Case 1:12-cv WJM-KMT Document 1 Filed 12/14/12 USDC Colorado Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:12-cv WJM-KMT Document 1 Filed 12/14/12 USDC Colorado Page 1 of 6 Civil Action No. 12-CV-3270 BALBOA INSURANCE COMPANY, Plaintiff v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO LAURA ZASPEL, an individual; LAURA L. CIANCIO, an individual, NICHOLAS C. CIANCIO, a minor; ISABELLA C. CIANCIO, a minor; BRIANNA R. CIANCIO, a minor; and THE ESTATE OF THOMAS PAUL CIANCIO, deceased. Defendant. COMPLAINT FOR DECLARATORY RELIEF Balboa Insurance Company, by and through its counsel, Franklin D. Patterson, Brian D. Kennedy and the law firm of Frank Patterson & Associates, P.C., alleges: JURISDICTION AND VENUE 1. Plaintiff Balboa Insurance Company is a corporation created and existing under the laws of the State of California with its principal place of business in Irvine, California, and is licensed to do business in the State of Colorado. 2. Defendant Laura Zaspel is a resident of the State of Colorado. 3. Defendant Laura L. Ciancio is a resident of the State of Colorado and is the parent of Defendants Nicholas C. Ciancio, Isabella C. Ciancio and Brianna R. Ciancio. 4. Defendants Nicholas C. Ciancio, Isabella C. Ciancio and Brianna R. Ciancio are residents of the State of Colorado. 1

2 Case 1:12-cv WJM-KMT Document 1 Filed 12/14/12 USDC Colorado Page 2 of 6 5. Thomas Paul Ciancio was a resident of the State of Colorado and, upon information and belief, his estate has been opened in Colorado. 6. This Court has diversity jurisdiction pursuant to 28 U.S.C as this is a controversy between citizens of different states involving wrongful death and economic loss claims in excess of $75,000, and insurance coverage in excess of $75, The claims for relief contained in this Complaint are instituted to obtain declaratory judgment pursuant to 28 U.S.C. 2201(a) and Rule 57 of the Federal Rules of Civil Procedure GENERAL ALLEGATIONS 8. Balboa Insurance Company issued a policy for homeowners insurance to Todd Zaspel for the policy period of March 12, 2009 to March 12, At all relevant times, Todd Zaspel was married to Defendant Laura Zaspel. Under the Balboa Insurance Homeowner s Policy, Defendant Laura Zaspel is an insured. 9. At all relevant times, Laura Zaspel was the president and Chief Executive Officer of Fowler Software Design, LLC. 10. Fowler Software and Design is a limited liability company organized under the laws of Colorado. In addition, Fowler Software Design is a WISE (World Institute of Scientology Enterprises) business managed in accordance with the doctrines of the Church of Scientology ( Church ). 11. At all relevant times, William Rex ( Rex ) Fowler was the Chief Financial Officer and co-owner of Fowler Software and Design, LLC. 2

3 Case 1:12-cv WJM-KMT Document 1 Filed 12/14/12 USDC Colorado Page 3 of In December of 2008, Laura Zaspel learned that Rex Fowler had transferred money from Fowler Software and Design without authorization to entities and projects affiliated with the Church. 13. At that time, Thomas Ciancio was an employee of Fowler Software Design but not a member of the Church. Thomas Ciancio resigned his membership at Fowler Software Design on November 23, Following Thomas Ciancio s resignation, a disagreement developed between him and Rex Fowler over financial matters. Specifically, Rex Fowler believed that Thomas Ciancio or Thomas Ciancio s company, C2IT, owed money to Fowler Software and Design. 15. On December 29, 2009, Mrs. Zaspel told Thomas Ciancio that Fowler Software and Design would pay him or C2IT approximately $10,000. Mrs. Zaspel told Thomas Ciancio to meet Rex Fowler the following day at the offices of Fowler Software and Design to receive a check and sign a waiver form. 16. The Ciancio Defendants have alleged that in late December 2009, Rex Fowler made several statements to Laura Zaspel that, based upon the language and doctrines of L. Ron Hubbard and the Church, Defendant Zaspel reasonably should have understood that Rex Fowler posed a danger of physical harm to Mr. Ciancio. 17. On December 30, 2009, Thomas Ciancio was fatally shot by Mr. Rex Fowler at the Fowler Software and Design offices. 18. Defendant Zaspel claims that she is entitled to defense and indemnity under the Balboa Insurance Homeowner s Policy for Rex Fowler s killing of Thomas Ciancio at the Fowler Software and Design offices. 3

