MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on The Hartford Fire Insurance Company’s Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage and Memorandum in Support, filed September 27, 2012 (Doc. 83)(“2nd MSJ”). The Court held a hearing on January 7, 2013. The primary issue is whether the “Personal and Advertising Injury” provision of the insurance policies that Plaintiff and Counterdefendant The Hartford Fire Insurance Company issued to Defendant Gandy Dancer, LLC is ambiguous, or covers Defendant Roy D. Mercer LLC’s allegations of trespass and nuisance in the underlying state court action. The Court determines that the terms “premises,” “person,” and “occupy” are ambiguous, and the Court must construe these terms against The Hartford as the drafter of the policies. The Court will construe the 2nd MSJ as a motion to reconsider its previous holding that the term “owner, landlord or lessor” does not exclude coverage for Defendant BNSF Railway Company and Gandy Dancer, and the Court will reconsider its previous holding in the Memorandum Opinion and Order, filed March 28, 2012 (Doc. 74),
FACTUAL BACKGROUND
This ease involves the construction of a water diversion system in 2006, over which litigation is taking place in state court. The Hartford seeks a declaratory judgment that the facts alleged in the underlying state litigation do not give rise to insurance coverage under the policies it issued. Many of the material facts are undisputed.
The Hartford issued a policy of business liability to Defendant Gandy Dancer, LLC titled “Policy Number 21 UUN QZ5048,” with effective dates from August 8, 2005, through August 8, 2006. 2nd MSJ ¶ 1, at 2 (citing Commercial General Liability Coverage Form, filed September 27, 2012 (Doc. 83)(“05-06 Gandy Dancer Policy”))(setting forth this fact).
injury, including consequential “bodily injury” arising out of one or more of the following offenses:
a.False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or invasion of the right to private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor;
d. Oral, written or electronic publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services;
e. Oral, written or electronic publication of material that violates a person’s right of privacy;
f. Copying, in your “advertisement”, a person’s or organization’s “advertising idea” or style of “advertisement”;
g. Infringement of copyright, slogan, or title of any literary or artistic work, in your “advertisement”; or
h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person.
2nd MSJ ¶ 3, at 2-3 (citing 05-06 Policy at 5; 06-07 Policy at 5)(setting forth this fact).
The underlying action in this case is BNSF Railway’s complaint against Mercer LLC, pending in the Seventh Judicial District Court, County of Socorro, for the State of New Mexico. See 2nd MSJ ¶ 4, at 3 (setting forth this fact); BNSF Railway Company’s Response Brief in Opposition to the Hartford Fire Insurance Company’s Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage ¶ 4 at 5, filed October 22, 2012 (Doc. 87)(“BNSF Response”)(not disputing this fact); Defendant Gandy Dancer’s Response in Opposition to The Hartford Fire Insurance Company’s Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage ¶ 3, at 4, filed October 22, 2012 (Doc. 88)(“Gandy Dancer Response”)(not disputing this fact). BNSF Railway Company owns an easement on the property belonging to Mercer, LLC in Socorro, granting BNSF Railway the right to “use the natural material as it may desire for the construction of ditches, dikes, spoil banks, and other necessary facilities and structures to protect the railroad from floodwaters of the nearby Brown Arroyo.” 2nd MSJ ¶ 4, at 3-4 (citing Verified Complaint for Injunctive Relief, Declaratory Judgment, Negligence and Nuisance ¶ 8, at 2 filed in state court June 3, 2008, filed in federal court June 10, 2011 (Doc. 37-l)(“BNSF Complaint”)(setting forth this fact)); Gandy Dancer Response ¶ 3, at 4 (not disputing this fact).
ingress and egress upon the above described tracts or parcels of land for the purpose of excavating, constructing and maintaining said ditch, dykes and spoil banks and shall be held harmless on account of any damages sustained to the land or crops hereafter grown thereon on account of said improvements.
Easement at 2. See BNSF Response ¶ 6, at 6 (setting forth this fact); The Hartford Fire Insurance Company’s Reply in Favor of its Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage at 2, filed November 9, 2012 (Doc. 93)(“Reply”)(not disputing this fact). BNSF Railway has continually “maintained and rehabilitated a system of levees and a water diversion system on the Mercer Property.” BNSF Response ¶ 7, at 7 (citing Stone Aff.)(setting forth this fact); Stone Aff. ¶ 19, at 7 (“BNSF’s records reflect that the railroad has consistently performed work to protect the railroad tracks from damaging floodwaters from Matanza Arroyo since at least 1924.”
When Mike Mechenbier, the Director and sole member of Mercer LLC acquired the Mercer Property, the property contained a berm.
Around late July to early August 2006, after a year of severe flooding in the Brown Arroyo, BNSF Railroad hired Gandy Dancer to reconstruct its water diversion system by clearing vegetation, building up the levees, and expanding the diversion channel to control floodwaters to minimize the likelihood of additional
Employees of Mercer LLC indicated that they might alter or destroy some of Gandy Dancer’s work, which prompted BNSF Railway to file the BNSF Complaint. See 2nd MSJ ¶ 6, at 4 (setting forth this fact); BNSF Response ¶ 6, at 6 (not disputing this fact); Gandy Dancer Response ¶ 3, at 4 (not disputing this fact). In response to the BNSF Com
PROCEDURAL BACKGROUND
On February 16, 2010, The Hartford filed its Complaint for Declaratory Judgment. See Doc. 1 (“Hartford’s Complaint”).
On June 10, 2011, The Hartford moved the Court for summary judgment, requesting that the Court declare that the Gandy Dancer Policies do not provide coverage for the damages that Mercer LLC seeks in the underlying action. See The Hartford Fire Insurance Company’s Memorandum in Support of Its Motion for Summary Judgment Declaring that the Terms of the Policy Issued to Gandy Dancer Do Not Provide Coverage for Roy D. Mercer LLC’s Claims Against BNSF and Gandy Dancer at 1-2, filed June 10, 2011 (Doc. 38)(“lst MSJ Memo.”). The Hartford assertéd that, in the underlying action, Mercer LLC contends that BNSF Railway directed Gandy Dancer to reconstruct a
The Court granted the 1st MSJ in part and denied it in part. The Court agreed with The Hartford that Mercer LLC’s allegations of property damage against Gandy Dancer were not an “occurrence” as defined in the Gandy Dancer Policies and held that those allegations “do not give rise to coverage under the Gandy Dancer Policies.” March 28 MOO,
The Hartford moves the Court, pursuant to rule 56 of the Federal Rule of Civil Procedure, for a summary judgment that the “Personal and Advertising Injury” provision of the insurance policies issued to Defendant Gandy Dancer, LLC does not cover claims that Mercer LLC brings in the underlying action. Specifically, The Hartford requests a declaratory judgment that neither Defendant BNSF Railway nor Gandy Dancer is alleged to have committed the following Personal and Advertising Injury offense: “The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” 2nd MSJ at 2. The Court will refer to this coverage in subsection (c) of the Personal and Advertising Injury provision (paragraph 17 of
The Hartford requests a summary judgment on two independent grounds. First, The Hartford contends that the Wrongful Eviction applies only to structures and premises that persons occupy, and not to unoccupied farm and ranch land. Second, The Hartford contends that Wrongful Eviction applies only when actions are taken on behalf of an owner, landlord, or lessor of a room, dwelling, or premises. Accordingly, The Hartford contends that, because neither BNSF Railway nor Gandy Dancer was an owner, landlord, or lessor with respect to the property on which they worked, there is no coverage under the Wrongful Eviction provision.
