ANTAMEX INTERNATIONAL, INC. and OLDCASTLE BUILDINGENVELOPE, INC., Plaintiffs, v. ZURICH AMERICAN INSURANCE COMPANY and ZURICH INSURANCE COMPANY, Defendants Civil No. 20-15232 (JHR/AMD) United States District Court, D. New Jersey Filed November 09, 2022 Counsel Benjamin Alex Garber, David L. Braverman, Braverman Kaskey PC, Philadelphia, PA, for Plaintiffs. Steven Cantarutti, David Matthew Farkouh, Coughlin Midlige & Garland LLP, Morristown, NJ, for Defendants Zurich American Insurance Company. David Matthew Farkouh, Coughlin Midlige & Garland LLP, Morristown, NJ, for Zurich Insurance Company. Donio, Ann Marie, United States Magistrate Judge ORDER [D.I. 77] *1 Presently before the Court is a motion [D.I. 77] filed by Plaintiffs, Antamex International, Inc. and Oldcastle BuildingEnvelope, Inc., seeking reconsideration of this Court's Order dated August 1, 2022. Defendants, Zurich American Insurance Company (hereinafter, “ZAIC”) and Zurich Insurance Company Ltd. (hereinafter, “ZIC”), filed opposition to the motion. (See Defs.’ Mem. of Law in Opp. to Pls.’ Mot. for Reconsideration of the Court's Aug. 1, 2022 Order (hereinafter, “Defs.’ Br.”) [D.I. 78].) The Court has considered the arguments of the parties and decides this matter pursuant to Federal Rule of Civil Procedure 78(b). For the reasons that follow and for good cause shown, Plaintiffs’ motion for reconsideration is denied. The background of this case is set forth in the Court's Order dated August 1, 2022 and is incorporated herein by reference. (Order [D.I. 72], Aug. 1, 2022, pp. 2-4.) Generally, this is an insurance coverage dispute in which Plaintiffs allege that Defendants wrongfully denied coverage and failed to defend and indemnify Antamex in an underlying litigation concerning a construction project. (Id. at p. 2.) Plaintiffs aver that in connection with the construction project, Antamex obtained an insurance policy from ZIC in which ZIC agreed to pay “ ‘all sums which the Insured shall become obligated to pay as damages by reason of the liability imposed by law upon the Insured or assumed by the Insured under an Insured Contract.’ ” (Id. at p. 3)(quoting Second Am. Compl. [D.I. 14], p. 5, ¶ 23.) Plaintiffs also aver that Antamex obtained an insurance policy with ZAIC which provided that ZAIC would “ ‘pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies” and that ZAIC would “ ‘have the right and duty to defend the insured against any ‘suit’ seeking those damages.’ ” (Id. at pp. 3-4)(quoting Second Am. Compl. [D.I. 14], p. 7, ¶ 35.) Relevant to the present motion are the following allegations in the Second Amended Complaint, in which Plaintiffs collectively refer to Defendants as “Zurich.” (See Second Am. Compl. [D.I. 14], p. 1.) Count I of the Second Amended Complaint is a claim by Antamex against Zurich for breach of contract. Plaintiffs allege that “Antamex is a party and an insured under the Policies[,]” that “Antamex performed by paying the premiums when due[,]” and that “Zurich has breached the Policies by denying coverage and failing to defend and indemnify Antamex.” (Id. at p. 12.) Count II of the Second Amended Complaint is a claim by Antamex against Zurich for insurance bad faith. Plaintiffs allege in connection with this count that “[n]o fairly debatable reasons exist for Zurich's denials of coverage and failure to defend and indemnify Antamex and hold it harmless” and that “[i]n denying its insureds’ claims for coverage, Zurich knew or should have known that there was no reasonable basis to deny the claims, but its failure to adequately investigate shows Zurich's bad faith and recklessness.” (Id. at pp. 12-13.) In Count III, Plaintiffs assert a claim by Antamex against Zurich for breach of the implied covenant of good faith and fair dealing. Specifically, Plaintiffs aver that “[a]t all material times, Zurich owed Antamex the duty of good faith and fair dealing” and that “[b]y denying coverage without a reasonable basis, Zurich breached the implied covenant of good faith and fair dealing.” (Id. at p. 13.) *2 In the prior motion to compel, Plaintiffs sought production of a producer agreement between ZIC and non-party Hunter, Kielty, Muntz & Beatty (hereinafter, “Hunter Kielty”), the producer company associated with the ZIC insurance policies. (Order [D.I. 72], Aug. 1, 2022, p. 4.) Plaintiffs argued that pursuant to a subcontract between Antamex and Tutor Perini Building Corporation (hereinafter, “Tutor Perini”), the general contractor