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

BANKERS STANDARD INSURANCE COMPANY v. MASCO CORPORATION 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: 
2:15-cv-05640 Search Pacer
ACE Group party(s): 
Court Type: 
Federal
US District Court: 
Eastern District of Pennsylvania
Date Filed: 
Oct 15 2015

COMPLAINT

Plaintiff, Bankers Standard Insurance Company, as subrogee of Lawrence Flick, V and
Allison H. Flick, complaining of Defendants, hereby avers, upon information and belief, as
follows:

PARTIES

  1. Plaintiff, Bankers Standard Insurance Company, as subrogee of Lawrence Flick,

V and Allison H. Flick, (hereinafter “Bankers”), is a corporation duly organized and existing
under the laws of the Commonwealth of Pennsylvania with its principal place of business located

at 436 Walnut Street, Philadelphia, Pennsylvania, which at all relevant times was engaged in the
insurance business and was licensed to issue insurance policies in the Commonwealth of
Pennsylvania.

  1. Defendant, Masco Corporation, (hereinafter "Masco"), was, at all times relevant
    to the actions giving rise to this Complaint, in the business of manufacturing, distributing and
    selling home products and providing installation services for homes, including pre-fabricated
    metal fireplaces.
  2. Defendant Masco is incorporated in Delaware and has its principal place of
    business at 21001 Van Bom Road, Taylor, Michigan 48180.
  3. Defendant, Masco Contractor Services Central, Inc. (hereinafter "Masco
    Contractor"), was, at all times relevant to the actions giving rise to this Complaint, a subsidiary
    of Masco and in the business of providing insulation and installation of products for homes,
    including installation of pre-fabricated metal fireplaces.
  4. Defendant Masco Contractor is incorporated in Florida and has or had its
    principal place of business at 260 Jimmy Ann Drive, Daytona Beach, Florida 32114.
  5. Delaware Valley Insulation & Supply, Inc. and Delaware Valley Insulation at all
    times relevant to the actions giving rise to this Complaint is or were fictitious names registered in
    Pennsylvania by Defendant Masco Contractor and each represented itself to the public as a
    "Masco Company."
  6. At all times relevant to the actions giving rise to this Complaint, Masco and/or
    Masco Contractor on behalf of Masco conducted business in Pennsylvania through the fictitious
    named entities of Delaware Valley Insulation & Supply, Inc. and/or Delaware Valley Insulation.
  7. Defendant, Topbuild Corp. (hereinafter "Topbuild"), is incorporated in Delaware
    with its principal place of business at 260 Jimmy Ann Drive, Daytona Beach, Florida 32114.
  1. On information and belief, on or before July 1, 2015, Masco divided its business
    into a products arm and a services arm with Topbuild created as a separate company for the
    services Masco Contractor previously supplied, including installation of pre-fabricated metal
    fireplaces.

JURISDICTION AND VENUE

  1. Jurisdiction is based on 28 U.S.C. § 1332(a)(1) as this action involves a
    controversy between citizens of different states and the amount in controversy exceeds $75,000,
    exclusive of interest and costs.
  2. Venue is proper in this District based on 28 U.S.C. § 1391(a) in that the event
    giving rise to this claim occurred within this District.

GENERAL ALLEGATIONS

  1. Plaintiff incorporates by reference the preceding averments as though fully set
    forth herein at length.
  2. At all relevant times, Lawrence Flick, V and Allison H. Flick owned the real and
    personal property at their residence located at 2 Highland Hill Lane, Malvern, Pennsylvania
    19355 (hereinafter “the residence”).
  3. At all relevant times, Plaintiff Bankers insured the Flicks’ real and personal
    property at their residence.
  4. On information and belief, the Flicks entered into an Agreement of Sale for the
    residence with NVS Custom Homes, LP for the construction of a new home on Lot 5 in the
    Highlands at Charlestown subdivision.
  5. On information and belief, NVS Custom Homes, LP agreed to contract with
    Vaughan and Sons Builders, Inc. to act as the general contractor for the construction of the
    residence at 2 Highlands Hill Lane, Malvern, Pennsylvania.
  1. On information and belief, Vaughan contracted with Delaware Valley Insulation
    & Supply Company, Inc., “a Masco Company,” or Delaware Valley Insulation, “a Masco
    Company, “ to install pre-fabricated, zero-clearance wood-burning, Lennox Hearth Products
    fireplaces in the living room and family room of the residence during construction.
  2. On February 23, 2015, a fire originated beneath the Lennox Hearth Product
    fireplace installed in the family room of the residence.
  3. Asa result of the aforementioned fire, the Flicks sustained severe and extensive
    damage to their real and personal property and incurred additional living expenses.
  4. Pursuant to the terms and conditions of the aforementioned insurance policy,
    Bankers has made payments to the Flicks in excess of Seventy Five Thousand Dollars ($75,000)
    to repair and replace their damaged property and for additional living expenses.
  5. In accordance with common law principles of equitable and/or legal subrogation
    and the terms of the insurance policy, Bankers is subrogated to the rights of the Flicks to the
    extent of the payments it made in compensation for the aforementioned property damage and
    additional living expenses incurred as a result of the fire.

