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Robert J. Aumen and Sharon M. Aumen v. Nationwide Mutual Insurance Co


March 8, 2011


The opinion of the court was delivered by: Magistrate Judge Prince



I. Procedural Background

Pursuant to an Order entered on January 6, 2011 (Doc. 28), the Honorable John E. Jones referred the pending Motion for Summary Judgment to the undersigned for the purpose of preparing a Report and Recommendation.

Plaintiffs initiated this action by filing a complaint on March 17, 2010 (Doc. 1) against their insurer, Defendant Nationwide Mutual Insurance Co. ("Nationwide"). The complaint alleged Defendant engaged in bad faith in the investigation and handling of Plaintiffs' claim for underinsurance motorist benefits ("UIM"), in violation of the Pennsylvania Unfair Insurance Practices Act, 40 P.S. §1171 et seq.

On November 3, 2010, Defendant filed a motion for summary judgment, a supporting brief and a statement of material facts. (Docs. 18, 20, 21). Plaintiffs filed an affidavit, a brief in opposition to the motion, a counter-statement of material facts and exhibits on November 17, 2010 (Docs. 23, 24, 25, 26),*fn1 to which Defendant filed a reply brief on November 10, 2010 (Doc. 27).*fn2 The matter is now ripe for disposition. For the reasons that follow, it will be recommended that the Defendant's motion for summary judgment be granted.

II. Factual Background

The factual background giving rise to the complaint is as follows: Plaintiff Robert Aumen was involved in a motor vehicle accident while in a van owned by his employer, Utz, on November 25, 2003 in Westminster, Maryland. At that time, Plaintiffs were the beneficiaries of a policy of motor vehicle insurance, Number 172486, issued by the Defendant. The insurance policy provided benefits of $50,000.00 per person and $100,000.00 per accident, and these benefits were "stacked" for three vehicles, thus rendering a maximum coverage of $150,000.00 per person. The policy further provided for wage loss and medical expenses. The tortfeasor in the accident, Dale White, had a policy of insurance with Progressive Insurance, which provided liability coverage in the amount of $25,000.00.*fn3

Inasmuch as Plaintiffs maintained that their injuries exceeded this amount, they made a claim for UIM benefits with Defendant on January 22, 2004. In response, on March 29, 2004, Defendant issued a reservation of rights letter to Plaintiffs indicating that the matter was being investigated. Defendant thereafter informed Plaintiffs that it would not be paying lost wages or UIM benefits because Plaintiff was in his employer's vehicle at the time of the accident.

Thereafter, a written demand for arbitration on the UIM claim was sent to Defendant on February 23, 2007. Defendant accepted coverage of Plaintiffs' UIM claim in December, 2007 and communicated this to Plaintiffs' counsel in February, 2008. On January 15, 2009, Defendant agreed to a settlement of the UIM claim for $80,000.00 in exchange for a general release from Plaintiffs. Arguing that this general release is violative of the Pennsylvania's Unfair Insurance Practices Act and that the Defendant acted in bad faith in resolving the UIM claim, the present action followed.

III. Standard of Review

Federal Rule of Civil Procedure 56(c) requires the court to render summary judgment " . . . forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. When the party seeking summary judgment satisfies its burden under Rule 56(c) of identifying evidence which demonstrates the absence of a genuine issue of material fact, the nonmoving party is required by Rule 56(e) to go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56(e) shifts the burden of production to the nonmoving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).

IV. Discussion

"UIM insurance is designed to protect an insured from a negligent driver of another vehicle who causes injury to the insured, but through no fault of the insured, lacks adequate coverage to compensate the insured for his or her injuries." Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 209 (3d Cir. 2001). While there is no common law remedy for the bad faith handling of insurance claims by an insurer, Pennsylvania law, 42 Pa. C.S.A. § 8371, provides a statutory remedy for such claims. Although the term "bad faith" is not defined in the statute, the Pennsylvania courts have followed the definition provided by Black's Law Dictionary:

"Bad faith" on [the] part of [an] insurer is any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer for failure to pay a claim, such conduct imports a dishonest purpose and means a breach of a known duty (i.e. good faith and fair dealing), through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith.

MGA Ins. Co. v. Bakos, 699 A.2d 751, 754 (Pa. Super. Ct. 1997) (internal citations omitted).

The Pennsylvania courts have stated: "[t]o succeed in a bad faith claim, the insured must present clear and convincing evidence that 'the insurer did not have a reasonable basis for denying benefits under the policy and that the insurer knew of or recklessly disregarded its lack of reasonable basis in denying the claim.'"

