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

WESTCHESTER FIRE INSURANCE COMPANY v. MOYES

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: 
1:08-cv-10726 Search Pacer
ACE Group party(s): 
Opposing Party: 
Westchester Fire Insurance Company
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Jan 10 2012

"AS AND FOR A FIRST CAUSE OF ACTION AGAINST THE DEFENDANT FOR DEPOSIT OF COLLATERAL

8. Plaintiff Westchester Fire repeats and realleges the allegations contained in paragraphs " 1 " through "7" hereof.

9. Subsequently PGAL, LLC and Hardy Companies, Inc. commenced actions in Clark County District Court in the State of Nevada against, among others, Palm Beach and Westchester Fire to foreclose on bonds Westchester Fire had executed as surety for Palm Beach.

10. By letter dated November 14, 2008, Westchester Fire further demanded that the Defendant provide collateral in the amount of $6,382,389 pursuant to the terms of the Agreement of Indemnity.

11. Despite said demand, the Defendant has failed provide Westchester Fire with collateral.

12. Under the Agreement of Indemnity, Defendant is obligated to immediately provide Westchester with the collateral it has demanded pursuant to the Agreement of Indemnity.

13. By reason of the foregoing, Plaintiff demands that Defendant pay collateral and deposit the sum of $6,382,389 plus any future loss, costs, fees or expenses incurred plus interest and attorneys fees with Plaintiff.

AS AND FOR A SECOND CAUSE OF ACTION AGAINST THE DEFENDANT FOR DECLARATORY JUDGMENT OF INDEMNIFICATION

14. Plaintiff Westchester Fire repeats and realleges the allegations set forth in paragraphs " 1 " through "13" hereof.

15. Westchester may be required to pay the obligees under the bonds it has executed as surety for Palm Beach and to defend the actions brought by those obligees.

16. Under the Agreement of Indemnity Defendant is obligated to indemnify Westchester for all losses, expenses or other payments it may be required to incur or make by reason of having executed the bonds.

17. Westchester Fire is entitled to a declaratory judgment that Defendant has the foregoing obligations.

AS AND FOR A THIRD CAUSE OF ACTION AGAINST THE DEFENDANT FOR A PRELIMINARY INJUNCTION

18. Plaintiff Westchester Fire repeats and realleges the allegations set forth in paragraphs " 1 " through "17" hereof.

19. The Agreement of Indemnity requires the Defendant to post collateral with the Plaintiff promptly upon the request of the Plaintiff.

20. Westchester Fire's right to collateral from Defendant was specifically bargained for and agreed to by Defendant.

21. Westchester Fire has no adequate remedy at law and will be irreparably harmed if the Defendant fails to pay collateral in the sum of $6,382,389 to Plaintiff.

22. Westchester Fire has a strong likelihood of success on the merits in this action.

23. The issuance of a preliminary injunction will not create an undue hardship for the Defendant as the preliminary injunction will require the Defendant only to do what Defendant contracted to do in the Agreement of Indemnity.

24. Westchester Fire will suffer undue hardship if a preliminary injunction is not granted as Westchester Fire would then be required to use its own funds to defend and pay any claims despite the promise of the Defendant to post collateral upon the request of Plaintiff.

25. For the aforementioned reasons, Westchester Fire respectfully requests that the Court issue a preliminary injunction requiring (1) Defendant to immediately post collateral in the sum of $6,382,389 and (2) until the collateral is posted, enjoining and restraining Defendant from selling, transferring, disposing or encumbering Defendant's assets and property and granting Westchester Fire a lien upon all the assets and property owned by the Defendant and in which the Defendant has an interest.

AS AND FOR A FOURTH CAUSE OF ACTION AGAINST THE DEFENDANT FOR COSTS, EXPENSES AND ATTORNEY'S FEES

26. Plaintiff Westchester Fire repeats and realleges the allegations set forth in paragraphs " 1 " through "26" hereof.

27. The Agreement of Indemnity requires that Defendant indemnify Westchester Fire for all losses and/or expenses of whatsoever kind or nature, including interest, court costs and attorney's fees that Westchester may incur by reason of having executed the bonds.

28. Defendant is obligated to pay Westchester Fire the attorney's fees and expenses it has incurred in connection with this action.

WHEREFORE, Plaintiff Westchester Fire Insurance Company respectfully requests judgment as follows:
a. On the First Cause of Action against Defendant Jerry Moyes for the deposit of the sum of $6,382,389.00 plus any future loss, costs, fees or expenses incurred plus interest and attorney's fees;
b. On the Second Cause of Action a declaration that Defendant is required to indemnify plaintiff for all losses, expenses or other payments that it may incur or be required to make by reason of having executed the bonds;
c. On the Third Cause of Action issuing a preliminary injunction requiring (1) Defendant to immediately post collateral in the sum of $6,382,389 and (2) until the collateral is posted, enjoining and restraining Defendant from selling, transferring, disposing or encumbering Defendant's assets and property and granting Westchester Fire a lien upon all the assets and property owned by the Defendant and in which the Defendant has an interest;"

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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