Case 4:10-cv-00744-TCK -PJC Document 1 Filed in USDC ND/OK on 04/28/10 Page 1 of 10

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
LAFAYETTE/OPELOUSAS DIVISION

ST. PAUL SURPLUS LINES CIVIL ACTION NO.

INSURANCE COMPANY

VERSUS JUDGE

ACE AMERICAN INSURANCE

COMPANY MAGISTRATE
* * * * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ,'" * * *

COMPLAINT

Plaintiff: St. Paul Surplus Lines Insurance Company ("St. Paul"), by and through

undersigned counsel, hereby complains of Defendant, Ace American Insurance Company, and

states its claims and causes of action as follows:

PARTIES, JURISDICTION AND VENUE

1.

S1. Paul Surplus Lines Insurance Company ("St. Paul" ), is a Delaware corporation with

its principal place of business located at 385 Washington Street, St. Paul, Minnesota.

2.

Defendant. Ace American Insurance Company ("Ace"). is a Pemlsylvania corporation

with its principal place of business located at 436 Walnut Street. Philadelphia, Pennsylvania.

3.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §1332(a)

on the basis of diversity of citizenship jurisdiction and because the amount in controversy

exceeds $75,000. This Court has personal jurisdiction over Ace because: (l) Ace is authorized

to do and doing business in the State of Louisiana; (2) has appointed the Louisiana Secretary of

{L0091330.1 }
Case 4:10-cv-00744-TCK -PJC Document 1 Filed in USDC ND/OK on 04/28/10 Page 2 of 10

State as its agent for service of process; and (3) actively solicits and issues policies of insurance

to Louisiana residents.

4.

Venue is proper in this Court pursuant to 28 U.S.C. §1391(c).

GENERAL ALLEGATIONS

5.

On December 15, 2006, Margaret Connick CConnick"), f/k/a Margaret Drennan, a

person of the full age of majority and a resident of Lafayette Parish, Louisiana, while in the

course and scope of her employment with Petroquest Energy, L.L.c. ("Petroquest"), was

involved in an automobile accident in Tulsa County, Oklahoma Cthe accident") while driving a

rental car owned by Alamo Financing L.P.CAlamo") and/or Vanguard Car Rental USA, Inc.

("Vanguard"), causing serious and disabling injuries to Oklahoma resident Joy Helm, resulting in

a lawsuit filed by Joy Helm and her husband against Connick and Petroquest in the District Court

of Tnlsa County, State of Oklahoma, Case No. CJ-2007-1617 nhe lawsuit").

6.

The rental car driven by Connick at the time of the accident was rented to Connick by

Alamo and/or Vanguard d/b/a Alamo Rent-a-Car, in Tulsa, Oklahoma on December 10,2006,

and driven by Connick exclusively within the State of Oklahoma through the date of the accident

on December 15, 2006.

7.

Pursuant to the AlamoN anguard rental agreement executed by Connick in Oklahoma,

Connick purchased "Optional Alamo Protection Plus" insurance coverage for the rental vehicle,

which provided Connick third party liability protection in an amount equal to the minimum

{L0091330.! }
Case 4:10-cv-00744-TCK -PJC Document 1 Filed in USDC ND/OK on 04/28/10 Page 3 of 10

financial responsibility limits applicable to the vehicle, and additional third party liability

protection through an excess liability policy issued by Ace, with limits of the difference between

the primary protection and a combined single limit of $1 ,000,000 per accident for bodily injury

to others arising out of Connick's use or operation of the Alamo rental vehicle.

8.

Alamo Financing L.P. submitted to the Oklahoma Department of Public Safety a Motor

Vehicle Liability Owner's Security Form, indicating that at the time of the accident Alamo had

self insured fleet coverage for the minimum liability limits per accident of $25,000 for death or

mJury.

9.

At the time of the accident, pursuant to the primary and excess insurance arrangements

by AlamolVanguard and Ace, COlmick was insured for up to $1,000,000 for the bodily injury

and property damage claim pursued by Joy Helm against Connick.

10.

Pursuant to its obligations under the insurance agreements, AlamolV anguard and Ace

assumed Connick's defense and indemnity in the lawsuit without reservation of rights. Upon

information and belief, the Alamo Financing L.P. self insured limits per accident of $25,000 had

been exhausted by property damage payments and defense cost resulting from the accident and

lawsuit.

II.

In an Amended Petition, Joy Helm added Petroquest as a defendant solely under the legal

theory of respondeat superior since COlmick was in the course and scope of her employment with

Petro quest at the time of the accident, a fact admitted by Petroquest in its Answer filed to the

{L0091330.1}
Case 4:10-cv-00744-TCK -PJC Document 1 Filed in USDC ND/OK on 04/28/10 Page 4 of 10

Amended Petition.

12.

