Case 8:12-cv-00115-JSM-TGW Document 1

Filed 01/19/12 Page 1 of 9 PagelD 1

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION CERTAIN INTERESTED UNDERWRITERS AT LLOYD'S, LONDON, SUBSCRIBING TO CERTIFICATE NO. 409604, Plaintiff, CASE N O : v. DIVISION: BERT SMITH OLDSMOBILE, INC d/b/a BERT SMITH AUTOMOTIVE d/b/a BERT SMITH INTERNATIONAL d/b/a BERT SMITH EURO COLLECTION d/b/a BERT SMITH PORSCHE, and BANKERS STANDARD INSURANCE COMPANY a/s/o J.C. and Erin Romero, Defendants.

COMPLAINT FOR DECLARATORY JUDGMENT Plaintiff, CERTAIN INTERESTED UNDERWRITERS AT LLOYD'S, LONDON, SUBSCRIBING TO CERTIFICATE NO. 409604 ("Underwriters"), by and through undersigned counsel hereby seeks Declaratory Judgment pursuant to Florida Statutes Chapter 86, for the purpose of determining a question of actual, immediate controversy between the parties, and in support thereof, states as follows: I. 1. PARTIES

Plaintiff, CERTAIN INTERESTED UNDERWRITERS AT LLOYDS, LONDON

SUBSCRIBING TO POLICY CERTIFICATE NO. 409604 (hereinafter "Underwriters"), are composed of separate, but not joint, syndicates that underwrite insurance in an insurance

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marketplace known as Lloyd's of London. Each syndicate is organized under the laws of the United Kingdom, with their principal places of business located in London, England, and are citizens of Great Britain. 2. At all times material hereto, Defendant BERT SMITH OLDSMOBILE d/b/a

BERT SMITH AUTOMOTIVE d/b/a BERT SMITH INTERNATIONAL d/b/a BERT SMITH EURO COLLECTION d/b/a BERT SMITH PORSCHE (hereinafter "BERT SMITH"), was and is a Delaware corporation with its principal place of business at 3800 34 Petersburg, Hillsborough County, Florida. 3. At all times material hereto, Defendant BANKERS STANDARD INSURANCE Street North, St.

COMPANY (hereinafter "BANKERS") was and is a corporation organized and existing under the laws of the State of Pennsylvania with its principal place of business located at 436 Walnut Street, Philadelphia, Pennsylvania 19106-3703. 4. At all times material hereto, J.C. and Erin Romero (hereinafter "Romero"), owned

a 2011 Porsche Panamera with VIN number WP0AC2A78BL090163 (hereinafter the "Porsche"), which was insured against loss by BANKERS. II. 5. JURISDICTION AND VENUE

This is a Complaint for a Declaratory Judgment brought pursuant to 28 U.S.C.

2201, and Article III, 2 of the United States Constitution. 6. The matter in controversy exceeds, exclusive of interest and costs, the Seventy-

Five Thousand Dollar ($75,000.00) sum specified by 28 U.S.C. 1332. 7. 8. There is complete diversity of citizenship as defined in 28 U.S.C. 1332. Venue is proper in the Middle District of Florida because it is the judicial district

in which a substantial part of the events or omissions giving rise to the claim occurred, pursuant

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to28U.S.C. 1391. III. 9. COMMON ALLEGATIONS

At all times material hereto, and particularly on or about March 2, 2011,

Defendant BERT SMITH owned and operated a car dealership and motor vehicle repair shop in St. Petersburg, Florida. 10. On or about March 2, 2011, the Porsche was delivered to BERT SMITH'S

premises for repair and was allegedly stolen from BERT SMITH'S premises thereafter. 11. As a result of the loss of the Porsche, BANKERS filed a lawsuit against BERT

SMITH claiming a right of subrogation for indemnity paid to ROMERO for loss of the Porsche. The lawsuit is styled: Bankers Standard Insurance Company a/s/o J. C. and Erin Romero v. Bert Smith Oldsmobile, et al, filed in the Circuit Court of the Sixth Judicial Circuit In and For Pinellas County, Florida, Case No. 11010016CI (hereinafter "Underlying Lawsuit"). A copy of the Complaint filed by BANKERS against BERT SMITH in the Underlying Lawsuit is attached hereto as Exhibit "A" and is incorporated herein in its entirety by reference. 12. BANKERS's Complaint in the Underlying Lawsuit alleges, in part, the following

against BERT SMITH: 9. On March 2, 2011, the Porsche was delivered to Bert Smith Automotive. On March 2, 2011, Herb Schimkus, as a representative and service manager for Bert Smith Automotive, took possession of the Porsche when it was brought to Bert Smith Automotive. The Porsche arrived at Bert Smith Automotive sometime after 5:00 p.m. on March 2, 2011. Herb Schimkus moved the Porsche and parked it in a service lane at Bert Smith Automotive at approximately 5:30 p.m.

