ERIE PAINTING & MAINTENANCE INC. v. ILLINOIS UNION INSURANCE COMPANY Answer to Complaint | Indemnity | Judiciaries

Case 1:09-cv-00940-WMS-LGF Document 4

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ERIE PAINTING & MAINTENANCE, INC., Plaintiff, v. ILLINOIS UNION INSURANCE COMPANY, Defendant. Civil No.: 1:09-CV-00940 (WMS)

ANSWER
Defendant, Illinois Union Insurance Company, by its attorneys Hodgson Russ LLP, for its answer to plaintiff’s complaint, states as follows: 1. Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraph 1 and, therefore, denies the allegations in this paragraph. 2. No response is necessary because this paragraph contains a legal

conclusion, but to the extent a response is deemed necessary, Illinois Union denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 2. 3. Admits that it is domiciled in Illinois, does business in New York, and has

an office at 436 Walnut Street in Philadelphia, Pennsylvania, but denies that 436 Walnut Street, Philadelphia, Pennsylvania is its principal place of business. 4. Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraph 4 and, therefore, denies the allegations in this paragraph. 5. Denies the allegations contained in paragraph 5.

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6. 7. 8.

Denies the allegations contained in paragraph 6. Denies the allegations contained in paragraph 7. No response is necessary because this paragraph contains no factual

allegations, but to the extent a response is deemed necessary, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 8. 9. No response is necessary because this paragraph contains legal

conclusions, but to the extent a response is deemed necessary, Illinois Union denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 9. 10. Admits that Illinois Union issued a policy bearing number G22066288 04

to Plaintiff (the “Illinois Union Policy”), admits that the document speaks for itself, and denies the remaining allegations in paragraph 10. 11. Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraph 11 and, therefore, denies the allegations in this paragraph. 12. Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraph 12 and, therefore, denies the allegations in this paragraph. 13. Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraph 13 and, therefore, denies the allegations in this paragraph. 14. Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraph 14 and, therefore, denies the allegations in this paragraph. 15. Denies knowledge or information sufficient to form a belief as to the -2-

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allegations contained in paragraph 15 and, therefore, denies the allegations in this paragraph. 16. Admits that the document speaks for itself and denies the remaining

allegations in paragraph 16. 17. 18. 19. 20. 21. 22. Denies the allegations contained in paragraph 17. Denies the allegations contained in paragraph 18. Denies the allegations contained in paragraph 19. Denies the allegations contained in paragraph 20. Denies the allegations contained in paragraph 21. Admits that Illinois Union disclaimed coverage for the Dovas v. State of

New York action (the “Underlying Bodily Injury Action”), admits that the document speaks for itself, and denies the remaining allegations in paragraph 22. 23. Admits that the document speaks for itself and denies the remaining

allegations in paragraph 23. 24. Admits that the document speaks for itself and denies the remaining

allegations in paragraph 24. 25. Admits that the document speaks for itself and denies the remaining

allegations in paragraph 25. 26. Admits the allegations contained in paragraph 26.

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27.

Admits that Illinois Union has disclaimed coverage for the action entitled

State v. Erie Painting and Maintenance, Inc. (the “Underlying Action”) and denies the remaining allegations in paragraph 27. 28. Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraph 28 and, therefore, denies the allegations in this paragraph. As to the First Cause of Action 29. forth herein. 30. 31. Denies the allegations contained in paragraph 30. Denies the allegations contained in paragraph 31. As to the Second Cause of Action 32. forth herein. 33. Denies knowledge or information sufficient to form a belief as to the Defendant repeats its responses to paragraphs 1 through 31 as if fully set Defendant repeats its responses to paragraphs 1 through 28 as if fully set

allegations contained in paragraph 33 and, therefore, denies the allegations in this paragraph. 34. Denies knowledge or information sufficient to form a belief as to the

allegations contained in paragraph 34 and, therefore, denies the allegations in this paragraph. 35. 36. Denies the allegations contained in paragraph 35. Denies the allegations contained in paragraph 36.

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As to the Third Cause of Action 37. forth herein. 38. Admits that Illinois Union’s disclaimer letter speaks for itself and denies Defendant repeats its responses to paragraphs 1 through 36 as if fully set

the remaining allegations in paragraph 38. 39. Admits that the referenced document speaks for itself and denies the

remaining allegations in paragraph 39. 40. Denies the allegations contained in paragraph 40. As to the Fourth Cause of Action 41. forth herein. 42. 43. 44. 45. 46. Denies the allegations contained in paragraph 42. Denies the allegations contained in paragraph 43. Denies the allegations contained in paragraph 44. Denies the allegations contained in paragraph 45. Denies each and every allegation, to the extent there are any, in the Defendant repeats its responses to paragraphs 1 through 40 as if fully set

WHEREFORE clause.

