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TILCON NEW YORK, INC. 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: 
3:14-cv-01296 Search Pacer
Opposing Party: 
Tilcon New York Inc
Court Type: 
Federal
US District Court: 
Connecticut District Court
Date Filed: 
Sep 8 2014

COMPLAINT
FIRST COUNT
The Parties
1. Plaintiff Tilcon New York Inc. ("Tilcon") is a corporation organized and
existing under the laws of the State of Delaware.
2. Defendant Indemnity Insurance Company of North America ("UNA") is a
corporation organized and existing under the laws of the State of Pennsylvania, and is a
foreign insurance company authorized and licensed to do business in the State of
Connecticut by the Insurance Commissioner for the State of Connecticut and/or the
Connecticut Insurance Department; this action arises out of and/or is related to a
transaction having a connection with the State of Connecticut.
The Policy
3. UNA issued Commercial Marine Policy No. N01174538 to Tilcon as a
Named Insured, and to other Named Insureds, with an effective period of July 20,
2004 to July 20, 2005, and with a $9,000,000 limit of liability (the "Policy"); a copy of
what is, at this time, believed by Tilcon to be a complete copy of the Policy will be
filed herein as Exhibit A to this Complaint.
4. The Policy was issued, delivered, and negotiated in Connecticut, and
the mailing address listed for the Named Insureds on the Policy's declarations page
is located in New Haven, Connecticut.
The Underlying Action
5. On or about September 25, 2007, an action was commenced against
Tilcon captioned Ronkese v. Tilcon New York, Inc., et al., Supreme Court of the State of
New York, County of Ulster, Index No. 4137/07 (the "Underlying Action"), wherein the
plaintiff, Richard Ronkese ("Ronkese"), alleged that he was an employee of Tilcon,
including employment as a "Jones Act seaman", and that on or about October 15, 2004
(during the Policy's effective period) he was injured while working aboard a certain
vessel.
6. American Home Assurance Company ("American Home"), the insurer that
issued the Protection and Indemnity insurance policy underlying the Policy (the
"Underlying Policy"), tendered the limit of the Underlying Policy on behalf of Tilcon in
connection with settlement of the Underlying Action; Tilcon notified UNA of such tender
and further demanded that UNA defend Tilcon without reservation in connection with the
Underlying Action or settle the Underlying Action on its behalf.
7. Subsequently, on the day jury selection was to commence in the
Underlying Action, UNA was present at court, and Tilcon again demanded that UNA
defend Tilcon without reservation in connection with the Underlying Action or settle the
Underlying Action on its behalf.
8. Despite UNA having sufficient time to prepare its position regarding
settlement of the Underlying Action and to evaluate Tilcon's previous demands, and
despite IINA's duty to protect its insured, Tilcon, from unnecessary financial exposure at
trial, UNA, while present at court, indicated that it only had a minimal amount of
monetary authority for settlement purposes, especially in relation to the amount
tendered by American Home and the amount required to settle the Underlying Action;
UNA further indicated that the person who could authorize more monetary authority for
settlement purposes had called in sick for the day.
9. On that same day, while still at court, Tilcon alleged that UNA was acting
in "bad faith", as UNA had not come to court on behalf of Tilcon prepared to have a
reasonable discussion with Tilcon regarding settlement of the Underlying Action on
Tilcon's behalf; UNA then agreed that if Tilcon were to settle the Underlying Action on its
own behalf, UNA would not object to any such settlement, to the extent there were any
basis for any such objection, but UNA then retracted such agreement.
10. UNA then indicated again that it would agree that if Tilcon were to settle
the Underlying Action on its own behalf, UNA would not object to any such settlement, to
the extent there were any basis for any such objection, but only if Tilcon would retract its
earlier claim of bad faith against UNA.
11. Tilcon rightfully would not retract its allegation of bad faith against UNA,
and, on that same day, while at court, agreed to a settlement of the Underlying
Action with Ronkese for an appropriate and reasonable amount within the limit of the
Policy (the "Settlement Amount"), and under other appropriate and reasonable
terms, without any contribution from UNA, to protect itself from a judgment and from
incurring additional costs in connection with the defense of the Underlying Action;
Tilcon also reserved its rights, to the extent necessary, to recover the amount paid
by Tilcon, and other amounts, from UNA.
