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Case 3:14-cv-00782-JWD-SCR Document 1

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IN THE UNITED STATES DISTRICT COURT


FOR THE MIDDLE DISTRICT OF LOUISIANA
ACE AMERICAN INSURANCE
COMPANY,

Plaintiff,
v.
BRASFIELD & GORRIE, LLC
Defendant.

No. 3:14-cv-782

PLAINTIFF ACE AMERICAN INSURANCE COMPANYS


COMPLAINT FOR DECLARATORY JUDGMENT
Plaintiff ACE American Insurance Company (ACE) files this Complaint for
Declaratory Judgment against Defendant Brasfield & Gorrie, LLC (B&G), and in support
respectfully shows this Court the following:
PARTIES
1.

Plaintiff ACE is an insurance company incorporated under the laws of

Pennsylvania and has its principal place of business in Philadelphia, Pennsylvania.


2.

Defendant B&G is an Alabama corporation with its principal place of business in

Birmingham, Alabama. Defendant B&G may be served with process through its registered
agent, M. Miller Gorrie, 729 30th Street S., Birmingham, AL 35233-2939.
JURISDICTION AND VENUE
3.

The Court has jurisdiction over the lawsuit under 28 U.S.C. 1332(a)(1) because

the Plaintiff and Defendants are citizens of different states and the amount in controversy
exceeds $75,000, excluding interest and costs.

___________________________________________________________________________
PLAINTIFF ACE AMERICAN INSURANCE COMPANYS
COMPLAINT FOR DECLARATORY JUDGMENT

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Case 3:14-cv-00782-JWD-SCR Document 1

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Venue is proper in the Central District of Louisiana pursuant to 28 U.S.C.

1391(b) (2) because property that is the subject of the action is situated in this district.
FACTS
5.

This is an insurance coverage case. B&G seeks coverage from ACE for loss it

allegedly incurred from movement of the shoring wall system and surrounding soil during the
construction of the New Effluent Pump Station for the City of Baton Rouge, Louisiana South
Wastewater Treatment Plant, Phase II project (the Project). Specifically, B&G claims it
incurred costs to redesign and reinforce the shoring system to prevent further movement.
6.

ACE retained Pie Consulting and Engineering (Pie) to investigate the cause of

the loss. Pie determined that, based on a reasonable degree of engineering certainty, the issues
experienced are the result of an improper shoring system for the conditions present. 1
The Policy
7.

ACE issued Completed Value Project Builders Risk Policy with policy number

I21058828 001 for the time period of January 3, 2012 to January 3, 2015 to B&G (the ACE
policy).2
No physical loss or damage
8.

The insuring agreement of the ACE policy provides:


This Policy, subject to the terms, conditions and exclusions stated
herein, or endorsed hereto, insures against all risk of direct
physical loss or damage to property of every kind and description
intended to become a permanent part of, or consumed in, the
fabrication, assembly, installation, erection or alteration of the

A true and correct copy of the Pie report is attached to this complaint as Exhibit 1.

A true and correct copy of the ACE policy is attached to this complaint as Exhibit 2.

___________________________________________________________________________
PLAINTIFF ACE AMERICAN INSURANCE COMPANYS
COMPLAINT FOR DECLARATORY JUDGMENT

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Case 3:14-cv-00782-JWD-SCR Document 1

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Insured Project, as defined in the Declaration Page for which


values have been declared and deposit premium paid.3
9.

The loss claimed by B&G is the movement of the shoring system used during the

construction process. B&G claims it incurred costs to redesign and stabilize the shoring system
to prevent further movement. The shoring system failed to prevent movement of the soil
surrounding the excavation because it was improperly designed. The failure of the shoring
system to perform as intended does not qualify as a physical loss or damage. The loss incurred
by B&G to correct the faulty or improperly designed shoring system, therefore, does not fall
within the insuring agreement.
Faulty Construction and Improper Design Exclusions Preclude Coverage
10.

In the alternative, to the extent the movement of the shoring system constitutes

physical loss or damage, this loss is excluded by the policy. The ACE policy provides that:
THE POLICY DOES NOT INSURE LOSS OR DAMAGE
CAUSED BY ANY OF THE FOLLOWING, UNLESS DIRECT
PHYSICAL LOSS OR DAMAGE BY AN INSURED CAUSE OF
LOSS ENSUES AND THEN THIS POLICY INSURES ONLY
SUCH ENSUING DIRECT PHYSICAL LOSS OR DAMAGE.
***
19.

Error, omission or deficiency in


specifications, engineering or surveying.

design,

plans,

20.

Faulty or defective workmanship, materials or supplies.

B&G claims costs incurred to correct the error or deficiency in the design of the shoring system
or the faulty workmanship in installing the shoring system. Accordingly, coverage is barred.
COUNT I DECLARATORY JUDGMENT
11.

ACE incorporates by reference all preceding paragraphs.

Emphasis added.

___________________________________________________________________________
PLAINTIFF ACE AMERICAN INSURANCE COMPANYS
COMPLAINT FOR DECLARATORY JUDGMENT

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For the reasons stated above, ACE requests the Court grant a declaratory

judgment establishing that the ACE Policy does not afford coverage to B&G for the claimed
loss.
JURY DEMAND
13.

ACE demands a trial by jury on all issues of fact, if any.


PRAYER

For these reasons, ACE asks for judgment against B&G and for the following:
a.

The loss claimed by B&G does not constitute physical loss or damage;

b.

In the alternative, the loss claimed by B&G is precluded from coverage;


and

c.

All other relief the Court deems appropriate.


Respectfully submitted,
BROWN SIMS, P.C.
BY:

/s/ L. Lane Roy


L. LANE ROY (#11513)
600 Jefferson Street, Suite 800
Lafayette, LA 70501
Tel: (337) 484-1240
Fax: (337) 484-1241
E-mail: lroy@brownsims.com

OF COUNSEL:
Joseph A. Ziemianski
State Bar No. 00797732
COZEN OCONNOR
1221 McKinney, Suite 2900
Houston, Texas 77010
Telephone: (832) 214-3900
Facsimile: (832) 214-3905
E-mail: jziemianski@cozen.com
ATTORNEYS FOR PLAINTIFF
___________________________________________________________________________
PLAINTIFF ACE AMERICAN INSURANCE COMPANYS
COMPLAINT FOR DECLARATORY JUDGMENT

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