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

REPUBLIC SERVICES OF FLORIDA LIMITED PARTNERSHIP ET AL V. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA

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: 
8:12-cv-02697 Search Pacer
Opposing Party: 
Republic Services of Florida Limited
Court Type: 
Federal
US District Court: 
Middle District of Florida
Date Filed: 
Nov 29 2012

"COUNT I - DECLARATORY RELIEF

The Plaintiffs re-adopts and re-allege all of the allegations contained in paragraphs] through 4 as fully set forth above.

6. This is an action for declaratory relief in accordance with Chapter 86 of the Florida statutes.

7. On or about July 23, 2004, Keith A. Kleparek. was employed by REPUBLIC SERVICES OF FLORIDA LIMITED PARTNERSHIP d/b/a FLORIDA REFUSE SERVICE and in the course of his employment was operating a motor vehicle owned by REPUBLIC SERVICES OF FLORIDA LIMITED PARTNERSHIP d/b/a FLORIDA REFUSE SERVICE when a fire started apparently in the vehicle's engine compartment causing alleged injuries to Keith A\ Kleparek.

8. The Defendant, INDEMNITY issued a policy of Workers Compensation and Employers Liability Insurance to the Plaintiff REPUBLIC, a copy of which is in the possession of the Defendant, INDEMNITY and is voluminous such that only a portion of said policy is attached hereto as Exhibit "A" and hereby incorporated by reference.

9. Notice of the above described accident was provided by the Plaintiff, REPUBLIC to the Defendant, INDEMNITY as required by the policy of insurance.

10. As required by said policy, the Plaintiff, REPUBLIC surrendered all control over the handling of this claim to the Defendant, INDEMNITY.

11. Pursuant to the terms and conditions of said policy, the Defendant, INDEMNITY was required to provide investigation, administration, adjustment and settlement services for which the policy provided coverage.

12. The Defendant, INDEMNITY assumed the duty to exercise control and make decisions in good faith with due regard for the interests of the Plaintiff, REPUBLIC.

13. As required by its policy of insurance, the Defendant INDEMNITY began to carry out its duties of investigation and administration of this claim and the Plaintiff. REPUBLIC relied upon the actions of the Defendant, INDEMNITY in fulfilling its obligations to properly investigate and administer the claim.

14. As required by the policy of insurance, the Plaintiff. REPUBLIC fully cooperated with the Defendant, INDEMNITY and its agents.in the administration and investigation of this claim, including securing the vehicle involved in the accident pending the investigation by experts hired by the Defendant, INDEMNITY and/or its agents.

15. After surrendering all control of the handling of this claim to the Defendant, INDEMNITY and its agents, the Plaintiff, REPUBLIC relied upon the Defendant, INDEMNITY to properly administer the claim... including the handling and preserving, if necessary, of any evidence.

16. After completion of the expert examination of the. vehicle in question, the Defendant, INDEMNITY neither directed, cautioned against, or requested the continued preservation of the vehicle involved in the incident.

17. Without instructions to do otherwise, the Plaintiff, REPUBLIC unknowingly disposed of the subject truck with no knowledge that it may have inadvertently discarded potential evidence in a subsequent third party action.

18. The Plaintiff, REPUBLIC was placed on notice of a claim for spoliation of evidence by Keith A. Kleparek which resulted in the filing of a Complaint for Damages against the Plaintiff, REPUBLIC, and other parties, for spoliation of evidence in the Circuit Court of the 13th Judicial Circuit in and for Hillsborough County, Florida being Case No. 06-07618. A copy of the 3rd Amended Complaint is attached hereto as Exhibit "B" and hereby incorporated by reference. ]

19. Notice of .this claim and subsequent lawsuit was provided to the Defendant, INDEMNITY with a request for insurance coverage and a defense pursuant to its policy of insurance. The Defendant, INDEMNITY responded by denying the insurance coverage for this claim and for the defense of the subsequently filed law suit by Keith A. Kleparek.

20. The Defendant, INDEMNITY had the duty, in good faith, to conduct its investigation, adjustment and administration of Keith A. Kieparek's workers compensation claim, including providing the necessary directions to its insured to preserve all evidence and the adjustment and administration of this claim:

21. The Plaintiff, REPUBLIC relied upon the Defendant, INDEMNITY to its detriment to carry out the duties under the policy of insurance issued by the Defendant, INDEMNITY, and as a result the Plaintiff, REPUBLIC may be subject to severe prejudice by the Defendant, INDEMNITY'S failure to carry out its duties under the policy of insurance.

22. The Defendant, INDEMNITY is estopped from denying its indemnity obligations under its policy of insurance and coverage is. provided to the Plaintiff, REPUBLIC by the Defendant, INDEMNITY by estoppel.

23. The parties herein are in doubt as to their rights and obligations under the policy of insurance issued by the Defendant, INDEMNITY to thePlaintiff, REPUBLIC and as such require a declaration of those rights pursuant to Chapter 86 of the Florida Statutes.

WHEREFORE, the Plaintiffs, REPUBLIC, moves this Court for an entry of a Final Declaratory Judgment regarding the following:
a. Whether by its actions and in actions, the Defendant, INDEMNITY is estopped from denying its indemnity obligation under its policy of insurance to the Plaintiffs, REPUBLIC.
b. Whether by its actions or in actions, the Defendant, INDEMNITY is estopped from denying its obligation to provide a defense under its policy of insurance to the Plaintiffs. REPUBLIC for the law suit brought against them by Keith A. Kleparek and Keith A. Kleparek, Jr.

COUNT II - BREACH OF CONTRACT

The Plaintiffs re-adopts and re-allege all of the allegations contained in paragraphs 1 through 23 as fully set forth above.

24. By virtue of its actions and inactions, the Defendant, INDEMNITY'S policy of insurance is extended to provide insurance coverage by estoppel to the Plaintiffs, REPUBLIC forthe allegations made against it by Keith A. Kleparek and Keith A. Kleparek, Jr.

25. By virtue of its actions and inactions, the Defendant, INDEMNITY has breached the policy of insurance by failing to indemnify and to provide a defense to its insureds, the Plaintiffs, REPUBLIC.

26. Because the Defendant, INDEMNITY refused to provide a defense to the Plaintiff, REPUBLIC, it was necessary for it to retain the services of the Law Firm of Luks & Santaniello, LLC for which they have had to pay attorneys fees because of the wrongful denial of insurance coverage.

27. The Plaintiff, REPUBLIC was required to hire the undersigned law firm to pursue this Declaratory Action and therefore is entitled to attorneys fees pursuant to Chapter 627 of the Florida Statutes.

28. Due to the Defendant, INDEMNITY:s breach of contract, the Plaintiffs, REPUBLIC havebeen damaged by the Defendant. INDEMNITY'S actions or inactions, plus"

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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