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Home My WebLink About04-0977RITE AID CORPORATION, Plaintiff TRANSCONTINENTAL INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA :No. e q-- 977 CIVIL ACTION - LAW : : JURY TRIAL DEMANDED TO THE PROTHONOTARY OF SAID COURT: Please issue a Writ of Summons against the following Defendant in the above matter: Transcontinental Insurance Comoanv, 30 South 17m Street, 16th Floor, Philadeh~hia, PA 19103 Date: March 2, 2004 By: TI!O~M)~M~, THOMAS & HAFER, LLP Pa~l R. Walker, Esquire 305 N. Front Street Harrisburg, PA 17108 (717) 237-7100 Attorney for Plaintiff TO: Transcontinental Insurance Comnanv YOU ARE NOTIFIED THAT PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU, V[HICH YOU .ARE REQUIP, oED TO DEFEND. 281269.1 Prothonotary, Civil Divigion (~ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-00977 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND RITE AID CORPORATION VS TRANSCONTINENTAL INSUR3~NCE CO Thomas Kline duly sworn according to law, says, that he made and inquiry for the within named DEFENDANT Sheriff or Deputy Sheriff who being a diligent search and , to wit: TR3INSCONTINENTAL ]INSURANCE but was unable to locate Them deputized the sheriff of YORK serve the within WRIT OF SI/MMONS COMPANY in his bailiwick. County, He therefore Pennsylvania, to On April 28th , 2004 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep York County 19.75 .00 56.75 04/28/2004 THOMAS THOMAS HAFER Sworn and subscribed to before me this ~3f~ day of ~ ~D~ A.D. Prothonotary RITE AID CORPORATION, Plaintiff V. TRANSCONTINENTAL INSURANCE COMPANY, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA _qqq ,zcL m : CIVIL ACTION - LAW : : JURY TRIAL DEMANDED CD TO THE PROTHONOTARY OF SAID COURT: Please issue a Writ of Summons against the following Defendant in the ab~6_imat~: Transcontinental Insurance Company, 30 South 17th Street, 16th Floor, Philai~elpl~, 19103 Date: March 2, 2004 By: TE OMAS & HAFER, LLP Pac I R. Walk% Esquire 30~0 N. Front Street Harrisburg, PA 17108 (717) 237-7100 Attorney for Plaintiff TO: Transcontinental Insurance Company YOU ARE NOTIFIED THAT PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU, WHICH YOU ARE REQUIRED TO DEFEND. 281269.1 TRUE COPY FROM RECORD tn i'ostlrnor, y wherool, I here unto se{ my h~nd ~ tlle_s~ji 0f ~Jd Co~ at C~lisle, ~. r~day~~A ~ COUNTY OF YORK OFFICE OF THE SHERIFF s .VlC C,L, (717) 771-9601 26 EAST MARKET ST, YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN 1. PLAINTIFF/S/ Rite Aid Corporation 3. DEFENDANT/S/ Transcontinental Insurance Company 2. COURT NUMBER 04-q77 4, TYPE OF WRIT OR COMPLAINT Writ of Summons SERVE ~" s. NAME Of INDIVIDUAL COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED. ATTACHED, OR SOLD. ~ ~ Transcontinental Insurance Company ~ I 6. ADDRESS (STREET OR RFC WITH BOX NUMBER, APT NO., Cl~ SORe, WVE, STATE AND ZIP CODE · n AT [~O~/2410 Pleasant Valle. y R~ad, Ynrk, PA 17~n? ~0~c~ 7. INDICATE SERVICE: Z PERSONAL ~1 PERSON JN CHARGE ~1 DEPUTIZE C~I ~CmER~_.T.~M..,A% ,, n ~] a 1 ST CLASS MAlL r3 POSTED ~l OTHER NOW ~ ~-(.h 1 1 .20 04 I, SHERIFF OF'I~BI~51~UNT~, PA, do hereby deputize the sheriff of York COUNTY to execute this _.W~ [iLart~-m,i~e~i'eturn ther~?~ding to law. This deputation being made at the request and r sk of the paint ff -,~' .... ,.~;~-~: ~: ~ ;.:: ' .,,,,~ ~-c~"~.~.¢ ~ SHERIFF OF~I~COONTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVIC(~T OF COUNTY Cumberl and Please mail return of se~-~ice to C~nberland County Sheriff. ADVANCE FEE PD BY ATTY NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: NmB, WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property ~nder within writ m~y leave same without a watchman, Jn custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any proper~ before sheriff's sale thereof. 9. TYPE NAME AND ADDRESS of ATTORNEY / ORIGrNATOR and SIGNATURE // 10. TELEPHONE NUMBER ~ 11. DATE FILED Paul R. Walker, 305 N. Front St., Harrisburg PA ~" 7t~-2~J~-7100J 3/5/04 1710~ ' -- 12, SEND NOTICE OF SERVICE COPY NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mai;ed). CUMBERLAND COUNTY SH ER ! FF ' $ D 13, I acknowledge receipt of the writ 14, DATE RECEIVED 15. Expiration/Hearing Date orcomplaintasindicatedabove. RONDA M. AHRENS / RAT 03-12-2004 I 04-04-2004 16. H~W SERVED: PERSONAL ( ) RESIDENCE ( ) POSTED ( ) POE ( ) SHERIFF'S OFF ( ) OTHER ( ) SEE REMARKS 17. ~1~ hereby certify ~uld return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) ~8~AMEANDTiTLE~F~ND~V~DUALSERVED/USTADDRESsHERE~FN~TSH~WNAB~VE(Re~at~nsh~p~De~end~nt) 119. Date of SaP/ice 120. Time of Service 21.ATTEMPTS~.~,~;~s[~DatelTImo Miles Int. [Date TimelMiles Int. Date TimelMiles Int. Date 'rime MilesI Int. IDate Time Miles Int. 22. REMARKS 23. Advance Costs 124. Se~viceCosts 125_.N/F ~26. Milage 127. Postage 128. SubTotal ~Z9. Pound 130. NotyFeeJ31.Surchg 132. TotCosts133. CostO~fundLC,~eckNo. $75.00 I' ,OO 6 15.751 117.7 . I I 751 i "~; 80 ANSWEr' 47. DATE 48, DATE 4-5-04 49. DATE 51. DATE RECEIVED % NOTARI~L S~At. 5 I ~4, Signature of , .... m 45. Sig ture of York 42. day ~ ~Y Co~misRio~ ~.~~~ H. ~. Signature ~ Foreign 50. I'ACK~WLEOGE RECEIPT OF THE SHERIFF'~RN ~IGNATURE OF A~HORIZED ISSUING AUTHORI~ AND TITLE 1. WHITE - Issuing Authori~ 2. P[NK- Aaomey 3. CA~RY; S~r~s ~ce ~ ~UE - She~s RITE AID CORPORATION Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA TRANSCONTINENTAL INSURANCE EXCHANGE 2401 Pleasant Valley Road York, PA 17402 Defendant No.: 04-97'7 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and Notice are served, by entedng a written appearance personally or by an attorney, and filing in writing with this Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important tO you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 800-990-9108 THOM~ THOMA._S & "AFER, LLP by: lpg.! .NRo.. 8W8a~r, i=_~q u i re~.. 305 North Front Street, 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 237-7100 Date: May 19, 2004 NOTIClA Le han demando a usted en la code. Si usted quiere defendrse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plaza al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrito e en persona o por obogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. :Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido e~n la peticion de demanda. USTED PUEDE PERDER DINERO O SUS PROPIEDADES O OSTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA OR LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONgEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 800-990-9108 RITE AID CORPORATION IN THE COURT Of COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff TRANSCONTINENTAL INSURANCE EXCHANGE 2401 Pleasant Valley Road York, PA 17402 Defendant No.: 04-977 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED Plaintiff, Rite Aid Corporation ("Rite Aid"), through its undersigned attorneys, avers the following as its Complaint. 1. This action arises out of Defendant Transcontinental Insurance Company ("Transcontinental")'s wrongful violation of its duty to de'lend and/or indemnify Rite Aid against certain claims brought against Rite Aid by Robert Quarg and his wife, Francine Quarg (the "Quargs"). 2. Rite Aid has its headquarters and principal place of business at 30 Hunter Lane, Camp Hill, Pennsylvania 17011. 3. Defendant Transcontinental is an insurance company doing business in Pennsylvania, with a place of business at York, Pennsylvania. 