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

BANKERS STANDARD INSURANCE COMPANY v. COPLEN CONSTRUCTION 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: 
3:13-cv-00214 Search Pacer
ACE Group party(s): 
Court Type: 
Federal
US District Court: 
Northern District of Indiana
Date Filed: 
Mar 20 2013

"COUNT I
COPLEN CONSTRUCTION, INC. NEGLIGENCE

19. Plaintiff incorporates paragraphs one (1) through eighteen (18) as though fully set forth herein.

20. At all relevant times, Coplen Construction, as general contractor of the subject residence, owed the Fergusons a duty of care to perform all work in a safe and workmanlike manner and to properly oversee all work performed at the subject premises by subcontractors hired by Coplen Construction.

21. Defendant Coplen Construction, its agents, employees and/or subcontractors breached its aforesaid duties to the Fergusons in one or more of the following ways:
(a) Failed to adequately inspect and supervise the work of its employees and/or subcontractors;
(b) Failed to properly coordinate the work of its agents, workmen, servants and subcontractors;
(c) Failed to properly define the tasks and responsibilities of its agents, workmen, servants and subcontractors;
(d) Failed to properly inspect the design and construction work of its agents, workmen, servants and subcontractors;
(e) Failed to properly, adequately and/or safely install the roof heating system in the subject residence;
(f) Improperly installed the roof heating system at the subject residence such that the system's heat tape was installed underneath the Ferguson home's slate shingles and in direct contact with the plywood underlayment and supporting trusses;
(g) Improperly installed the roof heating system at the subject residence such that the system's heat tape was wrapped in foil-based insulation and surrounded by cellulose insulation, which prevented the heat generated by the system from properly dissipating through the roof;
(h) Permitted a dangerous or hazardous condition to exist during the roof heating system's installation, even though Defendant Coplen Construction knew, or should have known, that the dangerous condition existed and/or created a serious risk of harm;
(i) Failed to warn the Fergusons of the substantial risk of fire or similar peril presented by the improper work done by its employees and/or subcontractors;
(j) Failing and/or omitting to do those things necessary to avoid an unreasonable risk of harm to the Fergusons' real and personal property;
(k) Failing to comply with all other applicable codes, regulations, guidelines, policies, procedures and/or industry customs and/or practices; and
(l) Otherwise failing to use due care under the circumstances.

22. As a direct and proximate result of the aforesaid negligent, careless and/or reckless acts and/or omissions, the Fergusons sustained real and personal property damage in an amount in excess of $75,000.00, exclusive of interest and costs, for which Defendant Coplen Construction is legally liable.
Wherefore, BANKERS STANDARD INSURANCE COMPANY as subrogee of Jerry and Norma Ferguson, respectfully requests that this Court enter judgment in its favor and against Defendant, Coplen Construction, Inc. in an amount in excess of $75,000.00.

COUNT II
COPLEN CONSTRUCTION, INC. BREACH OF WARRANTY

23. Plaintiff incorporates paragraphs one (1) through eighteen (18) as though fully set forth herein.

24. In acting as the general contractor of the subject residence, Defendant Coplen Construction wan-anted that the subject residence would be habitable and that all work that it
oversaw would be performed in a workmanlike manner and in accordance with applicable codes, standards and practices.

25. Defendant Coplen Construction breached its express and/or implied warranties in one or more of the following ways:
(a) Failed to adequately inspect and supervise the work of its employees and/or subcontractors;
(b) Failed to properly coordinate the work of its agents, workmen, servants and subcontractors:
(c) Failed to properly define the tasks and responsibilities of its agents, workmen, servants and subcontractors;
(d) Failed to properly inspect the design and construction work of its agents, workmen, servants and subcontractors;
(e) Failed to properly, adequately and/or safely install the roof heating system in the subject residence;
(f) Improperly installed the roof heating system at the subject residence such that the system's heat tape was installed underneath the Ferguson home's slate shingles and in direct contact with the plywood underlayment and supporting trusses;
(g) Improperly installed the roof heating system at the subject residence such that the system's heat tape was wrapped in foil-based insulation and surrounded by cellulose insulation, which prevented the heat generated by the system from properly dissipating through the roof;
(h) Permitted a dangerous or hazardous condition to exist during the roof heating system's installation, even though Defendant Coplen Construction knew, or should have known, that the dangerous condition existed and/or created a serious risk of harm;
(i) Failed to warn the Fergusons of the substantial risk of fire or similar peril presented by the improper work done by its employees and/or subcontractors;
(j) Failing and/or omitting to do those things necessary to avoid an unreasonable risk of harm to the Fergusons' real and personal property;
(k) Failing to comply with all other applicable codes, regulations, guidelines, policies, procedures and/or industry customs and/or practices; and
(1) Otherwise failing to use due care under the circumstances.

