IN THE UNITED STATES FEDERAL COURT

MIDDLE DISTRICT OF GEORGIA

MACON DIVISION
:
GEOFFRY AND JUNE BRADLEY :
:
Plaintiffs :
:
VS. : CIVIL ACTION NO. ________
:
ESIS, INC. and ACE USA, INC. :
:
Defendants :
:
PETITION FOR DECLARATORY RELIEF AND COMPLAINT FOR DAMAGES
COME NOW, the above-named Plaintiffs, by and through their undersigned counsel of
record, and file this, their Petition for Declaratory Judgment and Complaint for Damages, and
show this Honorable Court as follows:
THE PARTIES
1.
Plaintiffs are both natural persons whom are citizens of the State of Georgia.
2.
ESIS, INC. is a foreign, for-profit corporation whos principal place of business is located
in the State of Pennsylvania.
3.
ACE USA, INC. is the United States subsidiary of a foreign, for-profit corporation whos
principal place of business is located in Zurich Switzerland.
VENUE AND JURISDICTION
4.
ESIS, INC. maintains a registered agent of service of process within the State of Georgia,
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5:14-CV-361-MTT
namely: CT Corporation System in Fulton County, Georgia.
5.
ACE USA, INC. transacts to do business within the State of Georgia and has minimum
contacts with the State of Georgia to the extent that to hold ACE USA, INC. liable in State
Courts of Georgia does not offend our traditional notions of fair play and substantial justice.
6.
The amount of alleged back payments owed to the Plaintiff exceeds $75,000.00.
7.
The underlying contract upon which this action is based was created in and to be
performed within the County of Peach in the State of Georgia.
8.
Venue is proper as to ESIS, INC.
9.
ESIS, INC. is subject to the jurisdiction of this Court pursuant to 28 U.S.C. 1332.
10.
Venue is proper as to ACE USA, INC.
11.
ACE USA, INC. is subject to the jurisdiction of this Court pursuant to 28 U.S.C. 1332.
APPLICABLE LAW
12.
This case involves a contract, a Covenant not to Sue, created in the State of Georgia.
13.
Pursuant to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), this Honorable Court is
Case 5:14-cv-00361-MTT Document 1 Filed 10/09/14 Page 2 of 12
to apply the statutory, regulatory, and case law of the State of Georgia, substantively, in this case.
14.
Again pursuant to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), this Honorable
Court is to apply the statutory, regulatory, and case law of the United State of America,
procedurally, to this case.
FACTUAL BACKGROUND
15.
On or about October 4, 1985, Plaintiff Geoffry Bradley was involved in a serious accident
at Peach County High School which left him seriously disabled and in need of constant care. As
opposed to taking civil action against the Peach County School District, Geoffry, by and through
his mother and legal guardian Plaintiff June Bradley, entered into a covenant not to sue Peach
County or the Insurance Company of North America, Peach Countys insurer, in February of
1987. A copy of said Covenant not to Sue is attached to this Complaint and Petition as
Plaintiffs Exhibit A.
16.
Since 1999, Insurance Company of North America has been a subsidiary of global
insurer ACE Limited, the parent corporation of Defendants ESIS, INC. and ACE USA, INC.
17.
Defendants ESIS, INC and ACE USA, INC have been administering Insurance Company
of North Americas responsibilities under the Covenant not to Sue since August of 2013 and
have specifically been delegated the duty of administering and adjusting claims made under the
Covenant not to Sue by original obligor the Insurance Company of North America.
Case 5:14-cv-00361-MTT Document 1 Filed 10/09/14 Page 3 of 12
18.
The payments which must be made by Insurance Company of North America, by and
through its delegated representatives Defendants ESIS, INC. and ACE USA, INC., include, in
relevant part:
Reasonable and necessary excess medical, rehabilitation and work loss expenses, but not
for noneconomic loss, actually incurred by the student (Geoffry Bradley) catastrophically
injured while participating in activities under the jurisdiction of the state high school
association when by reason of such catastrophic injury the student shall require treatment
by a legally qualified physician or surgeon, hospital medical care or service, dental
treatment to sound natural teeth, employment of a nurse or licensed aid or any other
medical care or medical service including expenses incurred for hospital services,
physicians, surgeons, physiotherapist, nurses and licensed aide fees, medical supplies,
including prescription drugs, professional ambulance service, laboratory tests, dental care
for injury to teeth, anesthetics, plastic or cosmetic surgery required as a result of injury,
blood and blood plasma, artificial limbs and eyes, surgical dressings, orthopedic
appliances, wheel chairs and hospital beds and treatment at a rehabilitation facility,
including the reasonable costs of adjustment and career counseling appropriate to the
students permanent and significant disability, if any, when certified as necessary by the
attending physician or surgeon. (emphasis added).
