McCollough v. Minnesota Lawyers Mutual Insurance Company et al, No. 1:2009cv00095 - Document 42 (D. Mont. 2011)

Court Description: ORDER ADOPTING IN ITS ENTIRETY FINDINGS AND RECOMMENDATIONS for 26 Motion for Judgment on the Pleadings filed by Minnesota Lawyers Mutual Insurance Company in re 36 Findings and Recommendations. MLM's Motion for Judgment on the Pleadings is DENIED. Signed by Judge Richard F. Cebull on 10/19/2011. (ACL, )
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McCollough v. Minnesota Lawyers Mutual Insurance Company et al Doc. 42 riLED BILLINGS DIV. IN THE UNITED STATES DISTRICT COU~l1 FOR THE DISTRICT OF MONTANA BY OCT 19 Prl Y 15 ------DEPUTY CLERK BILLINGS DIVISION TIMOTHY MCCOLLOUGH, ) ) Plaintiff, CV-09-95-BLG-RFC-CSO ) ) vs. ) MINNESOTA LAWYERS MUTUAL INSURANCE COMPANY and JOHN DOES I and II, Defendants. ORDER ) ) ) ) ---------------------------) On July 27,20011 United States Magistrate Judge Carolyn Ostby entered Findings and Recommendation (F&R)(Doc. 36) with respect to Defendant Minnesota Lawyers Mutual Insurance Company's (MLM) Motion for Judgment on the Pleadings (Doc. 26). Magistrate Judge Ostby recommends that MLM's Motion be denied. Judge Ostby concluded that, at this stage in the litigation, Plaintiff's claims were not barred by the Supremacy Clause of the United States Constitution. Upon service of a magistrate judge's findings and recommendation, a party has 14 days to file written objections. 28 U.S.C. § 636(b)(1). In this matter, Defendant filed an objection on August 2,2011 (Doc. 39). Plaintiff 1 Dockets.Justia.com responded to Defendant's objections on August 12, 2011 (Doc. 40). Defendant's objections require this Court to make a de novo determination of those portions of the Findings and Recommendations to which objection is made. 28 U.S.C. § 636(b )(1). Defendant objects to the Findings and Recommendation based on the argument that the Supremacy Clause, specifically an insured's right to defend itself in federal court, preempts state insurance regulations. In declining to dismiss all claims with prejudice Judge Ostby points out that the "duty to settle" issue encompasses only a portion of Plaintiffs Complaint. Judge Ostby states, "[the insured's] purported refusal to consent to settlement in the underlying case may be relevant to the defenses raised by MLM, but it does not defeat McCollough's claims at this stage in the proceedings." Finally, Judge Ostby makes clear that her recommendation does not preclude a subsequent motion under Rule 56. After a thorough review, the Court finds Magistrate Judge Ostby's recommendation well reasoned. For the reasons set forth above, IT IS HEREBY ORDERED: (1) Magistrate Judge Ostby's Findings and Recommendations (Doc. 36) are adopted in its entirety. (2) MLM's Motion for Judgment on the Pleadings (Doc. 26) is DENIED. 2 DATED this 4­ ~ Day of October, 2011 . .chard Cebull U.S. District Court Judge 3