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

DELANEY DEVELOPMENT, INC. et al v. ESSEX INSURANCE COMPANY Complaint

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.

Embedded Scribd iPaper - Requires Javascript and Flash Player
Case 1:11-cv-00277-KD-B Document 1
Filed 05/27/11 Page 1 of 7
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ALABAMA DELANEY DEVELOPMENT, INC. , DELANEY’S, INC. and CABANA APARTMENTS * * CIVIL ACTION NO. 11-277 * * VERSUS * JUDGE: * WESTCHESTER SURPLUS LINES * MAGISTRATE: INSURANCE COMPANY, INC., ESSEX * INSURANCE COMPANY, and LANDMARK * AMERICAN INSURANCE COMPANY * ************************************************************************ COMPLAINT FOR DAMAGES NOW INTO COURT, through undersigned counsel, comes plaintiffs, Delaney Development, Inc., Delaney’s, Inc. and Cabana Apartments, who respectfully represent as follows in this Complaint for Damages: I. Made plaintiffs herein are: DELANEY DEVELOPMENT, INC., a corporation organized under the laws of Alabama and with its principal place of business in Alabama; DELANEY’S, INC., a corporation organized under the laws of Alabama and with its principal place of business in Alabama; and CABANA APARTMENTS, a corporation organized under the laws of Alabama and with its principal place of business in Alabama.
1
Case 1:11-cv-00277-KD-B Document 1
Filed 05/27/11 Page 2 of 7
II. Made defendants herein are: WESTCHESTER SURPLUS LINES INSURANCE COMPANY, an insurance company authorized to do and doing business within Alabama and within the jurisdiction of this Honorable Court; ESSEX INSURANCE COMPANY, an insurance company authorized to do and doing business within Alabama and within the jurisdiction of this Honorable Court; and LANDMARK AMERICAN INSURANCE COMPANY, an insurance company authorized to do and doing business within Alabama and within the jurisdiction of this Honorable Court. III. Jurisdiction herein is invoked pursuant to 28 U.S.C. §1332 as the parties’ citizenships are completely diverse and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. IV. Venue is proper under 28 U.S.C. §1391(a)(2) because a substantial part of the events giving rise to this claim occurred in Mobile, Alabama within the Southern District of Alabama. V. Defendants are justly and truly indebted to Plaintiffs herein for damages, together with legal interest thereon from the date of judicial demand until paid, and for costs in these proceedings, for the following, to-wit: VI. Plaintiffs, Delaney Development, Inc. and Delaney’s, Inc., own a residential apartment building located in Mobile, Alabama, namely, Cabana Apartments.
2
Case 1:11-cv-00277-KD-B Document 1
Filed 05/27/11 Page 3 of 7
VII. Plaintiffs contracted with Westchester Surplus Lines Insurance Company (hereinafter “Westchester”), Essex Insurance Company (hereinafter “Essex”) and Landmark American Insurance Company (hereinafter “Landmark”) to insure its apartment building. The Westchester policy bears policy number D35885766 001. The Essex policy bears policy number ESP 1864. The Landmark policies bear policy numbers LHD 3344863 and LHD 334864. VIII. In the days preceding Hurricane Ivan’s landfall on September 16, 2004, weather forecasters and government officials predicted that Hurricane Ivan, which was then in the Gulf of Mexico, would severely impact southern Alabama. IX. In anticipation of the impending storm, government officials ordered a voluntary evacuation of the greater Mobile area in and around southern Alabama. The voluntary
evacuation order applied to everyone, including the plaintiffs. The voluntary evacuation order forced everyone to remain away from the affected area until official notice to return was provided. X. On September 16, 2004, Hurricane Ivan made landfall in the greater southern Alabama area. This windstorm severely damaged Plaintiffs’ property located at 3800 Michael Blvd., Mobile, AL 36609. Plaintiffs mitigated its damages at all relevant times, performing necessary repairs in an attempt to swiftly reopen its apartments.
3
Case 1:11-cv-00277-KD-B Document 1
Filed 05/27/11 Page 4 of 7
