Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 1 of 23.

PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION IMG Worldwide, Inc. 1360 East 9th Street Suite 100 Cleveland, Ohio 44114, and IMG Academies, LLP 5500 34th Street West Bradenton, Florida 34210, Plaintiffs, v. Westchester Fire Insurance Company 436 Walnut Street Philadelphia, Pennsylvania 19106, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. ___________ JURY TRIAL DEMANDED

COMPLAINT IMG Worldwide, Inc. (IMG) and IMG Academies, LLP (IMGA) file this Complaint against Westchester Fire Insurance Company (Westchester), alleging as follows: 1. This Complaint arises out of Westchesters failure to honor its

contractual duty to defend and indemnify IMG and IMGA under umbrella/excess insurance policies Westchester issued to IMG and IMGA, in connection with

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 2 of 23. PageID #: 2

litigation in the Southern District of Florida titled Walter Gastaldi, et al. v. Sunvest Resort Communities, LC, et. al., Case No. 0:08-cv-62076-CMA (Gastaldi or the Gastaldi Lawsuit). Westchester has failed to provide any coverage to IMG and IMGA under the policies, despite the exhaustion of the primary carriers underlying limits. IMG and IMGA also seek damages for Westchesters bad faith denial of insurance coverage, and a declaration regarding Westchesters obligations under the policies. The Parties, Jurisdiction and Venue 2. IMG is an Ohio corporation with its principal place of business in

Cleveland, Ohio. IMG is a sports, entertainment and media company whose business includes client representation of golf, tennis and other athletes. 3. IMGA is a Florida limited liability partnership with its principal place

of business in Bradenton, Florida. IMGA is a sports training and educational company that offers full and part-time educational programs and sports instruction to student, amateur, and professional athletes. IMGAs sole partner is IMG. 4. Defendant Westchester is a Pennsylvania corporation with its

principal place of business in Philadelphia, Pennsylvania. As described below, Westchester issued several umbrella liability insurance policies to IMG and its subsidiaries, including IMGA.

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 3 of 23. PageID #: 3

5.

This Court has jurisdiction pursuant to 28 U.S.C. 1332 because there

is complete diversity of citizenship between IMG, IMGA and Westchester, which are citizens of different states, and the amount in controversy exceeds $75,000, exclusive of interest and costs. 6. Westchester is subject to personal jurisdiction because it regularly

transacts business in Ohio, is an admitted insurer in Ohio, and delivered the insurance policies at issue in Ohio. 7. Venue is proper in this Court pursuant to 28 U.S.C. 1391. The Gastaldi Lawsuit 8. On November 25, 2008, approximately 270 plaintiffs filed a

Complaint (the Original Complaint) in the case styled Walter Gastaldi, et al. v. Sunvest Communities USA, LLC, et. al., Case No. 08058100, in the 17th Judicial Circuit Court in and for Broward County, Florida. The Gastaldi Original Complaint is attached hereto as Exhibit A. The Original Complaint named IMGA as a defendant, as well as real estate developers Sunvest Communities USA, LLC and E.W. Sunvest Development LLC (the Sunvest Defendants). On December 26, 2008, the case was removed to the United States District Court for the Southern District of Florida, where it was assigned Case No. 0:08-cv-62076-CMA.

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 4 of 23. PageID #: 4

9.

The Gastaldi plaintiffs alleged, among other things, they were misled

by IMGA and the Sunvest Defendants into purchasing approximately 200 apartment units that would be, but never were, converted into luxury condominiums at an IMG soccer academy to be located in Orlando, Florida. Rather than receiving ownership privileges in an exclusive resort, plaintiffs alleged that they were left with un-refurbished residential units in a low-end abandoned moldy bug and rodent infested apartment complex with [n]o conversion, no resort, no world-class amenities, and no IMGA sports complex or training facility. First Amended Complaint, 246. The Gastaldi plaintiffs sought over $300 million in damages. 10. The Gastaldi Lawsuit was a complex, heavily-contested suit involving

substantial discovery, including scores of depositions and numerous motions and appearances before the Court. Because the Sunvest Defendants claimed to be insolvent, they did not actively defend the suit. 11. In the Original Complaint, the Gastaldi plaintiffs asserted three counts

under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) (Counts I- III), Fraudulent Inducement (Count IV), and Conversion and Civil Theft (Count V). On April 24, 2009, plaintiffs filed a First Amended Complaint (the First Amended Complaint) similar to the Gastaldi Original Complaint, naming the 4

