bankers standard insurance company v. coplen construction inc et al complaint

7/29/2019 BANKERS STANDARD INSURANCE COMPANY v. COPLEN CONSTRUCTION INC et al Complaint

1/15

case3:13-cv-00214-PPS-CAN document 1 filed 03/20/13 p a g e r f ^ ? ^ 7 ^

IN THE UNITED STATES DISTRICT COURTFOR THE NORTH ERN DISTRICT OF INDIANAjp 1 li 1! l p , j )

MAR i lGOJloM

Case No. u s .")i>;'.^'ui vOuR' .^ , ,

BANKERS STANDARD INSURANCECOMPANY as subrogee of Jerry andNorma Ferguson,

Plaintiff.v .COPLEN C ONSTRUCTION, INC., ELITECONTRACTING SERVICES, INC.,TRADESMEN INTERNATIONAL, INC.,HEISLER CONSTR UCTION, LLC andDOMOTECK FLOOR WARMINGSYSTEM S, INC.,

Defendants.COMPLAINT

NOW COMES the Plaintiff, BANKERS STANDARD INSURANCE COMPANY assubrogee of Jen-y and Norma Ferguson, by and through its attorneys, COZEN O'CON NO R, andfor its Complaint against Defendants, Coplen Construction, Inc., Elite Contracting Services, Inc.,Tradesmen International, Inc., Heisler Construction, LLC and Domoteck Floor WarmingSystems, Inc., states as follows:

THE PARTIES1. Plaintiff, Bankers Standard Insurance Company ("Bankers"), is a Pennsylvania

corporation duly licensed to do business in the State of Indiana with a principal place of businesslocated at 436 Walnut Street, P. O. Box 1000, Philadelphia, Pennsylvania 19105.

2. Plaintiffs insured, Jerry and Norma Ferguson ("the Fergusons"), are residents ofthe State of Indiana and the owners of the real and personal property located at 5 Ems T-35 Lane,Lees burg, Indiana ("subject residence'*). At all times relevant and material hereto, Bankers had

LEGAL\15511044\1


2/15

case 3:13-cv-00214-PPS-CAN document 1 filed 03/20/13 page 2 of 15

in full force and effect a policy of insurance issued to its insureds, the Ferguso ns, that providedinsurance for their property located at the subject residence.

3. Upon information and belief, Defendant Coplen Construction, Inc. ("CoplenConstruction"), is an Indiana corporation with a principal place of business located at 475Anchorage Road, #13, W arsaw, Indiana. At all times relevant. Defendant Coplen Constructiondid business as a general contractor for residential construction.

4. Upon information and belief, Defendant Elite Contracting Services, Inc. ("EliteContracting"), is an Indiana corporation with a principal place of business located at 1179 S. 550W.. W arsaw, Indiana. At all times relevant, Defendant Elite Contracting acted as an electricalsubcontractor to Defendant Coplen Construction for certain work, including the installation of aroof heating system during the construction of the subject residence.

5. Upon information and belief, Defendant Tradesmen International, Inc.("Tradesmen International"), is an Ohio corporation with a principal place of business located at9760 Shepard Road, Macedo nia, Ohio. At all times relevant, Defendant Tradesm en Internationalacted as an electrical sub-subcontractor to Defendant Elite Contracting for certain work,including the installation of a roof heating system during the construction of the subjectresidence.

6. Upon information and belief, Defendant Heisler Construction, LLC ("HeislerConstruction"), is an Indiana corporation with a principal place of business located at 7580 W.No rthcrest Lan e, Claypo ol, Indiana. At all times relevant, Defendant Heisler Construction actedas an electrical sub-subcontractor to Defendant Elite Contracting for certain work, including theinstallation of a roof heating system during the construction of the subject residence.

