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

BANKERS STANDARD INSURANCE COMPANY v. DARDEN 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: 
1:15-cv-02184 Search Pacer
ACE Group party(s): 
Court Type: 
Federal
US District Court: 
Northern District of Georgia
Date Filed: 
Jun 17 2015

COMPLAINT FOR DECLARATORY JUDGMENT

COMES NOW Plaintiff Bankers Standard Insurance Company (“Bankers
Standard”), by and through its attorneys, and files this Complaint for Declaratory
Judgment against Defendants Calvin Darden and Patricia Gail Darden (the
“Dardens”), showing the Court as follows:

THE PARTIES

1.
Bankers Standard is an insurance company organized under the laws of the
state of Pennsylvania and maintains a principal place of business in Philadelphia,
Pennsylvania. Bankers Standard is a citizen of the state of Pennsylvania within the
meaning and intent of 28 U.S.C. § 1332.
2.
Upon information and belief, Defendants Calvin Darden, Sr. and Patricia
Gail Darden maintain a primary residence located in Roswell, Georgia and are
citizens of the State of Georgia within the meaning and intent of 28 U.S.C. § 1332.

JURISDICTION AND VENUE

3.
Plaintiff and Defendant are citizens of different states, and as is more fully
set out below, the matter in controversy exceeds the sum of $75,000, exclusive of
interest, attorneys’ fees and costs. Therefore, this Court has jurisdiction by virtue
of 28 U.S.C. § 1332.
4.
This Court is the proper venue for this declaratory judgment action pursuant
to 28 U.S.C. § 1391(a) because Defendants reside in Georgia and the insurance
policy was issued and delivered in Roswell, Fulton County, Georgia, which is in
the Northern Judicial District, Atlanta Division, pursuant to 28 U.S.C. § 90(a)(2).
5.
Bankers Standard seeks a declaratory judgment pursuant to Federal Rule of
Civil Procedure 57 and 28 U.S.C. §§ 2201 and 2202, which grant the United States
District Courts jurisdiction to declare the “right and other legal relations of any
2
Case l:15-cv-02184-ODE Document 1 Filed 06/17/15 Page 3 of 13
interested parties seeking such declaration, whether or not further relief is or could
be sought.”

FACTUAL BACKGROUND

6.
Bankers Standard is, and during all relevant times has been, in the business
of underwriting and issuing policies of homeowners’ insurance and is authorized to
transact the business of insurance in the State of Georgia.
7.
The Dardens are insured through a homeowners insurance policy, Policy No.
268-00-99-36H, issued by Bankers Standard (hereinafter referred to as the
“Homeowners Policy”). A true, accurate, correct and genuine copy of the
Homeowners Policy is attached hereto as Exhibit “A.” The Policy was in effect
from March 31, 2011 through March 31, 2012 and provides $500,000 in personal
liability coverage.
8.
The Dardens are also insured under an Umbrella policy, Policy No. 268-00-
99-36U, which was effective from March 31, 2011 through March 31, 2012 and
provides $10,000,000 in personal umbrella liability coverage (hereinafter referred
3
to as the “Umbrella Policy”). A true, accurate, correct and genuine copy of the
Umbrella Policy is included in Exhibit “A.”
9.
The Homeowners Policy provides the following coverage:

DEFINITIONS

In this policy, you and your mean the person shown in
the Declarations and the spouse if a resident of the same
household. We, us and our mean the Company providing
this insurance.
In addition, certain words and phrases are defined as
follows:
2. Bodily Injury means physical harm, sickness, mental
anguish, sickness or disease, including required care,
loss of services and death that results.
8.    Insured location means:
a.    The residence premises;
b.    The part of any other premises, other structures and
grounds used by you as a residence;
(1)    Which is shown in the Declarations; or
(2)    Which is acquired by you during the policy
period for your use as a residence;
c.    Any premises used by you in connection with a
residence described in a. and b. above;
d.    Any part of a premises where an insured person is
temporarily residing;
e.    Vacant land, other than farm land, owned by or
rented to an insured person;
f.    Land owned by or rented to an insured person on
which a one or two family dwelling is being built as
a residence for an insured person;
g.    Individual or family cemetery plots or burial vaults
of an insured person; or
h.    Any part of a premises occasionally rented to an
insured person for other than business use.
9.    Insured person means:
a.    You and residents of your household who are:
(1)    Your family members; or
(2)    Other persons under the age of 25 and in the
care of any person described above;
b.    Under Part II, insured person also means:
(1)    With respect to animals or watercraft to which
this policy applies, any person or organization
legally responsible for these animals or
watercraft that are owned by you or any person
included in a. above.
Insured person does not mean a person or
organization using or having custody of these
animals or watercraft in the course of any
business or without consent of the owner; or
(2)    With respect to any motor vehicle to which
this policy applies:
(a)    Persons while engaged in your employ or
that of any person included in a. above; or
(b)    Other persons using the vehicle on an
insured location with your consent with
respect to their legal responsibility
arising out of its use.
11. Occurrence means:
a. An accident, including continuous or repeated
exposure to substantially the same general
harmful conditions, which occurs during the policy
period and results in bodily injury or property
damage; or
b. An offense, including a series of related offenses,
committed during the policy period and results in
personal injury.

PART II - LIABILITY
• • •
LIABILITY COVERAGES
1. Personal Liability

If a claim is made or a suit is brought against an
insured person for damages because of bodily
injury, property damage or personal injury caused
by an occurrence to which this coverage applies
anywhere in the world, we will pay up to our limit
of liability for the damages for which an insured
person is legally liable.
DAMAGES WE DO NOT COVER
3. Watercraft
We do not cover any bodily injury, property damage,
personal injury or medical expenses arising out of the
ownership, maintenance, occupancy, operation, use,
loading or unloading, entrustment to any person,
failure to supervise or negligent supervision of any
person, or vicarious liability of any watercraft:
a.    That is 26 feet or more in length or more than 50
horsepower and which is owned by an insured
person or furnished or rented to an insured person
for longer than 30 days;
b.    Used for any business or commercial purpose; or
c.    Operated in, or practicing for, any prearranged or
organized race, speed contest or other competition.
6
This exclusion c. Does not apply to a sailing vessel
less than 26 feet in length.
This exclusion does not apply to watercraft that are
stored.
Policy No. 268-00-99-36H, Policy Form HOME ACE-0109, Exhibit “A.”
10.
The Umbrella Policy contains definitions, conditions and exclusions for
personal injury and property damage that are similar to the Homeowners policy. In
part, the Umbrella Policy states:

PERSONAL UMBRELLA COVERAGE

We will pay damages an insured person becomes legally
liable to pay for bodily injury, property damage, personal
injury caused by an occurrence to which this insurance
applies:
a.    In excess of damages covered by required underlying
insurance plus the applicable limits of any other
collectible insurance that covers the insured person
for the occurrence;
b.    From the first dollar where required underlying
insurance either:
(1)    Exists, but does not apply to the particular
occurrence; or
(2)    Is not required under this policy and no other
collectible insurance exists.