The Hartford asserts that it is entitled to summary judgment because the Wrongful Eviction provision does not cover Gandy Dancer’s work on the Mercer Property, because the property “was not a room, dwelling, or premises, and because it was not occupied by any persons as the Policies require.” 2nd MSJ at 7. The Hartford asserts that Wrongful Eviction coverage applies only to a “ ‘room, dwelling, or premises,’ ” but not to land. 2nd MSJ at 7 (citing Mirpad, LLC v. Cal. Ins. Guarantee Ass’n,
The Hartford asserts that the Mercer Property was unoccupied. The Hartford contends that, in addition to the property containing a building, room, or dwelling, the structure must be occupied to trigger The Hartford’s obligations under the Wrongful Eviction provision. The Hartford asserts that Mercer Property was filled with overgrowth and was “far from being a place that a person occupies.” 2nd MSJ at 9. The Hartford contends that New Mexico law recognizes a “fundamental difference between ownership of real property on one hand, and its occupancy on the other.” 2nd MSJ at 9 (citing In re Gabriel M.,
The Hartford also asserts that the Wrongful Eviction provision does not cover BNSF Railroad and Gandy Dancer, because neither was an owner, landlord, or lessor of the Easement or the Mercer Property, on which the alleged offenses occurred. The Hartford asserts that an easement is not an ownership interest in land, and, therefore, BNSF Railroad did not own any part of the Mercer Property. See 2nd MSJ at 10 (citing City of Rio Rancho v. Amrep S.W., Inc.,
BNSF Railway and Gandy Dancer raise numerous arguments against the 2nd MSJ. First, BNSF Railway and Gandy Dancer assert that the 2nd MSJ is a motion to reconsider the Court’s “determination that the personal and advertising injury provisions of the applicable policy obligate The Hartford to provide a defense for BNSF and Gandy Dancer [] in the underlying action.” BNSF Response at 1. See Gandy Dancer Response at 7. BNSF Railway also asserts that The Hartford has relied on disputed facts in the 2nd MSJ, that it has ignored that New Mexico law requires ambiguous terms in an insurance policy to be construed against the insurer, and that New Mexico courts have interpreted similar terms to provide coverage against Mercer LLC’s claims. BNSF Railway and Gandy Dancer also contend that the Wrongful Eviction provision is ambiguous, and that the Court should construe the Gandy Dancer Policies against The Hartford. See Gandy Dancer Response at 6 (citing Lopez v. N.M. Pub. Sch. Ins. Auth.,
First, BNSF Railway and Gandy Dancer assert that the 2nd MSJ is an improper second attempt for summary judgment, and improperly attacks the March 28 MOO. Gandy Dancer asserts that The Hartford is asking the Court to reconsider whether Gandy Dancer Policies’ Wrongful Eviction provision covers Mercer LLC’s claims of trespass and nuisance. See Gandy Dancer Response at 7 (citing March 28 MOO,
Second, BNSF Railway and Gandy Dancer assert that the dictionary definition of “premises” does not “exclude land with no buildings,” but, rather, indicates that the terms includes “both ‘a tract of
Third, BNSF Railway and Gandy Dancer assert that both BNSF Railway and Mercer LLC are “persons” under the terms of the Gandy Dancer Policies. BNSF Response ¶ 7, at 7; Gandy Dancer Response ¶ 4, at 4 (citing person, Black’s Law Dictionary 1162 (8th ed.2004)). Gandy Dancer contends that dictionary definitions of “person” are unavailing to The Hartford, because Black’s Law Dictionary “acknowledges that the term can refer to a ‘natural person’ or an entity such as a corporation.” Gandy Dancer Response at 9 (citing person, Black’s Law Dictionary 1162 (8th ed.2004)). Gandy Dancer also points out that the Gandy Dancer Policies expressly restrict the meaning of the term “person” to “natural persons” in other sections, and, therefore, the absence of a similar restriction in the Wrongful Eviction provision indicates that the term is not so restricted. Gandy Dancer Response at 9 (quoting Wrongful Eviction provision ¶ 17(h) (“Discrimination or humiliation that results in injury to the feelings or reputation of natural person.”)).
Fourth, BNSF Railway and Gandy Dancer assert that the term “occupied” is not restricted to “ ‘a place where people live.’ ” BNSF Response at 17 (quoting 2nd MSJ at 9). See Gandy Dancer Response at 10. BNSF Railway contends that both it and Mercer LLC “occupied” the Mercer Property within the meaning of the Gandy Dancer Policies, “by possessing the property, by keeping it for their use, and by preventing each other (at various times) from using portions of the property.” BNSF Response ¶ 7, at 7 (citing Affidavit of Mike Mechenbier, executed October 7, 2011, filed October 22, 2011 (Doc. 87-1).
Fifth, BNSF Railway and Gandy Dancer assert that BNSF Railway’s interest in the Mercer Property is an ownership interest, and, therefore, not outside the meaning of the term “owner” in the Gandy Dancer Policies. Gandy Dancer Response at 11; BNSF Response at 20. BNSF Railway also contends that the March 28 MOO contradicts The Hartford’s statement that neither BNSF Railway nor Gandy Dancer owned the Mercer property, because the Court held that BNSF Railway’s Easement grants it an ownership interest in the property. See BNSF Response at 20. Gandy Dancer asserts that BNSF Railway’s Easement gives it “a reasonable expectation of coverage under the personal and advertising injury provisions in the CGL policy.” Gandy Dancer Response at 12 (citing Fed. Ins. Co. v. Century Fed. Sav. & Loan Ass’n,
BNSF Railway further contends that ownership of the Mercer Property is an issue in this case that the underlying action has yet to determine. BNSF Railway contends that Mercer LLC’s claims are based on its theory that BNSF Railway committed a nuisance and trespassed onto the Mercer Property through construction and/or enlargement of the levee and diversion system. BNSF Railway notes that it
The Hartford replies that the “state court action does not state a claim for Personal and Advertising Injury as that term is defined by the Policies,” and, therefore, it has no duty to defend or indemnify BNSF Railway or Gandy Dancer in the underlying action. Reply at 1. The Hartford asserts that the “mere mention of the term ‘trespass’ in Mercer’s allegations” is insufficient to trigger the Wrongful Eviction provision. Reply at 2. The Hartford contends that the Wrongful Eviction provision is the only subsection which possibly applies to Mercer LLC’s claims, but it not applicable, because the definition requires “an occupied room, dwelling, or premises,” and “a wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy.” Reply at 2-3. The Hartford further contends that the definition covers only eviction “performed either by or on behalf of the owner, landlord or lessor of the space.” Reply at 3. The Hartford contends that the Mercer Property is not a “premises,” and that neither BNSF Railway or Gandy Dancer was an owner of any property, rendering Mercer LLC’s claims outside the scope of the Wrongful Eviction provision. Reply at 3.
The Hartford contends that BNSF Railway and Gandy Dancer’s reliance on authorities that define premises as including “vacant land” is inapposite, because none of the cases on which they rely discuss the term “premises” in the context of a Personal and Advertising Injury. Reply at 3. The Hartford also contends that neither BNSF Railway or Gandy Dancer had a possessory or ownership interest in the Mercer Property, and The Hartford asserts that Mercer LLC does not allege that BNSF Railway or Gandy Dancer trespassed on Mercer LLC’s land. See Reply at 4-5. The Hartford asserts that, although BNSF Railway and Mercer LLC may have overlapping rights to the land which the Easement encumbers, Mercer LLC does not allege that BNSF Railway or Gandy Dancer interfered with Mercer LLC’s right to use the property apart. The Hartford also asserts that, even if BNSF Railway and Gandy Dancer exceeded the Easement onto land that Mercer LLC exclusively owned, because BNSF Railway and Gandy Dancer do not own the land outside of the Easement, any claims based on that action fails to establish the elements of a wrongful eviction. See Reply at 5-6. The Hartford asserts that, even though the Easement grants BNSF Railway broad rights to perform construction on the Mercer Property, because neither BNSF Railway or Gandy Dancer owned the land on which Mercer LLC claims they trespassed, Mercer LLC’s allegations are not based on wrongful entry. See Reply at 6.
