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

JOHN J FORTIER v. FAMILY DOLLAR STORES OF NEW MEXICO, INC.

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: 
1:14-cv-01012 Search Pacer
ACE Group party(s): 
Opposing Party: 
John J Fortier
Court Type: 
Federal
US District Court: 
District of New Mexico
Date Filed: 
Nov 6 2014

GENERAL ALLEGATIONS
Plaintiff John J. Fortier dba Fortier Properties (hereinafter referred to as “Fortier” or
“Plaintiff’), hereby alleges as follows: ^ ^ ^ ^
belief alleges that FAMILY DOLLAR STORES OF NEW MEXICO, INC. (hereinafter referred to
as “FDS”) is a corporation duly formed and existing under the laws of the State of New Mexico.
3. Plaintiff is informed and believes and on the basis of such information and
belief alleges that SMS ASSIST, LLC (hereinafter referred to as “SMS") is a limited liability
corporation duly formed and existing under the laws of the State of Illinois.
4. Plaintiff is informed and believes and on the basis of such information and
belief alleges that ACE American Insurance Company (hereinafter referred to as “ACE") is an
insurance company admitted in the State of California, and doing business in California.
5. Does 1 through 100, inclusive, are sued herein under fictitious names. Their
true names and capacities are unknown to Plaintiff. When their true names and capacities are
ascertained, Plaintiff will amend this Complaint by inserting their true names and capacities
herein. Plaintiff is informed and believes, however, and thereon alleges that each of the fictitiously
named defendants is contractually and legally responsible in some manner for the occurrences
herein alleged, either as the agent, alter ego, or some other legally responsible party, and thereby
proximately caused damages to Plaintiff.
FIRST CAUSE OF ACTION
(Breach of Contract against FDS)
6. Plaintiff realleges paragraphs 1 through 5 of the above Complaint, and
incorporates the same as though fully set forth herein.
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7. On or about April 25,1996, Plaintiff and FDS entered into a lease agreement
for the premises known as Dona Anna Plaza located at 1249 South 2nd Street (U. S. Route 85),
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Raton, New Mexico, a true and correct copy of which is attached hereto and incorporated herein
as Exhibit “A.” The lease agreement was amended on March 10,2011 by an agreement entitled
First Amendment to Lease Agreement, a true and correct copy of which is attached hereto as
Exhibit “B". A letter dated March 8,2011 clarifies a provision in the lease agreement, a true and
correct copy of which is attached hereto as Exhibit “C", all of which are incorporated herein by this
reference.
8. The lease agreement provides that the term of the lease will be automatically
extended for four successive periods of five years each unless FDS gives written notice to Plaintiff
cancelling the next extended term at least sixty days before such extended term is scheduled to
begin. The first extended term of the lease commenced on January 1, 2002 and ended on
December 31, 2006. The second extended term of the lease commenced on January 1, 2007
and ended on December 31,2011. The third extended term of the lease commenced on January
1, 2012 and is set to end on December 31, 2016. The fourth successive term of the lease is to
commence on January 1, 2017 and is to end on December 31, 2021.
9. Under Section 12 of the lease, as clarified by Exhibit C, Plaintiff is responsible
for making any necessary repairs to the heating and air conditioning systems. FDS, as tenant,
is responsible for keeping the heating and air conditioning systems in repair until the aggregate
cost of repairs and replacements to such systems equals $1,000 in any lease year. FDS is further
required to notify Plaintiff prior to each repair and provide evidence of the cost of the repair.
Plaintiff is required to reimburse FDS for any costs in excess of $1,000.
10. Plaintiff has performed all of its obligations under the lease agreement, except
to the extent such obligations were excused, and to the extent Plaintiff was prevented from
performing such obligations by FDS’s breach or other acts or omissions which prevented Plaintiff
from performing its obligations under the lease agreement.
11. Plaintiff is informed and believes that in or around November 2011 and
continuing through February 2014, unbeknownst to Plaintiff and without authorization from
Plaintiff, FDS tampered with each and all of the five (5) HVAC units for the premises. Specifically,
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FDS caused SMS to install remote control devices in each of the units. Each of the units was in
working order before the installations. After the installation of these remote control units, FDS
reported numerous malfunctions and problems with the operation of each of the units. The cause
of the problems was the unauthorized and improper installation of the remote units.
12. When Plaintiff was asked to and did address the FDS complaints, it became
apparent that the improper and unauthorized installation of the remote control devices in the units
was the cause of the malfunctions of which FDS was complaining. The damage caused to the
units was substantial and the cost to repair and, in some instances, replace them is significant.
13. Asa direct and proximate result of the said breaches of the lease agreement,
Plaintiff has incurred expenses in the amount of $58,868.31, plus interest and costs.
SECOND CAUSE OF ACTION
(Intentional Tort-Trespass against FDS and SMS)
14. Plaintiff realleges paragraphs 1 through 13 of the above Complaint, and
incorporates the same as though fully set forth herein.
15. At all relevant times herein, Plaintiff owned the premises leased to FDS.
Beginning on or around November 2011 and continuing through February 2014, without
authorization from Plaintiff, FDS tampered with each and all of the five (5) HVAC units.
