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FIREMAN'S FUND INSURANCE COMPANY et al v. ZURICH 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: 
1:14-cv-00439 Search Pacer
ACE Group party(s): 
Court Type: 
Federal
US District Court: 
Northern District of Georgia
Date Filed: 
Feb 17 2014

Facts
11.
Fireman's Fund Insurance Company provided primary layer property
damage coverage to AmeriCold, with policy limits of $10,000,000 in Policy No.
MXI 93012656.
12.
Illinois Union Insurance Company provided primary layer property damage
coverage to AmeriCold, with policy limits of $2,500,000 in Policy No.
D37373746001.
13.
Lexington Insurance Company provided primary layer property damage
coverage to AmeriCold, with policy limits of $10,500,000 in Policy No.
017727972.
14.
Certain Underwriters at Lloyd's, London Subscribing to Policy No.
JA006450Z provided primary layer property damage coverage to AmeriCold, with
policy limits of $6,375,000 in Policy No. JA006450Z.
15.
Zurich provided primary layer property damage coverage to AmeriCold,
with policy limits of $ 100,000,000 in Policy No. BM318499609.
16.
On January 22, 2010, an incident occurred at an AmeriCold cold storage
facility in Portland, Maine that constituted a "breakdown" to "covered equipment"
causing damage to "covered property" as defined in Zurich's policy (hereinafter
"the incident").
17.
AmeriCold made a claim for properly damage arising out of the incident to
the Properly Insurers and Zurich.
18.
AmeriCold's properly damage claim was settled for $637,174.82 by the
Property Insurers.
19.
Zurich does not contend that the properly damage claim settlement by the
Property Insurers was improper or unreasonable.
20.
Zurich has admitted that its policy provides coverage for AmeriCold's
property damage arising from the incident but only paid $51,835 with regard to
such property damage.
21.
Zurich's pro rata share of the properly damage claim, based on all of the
insurers' policy limits is 77.29% of $637,174.82, which is $492,472.42. As Zurich
only paid $51,835 toward the properly damage, Zurich still owes $440,667.28 as
its share.
22.
To avoid paying its pro-rata share of the properly damage costs, Zurich
wrongfully invoked an inapplicable limitation of liability provision related to the
"spoilage" of goods.
23.
To honor their contractual commitment to AmeriCold, Properly Insurers
paid $637,174.82 to AmeriCold's for its property damage claim.
24.
If the Property Insurers had not paid the claim, they would have been subject
to suit by AmeriCold.
25.
The Property Insurers reserved their rights to seek recovery from Zurich of
the unpaid portion of Zurich's pro rata share, which was paid by the Properly
Insurers.
26.
The unpaid portion of Zurich's pro rata share is $440,667.28.
27.
The Property Insurers have demanded that Zurich reimburse them for their
payment of Zurich's pro rata share of the property damage payment.
28.
All terms and conditions of the Zurich policy have been satisfied, and there
are no exclusions or limitations that apply to the subject properly damage claim
that would reduce or eliminate the full amount owed by Zurich, for the subject
loss.
29.
Zurich has refused to make any additional payments for the properly damage
claim.

Count I
Equitable Contribution
30.
The Properly Insurers' have paid more than their proportionate share of
liability for the subject loss as a result of Zurich's wrongful refusal to pay its pro
rata share of the loss, and have no adequate remedy at law.
31.
Zurich has paid less toward the settlement of AmeriCold's property damage
claim than equity and justice demands.
32.
An injustice would result if the Properly Insurers were not reimbursed by
Zurich for their payment of Zurich's share of the loss.
33.
An injustice would result if the Properly Insurers were not reimbursed by
Zurich for the interest on the funds that Zurich should have paid, from the time that
such funds were paid by the Properly Insurers.
34.
Based upon the foregoing, the Property Insurers are entitled to a judgment
awarding them that portion of the property damage claim settlement paid by them
for which Zurich is liable as a matter of equity, plus interest thereon.

Count II
Breach of Contract
35.
AmeriCold has assigned to the Property Insurers any and all of its rights,
titles, interests, claims, actions, causes of action and/or remedies against Zurich
with respect to the incident.
35.
Zurich Policy No. BM318499609 constitutes a valid contract between
Zurich and AmeriCold.
36.
The incident resulted in property damage that was covered under Policy No.
BM318499609.
37.
All terms and conditions precedent contained in Policy No. BM318499609
were satisfied with regard to AmeriCold's property damage claim to Zurich related
to the incident.
38.
No exclusions or limitations contained in Policy No. BM318499609 apply to
AmeriCold's properly damage claim.
39.
The incident resulted in covered damage to AmeriCold's properly in the
amount of $637,174.82.
40.
By reason of the Properly Insurer's co-primary coverage alongside Zurich
Policy No. BM318499609, Zurich was responsible for 77.29% of $637,174.82,
which is $492,472.42.
41.
Zurich breached the terms of Policy No. BM318499609 by refusing to pay
more than $51,835, resulting in damages in the amount of $440,667.28.
WHEREFORE, the Properly Insurers request that this Court enter judgment
in their favor:
A. for equitable contribution or, in the alternative, breach of contract, in
the amount of $440,667.28, plus interest from the time said amount was paid by
the Property Insurers; and
B. the Property Insurers' attorney's fees, costs, and all other relief that
this Court deems just and proper.
The Property Insurers further request a trial by jury on all claims not resolved by
summary adjudication

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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