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

KARAS v. SONESTA INTERNATIONAL HOTELS CORP. 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: 
1:12-cv-11123 Search Pacer
ACE Group party(s): 
Opposing Party: 
Marsha Karas
Court Type: 
Federal
US District Court: 
Massachusetts District Court
Date Filed: 
Jun 25 2012

"COUNT I - NEGLIGENCE AGAINST SONESTA

15. Plaintiff repeats and realleges paragraphs 1 through 14 and further alleges:

16. At all times material, Sonesta owed Plaintiff a duty to provide Plaintiff with reasonable care, including but not limited to maintaining a safe pool area, warning of and/or correcting any unsafe condition, including removal or proper attachment of pool umbrellas, warning of any unsafe or threatening weather conditions, warning of any unsafe conditions, and caring for Plaintiff as a guest at its hotel.

17. At the above time and place, Sonesta breached its duty owed to the Plaintiff by negligently:
a) creating and/or allowing a dangerous condition to exist with its umbrella
by not properly attaching it to the metal base, or in some other manner, and/or by failing to remove it to avoid potential injury to guests such as the Plaintiff; and/or
b) failing to warn Plaintiff of the dangerous condition related to the pool umbrella; and/or
c) failing to ensure the safety of the Plaintiff; and/or
d) failing to warn and/or notify Plaintiff of the weather, which Sonesta had posted warnings about elsewhere on its property; and/or
e) failing to provide reasonably safe conditions for the Plaintiff during her stay at Sonesta by failing to sufficiently prepare the pool area, which would prevent patrons from being severely injured by pool-side materials and/or failing to properly place notices and/or provide warnings to guests that the conditions were unsafe; and/or
f) failing to warn Plaintiff of the dangerous conditions that had been created by either faulty design or manufacture of the umbrella, improper maintenance or inspection of the pool area, and/or failure to warn Plaintiff of previous umbrella-related incidents or incidents involving wind-driven objects; and/or
g) failing to promulgate and/or enforce procedures, including but not limited to providing adequate training or supervision to employees working in this area of the resort; and/or
h) committing other acts of negligence as may be discovered.

18. Sonesta is vicariously liable for all acts of negligence committed by its agents, employees, and/or other persons acting on its behalf, which caused or contributed to this incident, including but not limited to those persons who inspected or
maintained the pool area or who were responsible for staying aware of and/or warning of weather related issues.

19. As a direct and proximate cause of Sonesta's negligence, Plaintiff was injured in and about her body and extremities, and sustained permanent personal injuries, significant medical treatment, pain and suffering, disability and physical impairment, disfigurement, mental anguish, inconvenience, loss of capacity for the enjoyment of life, expenses for medical care and treatment, out of pocket expenses, loss of earnings, lost earning capacity, and/or aggravation of a previously existing condition. The losses are either permanent or continuing in nature and Plaintiff has suffered these losses in the past and will suffer these losses in the future.

WHEREFORE, Plaintiff, Marsha Karas, requests this Court enter Judgment and damages against Sonesta and award damages, interest, costs, attorneys fees, and any other damages deemed appropriate by the Court and further requests trial by jury on all issues so triable as of right by a jury.

COUNT II - VIOLATIONS OF G.L. c. 93A and c. 176P AGAINST SONESTA

20. Plaintiff repeats and realleges paragraphs 1 through 19 and further alleges:

21. At all relevant times hereto Sonesta was engaged in trade or commerce.

22. On September 16, 2010, Plaintiff was a paying guest at the Sonesta's hotel in St. Maarten.

23. On or about October 6, 2010, Plaintiffs attorney, Sean M. Cleary, Esq. (hereinafter "Plaintiffs Attorney) mailed a letter to Sonesta, formally informing Sonesta in writing about Ms. Karas' incident and also requesting an insurance disclosure. A copy of the letter is attached hereto as Exhibit 1. However, Sonesta already knew of the incident inasmuch as its employees spoke with Ms. Karas after she was injured on Sonesta's premises.

