Yes CV2017-010530€¦ · CV2017-010530 t;UVER SHEET- NEW FILING ONLY (Please Type or Print) Plaintiff's Name(s): (List all) Plaintiffs Address: Phone #: Email Address: Madison Alley

Is Interpreter Needed? ❑ Yes ❑ If yes, what language:

Plaintiffs Attorney Robert T. Mills

Attorney Bar Number 018853

In the Superior Court of the State of Arizona

CV2017-010530 t;UVER SHEET- NEW FILING ONLY

(Please Type or Print)

Plaintiff's Name(s): (List all) Plaintiffs Address: Phone #: Email Address: Madison Alley Transportation & Logistics, Inc. [Address / Phone / Email Below]

5055 N 12th St, Suite 101, Phoenix, Arizona 85014 480.999.4556 [email protected]

(List additional plaintiffs on page two and/or attach a separate sheet).

Defendant's Name(s): (List All) WESTERN TRUCK INSURANCE SERVICES, INC.; ROBERT DION; JANE DOE DION;

John Does and Jane Does I-X; ABC Partnerships I-X; ABC Limited liability companies I-X; XYZ Corporations I-X

(List additional defendants on page two and/or attach a separate sheet)

EMERGENCY ORDER SOUGHT: ❑ Temporary Restraining Order

❑ Election Challenge ❑ Employer Sanction ❑ Other

❑ Provisional Remedy ❑ OSC

(Specify) ❑ RULE 8(h) COMPLEX LITIGATION APPLIES. Rule 8(h) of the Rules of Civil Procedure defines a "Complex Case" as

civil actions that require continuous judicial management. A typical case involves a large number of witnesses, a substantial amount of documentary evidence, and a large number of separately represented parties.

(Mark appropriate box on page two as to complexity, in addition to the Nature of Action case category.)

❑ THIS CASE IS ELIGIBLE FOR THE COMMERCIAL COURT UNDER EXPERIMENTAL RULE 8.1. (Maricopa County only.) Rule 8.1 defines a commercial case and establishes eligibility criteria for the commercial court. Generally, a commercial case primarily involves issues arising from a business contract or business transaction. However, consumer transactions are not eligible. A consumer transaction is one that is primarily for personal, family or household purposes. Please review Rule 8.1 for a complete list of the criteria. See http://www.superiorcourt.maricopa.qovicommercial-court/. You must check this box if this is an eligible commercial case. In addition, mark the appropriate box below in the "Nature of Action" case category. The words "commercial court assignment requested" must appear in the caption of the original complaint.

NATURE OF ACTION

(Place an "X" next to the one case category that most accurately describes your primary case.)

100 TORT MOTOR VEHICLE: ❑ 101 Non-Death/Personal Injury ❑ 102 Property Damage ❑ 103 Wrongful Death

110 TORT NON-MOTOR VEHICLE:

0111 Negligence 0112 Product Liability — Asbestos 0112 Product Liability — Tobacco ❑ 112 Product Liability — Toxic/Other ❑ 113 Intentional Tort

❑ 114 Property Damage ❑ 115 Legal Malpractice ❑ 115 Malpractice — Other professional ❑ 117 Premises Liability ❑ 118 Slander/Libel/Defamation ❑ 116 Other (Specify)

120 MEDICAL MALPRACTICE:

❑ 121 Physician M.D. ❑123 Hospital ❑ 122 Physician D.0 ❑124 Other

©Superior Court of Arizona in Maricopa County Page 1 of 2 CV1Of — 120116 ALL RIGHTS RESERVED

Case 2:17-cv-03038-SMB Document 1-1 Filed 09/07/17 Page 1 of 23

Case No.

130 CONTRACTS:

❑ 131 Account (Open or Stated) ❑ 132 Promissory Note 0133 Foreclosure ❑ 138 Buyer-Plaintiff ❑ 139 Fraud ❑ 134 Other Contract (i.e. Breach of Contract) ❑ 135 Excess Proceeds-Sale ❑ Construction Defects (Residential/Commercial)

❑ 136 Six to Nineteen Structures 0137 Twenty or More Structures

150-199 OTHER CIVIL CASE TYPES:

❑ 156 Eminent Domain/Condemnation ❑ 151 Eviction Actions (Forcible and Special Detainers) ❑ 152 Change of Name ❑ 153 Transcript of Judgment ❑ 154 Foreign Judgment ❑ 158 Quiet Title ❑ 160 Forfeiture ❑ 175 Election Challenge ❑ 179 NCC-Employer Sanction Action

