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TYCO INTERNATIONAL, LTD. et al v. SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC 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-00068-EEF-KWR Document 1-2
) Filed 01/13/11 Page 1 of 29
CNIL DISTRICT COURT FOR THE PARISH OF ASSUMPTION STATE OF LOUISIANA NO. --".131-,--'1
'i,-1--,---t_
TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPAl'!Y
versus
SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC AND ACE AMERICAN INSURANCE CO~&
FILED:APR -82009
.
J ~c:fPl.fre-
.
DEP
CLERK
PETITION FOR SUBROGATION TYCO International Ltd., appears herein through uodersigned couose1, and represents
it is a foreign company licensed to do and doing business in the State of Louisiana and
respectfully avers as follows:
American Home Assurance Company, appears herein through undersigned counsel,
and represents it is a foreign insurance company licensed to do and doing business in the
State of Louisiana and respectfully avers as follows:
r.
Made defendants herein are:
A. B. Scaffolding Rental and Erection Services, LLC, a Louisiana company authorized to do business in the State of Louisiana; and ACE American Insurance Company, a foreign insurance company authorized to do business in the State of Louisiana,
II.
At all times pertinent herein, ACE American Insurance Company is believed to have
insured Scaffolding Rental and Erection Services, LLC. ill.
On or about April 9, 2008, Anthony Heims sustained injuries when descending an
improperly constructed scaffold, which was so constructed by Scaffolding Rental and
Erection Bervices, LLC, and that scaffold came apart, causing Heims to fall and sustain
injuries within the course and scope ofhls employment with TYCO International Ltd.
A
) Case 2:11-cv-00068-EEF-KWR Document 1-2
) Filed 01/13/11 Page 2 of 29
IV.
At all times pertinent herein, TYCO International Ltd. was insured for workers' compensation coverage through American Home Assurance Company.
V.
At the time of the above mentioned accident, Anthony Heims resided in the Parish of Assumption, State ofLouisi~a
VI.
Anthony Heims's injuries are the sole and proximate legal cause of Scaffolding Rental and Erection Services, LLC's negligent and tortuous conduct including, but not
limited to, the following:
A.
Failing to properly build its scaffold ladder and mud sill; and Any and all other allegations which may be proven at a trial on the merits.
VII.
As a result of the aforesaid injuries to Anthony Heims, American Home Assurance
B.
Company has paid and continues to pay workers' compensation indemnity and medical benefits to or on behalf of Anthony Heims pursuant to the Louisiana Workers' Compensation
Act, LSA-R.S. 23:1021 et seq.
VIII.
Defendants, Scaffolding Rental and Erection Services, LLC, and its insurer, ACE American Insurance Company, are legally obligated to reimburse petitioner in the amount of
any and all sums paid by the petitioner to or On behalf of Anthony Heims for the injuries he
sustained, as said injuries were solely the result of Scaffolcling Rental and Erection Services,
LLC's negligence as described in Paragraph VI.
lX.
Amicable demand has been made upon defendants, to no avail, for reimbursement of the amount of compensation and/or medical expenses that Petitioner has paid to or on behalf of Anthony Heims pursuant to the Louisiana Workers' Compensation Act.·
WHEREFORE, TYCO International Ltd. And American Home Assurance Company
pray as follows:
-2-
Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 3 of 29
A.
That a copy of this Petition be served upon defendants, Scaffolding Rental and Erection Services, llC, and its insurer, ACE American InstU"ance Company. and that
they be required to appear and answer the matters aforesaid;
B.
After all due proceedings are had, there be a judgment in favor of petitioners, TYCO
International Ltd. American Home Assurance Company, and against defendants,
Scaffolding Rental and Erection Services, LLC, and its insurer, ACE American
Insurance Company,jointly, severally and in solido, for the full amount of any and all sums paid by petitioner to or on behalf of Anthony Heims injuries resulting from the aforesaid accident, together with judicial interest, attorney's fees and any and all costs
incurred in this litigation; and
C. That petitioners, TYCO International Ltd. and American Home Assurance Company, be granted any and all equitable relief to which they may be entitled and to which this Honorable Court may be competent to grant.
Respectfully subntitted, JUGE, NAPOLITANO, GUILBEAU, RULI, FRlEMAN & WHITELEY
BY:
j
IN)IU til.
~IA.(.
JEANNE MARIE BOURQUE 26607 3320 W. Esplanade Avenue North
Metairie, Louisiana 70002
Telephone: (504) 831-7270 Facsimile: (504) 831-7284 CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing pleading has been served upon all counsel of record by placing sarne in the United States Mail, postage prepaid, this 6" day of April, 2009. ~ ()
UrrIflf-.
fYl , l~ bo-J---.
JEANNE MARIE BOURQUE
-3-
j Case 2:11-cv-00068-EEF-KWR Document 1-2
_.l Filed 01/13/11 Page 4 of 29
STATE OF LOmSIANA SECRETARY OF STATE
LEGAL SERVICES SECTION P.O. BOX 94125, BATON ROUGE, LA 7G8G4-9125·
4/23/09
(225) 922_0115
ACE AMERICAN INSURANCE COMPANY ATTN: SAVERIO M. ROCCA, ESQUIRE 436 WALNUT STREET PHILADELPHIA, PA 19106
SUIT NO: 31574 23RD JUDICIAL DISTRICT COURT PARISH OF ASSUMPTION
TYCO INTERNATIONAL, LTD., ET AL
va
SCAFFOLDING RENTAL & ERECTION SERVICES, LLC ET AL
Dear Sir/Madam: I am enclosing citation served in regard to the above entitled proceeding.
