Case 8:10-cv-03494-PJM Document 1 Filed 12/13/10 Page 1 of 8

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

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Perini/Tompkins Joint Venture : CIVIL ACTION NO.:
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Plaintiff, :
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v. :
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ACE American Insurance Company : DECEMBER 13, 2010
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Defendant, :
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COMPLAINT AND DEMAND FOR JURY TRIAL

THE PARTIES

1. At all relevant times, Plaintiff Perini/Tompkins Joint Venture (“PTJV”) was a joint

venture between Perini Building Company and Turner Construction Company:

a. Perini Building Company was an Arizona corporation with a principal place

of business in Nevada;

b. Turner Construction Company was a New York corporation with a

principal place of business in New York.

2. At all relevant times, ACE American Insurance Company (“ACE”) was a

Pennsylvania corporation with a principal place of business in Pennsylvania.

JURISDICTION AND VENUE

3. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 (a)(1)

insofar as this is a diversity action between the citizens of different states and the amount in

controversy exceeds $75,000.00, exclusive of interests and costs.

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4. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(a)(1) insofar as

a substantial part of the events and omissions which give rise to this legal action occurred in

this District.

FACTUAL BACKGROUND

The Contract

5. By contract dated May 9, 2005 (the “Gaylord/PTJV Contract”), attached hereto as

Exhibit A, Gaylord National, LLC (“Gaylord”) hired PTJV to, inter alia, serve as Construction

Manager in connection with the construction of the Gaylord National Resort and Hotel in Oxon

Hill, Maryland (the “Project”).

6. In the Gaylord/PTJV Contract, Gaylord agreed to purchase and maintain an

Owner Controlled Insurance Program in connection with the Project that would provide PTJV

with general liability coverage.

The Policies

7. Thereafter, Gaylord purchased a Commercial General Liability Insurance Policy

from ACE, No. HDO G16800703 (the “Primary Policy”), attached hereto as Exhibit B, and an

Excess Liability Policy from ACE, No. XLX G22909964 (the “Excess Policy”), attached hereto

as Exhibit C (collectively, the “Policies”).

8. By endorsement, PTJV was added as a named insured on the Primary Policy

and, as a result of said endorsement, automatically added as a named insured on the Excess

Policy.

9. The Excess Policy applies to injury or damage covered by the Primary Policy in

excess of the applicable limits of the Primary Policy.

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The Collapse

10. A significant portion of the Project involved the construction of a glass roof

atrium. The atrium was composed of numerous subsections, called trusses, that were

preassembled on the ground and lifted via crane into place. Each truss contained several

components, including supportive tension rods that were connected by rod/clevis junctures.

11. The atrium was under construction on or about August 28, 2007 while Truss H4

was lifted into position and, on or about August 31, 2007, certain components were added to

the atrium that placed additional pressure and tension on Truss H4, causing, unbeknownst to

Plaintiffs, one of the rod/clevis junctures on Truss H4 to slowly erode.

12. On September 5, 2007, the rod/clevis juncture on Truss H4, which began eroding

no later than August 31, 2007, failed. That failure caused a loss of tension that substantially

impaired the structural integrity of the atrium (the “Collapse”).

13. The Collapse caused damage to various components of the Project and required

a temporary suspension of the Project and such damages were neither expected nor intended

from the standpoint of PTJV.

14. As a direct and proximate result of the Collapse, Gaylord suffered damages and,

in subsequent litigation, asserted claims against PTJV for those damages including, but not

limited to costs to repair the atrium beyond the failed rod/clevis connection and increased costs

of construction to complete the Project.

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The Claim

15. A representative from ACE was onsite at the Project on September 5, 2007

during the Collapse and thereafter, received timely updates regarding the reason for the

Collapse, the scope and extent of related damages and the method and cost of repair.

16. Thereafter, representatives of PTJV communicated at length with ACE in an

effort to have the claim properly and timely adjusted and resolved.

17. After much negotiation, ACE formally accepted the claim and agreed to handle

the matter by letter dated February 23, 2010.

18. Thereafter, PTJV made multiple requests to ACE regarding the status of the

claim and demanding that ACE make payment and ACE continually represented it would work

with PTJV to resolve the claim.

19. Contrary to its representations, however, ACE failed and/or refused to make any

payment or substantively respond to PTJV’s demands.

20. By electronic mail dated October 6, 2010 to representatives of PTJV, ACE

reversed its position and refused to make any payment on the claim on the basis that it had

been directed not to do so by Gaylord and the broker for the Policies.

21. In connection with that e-mail, ACE represented it would retain counsel to review

the claim and assist in reaching a resolution, however, did not do so until approximately one

month later on November 8, 2010.

22. Yet, as of December 2, 2010, such counsel had not received any materials from

ACE and not conducted any review of the claim.

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23. ACE has continually represented to PTJV its intent to adjust this claim in good

faith yet, at every critical juncture, has failed and/or refused to do so.