10.

11.

12.

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13.

Herb Schimkus placed the keys to the Porsche inside a desk drawer, which was located in the Bert Smith Automotive office. The desk drawer in the office where the Porsche key was placed did not have a lock on it. Bert Smith Automotive had sole, actual, and exclusive possession and control of the Porsche. When Bert Smith Automotive was opened on March 3, 2011, at approximately 7:00 a.m., the Porsche was no longer at Bert Smith Automotive and had been stolen. The keys to the Porsche had been removed from the desk drawer in the office. The Porsche was stolen while in the sole, actual, and exclusive possession and control of Bert Smith Automotive. There are no cameras where the Porsche was parked at Bert Smith Automotive. The Porsche was, at least, the second vehicle stolen from Bert Smith Automotive in 2011. The theft of the Porsche occurred because Bert Smith Automotive did not take the reasonable and necessary measures to secure the Porsche.

14.

15.

16.

17.

18.

19.

20.

21.

13.

Underwriters are currently defending BERT SMITH in the Underlying Lawsuit

subject to a full Reservation of Rights, timely issued and delivered to its Insured, BERT SMITH. 14. As plaintiff in the Underlying Lawsuit, BANKERS has an interest in the outcome

on this action for a Declaratory Judgment. IV. 15. THE INSURANCE POLICY

Underwriters issued to BERT SMITH a Garage Keepers Legal Liability Policy,

Certificate No. 409604, with effective dates of coverage from January 1, 2011, through January 1, 2012 (the "Policy"). A true and accurate copy of the Policy is attached as Exhibit "B" and is made a part hereof as if fully set forth herein.

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16.

At all times material hereto, the Policy included certain insuring provisions,

conditions, terms, definitions, limits, and exclusions, including those exclusions by endorsement. 17. At all times material hereto, the Policy included an Exclusion that excludes

coverage for "[a]ny losses occurring whilst units are left unattended" unless certain steps are taken, which exclusion was in effect at the time of the theft of the Porsche. 18. The Policy provides, in pertinent part, as follows: GARAGE KEEPERS LEGAL LIABILITY In consideration of the Premium paid hereon and the particulars and statements contained in the written Proposal, a copy of which is attached hereto, which particulars and statements are warranted by the Assured to be true and are incorporated herein, the Underwriters hereby agree to indemnify the Assured, subject to the limits set against each location in the Schedule, in respect of all sums which the Assured shall become obligated to pay by reason of liability imposed by law for direct loss or damage, hereinafter called loss, to units which are the property of others and in the custody of the Assured for storage, repair or safekeeping sustained under those coverages for which a specific premium is set opposite thereto in the Schedule of this Policy. SUBJECT ALWAYS TO THE TERMS OF THE DEDUCTIBLE CLAUSE DEFINITION OF PERILS
*#**

Section B - Theft This section covers theft, larceny, robbery or pilferage.

DEFINITIONS UNIT means types of units as specified in the Schedule and includes their equipment permanently attached thereto. NAMED LOCATION means the location or space within the location used by the Assured as a place for storage, repair or safekeeping of units at each address as shown in the Schedule.

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EXCLUSIONS

This insurance does NOT cover:

****

3. Any losses occurring whilst units are left unattended, unless the doors, trunk and windows are secured and locked, the ignition, door and trunk keys are removed from the unit and placed in a secure place which is not accessible to the public.
****

CONDITIONS
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3. MISREPRESENTATION AND FRAUD. This entire Insurance shall be void if the Assured has concealed or misrepresented any fact or circumstance concerning this Insurance or the subject matter hereof or in the case of any fraud, attempted fraud or false swearing by the Assured, touching any matter relating to this Insurance or the subject matter hereof, whether before or after a loss.

UNITS COVERED Units which are the property of others and in the custody of the Assured for storage, repair or safekeeping.
****

IV. 19. forth herein. 20.

COUNT I - DECLARATORY RELIEF

Underwriters re-assert and re-allege allegations 1 through 19 above as if fully set

An actual, present, and existing controversy exists between Underwriters and the

Defendants with respect to the existence or exclusion of coverage under the Policy for BANKERS's claims against BERT SMITH, and the parties' respective rights and duties under the Policy, if any. As such, there is a bona fide, actual, and practical need of sufficient

