A lawsuit filed by Fisker against insurance company XL for denying its claim when 338 Karmas were lost in Sandy flooding, which had a value of $33 million.
Beneficial Motion to Dismiss Based on SB 814Seth Row
Beneficial moves to dismiss the plaintiffs' amended complaint based on Oregon's recently enacted Senate Bill 814. SB 814 amended ORS 465.480 to eliminate contribution claims against insurers like Beneficial that entered into a good faith settlement with their insured, Zidell, regarding environmental claims related to Zidell's Moody Avenue site. The legislation applies retroactively to this case. Zidell and Beneficial negotiated and reached a settlement in good faith to resolve Zidell's claims for insurance coverage relating to the Moody Avenue site. As a result, under the new law, the court lacks jurisdiction over the plaintiffs' contribution claim against Beneficial regarding that settlement. Therefore, Beneficial argues the amended complaint
This document is a complaint filed by Central Asia Institute against Philadelphia Indemnity Insurance Company regarding insurance coverage. It summarizes that CAl had an insurance policy with Philadelphia to cover certain legal claims. CAl and its executive director Greg Mortenson were sued in two matters (the "Pfau Litigation" and "AG Matter") and incurred legal defense costs. However, Philadelphia refused to fully cover and advance these defense costs, in breach of the insurance contract. CAl is suing Philadelphia for declaratory relief and damages for its failure to honor coverage obligations.
Order granting the Vietnamese corporation VNG's motion to dismiss for lack of specific jurisdiction in Lang Van v. VNG Corp, C.D. Cal., Case No. SACV 14-0100 AG
This document is an order from a United States District Court regarding motions to dismiss filed by defendants Darren Chaker and Nicole Chaker in a civil RICO lawsuit brought by plaintiffs Scott McMillan and The McMillan Law Firm. The order summarizes the allegations in the plaintiffs' amended complaint, which claims the defendants engaged in a pattern of extortion, harassment, and other unlawful acts as part of a RICO enterprise. The order analyzes the defendants' motions to dismiss under Rule 12(b)(6), considering whether the plaintiffs have adequately alleged predicate acts of racketeering, cognizable damages, and other elements of RICO and state law claims.
This document is a motion filed by the plaintiffs' attorneys requesting permission from the court to file a fourth amended complaint. Specifically, the motion requests: (1) changing the class definition; (2) removing Michele Reinhart as a plaintiff and adding George and Susie Pfau; and (3) adding claims against additional defendants including Central Asia Institute and MC Consulting for alleged RICO violations. The motion also details why the plaintiffs' counsel believes the additional claims and parties are necessary.
The Alleged Debtors filed a motion requesting the court's permission to file an unredacted version of their Motion to Transfer Venue under seal. They argue the unredacted version contains sensitive commercial information regarding their financial condition and restructuring negotiations that could harm their business if disclosed publicly. The Alleged Debtors state they have publicly filed a redacted version, and the unredacted version would only be available to the court and specific receiving parties subject to confidentiality restrictions. They believe this balancing of interests appropriately protects their sensitive information while still allowing for consideration of the merits of their transfer motion.
This document is the defendants' closing argument in response to the plaintiffs' closing argument regarding trust documents presented in a real estate dispute. It argues that the plaintiffs' claims of fraudulent conduct by the defendant are unsupported and illogical. It asserts that the trust documents in question have no relevance to the legal issues being tried, which involve the interpretation of purchase and sale agreements for two properties. The defendant argues that the plaintiffs have presented no valid legal basis to rescind the agreements and that the evidence shows the plaintiffs were unable to complete the purchase for financial reasons.
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
Beneficial Motion to Dismiss Based on SB 814Seth Row
Beneficial moves to dismiss the plaintiffs' amended complaint based on Oregon's recently enacted Senate Bill 814. SB 814 amended ORS 465.480 to eliminate contribution claims against insurers like Beneficial that entered into a good faith settlement with their insured, Zidell, regarding environmental claims related to Zidell's Moody Avenue site. The legislation applies retroactively to this case. Zidell and Beneficial negotiated and reached a settlement in good faith to resolve Zidell's claims for insurance coverage relating to the Moody Avenue site. As a result, under the new law, the court lacks jurisdiction over the plaintiffs' contribution claim against Beneficial regarding that settlement. Therefore, Beneficial argues the amended complaint
This document is a complaint filed by Central Asia Institute against Philadelphia Indemnity Insurance Company regarding insurance coverage. It summarizes that CAl had an insurance policy with Philadelphia to cover certain legal claims. CAl and its executive director Greg Mortenson were sued in two matters (the "Pfau Litigation" and "AG Matter") and incurred legal defense costs. However, Philadelphia refused to fully cover and advance these defense costs, in breach of the insurance contract. CAl is suing Philadelphia for declaratory relief and damages for its failure to honor coverage obligations.
Order granting the Vietnamese corporation VNG's motion to dismiss for lack of specific jurisdiction in Lang Van v. VNG Corp, C.D. Cal., Case No. SACV 14-0100 AG
This document is an order from a United States District Court regarding motions to dismiss filed by defendants Darren Chaker and Nicole Chaker in a civil RICO lawsuit brought by plaintiffs Scott McMillan and The McMillan Law Firm. The order summarizes the allegations in the plaintiffs' amended complaint, which claims the defendants engaged in a pattern of extortion, harassment, and other unlawful acts as part of a RICO enterprise. The order analyzes the defendants' motions to dismiss under Rule 12(b)(6), considering whether the plaintiffs have adequately alleged predicate acts of racketeering, cognizable damages, and other elements of RICO and state law claims.
This document is a motion filed by the plaintiffs' attorneys requesting permission from the court to file a fourth amended complaint. Specifically, the motion requests: (1) changing the class definition; (2) removing Michele Reinhart as a plaintiff and adding George and Susie Pfau; and (3) adding claims against additional defendants including Central Asia Institute and MC Consulting for alleged RICO violations. The motion also details why the plaintiffs' counsel believes the additional claims and parties are necessary.
The Alleged Debtors filed a motion requesting the court's permission to file an unredacted version of their Motion to Transfer Venue under seal. They argue the unredacted version contains sensitive commercial information regarding their financial condition and restructuring negotiations that could harm their business if disclosed publicly. The Alleged Debtors state they have publicly filed a redacted version, and the unredacted version would only be available to the court and specific receiving parties subject to confidentiality restrictions. They believe this balancing of interests appropriately protects their sensitive information while still allowing for consideration of the merits of their transfer motion.
This document is the defendants' closing argument in response to the plaintiffs' closing argument regarding trust documents presented in a real estate dispute. It argues that the plaintiffs' claims of fraudulent conduct by the defendant are unsupported and illogical. It asserts that the trust documents in question have no relevance to the legal issues being tried, which involve the interpretation of purchase and sale agreements for two properties. The defendant argues that the plaintiffs have presented no valid legal basis to rescind the agreements and that the evidence shows the plaintiffs were unable to complete the purchase for financial reasons.
