Baxter Senior Living, LLC v. Zurich American Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BAXTER SENIOR LIVING, LLC,
Plaintiff,
v.
ZURICH AMERICAN INSURANCE
COMPANY,
Defendant. 	Case No. 3:22-cv-00044-SLG
ORDER RE DEFENDANT’S MOTION FOR RECONSIDERATION
Before the Court at Docket 27 is Defendant Zurich American Insurance
Company’s Motion for Reconsideration of the Court’s order at Docket 25 certifying
questions to the Alaska Supreme Court. 	The Court did not request a response
from Plaintiff.1
According to the Ninth Circuit, “a motion for reconsideration should not be
granted, 	absent 	highly 	unusual 	circumstances, 	unless 	the 	district 	court 	is
presented with newly discovered evidence, committed clear error, or if there is an
intervening change in the controlling law.”2 	Under the District of Alaska’s Local
Civil Rules, the Court “will ordinarily deny a motion for reconsideration absent a
1 See D. Alaska L. Civ. R. 7.3(h)(3) (“No response to a motion for reconsideration may be filed
unless requested by the court.”).
2 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).
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Case No. 3:22-cv-00044-SLG, Baxter Senior Living, LLC v. Zurich Am. Ins. Co.
Order Re Defendant’s Mot. for Reconsideration
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showing of one of the following: (A) manifest error of law or fact; (B) discovery of
new material facts not previously available; or (C) intervening change of law.”3
Zurich’s assertions urging reconsideration rest primarily on the Court’s
alleged 	oversight 	in 	not 	recognizing 	the 	insurance 	policy’s 	microorganism
exception as “an independent basis to resolve all claims in this suit.”4 But Zurich
has not demonstrated that the Court made a manifest error of law or fact that might
justify reconsideration. First, under the policy’s plain language, the microorganism
exclusion would appear to have no application or relevance to Claims 7 through 9
of Baxter’s suit. 	Second, Zurich’s motion to dismiss and its reply to Baxter’s
opposition memorandum presented the interpretation of “direct physical loss of or
damage to” as the primary issue relating to Claims 1 through 6.5 	Third, for the
reasons Baxter set forth in its opposition to Zurich’s motion to dismiss, the Court
disagrees with Zurich’s assertion that the microorganism exclusion in the Real and
Property 	Coverage 	Form 	section 	of 	the 	policy6 	categorically 	precludes 	the
insurance coverages that Baxter is seeking in Claims 1 through 6 under the
Additional Coverages Form section of the policy.7 Thus, Zurich has not shown that
3 D. Alaska L. Civ. R. 7.3(h).
4 Docket 27 at 4.
5 See Docket 10 at 5–7 (Def.’s Mot. to Dismiss); Docket 24 at 2–8 (Reply).
6 See Docket 2-1 at 88–89.
7 See Docket 2-1 at 100; Docket 18 at 18–19 (Pl.’s Opp’n) (explaining that the microorganism
exclusion is contained in the “Real and Personal Property” coverage section, not the “Additional
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Case No. 3:22-cv-00044-SLG, Baxter Senior Living, LLC v. Zurich Am. Ins. Co.
Order Re Defendant’s Mot. for Reconsideration
Page 3 of 3
any of the relevant criteria for reconsideration are met.
Accordingly, Zurich’s Motion for Reconsideration at Docket 27 is DENIED.
IT IS SO ORDERED this 12th day of October 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Coverages” sections to which Baxter’s Claims 1 through 6 relate).
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