Case 6:09-cv-00853-DNH-TWD Document 452 Filed 02/28/18 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
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`UTICA MUTUAL INSURANCE COMPANY,
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`Plaintiff,
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`-v-
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`6:09-CV-853
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`FIREMAN'S FUND INSURANCE COMPANY,
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`Defendant.
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`OF COUNSEL:
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`WILLIAM M. SNEED, ESQ.
`THOMAS D. CUNNINGHAM, ESQ.
`DANIEL R. THIES, ESQ.
`
`JOHN B. WILLIAMS, ESQ.
`MARY A. LOPATTO, ESQ.
`
`APPEARANCES:
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`SIDLEY AUSTIN LLP
`Attorneys for Plaintiff
`One South Dearborn Street
`Chicago, IL 60603
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`WILLIAMS LOPATTO PLLC
`Attorneys for Defendant
`1707 L Street NW
`Suite 550
`Washington, DC 20036
`
`DAVID N. HURD
`United States District Judge
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`MEMORANDUM-DECISION and ORDER
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`I. INTRODUCTION
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`A jury trial was held between November 27, 2017, and December 13, 2017, at the
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`conclusion of which the jury returned a verdict in favor of plaintiff Utica Mutual Insurance
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`Company ("Utica" or "plaintiff") on its sole claim for breach of contract.1 The jury awarded
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`plaintiff $35 million in damages plus interest running from September 22, 2008. Prejudgment
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`interest was calculated at $29,092,191.78 and judgment entered in favor of Utica for
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`$64,092,191.78.
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`Defendant Fireman's Fund Insurance Company ("FFIC" or "defendant") now renews
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`its motion for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil
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`Procedure ("Rule __") or, in the alternative, for a new trial pursuant to Rule 59. FFIC also
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`separately moves to correct the interest calculation in the judgment pursuant to Rule 60. The
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`motions were fully briefed and have been considered on the basis of the submissions.
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`II. RELEVANT BACKGROUND
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`The parties' familiarity with the underlying facts established at trial is assumed.2 This
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`case has a lengthy history which all are familiar with, including years of discovery, multiple
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`rounds of motion practice, and a jury trial spanning nearly three weeks.
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`III. LEGAL STANDARDS
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`A. Rules 50 and 59
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`Rule 50(a)(1) permits a court to render judgment as a matter of law and vacate a jury's
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`verdict if it finds that "a reasonable jury would not have a legally sufficient evidentiary basis"
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`to reach its conclusion. The standard is well settled:
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`Judgment as a matter of law may not properly be granted under
`Rule 50 unless the evidence, viewed in the light most favorable to
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`1 The verdict was rendered on December 13, 2017 and the jury was dismissed. Proceedings
`continued through December 14, 2017, when defendant's counterclaims seeking rescission were dismissed
`as a matter of law.
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`2 The official transcript is not yet ready, but the parties are both in possession of an unofficial
`transcript.
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`the opposing party, is insufficient to permit a reasonable juror to
`find in [its] favor. In deciding such a motion, the court must give
`deference to all credibility determinations and reasonable
`inferences of the jury, and it may not itself weigh the credibility of
`witnesses or consider the weight of the evidence.
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`Galdieri–Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998) (internal
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`citations omitted).
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`The standard for post-verdict judgment as a matter of law is the same as that for
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`summary judgment under Rule 56. Nadel v. Isaksson, 321 F.3d 266, 272 (2d Cir. 2003).
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`Thus, "a district court must deny a motion for judgment as a matter of law unless . . . there
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`can be but one conclusion as to the verdict that reasonable persons could have reached."
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`Id. (internal quotations omitted). The proponent of a motion for judgment as a matter of law
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`under Rule 50(b) faces a "high bar," Lavin-McEleney v. Marist College, 239 F.3d 476, 479
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`(2d Cir. 2001), and the Second Circuit has cautioned that motions for judgment as a matter
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`of law "should be granted cautiously and sparingly," Meloff v. N.Y. Life Ins. Co., 240 F.3d
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`138, 145 (2d Cir. 2001).