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
This document is a petition for review filed with the Supreme Court of California seeking review of two appellate court decisions related to a legal malpractice case. The petitioners (the plaintiff and additional judgment debtors from the underlying case) are asking the Supreme Court to grant review of the present matter and hold it pending the outcome of a related case also pending before the Supreme Court. If the petitioners prevail in the related case, they would be entitled to reversal of the orders in the present matter. Granting review and holding the present matter would prevent those orders from becoming final while the related case is still pending.
Angela Kaaihue, Motion in Opposition to NECA's Summary Judgement- Hearing Jul...Angela Kaaihue
This document is a memorandum filed by Angela Kaaihue and Yong Fryer in opposition to a motion for summary judgment filed by Newtown Estates Community Association (NECA). It argues that NECA's motion should be denied for several reasons: (1) Petitioners' property is not part of Newtown Estates and is therefore not subject to NECA's rules; (2) there are errors in the property's title and warranty deed regarding its inclusion in Newtown Estates; and (3) Petitioners have developer rights over the property according to the master declaration. The memorandum also notes that the land court has jurisdiction over NECA's claims, as determined in a previous hearing.
This appeal involves post-judgment orders from a legal malpractice case brought by Sulphur Mountain Land and Livestock Co., Malibu Broadbeach L.P., and Pacific Coast Management against Knapp, Petersen & Clarke and several individuals. The trial court granted Sulphur and Malibu's motion for attorney's fees and costs, denied the defendants' motion for fees and motion to tax costs, finding Sulphur and Malibu were the prevailing parties. The defendants appeal, arguing: 1) the trial court failed to properly determine the prevailing party under Civil Code §1717 before considering C.C.P. §998; 2) even if it had, it abused its discretion in finding Sulphur and
This document is a motion filed in a US bankruptcy court requesting permission to file an unredacted version of a response under seal. It summarizes that the response contains sensitive commercial information about the debtors' financial condition and restructuring negotiations. The debtors argue the information could harm ongoing negotiations and business operations if disclosed publicly. They seek to file the unredacted version under seal and make it available only to specific parties.
Doc723 motion to vacate claims & stay further proceedingmalp2009
The Chapter 11 Trustee filed a motion to vacate claims orders and stay further proceedings related to two claims filed against the bankruptcy estate. The claims, totaling $275,000 each, were based on promissory notes related to the debtor's purchase of a company called Premier. After the claims orders were entered allowing the claims in part, an indictment was filed describing how organized crime figures took control of the debtor and looted it for their personal benefit through fraudulent transactions like the one involving Premier. The indictment revealed that one of the claimants, Learned, was controlled by one of the crime figures and was used to defraud the debtor and launder money as part of the scheme.
This document is a letter from Plaintiffs' counsel opposing a motion to dismiss from Defendant Unigestion Holding. The letter argues that the complaint provides sufficient details about Unigestion's involvement in an alleged conspiracy to illegally impose fees on phone calls and money transfers to Haiti in violation of antitrust laws. The letter cites evidence from a New York Times article and videos showing an agreement was made between Unigestion and other defendants to fix prices. The letter also argues the complaint meets pleading standards and that dismissal would be improper at this stage.
The district court properly dismissed Janis Carmona's complaint under the Rooker-Feldman doctrine. Janis sought to overturn state court decisions in federal district court, which does not have jurisdiction to review state court judgments. The Rooker-Feldman doctrine bars lower federal courts from reviewing state court decisions. Janis' only recourse was to appeal to the U.S. Supreme Court, which denied her petition for certiorari. The district court correctly determined it lacked subject matter jurisdiction over Janis' complaint seeking to invalidate the state court rulings.
The petitioning creditors filed a motion requesting permission to file redacted versions of confidential pleadings and exhibits under seal in bankruptcy proceedings against Allied Systems Holdings, Inc. and Allied Systems, Ltd. The pleadings and exhibits contain confidential commercial information from credit agreements. The motion argues that public disclosure of this confidential information would violate the credit agreements.
The Individual Chapter 11 Double Whammy CondundrumJanine Lee
1) The Sixth Circuit held that the absolute priority rule continues to apply to individual debtors in Chapter 11 bankruptcy, meaning they can only retain post-petition property and not pre-petition property if creditors are not paid in full.
2) The case involved an individual debtor, Cardin, who owed over $1 million to Ice House but proposed a bankruptcy plan that would allow him to keep pre-petition assets while only paying Ice House $124,000.
3) The Sixth Circuit found that the 2005 bankruptcy law amendments subject individual Chapter 11 debtors to the "double whammy" of having to use both pre-petition property and post-filing earnings to repay creditors in order to
Decision by U.S. District Judge David N. Hurd on Force Majeure Case in New Yo...Marcellus Drilling News
A decision issued by Judge David Hurd in a case of landowners from Broome and Tioga Counties in New York State against Chesapeake Energy and Statoilhydro. Chesapeake is attempting to extend leases on property for gas drilling claiming that the moratorium in New York has stopped them from drilling. Landowners claim the leases were signed long before horizontal hydraulic fracturing of shale was done and that Chesapeake could have drilled, conventionally, any time they chose to.
Mark swhwartz gets_40k_for_client_vs_peter_mallonihatehassard
This order approves the settlement of a personal injury claim brought on behalf of a minor, Joseph Michael Hernandez. It approves attorney fees of $10,096, reimbursement of medical expenses of $11,279, and a total settlement of $41,667. The remaining $30,291 will be deposited in a blocked account for the minor until he turns 18. The guardian is authorized to sign settlement documents and a full release of claims.
2009.08.07 nance sued by Introgen debtors for excessive expendituresHindenburg Research
The Debtors are seeking to recover payments made to David G. Nance, the former CEO and President of the Debtors, totaling over $669,000. The Debtors allege the payments made within two years prior to filing for bankruptcy (totaling over $427,000) and between 2004-2008 (totaling over $669,000) were fraudulent transfers under bankruptcy law and state law. Additionally, the Debtors allege Nance wasted corporate assets and engaged in self-dealing through his unnecessary and extravagant expenditures. The Debtors are seeking repayment of the fraudulent transfers, damages, attorney's fees, and interest.
This class action lawsuit alleges that Cheyenne Medical LLC, doing business as Thrive Cannabis Marketplace, violated the Telephone Consumer Protection Act by sending unsolicited marketing text messages to the plaintiff's cellular phone using an automatic telephone dialing system, without her prior express written consent. The complaint alleges the plaintiff received multiple marketing texts from Thrive promoting discounts and deals. If the class is certified, the plaintiff seeks statutory damages for herself and all others similarly situated for Thrive's negligent and willful TCPA violations.
