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

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. EXPEDITORS INTERNATIONAL OF WASHINGTON, INC 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: 
2:15-cv-02001 Search Pacer
Court Type: 
Federal
US District Court: 
Western District of Washington
Date Filed: 
Dec 22 2015

VENUE

  1. Venue is proper in this District Court pursuant to 28 U.S.C. § 1391 because this is
    a district where one or more of the defendants resides, and per contractual agreement.

PERTINENT FACTS

  1. Plaintiff at all relevant times was and is a corporation organized and existing under
    the laws of one of the States of the United States of America and was engaged at all relevant
    times in the business of providing insurance coverage for loss or damage to cargo during
    shipment. It brings this action on its own behalf and as agent and/or trustee and/or assignee on
    behalf of and for the interest of all parties who may be or become interested in the shipment that
    is the subject of this action, as their respective interests may ultimately appear, and plaintiff is
    entitled to maintain this action.
  2. On information and belief, at and during all the times hereinafter mentioned.
    Expeditors International of Washington, Inc., was and now is a corporation or other business
    entity organized under the laws of the state of Delaware with a principal office and place of
    business at 1015 Third Avenue, 12th Floor, Seattle, Washington 98104, and was and now is
    engaged in business as a common carrier of merchandise by air or sea or land for hire, and/or as
    freight forwarder, broker, transportation intermediary, and/or agent for other entities involved in
    the shipment of product that is the subject of this Complaint.
  3. On information and belief, at all relevant times, DOE I, was and is an as-yet
    unidentified Expeditors entity other than Expeditors International of Washington, Inc., that may
    be responsible in whole or in part for the damages alleged in this Complaint. Said entity, if any,
    will be identified further as revealed during discovery, and is believed to be, or was at all relevant

times, a corporation or other business entity organized and operating under the laws of one of
these United States, and was and now is engaged in business as a common carrier of merchandise
by air or sea or land for hire, and/or as freight forwarder, broker, transportation intermediary,
and/or agent of some or all of the above, with an office, agent, or doing business within the
jurisdiction of this court. All of the Expeditors entities involved in the shipment of product that is
the subject of this Complaint, including DOE I, shall be referred to hereinafter in this Complaint
as “Expeditors.”

  1. At all relevant times Expeditors transacted and continues to transact business
    within this District, regularly soliciting business for the transport and ultimate delivery of
    shipments to worldwide destinations.
  2. For all relevant times plaintiff provided cargo insurance coverage to General
    Electric International Operations Co., Inc. and/or GE Healthcare and/or GE Medical Systems SCS
    (hereinafter collectively “GE Medical Systems”), which was the owner, shipper, or consignee of a
    cargo of medical equipment shipped from Japan to China, by air, on or about December 27, 2013.
    On arrival in China the aforesaid medical equipment was found to have suffered extensive
    damage. The value of the damage is estimated to be roughly U.S. $397,000.00. By virtue of
    payments made and to be made by plaintiff to GE Medical Systems with respect to its loss, and
    assignment to plaintiff of GE Medical Systems’s rights with respect to all damages sustained,
    plaintiff has become subrogated to the rights held by GE Medical Systems and, as such, is a
    proper party to bring this action and to seek, and does hereby seek, recovery of all damages
    sustained by itself and its insured.
  1. Plaintiff and its insured have duly performed all required duties and obligations on
    their part. The subject cargo was delivered to Expeditors in good order and condition, and
    Expeditors received, accepted, and agreed to transport said cargo for certain consideration from
    Japan to China, and carried, handled, and/or was the bailee of, or consolidated, forwarded, and/or
    controlled GE Medical Systems’s cargo at all relevant times, and said cargo, on information and
    belief, was damaged during the time of Expeditors’s carriage, handling, custody, control, or
    responsibility for such cargo.
  2. On information and belief Expeditors booked the subject shipment with other
    companies and/or carriers that were not disclosed to plaintiff or its insured, possibly subject to
    terms and conditions not disclosed to plaintiff or its insured, and Expeditors agreed to transport
    and deliver the subject cargo to its designated ultimate destination in the same good order and
    condition as received.
  3. Expeditors issued to GE Medical Systems or its agent or affiliate its House Air
    Waybill bearing number 4930360332 for carriage of the subject goods from Narita, Japan, to
    Tianjin, China, destined for ultimate delivery at a hospital in Beijing, China. On information and
    belief, sometime during the transport of said cargo by air or otherwise during the period when it
    was under the control or responsibility of Expeditors, said cargo suffered severe damage from
    impact or mishandling. To the extent the damage occurred during the period of Expeditors’s
    responsibility for care of the cargo, it is liable for all damages under the terms of the air waybill
    and under the provisions of the Montreal Convention.
  4. At no time has Expeditors paid IINA or its insured/subrogor, GE Medical Systems,
    with respect to the aforesaid damages.

