Case 3:14-cv-01531-HLA-JBT Document 1 Filed 12/30/14 Page 1 of 6 PageID 1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
Case No.:
ACE AMERICAN INSURANCE COMPANY,
Plaintiff,
vs.
THE CHARTER OAK FIRE INSURANCE
COMPANY,
Defendant.
___________________________/
COMPLAINT FOR DAMAGES
Plaintiff, ACE AMERICAN INSURANCE COMPANY (ACE) sues the Defendant,
THE CHARTER OAK FIRE INSURANCE COMPANY (CHARTER OAK) and further
alleges the following:
1.

This Honorable Court has jurisdiction over this cause pursuant to 28

U.S.C. 1332 as there is a complete diversity of citizenship between the parties and the
amount in controversy exceeds $75,000.00.
2.

Venue of this case is proper pursuant to 28 U.S.C. 1319 since the

Defendant resides in this judicial district and/or is conducting business in this judicial
district through employees and/or authorized agents.

Venue is also proper in this

judicial district inasmuch as a substantial part of the events or omissions giving rise to
ACEs claims occurred in this judicial district, and the relevant witnesses are located
within this judicial district.
3.

ACE is a corporation organized and existing under the laws of the state of

Pennsylvania with its principal place of business in Philadelphia, Pennsylvania.

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4.

CHARTER OAK is a corporation organized under the laws of a state other

than Florida with its principal place of business in Hartford, CT.

5.

CHARTER OAK provided Mid-Fla. Hauling, Inc. (Mid-Fla.) with a

commercial insurance policy (Policy No. Y-20-914K5687-COF-07) with a policy period

from 05/19/07 to 05/19/08 and a $1 million liability limit. (See Charter Oak policy and
declarations page attached hereto as Exhibit 1).
6.

ACE provided Mid-Fla. with a commercial excess liability policy (Policy No.

XCPN04280246) with a policy period from 05/19/07 to 05/19/08 and a $2 million limit of
liability. (See ACEs policy and declarations page attached hereto as Exhibit 2).
7.

On February 4, 2008, a Mack Truck tractor trailer, owned and operated by

Mid-Fla., rear-ended a vehicle owned and operated by Anthony Williams (Williams).

8.

On December 9, 2009, Anthony Williams sued Mid-Fla. and Jeffrey

Jenkins in the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida with
Case No.: 2009-CA-018804 (the underlying case).
9.

On August 17, 2010, Williams served his Proposal for Settlement upon

Mid-Fla. for $1 million.

10.

On August 11, 2011, Williams counsel provided his letter to Mid-Fla.s

counsel, appointed by CHARTER OAK, stating the following: If you will not tender the
policy limits, we request your highest and final offer to settle by August 31, 2011, at 5:00
p.m.
11.

During the course of the underlying case, Mid-Fla.s defense counsel had

advised CHARTER OAK of a potential verdict range between $500,000.00 and

$950,000.00.

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12.

On June 24, 2013, the Plaintiff made a demand for $800,000 that would

remain open for 48 hours.

13.

On July 3, 2013, ACE provided CHARTER OAK with an email that stated

the following in pertinent part: Given that Plaintiffs demand is $750,000 and well within
your per occurrence policy limit, please resolve this matter within your $1,000,000 limit
in order to avoid a potential verdict unnecessarily exposing the excess policy issued by
ACE to Mid-Fla Hauling, Inc.
14.

On July 5, 2013, Mid-Fla.s defense counsel sent CHARTER OAK an

email which stated the following in pertinent part: We are still at $625,000 and it is
believed that the plaintiff is steadfast at $750,000. We continue to prepare for trial.
15.

On July 5, 2013, CHARTER OAK sent ACE an email that stated the

following in pertinent part:

Our last offer was $625,000.

Plaintiff counsel has

withdrawn their final demand of $750,000, but have encouraged us to keep talking.
16.

Before the commencement of the trial of the underlying case, Mid-Fla.

formally admitted liability for the rear end collision.

17.

Before the commencement of the trial of the underlying case, the realistic

exposure to Mid-Fla. was equal to the amount of the Plaintiffs last demand of $750,000.
18.

On July 8, 2013, the trial of the underlying case commenced.

19.

On July 8, 2013, the Plaintiffs Motion in limine regarding the testimony of

Dr. Abraham Rogozinski was argued to the Court.

