alpha kappa of alpha chi omega v. century indemnity company notice of removal

7/28/2019 ALPHA KAPPA OF ALPHA CHI OMEGA v. CENTURY INDEMNITY COMPANY Notice of Removal

1/11

NOTICE OF REMOVAL OF CIVIL ACTION 1No. 13-987

1200.00310 ff041n03me

R. Lind Stapley, OSB No.: [email protected] & Lang, P.S.1325 Fourth Ave., Ste 2000Seattle, WA 98101-2570

(206) 624-1800(206) 624-3583 (fax)Attorneys for Defendant Century Indemnity Company

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

ALPHA KAPPA OF ALPHA CHI

OMEGA,

Plaintiff,

vs.

CENTURY INDEMNITY COMPANY

Defendant.

Civil No. 13-987

NOTICE OF REMOVAL OF CIVIL

ACTION

[28 U.S.C. 1441(a)]

TO: The Clerk of the Above-Entitled Court:

PLEASE TAKE NOTICE that Defendant Century Indemnity Company (Century)

hereby removes the above-entitled action to the United States District Court District of Oregon

in accordance with 28 U.S.C. 1441(a).

In support of this Notice of Removal, Century states as follows:

Case 6:13-cv-00987-TC Document 1 Filed 06/13/13 Page 1 of 11 Page ID#: 1


2/11


1200.00310 ff041n03me

1.

The above-entitled action was filed in the Circuit Court of the State of Oregon for Lane

County, Cause No. 16 13 08195, on April 30, 2013.

2.

Century was first served, via registered agent, on May 17, 2013. True and correct

copies of all process, pleadings and orders served upon Century are attached as Exhibit 1.

3.

Jurisdiction in this Court is based on diversity of citizenship, pursuant to 28 U.S.C.

1332 and 1441(a). Diversity jurisdiction is founded on the following facts:

A. As set out in plaintiffs complaint, The amount in controversy is $103,652.75,

plus attorney fees and costs, which exceeds the requisite amount for diversity

jurisdiction.

B. As stated in paragraph 1 of plaintiffs complaint, Alpha Kappa was a not-for-

profit charitable organization duly organized under the laws of the State of

Oregon.

C. Century Indemnity Company is a Pennsylvania Corporation, with its principle

place of business in Philadelphia, Pennsylvania.

4.

This Notice of Removal is timely under 28 U.S.C. 1446, in that the Complaint in this

case was served on Century by substituted service on the registered agent on May 17, 2013, and

less than thirty days have passed since service of the complaint.



3/11


1200.00310 ff041n03me

5.

In accordance with 28 U.S.C. 1446(a), Century has filed with this Notice true and

correct copies of the Complaint, process, orders, additional records, and additional proceedings

which were previously filed in the Lane County Circuit Court of Oregon.

6.

Based on the foregoing, this Court has jurisdiction over this controversy under 28

U.S.C. 1332 and 28 U.S.C. 1441.

Respectfully submitted this 13th day of June, 2013.

SOHA & LANG, P.S.

By: s/R. Lind StapleyR. Lind Stapley, OSB #030531Phone No.: 206-624-1800Attorneys for Defendant Century IndemnityCompany



4/11

EXHIBIT 1



5/11

2345678910I 112I314151617181920 ,212223242526

CERTIFIED TO BE ATRUE, CORRECTAND COMPLETE COPY OF ORIGINAL~ ~ \ ' k cIN THE CIRCUIT COURT OF THE STATE OF OREGON FOR LANE COUNTY

ALPHA KAPPA OF ALPHA CHI OMEGA,Plaintiff, Case No: 16 1308195

v, SUMMONSCENTURY INDEMNITY COMPANY,

Defendant.TO: Century Indemnity Company, Defendantc/o Patti Dietz12909 SW 68 th Parkway, Suite 450Portland, OR 97223

IN THE NAME OF THE STATE OF OREGON: You are hereby required toappear and answer the Complaint filed against you in the above-entitled cause withinthirty (30) days from the date of service of this Summons upon you; and if you fail so toanswer for want thereof, the Plaintiff will apply to the Court for the relief demandedtherein, /-Z-DATED thisL day of May 2013.HUTCHINSON, COX, COONS,ORR&SHERP .

