Case 1:10-cv-02162-WSD Document 6 Filed 09/07/10 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RACETRAC PRETROLEUM, INC., )

A Georgia Corporation, )
) CIVIL ACTION FILE
Plaintiff, ) NO. 1:10-cv-2162-WSD
)
vs. )
)
ACE AMERICAN INSURANCE )
COMPANY, a Pennsylvania )
corporation, )
)
Defendant. )

DEFEDAT ACE AMERICA ISURACE COMPAY'S

RULE 26.1B MADATORY IITIAL DISCLOSURES
Defendant ACE American Insurance Company (hereinafter “ACE”),

pursuant to Rule 26.1B of the Local Civil Rules of the United States District Court

for the Northern District of Georgia, makes the following Initial Disclosures.

(1) If the defendant is improperly identified, state defendant’s correct

identification and state whether defendant will accept service of an amended

summons and complaint reflecting the information furnished in this disclosure

response.

ACE is properly identified.

(2) Provide the names of any parties whom defendant contends are

necessary parties to this action, but who have not been named by plaintiff. If

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defendant contends that there is a question of misjoinder of parties, provide the

reasons for defendant’s contention.

ACE is currently unaware of additional necessary parties to this action

at this time, but reserves the right to amend its response should it discover

other necessary parties at a later time.

(3) Provide a detailed factual basis for the defense or defenses and any

counterclaims or crossclaims asserted by defendant in the responsive pleading.

ACE issued an insurance contract to RaceTrac, Excess Commercial

General Liability Policy number XSL-G20593854, with effective dates from

June 1, 2005 through June 1, 2006 (hereinafter “the ’05-’06 Policy”), subject

to the contract’s terms, conditions, limitations and exclusions. ACE also

issued an excess liability insurance contract to RaceTrac, Excess Commercial

General Liability Policy number XSL-G21732850, with effective dates from

June 1, 2006 through June 1, 2007 (hereinafter “the ’06-’07 Policy”), subject

to the contract’s terms, conditions, limitations and exclusions. Plaintiff

RaceTrac filed this declaratory judgment action seeking a declaration

claiming that ACE must provide coverage under the excess liability insurance

contracts to indemnify RaceTrac for damages for which it may be held liable

in two personal injury lawsuits currently pending in Mississippi because the

pollution exclusion in the excess liability insurance contracts is unenforceable

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as against the public policy of the State of Georgia.

ACE submits that this Court does not have subject matter jurisdiction

over RaceTrac’s claims because the complaint does not set forth facts showing

the existence of a justiciable controversy, is not ripe for adjudication, and

seeks an advisory opinion. ACE also denies RaceTrac’s allegations that the

claims asserted in the personal injury lawsuits are covered under the excess

policies and that the pollution exclusion violates the public policy of the State

of Georgia. Other terms, conditions, limitations or exclusions in the policies

may preclude coverage for the lawsuits. RaceTrac’s claims may be barred by

its failure to provide timely notice of the occurrences and claims, as required

under the terms of the ACE excess insurance contracts. Further, to the extent

there is coverage under the excess liability insurance contracts, and ACE

denies there is, RaceTrac’s claims comprise only one “occurrence,” as that

term is defined in the contracts. ACE also believes that, to the extend there is

coverage under the insurance contracts, which ACE denies, RaceTrac’s

claims trigger coverage under only one of the excess liability insurance

contracts. Finally, RaceTrac has not exhausted or paid its $500,000.00 self-

retained limit per policy per occurrence under which RaceTrac claims

coverage. ACE reserves the right to rely upon all other defenses as set forth

in its answer.

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(4) Describe in detail all statutes, codes, regulations, legal principles,

standards and customs or usages, and illustrative case law which defendant

contends are applicable to this action.

ACE submits that the following statutory provisions and case law will

apply to this case:

1) The Declaratory Judgment Act, 28 U.S.C. § 2201(a), and cases

interpreting same, including Atlanta Gas Light Co. v. Aetna Cas. &
th
Sur. Co., 68 F.3d 409 (11 Cir. 1995); Tilley Lamp Co. v. Thacker, 454
th
F.2d 805 (5 Cir. 1972); Am. Ins. Co. v. Evercare, 699 F. Supp. 2d

1355 (.D. Ga. 2010)

2) Georgia law on contracts, O.C.G.A. § 13-2-1 et seq., and cases

interpreting same

3) Georgia law on attorney’s fees, O.C.G.A. § 13-6-11, and cases

interpreting same

4) Georgia law on bad faith, O.C.G.A. § 33-4-6, and cases interpreting

same

(5) Provide the name and, if known, the address and telephone number of

each individual likely to have discoverable information that you may use to

support your claims or defenses, unless solely for impeachment, identifying the

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subjects of the information. (Attach witness list to Responses to Initial Disclosures

as Attachment A.)

See Attachment A.

(6) Provide the name of any person who may be used at trial to present

evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence. For all

experts described in Fed. R. Civ. P. 26(a)(2)(B), provide a separate written report

satisfying the provisions of that rule. (Attach expert witness list and written

reports to Responses to Initial Disclosures as Attachment B.)