LEGAL\15511044\1


3/15


7. Upon information and belief, Defendant Dom oteck Floor Warming Systems, Inc.("Domoteck"), is a Delaware corporation with its principal place of business located at 599 N.Edgewood Ave., Wood D ale, Illinois. At all times relevant, Defendant Dom oteck was in thebusiness of manufacturing and distributing roof .heating systems.

JURISDICTION AND VENUE8. The jurisdiction of this Court is invoked pursuant to the provisions of 28 U.S.C.

1332 by reason of the diversity of c itizenship of the parties w ho are citizens of different states,and the amount in controversy, exclusive of interest and costs, which exceeds the sum ofS75,000.00.

9. Venue is proper in this District, pursuant to 28 U.S .C. 1391, as this is thejudicial district in which the subject property is situated and in which a substantial part of theevents giving rise to the claim occurred.

COMMON ALLEGATIONS10. Upon information and belief, in 2009, Defendant Coplen Construction undertook

to act as general contractor in the construction of the subject residence, which included a roofheating system for the home's slate tile roof.

11. Each of the Defendants were involved in the installation of the roof heatingsystem.

12. As part of the construction of the subject residence, Coplen Constructionsubcontracted Defendant Elite Contracting to install the home's electrical systems.

13. Defendant Elite Contracting then sub-subcontracted Defendants TradesmenIntem ational and Heisler Co nstm ction to assist in the installation of the aforementioned electricalheating system for the home's slate roof.

LEGALM5511044M


4/15


14. Defendant Domoteck, designed, manufactured and placed the subject roof heatingsystem into the stream of commerce in its usual course of business and also assisted the otherDefendants with the installation of the roof heating system at the subject residence.

15. The roof heating system installed at the subject residence consisted of anelectrical cable covered in mesh insulation ("heat tape"), which radiates heat to the roof toprevent a build-up of ice and snow during wintery weather.

16. On or around January 19, 2012, the roof heating system at the subject residencewas activated and put into operation for the first time since its installation by the Defendants.

17. On or about January 19, 2012 , the heat generated by the roof heating systemignited nearby combustibles. The ensuing fire caused substantial dam age to the Ferguson 's realand personal property.

18. As a result of the fire, the Fergusons have made claims to Bankers pursuant totheir policy of insurance and Bankers has reimbursed its insureds for those claims in an amountin excess of $75,000.00. As such, Bankers Insurance is legally, equitably and contractuallysubrogated to the claims of the Fergusons against any responsible third parties, including thedefendants named herein.

COUNT ICOPLEN CONSTRUCTION, INC.

NEGLIGENCE19. Plaintiff incorporates paragraphs one (1) through eighteen (18) as though fully set

forth herein.20. At all relevant times, Coplen Construction, as general contractor of the subject

residence, owed the Fergusons a duty of care to perform all work in a safe and workmanlike

LEGAL\I5511044\1


5/15

case 3:13-CV-00214-PPS-CAN document 1 filed 03/20/13 page 5 of 15

manner and to properly oversee all work performed at the subject premises by subcontractorshired by Coplen Construction.

21. Defendant Coplen Construction, its agents, employees and/or subcontractorsbreached its aforesaid duties to the Fergusons in one or more of the following ways:

(a) Failed to adequately inspect and supervise the work of its employeesand/or subcontractors;(b) Failed to properly coordinate the work of its agents, workmen, servantsand subcontractors;(c) Failed to properly define the tasks and responsibilities of its agents,workmen, servants and subcontractors;(d) Failed to properly inspect the design and construction work of its agents,workmen, servants and subcontractors;(e) Failed to properly, adequately and/or safely install the roof heating systemin the subject residence;(f) Improp erly installed the roof heating system at the subject residence suchthat the system 's heat tape was installed underneath the Ferguson h om e'sslate shingles and in direct contact with the plywood underlayment andsupporting trusses;(g) Improp erly installed the roof heating system at the subject residence suchthat the system's heat tape was wrapped in foil-based insulation andsurrounded by cellulose insulation, which prevented the heat generated bythe system from properly dissipating through the roof;(h) Perm itted a dangerous or hazardous condition to exist during the roofheating system's installation, even though Defendant Coplen Constructionknew, or should have known, that the dangerous condition existed and/orcreated a serious risk of harm;(i) Failed to warn the Ferguso ns of the substantial risk of fire or similar peril

presented by the improper work done by its employees and/orsubcontractors;(j) Failing and/or omitting to do those things necessa ry to avoid anunreasonable risk of harm to the Fergusons' real and personal property;

LEGAL\I5511044\1


6/15


(k) Failing to comply with all other applicable codes, regulations, guidelines,policies, procedures and/or industry customs and/or practices; and(l) Otherwise failing to use due care under the circumstances.

22. As a direct and proximate result of the aforesaid neg ligent, careless and/orreckless acts and/or omissions, the Fergusons sustained real and personal property damage in anamount in excess of $75,000.00, exclusive of interest and costs, for which Defendant CoplenConstruction is legally liable.

Wherefore, BANKERS STANDARD INSURANCE COMPANY as subrogee of Jerryand Norm a F erguson, respectfully requests that this Court enter judg m ent in its favor and againstDefendant, Coplen Construction, Inc. in an amount in excess of $75,000.00.

COUNT IICOPLEN CO NSTRUCTION, INC.

BREACH OF WARRANTY23. Plaintiff incorporates paragraphs one (1) through eighteen (18) as though fully set

forth herein.24. In acting as the general co ntractor of the subject residence, Defendant Coplen

Construction wan-anted that the subject residence would be ha bitable and that all work that itoversaw would be performed in a workmanlike manner and in accordance with applicable codes,standards and practices.

25. Defendant Coplen Construction breached its express and/or implied warranties inone or more of the following ways:

(a) Failed to adequately inspect and supervise the work of its employeesand/or subcontractors;(b) Failed to properly coordinate the work of its agents, workmen, servantsand subcontractors:

LEGAL\15511044\1


7/15


(c) Failed to properly define the tasks and responsibilities of its agents,workmen, servants and subcontractors;(d) Failed to properly inspect the design and construction work of its agents,workmen, servants and subcontractors;(e) Failed to properly, adequately and/or safely install the roof heating systemin the subject residence;(f) Improperly installed the roof heating system at the subject residence suchthat the system 's heat tape was installed underneath the Ferguson h om e'sslate shingles and in direct contact with the plywood underlayment andsupporting trusses;(g) Imprope rly installed the roof heating system at the subject residence suchthat the system's heat tape was wrapped in foil-based insulation andsurrounded by cellulose insulation, which prevented the heat generated bythe system from properly dissipating through the roof;(h) Permitted a dangerous or hazardous condition to exist during the roofheating system's installation, even though Defendant Coplen Constructionknew, or should have known, that the dangerous condition existed and/orcreated a serious risk of harm;(i) Failed to warn the Fergusons of the substantial risk of fire or similar perilpresented by the improper work done by its employees and/orsubcontractors;(j) Failing and/or omitting to do those things necessary to avoid anunreasonable risk of harm to the Fergusons' real and personal property;(k) Failing to comply with all other applicable code s, regulations, guidelines,policies, procedures and/or industry customs and/or practices; and(1) Otherw ise failing to use due care under the circum stances.

26. Upon discovery of one or more of the aforesaid breaches of warranty, Plaintiffsinsureds gave prompt and reasonable notice to Defendant of its damag es, but Defendant hasfailed and refused to reimburse Plaintiff accordingly.

LEGAL\15511044\1


8/15


27. As a direct and proximate result of the aforesaid breaches of warranty, theFergusons sustained real and personal property damage in an amount in excess of $75,000.00,exclusive of interest and costs, for which D efendant C oplen Co nstruction is legally liable.

