MCWHITE v. ACE AMERICAN INSURANCE COMPANY Complaint

8/7/2019 MCWHITE v. ACE AMERICAN INSURANCE COMPANY Complaint

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STATE OF SOUTH CAROLINACOUNTY OF FLORENCE

)))IN THE COURT OF COMMON PLEASTWELFTH JUDICIAL CIRCUITCivil Action No. 07CP21

. STANLEY MeWHlTE, ))Plaintiff, ))VB. ))AC)j; AMERICAN INSURANCE COMPANY, ))Defendant. )

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COMPLAINT(Breach of Contract; Bad FaithRefusal to Pay an InsuranceClaim; Declaratory Judgment)(JURY TRIAL DEMANDED)

The Plaintiff, Stanley McWhite, by and through undersigned counsel, hereby makes thefollowing claims and alkgations:

JURISDICTION;1. That the Plaintiff, Stanley MeWhite, is a citizen and a resident of the County of

Florence, State of South Carolina.2. That the Defendant, Ace American insurance Company, is an insnrance company

licensed to do business within the State of South Carolina.3. That the Defeodant is subject to personal jurisdiction in South Carolina in that it

. trallsacts business in South Carolina, in that it caused tortious injury within Sonth Carolina, in that it.eotered into acontract to insure a risk located within South Carolina.

4. That the Defendant is subject to venue in this forum, in that, a m o n 8 . Q t h ~ t h i l ! 8 S , the

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, r- 0 gloss insured by Defendant occun'ed in Florence County. ffi 0 ~ '

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~ ' P o l i c y " ) issued by Ace American Insurance Company which provided motorist liability and.underinsured motorist coverage, and med-pay coverage.

6. On February 10, 2005, Plaintiffwas involved in an automobile accident inFlorence,South C!!+olina and, as a result, suffered personal injuries and damages.

7. That Plaintiffmade aclaim on the Policy seeldngunderinsured and med-pay coverageand providing the appropriate proofof loss.

8. As offue date of ills Complaint Defendanthas refused payment under the policy.FORA FIRST CAUSE OF ACTION

( B R E A ~ H OF CONIRACD9. That paragraphs one (1) 'through eight (8) arc hereby expressly incorporated vetbatim.10. That at all relevant times, Plaintiffwas an employee of Ahold Americas Holdings,

Inc., d/b/a US Food Service, and was insured under a Policy No. 15AH079U2321 issuedby AceAmerican Insurance Company which provided motorist liability coverage, underinsured motoristcoverage, and med-pay coverage.

11. On February 10,2005, P1aintiffwas involved in an antomobile accident in Florence,South carolina and, as a result, suffered personal injuries and damages.

12. That on or about February 10,2005, the at-fault driver, David E. McLean, Jr., was theowner and operator of a 2001 Dodge.

13. That on or about February 10, 2005, Stanley McWhite was, out ofand in the course ofhis employment with Ahold Americas Holdings, Inc., d/b/a U.S. Food Service, traveling South onSecondary Road No. S-21-26, in a tractor-trailer rig in Florence, South Carolina, when his truck

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broke. down. Mr. McWhite, in the course of maintaining and repairing the vehicle, and whilewearing a reflective traffic vest, was placing emergency triangJes on the roadway behind his truckwhen David E. McLean, Jr., also traveling South on Secondary Road No. S-21-26, failed to yield topedestrian Stanley McWhite and collided with McWhite, further causing McWhite injuries anddamages as hereinafter set out.

14. That David E. McLean, Jr.'s actions, and failures to act, amount to negligence,. carelessness, recklessness, gross negligence; and willful and wanton conduct in the following.particulars, to-wit:

(a) Failing to exercise the. degree of caution a reasonable orprudent person would have used under the circumstances then andthere existing;(b) Failing to keep aproper lookout;(c) Failing to yield right ofway to apedestrian;(d) Failing to maintain proper control;(e) Failing to maintain adequate brakes on the vehicle he wasdriving, or if the vehicle had adequate brakes, in failing to apply thesame;(t) Failing to maintain an adequate steering mechanism on thovehicle he was driving, or if the vehicle had an adequate steeringmechanism, in failing to properly utilize the same;(g) Failing to warn the Plaintiff ofthe impending danger.

All of the above being in violation of the statutory and case law of the State of SouthCarolina.

15. That as a direct and proximate result of David E. McLean, Jr.'s negligence,carelessness, recklessness, gross negligence, andwillful and wanton conduct, the StanleyMe Whitehas suffered injuries and damages as hereinafter set out. .. . .

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16. That as a direct and proximate result of theabove setout acts and omissions of DavidE. McLean, Jr., Plaintiffwas damaged in the following particulars:

(a) Actual and Consequential damages resulting from PersonalInjury, to-wit:(1) disability, past and future;(2) pain and suffering, past and future;(3) stress, anguish and anxiety, past and future; .(4) medical costs, past and future;(5) lost wages, past and future;

17. That, in addition, thePlaintiffis informed and believes that he is entitled to an awardof punitive damages against David E. McLean, Jr., in an amount to be detcnnined by ajury.

18. T ~ t on June 20, 2005, and dates thereafter, Plaintiff made a claim with AceAmerican under said policy for Underinsured Motorist Coverage and for Medical Payment CCiverage;providing the appropriate proofof loss.