FIRST CLAIM FOR RELIEF

  1. IINA hereby incorporates herein the allegations of paragraphs 1 through 11 above
    as if fully restated herein.
  2. Under applicable law including the Montreal Convention and under the terms of
    the contract reflected by the aforesaid Expeditors House Air Waybill, Expeditors owed GE
    Medical Systems a duty to exercise reasonable care for the cargo entrusted to Expeditors for
    shipment and/or had a non-delegable duty to deliver such cargo safely, without damage, to its
    designated destination. Expeditors breached those duties by allowing significant damage to occur
    to the subject cargo during the period of time for which Expeditors was contractually responsible
    for its safe delivery to destination and under the terms of the Montreal Convention. As a result of
    said breach and/or other fault by Expeditors, proximately causing the aforesaid damages, IINA, as
    subrogee and assignee of the rights of its insured, GE Medical Systems, has sustained damages,
    and is entitled to recover same, in such amounts as are proved, approximately $397,000.00 as
    nearly as the same can now be estimated, plus interest and fees and costs as determined by the
    Court.

SECOND CLAIM FOR RELIEF

  1. IINA hereby incorporates herein the allegations of paragraphs 1 through 11 and 13
    above as if fully restated herein.
  2. In addition to contractual and statutory or treaty obligations. Expeditors had a
    common law duty to exercise reasonable care for the goods entrusted to it by GE Medical
    Systems. On information and belief. Expeditors negligently breached its duties as common

carrier, handler, bailee, warehouseman, agent, or in other capacities with respect to the subject
cargo by allowing the cargo to sustain sufficient damage by mishandling or other inadequate care
to proximately cause irreparable damage and harm, all in the estimated amount of US
$397,000.00 previously stated, and is therefore liable to plaintiff herein for such damage and any
additional provable related damages.

PRAYER

WHEREFORE, plaintiff prays:

  1. That judgment be entered in favor of plaintiff against Expeditors for the amount of
    all damages to which plaintiff, as legal and/or equitable subrogee and assignee of the rights of GE
    Medical Systems, is entitled, together with interest and costs incurred;
  2. For costs of suit and any recoverable attorneys fees to which plaintiff may be
    entitled; and
  3. For such other further and different relief as this Court may deem just and proper
    in the premises.

VERIFICATION

I, James F. Whitehead, am counsel for plaintiff with respect to the above-described claims.
The facts alleged in the foregoing Complaint are true and correct to the best of my knowledge,
information, and belief based upon my own knowledge of the casualty described above and the
records made available to me by plaintiffs overseas claims representative and authored by other
persons involved in investigation of the claims and knowledgeable about them. On information
and belief, authorized officers of plaintiff are not available in this district to make verifications,
but I am so authorized.

Pursuant to 28 U.S.C. §1746,1 declare under penalty of perjury that the foregoing is true
and correct.


COMES NOW plaintiff INDEMNITY INSURANCE COMPANY OF NORTH
AMERICA (hereinafter "Plaintiff* 1 or "UNA"), and with this Complaint alleges against the above-
named defendants upon information and belief as follows:

JURISDICTION

1.            This case falls within the federal question jurisdiction of this court, within the
provisions of 28 U.S.C. § 1331, arising from international commerce under the U S A.

Multilateral Convention for International Carriage by Air ("Montreal Convention"), 1999 WL
33292734, and under Federal common law, as hereinafter more fully appears.

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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