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

ATIC ENTERPRISES, INC. v. COTTINGHAM & BUTLER INSURANCE SERVICES, INC. et al

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: 
1:14-cv-00132 Search Pacer
ACE Group party(s): 
Opposing Party: 
Atic Enterprises, Inc.
Court Type: 
Federal
US District Court: 
Western District of Kentucky
Date Filed: 
Sep 18 2014

COMPLAINT

Comes now the Plaintiff, Atic Enterprises, Inc. ("Atic"), and for its cause of action
against Cottingham & Butler Insurance Services, Inc. ("Cottingham & Butler") and Westchester
Fire Insurance Company ("Westchester"), states herein as follows:
Parties, Jurisdiction, Venue
1. Plaintiff, Atic now is, and at all times herein mentioned was, a corporation
organized and existing by virtue of the laws of Kentucky, and authorized to do and doing
business in Kentucky, with its principal place of business located at 130 Dishman Lane in
Bowling Green, Warren County, Kentucky.
2. Defendant, Cottingham & Butler now is, and at all times herein mentioned was, a
corporation organized and existing under and by virtue of the laws of the State of Iowa, and is
and was a full-service insurance broker and offers property and casualty and employee benefit
insurance solutions, with its principal place of business at 800 Main Street, Dubuque, Dubuque
County, Iowa.
3. Defendant, Westchester (listed as Westchester Specialty Insurance Services, Inc.
with the Kentucky Secretary of State) now is, and at all times herein mentioned was, a
corporation organized and existing under and by virtue of the laws of the State of Pennsylvania,
is and was a full-service insurance company, with its principal place of business at 436 Walnut
Street, Philadelphia, Philadelphia County, Pennsylvania 19106. Westchester Fire Insurance is
part of the ACE Group of Companies.
4. At all times referred to herein, Cottingham & Butler acted by and through their
agents, servants, and/or employees acting within their scope and course of such agency,
servitude, and/or employment; therefore, Cottingham & Butler is responsible for the actions of
its agents, servants, and/or employees.
5. At all times mentioned herein, Cottingham & Butler was the actual and/or
apparent agent, servant, and/or employee of Westchester and acted within the course and scope
of said agency, servitude, and/or employment of Westchester; therefore, Westchester is
responsible for the actions of Cottingham & Butler, and its agents, servants, and/or employees.
6. The United States District Court for the Western District of Kentucky has subject
matter jurisdiction under 28 U.S.C. § 1332(a)(1), because the amount in controversy exceeds the
sum or value of $75,000, exclusive of interest and costs, and is between citizens of different
States.
7. Venue is proper in the Western District of Kentucky, pursuant to 28 U.S.C. §
1391(b)(2), because a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of the property that is the subject of the action is situated in the
Western District of Kentucky. In the alternative, venue is also proper pursuant to 28 U.S.C. §
1391(b)(3), because Defendants are subject to the court's personal jurisdiction in light of
conducting business in Bowling Green, Warren County, Kentucky.
Factual Background
8. Atic obtained a Cargo Insurance Policy through Cottingham & Butler and
Westchester for the time period between July 5, 2012 and July 5, 2013. A copy of the policy,
number 121073714 001, is attached and marked as Exhibit A.
9. Upon the expiration of the 2012-2013 Cargo Insurance Policy, Atic renewed its
policy through Cottingham & Butler for the time period between July 5, 2013 and July 5, 2014.
Again, Westchester issued policy number 121073714 002 and a copy of the policy is attached
and marked as Exhibit B.
10. Atic based upon information, knowledge, and previous dealings was led to
believe that the 2013-2014 insurance policy contained the same terms and conditions as the
2012-2013 insurance policy, which did not contain a copper exclusion.
11. On or about November 8, 2013, Atic was retained by Associated Trucking Inc.
and Connect Logistics to transport two loads of copper, respectively, from Southwire Company
in Carrolton, Georgia to Republic Wire in West Chester, Ohio.
12. On or about November 9, 2013 employees of Atic picked up the cargo at
Southwire Company in Carrolton, Georgia to be delivered to Republic Wire in West Chester,
Ohio.
13. During the evening of November 9, 2013, two truck drivers, employees of Atic,
parked the trucks and trailers, containing the copper, at Atic's freight yard in Bowling Green,
Warren County, Kentucky.
14. During the night of November 9, 2013 or early morning of November 10, 2013,
the trucks, trailer, and copper contained within were stolen from Atic's freight yard.
15. Immediately after the theft, Atic notified Cottingham & Butler and Westchester of
the copper theft and filed a claim for its loss.
16. On January 3, 2014, Westchester notified Plaintiff that it denied all liability for
Plaintiffs' claims on the ground that the policy issued by Defendants to Plaintiff included a
copper exclusion, and as a result did not cover losses resulting from the theft of the copper in the
two truck loads. A copy of the letter is attached and marked as Exhibit C.
17. Subsequent to the Defendants' denial of Plaintiff s request for the loss, American
International Group, Inc. ("AIG"), insurance company of Associated Trucking, the freight broker
who secured one of the copper loads, filed a Complaint against Atic Enterprises Inc. in the
United States District Court, Northern District of Georgia. AIG now seeks in excess of $150,000
in damages. A copy of the complaint is attached and marked as Exhibit D.
18. Travelers Insurance, insurance company for Connect Logistics, the freight broker
who secured the second load of copper, has indicated that it will seek reimbursement for the
value of the stolen cargo, in excess of $150,000. A copy of the letter from Joshua Southwick,
counsel for Travelers Insurance, to Atic Enterprises, Inc. is attached and marked as Exhibit E.

