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FISERV SOLUTIONS INC v. WESTCHESTER FIRE INSURANCE COMPANY et al Complaint

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN ) ) ) ) Plaintiff ) ) vs. ) ) WESTCHESTER FIRE INSURANCE ) COMPANY, ENDURANCE AMERICAN ) SPECIALTY INSURANCE COMPANY, ) XL SPECIALTY INSURANCE COMPANY, ) WESTCHESTER SURPLUS LINES INSURANCE ) COMPANY, and ILLINOIS NATIONAL ) INSURANCE COMPANY ) ) Defendants. ) ) FISERV SOLUTIONS, INC.
Civil Action No
Jury Trial Demanded
COMPLAINT Plaintiff, Fiserv Solutions, Inc. (“Fiserv”) files this Complaint against Defendants Westchester Fire Insurance Company (“ACE Westchester” or “ACE”), Endurance American Specialty Insurance Company (“Endurance”), XL Specialty Insurance Company (“XL”), Westchester Surplus Lines Insurance Company (“ACE Westchester Surplus”), and Illinois National Insurance Company (“Illinois”) and states and alleges as follows: INTRODUCTION 1. This is an insurance coverage action. ACE Westchester issued to Fiserv Policy
No. G24079375001, with a Policy Period of July 1, 2009 to July 1, 2010 and an Extended Reporting Period of July 1, 2010 to December 11, 2015 (the “ACE Primary Policy”). A true and correct copy of the ACE Primary Policy is attached hereto as Exhibit 1. Through this action, Fiserv seeks to hold ACE accountable for breaching its “duty to defend” Fiserv under the ACE
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Primary Policy by requiring it to: (a) reimburse Fiserv in full for its past defense costs and to pay Fiserv’s future defense costs as a third party defendant in Bank of America, N.A. v. United General Title Insurance Co. et al. v. Fiserv Solutions, Inc., et al., No. 10-CVS-5415 (the “First American Action”), in which United General Title Insurance Company and First American Title Insurance Company (collectively “First American”) filed a Third Party Complaint against Fiserv alleging errors and omissions in its provision of professional services and seeking an amount exceeding the total limits of the primary and excess policies at issue; and (b) pay the full amount of any reasonable settlement Fiserv may elect to enter at or prior to or following a final mediation session in the First American Action scheduled for August 24-26, 2011 before mediator Eric Green. In the alternative, Fiserv seeks from ACE and the Defendant excess insurers indemnification up to the limits of the respective policies issued by Defendants for any settlement or judgment, as well as costs of defense. 2. On December 13, 2010, after months of delay, and after retaining coverage
counsel and, upon information and belief, carefully considering whether ACE owes coverage and with full expectation that Fiserv would rely upon ACE’s coverage position, ACE formally acknowledged its defense obligations for the First American Action under the ACE Primary Policy in a letter from ACE’s coverage counsel stating “ACE will defend the claims.” 3. Over the past six months, despite ACE’s express acknowledgement of its
coverage obligations and repeated requests from Fiserv, ACE has refused and persisted in its refusal to defend Fiserv, to reimburse Fiserv for its incurred defense costs, or to pay its defense costs on an ongoing basis.
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4.
Upon information and belief, Defendants Endurance, XL, ACE Westchester
Surplus, and Illinois (collectively “Excess Insurers”), following ACE or independently, also now are disputing coverage. PARTIES 5. Plaintiff Fiserv Solutions, Inc. is a Wisconsin corporation with its principal place
of business located in Wisconsin. 6. Upon information and belief, Defendant Westchester Fire Insurance Company is a
New York corporation that is licensed to and does engage in insurance business in Wisconsin. 7. Upon information and belief, Defendant Endurance American Specialty Insurance
Company is a Delaware corporation that is licensed to and does engage in insurance business in Wisconsin. 8. Upon information and belief, Defendant XL Specialty Insurance Company has a
principal place of business in New York and is licensed to and does engage in insurance business in Wisconsin. 9. Upon information and belief, Defendant Westchester Surplus Lines Insurance
Company is a Georgia corporation that is licensed to and does engage in insurance business in Wisconsin. 10. Upon information and belief, Defendant Illinois National Insurance Company is
an Illinois corporation that is licensed to and does engage in insurance business in Wisconsin.
