts to excise Powers’

testimony from the record, repeating the same arguments as those made in the unsuccessful

motion to strike his affidavit (doc. no. 354). 

The February 21, 2012 decision was based on the entire record. When determining

whether a moving party has proven the absence of a genuine material issue of fact, “the

record taken as a whole” must be considered. NAACP, 665 F.3d at 475. As explained by

our Court of Appeals, “[i]f . . . there is any evidence in the record from any source from

which a reasonable inference in the [nonmoving party’s] favor may be drawn, the moving

party simply cannot obtain a summary judgment . . . .” Celotex, 477 U.S. at 330 n.2 (White,

J., concurring). 

Here, framing the issue as purely one of law, movants dismiss inferences to be drawn

from Deputy Commissioner Powers’ affidavit, narrowly configuring it to “stand only for the

proposition that the Insurance Department had an internal practice with respect to the

treatment of asbestos exclusions.” Defs. br. at 11-12; defs. reply br. at 2-3. Movants’

argument is that such an internal agency practice cannot, as a matter of law, meet the

standard for a “dominant public policy.” Defs. br. at 13; defs. reply br. at 3-4; but see mem.

at 9. This is an inaccurate, over-simplification of the permissible inferences. 

Movants’ reply states that it presents some new “matter of statutory administrative

agency law.” Defs. reply br. at 3-5. That is not appropriate on reconsideration. Additionally,

the arguments are not persuasive because the testimony in question cannot fairly be regarded

Case 2:04-cv-03509-EL Document 446 Filed 04/20/12 Page 6 of 7
7

as evidence solely of an internal agency practice that was not publicly disclosed. This, again,

is re-argument of the unsuccessful motion for partial summary judgment. See defs. br. at 5-6,

doc. no. 324; defs. reply br. at 4-5, 9-10, doc. no. 367. 

Movants also persist in ignoring GRC’s position on § 477b. A statute is itself

evidence of public policies: “‘[A]n enactment by the legislature . . . is indeed the

embodiment of public policy.” Heller v. Pa. League of Cities & Muns., 32 A.3d 1213, 1227

(Pa. 2011) (quoting Erie Ins. Exch. v. Baker, 972 A.2d 507, 511 n.7 (Pa. 2008)); see mem.

at 13. The issue, with proper instructions, is to be resolved by the fact finder on the totality

of the evidence; it is not an issue of law for summary adjudication. 

An order accompanies this memorandum. 

BY THE COURT: 

/s/ Edmund V. Ludwig 

Edmund V. Ludwig, J. 

Case 2:04-cv-03509-EL Document 446 Filed 04/20/12 Page 7 of 7