(A.R.S. §23-212) ❑ 180 Injunction against Workplace Harassment ❑ 181 Injunction against Harassment ❑ 182 Civil Penalty ❑ 186 Water Rights (Not General Stream Adjudication) ❑ 187 Real Property ❑ Special Action against Lower Courts

(See lower court appeal cover sheet in Maricopa)

❑ 194 Immigration Enforcement Challenge (§§1-501, 1-502, 11-1051)

150-199 UNCLASSIFIED CIVIL:

❑ Administrative Review (See lower court appeal cover sheet in Maricopa)

❑ 150 Tax Appeal (All other tax matters must be filed in the AZ Tax Court)

❑ 155 Declaratory Judgment ❑ 157 Habeas Corpus ❑ 184 Landlord Tenant Dispute- Other ❑ 190 Declaration of Factual Innocence

(A.R.S. §12-771) ❑ 191 Declaration of Factual Improper Party Status ❑ 193 Vulnerable Adult (A.R.S. §46-451) ❑ 165 Tribal Judgment ❑ 167 Structured Settlement (A.R.S. §12-2901) ❑ 169 Attorney Conservatorships (State Bar) ❑ 170 Unauthorized Practice of Law (State Bar) ❑ 171 Out-of-State Deposition for Foreign Jurisdiction ❑ 172 Secure Attendance of Prisoner ❑ 173 Assurance of Discontinuance ❑ 174 In-State Deposition for Foreign Jurisdiction ❑ 176 Eminent Domain— Light Rail Only ❑ 177 Interpleader— Automobile Only ❑ 178 Delayed Birth Certificate (A.R.S. §36-333.03) ❑ 183 Employment Dispute- Discrimination ❑ 185 Employment Dispute-Other ❑ 195(a) Amendment of Marriage License ❑ 195(b) Amendment of Birth Certificate 0163 Other

(Specify)

COMPLEXITY OF THE CASE

If you marked the box on page one indicating that Complex Litigation applies, place an "X" in the box of no less than one of the following:

❑ AntitrusUTrade Regulation ❑ Construction Defect with many parties or structures ❑ Mass Tort ❑ Securities Litigation with many parties ❑ Environmental Toxic Tort with many parties ❑ Class Action Claims ❑ Insurance Coverage Claims arising from the above-listed case types ❑ A Complex Case as defined by Rule 8(h) ARCP

Additional Plaintiff(s)

Additional Defendant(s)

©Superior Court of Arizona in Maricopa County Page 2 of 2 CV1Of - 120116 ALL RIGHTS RESERVED


—..011-24A-/e (Notary Signature)

1584182(583337)

AFFIDAVIT OF SERVICE

OFFICIAL SEAL TRICIA DESPAIN

r Notary Pubic - State of Arizona ! MARICOPA COUNTY i

at it1b~. My Comm. Expires Mast 8, 20191 •••••••••••••••••••••••••••=•••••••••••••••••••

Attorney or Party iiAthout Attorney' MILLS + WOODS LAW PLLC Robert T. Mills (#018853) 5055 NORTH 12TH STREET SUITE 101

For Court Use Only

PHOENIX , A2 85014 MIrHAEL - 1,.......,_, Telephone No: (480) 999-4556

Attorney For: Plaintiff Ref. Na or Re No.: 00136

zo

;;;

A.- luGAEEcNII:"r10.-T°P:mr7.175y

i knot name of Court and jurklal District and Branch Court MARICOPA COUNTY SUPERIOR COURT

Plaintiff MADISON ALLEY TRANSPORTATION & LOGISTICS, INC, a New York corporation, Defendant WESTERN TRUCK INSURANCE SERVICES, INC, a California corporation, ROBERT DION and

and wife, John and Jane FILED BY N. JANE DOE DION, husband Does Does IX, ABC Partnerships 1-X, ABC Limited Liability Companies 1-X, and XYZ Corporations 1-X,

CARDENAS

AFFIDAVIT OF SERVICE Hearing Date Time Dept/Dhe Case Number: 0/2017-010530

1. At the time of service I was at least 21 years of age and not a party to this action.

2. I served copies of the SUMMONS; VERIFIED COMPLAINT; CERTIFICATE REGARDING COMPULSORY ARBITRATION; DEMAND FOR JURY TRIAL; $15.00 ACCEPTANCE FEE

3. a. Party served: WESTERN TRUCK INSURANCE SERVICES, Inc., b. Person served: YUUANA SAUNAS, FISCAL SERVICES SPECIALIST FOR ARIZONA DEPARTMENT OF INSURANCE AS STATUTORY AGENT

4. Address where the party was served: 2910 N 44TH ST #210, PHOENIX , AZ 85018

5. I served the party: a. by substituted service. On: Tue, Aug 08 2017 at: 01:15 PM by leaving the copies with or in the presence of.

