ACE AMERICAN INSURANCE COMPANY v. LANGLEY et al Complaint

8/4/2019 ACE AMERICAN INSURANCE COMPANY v. LANGLEY et al Complaint

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Case 2:11-cv-00177-KS-MTP Document 1 Filed 08/25/11 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT i / AUfi 25 2 0 1 1 ^ 1FOR THE SOUTHERN DISTRICT OF MISSISSIPPI f I " !HATTIESBURG DIVISION L ^ r T T s a n r c E s ^j oV_

ACE AMERICAN INSURANCE COMPANY VS. CIVIL ACTION NOg# Y/Cf/? ^JS^^TMICHAEL W.LANGLEY AND BRITTANY D. DAVIS

PLAINTIFF'S COMPLAINTFOR DECLARATORY JUDGMENTPlaintiff, ACE AMERICAN INSURANCE COMPANY ("ACE") complains of Defendant

MICHAEL W.LANGLEY ("Langley") and, in support thereof, would show the Court as follows:PARTIES

1. Plaintiff ACE is a corporation organized under the laws of the State of Pennsylvania,with its principal place of business in Philadelphia, Pennsylvania.

2. Defendant Michael W. Langley is an individual residing in Jones County, Mississippiwho may be served with process at his place of residence in that county, at 3013 Highway 84 East,Laurel, Mississippi 39443-6167.

3. Defendant Brittany D. Davis is an individual residing in Wayne County, Mississippiwho may be served w ith process at her place of residence in that county, at 239 Ramey Lane, Apt.11 , Waynesboro, M ississippi 39367.

JURISDICTION4. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1332(2) in that

ACE, the Plaintiff, is a corporation subject of the State of Pennsylvania, and Langley and Davis, the


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Defendants, are residents of Mississippi, and the amount in controversy exceeds $75,000.00exclusive of interest and costs.

VENUE5. This Court is a court of proper venue pursuant to the provisions of 28 U.S.C.

1391(a)(1) & (2) in that Defendants Davis and Langley reside in and a substantial part of the eventsor omissions giving rise to the action occurred in the Southern District of M ississippi, HattiesburgDivision.

CAUSE OF ACTION6. This is an action for declaratory judgment on a contract of insurance. T his action is

brought pursuant to 28 U.S.C. 2201 for the purpose of resolving an actual controversy between theparties* as is more fully described below.

FACTUAL BACKGROUND & THE UNDERLYING LAWSUIT7. Plaintiff ACE issued to third party Key Energy Services, Inc. a Business Auto liability

insurance policy designated as Policy N umber ISA H08626194 witha policy periodfromNovember1, 2010 to November 1, 2011 (hereinafter the "Policy"). A true and correct copy of the Policy isattached to this Complaint as Exhibit "A" and is incorporated for all purposes. Key Energy Services,Inc. (hereinafter "Key" or "Key Energy") is the named insured pursuant to the terms and conditionsof the Policy.

8. On or about December 21, 2010, Defendant Brittany D. Davis ("Davis") filed acomplaint in state court in Jones County, Mississippi against Defendant Michael W. Langley andKey Energy Services, LLC. This underlying lawsuit was brought to recover for injuries and damagesBrittany D avis claims as a result of a November 16,2010 motor vehicle accident.


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9. The underlying case was originally filed in the sta te's County Court.1 In March of2011, Davis filed a Motion to Transfer and an Amended Com plaint, moving the casefromCountyCourt to Circuit Court. At the time of filing this action, Davis' case is pending and is styled as CauseNo. 2011-31-CV3; Brittany Davis vs . MichaelW. Langley, Key Energy Services, LLC and JohnDoes 1-5, in the Circuit Court of Jones County, Mississippi, Second Judicial District. A true andcorrect copy of Brittany Dav is' Amended Complaint in the underlying lawsuit is attached hereto asExhibit "B " and is incorporated for all purposes. At the time of filing this action, the attachedAmended Complaint is Davis ' live pleading in the underlying suit.

