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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

ACE AMERICAN INSURANCE COMPANY v. THE CHARTER OAK FIRE INSURANCE COMPANY

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
3:14-cv-01531 Search Pacer
ACE Group party(s): 
Court Type: 
Federal
US District Court: 
Middle District of Florida
Date Filed: 
Dec 30 2014

COMPLAINT FOR DAMAGES

 Plaintiff, ACE AMERICAN INSURANCE COMPANY (“ACE”) sues the Defendant,
THE CHARTER OAK FIRE INSURANCE COMPANY (“CHARTER OAK”) and further
alleges the following:
1. This Honorable Court has jurisdiction over this cause pursuant to 28
U.S.C. §1332 as there is a complete diversity of citizenship between the parties and the
amount in controversy exceeds $75,000.00.
2. Venue of this case is proper pursuant to 28 U.S.C. §1319 since the
Defendant resides in this judicial district and/or is conducting business in this judicial
district through employees and/or authorized agents.  Venue is also proper in this
judicial district inasmuch as a substantial part of the events or omissions giving rise to
ACE’s claims occurred in this judicial district, and the relevant witnesses are located
within this judicial district.   
3. ACE is a corporation organized and existing under the laws of the state of
Pennsylvania with its principal place of business in Philadelphia, Pennsylvania.
4. CHARTER OAK is a corporation organized under the laws of a state other
than Florida with its principal place of business in Hartford, CT.   
5. CHARTER OAK provided Mid-Fla. Hauling, Inc. (“Mid-Fla.”) with a
commercial insurance policy (Policy No. Y-20-914K5687-COF-07) with a policy period
from 05/19/07 to 05/19/08 and a $1 million liability limit.  (See Charter Oak policy and
declarations page attached hereto as Exhibit “1”).
6. ACE provided Mid-Fla. with a commercial excess liability policy (Policy No.
XCPN04280246) with a policy period from 05/19/07 to 05/19/08 and a $2 million limit of
liability.  (See ACE’s policy and declarations page attached hereto as Exhibit “2”).  
7. On February 4, 2008, a Mack Truck tractor trailer, owned and operated by
Mid-Fla., rear-ended a vehicle owned and operated by Anthony Williams (“Williams”).
8. On December 9, 2009, Anthony Williams sued Mid-Fla. and Jeffrey
Jenkins in the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida with
Case No.:  2009-CA-018804 (“the underlying case”).
9. On August 17, 2010, Williams served his Proposal for Settlement upon
Mid-Fla. for $1 million.   
10. On August 11, 2011, Williams’ counsel provided his letter to Mid-Fla.’s
counsel, appointed by CHARTER OAK, stating the following:  “If you will not tender the
policy limits, we request your highest and final offer to settle by August 31, 2011, at 5:00
p.m.”   
11. During the course of the underlying case, Mid-Fla.’s defense counsel had
advised CHARTER OAK of a potential verdict range between $500,000.00 and
$950,000.00.   
12. On June 24, 2013, the Plaintiff made a demand for $800,000 that would
remain open for 48 hours.   
13. On July 3, 2013, ACE provided CHARTER OAK with an email that stated
the following in pertinent part:  “Given that Plaintiff’s demand is $750,000 and well within
your per occurrence policy limit, please resolve this matter within your $1,000,000 limit
in order to avoid a potential verdict unnecessarily exposing the excess policy issued by
ACE to Mid-Fla Hauling, Inc.”
14. On July 5, 2013, Mid-Fla.’s defense counsel sent CHARTER OAK an
email which stated the following in pertinent part:  “We are still at $625,000 and it is
believed that the plaintiff is steadfast at $750,000.  We continue to prepare for trial.”
15. On July 5, 2013, CHARTER OAK sent ACE an email that stated the
following in pertinent part:  “Our last offer was $625,000.  Plaintiff counsel has
withdrawn their final demand of $750,000, but have encouraged us to keep talking.”
16. Before the commencement of the trial of the underlying case, Mid-Fla.
formally admitted liability for the rear end collision.
17. Before the commencement of the trial of the underlying case, the realistic
exposure to Mid-Fla. was equal to the amount of the Plaintiff’s last demand of $750,000.
18. On July 8, 2013, the trial of the underlying case commenced.
19. On July 8, 2013, the Plaintiff’s Motion in limine regarding the testimony of
Dr. Abraham Rogozinski was argued to the Court.  More particularly, the Plaintiff
moved, in limine, to prevent Dr. Rogozinski from testifying as to any matters outside of
his February 16, 2011 report.  This Motion was granted.
20. The granting of Plaintiff’s Motion in limine regarding Dr. Abraham
Rogozinski resulted in Mid-Fla.’s inability to call its expert, John McKay, Ph.D., as a
witness on future medical care.  As a result, Mid-Fla did not have an expert who would
counter the Plaintiff’s expert testimony on the cost of future medical care.   
21. The injuries for which the Plaintiff was seeking at trial included his past
neck surgery, past right shoulder surgery and future lower back surgery.
22. During opening statements, Mid-Fla. admitted that the accident in issue
was “serious” and that it caused the Plaintiff’s neck injuries.
23. During opening statements, Mid-Fla. denied that the “serious” accident
was a cause of the Plaintiff’s past shoulder surgery or future lower back surgery.   
24. On July 12, 2013, the jury returned a verdict in favor of Anthony Williams
in the amount of $2,021,765.00.  (See Verdict attached hereto as Exhibit “3“).
25. In its attempt to save additional money on its primary limits of $1 million by
trying the underlying case rather than settling it within its policy limits, CHARTER OAK
improperly exposed ACE, as excess insurer, to an excess verdict.  

