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

FISERV SOLUTIONS INC v. WESTCHESTER FIRE 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-00603 Search Pacer
Opposing Party: 
Fiserv Solutions Inc
Court Type: 
Federal
US District Court: 
Eastern District of Wisconsin
Date Filed: 
Jun 22 2011

"Through this action, Fiserv seeks to hold ACE accountable for breaching its “duty to defend” Fiserv under the ACE Primary Policy by requiring it to: (a) reimburse Fiserv in full for its past defense costs and to pay Fiserv’s future defense costs as a third party defendant in Bank of America, N.A. v. United General Title Insurance Co. et al. v. Fiserv Solutions, Inc., et al., No. 10-CVS-5415 (the “First American Action”), in which United General Title Insurance Company and First American Title Insurance Company (collectively “First American”) filed a Third Party Complaint against Fiserv alleging errors and omissions in its provision of professional services and seeking an amount exceeding the total limits of the primary and excess policies at issue; and (b) pay the full amount of any reasonable settlement Fiserv may elect to enter at or prior to or following a final mediation session in the First American Action scheduled for August 24-26, 2011 before mediator Eric Green. In the alternative, Fiserv seeks from ACE and the Defendant excess insurers indemnification up to the limits of the respective policies issued by Defendants for any settlement or judgment, as well as costs of defense."

 

"COUNT I – DECLARATORY JUDGMENT AGAINST ACE
28. Fiserv hereby incorporates the allegations in the foregoing paragraphs 1 through 27 as if the same were set forth herein.

29. An actual and justiciable controversy exists between Fiserv and ACE with respect to ACE’s duties and obligations under the ACE Primary Policy, including ACE’s obligation to provide coverage for the First American Action and duty to defend and reimburse Fiserv for Claims Expense (defense costs) incurred and to be incurred in connection with the First American Action.

30. Pursuant to 28 U.S.C. §§ 2201 and 2202, and Federal Rule of Civil Procedure 57, Fiserv seeks a judicial determination and declaration that ACE must provide coverage for the First American Action, owes Fiserv a duty to defend the First American Action and must reimburse Fiserv for the Claims Expenses Fiserv has incurred to date and pay future Claims Expenses Fiserv will incur.

COUNT II –BREACH OF CONTRACT AGAINST ACE
31. Fiserv hereby incorporates the allegations in the foregoing paragraphs 1 through 30 as if the same were set forth herein.

32. The ACE Primary Policy is a valid and enforceable contract of insurance, for which all premiums have been paid.

33. Fiserv has performed all of its obligations under the ACE Primary Policy, and any and all conditions precedent to Fiserv’s rights under that policy respecting the First American Action have been satisfied or waived.

34. Pursuant to the terms and conditions of the ACE Primary Policy, ACE has breached its duty to defend Fiserv against third party claims in the First American Action.

35.As a direct and proximate cause of ACE’s breach, Fiserv has been left to defend itself in the First American Action and has suffered damages in excess of $75,000, exclusive of interests and costs, in an amount to be determined at trial. Additionally, ACE’s breach has and continues to severely prejudice Fiserv’s negotiating position and ability to resolve the First American Action and defense in the First American Action. Accordingly, Fiserv seeks as damages from ACE the full amount of whatever reasonable settlement Fiserv may elect to reach in the First American Action.

COUNT III –DECLARATORY JUDGMENT AGAINST THE EXCESS INSURERS

36. Fiserv hereby incorporates the allegations in the foregoing paragraphs 1 through 35 as if the same were set forth herein.

37. Upon information and belief, the Excess Insurers also assert that they may owe no coverage for the First American Action.

38. An actual and justiciable controversy exists between Fiserv and each of the Excess Insurers with respect to whether coverage may be owed for any amounts incurred in either Claims Expense or any settlement or judgment that exceeds the $10 million limit of the ACE Primary Policy.

39. Pursuant to 28 U.S.C. §§ 2201 and 2202, and Federal Rule of Civil Procedure 57, Fiserv seeks a judicial determination and declaration that the First American Action properly falls within the coverage afforded by the Excess Policies to the extent Claims Expense and/or any settlement or judgment exceed the limits of the ACE Policy and any underlying excess policy.

COUNT IV –BREACH OF THE IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING AGAINST ACE

40. Fiserv hereby incorporates the allegations in the foregoing paragraphs 1 through 39 as if the same were set forth herein.

41. The ACE Primary Policy is a valid and enforceable contract of insurance, for which all premiums have been paid.

42. Fiserv has performed all of its obligations under the ACE Policy, and any and all conditions precedent to Fiserv’s rights under that policy respecting the First American Action have been satisfied or waived.

43. Pursuant to the terms and conditions of the ACE Primary Policy, ACE is required to provide coverage to Fiserv for “Claims Expenses” incurred in connection with the First American Action.

44. ACE belatedly recognized its obligations under the ACE Primary Policy and accepted its duty to defend Fiserv in the First American Action.

45. Despite accepting its duty to defend, ACE continued to delay the provision of coverage and ultimately wrongfully failed and refused to defend Fiserv or reimburse Fiserv for the Claims Expenses Fiserv has incurred and will incur in the First American Action.

46. ACE’s conduct constitutes a breach of the implied duty of good faith and fair dealing contained in the ACE Primary Policy.

47. ACE has no reasonable basis for refusing to defend Fiserv and/or to reimburse Fiserv for the Claims Expenses Fiserv has incurred or will incur in the First American Action or has acted in reckless disregard of whether there is a basis for refusing to reimburse Fiserv.

48. As a direct and proximate cause of the aforesaid actions by ACE, Fiserv has suffered damages in excess of $75,000, exclusive of interests and costs, in an amount to be determined at trial.

WHEREFORE, Fiserv respectfully request that this Court enter judgment in its favor and against Defendants as follows:
(1) With respect to ACE under Count I, a judicial determination and declaration that the First American Action is covered under the ACE Primary Policy and ACE owes Fiserv a duty to defend the First American Action and must reimburse Fiserv for the First American Action Claims Expenses Fiserv has incurred to date and pay future Claims Expenses Fiserv will incur.
(2) With respect to ACE under Count II, an amount in excess of $75,000, exclusive of interests and costs, to be determined at trial.
(3) With respect to the Excess Insurers under Count III, a judicial determination and declaration that the First American Action properly falls within the coverage afforded by the Excess Policies to the extent Claims Expense and/or any settlement or judgment exceed the limits of the ACE Primary Policy and any underlying Excess Policy.
(4) With respect to ACE under Count IV, an amount in excess of $75,000, exclusive of interests and costs, to be determined at trial.
(5) With respect to all Counts:
(a) prejudgment and post judgment interest;
(b) costs; and
(c) such other and further relief as the Court may deem just and 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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