19.
Dating as far back as August 10 , 2013, the Defendants in this case have refused to pay
th
on claims made pursuant to Exhibit A, the Covenant not to Sue.
20.
In fact, on January 14 , 2014, Alisa W. Ellenburg, attorney for the Defendants, sent a
th
letter, the same is attached as Plaintiffs Exhibit B, in which she explained that it is the
Defendants position that the Plaintiffs are required to provide the following information about
care givers:
....Full name, social security number, home address and licensing information including
state, license or certificate number and date and status of licensure. (Exhibit B).
Ms. Ellenburg demands these pieces of information, despite the requirement of their disclosure
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not being expressly present in the agreement between the parties (See: Exhibit A, generally),
because ESIS/ACE will not be able to provide compensation to any worker who is not a
licensed aide. (Exhibit B).
21.
In order to insulate herself from liability for any torts which may be committed on others
by her employees and to comply with the requirements of the State of Georgia to carry workers
compensation insurance, Plaintiff Ms. Bradley employed full-time care givers to provide non-
emergency medical care and supervision to Mr. Bradley through BradHo, LLC, a legal entity
created by accountant David Hogan to help with the administration of payroll and to ensure
regulatory compliance relating to the employer/employee relationship.
22.
From the date of the execution of the Covenant not to Sue until approximately 1999, a
Ms. Judy Tallent provided non-emergency medical care and supervision of Mr. Bradley during
the day, while his mother, Ms. Bradley did the same in the evenings. These services were
covered by the parties responsible for administering the claim pursuant to the Covenant not to
Sue, and were reimbursed to Plaintiff Ms. Bradley accordingly.
A company by the name of Abilities Discovered employed Marian Brown and Bonita
Williams, among others, to care for Geoffry Bradley in September of 1999. Abilities Discovered
provided the nearly the equivalent of nursing home care to Mr. Bradley. He lived in an apartment
with the care givers provided by Abilities Discovered, and those care givers responsibilities
included helping prepare meals, helping with bathing and trips to the bathroom, and other non-
emergency medical tasks.
In January of 2000 Mr. Bradley moved into his own home and Ms. Bradley employed the
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services of Southeastern Administrative Services to handle the payroll administration of the care
givers Ms. Bradley hired to care for Mr. Bradley. Ms. Marian Brown and Ms. Bonita Williams
were brought on to continue with their excellent service at incredibly affordable rates to Mr.
Bradley. In addition to Ms. Brown and Ms. Williams, Carolyn McDuffie was employed by Ms.
Bradley, and paid by Southeastern Administrative Services, to aid in the services being provided
to Mr. Bradley. In 2008 Carlos Gibson, a nursing professional, was added to the team of care
givers to provide Mr. Bradley with the holistic care he needed.
Much like BradHo, LLC has been doing since 2013, Southeastern Administrative
Services would provide workers compensation insurance and payroll and would bill Ms.
Bradley for the services rendered, as well as the payments to caregivers for services rendered. At
that point in time, Ms. Bradley would submit a copy of the payment check and the bill from
Southeastern Administrative Services to ACE USA, INC, and ACE would then reimburse Ms.
Bradley for her reasonable expenses. This procedure would continue for nine (9) years until
December of 2009 when Southeastern Administrative Services closed their doors.
The Bradleys sought out the services of DH Staffing, LLC in 2010 to continue in the
place of Southeastern Administrative Services, and Ms. Brown, Ms. Williams, Ms. McDuffie,
and Mr. Gibson were kept on board, and in 2012 Terry Richardson McGinnis was added to the
team as well, because of their experience in providing non-emergency medical care to Mr.
Bradley.
In 2013, in the interests of saving costs and cutting down on administrative red tape, Ms.
Bradley and David Hogan created BradHo, LLC. BradHo, LLC provided workers compensation
insurance and managed the payroll for longtime care givers of Geoffry Bradley based on their
experience with Mr. Bradley and their longstanding relationships and qualifications under the
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Covenant not to Sue which has paid for their services since as early as 1999.