YUUANA SAUNAS, FISCAL SERVICES SPECIALIST FOR ARIZONA DEPARTMENT OF INSURANCE AS STATUTORY AGENT „ Hispanic , Female , 40 , Brown „ 5'4" , 150

(a) (AZ DEPT OF INS) Person of suitable age and discretion. Informed him or her of the general nature of the papers.

Service: $21.84, Mileage: $24.00, Notary $10.00, Wait: $0.00, Fees Advanced: $15.00, Total: $70.84

I Declare under penalty of perjury under the laws of the State of Arizona that the foregoing Is true and correct.

6. Person Executing: a. Thomas Bennett Maricopa County Reg # 7574; b. First Legal Support Services

3737 North 7th. Street Suite 125 PHOENIX, AZ 85014

c. (602) 248-9700

ado6- (Date) —737giraff ire)

7. STATE OF ARIZONA, COUNTY OF Subscribed and sworn to (or affirh4fo e on gr day of Reg # 7574) proved to me on the basis of satisfactory evidence to be the person who appeared before me.

2017 by Thomas Bennett (Maricopa County

FIRSTIEGAL


STATE OF ARIZONA DEPT. OF INSURANCE

AUG 0 8 2017

TIME SERVICE OF PR CESS

Robert T. Mills (Arizona Bar #018853) Sean A. Woods (Arizona Bar 4028930) ANGELINI MILLS WOODS + ORI LAW

5055 North 12th Street Suite 101 Phoenix, Arizona 85014 Telephone 480.999.4556 [email protected] Attorneys for Plaintiff

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

MADISON ALLEY TRANSPORTATION & LOGISTICS, INC., a New York corporation,

Plaintiff,

vs.

WESTERN TRUCK INSURANCE SERVICES, INC., a California corporation, ROBERT DION and JANE DOE DION, husband and wife, John Does and Jane Does I-X, ABC Partnerships I-X, ABC Limited Liability Companies I-X, and XYZ Corporations I-X,

Defendants.

THE STATE OF ARIZONA TO THE DEFENDANT

WESTERN TRUCK INSURANCE SERVICES, Inc., a California Corporation authorized to do business in Arizona.

do Arizona Department of Insurance Business Services 2910 North 44th Street, Suite 210 (2nd Floor) Phoenix, AZ 85018-7269

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Case • NtV20 17-010530

SUMMONS

yOu would like legal advice from a lawyer, contact the Lawyer Referral Service at

02457.4434 Or

ttAkalakagallouruza SpoflitIrOd by the

Maricopa County Rat Assoclatfon


YOU ARE HEREBY SUMMONED and required to appear and defend, within the time

applicable, in this action in this court.

If served within Arizona, you must appear and defend within twenty (20) days after the

service of the Summons, Complaint, and Certificate of Compulsory Arbitration upon you,

exclusive of the day of service. If served out of the State of Arizona, whether by direct service,

by registered or certified mail, or by publication, you shall appear and defend within thirty

(30) days after the service of the Summons, Complaint, and Certificate of Compulsory

Arbitration upon you is complete, exclusive of the day of service. Where process is served

upon the Arizona Director of Insurance as an insurer's attorney to receive service of legal

process against it in this state, the insurer shall not be required to appear, answer or plead until

the expiration of forty (40) days after date of such service upon the Director. Service by

registered or certified mail without the State of Arizona is complete thirty (30) days after the

date of receipt by the party being served. Service by publication is complete thirty (30) days

after the date of first publication. Direct service is complete when made. Service upon the

Arizona Motor Vehicle Superintendent is complete thirty (30) days after filing the Affidavit

of Compliance and return receipt or Officer's Return. RCP 4, 4.1, 4.2 and 12(a).