24. After Plaintiff received Sonesta's insurance disclosure from a company representing to be Sonesta's insurance carrier, ACE American Insurance Company, a/k/a ACE Foreign Casualty Claims ("ACE"), Plaintiff sent a detailed settlement demand letter, with accompanying evidence supporting this claim, to ACE on or about October 21, 2011. As part of that letter,

25. Plaintiff specifically requested ACE provide a copy of the demand of October 21, 2011 to its insured, which was presumably Sonesta.

26. In November 2011, after the thirty (30) day time limit for Plaintiffs settlement demand had already expired, Plaintiffs attorney called and spoke with ACE employee, Mr. Stanley Young.

27. At that time, although Mr. Young had been previously identified as the adjuster for this claim, Mr. Young indicated that he was not even aware of Plaintiffs demand letter having been sent to his office and therefore he had not read it. Young also stated that was not the adjuster handling this claim.

28. Accordingly, Mr. Young provided Plaintiffs attorney with the name of Andrew Gomolka, another adjuster at ACE, and Mr. Young stated that Plaintiffs attorney should speak with Mr. Gomolka.

29. After Plaintiffs attorney made several attempts to reach Mr. Gomolka without success (each time with him not returning Plaintiffs counsel's calls after leaving him messages), Plaintiffs attorney finally was able to speak with Mr. Gomolka in December 2011.

30. At that time, Mr. Gomolka indicated that Plaintiffs attorney should instead speak with Mr. Young since, indeed, Mr. Gomolka was not actually handling this claim at all and Mr. Young was.

31. Accordingly, Plaintiffs attorney called Mr. Young again on December 19, 2011, at which time Mr. Young promised that he would review this file and attempt to get back to Plaintiffs attorney before the Christmas holiday.

32. However, Mr. Young did not contact Plaintiffs attorney before the holiday.

33. Instead, Plaintiffs attorney again called Mr. Young on or about December 21, 2011 during which conversation Mr. Young stated that he was now going to initiate investigation of this claim and would attempt to speak with some of the people involved in this incident before making any response to Plaintiffs client's expired demand.

34. Plaintiffs counsel explained to Mr. Young that he was very surprised to learn that ACE had not investigated this incident previously; however, Plaintiffs attorney indicated that he would like to hear from Young as soon as possible and certainly soon after the New Year, ideally in the first week after January 1, 2012.

35. Sonesta and its insurance carrier should have investigated this claim by then, since Sonesta knew of this incident on September 16, 2010, the actual date Marsha Karas was injured.

36. After January 1, 2012, having received no response from Mr. Young, Plaintiffs counsel again followed up and called Mr. Young.

37. After trying repeatedly and leaving him messages with no return calls, Plaintiffs attorney was able to reach Mr. Young on January 9,2012.

38. During their January 9, 2012 conversation, Mr. Young confirmed to Plaintiffs attorney that he would get back to Plaintiffs attorney by a date certain, which was January 19, 2012.

39. During the January 9, 2012 conversation, Mr. Young also confirmed that he would respond to Plaintiffs October 2011 settlement demand by no later than January 19, 2012.

40. Plaintiffs attorney sent Mr. Young a confirming email on January 9, 2012; however, Mr. Young did not respond to Plaintiffs settlement demand by January 19,2012.

41. On January 25, 2012, Plaintiffs attorney called Mr. Young and learned, for the very first time (notwithstanding the fact that Sonesta disclosed insurance coverage, including an insurance policy through ACE many months before) that ACE was now claiming Sonesta was covered for this incident not by ACE, but instead by Zurich Schade (sp?), an entity Mr. Young thought might be affiliated with Zurich Insurance Company. However, Mr. Young provided no further information about what insurance company actually should be providing coverage for this incident.

42. This was the first time either Sonesta or ACE ever disclosed the existence of any other potential insurance company, notwithstanding Plaintiffs attorney's initial request for insurance dated October 6, 2010, which was forwarded directly to Sonesta.