Bonenberger v. Nationwide Mut. Ins. Co., 791 A.2d 378, 380 (Pa. Super. Ct. 2002). Such a claim can be made as to the handling of UIM claims. Boenberger, 791 A.2d at 379. Further, "[t]he 'clear and convincing' standard requires a showing by the plaintiffs that the evidence is so clear, direct, weighty and convincing as to enable a clear conviction, without hesitation, about whether or not the defendants acted in bad faith." Bostick v. ITT Hartford Group, Inc., 56 F. Supp. 2d 580, 587 (E.D. Pa.1999) (quoting Stafford v. Reed, 70 A.2d 345 (1950)) (internal citations omitted). Moreover, "mere negligence or bad judgment is not bad faith. To support a finding of bad faith, the insurer's conduct must be such as to 'import a dishonest purpose.' In other words, the plaintiff must show that the insurer breached its duty of good faith through some motive of self-interest or ill-will."

Condio v. Erie Insurance Exchange, 899 A.2d 1136, 1143 (Pa. Super. 2006). "Accordingly, the plaintiff's burden in opposing a summary judgment motion is commensurately high because the court must view the evidence presented in light of the substantive evidentiary burden at trial." Kosierowski v. Allstate Ins. Co., 51 F. Supp.2d 583, 588 (E.D. Pa.1999). Summary judgment is appropriate on a bad faith claim "when there is no clear and convincing evidence that the insurer's conduct was unreasonable and that it knew or recklessly disregarded its lack of a reasonable basis in denying the claim." Bostick, 56 F. Supp.2d at 588.

In evaluating the duty owed by insurers in the context of handling UIM claims, the Pennsylvania Superior Court stated:

Pennsylvania law holds insurers to a duty of good faith and fair dealing toward their insureds ... without distinguishing between first party and third party settings ... [UIM] claims contain elements of both first party and third party claims. We see no reason, therefore, to impose a different duty on an insurance company in a [UIM] claim setting. While the legal relationship of the parties may change in the context of a [UIM] claim, i.e. become adversarial, the insurer's duty does not change ... [W]hen faced with a [UIM] claim, an insurance company's duty to its insured is one of good faith and fair dealing. It goes without saying that this duty does not allow an insurer to protect its own interests at the expense of its insured's interests. Nor does it require an insurer to sacrifice its own interests by blindly paying each and every claim submitted by an insured in order to avoid a bad faith lawsuit.

Condio, supra at 1145.

Here, Plaintiffs contend that Defendant acted in bad faith by: (1) failing to conduct a reasonable coverage investigation into Plaintiffs' claim; (2) delaying acceptance of coverage and (3) requesting Plaintiffs execute a general release which, they assert, is contrary to Pennsylvania law.

(A) Expert Opinions in Rule 56 Motions

Defendant first asserts that Plaintiffs' argument opposing summary judgment is based upon a report of their expert, James P. Schratz. Plaintiffs rely on the report of Mr. Schratz, an attorney with significant experience in the insurance and claims resolution field, to support their position that Defendant acted in bad faith. Defendants contend that the report, and any arguments advanced by Plaintiffs in reliance thereon, should be disregarded because Rule 56 does not permit expert reports to address the existence or absence of genuine issues of material facts. Although Mr. Schratz is able to testify as to industry practices or standards, to the extent that the report addresses the ultimate issue of this case, to wit., whether there is clear and convincing evidence that Defendant acted unreasonably in the handling of Plaintiffs' UIM claim to support the fact-finder's conclusion that such conduct constitutes bad faith, the report will not be considered. See Dattilo v. State Farm Ins. Co., 1997 WL 644076, *5 (E.D. Pa. Oct.17, 1997) ("Bad faith is a legal concept of general application which does not require that scientific, technical or specialized knowledge be presented to assist the trier of fact.").

(B) Reasonableness of Defendant's Position

Defendant contends that it acted reasonably in its initial denial of Plaintiffs' UIM claim and that state case law supported its interpretation and application of a policy exclusion to this matter. However, Plaintiffs assert that Defendant failed to conduct an adequate factual investigation, reviewing Plaintiffs' claim for only one hour before deciding to deny coverage based on an exclusion to the policy. They argue further that case law advanced by Defendant in support of its decision was not researched and applied at the time the denial of UIM coverage was made. Plaintiffs maintain, therefore, that Defendant cannot base its decision on case law upon which it did not rely at the time the determination was made. Consequently, the subsequent use of such holdings, Plaintiffs argue, does not render Defendant's conduct reasonable because the reasonableness of Defendant's decision should be evaluated from the point in time it was made.

