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QBE Insurance Corporation v. Whispering Pines Cemetery, LLC

United States District Court, S.D. Alabama, Southern Division

June 27, 2014

QBE INSURANCE CORPORATION, Plaintiff,
v.
WHISPERING PINES CEMETERY, LLC, QUEEN PETTWAY, CARLIS EATON, ROSIE MAY ABRAMS, COURTNEY VASHAY ABRAMS, JERMAINE ABRAMS, TAMARA MARTIN, and LESESTER WILLIAMS, Defendants.

ORDER

KRISTI K. DUBOSE, District Judge.

This action is before the Court on QBE Insurance Corporation's Motion to Vacate Orders at Doc. 90 and 91 and the parties' Joint Motion to Dismiss Claims. (Docs. 115, 116)

I. Background

On January 27, 2012, QBE Insurance Corporation (QBE) filed a Complaint for Declaratory Judgment against Whispering Pines Cemetery LLC, Queen Pettway, Carlis Eaton (Pettway/Eaton), Rosie May Abrams, Courtney Vashay Abrams and Jermaine Abrams (the Abrams Family) and Tamara Martin and Lesester Williams (Martin/Williams). Defendants, except for Whispering Pines, answered and counterclaimed against QBE. (Docs. 12, 15)

QBE sought a declaration that it owed no coverage, defense, or other obligation under the Commercial General Liability Policy issued to its insured Whispering Pines in regard to the state court actions brought by the other defendants in this action. (Doc. 1)

In February 2013, this Court granted in part Martin/Williams motion for summary judgment. (Doc. 90) The Court decided that QBE had failed to meet its burden to show that the funeral services exclusion applied to the claims alleged by Martin and Williams against Whispering Pines in their state court complaint and that QBE had a duty to defend its insured Whispering Pines in that action. The Court declined to issue a declaratory judgment as to coverage for Martin and Williams' claims until the state court action was resolved.

Also in February 2013, the Court denied QBE's motion for summary judgment. (Doc. 91) The Court decided that QBE had failed to meet its burden to show that the funeral services exclusion applied to the claim alleged in the underlying state court actions. The Court also decided that the state court judge's factual findings supported an "occurrence" and not an expected or intended injury which would be excluded and that there was at least a question of fact whether the Abrams' recovery for outrage was covered under the policy.

In March 2013, QBE moved the Court to reconsider its decisions. (Doc. 96) The Abrams family, Eaton/Pettway, and Martin/Williams opposed the motion. (Docs. 99, 100) The motion for reconsideration was denied on April 1, 2013. (Doc. 104)

At the time of summary judgment, the Abrams family had obtained a default judgment in the state court, but the Martin/Williams and Pettway/Eaton state court actions were pending. In March 2013, the Abrams family, Whispering Pines, and QBE settled their claims in mediation and that part of the declaratory judgment action was dismissed with prejudice. (Doc. 103)

In September 2013, QBE reached a settlement agreement with Martin/Williams. (Doc. 111-1, p.1-2) As part thereof, Martin/Williams consented to the withdrawal of the order granting partial summary judgment in their favor and the order denying QBE's motion for summary judgment. ( Id., p. 2) In January 2014, QBE and Martin/Williams jointly moved to vacate the order granting summary judgment in their favor (doc. 90), but not as to the order denying QBE's motion for summary judgment, and also moved to dismiss all claims and counterclaims among them and Whispering Pines. (Docs. 109, 110) Defendants Pettway/Eaton filed an opposition. (Doc. 112) The motion to vacate and motion to dismiss were denied. (Doc. 113)

In March 2014, QBE reached a settlement agreement with Pettway/Eaton. (Doc. 115) As part of the agreement, Pettway/Eaton consented to the withdrawal of the two orders on summary judgment. (Doc. 115, p. 13) QBE now moves the Court to vacate these orders. (Doc. 115) Also, QBE, Martin/Williams, and Pettway/Eaton jointly move the Court to dismiss with prejudice all claims and causes of action among all parties including Whispering Pines. (Doc. 116)

II. Motion to Vacate

QBE moves the Court to vacate two non-final orders on motion for summary judgment. Rule 54 applies to judgments and paragraph (b) provides as follows:

When an action presents more than one claim for relief-whether as a claim, counterclaim, crossclaim, or third-party claim-or when 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 expressly 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 ...

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