The Hartford also asserts that the 2nd MSJ is not a motion to reconsider, but, rather, is properly filed as a motion for summary judgment. The Hartford contends that, notwithstanding that similar issues were raised in the briefing on the 1st MSJ, The “Hartford’s obligation to address arguments raised in response to its
The Court held a hearing on January 7, 2013. See Transcript of Hearing (taken January 7, 2013)(“Tr.”). The Court stated that its initial impression is that it already decided the issues raised in the 2nd MSJ. See Tr. at 4:3-13 (Court). The Hartford stated that it first realized that BNSF Railway and Gandy Dancer were raising the Wrongful Eviction provision when they responded to the 1st MSJ, and that it “lacked the factual predicate to make the same arguments that we are making before the Court today.” Tr. at 6:16-24 (Lucero). The Hartford also stated that it believes the Court “misconstrued” the Wrongful Eviction provision’s language. Tr. at 7:10-16 (Lucero).
The Court inquired what The Hartford’s “strongest argument” is that the Court “construed it wrongly the first time.” Tr. at 8:5-9 (Court). The Hartford stated that the “strongest part” of its argument is that the Court did not focus on whether the Mercer Property was a “room, dwelling, or premises” as required to fall within the Wrongful Eviction provision’s coverage for wrongful eviction, and if so, whether the Mercer Property was occupied “by a person.” Tr. at 8:10-9:5 (Lucero). The Hartford stated that it could not fully bring that argument earlier, because it did not have admissions from Mercer LLC that the Mercer Property is devoid of a “room dwelling, or premises.” Tr. at 9:6-12 (Lucero).
The Hartford asserted that Mercer LLC’s claims are not covered under the Wrongful Eviction provision, because “there simply is not a room, dwelling, or premises on this land — it’s vacant land,” and “a person does not occupy it or did not occupy it at the time that these alleged torts were committed.” Tr. at 10:12-20 (Lucero). The Hartford asserted that, in the context of ¶ 17(c) of the Gandy Dancer Policies, BNSF Railway’s improvements on the Mercer Property do not constitute a premises. See Tr. at 11:6-23 (Lucero). The Hartford contended that, because a person cannot occupy “a berm or a dam or a levy,” those structures do not constitute an occupied premises from which one may be wrongfully evicted. Tr. at 11:24-12:1 (Lucero).
The Hartford asserted that whether the term “person” applies to only natural persons or includes entities is irrelevant, because “the factual predicate that we’ve established is that neither a natural person nor an entity occupied this vacant land.” Tr. at 12:4-11 (Lucero). The Hartford contended that, within the context of the Wrongful Eviction provision, “there is no logical way to construe these words, other than, premises means something in conjunction with room or dwelling.” Tr. at 14; 13-20 (Lucero). The Hartford contended that the “logical and clear definition” of “occupy” requires “that somebody lives there.” Tr. at 14:21-15:1 (Lucero).
The Court stated that it is concerned that, while other jurisdictions might adopt more restrictive definitions of the contested terms, the Supreme Court of New Mexico, which has “very broadly construed some other language in policies,” is likely to reject narrow definitions. Tr. at 15:2-14 (Court). The Hartford asserted that it cannot predict how the Supreme Court of New Mexico will interpret the Wrongful Eviction provision, and that the Court
The Court inquired of BNSF Railway whether the facts are in dispute, because “this thing seemed to me to be raising a fairly clean legal issue that I had to decide,” which it did not resolve in the March 28 MOO. Tr. at 17:9-16 (Court). BNSF Railway stated that “what was known about the land was known back when we had this original motion.” Tr. at 17:17-24 (Fields). BNSF Railway also pointed out that it opposed the 1st MSJ, in part, because it had not had sufficient time to conduct discovery, but that The Hartford opposed allowing BNSF additional time for discovery. See Tr. at 18:1-12 (Fields). The Court inquired whether its March 28 MOO decided the scope of the Wrongful Eviction provision, because when it found that The Hartford had a duty to defend, “it was based upon sort of a broad reading of premises,” and not the definition of specific terms. Tr. at 18:16-24 (Court). The Court stated that whether the Mercer Property was occupied and structures were on the land is a new issue. See Tr. at 19:9-15 (Court). The Court inquired why The Hartford could not file a subsequent motion for summary judgment on a new legal issue that the Court did not address in the 1st MSJ. See Tr. at 20:9-17 (Court). BNSF Railway responded that The Hartford had the opportunity to raise the scope of the Wrongful Eviction provision in the 1st MSJ, and it chose to not assert the argument it now raises in the 2nd MSJ. See Tr. at 20:18-21:6 (Fields). BNSF Railway asserted that the 2nd MSJ is “squarely within a motion to reconsider,” because The Hartford has not alleged new facts that The Hartford “could not have reasonably discovered” before filing the 1st MSJ or “new case law that’s come to light that they could not have reasonably known.” Tr. at 21:7-15 (Fields). BNSF Railway asserted, therefore, that the 2nd MSJ is a motion for reconsideration, which the Court should deny. See Tr. at 21:16— 22:1 (Fields).
BNSF Railway asserted that The Hartford concedes that Mercer LLC is bringing a claim of wrongful entry against BNSF Railway. See Tr. at 22:11-23:5 (Fields)(citing Reply at 4-5). BNSF Railway also asserted that the parties are disputing in the underlying action whether BNSF Railway and Gandy Dancer are owners of land on which Mercer LLC alleges they trespassed and interfered with Mercer LLC’s right of occupancy. See Tr. at 23:6-13 (Fields)(citing Reply at 6). BNSF Railway asserted that the Gandy Dancer Policies discuss a “right of occupancy” and not “actually someone occupying it.” Tr. at 23:14-24:9 (Fields)(citing Gandy Dancer Policies ¶ 17(c)). BNSF Railway asserted that The Hartford has conceded that Mercer LLC had a right to occupy the Mercer Property. See Tr. at 24:10-20 (Fields). BNSF Railway asserted that “there’s no question that [ ] Mercer in this case had the right to occupy their land.” Tr. at 25:20-24 (Fields). BNSF Railway asserted that “there is no question that we had the right to occupy, and, in fact, did occupy the land, because we built the berm.” Tr. at 26:2-6 (Fields). BNSF Railway noted that it disputes with Mercer LLC the size of the berm on the Mercer Property, and asserted that, regardless of the size, Mercer LLC’s allegations in the underlying action indicate that BNSF Railway is “occupying the property.” Tr. at 27:5-28:15 (Fields).
Regarding the meaning of the term “person” in the Wrongful Eviction provision, BNSF Railway asserted that the provision does not discuss a “natural person,” which would indicate that the provision precludes corporations or entities. Tr. at 29:9-30:6 (Fields, Court). BNSF Railway
BNSF Railway further argued that, in the underlying action, the Honorable Matthew G. Reynolds, New Mexico State District Judge for the Seventh Judicial District, found that “ ‘[a]s a matter of law the express easement specifically contemplates, not only excavation, but also the maintenance and construction of ditches, dikes, and spoil banks on Mercer’s property.’ ” Tr. at 34:3-9 (FieldsXquoting Order on Roy D. Mercer LLC’s Motion for Partial Summary Judgment Against BNSF Railway Company and Gandy Dancer, LLC ¶ 4, at 2, filed in state court July 5, 2012, filed in federal court October 22, 2012 (Doc. 87-8)(“State Court PSJ”)). BNSF Railway further asserted that Judge Reynolds found genuine issues of material fact regarding whether BNSF Railway exceeded the scope of the Easement. See Tr. at 34:15-22 (Fields); id. at 36:4-7 (Fields).
