Loading...
HomeMy WebLinkAbout08-5280C DOUGLAS LAW OFFICE 43 W. SOUTH ST. POB 261 CARLISLE PA 17013 TELEPHONE 717-243-1790 Showers; vs Progressive Direct Insurance Company Plaintiff Defendant WILLIAM P. DOUGLAS, ESQ. Supreme Court I.D. # 37926 In the Court of Common Pleas of Cumberland County Pennsylvania No. 08- S a 4o Civil Term Civil Action Law .ry Trial Demanded NOTICE 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 entering a written appearance personally or by attorney and filing in writing with the 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 Plaintiffs. 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 1 DATE: September 4, 2008 BY ?,/?J? MIA? Complaint 1. Plaintiffs, David C. and Kim M. Showers, husband and wife, are adult individuals residing at 65 Marilyn Drive, Carlisle, Cumberland County, Pennsylvania. 2. Defendant, Progressive Direct Insurance Company (Progressive), is a corporation licensed to do business in the Commonwealth of Pennsylvania, with offices located throughout the Commonwealth of Pennsylvania with mailing address P.O. Box 31260, Tampa, Florida, 33631. 3. On or about November 25, 2005, at approximately 1:00 pm, Plaintiff Kim Showers was the owner and operator of a 2002 Pontiac Grand Prix, in which her husband David Showers was a passenger, traveling north on North West Street in Carlisle, Pennsylvania. 4. At that same time, underinsured motorist, Tammy J. Knouse was driving a 1996 Mercury, which was owned by Defendant Donna K. Knouse, heading west on "H" Street in Carlisle, Pennsylvania crossing North West Street. 5. Underinsured Motorist, Tammy J. Knouse, (hereinafter referred to as Knouse) was allegedly stopped at the stop sign at the intersection of "H" and North West Streets, then proceeded through the intersection and drove her vehicle into Plaintiffs' vehicle who were rightfully traveling down North West Street. 6. Tammy Knouse failed to see Plaintiffs' vehicle, which had the right of way, before entering the intersection and hitting Plaintiffs' vehicle. 7. Tammy Knouse's negligence consists of, among other things, the following acts and/or omissions, which substantially contributed to and were the proximate cause of the injuries suffered by Plaintiffs: a. Failing to abide by speed limits and traveling at an unlawful speed in violation of, among other things, 75 Pa.C.S.A. § 3361; b. Failing to take evasive action to avoid an impact with Plaintiffs; C. Operating her vehicle at an excessive rate of speed under the circumstances; d. Failing to have her vehicle under proper and adequate control; e. Failing to apply the brakes in time to avoid the collision; Failing to observe Plaintiffs' vehicle on the highway; g. Failing to operate her vehicle in accordance with existing traffic conditions and traffic controls; h. Failing to exercise the high degree of care required of a motorist entering an intersection; I. Failing to properly observe traffic signals controlling Defendant's direction of travel; Failing to keep a reasonable look-out for other vehicles lawfully on the road; k. Attempting to enter an intersection when such movement could not be safely accomplished; 1. Failing to yield the right-of-way to traffic already upon the road; m. Failing to prudently proceed through the intersection so as to avoid creating a dangerous situation for other vehicles on the highway; n. Proceeding through an intersection when such movement could not be made in safety; o. Failing to keep a proper lookout for approaching vehicles; p. Operating the vehicle so as to create a dangerous situation for other vehicles on the roadway; q. Failing to have her vehicle under proper and adequate control; r. Operating her vehicle in a careless disregard for the lives and property of others in violation of 75 Pa.C.S.A. § 3714; S. Permitting or allowing her vehicle to strike and collide with the vehicle operated by the Plaintiffs; and t. Failing to keep a proper lookout and see Plaintiffs' vehicle lawfully traveling on North West Street prior to the collision. 8. There was a policy of insurance in effect at the time of the accident, issued by Progressive Direct Insurance Company and underwritten by Progressive Halcyon Insurance Company, bearing policy number 52849027-0. The contract provided stacked Underinsured Motorist Coverage, up to $500,000.00 per person and up to $1,000,000.00 per accident. Pursuant to the terms of said contract of insurance, Progressive is liable for damages that were caused by Knouse, in excess Knouse's insurance policy limit ($50,000.00), up to the applicable limits of coverage. Progressive granted, in writing, permission to the plaintiffs to settle any and all claims they may have against Knouse and execute a general release in favor of Knouse while preserving all the plaintiffs' rights under the aforesaid insurance policy. COUNTI KIM M. SHOWERS vs PROGRESSIVE DIRECT INSURANCE COMPANY 9. The averments of paragraphs 1 through 8, inclusive, are incorporated herein by reference. 