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`The moving party must also fulfill the procedural prerequisite of moving for judgment
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`as a matter of law before the case is submitted to the jury. See Fed. R. Civ. P. 50(a)(2). And
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`a party may only make a post-judgment Rule 50(b) motion based on grounds specifically
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`raised at the close of evidence. Lambert v. Genesee Hosp., 10 F.3d 46, 53-54 (2d Cir.
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`1993). If the movant does not meet the Rule 50 specificity requirement, the court may not
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`grant judgment as a matter of law unless the result is required "to prevent manifest injustice."
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`Lore v. City of Syracuse, 670 F.3d 127, 153 (2d Cir. 2012). A "manifest injustice" exists only
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`when "a jury's verdict is wholly without legal support." Jacques v. DiMarzio, Inc., 386 F.3d
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`192, 199 (2d Cir. 2004) (superseded by statute on other grounds).
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`The standard under Rule 59, which permits a court to "grant a new trial on all or some
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`of the issues," see Fed. R. Civ. P. 59(a)(1), is less stringent, Manley v. AmBase Corp., 337
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`F.3d 237, 244 (2d Cir. 2003). "[I]n deciding a motion for a new trial, the district court is
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`permitted to examine the evidence through its own eyes . . . [and] can grant such a motion
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`even if there is substantial evidence supporting the jury's verdict." Green v. City of New York,
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`359 F. App'x 197, 199 (2d Cir. 2009) (summary order) (internal quotations and citations
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`omitted).
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`Nevertheless, "'[a] motion for a new trial ordinarily should not be granted unless the
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`trial court is convinced that the jury has reached a seriously erroneous result or that the
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`verdict is a miscarriage of justice.'" Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 51 (2d
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`Cir. 2012) (quoting Medforms, Inc. v. Healthcare Mgmt. Sols., Inc., 290 F.3d 98, 106 (2d Cir.
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`2002)). Though a trial judge is free to weigh the evidence himself, the court should only
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`grant a Rule 59 motion when the jury's verdict is "egregious" and "should rarely disturb a
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`jury's evaluation of a witness's credibility." Ferreira v. City of Binghamton, No. 3:13-CV-107,
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`2017 WL 4286626, at *2 (N.D.N.Y. Sept. 27, 2017) (McAvoy, S.J.) (internal quotations
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`omitted).
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`B. Rule 60
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`Rule 60(a) provides in relevant part: "(a) Corrections Based on Clerical Mistakes;
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`Oversights and Omissions. The court may correct a clerical mistake or a mistake arising
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`from oversight or omission whenever one is found in a judgment, order, or other part of the
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`record." Prejudgment interest is frequently the subject of Rule 60(a) motions in this Circuit.
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`See Roberts v. Bennaceur, 658 F. App'x 611, 621 n.9 (2d Cir. 2016) (summary order). "[A]
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`Rule 60(a) motion is appropriate where the judgment has failed accurately to reflect the
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`actual decision of the decision maker." Robert Lewis Rosen Assocs., Ltd. v. Webb, 473 F.3d
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`498, 504 (2d Cir. 2007) (internal quotations omitted).
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`IV. DISCUSSION
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`A. Motion under Rule 50
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`FFIC renews its motion for judgment as a matter of law pursuant to Rule 50(b). It
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`argues it is entitled to judgment as a matter of law under Rule 50 both because Utica failed to
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`present legally sufficient proof that there was a breach of contract and because FFIC proved
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`its late notice defense as a matter of law.
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`Defendant raises three bases on which it claims the evidence was lacking and
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`consequently require the granting of its Rule 50 motion for judgment as a matter of law.
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`First, FFIC argues that the reinsurance certificates do not cover the loss at issue. Second,
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`the follow the settlements doctrine does not apply. Third, notice was late and FFIC was
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`economically prejudiced or Utica's failure to implement routine procedures constituted gross
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`negligence or recklessness.
