                Case: 13-14052      Date Filed: 06/16/2014      Page: 1 of 4


                                                                     [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-14052
                              ________________________

                          D.C. Docket No. 2:11-cv-01183-AKK


NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY,
                                                   Plaintiff-Counter Defendant-Appellee,

                                            versus


GUSTER LAW FIRM, LLC,
                                                                      Defendant-Appellant,

GUSTER PROPERTIES, LLP,
                                                             Counter Claimant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________
                                   (June 16, 2014)

Before MARCUS and ANDERSON, Circuit Judges, and GOLDBERG,* Judge.



___________________
*Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
              Case: 13-14052     Date Filed: 06/16/2014    Page: 2 of 4


PER CURIAM:

      This case was initiated by the Insurance Company’s declaratory judgment

complaint seeking a judgment declaring that it was not liable for the fire loss that

occurred to a building owned by Guster Properties, LLP (“Properties”). The

Insurance Company moved for summary judgment, arguing, inter alia, that the

insured on the policy, Guster Law Firm, LLC (“Law Firm”), had no insurable

interest. See Ala. Code § 27-14-4. The Law Firm and Properties jointly

counterclaimed for, inter alia, reformation of the policy on the basis of mutual

mistake. See Ala. Code § 8-1-2. The Insurance Company moved for summary

judgment on both the insurable interest issue and the reformation issue. The

district court granted summary judgment in favor of the Insurance Company on

both issues. The Law Firm and Properties moved for reconsideration pursuant to

Fed. R. Civ. P. 59(e), which the district court denied. The Law Firm and

Properties (collectively “Appellants”) appeal, challenging the district court’s ruling

on both issues. We address each in turn. We affirm.

                            I. INSURABLE INTEREST

      In response to the Insurance Company’s motion for summary judgment,

Appellants made only two arguments to support the Law Firm’s claim of insurable

interest: (1) that the Law Firm’s intention to occupy the building once renovations

were complete was a sufficient expectation of pecuniary benefit to constitute an


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insurable interest under Alabama law; and (2) that the relationship of the two

entities – i.e., the fact that the owner of the real estate, Properties, and the insured,

the Law Firm, were each owned by Eric Guster – gave the Law Firm an insurable

interest in the building.

      We reject both arguments for the reasons set out in the district court’s

opinion, Doc. 54, Part IV.C.2, at pages 30-34. We also reject Appellants’

arguments, raised for the first time in Appellants’ Rule 59(e) motion, to the effect

that the Law Firm actually paid for some renovations to the building and for some

arguably covered furnishings. Well-established law of this Circuit provides that

neither the district court nor the court of appeals is obliged to consider arguments

“‘previously available, but not pressed,’” at the summary judgment stage.

Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957-58 (11th Cir. 2009) (quoting

Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (per curiam)); see also

Resolution Trust Corp. v. Dunmar Corp, 43 F.3d 587, 599 (11th Cir. 1995) (en

banc) (“There is no burden upon the district court to distill every potential

argument that could be made based upon the materials before it on summary

judgment.”); Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler

Corp., 10 F.3d 1563, 1568 (11th Cir. 1994). We are not persuaded that manifest

justice warrants excusing the waiver in this case.

                                 II. REFORMATION
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      For the reasons set out in the district court’s opinion, Part IV.C.1, at pages

26-30, we reject Appellants’ arguments on appeal that the district court erred in

refusing to reform the policy. We agree with the district court that the mistake was

unilateral. We also note that Appellants failed to prove another required element

of the reformation claim. Appellants failed to prove that the parties had a meeting

of the minds at the time of the contract on the version of the contract which

Appellants now urge – i.e., that both parties agreed that Properties would be the

named insured or that both parties agreed that it did not matter who owned the

property. “Reformation is not available to make a new agreement.” Highlands

Underwriters Ins. Co. v. Elegante Inns, 361 So. 2d 1060, 1064 (Ala. 1978); see

also Federated Guar. Life Ins. Co. v. Painter, 360 So. 2d 309, 311 (Ala. 1978).

                                III. CONCLUSION

      For the foregoing reasons, the judgment of the district court is

      AFFIRMED.




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