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HomeMy WebLinkAbout06-1939 DOUGLAS LAW OFFICE 27 W, HIGH ST. POB 261 CARLISLE P A 17013 TELEPHONE 717-243.1790 WILLIAM P. DOUGLAS, ESQ. Supreme CourlI.D.# 37926 Richard Phelan and Linda Phelan Plaintiffs In the Court of Common Pleas of Cumberland County, Pennsylvania vs No. 06 - Ji/l'/' Civil Term American Modern Home Insurance Company Defendant Civil action law Jury 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 ACfION WITHIN TWENTY 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 IFYOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAYBE 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, 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 REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle PA 17013 717-249-3]66 , \- L O\...~.. BY,,) J. _",~ \T--___ \\ ~ DATE: April 4, 2006 Complaint 1. The plaintiff, Richard Phelan, is an adult individual who resides at 735 S, Hanover St., Carlisle, Cumberland County, Pennsylvania. 2. The plaintiff, Linda Phelan, is an adult individual who resides at 735 S. Hanover St., Carlisle, Curnberland County, Pennsylvania. 3. The defendant, American Modern Insurance Cos., (NAIC 23469) is a business entity licensed to do business, and regularly conducts business, in the Commonwealth of Pennsylvania, with offices located at 7000 Midland Blvd., Amelia, Ohio, 45201. Said entity is hereafter referred to as "American". 4. The plaintiffs are husband and wife and reside together in the same household. 5. The property that was damaged and is materially related to this suit is a 26 foot 1990 Windsor Craft bearing identification nurnber WND00037J990, hereinafter referred to as "boat" . 6. The plaintiffs purchased the boat in approxirnately 1990 and irnmediately insured the boat by purchasing a contract of insurance through National Marine Underwriters, Inc., the agent of the defendant American. 7. When the boat was initially insured the plaintiffs' had vacation homes in Maryland and Florida. The boat in question would be shipped back and forth between the two homes with the boat spending approximately six rnonths per year in each state. Over the years plaintiffs insured several watercraft they owned through National Marine Underwriters, Inc. and National Marine was aware that the plaintiffs would use watercraft at both locations, 8. The insurance contract policy is a Flagship Yacht Insurance Policy bearing reference nurnber 05-168-0051 issued by the defendant American Modern Home Insurance Company. 9. The policy provides coverage for property damage that occurs anywhere in the continental United States of America as long as said boat is not used outside the defined navigational limits which, in this case, it was not. 10. Prior to October 24,2005, the plaintiffs' boat was in good repair. 11. On or about October 24, 2005, the plaintiff's boat was not in water but rather was being stored indoors at a warehouse in Deerfield Beach, Florida. 12. On the aforesaid date Hurricane Wilma struck Florida and the building housing the plaintiffs' boat, and the plaintiffs' boat, were destroyed. The boat was a total loss and all darnages suffered by the plaintiffs were covered by their policy of insurance. 13. The plaintiffs contacted the defendants and told them of their loss in a tirnely manner. 14. The defendant has refused to pay the loss in accordance with the terms of their policy (a copy of which is attached hereto). 15. The plaintiffs are covered by a policy of insurance issued by the defendants that provides for physical damage coverage in the amount of $59,000,00. 16. The defendant knowingly and willingly refused to timely settle the claim for the damage suffered by the plaintiffs. 17. The defendant had no basis to refuse to pay the claim of the plaintiff in a timely manner. 18. The defendant refused to pay the claims without conducting a prompt and reasonable investigation based upon all available information. 19. The defendant did not act in good faith to effectuate a prompt, fair and equitable settlement of this claim, knowing that liability is clear and coverage applies and as a result the plaintiffs have been forced to incur expenses they would not otherwise have incurred, 20. The defendant has cornpelled the insured to institute litigation to recover arnounts due and owing the insureds under the insurance contract. 