Specifically, it caused to be installed remote control devices in each of the units by SMS. Each
of the units was in working order before the installations. After the installation of these remote
control units, FDS reported numerous malfunctions and problems with the operation of each of
the units. The cause of the problems was the unauthorized and improper installation of the
remote units.
16. During and after the first instance of trespass known to Plaintiff, Plaintiff
demanded that Defendants stop trespassing on his land immediately and take no actions to alter
or otherwise harm Plaintiffs property. Defendant FDS ignored Plaintiffs demands and issued a
work order for SMS to trespass onto Plaintiffs property and damage it again.
17. Since the damage was caused by Defendants, Plaintiff has demanded that
Defendants assume financial responsibility for all the damage and potential damage Defendants
caused. Defendants have refused, and continue to refuse, to assume financial responsibility for
the same.
18. As a proximate result of Defendants' entry onto Plaintiffs land and
Defendants’tampering, Plaintiff has been damaged in the amount of $58,868.31, plus interest and
costs. As a further proximate result of the aforementioned trespass, Plaintiff has incurred
damages pursuant to Civil Code Section 3333 for detriment proximately caused, whether
anticipated or not, by the Defendants' wrongful conduct as set forth above, in an amount that will
be determined according to proof at the time of trial, but which is believed to exceed $58,868.31.
19. The aforementioned acts of the Defendants were willful, oppressive or
malicious in that Defendants intentionally entered Plaintiffs property without permission and
tampered with the HVAC units without Plaintiffs knowledge. As a result of the foregoing, Plaintiff
is entitled to punitive damages in addition to all other damages provided for by law.
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THIRD CAUSE OF ACTION
(Negligence against FDS and SMS)
20. Plaintiff realleges paragraphs 1 through 19 of the above Complaint, and
incorporates the same as though fully set forth herein.
21. Defendants had a duty to properly install, construct, maintain, supervise,
review, and/or manage the HVAC repairs and knew or reasonably should have foreseen that the
failure to properly install, construct, maintain, supervise, review and/or manage the repairs would
cause substantial damage to Plaintiff.
22. Defendants, and each of them, breached this duty of care by failing to
properly repair and/or install the HVAC units at the leased premises.
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23. As a proximate result of the breach of duty by Defendants, Plaintiff has
suffered damages in the amount of $58,868.31 plus interest and costs.
FOURTH CAUSE OF ACTION
(Breach of Insurance Contract against ACE)
24. Plaintiff realleges paragraphs 1 through 23 of the above Complaint, and
incorporates the same as though fully set forth herein.
25. Under Section 11 (b) of the lease agreement between Plaintiff and FDS, FDS
is required to maintain a commercial general liability insurance policy insuring FDS with respect
to occurrences on the leased premises. Section 11 (b) further requires that Plaintiff be named as
an additional insured under the policy.
26. At all relevant times herein, and pursuant to Section 11(b), FDS obtained
general commercial liability insurance coverage through ACE, bearing policy numbers
XSLG2702287A for 2013 to 2014, XSLG27010489 for 2012 to 2013, and XSLG25530093 for
2011 to 2012 . Furthermore, at all relevant times herein, and under each and every policy listed,
Plaintiff is a named additional insured. Accordingly, under the policy ACE is the insurer, FDS is
the insured and Plaintiff is the additional insured.
27. As a result of FDS’s continued tampering and altering of Plaintiffs heating
and air conditioning systems located on the leased premises, Plaintiff has suffered a loss, all of
which are covered under the insurance policy with ACE.
28. On March 4, 2014, Plaintiff notified ACE and made a claim regarding the
damage suffered as required by the policy. As of the date of the filing of this Complaint, Plaintiff
is informed and believes that ACE has failed and refused to properly investigate or timely and
properly respond to the claim in violation of the insurance contract and statutory requirements.
29. As a direct and proximate result of said breaches, Plaintiff has incurred
expenses in the amount of $58,868.31, plus interest and costs.
FIFTH CAUSE OF ACTION
(Breach of Implied Obligation of Good Faith and Fair Dealing against ACE)
30. Plaintiff realleges paragraphs 1 through 29 of the above Complaint, and
incorporates the same as though fully set forth herein.
31. Under every policy there is an implied obligation of good faith and fair dealing
that the insurance company will not do anything to injure the right of a party to receive the benefits
of an agreement. As an insurer, ACE is bound by this obligation.
32. On March 4,2014, Plaintiff notified ACE of the losses incurred due to FDS’s
actions. As alleged above, FDS has caused damage to Plaintiffs property in the amount of
$58,868.31, which is covered under the ACE insurance policy.
33. As of the filing of this Complaint, ACE has unreasonably failed acknowledge, investigate, act upon or respond to Plaintiffs claim.
34. As a direct and proximate result of ACE’s failure to acknowledge and pay
policy benefits, Plaintiff has incurred expenses in the amount of $58,868.31, plus interest and
costs.
WHEREFORE Plaintiff prays for judgment as follows:
1. For damages in the amount of $58,868.31;
2. For punitive damages on his Second Cause of Action;
3. For interest at the legal rate as required by law;
4. For his costs of suit herein; and
5. For other proper relief.

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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