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`Utica opposes and contends the presence or absence of aggregate limits in the
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`primary policies and the therefore subsequent question of whether the reinsurance
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`certificates cover the loss at issue is irrelevant to the instant inquiry and it was not required to
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`prove such at trial. Instead, the evidence was sufficient for a jury to conclude that its
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`settlement decisions were objectively reasonable and that FFIC failed to meet its burden on
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`its late notice defense.
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`Plaintiff is correct in that it was not required to prove by a preponderance of the
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`evidence that the primary policies contained aggregate limits for bodily injury in order for the
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`follow the settlements clause to apply and obligate FFIC to pay under the reinsurance
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`certificates. Instead, the follow the settlements clause applied unless FFIC could show that
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`Utica's settlement decisions were objectively unreasonable. The jury was instructed to
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`decide whether Utica's decision to settle with Goulds on the basis that its 1966 through 1972
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`primary policies contained aggregate limits was among the objectively reasonable options
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`available to Utica. Therefore, FFIC's continued claim that there was no coverage in the first
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`place—that the primary policies either lacked aggregate limits and thus did not trigger the
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`umbrella policies whatsoever, or in the alternative, that if the primary policies included such
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`limits, the reinsurance certificates did not provide coverage based on the umbrella
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`declarations—will not be entertained here.
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`1. Follow the Settlements
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`The jury was asked the following question regarding the first element of Utica's breach
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`of contract claim: "Did plaintiff Utica Mutual Insurance Company prove by a preponderance
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`of the evidence that it did what it was obligated to do under the 1966 through 1972
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`reinsurance certificates?" Although there was not a specific jury question asking such, by
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`answering in the affirmative that Utica did what it was obligated to do under those policies,
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`the jury made an implicit finding that Utica's settlement decisions regarding the Goulds
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`settlement were objectively reasonable, or stated another way, that FFIC did not prove that
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`Utica's settlement decisions were objectively unreasonable. Accordingly, the follow the
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`settlements provision would apply.
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`The jury then went on to address and answer in the affirmative that defendant failed to
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`do what it was required to do under the policies and thus breached the contracts and caused
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`damage to plaintiff. Accordingly, the inquiry under Rule 50(b) now is whether there was
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`sufficient evidence for a reasonable jury to conclude that Utica's settlement decisions were
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`objectively reasonable, the finding which resulted in FFIC's obligation to follow the
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`settlements.
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`Utica presented extensive evidence that its settlement decisions were reasonable, and
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`while FFIC also presented extensive evidence refuting that position, it cannot be said that a
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`reasonable jury did not have a legally sufficient evidentiary basis on which to render a verdict
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`for plaintiff. Defendant cannot meet the high standard required to set aside the jury verdict
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`under Rule 50.
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` It is noted at the outset that neither party had a witness with personal knowledge of
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`the primary policies. Plaintiff presented the following evidence in support of its position that
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`its settlement with Goulds was objectively reasonable. First, Utica General Counsel Bernard
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`Turi testified that Utica engaged in a "full blown effort" to try to find copies of the missing
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`1966 to 1972 primary policies: Utica extensively searched its own records, gathered records
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`from Goulds, spoke with the brokers that placed the coverage, examined comparable polices
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`and insurance certificates, and retained outside counsel to determine the terms and scope of
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`the missing policies.
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`California coverage counsel for Utica, Ron Robinson, testified about the "virtual policy
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`project" he completed in order to reconstruct the missing policies. The "virtual policy project"
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`was based upon state filings, underwriting drafts, certificates of insurance, and other
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`secondary evidence respecting the missing policies. Plaintiff presented evidence that
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`Goulds' summaries of its own insurance program from the 1966 to 1972 period showed
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`aggregate limits for products liability. Two of the primary policies from that time period
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`showed an aggregate limit. Utica argued that in the absence of evidence that Goulds
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`intended to change its insurance program, this "book end" proof provided evidence to Utica
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`that the intervening policies had the same limits.
