Full opinion text
MEMORANDUM OPINION AND ORDER JAMES 0. BROWNING, District Judge. THIS MATTER comes before the Court on The Hartford Fire Insurance Company’s Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage and Memorandum in Support, filed September 27, 2012 (Doc. 83)(“2nd MSJ”). The Court held a hearing on January 7, 2013. The primary issue is whether the “Personal and Advertising Injury” provision of the insurance policies that Plaintiff and Counterdefendant The Hartford Fire Insurance Company issued to Defendant Gandy Dancer, LLC is ambiguous, or covers Defendant Roy D. Mercer LLC’s allegations of trespass and nuisance in the underlying state court action. The Court determines that the terms “premises,” “person,” and “occupy” are ambiguous, and the Court must construe these terms against The Hartford as the drafter of the policies. The Court will construe the 2nd MSJ as a motion to reconsider its previous holding that the term “owner, landlord or lessor” does not exclude coverage for Defendant BNSF Railway Company and Gandy Dancer, and the Court will reconsider its previous holding in the Memorandum Opinion and Order, filed March 28, 2012 (Doc. 74), 864 F.Supp.2d 1157 (D.N.M.2012) (“March 28 MOO”) in part. The Court will not reconsider whether BNSF Railway has an ownership interest in the property at issue within the term of the policies, because The Hartford fails to notify the Court of a change in the facts or controlling law which counsel it to reconsider its holding that BNSF Railway has an ownership interest. On the other hand, the Court reconsiders whether Mercer LLC’s allegations of trespass and nuisance allege a wrongful eviction, entry, or invasion of right of private occupancy committed by or on behalf of BNSF Railway, and the Court concludes that the policies do not cover Mercer LLC’s trespass claim. The Court also concludes that Mercer LLC’s allegations of nuisance are potentially within policies’ scope of coverage for a personal and advertising injury, and the Court does not change its previous holding that the allegations of nuisance trigger The Hartford’s duty to defend. Accordingly, the 2nd MSJ is granted in part and denied in part. FACTUAL BACKGROUND This ease involves the construction of a water diversion system in 2006, over which litigation is taking place in state court. The Hartford seeks a declaratory judgment that the facts alleged in the underlying state litigation do not give rise to insurance coverage under the policies it issued. Many of the material facts are undisputed. The Hartford issued a policy of business liability to Defendant Gandy Dancer, LLC titled “Policy Number 21 UUN QZ5048,” with effective dates from August 8, 2005, through August 8, 2006. 2nd MSJ ¶ 1, at 2 (citing Commercial General Liability Coverage Form, filed September 27, 2012 (Doc. 83)(“05-06 Gandy Dancer Policy”))(setting forth this fact). The Hartford also asserts that it issued a business liability insurance policy to Gandy Dancer titled “Policy Number 21 UUN QZ5048,” with policy dates of August 8, 2006, through August 8, 2007. 2nd MSJ ¶ 2, at 2 (citing Commercial General Liability Coverage Form, filed September 27, 2012 (Doc. 83)(“06-07 Gandy Dancer Policy”))(setting forth this fact). The Policies provide for Personal and Advertising Injury Liability for enumerated offenses defined in the Policies. See 2nd MSJ ¶ 3, at 2 (citing 05-06 Gandy Dancer Policy at 15; 06-07 Gandy Dancer Policy at 19 (collectively, “the Gandy Dancer Policies”))(setting forth this fact); BNSF Railway Company’s Response Brief in Opposition to the Hartford Fire Insurance Company’s Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage ¶ 3 at 5, filed October 22, 2012 (Doc. 87)(“BNSF Response”). The Gandy Dancer Policies define a “Personal and Advertising Injury” as: injury, including consequential “bodily injury” arising out of one or more of the following offenses: a.False arrest, detention or imprisonment; b. Malicious prosecution; c. The wrongful eviction from, wrongful entry into, or invasion of the right to private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; d. Oral, written or electronic publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; e. Oral, written or electronic publication of material that violates a person’s right of privacy; f. Copying, in your “advertisement”, a person’s or organization’s “advertising idea” or style of “advertisement”; g. Infringement of copyright, slogan, or title of any literary or artistic work, in your “advertisement”; or h. Discrimination or humiliation that results in injury to the feelings or reputation of a natural person. 2nd MSJ ¶ 3, at 2-3 (citing 05-06 Policy at 5; 06-07 Policy at 5)(setting forth this fact). Gandy Dancer is the named insured on the Gandy Dancer Policies, and The Hartford has assumed, at least for the purpose of The Hartford Fire Insurance Company’s Motion for Summary Judgment Declaring that the Terms of the Policy Issued to Gandy Dancer do not Provide Coverage for Roy D. Mercer LLC’s Claims Against BNSF and Gandy Dancer, filed June 10, 2011 (Doc. 37), that BNSF Railway qualifies as an additional insured. See March 28 MOO, 864 F.Supp.2d at 1162. The underlying action in this case is BNSF Railway’s complaint against Mercer LLC, pending in the Seventh Judicial District Court, County of Socorro, for the State of New Mexico. See 2nd MSJ ¶ 4, at 3 (setting forth this fact); BNSF Railway Company’s Response Brief in Opposition to the Hartford Fire Insurance Company’s Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage ¶ 4 at 5, filed October 22, 2012 (Doc. 87)(“BNSF Response”)(not disputing this fact); Defendant Gandy Dancer’s Response in Opposition to The Hartford Fire Insurance Company’s Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage ¶ 3, at 4, filed October 22, 2012 (Doc. 88)(“Gandy Dancer Response”)(not disputing this fact). BNSF Railway Company owns an easement on the property belonging to Mercer, LLC in Socorro, granting BNSF Railway the right to “use the natural material as it may desire for the construction of ditches, dikes, spoil banks, and other necessary facilities and structures to protect the railroad from floodwaters of the nearby Brown Arroyo.” 2nd MSJ ¶ 4, at 3-4 (citing Verified Complaint for Injunctive Relief, Declaratory Judgment, Negligence and Nuisance ¶ 8, at 2 filed in state court June 3, 2008, filed in federal court June 10, 2011 (Doc. 37-l)(“BNSF Complaint”)(setting forth this fact)); Gandy Dancer Response ¶ 3, at 4 (not disputing this fact). BNSF’s Easement, executed September 23, 1936 by the Rio Grande Conservancy District, filed October 22, 2012 (Doc. 87-4), also gives it the right of ingress and egress upon the above described tracts or parcels of land for the purpose of excavating, constructing and maintaining said ditch, dykes and spoil banks and shall be held harmless on account of any damages sustained to the land or crops hereafter grown thereon on account of said improvements. Easement at 2. See BNSF Response ¶ 6, at 6 (setting forth this fact); The Hartford Fire Insurance Company’s Reply in Favor of its Motion for Summary Judgment Regarding Personal and Advertising Injury Coverage at 2, filed November 9, 2012 (Doc. 93)(“Reply”)(not disputing this fact). BNSF Railway has continually “maintained and rehabilitated a system of levees and a water diversion system on the Mercer Property.” BNSF Response ¶ 7, at 7 (citing Stone Aff.)