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AVENTURA LAND HOLDINGS, LTD et al v. WESTCHESTER SURPLUS LINES INSURANCE COMPANY

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Case Number: 
1:15-cv-21744 Search Pacer
Opposing Party: 
Aventura Land Holdings, Ltd
Court Type: 
Federal
US District Court: 
Southern District of Florida
Date Filed: 
May 7 2015

COMPLAINT
Aventura Land Holdings, Ltd. (“ALH, Ltd.”), Aventura Land Holding (Del.), Inc. (“ALH
(Del.)”), (collectively “ALH”), James Cohen (“Cohen”), Brian Street (“Street”), Ray Nicholson
(“Nicholson”), Mark Papak (“Papak”) (collectively “the Individuals”), sue Westchester Surplus
Lines Insurance Company (“WSLIC”), and allege:

NATURE OF ACTION

1.    This is an action for damages for breach of contract arising out of WSLIC’s
failure to defend ALH and the individuals in the underlying action, Geller v. Aventura Land
Holding, Ltd., No. 06-09739 CA 06 (Fla. 11th Jud. Cir.) (the “Geller Lawsuit”) seeking
damages from ALH and the Individuals and ALH in the underlying action, Hamptons South
Condominium Association, Inc. v. Aventura Land Holding, Ltd., No. 08-21827 CA 27 (Fla. 11th
Jud. Cir.) (the “Hamptons South Lawsuit”) seeking damages from ALH.

JURISDICTION AND VENUE

1.    The amount in controversy exceeds $15,000.00, exclusive of attorney’s fees,
interests and costs.
2.    Venue for this action is appropriate in this Court, as the subject insurance policies
were issued and delivered in this judicial circuit, ALH and the individuals conduct business in
this judicial circuit, and WSLIC actively conducts the business of insurance within this judicial
circuit.
3.    ALH, Ltd., is a Florida limited liability partnership licensed and doing business in
Miami-Dade County, Florida.
4.    ALH (Del.), is the general partner of ALH, Ltd. ALH (Del.) is a Delaware
corporation licensed and doing business in Miami-Dade County, Florida.
5.    Plaintiff, Cohen, is a limited partner of ALH, Ltd., and President and shareholder
of ALH (Del.). At all material times, Cohen was a resident of Palm Beach County, Florida and is
otherwise sui juris.
6.    Plaintiff, Street, is a limited partner of ALH, Ltd., and Vice President and
r
shareholder of ALH (Del.). At all material times. Street was a resident of Palm Beach County,
Florida and is otherwise sui juris.
7.    Plaintiff, Nicholson, is a limited partner of ALH, Ltd., and shareholder of ALH
(Del.). At all material times, Nicholson was a resident of Oakland County, Michigan and is
otherwise sui juris.
' 8. Plaintiff, Papak, is a limited partner of ALH, Ltd., and shareholder of ALH (Del.).
At all material times, Nicholson was a resident of Oakland County, Michigan and is otherwise
sui juris.
9.    Upon information and belief, WSLIC is a Georgia corporation with its principal
place of business in Alpharetta, Georgia.

FACTUAL BACKGROUND

THE POLICIES

10.    WSLIC sold Miller & Solomon General Contractors, Inc. (“M&S”) a commercial
general liability policy, bearing policy number GLW777923 with effective dates from December
31, 2003 to June 30, 2005 (the “Primary Policy”). A copy of the Primary Policy is attached as
Exhibit A.
11.    The Primary Policy has a per-occurrence limit of liability of $1 million, with an
aggregate limit of $2 million.
12.    M&S is the Named Insured under the Primary Policy.
13.    ALH and the Individuals are insured under the Primary Policy as well because the
Primary Policy also insures the person or organization that M&S contractually agreed to insure,
“but only with respect to liability arising out of [M&S’s] ongoing operations performed for that
insured.”
14.    The Primary Policy also promises to defend and indemnify ALH and the
Individuals for damages caused by an “occurrence.”
15.    The Primary Policy is an enforceable contract in the state of Florida.
16.    WSLIC also sold to M&S a commercial umbrella policy, bearing policy number
CUW7774178 with effective dates from December 31, 2003 to June 30, 2005 (the “Umbrella
Policy”). A copy of the Policy is attached as Exhibit B.
17.    The Umbrella Policy has a per-occurrence limit of liability of $10 million, with an
aggregate limit of $ 10 million.
18.    M&S is also the Named Insured under the Umbrella Policy.
19.    ALH and the Individuals are insured under the Umbrella Policy as well because
the Umbrella Policy also promises to insure “(a) any person, organization, trustee or estate that
has obligated you by written contract to provide the insurance that is afforded by this policy, but
only with respect to liability arising out of “Your Work,” “Your Product” and to property owned
or used by you” and “(b) at your option and subject to the terms of the policy, any person,
organization, trustee or estate (other than the ‘Named Insured’) included as an additional insured
under the ‘Underlying Insurance’, but only with respect to liability arising out of ‘Your Work,’
‘Your Product,’ or property owned or used by you.”
20.    The Umbrella Policy also promises to “pay on behalf of the ‘Insured’ those sums
in excess of the ‘Retained Limit’ which the ‘Insured’, by reason of liability imposed by law, or
assumed by the ‘Insured’ under contract prior to the ‘Occurrence’, shall become legally obligated
to pay as damages for ... ‘Property Damage’ occurring during the policy period....”
21.    The Umbrella Policy is an enforceable contract under Florida law.