However, in August of 2013 ESIS became the claims manager. Since, nothing but a
flagrant breach of a longstanding business practice and violation of the Covenant not Sues
express language of providing compensation for any other medical care or medical service by
fixating its payment policies based on the licensed aide provision has been perpetrated. ESIS
has refused to fully compensate the Bradleys what is owed for their reasonable expenses, and has
demanded private and personal information regarding the employees of BradHo, LLC and care
givers of Mr. Bradley which is not legally required in the agreement.
The Plaintiffs do not deny, and in fact expressly admit, that none of the care givers whom
are currently caring for Mr. Bradley carry licensure or certifications as non-emergency medical
aides, because no such thing exists in Georgia and they are not required to by the terms of the
agreement.
23.
To date, the payment requests which have been rejected are for the amounts, and relate to
the pay periods for the dates, as follows:
August 10- August 23, 2013 - $3, 199.72
August 24 - September 6, 2013 - $3,165.83
December 28, 2013 - January 10, 2014 - $3,221.86
January 11, 2014 - January 24, 2014 - $3,237.10
January 25 - February 7, 2014 - $3,227.83
February 8 - February 21, 2014 - $3,221.25
February 22 - March 7, 2014 - $3,267.26
March 8 - March 21, 2014 - $3,278.34
March 22 - April 4, 2014 - $3,304.26
April 5 - April 18, 2014 - $3,502.90
April 19 - May 2, 2014 - $3,500.22
May 3 - May 16, 2014 - $3,553.71
May 17 - May 30, 2014 - $3,597.20
May 31 - June 13, 2014 - $3,547.83
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June 14,- June 27, 2014 - $3,460.18
June 28 - July 11, 2014 - $3,516.38
July 12 - July 25, 2014 - $3,453.27
July 26 - August 8, 2014 - $3,748.24
See Plaintiffs Exhibit C, which is a series of checks made to BradHo, LLC and payment requests
mailed to the Defendants for rendering reimbursement of expenses under the Covenant not to
Sue.
COUNT I: PETITION FOR DECLARATORY RELIEF
24.
Plaintiffs hereby incorporate all previous paragraphs of this Petition as if the entirety of
the same, including their referencing documents, were restated in their entirety herein.
25.
Pursuant to 28 U.S.C. 2201, this Honorable Court has the authority to declare the
rights and other legal relations of any interested party seeking such declaration, whether or not
further relief is or could be sought. Any such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such.
26.
First, the Plaintiffs request that this Honorable Court issue a declaration that the
agreement of the parties between the Plaintiffs and the Insurance Company of North America and
its delegees, is not conditioned upon the terms and conditions for a policy of insurance.
Georgia Law favors looking solely at the written instrument executed between the parties,
so as to preserve the sanctity of the final written expression of the parties' contractual intent. See:
Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936).
There is no mention whatsoever in the Covenant not to Sue that this agreement is
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conditioned upon the terms and conditions of any applicable policy of insurance. Failure to
reference any policy and its terms or conditions in the final memorialization of the agreement
between the parties precludes the ability to assert the policy as a limiting factor on the rights of
the parties moving forward.
27.
Second, the Plaintiffs request that this Honorable Court issue a declaration that the
private information of the employees of the Bradleys, paid through BradHo, LLC or any other
administrative entity that may provide similar services to the Plaintiffs down the road, need not
be disclosed as a condition precedent to reimbursement pursuant to the terms of the Covenant not
to Sue.
Again referencing Stonecypher v. Georgia Power Co., supra, the Plaintiffs contend that if
this information were necessary to process the claims made under the Covenant not to Sue, it
would be spelled out in detail in the final memorialization of the parties agreement. The failure
to include such a condition precedent in the final memorialization of the parties agreement
precludes the opportunity to rely on that condition precedent as a basis to deny payment of the
claim.
28.
Third, the Plaintiff request that this Honorable Court issue a declaration that unlicensed
aides providing essential non-emergency medical care for Mr. Bradley are covered as a
reimbursable expense under the Covenant not to Sue, and that payments for such aides shall
continue indefinitely in the future until their aid is no longer needed by Mr. Bradley.
Georgia Law states that the construction which will uphold a contract in whole and in
every part is to be preferred, and the whole contract should be looked to in arriving at the
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construction of any part. See: O.C.G.A. 13-2-2. That is to say, a contract should be read in
such a way as to render every clause as having value and to render no individual clause as
superfluous or meaningless.