(setting forth this fact); Stone Aff. ¶ 19, at 7 (“BNSF’s records reflect that the railroad has consistently performed work to protect the railroad tracks from damaging floodwaters from Matanza Arroyo since at least 1924.”); Reply at 2 (not disputing this fact). When Mike Mechenbier, the Director and sole member of Mercer LLC acquired the Mercer Property, the property contained a berm. BNSF Response ¶ 2, at 9 (citing Mechenbier Aff. ¶ 4, at 2)(setting forth this fact); Michael Mechenbier’s Response to Plaintiff/CounterDefendant The Hartford Fire Insurance Company’s First Requests for Admissions to Michael Mechenbier ¶ 3 at 2, filed September 27, 2012 (Doc. 83)(“Mercer Admissions”)(setting forth this fact); Reply ¶ 2, at 2. At times, the berm has been substantially larger than at the time Mechenbier purchased the Mercer Property. See BNSF Response ¶ 2, at 9 (citing Mechenbier Aff. ¶ 4, at 2 (stating that, when Mechenbier acquired the Mercer Property, a berm between one-and-a-half and two feet high was on the land); Stone Aff. ¶¶ 9-15, at 4-6)(setting forth this fact). Mercer LLC intended to use the property for agricultural purposes, such as grazing cattle. See 2nd MSJ ¶ 7, at 4 (citing Mercer Admissions ¶¶ 3-5, at 2 (“Mercer admits that as of August 2006, the Mercer property was intended for agricultural uses, including grazing.”))(setting forth this fact); BNSF Response ¶¶ 7, 1 at 7, 8-9 (not disputing that Mercer LLC “intended to and was preparing to use the property for agricultural and grazing purposes”); Gandy Dancer Response ¶ 4, at 4 (not disputing that the Mercer Property was intended for agricultural purposes, such as grazing cattle). No natural persons lived on the Mercer Property in 2006. See 2nd MSJ ¶ 7, at 4 (citing Mercer Admissions ¶¶ 3-5, at 2)(setting forth this fact); BNSF Response ¶ 7, at 6 (not disputing this fact); Gandy Dancer Response ¶ 4, at 4 (not disputing this fact). Around late July to early August 2006, after a year of severe flooding in the Brown Arroyo, BNSF Railroad hired Gandy Dancer to reconstruct its water diversion system by clearing vegetation, building up the levees, and expanding the diversion channel to control floodwaters to minimize the likelihood of additional breaches and flood damage. See 2nd MSJ ¶ 5, at 4 (citing 1st MSJ ¶ 5, at 3)(setting forth this fact); BNSF Response ¶ 5, at 6 (not disputing that, “after extraordinary flooding in Socorro County in August of 2006,” BNSF Railway and Gandy Dancer rehabilitated the water diversion system through “clearing vegetation and rebuilding levees and ditches”); Gandy Dancer Response ¶ 3, at 4 (not disputing this fact). Some of BNSF Railway and Gandy Dancer’s work was performed on the Mercer Property. See BNSF Response ¶ 5, at 6 (citing Amended Complaint for Declaratory Judgment and Injunctive Relief ¶ 23, at 5, filed in state court August 22, 2008, filed in federal court June 10, 2011 (Doc. 37-2)(“Amended BNSF Complaint”)); Reply at 2 (not disputing this fact). At the time Gandy Dancer performed the work on Mercer Property, the property had no buildings or residential structures, and currently does not have buildings or residential structures. See 2nd MSJ ¶ 8, at 5 (citing Mercer Admissions ¶¶ 6, 7 at 2-3)(setting forth this fact); BNSF Response ¶ 8, at 7-8 (not disputing this fact). Other than an irrigation ditch, a fence, the levees, and the diversion system, Mercer Property did not contain any buildings which could be considered “structures.” 2nd MSJ ¶ 9, at 5 (citing Mercer Admissions ¶¶ 8, 9, at 3)(setting forth that, in August 2006, the Mercer Property did not contain any structures “other than possibly the presence of an irrigation ditch”); BNSF Response ¶ 9, at 8 (not disputing that the irrigation ditch may have “constituted a structure”). Employees of Mercer LLC indicated that they might alter or destroy some of Gandy Dancer’s work, which prompted BNSF Railway to file the BNSF Complaint. See 2nd MSJ ¶ 6, at 4 (setting forth this fact); BNSF Response ¶ 6, at 6 (not disputing this fact); Gandy Dancer Response ¶ 3, at 4 (not disputing this fact). In response to the BNSF Complaint, Mercer LLC counterclaimed for trespass, negligence, negligent misrepresentation, misrepresentation, nuisance, unjust enrichment, and prima facie tort. See 2nd MSJ ¶ 6, at 4 (citing 1st MSJ ¶ 8, at 4; Answer to Verified Complaint for Injunctive Relief, Declaratory Judgment, Negligence and Nuisance and Counterclaim, filed in state court July 8, .2008, filed in federal court February 6, 2010 (Doc. l-l)(“Mercer LLC Answer”))(setting forth this fact); BNSF Response ¶ 6, at 6 (not disputing this fact); Gandy Dancer Response ¶ 3, at 4 (not disputing this fact). Mercer LLC contends that, after the 2006 flooding, the berm on the Mercer Property is “ ‘fifteen feet or more in height and about forty feet deep,’ ” and caused a “ ‘new channel to be dug through the entirety of the Mercer Property from north to south.’ ” BNSF Response ¶ 4, at 9 (quoting Mechenbier Aff. ¶¶ 9-11, at 2-3)(setting forth this fact); Reply ¶ 4, at 2 (not disputing this fact). Mercer LLC contends that BNSF Railway’s work, which Gandy Dancer performed, caused the Mercer Property to become “ ‘uneven.’ ” BNSF Response ¶ 4, at 9 (quoting Mechenbier Aff. ¶ 16, at 3)(setting forth this fact); Reply ¶ 4, at 2 (not disputing this fact). In the underlying action, whether Gandy Dancer’s work on the Mercer Property exceeded the scope of BNSF Railway’s Easement remains disputed. See BNSF Response ¶ 5, at 10 (citing Order on Roy D. Mercer LLC’s Motion for Partial Summary Judgment Against BNSF Railway Company and Gandy Dancer, LLC, filed in state court July 5, 2012, filed in federal court October 22, 2012 (Doc. 87-8))(setting forth this fact); Reply ¶ 5, at 2 (not disputing this fact). PROCEDURAL BACKGROUND On February 16, 2010, The Hartford filed its Complaint for Declaratory Judgment. See Doc. 1 (“Hartford’s Complaint”). The Hartford requests a declaratory judgment pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201. See Hartford’s Complaint at 1. The Hartford requests that the Court declare that The Hartford owes no insurance obligations to indemnify, or to defend, BNSF Railway or Gandy Dancer in connection with the rehabilitation work that is the subject of Mercer LLC’s suit against BNSF Railway and Gandy Dancer. See Hartford’s Complaint ¶ 1, at 1. On June 10, 2011, The Hartford moved the Court for summary judgment, requesting that the Court declare that the Gandy Dancer Policies do not provide coverage for the damages that Mercer LLC seeks in the underlying action. See The Hartford Fire Insurance Company’s Memorandum in Support of Its Motion for Summary Judgment Declaring that the Terms of the Policy Issued to Gandy Dancer Do Not Provide Coverage for Roy D. Mercer LLC’s Claims Against BNSF and Gandy Dancer at 1-2, filed June 10, 2011 (Doc. 38)(“lst MSJ Memo.”). The Hartford assertéd that, in the underlying action, Mercer LLC contends that BNSF Railway directed Gandy Dancer to reconstruct a water diversion project on Mercer LLC’s land and that “the renovations themselves damaged its property.” 