XI. Plaintiffs timely notified Westchester, Essex and Landmark of its loss after Hurricane Ivan caused damage to Plaintiffs’ property. XII. Shortly after the storm, Westchester, Essex and Landmark began sending adjusters to Plaintiffs’ property to determine the scope of damage to Plaintiffs’ property. The respective insurance adjusters performed inspections of the damaged property. XIII. As late as May 27, 2005, Essex wrote to Plaintiffs discussing their losses resulting from Hurricane Ivan. Specifically, Essex requested documentation to support plaintiffs’ claims
regarding the loss of rents portion of plaintiff’s claim. Said correspondence interrupted the statute of limitations as to Plaintiffs’ losses. Continuing after this date, the insurance companies continued to adjust Plaintiffs' losses resulting from Hurricane Ivan, sending tender checks as late as March, 2006. XIV. As of the date of the filing of this Complaint, Westchester, Essex and Landmark has not tendered Delaney Development, Inc. and Cabana Apartments a sufficient amount to adequately compensate Plaintiffs for their losses from Hurricane Ivan. XV. At all times pertinent hereto, Westchester, Essex and Landmark provided insurance coverage for the matters, risks, and things involved herein.
4
Case 1:11-cv-00277-KD-B Document 1
Filed 05/27/11 Page 5 of 7
XVI. Plaintiffs’ commercial insurance policies issued by Westchester, Essex and Landmark provide coverage for loss or damage caused by the peril of wind. XVII. Despite having been provided with “satisfactory proof of loss,” and despite conducting its own thorough investigation of the damages Plaintiffs incurred from Hurricane Ivan, Westchester, Essex and Landmark have not adequately paid for any or all of the damage sustained to Plaintiffs’ property caused by this covered loss. XVIII. Westchester, Essex and Landmark are liable unto Plaintiffs under the following legal theories: a. b. c. Breach of contract; Breach of duty of good faith and fair dealing; and Any and all other legal theories which may be found through discovery and proven at trial in this matter, including but not limited to, bad faith adjusting. XIX. Westchester, Essex and Landmark have committed other acts of negligence, breach of contract, and breach of its duty of good faith and fair dealing, all of which will be shown and proven at the trial of this matter. XX. As a result of Westchester, Essex and Landmark’s actions, Plaintiffs have suffered the following nonexclusive list of damages: 5
Case 1:11-cv-00277-KD-B Document 1
Filed 05/27/11 Page 6 of 7
a. b. c. d. e. f. g. h. i. j.
Loss of use of insured property; Loss of enjoyment of insured property; Loss of business income; Loss of movable goods; Diminution in value of the property; Permanent repair and remediation expenses; Temporary repair and remediation expenses; Attorney’s fees; Costs of this litigation; and All other losses that will be proven at the trial of this matter. XXI.
Plaintiffs reserve the right to supplement and amend this Complaint for Damages. XXII. Plaintiffs pray for trial by jury. WHEREFORE, plaintiffs herein, Delaney Development, Inc., Delaney’s, Inc. and Cabana Apartments pray that the defendants, Westchester Surplus Lines Insurance Company, Essex Insurance Company and Landmark American Insurance Company be served with a copy of this Complaint and be duly cited to appear and answer the same, and that after expiration of all legal delays and due proceedings, there be judgment rendered in favor of Plaintiffs and against Defendants, in an amount that will fully compensate Plaintiffs for its damages pursuant to the evidence and in accordance with the law; all sums with legal interest thereon from the date of judicial demand until fully paid, for all costs of these proceedings, and for all general and equitable relief. 6
Case 1:11-cv-00277-KD-B Document 1
Filed 05/27/11 Page 7 of 7
Respectfully submitted, /s/C. Bennett Long__________________ C. Bennett Long (Bar No. LON0046 ) 116 East I-65 Service Road North, Ste. A Mobile, AL 36607 Telephone: (251) 639-4100 Facsimile: (251) 476-1042 Email: bennett@lwpc.com ATTORNEY FOR PLAINTIFFS SERVICE WILL BE ISSUED VIA LONG ARM SERVICE
7
Case 1:11-cv-00277-KD-B Document 1-1
aJS44 (Rcv. l2l0?)
Filed 05/27/11 Page 1 of 1
CryIL COVER SHEET
THE REVERSE OF THE
TheJS44civilcoversheetandtheinformationcontajnedhereinneitherreplacenorsupp|ementtheflingandserv[ceolpleadingsorotherpape
\\ - !ry\- K.D *B Cc-
|,vto9a'[1u]9;o.rpq'!|tj1Qp3pp.1o.v.e.{!ttt'rl-u-t._.{-9o.nfErenceoftheUnited3iatesinSeptcmbErtoz+,isruiod c,vtl docker sheet. (sEE lNsTRUcTIoNs oN