Wherefore, BANKERS STANDARD INSURANCE COMPANY as subrogee of Jerryand Norm a Ferguson , respectfully requests that this Court enter judg m ent in its favor and againstDefendant, Coplen Construction, Inc. in an amount in excess of $75,000.00,

COUNT IIICOPLEN CONSTRUCTION, INC.

BREACH OF CONTRACT28 . Plaintiff incorporates paragraphs one (1) through eighteen (18) as though fully set

forth herein.29. Prior to construction of the subject residence, a contract w as entered between the

Fergusons and Coplen Construction for the construction of the subject residence.30 . Due to its negligence, negligent supervision and subcon tracting, as detailed in

Coun ts I and II above at length, Defendant C oplen Co nstruction breached the aforementionedcontract, including any and all express and imp lied warranties contained therein, as well as allcomm on law express and implied w arranties.

31 . As a direct and proximate result of the aforesaid breach of contract, the Fergusonssustained real and personal property damage in an amount in excess of $75,000.00., exclusive ofinterest and costs, for which D efendant C oplen Construction is legally liable.

LEGAL\15511044\1


9/15


Wherefore, BANK ERS STANDARD INSURANC E COMPA NY as subrogee of Jerryand Norma Ferguson, respectfully requests that this Court enter judgment in its favor and againstDefendant, Coplen Construction, Inc. in an amount in excess of $75,000.00,

COUNT IVELITE CONTRACTING SER VICES, INC.

NEGLIGENCE32 . Plaintiff incorporates paragraphs one (1) through eighteen (18) as though fully set

forth herein.33 . At all relevant times, Elite Contracting owed the Fergusons a duty of care to

perform all work in a safe and workmanlike manner and to properly oversee all work performedat the subject premises by its selected sub-sub-contractors.

34 . Defendant Elite Contracting, its agents, employees and subcontractors, breachedits aforesaid duties to the Fergusons in one or more of the following w ays:

(a) Failed to adequately inspect and supervise the work of its employeesand/or subcontractors;(b) Failed to properly coordinate the work of its agents, workmen, servants

and subcontractors;(c) Failed to properly define the tasks and responsibilities of its agents,workmen, servants and subcontractors;(d) Failed to properly inspect the design and construc tion work of its agents,workmen, servants and subcontractors;(e) Failed to properly, adequately and/or safely install the roof heating systemin the subject residence;(f) Improperly installed the roof heating system at the subject residence suchthat the syste m's heat tape was installed underneath the Ferguson ho m e'sslate shingles and in direct contact with the plywood underlayment andsupporting trusses;(g) Imprope rly installed the roof heating system at the subject residence suchthat the system's heat tape was wrapped in foil-based insulation and

9LEGAL\15511044\1


10/15


surrounded by cellulose insulation, which prevented the heat generated bythe system from properly dissipating through the roof;(h) Perm itted a dangerous or hazardous condition to exist during the roofheating system's installation, even though Defendant Elite Contracting

knew, or should have known, that the dangerous condition existed and/orcreated a serious risk of harm;(i) Failed to warn the Ferguson s of the substantial risk of fire or similar perilpresented by the improper work done by its employees and/orsubcontractors;(j) Failing and/or omitting to do those things necessary to avoid anunreasonable risk of harm to the Fergusons' real and personal property;(k) Failing to com ply with all other applicable codes , regulations, guidelines,policies, procedures and/or industry customs and/or practices; and(1) Otherw ise failing to use due care under the circum stances.

35 . As a direct and proximate result of the aforesaid negligent, careless and/orreckless acts and/or omissions, the Fergusons sustained real and personal property damage in anamount in excess of $75,000.00, exclusive of interest and costs, for which Defendant EliteContracting is legally liable.

Wherefore, BAN KERS STANDARD INSURAN CE COMPA NY as subrogee of Jerryand Norma Ferguson, respectfully requests that this Court enter judgment in its favor and againstDefendant, Elite Contracting Services, Inc. in an amount in excess of $75,000.00,

COUNT VTRADESMEN INTERNATIONAL, INC.


forth herein.37. At all relevant time s, Tradesmen International ow ed the Fergusons a duty of care

to perform all work in a safe and workm an-like manner.

