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

HERZOG v. ACE 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: 
2:15-cv-00178 Search Pacer
ACE Group party(s): 
Opposing Party: 
Michael L. Herzog
Court Type: 
Federal
US District Court: 
Middle District of Florida
Date Filed: 
Mar 19 2015

COMPLAINT

COMES NOW the Plaintiff, MICHAEL L. HERZOG, by and through the
undersigned attorney, and sues the Defendant, ACE AMERICAN INSURANCE
COMPANY, for damages, and in support thereof, the Plaintiff states the following:

JURISDICTION AND VENUE
1. This is a case of admiralty and maritime jurisdiction stating a maritime
claim within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure as
hereinafter more fully appears. This Court has original jurisdiction through Article III,
Section 2, of the United States Constitution. Original jurisdiction is further conferred
over this matter pursuant to 28 U.S.C. § 1333. This Court furthermore has jurisdiction in
that the following civil action seeks determination of marine insurance coverage.
2. Venue is proper in the Middle District of Florida in that this is the location
where the covered loss occurred.

PARTIES
3. At all times material hereto, the Plaintiff, MICHAEL L. HERZOG, was the
owner and operator of a 2003 2T Maverick, Master Angler that suffered damage and
required towing near Boca Grande, Florida and was insured by the Defendant.
4. At all times material hereto, Defendant, ACE AMERICAN INSURANCE
COMPANY (hereinafter 'ACE”), on information and belief is a Pennsylvania corporation
engaged in the business of issuing marine policies of insurance, and said Defendant
provided a policy of marine insurance insuring Plaintiff’s aforestated vessel, whose
policy number is Y08848385. (See Attached “Exhibit A”).

GENERAL ALLEGATIONS
5. Plaintiff, MICHAEL L. HERZOG, is the owner of a 2003 21' Maverick,
Master Angler boat that was insured by the Defendant, ACE, under the policy number
Y08848385.
6. The Defendant, ACE, is authorized to execute and deliver marine policies
of insurance in this state, and did, in fact, execute a policy of marine insurance covering
the Plaintiff’s vessel against certain losses.
7. The policy of marine insurance issued by the Defendant insurer to the
Plaintiff and covering the Plaintiff’s vessel against loss was in full force and effect on the
date of loss.
8. On or about May 23, 2014, the Plaintiff’s vessel suffered damage and
required towing and/or salvage services near Boca Grande, Florida.

COUNT I:
BREACH OF CONTRACT AGAINST DEFENDANT. ACE
9. Plaintiff re-alleges paragraphs one through eight as though fully stated
herein, and Plaintiff further alleges:
10. On or about May 23, 2014, Plaintiff suffered an “occurrence”, which was
the proximate cause of loss as defined by the law and under the policy of marine
insurance; the occurrence caused damage to the insured vessel and other insured
items under the policy. The Plaintiff was caught in rough weather and the boat violently
struck unexpected high seas (6-7 feet) causing a thru-hull fitting to break; the Plaintiff
required assistance from Reliable Salvage and Towing which amounted to towing
and/or salvage services.
11. Prior to and at the time of the occurrence, Plaintiff had purchased, paid
for, and maintained a valid policy of marine insurance with the Defendant, ACE, that
was in full force and effect on the date of loss.
12. Within a reasonable time after the loss, Plaintiff notified the Defendant,
ACE, of the loss sustained and complied with all conditions precedent of the marine
insurance policy that Plaintiff is required to perform as a prerequisite to recovery under
the policy, including that Defendant, ACE, sent a surveyor to assess the Plaintiff’s
insured vessel.
13. Plaintiff has sustained extensive damage to its vessel and Defendant,
ACE, has failed to cover the loss.
14. Plaintiff has demanded payment from the Defendant insurer under the
policy for the damages caused by the loss and has further demanded that the
Defendant insurer honor all its other obligations under the policy, including helping the
insurer avoid further damage to the vessel.
15. The Defendant insurer has refused to pay the total amount of the loss
sustained by the Plaintiff, refused by its inaction to assist the Plaintiff, and refused to
otherwise honor its obligations to the Plaintiff, and has instead denied Plaintiff’s subject
claim.
16. Because of the Defendant insurer’s denial, refusal and failure to pay the
total amount of the loss to the Plaintiff, and the Defendant insurer’s denial, refusal
and/or failure to honor its other obligations to third-parties under the policy, Plaintiff was
compelled to retain the services of the undersigned counsel to prosecute this action.
Plaintiff has become obligated to counsel for payment of reasonable attorney’s fees,
and Defendant insurer is obligated to pay such fees pursuant to Florida Statute
627.428.

WHEREFORE, the Plaintiff, MICHAEL L. HERZOG, respectfully requests
judgment against the Defendant, ACE AMERICAN INSURANCE COMPANY, for
damages under the policy of marine insurance, together with reasonable attorney’s
fees, costs of suit, interest from the date of loss, and any other and further relief, as this
Court may deem proper, and hereby demands trial by jury of all issues so triable.

COUNT II:
DECLARATORY JUDGMENT
17. Plaintiff re-alleges paragraphs one through eight as though fully stated
herein, and Plaintiff further alleges:
18. This is a declaratory judgment action to construe the rights and obligations
of the parties under a contract of marine insurance.
19. Issues of coverage provided by “marine” insurance policies are proper
issues for the District Court to resolve with a declaratory judgment, and thus jurisdiction
is appropriate with this Court.
20. Plaintiff held a valid policy of marine insurance with the Defendant insurer
providing coverage for the losses sustained.
21. On or about May 23, 2014 and while the valid policy of marine insurance
was in full force and effect, the insured vessel began to take on water, became
imperiled, and was towed and/or salvaged by a third party, all of which is a covered loss
under the policy of insurance.
22. Plaintiff has fully cooperated and timely made notification and demand
upon the Defendant insurer to provide coverage and to honor the obligations set forth
under the policy of insurance including benefits to any third party beneficiaries, but the
Defendant insurer has failed or refused to honor these obligations.
23. The Defendant insurer has alleged that the policy of marine insurance
does not provide coverage for the sustained losses based upon a misreading of, or
ambiguous, provisions in the policy, and has refused all payment to Plaintiff for
coverage.
24. The Plaintiff therefore seeks a declaration he is entitled to coverage for the
sustained losses under the valid policy of marine insurance at the time of the
25. Plaintiff is entitled to reasonable attorney’s fees pursuant to Florida Statute
627.428, as this is an action for Declaratory Judgment to determine coverage.

WHEREFORE, the Plaintiff, MICHAEL L. HERZOG, requests this Court to
determine that the Defendant, ACE AMERICAN INSURANCE COMPANY, has no right
recognized by Florida or maritime law to deny Plaintiff’s claim, that the policy in question
provides coverage for the losses sustained in the occurrence in question, and that the
insurer must pay the claim brought by the Plaintiff, together with reasonable attorney’s
fees pursuant to Florida Statute 627.428, costs of suit, interest from the date of loss,
and any other and further relief, as the Court may deem proper, and hereby demands
trial by jury.

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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