B y : ~WitHam H. Sherlock, OSB #90381Of Attorneys for PlaintiffNOTICE TO DEFENDANTREAD THESE PAPERS CAREFULLYI

You must "appear" in this case or the other side will win automatically. To "appear" you must filewith the Court a legal paper called a "motion" or "answer." The "motion" or "answer" must be given to thecourt clerk or administrator within thirty (30) days along with the required filing fee . I t must be in properform and have proof of service on the Plaintiff's attorney or, if the Plaintiff does not have an attorney,proof of service on the Plaintiff.If you have any questions, you should see an attorney immediately. If you need help in finding anattorney, you may contact the Oregon State Bar's Lawyer Referral Service online atwww.aregonstatebar.org or by calling (503) 684-3763 (in the Portland metropolitan area) or toll-freeelsewhere in Oregon at (800) 452-7636.1 - SUMMONS HllTCHINSON, cox.COONS ,ORR & SHERLOCK . P.e.ATIORNEY SAT LAWm HIGH STREET . SUITE 200

EUGENE,OR 9740 12782(541) 686-9160



6/11

234567891011121314151617181920212223242526

CERTIFIED TO BE ATRUE, CORRECTAND COMPLETE COPY OF ORIGINAL~ ~ w . . C

IN TIIE CIRCUIT COURT OF TIIE STATE OF OREGON FOR LANE COUNTYALPHA KApPA OF ALPHA CHI OMEGA,

Plaintiff,v.CENTURY INDEMNITY COMPANY,

Defendant.

Case'No: I ~ (3 og lOJ 5"COMPLAINTDuty to Pay Indemnity Costs(Not Subject to Mandatory Arbitration)Oaim: $103,652.75

COMES NOW Plaintiff, Alpha Kappa of Alpha Chi Omega (Alpha Kappa), andalleges as follows:

1.At all times material herein, Alpha Kappa was a not-for-profit charitable

organization duly organized under the laws of the State of Oregon as a sorority foryoung women attending the University of Oregon.

2.Alpha Kappa has been required by the Oregon Department of Environmental

Quality (DEQ) to clean up petroleum and hazardous material contamination of soil and

1 - COMPLAINT HUTOUNSON, COX,COO NS, ORR & SHERLOCK , P.C.ATTORNEYS AT LAW777 HIGH STREET. SurlC 200EUGENE ,OR 97401 -2782(541 ) 68&9160



7/11

1234567891011121314151617181920212223242526

;.;.,...

groundwater beneath real property owned by Alpha Kappa, commonly identified as 850East 15 th Avenue, Eugene, Oregon ("Subject Property").

3.Defendant Century Indemnity Company is a corporation organized under the

laws of the state of Pennsylvania and is the successor in interest to the insurancecompanies that issued comprehensive liability coverage policies to Plaintiff at all timesmaterial herein.

4.In the 1950s, a heating oil furnace was constructed in the basement of the Alpha

Kappa sorority building. A 1,ODD-gallon single hull underground storage tank (UST)was concurrently placed in the ground under the driveway approximately 30 feet fromthe furnace to supply it with heating fuel.

5.In September 1982, Alpha Kappa converted its heating system from oil to natural

gas. The furnace in the basement had been placed in a recessed pit and at the bottom ofthe pit floor is a sump pump basin. Heating oil had been left in the UST and as a resultof rust it leaked, infiltrating the shallow groundwater and eventually migrating to thesump pump basin where the groundwater/oil mixture was ejected into the streetthrough the foundation drainage system.

6.

The heating oil discharging into the street from the sump pump was discoveredand reported to the Oregon Emergency Response System on or about January 5, 2012.The emergency response team pumped approximately 880 gallons of water and

2 - COMPLAINT HlJrCHlNSON. COX. COONS. ORR '" SHERLOCK.P.C .AITORNEYS AT LAWm HIGH STREET . sum::zooEUGENE, OR 974012782(541) 686-9160



8/11

1234567891011121314151617181920212223242526

. .. .

petroleum product from the UST on January 6, 2012. The spill was also reported to theOregonDepartment of Environmental Quality on January 6, 2012.

7.The DEQ responded to this notification by sending Alpha Kappa a letter dated

January 10, 2012, from DEQ Manager Bruce Gilles, to Mollie Brantley, President of theAlpha Kappa Sorority Chapter that states, in relevant part:

As the responsible party for the property, you are required to clean upthe heating oil I'e/ease according to Oregon Administrative Rules (OAROAR 340-177-0001 through OAR 340-177-0095. These rules require cleaningthe soil, groundwater, surface water, soil vapor, and any other mediacontaminated by heating oil to the appropriate standards or demonstratingthat the contamination does not pose a risk to human health or theenvironment. (Emphasis added).