FIRST COUNT (BREACH OF CONTRACT BAD FAITH/BREACH OF THE IMPLIED

COVENANT OF GOOD FAITH AND FAIR DEALING)

24. PTJV repeats and re-alleges all of the allegations contained in Paragraphs 1

through 23 as if fully set forth herein.

25. Despite demand, ACE has failed, refused and/or neglected to pay any portion of

the Collapse Claims pursuant to the Primary Policy or the Excess Policy and is in breach of its

contractual obligations to PTJV.

26. ACE’s breach of its obligations to PTJV constitutes a breach of contract.

27. Further, the Policies are contractual agreements which contain an implied

covenant of good faith and fair dealing requiring ACE to deal honestly and in good faith with

PTJV.

28. ACE has breached its duty of good faith and fair dealing owed to PTJV under the

Policies by and through its conduct, which includes, but is not limited to:

a. ACE intentionally and/or recklessly took direction from another named

insured to deny PTJV’s claim and thereby wrongfully put its own interests

and the interests of another named insured ahead of PTJV’s interests;

b. ACE intentionally and/or recklessly ignored information produced by PTJV

establishing ACE’s coverage obligations and thereby deprived PTJV of its

benefits pursuant to the Policies on the basis of unsupported

determinations resulting from its arbitrary failure and/or refusal to properly

perform the claims examination function;

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c. ACE intentionally and/or recklessly engaged in unwarranted delay tactics

designed to frustrate PTJV’s rights pursuant to the OCIP such as, inter

alia, representing it was adjusting the claim though it was not, failing

and/or refusing to respond to communications from PTJV and its counsel

and concealing its position regarding coverage despite request and

thereby failed to conduct a reasonable and timely investigation of PTJV’s

claims;

29. As a result of ACE’s breach of contract and breach of the implied covenant of

good faith and fair dealing, PTJV has suffered, and continues to suffer, damages.

SECOND COUNT (DECLARATORY JUDGMENT)

30. PTJV repeats and re-alleges all of the allegations contained in Paragraphs 1

through 29 as if fully set forth herein.

31. ACE is obligated to indemnify PTJV, pursuant to the Policies, for the Collapse

Claims.

32. An actual and justiciable controversy exists regarding ACE’s obligations under

the Primary Policy and the Excess Policy to pay PTJV for the Collapse Claims, and a

declaratory judgment is necessary and appropriate to determine the rights and duties of PTJV

and ACE pursuant to the Primary Policy and the Excess Policy.

33. PTJV has no adequate remedy at law.

THIRD COUNT (BAD FAITH PURSUANT TO TENN. CODE ANN. 56-7-105)

34. PTJV repeats and re-alleges all of the allegations contained in Paragraphs 1

through 33 as if fully set forth herein.

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35. ACE has acted in bad faith in connection with respect to PTJV’s rights pursuant

to the Policies, which actions include, but are not limited to:

a. ACE intentionally and/or recklessly took direction from another named

insured to deny PTJV’s claim and thereby wrongfully put its own interests

and the interests of another named insured ahead of PTJV’s interests;

b. ACE intentionally and/or recklessly ignored information produced by

PTJV establishing ACE’s coverage obligations and thereby deprived PTJV

of its benefits pursuant to the Policies on the basis of unsupported

determinations resulting from its arbitrary failure and/or refusal to properly

perform the claims examination function;

c. ACE intentionally and/or recklessly engaged in unwarranted delay tactics

designed to frustrate PTJV’s rights pursuant to the OCIP such as, inter

alia, failing and/or refusing to respond to communications from PTJV and

its counsel and concealing its position regarding coverage despite request

and thereby failed to conduct a reasonable and timely investigation of

PTJV’s claims;

36. As a result of ACE’s bad faith conduct, PTJV has suffered, and continues to

suffer, damages.

WHEREFORE, PTJV prays for the following relief:

1. An Order from this Court declaring and setting forth ACE’s duties and obligations

to PTJV for the Collapse damages pursuant to the ACE Policies;

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2. Judgment from this Court in favor of PTJV and against ACE in an amount equal

to the cost of:

i. PTJV’s costs related to damages caused by the Collapse;

ii. Attorneys’ fees and costs incurred by PTJV in this coverage dispute;

iii. Punitive damages;

iv. Interest; and

v. All other damages this Court deems appropriate.

Dated: December 13, 2010

/s/ Gregory D. Podolak

TRACY ALAN SAXE
(Bar No. 17786)
tas@sdvlaw.com
GREGORY D. PODOLAK
(Bar No. 17783)
gdp@sdvlaw.com
SAXE DOERNBERGER & VITA, P.C.
Attorneys for Plaintiff
PERINI/TOMPKINS JOINT VENTURE
1952 Whitney Avenue
Hamden, CT 06517
Tel.: 203.287.2100
Fax: 203.287.8847