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CAPITAL LTD, et al.,

CIVIL ACTION NO. 5:15-cv-12542




The Court has reviewed Underwriters and HCCs Motion for Clarification or
Reconsideration (Document 117).1 In the motion, Underwriters and HCC ask the Court to clarify
or reconsider the Memorandum Opinion and Order (Document 99) entered on May 5, 2016, which
granted in part and denied in part Third-Party Defendant All Risks LTDs (All Risks) motion to
dismiss. Specifically, they object to the following sentence from the Courts opinion:
Because All Risks was the broker and agent for the insurer in the transactions
leading to the issuance of the policies in this case, under West Virginia law, All
Risks may only be held liable for breach of contract if HCCs actions created an
erroneous reasonable expectation of coverage for Old White.
They provide a litany of support from the parties discovery to argue that All Risks was not, in
fact, a broker or agent for either HCC or Underwriters, and request that the Court clarify, for
purposes of the record, the relationship between All Risks and HCC.

For reasons that will be set forth below, the Court has not reviewed the attachments to this motion, which include
documents obtained in discovery.

After careful consideration, the Court finds that no clarification or reconsideration of the
Memorandum Opinion and Order is necessary. In finding that certain claims against All Risks
must be dismissed, while permitting other claims against All Risks to proceed, the Court did not
make findings of fact. Rather, the Court reviewed the sufficiency of the allegations set forth by
the Defendant, Old White Charities, Inc. (Old White), in its Third-Party Complaint (Document
14) against All Risks under the appropriate standard for a motion to dismiss filed pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, which requires the Court to accept the Plaintiffs
allegations as true.

See Erikson v. Pardus, 551 U.S. 89, 93 (2007).

In the Third-Party

Complaint, Old White specifically alleged that [a]t all times complained of herein, HCC and All
Risks were acting as agents, servants, underwriters, and/or joint venturers, for and on behalf of
the Plaintiffs in this litigation. (Third-Party Compl., at 6.) The Court was required to accept this
allegation as true in determining whether Old White sufficiently alleged a claim for breach of
contract against All Risks.
Underwriters and HCCs concern that the Orders statement could be misconstrued as
resolving an issue is, therefore, unfounded, and this motion should be denied. HCC, along with
all other parties in this case, retains the right to file for summary judgment on any issue which was
raised in any pleading, without fear of contradicting any factual findings of this Court.2 Further,
it would be highly inappropriate at this juncture for the Court to review, or issue any findings based
on, information obtained by any party in discovery, as no party has filed a motion for summary

2 However, the Court does note that in the relevant section of the Memorandum Opinion and Order, the Court
inadvertently referred to HCC instead of All Risks in stating that All Risks may only be held liable for breach of
contract if HCCs actions created an erroneous reasonable expectation of coverage for Old White. This statement
was not at all dispositive of All Risks claim, and did not prejudice All Risks or HCC in any way, as the correct
language would have yielded an identical result.

judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Just as the Court cannot
consider evidence extrinsic to a complaint in analyzing a motion to dismiss, such evidence cannot
be considered in analyzing a motion to reconsider an opinion denying a motion to dismiss.
Therefore, in the interests of fairness, the Court has not, and will not, review the discovery
materials attached to the motion.
Wherefore, after careful consideration, the Court ORDERS that Underwriters and HCCs
Motion for Clarification or Reconsideration (Document 117) be DENIED. The Court further
ORDERS that the attachments thereto (Documents 117-1 through 117-10) be STRICKEN
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.

June 10, 2016