This newsletter summarizes recent court cases related to reinsurance:
1) The Third Circuit ruled that a reinsurer did not need to demonstrate prejudice from late notice of loss given by the reinsured in order to be relieved of indemnity obligations, applying New York law.
2) A New York federal court confirmed multiple arbitration awards in favor of a cedent, rejecting the reinsurer's arguments to vacate the awards.
3) A Wisconsin federal court transferred a dispute over arbitrator selection and consolidation to New York based on forum selection clauses in the reinsurance contracts.
Motion to amend judgment points & authorities- signedjamesmaredmond
This document is a motion to amend a judgment to add additional judgment debtors. It describes an underlying malpractice judgment against Stephen Gaggero for over $2 million. It details Gaggero's estate plan from 1997 whereby he transferred over $35 million in personal assets to various trusts, corporations, limited partnerships and limited liability companies. The motion argues that these entities should be added as judgment debtors as they are alter egos of Gaggero. It provides background on the entities and trusts, describes Gaggero's continued control over the assets, and argues the separate existence of the entities should be disregarded as they were created to shield Gaggero's assets from creditors like the judgment creditors in this case. The
Doc962 freeman group motion compromise & settlement_ a walk-awaymalp2009
The Trustee filed a motion seeking court approval of a compromise and settlement agreement between the Trustee and the Freeman Parties. The agreement provides that Robert Freeman and David Ward will withdraw their respective $92,500 proof of claims against the estate with prejudice, and the Trustee will dismiss the Freeman Parties from an adversary proceeding. The agreement achieves a walk-away settlement and full mutual release of claims between the parties. The Trustee believes the settlement is in the best interest of creditors and the estate by avoiding substantial time and costs of litigation, despite believing there are good objections to the proof of claims.
The court denied VDOT's pleas in bar asserting that AMEC's claims were barred for failure to provide written notice. The court found that while the contract required AMEC to provide written notice of claims, actual notice can satisfy the purpose of the notice provision, which was to put VDOT on notice of claims and allow it to investigate. The court also found that VDOT waived the written notice requirement by acting on AMEC's actual notice of claims. Therefore, lack of written notice alone did not preclude AMEC's claims against VDOT under the contract.
This document is a declaration by Richard Miyamoto in support of a judgment creditor's opposition to a debtor's motion to avoid a judicial lien. It summarizes a long legal dispute between the parties involving multiple bankruptcy filings by the debtor designed to hinder and delay collection of the judgment. It details the procedural history of the case, including previous court rulings against the debtor for failure to comply with discovery orders. Exhibits are attached documenting the lien and various court orders in the case.
This document is a certificate of service for a response filed by Allied Systems Holdings, Inc. and Allied Systems, Ltd. (L.P.) regarding a motion by petitioning creditors BDCM Opportunity Fund II, LP, Black Diamond CLO 2005-1 Adviser L.L.C., and Spectrum Investment Partners LP to shorten time for a hearing on appointing a trustee. The certificate lists the parties that were served the response by mail or hand delivery on May 21, 2012.
This document is a petition for review filed with the Supreme Court of California seeking review of two appellate court decisions related to a legal malpractice case. The petitioners (the plaintiff and additional judgment debtors from the underlying case) are asking the Supreme Court to grant review of the present matter and hold it pending the outcome of a related case also pending before the Supreme Court. If the petitioners prevail in the related case, they would be entitled to reversal of the orders in the present matter. Granting review and holding the present matter would prevent those orders from becoming final while the related case is still pending.
Angela Kaaihue, Motion in Opposition to NECA's Summary Judgement- Hearing Jul...Angela Kaaihue
This document is a memorandum filed by Angela Kaaihue and Yong Fryer in opposition to a motion for summary judgment filed by Newtown Estates Community Association (NECA). It argues that NECA's motion should be denied for several reasons: (1) Petitioners' property is not part of Newtown Estates and is therefore not subject to NECA's rules; (2) there are errors in the property's title and warranty deed regarding its inclusion in Newtown Estates; and (3) Petitioners have developer rights over the property according to the master declaration. The memorandum also notes that the land court has jurisdiction over NECA's claims, as determined in a previous hearing.
This appeal involves post-judgment orders from a legal malpractice case brought by Sulphur Mountain Land and Livestock Co., Malibu Broadbeach L.P., and Pacific Coast Management against Knapp, Petersen & Clarke and several individuals. The trial court granted Sulphur and Malibu's motion for attorney's fees and costs, denied the defendants' motion for fees and motion to tax costs, finding Sulphur and Malibu were the prevailing parties. The defendants appeal, arguing: 1) the trial court failed to properly determine the prevailing party under Civil Code §1717 before considering C.C.P. §998; 2) even if it had, it abused its discretion in finding Sulphur and
This document is a motion filed in a US bankruptcy court requesting permission to file an unredacted version of a response under seal. It summarizes that the response contains sensitive commercial information about the debtors' financial condition and restructuring negotiations. The debtors argue the information could harm ongoing negotiations and business operations if disclosed publicly. They seek to file the unredacted version under seal and make it available only to specific parties.
Doc723 motion to vacate claims & stay further proceedingmalp2009
The Chapter 11 Trustee filed a motion to vacate claims orders and stay further proceedings related to two claims filed against the bankruptcy estate. The claims, totaling $275,000 each, were based on promissory notes related to the debtor's purchase of a company called Premier. After the claims orders were entered allowing the claims in part, an indictment was filed describing how organized crime figures took control of the debtor and looted it for their personal benefit through fraudulent transactions like the one involving Premier. The indictment revealed that one of the claimants, Learned, was controlled by one of the crime figures and was used to defraud the debtor and launder money as part of the scheme.
This document is a letter from Plaintiffs' counsel opposing a motion to dismiss from Defendant Unigestion Holding. The letter argues that the complaint provides sufficient details about Unigestion's involvement in an alleged conspiracy to illegally impose fees on phone calls and money transfers to Haiti in violation of antitrust laws. The letter cites evidence from a New York Times article and videos showing an agreement was made between Unigestion and other defendants to fix prices. The letter also argues the complaint meets pleading standards and that dismissal would be improper at this stage.
The district court properly dismissed Janis Carmona's complaint under the Rooker-Feldman doctrine. Janis sought to overturn state court decisions in federal district court, which does not have jurisdiction to review state court judgments. The Rooker-Feldman doctrine bars lower federal courts from reviewing state court decisions. Janis' only recourse was to appeal to the U.S. Supreme Court, which denied her petition for certiorari. The district court correctly determined it lacked subject matter jurisdiction over Janis' complaint seeking to invalidate the state court rulings.
The petitioning creditors filed a motion requesting permission to file redacted versions of confidential pleadings and exhibits under seal in bankruptcy proceedings against Allied Systems Holdings, Inc. and Allied Systems, Ltd. The pleadings and exhibits contain confidential commercial information from credit agreements. The motion argues that public disclosure of this confidential information would violate the credit agreements.
