WISEMAN OIL CO., INC. et al v. TIG INSURANCE COMPANY

Filing 63

ORDER denying 36 Motion for Judgment on the Pleadings; 58 Report and Recommendation of Chief Magistrate Judge Lenihan, dated May 29, 2012, is adopted as the opinion of the Court. Signed by Judge Joy Flowers Conti on 7/17/2012. (smc )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WISEMAN OIL CO., INC.,
ESTATE OF JOSEPH WISEMAN,
ESTATE OF RUTH N. WISEMAN,
EILEEN FANBURG, AS
EXECUTRIX
Plaintiffs,
v.
TIG INSURANCE CO. F/K/A
TRANSAMERICA INSURANCE
CO.
Defendant.

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Civil Action No. 011-1011
U.S. District Judge Joy Flowers Conti
Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER ON
DEFENDANT’S MOTION FOR JUDGMENTON THE PLEADINGS
The Complaint in the above captioned case was received by the Clerk of Court on August
4, 2011 and was referred to United States Chief Magistrate Judge Lisa Pupo Lenihan for pretrial
proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1), and Local Rules
of Court 72.C and 72.D.
The Chief Magistrate Judge's Report and Recommendation filed on May 29, 2012,
recommended that the Motion for Judgment on the Pleadings filed by Defendant, and premised on

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various statute of limitations grounds, be denied.
Service was made on all counsel of record. The parties were informed that in accordance
with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local
Rules of Court, that they had fourteen (14) days to file any objections. Defendant’s Objections
and Plaintiff’s Response to those Objections were timely filed with respect to the Report and
Recommendation.
After review of the pleadings and documents in the case, together with the Report and
Recommendation, the court finds the extensive, but largely, reiterated arguments contained in
Defendant’s Objections unpersuasive1 and that the reasons for rejecting those arguments are fully
explained in the Report and Recommendation, including illustrative distinctions between language
sufficient and insufficient to constitute a clear and unequivocal denial of coverage. For the
reasons set forth in the Report and Recommendation, the following Order is entered:
AND NOW, this 17th day of July, 2012,

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While this court is not required to, and does not generally, respond to every legal argument
presented in a party’s briefing, because Defendant reargues in its Objections its assertion that
language of the complaint’s allegations should be read to time-bar the claims, the court directs
Defendant to the more-apt analysis – regarding the usage and meaning of the term “immediately
and entirely” in an insurance context, and statute of limitations analysis under current case law –
contained in Plaintiff’s prior briefing on the Motion for Judgment. See also Transcript of April 5,
2012 Oral Argument; Plaintiff’s Response to Defendant’s Objections at 10-12.
The additional decisions relied upon be Defendant in its Objections with respect to the claim for
declaratory judgment are inapposite. See Plaintiff’s Response at 12-14 (including citations to
Transcript of Oral Argument).
.

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IT IS HEREBY ORDERED that the Motion for Judgment on the Pleadings filed by
Defendant is DENIED.
IT IS FURTHER ORDERED that the Report and Recommendation of Chief Magistrate
Judge Lenihan, dated May 29, 2012, is adopted as the opinion of the Court.

/s/Joy Flowers Conti
Joy Flowers Conti
United States District Judge

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