Negligence

19. During their dealings and interactions with Plaintiff, Cottingham & Butler never
discussed or advised the Plaintiff of the copper exclusion being added to the 2013-2014 cargo
policy.
20. Further, Cottingham & Butler and/or Westchester never provided Plaintiff with
conspicuous notice of the copper exclusion being added to the 2013-2014 cargo policy.
21. If Plaintiff had been advised or provided with conspicuous notice of this copper
exclusion, it would have rejected the proposed policy as amended by Cottingham & Butler
and/or Westchester.
22. Plaintiff states that it performed all actions and duties asked of it by the
Defendants and at all times herein was ready, willing and able to pay any premiums or take any
additional actions Defendants recommended so that it would have been provided adequate
insurance coverage, including for losses resulting from copper theft.
23. If Plaintiff is not entitled to copper coverage under the 2013-2014 cargo policy,
number 121073714 002, then Cottingham & Butler and Westchester breached their duties owed
to Plaintiff by adding the copper exclusion without proper disclosure to Atic and without
appropriate consent or authorization by Atic.
24. Further, if Plaintiff is not entitled to coverage under the 2013-2014 cargo policy,
number 121073714 002, then Defendants breached the appropriate standard of care for a
reasonable, competent insurance agent and insurance company by failing to adequately advise
and/or provide conspicuous notice, in writing or otherwise, to the Plaintiff of the changes in the
policy and all exclusions therein and/or the option to purchase additional insurance.
25. Defendants' failure to provide the requested insurance coverage, including
coverage of copper, was negligence and as a result of said negligence, Plaintiff is subject to a
possible adverse judgment from AIG in excess of $150,000 and Travelers Insurance in excess of
$150,000 as expressed in Paragraphs 17 and 18.
26. Based upon the Defendants' actions, Plaintiff has been required to retain counsel
to defend the above-mentioned action and to pursue this action, and is entitled to recovery of
attorney's fees and litigation expenses incurred in this case, as well as interest at the maximum
rate allowed by law as well as payment of any judgment that may be entered against them.
Unfair, deceptive practices
27. Further, in light of the events described hereinabove and pursuant to the
Consumer Protection Act, KRS Chapter 367, Defendants engaged in unfair, deceptive practices
when they failed to discuss and/or advise Plaintiff of the changes in the 2013-2014 policy and
failed to honor these theft claims as presented above.
28. Defendants engaged in unfair, deceptive practices when they failed to provide
conspicuous notice, in writing or otherwise, to Plaintiff regarding adding a copper exclusion to
the 2013-2014 policy and then failed to pay the loss resulting from copper theft.
29. Plaintiff is entitled to reasonable attorney's fees and costs to Plaintiff herein,
pursuant to the Consumer Protection Act, KRS Chapter 367.
Gross Negligence and Punitive Damages
30. Plaintiff states that the actions of each of the Defendants, Cottingham & Butler and Westchester,
were so careless, negligent, grossly negligent, unfair, deception, and/or malicious as to entitle Plaintiff to an
award of punitive damages.

Mutual Mistake (Reformation)

31. Pleading in the alternative, based on previous dealings with Cottingham & Butler
and/or Westchester, Plaintiff believed that the insurance policy for 2013-2014 was an "all-risk"
insurance policy and it covered losses resulting from copper theft. Plaintiff did not intend nor
was it aware that a copper exclusion had been added to the 2013-2014 policy.
32. Because Cottingham & Butler and/or Westchester Fire never notified, in writing or
otherwise, Plaintiff of the added copper exclusion in the 2013-2014 policy, they themselves
mistakenly placed the copper exclusion in the 2013-2014 policy.
33. Through mutual mistake of Plaintiff and Defendants and their agents, the policy
issued by Defendants was not an "all risk" policy, as Plaintiff and Defendants and their agents
had contracted and agreed would be issued to Plaintiff. The policy so issued, by its terms,
included a copper exclusion and did not insure Plaintiff against copper loss.
34. Due to mutual mistake, the contract of the 2013-2014 policy, number 121073713
002, should be reformed and said copper exclusion should be removed and not contained in said
policy.
35. The Reformed contract, not containing a copper exclusion, would provide coverage
for said losses and said losses should be honored, covered, and paid.
36. Plaintiff has no adequate remedy at law against Defendants as the insurance
companies of the brokers, Associated Trucking Inc. and Connect Logistics, Inc. are seeking
claims in excess of $150,000 each.
37. Plaintiff will be irreparably damaged unless the relief asked for in this complaint is
granted.

WHEREFORE, Atic Enterprises, Inc. respectfully prays for judgment as follows:
1. For judgment against the Defendants, jointly and severally, in the amount of
$300,000 plus interest at the legal rate allowable until paid;
2. For reformation of the contract so that the policy will comply with the actual
contract made between Plaintiff and Defendants as alleged above.
3. For attorneys' fees and costs;
4. Punitive damages against Defendants, jointly and severally, for unfair and
deceptive practices;
5. For any other relief to which Plaintiff may be entitled; and
6. FOR TRIAL BY JURY.

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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