10. As a direct and proximate result of the negligence of Knouse as stated above, Plaintiff suffered numerous serious and permanent physical injuries, including, but not limited to pain in her lumbar and thoracic spine, hips, legs, and knees, and fractured ribs. 11. As a direct and proximate result of the negligence of Knouse, Plaintiff was forced to incur medical bills and expenses for the injuries she has suffered and she will continue to incur medical expenses in the future. 12. As a direct and proximate result of the negligence of Knouse, Plaintiff has suffered, or may suffer, a severe loss of her earnings and impairment of her earning capacity, and the loss of income and impairment of earning capacity will, or may, continue in the future. 13. As a direct and proximate result of the negligence of Knouse, Plaintiff has undergone, and may in the future undergo, great mental and physical pain and suffering, mental anguish and humiliation, loss of life's pleasures, and a severe limitation in her pursuit of daily activities, all to her great loss and detriment. 14. Knouse had a duty to Plaintiff to act according to the rules of the road and laws of the Commonwealth, but breached such duty through her negligence as set forth above. 15. At all times material hereto, Plaintiff acted with due care and was not contributorily negligent. WHEREFORE, Plaintiffs demand judgment against Defendant in excess of an amount requiring compulsory referral to arbitration, including costs of suit, and any other relief this court deems appropriate. COUNT II DAVID C. SHOWERS vs PROGRESSIVE DIRECT INSURANCE COMPANY 16. The averments of paragraphs 1 through 15, inclusive, are incorporated herein by reference. 17. As a direct and proximate result of the negligence of Defendant as stated above, Plaintiff suffered numerous serious and permanent physical injuries, including, but not limited to pain in his back, right leg and knee, and hips. 18. As a direct and proximate result of the negligence of Defendant, Plaintiff was forced to incur medical bills and expenses for the injuries he has suffered and he will continue to incur medical expenses in the future. 19. As a direct and proximate result of the negligence of Defendant, Plaintiff has suffered, or may suffer, a severe loss of his earnings and impairment of his earning capacity, and the loss of income and impairment of earning capacity will, or may, continue in the future. 20. As a direct and proximate result of the negligence of Defendant, Plaintiff has undergone, and may in the future undergo, great mental and physical pain and suffering, mental anguish and humiliation, loss of life's pleasures, and a severe limitation in his pursuit of daily activities, all to his great loss and detriment. 21. Knouse had a duty to Plaintiff to act according to the rules of the road and laws of the Commonwealth, but breached such duty through her negligence as set forth above. 22. At all times material hereto, Plaintiff acted with due care and was not contributorily negligent. WHEREFORE, Plaintiffs demand judgment against Defendant in excess of an amount requiring compulsory referral to arbitration, including costs of suit, and any other relief this court deems appropriate. COUNT III KIM M. SHOWERS and DAVID C. SHOWERS VS PROGRESSIVE DIRECT INSURANCE COMPANY 23. The averments of paragraphs 1 through 22, inclusive, are incorporated herein by reference. 24. David C. Showers and Kim M: Showers are husband and wife and were married at the time of the accident. 25. As a direct and proximate result of the injuries sustained by the plaintiffs, they have suffered from the loss of the aid, assistance, comfort, companionship and society of their spouse. WHEREFORE, Plaintiffs demand judgment against Defendant in excess of an amount requiring compulsory referral to arbitration, including costs of suit, and any other relief this court deems appropriate. Respectfully bmitted, William P. Douglas, Es . Attorney for Plaintif September 4, 2008 VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of our knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. David C. Showers Kim M. Showers September 4, 2008 N + r'{ (y Av `=T GO l TS E err `N 3? C fi? V, l? ?i Case 1:08-cv-01791-TIV Document 1 Filed 09/26/2008 