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`Further, Kristen Martin, the Utica attorney with day-to-day responsibility for the
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`underlying Goulds litigation testified that the gathered evidence clearly established that the
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`missing primary polices contained aggregate limits and that Utica never wavered from that
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`position. In sum, the results of Utica's investigation, Mr. Robinson's virtual policy project, and
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`the final advice from Utica's outside counsel all confirmed to Utica that the 1966 to 1972
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`primary polices contained aggregate limits. Dennis Connolly, one of plaintiff's experts,
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`opined that aggregate limits were standard in the 1960s and 70s and confirmed the
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`reasonableness of Utica's position on same. Plaintiff also introduced evidence that Brian
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`Gagan, one of FFIC's prior experts in the underlying litigation, agreed with that position.
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`Considering this and other evidence together, a reasonable jury could have concluded
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`that Utica had a sufficient basis on which to reach the conclusion that the Goulds primary
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`polices contained aggregate limits and thus make the settlement decisions that it did.
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`Further in support of the jury's verdict was testimony and documentary evidence from Utica
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`witnesses that the settlement itself was the result of arms-length negotiations: the settlement
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`negotiations began in 2004, two years before the final settlement agreement; Utica and
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`Goulds held lengthy mediation discussions; in a stipulated order, the overseeing judges
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`found that the settlement was "fair, just and reasonable" and had been "entered at arms
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`length and in good faith by the parties."
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`In sum, the jury had ample evidence from which it could conclude that Utica acted
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`objectively reasonable in its decision to settle with Goulds for $325 million on the basis that
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`the primary policies contained aggregate limits for bodily injury. Therefore, there was
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`sufficient evidence to conclude that the follow the settlements doctrine applied and FFIC was
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`obligated to pay under the reinsurance certificates.
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`While FFIC also put forth ample evidence refuting Utica's contention that it acted
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`reasonably, the evidence was not such that there could have been only a verdict in
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`defendant's favor. Regarding the umbrella declarations which FFIC relied heavily on to
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`support the position that the primary policies lacked aggregate limits and thus Utica was not
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`reasonable in settling on the basis that there were such limits, the pages themselves nor the
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`testimony supporting this position required the jury to find that Utica's determination of the
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`primary policy terms was unreasonable. Even if the jury interpreted the umbrella policies as
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`evidence that the primary policies lacked aggregate limits, that evidence did not automatically
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`render Utica's evidence insufficient to permit a reasonable juror to find in Utica's favor,
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`particularly when now considering the evidence in the light most favorable to Utica, the
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`opposing party on the instant motion.
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`For example, the jury was free to credit Utica witnesses Ms. Martin and Michael
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`Schultz's position that they would not rely on the schedule of underlying insurance in an
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`umbrella policy as a definitive source of the primary policy's terms. Further, there was
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`nothing in the umbrella policies themselves which required that the primary policy aggregate
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`limits be set forth on the declarations page of the umbrella policies. Mr. Turi testified that the
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`declarations pages listed only the limits for basic general liability coverage, not the limits
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`applicable to the separate products coverage.
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`Finally, with respect to the reinsurance considerations, as explained in the prior
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`summary judgment ruling, the fact that a particular settlement decision may have reinsurance
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`implications does not alone render the decision improper. In fact, caselaw supports the
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`position that the cedent is permitted to choose the allocation most favorable to it when faced
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`with multiple reasonable allocations. See U.S. Fidelity & Guar. Co. v. Am. Re-Ins. Co., 20
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`N.Y.3d 407, 421 (2013). In any event, Ms. Martin testified that she would not have done
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`anything differently even if there were no reinsurance coverage, and Utica's position has
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`remained that it was unaware of the FFIC reinsurance at the time it settled with Goulds.
