RICHARD W. STORY, District Judge.
This case comes before the Court on Defendant's Motion to Amend Order to Include Certification pursuant to 28 U.S.C. § 1292(b) for Interlocutory Appeal and for a Stay Pending Review ("Motion to Amend") . After considering the record, the Court enters the following Order.
Defendant Federal Insurance Company ("Federal") issued two insurance policies to Plaintiff MedAssets, Inc. ("MedAssets"), the D&O Policy (policy number 8170-4425) and the E&O Policy (policy number 7499-71-83-DAL). (Dkt.  at ¶¶ 7, 15). This case concerns whether Defendant had a duty to defend Plaintiff under either policy for a suit brought against it by third parties.
In its March 31, 2010 Order , the Court granted in part and denied in part Plaintiff's Motion for Summary Judgment on the Issue of Defendant's Duty to Defend . The Motion was granted as to Defendant's duty to defend under the D&O Policy and denied as to Defendant's duty to defend under the E&O Policy. In that Order, the Court granted Defendant's Motion for Summary Judgment on Claims under the E&O Policy  and denied Defendant's Motion for Summary Judgment on Claims under the D&O Policy . The parties have attempted to resolve the dispute through mediation, but were unsuccessful. (
In the present Motion , Defendant argues that the following issues decided by the Court in its March 31, 2010 Order  are ripe for interlocutory review under 28 U.S.C. § 1292(b):
(Dkt. [90-1] at 2-3). The Court now addresses whether these questions are appropriate for immediate appeal.
To be granted permission for an interlocutory appeal, the movant must demonstrate that there is a "controlling question of law as to which there is substantial ground for difference of opinion" and that resolution of the issue will "materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). Even if these requirements are satisfied, the Court of Appeals retains discretion to refuse to allow the appeal. Section 1292 is intended to be used sparingly and only in exceptional cases where a speedy appeal would avoid protracted litigation.
The critical inquiry in the present case is whether Defendants seek to certify a question as to which there is a substantial difference of opinion. This criterion for certification is satisfied when: (1) the issue is difficult and of first impression; (2) a difference of opinion as to the issue exists within the controlling circuit; or (3) the circuits are split on the issue.
In the present case, as to the three questions Defendants urge the Court to certify for appeal, Defendants have not demonstrated that a difference of opinion exists as to the issues within the Eleventh Circuit or that there is a split as to the issues among the United States Courts of Appeals. Therefore in order for the Court to certify one or more of the issues for appeal, the Defendant must demonstrate that such issue is difficult and of first impression.
Defendant's briefing of the Motion to Amend  seems better suited for a motion for reconsideration, because the thrust of the arguments is that the Court incorrectly decided the issue in light of the language of the D&O Policy and existing case law. Such argument, that the Court "got it wrong," is insufficient to state a substantial ground for difference of opinion.
Defendant's argument is similarly insufficient as to Issue 2, and the issue will not be certified for appeal. Defendant argues that there is no authority to support the position the Court took as to Issue 2 in its Order , however, it provides no authority to the contrary either. Defendant does cite to Georgia case law that stands for the proposition that an insurance policy may not be rewritten to extend coverage beyond the language of the contract. (Dkt.  at 8). As the Court noted in its Order, "[t]he D&O Policy provided coverage for the Insured Organization which is defined as `the Parent Corporation and any Subsidiary . . . .'" (Dkt.  at 20). The lawsuit for which coverage was at issue under the D&O Policy was brought against Aspen II Holding Company, Inc., d/b/a Aspen Healthcare Metrics. While, MedAssets does not have a subsidiary named Aspen II Holding Company, Inc., it does have a subsidiary named Aspen Healthcare Metrics, LLC, which responded to the lawsuit. (Id.). These facts do not present a difficult question.
As to Issue 3, Defendant argues that "[n]o decision has ever allowed consequential damages that exceed the limits of the insurance contract under such facts." (Dkt.  at 2). While the question of whether Plaintiff is entitled to consequential damages may be one of first impression under facts similar to those presented by this case, for the reasons explained in the Court's Order, it is not a difficult question, but rather is one that cannot be properly answered without first conducting discovery on the issue of damages. (Dkt.  at 21-22). The Court will not certify Issue 3 for appeal pursuant to Section 1292(b).
For the aforementioned reasons, Defendant's Motion to Amend  is