More particularly, the Plaintiff

moved, in limine, to prevent Dr. Rogozinski from testifying as to any matters outside of
his February 16, 2011 report. This Motion was granted.

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20.

The granting of Plaintiffs Motion in limine regarding Dr. Abraham

Rogozinski resulted in Mid-Fla.s inability to call its expert, John McKay, Ph.D., as a
witness on future medical care. As a result, Mid-Fla did not have an expert who would
counter the Plaintiffs expert testimony on the cost of future medical care.
21.

The injuries for which the Plaintiff was seeking at trial included his past

neck surgery, past right shoulder surgery and future lower back surgery.
22.

During opening statements, Mid-Fla. admitted that the accident in issue

was serious and that it caused the Plaintiffs neck injuries.

23.

During opening statements, Mid-Fla. denied that the serious accident

was a cause of the Plaintiffs past shoulder surgery or future lower back surgery.
24.

On July 12, 2013, the jury returned a verdict in favor of Anthony Williams

in the amount of $2,021,765.00. (See Verdict attached hereto as Exhibit 3).

25.

In its attempt to save additional money on its primary limits of $1 million by

trying the underlying case rather than settling it within its policy limits, CHARTER OAK
improperly exposed ACE, as excess insurer, to an excess verdict.
COUNT I-EQUITABLE SUBROGATION/BAD FAITH FOR CHARTER OAKS
FAILURE TO SETTLE CLAIM AGAINST MID-FLA. WITHIN CHARTER OAKS
PRIMARY INSURANCE POLICY LIMITS OF ONE MILLION DOLLARS
26.

ACE readopts and realleges paragraphs 1 through 25 above and further

states the following:

27.

As the primary insurance company, CHARTER OAK owed ACE, the

excess insurance carrier, the duty and obligation to act in good faith.
28.

CHARTER OAK breached its duty and obligation of good faith by failing to

settle the Plaintiffs claim within CHARTER OAKs $1 million policy limits before trial

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when it had the reasonable and realistic opportunity to do so and, under all the
circumstances, it could and should have done so had it acted fairly and honestly toward
ACE and with due regard for ACEs interest as the excess insurance carrier.
29.

CHARTER OAK also breached its duty and obligation of good faith by

failing to take the appropriate steps to settle the Plaintiffs claim within CHARTER OAKs
$1 million policy limits during trial when it had the reasonable and realistic opportunity to
do so and, under all the circumstances, it could and should have done so had it acted
fairly and honestly toward ACE and with due regard for ACEs interest as the excess
insurance carrier.
30.

CHARTER OAK breached its duty and obligation of good faith by failing to

settle the underlying case during trial for reasons which include, but are not limited to,
the following: Mid-Fla.s admission of liability for the severe rear end collision in issue
before trial; the nature of the injuries and damages which were sought by the Plaintiff;
Mid-Fla.s admission of liability for the Plaintiffs neck injury and past surgery thereon;
Mid-Fla.s attempt to dispute medical causation for the past shoulder surgery and the
need for future lower back surgery given the severity of the impact during the accident
and given the pre-trial order, in limine, that precluded Mid-Fla. from putting on evidence
to rebut the Plaintiffs future medical care costs.
31.

CHARTER OAK acted in bad faith by failing to settle the Plaintiffs claim

when it had a reasonable and realistic opportunity to do so and, as a proximate result of

its bad faith, CHARTER OAK wrongfully exposed ACE to an excess verdict and caused
ACE to pay the sum of $1,030,605.00 out of its excess insurance policy in order to

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settle the Plaintiffs claims post-verdict. (See copy of ACEs check attached hereto as
Exhibit 4).
WHEREFORE, ACE requests a final judgment against CHARTER OAK for
damages which include, but are not limited to the amount of $1,030,605.00, plus prejudgment interest, costs and attorneys fees pursuant to Florida law on bad faith, as well
as any other relief this Court deems just and appropriate under the circumstances.
DEMAND FOR JURY TRIAL
ACE hereby demands trial on all issues so triable as a matter of right.
Dated this 29th day of December, 2014.
Respectfully submitted,

_/s/ Bruce Marx____________

BRUCE R. MARX
Fla. Bar No.: 0914177
KARL STURGE
Fla. Bar No.: 911526
Marlow, Adler, Abrams,
Newman & Lewis
4000 Ponce de Leon Blvd., Suite 570
Coral Gables, FL 33146
Tel: 305-446-0500
Fax: 305-446-3667