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immediacy and reality to warrant a judicial determination as to such things that include, but are not limited to, whether the Policy provides coverage for and/or excludes coverage for the claims by BANKERS, including, but not limited to those alleged by BANKERS in the Underlying Lawsuit. 21. Defendants have or will contend that the Policy affords coverage for the theft of

the Porsche and that UNDERWRITERS are required to defend, indemnify, or pay proceeds or damages to or on behalf of BERT SMITH in relation to the claims asserted in the Underlying Lawsuit brought by BANKERS. 22. Underwriters contend that, among other things, the theft occurred whilst the

Porsche was left unattended. 23. Underwriters contend that, among other things, the doors, trunk and windows of

the Porsche were not secured and locked. 24. Underwriters contend that, among other things, the ignition, door and trunk keys

were not placed in a secure place which is not accessible to the public. 25. Underwriters contend that, among other things, BERT SMITH made

misrepresentations in its application for insurance which, pursuant to the terms of the Policy, make the Policy void. 26. Underwriters contend that the Policy is void and/or that the theft of the Porsche is

excluded under the Policy under the above-quoted exclusion, and that Underwriters are not required to defend, indemnify, or pay proceeds or damages on behalf of or to any of the Defendants for the claims asserted in the Underlying Lawsuit, or any other lawsuits arising out of the theft of the Porsche.

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27.

Underwriters seek a judicial determination and declaration as to their rights,

status, and other legal and equitable relations in, to, and with reference to the Policy. 28. In addition to the foregoing, Underwriters plead all other conditions, terms,

warranties, limits, definitions, and exclusions of the Policy that may also be found to be applicable. 29. occurred. WHEREFORE, Underwriters pray for a declaratory judgment against Defendants, including, but not limited to the following: a. The Policy issued by Underwriters does not insure or cover any damages arising All conditions precedent to filing this action have been performed or have

from the theft of the Porsche; b. The Policy issued by Underwriters excludes, and therefore, does not apply to or

afford coverage for the theft of the Porsche, including, but not limited to those damages asserted by BANKERS against BERT SMITH in the Underlying Lawsuit; c. Underwriters have no duty to defend BERT SMITH against any claims asserted

by BANKERS in the Underlying Lawsuit or arising out of the theft of the Porsche; d. Underwriters have no duty to indemnify or pay any proceeds or damages to or on

behalf of the Defendants, including BANKERS, BERT SMITH and ROMERO, as a result of the claims asserted in the Underlying Lawsuit or arising out of the theft of the Porsche; e. Underwriters be granted such other and further declaratory relief as the Court may

deem just and proper, together with attorneys fees, costs, and expenses incurred in bringing this action.

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DEMAND FOR JURY TRIAL Plaintiff, Underwriters, hereby demand a trial by jury. DATED: T ^ \\ ,2012.

By: (AX~

CHRISTOPHER S. Fla. Bar No. 177600 cmorin@mmhlaw.c0m JENNIFER M. CLARK Fla. Bar No. 22434 jclark@mmhlaw.com MURRAY, MORIN & HERMAN, P.A. 101 East Kennedy Boulevard, Suite 1810 Tampa, Florida 33602 Off.: (813)222-1800 Fax: (813)222-1801 Trial Counsel for Plaintiff, Underwriters

4-/1^

%JS 44

Case8:12-cv-00115-JSM-TGW Document 1-1 Filed 01/19/12 Page 1 of 1 PagelD 10 (Rev. 12/07) CIVIL COVER SHEET
DEFENDANTS Bert Smith Oldsmobile, Inc., and Bankers Standard Insurance Company a/s/o J.C. and Erin Romero
County of Residence of First Listed Defendant P i n e l l a s C o u n t y , FL (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED. Attorneys (If Known)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS Certain Interested Underwriters at Lloyd's London, Subscribing to Certificate No. 409604
(b) County of Residence of First Listed Plaintiff London, (EXCEPT IN U.S. PLAINTIFF CASES) England

(c)

Attorney's (Firm Name, Address, and Telephone Number)

Christophers. Morin, Esq., Murray, Morin & Herman, P.A., 101 E. Kennedy Blvd., Ste 1810, Tampa, FL 33602
II. D I BASIS O F JURISDICTION U.S. Government Plaintiff U.S. Government Defendant (Place an "X" in One Box Only) III. G 3 Federal Question (U.S. Government Not a Party) 4 Diversity (Indicate Citizenship of Parties in Item III) Citizen or Subject of a Foreign Country IH 3 0 3 C I T I Z E N S H I P O F P R I N C I P A L P A R T I E S ( P l a c e an "X" in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF Citizen of This State O 1 OI Incorporated or Principal Place O 4 SI 4 of Business In This State Citizen of Another State O 2 0 2 Incorporated and Principal Place of Business In Another State Foreign Nation O 5 0 6 0 5 0 6