21. The defendant failed to promptly provide a factually sound explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of the claim. 22. The defendant has willfully and maliciously withheld benefits from the plaintiffs, due to their failure to investigate the claim timely and thoroughly, which constitutes a breach of an implied covenant of good faith and fair dealing, 23. The defendant, in bad faith, denied payments to its insured without thoroughly investigating the foundation for its denial and in not fully inquiring into the possible basis that might support the insured's claim. Count One Breach of Contract/W arranty 24. Paragraphs 1 through 23 are incorporated herein by reference thereto, 25. The defendant impliedly and/ or expressly warranted that they would, in good faith, provide insurance coverage to the plaintiffs in accordance with the contract and abide by the terms of said contract. 26, As a result of the aforesaid, the defendant breached their contract and/ or warranty, which breach resulted in past and future injury and monetary loss to the plaintiffs. 27. The defendant failed to comply in good faith with the terms of the policy. Wherefore it is prayed that judgment be entered in favor or the plaintiffs and against the defendants in an amount in excess of that requiring compulsory referral to arbitration. A jury trial is hereby demanded. Count Two Bad faith pursuant to 42 Pa.C.S.A. ~8371 28. Paragraphs 1 through 27 are incorporated herein by reference thereto, 29. Plaintiffs' injury, damage and loss were directly and proximately caused by the reckless, wanton and willful misconduct of the defendant without regard to the rights of the plaintiffs. 30. The actions of the defendant were recklessly, wantonly and willfully done for the purpose of causing harm to the plaintiffs. 31. Having full knowledge of the aforesaid facts, the defendant did recklessly, wantonly and willfully fail to take reasonable and necessary steps to settle this claim. 32. The defendant did recklessly, wantonly and willfully, refuse to resolve the claims of the insured and handled said claims with reckless indifference to the rights of the plaintiffs. 33. The conduct of the defendant was outrageous, oppressive and recklessly indifferent to the rights of the plaintiffs. 34. As a direct and proximate result of the defendant's reckless, wanton and willful disregard for the rights of the plaintiffs the aforesaid injury did occur. 35. The plaintiffs hereby request all remedial relief as provided in 42 Pa.C.S.A. 98371. Wherefore it is prayed that judgment be entered in favor or the plaintiffs and against the defendants in an amount in excess of that requiring compulsory referral to arbitration, A jury trial is hereby demanded. Date: April 4, 2006 \ .R~pectfuU~ub 'tted, rJj)~-{ ,~~ __ Williarn P. DougIas,"- sq. Attorney for the plain' 'ffs Affidavit I hereby swear or affirm that the foregoing is true and correct to the best of rny knowledge and/ or information and belief. This is made subject to the penalties of 18 Pa.C.S.g 4904 relating to unsworn falsification to authorities. ,- \ r \,....j.",1 (\ \ '. ''''hh'th " April 4, 2006 ,~ -\; -i""- <;:-. %. Co -<'-., ~ v' .1'. I."~, .; u~,~ \..A} &.. '" \f::. ,j ':'3 CI"., '-. ........ to..: ~ G d '" "" ,. ,"'.... "" , ~ v\ ~ . .~:~ ,~ . \,~ ~";.,. ~. ~ "I... " .' -',I ;_:.) \ ~:' --',' 1--' -- ..- GIBBONS, DEL DEO, DOLAN, GRIFFINGER &: VECCHIONE, P.e. BY: Steven D, Johnson, Esquire/Sean p, Mahoney, Esquire Atty,I.D. Nos, 23848/90313 1700 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103 (215) 665-0400 Attorneys for Defendant American Modem Home Insurance Company RICHARD PHELAN AND LINDA PHELAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiffs, CNIL ACTION -- LAW v, NO, 06-1939, CIVIL TERM AMERICAN MODERN HOME INSURANCE COMPANY, Defendant. NOTICE OF REMOVED CASE TO: THE PROTHONOTARY OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Defendant, American Modem Home Insurance Company, hereby provides notice that it has removed this matter pursuant to 28 U,S,e. ~~ 1332, 1333, 1441 and 1446 to the United States District Court for the Middle District of