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA KIM M. SHOWERS AND DAVID C. SHOWERS Plaintiffs VS. PROGRESSIVE DIRECT INSURANCE COMPANY Defendant CIVIL ACTION :No. (FILED ELECTRONICALLY) NOTICE OF REMOVAL NOW, comes Defendant, Progressive Direct Insurance Company ("Progressive"), by and through its attorneys, Forry Ullman, and files this Notice of Removal pursuant to 28 U.S.C. § 1441, et. seq. Defendant submits that the United States District Court for the Middle District of Pennsylvania has original diversity jurisdiction over this civil action and this matter may be removed to the District Court in accordance with the procedures provided at 28 U.S.C. § 1446. In further support of this Notice of Removal, defendant states as follows: 1. Plaintiffs, Kim M. Showers and David C. Showers, initiated this civil action through the filing of a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, on or about September 5, 2008. 2. The Complaint was received by Progressive on or about September 5, 2008. 3. A true and correct copy of the Complaint is attached hereto as Exhibit 1. 4. Upon information and belief, the documents attached hereto represent all of the pleadings filed in connection with the state court action. 5. Plaintiffs, Kim M. Showers and David C. Showers, are adult individuals and reside at 65 Marilyn Drive, Carlisle, Cumberland County, Pennsylvania. Case 1:08-cv-01791-TIV Document 1 Filed 09/26/2008 Page 2 of 3 6. Progressive is not a Pennsylvania corporation nor does Progressive have its principal place of business in Pennsylvania. Rather, Progressive is an Ohio corporation with its principal place of business in Ohio with an address of 6300 Wilson Mills Road, Mayfield Village, Ohio, 44143. 7. Plaintiffs' Complaint alleges that Progressive has breached a contract and the plaintiffs seek underinsured motorist benefits from Progressive arising form a motor vehicle accident that allegedly occurred on or about November 25, 2005. 8. Because of plaintiffs' various claims for unliquidated damages arising out of allegedly "permanent physical injuries... sever loss of earnings and impairment... great mental and physical pain and suffering" which includes compensatory damages, attorneys' fees and costs, and seeks an amount in excess of $75,000.00. 9. As plaintiff is a citizen of Cumberland County, Pennsylvania and Defendant is a citizen of the state of Ohio and because the amount in controversy exceeds $75,000.00, the United States District Court for the Middle District of Pennsylvania has original diversity jurisdiction. over this matter. See 28 U.S.C. § 1332. 10. The District Court has original jurisdiction over this matter pursuant to 28 U.S.C. § 1332, which confers jurisdiction over all civil actions where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs and is between citizens of different states. 11. Defendant submits that this matter may be removed to the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1441 which permits removal of any civil action for which the District Courts have original jurisdiction. 2 WHEREFORE, Defendant, Progressive Direct Insurance Company, hereby removes this civil action to the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1441. Respectfully submitted, FOR ULLMAN By: CARY . BREON, ESQUIRE Pa. I.D. NO. 61469 Walnut Hill Plaza, Suite 450 150 S. Warner Road King of Prussia, PA 19406 (610) 977-2975 Attorneys for Defendant, Progressive Direct Insurance Company DATE: September 26, 2008 3 Case 1:08-cv-01791-TIV Document 1-2 Filed 09/26/2008 Page 1 of 6 EXHIBIT A DOUGLAS LAW OFFICE 43 W. SOUTH ST. POB 261 CARLISLE PA 17013 TELEPHONE 717-243-1790 Showers; vs Progressive Direct Insurance Company Plaintiff NOTICE Defendant Civil Action Law iry Trial Demanded 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 entering a written appearance personally or by attorney and filing in writing with the 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 Plaintiffs. 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 WILLIAM P. DOUGLAS, ESQ. Supreme Court I.D.# 37926 Cumberland County Pennsylvania No. 08- 5280 Civil Term DATE: September 4, 2008 BY Case 1:08-cv-01791-TIV Document 1-2 Filed 09/26/2008 Page 2 of 6 Complaint 1. Plaintiffs, David C. and Kim M. Showers, husband and wife, are adult individuals residing at 65 Marilyn Drive, Carlisle, Cumberland County, Pennsylvania. 2. Defendant, Progressive Direct Insurance Company (Progressive), is a corporation licensed to do business in the Commonwealth of Pennsylvania, with offices located throughout the Commonwealth of Pennsylvania with mailing address P.O. Box 31260, Tampa, Florida, 33631. 