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

METROPOLITAN TRANSPORTATION AUTHORITY et al v. UNITED STATES FIDELITY AND GUARANTY COMPANY 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: 
1:14-cv-09059 Search Pacer
Opposing Party: 
Metropolitan Transportation Authority
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Nov 13 2014

Plaintiffs Metropolitan Transportation Authority and New York City Transit Authority, by Smith Mazure Director Wilkins Young ft Yagerman, P.C., as and for their Verified Complaint for declaratory judgment herein, respectfully set forth, upon information and belief, as follows:

JURISDICTION AND VENUE
1.    At all times hereinafter mentioned, Plaintiffs Metropolitan Transportation Authority and New York City Transit Authority was and still are Public Benefit Corporations, organized, existing, and conducting business pursuant to the laws of the. State of New York.
2.    At all times hereinafter mentioned, UNITED STATES FIDELITY AND GUARANTY COMPANY (USF&G) was and still is an insurance company duly organized and existing pursuant to the laws of the State of New York.
3.    At all times hereinafter mentioned, UNITED STATES FIDELITY AND GUARANTY COMPANY (USF&G) was and still is a foreign company licensed to issue insurance policies in the State of New York.
4.    At all times hereinafter mentioned, USF&G was and still is an insurance company authorized to issue policies of insurance in the State of New York.
5.    At all times hereinafter mentioned, ACE PROPERTY AND CASUALTY INSURANCE COMPANY (ACE PROPERTY) was and still is an insurance company duly organized and existing pursuant to the laws of the State of New York.
6.    At all times hereinafter mentioned, ACE PROPERTY AND CASUALTY INSURANCE COMPANY (ACE PROPERTY) was and still is a foreign company licensed to issue insurance policies in the State of New York.
7.    At all times hereinafter mentioned, ACE PROPERTY was and still is an insurance company authorized to issue policies of insurance in the State of New York
8.    At all times hereinafter mentioned, ACE AMERICAN INSURANCE COMPANY (ACE AMERICAN) was and still is an insurance company duly organized and existing pursuant to the laws of the State of New York
9.    At all times hereinafter mentioned, ACE AMERICAN INSURANCE COMPANY (ACE AMERICAN) was and still iS a foreign company licensed to issue insurance policies in the State of New York.
10.    At all times hereinafter mentioned, ACE AMERICAN was and still is, an insurance company authorized to issue policies of insurance in the State of New York
H.    At all times hereinafter mentioned, RSUI INDEMNITY COMPANY (RSUI) was
and still is an insurance company duly organized and existing pursuant to the laws of the State of New York
12.    At all times hereinafter mentioned, RSUI INDEMNITY COMPANY (RSUI) was and still is a foreign company licensed to issue insurance policies in the State of New York,
13.    At all times hereinafter mentioned, RSUI was and still is an insurance company authorized to issue policies of insurance in the State of New York
14.    At all times hereinafter mentioned, GENERAL STAR INDEMNITY COMPANY (GENSTAR) was and still is an insurance company duly organized and existing pursuant to the laws of the State of New York
15.    At all times hereinafter mentioned, GENERAL STAR INDEMNITY COMPANY (GENSTAR) was and still is a foreign company licensed to issue insurance policies in the State of New York.
16.    At all times hereinafter mentioned, GENSTAR was and still is an insurance company authorized to issue policies of insurance in the State of New York
17.    At all times hereinafter mentioned, GENSTAR was and still is a surplus lines insurance company authorized to issue policies of insurance in the State of New York.
18.    This action arises out of transactions and/or occurrences in the State of New York.