The Individual Chapter 11 Double Whammy CondundrumJanine Lee
1) The Sixth Circuit held that the absolute priority rule continues to apply to individual debtors in Chapter 11 bankruptcy, meaning they can only retain post-petition property and not pre-petition property if creditors are not paid in full.
2) The case involved an individual debtor, Cardin, who owed over $1 million to Ice House but proposed a bankruptcy plan that would allow him to keep pre-petition assets while only paying Ice House $124,000.
3) The Sixth Circuit found that the 2005 bankruptcy law amendments subject individual Chapter 11 debtors to the "double whammy" of having to use both pre-petition property and post-filing earnings to repay creditors in order to
Decision by U.S. District Judge David N. Hurd on Force Majeure Case in New Yo...Marcellus Drilling News
A decision issued by Judge David Hurd in a case of landowners from Broome and Tioga Counties in New York State against Chesapeake Energy and Statoilhydro. Chesapeake is attempting to extend leases on property for gas drilling claiming that the moratorium in New York has stopped them from drilling. Landowners claim the leases were signed long before horizontal hydraulic fracturing of shale was done and that Chesapeake could have drilled, conventionally, any time they chose to.
Mark swhwartz gets_40k_for_client_vs_peter_mallonihatehassard
This order approves the settlement of a personal injury claim brought on behalf of a minor, Joseph Michael Hernandez. It approves attorney fees of $10,096, reimbursement of medical expenses of $11,279, and a total settlement of $41,667. The remaining $30,291 will be deposited in a blocked account for the minor until he turns 18. The guardian is authorized to sign settlement documents and a full release of claims.
2009.08.07 nance sued by Introgen debtors for excessive expendituresHindenburg Research
The Debtors are seeking to recover payments made to David G. Nance, the former CEO and President of the Debtors, totaling over $669,000. The Debtors allege the payments made within two years prior to filing for bankruptcy (totaling over $427,000) and between 2004-2008 (totaling over $669,000) were fraudulent transfers under bankruptcy law and state law. Additionally, the Debtors allege Nance wasted corporate assets and engaged in self-dealing through his unnecessary and extravagant expenditures. The Debtors are seeking repayment of the fraudulent transfers, damages, attorney's fees, and interest.
This class action lawsuit alleges that Cheyenne Medical LLC, doing business as Thrive Cannabis Marketplace, violated the Telephone Consumer Protection Act by sending unsolicited marketing text messages to the plaintiff's cellular phone using an automatic telephone dialing system, without her prior express written consent. The complaint alleges the plaintiff received multiple marketing texts from Thrive promoting discounts and deals. If the class is certified, the plaintiff seeks statutory damages for herself and all others similarly situated for Thrive's negligent and willful TCPA violations.
This newsletter summarizes recent court cases related to reinsurance:
1) The Third Circuit ruled that a reinsurer did not need to demonstrate prejudice from late notice of loss given by the reinsured in order to be relieved of indemnity obligations, applying New York law.
2) A New York federal court confirmed multiple arbitration awards in favor of a cedent, rejecting the reinsurer's arguments to vacate the awards.
3) A Wisconsin federal court transferred a dispute over arbitrator selection and consolidation to New York based on forum selection clauses in the reinsurance contracts.
Motion to amend judgment points & authorities- signedjamesmaredmond
This document is a motion to amend a judgment to add additional judgment debtors. It describes an underlying malpractice judgment against Stephen Gaggero for over $2 million. It details Gaggero's estate plan from 1997 whereby he transferred over $35 million in personal assets to various trusts, corporations, limited partnerships and limited liability companies. The motion argues that these entities should be added as judgment debtors as they are alter egos of Gaggero. It provides background on the entities and trusts, describes Gaggero's continued control over the assets, and argues the separate existence of the entities should be disregarded as they were created to shield Gaggero's assets from creditors like the judgment creditors in this case. The
Doc962 freeman group motion compromise & settlement_ a walk-awaymalp2009
The Trustee filed a motion seeking court approval of a compromise and settlement agreement between the Trustee and the Freeman Parties. The agreement provides that Robert Freeman and David Ward will withdraw their respective $92,500 proof of claims against the estate with prejudice, and the Trustee will dismiss the Freeman Parties from an adversary proceeding. The agreement achieves a walk-away settlement and full mutual release of claims between the parties. The Trustee believes the settlement is in the best interest of creditors and the estate by avoiding substantial time and costs of litigation, despite believing there are good objections to the proof of claims.
The court denied VDOT's pleas in bar asserting that AMEC's claims were barred for failure to provide written notice. The court found that while the contract required AMEC to provide written notice of claims, actual notice can satisfy the purpose of the notice provision, which was to put VDOT on notice of claims and allow it to investigate. The court also found that VDOT waived the written notice requirement by acting on AMEC's actual notice of claims. Therefore, lack of written notice alone did not preclude AMEC's claims against VDOT under the contract.
This document is a declaration by Richard Miyamoto in support of a judgment creditor's opposition to a debtor's motion to avoid a judicial lien. It summarizes a long legal dispute between the parties involving multiple bankruptcy filings by the debtor designed to hinder and delay collection of the judgment. It details the procedural history of the case, including previous court rulings against the debtor for failure to comply with discovery orders. Exhibits are attached documenting the lien and various court orders in the case.
This document is a certificate of service for a response filed by Allied Systems Holdings, Inc. and Allied Systems, Ltd. (L.P.) regarding a motion by petitioning creditors BDCM Opportunity Fund II, LP, Black Diamond CLO 2005-1 Adviser L.L.C., and Spectrum Investment Partners LP to shorten time for a hearing on appointing a trustee. The certificate lists the parties that were served the response by mail or hand delivery on May 21, 2012.
This document is a court opinion and order in a lawsuit between Century Indemnity Company and various defendants regarding insurance coverage for environmental contamination at a Superfund site. The court is considering a motion for summary judgment filed by third-party plaintiffs (various companies affiliated with Northwest Marine Inc.) against four insurance company defendants regarding those insurers' duties to defend the third-party plaintiffs in a CERCLA action related to the Superfund site. The court discusses the insurance policies at issue, the corporate history and succession of entities, and analyzes whether the policies trigger a duty to defend and if any policy exclusions apply.
Goldberg v. Universal Prop. cas. ins. co. 2020 flaBolinLawGroup
This case involves a dispute over insurance coverage for property damage caused by Hurricane Irma. The plaintiff's condo was insured by the defendant insurance company. After inspecting the property, the insurer paid for damage to the dwelling but denied coverage for personal property, finding no storm-created opening. The plaintiff sued for breach of contract without first submitting a supplemental claim. The trial court granted summary judgment for the insurer, finding the plaintiff failed to submit the required supplemental claim. The appellate court affirmed as to the dwelling but reversed as to personal property, finding the insurer waived the supplemental claim requirement by denying all coverage.