Please call the attorney that filed this document if you have any questions regarding this proceeding. If you received this document in error, please return it to the above address with a letter of explanation. Yours very truly,
JAY DARDENNE
secretary of State
Served on: JAY DARDENNE Served by: J BROWN
Date: 4/22/09 at 3:00 PM Title: DEPUTY SHERIFF
Paid By
================================================================================
Received
CHECK/M.O.
IN
Number 77036
Date
4/06/09
JUGE, NAPOLITANO
Amount 25.00
NO. 718747
I
. _.. -------_.- _..
,
'
Case 2:11-cv-00068-EEF-KWR Document 1-2 ", , qTATJON
TYCO INTERNATIONAL, LTD" ET AL
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Filed 01/13/11 Page 5 of 29
SCAFFOLDING'RENTAL & ERECTION . SI%RVICES, LLC, ETAL .
TO: ACE AMERICAN INSURANCE COMPANY through the HON. JAY DARDENNE SECRETARY OF STATE BATON ROUGE, LA 70809 You have been suedfor PE111'ION FOR SUBROGATION
SERVED ON JAY DARDENNE
• APR 222009
SECRETARY OF STATE
COMMERCIAL DlII/S/ON
Attached to this citation is a certified copy a/the petition. The petition tells you what you are being sued/or.
You must either. do what the pelition asks or, within fifteen (J 5) days after you have received these documents, you mustftle an anSwer or other legal pleadings in the office of the Clerk of this Court at the Courthouse,4809 Hwy, J, Napoleonville, Louisiana, or mail to P.O. Drawer 249, Napoleonville, La. 70390,
'Ifyou do n~t do what the petition aski, or ifyou do not file an answer or legal pleading wilhinftfleen (J5) days
after you receive these documents, a judgment may be rendered against you without further notice to you.
WITNESS the Honorable Judges of our said Court on thiS, the 8TH day ofAPRIL, 2009.
~
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Service Information
Received on the _ _ _ day of
' 20_ _ and on the ____ day of
i ,
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. 2o__ served the above named party as follows:
Personal Service on the party herein named-,-;--;--c_-;-_--.,-:-:;---;-:-:c,--:--;~-77_:__;_-~ Domiciliary Service on the party herein named by leaving the same at his/her domicile in the parish in the hands of . a person apparently over the age a/seventeen
years, living and residing in said domicile and whose nam·e and other facts connected with this service, I learned by iflterroga.ling the said person, said party herein being absent from hislher residence at the time of
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said service.
Returned:
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\
Parish of_ _ _ _ _ _ _ _ _ _ _ _ _ _ this_'_-,-_day of
Service
$_--
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Mileage
By:-----------$,--,- - -
Deputy Sheriff
$_--
) Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 6 of 29
CIVIL DISTRICT COURT FOR THE PARISH OF ASSUMPTION STATE OF LOUISIANA NO. .
'jJ; 51tf
DlVISrQ.'Ni"y l! .,,~ ,'8ll®0K1&f NO. _ _ _ __ TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPANY
l:=-~r.\i~U~(GiDntTh.R
n
versus
SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC AND ACE AMERICAN INSURANCE COMP~,
FILED:
APR - 8 2009
~
I. ~
C
bf./ cJ,Ai!l
.
DEPUTY CLERK
REOUEST FOR WRITTEN NOTICE As provided by Article 1572 of the Louisiana Code of Civil Procedure, TYCO
International Ltd. and American Home Assurance Company, hereby request that written notice be provided of any date this matter is set for trial or conference or of nny date of
hearings of any pleadings or motions. at least ten (10) days in advance of said dates.
In addition, pursuant to Articles 1913 and 1914 of the Louisiana Code of Civil Procedure, TYCO International Ltd. and American Home Assurance Company request that written notice be provided of the signing of any final judgment or the rendition of any
interlocutory order or judgment in the above numbered and entitled cause.
Respectfully submitted,
WGE, NAPOLITANO, GUILBEAU, RULI, FRIEMAN & WHITELEY BY:
~MeM~lU¥:d-ffl~.~;g,:""'--E MARIE BOURQUE 266
3320 W. Esplanade Avenue North Metairie, Louisiana 70002 Telephone: (504) 831-7270 Facsimile: (504) 831-7284
CERTIPICATE OF SERVICE I hereby certify that a copy of the above and foregoing pleading has been served upon all counsel of record by placing same in the United States Mail, postage prepaid, this 61l> day of April, 20~ IlL
aJtfI
'01 . tJ. f'71'V\
~
~
JEANNE MARIE BOURQUE
-5-
Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 7 of 29
TYCO INTERNATIONAL, LTD. and AMERICAN HOME ASSURANCE COMPANY VERSUS SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC and ACE AMERICAN INSURANCE COMPANY
* *
23= JUDICIAL DISTRICT COURT
*
* * *
*
DOCKET NO.: 31,574 ASSUMPTION PARISH, LOUISIANA
* *
REOUEST FOR NOTICE OF DATE OF TRIAL, ETC. TO THE CLERI<: OF COURT of the Twenty-Third Judicial District Court in and for the Parish of Asslunption, Louisiana; Please tal<e notice that Preis & Roy, attorneys for Defendant, ACE AMERICAN
INSURANCE COMPANY, do hereby request written notice of the date of trial of the above matter
as well as notice of hearings (v.,rhether on rnerits or otherwise), orders,judglnents and interlocutory
decrees, and any and all formal steps taken by the parties herein, the Judge or any Inenlber of Court, as provided in Louisiana Code of Civil Procedure of 1960, particularly Articles 1572, 1913 and 1914. Respectfully Submitted,
BY:
L. L OY (#11513) AL YSE RICHARD (#31936) 102 Versailles Blvd., Ste. 40 Post Office Drawer 94-C Lafayette, LA 70509 Tel: (337) 237-6062 Fax: (337) 237-9129 Email: llr@preisroy.c0111 ar@preisroy.col11.
