holper et al v. ace american insurance company petition for removal

7/30/2019 HOLPER et al v. ACE AMERICAN INSURANCE COMPANY Petition for Removal

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Case 2:13-cv-02982-SM-ALC Document 1 Filed 05/10/13 Page 1 of 6

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANA

A3M VACUUM SERVICES, L.L.C. DOCKET NO.VERSUS JUDGEWESTCHESTER SPECIALTY MAGISTRATEINSURANCE SERVICES, INC.,etal .

NOTICE OF REMOVALPLEASE TAKE NOTICE that the Defendant, Clarendon America Insurance

Company ("Clarendon"), hereby removes this civil action to this Honorable Court asprovided for by law.

Introduction1. On November 5,2010, A3M Vacuum Services, L.L.C. ("Plaintiff') filed a"Petition for Breach of Contract" in the Fortieth Judicial District Court, St. John theBaptist Parish, Louisiana, where the case was assigned number 60,722 (the "StateAction"). Plaintiff named as defendants Westchester Specialty Insurance Services, Inc.d/b/a Ace Westchester Specialty Group and ACE American Insurance Company.2. On January 10,2011, Plaintiff filed a "First Amended Petition for Breach ofContract," which added Illinois Union Insurance Company as a defendant and deleted asdefendants Westchester Specialty Insurance Services, Inc. d/b/aAce WestchesterSpecialty Group and ACE American Insurance Company.


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3. On November 8,2012, Plaintiff filed a "Supplemental and Second AmendedPetition for Breach of Contract," which amended and supplemented the allegationsagainst Illinois Union.4. On April 8,2013 , Plaintiff filed a "Supplemental and Third Amended Petition forBreach of Contract," which added Clarendon as a defendant.5. A copy of the original "Petition for Breach of Contract," "First Amended Petitionfor Breach of Contract," "Supplemental and Second Amended Petition for Breach ofContract," and "Supplemental and Third Amended Petition for Breach of Contract" areattached in globo as Exhibit "A ."6. Clarendon received the Supplemental and Third Amended Petition for Breach ofContract, and the previous petitions, through service of process on April 24,2013, whichis well within the thirty day limitation provided in 28 U.S.C. 1446(b). A copy of thecitation which shows the date of service is attached as Exhibit "B."7. The crux of the State Action is as follows. Lawrence E. Brock was in a rear-endauto accident Mr. Brock and his wife sued Myron Ellis Singleton, A3M VacuumService, and Clarendon. The matter was tried, and the Brocks were awarded$1,236,419.70, which verdict exceeded Clarendon's $1 million policy limits. In theinstant case, Plaintiff alleges that Clarendon failed to prevent a verdict in excess of itspolicy limits, failed to give proper notice to the excess carrier (Illinois Union), and failedto give proper warning of an excess potential liability claim to Plaintiff. Plaintiff alsoalleges that Illinois Union was given appropriate notice of the Brock lawsuit, andwrongfully denied coverage. See Exhibit "A ."


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8. As shown below, this case falls within this Court's jurisdiction pursuant to 28U.S.C. 1332, 1441 and 1446.

This Court has Original Jurisdiction Pursuant to Diversity9. As of the time of the filing of the original Petition for Breach of Contract, and asof the date of the filing of this Notice of Removal, A3M was and is a limited liabilitycompany organized in the State of Louisiana, which upon information and belief consistsof the following sole members:

a. Patrick C. Sellars - an individual domiciled in the State of Louisiana; andb. Billie B. Sellars - an individual domiciled in the State of Louisiana.

10. As of the time of the filing of the original Petition for Breach of Contract, theoriginal named defendants were Westchester Specialty Insurance Services, Inc. d/b/aAceWestchester Specialty Group ("Ace W estchester Specialty Group") and ACE AmericanInsurance Company. Upon information and belief, Ace W estchester Specialty Groupwas and is an insurance company corporation incorporated in Georgia, with its principalplace of business in Georgia. ACE American Insurance Company was and is aninsurance company corporation incorporated in Pennsylvania, with its principal place ofbusiness in Pennsylvania.11. As of the time of the filing of the First Amended Petition for Breach of Contract,which substituted in Illinois Union Insurance Company as a defendant in place ofWestchester Specialty Group and ACE American Insurance Company, Illinois Union wasand is an insurance company corporation incorporated in Pennsylvania, with its principalplace of business in Illinois.


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12. As of the time of filing of the Supplemental and Third Amended Petition forBreach of Contract, Clarendon was and is an insurance company corporationincorporated in New York, with its principal place of business in New Jersey.13. As of the time of the filing of the initial pleading that commenced the StateAction, and of the time of this Notice of Removal, the amount in controversy exceeded$75,000, exclusive of interest and costs. In the original Petition for Breach of Contract,Plaintiff demanded judgment in the amount of $236,419.70 due to the actions ofdefendants. Plaintiffs demands, as stated in its amended Petitions, have only increased.In the most recent Supplemental and Third Amended Petition for Breach of Contract,Plaintiff demands recovery from Clarendon damages in the sum of $709,259.10, andrecovery from Illinois Union the amount of the original demand ($236,419.70), plusadditional damages in the sum of $472,839.40. See Exhibit "A ."14. Therefore, this Court has original jurisdiction over this case as a matter ofdiversity jurisdiction. See 28 U.S.C. 1332.

Consent to Removal15. Pursuant to 28 U.S.C. 1446(b)(2)(A), counsel for Clarendon has communicatedwith counsel for Illinois Union, and Illinois Union expressly consents to the instantremoval. A true and accurate copy of an email sent by counsel for Illinois Union, whichreflects Illmois Union's express consent to removal, is attached as Exhibit "C."

Timeliness of Removal16. Clarendon received the Supplemental and Third Amended Petition for Breach ofContract, and previous petitions, through service of process on April 24,2013. See


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Exhibit "B." Clarendon is removing this case within 30 days after receipt of service of acopy of the initial pleading setting forth the claim for relief upon which such action orproceeding is based. See 28 U.S.C. 1446(b)(1) - (2).17. Plaintiff filed its original petition on November 5, 2010, but the case is not barredby the one year removal time limit. Under 28 U.S.C. 1446(c)(1), which references 28U.S.C. 1446(b)(3), the one year removal time limit only applies if the case stated by theinitial pleading is not removable. See also, Badon v. R JR Nabisco, 224 F.3d 382,389(5 th Cir. 2000)(citing previous version of 28 U .S.C. 1446(b), and noting that one-yearlimitation on removal of diversity cases applies only to those that were not initiallyremovable). At the time of the filing of the initial pleading, the case was removable.Complete diversity existed and the original Petition alleged damages in excess of$75,000. See Exhibit "A ."

Conclusion18. Because this Notice of Removal is timely and all the prerequisites for removal,including those set out in 28 U.S.C. 1441 and 1446 have been met, Clarendon givesNotice of Removal, and will give written notice to Plaintiff, and will file a copy of thisNotice of Removal with the Clerk of the Fortieth Judicial D istrict Court, St. John the


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Baptist Parish, Louisiana.Shreveport, Louisiana this 10th day of May, 2013.

Respectfully submitted,PETTIETTE, ARMAND, DUNKELMAN,WOODLEY, BYRD & CROMWELL, L.LJP.BY: s/ S. Michael CooperS. Michael Cooper, Bar No. 24057400 Texas Street, Suite 400Post Office Box 1786Shreveport, Louisiana 71166-1786Telephone: (318)221-1800Facsimile: (318)226-0390ATTORNEYS FOR CLARENDON AMERICAINSURANCE COMPANY

holper et al v. ace american insurance company petition for removal

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