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

PERINI/TOMPKINS JOINT VENTURE v. ACE AMERICAN 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 8:10-cv-03494-PJM Document 1
Filed 12/13/10 Page 1 of 8
UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND --------------------------------------------------------x Perini/Tompkins Joint Venture : : Plaintiff, : : v. : : ACE American Insurance Company : : Defendant, : --------------------------------------------------------x
CIVIL ACTION NO.:
DECEMBER 13, 2010
COMPLAINT AND DEMAND FOR JURY TRIAL THE PARTIES 1. At all relevant times, Plaintiff Perini/Tompkins Joint Venture (“PTJV”) was a joint
venture between Perini Building Company and Turner Construction Company: a. Perini Building Company was an Arizona corporation with a principal place of business in Nevada; b. Turner Construction Company was a New York corporation with a principal place of business in New York. 2. At all relevant times, ACE American Insurance Company (“ACE”) was a
Pennsylvania corporation with a principal place of business in Pennsylvania. JURISDICTION AND VENUE 3. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 (a)(1)
insofar as this is a diversity action between the citizens of different states and the amount in controversy exceeds $75,000.00, exclusive of interests and costs.
Case 8:10-cv-03494-PJM Document 1
Filed 12/13/10 Page 2 of 8
4.
Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(a)(1) insofar as
a substantial part of the events and omissions which give rise to this legal action occurred in this District. FACTUAL BACKGROUND The Contract 5. By contract dated May 9, 2005 (the “Gaylord/PTJV Contract”), attached hereto as
Exhibit A, Gaylord National, LLC (“Gaylord”) hired PTJV to, inter alia, serve as Construction Manager in connection with the construction of the Gaylord National Resort and Hotel in Oxon Hill, Maryland (the “Project”). 6. In the Gaylord/PTJV Contract, Gaylord agreed to purchase and maintain an
Owner Controlled Insurance Program in connection with the Project that would provide PTJV with general liability coverage. The Policies 7. Thereafter, Gaylord purchased a Commercial General Liability Insurance Policy
from ACE, No. HDO G16800703 (the “Primary Policy”), attached hereto as Exhibit B, and an Excess Liability Policy from ACE, No. XLX G22909964 (the “Excess Policy”), attached hereto as Exhibit C (collectively, the “Policies”). 8. By endorsement, PTJV was added as a named insured on the Primary Policy
and, as a result of said endorsement, automatically added as a named insured on the Excess Policy. 9. The Excess Policy applies to injury or damage covered by the Primary Policy in
excess of the applicable limits of the Primary Policy.
2
Case 8:10-cv-03494-PJM Document 1
Filed 12/13/10 Page 3 of 8
The Collapse 10. atrium. A significant portion of the Project involved the construction of a glass roof
The atrium was composed of numerous subsections, called trusses, that were
preassembled on the ground and lifted via crane into place. Each truss contained several components, including supportive tension rods that were connected by rod/clevis junctures. 11. The atrium was under construction on or about August 28, 2007 while Truss H4
was lifted into position and, on or about August 31, 2007, certain components were added to the atrium that placed additional pressure and tension on Truss H4, causing, unbeknownst to Plaintiffs, one of the rod/clevis junctures on Truss H4 to slowly erode. 12. On September 5, 2007, the rod/clevis juncture on Truss H4, which began eroding
no later than August 31, 2007, failed. That failure caused a loss of tension that substantially impaired the structural integrity of the atrium (the “Collapse”). 13. The Collapse caused damage to various components of the Project and required
a temporary suspension of the Project and such damages were neither expected nor intended from the standpoint of PTJV. 14. As a direct and proximate result of the Collapse, Gaylord suffered damages and,
in subsequent litigation, asserted claims against PTJV for those damages including, but not limited to costs to repair the atrium beyond the failed rod/clevis connection and increased costs of construction to complete the Project.
3
Case 8:10-cv-03494-PJM Document 1
Filed 12/13/10 Page 4 of 8
The Claim 15. A representative from ACE was onsite at the Project on September 5, 2007
during the Collapse and thereafter, received timely updates regarding the reason for the Collapse, the scope and extent of related damages and the method and cost of repair. 16. Thereafter, representatives of PTJV communicated at length with ACE in an
effort to have the claim properly and timely adjusted and resolved. 17. After much negotiation, ACE formally accepted the claim and agreed to handle
the matter by letter dated February 23, 2010. 18. Thereafter, PTJV made multiple requests to ACE regarding the status of the
claim and demanding that ACE make payment and ACE continually represented it would work with PTJV to resolve the claim. 19. Contrary to its representations, however, ACE failed and/or refused to make any
payment or substantively respond to PTJV’s demands. 20. By electronic mail dated October 6, 2010 to representatives of PTJV, ACE
reversed its position and refused to make any payment on the claim on the basis that it had been directed not to do so by Gaylord and the broker for the Policies. 21. In connection with that e-mail, ACE represented it would retain counsel to review