1st MSJ Memo at 2 (emphasis original). The Hartford argued that the Gandy Dancer Policies do not cover the damages sought in the underlying action, because they were not caused “by an ‘occurrence,’ ” as defined in the policies. 1st MSJ Memo at 2. The Hartford also contended that two coverage exclusions apply to exclude the damages from coverage: (i) the work performed on Mercer LLC’s property was “expected or intended” by BNSF Railway; and (ii) the claimed property damage is to real property on which Gandy Dancer conducted operations at BNSF Railway’s direction. 1st MSJ Memo at 2. The Court granted the 1st MSJ in part and denied it in part. The Court agreed with The Hartford that Mercer LLC’s allegations of property damage against Gandy Dancer were not an “occurrence” as defined in the Gandy Dancer Policies and held that those allegations “do not give rise to coverage under the Gandy Dancer Policies.” March 28 MOO, 864 F.Supp.2d at 1198. The Court also held that Mercer LLC’s allegations of negligent misrepresentations were an “occurrence,” but that the language of Provision j(5) of the Gandy Dancer Policies excluded coverage for the misrepresentations. March 28 MOO, 864 F.Supp.2d at 1198-1201. The Court held that Mercer LLC’s allegations of trespass and nuisance were not covered as an “occurrence,” because these actions were not an accident, but were covered under the Personal and Advertising Injury provision. March 28 MOO, 864 F.Supp.2d at 1200-02. The Court found that the Gandy Dancer Policies do not limit coverage to landlord/tenant relationships and that BNSF Railway had an ownership interest in the Mercer Property, giving rise to coverage under the Personal and Advertising Provision for BNSF Railway’s and Gandy Dancer’s alleged trespass and nuisance on the Mercer Property. See March 28 MOO, 864 F.Supp.2d at 1201-02. The Court also found that the “expected-or-intended” exclusion did not apply to the allegations of trespass and nuisance, because the Supreme Court of New Mexico has held, in nearly identical circumstances, that the same exclusion did not apply. March 28 MOO, 864 F.Supp.2d at 1202. The Court determined, therefore, that The Hartford had a duty to defend BNSF Railway and Gandy Dancer under the Gandy Dancer Policies against Mercer LLC’s allegations of trespass and nuisance, and denied that portion of the 1st MSJ. See March 28 MOO, 864 F.Supp.2d at 1202. The Court found that it could not determine whether The Hartford had a duty to indemnify under the Gandy Dancer Policies, because liability against BNSF Railway and Gandy Dancer had not yet been established in the underlying action. See March 28 MOO, 864 F.Supp.2d at 1202-03. The Hartford moves the Court, pursuant to rule 56 of the Federal Rule of Civil Procedure, for a summary judgment that the “Personal and Advertising Injury” provision of the insurance policies issued to Defendant Gandy Dancer, LLC does not cover claims that Mercer LLC brings in the underlying action. Specifically, The Hartford requests a declaratory judgment that neither Defendant BNSF Railway nor Gandy Dancer is alleged to have committed the following Personal and Advertising Injury offense: “The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” 2nd MSJ at 2. The Court will refer to this coverage in subsection (c) of the Personal and Advertising Injury provision (paragraph 17 of the Gandy Dancer Policies), as the “Wrongful Eviction” provision. The Hartford requests a summary judgment on two independent grounds. First, The Hartford contends that the Wrongful Eviction applies only to structures and premises that persons occupy, and not to unoccupied farm and ranch land. Second, The Hartford contends that Wrongful Eviction applies only when actions are taken on behalf of an owner, landlord, or lessor of a room, dwelling, or premises. Accordingly, The Hartford contends that, because neither BNSF Railway nor Gandy Dancer was an owner, landlord, or lessor with respect to the property on which they worked, there is no coverage under the Wrongful Eviction provision. The Hartford asserts that it is entitled to summary judgment because the Wrongful Eviction provision does not cover Gandy Dancer’s work on the Mercer Property, because the property “was not a room, dwelling, or premises, and because it was not occupied by any persons as the Policies require.” 2nd MSJ at 7. The Hartford asserts that Wrongful Eviction coverage applies only to a “ ‘room, dwelling, or premises,’ ” but not to land. 2nd MSJ at 7 (citing Mirpad, LLC v. Cal. Ins. Guarantee Ass’n, 132 Cal.App.4th 1058, 34 Cal.Rptr.3d 136 (2005)). The Hartford asserts that the dictionary meaning of the word “premises” is a “‘house or building, along with its grounds.’ ” 2nd MSJ at 8 (quoting Premises, Black’s Law Dictionary 1300 (9th ed.2009)). The Hartford asserts, therefore, that the ordinary meaning of the word “does not include a tract of uninhabited, unimproved ranch land such as the Mercer property,” because, “for land to be a premises it must contain, or be appurtenant to, buildings,” and the Mercer Property does not. 2nd MSJ at 8. The Hartford asserts that the two other locations in which a Wrongful Eviction can occur — a room and a dwelling — reinforces the requirement that a premises include a building or buildings. The Hartford contends that the inclusion of those words in the definition of Wrongful Eviction indicates that the term contemplates “structures of some sort ‘that a person occupies.’ ” 2nd MSJ at 8. The Hartford asserts that the Mercer Property was unoccupied. The Hartford contends that, in addition to the property containing a building, room, or dwelling, the structure must be occupied to trigger The Hartford’s obligations under the Wrongful Eviction provision. The Hartford asserts that Mercer Property was filled with overgrowth and was “far from being a place that a person occupies.” 2nd MSJ at 9. The Hartford contends that New Mexico law recognizes a “fundamental difference between ownership of real property on one hand, and its occupancy on the other.” 2nd MSJ at 9 (citing In re Gabriel M., 2002-NMCA-047, ¶ 13, 132 N.M. 124, 45 P.3d 64). The Hartford also asserts that the Wrongful Eviction provision does not cover BNSF Railroad and Gandy Dancer, because neither was an owner, landlord, or lessor of the Easement or the Mercer Property, on which the alleged offenses occurred. The Hartford asserts that an easement is not an ownership interest in land, and, therefore, BNSF Railroad did not own any part of the Mercer Property. See 2nd MSJ at 10 (citing City of Rio Rancho v. Amrep S.W., Inc., 2011-NMSC-037, ¶ 33, 260 P.3d 414, 150 N.M. 428; Olson v. H & B Props., 118 N.M. 495, 498, 882 P.2d 536, 539 (1994)). The Hartford contends, therefore, that, even if BNSF Railroad and Gandy Dancer “trespassed or created a nuisance within the bounds of the easement,” they did not commit the offense of Wrongful Eviction, because they did not own the Mercer Property. 