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HOSPITALITY ENTERPRISES, INC. et al v. WESTCHESTER SURPLUS LINES INSURANCE COMPANY et al 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.

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Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 1 of 23
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ORIGINAL
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CIVIL DISTRICT COURT FOR THE PARISH OF ORL~~~ 'j.(
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STATE OF LOUISIANA
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HOSPITALITY ENTERPRISES, INC. AND GARDEN DISTRICT HOTEL ON ST. CHARLES AVENUE, LLC VERSUS
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WESTCHESTER SURPLUS LINES INSURANCE COMPANY, D E INVESTMENTS, INC. d/b/ a SERVPRO OF NORTH KENNER, HARAHAN AND LAKEVIEW, and SEWAGE AND WATER BOARD OF NEW ORLEANS FILED: _ _ _ _ _ _ _ __ DEPUTY CLERK
PETITION FOR DAMAGES
NOW INTO COURT, through undersigned counsel, come Plaintiffs, GARDEN DISTRICT HOTEL ON ST, CHARLES AVENUE, LLC, a domestic limited liability company capable of suing and being sued and HOSPITATILITY ENTERPRISES, INC., a domestic corporation, capable of suing and being sued, both entities domiciled in the Parish of Orleans State of Louisiana who aver as follows'
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Made Defendants, jointly and in solido, are: (a) WESTCHESTER SURPLUS LINES INSURAN@E'COMPPrNY ; ~hl!reinafter
REC£IPW
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DATE: 1211312010 at 15H2
PRICE
PAID
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referred to at times as "WESTCHESTER") is now, and at all times relevant to this action was, a foreign insurer, authorized to do and doing businesffIN~;~A8'iiLouis.~~a;.,
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D E INVESTMENTS, INC. d/b/a SERVPRo,~9tIi ~~~tH K1B~R,
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HARAHAN AND LAKEVIEW (hereinafter referred tqqT~! f~E i¥l21)i'9..~prot~}~~~
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domestic corporation, organized under the laws of the Sta~l9.~ ~Hi~I).w,hich lists its principal place of business with the Louisiana SecretarY:=~t~~~=:!~=,fu,~J;'Mi~h=9f
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Ouachita, State of Louisiana but with its principal place of business in fact located in the Parish 9f Jefferson, State of Louisiana; and (c) SEWAGE AND WATER BOARD OF NEW ORLEANS, (hereinafter
EXHIBIT
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D~Pli~V e!erk \~ \ 9~ \ )0 l
Psrry ,A. Barb~rin . Sr
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 2 of 23
sometimes referred to' as "SWB"), a domestic body corporate created by statute, la. RS.
§ 33:4071 et seq., with the attributes of a corporation and capable of suing and being
sued, with its principal place of business in Orleans Parish, Louisiana.
2.
At all times pertinent hereto, Westchester held out a Commercial Property Policy (policy number 036082653 003) with additional coverages, including but not limited to water damages, sprinkler .leakage, building damages, business personal property and other losses listed in the policy, in favor of Plaintiffs, Garden District Hotel on St. Charles Avenue, LLC and Hospitality Enterprises, Inc., in full force and effect, providing coverage to Plaintiffs, under the terms and conditions of which it contractually agreed to indemnify Plaintiffs for the losses and damages asserted herein. Plaintiffs allege all coverages listed in the policy identified herein as if copied in extenso.
3.
On or about January 7, 2010, the sprinkler system at the Garden District Hotel located at 2203 st. Charles Avenue, New Orleans, Louisiana (hereinafter referred to as the "Hotel"), malfunctioned, causing sprinkler leakage and water damages to the building, ceilings walls, floors, contents, equipment, supplies, materials, and other items of the Hotel.
4.
Plaintiffs sustained extensive damages to the Hotel and are entitled to additional sums for loss of use and other reimbursable damages at the insured premises. Although Westchester inspected the property and eventually made payment for Plaintiffs' losses, Plaintiffs have received inadequate compensation from Westchester, their insurer.
5.
Plaintiffs provided timely notice of the loss. On or about January 7, 2010, Plaintiffs contacted their agent Eustis to report the subject incident. Upon information and belief, Eustis reported the incident to Westchester that evening. On January 8, 2010, a formal claim was initiated under the subject policy.
2
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 3 of 23
6.
On January 11, 2010, Westchester informed Plaintiffs that it had retained Engle Martin to adjust the claim.
7.
On January 14, 2010, Engle Martin's adjuster inspected the premises and determined that there were extensive damages caused by sprinkler leakage.
8.
On January 19, 2010, Westchester caused another adjuster to inspect the Hotel for the purported purpose of doing a formal appraisal of damages. This adjuster
completed his work the same day and said he would report his findings to Westchester the following week. 9. Upon information and belief, Westchester's second representative did not complete his work in a timely fashion, and Westchester delayed completion of the adjusting process and failed to make any payment on Plaintiffs' insured loss for many months. 10. During the inspections, both claims representatives questioned Plaintiffs' representatives about issues that falsely implied coverage issues where none existed.
11.