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JURISDICTION AND VENUE 11. Federal subject matter jurisdiction exists under 28 U.S.C. § 1332 in that the
named parties to this action are of completely diverse citizenship and the amount in controversy exceeds $75,000.00, exclusive of interests and costs. This Court has personal jurisdiction over ACE, Endurance, XL, ACE Westchester Surplus, and Illinois because, upon information and belief, they are licensed to do business and conduct business in Wisconsin. 12. Venue is proper in this District pursuant to 28 U.S.C. § 1391(a) and (b) because
this District has personal jurisdiction over all named Defendants and a substantial part of the events or omissions giving rise to the claim occurred in this District. FACTUAL BACKGROUND The ACE Primary Policy. 13. The ACE Primary Policy provides Fiserv with $10 million in insurance coverage
excess of a $250,000 retention. 14. The insuring agreement for the ACE Primary Policy requires ACE to pay
“Damages” and “Claims Expenses” by reason of a “Claim” first made against the “Insured” and reported to the “Company” during the “Policy Period” for any “Wrongful Acts” taking place after the “Retroactive Date” and prior to the end of the “Policy Period.” (Exh. 1, ACE Primary Policy at Section I.A, Insuring Agreement). 15. ACE has the “duty to defend any covered Claim brought against the Insured even
if the Claim is groundless, false or fraudulent.” (Exh. 1, ACE Primary Policy at Section I.B, Defense).
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16.
The ACE Primary Policy provides the following relevant definitions:
“Claim” means: a. a written demand against any “Insured” for monetary or non-monetary damages; b. a civil proceeding against any “Insured” seeking monetary damages or non-monetary or injunctive relief, commenced by the service of a complaint or similar pleading…. “Claims Expenses” means: 1. reasonable and necessary attorneys’ fees, expert witness fees and other fees and costs incurred by the “Company”, or by the “Insured” with the “Company’s” prior written consent, in the investigation and defense of a covered “Claim”…. “Wrongful Acts” means: “any actual or alleged negligent act, error, omission, misstatement, misleading statement or Personal Injury Offense committed by the Insured or by any other person or entity for whom the Insured is legally liable in the performance of or failure to perform Professional Services.” “Professional Services” means “[services] [s]olely in the performance of providing Real Estate Loan Servicing to Financial Institutions:…Title Searches; Title Agent; Title Insurance; QuickClose Title or similar products… and related consulting services for others for a fee or other consideration.” (Exh. 1, ACE Primary Policy at Section II, Definitions and Item 7 of the Declarations). The Excess Policies. 17. Endurance, XL, ACE Westchester Surplus, and Illinois (collectively “Excess
Insurers”) each issued excess follow-form professional liability insurance policies (collectively the “Excess Policies”) in excess of the ACE Primary Policy for the same time periods.
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18.
Endurance issued to Fiserv Policy No. PEL 10001493300 (the “Endurance
Policy”) which provides insurance coverage in excess of the “Underlying Limit of Liability” of the ACE Primary Policy and any applicable retentions. 19. XL issued to Fiserv Policy No. ELU112306-09 (the “XL Policy”) which provides
insurance coverage in excess of the ACE Primary and Endurance Policies. 20. ACE Westchester Surplus issued to Fiserv Policy No. G24079715 001 (the “ACE
Westchester Surplus Policy”) which provides insurance coverage in excess of the ACE Primary, Endurance, and XL Policies. 21. Illinois issued to Fiserv Policy No. 02-840-22-20 (the “Illinois Policy”) which
provides insurance coverage in excess of the ACE Primary, Endurance, XL, and ACE Westchester Surplus Policies. 22. Fiserv has complied with all applicable conditions of the Primary and Excess
Policies, and no exclusions operate to excuse the Defendants’ obligation to pay for the defense of the First American Action. ACE’s Breach of Its Duty To Defend. 23. After a number of phone calls and email communications between Fiserv’s
counsel and ACE ’s claim consultant, Mr. Anthony Burrows, regarding the First American Action beginning on or about July 30, 2010, ACE informed Fiserv on September 17, 2010 that the law firm of Lloyd, Gray, Whitehead, Monroe (“LGWM”) had been retained by ACE to serve as its coverage counsel. 24. 25. ACE issued a Reservation of Rights (“ROR”) letter dated October 26, 2010. After additional communications, ACE, through its counsel LGWM, issued a
December 13, 2010 letter confirming “ACE will defend the claims.” Through this letter, ACE
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requested information about the counsel Fiserv had retained to defend the First American Action, which Fiserv provided by letter dated December 17, 2010. Thereafter, Fiserv provided to ACE defense cost information and other information about the First American Action. 26. Nonetheless, ACE delayed and ultimately refused to pay defense costs incurred