2nd MSJ at 10-11. BNSF Railway and Gandy Dancer raise numerous arguments against the 2nd MSJ. First, BNSF Railway and Gandy Dancer assert that the 2nd MSJ is a motion to reconsider the Court’s “determination that the personal and advertising injury provisions of the applicable policy obligate The Hartford to provide a defense for BNSF and Gandy Dancer [] in the underlying action.” BNSF Response at 1. See Gandy Dancer Response at 7. BNSF Railway also asserts that The Hartford has relied on disputed facts in the 2nd MSJ, that it has ignored that New Mexico law requires ambiguous terms in an insurance policy to be construed against the insurer, and that New Mexico courts have interpreted similar terms to provide coverage against Mercer LLC’s claims. BNSF Railway and Gandy Dancer also contend that the Wrongful Eviction provision is ambiguous, and that the Court should construe the Gandy Dancer Policies against The Hartford. See Gandy Dancer Response at 6 (citing Lopez v. N.M. Pub. Sch. Ins. Auth., 117 N.M. 207, 211, 870 P.2d 745, 749 (1994); State Farm Fire & Cas. Co. v. Price, 101 N.M. 438, 442, 684 P.2d 524, 528 (Ct.App.1984)). BNSF Railway contends that The Hartford “utterly fails to cite to any of the numerous cases which have found both the personal and advertising injury provision as a whole and the specific terms upon which Hartford relies to be ambiguous.” BNSF Response at 3. BNSF Railway also asserts that the BNSF Complaint and the Mercer Answer “demonstrate that both Mercer and BNSF are claiming ownership of the levee and diversion channel on the Mercer Property.” BNSF Response ¶ 6, at 6. First, BNSF Railway and Gandy Dancer assert that the 2nd MSJ is an improper second attempt for summary judgment, and improperly attacks the March 28 MOO. Gandy Dancer asserts that The Hartford is asking the Court to reconsider whether Gandy Dancer Policies’ Wrongful Eviction provision covers Mercer LLC’s claims of trespass and nuisance. See Gandy Dancer Response at 7 (citing March 28 MOO, 864 F.Supp.2d at 1202). BNSF Railway and Gandy Dancer contends that The Hartford’s 2nd MSJ fails to meet the standard for a motion to reconsider, because The Hartford is raising new arguments “ ‘which were available at the time of the original motion,’ ” BNSF Response at 10-11 (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000)), see Gandy Dancer Response at 8, and The Hartford “does not cite to any intervening change in controlling law,” Gandy Dancer Response at 8, see BNSF Response at 11. Gandy Dancer notes that The Hartford could have raised the argument that the Wrongful Eviction provision does not cover Mercer LLC’s allegations before the Court decided the 1st MSJ, because both Gandy Dancer and BNSF argued that the Wrongful Eviction provision covered Mercer LLC’s actions at the hearing on the 1st MSJ, and in response to the 1st MSJ. See Gandy Dancer Response at 2. Gandy Dancer also asserts that The Hartford has failed to demonstrate that the March 28 MOO was “clearly erroneous or that it would result in manifest injustice if left undisturbed,” because the Court’s findings are consistent with New Mexico law. Gandy Dancer Response at 8 (citing Miller v. Triad Adoption & Counseling Servs., Inc., 2003-NMCA-055, ¶¶ 9-12, 133 N.M. 544, 65 P.3d 1099; G & G Servs., Inc. v. Agora Syndicate, Inc., 2000-NMCA-003, ¶¶ 20-23, 128 N.M. 434, 993 P.2d 751). Second, BNSF Railway and Gandy Dancer assert that the dictionary definition of “premises” does not “exclude land with no buildings,” but, rather, indicates that the terms includes “both ‘a tract of land’ and ‘any buildings thereon.’ ” BNSF Response at 15 (quoting premises, Webster’s New Collegiate Dictionary 901 (1981)). See Gandy Dancer Response ¶ 4, at 4 (citing premises, Black’s Law Dictionary 1180-81 (6th ed.1990)). BNSF Railway also notes that, before 2009, Black’s Law Dictionary included in the definition of “premises” “a distinct portion of real estate.” BNSF Response at 15 (citing premises, Black’s Law Dictionary 1063 (5th ed.1979)). Gandy Dancer also asserts that the term “premises” has been “broadly defined to include reference to any definite area.” Gandy Dancer Response at 10 (citing premises, Black’s Law Dictionary 1180-81 (6th ed.1990)). Gandy Dancer asserts that the term “premises” “cannot be fairly read to mean that land without structures is excluded from the definition,” and asserts that, even if structures are required, the Mercer Property nonetheless meets the definition, given the existence of ditches, berms, dikes, and spoil banks on the Mercer Property. Gandy Dancer Response at 10. BNSF Railway similarly asserts that the term “premises” in the Gandy Dancer Policies “could reasonably be construed to include” the improvements which are the subject of the underlying action. BNSF Response at 22. BNSF Railway contends that the dikes and levees are “clearly structures designed to protect residents,” because their failure can harm residents. BNSF Response ¶ 8, at 7 (citing John Larson, Levees Break, Flood Fields in Luis Lopez, Mountain Mail Newspaper, August 15, 2006, available at http://www.mymountainmail.com/stories/ socnettieandehris08-03-0620060803.php.). BNSF Railway also asserts that other courts have defined the term “insured premises” in homeowner’s insurance policies to include vacant land. BNSF Response at 16 (citing Allstate Ins. Co. v. Naai, 684 F.Supp.2d 1220, 1224 (D.Haw.2010); Hanson v. N. Star Mut. Ins. Co., 71 F.Supp.2d 1007, 1012 (D.S.D.1999); Bianchi v. Westfield Ins. Co., 191 Cal.App.3d 287, 289, 236 Cal.Rptr. 343 (1987); Ft. Worth Lloyds v. Garza, 527 S.W.2d 195, 198 (Tex.Civ.App.1975)). Third, BNSF Railway and Gandy Dancer assert that both BNSF Railway and Mercer LLC are “persons” under the terms of the Gandy Dancer Policies. BNSF Response ¶ 7, at 7; Gandy Dancer Response ¶ 4, at 4 (citing person, Black’s Law Dictionary 1162 (8th ed.2004)). Gandy Dancer contends that dictionary definitions of “person” are unavailing to The Hartford, because Black’s Law Dictionary “acknowledges that the term can refer to a ‘natural person’ or an entity such as a corporation.” Gandy Dancer Response at 9 (citing person, Black’s Law Dictionary 1162 (8th ed.2004)). Gandy Dancer also points out that the Gandy Dancer Policies expressly restrict the meaning of the term “person” to “natural persons” in other sections, and, therefore, the absence of a similar restriction in the Wrongful Eviction provision indicates that the term is not so restricted. Gandy Dancer Response at 9 (quoting Wrongful Eviction provision ¶ 17(h) (“Discrimination or humiliation that results in injury to the feelings or reputation of natural person.”)). Fourth, BNSF Railway and Gandy Dancer assert that the term “occupied” is not restricted to “ ‘a place where people live.’ ” BNSF Response at 17 (quoting 2nd MSJ at 9). See Gandy Dancer Response at 10. BNSF Railway contends that both it and Mercer LLC “occupied” the Mercer Property within the meaning of the Gandy Dancer Policies, “by possessing the property, by keeping it for their use, and by preventing each other (at various times) from using portions of the property.” BNSF Response ¶ 7, at 7 (citing Affidavit of Mike Mechenbier, executed October 7, 2011, filed October 22, 2011 (Doc. 87-1). See Mechenbier Aff. ¶ 8, at 2 (stating that, when Mechenbier acquired the Mercer Property, “the railroad right of way was fenced with the fence extending the full length of the Mercer Property from north to south”); BNSF Response ¶ 3 at 9. BNSF Railway contends that the “heart of the dispute between Mercer and BNSF and Gandy Dancer is that both parties assert rights to possess and occupy the Mercer Property.” BNSF Response ¶ 7, at 7. Gandy Dancer asserts that courts have “refused to construe the term ‘occupy’ as narrowly as Hartford suggests” and asserts that courts have rejected the “notion that ‘occupy’ requires the physical presence on land.” Gandy Dancer Response at 10 (citing Starks v. Vill. Green Apartments, 854 N.E.2d 411 (Ind.App.2006); Klotz v. Hoyt, 900 N.E.2d 1 (Ind.2009)); McIntyre v. Scarbrough, 266 Ga. 824, 825, 471 S.E.2d 199, 201 (1996); Matousek v. Quirici, 195 Ill.App. 391, 392 (Ct.App.1915)). See BNSF Response at 13-14. BNSF Railway contends that because Mercer LLC had improvements on the Mercer Property, and because BNSF Railway maintained a levee and diversion system on the Mercer Property, both it and Mercer LLC occupied the Mercer Property. BNSF Railway asserts that the United States Court of Appeals for the Ninth Circuit and the Court of Appeals of North Carolina have expressly found that the term “occupies” is ambiguous. BNSF Response at 18 (citing Sell v. Nationwide Mut. Ins. Co., 492 Fed.Appx. 740 (9th Cir.2012); Hobbs Realty & Constr. Co. v. Scottsdale Ins. Co., 163 N.C.App. 285, 593 S.E.2d 103, 108 (2004)). Fifth, BNSF Railway and Gandy Dancer assert that BNSF Railway’s interest in the Mercer Property is an ownership interest, and, therefore, not outside the meaning of the term “owner” in the Gandy Dancer Policies. Gandy Dancer Response at 11; BNSF Response at 20. BNSF Railway also contends that the March 28 MOO contradicts The Hartford’s statement that neither BNSF Railway nor Gandy Dancer owned the Mercer property, because the Court held that BNSF Railway’s Easement grants it an ownership interest in the property. See BNSF Response at 20. Gandy Dancer asserts that BNSF Railway’s Easement gives it “a reasonable expectation of coverage under the personal and advertising injury provisions in the CGL policy.” Gandy Dancer Response at 12 (citing Fed. Ins. Co. v. Century Fed. Sav. & Loan Ass’n, 113 N.M. 162, 168, 824 P.2d 302, 308 (1992); W. Commerce Bank v. Reliance Ins. Co., 105 N.M. 346, 348, 732 P.2d 873, 875 (1987)). BNSF Railway also asserts that its ownership interest extended to the ditches, fences, berms, and other improvements that it built and/or maintained on the Mercer Property. See BNSF Response at 20. BNSF Railways contends that its Easement is broad in nature and allowed it to fundamentally alter the Mercer Property, and that the Easement “necessarily include[s] the right for BNSF to build and own earthworks and structures on the Mercer Property.” BNSF Response at 21. BNSF Railway asserts that for The Hartford to contend that the Easement is not an ownerships interest lacks supported from the facts or in the applicable law. BNSF Response at 22 (citing Kysar v. Amoco Prod. Co., 2004-NMSC-025, ¶ 51, 135 N.M. 767, 93 P.3d 1272). BNSF Railway further contends that ownership of the Mercer Property is an issue in this case that the underlying action has yet to determine. BNSF Railway contends that Mercer LLC’s claims are based on its theory that BNSF Railway committed a nuisance and trespassed onto the Mercer Property through construction and/or enlargement of the levee and diversion system. BNSF Railway notes that it contends in the underlying action that the improvements were within the Easement’s scope and were not tortious intrusions. BNSF Railway also contends that its improvements on the Mercer Property constitute “real property,” which BNSF Railway owns, bringing Mercer LLC’s claims under the Gandy Dancer Policies’ scope of coverage. BNSF Response at 23-24 (citing Olson v. H & B Props., 118 N.M. 495, 882 P.2d 536 (1994); Knowles v. United Servs. Auto. Ass’n, 113 N.M. 703, 832 P.2d 394 (1992)). BNSF Railway asserts that the Court’s March 28 MOO was correct, and BNSF Railway and Gandy Dancer assert that the Court should deny the 2nd MSJ. The Hartford replies that the “state court action does not state a claim for Personal and Advertising Injury as that term is defined by the Policies,” and, therefore, it has no duty to defend or indemnify BNSF Railway or Gandy Dancer in the underlying action. Reply at 1. The Hartford asserts that the “mere mention of the term ‘trespass’ in Mercer’s allegations” is insufficient to trigger the Wrongful Eviction provision. Reply at 2. The Hartford contends that the Wrongful Eviction provision is the only subsection which possibly applies to Mercer LLC’s claims, but it not applicable, because the definition requires “an occupied room, dwelling, or premises,” and “a wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy.” Reply at 2-3. The Hartford further contends that the definition covers only eviction “performed either by or on behalf of the owner, landlord or lessor of the space.” Reply at 3. The Hartford contends that the Mercer Property is not a “premises,” and that neither BNSF Railway or Gandy Dancer was an owner of any property, rendering Mercer LLC’s claims outside the scope of the Wrongful Eviction provision. Reply at 3. The Hartford contends that BNSF Railway and Gandy Dancer’s reliance on authorities that define premises as including “vacant land” is inapposite, because none of the cases on which they rely discuss the term “premises” in the context of a Personal and Advertising Injury. Reply at 3. The Hartford also contends that neither BNSF Railway or Gandy Dancer had a possessory or ownership interest in the Mercer Property, and The Hartford asserts that Mercer LLC does not allege that BNSF Railway or Gandy Dancer trespassed on Mercer LLC’s land. See Reply at 4-5. The Hartford asserts that, although BNSF Railway and Mercer LLC may have overlapping rights to the land which the Easement encumbers, Mercer LLC does not allege that BNSF Railway or Gandy Dancer interfered with Mercer LLC’s right to use the property apart. The Hartford also asserts that, even if BNSF Railway and Gandy Dancer exceeded the Easement onto land that Mercer LLC exclusively owned, because BNSF Railway and Gandy Dancer do not own the land outside of the Easement, any claims based on that action fails to establish the elements of a wrongful eviction. See Reply at 5-6. The Hartford asserts that, even though the Easement grants BNSF Railway broad rights to perform construction on the Mercer Property, because neither BNSF Railway or Gandy Dancer owned the land on which Mercer LLC claims they trespassed, Mercer LLC’s allegations are not based on wrongful entry. See Reply at 6. The Hartford also asserts that the 2nd MSJ is not a motion to reconsider, but, rather, is properly filed as a motion for summary judgment. The Hartford contends that, notwithstanding that similar issues were raised in the briefing on the 1st MSJ, The “Hartford’s obligation to address arguments raised in response to its first Motion for Summary Judgment does not preclude it from now moving for summary judgment on the issue of Personal and Advertising Injury coverage.” Reply at 6. The Hartford contends that any rules which would prohibit it form addressing the scope of the Wrongful Eviction provision, because