Pennsylvania, where it has been docketed at No, 06-CV-00887, A copy of the Notice of Removal filed in the United States District Court for the Middle District of Pennsylvania on April 28, 2006 is #1082654 vI 106342-57128 attached hereto as Exhibit" A". Dated: May 1, 2006 GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE, P.c. BY: p Attorneys for Defendant American Modem Home Insurance Company #1082654 vI 106342-57128 VERlFICA nON I, Sean P. Mahoney, certify and state that the Exhibit attached to the Notice of Removed Case is a true and correct copy of the Notice of Removal filed in this matter with the United States District Court for the Middle District of Pennsylvania, I understand that false statements herein are made subject to the penalties of 18 Pa, C.S,A. ~ 4904 relating to unsworn falsification to authorities, ~zt~ #1082654 vi 106342-57128 CERTIFICATE OF SERVICE I, Sean P. Mahoney, hereby certify that a true and correct copy of the foregoing Notice of Removed Case was served on May 1, 2006, via overnight mail, postage prepaid, upon the following: William P. Douglas, Esquire DOUGLAS LAW OFFICE 27 W. High Street P.O. Box 261 Carlisle, P A 17013 ~~~!, #1082654 vi 106342-57128 t:-",l)' ) r !r IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RICHARD PHELAN AND LINDA PHELAN, CIVIL ACTION Plaintiffs, NO, v. AMERICAN MODERN HOME INSURANCE COMPANY, Defendant. NOTICE OF REMOVAL OF DEFENDANT AMERICAN MODERN HOME INSURANCE COMPANY Pursuant to 28 U.S.C ~~ 1332, 1333, 1441 and 1446, defendant, American Modern Home Insurance Company, by and through its attorneys, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C, hereby removes to the United States District Court for the Middle District of #1082509vl 106342-57128 Pennsylvania the case captioned as Phelan v. American Modem Home Insurance Company, Civil Action No, 06-1939, originally filed in the Court of Common Pleas of Cumberland County, Pennsylvania, and in support thereof avers: 1. On April 4, 2006, Richard and Linda Phelan ("Phelan") filed a Complaint against defendant American Modem Home Insurance Company (" American Modem") in the Court of Common Pleas of Cumberland County, Pennsylvania. A true and correct copy of the Complaint is included herein as Exhibit" A". 2, Phelan served the Complaint upon American Modem by mailing it on AprilS, 2006 to American Modem's counsel in Annapolis, Maryland. 3. 28 US.c. sl441(a) provides, in pertinent part, that "any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant". to the district court of the United States for the district and division embracing the place where such action is pending." # 1082509 v 1 106342-57128 4, The United States District Court for the Middle District of Pennsylvania has subject matter jurisdiction over this matter pursuant to 28 U.S.c. S 1332 because diversity of citizenship exists and the amount in controversy exceeds the sum of $75,000,00, exclusive of interest and costs, 5, Diversity of citizenship exists because Richard and Linda Phelan are citizens of Pennsylvania (Complaint at '1'11-2), whereas American Modem is an Ohio corporation with its principal place of business at 7000 Midland Boulevard in Amelia, Ohio. 6. The amount in controversy exceeds the sum of $75,000.00 because the insurance policy at issue provides a coverage limit of $59,000.00, the Complaint alleges the complete destruction of the property allegedly covered by the insurance policy (Complaint at '112), and Phelan seeks to recover, inter alia, "all remedial relief as provided in 42 Pa. C.S,A. S 8371" (Complaint at '135), which includes punitive damages. 7. Furthermore, the United States District Court for the Middle District of Pennsylvania has subject matter jurisdiction over this matter pursuant to 28 U.S.c. S 1333 because it involves a marine insurance #1082509 vi 106342-57128 contract. See Ace Capital v, Varadam Foundation, 392 F. Supp, 2d 671 (D. Del. 2005). 8. 28 U.S.c. S 1446(b) provides that "the notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant,." of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.. .." 9. Pursuant to the requirements of 28 U.S,c. S 1446(b), this Notice of Removal is filed within thirty (30) days of American Modem's receipt of the Complaint. 