(and being incurred) by Fiserv. At all times since expressly accepting its duty to defend Fiserv on December 17, 2010, ACE has abandoned Fiserv and left it to defend itself. 27. More than six months have passed since ACE stated “ACE will defend the
claims” during which time Fiserv has defended itself at great expense and uncertainty as to coverage. Shortly after responsive pleadings were filed in the First American Action, the parties agreed to mediate before nationally respected mediator Eric Green, whose selection ACE approved. The parties are co-operatively following, as ACE and the Excess Insurers are aware, a multisession protocol set by mediator Green. One session took place on June 14-15, 2011. Another session, which insurers are invited and encouraged to attend, is set for July 25-26, 2011. The final mediation session, at which mediator Green is requiring the attendance of all insurers, has been set for August 25-27, 2011. Without the participation of Fiserv’s insurers in these mediation proceedings, and certainty with respect to coverage, Fiserv will continue to be severely prejudiced both in: (a) proceeding in the mediation; and (b) defending itself in the event a settlement is not possible. COUNT I – DECLARATORY JUDGMENT AGAINST ACE 28. Fiserv hereby incorporates the allegations in the foregoing paragraphs 1 through
27 as if the same were set forth herein. 29. An actual and justiciable controversy exists between Fiserv and ACE with respect
to ACE’s duties and obligations under the ACE Primary Policy, including ACE’s obligation to provide coverage for the First American Action and duty to defend and reimburse Fiserv for -7Case 2:11-cv-00603-CNC Filed 06/22/11 Page 7 of 12 Document 1
Claims Expense (defense costs) incurred and to be incurred in connection with the First American Action. 30. Pursuant to 28 U.S.C. §§ 2201 and 2202, and Federal Rule of Civil Procedure 57,
Fiserv seeks a judicial determination and declaration that ACE must provide coverage for the First American Action, owes Fiserv a duty to defend the First American Action and must reimburse Fiserv for the Claims Expenses Fiserv has incurred to date and pay future Claims Expenses Fiserv will incur. COUNT II –BREACH OF CONTRACT AGAINST ACE 31. Fiserv hereby incorporates the allegations in the foregoing paragraphs 1 through
30 as if the same were set forth herein. 32. The ACE Primary Policy is a valid and enforceable contract of insurance, for
which all premiums have been paid. 33. Fiserv has performed all of its obligations under the ACE Primary Policy, and any
and all conditions precedent to Fiserv’s rights under that policy respecting the First American Action have been satisfied or waived. 34. Pursuant to the terms and conditions of the ACE Primary Policy, ACE has
breached its duty to defend Fiserv against third party claims in the First American Action. 35. As a direct and proximate cause of ACE’s breach, Fiserv has been left to defend
itself in the First American Action and has suffered damages in excess of $75,000, exclusive of interests and costs, in an amount to be determined at trial. Additionally, ACE’s breach has and continues to severely prejudice Fiserv’s negotiating position and ability to resolve the First American Action and defense in the First American Action. Accordingly, Fiserv seeks as damages from ACE the full amount of whatever reasonable settlement Fiserv may elect to reach in the First American Action. -8Case 2:11-cv-00603-CNC Filed 06/22/11 Page 8 of 12 Document 1
COUNT III –DECLARATORY JUDGMENT AGAINST THE EXCESS INSURERS 36. Fiserv hereby incorporates the allegations in the foregoing paragraphs 1 through
35 as if the same were set forth herein. 37. Upon information and belief, the Excess Insurers also assert that they may owe no
coverage for the First American Action. 38. An actual and justiciable controversy exists between Fiserv and each of the
Excess Insurers with respect to whether coverage may be owed for any amounts incurred in either Claims Expense or any settlement or judgment that exceeds the $10 million limit of the ACE Primary Policy. 39. Pursuant to 28 U.S.C. §§ 2201 and 2202, and Federal Rule of Civil Procedure 57,
Fiserv seeks a judicial determination and declaration that the First American Action properly falls within the coverage afforded by the Excess Policies to the extent Claims Expense and/or any settlement or judgment exceed the limits of the ACE Policy and any underlying excess policy. COUNT IV –BREACH OF THE IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING AGAINST ACE 40. Fiserv hereby incorporates the allegations in the foregoing paragraphs 1 through
39 as if the same were set forth herein. 41. The ACE Primary Policy is a valid and enforceable contract of insurance, for
which all premiums have been paid. 42. Fiserv has performed all of its obligations under the ACE Policy, and any and all
conditions precedent to Fiserv’s rights under that policy respecting the First American Action have been satisfied or waived.
