standex international corporation v. ace american insurance company complaint

8/20/2019 STANDEX INTERNATIONAL CORPORATION v. ACE AMERICAN INSURANCE COMPANY complaint

1/5

tt

ROCKINGHAM,

ss.

THE STATE

OF

NEW

HAMPSHIRE

STANDEX

¡NTERNATIONAL

CORPORATION

1l

Keewaydin Drive

Salem,

New

Hampshire

03079

v.

SUPERIOR

COURT

ACE ANíER¡CAN

INSURANCE

COII¡PANY

1601

GhestnutStreet

Philadelphia, PA 19101-14f84

[also

at

PO Box 1000

Philadelphia,

PA

f 91061

P LAt

N Tt FF'S CollrtpLAt NT

Fg_B

D ECLARATORY

J U

D

G M

ENT

NOW

COMES

Standex lntemational

Corporation

and complains

against

AGE

American lnsurance Company,

an insurance

company

licensed

to do business in New

Harnpshire. The

Plaintiff

complains as follows

(and

invokes this

Court's

authorihT

pursuant

to

R.S.A.

491:22):

l. Faqts

and Proceedings

Standex

lnternational

Corporation

( Stande*)

is

a

foreign

corporation with

a

principal

place

of

business

at

1l Keewaydin Drive,

Salem, NH, 03079.

ACE

American

lnsurance

Company is

a

provider

of

property

and

casualty

insurance

licensed to do business in New

Hampshire. lt maintains

an

office

address at

1601

Chestnut Street in Philadelphia,

PA.

During

the

periods

relevant

herein, it

provided

a

Workers Compensation

and

Employers Liability lnsurance

Policy'' to Standex

(policy

WLR

C4 438255-6),

hereinafter

Workers

Compensation

Policy.

The

Plaintiff

suffered an insurable Ioss

under the

above-referenced

policy

when

a

Massachusetts

employee

(referenced

as

John

Doe

for

the

purposes

of

this

Compfaint) incurred

a serious workplace injury on March

14,2011,


2/5

4.

5.

As of

January

7,

2015,

the

total

paid

amount

on

the claim was

approximately

$443,000.00,

but

the

claim

is

not

closed.

Further,

approximately

$253,500.00

had

been

recovercd

via

lien rights on third-party recoveríes.

The

Workers

Compensation

Policy

featured

a

one-page

Deductible

Endorsemenf'

providing

that

ACE would

pay

all workers

compensation benefits

in

the first instance

and

that Standex would

'reimburse

us

[ACE]

for

all

payments

we make

on

your

behalf

as

[workers

compensation] benefits

. .

.

up to the amount

of the

Deductible

Limits

shown

in

the

Schedule

(emphasis

added).

The

Deductible

Limit as

shown in

the schedule was

$500,000.00.

6. By

email dated

January

7,2015, ACE

advised

$tandex

that,

in

the event

the total

workers

compensation

claim amount

exceeded the

deductible

amount

(in

effect

ending ACE's

right

to

¡eimbursement),

ACE would claim it

had

a

priorþ

right to

any lien

recovery

such that

the

lien

recovery would

first

be applied

to

any

amounts paid

by

ACE in excess of the

deductible.

ln

effect,

ACE

claimed

that

a

lien recovery

would

benefit

Standex only to the extent

lien funds remained

affer

ACE had

reimbursed

itself for amounts

it had

paid

in

excess

of the

deductible.

ACE

thereby claimed

a

priority

interest

(over

Standex)

in any lien recovery.

7

ACE's

claimed

priority

with respect

to allocating

the

benefits of

third-party

lien

recoveríes is

not supported

by

any

provision

in

the

deduc{ible

endorsement

or

any

other

provision

in

the

policy.

ln fact,

the

language

in

the

deductible

endorsement favors

priorþ

for Standex,

insofar

as

it

provides

that the deductible

is

satisfied once

ACE

has

made

workers

compensation

claim

payments

in the

amount

of

the deductible

limit.

There

is no

polícy provision

stating

that,

for

purposes

of the deductible, lien

recoveries are

to

be applied first and foremost

to

reduce

the loss exposure

of

ACE

at the

potential

expense of Standex,

There

is

no

express

policy provision

speciffing which

party

to the

insurance

contract will

have

a

prioritywith

respect

to

lien

recoveries.

8. Standex anticipates

that the total workers

compensation

benef¡ts

paid

will

be

of

such

an amount that

the

manner

of allocation

of any

lien

recoveries

will

signilTcantly

affect

the

amount it

pays

under the

deductible endorsement.

ll.