COUNT I-EQUITABLE SUBROGATION/BAD FAITH FOR CHARTER OAK’S
FAILURE TO SETTLE CLAIM AGAINST MID-FLA. WITHIN CHARTER OAK’S
PRIMARY INSURANCE POLICY LIMITS OF ONE MILLION DOLLARS

 26. ACE readopts and realleges paragraphs 1 through 25 above and further
states the following:
 27. As the primary insurance company, CHARTER OAK owed ACE, the
excess insurance carrier, the duty and obligation to act in good faith.   
 28. CHARTER OAK breached its duty and obligation of good faith by failing to
settle the Plaintiff’s claim within CHARTER OAK’s $1 million policy limits before trial
when it had the reasonable and realistic opportunity to do so and, under all the
circumstances, it could and should have done so had it acted fairly and honestly toward
ACE and with due regard for ACE’s interest as the excess insurance carrier.
 29. CHARTER OAK also breached its duty and obligation of good faith by
failing to take the appropriate steps to settle the Plaintiff’s claim within CHARTER OAK’s
$1 million policy limits during trial when it had the reasonable and realistic opportunity to
do so and, under all the circumstances, it could and should have done so had it acted
fairly and honestly toward ACE and with due regard for ACE’s interest as the excess
insurance carrier.   
 30. CHARTER OAK breached its duty and obligation of good faith by failing to
settle the underlying case during trial for reasons which include, but are not limited to,
the following: Mid-Fla.’s admission of liability for the “severe” rear end collision in issue
before trial; the nature of the injuries and damages which were sought by the Plaintiff;
Mid-Fla.’s admission of liability for the Plaintiff’s neck injury and past surgery thereon;
Mid-Fla.’s attempt to dispute medical causation for the past shoulder surgery and the
need for future lower back surgery given the severity of the impact during the accident
and given the pre-trial order, in limine, that precluded Mid-Fla. from putting on evidence
to rebut the Plaintiff’s future medical care costs.  
 31. CHARTER OAK acted in bad faith by failing to settle the Plaintiff’s claim
when it had a reasonable and realistic opportunity to do so and, as a proximate result of
its bad faith, CHARTER OAK wrongfully exposed ACE to an excess verdict and caused
ACE to pay the sum of $1,030,605.00 out of its excess insurance policy in order to
settle the Plaintiff’s claims post-verdict. (See copy of ACE’s check attached hereto as
Exhibit “4”).

 WHEREFORE, ACE requests a final judgment against CHARTER OAK for
damages which include, but are not limited to the amount of $1,030,605.00, plus pre-
judgment interest, costs and attorney’s fees pursuant to Florida law on bad faith, as well
as any other relief this Court deems just and appropriate under the circumstances.
DEMAND FOR JURY TRIAL
 ACE hereby demands trial on all issues so triable as a matter of right.

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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