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

CLK/HP 90 MERRICK, LLC v. ACE AMERICAN INSURANCE COMPANY, 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: 
11113280 Search Pacer
ACE Group party(s): 
Opposing Party: 
CLK/HP 90 MERRICK, LLC
Court Type: 
State
State Court: 
New York.Supreme Court (New York)
Date Filed: 
Nov 23 2011

"ALLEGATIONS APPLICABLE TO ALL CAUSES OF ACTION

10. This declaratory judgment action arises out of an incident alleged to have occurred on June 23,2009 at premises located 90 Merrick Avenue, East Meadow, New York.

11. Jane Burgdoerfer has commenced an action for damages for personal injuries in the Supreme Court, New York County. In her action for damages for personal injuries Plaintiff alleges she was injured on June 23, 2009 at the premises known as 90 Merrick Avenue, East Meadow, New York. A copy of Jane Burgdoerfer’s Complaint is attached as Exhibit “A.

12. The Plaintiff herein, CLK, served an answer in the personal injury action commenced by Ms. Burgdoerfer. Attached as Exhibit “B” is a copy of CLK’s answer in the underlying personal injury action.

13. Attached as Exhibit “C” is a copy of Defendant ABM’S answer in the underlying personal injury action.

14. Prior to Jane Burgdoerfer’s accident, the Defendant, ABM and the Plaintiff, in this litigation, CLK, entered into a contract. Attached as Exhibit “D” is a copy of the contract between CLK and ABM.

15. Pursuant to the agreement between CLK and ABM, ABM was to perform and furnish all of the work, labor, services, materials, and all things necessary for the completion of its work as said forth in the contract documents.

16. Pursuant to the contract, ABM, agreed to the fullest extent permitted by law, to indemnify, defend and hold harmless CLK from and against any and all accidents, claims, suits, damages and/or liability alleged to arise out of or in connection with or as a consequence of the performance or non-performance of its work.

17. The underlying contract between CLK and ABM requires that ABM procure, maintain and furnish a policy of insurance with a limit of liability for bodily in juqdpersonal injury or property damage of at least $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate.

18.  Pursuant to the agreement between CLK and ABM, ABM was to obtain a commercial umbrella excess policy with coverage limits of a minimum of $5,000,000.00 of combined single limit and aggregate limit.

19. Pursuant to said agreement ABM was required to name CLK as additional insureds under the commercial general liability policy as well as on the excess policy.

20. Pursuant to the contract between CLK and ABM, CLK was to be named as an insured under the primary commercial general liability policy issued by ACE to ABM and on the excess insurance policy which upon information and belief was issued by ACE Property & Casualty Insurance Company. The excess policy number was Policy No. XOOG24903382.

21. Upon infomation and belief, CLK was an additional insured and/or named insured under the policy of insurance issued by ACE to ABM for the time of Plaintiffs accident.

22. CLK, and/or its legal representatives, had previously tendered the defense and indemnity of CLK to ABM and its insurance company Ace American Insurance Company.

23. ACE has without legal basis, refused to defend and indemnify CLK in the underlying personal injury action commenced by Jane Burgdoetfer.

24. To date, neither ACE Insurance Company nor ABM have acknowledged their obligation under the policy of insurance and/or the contract in effect between CLK and ABM on the date of the Plaintiffs accident. Defendants have refused to defend and indemnify CLK herein in the personal injury action commenced by Jane Burgdaerfer.

AS AND FOR FIRST CAUSE OF ACTION AGAINST ACE FOR A DECLARATORY JUDGMENT ACTION

25. Plaintiff repeats, reiterates and re-alleges each and every allegation contained in paragraph numbered 1 through 26 of the Camplaint, inclusive, with the same force and effect as if said forth at length herein.

26. The insurance policy issued by ACE Insurance Company provides coverage for all claims arising out of the underlying personal injury action commenced by Jane Burgdoerfer.

27. The failure of ACE Insurance Company to honor its obligations to defend and indemnify CLK constitutes a breach of its policy of insurance on which CLK is an additional and/or named insured.

28. As a result of the foregoing, CLK has suffered and will continue to suffer direct and consequential damages.

29. As a result of the foregoing, an actual and justiciable controversy exists between CLK and ACE Insurance Company and between CLK and ABM regarding ACE's obligation under its policy of insurance.

30. All of the conditions precedent to coverage under the policy issued by ACE Insurance an which CLK is a named and/or additional insured have been complied with by Plaintiff CLK.

31. ACE's refusal to defend and indemnify CLK in the underlying personal injury action commenced by Jane Burgdoerfer is without a basis in law or fact."

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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