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

BOMBALICKI v. ACE AMERICAN INSURANCE COMPANY

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: 
1:2015-cv-01084 Search Pacer
ACE Group party(s): 
Opposing Party: 
Jay Bombalicki
Court Type: 
Federal
US District Court: 
District of Colorado
Date Filed: 
May 22 2015

Jay Bombalicki, the Plaintiff, by and through his attorneys, for his Complaint, alleges as follows:

PARTIES, JURISDICTION, AND VENUE

1.    At all times relevant to these proceedings. Plaintiff has been a resident of Colorado.
2.    On May 5, 2013, Plaintiff resided at 2797 Wewatta Way, #3045, in the City and County
of Denver.
3.    Plaintiff currently resides at 4267 Tennyson Street, #101, in the City and County of
Denver.
4.    Upon information and belief, at all times relevant to these proceedings. Defendant has
been a non-resident of Colorado.
5.    Upon information and belief, at all times relevant to these proceedings. Defendant’s state
of Incorporation has been Pennsylvania, and Defendant’s principal place of business has
been in Pennsylvania.
EXHIBIT 2
6.    Upon information and belief, at all times relevant to these proceedings. Defendant has
been registered to do business in the State of Colorado.
7.    Upon information and belief. Defendant’s registered agent is located at 1560 Broadway,
in the City and County of Denver.
8.    This Court may properly exercise jurisdiction pursuant to C.R.S. § 13-l-124(l)(a).
9.    Venue is proper in this Court pursuant to C.R.C.P. 98(c).

FACTUAL BACKGROUND

10.    On or about May 5,2013, Plaintiff participated in a Spartan Race, Inc. Mud Run (“Mud
Run”) in Fort Carson, Colorado.
11.    Upon infonnation and belief, a Mud Run is an athletic event that involves a race through
mud and other obstacles.
12.    Plaintiff paid good and valuable consideration to participate in the Mud Run.
13.    Plaintiff suffered a cut or wound on his right ann during the mud run.
14.    Plaintiffs cut was exposed to mud during the Mud Run.
15.    Plaintiff developed a bacterial infection.
16.    Plaintiff underwent several surgeries.
17.    Plaintiff was diagnosed with reactive arthritis.
18.    Plaintiff s bacterial infection was a direct and proximate result of the external cut or
wound sustained during the mud run.
19.    Plaintiffs surgeries were the direct and proximate result of the external cut or wound.
20.    Plaintiff was diagnosed with reactive arthritis as a direct and proximate result of the
external cut or wound.
21.    On information and belief. Defendant underwrote an Insurance Policy with Policy
number PTP N04983415 (“the Policy”).
22.    Upon information and belief, the Policy had an effective date of February 10,2013, and a
policy term of February 10,2013 to February 10, 2014.
23.    Upon information and belief, the Policyholder for the Policy was Spartan Race Inc.
24.    Plaintiff made a claim for benefits under the Policy.
25.    Upon information and belief, the beneficiaries named on the Policy included, “All
participants of the Spartan Race.”
26.    Upon information and belief, this Policy carried maximum benefits of $100,000.00.
27.    Upon information and belief. Hospital and Board Expenses were listed as “Covered
Medical Expenses” under the Policy.
28.    Upon information and belief. Plaintiffs cut or would was an accidental external cut or
wound under the Policy.
29.    Upon information and belief, no Exclusion under the Policy applies to Plaintiffs claim.
30.    Defendant denied Plaintiffs claim in correspondence dated February 10,2015.
31.    Defendant provided the following explanation for its denial of Plaintiff s claim:
“We contacted Spartan Race for a copy of the incident report and Mr. Bombalicki
did not report the accident at the time of the injury and/or during the race.
Therefore, we have no proof that the loss occurred during a “Covered Activity.”
Also the policy specifically excludes bacterial infection and the accident must
results [sic] directly and independently of all other causes in a loss or Injury
covered by the Policy for which benefits are payable. Therefore, no benefits are
payable.” Defendant’s correspondence is attached as Exhibit 1.
32.    Plaintiff hereby incorporates Exhibit 1 into his complaint by reference.
33.    Upon information and belief, the Policy lists the following among its exclusions:
“We will not pay benefits for any loss or injury that is caused by, or results from:
sickness, disease, bodily or mental infirmity, bacteria or viral infection, or
medical or surgical treatment thereof, exceptfor any bacterial infection resulting
from an accidental external cut or wound or accidental ingestion of
contaminated food.” The Policy is attached as Exhibit 2.
34.    Plaintiff hereby incorporates Exhibit 2 into his complaint by reference.