COUNSEL FOR: Ace American Insurance Conlpany
Case 2:11-cv-00068-EEF-KWR Document 1-2
, Filed 01/13/11 Page 8 of 29
,
.,-~
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has this date been served all counsel
record in this proceeding by:
(
( (
0
) Hand Delivery
) Facsimile ) Electronic J\1ail
11TH
( -.r ) Prepaid U's. Mail
( ( ) Prepaid U.S. Certified Mail Return Receipt Requested ) Federal Express
Lafayette, Louisiana, this
day of May, 2009
#1554867
~
Case 2:11-cv-00068-EEF-KWR Document 1-2 \.~"
TYCO INTERNATIONAL, LTD. and AMERICAN HOME ASSURANCE COMPANY VERSUS SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC and ACE ..8<MERICAN INSURANCE COMPANY
Filed 01/13/11 Page 9 of 29
* . 23= JUDICIAL DISTRICT COURT *
*
*
*
* * * *
DOCKET NO.: 31,574 ASSUMPTION PARISH, LOUISIANA
flA
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.
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ANSWER TO PETITION FOR SUBROGATION COURT, through undersigned counsel, comes SCAFFOLDING RENTAL
C: ~\o.,.. \.·~._--NOW INTO
~SS \\.\""....-~:,f'.'i;\S.~
AND ERECTION SERVICES, LLC, and ACE AMEIUCAN INSURANCE COMPANY,
Defendants
herein~
who answer Plaintiffs' Petition for Subrogation as follows:
I.
Insofar as they pertain to the name and status of Defendants, the allegations of paragraph 1
of Plaintiffs' Petition are adn1.itted. All other allegations are denied. 2. The allegations of paragraph 2 are denied save and except to admit that at all times pertinent hereto, Defendant Ace AInerican Insurance Company had in force and effect a policy of insurance, which policy of insurance, being a written instrument, is the best evidence of its own
contents and which policy of insurance is subject to all of its tenns, conditions, limitations and
exclusions therein
contained~
all of which are pleaded herein as though copied in extenso and all
of which will be more fully shown. All liability under the said policy of insurance is denied and all other allegations of paragraph 2 are denied.
3. The allegations of paragraph 3 are denied for lack of sufficient information to justify a belief therein. 4. The allegations of paragraph 4 do not require a response from Defendant. To the extent a
response is
required~
the allegations are denied for lack of sufficient infonnation to justify a
belief therein.
.0;
-....
,
00
,
':
.r=-
Case 2:11-cv-00068-EEF-KWR Document 1-2
5.
Filed 01/13/11 Page 10 of 29
The allegations of paragraph 5 do not require a response frain Defendant. To the extent a
response is
required~
the allegations are denied for lack of sufficient infonllation to justify a
belief therein.
6. The allegations of paragraph 6 are denied, and Defendants delnand strict proof of all
damages.
7.
The allegations of paragraph 7 do not require a response from Defendant. To the extent a response is required, the allegations are denied for lack of sufficient infolTIlation to justifY a
belief therein.
8.
The allegations of paragraph 8 are denied, and Defendants demand strict proof of all
damages.
9.
The allegations of paragraph 9 do not require a response froin Defendant. To th.e extent a response is required, the allegations are denied for lack of sufficient information to justifY a belief therein.
10.
AND FURTHER ANSWERING, Defendants, SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC, and ACE AMERICAN INSURANCE COMPANY, expressly reserve the right to plead such afiinnative defenses as further investigation and discovery may warrant, such defenses to perhaps include but not be lilnited to Plaintiffs' own cOlTlparative negligence or fault, said fault or negligence operating as a cOIllplete bar or in diI11inution of any recovery to which Plaintiffs n1ight othervvise be entitled. 1l. Defendants deny any liability, but on the contrary, aver that the incident and resulting darnages of Plaintiff's, if any, were caused by the fault; negligence, want of due care, or other legal fault of par"ties, named or unnamed, for whose actions Defendants are not responsible, \vhich luust
,
Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 11 of 29 ~ ..
be quantified and legally allocated accordingly, specifically including but not limited to the
negligence of Anthony Hehns, in the followi~g non-exclusive particulars:
a. Being inattentive to his physical surroundings;
b.
c. d.
Failing to act ""ith reasonable and proper care under the cirCUnlstances;
Acting carelessly and recklessly wIder the circmllstances; Failing to see that which he should have seen;
e. In general, in failing to do """hat he could have done and should have done to avoid the incident; and f. Any and all other acts of negligence which D'lay be proven through discovery or a trial of this mattyr.
WHEREFORE, premises considered, SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC, and ACE AMERICAN INSURANCE COMPANY pray that this Answer
to Plaintiffs' Petition be deelned good and sufficient and that the delnands of Plaintiffs be dismissed at their cost.
AND FOR ALL GENERAL AND EQUITABLE RELIEF, ETC. Respectfully Submitted, PREIS & ROY A Professional Law Corporation BY:
~~
L:LANE:ffy (#11513)
AL YSE RlCHARD (#31936) 102 Versailles Blvd., Ste. 400
Post Office Drawer 94-C
Lafayette, LA 70509 Tel: (337) 237-6062 Fax: (337) 237-9129 Email: llr@preisroy.cOlTl
ar@preisroy.COl1l.