43. On or about January 25,2012, Plaintiff mailed another settlement demand letter to Sonesta and also copied ACE. A copy of that letter is attached as Exhibit 2.

44. On February 15, 2012, after still having not heard back from Sonesta or its insurance carrier in response to her demand, Plaintiff mailed yet another demand letter to Sonesta. A copy of that letter is attached as Exhibit 3.

45. Sonesta has failed to respond to the demands delivered on or about October 6, 2010, January 25, 2012, or February 15, 2012, copies of which are attached as Exhibits 1,2, & 3 hereto.

46. SONESTA has violated G.L. c. 93A by:
A. Disregarding Ms. Karas' injuries or that she was in distress by failing to provide any assistance after she was injured as a result of Sonesta's negligence;
B. As a business, mistreating Ms. Karas as a consumer and guest of its resort;
C. Disregarding Ms. Karas' multiple requests for information and then providing false and misleading information to Ms. Karas and/or her counsel relative to the identity of Sonesta's insurer;
D. Disregarding Plaintiffs reasonable demands for settlement;
E. Failing to respond to numerous attempts by Plaintiffs attorney to reach persons handling this claim;
F. Failing to investigate or timely investigate this claim; and
G. Failing to respond at all to Plaintiffs reasonable demands for settlement, among other wrongful acts.

47. SONESTA has violated G.L. c. 176D by:
A. Misrepresenting the insurance coverage for this incident under c. 176D §3(1);
B. Misrepresenting pertinent facts or insurance policy provisions related to coverage at issue under § 3(9)(a);
C. Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies under § 3(9)(b);
D. Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies under § 3(9)(c);
E. Refusing to pay claims without conducting a reasonable investigation based upon all available information under § 3(9)(d);
F. Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements which have been completed under § 3(9)(e); and
G. Failing to effectuate prompt, fair and equitable settlements of claims in which liability has been reasonably clear under § 3(9)(f).

48. Discovery may reveal additional sections or laws that Sonesta violated.

49. Sonesta's refusal to grant relief or even reply to Plaintiff was done in bad faith with knowledge or reason to know that its acts violated G.L. c. 93A and G.L. c. 176D.

50. The acts of SONESTA constitute unfair and/or deceptive acts or practices within the meaning of G.L. c. 93 A and c. G.L. 176D.

51. As a direct and proximate cause of Sonesta's violations of G.L. c. 93 A and c. G.L. 176D, Plaintiff sustained damages, which are continuing in nature including, but not limited to, the mental trauma of being mistreated by Sonesta's employees and representatives, being misled for eighteen months while Sonesta failed to investigate the loss and failed to undertake any action as to her injuries and claims, personally paying, out of pocket, for countless medical appointments, medication and treatment, undergoing over eighteen months without true and fair compensation for her injuries, and being forced to commence litigation merely to receive any response to her multiple demands,

WHEREFORE, the Plaintiff, Marsha Karas, requests that this Court grant the following relief against Sonesta:
a. Find that the conduct of Sonesta was a violation of c. 93A and 176D;
b. Find that the actions of Sonesta were willful and knowing violations of Chapter 93 A and 176D and/or that its refusal to grant relief upon demand was made in bad faith;
c. Award damages to the Plaintiff in an amount to be determined at trial, plus interest and costs as provided by law;
d. Award Plaintiff double/treble damages and attorney's fees on her claims; and
e. Grant other such relief as the Court deems just and appropriate.

COUNT III - VIOLATIONS OF G.L. c. 93A and c. 176D AGAINST ACE
AMERICAN INSURANCE COMPANY

52. Plaintiff repeats and realleges paragraphs 1 through 51 and further alleges:

53. At all relevant times hereto ACE was engaged in trade or commerce.

54. On September 16, 2010, Plaintiff was a paying guest at the Sonesta's hotel in St. Maarten.

55. On or about October 6, 2010, Plaintiffs attorney mailed a letter to Sonesta, formally informing Sonesta in writing about Ms. Karas' incident and also requesting an insurance disclosure. A copy of the letter is attached hereto as Exhibit 1. However, Sonesta already knew of the incident inasmuch as its employees spoke with Ms. Karas after she was injured on Sonesta's premises.