4 Case 1:12-cv WJM-KMT Document 1 Filed 12/14/12 USDC Colorado Page 4 of Laura L. Ciancio, individually, as parent and next friend to Defendants Nicholas C. Ciancio, Isabella C. Ciancio and Brianna R. Ciancio and as personal representative of The Estate of Thomas Paul Ciancio, filed a lawsuit in the City & County of Broomfield, Colorado District Court seeking to recover economic losses sustained by the estate and to recover wrongful death damages from Defendant Laura Zaspel, as well as others. 20. The Ciancio Defendants are seeking damages from Defendant Zaspel in excess of $75, Were there to be liability coverage available to Defendant Zaspel under the policy, the Balboa Insurance Homeowner s Policy has limits in excess of $75, The injuries to Thomas Ciancio and the resulting alleged damages to the Ciancio Defendants arose from or in connection with the operation of a business by Defendant Laura Zaspel. 23. The Balboa Insurance Homeowner s Policy specifically excludes bodily injury that arises out of or in connection with a business engaged in by an insured. The policy also excludes coverage for intentional acts of insureds and for criminal conduct of insureds. 24. On May 7, 2010, Balboa Insurance Company wrote to Defendant Zaspel s attorney advising him that the Balboa Insurance Homeowner s Policy does not provide liability coverage for any claim arising out of the December 30, 2009 incident. FIRST CLAIM FOR RELIEF (Declaratory Relief) 4

5 Case 1:12-cv WJM-KMT Document 1 Filed 12/14/12 USDC Colorado Page 5 of Balboa Insurance Company hereby incorporates each and every allegation set forth in paragraphs 1 through 24 above as if fully set forth herein. 26. Balboa Insurance Company is entitled to have the Court clarify and declare its rights and obligations under the Balboa Insurance Homeowners Policy pursuant to Federal Rule of Civil Procedure A controversy has arisen as a result of incident on December 30, 2009, claims asserted against Defendant Zaspel by the Ciancio Defendants, claims for insurance coverage and Balboa Insurance Company s initiation of this litigation against Defendants. 28. The Court s ruling on these issues will fully and finally resolve the uncertainty and controversy as to all the interested parties, meaning those who are potentially obligated to pay and receive monies as under the Balboa Insurance Homeowners Policy as a result of the incident on December 30, The purely legal issues raised by this lawsuit will not prejudice the ability of any Defendant to prosecute or defend any action at law. 30. By reason of the foregoing, there now exists an actual, justiciable controversy among the parties. This Court is vested with the power to declare and adjudicate the rights and legal relationships of the parties to this action with reference to the issues raised by this Complaint. 31. Balboa Insurance Company desires a judicial determination of the rights and obligations of each of the parties to this action with respect to the Balboa Insurance Homeowners Policy in conformity with the allegations set forth above. 5

6 Case 1:12-cv WJM-KMT Document 1 Filed 12/14/12 USDC Colorado Page 6 of A judicial determination is necessary and appropriate at this time in order that the parties may ascertain their respective rights and duties as to one another and may conduct themselves accordingly now and in the future. WHEREFORE, Balboa Insurance Company prays for judgment as follows: A. For a declaratory judgment decreeing the rights and obligations of the parties under the Balboa Insurance Homeowners Policy; B. For a declaration that Balboa Insurance Company owes neither defense nor indemnity under the Balboa Insurance Homeowners Policy for claims arising from the December 30, 2009 incident; and C. For costs of suit incurred herein. Respectfully submitted this 14 th day of December, FRANK PATTERSON & ASSOCIATES, P.C. By: s/ Brian D. Kennedy Franklin D. Patterson Brian D. Kennedy 5613 DTC Parkway, Suite 400 Greenwood Village, Colorado Telephone: (303) fdpatterson@frankpattersonlaw.com bkennedy@frankpattersonlaw.com Attorneys for Plaintiff 6

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