St. Paul had in effect on the date of the accident Policy No. MU05536396, insuring

Petroquest, the named insured, and Connick as a permitted user of a rented auto, providing

$1,000,000 of auto coverage on an excess basis for non-owned vehicles over any other

collectible insurance.

13.

St. Paul assumed Petroquest's defense in the lawsuit, and then tendered Petroquest's

defense and indemnity to AlamolVanguard and Ace in May 2007, which was rejected;

AlamolVanguard and Ace also repeatedly refnsed Petroquest's request for copies of the

applicable insurance agreements and policies for the rental car involved in the accident.

14.

On April 7, 2008, the District Court in the lawsuit granted Joy Helm's motion for partial

summary judgment as to liability, finding that Connick was at fault in the accident and that

Petroquest was vicariously liable with Connick as her employer, reserving for trial only the

matter of damages.

15.

After extensive discovery on the damage issnes, with trial on the merits set for May 4,

2009, on April 29, 2009, St. Panl again tendered Petroquest's vicarious liability defense and

indemnity to AlamolVangnard and Ace, with a demand that AlamolVanguard and Ace attempt

settlement of the Plaintiffs'(Helm) claims within their $1,000,000 coverage limits, which they

refused and/or ignored.

{1.00913JOI}
Case 4:10-cv-00744-TCK -PJC Document 1 Filed in USDC ND/OK on 04/28/10 Page 5 of 10

16.

Also on or about April 29, 2009, less than a week from trial, Joy Helm dismissed

Connick from the lawsuit without prejudice, reserving Helm's vicarious liability claims against

Petroquest. Under Oklahoma law, Joy Helm had one year from the dismissal to commence a new

action against COlmick. Additionally, Petroquest, a vicariously liable employer, was entitled to

indemnity under Oklahoma law against Connick, a malfeasant employee. 12 Okl. St. Ann. § 100;

Biggs v. Surrey Broadcasting Co., 1991 OK CIV APP 40, 811 P.2d 111, 114 (Okla. Civ. App.

1991); Burke v. Webb Boats, Inc., 2001 OK 83, 37 P.3d 811,814 (Okla. 2001); Porter v. Norton-

Stuart Pontiac-Cadillac of Enid, 1965 OK 18,405 P.2d 109, 113-15 (Okla. 1965).

17.

Settlement negotiations were entered between Helm and St. Paul, resulting in a settlement

on April 30, 2009 in the amount of $929,133.14, paid entirely by St. Paul.

18.

Before the settlement was consummated, Alamo/Vanguard and Ace were advised of the

status of the settlement negotiations and amounts being considered, and demand was again made

for Alamo/Vanguard and Ace to assume the defense and indemnity of Petroquest, whose

vicarious liability stemmed solely from Connick's negligence. Once settlement was confirmed,

but prior to payment, demand was made against Alamo/V anguard and Ace for full payment of

the settlement amount, well within the $1,000,000 of insurance coverage afforded by the

Alamo/Vanguard and Ace insurance agreements, all of which was refused or ignored, with no

e1Torts made to protect Connick against remaining viable claims wlder Oklahoma law.

19.

On May 19, 2009, the full sum of $929,133.14 was paid by St. Paul to the Helm

{L0091330.1}
Case 4:10-cv-00744-TCK -PJC Document 1 Filed in USDC ND/OK on 04/28/10 Page 6 of 10

Plainti1Ts, in exchange for a full release of all claims against Connick, Petroquest, Alamo,

Vanguard, Ace and St. Paul, but reserving to Petroquest and St. Paul all rights for indemnity,

contribution or any available claim against Alamo, Vanguard and Ace.

20.

The amount of the settlement was reasonable given the extent of damages sustained by

.Joy Helm in the accident, including two back surgeries, past and future medical expenses, past

loss wages and loss of future earning capacity, and resulting physical disability.

APPLICABLE SUBSTANTIVE LAW

21.

Under both Oklahoma and Louisiana's conflict of law provisions, the laws of Oklahoma

apply to the causes of action asserted herein since Oklahoma has the most significant relationship

to the parties, the accident, and the contracts. Brickner v. Gooden, 1974 OK 91,525 P.2d 632,

637 (Okla. 1974); Restatement (Second) of Conflict of Laws §145 (1971); Bohannan v. Allstate

Insurance Co., 1991 OK 64, 820 P.2d 787,797; Aetna Cas. & Sur. Co. of Hartford, Conn., 132

P.2d 326; La.Civ.Code art. 3515 and 3537.

FIRST CAUSE OF ACTION

(Subrogation)

22.