In addressing the time, or lack thereof, spent in reviewing the claim and making a determination, Defendant contends that the initial claims handler, Patrice McLaughlin, was a seasoned employee, well-versed in the procedures and considerations of claims examination, having been in the industry for over a decade. (See Doc. 21, Ex. I, p. 8-9). As part of her training, she undoubtedly received training in standard exclusions applied to insurance policies. Moreover, in the time she spent on this claim before rendering a decision, she reviewed the policy and she spoke with Plaintiffs' previous attorney, Brian Strong, Esquire, to confirm that Plaintiff had been in a vehicle owned by his employer and acting in the course and scope of his employment at the time of the accident. (See Doc. 21, Ex. I, p. 56, 60). She further testified that once she knew Plaintiff was delivering products as an employee of Utz and in a van owned by Utz, she would need no additional information to determine to that the exclusion, for carrying property for a fee, applied. (Doc. 21, Ex. I, p. 93:7-16). Consequently, whether her interpretation of the application of the exclusion was correct or not, given her background in handling insurance claims and her belief that she had all the necessary information to make a determination, it cannot be concluded that she acted in bad faith by reaching that decision quickly. Accordingly, this argument lacks merit.

Moreover, the exclusion upon which Defendant's determination was based specifically provides:

We will not pay First Party Benefits in certain circumstances, as follows:

6. There is no coverage for use by an insured of any vehicle to carry persons or properties for a fee.

(Doc. 21, Ex. C).*fn4 A case decided by the Pennsylvania Superior Court appeared to support Defendant's initial position. In Prudential Property and Casualty Insurance Company v. Sartno, 874 A.2d 85 (Pa. Super. Ct. 2005), a pedestrian who was injured when a pizza delivery car struck her brought an action against the driver's insurer. In seeking to exclude coverage under the driver's policy, the insurer argued that the "cars for hire" exclusion, which barred coverage for a vehicle used to carry people or property for a fee, was applicable to plaintiff's claim. Noting the disagreement between the parties as to the meaning of the term "fee,"*fn5 the Superior Court observed that proper inquiry was not whether a delivery fee was charged but rather the benefit that accrued to insured for the deliveries.

Id. at 89. The Superior Court held that the exclusion applied to an insured who received money for using his vehicle in a commercial environment to carry persons or property. Id. at 90.

Thereafter, the Pennsylvania Supreme Court granted an appeal and subsequently reversed the lower court's ruling. Prudential Property and Casualty Insurance Company v. Sartno, 903 A.2d 1170 (Pa. 2006). Addressing the term "fee" as it was used in the policy exclusion, the court held:

The instant matter is a prime example of language in a policy that can be understood in more than [one] way. Sartno prefers one interpretation; Prudential favors the other. Regardless of which one is "right" or "wrong," the fact is that because each interpretation is reasonable, the exclusionary term is ambiguous, and we must construe it in favor of the insured.

Sartno at 1177 (emphasis added). Accordingly, because the term "fee" was capable of "at least two perspectives that are reasonable," the Supreme Court concluded it must be construed in favor of the insured and against drafter, the insurer. Id. Therefore, without disputing the interpretation of the term by the lower court as a reasonable one, the Pennsylvania Supreme Court concluded the ambiguity of the term "fee" mandated its interpretation in favor of the plaintiff. While, in hindsight, the ambiguity of the term at issue may be clear, necessitating it be construed in Plaintiffs' favor, the fact remains that its interpretation of this term, and the accompanying application of the exclusion to Plaintiffs' claim, was not unreasonable.

Thus, there is a recognized ambiguity in the term "fee" as it applies to exclude insurance coverage for vehicles used for commercial purposes. Moreover, Defendant's initial position to deny coverage based on information that Plaintiff was acting within the course and scope of his employment by delivering goods to various retail outlets at the time the accident occurred cannot be said to be unreasonable. First, its interpretation of the term "fee" in the exclusion to the policy was the same meaning assigned by the Pennsylvania Superior Court in the Sartno decision. Although the Pennsylvania Supreme Court reversed that holding, in doing so it specifically recognized the reasonableness of interpreting "fee" to included instances where the insured was receiving wages, salaries or tips, and not merely a the existence of a delivery charge. Id. The lower court's holding, like the Defendant's initial position to deny coverage in the instant matter, while subsequently determined to be incorrect, was not unreasonable.