10LEGAL\15511044\1


11/15


38 . Defendant Tradesmen International, its agents, employees and subcontractors,breached its aforesaid duties to the Fergusons in one or more of the following ways:

(a) Failed to adequately inspect and supervise the work of its employeesand/or subcontractors;

(b) Failed to properly coordinate the work of its agents, workm en, servantsand subcontractors;(c) Failed to properly define the tasks and responsibilities of its agents,workmen, servants and subcontractors;(d) Failed to properly inspect the design and construction work of its agents,workmen, servants and subcontractors;(e) Failed to properly, adequately and/or safely install the roof heating systemin the subject residen ce;(f) Improperly installed the roof heating system at the subject residence suchthat the system's heat tape was installed underneath the Ferguson home'sslate shingles and in direct contact with the plywood underlayment andsupporting trusses;(g) Improperly installed the roof heating system at the subject residence suchthat the system's heat tape was wrapped in foil-based insulation andsurrounded by cellulose insulation, which prevented the heat generated bythe system from properly dissipating through the roof;(h) Permitted a dangerous or hazardous condition to exist during the roofheating system's installation, even though Defendant TradesmenInternational knew, or should have known, that the dangerous conditionexisted and/or created a serious risk of harm;(i) Failed to warn the Fergusons of the substantial risk of fire or similar perilpresented by the improper work done by its employees and/orsubcontractors;(j) Failing and/or omitting to do those things necessary to avoid an

unreasonable risk of harm to the Fergusons' real and personal property;(k) Failing to comply with all other applicable codes, regulations, guidelines,policies, procedures and/or industry customs and/or practices; and(1) Otherwise failing to use due care under the circumstan ces.

11LEGAL\15511044\1


12/15


39 . As a direct and proximate result of the aforesaid n egligent, careless and/orreckless acts and/or omissions, the Fergusons sustained real and personal property damage in anamount in excess of $75,000.00, exclusive of interest and costs, for which Defendant TradesmenInternational is legally liable.

Wherefore, BANKERS STANDARD INSURANCE COMPANY as subrogee of Jerryand Norm a F erguson, respectfully requests that this Court enter judg me nt in its favor and againstDefendant, Tradesmen International, Inc. in an amount in excess of $75,000.00.

COUNT VHEISLER CONSTRUCTION, LLC


forth herein.41. At all relevant tim es, Heisler Construction owed the F ergusons a duty of care to

perform all work in a safe and workmanlike manner42. Defendant Heisler Construction, its agents, employees and subcontractors,

breached its aforesaid duties to the Fergusons in one or more of the following ways:(a) Failed to adequately inspect and supervise the work of its employeesand/or subcontractors;(b) Failed to properly coordinate the work of its agents, workmen, servantsand subcontractors;(c) Failed to properly define the tasks and responsibilities of its agents,workmen, servants and subcontractors;(d) Failed to properly inspect the design and construction work of its agents,workmen, servants and subcontractors;(e) Failed to prop erly, adequa tely and/or safely install the roof heating systemin the subject residenc e;

12LEGAL\15511044\1


13/15


(f) Improperly installed the roof heating system at the subject residence suchthat the system 's heat tape was installed underneath the Ferguson h om e'sslate shingles and in direct contact with the plywood underlayment andsupporting trusses;(g) Improperly installed the roof heating system at the subject residence suchthat the system's heat tape was wrapped in foil-based insulation andsurrounded by cellulose insulation, which prevented the heat generated bythe system from properly dissipating through the roof;(h) Permitted a dangerous or hazardou s condition to exist during the roofheating system's installation, even though Defendant Heisler Constructionknew, or should have known, that the dangerous condition existed and/orcreated a serious risk of harm;(i) Failed to warn the Fergusons of the substantial risk of fire or similar perilpresented by the improper work done by its employees and/orsubcontractors;(j) Failing and/or om itting to do those things necessa ry to avoid anunreasonable risk of harm to the Fergus ons' real and personal property;(k) Failing to comply with all other applicable codes , regulations, guidelines,policies, procedures and/or industry customs and/or practices; and(1) Otherw ise failing to use due care under the circum stances .

