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

HARTFORD ACCIDENT AND INDEMNITY COMPANY et al v. FFP HOLDINGS LLC 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: 
3:15-cv-00377 Search Pacer
ACE Group party(s): 
Opposing Party: 
Hartford Accident and Indemnity Company
Court Type: 
Federal
US District Court: 
Northern District of Ohio
Date Filed: 
Feb 27 2015

 COMPLAINT FOR DECLARATORY JUDGMENT
 
Plaintiffs Hartford Accident and Indemnity Company (“Hartford Accident”),
Hartford Fire Insurance Company (“Hartford Fire”), and Twin City Fire Insurance Company
(“Twin City”) allege as follows for their Complaint against Defendants FFP Holdings LLC
(“Flexible”)(formerly known as Flexible Foam Products, LLC and Flexible Foam Products,
Inc.), Ohio Decorative Products, LLC (“Ohio Dec”)(formerly known as Ohio Decorative
Products, Inc.), Moeller Construction Company (“Moeller Construction”), Moeller Land &
Cattle Company, Inc. (“Moeller Land”), Great American Alliance Insurance Company (“Great
American”), Westchester Fire Insurance Company (“Westchester”), Ohio Casualty Insurance
Company (“Ohio Casualty”), Swiss Reinsurance America Corporation (“Swiss”), and Doe
Companies 1 through 5:

NATURE OF ACTION
1. This is an action for declaratory judgment pursuant to 28 U.S.C. Sec. 2201
wherein plaintiffs seek a declaration that their insurance policies issued to one or more of the
non-insurer  defendants do not provide coverage for defense, reimbursement of defense costs or
indemnity of the alleged environmental liabilities and remediation costs of Flexible, Ohio Dec,
Moeller Construction and Moeller Land arising out of the Lusher Street Groundwater
Contamination Site (“the Site”) in Elkhart, Indiana.
 
PARTIES
PLAINTIFFS
2. Plaintiff Hartford Accident is a Connecticut corporation having its principal place
of business in Hartford, Connecticut. Hartford Accident issued the following liability insurance
policies to Flexible Foam Products, Inc. (“Flexible, Inc.”), Ohio Decorative Products, Inc.
(“Ohio Dec, Inc.”), and/or Moeller Land under which coverage for liability arising out of the
Site, as further described herein, is being or may be sought:
      Insurer Insureds     Policy No.     Effective Dates
Hartford Accident Flexible, Inc. 20UENRG2026 12/29/86 to 12/29/87
Hartford Accident Flexible, Inc. 20UENZT5417 12/29/87 to 12/29/88
Hartford Accident Flexible, Inc. 20UENRG2026 12/29/87 to 12/29/88
Hartford Accident Ohio Dec, Inc., 20UENZT9831 02/28/88 to 02/28/89
   Moeller Land
Hartford Accident Flexible, Inc. 20UENRG2026  12/29/88 to 12/29/89
3. Plaintiff Hartford Fire is a Connecticut corporation having its principal place of
business in Hartford, Connecticut.  Hartford Fire issued the following liability insurance policies
to Flexible, Inc. under which coverage for liability arising out of the Site, as further described
herein, is being or may be sought:
      Insurer Insureds     Policy No.     Effective Dates
Hartford Fire Flexible, Inc. 20UENME9251 12/29/98 to 12/29/99
Hartford Fire Flexible, Inc. 20UENME9251 12/29/99 to 12/29/00
Hartford Fire Flexible, Inc.  20UENME9251 12/29/00 to 12/29/01
4. Plaintiff Twin City is an Indiana corporation having its principal place of business
in Hartford, Connecticut.  Twin City issued the following liability insurance policies to Flexible,
Inc. and/or Moeller Construction under which coverage for liability arising out of the Site, as
further described herein, is being or may be sought:
      Insurer Insureds     Policy No.     Effective Dates
Twin City Flexible, Inc. 20UENMD3170 12/29/89 to 12/29/90
Twin City Flexible, Inc. 20UENMD3170 12/29/90 to 12/29/91
Twin City Flexible, Inc. 20UENMD3170 12/29/91 to 12/29/92
Twin City Flexible, Inc. 20UENMD3170 12/29/92 to 12/29/93
Twin City Flexible, Inc. 20UENLZ0217 12/29/93 to 12/29/94
Twin City Flexible, Inc. 20UENLZ0217 12/29/94 to 12/29/95
Twin City Moeller Construction 20UENGR2241 10/17/95 to 10/17/96
    c/o Flexible, Inc.
Twin City Flexible, Inc. 20UENLZ0217 12/29/95 to 12/29/96
Twin City Moeller Construction  20UENGR2241 10/17/96 to 10/17/97
    c/o Flexible, Inc.
Twin City Flexible, Inc.
Twin City Flexible, Inc.
20UENME9251 12/29/96 to 12/29/97
20UENME9251 12/29/97 to 12/29/98