Regarding the meaning of the term “person,” BNSF Railway stated that it has “extensively,” through its briefing, shown that the term “could be a corporation[,] ... unless you specifically said a natural person.” Tr. at 36:11-16 (Fields). BNSF Railway also stated that the term “premises” can refer to the land itself, but that it has “erected structures on the property,” such as the berm and a ditch; therefore, even if the term requires the existence of structures, its improvements on the Mercer Property fall within the term’s definition. Tr. at 37:1-9 (Fields). BNSF Railway contended that it has, thus, “satisfied the person requirement satisfied[,] the occupancy requirement, we’ve satisfied the premises requirements, and we’ve satisfied the ownership requirement.” Tr. at 37:21-24 (Fields).
Gandy Dancer stated that The Hartford is asking the Court to adopt one interpretation of the Wrongful Eviction provision in violation of New Mexico law that insurance policies be construed against the drafter. See Tr. at 39:14-23 (Warburton)(citing March 28 MOO,
The Hartford stated that it is asking the Court to read the Wrongful Eviction provision as “any ordinary person would read it and then come to the conclusion that either these claims do or do not fall within that language.” Tr. at 43:14-20 (Lucero). The Hartford pointed out that the Wrongful Eviction provision does not contain the phrase “right of private occupancy,” as BNSF Railway asserts. Tr. at 44:4-15 (Lucero). The Hartford asserted that it “knew how to differentiate rights from physical realities,” and that it differentiated in the context of “a room, or dwelling or a premises that a person occupies.” Tr. at
The Court stated that, under its duty to construe New Mexico law in accordance with the Supreme Court of New Mexico’s guidance, it is inclined to find that the term “persons” includes a corporation. Tr. at 49:10-23 (Court). The Court stated that, if a structure, such as a berm, is sufficient to satisfy the meaning of the term “occupy,” it is inclined to find that BNSF Railway occupied the Mercer Property. Tr. at 49:24-50:8 (Court). The Court stated, therefore, that it is inclined to find that the Supreme Court of New Mexico would find that Mercer LLC’s allegations trigger The Hartford’s obligations under the Wrongful Eviction provision. See Tr. at 50:9-15 (Court).
LAW REGARDING SUMMARY JUDGMENT
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett,
If a defendant seeks summary judgment, the defendant has the “initial burden to show that there is an absence of evidence to support the nonmoving party’s case.” Munoz v. St. Mary-Corwin Hosp.,
LAW REGARDING MOTIONS FOR RECONSIDERATION
Under Tenth Circuit case law, [generally, a “motion for reconsideration, not recognized by the Federal Rules of Civil Procedure, Clough v. Rush,959 F.2d 182 , 186 n. 4 (10th Cir. 1992), may be construed in one of two ways: if filed within 10 days of the district court’s entry of judgment, it is treated as a motion to alter or amend the judgment under Rule 59(e); if filed more than 10 days after entry of judgment, it is treated as a motion for relief from judgment under Rule 60(b).” Computerized Thermal Imaging, Inc. v. Bloomberg, L.P.,312 F.3d 1292 , 1296 n. 3 (10th Cir.2002). In addition, “every order short of a final decree is subject to reopening at the discretion of the district judge.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,460 U.S. 1 , 12,103 S.Ct. 927 ,74 L.Ed.2d 765 (1983); see also Fed.R.Civ.P. 54(b).
Price v. Philpot,
RELEVANT NEW MEXICO LAW REGARDING INSURANCE CONTRACTS
Under New Mexico law, insurance policies are interpreted like any other contract, except that, “where a policy term is ‘reasonably and fairly susceptible of different construction,’ it is deemed ambiguous and ‘must be construed against the insurance company as the drafter of the policy.’ ” United Nuclear Corp. v. Allstate Ins. Co.,
The typical insured does not bargain for individual terms within policy clauses; the insured makes only broad choices regarding general concepts of coverage, risk, and cost. Not only does the insurance company draft the documents, but it does so with far more knowledge than the typical insured of the consequences of particular words.
The obligation of an insurer is a question of contract law and will be determined by reference to the insurance policy’s terms. See Safeco Ins. Co. of Am., Inc. v. McKenna,
RELEVANT NEW MEXICO LAW REGARDING CONTRACT INTERPRETATION
“Generally, the goal of contract interpretation is to ‘ascertain the intentions of the contracting parties.’ ” Gallegos v. Pueblo of Tesuque,
In New Mexico, a court may consider extrinsic evidence to determine “whether the meaning of a term or expression contained in the agreement is actually unclear.” Mark V, Inc. v. Mellekas,
An ambiguity exists in an agreement when the parties’ expressions of mutual assent lack clarity. C.R. Anthony [v. Loretto Mall Partners ], 112 N.M. [504,] 509 n. 2, 817 P.2d [238,] 243 n. 2 [ (1991) ]. The question whether an agreement contains an ambiguity is a matter of law to be decided by the trial court. Levenson v. Mobley,106 N.M. 399 , 401,744 P.2d 174 , 176 (1987). The court may consider collateral evidence of the circumstances surrounding the execution of the agreement in determining whether the language of the agreement is unclear. C.R. Anthony,112 N.M. at 508-09 ,817 P.2d at 242-43 . If the evidence presented is so plain that no reasonable person could hold any way but one, then the court may interpret the meaning as a matter of law. Id. at 510,817 P.2d at 244 . If the court determines that the contract is reasonably and fairly susceptible of different constructions, an ambiguity exists. Vickers v. North Am. Land Dev., Inc.,94 N.M. 65 , 68,607 P.2d 603 , 606 (1980). At that point, if the proffered evidence of surrounding facts and circumstances is in dispute, turns on witness credibility, or is susceptible of conflicting inferences, the meaning must be resolved by the appropriate fact finder, C.R. Anthony,112 N.M. at 510 ,817 P.2d at 244 .
Once the agreement is found to be ambiguous, the meaning to be assigned the unclear terms is a question of fact. Segura v. Molycorp, Inc.,97 N.M. 13 , 18,636 P.2d 284 , 289 (1981). However, in the event the parties do not offer evidence of the facts and circumstances surrounding execution of the agreement and leading to conflicting interpretations as to its meaning, the court may resolve any ambiguity as a matter of law by interpreting the contract using accepted canons of contract construction and traditional rules of grammar and punctuation. C.R. Anthony,112 N.M. at 510 n. 5,817 P.2d at 244 n. 5. The factual issues, if any, presented by an ambiguity must be resolved by the jury (or by the judge as fact finder in the case of a bench trial) with the benefit of a full evidentiary hearing prior to deciding breach and damages. Id. at 510,817 P.2d at 244 . In order to determine the meaning of the ambiguous terms, the fact finder may consider extrinsic evidence of the language and conduct of the parties and the circumstances surrounding the agreement, as well as oral evidence of the parties’ intent. American Bank of Commerce v.M & G Builders, Ltd.,92 N.M. 250 , 252,586 P.2d 1079 , 1081 (1978). Evidence may bepresented to the fact finder to aid in the interpretation of the agreement, but no evidence should be received when its purpose or effect is to contradict or vary the agreement’s terms. Maine v. Garvin, 76 N.M. 546 , 550-51,417 P.2d 40 , 43 (1966); see also C.R. Anthony,112 N.M. at 509 ,817 P.2d at 243 .