COUNSEL FOR: Scaffolding Rental and Erection Services, LLC, and Ace American
Insurance Contpany
Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 12 of 29
CERTIFICATE OF SERVICE
record in this proceeding by:
(
( (
) Hand Delivery
) Facsimile ) Electronic Mail
( ,[) Prepaid U.S. Mail
( ) Prepaid U.S. Certified Mail Return Receipt Requested
(
) Federal Express
Lafayette> Louisiana> this 5"' day of June~ ~009
#1557503
ALYSE
HARD
Case 2:11-cv-00068-EEF-KWR Document 1-2
~,.
Filed 01/13/11 Page 13 of 29
TYL:O INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPANY VS
* *
*
STATE OF LOUISIANA
* *
SCAFFOLDING RENTAL AND * ERECTION SERVICES, LLC AND ACE* AMERICAN INSURANCE COMPANY *
*****************************************************************************
MOTION AND ORDER FOR LEAVE TO FILE FIRST AMENDED PETITION FOR SUBROGATION NOW INTO COURT, through undersigned counsel, come plaintiffs, the TYCO INTERNATIONAL LTD. AND AMERICAN HOME ASSURANCE COMPANY, who
moves this Honorable Court for leave of court to file the First An1.ended Petition for Subrogation. This is the plaintiffs' first request for leave to an1.end the Petition for Subrogation and no party
will be prejudiced by this request. WHEREFORE, plaintiffs, the TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPANY, hereby respectfully pray that this Honorable Court grant
leave of court to allow them to file the First Amended Petition for Subrogation in this matter.
Respectfully submitted: LAW OFFICE OF JEANNE M. BOURQUE
~~M VV1 . ~ b
JEANNE M. BOURQUE (#26607) 1106 Coolidge Blvd, Suite A Lafayette, La. 70503 Ph: (337) 704-2094 Fax: (337) 408-3572 Attorney for TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPANY
'---<...,
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has this date been served on all
counsel of record in this proceeding by:
( ( ) Hand Delivery ) Facsimile
~aid U.S. Mail
( ) Federal Express
Lafayette, Louisiana, this
~4Av1 AR- -yVl. ~
JEANNE MARIE BOURQUE
Olclt;J"ii'y of
OcR:
,2010.
Case 2:11-cv-00068-EEF-KWR Document 1-2
TYCO INTERNATIONAL LTD., AND 'AMERICAN HOME ASSURANCE COMPANY VS
Filed 01/13/11 Page 14 of 29
~
*
*
23 RD JUDICIAL DI,§:rm;CI·COURT
T:;if-';~~
* *
*
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.
DOCKET #31574, DIV. D
DY. CLERK OF COURT A.SSUMPTiON PARiSH, LA
A.nnelt:te ~o
.,
DATE
FILED
sap'
I)nin
OC:r--£,~-IU
SCAFFOLDING RENTAL AND * ERECTION SERVICES, LLC AND ACE* AMERICAN INSURANCE COMPANY *
ASSUMPTION PARISH, LOUISIANA STATE OF LOUISIANA
******************************************************************************
ORDER CONSIDERING THE FOREGOING Motion for Leave to file the First Amended Petition
for Subrogation;
IT IS HEREBY ORDERED that plaintiffs, TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPANY be allowed to file the First Amended
Petition for Subrogation i~thi matter.
:-?k j~~~~~~~'=,:"f:ao~U~is;rn,aoa, this ~ day of O~, 2010,
DISTRICT JUDGE
Case 2:11-cv-00068-EEF-KWR Document 1-2 Filed 01/13/11 Page 15 of 29 CITATION . -..J
TYCO INTERNATIONAL, LTD., ET AL
Versus _ /
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SCAFFOLDING RENTAL & ERECTION SERVICES, LLC, ET AL
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-
IV
Case: 031574 Division: D 23 rd Judicial District Court Parish ofAssumption State of Louisiana
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TO: SCAFFOLDING RENTAL & ERECTION SERVICES, LLC AND ACE AMEAf&~NS. Co. THROUGH THEIR ATTORNEY: L. LANE ROY, PREIS & ROY 102 VERSAILLES BLVD., SUITE 400 LAFAYETTE, LA 70509 You have been suedfor FIRST AMENDED PETITION FOR SUBROGATION
1) I!J~
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f/..h.
{..J!.---
Attached to this citation is a certified copy of the petition. The petition tells you what you are being suedfor. You must either do what the petition asks or, withinfifieen (15) days after you have received these documents, you must file an answer or other legal pleadings in the office of the Clerk of this Court at the Courthouse, 4809 I-Iwy. 1, Napoleonville, Louisiana, or mail to P.O. Drawer 249, Napoleonville, La. 70390. lfyou do not do what the petition asks, or ifyou do not file an answer or legal pleading withinfifieen (15) days after you receive these documents, a judgment may be rendered against you without fo-rther notice to you.
WITNESS the Honorable Judges of our said Court on this, the 27TH day of OCTOBER, 2010.
, , ,
, . , ,
,.
lsI Annette Joseph
Deputy Clerk of Court
Service Infornzation
0-
;
Received on the _ _ _ _ day of ' 20___ and on the _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _~, 20_ _ served the above named party as follows:
Personal Service on the party herein named_7"O_-:-_c-_-o-____--;_:_c;----;-~_:__:_;___,-_:_--_:_.,__:_....,.--~ Domiciliary Service on the party herein named by leaving the same at his/her domicile in the parish in the hands of a person apparently over the age of seventeen years, living and residing in said domicile and whose name and other facts connected with this service, I learned by interrogating the said person, said party herein being absentfrom his/her residence at the time of said service.
J
~
Returned: Par;sh of_ _ _ _ _ _ _ _ __ Service
Mileage Total
$ ______
_________ this _ _ _. _ day of
20_ _.