PLAINTIFF’S FIRST CLAIM FOR RELIEF
(BREACH OF CONTRACT)

35.    Plaintiff incorporates by reference each and every paragraph of this complaint into this
claim for relief.
36.    Defendant contracted with Spartan Race, Inc., to provide Accidental Medical Expense
Benefits to participants of the Spartan Race.
37.    Plaintiff was a participant of the Spartan Race.
38.    As a participant of the Spartan Race, Plaintiff was a third-party beneficiary of the
insurance contract.
39.    Alternatively, Plaintiff was a direct beneficiary of the insurance contract.
40.    Plaintiff has standing to bring this action for breach of contract.
41.    Plaintiff has complied with all conditions precedent to coverage under the Policy.
42.    To the extent that Plaintiff has failed to comply with any of the contractual obligations.
Defendant has not been prejudiced by the failure to comply.
43.    To the extent that Plaintiff has failed to comply with any of the contractual obligations.
Defendant may not rely on this failure to comply because it breached one or more
material obligations under the Policy prior to any alleged failure to comply of Plaintiff.
44.    At all times relevant to this action. Defendant owed to Plaintiff the implied duty of good
faith and fair dealing under the Policy.
45.    Defendant breached its contract with Plaintiff by denying reasonable benefits under the
Policy.
46.    As a direct and proximate result of Defendant’s breach of contract, Plaintiff has incurred
damages in an amount to be proved at the time of trial.

PLAINTIFF’S SECOND CLAIM FOR RELIEF
(BAD FAITH BREACH OF INSURANCE CONTRACT)

47.    Plaintiff incorporates by reference each and every paragraph of this complaint into this
claim for relief.
48.    As a provider of insurance services to the public. Defendant at all times had a duty to be
actuated by good faith and fair dealing in everything pertaining thereto, abstain from
deceptive or misleading practices and keep, observe, and practice the principles of law
and equity in all matters pertaining to the business of insurance.
49.    Under Colorado law, every insurance contract contains an implied covenant of good faith
and fair dealing and imposes on insurers a duty to act in good faith with their insureds.
Pursuant to its implied duty of good faith and fair dealing. Defendant owed to Plaintiff an
obligation to treat Plaintiffs interests with equal consideration to their own interests.
50.    Defendant has breached its duty of good faith and fair dealing owed to Plaintiff,
including but not limited to:
a.    Failing to give equal consideration to the interest of Plaintiff, if s insured;
b.    When investigating Plaintiffs claims, failing to diligently search for evidence
that supported their insured’s (Plaintiffs) claims;
c.    Seeking to discover only evidence that defeated their insured’s (Plaintiffs)
claims;
d.    Unreasonably delaying and/or denying, or otherwise withholding benefits
under the insurance policies without a reasonable basis for delaying and/or
denying, or otherwise withholding benefits, with knowledge or reckless disregard
of a lack or reasonable basis for delaying and/or denying, or otherwise
withholding benefits;
e.    Failing to adopt and implement reasonable standards for the prompt
investigation of claims arising under the insurance policies;
f.    Refusing to pay claims without conducting a reasonable investigation based
upon all available information;
g.    Not attempting in good faith to effectuate prompt, fair and equitable settlements
of claims after its obligations had become reasonably clear;
h.    Compelling Plaintiff to institute litigation to recover amounts due under the
Policy by denying Plaintiffs claim;
i.    Forcing Plaintiff into the costly and lengthy process of litigation;
j.    Relying upon language in the Policy purportedly excluding medical treatment
for bacterial infections, while ignoring language in the Policy that explicitly
removes bacterial infections that result from an accidental external cut or wound
from the Policy exclusions;
k.    Any further acts which may be discovered.
51.    Defendant’s aforesaid conduct was unreasonable and Defendant either knew such
conduct was unreasonable or recklessly disregarded the fact that the conduct was
unreasonable.
52.    As a direct and approximate result of Defendant’s breach of its duty of good faith and fair
dealing. Plaintiff has sustained damages in an amount to be proved at trial.

PLAINTIFFS’ THIRD CLAIM FOR RELIEF
(VIOLATION OF C.R.S. 10-3-11I5(1)(A) AND C.R.S. 10-3-1116(1))

53.    Plaintiff incorporates by reference each and every paragraph of this complaint into this
claim for relief.
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Case l:15-cv-01084 Document 1-2 Filed 05/22/15 USDC Colorado Page 6 of 25
54.    Defendant’s denial of Plaintiff s claim for underinsured motorist benefits is unreasonable.
55.    Pursuant to C.R.S. 10-3-1116(1), Plaintiff is entitled to reasonable attorney’s fees and
two times the covered benefit.

WHEREFORE, Plaintiff prays for judgment against Defendant on all claims in an amount to
be proved at the time of trial, double the current benefits under C.R.S. § 10-3-116(1), interest
at the highest rate allowed by law, costs, expert witness fees and such other and further relief
as this Court deems just and proper.
PLAINTIFF DEMANDS A TRIAL BY JURY OF SIX (6) PERSONS ON ALL ISSUES
 

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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