YOU ARE HEREBY NOTIFIED that in case of your failure to appear and defend

within the time applicable, judgment by default may be rendered against you for the relief

demanded in the Complaint.

YOU ARE CAUTIONED that in order to appear and defend, you must file an Answer

or proper response in writing with the Clerk of this Court, accompanied by the necessary filing

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4,)

fee, within the time required, and you are required to serve a copy of any Answer or response

upon the Plaintiffs' attorney. Arizona Rules of Civil Procedure, Rules 5, 10; A.R.S. § 12-311.

Copies of the pleadings filed herein may be obtained by contacting the Clerk of Superior

Court, Maricopa County, located at 201 W. Jefferson Phoenix, AZ. 85003-2243.

Requests for reasonable accommodation for persons with disabilities must be made to

the division assigned to the case by parties at least three (3) judicial days in advance of a

scheduled court proceeding.

THE NAME AND ADDRESS OF PLAINTIFFS' ATTORNEY IS:

ANGELINI MILLS WOODS + ORi LAW 5055 N. 12th St., Suite 101 Phoenix, Arizona 85014

WS 0 1 2017

SIGNED AND sEiemp this date: SE

MICHAEL K. JEANES, CLERK CLERK OF THE COURT MARICOPA COUNTY SUPERIOR COURT

By: D uty Clerk 0 on

METHOD OF SERVICE: Private Process Service Sheriff or Marshall Personal Service Registered/Certified Mail (out-of-state)

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FILED 9-„ f4t16 0 1 20V

Wil)CRAEL K JEANES. CLERK

ex _ KtianoiV.'

4-

Robert T. Mills (Arizona Bar #018853) Sean A. Woods (Arizona Bar #028930) ANGELINI MILLS WOODS + ORI LAW 5055 North 12th Street Suite 101 Phoenix, Arizona 85014 Telephone 480.999.4556 [email protected] Attorneys for Plaintiff




Plaintiff,

vs.


Defendants.

Pursuant to Ariz. R. Civ. P. 72, the undersigned certifies that he knows the dollar limits

and any other limitations set forth by the local rules of practice for the Maricopa County

Superior Court, and further certifies that this case is NOT subject to compulsory arbitration,

as provided by Rules 72 through 77 of the Arizona Rules of Civil Procedure.

RESPECTFULLY SUBMITTED this 1st day of August 2017.

Case No.: CV2017-010530

CERTIFICATE REGARDING COMPULSORY ARBITRATION

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ANGELINI MILLS WOODS + ORI LAW

By Robert T. Mills Sean A. Woods 5055 N. 12% St Suite 101 Phoenix, AZ 85014 Attorneys for Defendant

ORIGINAL filed this 1st day of August 2017 with the Clerk of the Maricopa County Superior Court


Robert T. Mills (Arizona Bar #018853) Sean A. Woods (Arizona Bar #028930) ANGELINI MILLS WOODS + ORI LAW 5055 North 12th Street Suite 101 Phoenix, Arizona 85014 Telephone 480.999.4556 [email protected] Attorneys for Plaintiff

186012011 ouo ii5i

Case No.: CV2017-010530

DEMAND FOR JURY TRIAL

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Plaintiff,

vs.


Defendants.



Pursuant to Ariz. R. Civ. P. 38(b), Plaintiff, by and through undersigned counsel, hereby

demand a trial by jury of all claims and issues so triable in the above-entitled action.

RESPECTFULLY SUBMITTED this 1st day of August 2017.



1. By 11 Robert T. Mills Sean A. Woods 5055 North 12th Street Suite 101 Phoenix, AZ 85014 Attorneys for Plaintiff

ORIGINAL of the foregoing filed with the Clerk of the Maricopa County Superior Court this 1st day of August 2017


Robert T. Mills (Arizona Bar #018853) Sean A. Woods (Arizona Bar #028930) ANGELINI MILLS WOODS + OR1 LAW 5055 North 12th Street Suite 101 Phoenix, Arizona 85014 Telephone 480.999.4556 [email protected] Attorneys for Plaintiff



MADISON ALLEY TRANSPORTATION & Case No.: CV2017-010530 LOGISTICS, INC., a New York corporation,

Plaintiff,

vs.

WESTERN TRUCK INSURANCE, CO., a California corporation, ROBERT DION and JANE DOE DION, husband and wife, John Does and Jane Does I-X, ABC Partnerships I- X, ABC Limited Liability Companies I-X, and XYZ Corporations I-X,

Defendant.