the
roRM.)
I. (a) PLAINTIFFS -
Delaney Developmeni, Inc. and Cabana Apartments
DEFENDAIqTS
Essex lnsurance Company
(b)
county orR€sidengg 0f Fi$t Listed
Plaintiff Mobile
County ofResidence
ofFirst Listed Defendant
Moblle
USE THE LOCATTON
(EXCEPT IN U.S. PLAINTIFF CASES)
(rN u,s. PLAlNTrrF CASES ONLY)
NOTE: IN LAND CONDEMNATION CAS9S.
LAND INVOLVED.
OI'THE
t'b.At"ifiE#ttf;
b:1Tb^CglTt%'f $'dXtiEJHHtNorth,ste,A Mobile, AL 36607, (251) 5644346
Attorneys (lf Knom)
II.
0 |
BASIS
Of JURISDICTION
U3
plac.e
an'x"
in onc Box
orly)
III.
CITIZENSHIP OF PRINCIPAL
(For Diversity Cales Ool)r)
PARTIES(Ptace ar "x" in onc Box for plainrifl
and Onc Box for Defendant)
U,S. Covemment
Federal Qucstion
Plaintiff
(U.S. Oovemmsnt Not a Party)
PTF .DEF CitizcnofThisState lll il I
CitizenofAnolherSrare
lncorpor0tddorPrincipalPlace
ofBusiness tn This State
rTF DEF f, 4 d 4 O5
El
5
Cl
2 U.S.Governmont A4
Defendant
Divcnity
(lndicate Citizenship of Putics in ltcrn
AZ
d g
2
lncorporatedandPrinoipatPlaee
ofBusiness In Another Stare
lll)
Citizmorsubjectofa D3 IV. NA
E
I l0 lnsurance
3
Foreign
Notiotr
Cl 6 C, 6
D 120 Marine D l30MillcrAct
O
0
140 Negotiable lnstrrment
I50 Rcmvcry of Ov€rpaymort
& Enforcement of
n l5l M€dicarcAcl
Cl 152 Recovcry ofDefsulted
Studart Loans (Exol. Veterans) O 153 Recovery of Overparymoot of Veteran's E'ercftts Cl 160 Stockiolders' Suils D 190 Othor Conract O 195 Contrast Produ€r Liability
O 3l0Airplanc ll 362 Pcrsonal InjuryU 315 Airplane Product Med. Malpractice Liability Cl 365 Pesonal Injury tr 320 Assault, Libel & Product Liability Slander F 368 Asbestos Pcnonal O 130 Federal Employers' Iqiury hoducl Liability Liability 340Marine PERSONALPROPERTY - 3?0 Other Fraud 345 Marine Producr Liobility O 3?l Trurh in Londing 3s0MotorVchicle O 3800thdPergonal 355 Motor Vehiclc Property Damage hoduol Liability ll 385 hopcrty Damagc 360 Otler Personal Frodurt Liability
442 Ernploymcnt 443 Housing/
PERSONALINJT]RY
Pf,RSONALINJURY
610 Agriculturc 620 other Food & Drug 623 Drug Rclatod Seizur*
4?2 Arpcal 28 USC 158 423 With&awal
D
O
Ct
400 Stst€ RcspportioDmcnt 430 Burks od Banking 450 Commerce
O.4l0Antitus
28 USC r57
ofPropcrty 2l usc
630 640 650 660
881
Liquor Laws R.R. & Truck
Airline
Regs,
Occupational SafetylHealth
0 0 D
460Dcporlstiotr
470 Rackctecr Infl$enced and
Corrupt Orguizations 4S0ConsumcrCredir
Cl
O O
862 Blaok Lung (923) 863 DIwc/DIww (405(g)) 864 SSID TitIE XVI
490CablelSuTV 810 Sclcctivo Scnice
8J0 SeouritieVCommoditi€si Exchange 875 Customer Challenge
Act
720 Labor/Mgmr. RElstions ?30 Labor/Mgmt.Reponing & Disclosure Aot 740 Railway Labor Act 790 Orher Labor Litigarion Cl 791 Enpl. Rol. Inc. Security Acl
Cl
D
l2 usc
34
r0
O
196 Franshise
tr
870 Taxes (U.S. Plaintiff or Defondant) 871 IRS-Thtrd Farty 26 USC 7609
890 Other Stalutory Astiolg 891 Agricultural Acts 892 Economic Snbilizstion Act 893 Environmental Matters 894 EnerSy Allocatin Asa 895 Fresdom of Information
o g
fl 220 Foreclo9ure fl ?30 Rent Lease & Ejectrnent
O 240 Torts to Lard Ct 245 Tofl Prod$cl LiBbiliry C, 290 All Other Real ftopedy
ScnloM Hobus Corputr
530 535 540 550 555
Accommodations 444 Wclfare 445 Amer. VDisabilities. Employment
446
Gcrleral
Acl
900Appeal of Fec Deteminariol UnderEqual Access
Dcrth Penalty
Mandamus
&
Other 463 Hahcas Corpus Alien Detainee 465 Other lmmigration
Civil RiBh$
Prison Condition
Anct. wlDisabilitics.
Other
to Justice 950 Conditutionslity Stste Slarures
of
440 Orhor Civil Righls
Actio]ls
Ell
VI.
V. ORIGIN
Original
Proceeding
D 2 Removed f'rom O 3 Strtecourt
(Placc an
"X"
in Ore Box
0nly)
Ramanded from
AppellateCourt
o
4
Reinsrrred Rcopened
or El
5
ffiiffl*,fll'
CI
6
fliiltlff*, a 7
to District from
$tatute under which you are
filing (Do lof clte
Jtrtutes ualisc divcrsity):
CAUSE OF ACTION
Briefdescription of cause: CHECK IF TI.IIS IS A CLASS T.INDER F.R.C.P.23
(Saa insBuctions):
ESTED IN COMPLAINT: vrII. RELATED CASE(S) IF ANY
ACTION
DEMAND $
CHECK YES only if demanded in oomplainr:
JURYDEMAND: dYes trNo
DOCKETNUMBER
a5n7no1t
FOR OFFICE USE ONLY
RECEIPT#
AMOIJNT
APPLYING IFP
MAG, JUDGE

Published under a Creative Commons License By attribution, non-commercial
AttachmentSize
Delaney Development, Inc et al v. Essex Insurance Company Complaint.pdf357.38 KB

Like us on facebook!