26. Upon discovery of one or more of the aforesaid breaches of warranty, Plaintiffs insureds gave prompt and reasonable notice to Defendant of its damages, but Defendant has failed and refused to reimburse Plaintiff accordingly.

27. As a direct and proximate result of the aforesaid breaches of warranty, the Fergusons sustained real and personal property damage in an amount in excess of $75,000.00, exclusive of interest and costs, for which Defendant Coplen Construction is legally liable.
Wherefore, BANKERS STANDARD INSURANCE COMPANY as subrogee of Jerry and Norma Ferguson, respectfully requests that this Court enter judgment in its favor and against Defendant, Coplen Construction, Inc. in an amount in excess of $75,000.00,

COUNT III
COPLEN CONSTRUCTION, INC. BREACH OF CONTRACT

28. Plaintiff incorporates paragraphs one (1) through eighteen (18) as though fully set forth herein.

29. Prior to construction of the subject residence, a contract was entered between the Fergusons and Coplen Construction for the construction of the subject residence.

30. Due to its negligence, negligent supervision and subcontracting, as detailed in Counts I and II above at length, Defendant Coplen Construction breached the aforementioned contract, including any and all express and implied warranties contained therein, as well as all common law express and implied warranties.

31. As a direct and proximate result of the aforesaid breach of contract, the Fergusons sustained real and personal property damage in an amount in excess of $75,000.00., exclusive of interest and costs, for which Defendant Coplen Construction is legally liable.
Wherefore, BANKERS STANDARD INSURANCE COMPANY as subrogee of Jerry and Norma Ferguson, respectfully requests that this Court enter judgment in its favor and against Defendant, Coplen Construction, Inc. in an amount in excess of $75,000.00,

COUNT IV
ELITE CONTRACTING SERVICES, INC. NEGLIGENCE

32. Plaintiff incorporates paragraphs one (1) through eighteen (18) as though fully set forth herein.

33. At all relevant times, Elite Contracting owed the Fergusons a duty of care to perform all work in a safe and workmanlike manner and to properly oversee all work performed at the subject premises by its selected sub-sub-contractors.

34. Defendant Elite Contracting, its agents, employees and subcontractors, breached its aforesaid duties to the Fergusons in one or more of the following ways:
(a) Failed to adequately inspect and supervise the work of its employees and/or subcontractors;
(b) Failed to properly coordinate the work of its agents, workmen, servants and subcontractors;
(c) Failed to properly define the tasks and responsibilities of its agents, workmen, servants and subcontractors;
(d) Failed to properly inspect the design and construction work of its agents, workmen, servants and subcontractors;
(e) Failed to properly, adequately and/or safely install the roof heating system in the subject residence;
(f) Improperly installed the roof heating system at the subject residence such that the system's heat tape was installed underneath the Ferguson home's slate shingles and in direct contact with the plywood underlayment and supporting trusses;
(g) Improperly installed the roof heating system at the subject residence such that the system's heat tape was wrapped in foil-based insulation and surrounded by cellulose insulation, which prevented the heat generated by the system from properly dissipating through the roof;
(h) Permitted a dangerous or hazardous condition to exist during the roof heating system's installation, even though Defendant Elite Contracting knew, or should have known, that the dangerous condition existed and/or created a serious risk of harm;
(i) Failed to warn the Fergusons of the substantial risk of fire or similar peril presented by the improper work done by its employees and/or subcontractors;
(j) Failing and/or omitting to do those things necessary to avoid an unreasonable risk of harm to the Fergusons' real and personal property;
(k) Failing to comply with all other applicable codes, regulations, guidelines, policies, procedures and/or industry customs and/or practices; and
(1) Otherwise failing to use due care under the circumstances.