By: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
$,---$, _ _ _ __
Deputy Sheriff
[SERVICE COPY]
Case 2:11-cv-00068-EEF-KWR Document 1-2
TYCO INTERNATIONAL LTD." AND AMERICAN HOME ASSURANCE COMPANY VS
Filed 01/13/11 Page 16 of 29
* * * *
*
23 RD JUDICIAL DISTRICT COURT
" DOCKET #31574, DIV.
~'~rri'nng~~~~ PA~\S\"\,
0'1 CI..E.\'<.I\,
, AS
SUl<\P~\O'~
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SCAFFOLDING RENTAL AND * ERECTION SERVICES, LLC AND ACE* AMERICAN INSURANCE COMPANY *
ASSUMPTION PARISH, LOUll!!J"K STATE OF LOUISIANA
*****************************************************************************
FIRST AMENDED PETITION FOR SUBROGATION NOW INTO COURT, through undersigned counsel, come plaintiffs, TYCO
INTERNATIONAL LTD." AND AMERICAN HOME ASSURANCE COMPANY, who
runend the original Petition for Subrogation in the following respect:
I.
Made defendants herein arc:
C.
ANTHONY HEIMS, upon information and belief, a person of the full age of majority and a resident and domiciliary of ASSUMPTION Parish, Louisiana.
VIII.
TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE
COMPANY are subrogated legally and contractually to the rights of solidary obligor, ANTHONY HEIMS, to the extent of the amounts paid by AMERICAN HOME ASSURANCE . COMPANY to andlor on behalf of ANTHONY HEIMS, and also to the extent of any additional amounts which TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPANY may be presently obligated to payor might in the future be obligated to pay to and on behalf of ANTHONY HEIMS. Therefore, AMERICAN HOME ASSURANCE COMPANY
is entitled to be paid such amount of any damages which might be awarded to ANTHONY HEIMS, by way of Judgment or settlement out of preference and priority, and against
Defendants, jointly, severally and in solido, together with all legal interest from the date of
judicial demand, until paid, and any and all expenses.
WHEREFORE, Petitioners, TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPANY, pray as follows: A. That they be allowed to file this Amended Petition for Subrogation, and that after due
proceedings are had. there
be judglnent in favor of Petitioners and against
defendants, in the amount of indenl.nity and Inedical benefits paid to and/or on behalf of ANTHONY I-:IEIMS, under the Louisiana Workers' Compensation Act, together
.,(
Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 17 of 29
with all other amounts which may be paid by TYCO INTERNATIONAL LTD., AND/OR AMERICAN I-lOME ASSURANCE COMPANY in the future; B. That a copy of this Amended Petition for Subrogation be served upon ANTHONY HEIMS, through his Attorney, Marc Kutner, and he be required to appear and answer
the ll1atters aforesaid;
C. After all due proceedings are had, there be judgment in favor of Petitioners, TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPANY, and against Defendants, ANTHONY HEIMS, SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC, and its insurer, ACE AMERICAN INSURANCE COMPANY, jointly, severally and in solido, for the full amount of any and all sums paid by Petitioners to or on behalf of ANTHONY HEIMS, as a result of injuries
resulting from the aforesaid accident, together with judicial interest, attorney's fees
,and any and all costs incurred in this litigation; and
D. That Petitioners, TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPANY, be granted any and all equitable relief to which they may be entitled and to which this Honorable Court may be competent to grant.
Respectfully submitted: LAW OFFICE OF JEANNE M. BOURQUE
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JEANNE M. BOURQUE (#26607) 1106 Coolidge Blvd, Suite A Lafayette, La. 70503 Ph: (337) 704-2094 Fax: (337) 408-3572 Attorney for TYCO INTERNATIONAL LTD." AND AMERICAN HOME ASSURANCE COMPANY
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SERVICE INSTRUCTIONS: Anthony I-feims Through his Attorney,
Mr. Marc E. Kutner SPAGNOLETTI & CO 401 Louisrana Street, Stl. Floor
Houston, TX 77002 2
Case 2:11-cv-00068-EEF-KWR Document 1-2
SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC AND ACE AMERICAN INSURANCE COMPANY Through their Attorney,
L. Lane Roy PREIS & ROY 102 Versailles Blvd., Suite 400 Lafayette, LA 70509
Filed 01/13/11 Page 18 of 29
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Case 2:11-cv-00068-EEF-KWR Document 1-2 Filed 01/13/11 Page 19 of 29 CITATION
CO!!se: 03I574 Divisioll: D 23 rd Judicial District COllrt Parish of Assumption State of Louisiana
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TYCO INTERNATIONAL, LTD., ET AL Versus SCAFFOLDING RENTAL & ERECTION SERVICES, LLC, ET AL
TO: SCAFFOLDING RENTAL & ERECTION SERVICES, LLC AND ACE AMERICAN INSURANCE CO. THROUGH THEIR COUNSEL OF RECORD: L. LANE ROY, PREIS & ROY 102 VERSAILLES BLVD., SUITE 400 LAFAYETTE, LA 70509 ; You have been suedfor ANSWER AND CROSS CLAIM Attached to this citation is a certified copy of the petitiOn. The petition tells you what you are being suedfor. You must either do what the petition asks or, within fifteen (15) days after you have received these documents, you must file an answer or other legal pleadings in the office of the Clerk of this Court at the Courthouse, 4809 H·wy. 1, Napoleonville, Louisiana, or mail to P. O. Drawer 249, Napoleonville, La. 70390. lfyou do not do what the petition asks, or ifyou do notfile an answer or legal pleading within fifteen (15) days after you receive these documents, ajudgment may be rendered against you without further notice to you. WITNESS the Honorable Judges of our said Court on this, the 9TH day ofDECEMBER ,2010.
lsI Annette Joseph
Deputy Clerk of Court
Service Information
________-_-_-_-_-_-_--=,
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Received on the
day of , 20_ _ _ and on the _ _ _ _ _ day of 20_ _ served the above named party as follows:
Personal Service on the party herein named -07~---,--__o----~_:__;;_-_.,_-:_:_,___:_""CO--_:__;_~__:_;_---· Domiciliary Service on the party herein named by leaving the same at his/her domicile in the parish in the hands of . a person apparently over the age ofseventeen years, living and residing in said domicile and whose name and other facts connected with this service, I learned by interrogating the said person, said party herein being absentfronl his/her residence at the time of said service.