it was raised in the responses to the 1st MSJ, would “allow response motions to be used offensively to hamstring the other side.” Reply at 7. The Court held a hearing on January 7, 2013. See Transcript of Hearing (taken January 7, 2013)(“Tr.”). The Court stated that its initial impression is that it already decided the issues raised in the 2nd MSJ. See Tr. at 4:3-13 (Court). The Hartford stated that it first realized that BNSF Railway and Gandy Dancer were raising the Wrongful Eviction provision when they responded to the 1st MSJ, and that it “lacked the factual predicate to make the same arguments that we are making before the Court today.” Tr. at 6:16-24 (Lucero). The Hartford also stated that it believes the Court “misconstrued” the Wrongful Eviction provision’s language. Tr. at 7:10-16 (Lucero). The Court inquired what The Hartford’s “strongest argument” is that the Court “construed it wrongly the first time.” Tr. at 8:5-9 (Court). The Hartford stated that the “strongest part” of its argument is that the Court did not focus on whether the Mercer Property was a “room, dwelling, or premises” as required to fall within the Wrongful Eviction provision’s coverage for wrongful eviction, and if so, whether the Mercer Property was occupied “by a person.” Tr. at 8:10-9:5 (Lucero). The Hartford stated that it could not fully bring that argument earlier, because it did not have admissions from Mercer LLC that the Mercer Property is devoid of a “room dwelling, or premises.” Tr. at 9:6-12 (Lucero). The Hartford asserted that Mercer LLC’s claims are not covered under the Wrongful Eviction provision, because “there simply is not a room, dwelling, or premises on this land — it’s vacant land,” and “a person does not occupy it or did not occupy it at the time that these alleged torts were committed.” Tr. at 10:12-20 (Lucero). The Hartford asserted that, in the context of ¶ 17(c) of the Gandy Dancer Policies, BNSF Railway’s improvements on the Mercer Property do not constitute a premises. See Tr. at 11:6-23 (Lucero). The Hartford contended that, because a person cannot occupy “a berm or a dam or a levy,” those structures do not constitute an occupied premises from which one may be wrongfully evicted. Tr. at 11:24-12:1 (Lucero). The Hartford asserted that whether the term “person” applies to only natural persons or includes entities is irrelevant, because “the factual predicate that we’ve established is that neither a natural person nor an entity occupied this vacant land.” Tr. at 12:4-11 (Lucero). The Hartford contended that, within the context of the Wrongful Eviction provision, “there is no logical way to construe these words, other than, premises means something in conjunction with room or dwelling.” Tr. at 14; 13-20 (Lucero). The Hartford contended that the “logical and clear definition” of “occupy” requires “that somebody lives there.” Tr. at 14:21-15:1 (Lucero). The Court stated that it is concerned that, while other jurisdictions might adopt more restrictive definitions of the contested terms, the Supreme Court of New Mexico, which has “very broadly construed some other language in policies,” is likely to reject narrow definitions. Tr. at 15:2-14 (Court). The Hartford asserted that it cannot predict how the Supreme Court of New Mexico will interpret the Wrongful Eviction provision, and that the Court “must use its own logic and its own reading and understanding in order to do this.” Tr. at 15:16-25 (Lucero). The Court inquired of BNSF Railway whether the facts are in dispute, because “this thing seemed to me to be raising a fairly clean legal issue that I had to decide,” which it did not resolve in the March 28 MOO. Tr. at 17:9-16 (Court). BNSF Railway stated that “what was known about the land was known back when we had this original motion.” Tr. at 17:17-24 (Fields). BNSF Railway also pointed out that it opposed the 1st MSJ, in part, because it had not had sufficient time to conduct discovery, but that The Hartford opposed allowing BNSF additional time for discovery. See Tr. at 18:1-12 (Fields). The Court inquired whether its March 28 MOO decided the scope of the Wrongful Eviction provision, because when it found that The Hartford had a duty to defend, “it was based upon sort of a broad reading of premises,” and not the definition of specific terms. Tr. at 18:16-24 (Court). The Court stated that whether the Mercer Property was occupied and structures were on the land is a new issue. See Tr. at 19:9-15 (Court). The Court inquired why The Hartford could not file a subsequent motion for summary judgment on a new legal issue that the Court did not address in the 1st MSJ. See Tr. at 20:9-17 (Court). BNSF Railway responded that The Hartford had the opportunity to raise the scope of the Wrongful Eviction provision in the 1st MSJ, and it chose to not assert the argument it now raises in the 2nd MSJ. See Tr. at 20:18-21:6 (Fields). BNSF Railway asserted that the 2nd MSJ is “squarely within a motion to reconsider,” because The Hartford has not alleged new facts that The Hartford “could not have reasonably discovered” before filing the 1st MSJ or “new case law that’s come to light that they could not have reasonably known.” Tr. at 21:7-15 (Fields). BNSF Railway asserted, therefore, that the 2nd MSJ is a motion for reconsideration, which the Court should deny. See Tr. at 21:16— 22:1 (Fields). BNSF Railway asserted that The Hartford concedes that Mercer LLC is bringing a claim of wrongful entry against BNSF Railway. See Tr. at 22:11-23:5 (Fields)(citing Reply at 4-5). BNSF Railway also asserted that the parties are disputing in the underlying action whether BNSF Railway and Gandy Dancer are owners of land on which Mercer LLC alleges they trespassed and interfered with Mercer LLC’s right of occupancy. See Tr. at 23:6-13 (Fields)(citing Reply at 6). BNSF Railway asserted that the Gandy Dancer Policies discuss a “right of occupancy” and not “actually someone occupying it.” Tr. at 23:14-24:9 (Fields)(citing Gandy Dancer Policies ¶ 17(c)). BNSF Railway asserted that The Hartford has conceded that Mercer LLC had a right to occupy the Mercer Property. See Tr. at 24:10-20 (Fields). BNSF Railway asserted that “there’s no question that [ ] Mercer in this case had the right to occupy their land.” Tr. at 25:20-24 (Fields). BNSF Railway asserted that “there is no question that we had the right to occupy, and, in fact, did occupy the land, because we built the berm.” Tr. at 26:2-6 (Fields). BNSF Railway noted that it disputes with Mercer LLC the size of the berm on the Mercer Property, and asserted that, regardless of the size, Mercer LLC’s allegations in the underlying action indicate that BNSF Railway is “occupying the property.” Tr. at 27:5-28:15 (Fields). Regarding the meaning of the term “person” in the Wrongful Eviction provision, BNSF Railway asserted that the provision does not discuss a “natural person,” which would indicate that the provision precludes corporations or entities. Tr. at 29:9-30:6 (Fields, Court). BNSF Railway hypothesized that, if the Supreme Court of New Mexico interpreted the Wrongful Eviction provision, the Supreme Court of New Mexico would find that, because The Hartford did not include the adjective “natural” in the provision and included the phrase “right of occupancy,” rather than simply “occupancy,” the provision is not restricted to “natural persons” that actually occupy a premises. Tr. at 31:5-17 (Fields). BNSF Railway further argued that, in the underlying action, the Honorable Matthew G. Reynolds, New Mexico State District Judge for the Seventh Judicial District, found that “ ‘[a]s a matter of law the express easement specifically contemplates, not only excavation, but also the maintenance and construction of ditches, dikes, and spoil banks on Mercer’s property.’ ” Tr. at 34:3-9 (FieldsXquoting Order on Roy D. Mercer LLC’s Motion for Partial Summary Judgment Against BNSF Railway Company and Gandy Dancer, LLC ¶ 4, at 2, filed in state court July 5, 2012, filed in federal court October 22, 2012 (Doc. 87-8)(“State Court PSJ”)). BNSF Railway further asserted that Judge Reynolds found genuine issues of material fact regarding whether BNSF Railway exceeded the scope of the Easement. See Tr. at 34:15-22 (Fields); id. at 36:4-7 (Fields). Regarding the meaning of the term “person,” BNSF Railway stated that it has “extensively,” through its briefing, shown that the term “could be a corporation[,] ... unless you specifically said a natural person.” Tr. at 36:11-16 (Fields). BNSF Railway also stated that the term “premises” can refer to the land itself, but that it has “erected structures on the property,” such as the berm and a ditch; therefore, even if the term requires the existence of structures, its improvements on the Mercer Property fall within the term’s definition. Tr. at 37:1-9 (Fields). BNSF Railway contended that it has, thus, “satisfied the person requirement satisfied[,] the occupancy requirement, we’ve satisfied the premises requirements, and we’ve satisfied the ownership requirement.” Tr. at 37:21-24 (Fields). Gandy Dancer stated that The Hartford is asking the Court to adopt one interpretation of the Wrongful Eviction provision in violation of New Mexico law that insurance policies be construed against the drafter. See Tr. at 39:14-23 (Warburton)(citing March 28 MOO, 864 F.Supp.2d at 1202). Gandy Dancer stated that, if The Harford had intended to adopt a more restrictive definition of “person” or “occupy” or “premises,” it could have written a more restrictive definition into the Gandy Dancer Policies. Tr. at 40:9-41:6 (Warburton). Gandy Dancer noted that Black’s Law Dictionary defines “person” to include “a natural person, an entity, or organization, such as corporation.” Tr. at 41:7-13 (Warburton). Gandy Dancer stated that The Hartford has failed to cite to a change in the facts or applicable law which would cause the Court to reconsider its decision on the scope of the Wrongful Eviction provision in the March 28 MOO. See Tr. at 42:10-24 (Warburton). The Hartford stated that it is asking the Court to read the Wrongful Eviction provision as “any ordinary person would read it and then come to the conclusion that either these claims do or do not fall within that language.” Tr. at 43:14-20 (Lucero). The Hartford pointed out that the Wrongful Eviction provision does not contain the phrase “right of private occupancy,” as BNSF Railway asserts. Tr. at 44:4-15 (Lucero). The Hartford asserted that it “knew how to differentiate rights from physical realities,” and that it differentiated in the context of “a room, or dwelling or a premises that a person occupies.” Tr. at 44:16-23 (Lucero). The Hartford stated that “the undisputed facts” indicate that the Mercer Property is vacant and unoccupied. Tr. at 44:24-45:2 (Lucero). The Hartford contended that the term “premises” does not include structures which persons cannot occupy, such as the berm or ditches on the Mercer Property. Tr. at 46:7-47:8 (Lucero). The Court stated that, under its duty to construe New Mexico law in accordance with the Supreme Court of New Mexico’s guidance, it is inclined to find that the term “persons” includes a corporation. Tr. at 49:10-23 (Court). The Court stated that, if a structure, such as a berm, is sufficient to satisfy the meaning of the term “occupy,” it is inclined to find that BNSF Railway occupied the Mercer Property. Tr. at 49:24-50:8 (Court). The Court stated, therefore, that it is inclined to find that the Supreme Court of New Mexico would find that Mercer LLC’s allegations trigger The Hartford’s obligations under the Wrongful Eviction provision. See Tr. at 50:9-15 (Court). LAW REGARDING SUMMARY JUDGMENT Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party may not rest upon mere allegations and denials in the pleadings, but must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)(citing Fed. R.Civ.P. 56(e)). An issue of fact is “genuine” if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Unsupported assertions or conjecture as to factual disputes are not enough to survive summary judgment. See Branson v. Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir.1988). The Court may consider only admissible evidence when ruling on a motion for summary judgment. See World of Sleep, Inc. v. Lar-Z-Boy Chair, Co., 756 F.2d 1467, 1474 (10th Cir.1985)(citing Fed. R.Civ.P. 56(e)). If a defendant seeks summary judgment, the defendant has the “initial burden to show that there is an absence of evidence to support the nonmoving party’s case.” Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir.2000)(internal quotations omitted)(quoting Thomas v. IBM, 48 F.3d 478, 484 (10th Cir.1995)). Upon meeting that burden, the burden shifts to the plaintiff to “identify specific facts that show the existence of a genuine issue of material fact.” Munoz v. St. Mary-Corwin Hosp., 221 F.3d at 1164 (citations and internal quotations omitted). The non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548 (internal quotations omitted). The plaintiff, in opposing the motion, “must present sufficient evidence in specific, factual form for a jury to return a verdict in that party’s favor.” Munoz v. St. Mary-Corwin Hosp., 221 F.3d at 1164 (citations and internal quotations omitted). The mere existence of a scintilla of evidence in support of the plaintiffs position is not sufficient; there must be evidence on which the fact-finder could reasonably find for the plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. LAW REGARDING MOTIONS FOR RECONSIDERATION Under Tenth Circuit case law, [generally, a “motion for reconsideration, not recognized by the Federal Rules of Civil Procedure, Clough v. Rush, 959 F.2d 182, 186 n. 4 (10th Cir. 1992), may be construed in one of two ways: if filed within 10 days of the district court’s entry of judgment, it is treated as a motion to alter or amend the judgment under Rule 59(e); if filed more than 10 days after entry of judgment, it is treated as a motion for relief from judgment under Rule 60(b).” Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292, 1296 n. 3 (10th Cir.2002). In addition, “every order short of a final decree is subject to reopening at the discretion of the district judge.