certain interested underwriters at lloyd's london v. bert smith oldsmobile, inc. et al complaint

8/3/2019 CERTAIN INTERESTED UNDERWRITERS AT LLOYD'S LONDON v. BERT SMITH OLDSMOBILE, INC. et al Complaint

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Case 8:12-cv-00115-JSM-TGW Document 1 Filed 01/19/12 Page 2 of 9 Pa gelD 2

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 OLDSMOBILEd/b/a

BERT SMITH AUTOMOTIVE d/b/a BERT SMITH INTERNATIONALd/b/a BERT SMITH

EURO COLLECTION d/b/a BERT SMITH PORSCHE (hereinafter "BERT SMITH"), was and

is a Delaware co rporation with its principal place of business at 3800 34 Street North, St

Petersburg, Hillsborough County, Florida.

3. At all times material hereto, Defendant BANKERS STANDARD INSURANCE

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 Walnu

Street, Philadelphia, Pennsylvania 19106-3703.

4. At all times material hereto, J.C. and Erin Romero (hereinafter "Rom ero"), owned

a 2011 Porsche Panamera with VIN number WP0AC2A78BL090163 (hereinafter the

"Porsche"), which was insured against loss by BANKERS.

II . JURISDICTION AND VENUE

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

2201,and Article III, 2 of the United States C onstitution.

6. The ma tter in controve rsy exceeds, exclus ive of interest and costs, the Seventy-

Five Thousand Dollar ($75,000.00) sum specified by 28 U.S.C. 1332.

7. There is complete diversity of citizenship as defined in 28 U.S.C. 1332.

8. Venue is proper in the Middle District of Florida because it is the judicial district

in which a substantial part of the events or om issions giving rise to the claim occurred, pursuan


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Case 8:12-cv-00115-JSM-TGW Document 1 Filed 01/19/12 Page 3 of 9 PagelD 3

to28 U.S .C. 1391 .

III . COMM ON ALLEGA TIONS

9. 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

prem ises for repair and was allegedly stolen from BER T SM ITH'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/oJ. 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 "Un derlying Lawsuit"). A copy of

the Complaint filed by BANKERS against BERT SMITH in the Underlying Lawsuit is attached

hereto as Exhibit " A" an d is incorporated herein in its entirety by reference.

12. BANKERS's Com plaint in the Underlying Law suit alleges, in part, the following

against BERT SM ITH:

9. On March 2,2011, the Porsche was delivered to Bert SmithAutomotive.

10. On March 2,2011, Herb Schimkus, as a representative and servicemanager for Bert Smith Automotive, took possession of thePorsche when it was brought to Bert Smith Automotive.

11. The Po rsche arrived at Bert Sm ith Autom otive som etime after5:00p.m. on March 2,2011.

12. Herb Schimkus moved the Porsche and parked it in a service laneat Bert Smith Automotive at approximately 5:30 p.m.


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Case 8:12-cv-00115-JSM-TGW Document 1 Filed 01/19/12 Page 4 of 9 Pag elD 4

13. Herb Schimkus placed the keys to the Porsche inside a deskdrawer, which w as located in the Bert Smith Autom otive office.

14. The desk drawer in the office where the Porsche key was placeddid not have a lock on it.

15. Bert Smith Automotive had sole, actual, and exclusive possessionand control of the Porsche.

16. When Bert Smith Automotive was opened on March 3,2011, atapproximately 7:00 a.m., the Porsche was no longer at Bert SmithAutom otive and had been stolen.

17. The keys to the Porsche had been removed from the desk drawer inthe office.

18. The Porsche was stolen while in the sole, actual, and exclusivepossession and control of Bert Smith Automotive.

19. There are no cameras where the Porsche was parked at Bert SmithAutomotive.

20. The Porsche was, at least, the second vehicle stolen from BertSmith Automotive in2011.

21. The theft of the Porsche occurred because Bert Smith Automotivedid not take the reasonable and necessary measures to secure thePorsche.

13. Underwriters are currently defending BERT SMITH in the Underlying Lawsuit

subject to a full Reservation of Righ ts, timely issued and delivered to its Insured, BER T SM ITH

14. As plaintiff in the Underlying Lawsuit, BAN KER S has an interest in the outcome

on this action for a Declaratory Judgm ent.

IV. THE INSURANCE POLICY

15. 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, term s, definitions, lim its, 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 ofthe theft of the Porsch e.

18. The Policy pro vides, in pertinent part, as follows:

GARAGE KEEPERS LEGAL LIABILITY

In consideration of the Premium paid hereon and the particulars and statementscontained in the written Proposal, a copy of which is attached hereto, whichparticulars and statements are warranted by the Assured to be true and areincorporated herein, the Underwriters hereby agree to indemnify the Assured,subject to the limits set against each location in the Schedule, in respect of allsums which the Assured shall become obligated to pay by reason of liabilityimposed by law for direct loss or damage, hereinafter called loss, to units whichare the property of others and in the custody of the Assured for storage, repair orsafekeeping sustained under those coverages for which a specific premium is setopposite thereto in the Sched ule 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 theirequipment permanently attached thereto.

