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HULTZ v. FEDERATED MUT. INS. CO.

March 11, 1993

KENNETH E. HULTZ, D/B/A HULTZ STANDARD SERVICE, PLAINTIFF-COUNTERDEFENDANT,
v.
FEDERATED MUTUAL INSURANCE COMPANY, DEFENDANT-COUNTERPLAINTIFF.



The opinion of the court was delivered by: Richard Mills, District Judge:

ORDER

This cause is before the Court on the recommendation of United States Magistrate Judge Charles H. Evans to dismiss Count II of Plaintiff's amended complaint. 28 U.S.C. § 636(b)(1).

Section 636 allows any party to appeal from or object to a magistrate's recommendation "[w]ithin 10 days after being served with a copy."

The Magistrate entered his recommendation on January 14, 1993. No objections or modifications have been filed since that time. Therefore, without objection to and upon consideration of the Magistrate's findings and conclusions, the Court adopts in toto the reasoning of the recommendation. See Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538 (7th Cir. 1986) (failure to file objections with the district judge constitutes a waiver of all factual and legal issues).

Ergo, Defendant's motion to dismiss Count II of Plaintiff's amended complaint (d/e 32) is ALLOWED WITH PREJUDICE.

RECOMMENDATION

This recommendation is being submitted pursuant to Rule 1.4, (A)(7) of the Rules of the United States District Court for the Central District of Illinois.

Procedural Posture

Plaintiff Kenneth E. Hultz, d/b/a Hultz Standard Service ("Hultz") filed a three-count complaint against Federated Mutual Insurance Company ("Federated") seeking, in part, insurance coverage. Count II in Hultz's initial complaint alleged Federated's refusal to cover its claim is vexatious and unreasonable under Ill.Rev.Stat. Ch. 73 § 767 and Hultz sought remedies afforded by both common law and statutory law under section 767. Federated moved to dismiss with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) arguing, in part, that Count II failed to state a claim as Ill.Rev.Stat. Ch. 73 § 767 preempts such common law actions. Federated's motion was allowed and Hultz was given leave to amend Count II.

Hultz's amended Count II, contained in its First Amended Complaint, alleges that Federated owed Hultz a duty of good faith in resolving its claim and that Federated breached its duty in the following respects:

  "By failing to sufficiently investigate Hultz'
  claim to determined [sic] that contamination was
  not caused by a leak of kerosene tank.
  By failing to determine that Hultz' claim was
  properly made to its agent, thus causing a delay
  of resolution of the claim."

Hultz seeks compensatory damages for this cause of action.

Federated again moved to dismiss Count II with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) based on its position that Ill.Rev.Stat. Ch. 73, ยง 767 preempts such common law claims for breach of the duty of good faith. This Motion to ...


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