Kearney Construction Company, LLC v. Travelers Casualty and Surety Company of America

Filing 692

ORDER: Travelers Casualty & Surety Company of America's Objection to the Magistrate Judge's January 14, 2016 Order 687 is OVERRULED. Signed by Judge James S. Moody, Jr on 2/12/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

KEARNEY CONSTRUCTION COMPANY
LLC,
Plaintiff,
v.

Case No. 8:09-cv-1850-T-30TBM

TRAVELERS CASUALTY &
SURETY COMPANY OF AMERICA,
Defendant.
v.
KEARNEY CONSTRUCTION
COMPANY, LLC, BING CHARLES W.
KEARNEY, BRIAN W. SEEGER,
ALAN PAYNE, FLORIDA
TRUCKING CO., INC., FLORIDA
EQUIPMENT CO., LLC., KEARNEY
CONSTRUCTION COMPANY, INC.,
AVT EQUIPMENT LLC, KEARNEY
DEVELOPMENT COMPANY, INC.,
K & S EQUIPMENT COMPANY, INC.,
FLORIDA SOIL CEMENT, LLC, FLORIDA
FUEL TRANSPORTERS, LLC.
Third Party Defendants.
_____________________________________/
ORDER
This cause comes before the Court upon the Magistrate Judge’s Order dated
January 14, 2016 (Dkt. #680), Travelers Casualty & Surety Company of America’s
Objection to the Magistrate Judge’s January 14, 2016 Order (Dkt. #687), and Defendant
Bing Charles W. Kearney’s Response to Travelers’ Objection to Magistrate Judge’s

January 14, 2016 Order (Dkt. #691).

Upon review and consideration, the Court

concludes that Travelers’ Objection should be overruled.
The Magistrate Judge did not err when he denied Travelers’ Motion to Strike
Defendant Bing Charles W. Kearney’s Amended Claim of Exemption. Under the unique
facts presented, the interests of justice dictate that Kearney should be granted leave to
amend his claim of exemption. Kearney timely filed a claim of exemption claiming head
of household and tenants-by-the-entireties exemptions, as well as unspecified “other
exemptions as provided by law.” Kearney’s failure to place a checkmark or “X” on the
line indicating the retirement funds exemption was due to a scrivener’s error—the
oversight does not prejudice Travelers because Travelers was already aware that Kearney
disputed the garnishment and was already on notice that the funds held by USAmeriBank
included retirement funds.
It is therefore ORDERED and ADJUDGED that Travelers Casualty & Surety
Company of America’s Objection to the Magistrate Judge’s January 14, 2016 Order (Dkt.
#687) is OVERRULED.
DONE and ORDERED in Tampa, Florida on February 12, 2016.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2009\09-cv-1850 overrule 687.wpd