EKEJIJA- NVC FUND-SEC SETTLEMENT SOLUTION
CASE: 2:20-cv-08985-ODW-DFM
Case No.: 2:20-cv-08985-FWS-DFM
Dear John F. Libby,
As requested by Judge Fred W. Slaughter, the undersigned, frank-ojogwa: Ekejija, comes now to submit in good faith for your favorable consideration a graceful workable solution to settle and resolve the above-referenced egregious case (the “Case”), according to the requirement of Rule 1 of the Federal Rules of Civil Procedure (“FRCP”), that “all civil actions and proceedings in the United States district courts … be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”
The purpose of my proposal is to achieve the complete, final, fair, and equitable resolution of all of the financial, civil rights, and reputational damages and other civil claims I am holding against the U.S. Securities and Exchange Commission, an agency of the federal government (the “SEC”), arising out of and suffered in connection with the extreme quantifiable and unquantifiable economic and wrongs, injuries, damages, defamations, prejudices, and injustices done to our companies and me, by the SEC’s egregious, willful, wrongful, meritless, reckless, abusive, and vindictive crusade, undertaken under color of law and constitutes a gross breach of fidelity, over the past 11 years. That the SEC persisted in misusing and abusing its government authority, compounding these many wrongs long after it knew or should have known that its allegations were meritless, and the resulting compounding of its wrongful behavior, and that such conduct exposed the SEC and the federal government to ridicules, substantial financial and other liability, makes the situation even more outrageous.
Notwithstanding the foregoing, I am willing to settle and resolve this matter upon the terms and conditions summarized below. You will see that my proposal satisfies each of the requirements of FRCP Rule 1. Indeed, I am proposing to achieve the intended result by underwriting the financial elements of my claims out of our assets and at no cost to the government. Moreover, the structure and mechanisms of this proposal are eminently fair and reasonable by design and within your authority as a federal judge to implement.
This document summarizes a court case between First American Title Insurance Company, Winnebago County Title Company, and TCF Bank regarding a mortgage on a property owned by Patricia Bartholomew. TCF Bank held the first mortgage on the property as a revolving line of credit. Winnebago acted as an agent in a second mortgage taken out by Bartholomew. Winnebago paid off the TCF Bank mortgage but TCF did not release its lien. Bartholomew then took out more funds through the revolving credit and defaulted. The court found that TCF Bank was not legally required to release the lien until the revolving credit was cancelled by Bartholomew. However
This document is an opposition to a motion to dismiss or transfer venue filed by the defendants. It summarizes relevant facts establishing personal jurisdiction over the defendants in Nevada. It describes the plaintiff Cox & Associates as a Nevada company recruited by the defendant Dillman Equipment to market and sell its equipment in Nevada. It details numerous contacts the defendants had with Nevada, including sales trips, equipment servicing, trade show attendance, and communications regarding marketing in Nevada. The document argues these contacts satisfy the test for personal jurisdiction over the defendants in Nevada.
Pollard PLLC represents 7 real estate brokers and their new company KD Premier Realty against their former employer, Properties of the Villages. In the attached document, the Magistrate Judge has recommended that Plaintiff's Motion for Preliminary Injunction be denied. The case is pending in the United States District Court for the Middle District of Florida. The Firm can be reached at 954-332-2380.
NY Appeals Court Finds Ambiguity as to Losses Resulting from Backup or Overfl...NationalUnderwriter
In an issue of apparent first impression in New York, an appellate court has found that an ambiguity existed in an
insurance policy as to losses resulting from a backup and/or overflow from sewers, drains, and/or plumbing systems.
This document is an opinion and order from a court case between Ash Grove Cement Company and several insurance companies regarding insurance coverage. It discusses that Ash Grove received a request for information from the EPA under CERCLA regarding a Superfund site, and whether this triggers the insurers' duty to defend. The court provides background on the Superfund site, the insurance policies, and communications between the parties. It will determine whether an EPA information request constitutes a "suit" that triggers the duty to defend under the terms of the insurance policies.
National union v. redbox order on msj august 7 2014 wd waSeth Row
This order addresses National Union Fire Insurance Company's motion for summary judgment regarding its duties to defend and indemnify Redbox Automated Retail in various lawsuits. The court grants in part and denies in part the motion. Specifically, the court finds that National Union has a duty to defend Redbox in the Cain lawsuit, which alleges violations of Michigan's video rental privacy law, but not in the Mehrens lawsuit, which alleges violations of California's credit card receipt law. The court also finds that while National Union may issue reservations of rights and set reasonable rate caps when defending insureds, it must do so reasonably and in good faith.
Rivkin radler frivolous lawsuit vs dr shapirokohen26
This document is a complaint filed in United States District Court against multiple defendants for their alleged role in conspiring to deprive the plaintiff, Dr. Mark Shapiro, of his constitutional rights. The complaint alleges that the insurance industry has infiltrated and taken control of law enforcement agencies like the DOJ and FBI to improperly investigate and prosecute healthcare providers for insurance fraud. It claims this was done to benefit the insurance industry financially and to destroy pending and future claims by healthcare providers. The complaint asserts various legal claims and names individual prosecutors, investigators, insurance companies, and organizations involved in the alleged conspiracy.
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Similar to Fisker's lawsuit against insurance company (20)
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Fisker's lawsuit against insurance company
1. FILED: NEW YORK COUNTY CLERK 12/28/2012 INDEX NO. 654571/2012
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No.:
FISKER AUTOMOTIVE, INC., Date Purchased:
Plaintiff, SUMMONS
-against- JURY TRIAL REQUESTED
XL INSURANCE AMERICA, INC.,
Plaintiff designates New York County as
Defendant. the place of trial.
The basis of venue is the county designated
by Plaintiff pursuant to CPLR § 503(a).
To the above named Defendant,
YOU ARE HEREBY SUMMONED AND REQUIRED to answer the Complaint in this
action and to serve a copy of your Answer within twenty (20) days after service of this
Summons, exclusive of the day of service, or within thirty (30) days after service is complete if
this Summons is not personally delivered to you within the State of New York. In case of your
failure to appear or answer, judgment will be taken against you by default for the relief
demanded in the Complaint.
2. DATED: New York, New York
December 28, 2012
By: ________/s/ Stephen G. Foresta
Stephen G. Foresta
Alison K. Roffi
ORRICK HERRINGTON & SUTCLIFFE LLP
51 W. 52nd Street
New York, NY 10019-6142
Tel: (212) 506-5000
Fax: (212) 506-5151
David F. Klein
ORRICK HERRINGTON & SUTCLIFFE LLP
1152 15th Street N.W.
Washington, DC 20005-1706
Tel: (202) 339-8629
Fax: (202) 339-8500
Attorneys for Plaintiff Fisker Automotive, Inc.
To: XL Insurance America, Inc.
Seaview House
70 Seaview Avenue
Stamford, CT 06902
2
3. SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
FISKER AUTOMOTIVE, INC., Index No.
