Roughriders Baseball Partners, LP, dba Frisco Roughriders et al v. Great American Assurance Company

Filing 1

COMPLAINT against Great American Assurance Company ( Filing fee $ 350 receipt number 0540-2573285.), filed by Roughriders Baseball Partners, LP, dba Frisco Roughriders, Roughriders Baseball, LLC. (Attachments: # 1 Civil Cover Sheet)(Hays, Susan) (Additional attachment(s) added on 7/16/2010: # 2 Exhibit A) (baf, ).

Roughriders Baseball Partners, LP, dba Frisco Roughriders et al v. Great American Assurance Company

Doc. 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION ROUGHRIDERS BASEBALL PARTNERS, LP, dba FRISCO ROUGH RIDERS, and ROUGHRIDERS BASEBALL, LLC v. GREAT AMERICAN ASSURANCE COMPANY § § § § § § § § §

No.

PLAINTIFFS' ORIGINAL COMPLAINT A. Parties 1. Plaintiff Roughriders Baseball Partners, LP, dba Frisco Rough Riders

("Roughriders LP") is a partnership organized under the laws of Delaware and registered as a foreign limited partnership in Texas. 2. Plaintiff Roughriders Baseball, LLC ("Roughriders LLC"), is a company

organized under the laws of Delaware and registered as a foreign limited liability company in Texas. Roughriders LLC is the general partner of Roughriders LP. 3. Defendant Great American Assurance Company ("GAAC") is a corporation that

is incorporated under the laws of Ohio, and authorized to do business in Texas by the Texas Department of Insurance. Defendant has its principal place of business in the State of Ohio.

Defendant may be served with process by serving its registered agent, CT Corporation, at 350 N. St. Paul St., Dallas, Texas, 75201. B. Jurisdiction 4. This court has jurisdiction over the lawsuit under 28 U.S.C. § 1332(a)(1) because

the plaintiffs and the defendants are citizens of different states and the amount in controversy exceeds $75,000, excluding interest and costs.

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C. Venue 5. Venue is proper in this district under 28 U.S.C. § 1391(a)(2) because a substantial

part of the events of omissions giving rise to this claim occurred in this district. This lawsuit concerns whether an insurance policy insuring, in part, Plaintiffs' business operations and the Roughriders' facility in Frisco, Collin County, Texas, covers damages arising from an accident that occurred at the Collin County facility. In addition, the lawsuit for which Plaintiffs seek insurance coverage was venued in the 380th District Court, Collin County, Texas. D. Conditions Precedent 6. All conditions precedent have been performed or have occurred. E. Facts 7. Plaintiffs operate a minor league baseball team and ballpark facility in Frisco,

Texas. Defendant GAAC is their insurer for a general liability policy. The parties entered a contract of insurance, Policy No. PAC 558242002, providing coverage from February 2006 to February 2007 ("the Policy"). Both plaintiffs are named insured under the Policy. The Policy provides that GAAC will have a duty to defend suits seeking damages because of bodily injury. 8. In May 2006, Discount Tire Company held an employee picnic at the

Roughriders' ballpark. During this event a large metal pole fell and struck an eight-year old boy, seriously injuring him and leaving him permanently disabled. The child and his family sued Roughriders LP and Roughriders LLC in June L. Moore-Propes, individually and as parent and next friend of Kerry Hall, IV, a minor child v. Roughriders Baseball Partners, LP, Roughriders Baseball, LLC, and Rebound Unlimited, Inc., No. 380-4084-07, 380th Dist. Ct., Collin County, Texas, alleging claims for negligence and premises liability/attractive nuisance (the "MoorePropes Lawsuit"). See Third Amended Petition, Moore Propes v. Roughriders Baseball

Partners, LP, et al., No. 380-4084-07. (Attached as Ex. A.)

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9.

The Third Amended Petition included claims based on the failure to control

crowds including small children and the failure to adequately staff the picnic in order to control the crowds that included small children, resulting in the injuries to Kerry Hall when he and other children were standing in a dangerous area. The Petition also alleged that Roughriders was negligent in failing to vet and hire a competent contractor that would provide sufficient staff to control the crowds of children and in failing to adequately supervise the activities of the contractor. 10. The Plaintiffs timely provided notice of the Moore-Propes Lawsuit to GAAC in

accordance with the terms of the Policy. Plaintiffs have fulfilled all conditions precedent to coverage under the Policy. 11. GAAC responded to the Plaintiffs' tender of the Moore-Propes Lawsuit by

denying any obligation to defend. The last denial of coverage -- after tender of the Third Amended Petition -- occurred on June 8, 2010. 12. Accordingly, Plaintiffs had to retain the services of various counsel to provide a

defense against the Lawsuit. In defending against the Lawsuit, Plaintiffs incurred significant defense costs and ultimately a settlement amount, both of which are payable by GAAC under the terms of the Policy. 13. By refusing to fulfill its defense obligations, GAAC has caused significant

damage to the Plaintiffs. F. Count 1 ­ Breach of Contract 14. 15. 16. Policy.
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Paragraphs 1-13 are incorporated by reference. The Plaintiffs entered a valid contract with GAAC in their purchase of the Policy. The Plaintiffs have fully performed all conditions precedent to coverage under the

17.

