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REPUBLIC SERVICES OF FLORIDA LIMITED PARTNERSHIP ET AL V. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA Complaint

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Case 8:12-cv-02697-JSM-EAJ Document 2
Filed 11/29/12 Page 1 of 7 PagelD 17
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IN THE CIRCUIT COURT OF THE 13,h JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA Case No.
12
REPUBLIC SERVICES OF FLORIDA LIMITED PARTNERSHIP d/b/a FLORIDA REFUSE SERVICE; REPUBLIC SERVICES GP, INC. and REPUBLIC SERVICES, INC, Plaintiffs, vs. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Defendant.
016542
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OCT 22 2012
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COMPLAINT COMES NOW the Plaintiffs, REPUBLIC SERVICES OF FLORIDA LIMITED PARTNERSHIP d/b/a FLORIDA REFUSE SERVICE; REPUBLIC SERVICES GP, INC. and REPUBLIC SERVICES, INC..(herein after referred 10 collectively as "REPUBLIC31) andsues the Defendant, INDEMNITY INSURANCE COMPANY OF NORTH AMERICA (herein after referred to as "INDEMNITY") and would .state as follows: 1. REPUBLIC SERVICES OF FLORIDA LIMITED PARTNERSHIP d/b/a
FLORIDA REFUSE SERVICE is a Florida Limited Partnership doing business in Hillsborough County, Florida. 2. At all time materials hereto REPUBLIC SERVICES GR INC. is a Florida
Case 8:12-cv-02697-JSM-EAJ Document 2
Filed 11/29/12 Page 2 of 7 PagelD 18
Complaint for Declaratory Relief Republic v Indemnity Page 2
. corporation doing business in Hillsborough County, Florida. 3. The Plaintiff, REPUBLIC SERVICES, INC. is a Florida corporation doing
business in Hillsborough County, Florida. 4. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA is an
insurance company authorized to do business in the state of Florida. COUNT I - DECLARATORY RELIEF The Plaintiffs re-adopts and re-allege all of the allegations contained in paragraphs ] through 4 as fully set forth above. 6. This is an action for declaratory relief in accordance with Chapter 86 of the
Florida statutes. 7. On or about July 23, 2004, Keith A. Kleparek. was employed by REPUBLIC
SERVICES OF FLORIDA LIMITED PARTNERSHIP d/b/a FLORIDA REFUSE SERVICE and in the course of his employment was operating a motor vehicle owned by REPUBLIC SERVICES OF FLORIDA LIMITED PARTNERSHIP d/b/a FLORIDA REFUSE SERVICE when a fire started apparently in the vehicle's engine compartment causing alleged injuries to Keith A\ Kleparek. 8. The Defendant, INDEMNITY issued a policy of Workers Compensation and
Employers Liability Insurance to the Plaintiff REPUBLIC, a copy of which is in the possession of the Defendant, INDEMNITY and is voluminous such that only a portion of said policy is attached hereto as Exhibit "A" and hereby incorporated by reference.
Case 8:12-cv-02697-JSM-EAJ Document 2
Filed 11/29/12 Page 3 of 7 PagelD 19
Complaint for Declaratory Relief Republic v Indemnity ' Page 3
9.
Notice of the above described accident was provided by the Plaintiff,
REPUBLIC to the Defendant, INDEMNITY as required by the policy of insurance. 10. As required by said policy, the Plaintiff, REPUBLIC surrendered all control
over the handling of this claim to the Defendant, INDEMNITY. 11. Pursuant to the terms and conditions of said policy, the Defendant,
INDEMNITY was required to provide investigation, administration, adjustment and settlement services for which the policy provided coverage. 12. The Defendant, INDEMNITY assumed the duty to exercise control and make
decisions in good faith with due regard for the interests of the Plaintiff, REPUBLIC. 13. As required by its policy of insurance, the Defendant INDEMNITY began to
carry out its duties of investigation and administration of this claim and the Plaintiff. REPUBLIC relied upon the actions of the Defendant, INDEMNITY in fulfilling its obligations to properly investigate and administer the claim. 14. As required by the policy of insurance, the Plaintiff. REPUBLIC fully
cooperated with the Defendant, INDEMNITY and its agents.in the administration and investigation of this claim, including securing the vehicle involved in the accident pending the investigation by experts hired by the Defendant, INDEMNITY and/or its agents. 15. After surrendering all control of the handling of this claim to the Defendant,
INDEMNITY and its agents, the Plaintiff, REPUBLIC relied upon the Defendant, INDEMNITY to properly administer the claim... including the handling and preserving, if
Case 8:12-cv-02697-JSM-EAJ Document 2
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Complaint for Declaratory Relief Republic v Indemnity Page 4
necessary, of any evidence. 16. After completion of the expert examination of the. vehicle in question, the
Defendant, INDEMNITY neither directed, cautioned against, or requested the continued preservation of the vehicle involved in the incident. 17. Without instructions to do otherwise, the Plaintiff, REPUBLIC unknowingly
disposed of the subject truck with no knowledge that it may have inadvertently discarded potential evidence in a subsequent third party action. 18. The Plaintiff, REPUBLIC was placed on notice of a claim for spoliation of