BACKGROUND AND ALLEGATIONS
19.    On and prior to April 1, 2000, a subway station rehabilitation project was underway at the job site located at East 161s* Street and River Avenue, Bronx, New York. This project was known as the Rehabilitation of 161st Street Station Concourse Line ~ IND and Rehabilitation of the Jerome Avenue Line, 1RT.
20.    On April 1, 2000, the underlying plaintiff, Paula Dyer, was was struck by the vehicle owned by the underlying defendant, Bpifania Santiago and operated by the underlying defendant, Ariel Gonzales. The underlying plaintiff alleges that a construction barrier at the accident location obstructed the line of sight between oncoming traffic proceeding westbound on 161st Street and pedestrians crossing 161st Street in a southbound direction.
21.    On or around April 2, 2002 the underlying plaintiff commenced the underlying personal injury action, presently entitled Paula Dyer, an Incapacitated Person by her Temporary Guardian, Maijorie A. Vozza and Sandra Taylor v. The City of New York, Metropolitan Transportation Authority, New York City Transit Authority, Steers Construction Corp., M.A, Angeliades, Inc., LA. Wenger Contracting Co., Inc./Matrix Construction Corp., a Joint Venture, Ariel Gonzalez had Bpifania Santiago, in the Supreme Court of the State of New York County of Bronx, under index number 14593/01.
22.    Defendant USF&G issued a policy of liability insurance to L.A. Wenger Contracting Co. Inc (Wenger), believed to be policy number 1CG148132259-00 (hereinafter “USF&G policy”)^ which provided coverage to Wenger, for the dates of occurrence set forth in the underlying action.
23.    Defendants. ACE PROPERTY AND/OR ACE AMERICAN (hereinafter ACE), via predecessor company CIGNA, issued a policy of liability insurance to L.A. Wenger Contracting Co. Inc (Wenger), (hereinafter “ ACE Excess policy”), which provided coverage to Wenger, for the dates of occurrence set forth in the underlying action.
24.    The USF&G policy and the ACE Excess policy will be collectively referred to as
the Wenger policies
25.    Defendants RSUI issued a policy of liability insurance to STEERS CONSTRUCTION CORP (Steers), (hereinafter “RSUI policy”), which provided coverage to Steers, for the dates of occurrence set forth in the underlying action.
26.    Defendants GENSTAR issued a policy of liability insurance to STEERS CONSTRUCTION CORP (Steers), {hereinafter “GENSTAR Excess Liability policy”), which provided coverage to Steers, for the dates of occurrence set forth in the underlying action.
27.    The RSUI policy and the GENSTAR Excess policy will be collectively referred to herein as Steers policies.
28.    Steers was a named insured under the Wenger policies.
29.    Wenger was a named insured under the Steers policies.
30.    Prior to April 1,2000, Wenger entered into a contract with Plaintiffs for the work being performed at the time Paula Dyer was allegedly injured,
31.    The contract entered into between Wenger and Plaintiffs required Wenger to procure insurance naming Plaintiffs as an additional insured.
32.    Prior to April 1, 2000, Steers entered into a contract with Plaintiffs to procure insurance for the work being performed at the time Paula Dyer was allegedly injured
33.    The contracts entered into between Wenger and Plaintiffs and Steers and Plaintiffs required both Wenger and Steers to procure insurance naming Plaintiffs as an additional insured.
34.    Certificates of insurance were issued naming Plaintiffs herein as additional insured for the policies set forth herein.
35.    Under the terms of the policy of insurance issued by Defendant USF&G, Plaintiffs herein are additional insureds under said policy.
36.    Under the terms of the Excess policy of insurance issued by Defendants ACE, including but limited to any follow form provisions. Plaintiffs herein are additional insureds under said policy.
37.    Under the terms of the policy of insurance issued by Defendant RSUI, Plaintiffs herein are additional insureds under said policy.
38.    Under the terms of the Excess Liability policy of insurance issued by Defendant GENSTAR, Plaintiffs herein are additional insureds under said policy.
39.    This matter was timely tendered to the Defendants multiple times, commencing in Jufle of2002, by and on behalf of the Plaintiffs her e in, seeking eoverage under said policies of insurance as additional insureds for the occurrences set forth in the underlying action.
40.    To date no response has been received from Defendants.
41.    Defendants have failed to acknowledge its obligation to provide coverage to the Plaintiff herein, in the underlying action.

AS AND FOR A FIRST CAUSE OF ACTION
42.    Plaintiffs repeat, reiterate, and reallege each and every allegation contained in the paragraphs "1 ” through “41” of the complaint, inclusive, with the same force and effect as if set forth at length herein.
43.    In tile instant matter, Plaintiff in the underlying action has set forth in the underlying complaint, against the Plaintiffs herein, allegations which on the four comers of the complaint are covered allegations under the policies of insurance issued by Defendants.
44.    The policies of insurance issued by Defendants herein provide coverage in favor of Plaintiffs herein for the claims asserted in the underlying action. That coverage consists of duties of defense and indemnity running in favor of Plaintiffs herein.
45.    The insurance policies at issue herein provide coverage for Plaintiffs defense costs arising out of the underlying action.
46.    Defendants have failed to honor their obligations to Plaintiffs.
47.    The refusal by Defendants to honor their Obligations by providing Plaintiffs with defense and indemnity constitutes an actual breach of contract.
48.    As a result of the foregoing. Plaintiffs have suffered and will continue to suffer direct and consequential harm and expenses.