Plaintiff Madison Alley Transportation & Logistics, Inc. ("MAIL"), by and

through undersigned counsel, for its Verified Complaint against Defendants Western

Truck Insurance Co. ("Western"), Robert Dion ("Dion") and Jane Doe Dion, John Does

and Jane Does I-X, ABC Partnerships I-X, ABC limited liability companies I-X, and XYZ

Corporations I-X alleges and states as follows:

PARTIES, JURISDICTION AND VENUE

1. MATL is a New York corporation authorized to conduct business in the

State of Arizona.

2. At all relevant times MATL's principal place of business was located at

2400 W. Union Hills Dr., Phoenix Arizona 85027.

3. Western is a California corporation authorized to conduct business in the

State of Arizona.

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MICHAEL K. JEANES Clerk of the Superior Court

By Kelsey Harm, DeputY Date 08/01J2017 Tire 16:48:5,

Description Ab3unt CliSEtt Ct2017-010550 ---

CIVIL HEW MAC 319.00

TOTAL 0101111T 319.00 Recelpit 26882332

VERIFIED COMPLAINT


1 4. On information and belief Dion and Jane Doe Dion are husband and wife.

2 5. The acts and omissions of Dion as alleged herein were done for the benefit

3 of and in fact benefitted the marital community of Dion and Jane Doe Dion.

4 6. Defendants John Does and Jane Does 1-X, ABC Partnerships I-X, ABC

5 limited liability companies I-X, and XYZ Corporations I-X are fictitious names

6 designating an individual or individuals, masculine or feminine, or legal entities not yet

7 identified who have acted in concert with the named Defendants either as principals or

8 agents or co-participants whose true names Plaintiff will insert when identified as if

9 correctly named originally.

10 7. This Court has jurisdiction of the subject matter of this action and over the

II persons of Defendants.

12 8. Venue is proper in this Court because acts giving rise to this action occurred

13 in Maricopa County, Arizona.

14 BACKGROUND

15 9. MATL's primary business is storing and delivering goods used in displays

16 by large, retail merchants such as department stores.

17 10. Mindi Peters ("Mindi") is a shareholder, director and Chief Executive

18 Officer/President of MATL.

19 11. Mindi is married to Jeff Owen ("Jeff").

20 12. Before relocating to the Phoenix area in 2015, MAIL had been engaged in

21 a similar business in New York and New Jersey.

22 13. For its Arizona operations, MATL secured leased space at 2400 W. Union

23 Hills Dr., Phoenix Arizona 85027, from Phoenix Investors No 26 Union Hills ("Lessor").

24 14. The commercial space consisted of 8,329 square feet of warehouse space in

25 which tractor trailers were able to dock, load, and unload goods for storage until needed

26 by the merchants.

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15. MATL's lease from Lessor (the "Lease") required that MAIL have

specified insurance coverages in place, including "Commercial General Liability"

("CGL").

SECURING INSURANCE COVERAGE

16. MATL contacted Western to serve as MATL's broker to obtain insurance

for MATL's business.

17. Western writes insurance in Arizona and advertises itself as providing

insurance for trucking companies.

18. MAIL primarily dealt with one of Western's salesmen, Robert Dion.

19. MAIL gave Dion a copy of the Lease, together with its Tenant Insurance

Requirements, so that Western could determine the coverage required.

20. Western contacted Jeff and requested some of the information needed to

secure the CGL policy.

21. Jeff provided Western an estimate of MATL's annual income. Although

MATL was a new company, Jeffhad previous experience in the business and had ongoing

customer relationships. Based on this, he estimated MATL's minimum annual revenue

for the remainder of 2015 would be $500,000.00. Thus, MATL's annual revenue would

be approximately $1,000,000.00.

22. Jeff explained the estimate of MATL's annual income to Dion.

23. On June 9, 2015, Dion prepared a written Application for insurance

("Application") for MATL.

24. The Application prepared by Dion stated that MAIL had Gross Receipts of

$500,000.00.

25. Western knew at a minimum at the time it prepared the Application that

MATL had revenues of at least $1,000,000.00.

26. The Lease required, among other things, that MATL have a "commercial

general liability" ("CGL") policy providing coverage limits of at least $2.5 million per

occurrence.

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27. CGL coverage was bound the next day, June 10, 2015. Insurance was

underwritten by Colony Insurance Company ("Colony").