10. In her Amended Complaint, Davis alleges, inter alia, that on November 16, 2010 ,Michael Langley was operating a vehicle owned by third party Key Energy, traveling westbound onUS 84. Plaintiff claims Langley was hauling a tank on a trailer, and that as Langley was driving, thetank fell off of the truck or trailer and into the middle of the westbound lane of US 84. Davis, whowas also traveling westbound on US 84, claims that she came over a hill and approached the tank inthe roadway. Davis alleges she attempted to avoid the tank, and she collided w ith an embankmentand barbed wire fence. As a result of the accident, Davis claims severe physical and emotionalinjuries and damages, for which she seeks to recover from both Langley and Key Energy.

11. Davis claims that at the time of the accident, Langley was an employee of Key Energyand was operating a vehicle and trailer owned by Key Energy within the course and scope of hisemployment. Discovery in the underlying suit at this time has confirmed that Langley was KeyEnergy's employee on the day of the accident, and both the truck and the trailer that Langley wasusing at the time of the accident were owned by Key Energy. However, at the time of the accident,

1 Originally, the case was styled: Cause No. 2010-276E, Brittany Davis vs . MichaelW. Langley, Key Energy Services,LLC and John Does 1-5, in the County C ourt of the First Judicial District o f Jones County, Mississippi.3


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Mr. Langley was not in the course and scope of his employment but wa s instead on a personal errandafter hou rs. Specifically, Langley had completed work for the day, was not on the jo b, and haddriven the truck and trailer to purchase and pick up a septic tank from an individual. The tank w asfor Langley's and his family's personal u se. He was returning to his home w ith the tank when it felloff the trailer and on to the roadway. Key Energy is not in the business of hauling septic tanks anddoes not use septic tanks.

12 . Mr. Langley did not have perm ission to use Key En ergy 's truck in the method andmanner for which he w as using it at the time of the accident (i.e., a personal errand). Further, he didnot have permission to use the trailer on the day of the accident, and he did not have permission touse the trailer along with the Key Energy truck he was driving at the time of the accident. Mr.Langley allowed his persona l insurance to lapse and failed to inform his sup ervisor that he intendedto pull the trailer with his personal vehicle with no insurance. Mr. Langley was reprimanded forimpermissible use of company property and violation of company po licy.

13. Davis' Amended Complaint in the underlying lawsuit alleges negligence andnegligence per se against Langley. Davis alleges that Langley acted negligent in that he:

a. Failed to properly secure his load, thereby endangering the safety ofBrittany Davis and the public;

b. Dro ve the vehicle in an unsafe mann er;c. Failed to keep the vehicle under proper control;d. Failed to follow the Rules of the Road in Mississippi; ande. In other respects as will be shown at the trial of the underlying suit.

See Amended Complaint, ff 18.


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14. For negligence per se Davis contends that Langley was negligent as a matter of law byfailing to properly secure his load, failing to keep his vehicle under proper control, and for otherreasons set out in the Amended Complaint.

15. Davis' Amended Complaint also alleges independent negligence and vicariousliability under the doctrines of respondeat superior and negligent entrustment against Key Energy.

16. Further, Davis asserts that Key and Langley's actions constitute gross negligenceand/or reckless disregard. In her claim for gross negligence, Davis alleges that Langley failed toproperly secure his load, that he failed to check his load prior to driving the truck, and that he wasrecklessly inattentive to the position and condition of the tank on the trailer at the time of thecollision.

17. In the underlying lawsuit, Davis seeks the recovery of actual damages, includingpunitive damages and seeks a minimum of one million dollars ($1,000,000) in non-economicdamages over and above out of pocket/economic damages.

THE POLICIES; COVERAGE18. Pursuant to the attached Policy, and subject to its terms, limits, conditions and

exclusions, ACE insured Key Energy Services, Inc. against liability for certain occurrences resultingin bodily injury or property damage, caused by an accident and resulting from the ownership,maintenance or use of a covered auto under the Policy. See attached Policy, Business Auto CoverageForm, Page 2 of 12, SECTION IIA - Coverage.

19. However, no coverage is provided under the Policy to Defendant Langley for theunderlying lawsuit. There is no coverage to Langley because he does not meet the definition of an"insured" under the Policy.


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20. Therefore, there is no coverage afforded Langley under the Policy and, thus, no dutyimposed on AGE to indemnify Langley in the underlying suit.

