KIELBANIA et al v. INDIAN HARBOR INSURANCE COMPANY

Filing 67

ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 12/14/2012; that Plaintiffs' Motions for Consideration of Further Evidence (Docs. 60 and 64 ) are DENIED. That the Magistrate Judge's Recommendation (Doc. 49 ) is ADOPTED< /b>. FURTHER that Defendant's Motion for Summary Judgment (Doc. 26 ) is GRANTED as to Plaintiffs' First Claim for Relief, but otherwise is DENIED, and that this matter will proceed to trial on Counts II and III related to Plaintiffs' claims for unfair insurance practices and bad faith refusal to settle. FURTHER that Plaintiffs' Motion for Summary Judgment (Doc. 28 ) is DENIED. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KENNETH KIELBANIA and
GAY KIELBANIA,
Plaintiffs,
v.
INDIAN HARBOR INSURANCE
COMPANY,
Defendant.

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1:11CV663

ORDER
This matter is before this court for review of the
Memorandum Opinion and Recommendation (“Recommendation”) filed
on September 10, 2012, by the Magistrate Judge in accordance
with 28 U.S.C. § 636(b).

(Doc. 49.)

In the Recommendation, the

Magistrate Judge recommends that Defendant’s Motion for Summary
Judgment (Doc. 26) be granted as to Plaintiffs’ First Claim for
Relief, but otherwise denied, that Plaintiffs’ Motion for
Summary Judgment (Doc. 28) be denied, and that this matter
proceed to trial on Counts II and III related to Plaintiffs’
claims for unfair insurance practices and bad faith refusal to
settle.

The Recommendation was served on the parties to this

action on September 10, 2012.

Counsel for Plaintiffs and

Defendant filed timely objections (Docs. 60, 61, and 62) to the
Recommendation.

This court is required to “make a de novo determination of
those portions of the [Magistrate Judge’s] report or specified
proposed findings or recommendations to which objection is
made.”

28 U.S.C. § 636(b)(1).

This court “may accept, reject,

or modify, in whole or in part, the findings or recommendations
made by the Magistrate Judge . . . . or recommit the matter to
the Magistrate Judge with instructions.” Id.
This court has appropriately reviewed the portions of the
Recommendation to which objections were made and has made a de
novo determination of the Report which is in accord with the
Magistrate Judge’s Recommendation.

This court therefore adopts

the Recommendation.
This court notes that Plaintiffs have moved, in their
objections, for consideration by the district court of
additional evidence, specifically two affidavits of Plaintiff
Kenneth Kielbania.

This evidence was not submitted with

Plaintiffs’ original Motion for Summary Judgment and, thus, was
not addressed in the Recommendation.

Under 28 U.S.C.

§ 636(b)(1), this court “may receive further evidence,” but is
not required to do so, and is of the belief that untimely
submission of evidence often serves to undermine the magistrate
review process rather than illuminate the arguments already

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before the court.1

This is the case here.

As such, Plaintiffs’

Motions for Consideration of Further Evidence (Docs. 60 and 64)
are DENIED.2
IT IS THEREFORE ORDERED that the Magistrate Judge’s
Recommendation (Doc. 49) is ADOPTED.

IT IS FURTHER ORDERED that

1

“While there may be cases in which the receipt of further
evidence is appropriate, there are substantial reasons for
declining to do so as a general matter. First, permitting such
piecemeal presentation of evidence is exceptionally wasteful of
time of both the magistrate and district judges . . . Second,
opposing parties would be put to the burden of proceedings
which, to a considerable degree, would be duplicative. . . .”
Virgin Enters. Ltd. v. Virgin Cuts, Inc., 149 F. Supp. 2d 220,
224-25 (E.D. Va. 2000) quoting Morris v. Amalgamated
Lithographers of Am., 994 F. Supp. 161, 163 (S.D.N.Y 1998).
2

This court notes that consideration of the affidavits
associated with these motions would yield little assistance to
Plaintiffs. The Third Affidavit of Kenneth Kielbania (Pls.’ Br.
Appealing Mag.’s Rec. (Doc. 61-2), App. #77) does not address
novel considerations that would warrant granting Plaintiffs’
Motion for Summary Judgment or denying that of Defendant. Even
if, as sworn by Mr. Kielbania, Defendant did not inform
Plaintiffs of the existence or potential application of the
coinsurance provision, Plaintiffs are still charged with
knowledge of the contents of their insurance policy, as with any
contract. See, e.g., McCain v. Shenandoah Life Ins. Co., 224
N.C. 837, 839-40 (1945).
The Fourth Affidavit of Kenneth Kielbania (Pls.’ Br. in
Resp. to Def.’s Objections to Mag.’s Rec. (Doc. 65-2), App. #86)
expounds on issues that the Magistrate Judge had already found
ripe for trial, a ruling with which this court is in accord.
Plaintiffs will be afforded their opportunity to present
evidence on whether or not Defendant’s alleged unfair insurance
practices caused their damages before a trier-of fact. Alone,
however, the sworn statement does not remove genuine issues of
material fact so as to warrant summary judgment in Plaintiffs’
favor.
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Defendant’s Motion for Summary Judgment (Doc. 26) is GRANTED as
to Plaintiffs’ First Claim for Relief, but otherwise is DENIED,
and that this matter will proceed to trial on Counts II and III
related to Plaintiffs’ claims for unfair insurance practices and
bad faith refusal to settle.

IT IS FURTHER ORDERED that

Plaintiffs’ Motion for Summary Judgment (Doc. 28) is DENIED.
This the 14th day of December, 2012.

________________________________________
United States District Judge

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