Walker v. FFVA Mutual Insurance Company et al

Filing 91

Order Adopting Proposed Findings of Fact and Recommendation 76 , Denying Defendant QBE Insurance Company's Motion to Dismiss 49 , and Denying Plaintiff's Motion for Declaratory Judgment 56 . Signed by District Judge Halil S. Ozerden on February 4, 2014. (NM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KONINEDOU FONTA WALKER
v.
FFVA MUTUAL INSURANCE
COMPANY, JAMES B. DONAGHEY,
INC., STATE FARM INSURANCE
COMPANY, QBE INSURANCE
COMPANY, AND BRADLEY
SANDERS

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PLAINTIFF
CIVIL NO.: 1:12cv301-HSO-RHW
DEFENDANTS

ORDER ADOPTING PROPOSED FINDINGS OF FACT AND
RECOMMENDATION, DENYING DEFENDANT QBE INSURANCE COMPANY’S
MOTION TO DISMISS, AND DENYING PLAINTIFF’S
MOTION FOR DECLARATORY JUDGMENT
BEFORE THE COURT is the Proposed Findings of Fact and
Recommendation of United States Magistrate Judge Robert H. Walker [76] entered
on December 23, 2013. Also before the Court is Defendant QBE Insurance
Company’s (“QBE”) Motion to Dismiss [49] arguing Plaintiff Koninedou Fonta
Walker (“Plaintiff”) has failed to state a claim for relief against QBE, and Plaintiff’s
Motion for Declaratory Judgment against QBE [56] seeking a judgment that the
injuries Plaintiff alleges he suffered in a traffic accident are covered by a QBE
insurance policy issued to Plaintiff’s employer (“the Policy”).
The Magistrate Judge concluded QBE’s Motion to Dismiss should be denied
because Plaintiff’s allegations that he made a claim for pain and suffering against
QBE and that QBE has yet to award funds from the Policy are sufficient to state a
direct cause of action for declaratory relief against QBE. Proposed Findings of Fact

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and Recommendation 2-3 [76]. The Magistrate Judge also concluded Plaintiff’s
Motion for Declaratory Judgment should be denied on the basis that the record
regarding coverage issues must be further developed. Id. at 3.
To date, no objection to the Proposed Findings of Fact and Recommendation
has been filed by either QBE or Plaintiff. Where no party has objected to a
magistrate judge’s proposed findings of fact and recommendation, a court need not
conduct a de novo review of the proposed findings of fact and recommendation. See
28 U.S.C. § 636(b)(1) (“[A] judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings and recommendations to
which objection is made.”). In such cases, the Court need only review the proposed
findings of fact and recommendation and determine whether it is either clearly
erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.
1989). Having conducted the required review, the Court finds that the Magistrate
Judge’s Proposed Findings of Fact and Recommendation thoroughly considered all
issues and is neither clearly erroneous nor contrary to law. The Court, being fully
advised in the premises, finds that the Magistrate Judge properly recommended
that QBE’s Motion to Dismiss and Plaintiff’s Motion for Declaratory Judgment
should both be denied. The Proposed Findings of Fact and Recommendation should
be adopted as the opinion of this Court.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Proposed
Findings of Fact and Recommendation [76] of Magistrate Judge Robert H. Walker
entered on December 23, 2013, is adopted as the finding of this Court.

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IT IS, FURTHER, ORDERED AND ADJUDGED that QBE’s Motion to
Dismiss [49] filed on September 12, 2013, is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff’s Motion for
Declaratory Judgment [56] filed on October 4, 2013, is DENIED.
SO ORDERED AND ADJUDGED, this the 4th day of February, 2014.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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