You are on page 1of 8

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 2 5 2011^ 1 FOR THE SOUTHERN DISTRICT OF MISSISSIPPI f I " ! HATTIESBURG DIVISION L ^rTTsanrcEs^
j oV_

ACE AMERICAN INSURANCE COMPANY VS. MICHAEL W. LANGLEY AND BRITTANY D. DAVIS

CIVIL ACTION NOg# Y/Cf/?

^JS^^TX

PLAINTIFF'S COMPLAINT FOR DECLARATORY JUDGMENT Plaintiff, 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, Mississippi

who 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, Mississippi

who may be served with process at her place of residence in that county, at 239 Ramey Lane, Apt. 11, Waynesboro, Mississippi 39367. JURISDICTION 4. 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

Case 2:11-cv-00177-KS-MTP Document 1

Filed 08/25/11

Page2of8

Defendants, are residents of Mississippi, and the amount in controversy exceeds $75,000.00 exclusive of interest and costs. VENUE 5. 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 events or omissions giving rise to the action occurred in the Southern District of Mississippi, Hattiesburg Division. CAUSE OF ACTION 6. This is an action for declaratory judgment on a contract of insurance. This action is

brought pursuant to 28 U.S.C. 2201 for the purpose of resolving an actual controversy between the parties* as is more fully described below. FACTUAL BACKGROUND & THE UNDERLYING LAWSUIT 7. Plaintiff ACE issued to third party Key Energy Services, Inc. a Business Auto liability

insurance policy designated as Policy Number ISA H08626194 with a policy periodfromNovember 1, 2010 to November 1, 2011 (hereinafter the "Policy"). A true and correct copy of the Policy is attached 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 conditions of the Policy. 8. On or about December 21, 2010, Defendant Brittany D. Davis ("Davis") filed a

complaint in state court in Jones County, Mississippi against Defendant Michael W. Langley and Key Energy Services, LLC. This underlying lawsuit was brought to recover for injuries and damages Brittany Davis claims as a result of a November 16,2010 motor vehicle accident.

Case 2:11-cv-00177-KS-MTP Document 1 Filed 08/25/11 Page 3 of 8

9.

The underlying case was originally filed in the state's County Court.1 In March of

2011, Davis filed a Motion to Transfer and an Amended Complaint, moving the casefromCounty Court to Circuit Court. At the time of filing this action, Davis' case is pending and is styled as Cause No. 2011-31-CV3; Brittany Davis vs. Michael W. Langley, Key Energy Services, LLC and John Does 1-5, in the Circuit Court of Jones County, Mississippi, Second Judicial District. A true and correct copy of Brittany Davis' Amended Complaint in the underlying lawsuit is attached hereto as Exhibit "B" and is incorporated for all purposes. At the time of filing this action, the attached Amended 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 on US 84. Plaintiff claims Langley was hauling a tank on a trailer, and that as Langley was driving, the tank fell off of the truck or trailer and into the middle of the westbound lane of US 84. Davis, who was also traveling westbound on US 84, claims that she came over a hill and approached the tank in the roadway. Davis alleges she attempted to avoid the tank, and she collided with an embankment and barbed wire fence. As a result of the accident, Davis claims severe physical and emotional injuries 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 Energy

and was operating a vehicle and trailer owned by Key Energy within the course and scope of his employment. Discovery in the underlying suit at this time has confirmed that Langley was Key Energy's employee on the day of the accident, and both the truck and the trailer that Langley was using 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. Michael W. Langley, Key Energy Services, LLC and John Does 1-5, in the County Court of the First Judicial District of Jones County, Mississippi.

Case 2:11-cv-00177-KS-MTP Document 1

Filed 08/25/11

Page4of8

Mr. Langley was not in the course and scope of his employment but was instead on a personal errand after hours. Specifically, Langley had completed work for the day, was not on the job, and had driven the truck and trailer to purchase and pick up a septic tank from an individual. The tank was for Langley's and his family's personal use. He was returning to his home with the tank when it fell off the trailer and onto the roadway. Key Energy is not in the business of hauling septic tanks and does not use septic tanks. 12. Mr. Langley did not have permission to use Key Energy's truck in the method and

manner for which he was using it at the time of the accident (i.e., a personal errand). Further, he did not have permission to use the trailer on the day of the accident, and he did not have permission to use the trailer along with the Key Energy truck he was driving at the time of the accident. Mr. Langley allowed his personal insurance to lapse and failed to inform his supervisor that he intended to pull the trailer with his personal vehicle with no insurance. Mr. Langley was reprimanded for impermissible use of company property and violation of company policy. 13. Davis' Amended Complaint in the underlying lawsuit alleges negligence and

negligence per se against Langley. Davis alleges that Langley acted negligent in that he: a. Failed to properly secure his load, thereby endangering the safety of Brittany Davis and the public; b. c. d. e. Drove the vehicle in an unsafe manner; Failed to keep the vehicle under proper control; Failed to follow the Rules of the Road in Mississippi; and In other respects as will be shown at the trial of the underlying suit. See Amended Complaint, ff 18.

