1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LINDA COOK, HUBERT COOK, : 

ADAM COOK, AND BRIANNA WILLIAMS, : 

 : 

 Plaintiffs, : Case No. 2:18-cv-00282 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

 : Magistrate Judge Deavers 

ERIE INSURANCE COMPANY, : 

 : 

 Defendant. : 

OPINION & ORDER 

I. INTRODUCTION 

This matter is before the Court on Defendant’s Motion, construed either as a Motion to 

Reconsider or a Motion to Certify Interlocutory Appeal. (ECF. No. 82). For the reasons set forth 

below, Plaintiff’s Motion is DENIED. (Id.). 

II. BACKGROUND 

This Court set out the factual history of this case in its May 5, 2020 Order and incorporates 

those facts as if fully set forth herein. (ECF No. 76). There, this Court granted in part Defendant’s 

summary judgment on Plaintiff’s contract claim and on the breach of the duty of good faith claims 

premised on the following allegations: (1) Erie placing its interests above that of its insured by 

requesting documents pursuant to a cooperation clause; (2) Erie’s failure to investigate the 

underlying claim; and (3) Erie’s counterclaim filed against Plaintiffs for overpayment. (ECF No. 

76). Further, this Court held in abeyance Defendant’s motion for summary judgment as to the bad 

faith claim premised on Erie’s allegedly superfluous requests for documents as a means of delaying 

payment because the only evidence that Plaintiffs had presented in support of that claim was Mr. 

Setcavage’s expert report. (Id. at 18.). This Court determined that if admissible, Mr. Setcavage’s 

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expert report was sufficient evidence to raise a genuine issue of material fact on that particular bad 

faith claim. In its reply, Defendant argued that this report was inadmissible since it was an ipse 

dixit opinion. Because Plaintiffs did not have an opportunity to address the admissibility of their 

expert’s report, this Court ordered both parties fully to brief the issue. Both parties submitted 

supplemental briefing addressing the admissibility of Mr. Setcavage’s expert report. (ECF No. 79, 

No. 80). 

On August 11, 2020, this Court founds that Mr. Setcavage’s expert testimony was 

admissible in part and denies in part Defendant’s Motion for Summary Judgment as to Plaintiffs’ 

breach of the implied duty of good faith and fair dealing. (ECF No. 81). 

On September 17, 2020, Defendant Erie filed the instant Motion for Reconsideration or, in 

the Alternative, Motion to Certify Interlocutory Appeal. (ECF No. 82). 

III. LAW & ANALYSIS 

A. Motion to Reconsider 

 Under Federal Rule of Civil Procedure 59(e), a court will reconsider its own prior 

decision “if the moving party demonstrates: (1) a clear error of law; (2) newly discovered evidence 

that was not previously available to the parties; or (3) an intervening change in controlling 

law.” Owner-Operator Indep. Drivers Ass’n, Inc. v. Arctic Express, Inc., 288 F.Supp.2d 895, 900 

(S.D. Ohio 2003). Courts may also alter or amend a judgment when necessary “to prevent manifest 

injustice.” GenCorp., Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). 

Reconsideration due to a finding of manifest injustice or a clear error of law requires “unique 

circumstances,” such as complete failure to address an issue or claim. McWhorter v. ELSEA, Inc., 

2006 WL 3483964, at *2 (S.D. Ohio 2006) (citing Collison v. Int’l Chem. Workers Union, Local 

217, 34 F.3d 233, 236 (4th Cir. 1994)). Even for motions to reconsider interlocutory orders, courts 

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respect the importance of “grant[ing] some measure of finality . . . and [of] discourag[ing] the 

filing of endless motions for reconsideration” in applying the relevant criteria. Id. A motion 

under Rule 59(e) may not be brought to relitigate issues previously considered by a court or to 

present evidence that could have been raised earlier. See J.P. v. Taft, 2006 WL 689091, at *3 (S.D. 

Ohio 2006). 

Here, Defendant Erie seeks reconsideration of this Court’s finding that the bad-faith claim 

survived summary judgment. Specifically, Plaintiffs’ bad-faith claim alleges that Erie delayed the 

resolution of Plaintiffs’ uninsured motorist (“UM”) claim by requesting documents that furthered 

no legitimate interest of Erie’s. (ECF No. 82). Erie posits that, as a matter of law, no “delay” in 

resolving the UM claim could have occurred. Before a UM payment can be delayed, Defendant 

argues, the insured must have the legal authority to resolve the claim, and the insurer must have a 

legal duty to pay. Thus, Defendant seeks reconsideration because Plaintiffs had no legal right to 

accept payment, and Erie had no legal obligation to pay, until after the probate court approved the 

settlement on May 15, 2019, nearly one year after Erie tendered its policy limits. 