DEFENDANTS
5. On information and belief, defendant Flexible is an Ohio limited liability
company.  Flexible was formerly known as Flexible Foam Products, LLC, and previously
Flexible Foam Products, Inc., which was an Ohio corporation having its principal place of
business in Spencerville, Ohio.  On information and belief, the sole member of Flexible is Ohio
Dec.  On information and belief, the sole member of Ohio Dec is Moeller Family Limited
Partnership, LLP, an Ohio limited liability partnership.  The twelve (12) individual members of
Moeller Family Limited Partnership, LLP and their citizenship are as follows, on information
and belief:  1) Candace Moeller (general partner) is an individual domiciled in Florida and is a
citizen of Florida; (2) Marcia Elliott (general partner) is an individual domiciled in Ohio and is a
citizen of Ohio; (3) Charlene McCullough (limited partner) is an individual domiciled in Florida
and is a citizen of Florida; (4) Teresa Moeller (limited partner) is an individual domiciled in
Florida and is a citizen of Florida; (5) Justin Elliott (limited partner) is an individual domiciled in
Ohio and is a citizen of Ohio; (6) Holly Elliott (limited partner) is an individual domiciled in
Ohio and is a citizen of Ohio; (7) Jordan (limited partner) is an individual domiciled in Ohio and
is a citizen of Ohio; (8) Broderick McCullough (limited partner) is an individual domiciled in
Ohio and is a citizen of Ohio; (9) Richard McCullough (limited partner) is an individual
domiciled in Ohio and is a citizen of Ohio; (10) Corrie Doty (limited partner) is an individual
domiciled in Ohio and is a citizen of Ohio; (11) Christi Doty (limited partner) is an individual
domiciled in Florida and is a citizen of Florida; and (12) Kasey Doty (limited partner) is an
individual domiciled in Georgia and is a citizen of Georgia.  Thus, Ohio Dec is a citizen of
Florida, Georgia and Ohio.  Inasmuch as Ohio Dec is the sole member of Flexible, Flexible is
also a citizen of Florida, Georgia and Ohio.
6. On information and belief, defendant Ohio Dec is an Ohio limited liability
company.  Ohio Dec was formerly known as Ohio Decorative Products, Inc., which was an Ohio
corporation having its principal place of business in Spencerville, Ohio.  As set forth in
Paragraph 5 hereof, Ohio Dec is a citizen of Florida, Georgia and Ohio.   
7. Defendant Moeller Construction is an unincorporated proprietorship located in
Spencerville, Ohio.
8. Defendant Moeller Land is an Ohio corporation having its principal place
business in Spencerville, Ohio.  
9. Defendant Westchester is a Pennsylvania corporation having its principal place of
business in Philadelphia, Pennsylvania.  On information and belief, Westchester is responsible
by reason of assumption or novation for certain excess liability insurance policies issued by
International Insurance Company which may provide coverage to Flexible, Ohio Dec, Moeller
Construction and/or Moeller Land. Westchester is named as a defendant because it has an
interest in the outcome of this litigation.
10. Defendant Great American is an Ohio corporation having its principal place of
business in Cincinnati, Ohio.  On information and belief, Great American issued umbrella
liability insurance policies which may provide coverage to Flexible, Ohio Dec, Moeller
Construction and/or Moeller Land. Great American is named as a defendant because it has an
interest in the outcome of this litigation.
11. Defendant Ohio Casualty is a New Hampshire corporation having its principal
place of business in Boston, Massachusetts.  On information and belief Ohio Casualty is
responsible for Policy Number 0-04-06-56-00 issued by Great American Insurance Company to
Flexible Foam Products, Inc. for the period from 12/29/87 – 12/29/88.   Ohio Casualty is named
as a defendant because it has an interest in the outcome of this litigation.
12. Defendant Swiss is a New York corporation having its principal place of business
in Armonk, New York.  On information and belief, Swiss issued one or more insurance policies
which may provide coverage to Flexible, Ohio Dec, Moeller Construction and/or Moeller Land.  
On information and belief, Swiss has agreed to provide a defense to Flexible in connection with
the Site, pursuant to a reservation of rights.  Swiss is named as a defendant because it has an
interest in the outcome of this litigation.
13. Defendants Doe Companies 1 through 5 are insurance companies which may have
issued primary or excess liability insurance policies which may provide coverage to Flexible,
Ohio Dec, Moeller Construction and/or Moeller Land. Flexible has advised plaintiffs that it has
notified insurers other than the parties to this case of its potential liabilities at the Site, but
Flexible has not provided plaintiffs with the identities of those insurers or information about the
policies issued by those insurers.  Plaintiffs are accordingly without knowledge or information
sufficient to form a belief as to the identities or citizenship of Doe Companies 1 through 5.  Doe
Companies 1 through 5 are named as defendants because they have an interest in the outcome of
this litigation.

