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Plaintiff,
v.
BRASFIELD & GORRIE, LLC
Defendant.
No. 3:14-cv-782
Birmingham, Alabama. Defendant B&G may be served with process through its registered
agent, M. Miller Gorrie, 729 30th Street S., Birmingham, AL 35233-2939.
JURISDICTION AND VENUE
3.
The Court has jurisdiction over the lawsuit under 28 U.S.C. 1332(a)(1) because
the Plaintiff and Defendants are citizens of different states and the amount in controversy
exceeds $75,000, excluding interest and costs.
___________________________________________________________________________
PLAINTIFF ACE AMERICAN INSURANCE COMPANYS
COMPLAINT FOR DECLARATORY JUDGMENT
Page 1
4.
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1391(b) (2) because property that is the subject of the action is situated in this district.
FACTS
5.
This is an insurance coverage case. B&G seeks coverage from ACE for loss it
allegedly incurred from movement of the shoring wall system and surrounding soil during the
construction of the New Effluent Pump Station for the City of Baton Rouge, Louisiana South
Wastewater Treatment Plant, Phase II project (the Project). Specifically, B&G claims it
incurred costs to redesign and reinforce the shoring system to prevent further movement.
6.
ACE retained Pie Consulting and Engineering (Pie) to investigate the cause of
the loss. Pie determined that, based on a reasonable degree of engineering certainty, the issues
experienced are the result of an improper shoring system for the conditions present. 1
The Policy
7.
ACE issued Completed Value Project Builders Risk Policy with policy number
I21058828 001 for the time period of January 3, 2012 to January 3, 2015 to B&G (the ACE
policy).2
No physical loss or damage
8.
A true and correct copy of the Pie report is attached to this complaint as Exhibit 1.
A true and correct copy of the ACE policy is attached to this complaint as Exhibit 2.
___________________________________________________________________________
PLAINTIFF ACE AMERICAN INSURANCE COMPANYS
COMPLAINT FOR DECLARATORY JUDGMENT
Page 2
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The loss claimed by B&G is the movement of the shoring system used during the
construction process. B&G claims it incurred costs to redesign and stabilize the shoring system
to prevent further movement. The shoring system failed to prevent movement of the soil
surrounding the excavation because it was improperly designed. The failure of the shoring
system to perform as intended does not qualify as a physical loss or damage. The loss incurred
by B&G to correct the faulty or improperly designed shoring system, therefore, does not fall
within the insuring agreement.
Faulty Construction and Improper Design Exclusions Preclude Coverage
10.
In the alternative, to the extent the movement of the shoring system constitutes
physical loss or damage, this loss is excluded by the policy. The ACE policy provides that:
THE POLICY DOES NOT INSURE LOSS OR DAMAGE
CAUSED BY ANY OF THE FOLLOWING, UNLESS DIRECT
PHYSICAL LOSS OR DAMAGE BY AN INSURED CAUSE OF
LOSS ENSUES AND THEN THIS POLICY INSURES ONLY
SUCH ENSUING DIRECT PHYSICAL LOSS OR DAMAGE.
***
19.
design,
plans,
20.
B&G claims costs incurred to correct the error or deficiency in the design of the shoring system
or the faulty workmanship in installing the shoring system. Accordingly, coverage is barred.
COUNT I DECLARATORY JUDGMENT
11.
Emphasis added.
___________________________________________________________________________
PLAINTIFF ACE AMERICAN INSURANCE COMPANYS
COMPLAINT FOR DECLARATORY JUDGMENT
Page 3
12.
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For the reasons stated above, ACE requests the Court grant a declaratory
judgment establishing that the ACE Policy does not afford coverage to B&G for the claimed
loss.
JURY DEMAND
13.
For these reasons, ACE asks for judgment against B&G and for the following:
a.
The loss claimed by B&G does not constitute physical loss or damage;
b.
c.
OF COUNSEL:
Joseph A. Ziemianski
State Bar No. 00797732
COZEN OCONNOR
1221 McKinney, Suite 2900
Houston, Texas 77010
Telephone: (832) 214-3900
Facsimile: (832) 214-3905
E-mail: jziemianski@cozen.com
ATTORNEYS FOR PLAINTIFF
___________________________________________________________________________
PLAINTIFF ACE AMERICAN INSURANCE COMPANYS
COMPLAINT FOR DECLARATORY JUDGMENT
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