10. Pursuant to the requirements of 28 U.S,c. S 1446(d), American Modem has provided a copy of the Notice of Removal to Phelan and will file a copy of the Notice of Removal with the Clerk of the Court of Common Pleas of Cumberland County, Pennsylvania. Respectfully submitted, GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE, P.c. BY: a/Steven D. ,Johnson Steven D. Johnson, Esquire #1082509 vI 106342-57128 P A 23848 Sean p, Mahoney, Esquire PA 90313 1700 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103 (215) 665-0400 (215) 636-0366 (FAX) sjohnson@gibbonslaw.com smahoney@gibbonslaw.com Attorneys for Defendant American Modem Home Insurance Company #1082509 vi 106342-57128 CERTIFICATE OF SERVICE I, Sean P. Mahoney, hereby certify that a true and correct copy of the foregoing Notice of Removal was served on April 27, 2006, via overnight mail, postage prepaid, upon the following: William P. Douglas, Esquire DOUGLAS LAW OFFICE 27 W, High Street P,O. Box 261 Carlisle, PA 17013 Se n P. Mahoney #1082509 vI 106342-57128 . , DOUGLAS LAW OFFICE 27 W,IfiGH ST. POB 261 CARLISLE PA 17013 TELEPHONE 717-243-1790 WILLIAM P. DOUGLAS, ESQ. Supreme Court I.D.# 37926 Richard Phelan and Linda Phelan Plaintiffs In the Court of Common Pleas of Cumberland County, Pennsylvania vs No. 06 - ItJ3f Civil Term American Modern Home Insurance Company Defendant Civil action law Jury 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 ACfION WITHIN TWENTY 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 OBJECfIONS 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 HA VB 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 MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle PA 17013 717-249-3166 BY DATE: April 41~ COpy FROM RECORD tll T esOIoony wneraof, I here unto set ""111tnd .,md Itle seal of said Court ~ _ . PI. r* ;f .J1.ay ~ .. Complaint 1. The plaintiff, Richard Phelan, is an adult individual who resides at 735 S. Hanover St., Carlisle, Cumberland County, Pennsylvania, 2. The plaintiff, Linda Phelan, is an adult individual who resides at 735 S. Hanover St., Carlisle, Cumberland County, Pennsylvania. 3, The defendant, American Modern Insurance Cos., (NAIC 23469) is a business entity licensed to do business, and regularly conducts business, in the Commonwealth of Pennsylvania, with offices located at 7000 Midland Blvd., Amelia, Ohio, 45201. Said entity is hereafter referred to as "American". 4. The plaintiffs are husband and wife and reside together in the same household, 5. The property that was damaged and is materially related to this suit is a 26 foot 1990 Windsor Craft bearing identification number WND00037]990, hereinafter referred to as "boat". 6. The plaintiffs purchased the boat in approximately 1990 and immediately insured the boat by purchasing a contract of insurance through National Marine Underwriters, Inc., the agent of the defendant American. 7. When the boat was initially insured the plaintiffs' had vacation homes in Maryland and Florida. The boat in question would be shipped back and forth between the two homes with the boat spending approximately six months per year in each state. Over the years plaintiffs insured several watercraft they owned through National Marine Underwriters, Inc. and National Marine was aware that the plaintiffs would use watercraft at both locations, 8. The insurance contract policy is a Flagship Yacht Insurance Policy bearing reference number 05-168-0051 issued by the defendant American Modern Home Insurance Company, 9. The policy provides coverage for property damage that occurs anywhere in the continental United States of America as long as said boat is not used outside the defined navigational limits which, in this case, it was not. 10. Prior to October 24, 2005, the plaintiffs' boat was in good repair. 11. On or about October 24,2005, the plaintiffs boat was not in water but rather was being stored indoors at a warehouse in Deerfield Beach, Florida, 12. On the aforesaid date Hurricane Wilma struck Florida and the building housing the plaintiffs' boat, and the plaintiffs' boat, were destroyed. The boat was a total loss and all damages suffered by the plaintiffs were covered by their policy of insurance. 13, The plaintiffs contacted the defendants and told them of their loss in a timely manner. 