of the underlying construction project, Antamex added Tutor Perini as an additional insured to its policies carried by ZIC, as purportedly evidenced by a certificate of insurance issued by Hunter Kielty. (Id.) Although Tutor Perini purportedly made claims to ZIC as an additional insured in connection with the underlying litigation, Plaintiffs asserted in their brief that ZAIC refused to indemnify Tutor Perini and ZIC refused to consider Tutor Perini's claim, which thereby required Antamex to indemnify Tutor Perini in the underlying litigation. (Id. at p. 5.) Plaintiffs sought the producer agreement to determine whether Hunter Kielty had authority to bind Defendants to provide additional insured coverage to Tutor Perini. (Id.) The Court concluded that the producer agreement is not relevant to the claims asserted in the Second Amended Complaint. Specifically, the Court concluded that “Hunter Kielty's authority to bind ZIC to provide coverage to Tutor Perini as an additional insured is not relevant to the contractual indemnification issues here” because “the issue of whether coverage should have been provided to Tutor Perini as an additional insured is separate and distinct from the claims asserted in the Second Amended Complaint[.]” (Id. at p. 8.) The Court, consequently, denied the motion to compel. (Id. at p. 22.) Plaintiffs now move for reconsideration of the August 1, 2022 Order on the basis that this Court, in ruling on the motion to compel, purportedly made a dispositive ruling effectively granting “summary judgment against plaintiffs on all issues related to the Perini claim.” (Pls.’ Mem. of Law in Supp. of Mot. For Reconsideration (hereinafter, “Pls.’ Br.”) [D.I. 77-1], p. 7.) Plaintiffs assert that Antamex is the real party in interest with respect to the Tutor Perini claim because the insurance policies at issue were purchased by Antamex, Antamex indemnified Tutor Perini in the underlying litigation, and thus Tutor Perini's claims are purportedly subsumed within Antamex's claims. (Id. at pp. 7-8.) Plaintiffs contend that “[i]t is clear from a review of the Second Amended Complaint that the Perini claim is relevant to all three causes of action.” (Id. at p. 8.) Plaintiffs argue that the producer agreement between ZIC and Hunter Kielty is thus “an integral piece of plaintiff's claims and damages[,]” and they ask the Court to vacate the August 1, 2022 Order to the extent the Court found that the producer agreement is not relevant to the claims in this case. (Id. at pp. 2, 9.) In opposition, Defendants argue that the Court correctly concluded that the Second Amended Complaint does not assert an additional insured claim and the Court therefore properly denied the motion to compel on relevance grounds. (Defs.’ Br. at p. 5.) Defendants note that Tutor Perini is not a party to this action, nor did Plaintiffs plead allegations that they are pursuing coverage on Tutor Perini's behalf. (Id. at p. 8.) Defendants contend that the Court's ruling was correctly based on the plain language of the allegations in the Second Amended Complaint. (Id. at p. 12.) Defendants note that the Court did not issue a dispositive ruling but instead made a determination of relevance in connection with a non-dispositive motion. (Id. at p. 10.) Finally, Defendants challenge Plaintiffs’ assertion that Plaintiffs are the real party in interest to Tutor Perini, arguing that Plaintiffs cannot attempt to assert a claim on behalf of Tutor Perini when discovery is closed and dispositive motion practice is forthcoming. (Id. at pp. 12-13.) Local Civil Rule 7.1(i) provides that a party moving for reconsideration must set forth “concisely the matter or controlling decisions which the party believes” the Court “overlooked” in its prior decision. L. CIV. R. 7.1(i). Moreover, “a party seeking reconsideration must satisfy a high burden, and must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence not available previously; or (3) the need to correct a clear error of law or prevent manifest injustice.” Altana Pharma AG v. Teva Pharm. USA, Inc., No. 04-2355, 2009 WL 5818836, at *1 (D.N.J. Dec. 1, 2009) (citing Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). “Motions for reconsideration are granted sparingly and only when dispositive factual matters or controlling decisions of law were brought to the court's attention but not considered.” O.O.C. Apparel, Inc. v. Ross Stores, Inc., No. 04-6409, 2007 WL 869551, at *2 (D.N.J. March 20, 2007) (internal