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MISKO v. BANKERS STANDARD INSURANCE COMPANY

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Case Number: 
4:14-cv-00613 Search Pacer
ACE Group party(s): 
Opposing Party: 
Karen Misko
Court Type: 
Federal
US District Court: 
Eastern District of Texas
Date Filed: 
Sep 23 2014

PLAINTIFF'S COMPLAINT

TO THE HONORABLE COURT:
Plaintiff Karen Misko ("Plaintiff or "Mrs. Misko") respectfully files the following
Complaint against Defendant Bankers Standard Insurance Company ("BSI" or "Defendant"):

I. PARTIES
1. Mrs. Misko is an individual who is a citizen of Texas and resides at 3513 Twin
Lakes Way, Piano Texas 75093.
2. BSI is incorporated in Pennsylvania; its principal place of business also is located
in Pennsylvania at: 436 Walnut Street, Philadelphia, Pennsylvania 19106-3703. BSI's agent for
service of process is CT Corporation System, 1999 Bryan St., Ste. 900, Dallas, TX 75201-3136.

II. JURISDICTION AND VENUE
3. Jurisdiction exists in this Court pursuant to 28 U.S.C. § 1332 inasmuch as the
amount in controversy exceeds $75,000.00, exclusive of interest and costs, and is between
citizens of different states.
Case 4:14-cv-00613-RAS Document 1 Filed 09/23/14 Page 2 of 11 PagelD #: 2
4. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because a substantial
part of the events or omissions giving rise to Mrs. Misko's claim occurred in Collin County,
Texas, which is located in this Judicial District and Division.

III. BACKGROUND
A. The Insurance Policy—
5. Mrs. Misko is the named insured under a policy of insurance issued by BSI,
which includes an "Ace Platinum Portfolio Home Policy," numbered 268-02-23-16H (the
"Policy"), with a policy period of May 21, 2012 to May 21, 2013 (the "Policy Period"). Among
other things, the Policy insures Mrs. Misko's residence (the "Home") against loss, including loss
from hail and wind storms.
B. The Hail and Wind Storm—
6. During the Policy Period, a wind and hail storm damaged and destroyed, among
other things, the Home's roof, several of its windows and one or more of its garage doors (the
"Loss"). Mrs. Misko had made provision for such an event, and had purchased the Policy to
protect herself and her family.
7. The Policy plainly covered the Loss. Mrs. Misko timely reported the Loss to BSI,
and requested that BSI fulfill its obligation to cover the Loss (the "Claim").
C. BSI Fails to Meet its Legal and Contractual Obligations—
8. Although BSI received and kept all of Mrs. Misko's premium payments for the
Policy, BSI failed and refused to acknowledge and honor its duty to pay the cost necessary to
repair and replace the Loss.
9. Further, while adjusting the Claim, BSI made several misrepresentations to Mrs.
Misko, apparently in hopes that she would abandon it. For example, in July 2013, BSI
represented to Mrs. Misko that it had investigated the Claim in good faith, and that the sum of
$1,136.45 was the amount, net of the Policy's $10,000.00 deductible, to which she was entitled
under the Policy to repair and replace the Loss. In this connection, BSI also stated that 1) it was
not liable to pay the full amount necessary to repair and replace the Loss because the roof
allegedly was improperly installed; 2) only portions of the Home's roof were damaged; and 3) it
was entitled to patch portions of the Home's roof with un-matching shingles that were not of like
kind and quality.
10. Subsequent to receiving BSI's check, Mrs. Misko consulted with and obtained
estimates from several construction professionals regarding repairing and replacing the Loss.
During this process, she obtained reports demonstrating the Loss could not be repaired in the
manner in which and for the amount represented by BSI. Instead, she learned that her Home
required extensive repairs related to the Loss that would cost in excess of $200,000.00. When
Mrs. Misko received this information, she provided it to BSI.
11. BSI failed and refused, however, to take responsibility for and to pay for the Loss.
In fact, BSI failed even to acknowledge Mrs. Misko's communications.
D. Mrs. Misko has Suffered Substantial Consequential Damages—
12. On November 20, 2013, Mrs. Misko wrote to BSI's adjuster, asking him to
provide an explanation as to how BSI arrived at the amount of the check it sent her—BSI had
simply sent her the check with no cover letter or estimate specifying the damage to the Home.
Additionally, Mrs. Misko informed BSI that, subsequent to the Loss, she had placed her Home
on the market to sell or lease, and that her real estate broker had told her that the visual hail and
wind damage to the Home's roof could hamper those efforts. Accordingly, Mrs. Misko asked
BSI's adjuster to work with her to repair and replace the Loss as quickly as possible.
13. BSI failed and refused to live up to its contractual and legal duties under the
Policy. In fact, BSI refused even to respond to Mrs. Misko's communication and requests.
14. Mrs. Misko's real estate professional's prediction came true. While there has
been a favorable real estate market over the last year in the Home's area generally, resulting in
substantial interest in the Home on the part of potential purchasers, Mrs. Misko has been unable
to sell or lease the Home. In each case in which interest has been shown, the potential
purchasers have expressed a great deal of concern over the roof and other damage constituting
the Loss.
15. On July 22, 2014, Mrs. Misko provided BSI with reports from two independent
engineers showing, among other things, that the Home's roof was a total loss and needed to be
replaced. These reports also stated that the Loss should be repaired as soon as possible to
prevent additional damage to the Home.
16. Mrs. Misko also informed BSI in this communication that a potential purchaser of
the Home had indicated to her broker that they would write an offer for her Home if the Loss
were repaired and replaced; however, this potential purchaser was unwilling to go forward
without the repairs being made. Mrs. Misko further informed BSI that the potential purchaser
had not yet purchased another house, and, if BSI would timely commit to repair and replace the
Loss, the potential sale could be salvaged. If not, however, Mrs. Misko informed BSI that she
would suffer an additional loss relating to the lost sale of the Home.
17. Mrs. Misko also advised BSI that the listing broker for her Home, who has been
in the business for over 30 years, had stated that it is unlikely any other buyer will proceed to
purchase the Home because of the difficulties with appraisals and insurability of the Home one
will face until the Loss has been restored. Further, Mrs. Misko advised BSI that her broker had
said that, in her opinion, the obviously "distressed" look of the Home is causing most potential
purchasers to bypass even considering the Home.
E. BSI's Conduct has Caused and is Causing Mrs. Misko Mental Anguish—
18. Mrs. Misko further informed BSI that 1) her daughter had been suffering from
serious health problems; 2) she had incurred substantial medical expenses for her daughter in the
past and potentially was facing future expenses in that regard; 3) selling the Home was an
important part of her financial planning for managing these costs; 4) she did not have funds in
her budget permitting her to repair and replace the Loss herself; and 5) she was extremely
concerned about potential, additional damage being done to the Home as it remained exposed to
the elements. Finally, she informed BSI that she was especially concerned that market would
turn and she would have missed the opportunity to sell the Home, which would cause negative
repercussions in virtually every aspect of her and her daughter's lives, and that these events were
and would continue to cause her mental distress.
19. BSI nonetheless continued to refuse to fulfill its obligations, did not perform any
further investigation, and did not even bother to respond in writing to Mrs. Misko's requests.
20. As a result, Mrs. Misko has been unable to sell or lease her Home, which has
caused her substantial consequential damages. These damages were foreseeable to BSI and are
directly traceable to BSI's wrongful refusal to honor its contractual and legal duties and result
from such conduct. Additionally, Mrs. Misko has suffered and is suffering mental anguish as a
result of BSI's wrongful conduct.

