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8/2/2019 Owners Insurance Company v. Fulton County School District Et Al - Complaint_0
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IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
OWNERS INSURANCE COMPANY ))
Plaintiff, ) Civil Action) File No. ______________
v. ))
FULTON COUNTY SCHOOL DISTRICT, )H.J. RUSSELL & COMPANY, )LEWIS TRUCKING & GRADING, INC., )PRO CARE ENVIRONMENTAL )SERVICES, LLC, GREENS LAWN )
& LANDSCAPING, INC., AMERICAN )CONTRACTORS INDEMNITY COMPANY, )AMERICAN SOUTHERN INSURANCE )COMPANY, and WESTCHESTER )FIRE INSURANCE COMPANY, )
)Defendants. )
COMPLAINT FOR DECLARATORY JUDGMENT
COMES NOW OWNERS INSURANCE COMPANY (hereinafter Owners)
and files this Complaint for Declaratory Judgment, showing the
Court as follows:
PARTIES
1.
Owners is an insurance corporation organized and existing
under the laws of the State of Ohio, with its principal place of
business in Michigan.
2.
Fulton County School District (School District) is a
political subdivision of the State of Georgia with the capacity
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to sue and be sued as provided by law. The School District is
subject to the jurisdiction and venue of this Court.
3.
H.J. Russell & Company (Russell) is a corporation
organized and existing under the laws of the State of Georgia
with its principal place of business and citizenship in Georgia.
Russell is subject to the jurisdiction and venue of this Court.
4.
Lewis Trucking & Grading, Inc. (Lewis) is a corporation
organized and existing under the laws of the State of Georgia
with its principal place of business and citizenship in Georgia.
Lewis is subject to the jurisdiction and venue of this Court.
5.
Pro Care Environmental Services, LLC (Pro Care) is a
corporation organized and existing under the laws of the State of
Georgia with its principal place of business and citizenship in
Georgia. Pro Care is subject to the jurisdiction and venue of
this Court.
6.
Greens Lawn & Landscaping, Inc. (Greens Lawn) is a
corporation organized and existing under the laws of the State of
Georgia with its principal place of business and citizenship in
Georgia. Greens Lawn is subject to the jurisdiction and venue
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of this Court.
7.
American Contractors Indemnity Company (ACIC) is an
insurance corporation organized and existing under the laws of
the State of California with its principal place of business and
citizenship in California. ACIC is subject to the jurisdiction
and venue of this Court.
8.
American Southern Insurance Company (ASIC) is an insurance
corporation organized and existing under the laws of the State of
Georgia with its principal place of business and citizenship in
Georgia. ASIC is subject to the jurisdiction and venue of this
Court.
9.
Westchester Fire Insurance Company (WFIC) is a corporation
organized and existing under the laws of the state of Iowa with
its principal place of business in Pennsylvania. WFIC is subject
to the jurisdiction and venue of this Court.
JURISDICTION AND VENUE
10.
This Court has original jurisdiction over this action under
the provisions of 28 U.S.C. 1332 because this action is between
citizens of different states and the amount in controversy
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exceeds the sum of $75,000, exclusive of interest and costs.
11.
Venue is proper in this Court pursuant to 28 U.S.C. 1391.
NATURE OF ACTION
12.
This is an action for declaratory judgment brought pursuant
to Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C.
2201, to declare the rights and other legal relations
surrounding questions of actual controversy that presently exist
between Owners and Defendants.
13.
A controversy of a judicial nature presently exists among
the parties, which demands a declaration by this Court in order
that Owners may have its rights and duties under the applicable
contract of insurance determined and avoid the possible accrual
of damages.
THE UNDERLYING CLAIMS
14.
Russell entered into a construction contract with the School
District for Phase 2 site work in conjunction with construction
of the Westlake High School located at 2400 Union Road in Fulton
County, Georgia.
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15.
As part of its contract, Russell agreed to construct
fourteen retaining walls, perform site grading and build the
athletic fields.
16.
Russell hired Lewis to complete the grading and Pro Care to
finish the final landscaping.
17.
Russell hired Greens Lawn to construct the retaining walls.
18.
In conjunction with the baseball field project, which was
within Russells original scope of Phase 2 work, Russell was
required to build a large retaining wall, Wall No. 12.
19.
Wall No. 12, as originally planned, was a modular block
retaining wall, and Greens Lawn contracted to construct it along
with the other walls.
20.
Greens Lawn hired Soil Reinforcement Design, Inc., to
design Wall No. 12.
21.
Green Lawns then constructed Wall No. 12 pursuant to the
design.
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22.
Wall No. 12 initially failed, and Greens Lawn commissioned
a new design and rebuilt the wall using a Diamond Pro system.
The project was substantially completed in April 2007.
23.
According to the School District, on or about January 2,
2008, the rebuilt Wall No. 12 allegedly exhibited signs of
failure.
24.
On March 5, 2008, the School District notified Russell of
the alleged signs of failure, demanding repairs.
25.
The rebuilt Wall No. 12 has never actually failed, and no
repairs have been performed.
26.
On or about April 7, 2011, the School District filed a
lawsuit against Russell, Lewis, Pro Care and Greens Lawn,
seeking damages caused by the alleged improper construction of
Wall No. 12 and other construction related issues arising from
the Phase 2 site work, the same being designated as civil action
file No. 2011-CV-198988 in the Superior Court of Fulton County,
State of Georgia (Underlying Lawsuit). A true and accurate
copy of the complaint filed by the School District in the
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Underlying Lawsuit is attached hereto as Exhibit A.
27.
In the Underlying Lawsuit, the School District seeks damages
in an amount in excess of $75,000, exclusive of interest and
costs.
28.
Russell filed cross claims against Lewis, Pro Care and
Greens Lawn, seeking indemnity and contribution.
29.
Russell also filed a third party complaint against ACIC,
ASIC and WFIC, seeking to recover on certain surety bonds issued
in connection with the Phase 2 site work project.
30.
Since the filing of the Underlying Lawsuit, the School
District has alleged that all retaining walls built by Greens
Lawn require replacement, even though none of them have actually
failed.
THE INSURANCE CONTRACT
31.
Owners issued a commercial general liability insurance
policy to Greens Lawn, policy number 064618-48731346, with an
effective policy period of March 21, 2007 to March 21, 2013 (the
Policy). A true and accurate copy of the applicable coverage
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form is attached hereto as Exhibit B.
32.
Greens Lawn seeks a defense and indemnity under the Policy
for the claims asserted by the School District and Russell in the
Underlying Lawsuit.
33.
After receiving notice of the Underlying Lawsuit, Owners
issued a letter to Greens Lawn in which Owners provided notice
of its reservation of rights to contest coverage under the Policy
for the claims asserted in the Underlying Lawsuit. A true and
accurate copy of the reservation of rights letter is attached
hereto as Exhibit C.
34.
After receiving notice of the Underlying Lawsuit, Owners
retained counsel to defend Greens Lawn against the complaint
subject to the reservation of rights.
35.
The Policy issued by Owners to Greens Lawn affords no
coverage for the claims and damages upon which the Underlying
Lawsuit is based. Therefore, Owners has no duty to defend or
indemnify Greens Lawn in the Underlying Lawsuit.
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36.
Under Coverage A of the Policy, the insuring agreement
provides, in pertinent part:
We will pay those sums that the insuredbecomes legally obligated to pay as damagesbecause of bodily injury or propertydamage to which this insurance applies....
Commercial General Liability Coverage Form, 55300 (7-05).
37.
Under Coverage A, the Policy issued to Greens Lawn further
provides, in pertinent part:
b. This insurance applies to bodilyinjury and property damage only if:
(1) The bodily injury or propertydamage is caused by anoccurrence that takes place inthe coverage territory;
(2) The bodily injury or propertydamage occurs during the policyperiod; and
(3) Prior to the policy period, noinsured listed under Paragraph 1.of WHO IS AN INSURED (Section II)and no employee authorized by youto give or receive notice of anoccurrence or claim, knew orshould have known that the bodily
injury or property damage hadoccurred, in whole or in part. Ifsuch a listed insured or authorizedemployee knew or should have known,prior to the policy period, thatthe bodily injury or propertydamage occurred, then any
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continuation, change or resumptionof such bodily injury orproperty damage during or after
the policy period will be deemed tohave been known prior to the policyperiod.
Commercial General Liability Coverage Form, 55300 (7-05).
38.
The Policy provides:
Property damage means:
a. Physical injury to tangible property,including all resulting loss of use ofthat property. All such loss of useshall be deemed to occur at the time ofthe physical injury that caused it; or
b. Loss of use of tangible property that isnot physically injured. All such lossshall be deemed to occur at the time ofthe occurrence that caused it.
Commercial General Liability Coverage Form, 55300 (7-05).
39.
The Policy provides:
Occurrence means an accident, includingcontinuous or repeated exposure tosubstantially the same general harmfulconditions.
Commercial General Liability Coverage Form, 55300 (7-05).
40.
The Policy also provides:
This insurance does not apply to:...
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Bodily injury or property damage expected orintended from the standpoint of the insured.
Commercial General Liability Coverage Form, 55300 (7-05)
(Coverage Part A, Excl. a.).
41.
Under Coverage A, the Policy provides that the insurance
does not apply to:
j. Damage to Property
Property damage to:
(6) That particular part of realproperty on which insured or anycontractors or subcontractorsworking directly or indirectly onyour behalf are performingoperations, if the propertydamage arises out of thoseoperations; or
(7) That particular part of anyproperty that must berestored, repaired or replacedbecause your work wasincorrectly performed on it.
. . . .
Paragraph (7) of this exclusion does notapply to property damage included in theproducts-completed operations hazard.
Commercial General Liability Coverage Form, 55300 (7-05).
42.
The Policy defines your work as:
(1) Work or operations performed by you or
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on your behalf; and
(2) Materials, parts or equipment furnished
in connection with such work oroperations.
Commercial General Liability Coverage Form, 55300 (7-05).
43.
The Policy provides that your work includes:
(1) Warranties or representations made atany time with respect to the fitness,quality, durability, performance or use
of your work; and
(2) The providing of or failure to providewarnings or instructions.
Commercial General Liability Coverage Form, 55300 (7-05).
44.
The Policy further provides that the insurance does not
apply to:
Property damage to your product arisingout of it or any part of it.
Commercial General Liability Coverage Form, 55300 (7-05)
(Coverage Part A, Excl. k.)
45.
The Policy states that your product:
a. Means:
(1) Any goods or products, other thanreal property, manufactured, sold,handled, distributed or disposed ofby:
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(a) You;
(b) Others trading under yourname; or
(c) A person or organization whosebusiness or assets you haveacquired; and
(2) Containers (other than vehicles),materials parts or equipmentfurnished in connection with suchgoods or products.
b. Includes:
(1) Warranties or representations madeat any time with respect tot hefitness, quality, durability,performance or use of yourproduct; and
(2) The providing or failure to providewarnings or instructions.
c. Does not include vending machines orother property rented to or located forthe use of others but not sold.
Commercial General Liability Coverage Form, 55300 (7-05).\
46.
The Policy further provides that the insurance does not
apply to:
Property damage to your work arising outof it or any part of it and included in theproducts-completed operations hazard.
Commercial General Liability Coverage Form, 55300 (7-05)
(Coverage Part A, Excl. l.)
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47.
The Policy provides that insurance does not apply to:
Property damage to impaired property orproperty that has not been physicallyinjured, arising out of:
(1) A defect, deficiency, inadequacy ordangerous condition in your product oryour work; or
(2) A delay or failure by you or anyoneacting on your behalf to perform acontract or agreement in accordance with
its terms.
This exclusion does not apply to the loss ofuse of other property arising out of suddenand accidental physical injury to yourproduct or your work after it has been putto its intended use.
Commercial General Liability Coverage Form, 55300 (7-05)
(Coverage Part A, Excl. m.)
48.
The Policy defines impaired property as:
tangible property, other than your productor your work, that cannot be used or isless useful because:
a. It incorporates your product or yourwork that is known or thought to bedefective, deficient, inadequate or
dangerous; or
b. You have failed to fulfill the terms ofa contract or agreement
if such property can be restored to use by:
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a. The repair, replacement, adjustment orremoval of your product or yourwork; or
b. Your fulfilling the terms of thecontract or agreement.
Commercial General Liability Coverage Form, 55300 (7-05).
COUNT ONE
49.
Owners hereby realleges and incorporates paragraphs 1
through 48 of this Complaint as if set forth fully herein.
50.
Under the terms of the Policy issued to Greens Lawn, there
is no coverage for damages or injuries which are not the result
of an accident or which are expected or intended from the
standpoint of the insured.
51.
Owners has no obligation to provide a defense to the
Underlying Lawsuit or indemnify Greens Lawn for damages or
injuries which were expected or intended, or which were known to
be substantially certain to occur due to the insureds knowledge.
52.
Owners has no obligation to provide a defense to the
Underlying Lawsuit or indemnify Greens Lawn because all of the
claims asserted against Greens Lawn arise from allegedly faulty
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construction, and faulty construction alone does not constitute
an occurrence or accident under the Policy.
53.
Owners is entitled to a judgment declaring that Greens Lawn
is afforded no coverage under the Policy for the damages sought
in the Underlying Lawsuit because those damages were not caused
by an accident, were intended or expected from the standpoint of
an insured, or were substantially certain to occur; and, as a
result, Owners has no duty to defend any Defendant in the
Underlying Lawsuit.
COUNT TWO
54.
Owners hereby realleges and incorporates paragraphs 1
through 53 of this Complaint as if set forth fully herein.
55.
The Policy issued to Greens Lawn excludes property damage
to that particular part of real property on which Greens Lawn,
or any contractors or subcontractors working directly or
indirectly on behalf of Greens Lawn, was performing operations,
if the property damage arises out of those operations.
(Coverage A, Excl. j(6))
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56.
The damages sought against Greens Lawn in the Underlying
Lawsuit arise out of Greens Lawn operations at the Phase 2 site
project.
57.
Owners has no duty to defend or indemnify Greens Lawn
against the claims set forth in the Underlying Lawsuit because
the damages sought constitute property damage to real property
on which Greens Lawn was performing operations, and are excluded
from coverage.
58.
Owners is entitled to a judgment declaring that Greens Lawn
is afforded no coverage under the Policy for the damages sought
in the Underlying Lawsuit because those damages constitute
property damage to real property on which Greens Lawn was
performing operations; and, as a result, Owners has no duty to
defend any Defendant in the Underlying Lawsuit.
COUNT THREE
59.
Owners hereby realleges and incorporates paragraphs 1
through 58 of this Complaint as if set forth fully herein.
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60.
The Policy issued to Greens Lawn excludes property damage
to that particular part of any property that must be restored,
repaired or replaced because Greens Lawns work was incorrectly
performed on the property. (Coverage A, Excl. j(7))
61.
Owners has no duty to defend or indemnify Greens Lawn
against the claims asserted in the Underlying Lawsuit because the
damages sought constitute property damage to property because
of Greens Lawns incorrectly performed work.
62.
Owners is entitled to a judgment declaring that Greens Lawn
is afforded no coverage under the Policy for the damages sought
in the Underlying Lawsuit because those damages constitute
property damage to that particular part of any property that
must be restored, repaired or replaced because Greens Lawns
work was incorrectly performed on the property; and, as a result,
Owners has no duty to defend any Defendant in the Underlying
Lawsuit.
COUNT FOUR
63.
Owners hereby realleges and incorporates paragraphs 1
through 62 of this Complaint as if set forth fully herein.
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64.
The Policy issued to Greens Lawn excludes property damage
to Greens Lawns product, arising out of Greens Lawns product
or any part of its product. (Coverage A, Excl. k.)
65.
Owners has no duty to defend or indemnify Greens Lawn
against the claims set forth in the Underlying Lawsuit because
the damages sought constitute property damage to the insureds
product, arising out of that product or any part of that product,
and are excluded from coverage.
66.
Owners is entitled to a judgment declaring that Greens Lawn
is afforded no coverage under the Policy for any damages because
of property damage to Greens Lawn product or arising
therefrom; and, as a result, Owners has no duty to defend any
Defendant in the Underlying Lawsuit.
COUNT FIVE
67.
Owners hereby realleges and incorporates paragraphs 1
through 66 of this Complaint as if set forth fully herein.
68.
The Policy issued to Greens Lawn excludes property damage
to Greens Lawns work, arising out of Greens Lawns work or any
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part of its work. (Coverage A, Excl. l.)
69.
Owners has no duty to defend or indemnify Greens Lawn
against the claims set forth in the Underlying Lawsuit because
the damages sought constitute property damage to the insureds
work, arising out of that work or any part of that work, and are
excluded from coverage.
70.
Owners is entitled to a judgment declaring that Greens Lawn
is afforded no coverage under the Policy for the damages sought
in the Underlying Lawsuit because those damages constitute
property damage to Greens Lawns work or arising therefrom;
and, as a result, Owners has no duty to defend any Defendant in
the Underlying Lawsuit.
COUNT SIX
71.
Owners hereby realleges and incorporates paragraphs 1
through 70 of this Complaint as if set forth fully herein.
72.
The Policy issued to Greens Lawn excludes property damage
to impaired property or property that has not been physically
injured arising out of a defect, deficiency or dangerous
condition in Greens Lawns work. (Coverage A, Excl. m(1))
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73.
Owners has no duty to defend or indemnify Greens Lawn
against the claims set forth in the Underlying Lawsuit because
the damages sought constitute property damage arising out of a
defect, deficiency or dangerous condition in Greens Lawns work,
and are excluded from coverage.
74.
Owners is entitled to a judgment declaring that Greens Lawn
is afforded no coverage under the Policy for any damages because
of property damage arising out of a defect, deficiency or
dangerous condition in Greens Lawns work; and, as a result,
Owners has no duty to defend any Defendant in the Underlying
Lawsuit.
COUNT SEVEN
75.
Owners hereby realleges and incorporates paragraphs 1
through 74 of this Complaint as if set forth fully herein.
76.
The Policy issued to Greens Lawn excludes property damage
to impaired property or property that has not been physically
injured arising out of a delay or failure by Greens Lawn, or
anyone working on behalf of Greens Lawn, to perform a contract
or agreement in accordance with its terms. (Coverage A, Excl.
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m(2))
77.
Owners has no duty to defend or indemnify Greens Lawn
against the claims set forth in the Underlying Lawsuit because
the damages sought constitute property damage arising out of a
delay or failure by Greens Lawn to perform a contract or
agreement in accordance with its terms, and are excluded from
coverage.
78.
Owners is entitled to a judgment declaring that Greens Lawn
is afforded no coverage under the Policy for any damages because
of property damage arising out of a delay or failure by Greens
Lawn to perform a contract or agreement in accordance with its
terms; and, as a result, Owners has no duty to defend any
Defendant in the Underlying Lawsuit.
COUNT EIGHT
79.
Owners hereby realleges and incorporates paragraphs 1
through 78 of this Complaint as if set forth fully herein.
80.
The Underlying Lawsuit seeks an award of attorneys fees in
addition to compensatory damages.
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81.
The Policy affords no coverage for attorneys fees, as such
fees are not in compensation for a covered injury.
82.
Owners is entitled to a judgment declaring that Greens Lawn
is afforded no coverage for any attorneys fees sought in the
Underlying Lawsuit.
WHEREFORE, Owners prays that this Court enter judgment
declaring that Owners has no duty to defend or indemnify any
Defendant herein under the Policy for the claims asserted in the
Underlying Lawsuit; that this Court bind each and every named
party herein by said judgment; that Owners be awarded costs in
this action; and for such further relief as this Court may deem
just and appropriate.
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This 22nd day of February, 2012.
Respectfully submitted,
TALLEY, FRENCH & KENDALL, P.C.
S/ Michael C. KendallMichael C. KendallGeorgia Bar No. 414030Counsel for Plaintiff
3152 Golf Ridge Blvd.Suite 201
Douglasville, Georgia 30135Telephone: 770-577-3559Facsimile: 770-577-8113mckendall@bellsouth.net
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