While Defendant does not explicitly provide the legal standard on which it moves the Court 

to reconsider, the strongest basis is a clear error of law because no newly discovered evidence is 

presented and there is no assertion of an intervening change in controlling law. (ECF No. 82). This 

Court finds that it did not err in its analysis on Defendant’s previous Motion for Summary 

Judgment. 

First, this Court already ruled on whether a reasonable jury could find that Erie’s delayed 

requests for documents were motivated by bad faith. (ECF No. 81 at 12–13). Erie contends that 

the UM payment cannot be considered delayed because its legal obligation did not arise until the 

workers’ compensation lienholder—Cook’s employer—was given “prior notice and a reasonable 

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opportunity to assert its subrogation rights.” (ECF No. 82). But this Court already evaluated 

whether the bad-faith allegations raised a genuine issue of material fact, and Erie supplies no 

additional basis justifying reconsideration. 

Second, Erie states that payment was not delayed because it was waiting on whether other 

UM coverage existed, which, if so, would obviate Erie’s duty to pay. (ECF No. 82 at 5). Again, 

this Court already determined that an insurer’s unnecessary and delayed requests for 

documentation can support an allegation of bad faith. 

Third and finally, Defendant states that a settlement could not have been reached without 

the probate court’s approval. (ECF No. 82) (citing R.C. 2125.02(C)). The statutory requirement 

for a wrongful death suit requires that parties acquire a probate court’s consent before a wrongful 

death action is settled. Boyd v. Cleveland Clinic Found, 314 F.R.D. 222, 223 (2016). But Plaintiffs 

have not pled that Defendant Erie engaged in any wrongful or neglectful act that proximately 

caused Mr. Cook’s death. Rather, Plaintiffs’ allege a contractual claim. 

Defendant offers no change in law or new evidence that would alter this ruling. Manifest 

injustice also would not result from allowing the remaining question of bad faith to go to the jury. 

B. Motion to Certify Interlocutory Appeal 

Generally, interlocutory appeals are disfavored; therefore, it is a legal instrument reserved 

for “exceptional circumstances.” Sinclair v. Schriber, 834 F.2d 103, 105 (6th Cir. 1987). Section 

1292(b) provides a three-part test for such appeals: (1) a controlling issue of law; (2) substantial 

grounds for difference of opinion; and (3) that an immediate appeal may materially advance the 

ultimate termination of litigation. Alexander v. Provident Life and Acc. Ins. Co., 663 F.Supp.2d 

627, 639 (2009). 

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Review under this provision is to be granted “only in exceptional cases.” W. Tenn. Chapter 

of Assoc. Builders & Contractors, Inc. v. City of Memphis (In re City of Memphis), 293 F.3d 345, 

350 (6th Cir. 2002). As the Sixth Circuit has observed, the legislative history of § 1292(b) makes 

it “quite apparent” that the statute should be “sparingly applied” and is “not intended to open the 

floodgates to a vast number of appeals from interlocutory orders in ordinary litigation.” Cardwell 

v. Chesapeake & Ohio Ry. Co., 504 F.2d 444, 446 (6th Cir. 1974). 

Here, Defendant contends that: (1) the point at which its duty to pay arose is a controlling 

question of law; (2) the answer to that question is well established and, if this Court disagrees, then 

a substantial difference of opinion would exist; and (3) an answer to that question would materially 

advance the termination of this litigation. 

That the question is not a controlling question is fatal to Erie’s effort to file an interlocutory 

appeal. A question is only a controlling question of law where it is a “pure” question of law—in 

other words, it should not require a close review of the record to decide it. DRFP, LLC v. 

Republica Bolivariana de Venezuela, 945 F. Supp. 2d 890, 919 (S.D. Ohio 2013) (denying leave 

to take interlocutory appeal because “any review of the Court’s analysis in these areas would be 

highly fact intensive and would likely require consideration of how the Court weighed other factors 

within its overall balancing analysis”). 

In this case, the duty to pay is disputed and is a quintessential fact question appropriate for 

a jury’s resolution. The first element is not satisfied, which means that Erie’s claim does not rise 

to the level of exceptional circumstances to which interlocutory appeals are limited. 

IV. CONCLUSION 

For the reasons above, Plaintiff’s motion, whether construed as a Motion to Reconsider or 

a Motion to Certify Interlocutory Appeal, is DENIED. (ECF No. 82). 

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IT IS SO ORDERED. 

 __________ 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

DATED: March 19, 2021 

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