Harless et al v. Cincinnati Insurance Company

Filing 14

MEMORANDUM OPINION AND PARTIAL DISMISSAL ORDER - The Court has reviewed the record and Judge Daviss November 5, 2015 report and recommendation. Applying the clearly erroneous standard, the Court ADOPTS the November 5, 2015 report and ACCEPTS Judge D aviss recommendation that the Court enter judgment as a matter of law on the plaintiffs claims for bad faith (Count II) and negligent, reckless and/or wanton claims handling (Count III). The Court DISMISSES WITH PREJUDICE the plaintiffs claims for ba d faith (Count II) and negligent, reckless and/or wanton claims handling (Count III). The plaintiffs claim for breach of contract (Count I) and the defendants counterclaim for declaratory judgment remain pending. The Court returns these claims to Judge Davis for further proceedings consistent with this memorandum opinion. Signed by Judge Madeline Hughes Haikala on 3/21/2016. (KEK)

FILED
2016 Mar-21 AM 10:46
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RONALD HARLESS, et al.,

)
)
Plaintiffs/Counterclaim Defendants )
)
vs.
)
)
CINCINNATI INSURANCE
)
COMPANY,
)
)
Defendant/Counterclaim Plaintiff )

Case No. 2:14-cv-01629-HGD

MEMORANDUM OPINION AND PARTIAL DISMISSAL ORDER
On November 5, 2015, Magistrate Judge Harwell Davis entered a report and
recommendation concerning defendant/counterclaim plaintiff Cincinnati Insurance
Company’s motion for partial summary judgment. (Doc. 13) In his report, Judge
Davis recommended that the Court grant the motion for partial summary judgment.
(Doc. 13, p. 19). Judge Davis explained to the parties that they had fourteen days
in which to file objections to the recommendation. (Doc. 13, pp. 19-20). Neither
party has filed objections.
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
When a party objects to a report and recommendation, the district court must
“make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made.” Id. The
Court reviews for plain error the portions of the report or proposed factual findings
to which no objection is made. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th
Cir. 1993); see also United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983)
(per curiam), cert. denied, 464 U.S. 1050 (1984) (“The failure to object to the
magistrate’s findings of fact prohibits an attack on appeal of the factual findings
adopted by the district court except on grounds of plain error or manifest
injustice.”) (internal citation omitted); Macort v. Prem, Inc., 208 Fed. Appx. 781,
784 (11th Cir. 2006).
The Court has reviewed the record and Judge Davis’s November 5, 2015
report and recommendation. Applying the clearly erroneous standard, the Court
ADOPTS the November 5, 2015 report and ACCEPTS Judge Davis’s
recommendation that the Court enter judgment as a matter of law on the plaintiffs’
claims for bad faith (Count II) and negligent, reckless and/or wanton claims
handling (Count III). The Court DISMISSES WITH PREJUDICE the plaintiffs’
claims for bad faith (Count II) and negligent, reckless and/or wanton claims
handling (Count III).
The plaintiffs’ claim for breach of contract (Count I) and the defendant’s
counterclaim for declaratory judgment remain pending. The Court returns these

2

claims to Judge Davis for further proceedings consistent with this memorandum
opinion.
DONE and ORDERED this March 21, 2016.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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