4. The Quargs filed a civil action against Rite Aid in the Superior Court of New Jersey, Passaic County on January 7, 2002. The Quargs seek damages arising out of an alleged slip and fall ("Quarg Lawsuit"). A copy of the Complaint filed in the Quarg Lawsuit is attached as Exhibit "A", and is incorporated solely for reference only, and without admission of any allegations contained in such Complaint. 5. The Complaint in the Quarg Lawsuit, in part, alleges that on January 31, 2000, Robert Quarg was walking across the parking lot of Rite Aid's store location in Clifton, New Jersey, also known as Store # 1746 ("Rite Aid Store"). Such Complaint includes allegations that improper mainterlance of snow and ice removal caused Robert Quarg to fall and sustain injuries ("Accident"). 6. At the time of the Accident, Good Earth Landscape Contractors, aka WGP Property Maintenance t/a Good Earth Landscaping ("Good Earth"), had a policy of liability insurance in effect, as issued by Transcontinental, a part of the CNA insurance companies ("Policy"). A copy of the insurance certificate and its renewal certificate evidencing such insurance coverage and the Policy are alttached as Exhibit "B". 7. At the time of the Accident, Good Earth and Rite Aid had a contract entitled "Snow Plowing Agreement" applicable to the Rite Aid Store ("Agreement"). The ^greement provides for indemnity to Rite Aid for the Accident, and further requires that Rite Aid be additionally insured under Good Earth's lia~bility insurance policy for the Accident. A copy of the Agreement is attached as Exhibit "C" and incorporated here. 8. Rite Aid and its affiliates are self-insured, including for the Accident. As such, there is no other insurance available to Rite Aid with respect to the Accident. 9. The defense and indemnity of the above suit was tendered timely by letter dated October 4, 2002, a copy of which is attached as Exhibit "D", and such tender was followed up with further correspondence dated February 18, 2003, a copy of which is 2 attached as Exhibit "E", requesting defense and indemnity from Transcontinental ("Tender"). 10. Dipankar Ghose, the responsible CNA claims representative, requested a copy of the complaint in the Quarg Lawsuit, and was furnished a copy on February 25, 2003, a copy of which such transmittal is enclosed as E;(hibit "F". Thereafter the claim administrator for Rite Aid, Pinnacle Risk Management Services ("Pinnacle"), requested a copy of the Policy. No response, and no policy, was provided to either Rite Aid or Pinnacle, despite multiple messages left for Mr. Ghose. 11. The Quarg Lawsuit thereafter went to arbitration, and Rite Aid was required to pay $38,250.00 in satisfaction of such arbitration. Such arbitration award against Rite Aid is covered for indemnity purposes under the Policy. 12. On July 29, 2003, a letter was sent to CNA, a copy of which is attached as Exhibit "G", requesting reimbursement of the payment by Rite Aid with respect to such arbitration award in the Quarg Lawsuit, and additionally, requesting reimbursement of attomeys fees and costs incurred in the defense of the Quarg Lawsuit. Transcontinental has refused to respond, and no response has been received. 13. Rite Aid was compelled to retain, and did retain, attorneys on its behalf to defend the Quarg Lawsuit, and to pursue its Tender and claim of defense and indemnity for the Quarg Lawsuit against Transcontinental, and Rite Aid has incurred related attomeys fees and costs in an amount according to proof. 14. On November 13, 2003, a further letter was sent by Rite Aid's attorneys to CNA, a copy of which is attached as Exhibit "H", with respect to the Tender. CNA has 3 refused to respond, and no response has been received. Thereafter Rite Aid was compelled to file a writ in this action against Transcontinental. COUNT I Breach of Contract 15. Rite Aid incorporates by reference its allegations contained in paragraphs 1 through 14 above as though fully set forth here. 16. The allegations in the Quarg Lawsuit show that there is a potential for coverage under the Transcontinental Policy for the Qu~arg Lawsuit, so as to require Transcontinental to defend Rite Aid in the Quarg Lawsuit. 17. The allegations and subsequent evidence adduced in the Quarg Lawsuit, including depositions and other discovery, also require Transcontinental to indemnify Rite Aid with respect to the Quarg Lawsuit. 18 Transcontinental retained defense counsel to defend Good Earth in the Quarg Lawsuit, and through such counsel and by the correspondence received from Rite Aid, is fully aware of the nature of the allegations, and also of the subsequent discovery and depositions which confirm that Transcontinental has an obligation to defend and indemnity Rite Aid with respect to the Quarg Lawsuit. 19. Transcontinental's failure to defend and indemnify Rite Aid is a breach of its insurance contract and an abandonment of its insured, Rite Aid. 20. As a result of the aforesaid, Transcontinental breached its contract, the Policy, which has resulted in monetary loss to Rite Aid. 4 WHEREFORE, its is prayed that judgment be entered in favor of Rite Aid and against Transcontinental in an amount in excess of that requiring compulsory referral to arbitration. A jury trial is hereby demanded. COUNT II Bad Faith Pursuant to 42 Pa.C.S.A. § 8371 21. Plaintiff incorporates by reference its allegations in paragraphs 1 through 20 above as though fully set forth here. 22. Rite Aid's damage and loss is directly and proximately caused by the reckless, wanton and/or willful misconduct of Transcontinental, which has acted without regard to the rights of its insured, Rite Aid. 23. The actions of Transcontinental were recklessly, wantonly and willfully done for the purpose of causing harm to its insured, Rite Aid. 24. Having full knowledge of the nature of the claims made against its insured, Rite Aid, Transcontinental did recklessly, wantonly and willfully fail to take any steps, let lone reasonable and necessary steps, to defend Rite Aid in the Ouarg Lawsuit, to settle the Quarg Lawsuit, or to pay the arbitration award on behalf of Rite Aid in the Quarg Lawsuit. Transcontinental's conduct, and acts and omissions, in this regard are continuing in nature. 25. Transcontinental's failure to respond to requests for reconsideration by Rite Aid by itself amounts to bad faith and a breach of its fiduciary duty owed to its insured, Rite Aid. 26. Transcontinental's refusal to provide a copy of the Policy to Rite Aid by itself amounts to bad faith and a breach of its fiduciary duty owed to its insured, Rite Aid. 27. Transcontinental did not commence a declaratory judgment action to determine what, if any obligations, it had to Rite Aid unde~r the Policy. 28. The conduct of Transcontinental is outrageous, oppressive and recklessly indifferent to the rights of its insured, Rite Aid. 29. As a direct and proximate result of Transcontinental's reckless, wanton and willful disregard for the rights of its insured, the afo~resaid loss did occur and Rite Aid was required to defend the Quarg Lawsuit, and to pay the arbitration award against Rite Aid in the Quarg Lawsuit, which such arbitration award is subject to indemnity under the Policy. 