JURISDICTION AND VENUE
14. Jurisdiction is proper in this Court, pursuant to 28 U.S.C. Sec. 1332(a), because
the plaintiffs and known defendants are citizens of different states and the amount in controversy
exceeds $75,000 exclusive of interest and costs.   
15. Venue is proper in this District, pursuant to 28 U.S.C. Sec. 1391(a)(2), because a
substantial part of the events giving rise to the claim herein occurred within this District.

LUSHER STREET GROUNDWATER CONTAMINATION SITE
16. By letter dated August  27, 2013 (the “August 2013 Letter”), Ohio Dec, Inc. and
Flexible, Inc. first notified plaintiffs that the Environmental Protection Agency (“EPA”) had, at
an unspecified time, requested information from them about whether Flexible, Inc. had ever
used, purchased, stored or disposed of certain solvents including 1,1,1-Trichloroethane at the
Site.  They advised plaintiffs that Flexible, Inc. has operated a facility at the Site from October
15, 1986 to the present in a building owned by Moeller Land and previously owned by Ohio
Dec.  The August 2013 Letter also stated that, at an unspecified time, the EPA had collected soil
and groundwater samples from the Flexible property on the Site.  Further, the August 2013
Letter advised plaintiffs that, in response to the EPA’s prior request for information, Ohio Dec,
Inc. and Flexible, Inc. had disclosed that 1,1,1 – Trichloroethane was a component in an adhesive
that had been used at the facility in the past. The August 2013 Letter did not include a copy of
the EPA’s request for information or Ohio Dec, Inc. and Flexible, Inc.’s response to the EPA.  
The August 2013 Letter requested that plaintiffs investigate this matter and confirm alleged
policy obligations, including defense obligations, under certain policies including policies issued
to Flexible, Inc.,  Ohio Dec,, Inc. Moeller Land and Moeller Construction (collectively, the
“Flexible Entities”).
17. By letter dated August 30, 2013, plaintiffs advised the Flexible Entities that it
would commence an investigation and requested information to assist with plaintiffs’
investigation.  
18. Plaintiffs received no further correspondence from the Flexible Entities until
November 22, 2013, when the Flexible Entities forwarded to plaintiffs two letters dated
November 13, 2013 from the EPA notifying Flexible that it is a Potentially Responsible Party at
the Site, pursuant to Section 107(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. sec. 9607(a), as amended.  The Flexible Entities’
November 22, 2013 letter also asked that plaintiffs provide a “formal coverage position.”  As set
forth in plaintiffs First Cause of Action, the Flexible Entities are not entitled to coverage under
plaintiffs’ policies.  
19. On February 6, 2015, plaintiffs’ counsel received from Flexible’s counsel a letter
dated February 2, 2015 from the EPA notifying Flexible of the EPA’s formal demand for
reimbursement from twelve Potentially Responsible Parties of costs in the amount of
approximately $5.7 million which the EPA claims to have incurred at the Site, notifying Flexible
of a  60-day period of formal negotiations with the  EPA for reimbursement and performance of
remedial action, and providing Flexible with additional information.