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 5 of 23. PageID #: 5

same parties. Attached as Exhibit B is a copy of the First Amended Complaint. Because of the numerous plaintiffs involved in the Gastaldi Lawsuit, the Court ordered that the case be bifurcated into different trials at which different plaintiff trial groups would present their claims. On November 23, 2009, the Gastaldi plaintiffs filed a Second Amended Complaint (First Trial Group) (the Second Amended Complaint (First Trial Group)), removing Counts IV and V for fraud and conversion/civil theft. Attached as Exhibit C is a copy of the Second Amended Complaint (First Trial Group). 12. On February 3, 2010, the Court granted in part and denied in part

IMGAs motion for summary judgment, allowing certain claims against IMGA to proceed to trial. Consistent with the scheduling order, the first trial group consisting of 33 plaintiffs was scheduled to go to trial on March 15, 2010. On March 4, 2010, the Court entered rulings on IMGAs motions in limine related to the Gastaldi plaintiffs expert witness testimony, which ultimately led to a continuance of the trial of the first trial group of Gastaldi plaintiffs. 13. On May 6, 2010, the Gastaldi plaintiffs filed a Second Amended

Complaint (Second Trial Group) (the Second Amended Complaint (Second Trial Group)), containing essentially the same allegations, but adding IMG as a defendant. Attached as Exhibit D is a copy of the Second Amended Complaint 5

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 6 of 23. PageID #: 6

(Second Trial Group). In May, 2010, IMG, IMGA and the Gastaldi plaintiffs settled the Gastaldi Lawsuit, including all claims that were or could have been brought in the case. The settlement included a $5 million payment by IMG and IMGA to the Gastaldi plaintiffs. During the course of the Gastaldi Lawsuit, IMG and IMGA incurred millions of dollars in defense costs, including expert costs. IMGs Primary Carrier, Great Divide, Settles IMG and IMGAs Claims Under Its Policies 14. As noted above, Westchester provided several umbrella liability

policies to IMG and its subsidiaries. These umbrella liability policies are excess of primary commercial general liability coverage provided to IMG and its subsidiaries by Great Divide Insurance Company (Great Divide). 15. In particular, Great Divide issued to IMG and its subsidiaries

Commercial General Liability Policy No. 1007022-10, for the policy period August 10, 2005 to August 10, 2006 (the 2005-06 Great Divide Policy); Commercial General Liability Policy No. 1007022-11, for the policy period August 10, 2006 to August 10, 2007 (the 2006-07 Great Divide Policy); Commercial General Liability Policy No. 1007022-12, for the policy period August 10, 2007 to August 10, 2008 (the 2007-08 Great Divide Policy); and Commercial General Liability Policy No. 1007022-13, for the policy period August 10, 2008 to August 10, 2009 (the 2008-09 Great Divide Policy) 6

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 7 of 23. PageID #: 7

(collectively, the Great Divide Policies). The Great Divide Policies are substantially similar in their terms. A copy of the 2005-06 Great Divide Policy is attached hereto as Exhibit E. 16. The Great Divide Policies provide different levels of coverage limits

to IMG and its subsidiaries, depending on the type of covered risk. For example, under Coverage A, which includes coverage for Property Damage caused by an Occurrence, the Great Divide Policies each have a $1 million sub-limit of coverage (not including defense costs) per Occurrence. In addition, like the Westchester umbrella policies, the Great Divide Policies contain language imposing on Great Divide a duty to defend a suit seeking covered damages. 17. After IMGA tendered the Gastaldi Lawsuit to Great Divide under the