Returned: Parish of Service
$ $ $
this _ _ _ _ day of_ _ _ _ _ _ _ _ _~, 20_ _
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Mileage Total
By: - - - : : : - - - : c c - - c - : : - - - - - - - - - - - - Deputy Sheriff
[SERVICE COPY]
Case 2:11-cv-00068-EEF-KWR Document 1-2
i . Filed 01/13/11 Page 20 of 29 '-J
TYCO INTERNATIONAL LTD., AND " AMERICAN HOME ASSURANCE COMPANY \) e'l"·
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23 RD JUDICIAL DISTRICT COURT
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SCAFFOLDING RENTAL ERECTION SERVICES, LLC AND ACE AMERICAN INSURANCE COMPANY
py~t"'CEr<}. 6':A~;:t:;:;<; '::fo 2011 ASSUMPTION PARISH, LOU;!$~V --~~-.
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STATE OF LOUISIANA
ANSWER AND CROSS-CLAIM TO THE HONORABLE 23RD JUDICIAL DISTRICT COURT, SITTING IN AND FOR THE PARISH OF ASSUMPTION, STATE OF LOUISIANA: NOW INTO COURT, through undersigned counsel, comes ANTHONY HEIMS,
Defendant, who appears herein to file responsive pleadings to the First Amended Petition for Subrogation, to-wit:
ANSWER
1. The allegations contained in Paragraph L C. of the First Amended Petition for
Subrogation are denied as to the allegation that ANTHONY HEWS is a resident of Assumption Parish. Otherwise. the allegations of said paragraph are admitted.
2. The allegation contained in paragraph VIII of the First Aluended Petition for
Subrogation, that TYCO INTERNATIONAL LTD., and AMERICAN HOME ASSURANCE COMPANY are subrogated legally and contractually to the rights of solidary obligor ANTHONY HElMS to the extent of the amounts paid by AMERICAN HOME ASSURANCE COMPANY to andlor on behalf of ANTHONY HEIMS, and to the extent of any additional amounts which they
may be presently obligated to payor might in the future be obligated to pay is admittre.4~_: Otherwise the allegations of said paragraph are denied.
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CROSS-CLAIM NOW INTO COURT, through undersigned counsel, comes ANTHONY
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Plaintiff. who represents that he is a resident citizen of Ascension Parish. Louisiana. and appears
herein to file this Cross-Claim against Defendants SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC and ACE AMERICAN INSURANCE COMPANY pursuant to Louisiana Code of Civil Procedure Article 1071, to-wit:
1.
Made Defendants herein are SCAFFOLDING RENTAL AND ERECTION
SERVICES. LLC. a Louisiana company authorized to do business in the State of Louisiana. and
Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 21 of 29
ACE AMERICAN INSURANCE COMPANY, a foreign insurance company authorized to do
business in the State of Louisiana.
2.
At all times pertinent herein, ACE AMERI~AN INSURANCE COMPANY is
believed to have insured SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC against
liability for personal injuries caused by the negligence of its employees, agents and servants.
3.
On or about April 9, 2008, while Plaintiff ANTHONY HEIMS was working for
TYCO INTERNATIONAL LTD. at International-Matex Tanle Terminals' facility located in
Geislllar, Louisiana, he sustained severe and disabling lnjur.ies to his back and left knee, muong
other injuries, when he fell from Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC's scaffold ladders, which came apart as he was descending the scaffold. Said injuries were solely and proximately caused by the negligence of Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC, its agents, servants and/or employees, acting in
the course and scope of their employnlent.
4.
Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC was
hired to erect, inspect, and dismantle scaffolds where instructed at International-Matex Tank
Terntinals' facility. Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC understood that scaffolds it erected and inspected would be used by Plaintiff ANTHONY HEIMS and TYCO INTERNATIONAL LTD. in connection with their work at International-Matex Tanle Terminals' facility. Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC
had a duty to ensure that the scaffolds it erected and inspected were safe and fit for their intended
use. The scaffold that Plaintiff ANTHONY HEIMS was descending at the time of his injury was
iluproperly and negligently erected, inspected and maintained. The scaffold incorporated Inultiple ladders, which were adjoined to one another through nlale-fernale connections. The ladders were not adequatelY interconnected and locked together, and the lowest ladder did not sit
firmly on the ground. Plaintiff ANTHONY HEIMS was de!,cending tlle scaffold on the ladders.
When he was still ten to fifteen feet froin the bottom of the ladders. the male-fen1.ale
c~onnection
of the ladders failed, and the upper ladder separated frOIn tile ladder below it. and pulled away
from tl,e scaffold. That caused Plaintiff ANTHONY HEIMS to fall to the solid ground below.