In Mark V, Inc. v. Mellekas, the Supreme Court of New Mexico summarized the circumstances under which it is appropriate for a district court to construe a contract as a matter of law, and when a district court should find that a contract is ambiguous and leave construction of the contract to a jury. According to the Supreme Court of New Mexico in Mark V, Inc. v. Mellekas, a district court may take extrinsic evidence to determine whether a contract is ambiguous, and “if the evidence presented is so plain that no reasonable person could hold any way but one, then the court may interpret the meaning as a matter of law. If the court determines that the contract is reasonably and fairly susceptible of different constructions, an ambiguity exists.” Id.,845 P.2d at 1235 (citations omitted).
NEW MEXICO LAW REGARDING THE DUTY TO DEFEND AND THE DUTY TO INDEMNIFY
The “duty to indemnify is distinct from [the] duty to defend,” and resolution whether a party has a duty to defend does not “necessarily depend on there being a duty to indemnify.” City of Albuquerque v. BPLW Architects & Eng’rs, Inc.,
ANALYSIS
The Court will grant the 2nd MSJ in part and deny it in part. To the extent that The Hartford contends that the Mercer Property was not a premises, or was unoccupied by a person, within the Wrongful Eviction provision’s terms, the Court finds that these terms are ambiguous, and the Court is bound by New Mexico law to construe these ambiguous terms in an insurance policy against The Hartford as the drafter of the Gandy Dancer Policies. To the extent that The Hartford asserts that the Wrongful Eviction provision does not cover Mercer LLC’s trespass and nuisance allegations against BNSF Railway and Gandy Dancer in the underlying action, because BNSF Railway and Gandy Dancer were not owners, landlords, or lessors regarding the Mercer Property, the Court rejected that argument in the March 28 MOO. The Court will not reconsider whether BNSF Railway has an ownership interest in the Mercer Property within the meaning of the Wrongful Eviction provision, because The Hartford fails to point to a change in the facts or controlling law which renders its previous holding erroneous. The Court, however, determines that The Hartford has convinced the Court that it misapprehended the controlling law and/or the facts whether Mercer LLC’s allegations of trespass and nuisance are allegations of a wrongful eviction, entry, or invasion of the right of private occupancy committed by or on behalf of an owner, landlord, or lessor, and the Court will reconsider its March 28 MOO in that regard. The Court concludes that Mercer LLC’s allegations of trespass are not within the scope of the Wrongful Eviction provision, but Mercer LLC’s allegations nonetheless, trigger The Hartford’s duty to defend.
I. THE TERMS “PREMISES,” “PERSON,” AND “OCCUPY” DO NOT EXCLUDE COVERAGE OF MERCER LLC’S CLAIMS.
The Hartford contends that the Mercer Property is not a “premises” and was unoccupied by a person at the time of the allegations in the Mercer Answer, and, therefore, that Mercer LLC’s allegations of trespass and nuisance are outside the Gandy Dancer Policies’ coverage. 2nd MSJ at 2. BNSF Railway and Gandy Dancer respond that the terms “premises,” “person,” and “occupy” are ambiguous, and that the Court must construe these terms against The Hartford as the drafter of the Gandy Dancer Policies. Gandy Dancer
Under New Mexico law, the Court may consider extrinsic evidence to determine whether an ambiguity in an insurance contract exists. See Mark V., Inc. v. Mellekas,
A. THE TERM “PREMISES” IS AMBIGUOUS, AND THE COURT MUST CONSTRUE IT AGAINST THE HARTFORD.
The parties assert differing definitions of “premises,” depending upon the date of the dictionary being used. The Hartford is correct to state that Black’s Law Dictionary currently defines the term as a “ ‘house or building, along with its grounds,’ ” 2nd MSJ at 8 (quoting premises, Black’s Law Dictionary 1300 (9th ed.2009)), and that the term “building,” according to a dictionary, refers to a “structure with a roof, esp. a permanent structure,” building, Black’s Law Dictionary 222 (9th ed.2009). See building, New Oxford Am. Dictionary 228 (Angus Stevenson & Christine A. Lindberg eds., 3d.2010)(“a structure with a roof and walls, such as a house, school, store, or factory”). BNSF Railway asserts that, before 2009, Black’s Law Dictionary gave the term “premises” a more general definition, as “ ‘a distinct portion of real estate.’ ” BNSF Response at 15 (citing premises, Black’s Law Dictionary 1063 (5th ed.1979)). See Gandy Dancer Response at 10. Gandy Dancer also asserts that, even if the term “premises” requires the existence of a “structure,” the Mercer Property meets the definition, because of the ditches, berms, dikes, and spoil banks on the property. Gandy Dancer Response at 10. BNSF Railway’s and Gandy Dancer’s citations to older dictionaries evidence a tension, or perhaps a shift, in the meaning of
The Court’s focus in interpreting the language of an insurance policy “ ‘must be upon the objective expectations the language of the policy would create in the mind of a hypothetical reasonable insured who, we assume, will have limited knowledge of insurance law.’ ” Battishill v. Farmers Alliance Ins. Co.,
New Mexico courts’ use of the term “premises” indicates that a “reasonable person in the insured’s position” could have construed the term to refer to land, notwithstanding the absence of buildings or structures thereon. Phx. Indem. Ins. Co. v. Pulis,
B. THE TERM “PERSON OCCUPIES” IS AMBIGUOUS AND THE COURT MUST CONSTRUE IT AGAINST THE HARTFORD.
The Hartford asserts that the Wrongful Eviction provision does not cover Mercer LLC’s claims because a person did not occupy the Mercer Property. See 2nd MSJ at 9. The Hartford asserts that the Mercer Property was “unoccupied land,” as it was “filled with overgrowth.” 2nd MSJ at 9. BNSF Railway and Gandy Dancer contend that the term “person” is not restricted to a “natural person,” and, therefore, may include a corporation. Gandy Dancer Response at 9 (citing person, Black’s Law Dictionary 1162 (8th ed.2004)). See BNSF Response ¶ 7, at 7. BNSF Railway asserts that it and Mercer LLC occupied the Mercer Property “by possessing the property, by keeping it for their use, and by preventing each other [ ] from using portions of the property.” BNSF Response ¶ 7, at 7. Gandy Dancer contends that the term “occupy” does not require “the physical presence on land.” Gandy Dancer Response at 10. The Court agrees with BNSF Railway and Gandy Dancer.
