The opinion of the court was delivered by: Richard Mills, District Judge:
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.
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.
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, § 767 preempts such common law claims for
breach of the duty of good faith. This Motion to ...