It was unreasonably dangerous for tile ladders to come apart while sOll1ebody was atteillpting to
descend the scaffold. When Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC built the scaffold, it did not intend for tllose sections to come apart while
Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 22 of 29
sOlTIebody was descending on the ladders. There were ways with which Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC was familiar, from the many year's that it had been building scaffolds, to prevent those ladder sections frOITI coming apart while Plaintiff ANTHONY HEIMS was descending, but Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC failed to construct the scaffold in question in such a manner. Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC failed to perform reasonable and prudent inspections of the scaffolding. including the ladders. to ensure that it was safe for Plaintiff ANTHONY HEIMS to use. Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES. LLC knew, or should have-Icnown, that the scaffold in question was in an unreasonably dangerous condition, and unsafe for Plaintiff ANTI-IONY I-IEllvIS to use. Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC failed to remedy the unreasonably dangerous condition, or to warn Plaintiff ANTHONY HEIMS of the unreasonably dangerous condition of the scaffold. This negligent conduct solely and proximately caused the injuries and damages suffered by Plaintiff ANTHONY HEIMS. 5. By reason of the occurrence made the basis of this action, and the negligent
conduct on the part of Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC, Plaintiff ANTHONY HEIMS sustained severe bodily injuries, as well as physical pain and mental anguish in the past. In all reasonable medical probability, Plaintiff ANTHONY HEIMS will continue to suffer physical pain and mental anguish
f~r
the balance of his natural life.
Plaintiff ANTHONY HEIMS has also suffered a loss of wages in the past, and in reasonable probability a permanent loss of the capacity to work and
ea~:n
Inoney for the remainder of his
worklife. Plaintiff ANTHONY HEIMS has also suffered physical impairment in the past. In all reasonable medical probability, Plaintiff ANTHONY HEIMS will continue to suffer physical irnpainnent for the balance of his natural life. Plaintiff ANTI-IONY HEllvIS has also suffered, and continues to suffer frOITI a loss of enjoyment of -his life,:. which in all reasonable probability he will continue to experience for the reInainder of his life.
6.
By reason of the OCCUlTence m_ade the basis of this action, and the negligent
conduct on the part of Defendant Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC. Plaintiff ANTI-IONY HEllvIS has incurred reasonable and necessary Inedical expenses in the past and, in reasonable probability, "viII incur reasonable Inedical expenses in tile future.
Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 23 of 29
7.
Defendant SCAFFOLDING RENTAL ANt- ERECTION SERVICES, LLC and
its insurer, Defendant ACE AMERICAN INSURANCE COMPANY are legally obligated to pay monetalY damages to Plaintiff ANTHONY HEIMS for the injuries and damages he has suffered as a direct and proxiLnate result of the negligence of Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC. WHEREFORE, Plaintiff ANTHONY HEIMS prays that:
a. copies of this Answer and Cross-Claim be served upon Jeanne Marie Bourque, Law Office of Jeanne Marie Bourque, 1106 Coolidge Blvd., Suite A, Lafayette, Louisiana 70503, the counsel for Plaintiff TYCO INTERNATIONAL LTD. and Plaintiff AMERICAN HOME ASSURANCE COMPANY, and L. Lane Roy, Preis & Roy, 102 Versailles Blvd., Suite 400, Lafayette, Louisiana 70509, the counsel of record for Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC and Defendant ACE AMERICAN INSURANCE COMPANY, in accordance with Louisiana Code of Civil Procedure Articles 1072 and 1314(A)(2)(a);
b.
Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC and Defendant ACE AMERICAN INSURANCE COMPANY be required to appear and answer the allegations contained herein;
after all due proceedings are had, he be awarded a judglnent in his favor against Defendant SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC and Defendant ACE AMERICAN INSURANCE COMPANY, jointly, severally and in solido, for all damages he has sustained as a result of the said Defendants' negligence. in an mnount to be decided by the trier of fact, together with judicial interest, attorney's fees if any are pennitted, and all costs incuned in connection with this litigation; and '
c.
d.
he be granted any and all further relief, equitable or special, to which he may be justly entitled and to which this Court may be competent to grant. Respectfully submitted,
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David Ardoin (#_) 501 West 3rd Street Thibqdaux, L,.'\. 70301-3015 Telephone: 985-447-9554 Facsimile: 985-447-9550 and
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A TRUE Copy
CLERK OF COURT'S OFfICE NAPOLEONVILLE, I'.A. 703S0
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Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 24 of 29
SPAGNOLETTI & CO.
Francis I. Spagnoletti State Bar No. 18869600 Marc Evan I(;utner State Bar No. 11770575 401 Louisiana Street, 8 th Floor Houston, Texas 77002 Telephone: '. 713-653-5600 Facsimile: 713-653-5656
ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has this date been served on all counsel of record in this proceeding by: ( ( ( ) I-land Delivery ) Facsimile ) Overnight Delivery ( ( ) Prepaid U.S. Mail, Certified Return Receipt Requested ) Electronic Mail
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Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 25 of 29
TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPANY VS SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC AND ACE AMERICAN INSURANCE COMPANY
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23 RD JUDICIAL DISTRICT COURT
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DOCKET #31574, DIY. D ASSUMPTION PARISH, LOUISIANA STATE OF LOmSIANA
REOUEST FOR NOTICE
TO THE HONORABLE 23RD JUDICIAL DISTRICT COURT, SITTING IN AND FOR TI-IE PARISH OF ASSUMPTION, STATE OF LOUISIANA: NOW INTO COURT, through undersigned counsel, comes ANTHONY HEIMS,
Defendant and Cross-Clailnant, and in accor-dance with the provisions of La. Code Civ. ProG. Ann. Art. 1572, requests that you to send to hin1., through the undersigned counsel, written notice of the date assigned by the Court for trial on the merits as well as the date set for the hearing
andlor trial of any and allillotions, pleadings and other matters, at least 10 days in advance of tlle
same, and written notice of the signing of any final judglnent and/or the rendition of any
interlocutory order orjudglnent, as provided for in La. Code Civ. PrOG. Ann. Arts. 1913 and 1914 for the above nUlnbered cause.