IV. CAUSES OF ACTION

COUNT I
BREACH OF CONTRACT
21. Defendant has failed to acknowledge and provide the insurance coverage to which
Plaintiff is entitled under the Policy. Defendant's failure to do so constitutes a breach contract,
for which Plaintiff now sues. Further, Plaintiff has suffered consequential and noneconomic
damages for which she now sues.
22. All conditions precedent to assert this claim have been performed by Plaintiff
have occurred, or have been excused.

COUNT II
BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING
23. Defendant owed Plaintiff a duty of good faith and fair dealing, which required it
(i) to perform its duties and obligations under the Policy in a reasonable and timely manner and
(ii) to properly handle the claim referenced herein. Defendant's actions described above were
wanton, reckless, malicious and/or intentional in disregard of Plaintiff s rights under the Policy.
Additionally, BSI's conduct described herein was malicious, fraudulent or grossly negligent.
24. As a result, Plaintiff has suffered economic damages in an amount to be
determined by a trier of fact, for which damages she now sues. Further, Plaintiff has suffered
consequential and noneconomic damages, including damages for mental anguish, for which she
now sues.
25. All conditions precedent to assert this claim have been performed by Plaintiff
have occurred, or have been excused.

COUNT III
VIOLATIONS OF TEX. INS. CODE CHAPTER 541
26. By engaging in the conduct described above, Defendant not only has breached its
contractual obligations and common law duties of good faith and fair dealing to Plaintiff, but
also has violated § 541.060 of the Texas Insurance Code as follows:
a. misrepresenting to a claimant a material fact or policy
provision relating to coverage at issue;
b. failing to attempt in good faith to effectuate a prompt, fair,
and equitable settlement of a claim with respect to which the
insurer's liability has become reasonably clear; and
c. refusing to pay a claim without conducting a reasonable
investigation with respect to the claim.
27. Defendant committed this wrongful conduct knowingly.
28. Plaintiff has sustained actual damages as a result of this conduct, for which she
now sues. Further, Plaintiff has suffered consequential and noneconomic damages, including
damages for mental anguish, for which she now sues.
29. All conditions precedent to assert this claim have been performed by Plaintiff
have occurred, or have been excused.
30. By engaging in the conduct described above, Defendant also violated § 541.061
of the Texas Insurance Code as follows:
a. making an untrue statement of material fact;
b. failing to state a material fact necessary to make other
statements not misleading, considering the circumstances under
which the statements were made;
c. making a statement in a manner that would mislead a
reasonably prudent person to a false conclusion of a material fact;
and
d. making a material misstatement of law.
31. Defendant committed this wrongful conduct knowingly.
32. Plaintiff has sustained actual damages as a result of this conduct, for which she
now sues. Further, Plaintiff has suffered consequential and noneconomic damages, including
damages for mental anguish, for which she now sues.
33. All conditions precedent to assert this claim have been performed by Plaintiff
have occurred, or have been excused.