28. After securing the CGL policy, Dion advised MATL that the Lease required

specific insurance coverages beyond that provided by the CGL policy, specifically

coverages for both business personal property ("BPP") and business income ("BI").

29. Dion and Jeff discussed these coverages, and Jeff told Dion that the weekly

revenue for MATL would be $20,000.00. This figure was similar to what Owen had told

Dion at the time of the Application, as alleged above.

30. In an e-mail exchange between Western and Colony on June 26, 2015, Dion

requested a premium quote for BPP and BI coverages.

31. In an email dated July 2, 2015, Colony requested the amount of BPP and

BI coverage in order to determine the premium cost of the coverages. That same day, an

employee or agent of Western responded to Colony and requested that Colony "quote

$50,000.00 BPP and $20,000.00 BI".

32. Colony placed BPP and BI coverages for MATL on September 15, 2015

for $50,000.00 for BPP and $20,000.00 for BI.

33. The BI policy issued by Colony included a 90% coinsurance provision,

meaning MATL was subject to a substantial penalty if it did not carry insurance covering

at least 90% of its business income.

34. BI coverage is designed for the purpose of providing an insured income to

remain in business during the time between an insured loss and a full resumption of the

insured's normal operations. Unlike automobile coverage, BI policy cannot be written on

the basis of a "minimum" or "required" amount. This is evidenced by the 90%

coinsurance clause in the Colony BI coverage. This means the limits of coverage need to

be within 10% of the exposure or they are subject to a deduction. Western knew all of

this.

35. MAIL was not provided a copy of the BI policy. On information and belief,

Western apparently mailed the policy to an address that was not MATL's.

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36. MATL did not see the BI policy until Western gave it to MATL after MATL

made a claim for BI loss.

37. MAIL was provided a one-page "Endorsement" stating only that "BPP--

S50,000 BP--$20,000" had been added to the policy. This appeared consistent with the

$20,000 weekly revenues Jeff had discussed with Dion. The Endorsement contained no

further explanation of coverage, and said nothing about the coinsurance provision in the

actual BI policy. Nothing in the Endorsement alerted MATL that its coverage for BI

losses was limited to 520,000.

38. Western did not discuss with MAIL the aspects of the BI coverage,

including the coinsurance clause and the impact of low coverage limits.

39. Specifically, MAIL was never made aware that the $20,000.00 BI coverage

was for all annual losses.

40. Western knew that the $20,000.00 was only a small fraction of MATL's

actual annual revenues and was grossly inadequate to cover MATL's losses in the event

of a business interruption.

41. Western knew at the time it procured the BI policy for MAIL that the

$20,000.00 was grossly inadequate to even meet the policy's coinsurance requirement.

42. Western did not inform or explain to MATL that the BI policy as written

would result in MATL being grossly underinsured for BI loss.

THE EVENT

43. On June 9, 2016 an employee of MATL's sub-tenant, Fully Loaded

Deliveries ("Fully Loaded"), was moving items in MATL's rented warehouse space using

a forklift. While operating the forklift and moving a pallet of goods, the driver struck and

broke an overhead sprinkler head. Water immediately flowed from the damaged sprinkler

and inundated the warehouse and office space. This occurrence is referred to herein as the

"Event."

4.4. The Event was recorded on a surveillance camera in the warehouse.

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45. There was no question in the ensuing investigation and claims made by

MATL that the Event was an insured event.

THE RESTORATION PERIOD

46. Once MATL learned of the water inundation at the warehouse, it

immediately notified Western about its loss.

47. Western, through its employee or agent Bob Holtzman, advised Jeff to not

make a claim on MATL's policy, but instead to make a third party claim only on Fully

Loaded's policy.

48. A few days later, Jeff advised Holtzman to notify Colony of MATL's BI

loss.

49. Colony then explained to Jeff the $20,000.00 BI coverage limits. This is the

first time anyone at MATL was told its BI limits were only $20,000.00.

50. At the time of the Event, Fully Loaded (the tortfeasor) was insured by

Nationwide Insurance ("Nationwide").

51. MATL notified Nationwide of MATL's losses and made a claim on Fully

Loaded's policy, including a claim for BI and lost revenue.

52. Brent Pampel was the Nationwide adjuster who handled MATL's claim.

53. After the sprinkler head was repaired on June 10, work began the next day

to remove the contents from the warehouse.