Case 2:11-cv-00177-KS-MTP Document 1 Filed 08/25/11 Page5of8

14.

For negligence per se Davis contends that Langley was negligent as a matter of law by

failing to properly secure his load, failing to keep his vehicle under proper control, and for other reasons set out in the Amended Complaint. 15. Davis' Amended Complaint also alleges independent negligence and vicarious

liability under the doctrines of respondeat superior and negligent entrustment against Key Energy. 16. Further, Davis asserts that Key and Langley's actions constitute gross negligence

and/or reckless disregard. In her claim for gross negligence, Davis alleges that Langley failed to properly secure his load, that he failed to check his load prior to driving the truck, and that he was recklessly inattentive to the position and condition of the tank on the trailer at the time of the collision. 17. In the underlying lawsuit, Davis seeks the recovery of actual damages, including

punitive damages and seeks a minimum of one million dollars ($1,000,000) in non-economic damages over and above out of pocket/economic damages. THE POLICIES; COVERAGE 18. 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 resulting in 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 Coverage Form, Page 2 of 12, SECTION IIA - Coverage. 19. However, no coverage is provided under the Policy to Defendant Langley for the

underlying lawsuit. There is no coverage to Langley because he does not meet the definition of an "insured" under the Policy.

Case 2:11 -cv-00177-KS-MTP Document 1 Filed 08/25/11 Page6of8

20.

Therefore, there is no coverage afforded Langley under the Policy and, thus, no duty

imposed on AGE to indemnify Langley in the underlying suit.


THE POLICY

21.

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 must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership maintenance or use of a covered "auto". See attached Policy, Business Auto Coverage Form, Page 2 of 12, SECTION IIA - Coverage. 22. The Policy provides that the following are "insureds": a. b. [Key] for any covered auto. 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, SECTION IIA 1 - Who is an Insured
No COVERAGE FOR CLAIMS AGAINST MICHAEL W. LANGLEY

23.

The insuring agreement states that ACE will pay those sums an "insured" legally must

pay for damages resultingfromthe use of a covered "auto." An Insured is defined under the Policy to include Key Energy and anyone else using, with Key Energy's permission, a vehicle covered under the Policy. 24. At the time of the accident in the underlying lawsuit, Langley, a Key employee, was

operating a truck with an attached trailer, both of which were owned by Key. However, Langley was on a personal errand and was outside the course and scope of his employment. He did not have

Case 2:11 -cv-00177-KS-MTP Document 1 Filed 08/25/11 Page 7 of 8

permission to use Key Energy's truck in the method and manner for which he was using it at the time of the accident (i.e. personal use). Also, Langley did not have permission to use the trailer on the day of the incident, nor did he have permission to use the trailer with the Key Energy truck that he was driving at the time of the accident. 25. Langley was using the Key truck and trailer to complete a personal errand at the time

of the accident, without Key' s permission. Langley was not working to further a business interest of Key Energy, and he was not in the course and scope of his employment with Key Energy at the time of the accident. His use of the Key truck and trailer was in violation of Key Energy company policy. 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 the time of the accident, he is not an "insured" under the policy. Therefore, there is no coverage under the Policy for the claims asserted by Brittany Davis against Langley in the underlying lawsuit. CAUSES OF ACTION 26. 27. Paragraphs 1 through 25 are incorporated by reference. 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. 201131-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 Policy

either as an Insured or as a third party beneficiary, and Davis should be bound by this Court's judgment regarding ACE's obligations, if any, to Langley. 29. ACE seeks a declaratory judgment, pursuant to 28 U.S.C. 2201 for the purposes of

determining a question of actual controversy between the parties, that the defenses to coverage

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

pleaded herein preclude any obligation of ACE to indemnify or in any other way provide coverage to Michael W. Langley, a defendant in the underlying lawsuit. PRAYER WHEREFORE, 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 under the ACE Policy and that ACE has no duty to indemnify MICHAEL W. LANGLEY in connection with any loss, damages, settlement, judgment or anyfindingof liability whatsoever arisingfromany facts set forth or that could have been set forth in the lawsuit styled Cause No. 2011-31-CV3; Brittany Davis vs. Michael W. Langley, Key Energy Services, LLC and John Does 1-5, and that the Court award ACE such other and further relief requested in this Complaint and all other relief as the Court may deem just and proper.

Respectfully submitted,

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

You might also like