On February 11, 2010 a representative of Westchester telephoned Plaintiffs' representative and informed her that a letter would be sent, stating that Westchester was reserving its rights to contest coverage and claiming that coverage was not established for Plaintiffs' claim. 12. No reservation of rights letter was ever sent, and Plaintiffs never received any communication from Westchester indicating that coverage was disputed.
3
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 4 of 23
13. For the sole purpose of avoiding and delaying payment and other unfair settlement advantages, from February 11, 2010 until September 2010, Westchester continued to claim that it needed further documentation of central station water flow alarm monitoring before it could make any payment on Plaintiffs' claim.
14.
Plaintiffs' policy provides for a CENTRAL STATION WATER FLOW ALARM. However, exclusions related to the alarm apply solely to fire losses and not to the damages sustained by Plaintiffs.
15.
Plaintiffs' policy contained a Vacancy Permit for which Plaintiff paid an additional premium. 16. By virtue of the Vacancy Permit, no exclusions claimed by Westchester applied to Plaintiffs' claims for water damages from sprinkler leakage. 17. At all pertinent times between February 11, 2010 and September 29, 2010, Westchester and its representatives misrepresented policy provisions and the scope of insurance coverage for the sole purpose of avoiding and/ or delaying rightful payment of Plaintiffs' claims. 18. Defendant Westchester had Notice and Proof of Loss of Plaintiffs' claims at least by January 19, 2010 and despite repeated demand for payment, unjustifiably refused to make any payment to Plaintiffs until September 29, 2010, when it tendered the sum of $108,339.70. 19. The sum paid by Westchester was grossly inadequate to compensate Plaintiffs for losses sustained at the hotel.
4
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 5 of 23
20.
Plaintiffs have sustained consequential damages as a result of Westchester's misconduct. Further, due to Westchester's failure to fulfill its contractual obligations, Plaintiffs were forced to incur the expense of retaining an attorney and experts, as well as court costs to obtain fair compensation under the policy.
COUNT I. BREACH OF CONTRACT AGAINST WESTCHESTER
21. Plaintiffs adopt and incorporate by reference all of the allegations in the foregoing paragraphs as if fully set forth herein.
22.
Westchester has failed and refused to provide Plaintiffs with the recovery to which Plaintiffs are entitled for insured losses resulting from a covered cause of loss. Westchester has breached the express terms and conditions of the Commercial Property Policies and has otherwise denied Plaintiffs the insurance coverage provided by the Commercial Property Policy.
23.
Westchester has been arbitrary, capricious, and without probable cause, in delaying payment, failing to complete the inspection and adjustment process timely, raising false issues regarding coverage and failing to make a reasonable offer to satisfy the claim.
24.
La.R.S. 22:1892 provides that "except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within fourteen days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in RS. 22:1973."
25.
Westchester failed to take substantial and affirmative steps to initiate the loss adjustment process of the Commercial Property Insurance Policy claim within the legal
5
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 6 of 23
delays allowed of notification of the loss.
26.
La. RS. 22:1973, (fonnerly RS. 22:1220) provides that an insurer "owes to his
insured a duty of good faith and fair dealing," and provides that the insurer "has an affinnative duty to adjust claims fairly and promptly, and to make a reasonable offer to settle claims with the insured." The statute further provides that "any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach." 27. La. RS. 22:1973 further provides that an insurer who breaches their duties is liable for, in addition to any general or special damages, a penalty equal to the greater of two times the damages sustained or $5,000.00. 28. Pursuant to La. RS. 22:1892 & 1973, Westchester is obligated to pay Plaintiffs the amount of actual damages sustained, plus a penalty of two times the actual damages sustained by Plaintiff. 29. Westchester has wrongfully failed to pay all sums due on the claims submitted by Plaintiffs, or, alternatively, wrongfully constructively denied the claim within the time provisions established by La. RS. 22:1892 and La. RS. 22:1973. In so doing, Westchester has breached the express terms and conditions of the Commercial Property Policy and has otherwise denied Plaintiffs the insurance coverage promised by Westchester in a manner that has been arbitrary, capricious and without probable cause. 30. Further, Westchester has acted without reasonable basis or justification and in contravention of their duty of good faith and fair dealing in handling Plaintiffs' claims, namely: a. It has unreasonably and intentionally refused to pay benefits to which
6
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 7 of 23
Plaintiffs are entitled under the terms of the Commercial Property Insurance Policy; b. It has unreasonably and intentionally delayed payments to which Plaintiffs are entitled under the terms of the Commercial Property Insurance Policy; c. It has intentionally failed to conduct a reasonable investigation into the claim reasonably based on all available information, to reasonably evaluate and review the information, and to make reasonable and timely efforts to settle the claims; d. It has no reliable knowledge or information upon which to substantiate a constructive denial of Plaintiffs' claims; e. The methodology used by Westchester to determine plaintiffs' losses is
contrary and offensive to "public policy" in Louisiana; and f. It has not accounted for the increased costs of labor, services, raw materials, and other construction necessities due to economic conditions in the geographic location of the Gulf Coast Region following recent catastrophic events in their property loss calculations, despite coverage provided in the Commercial Property Policy for "replacement costs." 31. Westchester acted with actual knowledge or with reckless disregard of the lack of a reasonable basis in denying the claims, delaying full payment of all portions of the claim, failing to make reasonable attempts to settle all portions of the claim, and/ or failing to conduct a reasonable investigation into all portions of the claim and failing to reasonably evaluate the available information. 32. Westchester, through its agents, contractors and others for which it is responsible committed the following non-exclusive unfair settlement practices enumerated in LRS 22:1214, all of which give rise to liability under LRS 22:1892 and 22:1973, to wit: (a) Misrepresented pertinent facts or insurance policy provisions relating to
7
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 8 of 23
coverages at issue;
(b) Failed to acknowledge and act reasonably promptly upon communications
with respect to claims arising under insurance policies; (c) Failed to pay claims without conducting a reasonable investigation based upon all available information; (d) Failed to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed; (e) Not attempting in good faith to effectuate prompt, fair, and equitable settlements of Plaintiffs' claim after liability became reasonably clear;
(f) Compelling Plaintiffs to institute litigation to recover amounts due under
their insurance policy by ignoring obvious damages and tendering an unreasonable sum as "full payment"; (g) Failed 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;
(h) Other unfair settlement practices enumerated within 22:1214 learned in
Discovery.
33.
As a direct result of Westchester's bad- faith conduct and unfair settlement practices, Plaintiffs have suffered compensatory damages in an amount not yet ascertained, and will continue to suffer damages, including, but not limited to, lost business opportunities and income, other business losses associated with unfair payment and delay in payment, consequential damages and any costs and attorneys' fees that may be incurred in maintaining this action.
34.
Plaintiff is entitled to recover from Westchester all losses, including costs and attorney's fees, caused by Westchester's breach of contract and state law.
8
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 9 of 23
35.
Westchester intentionally breached its duty of good faith owed to Plaintiffs under La. RS. § 22:1973.
36.
Pursuant to La. RS. 22:1892, Westchester is obligated to pay Plaintiff proper coverage under the Commercial Property Policy, plus a penalty of 50% of the amount due, as well as reasonable attorneys' fees and costs. 37. La.RS. 22:1973 provides that an insurer "owes to his insured a duty of good faith and fair dealing" and provides that he insurer "has an affirmative duty to adjust claims fairly and promptly, and to make a reasonable offer to settle claims with the insured." The statute further provides that "any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach." 38. La. RS. 22:1973 specifically provides among the actions breaching the insurer's duties set forth above are: a. "Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue," or b. "Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause." La. RS.22:1973. 39. The statute further provides that an insurer who breaches this duty is liable for, in addition to any general or special damages, a penalty equal to the greater of two times the damages sustained or $5,000.00.
40.
Pursuant to La. RS. 22:1973, Westchester is obligated to pay Plaintiffs the 9
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 10 of 23
amount of actual damages sustained, plus a penalty of two times the actual damages sustained by Plaintiffs.
COUNT II. CLAIMS FOR BREACH OF CONTRACT AND NEGLIGENCE AGAINST D E INVESTMENTS, INC. (SERVPRO) 41.
Plaintiffs adopt and incorporate by reference all of the allegations in the foregoing paragraphs as if fully set forth herein. 42. On January 8, 2010, less than 24 hours after the subject incident, Plaintiffs' representatives contracted with Servpro to remediate all water damages caused by the January 7, 2010 sprinkler leakage. Servpro, through its agents, employees and others for whom it is responsible, commenced work that date and worked through about noon on January 9, 2010.
43.
Despite undertaking the obligation to properly remediate the damages, Servpro committed the following acts and/ or omissions of negligence, including, to wit: (a) Failed to properly investigate the damages; (b) Failed to adequately dry all areas of damage; (c) Failed to remove wet carpet and drywall; (d) Failed to use proper moisture detection methods; (e) Failed to use proper equipment to dry the damages;
(f) Made unsuitable recommendations to Plaintiff concerning the scope of work
required; and (g) Other acts and omissions of negligence to be adduced at trial. All negligent acts and/ or negligent omissions enumerated above occurred in the Parish of Orleans, State of Louisiana and constitute actionable breaches of the contract with Plaintiffs and Servpro's obligations of due care.
10
Case 2:11-cv-00234-EEF-DEK Document 1-1
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44.
The negligence of Servpro, its agents, employees and others for whom it is responsible under respondeat superior and master/servant liability, proximately caused and exacerbated damages to the building caused by the January 7, 2010 incident.
45.
Plaintiffs paid Servpro to make suitable recommendations and to properly remediate all water damages at the premises of the Hotel in a commercially acceptable manner, a task which said defendant agreed to undertake and in bad-faith failed to perform under the contract thereby breaching the contract and casting Servpro liable unto Plaintiffs for all compensatory and consequential damages. 46. The allegations made against Servpro arise out of the January 7, 2010 incident, and the facts, damages, witnesses and evidence inextricably overlap with Plaintiffs' claims against Westchester such that said claims involve a community of interests which, for purposes of judicial consistency and economy, should be tried in the same proceeding.
47.
Westchester has made partial payment to Plaintiffs and upon belief and information may be legally and contractually subrogated to Plaintiffs' rights against D E Investments, Inc. for the sum of Westchester's partial payment.
COUNT III. CLAIMS FOR NEGLIGENCE AGAINST SEWAGE AND WATER BOARD OF NEW ORLEANS 48.
Plaintiffs adopt and incorporate by reference all allegations and facts contained in the preceding paragraphs as if set forth fully herein.
49.
Defendant Sewage and Water Board of New Orleans ("SWB") is a statutorily created body corporate charged with constructing, controlling, maintaining, and 11
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 12 of 23
operating the public water and drainage system of the city of New Orleans under La.
R.S. § 33:4071.
50. At all pertinent times, SWB controlled, maintained and operated the water and drainage system supplying water to the insured premises and owed a duty to Plaintiffs to provide water and drainage services to the insured premises at a reasonable pressure to avoid causing damage to the insured premises. 51. Based on information and belief, defendant SWB through its agents, employees, representatives, and/ or designees negligently failed to monitor and control the water pressure to the insured premises, causing the sprinkler system to fail resulting in significant damages to the Hotel.
WHEREFORE, Plaintiffs, Hospitality Enterprises, Inc. and Garden District Hotel on
st.
Charles Avenue, LLC, demand judgment against Defendants, WESTCHESTER
SURPLUS LINES INSURANCE COMPANY, D E INVESTMENTS, INC., and SEWAGE AND WATER BOARD OF NEW ORLEANS, jointly and in solido, for such damages as are reasonable and/or proven at trial, including payment for compensatory damages, consequential damages, statutory penalties, costs, and attorneys' fees, legal interest from date of judicial demand and for such further relief as the Court deems just and proper. Respectfully submitted,
61) ea nover (Bar No.2 39) Wesley . Barr (Bar No. 32332) 400 Poydras Street, Suite 1980 New Orleans, LA 70130 Telephone: (504) 587-1440 Facsimile: (504) 587-1577 Counsel for Plaintiffs. Hospitalittj Enterprises, Inc. and Garden District Hotel on St. Otarles Avenue
Kir
12
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 13 of 23
PLEASE SERVE:
(1) WFSTCHFSTERSURPLUS LINES INSURANCE COMPANY, THROUGH ITS DESIGNATED AGENT FOR SERVICE OF PROCESS:
Louisiana Secretary of State
(2) D E INVESTMENTS, INC.,
THROUGH EITHER OF ITS DESIGNATED AGENTS FOR SERVICE OF PROCESS: H.E. AYDLETT, JR.
1917 OLIVE ST.
MONROE, LA 71201 OR DONALDE. LEGG
1917 OLIVE ST.
MONROE, LA 71201 (3) SEWAGE AND WATER BOARD OF NEW ORLEANS THROUGH ITS LEGAL DEPARTMENT:
625 st. Joseph Street New Orleans, LA 70165
13
Case 2:11-cv-00234-EEF-DEK Document 1-1
TO:
COMMISSIONER'INSURANCE P.O. BOX 94214 BATON ROUGE, LA 70804
Filed 02/03/11 Page 14 of 23
FROM: CLERK OF COURT, PARISH OF ORLEANS RE:
R.S. 9.2800.7
REPORTING FORM - PERSONAL INJURY
Section A shaft be obtained by the Clerk of Court at the time suit is filed and submitted to the Commissioner of Insurance within 30 days of filing. Section A shaN be completed at the time Judgment becomes definitive.
A.
1.
INITIAL INFORMATION Caption of Suit:
HOSPITALITYENTERPRISES,INC.
ET AL
vs
,
WESTCHESTER SURPLUS LINES INSURANCE COMPANY ETAL a) c) e) Parish: ORLEANS CDC b) Docket No,: Fifing Date:
2010-12413 1211312010
Judicial District Type Suit
d)
11 Auto - Bodily Injury 2. Uninsured Motorist 3. -Govemment Uability 4. X General Uabllity 5. -Products Uability 6. Redhibition
-
7.
Professional Uabitity - a . Medical - b . Legal c. Architectural - d . Accounting e. Engineering 8. -Other
2.
Nature of Injuries (If Ascertainable from Petition):
Section B shan be obtained by the Clerk of Court and subrriltted to the CommisSIoner of Insurance within 30 days of deffnitlve judgment (Section A (1)a - c must also be completed In order to accurately report.) B. JUDGMENT INFORMATION
1.
Judgment by Merit Tna!: a) Judge b) c) For the Plaintiff
Jury
Judgment awarded, ellClusive of interest and costs:
-
For the Oefendant
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.
- 0- 0·- but less than $10,000 $10;000 but less than 525,000 $25,000 but less than $50,000 - - ,$50,000 but'less than~100,OOO $100,000 but less than $250,000 $250,000 but less than $500,000 $500,000 but less than $750,000 $750,000 but less than $1,000,000 $1,000,000 but less than $2,000,000 $2,000,000 or more
Appeal Entered
b) No Appeal Entered
2.
Appeal 'a)
Status
section C shan be completed by the Clerk of Court and submitted to the Commissioner of Insurance within 30 days Of dismISSal. C. DISMISSAL INFORMATION
1.
Date of DismisSal:
2.
WIth Prejudice
WIthOut Prejudice
D. A processing fee 01$10.00 shall be taxed as costs of court In each suit onwhlehthe Information required by this section is submllted by the Clerk of Court. Upon rendering of judgment under Section B of this form or dismisSal under Section C ofthls form, $5.00 shan be paid to the Commissioner of Insurance by the Clerk of Court and $5.00 shall be retained by the Cletk from the court costs paid in SectiorfD. CLERK OR DEPUTY CLERK CommiSSioner's Copy
ATTORNEY'S NAME: Olinde Jr, A8 20061 Case 2:11-cv-00234-EEF-DEK POYDRJII!II§TREET, SUITEFiled 02/03/11 Page 15 of 23 AND ADDRESS: 400 Document 1-1 "960
II
NEW ORLEANS
LA 70130
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA NO: 2010 - 12413
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SECTION: .-\,
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HOSPITALITY ENTERPRISES, INC.
ET AL VERSUS WESTCHESTER SURPLUS LINES INSURANCE Cb~ANY
, /) ......
,
CITATION
TO: SEWERAGE AND WATER BOARD OF NEW ORLEANS THROUGH: Irs LEGAL DEPARTMENT: 625 ST. JOSEPH STREET NEW ORLEANS YOU HAVE BEEN SUED: You must either comply with the demand contained in the petition FOR DAMAGES W/DISCOVERY ATTACHED. LA 70165
- -I
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)
"
a CE!rtified copy of which accompanies this citation, or file an answer or other legal pleading in the office of the Clerk of this Court, Room 402, Civil Courts Building, 421 Loyola Avenue, New Orleans, LA, within fifteen (15) days after the service hereof under penalty of default
... .............................•......•..•................................... --.
ADDITIONAL INFORMATION Legal assistance is advisable. If you want a lawyer and can't find one, you may call the New Orleans Lawyer Referral Service at 561- 8828. This Referral Service operates in conjunction with the New Orleans Bar Association. If you qualify, you may be entitled to free legal assistance through the New Orleans Legal Assistance Corp.; you may call 529 - 1000 for more information. • COURT PERSONNEL ARE NOT PERMITTED TO GIVE LEGAL ADVICE •••• * ••• * ••• ****.***.** •• *~.*.*.** •••••• • *.*.* •••• •
IN WITNESS HEREOF, I have hereunto set my hand and affix the seal of the Civil District Court for the Parish of Orleans. State of LA .December 22, 2010 Clerk's Office, Room 402. Civil Courts Building. 421 Loyola Avenue New Orleans, LA
*.*.-_ ......... -.. -.-_._-----.-
SHERIFF'S RETURN (for use of prJcess servers only) PERSONAL SERVICE On this. DOMICILIARY SERVICE •

1.t2/l
l.{
day of_--=J""Il-:...:...;..Jtl.....:....._ _ _ __ served a copy of the wfl petition
On this _ _ _ day of _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ served a copy of the wfl petition
FOR DAMAGES WIOISCOVERY ATTACHED.
FOR DAMAGES WIOISCOVERY ATTACHED.
On
SEWERAGE AND WATER BOARD OF NEW ORLEANS

On
SEWERAGE AND WATER BOARD OF NEW ORLEANS
THROUGH: Irs LEGAL OEPARTMENT:
THROIIGH: Irs I FoGAL DEPA.qTMENT:
same day
y?9J .
Mileage: $_ _ _ _ _ _ _ _ _ __
No.
• by leaving same at the dwelling house. or usual place of • abode. in the hands of _ _ _ _ _ _ _ _ _ _ __ a person of suitable age and discretion residing therein as a member of the domiciliary establishment, whose name and other facts connected with this service Ileamed by interrogating HIM I HER the said _ _ _ _ _ __
SEWERAGE AND WATER BOARD OF NEW ORLEANS
--------t-""l(""-- •
-~J<qI.=l/lf.AkJ.e!E'-R------'1 ENTERED I.----~t__
J
SERIAL NO .
~ (OS'
DEPUTY
being absent from the domicile at time of said service. Retumed same day No.
Dep~ySheriffof
_ _ _ _ _ _ _ _ _ __
f "' _ 4
ATTORNEY'S NAME: Olinde J Case 2:11-cv-00234-EEF-DEK POY r t l d 20061 SUITEFiled 02/03/11 Page 16 of 23 AND ADDRESS: 400 Document 1-1 STREET, 1980 NEW ORL S
LA 70130
'
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA NO:
2010 - 12413
SECTION:
7 -- E
~
'.
HOSPITALITY ENTERPRISES, INC.
ET AL VERSUS WESTCHESTER SURPLUS LINES INSURANCE COMPANY
8~
CITATION
TO: WESTCHESTER SURPLUS LINES INSURANCE COMPANY THROUGH: ITS DESIGNATED AGENT FOR SERVICE OF PROCESS: THE LOUISIANA SECRETARY OF STATE; FOR THE STATE OF LOUISIANA
...