30 Rite Aid requests all remedial relief as provi('led in 42 Pa.C.S.A. § 8371 for bad faith and an award of compensatory and punitive da~nages including but not limited to: 1. an award of interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus three percent; insurer. an award of punitive damages againslt the insurer; and an assessment of court costs and attorney's fees against the 6 WHEREFORE, its is prayed that judgment be entered in favor of Rite Aid and against Transcontinental in an amount in excess of that requiring compulsory referral to arbitration. A jury trial is hereby demanded. Date: May 19, 2004 292653.1 by: Respectfully submitted, THOMA~r'H0,~AS & HAFER, LLP Ja . Thom Patti R. Walker, Esquire ~ .... I.D. Nos. 15613/88714 305 North Front Street, 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 237-7100 Attorneys for Plaintiff 7 VERIFICATION I, Mark E. Hennessy, on behalf of Rite Aid Corporation and its affiliates, verify that the foregoing Complaint and the attached documents are based upon the information which has been gathered by me, my counsel and/or others on my behalf in preparation of this lawsuit. The anguage of the Complaint is that of counsel and is not mine. I have read the Complaint, and to the extent that it is based upon ir~formation which I have g~ven [o my counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the contents of the Complaint are that of counsel, I have relied upon counsel in making this Verification. understand that intentional false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsifications made to authorities. 8 3ELMANAND GELMAN Dne Broadway Elmwood Park, New Jersey 07407 (201) 794-3131 ~ttorneys for Plaintiff(s) Plaintiff (s) , kOBERT P. QUARG and FRANCINE pUARG, his wife VS. Defendant(s), RITE AID CORPOP~ATION a/k/a & t/a RITE AID PHARMACY, JDGS CLIFTON ASSOC. LLC, JOHN and/or JANE DOES 1 THRU 5 (said names being fictitious and unknown) and ABC and/or XYZ CORPORATIONS t THRU 5 (said names ~eing fictitious and lnknown), jointly, ~everally or in the alternative Plaintiff(s), It 32 East Russell Complaint against SUPERIOR COURT OF NEW JERSEY I~%W DIVISION: PASSAIC COUNTy Docket No. j" ~," CIVIL AC~?ION COMPLAINT AND JURY DEHAND ROBERT p. QU~G and F~CINE QU~G, his wife,-~esiding Street, Clifton, Passaic County, New Jersey, by way of the defendant(s), say(s) that: FIRST COUNT 1. On or about January 31, 2000 and for some time prior thereto, defendants RITE AID CORPOP~ATION a/k/a and! t/a RITE AID PHARMacy, JDGS 2LIFTON ASSOC. LLC, JOH/~ and/or JANE DOES 1 THRU 5 (said names being fictitious and unknown) and ABC and/or XYZ CORPOP~ATIONS 1 THRU 5 (said names being fictitious and unknown), jointly, severally or in the alternative, owned and/or designed and./or maintained and/or were responsible for the care and/or maintenance, including removal of snow and ice and/or sanding and/or salting and/or de-icing, of the premises known as and located at the Rite Aid Shopping Center at or near Clifton and Lexington Avenues in Clifton, Passaic County, New Jersey, more particularly the parking and exterior walkway surfaces accessing the Rite Pharmacy at that location. 2~ At the aforesaid time lawfully in, on and/or about carelessness, recklessness and/or negligence CORPORATION a/k/a and t/a RITE AID PHARMACY, JDGS and place, plaintiff ROBERT P. QUARG was the aforesaid premises when, due to the of defendants RITE AID CLIFTON ASSOC~ LLC, JOHN ~nd/or JANE DOES 1 THRU 5 (said names being fictitious and unknown) and %BC and/or XYZ CORPORATIONS 1 THRU 5 (said names being fictitious and lnknown), jointly, severally or in the alternative, their agents, servants ~nd/or employees, a dangerous condition, nuisance and/or a trap existed 2hereon thereby causing plaintiff ~hereby incur severe and grievous damage. ROBERT p. QUARG to slip and fall and injuries to his great detriment and 3. As a result of the carelessness, recklessness and/or negligence of defendants RITE AID CORPORATION a/k/a and t/a RITE AID PHARMACY, JDGS 2LIFTON ASSOC. LLC, JOHN and/or JANE DOES 1 THRU 5 (said names being ~ictitious and unknown) and ABC and/or XYZ CORPORATIONS 1 THRU 5 (said hames being fictitious and unknown), jointly, severally or in the ~lternative, their agents, servants and/or employees, plaintiff ROBERT p. UARG sustained divers painful and pe~uanent external and internal njuries and his nervous system was greatly shocked and he became and was sick and disabled and so continued from thence hereto and during all that ~ime suffered and will in the future suffer great physical pain and loss Df enjoyment of life. 4. By reason of said injuries, plaintiff ROBERT p. QUARG has been and ·ill be unable to perform his usual household, social and recreational ~ctivities, has been and will be unable to perform his usual work, has suffered and will in the future suffer loss of income, and has been and will be compelled to expend large sums of money for medicines and medical attention. WHEREFORE, plaintiff, ROBERT P. QUARG, demands Judgment against the ~efendants, RITE AID CORPORATION a/k/a and. t/a RITE AID PHARMACy, JDGS iLIFTON ASSOC. LLC, JOHN and/or JANE DOES 1 THRU 5 (said names being !ictitious and unknown) and ABC and/or XYZ CORPORATIONS 1 THRU 5 (said names being fictitious and unknown), jointly, severally or in the alternative, on this Count for damages together with lawful interest and ~osts of suit. SECOND COLrNT 1. Each of the allegations contained in the First Count of this -~omplaint are hereby repeated as if set forth at length herein and made a Dart of this, the Second Count. 2. At all times relevant herein, plaintiff FRANCINE QUARG was and is he wife of plaintiff ROBERT P. QUARG, and as such is entitled to his services, society, consortium and affection. 3. AS a result of the carelessness, recklessness and negligence of the defendants, RITE AID CORPORATION a/k/a and t/a RITE AID PHARMACY, JDGS ~LIFTON ASSOCo LLC, JOHN and/or JANE DOES 1 THRU 5 (said names being fictitious and unknown) and ABC and/or XYZ CORPOP~ATIONS 1 THRU 5 (said ~ames being fictitious and unknown) , jointly, severally or in the ~lternative, their agents, servants and/or employees, plaintiff FPJ~NCINE QUARG has been and will be compelled to expend large sums of money for medicines and medical attention for the said ROBERT p. QUARG and has been and will be deprived of the services, society, consortium and affection of the said ROBERT P. QUARG. WHEREFORE, plaintiff, FR3%NCINE QUARG, demands Judgment against the defendants, RITE AID CORPORATION a/k/a and t/a RITE AID PHARMACY, JDGS 2LIFTON ASSOC. LLC, JOHN and/or JANE DOES 1 THRU 5 (said names being fictitious and unknown) and ABC and/or XYZ CORPORATIONS 1 THRU 5 (said names being fictitious and unknown), jointly, severally or in the alternative, on this Count for damages togeth f with lawful interest and Dated: B/ Richal T~ Zimmerman, For the Pirm ,ated: ~or Plaintiff(s) JURY DEMAND demand a trial by jury on all issues so triable. GEL~-~%/~ GELMAN for Plaintiff(s) / Richar~T. Zimmerman, For the Firr~ RICHARD T. ZIMMERMAN, Esq., an attorney at law of the State of New associated with the law firm of Gelman & Gelman, Esqs., attorneys plaintiff(s), certifies as follows, subject to discovery in this 1. I am not presently aware of any other noncerns the subject matter of this law suit. 2. I am not presently aware of any other ac is contemplated with respect to the subject ma~ 3. I am not presently aware of any othe this action. )ated: Be advised that pursuant des~gn~ated as to R.4:25-4, trial counsel for pl~ action pending which Dr proceeding which this law suit. at should be joined ~n Zimmerman, Esq. is n this matter. erman -4- ~1~1~11~, CERTIFICATE OF LIABILrrY INSURANCE THIS CERTIFICATE IS IS. SUED ,AS A MATTER OF IN.:ORMATION -- ONLY AND CONFFJ:~S NO RIGHTS UPON THE CERTIFIOATE HOLDER. TI-IlS CERTIFICATE DOES NOT AMEND. EXTEND OR INSURERS AFFORDING COVERAGE ~ A~ORD ~O~.,PORA'RON 1988 CaK THIS ~RIlFI~T~ ONLY .