In further support of its position, Defendant also observes that Plaintiffs' prior counsel, Mr. Strong, did not advise Defendant that he disagreed with its assessment that Plaintiff was acting within the course and scope of his employment at the time of the accident or that he believed the term "fee" was ambiguous. Indeed, it is arguable that if such a position been viewed as unreasonable, an objection thereto would have and should have been made.

Accordingly, regardless of whether Defendant knew of such case law at the time it made its initial determination to deny coverage or whether such holding supported its position as to the interpretation of the term "fee" within the exclusion, the undeniable conclusion is that its interpretation was reasonable. See Bostick, supra at 587 ("Bad faith cannot be found where the insurer's conduct is in accordance with a reasonable but incorrect interpretation of the insurance policy and the law"); Jung v. Nationwide Mutual Fire Insurance Co., 949 F. Supp. 353, 359 n. 7 (E.D. Pa.1997) (declining to express an opinion on "[W]hether Nationwide's interpretation of the law was correct. This is irrelevant, because as long as Nationwide's act was reasonable, bad faith cannot be found even if their analysis of the law was wrong."). Consequently, Plaintiff has not established a bad faith claim and summary judgment in favor of the Defendant is warranted.

(C) Delay

A delay in evaluating and settling a claim "may be a relevant factor in determining whether an insurer has acted in bad faith." Williams v. Hartford Cas. Ins. Co., 83 F. Supp.2d 567, 572 (E.D. Pa. 2000). "It is well-settled, however, that 'a long period of time between demand and settlement does not, on its own, necessarily constitute bad faith.'" Aquila v. Nationwide Mut. Ins. Co., No. 07-CV-2696, 2008 WL 5348137, *9 (E.D. Pa. Dec. 15, 2008) (quoting Williams, 83 F. Supp.2d at 572). In determining whether delay is indicative of bad faith, "courts have looked to the degree to which a defendant insurer knew that it had no basis to deny the claimant; if delay is attributable to the need to investigate further or even to simple negligence, no bad faith has occurred." Kosierowski, 51 F. Supp. 2d at 589 (emphasis in original). See Quaciari v. Allstate Ins. Co., 998 F. Supp. 578, 582-83 (E.D. Pa.) aff'd without opinion, 172 F.3d 860 (3d Cir.1998) (thirteen month period between notification of a UIM claim and its resolution, even if completely attributable to the insurer, without more, is not sufficient to establish bad faith).

In the instant matter, Plaintiffs cite to the delay of the Defendant in making and/or communicating the coverage decision. After Plaintiffs' first counsel, Attorney Strong, reasserted the UIM claim in February, 2007 by demanding arbitration, it was ten months later, in December, 2007, that the Defendant accepted the claim and an additional two months, in February, 2008, before the Defendant communicated its acceptance to Mr. Strong.*fn6

Defendant argues, however, that the one year delay between acceptance and Plaintiffs' notification is not unreasonable and, moreover, it is not attributable solely to its actions. Immediately after receiving Mr. Strong's letter reasserting Plaintiffs' UIM claim and demanding arbitration thereon, Craig Robinson,*fn7 a claims handler assigned to the action, sent a reply stating that the file had been closed but that it would be forwarded to Defendant's counsel once it was received. (Doc. 21, Ex. O). On March 28, 2007, Donald R. Dorer, Esquire, sent Mr. Strong a letter indicating that he had been retained as counsel for Nationwide in this matter. (Doc. 21, Ex. R). In the first week of June, 2007, counsel for both parties exchanged emails regarding the scheduling of Plaintiff for a statement under oath, and settled on July 24, 2007 as the date for that matter. (Doc. 21, Ex. S). After the statement under oath was taken, Mr. Dorer corresponded with Mr. Strong on October 17, 2007 requesting additional information from Plaintiff that he had failed to obtain in the statement under oath. (Doc. 21, Ex. V). Almost a month later, on November 16, 2007, Mr. Strong sent a letter providing the relevant information to Mr. Dorer. (Doc. 26, Ex. J). Thereafter, in December, 2007, Mr. Dorer sent an email to Mr. Robinson indicating he had seen Mr. Strong on an unrelated matter and that he (Mr. Strong) mentioned receiving a voice mail message from Mr. Robinson on this matter, which Mr. Dorer encouraged him (Mr. Strong) to return. (Doc. 21, Ex. X).*fn8 It is unclear whether that phone call was returned by Mr. Strong , but on February 5, 2008, Mr. Robinson called and left another voice mail message for Mr. Strong. (Doc. 21, Ex. A, NATCF 1249). Mr. Robinson was subsequently able to "finally" reach Mr. Strong on February 12, 2008 wherein he inquired of potential settlement prospects. (Id. at 1248).