Plaintiff,
-against-
COMPLAINT
XL INSURANCE AMERICA, INC.,
JURY TRIAL REQUESTED
Defendant.
Plaintiff Fisker Automotive, Inc. (“Fisker”), by its undersigned attorneys, and for its
complaint against Defendant XL Insurance America Inc. (“XL”), alleges upon personal and
corporate knowledge as to itself, its own conduct, and the conduct of its agents, and upon
information and belief as to all other matters, as follows:
NATURE OF THE ACTION
1. This is a civil action brought by Fisker for breach of contract and a declaration of
coverage based on XL’s failure to honor its commitments under Policy No. US00012156PR12A
(“the Policy”) to reimburse Fisker for losses it suffered as a result of the destruction of Fisker’s
merchandise in the Named Storm referred to as “Superstorm Sandy.” On October 29, 2012,
Fisker lost 338 Fisker Karma extended range hybrid-electric luxury sedans, valued at
approximately $33 million, at a transshipment facility in Port Newark, New Jersey, where they
had been unloaded from ocean vessels for transshipment to conveyances for delivery to retail
dealers at various points within the United States. The vehicles were submerged in more than
five feet of seawater, resulting in their complete destruction.
2. On November 13, 2012, Fisker notified XL of the loss. Fisker filed its proof of
loss with XL on December 3, 2012, and met with XL’s adjusters and claims representatives to
ensure that all of their information requests were fulfilled in their entirety. On December 18,
2012, XL’s adjuster acknowledged that all of XL’s information requests had been met.
4. Nevertheless, on December 20, 2012, XL provided Fisker with written notice that it was denying
coverage of the claim.
3. XL’s refusal to perform its obligations under the Policy has forced Fisker to bring
the instant lawsuit. Accordingly, Fisker seeks damages for breach of contract and specific
performance of XL’s obligations under the Policy, a declaration concerning the fact of coverage
and the extent of coverage available under the Policy, an award of its attorney fees and costs in
bringing this action, and such other relief as this Court deems just and proper.
THE PARTIES
4. Plaintiff Fisker Automotive, Inc. is a corporation organized under the laws of
Delaware with its headquarters in Anaheim, California. Fisker is in the business of designing,
manufacturing and marketing extended-range hybrid electric vehicles. As part of its business,
Fisker subcontracts for the assembly of vehicles at a facility operated by a non-affiliated
company, Valmet Automotive, Inc., in Finland. The assembled vehicles are shipped by ocean
transport to a transshipment facility operated in Port Newark, New Jersey, by FAPS, Inc.,
another non-affiliated company, for transshipment to land conveyances for distribution to retail
dealers at various points within the United States.
5. Defendant XL America Insurance, Inc. is a corporation organized under the laws
of Delaware, with its principal place of business in Connecticut. XL sold Policy No.
US00012156PR12A to Fisker, providing coverage for property damage and losses in transit.
JURISDICTION AND VENUE
6. This matter falls within this Court’s general original jurisdiction pursuant to
Judiciary Law § 140-b and Article VI, § 7 of the New York Constitution.
7. This Court has personal jurisdiction over XL pursuant to N.Y. C.P.L.R. §§ 302(a)
and 311. At all times relevant herein, XL transacted business within the State of New York and
contracted to provide services within this State by insuring risks in New York. Additionally, XL
expressly agreed in the Policy to submit to the jurisdiction of this Court.
2
5. 8. Venue in this Court is proper pursuant to N.Y. C.P.L.R. § 503(a) inasmuch as the
corporate parties’ principal places of business are outside the State of New York.
FACTUAL BACKGROUND
I. THE UNDERLYING LOSS
9. Fisker arranged for the ocean transportation of vehicles assembled by its
subcontractor in Finland to the FAPS, Inc. transshipment facility in Port Newark, New Jersey.
The FAPS facility includes a marine vessel slip, large parking areas for vehicles awaiting
transfer to inland transport, and repair and service facilities to address service requirements and
perform final preparation, as necessary, before vehicles are transferred to inland conveyances.
The Fisker Karma vehicles that were destroyed in Superstorm Sandy were included in 21
separate shipments from Europe to Port Newark, prior to October 29, 2012.
10. Although more than 900 other Fisker vehicles from the same ocean shipments
previously had been transshipped to inland conveyances through FAPS, the 338 vehicles
remaining in port were delayed to address various service requirements. All or virtually all of
the vehicles were subject to a safety recall requiring the replacement of cooling fans before they
could be distributed lawfully to retail dealerships. In addition, some of the vehicles required
replacement of lithium ion batteries and software updates. These requirements resulted in delays
of varying lengths in transshipping the vehicles to dealers via domestic conveyances.
11. On October 29, 2012, the storm surge from Superstorm Sandy struck while the
vehicles were awaiting service and transshipment at FAPS. The storm resulted in a flood that
inundated the FAPS facility. The Fisker vehicles were submerged to a depth of at least five feet
in seawater. All of the vehicles were rendered unsalable. After the waters receded, a 12-volt
control unit in one of the cars caught fire, further damaging some of the vehicles, although they
already had been damaged beyond repair. The total retail value of the vehicles that were
destroyed was approximately $33 million.
3
6. II. THE XL INSURANCE POLICY
Insuring Agreements and Nature of Coverage
12. In exchange for $268,846.00 in premiums, which Fisker duly paid, XL issued to
Fisker Policy No. US00012156PR12A, effective from July 19, 2012 through July 19, 2013. The
Policy provides varying limits of coverage depending on the circumstances of the loss, as more
fully described below, but is subject to an overall limit of $100,000,000 per occurrence. The
Policy was valid at the time it was sold and remains in full force and effect. A copy of the Policy
is attached hereto as Exhibit A and incorporated herein by reference.
13. The Insuring Agreement of the Policy insures Fisker against “direct physical loss
of, or direct physical damage to, first-party property …” Policy, Ex. A at 10 of 50. In the
Insuring Agreement, XL undertakes to pay Fisker, after the satisfaction of all requirements and
subject to all deductibles and limits, for “Damage during the Policy Term to Insured Property at
Insured Premises directly and proximately caused by an Insured Cause of Loss.” Id. “Insured
Premises,” as the schedule of sublimits in the Policy Declarations makes clear, includes
“Locations” scheduled in the policyholder’s application, “newly acquired Locations,” or
“Unnamed/Unreported Locations.” See id., Ex. A at 3-4 of 50. Such coverage is referenced
herein as the “Premises Coverage.”
14. While the language in the Insuring Agreement is limited to damage at “Insured
Premises,” Paragraph I.E of the Physical Property Section of the Policy extends coverage to
losses in Transit, which include:
Damage to personal property included within Insured Property, while in
transit within the Territory [including the United States] … from the time
the property is moved for the purpose of loading and continuously
thereafter while awaiting and during loading and unloading and in
temporary storage … including during deviation and delay, until safely
delivered and accepted at place of final destination.