~O~ER. ,? C lOO.OO Rile C~l~y .Kopp JaN 31 ' 83 17:52 FR 7179758~_q5 TO -qTa~,Oaa2 P. 83 SNOW ~LOWIN= A~RE~NT THIS A~REEb~_/~f made this 1st day of .Vanuary, 1~99 by azld between C~DOD KART~ LANDSCAPE CONTRACTORS,PO BOx 34?, OP~%DELL, NJ 07649-0347 and Rite Aid Corporation hereinafter collectively referred to as "Rite Aid"). In consideration of the mutual promises and a~reements made herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, intending to be legally bound, do her~_by a~ree as follows: 1. The term of this Agreement st~ll commence upon the date hereof and shall be for a perio~ of one (1) year(s), with an option, at Rite Aid's discretion, to extend it an add/tiona~ ~wo (Z) year(s}. A. Not withstanding the fore~olng, Rite Ai~ may cancel and terminate this A~reement upo~ thirty (30) days prior written notice. B_ Not lthstandmng the for,sgoing, C~OOD BART}{ LANDSCAPE CONTRACTOP~ may ~s~ont:inu~ se~ic~ here~er and cancel an~ resinate t~s ~ement, upon thirty (30] days ~rlor ~itten notice. 2. GOOD EARTK LA~DSCAPB CONTRAC"IX)RS a~reee to render the facility services described ~n SCHEDULE A, based upon th~ snow proposal(s} for such retail Rite Aid stores as may bm designated in writin~ by Rite follew±n~ the execution of this Agreement. Rite Aid may close stores or relocate stores and, in such event, such stores shall be deleted from the stores serviced under this Agreement unless otherwise specifically designated in writing by Rite Aid. 3. Rite Aid shall, during the course of this a~reement, a~rse to permit access 'to the work area and provide reasonable cooperation for the performance of the activities described in this ~reement. 4. The parties additionally A. The term of this Agreement shall commence upon the date hereof and shall he for a period of one (1) year(e) and will renew automatically durin~ the initial term unless terra/hated by either party upon written notification 30 days prior to any. renewal date. Rite Aid at its discretion may extend the A~reement an &dditional two year(s) 5. On each smrvlce visit to a Rite Aid store, GOOD EARTNLAND$CApE CONTRACTORS shall comply with the following procedures: A. Check in with the manage:~/assista~t manager present. Complete all services as outlined in this Agreement. C. Have the manager sign the servloe tloke6, together with a complete Rite Aid Form #Z21 to be attached to the service ticket, as~ a pre-requisite for payment. 6. All invoices shall bs s~mitted to the Kite Aid Store Plannlng office, Attn: ~etail ~aeilities, ~.O. Box 1169 Camp Hill, PA 17001-11~9. 7. ~OOD EARTH LANDSCAPE CONTRACTORS To the fullest extent permitted by law, the contr~actor shall indemnify and hold harmless Rite A/d and its a~ents and employees from and agains= all claims, damages, losses and/or in part by any negligent act or omission of the contractor, any sub-contractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, re~;ardlese of whether or no~ it is caused in part ~y a party indemnified hereunder. Such obligation of indemnity which would otherwize exist as to any party or person described in In any and all claims against Rite Aid or any of their agents or employees by any employes of the Contractor, any sub- contractor, anyone directly or indirectly employed by any of them or anyone whose acts any of thmm may be liable, the indamnlfication, s obligation under tb/s paragraph shall not be: limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any sub-contractor under workers or workmen's compensation acts, disability benefit acts or other employee benefit acts. A. ~OOD EARTH LANDSCAPE CONTRACTORS further agrees to procure and maintain, at its cost and e~pense, Comprehensive Public Liability Insurance, in amount~ reasonably acceptable to ].~ite Aid, but with limits of liability of not less titan $100,000 bodily injury per occurrence, and appropriate property damage per occurrence with an insuranc~ company reasonably satisfactory to Rite Aid. Said policy of insurance shall name Rita Aid as an adddtio~=al insured and shall provide that it may got be cancelled unless thirty (30) days prior written notice has bee~l given to R~te Aid. Such policy or duly executed certificate of insurance shall be delivered to Rite Aid within fifteen (1S) days from the date of the A~keement and renewals thereof shall be delivered at least thirt~6 (30) days prior to the expiration of the policy term.. B. HOOD EARTH LANDSCAPE OONTRACTORS further agrees to procure and maintain ali insurance required by law for clalms under workers' or workmen's compensation, disability benefit ~nd other similar employee benefit act. Certificates evidencing such ~nsura~ce shall be delivered to Rite Aid within fifteen (t5) days from the date of this A~eement and renewals thereof shall be delivered at least thirty (30) days prior to the expiration of the policy term. 8. Neither this A~reement ncr the~ duties and obligations of HOOD EAKTH LANDSCAPE CONTRACTORS thereunder may be assigned by HOOD EARTH LANDSCAPE CONTRACTORS without the prior written consent of Rite Aid. ~AN 31 '03 17:5~ FR 71797~8695 TO 97030338 P.85 9. This A~reement constitutes the entire agreement between the parties m/%d may not be modified or emended except in writin~ executed by both parties. 10. This ABreement shall be construed according to the Laws of,.and by the OOurts of, Tihe Commonwealth of Pennsylvania. IN WITNESS ~HEKEOF, the parties hereto have executed this A~reement ~s-~of the ~ey a~d year firsl= above written. WITNESS: ~OOD EART~ A~/a~reement i~ITE AID CORPORATION 3RN 31 '03 17:52 FR 717975:8695 TO 97838332 Schedule A GOOD EARTH LANDSCAPE CONTRACTORS Store # 01746 43 $ LE.X3A/GTON A. VENU~ CL~TON, 1~'~' 070112356 Pinnacle Risk Management Services Tender Notice - snowplower October 4, 2002 Good Earth Landscape Contractors PO Box 347 Oradell, NJ 07649-0347 RE: Our Client: Claimant: D/incident: File #: Rite Aid Corporation Robert Quarg 01/31/00 GLRAC2000224933 Dear Sir or Madam: Pinnacle Risk Management Services is the claims administrator for Rite Aid Corporation. Please accept this letter as notification of a lawsuit that has been presented by the person referenced above. The claimant alleges that he slipped on snow and/or ice the Rite Aid in Clifton, New Jersey. We understand that your company had a snow removal contract 'with Rite Aid during the time this incident occurred. Please fop, yard this letter to your insurance carrier and have their representative contact me. If you have any questions please do not hesitate to contact me. Sincerely, Jennifer McCorkel Claims Examiner cc: Vince Velardo, Esquire Pinnacle Risk Management Services, Inc. PO Box 306 Camp Hill, PA 17001-0306 717.703,0330, Ext, 4 Pinnacle Risk Management Services February 18, 2003 Readington Insurance Services Route 22, East P.O. Box 266 Whitehouse Station, NJ Certified Mail return receipt requested RE: Our Client: Rite Aid Corporation Your Insured: WGP Property Maintenance, Inc. Claimant: Robert Quarg D/L: January 31,2000 Our File#: GLRAC2000224933 Dear Sir or Madam: Pinnacle Risk Management Services is the claims administrator for Rite Aid Corporation. Please accept this letter as notification of a lawsuit involving the above captioned claimant, Robert Quarg. This claim involves the above claimant who slipped on s;now and/or ice at the Rite Aid in Clifton, New Jersey. Your insured had a snow removal contract with Rite Aid during the time this incident occurred and Rite Aid is named as an additional insured on the Certificate of Insurance. (copy enclosed). Also, enclosed is a copy of the Snow/Ice Removal Agreement between your insured and Rite Aid Corporation which indicates your insured has agreed to defend, indemnify and hold harmless Rite Aid in claims of this type. At this time, we tender this claim to you and ask that your liability insurance carrier acknowledge receipt of this letter and acceptance of this tender in writing within 30 days. Please forward this letter to their insurance carrier and have their representative contact me. Should you have any questions, please do not hesitate to contact me. PO Box 306 · Camp Hitl, PA I7001-0305, Phone (717)703-0330 · Fax (717')703-0332 Sincerely, Kelby Leonard Senior Claim Representative 717-730-0330 x 4 cc: Good Earth Landscape Contractors Pinnacle Risk Management Services To: Dipm~kar Ghose From: Kelby Leonard Fax: 617-706~2600 Pagas: 5 Phone: Date: 02/25/03 Re: Robert Quarg Claim # 29712441 cc: X Urgent [] For Review [] Please Comment [] Please Reply [] Please Recycle Mr. Ghose Per our telephone conversation, attached is copy of complaint. Please give me a call should you need any additional correspondence. Thanks. PO Box 306 Camp Hill, PA 17001-0306 Phone 717-703-0330, Facsimile 717-703-0332 Pinnacle Risk Management Services July29,2003 Ms. Leslie MacQuarrie Claim Manager CNA h~snrance Gronp PO Box 9167 Quincy, MA 02269 VIA FACSIN[ILE AND CERTIFIED MAIL Our Client: Claimant: Claim #: Date of Loss: CNA FILE: CNA ADJUSTER: Rite Aid of NJ h~c. / Rite Aid Co~Tporation Robert Quarg GLRAC2000224933 02/02/2000 29712441 Dipankar Ghose Dear Ms. MacQuarrie: As you may know, Pinnacle Risk Management Services, Inc. is the claim adm/nistrator for Rite Aid Corporation. Rite Aid is a self-insnred entity which contracted with your insured- WGP-Property Maintenance, Inc d/b/a Good Earth Landscape Conu'actors, (hereafter Good Earth) - to provide snow removal services to various Rite Aid stores, including the one at issue in the above case. That contract included a complete Defense and Indemnity clause, (at paragraph 7), as well as a sub-clause (at Paragraph 7) that required Good Earth to name Rite Aid as an Additional insured on the Good Earth Policy ( your policy). Rite Aid correctly tendered this matter to CNA for complete Defense and Indenmity pursuant to the terms of the contract witl~ Good Earth, based on the TWO clauses mentioned above. Indeed, in Discovery Answers, Good Earth- via coansel - aclmowledged that Rite Aid is an Additional Insured entity on the Good Earth Policy. Therefore, as an Additional Insured, Rite Aid requested a complete copy of the policy via its cotmsel, V. Vh~cent Velardo, Esq. My claim representative - Kelby Leonard also made mnltiple verbal requests on Dipankar Ghose's voicemail. Those requests went unanswered. Rite Aid has never received a copy of tkis policy - even though it is entitled to a copy pttrsuant its statzts as an Additional insured. I re-request a complete copy of the CNA policy for Good Earth applicable to this loss, Failure to provide this may open CNA to a bad faith nnfa/a' claims practice claim. Despite CNA's refusal to acknowledge the contract terms, tlfis ma~er proceeded to Arbitration and an award of $76,500 ~vas rendered to the plaintiff. Tlfis award was split evenly between Good Earth and Rite Aid. PO Box 62103 Hanisburg, PA 17106-2103 Telephone 717-703-0330 Facsimile 717-703-0332 Ms. Leslie MacOuarrie July 29, 2003 Rite Aid agreed to resolve the case with the plaintiff for its share of the award, and it agreed to release its claim against Good Earth for the Defense and Indemnity that Good Earth owed it under paragraph 7 of the contract. HOWEVER - Rite Add did not agree to g/ve up its claim against .CNA for coverage tinder the Additional Insured Clause of the contract (also at paragraph 7 sub paragraph A). Therefore, Rite Aid hereby re-asserts its request for coverage under that clause, and requests reimbursement of its paid loss of $38~250, plus all attorney fees m~d costs incurred to date. Fees and costs crrrrently strand at $7,259.60, but continue to grow. .Good Earth's cotmsel had taken the position that CNA's policy was excess to Rite Add's other insurance. First, Rite Add has not had the benefit of seeing that language in the CNA policy to verify or refute same. Second- Rite Add is self-insm:ed, so there is no other primary_ insurance to be excess to. According to our attorney, New Jersey ]aw is well settled that a Self- Insured Retention does not constitute insurance. For reference purposes, I would also like to direct yoar attention to a very similar case, in which CNA did indeed accept Rite Aid's tender, even if it was tacit acceptance That case was called Barbara Kay and was handled by Richard Barke of your orifice. I handled the case for Rite Aid. Mr. Burke, wkile never formally accepting the tender, did indeed settle the entire claim. That slip/fall case also involved Good Earth and this same Rite Aid location. Therefore, precedent is on Rite Aid's side here. (CNA file 29688467-D9) Please be advised that Rite Aid stands ready to file a Declaratory Judgment action on tlfis matter if we cannot resolve tlfis amicably. Further, if we have not received the complete Good Earth policy apphcable to this matter within 10 days of your receipt of this letter, we will have no choice but to include a count for bad faith failure to respond and for unfair claims practices. Please review th/s claim, and call me on Thursday or Friday to discuss this case. Please mall or fax me a complete copy of the Good Earth Policy as soon as possible. Thank You for your cooperation. ." t .&?~' MZ'7///'i //Todd A. Rittle, A~C Branch Manager Pinnacle Risk Management Services, Inc. 717-70%0330 P 717-703-0332 F TR/s Enclosm-e - Good Earth Contract Ms. Leslie MacQuarde July 29, 2003 Cc: Mark E. Hennessy Sr. Director of Claims Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 'THOMAS, THOMAS & HAFER LLP ATTORNEYS AT LAW 305 North Front Street, P.O. Box 999, Harrisburg, PA 17108 Phone: (717) 237-7100 Fax: (717) 237-7105 www.tthlaw.com James K. Thomas, I1 (7~ 7) 255- 76~ 7 jthomas@tthlaw, com November 13, 2003 VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED AND VIA FACSIMILE (617) 706-2600 Ms. Leslie MacQuarrie Claim Manager CNA Insurance Group P.O. Box 9167 Quincy, MA 02269 Re: Robert Quarg v. Rite Aid Corporation Date of Loss: Pinnacle Claim No.: CNA Claim No.: CNA Named Insured: Our File No.: 1/31/2000 GLRAC2000224933. 