the claim and assist in reaching a resolution, however, did not do so until approximately one month later on November 8, 2010. 22. Yet, as of December 2, 2010, such counsel had not received any materials from
ACE and not conducted any review of the claim.
4
Case 8:10-cv-03494-PJM Document 1
Filed 12/13/10 Page 5 of 8
23.
ACE has continually represented to PTJV its intent to adjust this claim in good
faith yet, at every critical juncture, has failed and/or refused to do so. FIRST COUNT (BREACH OF CONTRACT BAD FAITH/BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING) 24. PTJV repeats and re-alleges all of the allegations contained in Paragraphs 1
through 23 as if fully set forth herein. 25. Despite demand, ACE has failed, refused and/or neglected to pay any portion of
the Collapse Claims pursuant to the Primary Policy or the Excess Policy and is in breach of its contractual obligations to PTJV. 26. 27. ACE’s breach of its obligations to PTJV constitutes a breach of contract. Further, the Policies are contractual agreements which contain an implied
covenant of good faith and fair dealing requiring ACE to deal honestly and in good faith with PTJV. 28. ACE has breached its duty of good faith and fair dealing owed to PTJV under the
Policies by and through its conduct, which includes, but is not limited to: a. ACE intentionally and/or recklessly took direction from another named insured to deny PTJV’s claim and thereby wrongfully put its own interests and the interests of another named insured ahead of PTJV’s interests; b. ACE intentionally and/or recklessly ignored information produced by PTJV establishing ACE’s coverage obligations and thereby deprived PTJV of its benefits pursuant to the Policies on the basis of unsupported determinations resulting from its arbitrary failure and/or refusal to properly perform the claims examination function; 5
Case 8:10-cv-03494-PJM Document 1
Filed 12/13/10 Page 6 of 8
c.
ACE intentionally and/or recklessly engaged in unwarranted delay tactics designed to frustrate PTJV’s rights pursuant to the OCIP such as, inter alia, representing it was adjusting the claim though it was not, failing and/or refusing to respond to communications from PTJV and its counsel and concealing its position regarding coverage despite request and thereby failed to conduct a reasonable and timely investigation of PTJV’s claims;
29.
As a result of ACE’s breach of contract and breach of the implied covenant of
good faith and fair dealing, PTJV has suffered, and continues to suffer, damages. SECOND COUNT (DECLARATORY JUDGMENT) 30. PTJV repeats and re-alleges all of the allegations contained in Paragraphs 1
through 29 as if fully set forth herein. 31. Claims. 32. An actual and justiciable controversy exists regarding ACE’s obligations under ACE is obligated to indemnify PTJV, pursuant to the Policies, for the Collapse
the Primary Policy and the Excess Policy to pay PTJV for the Collapse Claims, and a declaratory judgment is necessary and appropriate to determine the rights and duties of PTJV and ACE pursuant to the Primary Policy and the Excess Policy. 33. PTJV has no adequate remedy at law.
THIRD COUNT (BAD FAITH PURSUANT TO TENN. CODE ANN. 56-7-105) 34. PTJV repeats and re-alleges all of the allegations contained in Paragraphs 1
through 33 as if fully set forth herein.
6
Case 8:10-cv-03494-PJM Document 1
Filed 12/13/10 Page 7 of 8
35.
ACE has acted in bad faith in connection with respect to PTJV’s rights pursuant
to the Policies, which actions include, but are not limited to: a. ACE intentionally and/or recklessly took direction from another named insured to deny PTJV’s claim and thereby wrongfully put its own interests and the interests of another named insured ahead of PTJV’s interests; b. ACE intentionally and/or recklessly ignored information produced by PTJV establishing ACE’s coverage obligations and thereby deprived PTJV of its benefits pursuant to the Policies on the basis of unsupported determinations resulting from its arbitrary failure and/or refusal to properly perform the claims examination function; c. ACE intentionally and/or recklessly engaged in unwarranted delay tactics designed to frustrate PTJV’s rights pursuant to the OCIP such as, inter alia, failing and/or refusing to respond to communications from PTJV and its counsel and concealing its position regarding coverage despite request and thereby failed to conduct a reasonable and timely investigation of PTJV’s claims; 36. As a result of ACE’s bad faith conduct, PTJV has suffered, and continues to
suffer, damages. WHEREFORE, PTJV prays for the following relief: 1. An Order from this Court declaring and setting forth ACE’s duties and obligations
to PTJV for the Collapse damages pursuant to the ACE Policies;
7
Case 8:10-cv-03494-PJM Document 1
Filed 12/13/10 Page 8 of 8
2. to the cost of: i.
Judgment from this Court in favor of PTJV and against ACE in an amount equal
PTJV’s costs related to damages caused by the Collapse; Attorneys’ fees and costs incurred by PTJV in this coverage dispute; Punitive damages; Interest; and All other damages this Court deems appropriate.
ii. iii. iv. v.
Dated: December 13, 2010
/s/ Gregory D. Podolak TRACY ALAN SAXE (Bar No. 17786) tas@sdvlaw.com GREGORY D. PODOLAK (Bar No. 17783) gdp@sdvlaw.com SAXE DOERNBERGER & VITA, P.C. Attorneys for Plaintiff PERINI/TOMPKINS JOINT VENTURE 1952 Whitney Avenue Hamden, CT 06517 Tel.: 203.287.2100 Fax: 203.287.8847
8

Published under a Creative Commons License By attribution, non-commercial
AttachmentSize
Perini Tompkins v ACE Complaint.pdf25.74 KB

Like us on facebook!