The Travelers Indemnity Company of America v. Norguard Insurance Company

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
THE TRAVELERS INDEMNITY COMPANY OF
AMERICA,
Plaintiff,
-against-
NORGUARD INSURANCE COMPANY,
Defendant.
MEMORANDUM & ORDER
23-CV-7272 (NGG) (CHK)
NICHOLAS G. GARAUFIS, United States District Judge.
Before the court is an indemnification lawsuit brought by the
Travelers Indemnity Co. of America (''Travelers") against Nor-
GUARD Insurance Company ("NorGUARD"). Both parties have
filed motions asking the court to reconsider its order granting in
part Travelers's motion for summary judgment and denying in
full NorGUARD's motion for the same. (See Def.'s Mot. for Re-
cons. ("Defs Mot.") 	(Dkt. 41-1); Pl.'s Mot. for Recons. ("Pl.'s
Mot.") (Dkt. 42-1); Mem. & Order Granting in Part Travelers's
Mot. for Summ. J. & Denying NorGUARD's Mot. for Summ. J.
("Order") (Dkt. 40)). Because both parties fail to present an issue
previously before the court that it overlooked, their motions are
both DENIED.
I. 	BACKGROUND 1
In June 2025, both NorGUARD and Travelers filed cross-motions
for summary judgment. 	(Def.'s Mem. for Summ. J. 	("Def.'s
Summ. J. Mem.") (Dkt. 33-1); Pl.'s Mem. for Summ. J. ("Pl.'s
Summ. J. Mem.") (Dkt. 36).) NorGUARD argued that the case
was unripe. (Def.'s Mem. for Summ. J. at 6-8.) Even so, it also
1 The court assumes familiarity with the facts and procedural history lead-
ing up to its summary judgment order. For a more fulsome treatment of
that context, see Order at 1-3.
1
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argued that the insurance policy in dispute (the "NorGUARD Pol-
icy'') did not cover the underlying accident at issue: a workplace
incident injuring Andres Lopez. (Id. at 9-11.) Travelers argued
that the NorGUARD Policy did cover the accident. (Pl.'s Summ.
J. Mem. at 13-22.) It reasoned that NorGUARD must cover Trav-
elers's legal costs for Lopez's lawsuit seeking compensation for
his injuries (the "Underlying Lawsuit"). (See id.) By Travelers's
count, NorGUARD should be on the hook for all its defense costs
starting from September 13, 2021-the day it notified Nor-
GUARD that it intended to enforce the NorGUARD policy. (See
id. at 9; Def.'s Resp. in Opp. to Pl.'s Mot. for Summ. J. ("Def.'s
Opp.") (Dkt. 34) at 10.)
The court agreed with Travelers, but only in part. It concluded
that the NorGUARD Policy covers the accident, meaning that
NorGUARD must pay Travelers's defense costs in the Underlying
Lawsuit. (Order at 7-10.) But instead of rewarding those costs
from the day that Travelers notified NorGUARD of its intent to
enforce the policy-September 13, 2021-it did so from the day
that NorGUARD made the incorrect determination that the Nor-
GUARD Policy did not apply to Lopez's accident. (Order at 12
(citing M & M Realty of N. Y. v. Burlington Ins. Co., 170 A.D.3d
407, 408 (1st Dep't 2019); Colony Ins. Co. v. Merchs. Preferred
Ins. Co., No. 19-CV-4409 (ENV) (SJB), 2021 WL 12102078, at *8
(E.D.N.Y. June 20, 2021); Travelers Indem. Co. of Conn. v. Selec-
tive Fire and Cas. 	Co., 664 F. Supp. 3d 427, 437 	(S.D.N.Y.
2
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2023)).) The court explained that NorGUARD made that deter-
mination on August 25, 2022, when it denied Travelers's request
for coverage in writing. 2 (Id. at 12.)
Both parties now take issue with the court's order and have filed
cross-motions for reconsideration. (See Pl.'s Mot.; Def.'s Mot.)
The court addresses each in turn.
II. 	LEGAL STANDARD ON MOTION FOR
RECONSIDERATION
The standard for granting a motion for reconsideration is "strict."