Based on this evidence, it appears clear that Defendant continued to advance the claim through processing towards resolution. Although there were delays of over two months from the time defense counsel was retained until a date for the statement under oath was scheduled, and also from the time the statement under oath was concluded until additional information was sought from Plaintiffs, these delays lack sufficient evidence to establish bad faith by the Defendant. Given the complexities and commitments occupying the schedules of not lawyers in general but also factoring in the availability of the Plaintiff and presumed review of the case by the claims agent and defense counsel, determining in the first week of June, 2007 as to a time and date for that matter cannot be considered and overt and unnecessary delay. Moreover, any delay attributable to Mr. Dorer's failure to elicit the proper and sufficient information in the course of Plaintiff's recorded statement taken on July 24, 2007 would amount to mere negligence. Consequently, the additional time required to seek further information through follow-up inquiries due to oversight is insufficient to establish bad faith on Defendant's part. See Kosierowski, supra.

Nor does the record contain correspondence on Plaintiffs' behalf during this time indicating that the processing of their claim was taking too long or that they believed Defendant was engaging in dilatory tactics to avoid resolution of the claim. Inasmuch as Defendant has put forth evidence indicating that it attempted to communicate with Plaintiffs' counsel no later than December, 2007, which was within one month of obtaining all relevant factual information and its acceptance of the UIM claim, there is a lack of clear and convincing evidence to support a conclusion that the Defendant acted in bad faith.

(D) Release

Finally, Plaintiffs contend that the release executed in consideration of the UIM settlement was contrary to Pennsylvania law. Specifically, they assert that the release is overly broad, requiring them to waive all claims growing out of their UIM coverage of their auto insurance policy, which is contrary to the Pennsylvania Unfair Insurance Practices Act, 40 Pa. C.S.A. §1171.4, which states: "No person shall engage in this state in any trade practice which is defined or determined to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance pursuant to this act." In addressing unfair claims settlement practices, the Pennsylvania Administrative Code further provides that "[a]n insurer may not request a first-party claimant to sign a release that extends beyond the subject matter that gave rise to the claim payment." 31 Pa. ADC §146.4(e).

Defendant argues that the release was limited to Plaintiffs' UIM claims. The release provides:



[F]or the sole consideration of the sum of Eighty Thousand Dollars ($80,000.00) . . . the undersigned hereby releases, discharges, and for his/her self, his/her executors, administrators successors and assigns, does forever release and discharge Nationwide of and from all claims of whatsoever kind and nature prior to and including the date hereof growing out of the Underinsured Motorist Coverage of an Automobile Insurance Policy number 172846 issued by Nationwide to Sharon M. & Robert Aumen, and resulting or to result from an accident which occurred 11-25-2003 at or near Route 27, Warminster, MD. (Doc. 21, Ex. AA). Further, Defendant maintains that counsel for Plaintiffs objected to the language of the release as being overly broad, believing it extended beyond UIM benefits, and sent Defendant a release drafted on behalf of Plaintiffs and signed by them. (Doc. 21, ¶ 69; Doc. 25, ¶ 69). Defendant agreed to the Plaintiffs' proposed release and accepted it. (Id.)

The release proposed by Defendant mentions, in two separate places, including capital lettering in the heading, that it applies to claims stemming from the UIM claim for the November 25, 2003 accident. By so limiting the scope to Plaintiffs' UIM claim, the release is not too general, global or comprehensive to affect claims other than the UIM claim asserted, accepted and resolved. Consequently, the language of the release does not violate the Unfair Insurance Practices Act as it is not an "unfair method of competition or an unfair or deceptive act or practice in the business of insurance" and it does not run afoul of the Unfair Claims Settlements Practices Act by "extend[ing] beyond the subject matter that gave rise to the claim payment." 40 Pa.C.S.A. §1171.4; 31 Pa. ADC §146.4(e). Accordingly, the motion for summary judgment should be granted as the Release in question is not indicative of bad faith on the part of the Defendant.

V. Recommendation

Based on the foregoing, it is respectfully recommended that Defendant's motion for summary judgment (Doc. 18) be granted.

Date: March 8, 2011

William T. Prince United States Magistrate Judge

No. 1:10-CV-597






NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated March 8, 2011.

Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.

The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

William T. Prince United States Magistrate Judge

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