Case 1:11-cv-00912-TJM-RFT Document 1

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK PACIFIC EMPLOYERS INSURANCE COMPANY, Plaintiff, -againstTROY BELTING & SUPPLY COMPANY, THE HARTFORD INSURANCE COMPANY and ABC COMPANIES 1 THROUGH 20, Defendants. COMPLAINT Case No. ___________ 1:11-CV-0912 (TJM/RFT)

Plaintiff Pacific Employers Insurance Company (Pacific Employers) by its attorneys, Hiscock & Barclay, LLP, as and for its Complaint against Defendants Troy Belting & Supply Company (Troy), The Hartford Insurance Company (Hartford) and ABC Companies 1 through 20 (ABC Companies) alleges as follows:

INTRODUCTION 1. This is an action for declaratory relief pursuant to 28 U.S.C. 2201, requesting a

judgment declaring the rights and duties of Pacific Employers, Troy, Hartford and other unidentified insurers of Troy with respect to the extent of their obligations, if any, as to the indemnification and defense of Troy in connection with asbestos bodily injury claims in which Troy is a defendant. 2. With this action, Pacific Employers further seeks reimbursement for certain moneys

paid by it on behalf of Defendant Troy for defense and indemnification for prior settlements of certain asbestos bodily injury claims in which Troy was a defendant.

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THE PARTIES 3. Pacific Employers is a foreign corporation organized under the laws of the

Commonwealth of Pennsylvania, having its principle place of business in Philadelphia, Pennsylvania. At all times relevant hereto, Pacific Employers was authorized to do business in the State of New York. 4. On information and belief, Troy is a domestic corporation organized under the laws

of the State of New York, having its principal place of business in Watervliet, New York. On information and belief, Troy, at all times relevant hereto, conducted business and currently conducts business in New York. 5.
HISCOCK & BARCLAY, LLP

On information and belief, Hartford is a foreign corporation organized under the laws

of the State of Connecticut, having its principal place of business in Hartford, Connecticut. On information and belief, Hartford, at all times relevant hereto, was authorized to conduct business in the State of New York 6. At all relevant times hereto, the ABC Companies, whose actual names Pacific

Employers has been unable to ascertain notwithstanding reasonable efforts to do so, but who are sued herein by the fictitious designation ABC Companies, were insurance companies that issued insurance policies to Troy during relevant time periods.

JURISDICTION AND VENUE 7. This Court has jurisdiction of this action pursuant to 28 U.S.C. 1332(a)(1) because

there is complete diversity of citizenship between Pacific Employers and the Defendants and the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. 8. Venue is proper in this district pursuant to 28 U.S.C. 1391(a) and (c).

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JURY DEMAND 9. Plaintiff demands a trial by jury in this action.

AS AND FOR A FIRST CLAIM FOR RELIEF AGAINST ALL DEFENDANTS (Declaratory Judgment as to Indemnity Pursuant to 28 U.S.C. 2201) 10. Pacific Employers repeats and realleges Paragraphs 1 through 9 above with the same

force and effect as if fully set forth herein as if set forth at length herein. 11. Pacific Employers and Hartford issued primary policies of insurance to Troy during

the relevant timeframe.

HISCOCK & BARCLAY, LLP

12.

Pacific Employers and Hartford, together, have funded 100% of Troys indemnity for

settlements related to the asbestos bodily injury suits in which Troy is a defendant. 13. Despite repeated requests by Pacific Employers and Hartford, Troy has, through its

words and conduct, refused to contribute to its indemnification related to asbestos bodily injury claims and upon information and belief will continue to refuse to contribute. 14. Pursuant to New York law, Troys contribution to indemnity for asbestos bodily

injury claims is proper for non-insured periods and pursuant to a pro rata allocation methodology based on time on the risk. 15. An actual controversy exists between the parties to this action within the meaning of

28 U.S.C. 2201. This Court is vested with the power in the instant case, in which Pacific Employers will be subject to substantial peril and expense, to declare and adjudicate the rights and other legal relationships of the parties to this action with reference to the issues raised by this complaint.

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16. 17.

Pacific Employers has no adequate remedy at law. As such, Pacific Employers is entitled to a declaratory judgment of the rights and

obligations, if any, of Pacific Employers, Troy, Hartford, and the ABC Companies or any of them, under the policies of insurance allegedly issued to Troy in connection with indemnity as to asbestos bodily injury claims.

AS AND FOR A SECOND CLAIM FOR RELIEF AGAINST DEFENDANT TROY (Equitable Contribution and/or Indemnity) 18. Pacific Employers repeats and realleges Paragraphs 1 through 17 above with the same

force and effect as if fully set forth herein as if set forth at length herein.
HISCOCK & BARCLAY, LLP

19.