BATON ROUGE YOU HAVE BEEN SUED:
LA
70809
You must either comply with the demand contained in the petition FOR DAMAGES W/DISCOVERY ATTACHED. a certified copy of which accompanies this citation, or file an answer or other legal pleading in the office of the Clerk of this Court, Room 402, Civil Courts Building, 421 Loyola Avenue, New Orleans, LA, within fifteen (15) days after the service hereof under penalty of default ••••••• * •• * •• * •• * ••••• ** ••••••••••••• **** •• **** •• ****.******.******.*****.**.* •• * ADDITIONAL INFORMATION Legal ~ssistance is advisable. If you want a lawyer and can't find one, you may can the New Orleans Lawyer Referral Service at 561- 8828. This Referral Service operates in conjunction with the New Orleans Bar Association. • If you qualify, you may be entitled to free legal assistance through the New Orleans Legal Assistance Corp.; you may call 529 - 1000 for more Information. • COURT PERSONNEL ARE NOT PERMITTED TO GIVE LEGAL ADVICE
**** •• **** •• *********** •• * ••• * •••••••••••••••• ** ••••••••••• *** ••••••••• ** ••••••••
IN WITNESS HEREOF, I have hereunto set my hand and affix the seal of the Clv" District Court for the Parish of Orleans, State of LA December 22,2010 Clerk's Office, Room 402, Civil Courts Building, DALE N. ATKINS, Clerk of
421 Loyola Avenue New Orleans, LA
PERSONAL SERVICE On this _ _ _ day of
SHERIFF'S RETURN (for use of pr~ss servers only) ~~ ('. ~ 1..~'I\
~~
~ v
'" \~W;iS _ _ _ day of _ _ _ _ _ _ _ _ __

~~
DOMICILIARY SERVICE
served a copy of the wii petition ",,,II ,,"" • served a copy of the w/i petition F-O-R-D-AM-A-G-E-S-WIOISCOVERY ATIACHED. Il,e ,," • C,\~" FOR DAMAGES WIOISCOVERYATIACHED.
\ \I"s On v 0'.\'C.· i 0\ * 1;)'.... , WESTCHESTER SURPLUS LINES INSU . NcffegMPAN,(,~\t-i c;\: WEST f.';\ ..\'~ '" .
,oJ,,··e
On
tli
THROUGH: IT'S DESIGNATED AGENT FOR S ,OF PROCESS: THE LOUISIANA SECRET S1X ' ; FOR THE STATE OF LOUISIANA oc9\) ,
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THROUGH: IT'S DESIGNATED AGENT FOR SERVICE OF PROCESS: THE LOUISIANA SECRETARY OF STATE; FOR
* THE STATE OF LOUISIANA * by leaving same at the dwelling house, or usual place of
* abode, in the hands of _ _ _ _ _ _ _ _ _ _ __
____--::-:-_--:--__--:-__~----*
Returned same day
a person of suitable age and discretion residing therein as a member of the domiciliary establishment, whose name and other facts connected with this service I leamed by No. Interrogating HIM 1 HER the said _ _ _ _ _ __ Deputy Sheriff of _ _ _ _ _ _ _ _ _ _ _ * WESTCHESTER SURPLUS LINES INSURANCE COMPANY
Mileage: $._ _ _ _ _ _ _ _ _ __
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being absent from the domicile at time of said service. Retumed same day
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ATTORNEY'S NAME: Olinde Jr, 20061 Case 2:11-cv-00234-EEF-DEK POYDRf'JWrREE'~-SUITE 1980 02/03/11 Page 17 of 23 Document 1-1 Filed AND ADDRESS: 400 NEW ORLEANS
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CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA
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SECTION:
2010 -- 12413
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HOSPITALITY ENTERPRISES, INC,
ET AL VERSUS WESTCHESTER SURPLUS LINES INSURANCE COMPANY." ~~ . ~
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CITATION
TO: D E INVESTMENTS, INC. THROUGH: Irs DESIGNATED AGENT FOR SERVICE OF PROCESS: H.E. AYDLETT, JR. OR DONALD E. LEGG 1917 OLIVE STREET MONROE YOU HAVE BEEN SUED: You must either comply with the demand contained in the petition FOR DAMAGES WIDISCOVERY ATTACHED. a certified copy of which accompanies this citation, or file an answer or other legal pleading in the office of the Clerk of this Court, Room 402, Civil Courts Building, 421 Loyola Avenue, New Orleans, LA, within fifteen (15) days after the service hereof under penalty of default
LA
71201
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_a ..• _.. ___ ._. __ ._._. __ ._. __ • ____ .•
_. *******~*******************
ADDITIONAL INFORMATION Legal assistance is advisable. If you want a lawyer and can't find one, you may call the New Orleans Lawyer Referral Service at 561- 8828. This Referral Service operates in conjunction with the New Orleans Bar Association. If you qualify, you may be entitled to free legal assistance through the New Orleans Legal Assistance Corp.; you may call 529 - 1000 for more information.
* COURT PERSONNEL ARE NOT PERMITTED TO GIVE LEGAL ADVICE
*. __
a • • _._ • • • • • • _._ • • _._ • • _ • • _._ • • • _ . _ . _ . _ . _ . _ • • • • • • •
_*_._._._ .. _... _.... _._ .....
IN WITNESS HEREOF, I have hereunto set my hand and affix the seal of the Civil District Court for the Parish of Orleans, State of LA December 22,2010 DALE N. ATKINS, Clerk of
Clerk's Office, Room 402, Civil Courts Building, 421 Loyola Avenue New Orieans, LA
SHERIFF'S RETURN (for use of process servers only) PERSONAL SERVICE On this _ _ _ day of _ _ _ _ _ _ _ _ __ _ _ _ _ _ served a copy of the wli petition
FOR DAMAGES WIOISCOVERY ATIACHED.
DOMICILIARY SERViCE
* On this _ _ _ day of _ _ _ _ _ _ _ _ _ __
_ _ _ _ _ served a copy of the w/i petition
*
FOR DAMAGES WIOISCOVERY ATIACHED.
On
D E INVESTMENTS, INC.
*
On
D E INVESTMENTS, INC.
THROUGH : Irs DESIGNATED AGENT FO\{ SERVICE OF PROCESS : H.E. AYDLETI, JR. OR DONALD E. LEGG
THROUGH: Ir3 DESIGNATED AGENT FOR SERVICE OF PROCESS: H.E. AYDLETI, JR. OR DONALD E. LEGG
* by leaving same at the dwelling house, or usual place of
*
abode, in the hands of _-,-_ _ _ _ _ _ _ _ __
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Returned same day ,:
a discretion residing therein !.. ;1 person-ofofstritabl~'age andestablishment, whose nameas f;:I~mp'er the domiciliary
and otHer facts conneCted with this service I learned by ______________ N_o_._ _ _....:... * interrogating HIM I HER the said _ _ _ _ _ __ ' .
, Deputy Sheriff of _ _ _ _ _ _ _ _ _ _'"7' *
DE INVESTMENTS,INC.
Mileage: $._ _ _ _ _ _ _ _ _ __
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b'eihg absent from·ttie domicile at time of said service. da'y Refurriei:l
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Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 18 of 23
2011 JAN 2' P 3:
FILED ON BEHALF OF SEWERAGE AND WATER BOARD OF NEW ORLEANS. 'IL GOVERNMENT - PAYS NO COURT COSTS - LA. R.S. 13:4 1... L;I V CIVIL DISTRICT COURT FOR THE PARISH OF ORLEA STATE OF LOUISIANA NO. 2010·12413 HOSPITALITY ENTERPRISES, INC. AND GARDEN DISTRICT HOTEL ON ST. CHARLES AVENUE, LLC VERSUS WESTCHESTER SURPLUS LINES INSURANCE COMPANY, DE INVESTMENTS, INC. d/b/a SERVPRO OF NORTH KENNER, HARAHAN AND LAKEVIEW, AND SEWAGE AND WATER BOARD OF NEW ORLEANS FILED: _ _ _ _ _ _ _ _ _ _ _ 2011 DEPUTY CLERK
112
SECTION 7·E
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
ANSWER TO PETITION FOR DAMAGES NOW INTO COURT. through undersigned counsel. comes the Sewerage and
Water Board of New Orleans, defendant herein. and in answer to the Petition for Damages, avers the following , to-wit:
1.
The allegations contained in Paragraph 1 of the Petition are admitted as to the status of the Sewerage and Water Board of New Orleans.
2.
The allegations contained in Paragraphs 2 through 48 of the Petition for Damages. as they apply to the Sewerage and Water Board of New Orleans, are denied for lack of sufficient information to justify a belief therein.
3.
The allegations contained in Paragraph 49 of the Petition are admitted as to the status of the Sewerage and Water Board of New Orleans.
4.
The allegations contained in Paragraph 50 of the Petition are denied for lack of sufficient information to justify a belief therein.
5.
The allegations contained in Paragraph 51 of the Petition are denied.
Case 2:11-cv-00234-EEF-DEK Document 1-1
I '
Filed 02/03/11 Page 19 of 23
I
FIRST DEFENSE The Petition fails to state a cause of action . SECOND DEFENSE The cause in fact of the damages complained of was the negligence of plaintiffs. whose negligence should operate as a complete bar or in diminution of plaintiffs' recovery. THIRD DEFENSE In the alternative, defendant affirmatively avers that the plaintiffs' alleged damages were caused by persons or parties over whom this defendant exercises no authority. jurisdiction. control. or supervision of whom it is not legally responsible . FOURTH DEFENSE In the further alternative. defendant avers that plaintiffs assumed the risk of their damages. FIFTH DEFENSE The alleged incident was due solely and entirely to the fault and/or negligence of the plaintiffs. which fault or negligence consists of the following specific acts. each of which amounted to either negligence or fault which was the proximate cause of the incident and of all the damages resulting therefrom: 1. Failing to do what was necessary to avoid the alleged incident; 2. Any and all acts of negligence or fault. SIXTH DEFENSE In the alternative. and in the event that this Honorable Court should ffnd that defendant was guilty of any negligence whatsoever. which proximately caused or contributed to the incident and damages which defendant denies, then defendant specifically pleads contributory negligence of the plaintiffs. which would mitigate any recovery by the plaintiffs. SEVENTH DEFENSE Defendant herein expressly pleads the affirmative defense that the plaintiffs have failed to mitigate their damages.