The Policy requires GAAC to defend the Plaintiffs in the Moore-Propes Lawsuit.

Alternatively, the Policy is ambiguous and must be interpreted in favor of coverage. Therefore, GAAC was required to defend the Plaintiffs the Moore-Propes Lawsuit under the Policy. 18. GAAC breached its contract with the Plaintiffs by refusing to defend them in the

Moore-Propes Lawsuit and by failing to pay claims made under the Policy. 19. Because GAAC refused to participate in the payment of defense fees and

expenses, Plaintiffs have paid and are continuing to pay those fees and expenses. Moreover, because GAAC has refused to participate in settlements, Plaintiffs have been required to fund settlements. 20. GAAC's refusal to defend, indemnify, or participate in the defense and settlement

of claims constitutes a material breach of contract causing Plaintiffs to suffer financial losses and other harm. 21. GAAC's breach of contract has proximately caused damages to the Plaintiffs in

an amount that greatly exceeds the sum of $75,000. G. Count 2 ­ Prompt Payment of Claims 22. 23. Paragraphs 1-21 are incorporated by reference. GAAC has failed to make timely payment of claims, pursuant to Texas Insurance

Code Section 542.051, et seq. 24. Texas Insurance Code Section 542.060 provides that, in addition to the amount of

the claim, an insurer who fails to comply with the deadlines for payment is liable for interest on the amount of the claim at the rate of 18% a year as damages, together with reasonable attorneys' fees. H. Count 3 ­ Declaratory Judgment 25. Paragraphs 1-24 are incorporated by reference.

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26.

An actual, justiciable controversy exists between the Plaintiffs and GAAC

regarding GAAC's coverage obligations with respect to the Moore-Propes Lawsuit. 27. Plaintiffs seek a declaratory judgment pursuant to 28 U.S.C. §§ 2201, 2202 and

Federal Rule of Civil Procedure 57 that GAAC has a duty to defend Plaintiffs in the MoorePropes Lawsuit under the Policy and owes Plaintiffs indemnification for the damages alleged and now paid per the Moore-Propes Lawsuit. I. Damages 28. 29. Paragraphs 1-27 are incorporated by reference. As a direct and proximate cause of GAAC's breach, Plaintiffs suffered damages,

namely the amount that remains due to the Plaintiffs under the terms of the Policy. 30. Plaintiffs also claim damages in the form of the 18% interest allowed by Chapter

542, Texas Insurance Code. J. Attorneys' Fees 31. 32. Paragraphs 1-30 are incorporated by reference. Due to GAAC's actions, the Plaintiffs have been required to retain the services of

various attorneys. Plaintiffs have agreed to pay those attorneys a reasonable fee for services necessarily rendered and to be rendered in this action. Pursuant to Section 542.060, Texas Insurance Code, and Sections 37.001 and 38.001, Texas Civil Practice & Remedies Code, Plaintiffs are entitled to an award of reasonable attorneys' fees against including the trial of this lawsuit, any additional actions before this Court, any appeal of the judgment of this Court, and for all efforts made by Plaintiffs to enforce the judgment or any orders of this Court. K. Prayer For these reasons, Plaintiffs ask for judgment against GAAC for the following:

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a.

Actual damages in an amount to exceed $75,000, including the amount that

remains due to the Plaintiffs under the Policy; b. c. d. e. f. Prejudgment and post-judgment interest; 18% interest on the claim amount; Reasonable attorneys' fees; Costs of suit; and All other relief the Court deems appropriate.

Dated: July 14, 2010 Respectfully submitted, _/s/ Susan Hays __ GEISLER HAYS, L.L.P. Susan Hays Texas Bar No. 24002249 Laura Benitez Geisler Texas Bar No. 24001722 2911 Turtle Creek Blvd., Suite 940 Dallas, Texas 75219 214-367-6020 214-432-8273 (fax) [e-mail] [e-mail] ATTORNEYS FOR PLAINTIFFS

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EXHIBIT "A"