29712441 WBP Property Maintenance, Inc. dba Good Earth Landscape Contractors 924-31278 Dear Ms. MacQuarrie: This firm has been retained to represent the interests of Rite Aid Corporation ("Rite Aid") with respect to the above claim. Transcontinental Insurance Company had a policy in effect on the date of loss identified above, issued to WGP Property Maintenance, Inc. dba Good Earth Landscape Contractors ("Good Earth"). Good Earth entered into a contract with Rite Aid which required Good Earth to name Rite Aid as an additional insured under the Transcontinental policy. CNA staff counsel representing Good Earth in the above claim confirmed that Rite Aid is named as an additional insured under the Transcontinental policy. Rite Aid and its affiliates are self-insured, including for the above claim. The defense and indemnity of the above suit was tendered timely to CNA, and the claims administrator for Rite Aid, Pinnacle Risk Management Services ("Pinnacle"), repeatedly requested a copy of the Transcontinental policy from Dipankar Ghose, the responsible CNA claims representative. CNA never responded. Lehigh Valley Office: 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 * Phone: (610) 868-1675 * Fax: (610) 868-1702 'I~HOMASf THOMAS gr HAFER LLP November 13, 2003 Page 2 Pinnacle then forwarded a letter to you on July 29, 2003, requesting a copy of the Transcontinental policy, and requesting reimbursement of $38,250 incurred in settle~nent, and $7,259.60 incurred in the defense of the above suit. Again, no response was received. This will serve to request again a copy of the Transcontinental policy referenced above. Please provide a copy of the policy within the next 10 business days. I look forward to your timely response. Very truly yours, THOMAS, THOMAS & HAFER, LLP By: James K. Thomas, 1I CC: Mark E. Hennessy Sr. Director of Claims Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 Todd A. Rittle, AIC Branch Manager Pinnacle Risk Management Services, Inc. P. O. Box 62103 Harrisburg, PA 17106 SHERIFF'S RETURN - CASE NO: 2004-00977 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND RITE AID CORPORATION VS TRANSCONTINENTAL INSURANCE CO R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT TRANSCONTINENTAL INSUR3LNCE COMPANY OUT OF COUNTY , Sheriff or Deputy Sheriff who being says, that he made a diligent search and , to wit: but was unable to locate Them deputized the sheriff of YORK serve the within WRIT OF SUMMONS in his bailiwick. County, He therefore Pennsylvania, to On June 30th , 2004 this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge Dep York County 9.00 10.00 ~~a ~ ~fK zne 19.75 ~ull~erland County .00 56.75 06/30/2004 THOMAS THOMAS HAFER Sworn and subscribed to before me this '7~ day of~/~ A.D. Prothonotary~ COUNTY OF YORK OFFICE OF THE SHERIFF s .v,c cAL,. (717) 771-9601 28 EAST MARKET ST. YORK. PA 17401 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN T~--~-0 RT NUMBER 4. TYPE OF WRIT OR COMP~NT 1. PLAINTIFF/S/ ~ TiY~ OF~]. RTf'P A'ic] ('nlmnnt-nt"inn 3. DEFENDANT/S/ ' aint Transcontinental Insurance Exchanqe 5 NAME OF ND VIDUAL COMPANY CORPORAT ON ETC TO SERVE OR DESCRIPTION~OF P, ROPE.~Y T,O ~E LE~.!~ ATT~.~ED. ~OR SOLD ~r;',~n~, ~ ,i ,~i n,9~-~l Tnsuranc~q- F~ha~oe - - E. ADDR ES'S (STREET OR RFD WITH BOX NUMBER, APT NO., CITY, I~ORO, TWR, STATE AND ZiP CODE 7 NO CATE SERVICE: r~ PERSONAL PERSON IN CHARGE XXn]~]~UTIZE r~ C T. IL r~ 1ST CLASS MAll.. ~ ~_ . _[~ OTHER ~ -- ~ -20o4 xt~ I, SHERIFF O~'~:IR~CCOUNT__Y., ~A, do he.r%b~y depu.tize the s.erj~ o, ..... York -- COUNTY to execute thisJl~~_eturn tnere~.~mg tO taw. This deputation being made at the request and risk ~f the plaintiff- '.~ s. ~-'~ ~'~' ~ u_~_~'/~'.~-~_ ~. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SEBVICE: Ct~nberla~d out o~ county CUMBERLAND ADVANCE FEE PD BY ATTY Please mail return of service to Ct~nberland County Sheriff. Thank you. ECUTION' N e. WAIVER OF WATCHMAN - Any deputy sheriff ievying upon or attaching any prope~y under within writ may leave NOTE ONLY APPLICABLE ON WRiT OF EX ~ ' ' ............. -~-~m~-t ~hou liab v on the pad of such deputy or the sheriff to any same without a watchman, a custody of whomever s found in possession, affer notifying person o~ ~¥y u, ~,, ~-, , . ff he em for an DSS destruction or emova[ o any property before sher ffs sa e thereo / plainti ' Y ' ' /Z~/~ 10 TELEPHONE NUMBER 11. DATE FILED 9. TYPE NAME AND ADDRESS of ATfORNEYIORIG[NATOR and S GNATURE / ' Paul R. Walker, 305 N. Front S., Harrisburg, PA 17108/ 717-237-7100 /,3 ~--,i '5 21 04 tR. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This ares must be ¢o.~ted il notice is to_~. mailed). Xi:R~:~x~.xt~i~X~XX~D~,XFX~Y, Xxt~At~.~]R%~xR.~XX~k(~kx CU[~BERLAND CO SHERIFF SPACE BELOW FOR USE OF THE SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13.1 acknowledge receipt of the writ SIGNATURE OF AUTHORIZED CLERK 114. Date Received 115 Expiratian/Headng Date or compiaint as indicated above. R. AHRENS 5-25-04 6-20-04 16. HOWSERVED: PERSONAL ) RESIDENCE( ) POSTED( ) POE( ) SHERIFF'S OFF ( ) OTHER( ) SEEREMARKS · cedi and return a NOT FOUND because I am unable to Ioca e he individua company corporation, etc. named above. (See remarks he,ow.) 11 :~l~:r~b~o TI;rE OF INDIVIDUAL SERVED ' LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship ,o Defendant, 19. Date of Ser~ice~0. Time of Se~ice 21.A~EMPTSIB~ I TI~ es In~. I Date ~melMiles nt Date Time lMiles~ Int Date ~TimelMilesl Int. Date !Tlme'Mdes Int. Date Time Miles Int. I J I ', i I J I I '1 ' 23. Advance Costs Se 'ce Costs 25. N/F 26. Milea 27. Postage 28. Sub To I 29. Pound 30. Nota Fee :,,,. F rei,n county L','. Advance Costs L E. Se"v'ce C°sts N°t'r' herr' l g' M"e"g"'"°stage'N'F' SO ANSWER. I 6 44. Signature of 41.AFFIRMED and sub.sc ' e to before me this .- JUNE "~ 04 - Del). Sheriff /) ~,,J..,. ~'a/,~al~.44e~n'~'~n, Notary Public ~ 45. Signature of York County Sheriff ~CEsts' ~__Cost Due or Refund I47. Date 48. Date 49. Date 6-16-04 WILLIAM M. HOSE 46. Signature of Foreign County Shedff J51. Date Received I. WHITE - Issuing Authodty 2. PtNK- Attorney 3. CANARY - Sheriff's Office 4. BLUE - Sheriffs Office STRADLEY RONON STEVENS & YOUNG, LLP Jane L. Foster (I.D.No: 27185) Nancy L. Margolis (I.D.No: 66425) 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 TO THE PLAINTIFF: You are hereby notified to file a written response To the enclosed New Matter within twenty (20) Days from service hereof or a judgment may be Jane I~fdes Foster Attorneys for Defendant Transcontinental Insurance C. ompany RITE AID CORPORATION Plaintiff, VS. TRANSCONTINENTAL INSURANCE COMPANY Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY Civil Action No. 04-977 C1VIL TERM .ANSWER OF DEFENDANT TRANSCONTINENTAl_, INSURANCE COMPANY TO PLAIN'I'IFF'S COMPLAINT AND NEW MATTER Defendant, Transcontinental Insurance Company ("Transcontinental"), incorrectly identified as Transcontinental Insurance Exchange in Plaintiff's caption, by and through its attorneys, Stradley Ronon Stevens & Young, LLP, hereby responds to the Complaint of Plaintiff, Rite Aid Corporation ("Rite Aid"), as follows: 1. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. Doc. #808752v.1 2. Denied. Upon reasonable investigation, Transcontinental is without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph, and they are, therefore, denied. 3. Admitted in part, denied in part. Transcontinenttal admits that it is an insurance company and does business in Pennsylvania. Transcontinental denies that it has a place of business in York, Pennsylvania. 4. Admitted in part; denied in part. Upon information and belief, the Quargs filed a civil action against Rite Aid in the Superior Court of New Jersey, Passaic County on January 7, 2002. The Complaint in the underlying Quarg Lawsuit is a document in writing that speaks for itself, and any characterizations inconsistent therewith are specifically denied. 