A dictionary definition of “person” indicates that it may refer to a “human being,” person, Black’s Law Dictionary 1257 (9th ed.2009), or a “one (as a human being, a partnership, or a corporation) that is recognized by law as the subject or rights and duties,” person, Merriam-Webster Dictionary (2013), available at http://www. merriam-webster.com/dictionary/person. Accordingly, the dictionary definitions of this term indicate that both parties’ interpretations are reasonable. Moreover, at least one court has construed the exact provision at issue here to include the
The dictionary definition of occupy is: to “reside or have one’s place of business in (a building); fill or take up (a space or time); be situated in or at (a place or position in a system or hierarchy).” Occupy, New Oxford Am. Dictionary 1213 (3d ed.2010). To “reside” means to “have one’s permanent home in a particular place” and to “be situated.” Reside, New Oxford Am. Dictionary 1485 (3d ed.2010). “Situate” refers to “having a site; located.” Situate, Merriam-Webster Dictionary (2013), available at http://www.merriamwebster.com/dictionary/situated? show@1 & t@1377565370. The parties do not dispute that BNSF Railway has, in accordance with its Easement, maintained and rehabilitated a system of levees and a water diversion channel on the Mercer Property. See BNSF Response ¶ 7, at 7; Reply at 2. The parties also do not dispute that Mercer LLC owns the Mercer Property, and intended to use it for agricultural purposes. See 2nd MSJ ¶ 7, at 4; BNSF Response ¶¶ 7, 1 at 7, 8-9; Gandy Dancer Response ¶ 4, at 4. These facts indicate that the Mercer Property was at least a part of both BNSF Railway’s and Mercer
II. THE COURT WILL RECONSIDER, IN PART, ITS PREVIOUS HOLDING THAT THE TERM “COMMITTED BY OR ON BEHALF OF AN OWNER, LANDLORD OR LESSOR” IN THE PERSONAL AND ADVERTISING INJURY PROVISION DO NOT EXCLUDE BNSF RAILWAY AND GANDY DANCER FROM COVERAGE.
The Hartford contends that the Wrongful Eviction provision covers only actions taken on behalf of the owner, landlord, or lessor of a room, dwelling, or premises, and that neither BNSF Railway nor Gandy Dancer qualify for coverage under that provision. See 2nd MSJ at 2. BNSF Railway and Gandy Dancer assert that the 2nd MSJ is an improper second attempt for summary judgment on the issue of ownership, which the Court addressed in the March 28 MOO. See BNSF Response at 10-11; Gandy Dancer Response at 7. The Court agrees with BNSF Railway and Gandy Dancer that the Court already held that BNSF Railway had an ownership interest in the Mercer Property, and that any allegedly tortious action of Gandy Dancer were performed on behalf of BNSF Railway. The Court will not reconsider this holding, because The Hartford fails to point to new facts or a change in the controlling law which counsel that the Court reconsider its previous holding. On the other hand, The Hartford has notified the Court that it misapprehended the facts and/or the controlling law regarding whether Mercer LLC’s allegations of trespass and nuisance were committed by or on behalf of an owner, landlord, or lessor
A. THE COURT WILL NOT RECONSIDER ITS HOLDING THAT BNSF RAILWAY POSSESSES AN OWNERSHIP INTEREST IN THE MERCER PROPERTY THROUGH THE EASEMENT.
The Hartford contends that an easement is not an ownership interest in land, and, therefore, any alleged trespass or nuisance was not committed by or on behalf of an owner of the Mercer Property. See 2nd MSJ at 10-11. The Court previously addressed whether an easement is an ownership interest in the Mercer Property. See March 28 MOO,
The Hartford argues that the Wrongful Eviction provision nonetheless does not apply, because, if BNSF Railways’ use of its easement was a nuisance, Mercer LLC does not allege that the easement “in any way ... interfered with Mercer’s right to also use that same property.” Reply at 5. Mercer LLC’s allegations against BNSF Railway, however, undercut this argument. Mercer LLC argues that the “existing diversion channel and levy in place on Mercer’s property” has caused Mercer LLC to halt the reconstruction of its property. Answer to Verified Complaint for Injunctive Relief, Declaratory Judgment, Negli
B. THE COURT WILL RECONSIDER AND GRANT THE HARTFORD A DECLARATORY JUDGMENT THAT, IF GANDY DANCER EXCEEDED THE SCOPE OF BNSF RAILWAY’S EASEMENT ON THE MERCER PROPERTY, SUCH TRESPASS IS NOT COVERED UNDER THE WRONGFUL EVICTION PROVISION.
The Hartford contends that the Court misapprehended the Wrongful Eviction provision, because the language requires that the wrongful entry, eviction, or invasion of right of privacy be committed by an owner of the property, and, if Gandy Dancer exceeded the bounds of the Easement, it was no longer acting on behalf of the owner of the Mercer Property. See 2nd MSJ at 11. The Court previously addressed The Hartford’s argument that, even if BNSF Railway possessed an ownership interest through the Easement, when or if Gandy Dancer exceeded the scope of BNSF Railway’s Easement, Gandy Dancer was no longer acting on behalf of an owner of the Mercer Property. See March 28 MOO,
A number of courts that have interpreted the term “by or on behalf of its owner, landlord or lessor” in the context of an insurance provision such as the Wrongful Eviction provision have found the term to be ambiguous, and construe the term against the insurer. See New Castle Cnty. v. Nat’l Union Fire Ins. Co.,
Indeed, the Tenth Circuit has interpreted an identical term to cover only the wrongful eviction, entry, or invasion of a right of occupancy that the owners, landlord, or lessor of the room, dwelling, or premises, entered into commits. In Chimera Inv. Co. v. State Farm Fire & Cas. Co.,
On appeal, the Tenth Circuit held that Fidelity Funding’s allegations were outside the personal injury’s scope of coverage. Chimera Investment asserted that:
Fidelity’s state court complaint against the Insured clearly alleged unlawful entry, trespass, and wrongful eviction from unit 2 and that the undisputed facts show that the Insured Association was liable to Fidelity on those claims. Fidelity was entitled to possess its own property. Persons acting on behalf of the Insured ousted Fidelity from possession (a wrongful eviction); leased unit 2 to tenants of their choosing who occupied it over Fidelity’s objection (a wrongful entry); and did so in derogation of Fidelity’s right to exclusive use of unit 2 (an invasion of Fidelity’s right of private occupancy). These were “personal injuries” within the policy’s definitions, Chimera contends.
The coverage extends to wrongful entry or eviction (and so forth) “by or on behalf of the owner.” Here, Fidelity was the owner. The wrongful entry was not “on behalf of’ Fidelity but was actually in defiance of Fidelity’s rights. Giving the terms of the policy “their usually accepted meanings,” see Utah Farm Bureau,980 P.2d at 686 , we conclude that the policy did not cover these “offenses.”
