IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Transcription

1 Case 1:10-cv WSD Document 6 Filed 09/07/10 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION RACETRAC PRETROLEUM, INC., A Georgia Corporation, CIVIL ACTION FILE Plaintiff, NO. 1:10-cv-2162-WSD vs. ACE AMERICAN INSURANCE COMPANY, a Pennsylvania corporation, Defendant. DEFE DA T ACE AMERICA I SURA CE COMPA Y'S RULE 26.1B MA DATORY I ITIAL DISCLOSURES Defendant ACE American Insurance Company (hereinafter ACE, pursuant to Rule 26.1B of the Local Civil Rules of the United States District Court for the Northern District of Georgia, makes the following Initial Disclosures. (1 If the defendant is improperly identified, state defendant s correct identification and state whether defendant will accept service of an amended summons and complaint reflecting the information furnished in this disclosure response. ACE is properly identified. (2 Provide the names of any parties whom defendant contends are necessary parties to this action, but who have not been named by plaintiff. If 1

2 Case 1:10-cv WSD Document 6 Filed 09/07/10 Page 2 of 11 defendant contends that there is a question of misjoinder of parties, provide the reasons for defendant s contention. ACE is currently unaware of additional necessary parties to this action at this time, but reserves the right to amend its response should it discover other necessary parties at a later time. (3 Provide a detailed factual basis for the defense or defenses and any counterclaims or crossclaims asserted by defendant in the responsive pleading. ACE issued an insurance contract to RaceTrac, Excess Commercial General Liability Policy number XSL-G , with effective dates from June 1, 2005 through June 1, 2006 (hereinafter the Policy, subject to the contract s terms, conditions, limitations and exclusions. ACE also issued an excess liability insurance contract to RaceTrac, Excess Commercial General Liability Policy number XSL-G , with effective dates from June 1, 2006 through June 1, 2007 (hereinafter the Policy, subject to the contract s terms, conditions, limitations and exclusions. Plaintiff RaceTrac filed this declaratory judgment action seeking a declaration claiming that ACE must provide coverage under the excess liability insurance contracts to indemnify RaceTrac for damages for which it may be held liable in two personal injury lawsuits currently pending in Mississippi because the pollution exclusion in the excess liability insurance contracts is unenforceable 2

3 Case 1:10-cv WSD Document 6 Filed 09/07/10 Page 3 of 11 as against the public policy of the State of Georgia. ACE submits that this Court does not have subject matter jurisdiction over RaceTrac s claims because the complaint does not set forth facts showing the existence of a justiciable controversy, is not ripe for adjudication, and seeks an advisory opinion. ACE also denies RaceTrac s allegations that the claims asserted in the personal injury lawsuits are covered under the excess policies and that the pollution exclusion violates the public policy of the State of Georgia. Other terms, conditions, limitations or exclusions in the policies may preclude coverage for the lawsuits. RaceTrac s claims may be barred by its failure to provide timely notice of the occurrences and claims, as required under the terms of the ACE excess insurance contracts. Further, to the extent there is coverage under the excess liability insurance contracts, and ACE denies there is, RaceTrac s claims comprise only one occurrence, as that term is defined in the contracts. ACE also believes that, to the extend there is coverage under the insurance contracts, which ACE denies, RaceTrac s claims trigger coverage under only one of the excess liability insurance contracts. Finally, RaceTrac has not exhausted or paid its $500, selfretained limit per policy per occurrence under which RaceTrac claims coverage. ACE reserves the right to rely upon all other defenses as set forth in its answer. 3

4 Case 1:10-cv WSD Document 6 Filed 09/07/10 Page 4 of 11 (4 Describe in detail all statutes, codes, regulations, legal principles, standards and customs or usages, and illustrative case law which defendant contends are applicable to this action. ACE submits that the following statutory provisions and case law will apply to this case: 1 The Declaratory Judgment Act, 28 U.S.C. 2201(a, and cases interpreting same, including Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409 (11 th Cir. 1995; Tilley Lamp Co. v. Thacker, 454 F.2d 805 (5 th Cir. 1972; Am. Ins. Co. v. Evercare, 699 F. Supp. 2d 1355 (.D. Ga Georgia law on contracts, O.C.G.A et seq., and cases interpreting same 3 Georgia law on attorney s fees, O.C.G.A , and cases interpreting same 4 Georgia law on bad faith, O.C.G.A , and cases interpreting same (5 Provide the name and, if known, the address and telephone number of each individual likely to have discoverable information that you may use to support your claims or defenses, unless solely for impeachment, identifying the 4

