In a fight between insurers over how to pay an underlying personal injury claimant, Tokio Marine and Fire fought with U.S. Fire Insurance about exhaustion of primary and excess policies. The trial court ordered Tokio to reimburse U.S. Fire for its full $1 million policy limits. Tokio asserted that the trial court should have conducted a hearing on proportionate liability before entering an order to reimburse.
Tokio raised this argument for the first time on a motion for reconsideration in the trial court. U.S. Fire argued to the appellate court that Tokio waived the argument. The appellate court agreed with U.S. Fire and ruled the argument waived. The appellate court was persuaded because the evidence raised by Tokio on reconsideration was available at the time the parties briefed the original motion. “Trial courts should not allow litigants to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling.”