AS AND FOR A SECOND CAtSE OF ACTION
49.    Plaintiff repeat, reiterate, and reallege each and every allegation contained in the paragraphs “1” through “48" of the complaint, inclusive, with the same force and effect as if set forth at length herein.
50.    The policies of insurance at issue in this litigation provide defense and indemnity Coverage on behalf of Plaintiffs herein With respect to the claims asserted in the underlying action.
51.    Plaintiffs herein tendered the underlying action to Defendants for the purpose of receiving defense and indemnity coverage.
52.    Upon information and belief, Defendants have refused to provide Plaintiffs herein with the coverage they are entitled to under the subject policies of insurance.
53.    As a result of the foregoing, an actual and justiciable controversy exists between Plaintiffs and Defendants regarding the Defendants* obligation under the policies as respects to the underlying action.
54.    Defendants’ obligation of defense includes the cost of defense from the date of tender and continuing until the conclusion of the underlying litigation
55.    The obligation owed by Defendants to Plaintiffs herein for coverage is primary' to any other coverage which may exist on behalf of Plaintiff herein.
56.    Plaintiffs herein seek a declaration that the policies of insurance issued by Defendants and which is the subject of this litigation, covers the claims brought against Plaintiffs herein in the underlying action and that Plaintiffs are owed a duty of defense and indemnity by defendant under the subject policy with respect to those claims.

AS AND FOR A THIRD CAUSE OF ACTION
57.    Plaintiff repeats, reiterates and realleges each and every allegation contained in the paragraphs “1” through "56” of the complaint; inclusive, with the same force and effect as if set forth at length herein
58.    Defendants have failed to assert any coverage defense to Plaintiffs’ request for additional insured status within a reasonable time as required by Insurance law section 3420 and the common law of New York.
59.    Defendants have Waived any right to assert against Plaintiff herein that any exclusionary provision exists as a basis for denying; coverage to Plaintiff herein.
60.    Plaintiffs herein seek a declaration that the policies of insurance issued by Defendants and which is the subject of this litigation, covers the claims brought against Plaintiffs herein in the underlying action and that Plaintiff are owed a duty of defense and indemnity by
WHEREFORE, Plaintiffs Metropolitan Transportation Authority and New York City Transit Authority demands judgment against Defendants as follows:
A.    With respect to the First Cause of Action, that this Court:
1.    Determine and declare that the underlying action against Plaintiffs identified herein is covered under the insurance policies identified in this cause of action;
2.    Determine and declare that pursuant to CPLR §3001, die Defendants ate obligated under the within policies of insurance to defend the Plaintiffs herein in the underlying action to the full extent of the policy limits and to indemnify the plaintiffs herein for any judgment or settlement in the underlying action that would fall within the policy limits;
3.    Determine and declare: that Defendants have breached their obligations with the contracts of insurance identified in this action;
4.    Award money judgment to Plaintiffs in an amount to be determined as compensation with the costs and disbursements of this action;
5.    Determine and declare that the Defendants are required to reimburse the Plaintiffs herein for all of its attorneys’ fees, costs and other expenses incurred to date for the defense of the underlying action, as well as requiring payment for all attorneys’ fees, costs and other expenses incurred by the Plaintiffs with regard to said underlying action;
6.    Grant such other and further relief as this Court, may deem just and equitable, including interest, costs and attorneys’ fees,
B.    With respect to the Second Cause of Action, that this Court:
1.    Determine and declare that the underlying action against Plaintiffs herein is covered under the insurance policies identified in this cause of action;
2.    Determine and declare that pursuant to CPLR §3001, the Defendants are obligated under the Within described policy of insurance to the Plaintiffs herein in the underlying action to the full extent of the policy limits and to indemnify Plaintiffs herein for any judgment or settlement in the underlying action which would fall within the policy limits;
3.    Determine and declare that Defendants have breached their obligations with the contracts of insurance identified in this action;
4.    Award money judgment to Plaintiffs in an amount to be determined as compensation with the costs and disbursements of this action;
5.    Determine mid declare that the Defendants are required to reimburse the Plaintiffs herein for all of its attorneys’ fees, costs and other expenses incurred to date, for the defense of the underlying action, as well as requiring payment for all attorneys’ fees, costs and other expenses incunred by the Plaintiff’s with regard to said underlying action;
6.    Grant such other and further relief as this Court may deem just and equitable, including interest, costs and attorneys’ feCs.
C.    With respect to the Third Cause of Action, that this Court:
1.    Determine and declare that the underlying action against Plaintiffs herein is covered under the insurance policies identified in this cause of action;
2.    Determine and declare that pursuant to CPLR §3001, the Defendants are obligated under within described policy of insurance to the Plaintiffs herein in the underlying action to the foil extent of the policy limits and to indemnify Plaintiffs herein for any judgment or settlement in the underlying action which would fall within the policy limits;
3.    Determine and declare that Defendants have breached their obligations under the contracts of insurance identified in this action and have waived any fight to assert an exclusionary provision;
4.    Award money judgment to Plaintiffs in an amount to be determined as compensation with the costs and disbursements of this action;
5.    Determine and declare that the Defendants are required to reimburse the Plaintiffs herein for all of its attorneys’ fees, costs and other expenses incurred to date for the defense of the underlying action, as well as requiring payment for all attorneys’ fees, costs and other expenses incurred by the Plaintiffs with regard to said underlying action;
6.    Grant such other and forther relief as this Court may deem just and equitable, including interest, costs and attorneys’ fees.
 

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.