COUNT IV
VIOLATIONS OF TEX. INS. CODE CHAPTER 542
34. Defendant's conduct also violated § 542.003 of the Texas Insurance Code as
follows: a) knowingly misrepresenting to a claimant pertinent facts or policy provisions relating
to coverage at issue; b) not attempting in good faith to effect a prompt, fair, and equitable
settlement of a claim submitted in which liability has become reasonably clear; and c)
compelling a policyholder to institute a suit to recover an amount due under a policy by offering
substantially less than the amount ultimately recovered in a suit brought by the policyholder.
35. Defendant committed this wrongful conduct knowingly.
36. Plaintiff has sustained actual damages as a result of this conduct, for which she
now sues. Further, Plaintiff has suffered consequential and noneconomic damages, including
damages for mental anguish, for which she now sues.
37. All conditions precedent to assert this claim have been performed by Plaintiff
have occurred, or have been excused.

COUNT V
PLAINTIFF'S INVOCATION OF ITS RIGHTS
UNDER TEX. INS. CODE §§ 541.152, 542.058, AND 542.060
38. Pursuant to Texas law, and for the reasons described in this petition, Plaintiff
seeks to recover: a) the amount of actual damages, plus court costs and reasonable and necessary
attorney's fees; b) additional damages in an amount three times the amount of actual damages,
all as provided in § 541.152 of the Texas Insurance Code; and c) any other relief the court deems
proper.
39. Additionally, Plaintiff invokes her rights under § 542.058 of the Texas Insurance
Code to recover the penalties set forth in § 542.060, including 18% interest and attorneys' fees.
40. Defendant committed this wrongful conduct knowingly.
41. Plaintiff has sustained actual damages as a result of this conduct, for which she
now sues. Further, Plaintiff has suffered consequential and noneconomic damages, including
damages for mental anguish, for which she now sues.
42. All conditions precedent to assert this claim have been performed by Plaintiff
have occurred, or have been excused.

COUNT VI
TEXAS DECEPTIVE TRADE PRACTICES ACT VIOLATIONS
43. For the reasons set forth above, Defendant violated § 17.46(b)(12) of the Texas
Business & Commerce Code. Additionally, Defendant is liable under § 17.50(a)(4) of the Texas
Business & Commerce Code because their conduct violated Chapters 541 and 542 of the Texas
Insurance Code, as outlined above.
44. Defendant's wrongful conduct was intentional, knowing, and a producing cause
of damages to Plaintiff, which is entitled, therefore, to all the relief contained within the DTP A,
including, but not limited to, economic damages, attorneys' fees, interest, costs, and treble
damages, for which she now sues. Additionally, BSI's conduct described herein was malicious,
fraudulent or grossly negligent. Further, Plaintiff has suffered consequential and noneconomic
damages, including damages for mental anguish, for which she now sues.
45. Plaintiff has fulfilled all conditions precedent to her recovery under this cause of
action.

COUNT VII
ATTORNEYS' FEES AND COSTS
46. Pursuant to applicable law, including but not limited to Tex. Civ. Prac. & Rem.
Code § 38.001, Plaintiff hereby sues Defendant for costs of court, and reasonable and necessary
attorneys' fees. Plaintiff has fulfilled all conditions precedent to recovery of her fees and costs,
including but not limited to presentment.
COUNT IX
ADDITIONAL AND EXEMPLARY DAMAGES
47. Further, Plaintiff seeks exemplary damages against Defendant because its
wrongful conduct was undertaken with a state of mind that justifies the imposition of exemplary
damages. Plaintiff seeks such damages not only to punish Defendant for its conduct, but also to
deter others in the insurance business from engaging in the same or similar conduct.
COUNT X
JURY DEMAND
48. As is her right under the constitution and laws of the United States of America
and this State, Plaintiff hereby respectfully requests a trial by jury.
WHEREFORE, Plaintiff respectfully requests that she have judgment against Defendant,
consistent with her allegations in this Complaint, and that she recover her costs, attorneys' fees,
pre- and post-judgment interest, special and/or consequential damages, penalties and/or
additional and/or exemplary damages, if applicable, and such other and further relief at law or in
equity to which she may be entitled.

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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