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`There was sufficient evidence from which a jury could conclude that Utica's knowledge of
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`reinsurance did not render its settlement unreasonable.
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`For the foregoing reasons, a reasonable jury could have concluded that Utica's
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`settlement decisions were objectively reasonable and thus the follow the settlements doctrine
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`applied. It cannot be said that a reasonable jury would not have a legally sufficient
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`evidentiary basis to reach a verdict for plaintiff. FFIC's Rule 50 motion for judgment as a
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`matter of law on this basis will be denied.
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`2. Late Notice Defense
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`The jury was asked the following question regarding FFIC's late notice defense: "Did
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`Fireman's Fund Insurance Company prove by a preponderance of the evidence that it
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`received late notice from Utica Mutual Insurance Company and that such late notice either
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`materially breached the reinsurance certificates or caused it demonstrable prejudice?" To
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`have prevailed on this defense, FFIC must have proven both late notice and either material
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`breach or demonstrable prejudice. A reasonable jury could have found that FFIC failed to
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`carry its burden; a jury could have found that FFIC failed to show demonstrable prejudice and
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`that it failed to show material breach. Because there was sufficient evidence for a jury to
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`conclude FFIC failed to prove either, there is no need to consider the late notice prong.
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`Without a finding of demonstrable prejudice or material breach, FFIC could not sustain its
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`burden on its late notice defense.
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`The jury was instructed that FFIC must demonstrate actual prejudice, not merely
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`speculative or hypothetical prejudice. Prejudice is tangible economic injury and
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`demonstrable prejudice means that specific, tangible economic injury is shown to have
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`resulted from the late notice, as opposed to a claim of speculative or hypothetical injury.
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`FFIC argued it suffered tangible economic injury from the late notice in the form of lost
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`commutations.
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`A reasonable jury could have concluded that FFIC failed to carry its burden to prove
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`tangible economic injury. FFIC presented no witness involved in any of FFIC's actual
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`negotiations with its commuting reinsurers. FFIC employee Jeffrey Svestka testified
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`regarding FFIC's commutation prejudice chart, which was a summary of FFIC's alleged
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`prejudice.
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`A reasonable jury could have afforded Mr. Svestka's testimony little or no weight.
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`From his testimony, Utica attorneys submitted that he did not take into account the following:
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`any affirmative defenses that FFIC was asserting to the billing; the amount of losses that
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`Utica had paid as of 1996 or any other time; any objections to payment by FFIC's reinsurers;
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`the fact that 5 of the 13 reinsurers were insolvent at the time of their commutations; and
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`whether notice was in fact due in 1996. By contrast, plaintiff put forth evidence that as of
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`1996 it had paid only about $100,000 over the past 10 years and, at the same rate, it would
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`have taken over 10,000 years to reach FFIC's reinsurance layer. Considering this testimony,
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`a jury could have found Mr. Svestka's assumption that FFIC was faced with a full limits loss
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`in 1996 not credible.
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`A reasonable jury could have also rejected FFIC's position that it would have factored
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`the Goulds claims into its commutation negotiations if it had received earlier notice. Mr.
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`Svestka testified that in 8 of the 13 commutations, FFIC attributed zero dollars in liability for
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`commutation of the $90 million in limits that FFIC had written as a direct insurer of Goulds.
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`While FFIC disputes the applicability of that evidence, a jury could have found that there was
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`no reason to believe FFIC would have treated the Utica reinsurance claim any differently
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`than a direct insurance claim. Further, Utica evidence showed that even after FFIC received
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`formal notice of the Utica (Goulds) reinsurance claim in July 2008, FFIC failed to take it into
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`account in two subsequent commutations. Considering this evidence, a reasonable jury
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`could have concluded that FFIC failed to show that it suffered tangible economic injury from
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`any late notice.
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`Moreover, a jury could have also found that defendant failed to show that plaintiff
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`acted with gross negligence or recklessness in providing notice. The jury was instructed that
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`to find that Utica's failure to implement routine practices and controls to ensure notification to
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`its reinsurers such as FFIC constitutes gross negligence or recklessness, the jury must find
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`that Utica willfully disregarded the risk to its reinsurers by doing so. FFIC had to show more
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`than an inadvertent lapse in routine notification procedures or even mere negligence.
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`Instead, it had to show a failure to implement such procedures such that Utica willfully
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`disregarded the risk to reinsurers and is guilty of gross negligence.
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`Utica employees testified that in the 1980s, Utica used a daily report and a monthly
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`report to inform a search for applicable reinsurance and to report such claims to reinsurers.
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`Mr. Turi testified that Utica's policy was to follow the notice provisions in the relevant
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`reinsurance contracts and that he would circulate memos and meet with the attorneys who
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`were handling claims to ensure that timely notice to reinsurers was a priority. Utica witness
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`Paul Thomson testified that such a procedure is what one would expect to see within a
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`company. Former Utica Director of Financial Reporting Daniel O'Connell testified regarding
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`Utica's reinsurer reporting processes, explaining the processes were manual but effective.
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`By contrast, the bulk of FFIC's evidence centered around Utica's specific document
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`retention policies and the fact that the primary policies were never located. Utica's document
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`retention policy was 11 years, which met the industry standard. Testimony established that
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`missing or incomplete contract files from the 1960s and 1970s was not out of the ordinary for
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`insurers dealing with these types of liability claims in the 1990s and 2000s. Utica put forth
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`evidence that with respect to Goulds itself, three of its five direct insurers lacked complete
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`contract files when coverage was being litigated.
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`Plaintiff also put forth evidence that it provided early notice to over a dozen facultative
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`reinsurers that Utica was aware of before notice was due. This evidence considered
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`together formed a sufficient basis for a jury to conclude that Utica had implemented routine
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`practices and controls to ensure notification to reinsurers which worked in the majority of
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`cases, and to the extent those practices did not work in the FFIC matter, such failure did not
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`constitute bad faith, gross negligence, or recklessness.
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`For all of the foregoing reasons, a reasonable jury could have concluded that FFIC
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`failed to sustain its burden to prove its late notice defense. Accordingly, FFIC's Rule 50
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`motion for judgment as a matter of law on this basis will be denied.
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`3. Proof of Loss
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`With respect to FFIC's final contention that Utica failed, as a matter of law, to establish
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`that its claim accrued on September 22, 2008, any such argument is waived because FFIC
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`did not raise the proof of loss issue in its Rule 50(a) trial motion. However, the proof of loss
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`issue will be considered under the Rule 59 standard for a new trial.
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`B. Alternative Motion under Rule 59
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`FFIC moves in the alternative for a new trial under Rule 59 on the same grounds as its
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`Rule 50 motion. Even considering the evidence under the less stringent standard of Rule 59,
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`FFIC has failed to meet its burden to be granted a new trial for the same reasons considered
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`under Rule 50. The jury's decision here, as it does in most cases, turned on a question of
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`whose story and whose witnesses to believe and whose evidence was more compelling,
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`Utica's or FFIC's. The jury apparently assigned more weight to Utica's witnesses or evidence
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`and it cannot be said that the jury's conclusions on the follow the settlements or the late
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`notice defense were either seriously erroneous or a miscarriage of justice. Considering the
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`admissible evidence, the jury's verdict was not egregious or against the weight of the
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`evidence. The jury's evaluations in resolving the credibility of witnesses and other fact
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`finding duties will not be disturbed in this case.
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`As for the additional argument that the evidence was insufficient regarding the proof of
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`loss issue, FFIC has not shown that, based on the evidence adduced at trial, the verdict is
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`against the weight of the evidence, seriously erroneous, or a miscarriage of justice. The jury
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`was instructed that under the reinsurance certificates, FFIC was obligated to pay "promptly
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`following receipt of proof of loss." A proof of loss is any document or documents which
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`provide sufficient information for the reinsurer to intelligently form some estimate of its rights
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`and liabilities, and it need not contain detailed information. See SR Int'l Bus. Ins. Co. v.
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`World Trade Ctr. Properties, LLC, 381 F. Supp. 2d 250, 259-60 (S.D.N.Y. 2005).
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`The record contained sufficient evidence to allow the jury to determine that Utica
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`provided a sufficient proof of loss as of September 22, 2008, when it delivered a claims
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`narrative and billings to FFIC. FFIC employee Gary Ibello testified that the materials Utica
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`sent on September 22, 2008 were a standard format in the industry for a proof of loss.
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`Plaintiff also put forth evidence that FFIC had direct knowledge of the details of the Goulds
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`asbestos claims because it insured Goulds directly and was involved in the same Goulds
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`coverage lawsuit as plaintiff. Based on Mr. Ibello's and Christy Bresson's (the FFIC
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`employee who handled the Utica reinsurance claim) testimony, the jury could have
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`concluded that FFIC had sufficient information as of September 22, 2008, intelligently to form
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`some estimate of its rights and liabilities. The verdict was thus not against the weight of the
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`evidence.
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`Therefore, FFIC's alternative Rule 59 motion for a new trial will be denied.
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`C. Motion under Rule 60
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`FFIC also moves to correct the judgment under Rule 60(a) and requests correction of
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`a manifest clerical error in the calculation of interest reflected in the judgment. Specifically, it
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`contends the interest should be reduced from the current $29,092,191.78 to $27,637,815
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`based on New York Civil Practice Law and Rule section 5001.
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`Defendant asserts that the error resulted from the incorrect assumption that the entire
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`amount owed under the reinsurance certificates ($35 million) became payable on September
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`22, 2008, the date of Utica's initial billing. Instead, plaintiff's initial bill was only for
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`$16,794,738.15, and it sent six additional billings to FFIC over the following 21 months for
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`the remaining balance of the $35 million. Therefore, because Utica issued its billings over
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`time and did not bill the entire amount on September 22, 2008, defendant contends interest
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`Case 6:09-cv-00853-DNH-TWD Document 452 Filed 02/28/18 Page 16 of 17
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`began to accrue only from the date of each subsequent billing. FFIC argues that under New
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`York law, prejudgment interest runs from the date of breach, and it could not have breached
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`until performance was due, i.e., the date each demand for payment was made. It contends
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`that such a recalculation is merely a mathematical and clerical one.
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`The motion is procedurally improper because such a revision would be substantive
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`rather than clerical and is thus not the sort of recalculation appropriate under Rule 60(a). A
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`revision to the interest calculation here would require a finding of fact regarding the
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`(additional) dates from which the interest would run. Those facts are properly ones for a jury
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`to decide, and they did so when they chose September 22, 2008 as the date Utica provided
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`sufficient proof of loss.
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`Accordingly, FFIC's motion to correct the interest calculation in the judgment pursuant
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`to Rule 60 will be denied.
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`V. CONCLUSION
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`For all of the foregoing reasons, defendant's renewed motion for judgment as a matter
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`of law or for a new trial will in all respects be denied. Defendant's motion to correct the
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`interest reflected in the judgment will also be denied.
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`Therefore, it is
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`ORDERED that
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`1. Defendant Fireman's Fund Insurance Company's motion for judgment as a matter
`
`of law pursuant to Fed. R. Civ. P. 50 or, in the alternative, for a new trial pursuant to Fed. R.
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`Civ. P. 59 is DENIED; and
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`2. Defendant Fireman's Fund Insurance Company's motion to correct the interest
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`calculation in the judgment pursuant to Fed. R. Civ. P. 60 is DENIED.
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`Case 6:09-cv-00853-DNH-TWD Document 452 Filed 02/28/18 Page 17 of 17
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`IT IS SO ORDERED.
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`Dated: February 28, 2018
` Utica, New York.
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