43. As a direct and proximate result of the aforesaid negligent, careless and/orreckless acts and/or omissions, the Fergusons sustained real and personal property damage in anamount in excess of $75,000.00, exclusive of interest and costs, for which Defendant HeislerConstruction is legally liable.

Wherefore, BA NKERS STANDARD INSURANCE COMPA NY as subrogee of Jerryand Norma Ferguson, respectfully requests that this Court enter judgment in its favor and againstDefendant, H eisler Construction, LLC in an amount in excess of $75,000.00.

13LEGAL\15511044\1


14/15


COUNT VIDOMOTECK FLOOR WARMING SYSTEMS, INC.

PRODUCTS LIABILITY44 . Plaintiff incorporates paragraph s one (1) through eighteen (18) as though fully set

forth herein.45. At all relevant times, Defendant Domoteck, placed into the stream of commerce

the subject roof heating system and as such, is strictly liable for any defects or unreasonablydangerous conditions that existed with respect to the roof heating system.

46. The Ferguson s were , and are, in the class of persons that Defendant Dom oteckshould have reasonably foreseen as being subject to the harm caused by the defective conditionof the subject roof heating system, as they were the owners of a home with the roof heatingsystem, which was sold for the express purpose of being installed to operate in residential homes.

47. At all times relevant, Defendant Dom oteck was the entity operating as themanufacturer of roof heating system s, engaged in the sale of roof heating system s.

48. The roof heating system was expected, and did, reach the subject residencewithout substantial alteration in the condition in which the roof heating system was sold byDefendant Domoteck.

49. The Fergusons never used the roof heating system for anything other than itsexpected manner of handling or consumption.

50. The roof heating system was defective and in an unreasonably dangerouscondition at the time it left Defendant Domoteck's possession and control insofar as it was:

a. Supplied without adequate instructions for safe installation;b. Supplied such that it contained heating coils that becam e too hot so that they wereable to ignite nearby comb ustibles;

14LEGAL\15511044\1


15/15


c. Supplied without adequate warning s of the dangers inherent in its improperinstallation such that, not only the F ergusons, but any entities or individualsinvolved in the installation of the roof heating system, would be unaw are thatinstallation und erneath roofing shingles could result in the ignition of a fire;d. Supplied without adequate warnings of the dangers inherent in its improperinstallation such that, not only the F ergusons, but any entities or individualsinvolved in the installation of the roof heating system, would be unaware thatinstallation in and aroun d insulative m aterials could result in the ignition of a fire;ande. Was otherwise unreasonably dangerous and defective.51 . The defective and unreasonably dangerous condition and subsequent

malfunctioning of the roof heating system was the direct and proximate cause of the real andpersonal property damages in an amount in excess of $75,000.00 exclusive of interest and costs,for which Defendant Domoteck is legally liable.

Wherefore, BANKERS STANDARD TNSURANCE COMPANY as subrogee of Jerryand Norm a Ferguson, respectfully requests that this Court enter judg me nt in its favor and againstDefendant, Domoteck Floor Wanning Systems, Inc. in an amount in excess of $75,000.00.

By:

BANKERS STANDARD INSURANCECOMPA NY as subrogee of Jerry and Norma

One of Plaintiff s Attorneys

Anthony J. MorroneCOZEN O'CONNOR333 W. Wacker Drive, Suite 1900Chicago, Illinois 60606Tel: (312) 382-3100Fax:(312)382-8910Email: amorrone^cozen.com

LEGAL\155I1044\1 15

bankers standard insurance company v. coplen construction inc et al complaint

Documents