NAMED LOCATION means the location or space within the location used by theAssured as a place for storage, repair or safekeeping of units at each address asshown in the Schedule.


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EXCLUSIONS

This insurance doesNOT cover:

* * * *

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

CONDITIONS

* * * *

* * * *

3. MISREPR ESENT ATION AND FRA UD. This entire Insurance shall bevoid if the Assured has concealed or misrepresented any fact or circumstanceconcerning 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 tothis Insurance or the subject matterhereof, whether before or after a loss.

UNITS COVERED

Units which are the property of others and in the custody of the Assured forstorage, repair or safekeeping.

* * * *

IV. COUNT I - DECLARATORY RELIEF

19. Und erwriters re-assert and re-a llege allegations 1 throug h 19 above as if fully set

forth herein.

20. 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 abona 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 claim

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 thePorsche 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 no

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 o

the theft of the P orsche.


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Case 8:12-cv-00115-JSM-TGW Document 1 Filed 01/19/12 Page 8 of 9 Pa gelD 8

27. Underw riters seek a judicial determination and declaration as to their rights,

status, and other legal and equitable relations in, to, and with reference to th e 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. All conditions precedent to filing this action have been performed or have

occurred.

WHEREFORE, Underwriters pray for a declaratory judgment against Defendants,

including, but not limited to the following:

a. The Policy issued by Underw riters does not insure or cover any damages arising

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 asserte

by BANKE RS against BERT SMITH in the Underlying Lawsuit;

c. Underw riters have no duty to defend BER T SMITH against any claims asserted

by BA NK ERS in the Underlying Lawsuit or arising out of the theft of the Porsche;

d. Underw riters have no duty to indemnify or pay any proceeds or damages to or on

behalf of the Defendants, including B ANK ERS, B ERT SMITH and ROM ERO , as a result of the

claims asserted in the Underlying Lawsuit or arising out of the theft of the Porsche;

e. Un derw riters be granted such other and further declaratory reliefas the Court may

deem just and proper, together with attorneys fees, costs, and expenses incurred in bringing thi

action.


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DEMAND FOR JURY TRIAL

Plaintiff, Underwriters, hereby demanda trial by jury.

DATED: T ^ \\ ,2012 .

By: (AX~ 4 - / 1 ^CHRISTOPHER S.Fla. Bar No. [email protected] JENNIFER M. CLARKFla. Bar No. [email protected], MORIN & HERMA N, P.A.101 East Kennedy Boulevard, Suite1810Tampa, Florida 33602Off.: (813)222-1800Fax: (813)222-1801Trial Counselfor Plaintiff, Underwriters
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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Case8:12-cv-00115-JSM-TGW Document 1-1 Filed01/19/12 Page 1 of 1 PagelD 10%J S 44 (Rev. 12/07) CIVIL COVER SHEETTh e JS 44 civil cover shee t and the information c onta ined herein neith er replace nor suppleme nt the fi l ing and service of plead ings or other papers as required by law,by local rules of court . This form, appro ved by the Judicial Con ference o f the United States in Septem ber 1 974, is required for the use of the Clerk of Cou rt for the pth e civil doc ket sh eet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAIN TIFFSCertain Interested Underwriters at Lloyd's London, Subscribing toCertificate No. 409604

( b ) County ofResidenceof FirstL is te d P la in ti ff L o n d o n , E n g l a n d(EXCEPT IN U.S. PLAINTIFF CASES)

( c ) At to rn ey 's (Firm Name, Address, and Telephone Number)

Christophers. Morin, Esq., Murray, Morin & Herman, P.A., 101 E.Kennedy Blvd., Ste 1810, Tampa, FL 33602

DEFENDANTSBert Smith Oldsmobile, Inc., and Bankers Standard InsuraCompany a/s/o J.C. and Erin Romero

C o u n ty o f R e s id e n c e o f F i rs t L i st ed D e fe n da n t P i n e l l a s C o u n t y , (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THLAND INVOLVED.

Atto rneys (If Known)

I I . B A S I S O F J U R I S D I C T I O N (P lace an " X" in O ne Box O nly )

D I U.S. GovernmentPlaintiff

D 2 U . S . GovernmentDefendant

G 3 Federal Question( U . S . Government Not a Party)

4 Diversity

(Indicate Citizenship ofParties in Item III)

I I I . C I T I Z E N S H I P O F P R I N C I P A LP A R T IE S( P la ce an "X" in One Box for (For Diversity CasesOnly) and One Box for Defendant)

PTF DEF PTF DECitizenof This State O 1 O I Incorporatedor Principal Place O 4 SI 4

of Business In This State

Citizen of Another State O 2 0 2 Incorporatedand Principal Place O 5 0 of Business In A nother State

Citizen or Subject of aForeign Country

IH 3 0 3 Foreign Nation 0 6 0

IV. NATURE OF SUIT1 ( O M R U 1$3 110 InsuranceO 120 MarineO 130 Miller Act 140 Negotiable InstrumentD 150 Recoveryof Overpayment

& Enforcement of Judgment0 151 Medicare ActO 152Recovery of Defaulted

Student Loans(Excl. Veterans)

153 Recoveryof Overpaymentof Veteran's Benefits

O 160 Stockholders' SuitsO 190 Other ContractO 195Contract Product LiabilityO 196FranchiseISSMSSREAEEROPERTY

0 210 Land CondemnationD 220 ForeclosureD 230 Rent Lease & EjectmentD 240 Torts to LandO 245 Tort Product LiabilityO 290 All Other Real Property

(Place an "X" in One Box Only)I O K IS

D

aa

a

aa

aa

a

PERSONAL INJURY310 Airplane315 Airplane Product

Liability320 Assault, Libel &

Slander330 Federal Employers'

Liability340 Marine345 Marine Product

Liability350 Motor Vehicle355 Motor Vehicle

Product Liability360 Other Personal

InjuryCIVIL RIGHTS

Daa

aa

a

a

441 Voting442 Employment443 Housing/

Accommodations444 Welfare445 Amer. w/Disabilities-

Employment446 Amer.w/Disabiliu'es-

Other440 Other Civil Rights

PERSONAL INJURYO 362 Personal Injury -

Med. MalpracticeO 365 Personal Injury -

Product LiabilityD 368 Asbestos Personal

Injury ProductLiability

PERSONAL PROPERTYO 370 Other FraudD 371 Truth in LendingD 380 Other Personal

Property DamageD 385 Property Damage

Product Liability

SBRISJONERfpiEiEmONSif

D 510 Motions to VacateSentenceHabeas Corpus:

a 530 GeneralO 535 Death PenaltyO 540 Mandamus & Othera 550 Civil RightsO 555 Prison Condition

E ORE I T l JRE ff iE I SSI i r YK

O 610 Agriculturea 620 Other Food & DrugO 625 Drug Related Seizure

ofProper ty2IUSC881O 630 Liquor LawsO 640 R.R.& Trucka 650 Airline Regs.O 660 Occupational

Safety/HealthD 690 Other

i mmmmmmmmO 710Fair Labor Standards

ActD 720Labor/Mgmt.RelationsO 730 Labor/Mgmt.Reporting

& D isclosure ActO 740 Railway Labor Act

D 790 Other Labor LitigationO 791 Empl. Ret. Inc.

Security Act

I M M K . R M I O NO 462 Naturalization ApplicationO 463 Habeas Corpus -

Alien DetaineeD 465 Other Immigration

Actions

I.\M.KI I'n N mm .O 422 Appeal 28 USC158D 423 Withdrawal

28 U SC 157

PROPERTY RIGHTSD 820 CopyrightsD 830 PatentD 840 Trademark

M I I i t i M i i m nO 861HIA(I395ff)O 862 Black Lung (923)O 863 DIWC/DIWW(405(g))O 864 SSIDTitle XVIO 865 RSI (405(g))

FEDERAL TAX SUITS

D 870 Taxes(U .S . Plaintiffor Defendant)

D 871IRSThirdParty26 USC 7609

m oiiiius-i \ n u s DDDDDD

OOo

aa

aaa

aaa

a

a

400 State R eapportionme410 Antitrust430 Banks and Banking450 Commerce460 Deportation470 Racketeer Influenced

Corrupt Organization480 Consumer Credit490 Cable/Sat TV810 Selective Service850 Securities/Commodit

Exchange875 Customer Challenge

12 USC3410890 Other Statutory Actio891 Agricultural Acts892 Economic Stabilizati

893 Environmental Matt894 Energy A llocation A895 Freedom of Informat

Act900Appeal of Fee Determ

Under Equal Accessto Justice

950 Constitutionality ofState Statutes

V . O R I G I N (Place an "X" in One Box Only) Appeal to8 1 Orig inal O 2 Rem oved from O 3 Remanded from O 4 Reinstated or 5 Transferred from 0 g M u l t i dj s t r j c t Q y J u a g ?t f r m

Pro c e e d in g S t a te C o u r t Ap p e l l a te C o u r t R e o p e n e d F ? , L i t ig a t i o n Magist ra teJu d g me n t

VI. CAUSE OF ACTION

Qi te the ITS, Cixi l ,S . t3tutej jnder wWch v qua^ ef il ing (Do not c i te ju ri s d ic t ion al s ta tu tes un less d ivers i ty ):

Brief descrip t ion of cause :Declaratory Judgment

V I I . R E Q U E S T E D I N C H E C K I F T H I S I S A C L A S S A C T I O N D E M A N D !C O M P L A I N T : U ND ER F .R .C .P . 2 3

CHECK YES only i f demanded in compla in

J U R Y D E M A N D : Sf Y es O N o

VIII. RELATED CASE(S)IF ANY

(See instructions):J U D G E D O C K E T N U M B E R

DATE hl_ 2- m SIGNATUREDF ATTI EYO F RECORDFOR OFFICE USE ONLY

RECEIPT# AMOUNT APPLYINGIFP JUDGE MAG. JUDGE

certain interested underwriters at lloyd's london v. bert smith oldsmobile, inc. et al complaint

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