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

HOLPER et al v. ACE AMERICAN INSURANCE COMPANY

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Case Number: 
2:13-cv-00869 Search Pacer
ACE Group party(s): 
Opposing Party: 
Steven A Holper
Court Type: 
Federal
US District Court: 
District of Nevada
Date Filed: 
May 17 2013

"1. On November 5,2010, A3M Vacuum Services, L.L.C. ("Plaintiff') filed a "Petition for Breach of Contract" in the Fortieth Judicial District Court, St. John the Baptist Parish, Louisiana, where the case was assigned number 60,722 (the "State Action"). Plaintiff named as defendants Westchester Specialty Insurance Services, Inc. d/b/a Ace Westchester Specialty Group and ACE American Insurance Company.

2. On January 10,2011, Plaintiff filed a "First Amended Petition for Breach of Contract," which added Illinois Union Insurance Company as a defendant and deleted as defendants Westchester Specialty Insurance Services, Inc. d/b/a Ace Westchester Specialty Group and ACE American Insurance Company.

3. On November 8,2012, Plaintiff filed a "Supplemental and Second Amended Petition for Breach of Contract," which amended and supplemented the allegations against Illinois Union.

4. On April 8,2013, Plaintiff filed a "Supplemental and Third Amended Petition for Breach of Contract," which added Clarendon as a defendant.

5. A copy of the original "Petition for Breach of Contract," "First Amended Petition for Breach of Contract," "Supplemental and Second Amended Petition for Breach of Contract," and "Supplemental and Third Amended Petition for Breach of Contract" are attached in globo as Exhibit "A."

6. Clarendon received the Supplemental and Third Amended Petition for Breach of Contract, and the previous petitions, through service of process on April 24,2013, which is well within the thirty day limitation provided in 28 U.S.C. § 1446(b). A copy of the citation which shows the date of service is attached as Exhibit "B."

7. The crux of the State Action is as follows. Lawrence E. Brock was in a rear-end auto accident Mr. Brock and his wife sued Myron Ellis Singleton, A3M Vacuum Service, and Clarendon. The matter was tried, and the Brocks were awarded $1,236,419.70, which verdict exceeded Clarendon's $1 million policy limits. In the instant case, Plaintiff alleges that Clarendon failed to prevent a verdict in excess of its policy limits, failed to give proper notice to the excess carrier (Illinois Union), and failed to give proper warning of an excess potential liability claim to Plaintiff. Plaintiff also alleges that Illinois Union was given appropriate notice of the Brock lawsuit, and wrongfully denied coverage. See Exhibit "A."

8. As shown below, this case falls within this Court's jurisdiction pursuant to 28 U.S.C. §1332, 1441 and 1446. This Court has Original Jurisdiction Pursuant to Diversity

9. As of the time of the filing of the original Petition for Breach of Contract, and as of the date of the filing of this Notice of Removal, A3M was and is a limited liability company organized in the State of Louisiana, which upon information and belief consists of the following sole members:
a. Patrick C. Sellars - an individual domiciled in the State of Louisiana; and
b. Billie B. Sellars - an individual domiciled in the State of Louisiana. 10. As of the time of the filing of the original Petition for Breach of Contract, the original named defendants were Westchester Specialty Insurance Services, Inc. d/b/a Ace Westchester Specialty Group ("Ace Westchester Specialty Group") and ACE American Insurance Company. Upon information and belief, Ace Westchester Specialty Group was and is an insurance company corporation incorporated in Georgia, with its principal place of business in Georgia. ACE American Insurance Company was and is an insurance company corporation incorporated in Pennsylvania, with its principal place of business in Pennsylvania.

11. As of the time of the filing of the First Amended Petition for Breach of Contract, which substituted in Illinois Union Insurance Company as a defendant in place of Westchester Specialty Group and ACE American Insurance Company, Illinois Union was and is an insurance company corporation incorporated in Pennsylvania, with its principal place of business in Illinois.

12. As of the time of filing of the Supplemental and Third Amended Petition for Breach of Contract, Clarendon was and is an insurance company corporation incorporated in New York, with its principal place of business in New Jersey.

13. As of the time of the filing of the initial pleading that commenced the State Action, and of the time of this Notice of Removal, the amount in controversy exceeded $75,000, exclusive of interest and costs. In the original Petition for Breach of Contract, Plaintiff demanded judgment in the amount of $236,419.70 due to the actions of defendants. Plaintiffs demands, as stated in its amended Petitions, have only increased.  In the most recent Supplemental and Third Amended Petition for Breach of Contract,
Plaintiff demands recovery from Clarendon damages in the sum of $709,259.10, and recovery from Illinois Union the amount of the original demand ($236,419.70), plus additional damages in the sum of $472,839.40. See Exhibit "A."

14. Therefore, this Court has original jurisdiction over this case as a matter of diversity jurisdiction. See 28 U.S.C. § 1332.

Consent to Removal

15. Pursuant to 28 U.S.C. § 1446(b)(2)(A), counsel for Clarendon has communicated with counsel for Illinois Union, and Illinois Union expressly consents to the instant removal. A true and accurate copy of an email sent by counsel for Illinois Union, which reflects Illmois Union's express consent to removal, is attached as Exhibit "C." Timeliness of Removal

16. Clarendon received the Supplemental and Third Amended Petition for Breach of Contract, and previous petitions, through service of process on April 24,2013. See Exhibit "B." Clarendon is removing this case within 30 days after receipt of service of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. See 28 U.S.C. § 1446(b)(1) - (2).

17. Plaintiff filed its original petition on November 5, 2010, but the case is not barred by the one year removal time limit. Under 28 U.S.C. § 1446(c)(1), which references 28 U.S.C. § 1446(b)(3), the one year removal time limit only applies if the case stated by the initial pleading is not removable. See also, Badon v. R JR Nabisco, 224 F.3d 382,389 (5th Cir. 2000)(citing previous version of 28 U.S.C. § 1446(b), and noting that one-year limitation on removal of diversity cases applies only to those that were not initially removable). At the time of the filing of the initial pleading, the case was removable. Complete diversity existed and the original Petition alleged damages in excess of $75,000. See Exhibit "A."

 

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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