Chimera Inv. Co. v. State Farm Fire & Cas. Co.,
Utah’s law regarding interpretation of insurance contracts appears to be substantially similar to New Mexico’s. Just as in New Mexico, Utah courts interpret insurance policies according to the rules of contract interpretation. See Utah Farm Bureau Ins. Co. v. Crook,
On the other hand, it is not clear whether Utah law allows extrinsic evidence to determine whether an ambiguity exists in a contract, as in New Mexico. Compare First Am. Title Ins. Co. v. J.B. Ranch, Inc.,
The parties have not provided the Court with extrinsic evidence regarding the execution of the Gandy Dancer Policies. Moreover, the Court is uncertain what extrinsic evidence, if any exists, would move the Gandy Dancer Policies ¶ 17(c) outside of the interpretation that the Tenth Circuit found in Chimera Inv. Co. v. State Farm Fire & Cas. Co. The language of the provisions are identical, and the Tenth Circuit held that, notwithstanding extrinsic factual evidence regarding the underlying action, the language could cover only a wrongful eviction, entry, or invasion of right of private occupancy that an owner, landlord, or lessor committed. Moreover, although other courts have found the term “by or on behalf of its owner, landlord or lessor” to be ambiguous, notably those provisions did not include the phrase “committed by,” as the Gandy Dancer Policies ¶ 17(c) does here. Gandy Dancer Policies ¶ 17(c) (providing coverage for “the wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy ... committed by or on behalf of its owner, landlord or lessor” (emphasis added)). The addition of the term “committed by” in the clause indicates that the term is unambiguous in the manner in which other courts have found similar clauses to be ambiguous. See New Castle Cnty. v. Nat’l Union Fire Ins. Co.,
The Court’s conclusion requires it to reconsider its holding that the Wrongful Eviction provision covers Mercer LLC’s allegations of trespass. In support of its allegation of trespass, Mercer LLC alleges that BNSF Railway “did enter the property owned by Mercer.” Mercer Answer ¶ 28, at 9. Accordingly, Mercer LLC’s allegation is that BNSF Railway wrongfully entered onto the property Mercer LLC owns, without permission. See N.M.R.A.Civ. UJI 13-1301 (“A trespasser is a person who enters or remains upon the premises of another without the [express] [or] [implied] permission of the [owner] [occupant] of the premises.”). Although the parties dispute in the underlying action the scope of BNSF Railway’s ownership interest in the Mercer Property, whatever ownership interest BNSF Railway has in the Mercer Property, the trespass allegation sets forth that BNSF Railway exceeded the scope of its ownership interest. The Tenth Circuit’s guidance requires the Court to interpret the Wrongful Eviction provision to not cover allegations of trespass, unless the owner of the property committed the trespass. Mercer LLC alleges the opposite here: that BNSF Railway’s actions through Gandy Dancer exceeded its ownership interest as set forth in the Easement. Accordingly, even though BNSF Railway had an ownership interest in the Mercer Property, Mercer LLC’s allegations are that Gandy Dancer’s actions, on BNSF Railway’s behalf, trespassed beyond the scope of the Easement, demonstrating that Mercer LLC is alleging that BNSF Railway was no longer acting as an owner. Just as the Tenth Circuit held in Chimera Inv. Co. v. State Farm Fire & Cas. Co., “[h]ere, [Mercer LLC] was the owner. The wrongful entry was not ‘on behalf of [Mercer LLC] but was actually in defiance of [Mercer LLC’s] rights.”
On the other hand, the Court will not change its previous holding that the Wrongful Eviction provision covers Mercer LLC’s allegations of nuisance. Although trespass requires a physical entry onto the property of another, see N.M.R.A.-Civ. UJI 13-1301, BNSF Railway could have committed a nuisance through invading Mercer LLC’s right of private occupancy, while remaining within its ownership interest set forth in the Easement. A “private nuisance” may be defined as an “invasion of the private use and enjoyment of land ... or an invasion that affects a single individual or a determinate number of persons in the enjoyment of some private right not common to the public.” State ex rel. Vill. of Los
The Court, therefore, grants the 2nd MSJ in part. The Court concludes that the terms “premises,” “person,” and “occupy” do not exclude coverage of Mercer LLC’s claims of trespass and nuisance against BNSF Railway and Gandy Dancer in the underlying action, because these terms are ambiguous and must be construed against The Hartford. The Court will not reconsider its previous holding that BNSF Railway possesses an ownership interest in the Mercer Property. On the other hand, the Court reconsiders its holding that the term “by or on behalf of the owner” does not exclude coverage of Mercer LLC’s allegations of trespass and nuisance, and the Court concludes that the Wrongful Eviction provision does not cover trespass claims, because such claims do not allege a “wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy ... committed by or on behalf’ of an “owner, landlord or lessor.” Gandy Dancer Policies ¶ 17(c). The Court, however, will not change its previous holding that Mercer LLC’s allegations of nuisance trigger a duty to defend, because Mercer LLC’s allegations that BNSF Railway’s use of its easement interfered with Mercer LLC’s use and enjoyment of the Mercer Property are potentially within the Gandy Dancer Policies’ coverage.
IT IS ORDERED that The Hartford Fire Insurance Company’s Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage and Memorandum in Support, filed September 27, 2012 (Doc. 83), is granted in part. The Court concludes that the terms “premises,” “person” and “occupy” in the insurance policies that Plaintiff The Hartford Fire Insurance Company issued to Defendant Gandy Dancer do not exclude Gandy Dancer and Plaintiff BNSF Railway Company’s conduct alleged in the underlying action between Defendant Roy D. Mercer LLC and BNSF Railway. The Court will not reconsider its previous holding that BNSF Railway was an “owner” with respect to its easement on property that Mercer LLC owns. On the other hand,
Notes
. The Hartford asserts that the 2005-2006 Gandy Dancer Policy’s was effective from August 8, 2005 through August 8, 2006. 2nd MSJ ¶ 1, at 2. BNSF Railway and Gandy Dancer dispute this fact, asserting that The Hartford has failed to provide any evidence supporting the coverage dates. See BNSF Railway Company’s Response Brief in Opposition to the Hartford Fire Insurance Company’s Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage ¶ 1 at 5, filed October 22, 2012 (Doc. 87)("BNSF Response”); Defendant Gandy Dancer's Response in Opposition to The Hartford Fire Insurance Company's Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage ¶ 1, at 4, filed October 22, 2012 (Doc. 88)("Gandy Dancer Response”). Indeed, BNSF Railway and Gandy Dancer are correct that, although The Hartford attaches pages of what appear to be an insurance policy, see 05-06 Gandy Dancer Policy at 14 (the Gandy Dancer Policies contain two sets of page numbers: (i) those which are part of the original documents— located in the bottom-right-hand-corner of the page; and (ii) those attached by the Court's CM/ECF system when the Policies were filed — located in the upper-right-hand corner of the page; the Court's citations are to the page numbers attached when the Policies were filed with the Court.), those pages do not indicate that this is the policy The Hartford identifies, or its coverage dates. Rule 56.1(b) of the United States District Court for the District of New Mexico’s Local Court Rules provides in part:
The Reply must contain a concise statement of those facts set forth in the Response which the movant disputes or to which the movant asserts an objection. Each fact must be lettered, must refer with particularity to those portions of the record upon which the movant relies, and must state the letter of the non-movant's fact. All material facts set forth in the Response will be deemed undisputed unless specifically controverted.
D.N.M.LR-Civ. 56.1(b). The Court has already found that the coverage dates of the 05-06 Gandy Dancer Policy are undisputed, and BNSF Railway and Gandy Dancer have not indicated that the Court's previous finding is inaccurate. See Memorandum Opinion and Order ¶ 1,
. BNSF Railway and Gandy Dancer assert that this fact is disputed, because The Hartford has not cited to a particular portion of the record supporting the 06-07 Gandy Dancer Policy’s coverage dates. See BNSF Response ¶ 2, at 5; Gandy Dancer Response V 1, at 4. Indeed, BNSF Railway and Gandy Dancer are correct that, although The Hartford attaches pages of what appear to be an insurance policy, see Commercial General Liability Coverage Form at 18, filed September 27, 2012 (Doc. 83), those pages do not indicate that this is the one that The Hartford identifies, or its coverage dates. On the other hand, the Court previously found that the existence of the 06-07 Gandy Dancer Policy and its coverage dates are undisputed. See March 28 MOO ¶ 1,
. Gandy Dancer disputes that the sections quoted in the 2nd MSJ is the Personal and Advertising Injury provision, because The Hartford has not áttached that portion of either Gandy Dancer Policy to the 2nd MSJ. See Gandy Dancer Response ¶ 3, at 4. Gandy Dancer does not point to a portion of the record which controverts The Hartford’s representation of the Personal and Advertising Injury provision. The Court, in the March 28 MOO, determined that the Commercial General Liability Coverage form, filed June 10, 2011 (Doc. 37-7) is the 05-06 Gandy Dancer Policy, and that the Commercial General Liability Coverage Form, filed June 10, 2011 (Doc. 37-8), is the 06-07 Gandy Dancer Poli
. BNSF Railway disputes The Hartford’s characterization of the easement’s terms, and points to the language of the Easement, executed September 23, 1936 by the Rio Grande Conservancy District, filed October 22, 2012 (Doc. 87-4), in support. See BNSF Response ¶ 4 at 5. Notably, The Hartford’s citation to the record provides little, if any, support for its description of the Easement. The Easement provides a right to
enter upon the following described tracts or parcels of land situated in Socorro County, New Mexico, and use so much of the natural material such as earth, rock, wood, etc., as it may elect or desire to remove for the purpose of constructing a surface ditch, dykes and spoil banks, together with any other facilities or structures necessary or desirable with any other facilities or structure necessary or desirable for the protection of the railroad or other property of the party of the second part form surface or other waters.