5. Denied as stated. The Complaint in the underlying Quarg Lawsuit is a document in writing that speaks for itself, and any characterizations inconsistent therewith are specifically denied. 6. Admitted in part; denied in part. Transcontinental admits only that it issued a Commercial General Liability Policy to WGP Property Maintenance, Inc., effective May 1, 1997 through May 1, 2000, Policy No. 1068810855 (the "Policy"). The remaining allegations of this paragraph constitute characterizations of documents in writing which speak for themselves, and any characterization inconsistent therewith is specifically denied. By way of further answer, the Policy is a document in writing that speaks for itself, and any characterizations inconsistent therewith are specifically denied. 7. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent that the allegations of this paragraph are factual in nature, the allegations constitute characterizations of a written document which speaks for itself, and any characterization inconsistent therewith is specifically denied. Doc.#808752v.l 8. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent that the allegations of this paragraph are factual in nature, Transcontinental is without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph and they are, therefore, denied. 9. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent the allegations characterize written documents, the documents speak for themselves, and any characterization inconsistent with them is specifically denied. 10. Admitted in part; denied in part. It is admitted, upon information and belief, that a copy of the Complaint in the Quarg Lawsuit was provided to Dipankar Ghose on or about February 25, 2003. It is further admitted, upon information and belief, that Pinnacle Risk Management Services ("Pinnacle") requested a copy of the policy issued to WGP Property Maintenance, Inc. It is denied that Dipankar Ghose is the "responsible CNA claims representative." By way of further answer, Dipankar Ghose is a Litigation Claims Specialist assigrted to handle the Quarg Lawuit. Transcontinental's investigation of this matter is continuing and Transcontinental is without information or knowledge sufficient to form a belief as to the troth of the remaining allegations of this paragraph and they are, therefore, denied. 11. Admitted in part; denied in part. Upon information and belief, Transcontinental admits that the Quarg Lawsuit resulted in an arbitration award requiring Rite Aid to pay $38,250. The remaining allegations of this paragraph are conclusions of law to which no response is required and they are, therefore, denied. 12. Admitted in part; denied in part. It is admitted that the July 29, 2003, letter was sent to CNA. The Fetter is a written document that speaks for itself and any characterizations inconsistent therewith are specifically denied. By way of further answer, Transcontinental's investigation of this Doc. #808752v,1 matter is continuing and Transcontinental is without information or knowledge sufficient to form a belief as to the truth of the remaining allegations of this paragraph and they are, therefore, denied. 13. The allegations contained in this paragraph contstitute conclusions of law to which no response is required and they are, therefore, denied. To the extent these allegations are factual in nature, upon reasonable investigation, Transcontinental is without knowledge or information sufficient to form a belief as to the troth of these allegations, and they are, therefore, denied. 14. Admitted in part; denied in part. It is admitted that the November 13, 2003, letter was sent to CNA. The letter is a written document that speaks for itself and any characterizations inconsistent therewith are specifically denied. By way of further answer, Transcontinental's investigation of this matter is continuing and Transcontinental ils without information or knowledge sufficient to form a belief as to the truth of the remaining allegations of this paragraph and they are, therefore, denied. 15. .COUNT I Breach of Contract Transcontinental incorporates herein by reference paragraphs 1-14 as if set forth at 16. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent that the allegations of this paragraph are factual in nature, Transcontinental denies that it is required to indemnify Rite Aid with respect to the Quarg Lawsuit. 17. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent that the allegations of this paragraph are factual in nature, Transcontinental denies that it is required to indemnify Rite Aid with respect to the Quarg Lawsuit. Doc. #808752v.1 18. Admitted in part; denied in part. Transcontinental admits only that it retained defense counsel to defend Good Earth in the Quarg Lawsuit and that it was aware of the Quarg Lawsuit. The remaining allegations of this paragraph constitute conclusions of law to which no response is required and they are, therefore, denied. To the extent that the remaining allegations of this paragraph are factual in nature, Transcontinental denies that it has an obligation to defend and indemnify Rite Aid with respect to the Quarg Lawsuit. 19. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent that the allegations of this paragraph are factual in nature, Transcontinental denies that it has breached any contract and fi~rther denies that it has abandoned any insured. 20. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent that the allegations of this paragraph are factual in nature, Transcontinental denies that it failed or refused to comply with any obligation owed under the Policy. Further answering, Transcontinental is without information or knowledge sufficient to form a belief as to the remaining allegations of this paragraph and they are, therefore, denied. WHEREFORE, Defendant, Transcontinental Insurance Company, respectfully requests this Court to dismiss the claims of Plaintiffagainst it and award Transcontinental any other further relief that this Court deems appropriate. length. 21. COUNT II Bad Faith Pursuant to 42 PA. C.S.A. § 8371 Transcontinental incorporates herein by reference paragraphs 1-20 as if set forth at Doc.#808752v.1 22. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent any of the allegations of this paragraph are deemed factual in nature, Transcontinental denies that it acted recklessly, wantonly and/or engaged in willful misconduct. 23. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required is required. To the extent any of the allegations of this paragraph are deemed factual in nature, Transcontinental denies that it acted recklessly, wantonly or willfully for the purpose of harming Plaintiff. 24. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent any of the allegations of this paragraph are deemed factual in nature, Transcontinental denies that it failed or refused to perform any duty or obligation owed under the terms of the insurance Policy. 25. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent any of the allegations ofthi~ paragraph are deemed factual in nature, Transcontinental specifically denies that any of its actions were in bad faith or in breach of any duty owed under the terms and conditions of the Policy. 26. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent any of the allegations of this paragraph are deemed factual in nature, Transcontinental specifically denies that any of its actions were in bad faith or in breach of any duty owed under the terms and conditions of the Policy. 27. Admitted. 28. Denied. The allegations of this paragraph constit:ate conclusions of law to which no response is required. Doc. #808752v.1 29. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent any of the allegations of this paragraph are deemed factual in nature, Transcontinental denies that it engaged in any conduct that has caused or will cause Plaintiff to suffer injury or damages. 30. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent the allegations of this paragraph are deemed factual in nature, Transcontinental denies that Rite Aid is entitled to any remedial relief as provided for in 42 Pa. C.S.A. § 8371, or any compensatory or punitive damages of any kind. WHEREFORE, Defendant, Transcontinental Insurance Company, respectfully requests this Court to dismiss the claims of Plaintiff against it and award Tr,anscontinental any other further relief that this Court deems appropriate. NEW MATTER 31. Count I of Plaintiff,s Complaint fails to state a claim against Transcontinental upon which relief may be granted. 32. Count II of Plaintiff's Complaint fails to state a claim against Transcontinental upon which relief may be granted. 33. 34. 35. satisfaction. 36. 37. Plaintiff,s claims may be barred, in whole or in part, by the doctrine of waiver. Plaintiff,s claims may be barred, in whole or in part, by the doctrine of release. Plaintiff's claims may be barred, in whole or in [,art, by the doctrines of accord and Plaintiff,s claims may be barred, in whole or in part, by the doctrine of estoppel. Plaintiff has suffered no damages. Doc.#808752v. I 38. Any acts or omissions of Transcontinental as alleged did not constitute any breach of any duty owed to Plaintiff. 39. To the extent Plaintiff was an insured under the Policy, it was an additional insured pursuant to the terms of the additional insured endorsement to the Policy. Any duty or obligation owed to Plaintiff as an additional insured was limited by the terms and conditions of the Policy and the additional insured endorsement, which, among other things, limited TranscontinentaI's obligation to provide insurance coverage to Plaintiffonly for liability arising out of Good Earth's work. To the extent Plaintiff's liability in the Quarg Lawsuit did not arise out of Good Earth's work, Transcontinental has no obligation or duty to Plaintiff. 40. The coverage provided to Plaintiff as an additional insured under the Policy was excess over any other valid and collectible insurance available to Plaintiff whether primary, excess, contingent or on any other basis. To the extent Plaintiff has other valid and collectible insurance, whether primary, excess, contingent or on any other basis, such insurance applies to Plaintiff's alleged loss before any potential coverage under the Policy is implicated. 41. The coverage provided to Plaintiff is excess over the total of all deductibles and self- insurance amounts under all other insurance. 42. For the reasons set forth in Paragraphs 31- 41, Plaintiff's claim for coverage under the Policy fails. Because there is no coverage under the Policy, Plaintiff's claim for bad faith fails as a matter of law. 43. At all times material hereto, Transcontinental had a reasonable basis for its actions. 44. At no time material hereto did Transcontinental act in such a manner that would justify an award of punitive damages. Doc.#808752v,l 45. At all times material hereto, Transcontinental acted in good faith and in accordance with the terms, conditions and exclusions of the Policy. 46. 42 PA. C.S.A. § 8371 has no applicability to this case. WHEREFORE, Defendant, Transcontinental Insurance Company, respectfully requests that this Court dismiss the claims of Plaintiff against it and award Transcontinental any other further relief that this Court deems appropriate. Respectfully submitted, STP~LEY RONON STEVENS & YOUNG, LLP Jane"L. Foster (I.D.No: 27185) Nancy L. Margolis (I.D.No: 66425) 2600 One Commerce Square Philadelphia, PA 19 i[03-7098 (215) 564-8000 Attorneys For Defendant Transcontinental Insurance Company Doc, #808752v.1 VERIFICATION Dipankar Ghose, Claim Specialist, hereby states that he is duly authorized to make this Verification in the within action and that facts set forth in the foregoing Answer and New Matter are true and correct to the best of his information, knowledge and belief. The undersigned understands the statements made herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authority. Dip/ml~ ~Jhose, Claim Speciaiist Dated: ~ o~']J 6~00~ Doc. #808820vA CERTIFICATE OF SERVICE I, Jane Landes Foster, Esquire, hereby certify that on July 28, 2004, I caused a true and correct copy of Transcontinental Insurance Company's Answer and New Matter to Plaintiff's Complaint to be served upon the below via First Class Mail, postage prepaid, to the persons listed below: Paul R. Walker, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Jane ~ndes Foster STRADLEY, RONON, STEVENS & YOUNG, LLP Jane Landes Foster, Esquire (I.D. No: 27185) Nancy L. Margolis (I.D. No: 66425) 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 RITE AID CORPORATION, Plaintiff, TRANSCONTINENTAL INSURANCE COMPANY, Defendant. Attorney for Defendant, Transcontinental Insurance Company COURT OF COMMON PLEAS CUMBERLAND COUNTy CIVIL TERM Civil Action No. 04-977 .ENTRY OF APPEARANCE. Kindly enter my appearance on behalf of Defendant, Transcontinental Insurance Company, in the above-referenced matter. Date: July28, 2004 Jane(IJande~ Foster, Esquire Nancy L- -. Margolis, Esquire STRADLEY, RONON, STEVENS & YOUNG, LLP 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 Attorneys for Defendant, Transcontinental Insurance Company CERTIFICATE OF SERV][CE I hereby certify that on this 28th day of July, 2004, a tree and correct copy of the foregoing Entry of Appearance on behalf of Defendant, Transcontinental Insurance Company, was served upon the following by facsimile and United States Mail, first class postage prepaid: Paul R. Walker, Esquire Thomas, Thomas & Haler, LLP 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 Attorney for Plaintiff Jane ~des Foster Doc. #811320v.1 RITE AID CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : No. 04-977 CIVIL TERM TRANSCONTINENTAL INSURANCE COMPANY, : CIVIL ACTION - LAW Defendant : JURY TRIAL DEMANDED TO THE PROTHONOTARY: Please mark the docket in the above-captioned matter as discontinued with prejudice as to Defendant Transcontinental Insurance Company (incorrectly identified in original Complaint as Transcontinental Insurance Exchange). Date: Z.)9!7,.;JS /" By: ~ aul R. Walker, Esquire 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7238 Attorney for Plaintiff 340012.1 I, Paul R. Walker, Esquire, hereby certify that the foregoing document in within action was served upon the following by enclosing the same in an envelope addressed as follows, U.S. Mail, postage prepaid and depositing the same on k~/ q , 2005. Jane Landes Foster, Esquire Nancy Livers Margolis, Esquire STRADLEY RONaN STEVENS & YOUNG, LLP 2600 Commerce Square Philadelphia, PA 19103 By: MAS & HAFER, LLP ~ 340012-1 --- , 1-"-\ :....\ '--1 f';'? .f'"- (.,.', ~