FIRST CAUSE OF ACTION
CLAIM FOR DECLARATORY JUDGMENT
20. Plaintiffs reallege the allegations of paragraphs 1 through 19 above as if fully set
forth herein.
21. Plaintiffs request that this Court determine that plaintiffs do not currently have
and never had any obligation to defend, reimburse defense costs, or indemnify any of the
Flexible Entities, Flexible or Ohio Dec under the insurance policies issued by plaintiffs, with
respect to the Site, because plaintiffs’ policies contain pollution exclusions.  Those exclusions
state in relevant part, with minor variations and inapplicable exceptions, that the insurance does
not apply to:
f. Pollution
(1) “Bodily injury or “property damage” arising out of the actual,
alleged or threatened discharge, dispersal, seepage, migration,
release or escape of pollutants:
a. At or from any premises, site or location which is or was at
any time owned or occupied by, or rented or loaned to, any
insured;
b. At or from any premises, site or location which is or was at
any time used by of for any insured or others for the
handling, storage, disposal, processing or treatment of
waste;  
c. Which are or were at any time transported, handled, stored,
treated, disposed of, or processed as waste by or for any
insured or any person …  
(2) Any loss, cost, or expense arising out of any:
a. Request, demand or order that any insured or others test
for, monitor, clean up, remove, contain, treat, detoxify or
neutralize, or in any way respond to, or assess the effects of
pollutants; or
b. Claim or suit by or on behalf of a governmental authority
for damages because of testing for, monitoring, cleaning
up, removing, containing, treating, detoxifying or
neutralizing, or in any way responding to, or assessing the
effects of pollutants.
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant,
including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.  Waste
includes materials to be recycled, reconditioned or reclaimed.
22. Plaintiffs’ policies may additionally bar coverage to the Flexible Entities, Flexible
or Ohio Dec on one or more of the following grounds:
a. Coverage is barred to the extent there has not been an “accident” or
“occurrence” under the terms of plaintiffs’ policies;
b. Coverage is barred to the extent there has not been any injury that  
constitutes “property damage,” “bodily injury” or “personal injury” within
the meaning of plaintiffs’ policies;
c. Coverage is barred to the extent that any “property damage,” “bodily
injury” or “personal injury” for which coverage is sought occurred prior to
the inception of or after the expiration of one or more of the policy periods
of plaintiffs’ policies;
d. Coverage is barred to the extent that coverage is sought for equitable or
injunctive relief;
e. Coverage is barred to the extent coverage is sought for fines or penalties;
f. Coverage is barred to the extent coverage is sought for alleged “bodily
injury,” “personal injury” or “property damage” which was expected or
intended from the standpoint of the insured under plaintiffs’ policies;
g. Coverage is barred to the extent there has been a failure to mitigate,
minimize or avoid any “bodily injury,” “personal injury” or “property
damage” and/or a failure to mitigate, minimize or avoid liabilities;
h. Coverage is barred and/or limited under the doctrine of known loss;
i. Coverage is barred to the extent coverage for the remediation costs or
environmental liabilities would be in violation of public policy;
j. Coverage is barred to the extent there was a negligent or intentional failure
to disclose, and/or a negligent or intentional concealment,
misrepresentation or omission of, facts material to the risks at issue for
purposes of inducing plaintiffs to sell their policies;
k. Coverage is barred to the extent there has been a breach of any policy
conditions requiring the insured to cooperate with plaintiffs or prohibiting
voluntary payments or the voluntary assumption of obligations;
l. Coverage is barred to the extent there has been a breach of any policy
conditions requiring the insured to provide timely and/or proper notice to
plaintiffs;
m. Coverage is barred and/or limited due to the existence of other insurance;
n. Coverage is barred and/or limited by virtue of the per occurrence limits
and/or the aggregate limits applicable to plaintiffs’ policies;
o. Coverage is barred to the extent that any party seeking coverage is not
insured, either as a named or as an additional insured, under plaintiffs’
policies and has not succeeded to any rights under the policies or to the
extent the policies only provide coverage for specific operations or
locations unrelated to the Site;  
p. Coverage for defense or reimbursement of defense costs is barred to the
extent that there has not been a “suit” against any of the Flexible Entities;
q. In the event that one or more of the insurance policies issued by plaintiffs
is found to provide coverage for any of the underlying matters, then
plaintiffs’ coverage obligations would be limited to their appropriate share
of allocated liability;
r. Coverage is barred to the extent that any claimed loss was not fortuitous;
and
s. Coverage may be barred in whole or in part by the other terms, exclusions,
conditions and limitations contained in plaintiffs’ policies.
WHEREFORE, plaintiffs Hartford Accident and Indemnity Company, Hartford Fire
Insurance Company, and Twin City Fire Insurance Company pray for judgment as follows:
A. Declaring that plaintiffs do not currently have and never had any obligation for
defense, reimbursement of defense costs, or indemnity to defendants Flexible
Entities, Flexible, or Ohio Dec in connection with the Site.
B. Awarding plaintiffs such fees, costs and disbursements as are recoverable by law;
and
C. Awarding plaintiffs such other and further relief as the Court may deem just and
appropriate

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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