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GENERAL DENIAL 47. in this answer. DEFENSES FIRST DEFENSE 48. The Complaint fails to state a claim upon which relief can be granted. SECOND DEFENSE 49. Plaintiff’s claims for relief are barred, in whole or in part, by the doctrine Denies each and every other allegation not otherwise expressly addressed

of laches, estoppel, or waiver. THIRD DEFENSE 50. Some or all of the claims at issue may be barred in whole or in part by the

limits of liability, endorsements, and other terms, conditions, limitations, and exclusions in the Illinois Union Policy. FOURTH DEFENSE 51. Illinois Union has no duty to defend or indemnify the Plaintiff under the

Illinois Union Policy to the extent the Plaintiff failed to satisfy all conditions precedent to coverage, including, but not limited to, the notice requirements set forth in the Illinois Union Policy. FIFTH DEFENSE 52. Illinois Union has no duty to defend or indemnify the Plaintiff for the

Underlying Bodily Injury Action to the extent the Plaintiff breached the voluntary payments conditions and provisions of the Illinois Union Policy, has incurred obligations, or has made

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certain payments (or permitted certain payments to be made) without the prior consent of Illinois Union. SIXTH DEFENSE 53. Illinois Union has no obligation under the Illinois Union Policy to defend

or indemnify the Plaintiff for the Underlying Bodily Injury Action to the extent that the Plaintiff incurred, and seeks recovery from Illinois Union for, pre-notice costs, expenses, and expenditures to, among other things (1) investigate, respond to, or defend the Underlying Bodily Injury Action; and (2) resolve the Underlying Bodily Injury Action by settlement, compromise, or judgment. SEVENTH DEFENSE 54. Illinois Union has no duty to defend or indemnify the Plaintiff for the

Underlying Bodily Injury Action to the extent it has failed to comply with the Illinois Union Policy’s cooperation clause. EIGHTH DEFENSE 55. Illinois Union has no duty to defend or indemnify the Plaintiff for the

Underlying Bodily Injury Action to the extent any losses are covered by any primary insurance, co-insurance, other insurance, self-insurance, deductibles, collateral sources of money, other contractual indemnitors, Owner Controlled Insurance Program, Contractor Controlled Insurance Program, or any other source of insurance, or to the extent the Illinois Union Policy provides limited or no insurance based on allocation.

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NINTH DEFENSE 56. Illinois Union has no duty to defend or indemnify the Plaintiff for the

Underlying Bodily Injury Action to the extent Plaintiff failed to mitigate its damages or has taken certain actions or failed to take certain actions which have prejudiced Illinois Union. TENTH DEFENSE 57. Illinois Union has no duty to defend or indemnify the Plaintiff for the

Underlying Bodily Injury Action to the extent it arises out of the ownership, maintenance, use, or entrustment to others of any auto owned, or operated by, or rented by, or loaned to any insured, as such claims are expressly excluded by the Illinois Union Policy. ELEVENTH DEFENSE 58. Illinois Union has no duty to defend or indemnify the Plaintiff for the

Underlying Action entitled State of New York v. Erie Painting and Maintenance, Inc., because the allegations against the Plaintiff do not constitute an “occurrence” as defined by the Illinois Union Policy. TWELFTH DEFENSE 59. Illinois union has no duty to defend or indemnify the Plaintiff for the

Underlying Action entitled State of New York v. Erie Painting and Maintenance, Inc., because that complaint alleges causes of action sounding in breach of contract, which claims are not covered under the Illinois Union Policy. THIRTEENTH DEFENSE 60. party. Plaintiff’s complaint should be dismissed for failure to name a necessary

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COUNTERCLAIM 61. 62. Repeats the allegations in paragraphs 1 through 60. This Court has subject-matter jurisdiction under 28 U.S.C. § 1332(a)(2)

because there is complete diversity between the parties and the matter in controversy exceeds $75,000, exclusive of interest and costs. 63. 64. 65. Venue in this District is proper under 28 U.S.C. §§ 1391(a) and (c). This Court has personal jurisdiction over each of the parties. There is an actual controversy as to whether the Plaintiff complied with

the conditions precedent to coverage under the Illinois Union Policy, thereby vitiating any coverage obligation Illinois Union may have had. 66. Furthermore, there is an actual controversy as to whether the Underlying

Bodily Injury Action and Underlying Action are expressly excluded from coverage under the Illinois Union Policy. 67. In addition, there is an actual controversy as to whether the claims alleged

in the Underlying Action entitled State of New York v. Erie Painting and Maintenance, Inc., fall within the coverage granted by the Illinois Union Policy. 68. Accordingly, and under 28 U.S.C. § 2201, Illinois Union is entitled to a

judgment declaring the rights and duties of the parties and, in particular, declaring that the Plaintiff is not entitled to coverage for the Underlying Action entitled State of New York v. Erie Painting and Maintenance, Inc. or the Underlying Bodily Injury Action entitled Dovas v. State of New York. -9-

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WHEREFORE, Illinois Union seeks the following relief: a. b. Dismissal of the complaint; On its counterclaim, a judgment declaring that Illinois Union has no obligation to defend or indemnify Plaintiff for the Underlying Action entitled State of New York v. Erie Painting and Maintenance, Inc. or the Underlying Bodily Injury Action entitled Dovas v. State of New York; Costs and disbursements for this action; and Such other and further relief as the Court deems proper.

c. d. Dated:

Buffalo, New York November 9, 2009 HODGSON RUSS LLP Attorneys for Illinois Union Insurance Company By: S/Ryan K. Cummings_____________________ Patrick M. Tomovic Ryan K. Cummings Telephone: (716) 856-4000 Facsimile: (716) 849-0349 E-mail: ptomovic@hodgsonruss.com E-mail: ryan_cummings@hodgsonruss.com

TO:

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C. R. Scott Atwater, Esq. Attorneys for Plaintiff 465 Main Street, Suite 600 Buffalo, New York 14203 Telephone: (716) 854-4300 E-mail: ratwater@gross-shuman.com

000160/00769 Litigation 7039181v1

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