5 Case 1:10-cv WSD Document 6 Filed 09/07/10 Page 5 of 11 subjects of the information. (Attach witness list to Responses to Initial Disclosures as Attachment A. See Attachment A. (6 Provide the name of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence. For all experts described in Fed. R. Civ. P. 26(a(2(B, provide a separate written report satisfying the provisions of that rule. (Attach expert witness list and written reports to Responses to Initial Disclosures as Attachment B. At the time of filing its initial disclosures, ACE has not designated an expert to testify at trial. ACE will supplement its response to this disclosure request once it has made a decision about expert witnesses. (7 Provide a copy of, or description by category and location of, all documents, data compilations, and tangible things in your possession, custody, or control that you may use to support your claims or defenses unless solely for impeachment, identifying the subjects of the information. (Attach document list and descriptions to Responses to Initial Disclosures as Attachment C. See Attachment C. (8 In the space provided below, provide a computation of any category of damages claimed by you. In addition, include a copy of, or describe by category and location of, the documents or other evidentiary material, not privileged or 5

6 Case 1:10-cv WSD Document 6 Filed 09/07/10 Page 6 of 11 protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered, making such documents or evidentiary material available for inspection and copying as under Fed.R. Civ. P. 34. (Attach any copies and descriptions to Responses to Initial Disclosures as Attachment D. ACE claims no damages or entitlement to damages other than costs and attorneys fees as allowed by law. (9 If defendant contends that some other person or legal entity is, in whole or in part, liable to plaintiff or defendant in this matter, state the full name, address, and telephone number of such person or entity and describe in detail the basis of such liability. At the time of filing its initial disclosures, ACE is not aware of any other person or legal entity who is (or may be, in whole and in part, liable to plaintiff in this matter. ACE reserves the right to supplement this response in the future. (10 Attach for inspection and copying as under Fed. R. Civ. P. 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in this action or to indemnify or reimburse for payments made to satisfy the judgment. 6

7 Case 1:10-cv WSD Document 6 Filed 09/07/10 Page 7 of 11 (Attach copy of insurance agreement to Responses to Initial Disclosures as Attachment E. ACE is in the process of obtaining true and correct copies of the excess liability insurance contracts issued to RaceTrac, which will be provided shortly. Respectfully submitted this 7 th day of September, MOZLEY, FINLAYSON & LOGGINS LLP One Premier Plaza, Suite Glenridge Drive Atlanta, Georgia Tel: ( Fax: ( s/ Wayne D. Taylor WAYNE D. TAYLOR Georgia State Bar No s/ Ruth M. Pawlak RUTH M. PAWLAK Georgia Bar No Attorneys for Defendant ACE American Insurance Company 7

8 Case 1:10-cv WSD Document 6 Filed 09/07/10 Page 8 of 11 Attachment A Philip Coraggio Claim Specialist ACE USA Liability Claims P.O. Box 5111 Scranton, PA ( Mr. Coraggio was involved in the review and denial of RaceTrac Petroleum s claim for indemnity and defense in the Jacqueline Sheree Bunns personal injury lawsuit under the ACE excess liability insurance contracts. In further response, ACE incorporates by reference the names of all individuals listed on RaceTrac s initial disclosures. ACE reserves the right to supplement this response in the future. 8

9 Case 1:10-cv WSD Document 6 Filed 09/07/10 Page 9 of 11 Attachment C 1. March 11, 2010 letter from Philip Coraggio of ACE USA to Leslie Williams of RaceTrac Petroleum 2. Excess Commercial General Liability Policy number XSL- G , issued to RaceTrac by ACE, with effective dates from June 1, 2005 through June 1, Excess Commercial General Liability Policy number XSL- G , issued to RaceTrac by ACE, with effective dates from June 1, 2006 through June 1, 2007 ACE reserves the right to supplement this response in the future. 9

10 Case 1:10-cv WSD Document 6 Filed 09/07/10 Page 10 of 11 CERTIFICATIO PURSUA T TO RULE 7.1 Counsel for defendant ACE American Insurance Company hereby certifies that this pleading has been prepared using Times New Roman 14 point, one of the font and point selections approved by the Court in L.R. 5.1C. Respectfully submitted this 7 th day of September, _s/ Ruth M. Pawlak WAYNE D. TAYLOR Georgia Bar No RUTH M. PAWLAK Georgia Bar No MOZLEY, FINLAYSON & LOGGINS, LLP One Premier Plaza, Suite Glenridge Drive Atlanta, Georgia Tel: ( Fax: (

11 Case 1:10-cv WSD Document 6 Filed 09/07/10 Page 11 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION RACETRAC PRETROLEUM, INC., A Georgia Corporation, CIVIL ACTION FILE Plaintiff, NO. 1:10-cv-2162-WSD vs. ACE AMERICAN INSURANCE COMPANY, a Pennsylvania corporation, Defendant. CERTIFICATE OF SERVICE I hereby certify that I electronically filed the forgoing DEFE DA T ACE AMERICA I SURA CE COMPA Y'S I ITIAL DISCLOSURES using the Court s CM/ECF System, which will automatically send a copy of same to the following counsel of record: Michael S. French, Esq. Ryan D. Watstein, esq. WARGO & FRENCH LLP 1170 Peachtree Street N.E. Suite 2020 Atlanta, Georgia mfrench@wargofrench.com This 7 th day of September, s/ Ruth M. Pawlak RUTH M. PAWLAK Georgia Bar No rpawlak@mfllaw.com 11