56. After Plaintiff received Sonesta's insurance disclosure from a company representing to be Sonesta's insurance carrier, ACE American Insurance Company, a/k/a ACE Foreign Casualty Claims ("ACE"), Plaintiff sent a detailed settlement demand letter, with accompanying evidence supporting this claim, to ACE on or about October 21, 2011. As part of that letter,

57. Plaintiff specifically requested ACE provide a copy of the demand of October 21, 2011 to its insured, which was presumably Sonesta.

58. In November 2011, after the thirty (30) day time limit for Plaintiffs settlement demand had already expired, Plaintiffs attorney called and spoke with ACE employee, Mr. Stanley Young.

59. At that time, although Mr. Young had been previously identified as the adjuster for this claim, Mr. Young indicated that he was not even aware of Plaintiffs demand letter having been sent to his office and therefore he had not read it. Young also stated that was not the adjuster handling this claim.

60. Accordingly, Mr. Young provided Plaintiffs attorney with the name of Andrew Gomolka, another adjuster at ACE, and Mr. Young stated that Plaintiffs attorney should speak with Mr. Gomolka.

61. After Plaintiffs attorney made several attempts to reach Mr. Gomolka without success (each time with him not returning Plaintiffs counsel's calls after leaving him messages), Plaintiffs attorney finally was able to speak with Mr. Gomolka in December 2011.

62. At that time, Mr. Gomolka indicated that Plaintiffs attorney should instead speak with Mr. Young since, indeed, Mr. Gomolka was not actually handling this claim at all and Mr. Young was.

63. Accordingly, Plaintiffs attorney called Mr. Young again on December 19, 2011, at which time Mr. Young promised that he would review this file and attempt to get back to Plaintiffs attorney before the Christmas holiday.

64. However, Mr. Young did not contact Plaintiffs attorney before the holiday.

65. Instead, Plaintiffs attorney again called Mr. Young on or about December 21, 2011 during which conversation Mr. Young stated that he was now going to initiate investigation of this claim and would attempt to speak with some of the people involved in this incident before making any response to Plaintiffs client's expired demand.

66. Plaintiffs counsel explained to Mr. Young that he was very surprised to learn that ACE had not investigated this incident previously; however, Plaintiffs attorney indicated that he would like to hear from Young as soon as possible and certainly soon after the New Year, ideally in the first week after January 1, 2012.

67. Sonesta and ACE should have investigated this claim by then, since Sonesta knew of this incident on September 16, 2010, the actual date Marsha Karas was injured.

68. After January 1, 2012, having received no response from Mr. Young, Plaintiffs counsel again followed up and called Mr. Young.

69. After trying repeatedly and leaving him voicemail messages with no return calls, Plaintiffs attorney was finally able to reach Mr. Young on January 9,2012.

70. During their January 9, 2012 conversation, Mr. Young confirmed to Plaintiffs attorney that he would get back to Plaintiffs attorney by a date certain, which was January 19, 2012.

71. During the January 9, 2012 conversation, Mr. Young also confirmed that he would respond to Plaintiffs October 2011 settlement demand by no later than January 19, 2012.

72. Plaintiffs attorney sent Mr. Young a confirming email on January 9, 2012; however, Mr. Young did not respond to Plaintiffs settlement demand by January 19,2012.

73. On January 25, 2012, having had no response on the promised date of January 19, 2012, Plaintiffs attorney called Mr. Young and learned, for the very first time (notwithstanding the fact that Sonesta disclosed insurance coverage, including an insurance policy through ACE many months before) that ACE was now claiming Sonesta was covered for this incident not by ACE, but instead by Zurich Schade (sp?), an entity Mr. Young thought might be affiliated with Zurich Insurance Company. However, Mr. Young provided no further information about what insurance company actually should be providing coverage for this incident.