35. As a direct and proximate result of the aforesaid negligent, careless and/or reckless acts and/or omissions, the Fergusons sustained real and personal property damage in an amount in excess of $75,000.00, exclusive of interest and costs, for which Defendant Elite Contracting is legally liable.
Wherefore, BANKERS STANDARD INSURANCE COMPANY as subrogee of Jerry and Norma Ferguson, respectfully requests that this Court enter judgment in its favor and against Defendant, Elite Contracting Services, Inc. in an amount in excess of $75,000.00,

COUNT V
TRADESMEN INTERNATIONAL, INC. NEGLIGENCE

36. Plaintiff incorporates paragraphs one (1) through eighteen (18) as though fully set forth herein.

37. At all relevant times, Tradesmen International owed the Fergusons a duty of care to perform all work in a safe and workman-like manner.

38. Defendant Tradesmen International, its agents, employees and subcontractors, breached its aforesaid duties to the Fergusons in one or more of the following ways:
(a) Failed to adequately inspect and supervise the work of its employees and/or subcontractors;
(b) Failed to properly coordinate the work of its agents, workmen, servants and subcontractors;
(c) Failed to properly define the tasks and responsibilities of its agents, workmen, servants and subcontractors;
(d) Failed to properly inspect the design and construction work of its agents, workmen, servants and subcontractors;
(e) Failed to properly, adequately and/or safely install the roof heating system in the subject residence;
(f) Improperly installed the roof heating system at the subject residence such that the system's heat tape was installed underneath the Ferguson home's slate shingles and in direct contact with the plywood underlayment and supporting trusses;
(g) Improperly installed the roof heating system at the subject residence such that the system's heat tape was wrapped in foil-based insulation and surrounded by cellulose insulation, which prevented the heat generated by the system from properly dissipating through the roof;
(h) Permitted a dangerous or hazardous condition to exist during the roof heating system's installation, even though Defendant Tradesmen International knew, or should have known, that the dangerous condition existed and/or created a serious risk of harm;
(i) Failed to warn the Fergusons of the substantial risk of fire or similar peril presented by the improper work done by its employees and/or subcontractors;
(j) Failing and/or omitting to do those things necessary to avoid an unreasonable risk of harm to the Fergusons' real and personal property;
(k) Failing to comply with all other applicable codes, regulations, guidelines, policies, procedures and/or industry customs and/or practices; and
(1) Otherwise failing to use due care under the circumstances.

39. As a direct and proximate result of the aforesaid negligent, careless and/or reckless acts and/or omissions, the Fergusons sustained real and personal property damage in an amount in excess of $75,000.00, exclusive of interest and costs, for which Defendant Tradesmen
International is legally liable.
Wherefore, BANKERS STANDARD INSURANCE COMPANY as subrogee of Jerry and Norma Ferguson, respectfully requests that this Court enter judgment in its favor and against Defendant, Tradesmen International, Inc. in an amount in excess of $75,000.00.

COUNT V
HEISLER CONSTRUCTION, LLC NEGLIGENCE

40. Plaintiff incorporates paragraphs one (1) through eighteen (18) as though fully set forth herein.

41. At all relevant times, Heisler Construction owed the Fergusons a duty of care to perform all work in a safe and workmanlike manner