Pacific Employers has incurred and will continue to incur costs associated with

Defendant Troys indemnification for asbestos bodily injury claims. 20. To the extent that Pacific Employers has or becomes obligated to pay sums for

indemnity to, for, or on behalf of Troy for alleged liabilities in connection with asbestos bodily injury claims, Pacific Employers has a right of equitable contribution and/or equitable indemnity from Troy. 21. To the extent that Pacific Employers is determined to have paid more than its

respective proper share for non-insured periods and pursuant to a pro rata allocation methodology based on time on the risk, Pacific Employers is entitled to reimbursement from Troy. 22. As such, Pacific Employers is entitled to a declaratory judgment against defendant

Troy for monetary payments made by Pacific Employers on behalf of Troy for defense and

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indemnification for prior settlements of certain asbestos bodily injury claims in which Troy was a defendant. . AS AND FOR A THIRD CLAIM FOR RELIEF AGAINST ALL DEFENDANTS (Declaratory Judgment as to Defense Costs Pursuant To 28 U.S.C. 2201) 23. Pacific Employers repeats and realleges Paragraphs 1 through 22 above with the same

force and effect as if fully set forth herein. 24. As previously set forth, Pacific Employers and Hartford issued primary policies of

insurance to Troy during the relevant timeframe.

HISCOCK & BARCLAY, LLP

25.

As previously set forth, Pacific Employers and Hartford, together, have funded 100%

of Troys defense related to the asbestos bodily injury suits in which Troy is a defendant. 26. Troys contribution to defense for asbestos bodily injury claims is demanded and

appropriate for non-insured periods, pursuant to a pro rata allocation methodology based on time on the risk. 27. An actual controversy exists between the parties to this action within the meaning of

28 U.S.C. 2201. This Court is vested with the power in the instant case, in which Pacific Employers will be subject to substantial peril and expense, to declare and adjudicate the rights and other legal relationships of the parties to this action with reference to the issues raised by this complaint. 28. 29. Pacific Employers has no adequate remedy at law. As such, Pacific Employers is entitled to a declaratory judgment concerning the rights

and obligations, if any, of Pacific Employers, Troy, Hartford and the ABC Companies, or any of

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them, under the policies of insurance allegedly issued to Troy in connection with defense costs as to asbestos bodily injury claims.

AS AND FOR A FOURTH CLAIM FOR RELIEF AGAINST DEFENDANT TROY (Equitable Contribution and/or Indemnity as to Defense Costs)
30. Pacific Employers repeats and realleges Paragraphs 1 through 29 above with the same

force and effect as if fully set forth herein. 31. Pacific Employers has incurred and will continue to incur costs associated with

Troys defense for asbestos bodily injury claims. 32.

HISCOCK & BARCLAY, LLP

To the extent that Pacific Employers has or becomes obligated to pay sums for

defense to, for, or on behalf of Troy for alleged liabilities in connection with asbestos bodily injury claims, Pacific Employers has a right of equitable contribution and/or equitable indemnity from Troy. 33. To the extent that Pacific Employers is determined to have paid more than its

respective proper share of defense costs for non-insured periods and pursuant to a pro rata allocation methodology based on time on the risk, Pacific Employers is entitled to reimbursement from Troy. 34. As such, Pacific Employers is entitled to a declaratory judgment against defendant

Troy for monetary payments made by Pacific Employers on behalf of Troy for defense made by Pacific Employers in excess of its proper allocated share

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WHEREFORE, Plaintiff Pacific Employers Insurance Company respectfully prays that

a judgment be made and entered granting it the following relief: (a) On its First Claim for Relief, a declaration of the rights and obligations, if any, of Pacific Employers, Troy, Hartford, and the ABC Companies, or any of them, under the policies of insurance allegedly issued to Troy in connection with indemnity as to asbestos bodily injury claims; (b) On its Second Claim for Relief, reimbursement from Troy for moneys paid for indemnity by Pacific Employers in excess of Pacific Employers proper allocated share; (c) On its Third Claim for Relief, a declaration of the rights and obligations, if any, of Pacific Employers, Troy, Hartford, and the ABC Companies, or any of them, under the policies of insurance allegedly issued to Troy in connection with defense costs as to asbestos bodily injury claims; (d) On its Fourth Claim for Relief, reimbursement from Troy for moneys paid for defense by Pacific Employers in excess of Pacific Employers proper allocated share;
HISCOCK & BARCLAY, LLP

(e) Dated:

such other and further relief as the Court deems just, fair and proper.

Albany, New York August 3, 2011

HISCOCK & BARCLAY, LLP By: /s David M. Cost David M. Cost Bar Roll No.: 514417

Attorneys for Plaintiff Pacific Employers Insurance Company Office and Post Office Address: 80 State Street Albany, New York 12207 Telephone: (518) 429-4286 Facsimile: (518) 533-2913 Email: dcost@hblaw.com

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1932531

350.00

McAvoy 1:11-CV-0912

Treece COMPLEX

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