14. The defendant has refused to pay the loss in accordance with the terms of their policy (a copy of which is attached hereto). 15, The plaintiffs are covered by a policy of insurance issued by the defendants that provides for physical damage coverage in the amount of $59/000.00. 16. The defendant knowingly and willingly refused to timely settle the claim for the damage suffered by the plaintiffs. 17. The defendant had no basis to refuse to pay the claim of the plaintiff in a timely manner. 18, The defendant refused to pay the claims without conducting a prompt and reasonable investigation based upon all available information. 19. The defendant did not act in good faith to effectuate a prompt, fair and equitable settlement of this claim, knowing that liability is clear and coverage applies and as a result the plaintiffs have been forced to incur expenses they would not otherwise have incurred. 20. The defendant has compelled the insured to institute litigation to recover amounts due and owing the insureds under the insurance contract. 21. The defendant failed to promptly provide a factually sound explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of the claim, 22. The defendant has willfully and maliciously withheld benefits from the plaintiffs, due to their failure to investigate the claim timely and thoroughly, which constitutes a breach of an implied covenant of good faith and fair dealing. 23. The defendant, in bad faith, denied payments to its insured without thoroughly investigating the foundation for its denial and in not fully inquiring into the possible basis that might support the insured's claim. Count One Breach of Contract/Warranty 24. Paragraphs 1 through 23 are incorporated herein by reference thereto. . . 25. The defendant impliedly and/ or expressly warranted that they would, in good faith, provide insurance coverage to the plaintiffs in accordance with the contract and abide by the terms of said contract. 26. As a result of the aforesaid, the defendant breached their contract and/ or warranty, which breach resulted in past and future injury and monetary loss to the plaintiffs. 27. The defendant failed to comply in good faith with the terms of the policy, Wherefore it is prayed that judgment be entered in favor or the plaintiffs and against the defendants in an amount in excess of that requiring compulsory referral to arbitration. A jury trial is hereby demanded. Count Two Bad faith pursuant to 42 Pa.C.S.A. ~8371 28. Paragraphs 1 through 27 are incorporated herein by reference thereto, 29, Plaintiffs' injury, damage and loss were directly and proximately caused by the reckless, wanton and willful misconduct of the defendant without regard to the rights of the plaintiffs, 30. The actions of the defendant were recklessly, wantonly and willfully done for the purpose of causing harm to the plaintiffs. 31. Having full knowledge of the aforesaid facts, the defendant did recklessly, wantonly and willfully fail to take reasonable and necessary steps to settle this claim, 32, The defendant did recklessly, wantonly and willfully, refuse to resolve the claims of the insured and handled said claims with reckless indifference to the rights of the plaintiffs, 33. The conduct of the defendant was outrageous, oppressive and recklessly indifferent to the rights of the plaintiffs. , " 34. As a direct and proximate result of the defendant's reckless, wanton and willful disregard for the rights of the plaintiffs the aforesaid injury did occur, 35, The plaintiffs hereby request all remedial relief as provided in 42 Pa,C.S.A. ~8371. Wherefore it is prayed that judgment be entered in favor or the plaintiffs and against the defendants in an amount in excess of that requiring compulsory referral to arbitration. A jury trial is hereby demanded. Date: April 4, 2006 William P. Douglas, Attorney for the plainti ,. ~.. Affidavit I hereby swear or affirm that the foregoing is true and correct to the best of my knowledge and/ or information and belief, This is made subject to the penalties of 18 Pa.C.S.~ 4904 relating to unsworn falsification to authorities. April 4, 2006 Q <~ \ l'~ ,..~! \:'? (""') ;:'(\ .-' ....r ~~ 1;',\' ,- ~i -,' ',.~ '--:" "'-' ,- , l,:e) '1\1.:"\ ";:'::\ .1 (~)