Case 1:13-cv-01570-JOF Document 1 Filed 05/08/13 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION HUGH BRUCE DULING, IV, as surviving child of Hugh Bruce Duling, III, deceased; LACIE DULING, as surviving child of Hugh Bruce Duling, III, deceased, by and through her parent and natural guardian, KAREN DULING; and WILLIAM MARSHALL DULING, as Administrator of the Estate of Hugh Bruce Duling, III, deceased, Plaintiffs, v. DOMINOS PIZZA, LLC, DOMINOS PIZZA DISTRIBUTION, LLC and ACE AMERICAN INSURANCE COMPANY, Defendants.

CIVIL ACTION FILE NO. _________________

JURY TRIAL DEMANDED

COMPLAINT COME NOW, Plaintiffs and show this Honorable Court the following: PARTIES, JURISDICTION AND VENUE 1. This action arises out of a fatal collision that occurred in the Northern District of Georgia, resulting in the death of Hugh Bruce Duling, III.

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2. At the time of his death, Hugh Bruce Duling, III was a resident and citizen of the State of Georgia, residing within this District and within this Division. 3. At the time of his death, Hugh Bruce Duling, III was not married. 4. Plaintiff Hugh Bruce Duling, IV is the surviving child of Hugh Bruce Duling, III, deceased, and is a resident and citizen of the State of Georgia, residing within this District and within this Division. 5. Plaintiff Lacie Duling is the surviving minor child of Hugh Bruce Duling, III, deceased, and is a resident and citizen of the State of Georgia, . This action is brought on Lacie Dulings behalf by her mother and natural guardian, Karen Duling, who is a resident and citizen of the State of Georgia. Both Karen and Lacie Duling reside within this District and within this Division. 6. Plaintiff William Marshall Duling is the duly appointed Administrator of the Estate of Hugh Bruce Duling, III, deceased, and is a resident and citizen of the State of Georgia, residing within this District and within this Division.

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7. Defendant Dominos Pizza, LLC is a Michigan limited liability company with its principal place of business in Michigan. 8. Defendant Dominos Pizza, LLC is registered to transact business with the Georgia Secretary of State and has, at all times relevant, conducted business within the State of Georgia, within this District and within this Division. 9. Defendant Dominos Pizza, LLC may be served through its registered agent, Wallace E. Harrell, 777 Gloucester St., Suite 200, Brunswick, Glynn County, Georgia 31521. 10. Defendant Dominos Pizza Distribution, LLC is a Delaware limited liability company with its principal place of business in Michigan. 11. Defendant Dominos Pizza Distribution, LLC is registered to transact business with the Georgia Secretary of State and has, at all times relevant, conducted business within the State of Georgia, within this District and within this Division.

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12. Defendant Dominos Pizza Distribution, LLC may be served through its registered agent, Wallace E. Harrell, 777 Gloucester St., Suite 200, Brunswick, Glynn County, Georgia 31521. 13. For brevity, Defendants Dominos Pizza, LLC and Dominos Pizza Distribution, LLC will be jointly referred to herein as Dominos. 14. Defendant Ace American Insurance Company (hereinafter Ace Insurance) is a Pennsylvania insurance company with its principal place of business in Pennsylvania. 15. Defendant Ace Insurance is registered to transact business with the Georgia Secretary of State and is registered with the State of Georgia Office of Insurance and Safety Fire Commissioner. 16. Defendant Ace Insurance has, at all times relevant, conducted business within the State of Georgia, within this District and within this Division.

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17. Defendant Ace Insurance has and maintains insurance agents and a place of doing business within this District and within this Division. Defendant Ace Insurance has registered insurance agents in counties within this District and within this Division with the State of Georgia Office of Insurance and Safety Fire Commissioner. 18. Defendant Ace Insurance may be served through its registered agent, Mark G. Irwin, 500 Colonial Center Parkway, Suite 200, Roswell, Fulton County, Georgia 30076. 19. Defendant Ace Insurance resides within this District and within this Division for venue purposes. 20. Pursuant to Local Rule 3.1(B)(1)(b), this action is properly filed within the Atlanta Division of the Northern District of Georgia because at least one Defendant resides within this District. 21. This Court has jurisdiction over the subject matter of this action.