Plaintiffs contend that reading the Covenant not to Sue in such a way as to arrive at a
conclusion that only licensed aides are covered is to render wholly meaningless the phrase or
any other medical care or medical service. See: Plaintiffs Exhibit A. The Plaintiffs believe that
if non-emergency medical care from a qualified care giver is all that is necessary to care for Mr.
Bradley, not only is a such treatment covered by the Covenant not to Sue, but also makes sense
given the exorbitant costs associated with having medical professionals provide non-emergency
medical services.
Furthermore, the Plaintiffs admit that there may be some level of ambiguity in this nearly
thirty (30) -year-old contract, and the Plaintiffs contend that this Honorable Court should deem
the non-emergency medical aides as being covered under this Covenant not to Sue on the
grounds that the course of conduct of the parties over the past three decades has resolved the
issue in that direction.
Georgia Law dictates that the conduct of the parties to a contract dictates how ambiguities
in the contractual language are to be resolved. Beasley v. Paul, 223 Ga. App. 706 (1996). The
Defendants unilateral modification of the terms and conditions of performance of their
obligations in the covenant not to sue are impermissible and improper. McLean v. Continental
Wingate Co., Inc., 212 Ga. App. 356 (1994); American Exp. Travel Related Services Co., Inc. v.
Berlye, 202 Ga. App. 358 (1991); Goldstein v. Ipswich Hosiery Co., 104 Ga. App. 500 (1961).
Since these parties have, from as early as 1999, have acted under the principle that these
unlicensed aides are covered under the Covenant not to Sue, and no request for certification or
Case 5:14-cv-00361-MTT Document 1 Filed 10/09/14 Page 10 of 12
licensure has been requested by the Defendants in fifteen (15) years of the administration of this
claim, the parties have, by their conduct, resolved this ambiguity in favor of the Plaintiffs.
COUNT II: BREACH OF CONTRACT
29.
Plaintiffs hereby incorporate all previous paragraphs of this Petition as if the entirety of
the same, including their referencing documents, were restated in their entirety herein.
30.
Defendants owed and owe a duty to the Plaintiffs to make payments for any...medical
care or medical service related to the Plaintiff Geoffry Bradleys October 4, 1985 injury
pursuant to their obligations under the Covenant not to Sue. See: Plaintiffs Exhibit A.
31.
Defendants have failed to perform their duties under the agreement.
32.
Defendants are indebted to the Plaintiffs in an amount of $61,004.38.
33.
Plaintiffs have a right to recover the unpaid sums from the Defendants under a theory of a
breach of contract.
COUNT III: COSTS, ATTORNEYS FEES, AND PUNITIVE DAMAGES
34.
Plaintiffs hereby incorporate all previous paragraphs of this Petition as if the entirety of
the same, including their referencing documents, were restated in their entirety herein.
35.
Plaintiffs are also entitled to their attorneys fees and expenses for the Defendants
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stubborn litigiousness in refusing to pay the Plaintiffs their due under the Covenant not to Sue.
36.
Plaintiffs are also entitled to charge that the Defendants have, in the alternative, converted
the funds by wilfully and wantonly withholding the otherwise justified payment.
37.
Plaintiffs are therefore entitled to recover exemplary damages not to exceed $100,000.00
for the Defendants wilful and wanton refusal to abide by the terms of its original agreement.
WHEREFORE, The Plaintiffs pray that this Honorable Court
a) issue summons as to all defendants;
b) require the defendants to answer the allegations of the Plaintiffs;
c) enter a declaratory judgment in favor of the Plaintiffs as to all issues raised in the
Petition for Declaratory Relief;
d) enter a judgment in favor of the Plaintiffs as to Plaintiffs breach of contract
claim;
e) enter a judgment in favor of the Plaintiffs as to the Plaintiffs claims for attorneys
fees, costs, and punitive damages;
f) any other remedy deemed equitable under the circumstances.
Respectfully submitted this 9 day of October, 2014.
/s/ David T. Dorer
David T. Dorer
Attorney for the Plaintiffs
State Bar No: 934408
DOZIER LAW FIRM, LLC
327 Third Street
P.O. Box 13
Macon, GA 31202-0013
478-742-8441
dorer@dozierlaw.com
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