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also Fed.R.Civ.P. 54(b). Price v. Philpot, 420 F.3d 1158, 1167 n. 9 (10th Cir.2005). A district court has discretion to revise interlocutory orders before the entry of a final judgment. See Trujillo v. Bd. of Educ. of the Albuquerque Pub. Schs., 212 Fed.Appx. 760, 765 (10th Cir.2007). When a plaintiff seeks to obtain reconsideration of a non-final order, his or her motion for reconsideration is considered “an interlocutory motion invoking the district court’s general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment.” Wagoner v. Wagoner, 938 F.2d 1120, 1122 n. 1 (10th Cir.1991). A motion for reconsideration is an “inappropriate vehicle[ ] to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion.” Servants of Paraclete v. Does, 204 F.3d at 1012. “Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d at 1012. “Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s position, or the controlling law.” Servants of Paraclete v. Does, 204 F.3d at 1012 (citation omitted). A district court has considerable discretion in ruling on a motion to reconsider. See Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.1997). RELEVANT NEW MEXICO LAW REGARDING INSURANCE CONTRACTS Under New Mexico law, insurance policies are interpreted like any other contract, except that, “where a policy term is ‘reasonably and fairly susceptible of different construction,’ it is deemed ambiguous and ‘must be construed against the insurance company as the drafter of the policy.’ ” United Nuclear Corp. v. Allstate Ins. Co., 2012-NMSC-032, ¶ 10, — N.M. —, 285 P.3d 644 (quoting Knowles v. United Serv. Auto. Ass’n, 113 N.M. at 704, 832 P.2d at 396 (citing Battishill v. Farmers Alliance Ins. Co., 2006-NMSC-004, ¶ 6, 139 N.M. 24, 127 P.3d 1111; City of Santa Rosa v. Twin City Fire Ins. Co., 2006-NMCA-118, ¶ 7, 140 N.M. 434, 143 P.3d 196)). “Insurance policies almost always are contracts of adhesion, meaning that ‘the insurance company controls the language’ and ‘the insured has no bargaining power.’ ” United Nuclear Corp. v. Allstate Ins. Co., 2012-NMSC-032, ¶ 10, — N.M. —, 285 P.3d 644 (quoting Cal. Cas. Ins. Co. v. Garcia-Price, 2003-NMCA-044, ¶ 20, 133 N.M. 439, 63 P.3d 1159) (citing accord Padilla v. State Farm Mut. Auto. Ins. Co., 2003-NMSC-011, ¶ 14 n. 3, 133 N.M. 661, 68 P.3d 901). The Supreme Court of New Mexico described how insurance contracts are ones of adhesion in Sanchez v. Herrera, 109 N.M. 155, 783 P.2d 465 (1989): The typical insured does not bargain for individual terms within policy clauses; the insured makes only broad choices regarding general concepts of coverage, risk, and cost. Not only does the insurance company draft the documents, but it does so with far more knowledge than the typical insured of the consequences of particular words. 109 N.M. at 159, 783 P.2d at 469. “Cognizant of this imbalance in power, ‘as a matter of public policy’ courts ‘generally construe[ ]’ ambiguities ‘in favor of the insured and against the insurer.’ ” United Nuclear Corp. v. Allstate Ins. Co., 2012-NMSC-032, ¶ 11, — N.M. —, 285 P.3d 644 (quoting Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033, ¶ 26, 129 N.M. 698, 12 P.3d 960) (citing 2 Steven Plitt et al., Couch on Insurance § 22:14 (3d ed.2010)). Accordingly, when a court finds that a term in an insurance policy is ambiguous, “[t]he court’s construction of [the] policy will be guided by the reasonable expectations of the insured.” Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 22, 123 N.M. 752, 945 P.2d 970. See Phx. Indem. Ins. Co. v. Pulis, 2000-NMSC-023, ¶ 23, 129 N.M. 395, 9 P.3d 639 (“[T]he test is not what the insurer intended its words to mean, but what a reasonable person in the insured’s position would have understood them to mean.”). Additionally, “ ‘[i]t is unnecessary to show that a construction against the insurer is more logical than a construction against the insured,’ so long as both constructions are reasonable.” United Nuclear Corp. v. Allstate Ins. Co., 2012-NMSC-032, ¶ 11, — N.M. —, 285 P.3d 644 (quoting 2 Plitt, supra § 22:17, at 22-98-22-99). The obligation of an insurer is a question of contract law and will be determined by reference to the insurance policy’s terms. See Safeco Ins. Co. of Am., Inc. v. McKenna, 90 N.M. 516, 520, 565 P.2d 1033, 1037. The clauses must be construed as intended to be a complete and harmonious instrument. See Erwin v. United Benefit Life Ins. Co., 70 N.M. 138, 371 P.2d 791 (1962). On the other hand, where a clause “read alone is clear and unambiguous ... it is not necessary to read the coverages together,” because “there is a risk of creating, rather than identifying, ambiguity.” Battishill v. Farmers Alliance Ins. Co., 2006-NMSC-004, ¶ 16, 139 N.M. 24, 127 P.3d 1111. Exclusionary clauses in insurance policies are to be narrowly construed, with the insured’s reasonable expectations providing the basis for the analysis. See King v. Travelers Ins. Co., 84 N.M. 550, 556, 505 P.2d 1226, 1232 (1973). RELEVANT NEW MEXICO LAW REGARDING CONTRACT INTERPRETATION “Generally, the goal of contract interpretation is to ‘ascertain the intentions of the contracting parties.’ ” Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, ¶ 30, 132 N.M. 207, 46 P.3d 668 (quoting Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033, ¶ 11, 129 N.M. 698, 12 P.3d 960 (internal quotation marks omitted); Strata Prod. Co. v. Mercury Exploration Co., 1996-NMSC-016, 121 N.M. 622, 630, 916 P.2d 822, 830). “The court’s duty is confined to interpreting the contract that the parties made for themselves, and absent any ambiguity, the court may not alter or fabricate a new agreement for the parties.” Gallegos v. Pueblo of Te suque, 2002-NMSC-012, ¶ 30, 132 N.M. 207, 46 P.3d 668 (citing Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033, ¶ 11, 129 N.M. 698, 12 P.3d 960; CC Housing Corp. v. Ryder Truck Rental, Inc., 106 N.M. 577, 579, 746 P.2d 1109, 1111 (1987)). “Absent ambiguity, provisions of a contract need only be applied, rather than construed or interpreted.” Richardson v. Farmers Ins. Co. of Arizona, 112 N.M. 73, 74, 811 P.2d 571, 572 (1991) (citing McKinney v. Davis, 84 N.M. 352, 503 P.2d 332 (1972)). In New Mexico, a court may consider extrinsic evidence to determine “whether the meaning of a term or expression contained in the agreement is actually unclear.” Mark V, Inc. v. Mellekas, 1993-NMSC-001, 114 N.M. 778, 781, 845 P.2d 1232, 1235 (“New Mexico law, then, allows the court to consider extrinsic evidence to make a preliminary finding on the question of ambiguity.”). In Mark V, Inc. v. Mellekas, the Supreme Court of New Mexico summarized the law in New Mexico concerning the interpretation of “ambiguous or unclear language in written agreements”: An ambiguity exists in an agreement when the parties’ expressions of mutual assent lack clarity. C.R. Anthony [v. Loretto Mall Partners ], 112 N.M. [504,] 509 n. 2, 817 P.2d [238,] 243 n. 2 [ (1991) ]. The question whether an agreement contains an ambiguity is a matter of law to be decided by the trial court. Levenson v. Mobley, 106 N.M. 399, 401, 744 P.2d 174, 176 (1987). The court may consider collateral evidence of the circumstances surrounding the execution of the agreement in determining whether the language of the agreement is unclear. C.R. Anthony, 112 N.M. at 508-09, 817 P.2d at 242-43. If the evidence presented is so plain that no reasonable person could hold any way but one, then the court may interpret the meaning as a m