74. This was the first time either Sonesta or ACE ever disclosed the existence of any other potential insurance company, notwithstanding Plaintiffs attorney's initial request for insurance dated October 6, 2010, which was forwarded directly to Sonesta.

75. On or about January 25,2012, Plaintiff mailed another settlement demand letter to Sonesta and also copied ACE. A copy of that letter is attached as Exhibit 2.

76. On February 15, 2012, after still having not heard back from Sonesta or its insurance carrier in response to her demand, Plaintiff mailed yet another demand letter to Sonesta and ACE. A copy of that letter is attached as Exhibit 3.

77. ACE has failed to respond to the demands delivered on or about October 6, 2010, January 25, 2012, or February 15, 2012, copies of which are attached as Exhibits 1,2, & 3 hereto.

78. ACE AMERICAN INSURANCE COMPANY has violated G.L. c. 93A by:
A. Disregarding Ms. Karas' injuries or that she was in distress by failing to provide any assistance after she was injured as a result of Sonesta's negligence;
B. As a business, mistreating Ms. Karas as a consumer and guest of its resort;
C. Disregarding Ms. Karas' multiple requests for information and then providing false and misleading information to Ms. Karas and/or her counsel relative to the identity of Sonesta's insurer;
D. Disregarding Plaintiffs reasonable demands for settlement;
E. Failing to respond to numerous attempts by Plaintiffs attorney to reach persons handling this claim;
F. Failing to investigate or timely investigate this claim;
G. Failing to respond at all to Plaintiffs reasonable demands for settlement, among other wrongful acts;
H. Forcing Plaintiff to file this litigation in order to receive any meaningful correspondence from Sonesta or ACE; and
I. Forcing Plaintiff to file this litigation in order to have her claim for compensation considered.

79. ACE AMERICAN INSURANCE COMPANY has violated G.L. c. 176D by: A. Misrepresenting the insurance coverage for this incident under c. 176D §3(1);
B. Misrepresenting pertinent facts or insurance policy provisions related to coverage at issue under § 3(9)(a);
C. Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies under § 3(9)(b);
D. Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies under § 3(9)(c);
E. Refusing to pay claims without conducting a reasonable investigation based upon all available information under § 3(9)(d);
F. Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements which have been completed under § 3(9)(e); and
G. Failing to effectuate prompt, fair and equitable settlements of claims in which liability has been reasonably clear under § 3(9)(f).

80. Discovery may reveal additional sections or laws that ACE violated.

81. ACE's refusal to grant relief or even reply to Plaintiff was done in bad faith with knowledge or reason to know that its acts violated G.L. c. 93 A and G.L. c. 176D.

82. The acts of ACE constitute unfair and/or deceptive acts or practices within the meaning of G.L. c. 93A and c. G.L, 176D.

83. As a direct and proximate cause of ACE's violations of G.L. c. 93A and c. G.L. 176D, Plaintiff sustained damages, which are continuing in nature including, but not limited to, the mental trauma of being mistreated by ACE's employees and representatives, being misled for eighteen months while ACE failed to investigate the loss and failed to undertake any action as to her injuries and claims, personally paying, out of pocket, for countless medical appointments, medication and
treatment, undergoing over eighteen months without true and fair compensation for her injuries, and being forced to commence litigation merely to receive any response to her multiple demands,

WHEREFORE, the Plaintiff, Marsha Karas, requests that this Court grant the following relief against ACE:
a. Find that the conduct of ACE was a violation of c. 93A and 176D;
b. Find that the actions of ACE were willful and knowing violations of Chapter 93A and 176D and/or that its refusal to grant relief upon demand was made in bad faith;
c. Award damages to the Plaintiff in an amount to be determined at trial, plus interest and costs as provided by law;
d. Award Plaintiff double/treble damages and attorney's fees on her claims; and
e. Grant other such relief as the Court deems j ust and appropriate."

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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