12. Any conditions precedent to coverage under the Policy have been
satisfied, waived, or UNA is estopped from denying or limiting coverage based on any
alleged failure to satisfy any conditions precedent to coverage.
13. UNA had, and has, a duty under the Policy to indemnify, pay and/or
reimburse Tilcon for that portion of the Settlement Amount which is in excess of the
limit of the Underlying Policy, and other amounts expended by Tilcon in connection
with Underlying Action, including, but not necessarily limited to, costs incurred in
connection with the defense of the Underlying Action.
14. Tilcon demanded that UNA indemnify, pay and/or reimburse Tilcon for
that portion of the Settlement Amount which is in excess of the limit of the Underlying
Policy, and other amounts expended by Tilcon in connection with Underlying Action,
including, but not necessarily limited to, costs incurred in connection with the
defense of the Underlying Action.
15. UNA has failed and/or refused to indemnify, pay and/or reimburse
Tilcon for that portion of the Settlement Amount which is in excess of the limit of the
Underlying Policy, and other amounts expended by Tilcon in connection with
Underlying Action, including, but not necessarily limited to, costs incurred in
connection with the defense of the Underlying Action; it was not until well over one
(1) year after Tilcon was forced to settle the Underlying Action on its own behalf that
UNA completed its review of Tilcon's claim for coverage in connection with the
Underlying Action.
16. Tilcon has suffered, and continues to suffer, damages directly and
proximately caused by IINA's failure and/or refusal to fulfill its obligations under the
Policy, including its failure and/or refusal to indemnify, pay and/or reimburse Tilcon
for that portion of the Settlement Amount which is in excess of the limit of the
Underlying Policy, and other amounts expended by Tilcon in connection with
Underlying Action, including, but not necessarily limited to, costs incurred in
connection with the defense of the Underlying Action.
SECOND COUNT
1. The allegations of paragraphs 1 - 16 of the First Count of the Complaint
are hereby incorporated by reference as paragraphs 1 - 1 6 of this Second Count as
if fully set forth herein.
17. There exists in every contract an implied covenant of good faith and fair
dealing.
18. UNA breached the implied covenant of good faith and fair dealing under
the Policy with respect to Tilcon's claim for coverage in connection with the Underlying
Action by, among other things, knowingly, intentionally, recklessly and/or negligently,
and/or in a manner indicative of dishonest, interested and/or sinister motive:
a. Failing and/or refusing to defend Tilcon without reservation, or
otherwise, in connection with the Underlying Action or settle the Underlying Action on
Tilcon's behalf for an appropriate and reasonable amount within the limit of the
Policy, and under other appropriate and reasonable terms, forcing Tilcon to protect
itself from a judgment and from incurring additional costs in connection with the
defense of the Underlying Action, and depriving Tilcon of the benefit of the Policy for
which a premium was paid;
b. Appearing at court at the commencement of jury selection in the
Underlying Action without being sufficiently prepared to contribute to a settlement of
the Underlying Action on Tilcon's behalf, despite sufficient opportunity to be so
prepared, forcing Tilcon to protect itself from a judgment and from incurring additional
costs in connection with the defense of the Underlying Action, and depriving Tilcon
of the benefit of the Policy for which a premium was paid; it was not until well over
one (1) year after Titcon was forced to settle the Underlying Action on its own behalf
that UNA completed its review of Tilcon's claim for coverage in connection with the
Underlying Action;
c. Appearing at court at the commencement of jury selection in the
Underlying Action without having made the appropriate personnel available with the
authority to settle the Underlying Action on Tilcon's behalf, forcing Tilcon to protect
itself from a judgment and from incurring additional costs in connection with the
defense of the Underlying Action, and depriving Tilcon of the benefit of the Policy for
which a premium was paid;
d. Appearing at court at the commencement of jury selection in the
Underlying Action without a sufficient understanding of the Underlying Action and the
potential exposure of its insured, Tilcon, despite sufficient opportunity to have such an
understanding, forcing Tilcon to protect itself from a judgment and from incurring
additional costs in connection with the defense of the Underlying Action, and
depriving Tilcon of the benefit of the Policy for which a premium was paid;
e. Retracting an agreement, without cause, that if Tilcon were to settle
the Underlying Action on its own behalf, UNA would not object to any such settlement, to
the extent there were any basis for any such objection; and
f. Conditioning a subsequent agreement that if Tilcon were to settle
the Underlying Action on its own behalf, UNA would not object to any such settlement, to
the extent there were any basis for any such objection, on Tilcon's retraction of its
allegation of bad faith against UNA.
