Moore v. The Travelers Indemnity Company et al

Filing 153

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; denying 110 Motion for Summary Judgment; adopting Findings and Recommendations re 152 Findings and Recommendations. Signed by Chief Judge Dana L. Christensen on 1/3/2017. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DALE D. MOORE, and JEANIE
NELSON, husband and wife,

CV 15–71–M–DLC-JCL

Plaintiffs,

ORDER

vs.
ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY,
Defendant.
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendation on December 12, 2016, recommending denial of Defendant
Allstate Fire and Casualty Insurance Company’s (“Allstate”) Motion for Summary
Judgment. The parties failed to timely object to the Findings and
Recommendation, and so waived their right to de novo review of the record. 28
U.S.C. § 636(b)(1)(C). This Court reviews for clear error those findings and
recommendations to which no party objects. See McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v.
Arn, 474 U.S. 140, 149 (1985). Clear error exists if the Court is left with a
“definite and firm conviction that a mistake has been committed.” United States v.
Syrax, 235 F.3d 422, 427 (9th Cir. 2000) (citations omitted).
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Having reviewed the Findings and Recommendation, the Court finds no
clear error in Judge Lynch’s conclusion that Allstate’s motion should be denied
because Plaintiff Dale Moore does not need to exhaust the $300,000 per person
limit on the primary insurance policy before seeking coverage for underinsured
motorist benefits under Allstate’s policy as long as Allstate is able to claim an
offset of Moore’s damages in an amount equal to the applicable limit on the
primary policy.
Accordingly, there being no clear error in Judge Lynch’s Findings and
Recommendation, IT IS ORDERED that:
(1) Judge Lynch’s Findings and Recommendation (Doc.152) are ADOPTED
IN FULL.
(2) Defendant Allstate’s Motion for Summary Judgment Regarding
Enforcement of Excess Clause (Doc. 110) is DENIED.
Dated this 3rd day of January, 2017.

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