THE GELLER LAWSUIT

22.    Alfred and Sandra Geller filed suit against ALH, Ltd. and ALH (Del.) on May 19,
2006. The Gellers brought an action against ALH, Ltd, and ALH (Del.) for five counts; (1)
breach of warranty under Section 718.203, Florida Statutes; (2) fraudulent inducement; (3)
negligent misrepresentation; (4) breach of contract; and (5) violation of Florida Deceptive and
Unfair Trade Practices Act (“FDUPTA”).
23.    On December 10, 2007, the complaint was amended. The complaint maintained
its claims for breach of contract and breach of statutory warranties under section 718.203,
1 Collectively, the Primary Policy and the Umbrella Policy are referred to herein as the Policies.
Florida Statutes against ALH, Ltd. and ALH (Del.). A claim for negligence was also brought
against ALH, Ltd. and ALH (Del.). The Complaint named the individuals as party defendants
for violation of FDUPTA and for fraudulent concealment against ALH, Ltd., ALH (Del.) and the
i
individuals. A copy of the Gellers’ Second Amended Complaint is attached as Exhibit C.

THE HAMPTONS SOUTH LAWSUIT

24.    The Hamptons South Condominium Association (“the Association”), filed suit
against ALH, Ltd. and ALH (Del.) on April 22, 2008, for breach of contract and breach of
statutory implied warranties under Section 718.203, Florida Statutes.
26. The Association amended the Complaint on February 12, 2009. A copy of
Hamptons South’s Second Amended Complaint is attached as Exhibit D.

NOTICE OF THE GELLER AND HAMPTONS SOUTH LAWSUITS AND
WSLIC’S RESPONSE

25.    On September 15, 2009, ALH tendered the Geller and Hamptons South
Complaints to WSLIC and advised that “[ajs previously advised via a tender letter sent on June
23, 2008 ... this law firm represents Aventura Land Holding, Ltd. (“ALH”) in both [the Geller
and Hamptons South Lawsuits]. ACE was also placed on notice of [the Geller and Hamptons
South Lawsuits] by a Liberty Mutual representative on June 19, 2008.... Despite these notices,
we have not received any response whatsoever from ACE.” A copy of this letter is attached as
Exhibit E.
26.    On December 8, 2009, WSLIC finally responded advising that no coverage
existed for the Hamptons South Lawsuit, but never addressed its coverage obligation in the
Geller Action. A copy of this letter is attached as Exhibit F.

GENERAL ALLEGATIONS

27.    ALH and the Individuals have engaged the undersigned firm to represent it in this
action, and have agreed to pay a reasonable fee for services rendered.
28.    All conditions precedent to this action have been performed, occurred or have
otherwise been waived.

COUNT I - BREACH OF CONTRACT FOR THE GELLER LAWSUIT

29.    ALH and the Individuals re-allege paragraphs 1-28.
30.    At all times material to this action, ALH and the Individuals were insured by
WSLIC under the Policies.
31.    Under the terms of the Policies, WSLIC had a duty to defend and indemnify ALH
and the Individuals in the Geller Lawsuit.
32.    WSLIC breached these obligations, as it neither provided a defense nor
indemnity.
33.    As a direct, foreseeable and proximate result of WSLIC’s breaches of its
obligations under the Policies, ALH and the Individuals suffered and continue to suffer damages.
WHEREFORE, Plaintiffs, Aventura Land Holdings, Ltd., Aventura Land Holding (Del.),
Inc., James Cohen, Brian Street, Ray Nicholson and Mark Pap ale demand judgment against
Defendant, Westchester Surplus Lines Insurance Company, for damages, pre- and post-judgment
interest, attorney’s fees, costs and any such other relief this Court deems equitable, just and
proper.

COUNT II - BREACH OF CONTRACT FOR THE HAMPTONS SOUTH LAWSUIT

34.    ALH re-alleges paragraphs 1- 28.
35.    At all times material to this action, ALH was insured by WSLIC under the
Policies.
36.    Under the terms of the Policies, WSLIC had a duty to defend and indemnify ALH
in the Hamptons South Lawsuit.
37.    WSLIC breached these obligations, as it neither provided a defense nor
indemnity.
38.    As a direct, foreseeable and proximate result of WSLIC’s breaches of its
obligations under the Policies, ALH suffered and continue to suffer damages.
WHEREFORE, Plaintiffs, Aventura Land Holdings, Ltd. and Aventura Land Holding
(Del.), Inc., demand judgment against Defendant, Westchester Surplus Lines Insurance
Company, for damages, pre- and post-judgment interest, attorney’s fees, costs and any such other
relief this Court deems equitable, just and proper.

JURY DEMAND

Plaintiffs, Aventura Land Holdings, Ltd., Aventura Land Holding (Del,), Inc., James
Cohen, Brian Street, Ray Nicholson and Mark Papak demand a trial by jury of 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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