DAMAGES WE DO NOT COVER

3. Watercraft
We do not cover any damages that arise out of the
ownership, maintenance, occupancy, operation, use,
loading or unloading, entrustment to other people, or
vicarious liability of any watercraft:
(1)    That is 26 feet or more in length or 50 or
more horsepower and owned by, furnished
or rented to an insured person for longer
than 90 days and is not shown in the
Declarations;
(2)    Not covered by required underlying
insurance; or
(3)    Used for any business or commercial
purpose.
This exclusion does not apply to:
(1)    Any watercraft while it is stored or at a
place an insured person owns, rents or
controls; or
(2)    Covered damages as provided under Extra
Benefit 4. Newly Acquired Auto and
Watercraft Coverage.
Policy No. 268-00-99-36U, Policy Form UMBRELLA ACE-0109, Exhibit “A.”
11.
On August 10, 2012, Dwight Sims (“Mr. Sims”) filed a Complaint against
the Dardens in the Circuit Court of Hamilton County, Tennessee, Docket No.
12C979 (hereinafter referred to as the “Sims Lawsuit”). A true, accurate, correct
and genuine copy of the Complaint is attached hereto as Exhibit “B.” In the
Complaint, Mr. Sims demands $875,000 in damages.
12.
In his Complaint, Mr. Sims alleges that, on September 3, 2011, he sustained
injuries caused by the allegedly negligent operation of the Darden’s boat. Id.
13.
The Darden’s boat was not scheduled on the Darden’s Homeowners or
Umbrella policy. See Homeowners and Umbrella Policies, Exhibit “A.”
14.
Upon information and belief, the boat involved in the accident was a 21 foot
Sun Tracker that the Dardens purchased approximately two years prior to the
accident date.
15.
Upon information and belief, the Darden’s Sun Tracker boat was outfitted
with a 220 horsepower motor at the time of the loss.
16.
Upon information and belief, the loss did not occur within 90 days following
the purchase of the boat.
17.
On November 3, 2011, Bankers Standard wrote the Dardens stating it was
“conducting its investigation and defense of this claim under and subject to a full
reservations of rights pursuant to the terms and conditions of the policy of
insurance under which claim has been made.” A true, accurate, correct and
genuine copy of the letter is attached hereto as Exhibit “C.” On October 3, 2012,
Bankers Standard wrote the Dardens advising that “there is no coverage under the
policy for the claims asserted in the lawsuit.” A true, accurate, correct and genuine
copy of the letter is attached hereto as Exhibit “D.” The letter further stated: “In
the event you are held legally liable by a judgment or settlement because the vessel
you were operating at the time of the accident was not insured under your Home or
Umbrella policies. You would remain responsible for the payment of any award
or judgment entered against you in the litigation, or for any amount agreed by you
to settle the lawsuit.” Id. Bankers Standard did, however, agree to defend the
Dardens in the Sims Lawsuit. Id. On May 22, 2015, Bankers Standard sent the
Dardens supplemental correspondence advising that it reserved the right to recover
any and all monies it expended in providing counsel for any non-covered claims.
A true, accurate, correct and genuine copy of this correspondence is attached as
Exhibit “E.”
18.
The Dardens take the position there is coverage under the Policy.

COUNT I: DECLARATORY RELIEF

19.
Bankers Standard incorporates herein by reference each of the allegations
contained in paragraphs 1 through 18 above.
20.
The accident at issue in the Sims Lawsuit involved Mr. Darden’s Sun
Tracker boat which had a 220 horsepower motor at the time of the loss.
21.
The loss did not occur within 90 days following the purchase of the boat.
22.
The Policy provides coverage for accidents arising out of small boats
purchased or rented by the insured under certain circumstances, but not for a
period longer than 90 days following a purchase, and never for watercraft equipped
with a motor in excess of 50 horsepower.
23.
Accordingly, there is no coverage under the Homeowners or Umbrella
Policies for the claim asserted in the Sims Lawsuit.
Bankers Standard is, therefore, entitled to a judicial declaration stating that
Homeowners and Umbrella Policies do not provide coverage for the Sims Lawsuit.

COUNT II: RECOUPMENT

25.
Bankers Standard incorporates herein by reference each of the allegations
contained in paragraphs 1 through 24 above.
26.
Bankers Standard has paid attorneys’ fees and other costs and expenses to
defend the Dardens in the Sims Lawsuit, and it may pay additional monies to
resolve claims, losses and matters not covered by the Policy.
27.
Bankers Standard is entitled to recoup from the Dardens the defense costs
and/or other monies paid to resolve claims, losses and matters not covered by the
Policy.

WHEREFORE, Bankers Standard prays of this Honorable Court as follows:
(a)    That this Court declare that the Homeowners and Umbrella Policies
do not provide coverage for the claims asserted in the Sims Lawsuit;
(b)    That judgment be rendered in favor of Bankers Standard and against
the Dardens for any fees, costs and expenses that may have been paid to defend the
Dardens in the Sims Lawsuit, and for any additional monies paid to resolve claims,
losses and matters not covered by the Policy; and
(c)    That Bankers Standard receive such other relief as this Court deems
just and proper.
 

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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