In response to this DEQ Order, the UST was removed from the property. The USTwas permeated with a number of thumb-sized holes. During the abatement andremediation of contamination, a 250 gallon holding tank that had been set up to receivesum pump groundwater and oil discharge overflowed from too much volume and anadditional street cleanup was necessary. Alpha Kappa's environmental contractor alsoremoved 288 tons of contaminated soil as well as contaminated groundwater that wascontained and removed via the holding tanks and a carbon filter system.

8.The DEQ communicated that groundwater contamination had occurred at the

spill site under DEQ regulations. DEQ Project Manager/Hydrologis t Bill Robertsonstated:

The sump at the Alpha Chi Omega property extracted water contaminatedby petroleum that was attributed to leaks from an underground heating oil3 - COMPLAINT HllTCHlNSON. COX . COONS. ORR", SHERLOCK. P.C.ATTORNEYS AT LAW

m HIGH STREIIT. sum 200EUGENE, OR 974012782(541) 689160



9/11

1234567891011121314151617181920212223242526

.;.;: ... . .:;.-'

tank. Under DEQ rules, this water would be identified as groundwatereven though the water was only intermittently presen t and insufficient toprovide a source of water for beneficial use.9.

Groundwater is property of the State of Oregon, a third-party, and the state'sproperty was damaged by contamination of water at and around the spill site.

10.From at ieast 1980 through 1986 and during other intervals, Plaintiff obtained

insurance coverage, including comprehensive liability coverage, from Defendant'spredecessor in interest.

11.Alpha Kappa has incurred expenses that it has not otherwise been indemnified

for by other third parties in the amount of $103,652.75 for the investigation, remediation,and cleanup of petroleum products and other contaminants from the groundwater andsoil beneath the Subject Property. Alpha Kappa dutifully performed this cleanup inaccordance with ORS Chapter 465 and OAR Chapter 340, divisions 122 and 177 underthe supervision of the DEQ.

12.On or about August 28, 2012, Alpha Kappa tendered a demand to Defendant's

predecessor in interest to honor its contractual obligations to indemnify Alpha Kappafor the reasonable and necessary remediation costs required by the DEQ.

13.On or about October 18, 2012, Defendant denied coverage for the remediation

costs.

4 - COMPLAINT HUTCHINSON, COX. COONS . ORR & SHERLOCK ,P.C.ATTORNEYS AT LAWm HlGH STREET . SUITE 200EUGENE, DR 9740]2782(54 ] ) 686-9] 60



10/11

123456789101112131415161718192D212223242526

FOR ITS CLAIM FOR RELIEF Alpha Kappa alleges as follows:(Duty to Pay Indemnity Costs under ORS 465.480(3)(a))

14.Alpha Kappa realleges and incorporates by reference the preceding paragraphs.

15.Pursuant to ORS 465.480(3)(a), Defendant, as the insurers' successor in interest

during the period hazardous substances and contaminants were released onto and intothe Subject Property and groundwater, has a duty to pay al l sums arising out of a riskcovered by the policy and must pay all indemnity costs incurred by Alpha Kappapursuant to the applicable terms of its comprehensive liability policies.

16.Pursuant to ORS 742.061(1), Alpha Kappa also requests the award of reasonable

attorney fees incurred by the Plaintiff in pursuing this action as a result of Defendant'srefusal to honor its contractual obligations to indemnify Plaintiff for remediat ion costs.

* * * * *

WHEREFORE, Plaintiff prays for judgment as follows:A. For Judgment against Defendant for indemnity costs under ORS

465.480(3)(a) in the amount of $103,652.75;B. For an award of Plaintiff's reasonable attorney fees and costs pursuant to

ORS 742.061(1); and1 / /1//

5 - COMPLAINT HUTCHINSON.COX .COONS .ORR & SHERLOCK. P.C.AITORNEYSATLAWm HIGH STREET. SUITE 200EUGENE ,OR 974012782(541) 686-9160



11/11

12345678910II121314151617181920212223242526

e. For such additional relief as the court deems just and equitable.DATED this 1 ay of April 2013.

6 - COMPLAINT

HUTCHINSON, COX, COONS,ORR & SHERLOCK, P.e. ~y.. ______ ______________William H. Sherlock, OSB #90381Of Attorneys for Plaintiff

HlTTCIIINSON. COX. COONS . ORR '" SHERLOCK. P.C.ATTORNEYSAT LAWm Hl GH STREET. SUITE 200EUGENE ,OR 974012782(541)686.9160


alpha kappa of alpha chi omega v. century indemnity company notice of removal

Documents