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43.
Pursuant to the terms and conditions of the ACE Primary Policy, ACE is required
to provide coverage to Fiserv for “Claims Expenses” incurred in connection with the First American Action. 44. ACE belatedly recognized its obligations under the ACE Primary Policy and
accepted its duty to defend Fiserv in the First American Action. 45. Despite accepting its duty to defend, ACE continued to delay the provision of
coverage and ultimately wrongfully failed and refused to defend Fiserv or reimburse Fiserv for the Claims Expenses Fiserv has incurred and will incur in the First American Action. 46. ACE’s conduct constitutes a breach of the implied duty of good faith and fair
dealing contained in the ACE Primary Policy. 47. ACE has no reasonable basis for refusing to defend Fiserv and/or to reimburse
Fiserv for the Claims Expenses Fiserv has incurred or will incur in the First American Action or has acted in reckless disregard of whether there is a basis for refusing to reimburse Fiserv. 48. As a direct and proximate cause of the aforesaid actions by ACE, Fiserv has
suffered damages in excess of $75,000, exclusive of interests and costs, in an amount to be determined at trial. WHEREFORE, Fiserv respectfully request that this Court enter judgment in its favor and against Defendants as follows: (1) With respect to ACE under Count I, a judicial determination and declaration that
the First American Action is covered under the ACE Primary Policy and ACE owes Fiserv a duty to defend the First American Action and must reimburse Fiserv for the First American Action Claims Expenses Fiserv has incurred to date and pay future Claims Expenses Fiserv will incur.
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(2)
With respect to ACE under Count II, an amount in excess of $75,000, exclusive
of interests and costs, to be determined at trial. (3) With respect to the Excess Insurers under Count III, a judicial determination and
declaration that the First American Action properly falls within the coverage afforded by the Excess Policies to the extent Claims Expense and/or any settlement or judgment exceed the limits of the ACE Primary Policy and any underlying Excess Policy. (4) With respect to ACE under Count IV, an amount in excess of $75,000, exclusive
of interests and costs, to be determined at trial. (5) With respect to all Counts: (a) (b) (c) prejudgment and post judgment interest; costs; and such other and further relief as the Court may deem just and proper.
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JURY DEMAND Fiserv hereby demands a trial by jury for all issues so triable that are raised in this Complaint. Dated this 22nd day of June 2011. Respectfully submitted, MICHAEL BEST & FRIEDRICH LLP
By: s/Amy L. Vandamme Amy L. Vandamme, SBN 1029784 Melissa H. Burkland, SBN 1071443 100 East Wisconsin Avenue, Suite 3300 Milwaukee, WI 53202 Tel. (414) 271-6560 Fax (414) 277-0656 Email: alvandamme@michaelbest.com mhburkland@michaelbest.com REED SMITH LLP Matthew J. Schlesinger Nathan R. Fennessy 1301 K St., N.W., Suite 1100 Washington, D.C. 20005 Tel. (202) 414-9200 Fax (202) 414-9299 Email: mschlesinger@reedsmith.com nfennessy@reedsmith.com
Counsel for Plaintiff Fiserv Solutions, Inc.
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