3. On or about November 25, 2005, at approximately 1:00 pm, Plaintiff Kim Showers was the owner and operator of a 2002 Pontiac Grand Prix, in which her husband David Showers was a passenger, traveling north on North West Street in Carlisle, Pennsylvania. 4. At that same time, underinsured motorist, Tammy J. Knouse was driving a 1996 Mercury, which was owned by Defendant Donna K. Knouse, heading west on "H" Street in Carlisle, Pennsylvania crossing North West Street. 5. Underinsured Motorist, Tammy J. Knouse, (hereinafter referred to as Knouse) was allegedly stopped at the stop sign at the intersection of "H" and North West Streets, then proceeded through the intersection and drove her vehicle into Plaintiffs' vehicle who were rightfully traveling down North West Street. 6. Tammy Knouse failed to see Plaintiffs' vehicle, which had the right of way, before entering the intersection and hitting Plaintiffs' vehicle. 7. Tammy Knouse's negligence consists of, among other things, the following acts and/or omissions, which substantially contributed to and were the proximate cause of the injuries suffered by Plaintiffs: a. Failing to abide by speed limits and traveling at an unlawful speed in violation of, among other things, 75 Pa.C.S.A. § 3361; b. Failing to take evasive action to avoid an impact with Plaintiffs; Case 1:08-cv-01791-TIV Document 1-2 Filed 09126/2008 Page 3 of 6 C. d. e. f. 9. Operating her vehicle at an excessive rate of speed under the circumstances; Failing to have her vehicle under proper and adequate control; Failing to apply the brakes in time to avoid the collision; Failing to observe Plaintiffs' vehicle on the highway; Failing to operate her vehicle in accordance with existing traffic conditions and traffic controls; h. Failing to exercise the high degree of care required of a motorist entering an intersection; 1. Failing to properly observe traffic signals controlling Defendant's direction of travel; j. Failing to keep a reasonable look-out for other vehicles lawfully on the road; k. Attempting to enter an intersection when such movement could not be safely accomplished; 1. Failing to yield the right-of-way to traffic already upon the road; m. Failing to prudently proceed through the intersection so as to avoid creating a dangerous situation for other vehicles on the highway; n. Proceeding through an intersection when such movement could not be made in safety; o. Failing to keep a proper lookout for approaching vehicles; p. Operating the vehicle so as to create a dangerous situation for other vehicles on the roadway; q. Failing to have her vehicle under proper and adequate control; r. Operating her vehicle in a careless disregard for the lives and property of others in violation of 75 Pa.C.S.A. § 3714; S. Permitting or allowing her vehicle to strike and collide with the vehicle operated by the Plaintiffs; and t. Failing to keep a proper lookout and see Plaintiffs' vehicle lawfully traveling on North West Street prior to the collision. Case 1:08-cv-01791-TIV Document 1-2 Filed 09/26/2008 Page 4 of 6 8. There was a policy of insurance in effect at the time of the accident, issued by Progressive Direct Insurance Company and underwritten by Progressive Halcyon Insurance Company, bearing policy number 52849027-0. The contract provided stacked Underinsured Motorist Coverage, up to $500,000.00 per person and up to $1,000,000.00 per accident. Pursuant to the terms of said contract of insurance, Progressive is liable for damages that were caused by Knouse, in excess Knouse's insurance policy limit ($50,000.00), up to the applicable limits of coverage. Progressive granted, in writing, permission to the plaintiffs to settle any and all claims they may have against Knouse and execute a general release in favor of Knouse while preserving all the plaintiffs' rights under the aforesaid insurance policy. COUNTI KIM M. SHOWERS vs PROGRESSIVE DIRECT INSURANCE COMPANY 9. The : averments Df paragraphs 1 through 8, inclusive, are incorporated herein by reference. 10. As a direct and proximate result of the negligence of Knouse as stated above, Plaintiff suffered numerous serious and permanent physical injuries, including, but not limited to pain in her lumbar and thoracic spine, hips, legs, and knees, and fractured ribs. 11. As a direct and proximate result of the negligence of Knouse, Plaintiff was forced to incur medical bills and expenses for the injuries she has suffered and she will continue to incur medical expenses in the future. 12. As a direct and proximate result of the negligence of Knouse, Plaintiff has suffered, or may suffer, a severe loss of her earnings and impairment of her earning capacity, and the loss of income and impairment of earning capacity will, or may, continue in the future. 