Respectfully submitted,
Brad X. Naquin (#-,----J David Ardoin (#-.J 2Ji-Z-~?.501 West 3rd Street Thibodaux, LA 70301-3015 Telephone: 985-447-9554 Facsimile: 985-447-9550 SPAGNOLETTI & CO. Francis L Spagnoletti State Bar No. 18869600 Marc Evan Kutner State Bar No. 11770575 401 Louisiana Street. 8 lh Floor Houston, Texas 77002 Telephone: 713-653-5600 Facsimile: 713-653-5656 ATTORNEYS FORPLAINTWF
Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 26 of 29
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has tlus date been served on all counsel of record in this proceeding by: ( ( ( ) Hand Delivery ) Facsinule ) Overnight Delivery ( ) Prepaid U.S. Mail, Certified Return Receipt Requested
Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 27 of 29
TYCO INTERNATIONAL LTD., AND * 23,m JUDICIAL DIST AMERICAN HOME ASSURANCE ". COM ANY . By·FAX 01'1. P P.6CE\VEO
~C ~ PAle"<'''' . . SCAFFOLDING RENTAL AND "ASSUMPTION PARISH, LOUISIANA ERECTION SERVICES, LLC AND ACE * AMERICAN INSURANCE COMPANY" STATE OF LOUISIANA
VS
). . .•.. - . .:----c· ..•~,·6,.;'~~~:·'.:"" ".~:~T~OiW:'P.\~U~~·\~k~ RECEIVED Oli'I?C)~gg:(ET #31574, DIY. D §"..,"\J:-~\n\l ?l \) L ,\U.
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APPLICATION FOR ADMISSION PRO HAC VICE TO THE HONORABLE 23RD JUDICIAL DISTRICT COURT, SITTING IN AND FOR THE PARISH OF ASSUMPTION, STATE OF LOUISIANA:
In accordance with Louisiana Statutes Annotated, R.S. 37 :214, application is luade by Marc
Evan K.utner to be adnlitted pro hac vice to the Bar of this Court for the purpose of appeariIlg on
behalf of Defendant and Cross-Claimant, ANTHONY HEIMS, in the above-described action.
I an"l not a 111.eluber of the Bar of the State of Louisiana, but I anl a Inelnber in good standing of the Bar of the State of Texas and the United States District Court for the Southern District of Texas. There have been no disciplinary proceedings or criminal charges instituted against n'le. h'l accordall_ce with Louisiana Statutes Annotated, R.S. 37:214, Brad K ... Naquin and David Ardoin~ who have appeared for Defendant and Cross-Claimant, AN".rHONY HEIIVIS herein, are appointed as local coun~el. '
Respectfully submitted,
Signatnre of Applying Attomey Marc Evan leutner State B~ No. 11770575 Spagnoletti & Co. 401 Louisiana Street, 8 th Floor Houston, Texas 77002 Telephone: ·713-653-5600 Facsimile: 713-653-5656 Elnail: l11kutner@spaglaw.coln
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Si ~ 0 'Local Counsel Brad K. Naquin (#~ David Ardoin (#......J 2. 'I7.0'z. 501 West 3rd Street Thibodaux, LA 70301-3015 Telephone: 985-447-9554 Facsimile: 985-447-9550
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has this date been served on all counsel of record in this proceeding by: ( ( ( ) Hand Delivery ) Facsimile ) Overnight Delivery ( ( ) Prepaid U.S. Mail, Celiified Return Receipt Requested ) Electronic Mail
Case 2:11-cv-00068-EEF-KWR Document 1-2
Filed 01/13/11 Page 28 of 29
TYCO INTERNATIONAL LTD., AND AMERICAN I-lOME ASSURANCE COMPANY VS SCAFFOLDING RENTAL AND ERECTION SERVICES, LLC AND ACE AMERICAN INSURANCE COMPANY
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23 RD JUDICIAL DISTRICT COURT
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DOCKET #31574, DIY. D ; ASSUMPTION PARISH, LOUISIANA STATE OF LOUISIANA
ORDER
IT IS ORDERED that Marc Evan Kutner be and is tiereby admitted to the Bar of tIus Court
pro hac vice on behalf of ANTI-IONY I-:IEIIVIS, Defendant and Cross-Clailnant in th.e abovedescribed action.
This _r?_ day of M~<.A.-'
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,2010.
PRESIDfNG JUDGE
-·; ··he_MilazZO Jane 1 \ d.;. . \ i:nstrict court Judge,
2"rd
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Division D
JUdiCIa
A TRUE COpy CLERK OF COURT'S OFFICE NAPOLEONVillE, lAo 70390
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Case 2:11-cv-00068-EEF-KWR Document 1-2
, TYCO INTERNATIONAL LTD., AND AMERICAN HOME ASSURANCE COMPANY \\11:.0 13'1 f
Filed 01/13/11 Page 29 of 29
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23 RD JUDICIAL DISTRICT COURT
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SCAFFOLDING RENTAL ERECTION SERVICES, LLCAND ACE AMERICAN INSURANCE COMPANY
ASSUMPTION PARISH, LOUISIANA STATE OF LOUISIANA
AFFIDAVIT OF MARC EVAN KUTNER THE STATE OF TEXAS COUNTY OF HARRIS
§ §
On this day personally appeared before me, Marc Evan Kutner, Affiant, who stated under oath as follows: 1. My name is Marc Evan Kutner. I am over the age of eighteen (18) years and am fully competent to testify to the matters set forth herein. I have read the foregoing Application for Admission Pro Hac Vice and all statements contained therein are true and correct.
Marc Evan Kutner
Subscribed and sworn to before me, Notary Public, on this 15 th day of November, 2010.
No~tif££--'
the State of Texas My Commission Expires:
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~0j.k;;:., NANETTE J. HAfnDEGEN
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02-~4-2013
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