19. That benefits are due under the terms of the policy.20. As ofthe date ofthis Complaint Defendant, Ace American, has refused payment.21. T h ~ t Defendant, Ace American, denied Plaintiff benefits due under said Policy,

without reasonable cause, negligently and in bad faith.22. That as a direct and proximate result of Defendant, Ace American'S, breach of

.contract, Plaintiffhas suffered damages as hereinafter set out.FOR A SECOND CAUSE OF ACTION(BAD FAITH REFUSAL TO PAY AN INSURANCE CI.AlM) ;':.

23. T h ~ t paragraphs one (1) through twenty-two (22) are hereby expressly incorporatedverbatim.

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24. That at all relevant times, Plaintiffwas an employee ofMold Americas Holdings,Inc., d/b/a US Food Service, and was insnred under a Policy No. 15AH079U2321 issued by AceAmerican Insurance Company which provided motorist liability coverage, underiosured motorist

. coverage, and med-pay coverage.25 . On February 10,2005, Plaintiffwas involved in an automobile accident inFlorence,

. South Carolina and, as a result, suffered personal injuries and damages.26. . That on or ahout February10, 2005, the at-fault driver, DavidE. Mclean, Jr., was the

owner and operator of a 2001 Dodge.27. That on Of about February 10, 2005, Stanley McW hite was, out ofand in the course of

his employment with Ahold Americas Holdings, Inc., d/b/a U.S. Food Service, traveling South onSecondary Road 1'10. S-21-26, in a tractor-trailer rig in Florence, South Carolina, when !;lis truckbroke down. Mr. McWhite, while, in the course ofmaintaining and repairing the vehicle, and whilewearing a reflective traffic vest, was placing emergency triangles on the roadway behind his truckwhen David E. McLean, Jr., also traveling South on Secondary Road No. S-21-26, failed to yield tothepedestrian, Stanley McWhite, and collided with McWhite, further causing the MeWhite injuriesand damages as h ~ r e i n a f t e r set out.I28. That 'David E. McLean, Jr.'s actions, and failures to act, amount to negligence,carelessness, recklessness, gross negligence, and willful and wanton conduct in the followingparticulars, to-wit:

. (a) Failing to exercise the degree of caution a reasonahle orprudent person would have used under the circumstances then andthere existing;(b): Failing to keep a proper lookout;(c) Failing to yield right of way to a pedestrian;

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33. That benefits are due under the terms of the policy.34.> As of the date of this Complaint Defendant, Ace American, has refused payment.35. That Defendant, Ace American, denied Plaintiff benefits due under said Policy,

without reasonable cause, negligently and in bad faith. >36. That as a direct and proximate result of the Defendant, Ace American's, negligence

and bad faith, >the Plaintiffhas suffered injuries and damages as hereinafter set out.DAMAGES;

37. That as a direct and proximate result of the above set out acts and omissions of theDefendant, Ace American, Plaintiff was damaged in the following particulars to-wit:

(1)(2)(3)(4)

Loss of Policies' benefits, plus pre-judgment andpost-judgment interest;economic loss;anxiety, wid emotional distress;attorney's fees and costs.38. That in addition the Plaintiffis informed and believes that he is entitled to an award of

Punitive Damages against Defendant, Ace American, in an amount to be determined by ajury.FOR ATHIRD CAUSE OF ACTIONWECLARATORY JUDGMENT)

39. T ~ a t paragraphs one (1) through thirty-eight (38) are hereby expressly incorporatedverbatim.

40. That at all relevaut times, Plaintiffwas an employee ofAhold Ameri

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41. That Defendant, Ace American. failed to make a meaningful offer ofUnderinsuredcoverage up to $5,000,000.00, the limits of the liability coverage on the policy to their insured,Mold Americas Holdings, Inc., d/b/a U.S. Food Service, as required by South Carolina law.

42. That the Plaintiff contends that pursuant to South Carolina law he is entitled toUnderinsured M o ~ o r i s t Coverage of FiveMillion ($5,000,000.00) Dollars covering the accident ofFebruary 10, 2005.

43. That the at-fault driver's liability carrier has tendered their Twenty-Five Thousand($25,000.00) Dollars per person liability limits in this case.

44. That Ace American has refused to admit that Plaintiffwas an insured under the policyor pay any Underjnsured M otorist Coverage.

45. That a judiciable controversy exists as to the amountofcoverage available to Plaintiffunder this policy.

46. That1he Plaintiffseeks declaratory judgment from this Court declaring that he is aninsured under the policy and entitled to excess Underinsured Motorist Coverage of Five Million($5,000,000.00) Dollars under theAce American Insurance Company Policy.

WHEREFORE, the Plaintiffprays for declaratory judgment against the Defendant, Ace,declaring Plaintiff> s entitlement to coverage under Ace American Insurance Company policy totalingFive Million ($5,000,000.00) Dollars excess nnderinsured motorist coverage; along withjudgmentfor actual, consequential, and punitive damages; along with reasonable attorney's fees pursuant to

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S.C. Code 38-59-40; and such other reliefthat the Court deems appropriate against the Defendant,Ace American Insurance Company, in an amount to be detennined by ajury.

Florence, ~ t h CarolinaMay 2 ,2007

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Documents

MCWHITE v. ACE AMERICAN INSURANCE COMPANY Complaint