Report to file written objections. . . . Failure to file objections will
result in a waiver of those objections for purposes of appeal." Id. at
21. On April 5, 2002, Plaintiff objected to the Report
("Pl's.Objections") and on April 24, 2002, Defendant opposed Plaintiffs
For the reasons set forth below, the Court adopts the Report in its
entirety; denies Plaintiffs motion for summary judgment, and dismisses
II. Standard of Review
A district court evaluating a Magistrate's report may adopt those
portions of the report to which no "specific, written objection" is made,
as long as those sections are not clearly erroneous. Fed. R.Civ.P. 72
(b); Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y.
1997). Where, as here, timely objections are made to a Magistrate's
report, the District Judge must make a de novo determination as to the
objections raised. Cespedes v. Coughlin, 956 F. Supp. 454, 463 (S.D.N.Y.
1997). A district judge may accept, reject, or modify, in whole or in
part, the findings and recommendations of the Magistrate. See DeLuca v.
Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994).
The facts set forth in the Report are incorporated herein by
The Court has conducted a de novo review of the record herein, the
Report, as well as appropriate legal authorities. Magistrate Katz was
correct that there are no genuine issues of material fact, i.e. the
Policies' terms are unambiguous and, pursuant to the Policies, Plaintiff
is not entitled to payments in an amount greater than "Monthly Income,"
as defined in the Policies. Report at 7 ("Nothing . . . suggests that the
monthly income is subject to upward adjustments."); Report at 15 ("Thus,
while Plaintiff is correct that `the policies explicitly state the amount
of increases in the monthly average that Mr. Brunetto is entitled to'
(Pl's. Mem. at 11), Plaintiff is incorrect that this automatically
translates into higher monthly benefit payments.").
In his Objections, Plaintiff contends, among other things, that: (1)
"the Court in this matter has misconstrued the terms and conditions of
the policies and . . . has interpreted these policies in a view that no
lay person could be expected to grasp or understand" (Pl's. Objections at
1) and (2) "[h]ad Judge Katz found the policies' terms ambiguous, then
the plaintiffs affidavit[, among other things,] would be extremely
relevant in determining the expectations of the parties at the time the
contract was executed." Id. at 2.
Plaintiffs contentions are not persuasive. "[A]n insurance policy, like
any contract, must be construed to effectuate the intent of the parties
as derived from the plain meaning of the policy's terms." Andy Warhol
Foundation for the Visual Arts, Inc. v. Fed. Ins. Co., 189 F.3d 208, 215
(2d Cir. 1999) (citations omitted). "If the language of the insurance
contract is unambiguous, we apply its terms." Id. "When a court decides,
after examination of the contractual language, that an insurance policy
is ambiguous, it looks outside the policy to extrinsic evidence, if any,
to ascertain the intent of the parties." Id. Where, as here, "the
parties' intent is unambiguously conveyed by the plain meaning of the
agreements, then interpretation is a matter of law." Crane Co. v. Coltec
Indus., 171 F.3d 733, 737 (2d Cir. 1999).
The Magistrate used the appropriate legal analysis in determining that
the Policies are unambiguous. See Seiden Assocs.
v. ANC Holdings, 959 F.2d 425, 428 (2d Cir. 1992) (An insurance policy is
ambiguous if it is "capable of more than one meaning when viewed
objectively by a reasonably intelligent person who has examined the
context of the entire integrated agreement.") (quotation marks omitted);
see, e.g., Report at 5-6, 17 ("An ordinary person can be expected to
understand that the statement `[Monthly Income] may also depend on
changes in the Consumer Price Index' does not mean that the monthly
income must depend, always depends, or necessarily depends in any way on
changes in the Consumer Price Index.") (emphasis in original) (quoting
Policies at 1).
In addition, the Magistrate correctly found, among other things, that
the (unambiguous) Policies provide that:
(i) The "Monthly Income" under the policy issued
January 23, 1995 is $8,000.00 and under the policy
issued August 1, 1995 is $2,000.00. Report at 6
(citing Policies' Schedule Pages);
(ii) Under the Policies, the "Monthly Average" is used
in determining "Loss of Earned Income." The "Monthly
Average" is equal to the Insured's "Earned Income" for
certain periods before the Insured was disabled. Id.
at 7-8 (see Policies at 3). The "Monthly Average" "may
be adjusted for changes in the Consumer Price Index."
Id. (quoting Policies at 3);
(iii) "Loss of Earned Income" is the amount of the
"Monthly Average the Insured is prevented from earning
because of that disability." Id. at 11 (quoting
Policies at 3). Therefore, "Loss of Earned Income" can
never be greater than "Monthly Average." Id. at 13;
(iv) "The amount of each monthly income payment
payable . . . will be a percent of the Monthly Income
for this policy . . . [and] is computed by dividing
the Loss of Earned Income by the Monthly Average."
Id. at 12 (quoting Policies at 6). This definition can
be expressed in a formula:
Monthly Income Payment = (Loss of Earned Income
÷ Monthly Average) × Monthly Income.
Id. at 13. Dividing "Loss of Earned Income" by
"Monthly Average" will always result in an amount less
than or equal to 1 because "Loss of Earned Income"
will always be less than or equal to "Monthly
(v) Since the "Loss of Earned Income" can never be
greater than "Monthly Average," the "Monthly Income
Payment" can never be greater than the "Monthly
Income." Id. at 12-13.
Having found that the Policies are unambiguous, the Court need not
"look outside the polic[ies]" to extrinsic evidence. Andy Warhol
Foundation, 189 F.3d at 215.