D 2

IV. NATURE OF SUIT

1 $3 O O D (OMRU 1

(Place an "X" in One Box Only) I OK IS PERSONAL INJURY O 362 Personal Injury Med. Malpractice O 365 Personal Injury Product Liability D 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY O 370 Other Fraud D 371 Truth in Lending D 380 Other Personal Property Damage D 385 Property Damage Product Liability SBRISJONERfpiEiEmONSif D 510 Motions to Vacate Sentence Habeas Corpus: a 530 General O 535 Death Penalty O 540 Mandamus & Other a 550 Civil Rights O 555 Prison Condition

EOREITlJREffiEISSIirYK O 610 Agriculture a 620 Other Food & Drug O 625 Drug Related Seizure ofProperty2IUSC881 O 630 Liquor Laws O 640 R.R.& Truck a 650 Airline Regs. O 660 Occupational Safety/Health D 690 Other O D O O D O

110 Insurance PERSONAL INJURY 120 Marine D 310 Airplane 130 Miller Act Airplane a 315 Liability Product 140 Negotiable Instrument 150 Recovery of Overpayment a 320 Assault, Libel & & Enforcement of Judgment Slander 0 151 Medicare Act Federal a 330 LiabilityEmployers' O 152 Recovery of Defaulted Student Loans a 340 Marine Product (Excl. Veterans) Marine a 345 Liability 153 Recovery of Overpayment of Veteran's Benefits a 350 Motor Vehicle O 160 Stockholders' Suits Motor a 355 ProductVehicle O 190 Other Contract Liability O 195 Contract Product Liability Other a 360 Injury Personal O 196 Franchise ISSMSSREAEEROPERTY CIVIL RIGHTS 0 210 Land Condemnation D 441 Voting D 220 Foreclosure Employment a 442 Housing/ D 230 Rent Lease & Ejectment a 443Accommodations D 240 Torts to Land a 444 Welfare O 245 Tort Product Liability O 290 All Other Real Property a 445 Amer. w/Disabilities Employment Amer. a 446Other w/Disabiliu'es 440 Other Civil Rights

O O D

I.\M.KI I'n N mm. m oiiiius-i \ n u s I O 422 Appeal 28 USC 158 D 400 State Reapportionment D 423 Withdrawal D 410 Antitrust 28 USC 157 D 430 Banks and Banking D 450 Commerce PROPERTY RIGHTS D 460 Deportation D 820 Copyrights D 470 Racketeer Influenced and D 830 Patent Corrupt Organizations D 840 Trademark O 480 Consumer Credit O 490 Cable/Sat TV Selective Service o 810 Securities/Commodities/ MII i t i M i i m n 850 i mmmmmmmm O 861HIA(I395ff) a Exchange 710 Fair Labor Standards O 862 Black Lung (923) Customer Challenge Act a 875 12 USC 3410 720 Labor/Mgmt. Relations O 863 DIWC/DIWW (405(g)) 730 Labor/Mgmt.Reporting O 864 SSID Title XVI Other Statutory Actions a 890 Agricultural Acts & Disclosure Act O 865 RSI (405(g)) a 891 FEDERAL TAX SUITS 740 Railway Labor Act a 892 Economic Stabilization Act D 870 Taxes (U.S. Plaintiff 790 Other Labor Litigation a 893 Environmental Matters 791 Empl. Ret. Inc. or Defendant) Energy Allocation Act a 894 Freedom of Information D 871 IRSThird Party Security Act a 895 Act 26 USC 7609 a 900Appeal of Fee Determination IMMK.RMION 462 Naturalization Application Under Equal Access 463 Habeas Corpus to Justice Alien Detainee Constitutionality a 950 State Statutes of 465 Other Immigration Actions

V. O R I G I N 8 1 Original Proceeding

(Place an "X" in One Box Only) 2 Removed from O State Court

Remanded from Appellate Court

O 4 Reinstated or Reopened

5 Transferred from F ? ,

Multid

jstrjct Litigation

Appeal to District Juag?tfrm Magistrate Judgment

Qitethe ITS, Cixil,S.t3tutejjnder wWch vqua^e filing (Do not cite jurisdictional statutes unless diversity):

VI. CAUSE OF ACTION

VII. R E Q U E S T E D IN COMPLAINT:

Brief description of cause:

Declaratory Judgment
CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 (See instructions): DEMAND! CHECK YES only if demanded in complaint: JURY DEMAND: Sf Yes O No

JS

VIII. RELATED CASE(S) IF ANY

DATE

JUDGE SIGNATUREDF ATTI EY OF RECORD

DOCKET NUMBER

FOR OFFICE USE ONLY RECEIPT #

hl_
)2AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE