Guadiana v. State Farm Fire and Casualty Company

Filing 29

ORDER adopting Report and Recommendations re 25 denying 12 Motion to Dismiss Case; ORDERED that this action is referred back to Magistrate Judge Edmonds.. Signed by Judge Frank R Zapata on 8/29/08.(JKM, )

1 2 3 4 5 6 7 8 9 Rosemary Guadiana, 10 11 v. 12 State Farm Fire and Casualty Co., 13 14 15 16 Defendants. Plaintiff, ) ) ) ) ) ) ) ) ) ) No. CV 07-326 TUC FRZ (GEE) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Before the Court for consideration is Defendant's Motion to Dismiss. This matter was referred to the United States Magistrate Judge for all pretrial

17 proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. 18 § 636(b)(1) and LRCiv 72.1 and LRCiv 72.2, Rules of Practice of the United States District 19 Court for the District of Arizona. 20 Magistrate Judge Glenda E. Edmonds issued her Report and Recommendation, filed

21 January 15, 2008, recommending that the District Court, after its independent review of the 22 record, enter an order denying Defendant's Motion to Dismiss for failure to state a claim 23 pursuant to Rule 12(b)(6), FED.R.CIV.P. 24 The Report and Recommendation sets forth the factual and procedural background and

25 a thorough discussion on the claim for coverage and policy provisions at issue in this case 26 under the proper standard of review of a Rule 12(b)(6) motion. Magistrate Judge Edmonds 27 concluded, after reviewing all matters submitted and hearing oral argument, that Plaintiff 28 Rosemary Guadiana's home owner policy, issued by Defendant State Farm Fire and Casualty

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Company, covers the costs of tearing out and replacing part of the structure where polybutylene plumbing was replaced as alleged in the Complaint. Defendant filed its objection to the Report and Recommendation and a reply to Plaintiff's response thereto, arguing that Magistrate Judge Edmonds ignored the causation requirement in the policy and the exclusions set forth and that her "failure to harmonize the Policy's exclusions with the tear-out provision cause her to incorrectly create coverage where none exists." The Court, having made an independent review of the record herein, including Defendant's Objection to Report and Recommendation Concerning Motion to Dismiss, Plaintiff's Response to Defendant's Objection to Magistrate's Report and Recommendation Concerning Motion to Dismiss and Defendant's Reply in Support of Defendant's Objection to Report and Recommendation Concerning Motion to Dismiss, finds that Plaintiff's Complaint does state a claim upon which relief may be granted under the Rule 12(b)(6) standard of review and that the Report and Recommendation of Magistrate Judge Edmonds shall be adopted as the findings of fact and conclusions of law of this Court. Based on the foregoing, IT IS ORDERED that Magistrate Judge Edmonds' Report and Recommendation is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court; IT IS FURTHER ORDERED that Defendant's Motion to Dismiss [Doc. #12] is DENIED; IT IS FURTHER ORDERED that this action is referred back to Magistrate Judge Edmonds for all pretrial proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and LRCiv 72.1 and LRCiv 72.2.

DATED this 29th day of August, 2008.

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