54. Testing the contents for the presence of bacteria began on June 15 and was

completed on June 27. Arizona Fire & Water, a firm specializing in disaster recovery,

performed this part of the work with the approval of Nationwide. It identified property

that could be salvaged and began the removal of the warehouse contents.

55. Removal of warehouse contents was completed on July 15, 2015.

56. A delay in the next step, the reconstruction of the leased space, occurred

after Lessor objected to Arizona Fire & Water's bid submitted on July 16. Nationwide

also objected to certain aspects of the proposed work.

57. After that, Arizona Fire & Water withdrew from further work.

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58. Sun State, the contractor that ultimately performed the reconstruction.

submitted its bid on July 28, 2015.

59. Nationwide approved the estimate for repairs on August 1, but on August

12 advised that it would not pay for the work. On the same day, Lessor agreed to file a

claim for reconstruction and had its carrier, Chubb, on site by August 19.

60. Construction began on August 29 and was completed on September 16.

61. The return of MATL's contents from temporary storage began on

September 26 and was completed by mid-October.

62. Because of the damage caused by the Event MATL was unable to operate

its business for approximately 151 days.

63. MATL's business is largely seasonal in nature, with the majority of its

revenues occurring May through November.

64. As a result of the event, MATL was unable to operate its business during

the peak season for its annual revenues.

65. Nationwide commissioned a forensic accounting analysis which was

conducted by a forensic accounting firm.

66. After an analysis of MATL's revenues and expenses through the fall of

2016, the forensic accountants determined that MATL's BI loss was $5,453.05 per day.

67. MATL's BI loss resulting from the Event is at least 5823,410.55.

68. MATL expended a total of $116,250 in attorneys' fees to recover its insured

losses under its third-party claim against Fully Loaded/Nationwide. These fees are

reasonable.

69. It was reasonably foreseeable to Western at the time it procured BI

insurance for MATL that MATL would incur attorneys' fees pursing claims for recovery

from a third party.

COUNT I NEGLIGENCE / INSURANCE PRODUCER MALPRACTICE

70. Plaintiff restates and re-alleges the allegations of the foregoing paragraphs

of this Verified Complaint as if fully set forth herein.

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71. Defendants owed to MATL the duty to exercise reasonable care, skill, and

diligence in carrying out the procurement of insurance for MATL.

72. Defendants breached the duties they owed to Plaintiff in at least the

following ways:

a. Defendants failed to advise MATL that MATL's BI coverage was only

$20,000.00 on an annual basis;

b. Defendants failed to advise and explain to MATL that its BI coverage

was inadequate and that MATL was underinsured;

c. Defendants failed to explain or adequately explain the BI policy to

MATL;

d. Defendants failed to explain to MATL the coverage in the BI policy and

the consequences of that coverage;

e. Defendants failed to advise and explain to MATL the 90% coinsurance

clause or the consequences of the coinsurance clause;

f. Defendants failed to provide the policy or a copy of the policy to MAIL;

g. Defendants failed to procure the amount of BI coverage requested by

MATL;

h. Defendants failed to procure for MATL the amount of BI coverage

consistent with the information provided and readily available to

Defendants; and

i. Defendants procured for MATL BI coverage only in the amount of

$20,000.00 with a 90% coinsurance clause.

73. As a direct and proximate result of Defendants breaches of the duties they

owed to MAIL, MAIL has been damaged in an amount to be proven at trial.

COUNT II BREACH OF CONTRACT

74. Plaintiff restates and re-alleges the allegations of the foregoing paragraphs

of this Verified Complaint as if fully set forth herein.

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75. MAIL and Defendants entered into a contract whereby Defendants

promised to procure for MATL BI insurance consistent with the information provided by

MATL and/or available to or known by Defendants.

76. In exchange Defendants would receive a commission on the policy

purchased by MAIL.

77. Defendants breached the contract as alleged herein by procuring for MATL

BI coverage only in the amount of $20,000.00 with a 90% coinsurance clause.

78. Defendants also breached the contract by failing to explain the terms of the

BI coverage Defendants did obtain for MATL.

79. As a direct and proximate result of Defendants breach of contract, MAIL

has been damaged in an amount to be proven at trial.

COUNT III: BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING

80. Plaintiff restates and re-alleges the allegations of the previous Paragraphs

of this Complaint as if fully set forth herein.