Shraderv. CSXTransp., Inc., 70 F.3d 255,257 (2d Cir. 1995); see
Van Buskirk v. United Grp. of Cos., 935 F.3d 49, 54 (2d Cir. 2019)
("A motion for reconsideration is an extraordinary request that is
granted only in rare circumstances."). "[R]econsideration will
generally be denied unless the moving party can point to control-
ling decisions or data that the court overlooked-matters, in
other words, that might reasonably be expected to alter the con-
clusion reached by the court." Shrader, 70 F.3d at 257; see Virgin
Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d
Cir. 1992) (''The major grounds justifying reconsideration are an
intervening change of controlling law, the availability of new ev-
idence, or the need to correct a clear error or prevent manifest
injustice."). 3 Reconsideration "is not a vehicle for relitigating old
2 The court also concluded that, for Travelers to receive its award from
NorGUARD, it would need to "show its work" with respect to damages
(Order at 12.) Put otherwise, Travelers would need to justify its requested
reward amount with documentary evidence of its costs beyond a mere af-
fidavit attesting to the total amount owed. (Id. (citing Travelers Indem. Co.
of Conn. v. Selective Fire and Gas. Co., 664 F. Supp. 3d 427,437 (S.D.N.Y.
2023) .) Travelers, however, does not appear to challenge that portion of
the court's order. (See Pl.'s Mot.) Thus, the court addresses it no further in
this opinion.
3 When quoting cases, unless otherwise noted, all citations and internal
quotation marks are omitted, and all alterations are adopted.
3
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issues, presenting the case under new theories, securing a rehear-
ing on the merits, or otherwise taldng a 'second bite at the
apple."' Analytical Survs., Inc. v. Tonga Partners, 684 F.3d 36, 52
(2d Cir. 2012), as amended (July 13, 2012) (quoting Sequa Corp.
v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)).
III. DISCUSSION
NorGUARD and Travelers both present new legal theories to the
court that they did not discuss in their summary judgment brief-
ing. Thus, both their motions fail. See id.
A. 	NorGUARD's Motion
NorGUARD urges the court to "deny Travelers'[s] motion for
summary judgment on its indemnification claim."4 (Def.'s Mot.
at 1.) Principally, it thinks that the court "overlook[ed] a critical
distinction between two separate and independent obligations
imposed upon insurers: the duty to defend and the duty to in-
demnify." (Id.) The duty to defend, NorGUARD notes, is "broad"
and "exists irrespective of the ultimate merits of that action, pro-
vided there is a reasonable possibility of recovery on the part of
the insured." (Id. at 1-2 (citing One Reason Rd., LLC v. Seneca Ins.
Co., Inc., 163 A.D.3d 974, 976 (2d Dep't 2018).) By contrast,
NorGUARD states that the "far more limited" duty to indemnify
"arises only after liability has been established and only with re-
spect to losses within the scope of coverage." (Id. at 2 (citing
Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 310 (1984).)
4 Separately, NorGUARD "expressly reserves its right'' to challenge two
other portions of the court's order, namely (1) the court's denial of Nor-
GUARD's own motion for summary judgment and (2) its ruling regarding
"Travelers'[s] motion for summary judgment seeking defense costs." (Pl.'s
Mot. at 1 n. l.) Indeed, since filing its motion for reconsideration, Nor-
GUARD has filed a notice of appeal from the Order. (See Notice of Appeal
as to Order on Mot. for Summ. J. (Dkt. 44) .)
4
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Thus, under NorGUARD's theory, ''while the duty to defend at-
taches 	at the start of litigation based 	on the 	possibility of
coverage, the duty to indemnify attaches only upon a final deter-
mination of actual coverage." (Id.)
That distinction is meaningful, according to NorGUARD. 5 It
states that the court erred by relying on representations from the
Underlying Lawsuit's complaint, which concerned "maintenance
and control of the premises." (Id. at 3 (citing Order at 10).) Nor-
GUARD posits that those representations only meet the standard
to trigger a duty to defend, not a duty to indemnify. (Id.) To re-
fute 	the 	latter 	duty, 	NorGUARD 	claims 	that 	it 	presented
"substantial evidence refuting ... control of the premises when
the alleged accident occurred."6 (Id. at 3-4 (listing portions of the
summary judgment record and citing its Rule 56.1 statement).)
NorGUARD also contends that the court erred in determining
that the liability of Five Star Associates, the owner of the under-
lying property, 	"is immaterial." 	(Id. 	(quoting 	Order at 9).)
NorGUARD then cites cases discussing "additional insured" enti-
ties-like Five Star Associates here. (Def.'s Mot. at 4) It claims
that those cases "hold, depending on the policy language" that
coverage for additional insured parties "applies only when [they]
face[] vicarious liability for the named insured's negligence." (Id.
at 4-5 (collecting cases).)
5 To be sure, NorGUARD never actually explains what the duty to defend
requires. (See Pl.'s Mot. at 4.) The court, however, assumes that under Nor-
GUARD's 	theory 	the 	duty 	does 	not 	include 	indemnification,
notwithstanding that it declined to defend the Underlying Action itself.
(Order at 3 (citing Pl.'s R. 56.1 Stmt. 'l 37).)
6 NorGUARD then posits that the court erroneously "resolv[ed] the struc-
tural alterations exclusion at summary judgment." (Id. at 4.) It contends
again that the court improperly "cited cases addressing only the duty to
defend, which tum on the pleadings, not the duty to indemnify." (Id. at 4
(citing Order at 10-11).)
5
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Finally, NorGUARD disputes the court's conclusion that the Nor-
GUARD Policy provides primary coverage over the Travelers
Policy. (Id. at 5.) It states that the court "failed to conduct" an
adequate comparison of the NorGUARD Policy and Travelers's
own insurance policy's (the "Travelers Policy'') clauses cognizing
"other insurance" policies. (Id.) NorGUARD claims that the two
policies' clauses "are irreconcilable" and therefore "cancel each
other out." (Id.) Thus, it concludes that "defense and indemnity
must be apportioned pro rata." (Id. (citing Peerless Ins. Co. v. Tech.
Ins. Co., Inc., 392 F. Supp. 3d 313, 319 (E.D.N.Y. 2019), affd,
829 F. App'x 549 (2d Cir. 2020) (summary order)).)
NorGUARD misapprehends the standard for reconsideration.
Time and time again, courts in this district have explained that
"a party may not merely offer the same arguments that were pre-
viously submitted to the court when seeking reconsideration."
E.g., E. Coast. Res. v. Town of Hempstead, 707 F. Supp. 2d 401,
413 (E.D.N.Y. 2010); Lennon v. Suffolk Transp. Serv., Inc., No. 14-
CV-4999 (LDW) (ARL), 2015 WL 6985477, at *1 (E.D.N.Y. Nov.
6, 2015); Smith v. 	Cnty. 	of Nassau, No. 	10-CV-4874 (MKB)
(ETB), 2013 WL 3863918, at *2 (E.D.N.Y. July 24, 2013); Lynch
v. 	Southampton Animal Shelter Found., Inc., No. 10-CV-2917
(ADS) (ETB), 2013 WL 1563468, at *1 (E.D.N.Y. Apr. 12, 2013);
Richards v. N. Shore Long Island Jewish Health Sys., No. 10-CV-
4544 (LDW) (ETB), 2013 WL 950625 at *1 (E.D.N.Y. Mar. 12,
2013).
NorGUARD already raised its purported distinction between the
duty to defend and to indemnify in its opening and reply briefs
in support of summary judgment. (See Def.'s Summ. J. Mem. at
5-6; Def.'s Reply in Further Supp. for Summ. J. ("Def.'s Summ. J.
Reply'') (Dkt. 35) at 1-2.) It did so to buttress its theory that Trav-
elers's claims are unripe. (See id.) But the court readily rejected
that argument. (See Order at 7.) Thus, it cannot raise the same
6
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again on reconsideration. See Town of Hempstead, 707 F. Supp.
2d at 413.
Still, it seems that NorGUARD has repackaged its ripeness argu-
ment 	into 	a 	theory 	that 	Travelers 	has 	failed 	to 	establish
NorGUARD's duty to indemnify at all. (Def.'s Mot. at 3.) Even
assuming the court considered this reframing to be a distinct ar-
gument, "[a] party may not assert ... a new legal theory on a
motion for reconsideration." Yany's Garden LLC v. City of New
York, No. 18-CV-2813 (EK) (RML), 2020 WL 5231983, at *4
(E.D.N.Y. Sept. 2, 2020) (citingAnaortical Survs., 684 F.3d at 52;
see Gold v. Deutsche AG, 365 F.3d 144, 149 n.4 (2d Cir. 2004));
Ayyaz v. Thaler, No. 19-CV-1412 (LTS) (SN), 2022 WL 837058,
at *3 (S.D.N.Y. Mar. 21, 2022) (collecting cases from both the
Southern and Eastern Districts of New York).
NorGUARD's 	remaining 	arguments 	similarly fail. 	It 	already
raised its vicarious-liability argument in its reply brief supporting
its summary judgment motion. (Def.'s Summ. J. Reply at 6-7.)
And although the court did not expressly discuss that argument
in detail, "there is no requirement for a court to specifically ad-
dress each and every argument raised by a party" in its summary
judgment briefings. Bertuzzi v. Copiague Union Free Sch. Dist., No.
17-CV-4256 (JS) (ARL), 2023 WL 6211002, at *5 (E.D.N.Y. Sept.
25, 2023) (quoting Miller v. Metro. Life Ins. Co., No. 17-CV-7284
(AT) 	(SN), 2018 WL 5993477, at *5 n.5 (S.D.N.Y. Nov. 15,
2018)). So too for NorGUARD's argument that the "other insur-
ance" clauses "cancel each other out." (Def.'s Mot. at 5.) That
argument also largely repeats the same one that is in Nor-
GUARD's reply brief. (See Def.'s Summ. J. Reply at 9-10.) Thus,
NorGUARD impermissibly "offer[s] the same arguments" that it
did on summary judgment. See Town of Hempstead, 707 F. Supp.
2d at 413.
At core, NorGUARD seeks a mere "second bite at the apple"
through its motion for reconsideration. See Analytical Survs., 684
7
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F.3d at 52 (quoting Sequa Corp., 156 F.3d at 144). Thus, the
court denies its motion.
B. 	Travelers's Motion
Travelers asks the court to reconsider its ruling obliging Nor-
GUARD to reimburse Travelers for defense costs only after
NorGUARD tendered its refusal to cover Travelers. (Pl.'s Mot. at
5.) Travelers instead contends that it is entitled to reimbursement
from the date that it first requested indemnification. (Id. at 1.)
There are two reasons why, according to Travelers. First, it claims
that the court overlooked material facts which demonstrate that
"under the circumstances of this case," departure is warranted
from the general rule that provides reimbursement only from the
date that the insurer refuses coverage. (Pl.'s Mot. at 2 (citing Nat'l
Union Fire Ins. Co. of Pittsburgh v. Greenwich Ins. Co., 103 A.D.3d
473, 474 (1st Dep't 2013).) Travelers surmises that the "circum-
stances" of National Union-a case obliging payment from the
date of notice- ''base [d] the right of reimbursement on common
law breach of the covenant to defend." (Id. at 4.) Travelers, how-
ever, does not base its claim here on such a breach. (Id. (basing
its claim instead on the "theory of equitable contribution").)
Thus, it concludes that "National Union's framework for entitle-
ment of reimbursement of defense 	costs is 	thus limited to
National Union." (Id.)
Second, Travelers broadly claims that "a liability insurer who
breached the duty to defend generally will be liable for defense
costs from the time that the duty ... was triggered." (Id. at 4-5
(collecting cases).) That trigger, according to Travelers, is "the
date of tender" by the insured of a request for indemnification.
(Id. at 5 (collecting cases).)
Travelers, like NorGUARD, misapplies the standard for reconsid-
eration. It cites no portion of its summary judgment briefing
making the arguments that it currently presents on reconsidera-
tion. 	(See id. 	at 4-5.) 	Indeed, as the court explained in its
8
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s/Nicholas G. Garaufis
summary judgment order, Travelers's own citation to a portion
of National Union supports the courts position that it should only
receive costs "after the carrier's refusal" to defend it. (See Order
at 12 n.10 (citing Def.'s Opp. at 18).) Thus, Travelers cannot now
raise "a new legal theory on a motion for reconsideration." See
Yany's Garden, 2020 WL 5231983, at *4 (citing Analytical Survs.,
684 F.3d at 52; Gold, 365 F.3d at 149 n.4). The court therefore
declines to consider Travelers's arguments any further and denies
its motion for reconsideration. 7
IV. CONCLUSION
In sum, the court DENIES NorGUARD's and Travelers's motions
for reconsideration.
SO ORDERED.
Dated: 	Brooklyn, New York
December .f/., 2025
NICHOLAS G. GARAUFIS
United States District Judg~
7 Similarly, Travelers filed a "Letter for Request for Judicial Notice" that
discussed The Travelers Indem. Co. v. Hudson Excess Ins. Co., 24-CV-7582
(JSR), 2025 WL 3241188 (S.D.N.Y. Nov. 20, 2025). (Letter for Request for
Judicial Notice by Travelers (Dkt. 46) .) In that letter, Travelers notes that
the Hudson Excess court "reject[ed] Hudson's argument that Travelers was
entitled to recover defense costs incurred only as of the date Hudson dis-
claimed coverage." (Id. (citing Hudson Excess Ins., 2025 WL 3241188, at
*4-5) .) This unpublished case from a neighboring district court, however,
is not "an intervening change of controlling law." See Virgin Atl. Airways,
Ltd. v. Nat1 Mediation Bd ., 956 F.2d 1245, 1255 (2d Cir. 1992) (emphasis
added). Thus, as the controlling law has not changed, the motion for re-
consideration is denied.
9
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