THE POLICY21 . The attached Policy provides coverage for personal injuries with limits of $5,000,000

per occurrence. The Policy contains the following pertinent provisions:[ACE] will pay all sums an "insured" legally mustpay as damages because of"bodily injury" or "property damage" to which this insurance applies, causedby an "accident" and resulting from the ownership maintenance or use of acovered "auto".See attached Policy, Business Auto Coverage Form, Page 2 of 12, SECTIONIIA - Coverage.

22 . The Policy provides that the following are "insureds":a. [Key] for any covered au to.b. Anyone else while using with [Key's] permission a covered "auto"[Key] owns, hires, or borrows . . . . "See attached Policy, Business Auto Coverage Form, Page 2 of 12, SECTIONIIA 1 - Who is an Insured

No COVERAGE FOR CLAIMS AGAINST MICHA EL W. LANGLEY23. The insuring agreement states that ACE will pay those sums an "insured" legally must

pay for damages resultingfrom he use of a covered "auto." An Insured is defined under the Policyto include Key Energy and anyone else using, with Key Energy 's permission, a vehicle coveredunder the Policy.

24. At the time of the accident in the underlying lawsuit, Langley, a Key employee, wasoperating a truck with an attached trailer, both of which were owned by Key. However, Langley wason a personal errand and was outside the course and scope of his employment. He did not have


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permission to use Key Energy's truck in the method and manner for which he was using it at the timeof the accident (i.e. personal use). Also, Langley did not have permission to use the trailer on the dayof the incident, nor did he have permission to use the trailer with the Key Energy truck that he wasdriving at the time of the accident.

25. Langley was using the Key truck and trailer to complete a personal errand at the timeof the accident, without Key' s permission. Langley was not working to further a business interestof Key Energy, and he was not in the course and scope of his employment with Key Energy at thetime of the accident. His use of the Key truck and trailer was in violation of Key Energy companypolicy. Langley had never previously used the Key truck or trailer for personal use. Accordingly,because he was using the Key Energy vehicle and trailer for an impermissible personal use at thetime of the accident, he is not an "insured" under the policy. Therefore, there is no coverage underthe Policy for the claims asserted by Brittany Davis against Langley in the underlying lawsuit.

CAUSES OF ACTION26. Paragraphs 1 through 25 are incorporated by reference.27. For one or more of the reasons stated above, ACE has no obligation to indemnify

Langley pursuant to the Policy for the allegations in the underlying lawsuit styled Cause No. 2011-31-CV3; Brittany Davis vs . Michael W. Langley, Key Energy Services, LLC and John Does 1-5

28. The Plaintiff, Davis, in the underlying lawsuit has no separate rights under the Policyeither as an Insured or as a third party beneficiary, and Davis should be bound by this Court'sjudgment regarding A CE 's obligations, if any, to Langley.

29. ACE seeks a declaratory judgm ent, pursuant to 28 U.S.C. 2201 for the purposes ofdetermining a question of actual controversy between the parties, that the defenses to coverage


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pleaded herein preclude any obligation of ACE to indemnify or in any other way provide coverageto Michael W. Langley, a defendant in the underlying lawsuit.

PRAYERWHEREFORE, Plaintiff ACE AMERICAN INSURANCE COMPANY requests that this

Court declare, pursuant to 28 U.S.C. 2201, that MICHAEL W. LANGLEY is not an insured underthe ACE Policy and that ACE has no duty to indemnify MICHAEL W. LANGLEY in connectionwith any loss, damages, settlement, judgment or anyfindingof liability whatsoever arisingfromanyfacts set forth or that could have been set forth in the lawsuit styled Cause No. 2011-31-CV3;Brittany Davis vs . MichaelW. Langley, Key Energy Services, LLC and John Does 1-5, and that thCourt award ACE such other and further relief requested in this Complaint and all other relief as theCourt may deem just and proper.

Respectfully submitted,

Jeffery P. Reynolds, MSB 5305Ginger Gibson, MSB 101986JEFFERY P. REYNOLDS, P.A.P.O. Box 24597Jackson, Mississippi 39225(601) 355-7773(601) 355-6364 Facsimile

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ACE AMERICAN INSURANCE COMPANY v. LANGLEY et al Complaint