81. It is implied in all contracts in Arizona- including the agreements between

Plaintiff and Defendants, a covenant of good faith and fair dealing pursuant to which

Defendants covenanted that they would in good faith, and in the exercising of fair dealing,

act fairly and honestly toward Plaintiff, and do nothing to impair, interfere with, hinder,

or injure Plaintiff.

82. This duty required that Defendants not do anything that prevented Plaintiff

from receiving the benefits of its agreements.

83. Defendants breached their duty to act fairly and in good faith as alleged

herein by failing to properly address the full amount of BI insurance agreed upon.

84. As a natural and direct result of Defendants' breaches of the duty of good

faith and fair dealing, Plaintiff sustained damages in an amount to be proven at trial.


COUNT IV: NEGLIGENT TRAINING AND SUPERVISION


of this Complaint as if fully set forth herein.

86. Defendants had a duty to reasonably direct, instruct and/or supervise its

agents, representatives and employees. Defendants breached their duties and were

negligent in failing to instruct and monitor their employees and/or agents and the methods

they employed to procure insurance business. Defendants failed to supervise and train

their employees in accordance with proper insurance regulations, protocol and

generalized insurance standards of the insurance community.

87. As a direct and proximate result of the negligence of Defendants, Plaintiff's

policy failed to afford proper BI coverage, thereby causing Plaintiff to suffer damages in

an amount to be proven at trial.

COUNT V - REASONABLE EXPECTATIONS


of this Complaint as if fully set forth herein_

89. Pursuant to the doctrine of reasonable expectations, Plaintiff believed

their insurance coverages proffered and secured by Defendants, knowledgeable

professionals in the field, would protect their interests in the event of injury, damage or

loss, in at least the same amount to which they were protected from liabilities to others.

90. Further, Plaintiff believed their insurance coverages, proffered and secured

by Defendants, knowledgeable professionals in the field, would afford Plaintiff BI

coverage in an amount commensurate with the revenue projections provided to

Defendants.

91. Plaintiff further reasonably expected that Defendants, and each of them,

would act in a manner consistent with Plaintiff's interests and objectives.

92. Defendants breached their contract with Plaintiff and caused them damage

by failing to afford Plaintiff proper BI coverage, in an amount to be proven at trial.

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PRAYER FOR RELIEF

WHEREFORE Plaintiff MATL prays for the following relief:

a. For compensatory damages;

b. For consequential and special damages;

c. For its costs and reasonable attorney's fees incurred herein as provided by

A.R.S.§§ 12-341 and 12-341.01;

d. For such other and further relief as the Court deems just and equitable.

RESPECTFULLY SUBMITTED this 1st day of August, 2017.


By Robert T. Mills Sean A. Woods 5055 N 12th Street Suite 101 Phoenix, AZ 85014 Attorneys for Plaintiff

ORIGINAL Filed on this 1st day Of August, 2017 with the Clerk of the Maricopa County Superior Court

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Mindi H. Peters

VERIFICATION

MINDI H. PETERS declares under penalty of perjury under the laws of the State

of Arizona as follows:

1. I am a shareholder, director and chief executive officer/president of Madison

Alley Transportation & Logistics, Inc. ("MATL"), the Plaintiff in this case.

2. I am over the age of 18 and am competent to make this Verification.

3. I have read the foregoing Verified Complaint, and verify that the facts stated

therein are true to the best of my knowledge information and belief based upon

my personal knowledge and/or based upon my review of the records of MATL,

except for those facts alleged on information and belief, and as to those facts I

believe them to be true.

DATED: August 1, 2017

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VERIFICATION

JEFFREY OWEN declares under penalty of perjury under the laws of the State

of Arizona as follows:

1. I am a vice president of Madison Alley Transportation & Logistics, Inc.

("MATL"), the Plaintiff in this case.

2. I am over the age of 18 and am competent to make this Verification.

3. I have read the foregoing Verified Complaint, and verify that the facts stated

therein are true to the best of my knowledge information and belief based upon

my personal knowledge and/or based upon my review of the records of MAIL,

except for those facts alleged on information and belief, and as to those facts I

believe them to be true.

DATED: August 1, 2017

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Documents

Yes CV2017-010530€¦ · CV2017-010530 t;UVER SHEET- NEW FILING ONLY (Please Type or Print) Plaintiff's Name(s): (List all) Plaintiffs Address: Phone #: Email Address: Madison Alley