Case 2:11-cv-00234-EEF-DEK Document 1-1
"
Filed 02/03/11 Page 20 of 23
EIGHTH DEFENSE Defendant avers that it is entitled to a credit and/or setoff from any sums paid to or on behalf of plaintiffs by defendant or by any other insurer, or by any person or entity, specifically pleading extinguishment of same or all of any obligation which may be found due plaintiffs to the full extent of any such payments. NINTH DEFENSE Defendant affirmatively asserts the statutory cap on general damages provided by LSA-R.S. 13:5106. TENTH DEFENSE Defendant affirmatively pleads the defense of immunity, as provided by Louisiana law including. but not limited to, sovereign immunity and the immunity provided by La. R.S. 9:2798.1. La. R.S. 9:2793.1. La. R.S. 9:2795, La. R.S. 9:2800. and La. R.S. 9:2800.17. ELEVENTH DEFENSE Defendant affirmatively pleads the defenses and limit on damages provided in La. R.S. 5106 and the limit on legal interest provided in La. R.S. 13:5112, as if the statutes had been copied herein in extenso. TWELFTH DEFENSE Defendant asserts the defense of immunity as provided by La. R.S. 9:2798.4.
WHEREFORE, defendant herein, Sewerage and Water Board of New Orleans.
prays that the foregoing Answer, with all affirmative defenses, be deemed good and sufficient, and that after due proceedings are had, there be judgment herein in favor of
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 21 of 23
the defendant, Sewerage and Water Board of New Orleans, and against the plaintiffs dismissing the demands asserted in the Petition for Damages with prejudice at their cost and any and all general and equitable relief.
Respectfully submitted...
,/ '1
~' ~
------ -
.H'J(RQLD-D:' MARCHAND, DEPUTY SPEciAL COUNSEL (7543) _ SEWERAGE AND WATER BOARD OF NEW ORLEANS 625 ST. JOSEPH STREET, ROOM 201 NEW ORLEANS, LA 70165
504-585-2236 504-585-2426 (FAX)
GERARD M. VICTOR, SPECIAL COUNSEL
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing pleading has been served upon all counsel of record in this matter by depositing same in the United States Mail. postage prepaid and properly addressed to each on the ~ day of -----'=J;;'----'A::.:""=:.:::...r-"--i.~-­ ....
I
201 1.
/~ ~HAROJD'D.
SE~RAG!AND WATER BOARD OF NEW ORLEANS
MA~HAND' DEPUTY SPECIAL COUNSEL
n:\lit\del\hospitolity ent .. inc\ple\ t 10 1200nsweLdoc
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 22 of 23
lOll Jr.tl 2 \ P 3: ll2
FILED ON BEHALF OF SEWERAGE AND WATER BOARD OF NE R~~ANS GOVERNMENT - PAYS NO COURT COSTS -LA. _,5~ r. J 0
CIVIL DISTRICT COURT FOR THE PARISH OF STATE OF LOUISIANA NO. 2010·12413 HOSPITALITY ENTERPRISES, INC., ET AL VERSUS
LEANS
SECTION 7·E
WESTCHESTER SURPLUS LINES INSURANCE COMPANY, ET AL FILED: _ _ _ _ _ _ _ _ _ _ _ 2011
•••• ** •• ** •••••••••••••••••••••••••••••••••••••••••••••••••
REQUEST FOR NOTICE NOW INTO COURT. through undersigned counsel, comes Sewerage and Water
DEPUTY CLERK
Board of New Orleans who respectfully makes the following request:
I.
Pursuant to Louisiana Code of Civil Procedure Article 1572, Sewerage and Water Board of New Orleans requests written notice ten (10) days in advance of the date fixed for the trial or hearing on any exceptions. motions or rules on the merits of the above captioned matter.
II.
Pursuant to Louisiana Code of Civil Procedure Articles 1913 and 1914, Sewerage and Water Board requests immediate notice of all interlocutory and final orders and judgments on any exceptions, motions, or rules on the merits of the above captioned matter.
WHEREFORE, the premises considered. Sewerage and Water Board requests to
be fumished with the above captioned information. Respectfully submitted,
-~)
__~~~_-L/~~=_~____________________________ / '
- ...HiROLE-D. MARCHAND, DEPUTY SPECIAL COUNSEL (7543) LseWERAGE AND WATER BOARD OF NEW ORLEANS 625 ST. JOSEPH STREET, ROOM 201 NEW ORLEANS, LA 70165 504·585·2236 504·585·2426·FAX GERARD M. VICTOR, SPECIAL COUNSEL
/~
~
Case 2:11-cv-00234-EEF-DEK Document 1-1
Filed 02/03/11 Page 23 of 23
CERTIFICATE
I hereby certify that a copy of the foregoing pleading has been served upon all counsel of record by depositing same in United States Mail, postage prepaid and properly addressed to each on this ~ day of --':::r;=t:{...:._"-=k::.>~:...;-;'-I_ .... 2011.
H~6i_D,D?'AAARCHAND, DEPUTY SPECIAL COUNSEL SewE'RAGE AND WATER BOARD OF NEW ORLEANS
n:\lil\def\hospifolily en!.. inc\ple\ II012Orequestfornolice.doc

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