At the time of filing its initial disclosures, ACE has not designated an

expert to testify at trial. ACE will supplement its response to this disclosure

request once it has made a decision about expert witnesses.

(7) Provide a copy of, or description by category and location of, all

documents, data compilations, and tangible things in your possession, custody, or

control that you may use to support your claims or defenses unless solely for

impeachment, identifying the subjects of the information. (Attach document list

and descriptions to Responses to Initial Disclosures as Attachment C.)

See Attachment C.

(8) In the space provided below, provide a computation of any category of

damages claimed by you. In addition, include a copy of, or describe by category

and location of, the documents or other evidentiary material, not privileged or

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protected from disclosure, on which such computation is based, including materials

bearing on the nature and extent of injuries suffered, making such documents or

evidentiary material available for inspection and copying as under Fed .R. Civ. P.

34. (Attach any copies and descriptions to Responses to Initial Disclosures as

Attachment D.

ACE claims no damages or entitlement to damages other than costs and

attorneys’ fees as allowed by law.

(9) If defendant contends that some other person or legal entity is, in whole

or in part, liable to plaintiff or defendant in this matter, state the full name, address,

and telephone number of such person or entity and describe in detail the basis of

such liability.

At the time of filing its initial disclosures, ACE is not aware of any other

person or legal entity who is (or may be), in whole and in part, liable to

plaintiff in this matter. ACE reserves the right to supplement this response in

the future.

(10) Attach for inspection and copying as under Fed. R. Civ. P. 34 any

insurance agreement under which any person carrying on an insurance business

may be liable to satisfy part or all of a judgment which may be entered in this

action or to indemnify or reimburse for payments made to satisfy the judgment.

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(Attach copy of insurance agreement to Responses to Initial Disclosures as

Attachment E.)

ACE is in the process of obtaining true and correct copies of the excess

liability insurance contracts issued to RaceTrac, which will be provided

shortly.

Respectfully submitted this 7th day of September, 2010.

__s/ Wayne D. Taylor__________

WAYNE D. TAYLOR
Georgia State Bar No. 701275

__s/ Ruth M. Pawlak_____________

RUTH M. PAWLAK
Georgia Bar No. 045810

MOZLEY, FINLAYSON & LOGGINS LLP

One Premier Plaza, Suite 900
5605 Glenridge Drive
Atlanta, Georgia 30342
Tel: (404) 256-0700
Fax: (404) 250-9355

Attorneys for Defendant ACE American

Insurance Company

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Attachment A

Philip Coraggio
Claim Specialist
ACE USA
Liability Claims
P.O. Box 5111
Scranton, PA 18505-0528
(713) 403-3039

Mr. Coraggio was involved in the review and denial of RaceTrac Petroleum’s
claim for indemnity and defense in the Jacqueline Sheree Bunns personal
injury lawsuit under the ACE excess liability insurance contracts.

In further response, ACE incorporates by reference the names of all

individuals listed on RaceTrac’s initial disclosures. ACE reserves the right to

supplement this response in the future.

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Attachment C

1. March 11, 2010 letter from Philip Coraggio of ACE USA to Leslie
Williams of RaceTrac Petroleum

2. Excess Commercial General Liability Policy number XSL-

G20593854, issued to RaceTrac by ACE, with effective dates from
June 1, 2005 through June 1, 2006

3. Excess Commercial General Liability Policy number XSL-

G21732850, issued to RaceTrac by ACE, with effective dates from
June 1, 2006 through June 1, 2007

ACE reserves the right to supplement this response in the future.

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CERTIFICATIO PURSUAT TO RULE 7.1

Counsel for defendant ACE American Insurance Company hereby certifies

that this pleading has been prepared using Times New Roman 14 point, one of the

font and point selections approved by the Court in L.R. 5.1C.

Respectfully submitted this 7th day of September, 2010.

_s/ Ruth M. Pawlak_______________

WAYNE D. TAYLOR
Georgia Bar No. 701275
RUTH M. PAWLAK
Georgia Bar No. 045810

MOZLEY, FINLAYSON & LOGGINS, LLP

One Premier Plaza, Suite 900
5605 Glenridge Drive
Atlanta, Georgia 30342
Tel: (404) 256-0700
Fax: (404) 250-9355

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 Case 1:10-cv-02162-WSD Document 6 Filed 09/07/10 Page 11 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RACETRAC PRETROLEUM, INC., )

A Georgia Corporation, )
) CIVIL ACTION FILE
Plaintiff, ) NO. 1:10-cv-2162-WSD
)
vs. )
)
ACE AMERICAN INSURANCE )
COMPANY, a Pennsylvania )
corporation, )
)
Defendant. )

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the forgoing DEFEDAT ACE

AMERICA ISURACE COMPAY'S IITIAL DISCLOSURES using

the Court’s CM/ECF System, which will automatically send a copy of same to the

following counsel of record:

Michael S. French, Esq.

Ryan D. Watstein, esq.
WARGO & FRENCH LLP
1170 Peachtree Street N.E.
Suite 2020
Atlanta, Georgia 30309
mfrench@wargofrench.com
This 7th day of September, 2010.
__s/ Ruth M. Pawlak________________
RUTH M. PAWLAK
Georgia Bar No. 045810
rpawlak@mfllaw.com

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