13. As a direct and proximate result of the negligence of Knouse, Plaintiff has undiergone, and may in the future undergo, great mental and physical pain and suffering, mental anguish and humiliation, loss of life's pleasures, and a severe limitation in her pursuit of daily activities, all to her great loss and detriment. 14. Knouse had a duty to Plaintiff to act according to the rules of the road and laws of the Commonwealth, but breached such duty through her negligence as set forth above. Case 1:08-cv-01791-TIV Document 1-2 Filed 09/26/2008 Page 5 of 6 15. At all times material hereto, Plaintiff acted with due care and was not contributorily negligent. WHEREFORE, Plaintiffs demand judgment against Defendant in excess of an amount requiring compulsory referral to arbitration, including costs of suit, and. any other relief this court deems appropriate. COUNT II DAVID C. SHOWERS vs PROGRESSIVE DIRECT INSURANCE COMPANY 16. The averments of paragraphs 1 through 15, inclusive, are incorporated herein by reference. 17. As direct and proximate result of the negligence of Defendant as stated above, Plaintiff suffered numerous serious and permanent physical injuries, including, but not limited to pain in his back, right leg and knee, and ,hips. 18. As at direct and proximate result of the negligence of Defendant, Plaintiff was forced to incur medical bills and expenses for the injuries he has suffered and he will continue to incur medical expenses in the future. 19. As a direct and proximate result of the negligence of Defendant, Plaintiff has suffered, or may suffer, a severe loss of his earnings and impairment of his earning capacity, and the loss of income and impairment of earning capacity will, or may, continue in the future. 20. As a direct and proximate result of the negligence of Defendant, Plaintiff has undergone, and may in the future undergo, great mental and physical pain and suffering, mental anguish and humiliation, loss of life's pleasures, and a severe limitation in his pursuit of daily activities, all to his great loss and detriment. 21. Knouse had a duty to Plaintiff to act according to the rules of the road and laws of the Commonwealth, but breached such duty through her negligence as set forth above. 22. At all times material hereto, Plaintiff acted with due care and was not contributorily negligent. WHEREFORE, Plaintiffs demand judgment against Defendant in excess of an amount requiring compulsory referral to arbitration, including costs of suit, and any other relief this court deems appropriate. • Case 1:08-cv-01791-TIV Document 1-2 Filed 09/26/2008 Page 6 of 6 COUNT III KIM M. SHOWERS and DAVID C. SHOWERS vs PROGRESSIVE DIRECT INSURANCE COMPANY r 23. The, averments of paragraphs 1 through 22, inclusive, are incorporated herein by reference. 24. David C. Showers and Kim M. Showers are husband and wife and were married at the time of the accident. 25. As a direct and proximate result of the injuries sustained by the plaintiffs, they have suffered from the loss of the aid, assistance, comfort, companionship and society of their spouse. WHEREFORE, Plaintiffs demand judgment against Defendant in excess of an amount requiring compulsory referral to arbitration, including costs of suit, and any other relief this court deems appropriate. Respectfully submitted, William P. Douglas, Esq. Attorney for Plaintiffs September 4, 2008 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA KIM M. SHOWERS CIVIL ACTION AND DAVID C. SHOWERS Plaintiffs vs. : No. PROGRESSIVE DIRECT INSURANCE COMPANY Defendant : (FILED ELECTRONICALLY) CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 26`h day of September, 2008, Progressive Direct Insurance Company's Notice of Removal was filed electronically and is available for viewing on the Court's ECF system. I further certify that on September 26, 2008, I served a true and correct copy of Progressive Direct Insurance Company's Notice of Removal upon the Plaintiffs, by mailing the same to Plaintiffs' counsel of record, by First Class United States Mail, postage pre-paid, addressed as follows: William P. Douglas, Esquire Douglas Law Office 43 W. South Street, P.O. Box 261 Carlisle, PA 17013 This statement is made subject to the penalties of 18 U.S.C. § 1621, relating to perjury. FO ULLMAN By: CARY . BREON, ESQUIRE Pa. I.D. NO. 61469 Walnut Hill Plaza, Suite 450 150 S. Warner Road King of Prussia, PA 19406 (610) 977-2975 Attorneys for Defendant, Progressive Direct Insurance Company DATE: September 26, 2008 4 17 r, ! r '