H.G. GALLERIA I, II, III, L.P. et al v. ACE AMERICAN INSURANCE COMPANY
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"Breach of Contract
39. Pleading further, SIMON and H.G. GALLERIA would show that ACE AMERICAN has breached the contract of insurance by failing to provide defense and indemnity under the contract of insurance issued by ACE AMERICAN.
40. As additional insureds under the contract of ACE AMERICAN, both SIMON and H.G. GALLERIA are entitled to a separate defense and indemnification. These duties are owed by ACE AMERICAN, and ACE AMERICAN has wholly failed to and has refused to provide a defense or to indemnify either SIMON or H.G. GALLERIA. As a result, and because both SIMON and H.G. GALLERIA are beneficiaries under the contract of insurance issued by ACE AMERICAN, ACE AMERICAN has breached the contract by failing to provide benefits owed under the contract of insurance.
41. As a result of the breach of contract, SIMON and H.G. GALLERIA have had to retain counsel to defend themselves in the Underlying Lawsuit.
42. As a further result of the breach of contract, SIMON and H.G. GALLERIA are entitled to recover damages, including but not limited to the following:
1. Attorney's fees, costs and expenses incurred in defending SIMON and H.G. GALLERIA from the claims made by Nancy Arbuckle in the Underlying Lawsuit;
2. Attorney's fees incurred in securing declaratory relief from this Court;
3. Attorney's fees incurred as a result of the breach of contract of ACE AMERICAN under Chapter 38 of the Texas Civil Practice & Remedies Code.
Violations of the Texas Insurance Code
43. Pleading further, SIMON and H.G. GALLERIA would show that ACE AMERICAN violated the Texas Insurance Code. More specifically, ACE AMERICAN violated the Texas Insurance Code Section 541 by engaging and misleading or deceptive practices.
44. More specifically, ACE AMERICAN engaged in unfair practices by:
a. Misrepresenting to SIMON and H.G. GALLERIA material facts or policy provisions relating to the coverage at issue;
b. Failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of the Arbuckle claim on behalf of SIMON and H.G. GALLERIA, even though ACE AMERICAN'S liability on the Policy was reasonably clear as to SIMON and H.G. GALLERIA;
c. Failing to properly provide SIMON and H.G. GALLERIA with a reasonable explanation in the Policy, in relation to the facts or applicable law, for ACE AMERICAN'S denial of the claim and denial of coverage available under the Policy to SIMON and H.G. GALLERIA;
d. Failing within a reasonable time to affirm or deny coverage of the claim and the obligations of ACE AMERICAN to SIMON and H.G. GALLERIA;
45. Each of the foregoing unfair practices was completed "knowingly," and each was a producing cause of injuries and damages to SIMON and H.G. GALLERIA. As a consequence of the knowing violation of the Texas Insurance Code, SIMON and H.G. GALLERIA are entitled to recovery of u p to three times actual damages.
46. Furthermore, the claims presented by SIMON and H.G. GALLERIA for coverage and for indemnity are claims under an insurance policy with ACE AMERICAN. ACE AMERICAN had proper notice from SIMON and H.G. GALLERIA. However, even after proper notice, ACE AMERICAN wrongfully denied the claim. As a result, ACE AMERICAN has violated the prompt payment of claims provision of the Texas Insurance Code, Section 542.051, et. seq. and SIMON and H.G. GALLERIA are entitled to additional recovery under the Prompt Payment of Claims provision. ACE AMERICAN violated Texas Insurance Code Section 542.051 et. seq by:
a. Failing to acknowledge receipt of the claim, commence a reasonable investigation of the claim, a n d / o r request from SIMON and H.G. GALLERIA all items, statements, and forms that ACE AMERICAN reasonably believed would be required of them in the time constraints provided by Texas Insurance Code Section 542.055;
b. Failing to notify SIMON and H.G. GALLERIA in writing of its acceptance or rejection of the claims within the applicable time constraints provided by Texas Insurance Code Section 542.056; a n d / o r by
c. Delaying payment of the claim following the tender and= receipt of all items, statements, and forms reasonably requested and required, longer than the amount of time provided by Texas Insurance Code Section 542.058.
Breach of the Duty of Good Faith and Fair Dealing
47. Furthermore, ACE AMERICAN breached the common law duty of good faith and fair dealing owed to SIMON AND H.G. GALLERIA by denying or delaying payment of the claim when ACE AMERICAN knew or should have known that liability was reasonably clear. The actions of ACE AMERICAN proximately caused injury and damage to SIMON and H.G. GALLERIA.
48. Pleading further, SIMON and H.G. GALLERIA would show that ACE AMERICAN knowingly or recklessly made false representation as to material facts and/or knowingly concealed all or part of material information from SIMON and H.G. GALLERIA with the intention of inducing SIMON and H.G. GALLERIA to accept a denial of or failure to discharge all duties owed under the Policy by ACE AMERICAN with regard to insurance benefits due to SIMON and H.G. GALLERIA. ACE AMERICAN allowed SIMON and H.G. GALLERIA to use the information or a lack thereof, and SIMON and H.G. GALLERIA relied upon the misrepresentations of ACE AMERICAN in accepting the denial a n d / o r lack of discharge of duties owed by ACE AMERICAN. SIMON and H.G. GALLERIA relied upon the statements made by ACE AMERICAN with regard to the denial, and suffered injury as a result."