Claims

for Relief

9.

Plaintiff

repleads

the

prior

allegations insofar

as

relevant.

10. The Deductible

Endorsement

supplied

in

the

ACE

policy

does

not support

ACE's

claím

for

priority

with

respect

to the

funds

made available by

lien recoveries,

and

ACE s

position

is

without

support

in the

policy.

2

Case 1:15-cv-00263-LM Document 1-1 Filed 07/07/15 Page 4 of 7


3/5

11

As written, the

policy

supports

a

priority

for

Standex,

as the

endorsement,

reað

literally,

provides

that

the

duty of

Standex

to reimburse

ends when

the

claimant s

benefits reach the limit of

the deductible.

12.

lf the

policy

is viewed

as ambiguous, then

the matter should

be resolved

against

ACE,

the

drafter and

provider

of the

policy.

13. lnsurers intending

to

claim a

priority

in

circumstances

such

as exist here do

so

by

adding special

language to

the

deductible

endorsement

providing

expressly

for

such

a

priority.

Endorsements change the

meaning

of

a

policy,

so the

prevalence

of an insurer-favorable

endorsement on

the matter

of

priority

is

a

strong indication that a

policy

without

such an endorsement

is

not

insurer-

favorable.

14. ACE has

asserted

its entitlement to

priority

without

identifying

any

policy

language or provision supporting such a

priority.

15

Pursuant to R.S.A.

49 l:22-a,

it is ACE

that has

the

burden

of

proving

its

coverage

position,

and to date ACE

has

offered no

proof

whatsoever, either by

reference to

the

policy,

statute, or case

law.

16. Pursuant

to

R.S,A.

491:22-b, Standex,

should it

be

the

prevailing

party,

is

entitled

to its costs

and reasonable

attomeys fees in

pursuing

this action.

Wherefore,

Plaintiff requests:

a)

That this

Court declare

that

the

defendant

ACE

must

accord Standex

priority

with

respect

to

the effect

of

lien

recoveries

upon

the

polícy

deductible;

That

the

defendants

be

required

to

file

with

this

Court

a

certified copy

of

the

insurance

policy

in

question;

That it

be awarded costs and attorney

fees, in

accordance

with

the

New

Hampshire

statutes

(R.S.A.

491:22 ¡; and,

That it

be awarded all such other

and further relief

as this

Court deems

equitable

and

just.

b)

c)

d)

3



4/5

Dated:

may

¿{zorc

Respectfu

lly subm itted,

Standex lnternational Gorporaüon,

By

and through

its

attomeys,

Kazan,

Shaughnessy

& llfcDonald,

PLLC

B,

Kazan, Esquire

Bar

1315

746 Ghestnut Street

Manchester,

NH

03104

(603)

64+4357

By:

4



5/5

Merrimack

Gounty

Sheriffs

Office

SHERIFF

SCOfi

E,

HILLIAR.D

333

DanielWebster

Hwy

Boscawen,

NH

03303

Phone: 603-796-6600

ACE

AMERICAN

INSURANCE

COMPANY

2I

SOUTH

FRUIT

ST

coNcoRD,

NH 03301

AFFIDAVIT

OF

SERV]CE

MERRIT{ACK

ss

al

1

lts

T, SERGEANT

MARK

,f

LOOMIS,

this

day at

t43o

a-,^./P.û.,

summoned

the

wíthin

named

defendant,

ACE ANIERICAìÍ

INSURANCE

COMP.AI{Y,

by

leaving

at

the

offíce

of Roger Sevigny,

Insurance

Commissíoner

for the

State

of

New

Hampstrire,

its

t,rue and

lawful attorney

for

the service

of

process

under,

ana Uy virgue

of,

Chapt.er

405:10

NH RS.A

as

amended,

tv¡o

Urue

and attested

copieã

of

this Summons

and Complaint

and

f

paid

said

Commissioner

for the

SUãte

twenty-five

( 25.00)

dollars as

theír

fee

for acceptingr

serviee.

FEES

Service

Postage

Travel

Pd

ItrH Ins.

Commissíoner

Copies

2s.00

1.00

r.5.00

25.00

5.00

TOTAL

7r_.00

MARK

,J LOOMIS

County Sheriff

's

Office

ATTEST:

rr1

^À

îRUS

DeputY


standex international corporation v. ace american insurance company complaint

Documents