McCollough v. Minnesota Lawyers Mutual Insurance Company et al, No. 1:2009cv00095 - Document 25 (D. Mont. 2010)
Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 9 Motion to Stay filed by Minnesota Lawyers Mutual Insurance Company, 21 Findings and Recommendations, Case stayed. Signed by Judge Richard F. Cebull on 2/3/2010. (CAA, )
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McCollough v. Minnesota Lawyers Mutual Insurance Company et al Doc. 25 FILED BILLINGS DI'{ IN THE UNITED STATES DISTRICT r t, M I I { C 1\ 3 PrJ 3 13 i ::_ "." ';':r .....' , (" c--,.i'\ :<, \J .... ;.: FOR THE DISTRICT OF MONTAN)\Y --:---____ DEPUTY CLERK- BILLINGS DIVISION TIMOTHY MCCOLLOUGH, ) ) Plaintiff, CV-09-95-BLG-RFC-CSO ) ) vs. ) ORDER ADOPTING FINDINGS ) AND RECOMMENDATIONS OF ) U.S. MAGISTRATE JUDGE MINNESOTA LAWYERS MUTUAL INSURANCE COlVJPANY and JOHN DOES I and II, Defendants. ) ) ---------------------------) United States Magistrate Judge Carolyn Ostby has entered Findings and Recommendation (Doc. 21) recommending that Defendants' motion to stay proceedings (Doc. 9) be granted. At the time these findings and recommendation were filed, parties had 10 days to file written objections. 28 U.S.C. § 636(b)(1y. Plaintiff filed timely objections (Doc. 22), to which Defendants have responded (Doc. 23). Plaintiffhas also noticed the Court of supplemental authority from the Montana Supreme Court. Doc 24. Plaintiffs' objections require this Court to make a de novo ISection 636(b)(1) has since been amended to allow 14 days for objections. 1 Dockets.Justia.com determination of those portions of the Findings and Recommendations to which objection is made. 28 U.S.C. § 636(b)(1). After carefully balancing the equities for and against a stay of this insurance bad faith case pending the resolution of the appeal of the underlying case2 , Judge Ostby concluded that a stay of limited duration was appropriate. Plaintiff claims Magistrate Judge Ostby erred in concluding that if the Court of Appeals reversed the judgment against the law firm in the underlying case, McCollough may have no third-party bad faith case against the malpractice insurer. Plaintiff argues that the law is well-established that the issues in a UTPA claim are distinct from those in the underlying suit and that the UTPA claim focuses on what the insurer knew during the investigation of the claim, citing Grafv. Continental Western Ins. Co., 89 P.3d 22,27 (Mont 2004). Aside from the fact that Judge Ostby did not conclusively state that a reversal of the underlying judgment would affect its UTPA claims in this case, there were several other reasons why she found a stay appropriate. For example, Judge Ostby also noted that JRL would be prejudiced if attorney-client or work product were revealed to Plaintiffin discovery and then the Ninth Circuit 2Plaintiff obtained a favorable judgment against a debt collection law firm in McCollough v. Johnson, Rodenburg & Lauringer, CV-07-166-BLG-RFC-CSO. 2 remanded the underlying case for a new trial. Although a resolution of the underlying appeal in JRL's favor may not resolve the UTPA claims at issue in this case, the Ninth Circuit's decision is sure to have an impact. Plaintiffs objection is overruled. After a de novo review, the Court determines the Findings and Recommendation of Magistrate Judge Ostby are well grounded in law and fact and adopts them in their entirety. Accordingly, IT IS HEREBY ORDERED that Minnesota Lawyers's Motion for Stay of Proceedings (Doc. 9) is GRANTED. The Clerk of DATED this of the entry of this Order. ay of 3 / ,,/ /)
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