42. Defendant Heisler Construction, its agents, employees and subcontractors, breached its aforesaid duties to the Fergusons in one or more of the following ways:
(a) Failed to adequately inspect and supervise the work of its employees and/or subcontractors;
(b) Failed to properly coordinate the work of its agents, workmen, servants and subcontractors;
(c) Failed to properly define the tasks and responsibilities of its agents, workmen, servants and subcontractors;
(d) Failed to properly inspect the design and construction work of its agents, workmen, servants and subcontractors;
(e) Failed to properly, adequately and/or safely install the roof heating system in the subject residence;
(f) Improperly installed the roof heating system at the subject residence such that the system's heat tape was installed underneath the Ferguson home's slate shingles and in direct contact with the plywood underlayment and supporting trusses;
(g) Improperly installed the roof heating system at the subject residence such that the system's heat tape was wrapped in foil-based insulation and surrounded by cellulose insulation, which prevented the heat generated by the system from properly dissipating through the roof;
(h) Permitted a dangerous or hazardous condition to exist during the roof heating system's installation, even though Defendant Heisler Construction knew, or should have known, that the dangerous condition existed and/or created a serious risk of harm;
(i) Failed to warn the Fergusons of the substantial risk of fire or similar peril presented by the improper work done by its employees and/or subcontractors;
(j) Failing and/or omitting to do those things necessary to avoid an unreasonable risk of harm to the Fergusons' real and personal property;
(k) Failing to comply with all other applicable codes, regulations, guidelines, policies, procedures and/or industry customs and/or practices; and
(1) Otherwise failing to use due care under the circumstances.

43. As a direct and proximate result of the aforesaid negligent, careless and/or reckless acts and/or omissions, the Fergusons sustained real and personal property damage in an amount in excess of $75,000.00, exclusive of interest and costs, for which Defendant Heisler
Construction is legally liable.
Wherefore, BANKERS STANDARD INSURANCE COMPANY as subrogee of Jerry and Norma Ferguson, respectfully requests that this Court enter judgment in its favor and against Defendant, Heisler Construction, LLC in an amount in excess of $75,000.00.

44. Plaintiff incorporates paragraphs one (1) through eighteen (18) as though fully set forth herein.

45. At all relevant times, Defendant Domoteck, placed into the stream of commerce the subject roof heating system and as such, is strictly liable for any defects or unreasonably dangerous conditions that existed with respect to the roof heating system.

46. The Fergusons were, and are, in the class of persons that Defendant Domoteck should have reasonably foreseen as being subject to the harm caused by the defective condition of the subject roof heating system, as they were the owners of a home with the roof heating system, which was sold for the express purpose of being installed to operate in residential homes.

47. At all times relevant, Defendant Domoteck was the entity operating as the manufacturer of roof heating systems, engaged in the sale of roof heating systems.

48. The roof heating system was expected, and did, reach the subject residence without substantial alteration in the condition in which the roof heating system was sold by Defendant Domoteck.

49. The Fergusons never used the roof heating system for anything other than its expected manner of handling or consumption.

50. The roof heating system was defective and in an unreasonably dangerous condition at the time it left Defendant Domoteck's possession and control insofar as it was:
a. Supplied without adequate instructions for safe installation;
b. Supplied such that it contained heating coils that became too hot so that they were able to ignite nearby combustibles;
c. Supplied without adequate warnings of the dangers inherent in its improper installation such that, not only the Fergusons, but any entities or individuals involved in the installation of the roof heating system, would be unaware that installation underneath roofing shingles could result in the ignition of a fire;
d. Supplied without adequate warnings of the dangers inherent in its improper installation such that, not only the Fergusons, but any entities or individuals involved in the installation of the roof heating system, would be unaware that installation in and around insulative materials could result in the ignition of a fire; and
e. Was otherwise unreasonably dangerous and defective.

51. The defective and unreasonably dangerous condition and subsequent malfunctioning of the roof heating system was the direct and proximate cause of the real and personal property damages in an amount in excess of $75,000.00 exclusive of interest and costs,
for which Defendant Domoteck is legally liable.
Wherefore, BANKERS STANDARD TNSURANCE COMPANY as subrogee of Jerry and Norma Ferguson, respectfully requests that this Court enter judgment in its favor and against Defendant, Domoteck Floor Wanning Systems, Inc. in an amount in excess of $75,000.00."

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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