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22. This Court has jurisdiction over the parties to this action. 23. Venue is proper in this Court. FACTS The Subject Collision 24. The allegations contained in the above-numbered paragraphs are incorporated as if fully set forth herein. 25. On or about December 19, 2012, Hugh Bruce Duling, III was operating a 2012 International tractor-trailer on I-75 South in Bartow County, Georgia. 26. At all times relevant, Hugh Bruce Duling, III was operating his vehicle in accordance with the applicable rules of the road and in a safe and reasonable manner.

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27. At or about the same time, an agent and employee of Defendant Dominos was operating a 2011 International Prostar truck and a trailer on I-75 North in Bartow County, Georgia (hereinafter referred to as the Dominos truck). 28. As a direct and proximate result of the negligence of Defendant Dominos, its agents and employees, the Dominos truck left the travel lanes of I-75 North, drove through the median and collided with a structure supporting a sign hanging over the travel lanes of I-75 South. 29. This collision caused the overhead sign to drop down into the travel lanes of I-75 South, crushing the cab of the truck driven by Hugh Bruce Duling, III. 30. As a direct and proximate cause of Dominos negligence and wrongful conduct, Hugh Bruce Duling, III was seriously injured and ultimately died from those injuries.

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Defendant Dominos Negligence 31. At all times relevant, including at the time of the subject collision, George Benjamin White was an agent and employee of Defendant Dominos. 32. At all times relevant, including at the time of the subject collision, George Benjamin White was acting in the course and scope of his agency and employment with Defendant Dominos. 33. Defendant Dominos is vicariously liable for the acts and omissions of George Benjamin White under respondeat superior and other principles of agencyprincipal law. 34. On information and belief, and at all times relevant, including at the time of the subject collision, George Benjamin White was operating the Ryder truck for the benefit of and on behalf of Defendant Dominos. 35. At all times relevant, including at the time of the subject collision, Jermaine D. Smith was an agent and employee of Defendant Dominos.

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36. At all times relevant, including at the time of the subject collision, Jermaine D. Smith was acting in the course and scope of his agency and employment with Defendant Dominos. 37. Defendant Dominos is vicariously liable for the acts and omissions of Jermaine D. Smith under respondeat superior and other principles of agencyprincipal law. 38. On information and belief, and at all times relevant, including at the time of the subject collision, Jermaine D. Smith was operating the Ryder truck for the benefit of and on behalf of Defendant Dominos. 39. At all times relevant hereto, Defendant Dominos, its agents and employees, owed members of the motoring public, including Plaintiffs decedent, a duty to exercise due care in the operation of the Dominos truck and to comply with Georgia law, applicable regulations and the rules of the road.

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40. On information and belief, Defendant Dominos, its agents and employees, breached those duties and were negligent in the operation of the Dominos truck. 41. On information and belief, the subject collision was directly and proximately caused by the negligent and improper acts and omissions of Defendant Dominos, its agents and employees. 42. On information and belief, Defendant Dominos agent and employee, George Benjamin White, negligently operated the Dominos truck, causing it to leave the roadway and causing the subject collision. 43. On information and belief, Defendant Dominos agent and employee, Jermaine D. Smith, negligently operated the Dominos truck, causing it to leave the roadway and causing the subject collision. 44. On information and belief, the negligent and improper acts and omissions of Defendant Dominos agents and employees, included, but were not limited to, the following:

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(a)

operating a vehicle over, across or within a dividing space, barrier, gore, paved shoulder, or section separating the roadways of a divided highway in violation of O.C.G.A. 40-6-50;

(b)

failing to exercise due care in operating a motor vehicle on the highways of this state and/or engaging in actions which distracted the driver from the safe operation of such vehicle in violation of O.C.G.A. 40-6-241;

(c)

operating a motor vehicle on a public road or highway of this state while using a wireless telecommunications device to write, send and/or read any text based communication in violation of O.C.G.A. 40-6-241.2;

(d) (e)

driving in reckless disregard for the safety of persons or property; failing to keep a proper lookout in the direction in which his vehicle was being driven; and

(f)

failing to operate the vehicle in a safe and reasonable manner. 45.

On information and belief, Defendant Dominos, its agents and employees were otherwise negligent.