Easement at 1. Rule 56.1(b) of the United States District Court for the District of New Mexico's Local Court Rules provides in part:
The Reply must contain a concise statement of those facts set forth in the Response which the movant disputes or to which the movant asserts an objection. Each fact must be lettered, must refer with particularity to those portions of the record upon which the movant relies, and must state the letter of the non-movant's fact. All material facts set forth in the Response will bedeemed undisputed unless specifically controverted.
D.N.M.LR-Civ. 56.1(b). The Court determines that BNSF Railway has failed to meet its burden of specifically controverting the Easement’s language. Although the Easement’s language may be more specific in nature, The Hartford's summary of the language sets forth largely the same right. Accordingly, the Court adopts The Hartford’s fact as undisputed.
. Mercer LLC's land lies within a silty basin of the Brown Arroyo, “also known as the Matanza Arroyo” ("the Mercer Property”). March 28 MOO,
. A berm is a "flat strip of land, raised bank, or terrace bordering a river or canal; a path or grass strip beside a road; an artificial ridge or embankment____” New Oxford Am. Dictionary 157 (Angus Stevenson & Christine A. Lindberg eds., 3d.2010).
. The parties dispute the size of the berm. Mercer LLC states that, when Mechenbier acquired the property, there was a " ‘low, approximately 1.5 to 2 foot berm’ ” on the property. BNSF Railway Response ¶ 2, at 9 (quoting Mechenbier Aff. ¶ 4, at 2). BNSF Railway asserts that the berm "has been substantially larger than Mercer claims.” BNSF Railway Response ¶ 2, at 9 (citing Mechenbier Aff.); Stone Aff. ¶¶ 9-15, at 4-6 (stating that the height of a berm on the Mercer Property "is approximately 14 feet and the amount of sediment deposited by summer thunderstorm runoff is on average 5 feet higher than the BNSF railroad tracks"). The Hartford contends that BNSF Railway has inaccurately characterized its sources in asserting this fact. See Reply ¶ 2, at 2. The Hartford, however, cites to no facts controverting BNSF Railway’s statement that the berm "has been substantially larger than Mercer claims.” D.N.M.LR-Civ. 56.1(b) (requiring that the "Reply must ... refer with particularity to those portions of the record upon which the movant relies,” to dispute facts set forth in a response). The portions of the record to which BNSF Railway cite support it proposed
. BNSF Railway asserts that Mercer LLC is "claiming that the Mercer Property was intended for agricultural uses.” BNSF Response ¶ 7, at 6. This statement does not appear to contradict The Hartford’s proposed undisputed material fact. Moreover, BNSF Railway cites to no portion of the record which controverts Mercer LLC’s admission that the Mercer Property was intended for agricultural use. Moreover, the Mercer Admissions do not appear to be allegations; rather, these are admissions from the "Director and sole member of Roy D. Mercer LLC.” Mercer Admissions ¶ 1, at 2. Because BNSF Railway has failed to specifically controvert The Hartford’s fact that the land was intended for agricultural use, the Court deems this fact undisputed. See D.N.M.LR-Civ. 56.1(b).
. The parties dispute whether the Mercer Property was or is occupied "as that term is used in the policy.” BNSF Response ¶ 7, at 6. See 2nd MSJ ¶ 7, at 4 (asserting that the Mercer property "remains unoccupied”); Gandy Dancer Response ¶ 4, at 4 (asserting that the term "person” in the Gandy Dancer Policies is not restricted to "natural persons,” and that the term "premises that a person occupies” does not require the "presence of buildings or residential structures occupied by natural persons”).
BNSF Railway states that an undisputed material fact is that Mechenbier did not inspect the Mercer Property until a dike broke on the property in the summer of 2006. See BNSF Response ¶ 2, at 9 (citing Deposition of Mike Mechenbier Vol. I at 35:2-23 (taken April 19, 2011), filed October 22, 2012 (Doc. 87-6)(setting forth this fact)). The Hartford contends that this fact is immaterial, and, moreover, that BNSF Railway’s citations to the record do not support the fact. See Reply ¶ 2, at 2. Indeed, in his deposition, Mechenbier responds to the question, "[d]o you recall the earliest you went to in the property, the 60 acres, and observed or inspected, the earliest date” with “[i]t was probably after the dike broke.” Mechenbier Dep. at 35:4-7. Mechenbier does not elaborate as to what year he is referring. Moreover, the question appears to be ambiguous. It is unclear whether the question was directed at the first time Mechenbier ever inspected the Mercer Property, or at the first time he inspected the property in the summer of 2006. See Mechenbier Dep. at 35:14-25 (referring to a number of "big rains” during "that summer,” and not indicating whether any time periods outside of "that summer” were discussed during the deposition). Accordingly, the Court concludes that The Hartford controverts BNSF Railway’s statement that Mechenbier did not inspect the Mercer Property before the flooding in 2006, because The Hartford correctly notes that the portion of the record upon which BNSF Railway relies does not support this fact. Whether Mechenbier inspected the property for the first time ever after flooding in 2006 remains disputed.
.The Hartford states that BNSF constructed "piers” on the Mercer LLC property in 2006 as part of its reconstruction of the water diversion system. 2nd MSJ ¶ 5, at 4. See Gandy Dancer Response ¶ 3, at 4 (not disputing this fact). In support of this fact, The Hartford cites to its 1st MSJ, wherein it asserts the same fact, and cites to the BNSFJ Complaint ¶ 22, at 4. Indeed, in that paragraph, BNSF Railway asserts that it "worked to rehabilitate the diversion system ... constructing piers to control floodwaters to minimize the likelihood of additional breaches and flood damage.” BNSF Complaint ¶ 22, at 4. The Court adopted this fact as undisputed in the March 28 MOO. See March 28 MOO,
. BNSF Railway does not dispute this fact, but disputes the meaning of "residential structures,” and contends that the fact is immaterial, because the Gandy Dancer Policies do not limit The Hartford's coverage to "residential structures,” or mention that term in the Advertising and Personal Injury definition section. BNSF Response ¶ 8, at 7-8.
. The parties dispute whether the irrigation ditch, fence levees, and diversion system constitute “structures.” See 2nd MSJ ¶ 9, at 5 (asserting that only the irrigation ditch could be considered a "structure”); BNSF Response ¶ 9, at 8 (asserting that the irrigation ditch, fence, levees, and diversion system are "structures”).
. In its Complaint, The Hartford contends that Mercer LLC dropped all the allegations and claims asserted in Mercer LLC’s original counterclaim, and purported to assert claims for declaratory judgment and modification of the easement by estoppel in Mercer LLC’s amended counterclaim. See Hartford's Complaint ¶ 22, at 4. Mercer LLC “incorporates by referenced, [sic] each and every allegation, response, defenses [sic] and affirmative defense in it [sic] entirety, contained within its” original counterclaim. Mercer LLC's Answer to Amended Complaint for Declaratory Judgment and Injunctive Relief and Counterclaim ¶ l, at 1, filed September 15, 2008 (Doc. 1-2).