19. Tilcon has suffered, and continues to suffer, damages directly and
proximately caused by IINA's breach of the implied covenant of good faith and fair
dealing under the Policy with respect to Tilcon's claim for coverage in connection with
the Underlying Action.
THIRD COUNT
1. The allegations of paragraphs 1 - 19 of the Second Count of the
Complaint are hereby incorporated by reference as paragraphs 1 - 19 of this Third
Count as if fully set forth herein.
20. C.G.S. § 42-110g allows a private cause of action for violations of C.G.S.
§ 42-110b and C.G.S. § 38a-815.
21. At all relevant times, UNA was engaged in the conduct of trade or
commerce within the meaning of C.G.S. § 42-110b, and was engaged in the business of
insurance within the meaning of § C.G.S. 38a-815.
22. At all relevant times, UNA engaged in unfair or deceptive acts or practices
in the conduct of trade or commerce within the meaning, and in violation, of C.G.S. §
42-110b which offend public policy, and/or are immoral, unethical, oppressive and/or
unscrupulous, and/or cause substantial injury to consumers, and/or UNA engaged in
trade practices which are unfair or deceptive acts or practices in the business of
insurance within the meaning, and in violation, of C.G.S. § 38a-815.
23. Upon information and belief, such unfair or deceptive acts or practices are
committed and/or performed by UNA with such frequency as to indicate a general
business practice and are committed and/or performed in connection with insureds
other than Tilcon.
24. Such unfair or deceptive acts or practices include, but are not necessarily
limited to, those acts described in paragraphs 18(a)-(f) herein.
25. By committing and/or performing such unfair or deceptive acts or
practices, UNA fails to acknowledge and act with reasonable promptness upon
communications with respect to claims arising under insurance policies as set forth in
C.G.S. §38a-816{6)(B);
26. By committing and/or performing such unfair or deceptive acts or
practices, UNA refuses to pay claims without conducting a reasonable investigation
based upon all available information as set forth in C.G.S. § 38a-816(6)(D);
27. By committing and/or performing such unfair or deceptive acts or
practices, UNA does not attempt in good faith to effectuate prompt, fair and equitable
settlements of claims in which liability has become reasonably clear as set forth in
C.G.S. § 38a-816(6)(F);
28. By committing and/or performing such unfair or deceptive acts or
practices, UNA compels insureds to institute litigation to recover amounts due under an
insurance policy by offering substantially less than the amounts ultimately recovered in
actions brought by such insureds as set forth in C.G.S. § 38a-816(6)(G); and
29. By committing and/or performing such unfair or deceptive acts or
practices, UNA fails to promptly provide a reasonable explanation of the basis in the
insurance policy in relation to the facts or applicable law for denial of a claim or for the
offer of a compromise settlement as set forth in C.G.S. § 38a-816(6)(N).
30. UNA engaged in such unfair or deceptive acts or practices in connection
with Tilcon's claim for coverage in connection with the Underlying Action.
31. Tilcon has suffered, and continues to suffer, damages, including an
ascertainable loss of money and/or property, because, and as a result, of IINA's unfair
or deceptive acts or practices.
WHEREFORE, the Plaintiff prays that this Court award:
1. Monetary damages, including compensatory, direct and consequential
damages;
2. Interest, including, but not necessarily limited to, interest pursuant to
C.G.S. § 37-3a; ~
3. Attorneys' fees, including, but not necessarily limited to, attorneys' fees
under C.G.S. §42-110g;
4. Punitive and/or exemplary damages, including, but not necessarily
limited to, punitive and/or exemplary damages under C.G.S. §42-110g;
5. Costs, including, but not necessarily limited to, costs under C.G.S. § 42-
110g; and
6. Such other and further relief as the Court may deem proper.

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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