St. Paul, as the insurer of Petroquest, a vicariously liable employer guilty of no

independent acts of negligence, is entitled to reimbursement of the full sum of$929,133.14, paid

in settlement of the Helms' claims, plus interest, and all cost, expenses and attorney fees

incurred in defending the lawsuit ("defense cost"), from Ace, the insurer of the solely negligent

party, Connick, under the principles of legal or equitable subrogation, which requires placing the

{L0091330.1}
Case 4:10-cv-00744-TCK -PJC Document 1 Filed in USDC ND/OK on 04/28/10 Page 7 of 10

burden of bearing a loss where it ought to be. Sutton v. Jondahl, 532 P.2d 478, 482 (Okla.1975);

United States Fid. & Guar. Co. v. Federated Rural Elec. Ins. Corp., 2001 OK 81, 0-14 (Okla.

2001).

23.

Alternatively, should it be determined that Petro quest is insured by Ace for the claims

asserted against Petroquest in the lawsuit, St. Paul, as the excess insurer of Petroquest, is

conventionally subrogated and entitled to full reimbursement of these sums paid in settlement

and defense cost against Ace as the primary insurer of Petroquest.

24.

Under the principles of legal or equitable subrogation, as well as conventional

subrogation, S1. Paul, as the insurer of Connick, is entitled to full reimbursement of the sums

paid in settlement, plus interest, against Ace as the primary insurer of Connick for the claims

asserted in the lawsuit.

25.

Alternatively, either under the principles of legal or equitable, or conventional

subrogation, St. Paul is entitled to a proportionate reimbursement of the these sums.

SECOND CAUSE OF ACTION

(Unjust Enrichment)

26.

Ace has been unjustly enriched by St. Paul's settlement of the Helm lawsuit, entitling St.

Paul to full reimbursement of amounts paid in settlement and defense cost, plus interest, or

alternatively, propOliionate reimbursement/contribution.

{L0091330l}
Case 4:10-cv-00744-TCK -PJC Document 1 Filed in USDC ND/OK on 04/28/10 Page 8 of 10

THIRD CAUSE OF ACTION

(Contribution)

27.

Alternatively, St. Paul is entitled to a proportionate reimbursement from Ace as the co-

insurer/obligor of Connick for amounts paid in settlement, plus interest, under the principles of

equitable contribution.

28.

Alternatively, should it be determined that Petro quest is insured by Ace for the claims

asserted in the lawsuit, S1. Paul is entitled to a proportionate reimbursement from Ace as the co-

insurer/obligor of Petro quest of amounts paid in settlement and defense cost, plus interest, under

the principles of equitable contribution.

29.

8t. Paul request Ace to produce all applicable insurance agreements and policies covering

the rental vehicle involved in the accident and as referenced in the rental agreement executed by

COlmick.

WHEREFORE, premises considered, 81. Paul Surplus Lines Insurance Company, prays

that after due proceedings are had, that there be judgment in favor of 8t. Paul against Ace

American Insurance Company, for reimbursement of the full sum of $929,133.14, and all cost,

expenses and attorney fees, plus interest, and for all damages reasonable in the premises,

together with legal interest thereon from date of judicial demand until paid, for all eosts of these

proceedings, and for all other equitable relief available.

{L0091330.1 }
Case 4:10-cv-00744-TCK -PJC Document 1 Filed in USDC ND/OK on 04/28/10 Page 9 of 10

Respectfully submitted,

JONES, WALKER, WAECHTER, POiTEVENT,

CARRERE & DENEGRE, L.L.P.

s/Michael G. Lemoine
MICHAEL G. LEMOINE, #8308
CARMEN M. RODRIGUEZ, #22573
Chase Tower
600 Jefferson Street, Suite 1600
Post Office Drawer 3408
Lafayette, LA 70502
Ph: (337) 262-9000
Fax: (337) 262-9001
Attorneys for Plaintiff, St. Paul Surplus Lines
Insurance Company

{L0091330,1}
Case 4:10-cv-00744-TCK -PJC Document 1 Filed in USDC ND/OK on 04/28/10 Page 10 of 10

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
LAFAYETTE/OPELOUSAS DIVISION

ST. PAUL SURPLUS LINES CIVIL ACTION NO.

INSURANCE COMPANY

VERSUS JUDGE

ACE AMERICAN INSURANCE

COMPANY MAGISTRATE
* * * * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

CERTIFICATE OF SERVICE

I hereby certify that on April 28, 20 I 0, I electronically filed the foregoing with the Clerk

of Court by using the CM/ECF system.

slMichael G. Lemoine
MICHAEL G. LEMOINE, #8308
CAIUviEN M. RODRIGUEZ, #22573
JONES, WALKER, WAECHTER, POITEVENT,
CARRERE & DENEGRE, L.L.P.
Chase Tower
600 Jefferson Street, Suite 1600
Post Office Drawer 3408
Lafayette, LA 70502
Ph: (337) 262-9000
Fax: (337) 262-9001
Attorneys for Plaintiff, St. Paul Surplus Lines
Insurance Company

{L009\330.1}