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8:11-cv-03167-TMC Date Filed 10/08/13 Entry Number 55 Page 1 of 3



C/A No. 8:11-3167-TMC


Nancy K. Wactor,



Jackson National Life
Insurance Company,





This matter is before the Court on Plaintiff Nancy K. Wactor’s Motion to Alter or Amend

Judgment pursuant to Fed.R.Civ.P. 59(e). (ECF No. 51). Defendant Jackson National filed a

response opposing the motion. (ECF No. 52). For the reasons set forth below, Wactor’s motion

is denied.

Rule 59(e) provides an “extraordinary remedy that should be used sparingly.” Pac. Ins.

Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (citations omitted). The Fourth

Circuit has articulated “three grounds for amending an earlier judgment: (1) to accommodate an

intervening change in controlling law; (2) to account for new evidence not available at trial; or

(3) to correct a clear error of law or prevent manifest injustice.” Id. (citations omitted). Rule

59(e) motions, however, may not be used to raise new arguments which could have been raised

prior to the issuance of the judgment or to argue a novel legal theory that the party could have

addressed earlier. Id.

In her motion, Wactor primarily contends that the court misconstrued her argument

8:11-cv-03167-TMC Date Filed 10/08/13 Entry Number 55 Page 2 of 3

regarding waiver. (ECF No. 51-1 at 1). Wactor contends that the evidence shows that over the


life of the insurance polices, Jackson National sent late notices 22 times and on those 22

occasions Decedent “apparently” received the notices. (ECF No. 51-1 at 2). She further

contends that Jackson National established a course of dealing on those 22 occasions of sending

a notice “and having [Decedent] receive the Notice . . . .” (ECF No. 51-1 at 3).


While a waiver may be implied and follow from a course of dealing or conduct, Wactor

has not established the requirements of waiver in regard to the receipt of the notices. A waiver

constitutes “a voluntary and intentional abandonment or relinquishment of a known right.”

Janasik v. Fairway Oaks Villas Horizontal Prop. Regime, 415 S.E.2d 384, 387 (S.C. 1992).

“Generally, the party claiming waiver must show that the party against whom waiver is asserted

possessed, at the time, actual or constructive knowledge of his rights or of all the material facts

upon which they depended.” Id. at 387-88.

First, there is no evidence as to how Jackson National sent the prior notices, i.e. that the

prior notices were sent with Jackson National requiring notice of their receipt. Second, there is

no evidence in the record that Decedent actually received the notices in the past; indeed Wactor

herself notes that Decedent “apparently” received the notices on 22 prior occasions. While the

court agrees that Jackson National may have established a course of dealing and waived its right

to cancel during the grace period by mailing the lapse notices, the intent to waive its right to


As to other issues, Wactor merely reasserts her earlier arguments and, in fact,

specifically relies on her earlier memorandum. (ECF No. 55-1 at 5). “Because of the interests
in finality and conservation of judicial resources, Rule 59(e) motions are not at the disposal of an
unsuccessful party to rehash the same arguments and facts previously presented.” Keyes v. Nat'l
R.R. Passenger Corp., 766 F.Supp. 277, 280 (E.D.Pa. 1991) (internal citation and quotations
omitted). Accordingly, the court will not address these issues.


Wactor also contends that once a course of dealing establishes a duty to provide notice,

Edens v. South Carolina Farm Bureau Mut. Ins., 208 S.E.2d 670 (S.C. 1983), becomes
relevant. (ECF No. 51-1 at 5). As in the prior order, the court finds Edens inapplicable when
there is no ambiguous provision in the insurance contract.


8:11-cv-03167-TMC Date Filed 10/08/13 Entry Number 55 Page 3 of 3

cancel based upon receipt cannot be established through Jackson National’s prior conduct. 3

After a careful review of the record, the court concludes that no legally sufficient basis

exists to alter or amend the court's July 10, 2013 Order. Plaintiff has failed to show any

intervening change in controlling law, offer any new evidence, or show clear error of law or

manifest injustice. Accordingly, Plaintiff’s Motion for Reconsideration is denied.


For the foregoing reasons, Plaintiff’s Motion for Reconsideration (ECF No. 51) is



Anderson, South Carolina
October 8, 2013

s/Timothy M. Cain
United States District Judge


In her reply to Defendant’s response to the motion to reconsider, Wactor for the first

time contends that Jackson National cannot rely on a computer log to establish that it mailed the
notices because the computer log is “flawed, suspect and erroneous.” (Id. at 3, 4). The court
need not address this new argument because Wactor cannot use a Rule 59(e) motion to raise new