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46. On information and belief, the acts and omissions of Defendant Dominos, its agents and employees, constitute negligence per se The Ace Insurance Policy 47. At all times material hereto, Defendant Dominos was a motor carrier motor operating in the state of Georgia. 48. At all times material hereto, Defendant Dominos was a motor carrier motor operating outside the state of Georgia. 49. At all times material hereto, Defendant Dominos was insured by a policy of indemnity/liability insurance issued by Defendant Ace Insurance, which provides coverage for the claims asserted by Plaintiffs herein. 50. Defendant Ace Insurance is subject to this direct action pursuant to O.C.G.A. 40-1-112(c) which provides, It shall be permissible under this part for any person having a cause of action arising under this part to join in the same

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action the motor carrier and the insurance carrier, whether arising in tort or contract. COUNT I Wrongful Death Claim Against Defendant Dominos 51. The allegations contained in the above-numbered paragraphs are incorporated as if fully set forth herein. 52. As a direct and proximate result of the negligent and wrongful acts and omissions of Defendant Dominos, as set forth above, Hugh Bruce Duling, III suffered a premature and untimely death. 53. Plaintiffs Hugh Bruce Duling, IV and Lacie Duling, by and through her mother and natural guardian, Karen Duling, assert claims against Defendant Dominos for the wrongful death of Hugh Bruce Duling, III. 54. Plaintiffs Hugh Bruce Duling, IV and Lacie Duling, by and through her mother and natural guardian, Karen Duling, are entitled to recover damages from

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Defendant Dominos for the full value of the life of Hugh Bruce Duling, III, in an amount determined by the enlightened conscience of the jury. COUNT II Estate Claims Against Defendant Dominos 55. The allegations contained in the above-numbered paragraphs are incorporated as if fully set forth herein. 56. As a direct and proximate result of the negligent and wrongful acts and omissions of Defendant Dominos, as set forth above, Hugh Bruce Duling, III suffered catastrophic physical injuries, endured physical and mental pain and suffering and died. 57. The Estate of Hugh Bruce Duling, III, by and through its duly appointed Administrator, Plaintiff William Marshall Duling, is entitled to recover damages from Defendant Dominos for the physical injuries and the conscious pain and suffering endured by Hugh Bruce Duling, III prior to his death, in an amount determined by the enlightened conscience of the jury.

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58. The Estate of Hugh Bruce Duling, III, by and through its duly appointed Administrator, Plaintiff William Marshall Duling, is entitled to recover damages from Defendant Dominos for funeral, burial and related expenses incurred as a result of the injuries to and death of Hugh Bruce Duling, III, in an amount to be proven at trial. COUNT III Plaintiffs Direct Action Against Defendant Ace Insurance 59. The allegations contained in the above-numbered paragraphs are incorporated as if fully set forth herein. 60. Hugh Bruce Duling, III was, at all times relevant, a member of the public who was injured by the negligence of a motor carrier, Defendant Dominos, its agents and employees. 61. The insurance contract issued by Defendant Ace Insurance to Defendant Dominos was provided for the protection of members of the public, including Hugh Bruce Duling, III.

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62. Hugh Bruce Duling, III and Plaintiffs sustained actionable injuries and are entitled to pursue this direct action against Defendant Ace Insurance under Georgia law, including pursuant to O.C.G.A. 40-1-112(c). 63. Defendant Ace Insurance is liable to Plaintiffs under the insurance contract for all damages that were caused by the negligence of Defendant Dominos, its agents and employees, up to the amount of that insurance contract. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for the following relief: (a) That summons issue requiring Defendants to appear as provided by law to answer this Complaint; (b) (c) (d) That Defendants be timely served with process; That Plaintiffs have a trial by jury on all issues and claims; That each Plaintiff recover damages and other expenses as permitted under Georgia law in an amount exceeding $75,000 from each of the Defendants; (e) That all costs be cast against Defendants; and

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(f)

For such other and further relief as the Court shall deem just and appropriate.

Respectfully submitted this 8th day of May, 2013. CASH, KRUGLER & FREDERICKS, LLC

/S/ David N. Krugler David N. Krugler Georgia Bar Number 429929 Andrew B. Cash Georgia Bar Number 743459 5447 Roswell Road, N.E. Atlanta, Georgia 30342 (404) 659-1710 (404) 264-1149 Fax dkrugler@ckandf.com acash@ckandf.com Counsel for Plaintiffs

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