Id., Ex. A at 11 of 50. Such coverage is referenced herein as the “Transit Coverage.”
4
7. 15. Paragraph II.T of the Physical Property Section further clarifies the time that
Transit Coverage under the Policy becomes effective in circumstances involving transfer of
goods from vessels to land conveyances at points of transshipment such as FAPS. Under
Paragraph II.T, the Policy excludes an import shipment from coverage until the later of two
events occurs:
(a) The shipment is unloaded from the importing vessel or conveyance;
or
(b) Coverage under an ocean marine or other insurance policy covering
the shipment ends.
Id., Ex. A at 13 of 50.
16. Paragraph I.N of the Definitions Section defines an insured “Occurrence” as “the
physical source of Damage to Insured Property, regardless of whether it creates more than one
Insured Cause of Loss.” Id., Ex. A at 39 of 50. The Policy specifies that “[o]ne occurrence is
the aggregate amount of all fully adjusted claims covered under this policy that arise from that
physical source.” Id. It specifies that “[a]n Occurrence for Flood is the sum total of all Damage
… insured hereunder sustained during any period of seventy-two (72) consecutive hours by
reason of Flood,” and that “[a]n Occurrence for Named Storm or Windstorm is the sum total of
all Damage … insured hereunder arising out of or caused by the same atmospheric disturbance
during any period of seventy-two (72) consecutive hours.” Id., Ex. A at 39-40 of 50.
Limits of Coverage Potentially Applicable to the Loss
17. Paragraph F of the Commercial Property Insurance Declarations Section provides
that the limits of coverage available for any one Occurrence are $100,000,000, subject to a
deductible and any applicable sublimits that may apply. Id., Ex. A at 2 of 50.
18. The Premises and Transit provisions of the Policy are not stated as separate
coverage parts with discrete limits of coverage. Rather, there is a single Insuring Agreement
with a Transit extension, and the Policy has one overall Occurrence Limit of $100,000,000,
subject to sublimits. Id., Ex. A at 10-11 of 50.
5
8. 19. Paragraph G of the Commercial Property Insurance Declarations provides a
lengthy schedule of sublimits that may be applicable to a loss, depending on the circumstances of
the loss. Id., Ex. A at 2-3 of 50. Sublimits that are potentially applicable to the instant claim
include:
(a) “Flood” – varying sublimits, including:
i. $10,000,000 in a “High Hazard Flood Zone”;
ii. $30,000,000 in a “Moderate Hazard Flood Zone”;
iii. $5,000,000 at “newly acquired Locations”;
iv. $2,500,000 at “Unnamed/Unreported Locations,” “except no
coverage is provided for Locations in High Hazard Flood
Zones”; and
v. $1,000,000 for “errors and omissions.”
(b) “Named Storm” is specified as “Included,” meaning that the sublimit is
coextensive with the Policy’s overall Occurrence limit of $100,000,000.
However, the provision specifies the following additional sublimits:
i. $5,000,000 at “newly acquired Locations,” “except no coverage is
provided for High Hazard Wind Zones”;
ii. $2,500,000 at “Unnamed/Unreported Locations,” “except no
coverage is provided for Locations in High Hazard Wind
Zones”; and
iii. $1,000,000 for “errors and omissions.”
(c) “Transit” is subject to a distinct sublimit of $5,000,000.
(d) “Unnamed/Unreported Locations” are subject to a distinct sublimit of
$2,500,000.
Id., Ex. A at 2-3 of 50.
20. Paragraph IV.C of the Definitions Section defines a “Flood,” in relevant part, as
“[a] temporary condition of partial or complete inundation of normally dry land areas from ...
6
9. [t]he overflow of inland or tidal waters; …[w]ave action, force of water (whether wind driven or
not), storm surge, Named Storm, tsunami or the release of impounded water ….” Id., Ex. A at
46 of 50.
21. Paragraph IV.D of the Definitions Section defines a “Named Storm,” in relevant
part, as “a weather or atmospheric condition that has been declared as a hurricane, typhoon,
tropical storm or cyclone by the U.S. National Weather Service, World Meteorological
Organization, Australia Bureau of Meteorology, Philippine Atmospheric, Geophysical &
Astronomical Services Administration, the Seychelles Meteorological Service or a similar
weather organization.” Id., Ex. A at 46 of 50.
22. Paragraph I.M of the Definitions Section defines “Location(s)” as “Insured
Premises made up of an insured building or group of buildings situated at a common place,
including machinery and equipment, related structures and the contents of such buildings or
structures, or on land within one thousand (1000) feet thereof.” Id., Ex. A at 39 of 50.
23. Paragraph I.T of the Definitions Section specifies, among other things, that
“Unnamed/Unreported Locations” “do not include any property in transit.” Id., Ex. A at 41 of
50.
24. Paragraph G of the Commercial Property Insurance Declarations provides
detailed instructions for reconciling the sublimits of the Policy. Id., Ex. A at 2 of 50.
Specifically, Paragraph G provides that when more than one sublimit is applicable:
(a) In general, sublimits may be “cumulated,” or combined to allow larger
limits of coverage for a loss;
(b) However, when the sublimit is a “peril” (a Named Storm, a Flood, or Earth
Movement), the limits do not cumulate, but the sublimit stated in the
schedule for that “peril” is the maximum amount the policy will pay; and
(c) If more than one “peril” applies—an “initiating peril” and a “resulting peril”
(such as a Named Storm that causes a Flood)—the policy provides coverage
not exceeding the greater of the two sublimits.
7
10. Id., Ex. A at 2 of 50.
25. For purposes of calculating the applicable sublimit in the event that more than one
“peril” applies, the Policy specifies the following calculation:
(a) The sublimit for the resulting peril is applied first.
(b) The amount of that sublimit is subtracted from the sublimit for the initiating
peril.
(c) The portion of the sublimit of the initiating peril that remains after this
operation is then added to the sublimit of the resulting peril to calculate the
overall available limit.
Id., Ex. A at 2 of 50.
26. For example, under this method of calculation, if a Named Storm ($100,000,000
sublimit) initiates a Flood within a High Hazard Flood Zone ($10,000,000 sublimit), the Insured
is entitled to $100,000,000 in coverage.
27. Further, where a Flood results from a Named Storm, it does not matter whether
the loss occurred within a High Hazard Flood Zone or a Moderate Hazard Flood Zone. Using
the method of calculation specified in the policy, the limits available for the loss in either case
will be the full amount available for the initiating peril, the Named Storm ($100,000,000).
28. A number of the sublimits listed in the schedule are modified by the following
italicized text: “This coverage may be further sublimited elsewhere for certain perils.”
Examples of sublimits that are so modified include distinct sublimits for “errors and omissions,”
“newly acquired Locations,” “off-premises service interruption,” and “Unnamed/Unreported
Locations.” Id., Ex. A at 3-4 of 50.