COUNT I - NEGLIGENCE

  1. Plaintiff incorporates by reference the preceding averments as though fully set
    forth herein at length.
  2. The fire and resulting damage to the property of Lawrence and Allison Flick was
    directly and proximately caused by the negligence, carelessness and/or negligent acts and/or
    omissions of Defendants, their agents, servants and/or employees acting within the course and
    scope of their employment, both generally and in the following particulars:
  1. failing to install metal safety strips during the installation of the pre-
    fabricated, zero-clearance wood-burning, Lennox Hearth Products
    fireplace in the family room of the residence in accordance with the
    manufacturer’s instructions;
  1. violating applicable building, fire and safety codes by, inter alia,
    improperly installing the pre-fabricated, zero-clearance wood-burning,
    Lennox Hearth Products fireplace without all necessary elements,
    including, but not limited to, metal safety strips;
  2. failing to hire and use agents, servants and/or employees with appropriate
    knowledge, training, experience and skill as to the installation of pre-
    fabricated, zero-clearance wood-burning fireplaces;
  3. failing to failing to properly train, oversee and supervise their employees,
    agents and subcontractors;
  4. allowing their agents, servants, employees and/or subcontractors to install
    a pre-fabricated, zero-clearance wood-burning fireplace in the family
    room of the residence in a manner that created a risk of fire;
  5. failing to perform their work and services in a good and workmanlike
    manner and in accordance with all applicable Pennsylvania building,
    safety and fire codes and standards, and industry custom and practice;
  6. failing to warn the Flicks of the risk of fire arising out of the installation of
    the fireplace; and
  7. otherwise failing to use due care under the circumstances.
  1. As a direct and proximate result of Defendants’ negligence, gross negligence,
    carelessness, and/or recklessness, Bankers sustained damage in an amount in excess of Seventy-
    Five Thousand Dollars ($75,000).

WHEREFORE, Plaintiff hereby demands judgment in its favor and against Defendants in
an amount in excess of Seventy-Five Thousand Dollars ($75,000) together with interest and costs
and such other and further relief as this Court deems proper.

COUNT II - BREACH OF WARRANTIES

  1. Plaintiff incorporates by reference the preceding averments as though fully set
    forth herein at length.
  2. By undertaking to perform work and services at the residence of

Lawrence and Allison Flick, Defendants expressly and/or impliedly warranted that their work

would be performed in a good, proper, safe and workmanlike manner, and in accordance with all
applicable building, safety and fire codes.

  1. The aforementioned fire and resulting damages sustained by

Lawrence and Allison Flick were directly and proximately caused by the breaches of
express and/or implied warranties by Defendants their agents, servants, and/or employees
acting within the course and scope of their employment, both general and in the
following particulars:

  1. failing to exercise reasonable care in performing work and services at the
    Flicks’ residence in the installation of the pre-fabricated, zero-clearance
    wood-burning fireplace;
  2. failing to properly inspect, detect and remedy and/or warn the Flicks of the
    risk of fire arising out of the installation of the fireplace;
  3. failing to properly install and inspect the subject fireplace to ensure that it
    would operate safely and properly; in particular failing to install the metal
    safety strips required by the manufacturer; and
  4. failing to properly read, understand, and/or follow the installation
    instructions for the pre-fabricated zero clearance wood-burning fireplace.
  1. Asa direct and proximate result of Defendants’ breaches of express and implied
    warranties, a fire occurred, causing severe and extensive damage to the Flick’s property and for
    which Bankers has made payment in excess of Seventy-Five Thousand Dollars ($75,000).



WHEREFORE, Plaintiff hereby demands judgment in its favor and against Defendants in
an amount in excess of Seventy-Five Thousand Dollars ($75,000) together with interest and costs
and such other and further relief as this Court deems 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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