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

EMJ CORPORATION et al v. HUDSON SPECIALTY 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: 
2:11-cv-00228 Search Pacer
ACE Group party(s): 
Opposing Party: 
EMJ Corporation
Court Type: 
Federal
US District Court: 
Northern District of Mississippi
Date Filed: 
Nov 28 2011

"X. BREACH OF CONTRACT
10.1 Plaintiffs incorporate the previous allegations as if fully set forth herein.

10.2 Defendants Hudson and Amerisure are obligated under their respective policies of insurance to provide a defense and/or insurance coverage to EMJ as an additional insured against the claims asserted by John and Mary Lou Meeker in the on-going Underlying Litigation. Those claims are covered occurrences which fall within the scope of coverage provided under the Hudson and Amerisure Policies.

10.3 Pursuant to their respective Policies, Defendants Hudson and Amerisure have an obligation to defend and indemnify EMJ Corporation in the Underlying Litigation.

10.4 The actions of Defendants Hudson and Amerisure in refusing to honor their obligations and duties to defend and indemnify their insured, EMJ, pursuant to their respective policies of insurance constitute a breach of contract on the part of each.

XL. CONTRACTUAL. LEGAL AND EQUITABLE SUBROGATION
11.1 Plaintiffs incorporate the previous allegations as if fully set forth herein.

11.2 The ACE Policy contains a subrogation clause which provides, in pertinent part:

I. Transfer of Rights of Recovery Against Others to Us. If any "Insured" has rights to recover all or part of any payment we have made under this policy, those rights are transferred to us. (Exhibit "C," ACE Policy, Conditions).

11.3 Pursuant to the ACE Policy, Plaintiff Westchester Fire Insurance Company is contractually subrogated to the rights of EMJ against Defendants, Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company.

11.4 As a result of the on-going Underlying Litigation and potential liability on the part of EMJ (which liability is at all times denied), Plaintiff Westchester Fire Insurance Company is contractually subrogated to the rights of its insured, EMJ, to pursue claims against Defendants, Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company, for defense, indemnity, payments to be made in satisfaction of judgment and/or settlement, and costs and expenses arising out of the said Defendants' past, existing and anticipated future failure to defend and indemnify the insured, EMJ.  To the extent of such payments to be made as a result of the Underlying Litigation, Defendants, Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company, are liable to Plaintiff, Westchester Fire Insurance Company, pursuant to its contractual rights of subrogation.

11.5 Alternatively, Plaintiff Westchester Fire Insurance Company is legally and/or equitably subrogated to the rights of EMJ against Defendants, Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company.

11.6 Plaintiff Westchester Fire Insurance Company specifically avails itself of the doctrine of equitable subrogation and has standing to pursue contribution and/or reimbursement against Defendants, Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company, for any and all defense costs and expenses, satisfaction of judgment and/or settlement payments incurred or to be incurred as respects the defense and/or indemnity of EMJ Corporation in the Underlying Litigation. To the extent of such payments made as a result of the Underlying Litigation, Defendants, Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company, are liable to Plaintiff, Westchester Fire Insurance Company, pursuant to its legal and/or equitable rights of subrogation.

XII. CONTRACTUAL, LEGAL AND EQUITABLE CONTRIBUTION

12.1 Plaintiffs incorporate the previous allegations as if fully set forth herein.

12.2 Plaintiff Westchester Fire Insurance Company has or will have contractual, legal and/or equitable contribution rights against Defendants, Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company, which rights exist independently of any rights of the common insured, EMJ. See Guidant Mutual Ins. Co. v. Indemnity Ins. Co. of North America, 13 So. 3d 1270 (Miss. 2009).

12.3 Plaintiff Westchester Fire Insurance Company has a claim for contractual, legal and/or equitable contribution against Defendants, Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company, for defense, indemnity, satisfaction of judgment and/or settlement payments, and costs and expenses arising out of the said= Defendants' past, existing and anticipated future failure to defend and indemnify the insured, EMJ. To the extent of such payments made as a result of the Underlying Litigation, Defendants, Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company, are liable to Plaintiff, Westchester Fire Insurance Company, for indemnity and/or contribution.

12.4 Plaintiff Westchester Fire Insurance Company specifically avails itself of the doctrine of equitable contribution and has standing to pursue contribution and/or reimbursement against Defendants, Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company, for any and all defense costs and expenses, satisfaction of judgment and/or settlement payments incurred or to be incurred as respects the defense and/or indemnity of EMJ Corporation in the Underlying Litigation.

XIII. BAD FAITH

13.1 Plaintiffs incorporate the previous allegations as if fully set forth herein.

13.2 The failure of Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company to honor their contractual obligations in favor of EMJ Corporation for additional insured status and coverage under the Hudson Policy and the Amerisure Policy, and for defense and indemnity in respect of the Underlying Litigation, constitutes breach of the duty of good faith and fair dealing under Mississippi Code § 75-1-203 and other applicable laws. The actions of Hudson and Amerisure further constitute bad faith denials of an insurance claim and unfair settlement practices under applicable state and/or federal law. The actions of Hudson and Amerisure were without arguable or legitimate bases and were committed with malice and/or gross negligence, in careless disregard of the rights of EMJ Corporation, such that an award for punitive damages is appropriate under Mississippi Code § 11-1-65 and/or other applicable laws, as well as extracontractual damages and consequential damages, including, but not limited to, attorneys' fees, court costs, and other economic losses.

XIV. CLAIM FOR DECLARATORY JUDGMENT AND OTHER RELIEF

14.1 Plaintiffs incorporate the previous allegations as if fully set forth herein.

14.2 This Honorable Court should declare the rights and obligations of all persons interested under the insurance contracts at issue herein pursuant to Rule 57 of the Federal Rules of Civil Procedure, the United States Declaratory Judgment Act, 28 U.S.C. § 2201, and otherwise.

14.3 An actual case or controversy has arisen and now exists between the Plaintiffs and Defendants relating to the duties of Hudson and Amerisure to provide liability coverage to EMJ on a primary basis to pay any settlement or judgment against EMJ in the Underlying Litigation as well as attorneys' fees and expenses incurred in the defense of EMJ in the Underlying Litigation. In order to terminate the controversy and uncertainty concerning the existence and/or extent of liability coverage and defense obligations under the insurance contracts at issue, and in order to determine the priority of insurance coverage within the context of the Underlying Litigation, it is necessary that a declaration be made as to the rights and obligations of the parties hereto. Therefore, a Declaratory Judgment is necessary, and Plaintiffs respectfully request this Honorable Court declare their rights under the subject policies.

14.4 An award of attorneys' fees and expenses incurred by Plaintiffs would be equitable and just, and Plaintiffs seek recovery of attorney's fees and expenses pursuant to all applicable provisions of Mississippi, federal, and other laws."

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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