29. The sublimits for Named Storm and Flood are not modified by the statement,
“This coverage may be further sublimited elsewhere for certain perils.” Id., Ex. A at 3 of 50.
30. Nowhere does the Policy provide that whenever more than one sublimit is
potentially applicable to a loss, all sublimits are to be applied, or that recovery is necessarily
limited to the smallest sublimit.
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11. III. THE CLAIM
31. Superstorm Sandy was declared a tropical storm by the United States Weather
Service on October 22, 2012, and was therefore a “Named Storm” within the meaning of the
Policy. It was upgraded to a hurricane (also a Named Storm) on October 24, 2012.
32. The storm surge from Superstorm Sandy reached the New York/New Jersey area
on October 29, 2012, resulting in widespread flooding, including flooding of the FAPS facility in
Port Newark.
33. The FAPS facility was not a “Location” within the meaning of the Policy because
it was not insured by XL. See Ex. A at 39 of 50. Because it was not a “Location,” it was not an
“Unnamed/Unreported Location” within the meaning of the Policy. See id., Ex. A at 41 of 50.
34. The Fisker vehicles that were destroyed in Superstorm Sandy were in transit to
final destinations at retail dealerships in the United States.
35. The vehicles had been unloaded at various times from various ocean vessels at
FAPS for the purpose of final preparation, as necessary, and for loading onto land conveyances
for continued shipment to their final destinations.
36. At the time the loss occurred, the vehicles were no longer within the coverage of
ocean marine insurance covering their voyage into the United States.
37. FAPS is a transshipment facility, and delivery of the vehicles into the FAPS
facility constituted “movement for the purpose of loading” onto conveyances for further
transport to final dealer destinations in the United States, within the meaning of the Policy.
Accordingly, the Transit coverage of the Policy extended to the vehicles at the time of the loss.
See Ex. A at 11 of 50.
38. Because of the recall which required replacement of cooling fans before the
vehicles could legally be delivered to dealers, as well as other service requirements, the vehicles
were subject to “deviation and delay” within the meaning of the Policy before final shipment
from the transshipment facility to the dealerships could be effected.
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12. 39. The vehicles were destroyed by a Flood which resulted from a Named Storm
within the meaning of the Policy.
FIRST CLAIM FOR RELIEF
(BREACH OF CONTRACT; SPECIFIC PERFORMANCE)
40. Plaintiff repeats and incorporates by reference the allegations in Paragraphs 1
through 39.
41. Plaintiff has suffered a Transit loss within the coverage of the Policy, inasmuch as
Plaintiff has suffered “Damage to personal property included within Insured Property, while in
transit within the Territory,” which includes the United States, occurring from the time the
property was discharged from an ocean vessel at the Port of Newark for transshipment on land
conveyances and was thus “moved for the purpose of loading … including deviation and delay,
until safely delivered and accepted at place of final destination.”
42. The Policy is a valid and enforceable contract providing insurance coverage for
the loss suffered by the Plaintiff.
43. XL has been given timely notice of the loss, and all other conditions of the Policy,
including but not limited to payment of premium, proof of loss, and full cooperation, have been
satisfied.
44. Accordingly, XL’s contractual duty to indemnify Plaintiff for the value of the loss
has been triggered.
44. Notwithstanding Plaintiff’s express request for coverage, XL has denied the claim
and has not tendered any payment to Plaintiff.
45. XL’s failure and refusal to make payments due under the Policy constitute a
breach of the Policy.
46. As a direct and proximate result of XL’s breach of the Policy, Plaintiff is
suffering damages equal to the sums it would be entitled to recover as benefits under the Policy.
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13. 47. For breach of the contract Plaintiff prays entry of judgment awarding specific
performance and the payment of damages in an amount equal to the amount owed under the
Policy, to be proven at trial.
SECOND CLAIM FOR RELIEF
(DECLARATION OF COVERAGE AND OF APPLICABLE LIMITS)
48. Plaintiff repeats and incorporates by reference the allegations in Paragraphs 1
through 47.
49. The Policy obliges XL to cover losses in Transit as and to the extent set forth in
Paragraphs 14 and 17-30.
50. The losses alleged herein constitute losses in Transit within the meaning of the
Policy.
51. The losses alleged herein constitute losses due to a Flood that resulted from a
Named Storm within the meaning of the Policy.
52. The Policy provides up to $100,000,000 in coverage for losses resulting from a
Named Storm. No smaller sublimit within the Named Storm provision of the Policy is
applicable. See Ex. A at 3 of 50.
53. The Policy provides up to $50,000,000 in coverage for losses resulting from a
Flood. See id.
54. When a loss results from a Flood caused by a Named Storm, the Policy provides
coverage up to highest available sublimit, as set out in Paragraphs 25-27. In this instance, the
highest available sublimit is that for a Named Storm, or $100,000,000.
55. Unlike other sublimits stated in the Policy, the provisions setting out the sublimits
for Named Storm and for Flood do not provide that they “may be further sublimited.”
Accordingly, losses stemming from these perils may not be further sublimited.
11
14. 56. Plaintiff is entitled to a declaration from this Court that: (a) the Policy covers the
loss alleged herein; and (b) the extent of the coverage available for the loss, which occurred
because of a Flood resulting from a Named Storm, is $100,000,000, which amount may not be
further sublimited under the Policy.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for relief against XL, as follows:
A. With respect to the First Claim for Relief, for a judgment against XL that it is in
breach of contract, awarding direct damages sustained by Plaintiff as a result of XL’s breach of
its contractual duties in an amount to be proven at trial, plus pre- and post-judgment interest, and
ordering specific performance of the remaining Policy terms; and
B. With respect to the Second Claim for Relief, for a declaration by the Court that
the Policy covers the Plaintiff’s loss, and that the extent of the coverage available for the loss,
which occurred because of a Flood resulting from a Named Storm, is $100,000,000, which
amount may not be further sublimited under the Policy; and
C. With respect to both Claims for Relief, for a judgment awarding Plaintiff its
reasonable attorney fees and costs incurred in prosecuting this action, together with such other
and further relief as the Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby respectfully demands a jury trial for all of the claims asserted in the
Complaint that are triable to a jury.
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15. DATED: New York, New York
December 28, 2012
By: ________/s/ Stephen G. Foresta
Stephen G. Foresta
Alison K. Roffi
ORRICK HERRINGTON & SUTCLIFFE LLP
51 W. 52nd Street
New York, NY 10019-6142
Tel: (212) 506-5000
Fax: (212) 506-5151
sforesta@orrick.com
aroffi@orrick.com
David F. Klein
ORRICK HERRINGTON & SUTCLIFFE LLP
1152 15th Street N.W.
Washington, DC 20005-1706
Tel: (202) 339-8629
Fax: (202) 339-8500
dklein@orrick.com
Attorneys for Plaintiff Fisker Automotive, Inc.
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