citations omitted). A motion for reconsideration does “ ‘not provide the parties with an opportunity for a second bite at the apple[,]’ ” Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 532 (D.N.J. 1998)(quoting In re Christie, 222 B.R. 64, 66 (Bankr. D.N.J. 1998)), nor is the motion “a vehicle to re-litigate old matters or argue new matters that could have been raised before the court made its original decision.” Manning v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 12-4466, 2013 WL 2285955, at *2 (D.N.J. May 23, 2013) (citing P. Schoenfeld Asset Mgmt., LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001); Tischio, 16 F. Supp. 2d at 532). A motion for reconsideration “shall be served and filed within 14 days after the entry of the order or judgment on the original motion by the Judge or Magistrate Judge.” L. CIV. R. 7.1(i). *3 The Court first addresses Plaintiffs’ argument that the Court exceeded its authority under 28 U.S.C. § 636(b)(1) when deciding the motion to compel. Federal Rule of Civil Procedure 26(b)(1) defines the scope of discovery and provides, in relevant part, that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” FED. R. CIV. P. 26(b)(1). Therefore, when documents are withheld in discovery on relevance grounds, the Court must evaluate the nature of the claims in the complaint and consider whether the requested discovery falls within the scope of such claims. In deciding the prior motion to compel here, the Court did not render a dispositive ruling, but rather described the nature of the causes of action contained in the Second Amended Complaint when concluding that the requested discovery is not relevant under Rule 26(b)(1) because the discovery sought did not relate to the claims in this case. Accordingly, to the extent Plaintiffs ask that the August 1, 2022 Order be vacated on the basis that the Court issued a dispositive ruling, the motion for reconsideration is denied.[1] Turning to Plaintiffs’ other arguments, the Court notes that Plaintiffs do not specify upon which ground they seek reconsideration, but it appears they seek reconsideration “to correct a clear error of law or prevent manifest injustice.” Altana Pharma AG, 2009 WL 5818836, at *1. In this regard, Plaintiffs ask that the Court vacate the August 1, 2022 Order because it “effectively prohibits plaintiffs from suing ZIC for the costs Antamex incurred in defending and indemnifying Perini” in the underlying litigation. (Pls.’ Br. at p. 7.) In the August 1, 2022 Order, the Court did not conclude that Plaintiffs are prohibited from seeking to recover the costs incurred by Antamex in defending and indemnifying Tutor Perini in the underlying litigation. Indeed, the Court expressly noted in the August 1, 2022 Order that Defendants assert claims for “failure to provide coverage to Plaintiffs for their indemnification costs.” (Order [D.I. 72], Aug. 1, 2022, pp. 7-8.) However, Plaintiffs’ efforts to recover indemnification costs as Plaintiffs’ covered damages in the Defendants’ policies is distinct from attempting to recover costs by way of asserting the claims of Tutor Perini as an additional insured.[2] The Court found that the Second Amended Complaint is devoid of allegations concerning Defendants’ purported wrongful failure to provide coverage to Tutor Perini as an additional insured. *4 Plaintiffs provide no argument in the present motion to demonstrate that this finding was erroneous. Plaintiffs point to facts that purportedly demonstrate that the claims in this case involve Defendants’ failure to provide additional insured coverage to Tutor Perini, but none of these assertions are contained in the Second Amended Complaint. For example, in their brief Plaintiffs allege that “Perini made claims to ZIC for indemnification under Antamex's policies pursuant to a certificate of insurance issued by [Hunter Kielty] that named Perini as an additional insured.” (Pls.’ Br. at p. 4.) Plaintiffs further argue that “ZIC never considered Perini's claim or made any coverage decisions related thereto eve[n] though Perini was an insured under the ZIC [policy] as evidenced by the certificate of insurance.” (Id. at p. 5.) Similarly, in their brief, Plaintiffs contend that “ZIC's wholesale failure to even consider the Perini claim constitutes a breach of the duty of good faith because it was not in line with the parties’ reasonable expectations and, indeed, is patently unreasonable under any set of facts.” (Id. at p. 9.) However, these assertions are not in the Second Amended Complaint. Although Plaintiffs allege in the Second Amended Complaint that Tutor Perini filed a third-party complaint against Antamex, that Antamex agreed to indemnify Tutor Perini, and that Tutor Perini was named an additional insured under Antamex's policies, Plaintiffs do not aver in the Second Amended Complaint that Tutor Perini made a claim as an additional insured in connection with the underlying litigation, let alone that such claim was wrongfully denied. (See Second Am. Compl. [D.I. 14] at pp. 8, 10, ¶¶ 49, 64.)[3] Plaintiffs cannot amend their pleadings through a brief. See Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (noting that “[i]t is one thing to set forth theories in a brief; it is quite another to make proper allegations in a complaint” and that a complaint may not be amended by briefs). In summary, Plaintiffs fail to demonstrate that reconsideration is warranted to prevent manifest injustice, correct a clear error of law, or for any other reason. Each of the claims in this case, as set forth in the Second Amended Complaint, relate to Defendants’ failure to provide coverage to Antamex, not Defendants’ failure to provide additional insured coverage to Tutor Perini. (See Second Am. Compl. [D.I. 14], pp. 12-13, ¶¶ 83, 86, 90, 92.) As the Court previously noted in the August 1, 2022 Order, “[n]oticeably absent from the Second Amended Complaint is any claim for ZIC's failure to consider Perini's claim as an additional insured.” (Order [D.I. 72], Aug. 1, 2022, p. 7.) Plaintiffs fail to demonstrate that the Second Amended Complaint contains a claim by Antamex as the real party in interest for Defendants’ failure to provide additional insured coverage to Tutor Perini. Consequently, Defendants’ treatment of Tutor Perini's additional insured claim is not at issue in this case, and the producer agreement between ZIC and Hunter Kielty therefore is not relevant to Defendants’ alleged wrongful denial of Antamex's claims for coverage as alleged in the Second Amended Complaint. Plaintiffs’ motion for reconsideration, accordingly, is denied. CONSEQUENTLY, for the reasons set forth above and for good cause shown: IT IS on this 9th day of November 2022, ORDERED that Plaintiffs’ motion [D.I. 77] for reconsideration of the August 1, 2022 Order shall be, and is hereby, DENIED. Footnotes [1] In so finding, the Court notes Plaintiffs’ citation to Internet Products LLC v. LLJ Enterprises, No. 18-15421, 2020 U.S. Dist. LEXIS 174763, at *8 (D.N.J. Sept. 14, 2020), for the proposition that it is improper for this Court to issue a decision that contains “dispositive elements.” (See Pls.’ Br. at p. 7.) However, the decision in Internet Products does not support the proposition for which it is cited. Rather, in Internet Products, where the plaintiff appealed this Court's decision on a motion to amend, the District Court noted that the standard of review on appeal was de novo because the Order disposed of a proposed claim and therefore contained “dispositive elements.” Id. at *8. Notably, the District Court did not hold that this Court exceeded its authority in deciding the motion to amend – even though the decision contained “dispositive elements” - but rather affirmed this Court's ruling. Id. at *16. [2] As noted above, the insurance policy with ZIC provided that “ ‘Zurich agrees to pay on behalf of the Insured all sums which the Insured shall become obligated to pay as damages by reason of the liability imposed by law upon the Insured or assumed by the Insured under an Insured Contract.’ ” (Second Am. Compl. [D.I. 14], p. 5, ¶ 23.) The insurance policy with ZAIC provided that “ ‘We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. We will have the right and duty to defend the insured against any ‘suit’ seeking those damages.’ ” (Id. at p. 7, ¶ 35.) [3] Citing Paragraph 49 of the Second Amended Complaint, Plaintiffs assert that “[i]n light of ZAIC's refusal to indemnify Perini and ZIC's refusal to even consider Perini's claim, Antamex was forced to defend and indemnify Perini.” (Pls.’ Br. at p. 5.) Paragraph 49 states: In the Underlying Action, Perini filed a Third-Party Complaint against Antamex, among others. See Dkt. #52, at Civil Action No. 1:14-cv-01703-RBK-AMD. Antamex agreed to indemnify Perini pursuant to its subcontract with Perini. (Second Am. Compl. [D.I. 14], p. 8, ¶ 49.) Thus, Paragraph 49 notes only that Antamex agreed to indemnify Tutor Perini.