evidence by Keith A. Kleparek which resulted in the filing of a Complaint for Damages against the Plaintiff, REPUBLIC, and other parties, for spoliation of evidence in the Circuit Court of the 13th Judicial Circuit in and for Hillsborough County, Florida being Case No. 06-07618. A copy of the 3rd Amended Complaint is attached hereto as Exhibit "B" and hereby incorporated by reference. ] 9. Notice of.this claim and subsequent lawsuit was provided to the Defendant,
INDEMNITY with a request for insurance coverage and a defense pursuant to its policy of insurance. The Defendant, INDEMNITY responded by denying the insurance coverage for this claim and for the defense of the subsequently filed law suit by Keith A. Kleparek. 20. The Defendant, INDEMNITY had the duty, in good faith, to conduct its
investigation, adjustment and administration of Keith A. Kieparek's workers compensation claim, including providing the necessary directions to its insured to preserve all evidence and
Case 8:12-cv-02697-JSM-EAJ Document 2
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Complaint for Declaratory Relief Republic v Indemnity Page 5
the adjustment and administration of this claim: 21. The Plaintiff, REPUBLIC relied upon the Defendant, INDEMNITY to its
detriment to carry out the duties under the policy of insurance issued by the Defendant, INDEMNITY, and as a result the Plaintiff, REPUBLIC may be subject to severe prejudice by the Defendant, INDEMNITY'S failure to carry out its duties under the policy of insurance. 22. The Defendant, INDEMNITY is estopped from denying its indemnity
obligations under its policy of insurance and coverage is. provided to the Plaintiff, REPUBLIC by the Defendant, INDEMNITY by estoppel. 23. The parties herein are in doubt as to their rights and obligations under the
policy of insurance issued by the Defendant, INDEMNITY to thePlaintiff, REPUBLIC and as such require a declaration of those rights pursuant to Chapter 86 of the Florida Statutes. WHEREFORE, the Plaintiffs, REPUBLIC, moves this Court for an entry of a Final Declaratory Judgment regarding the following: a. Whether by its actions and in actions, the Defendant, INDEMNITY is estopped from denying its indemnity obligation under its policy of insurance to the Plaintiffs, REPUBLIC. b. Whether by its actions or in actions, the Defendant, INDEMNITY is estopped from denying its obligation to provide a defense under its policy of insurance to the Plaintiffs. REPUBLIC for the law suit
Case 8:12-cv-02697-JSM-EAJ Document 2
Filed 11/29/12 Page 6 of 7 PagelD 22
Complaint for Declaratory Relief Republic v Indemnity Page 6
brought against them by Keith A. Kleparek and Keith A. Kleparek, Jr. COUNT II - BREACH OF CONTRACT The Plaintiffs re-adopts and re-allege all of the allegations contained in paragraphs 1 through 23 as fully set forth above. 24. By virtue of its actions and inactions, the Defendant, INDEMNITY'S policy
of insurance is extended to provide insurance coverage by estoppel to the Plaintiffs, REPUBLIC forthe allegations made against it by Keith A. Kleparek and Keith A. Kleparek, Jr. 25. By virtue of its actions and inactions, the Defendant, INDEMNITY has
breached the policy of insurance by failing to indemnify and to provide a defense to its insureds, the Plaintiffs, REPUBLIC. 26. Because the Defendant, INDEMNITY refused to provide a defense to the
Plaintiff, REPUBLIC, it was necessary for it to retain the services of the Law Firm of Luks & Santaniello, LLC for which they have had to pay attorneys fees because of the wrongful denial of insurance coverage. 27. The Plaintiff, REPUBLIC was required to hire the undersigned law firm to
pursue this Declaratory Action and therefore is entitled to attorneys fees pursuant to Chapter 627 of the Florida Statutes. 28. Due to the Defendant, INDEMNITY:s breach of contract, the Plaintiffs,
REPUBLIC havebeen damaged by the Defendant. INDEMNITY'S actions or inactions, plus
Case 8:12-cv-02697-JSM-EAJ Document 2
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Complaint for Declaratory Relief Republic v Indemnity Page 7
costs and attorneys fees. WHEREFORE the Plaintiffs, REPUBLIC, demand judgment against the Defendant, INDEMNITY for an amount in excess of $15,000.00. costs, interest, and attorneys fees, and for such relief the Court deems just and equitable DEMAND FOR JURY TRIAL Plaintiff demands trial by jury on all issues so triable as of right. Dated this /9"7'Aiay of October, 203 2. WIEDERHOLD, MOSES, KUMMERLEN & WARONICKI, P.A. 560 Village Blvd., Suite 240 West Palm Beach, FL 33409 • P.O. Box 3918 West Palm Beach, FL 33402 561/615-6775 561/615-7225-Facsimile
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By: / *-^.-f? i ,. / ( > - / - • / Robert D. Moses '' FBN: 182860
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D.E. 2 COMPLAINT against Indemnity Insurance Company of North America with Jury Demand filed in State Court on 10:22:2012 by Republic Services, Inc., Republic Services of Florida Limited Partnership, Republic Services GP, Inc.pdf2.39 MB

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