Great Divide Policies, Great Divide denied coverage, and continued to adhere to that position throughout the entirety of the Gastaldi Lawsuit, until after the Gastaldi Lawsuit settled. 18. On September 23, 2010, IMG, IMGA and Great Divide reached a

Settlement and Release Agreement concerning IMG and IMGAs claims for coverage under the Great Divide Policies. The settlement with Great Divide exhausted the 2005-06 Great Divide Policys $1 million Property Damage sub-

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 8 of 23. PageID #: 8

limit, and there is no further available or collectible insurance to IMG or IMGA under the Great Divide Policies. The Westchester Insurance Policies 19. Westchester issued to IMG and its subsidiaries Commercial Umbrella

Liability Policy No. CUW788395001, for the policy period August 10, 2005 to August 10, 2006 (the 2005-06 Westchester Policy); Commercial Umbrella Liability Policy No. G22035459 001, for the policy period August 10, 2006 to August 10, 2007 (the 2006-07 Westchester Policy); Commercial Umbrella Liability Policy No. G22035459 002, for the policy period August 10, 2007 to August 10, 2008 (the 2007-08 Westchester Policy); and Commercial Umbrella Liability Policy No. G22035459 003, for the policy period August 10, 2008 to August 10, 2009 (the 2008-09 Westchester Policy) (collectively, the Westchester Policies). The Westchester policies are substantially similar in their terms, but the 2007-08 Westchester Policy changed slightly. Thus, the 2005-06 and 2006-07 Westchester policies are nearly identical to one another; and the 2007-08 and 2008-09 Westchester Policies are nearly identical to one another. A copy of the 2005-06 Westchester Policy is attached hereto as Exhibit F, and a copy of the 2007-08 Westchester Policy is attached hereto as Exhibit G.

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 9 of 23. PageID #: 9

20.

The Westchester Policies are umbrella insurance policies that in

certain circumstances provide primary coverage, but in other circumstances provide coverage that is excess of the Great Divide Policies. For each of the above policy years, the Westchester Policies provide $25 million in insurance limits, exclusive of defense costs. 21. IMG is the named insured under the Westchester Policies. By virtue

of the definitions contained in the Westchester Policies, IMGA also is a Named Insured. 22. Insuring Agreement I Coverage in the 2005-06 and 2006-07

Westchester Policies provides as follows: I. Coverage (1) We will pay on behalf of the Insured those sums in excess of the Retained Limit which the Insured, by reason of liability imposed by law, . . ., shall become legally obligated to pay as damages for: (a) Bodily Injury or Property Damage occurring during the policy period stated in Item 2 of the Declarations (Policy Period) and caused by an Occurrence; 2005-06 Westchester Policy (Ex. F), Amendatory Endorsement M03 (3/94). 23. Retained Limit is defined in relevant part as follows:

(1) with respect to any Occurrence that is covered by Underlying Insurance [the Great Divide Policies] or any other insurance, the total of the 9

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 10 of 23. PageID #: 10

applicable limits of the Underlying Insurance plus the applicable limits of any other insurance; or (2) with respect to any Occurrence that is not covered by Underlying Insurance or any other insurance, the amount of the Self-Insured Retention [$10,000] stated in Item 4(e) of the Declarations (the Self-Insured Retention). 2005-06 Westchester Policy (Ex. F), Section IV Definitions, K. The 2007-08 and 2008-09 Westchester Policies contain different language, but the language has the same effect as that set forth above. 24. The Westchester Policies define Property Damage as: (1) Physical injury to tangible property, including all resulting loss of use of that property (all such loss of use shall be deemed to occur at the time of the physical injury that caused it); or Loss of use of tangible property that is not physically injured (all such loss being deemed to occur at the time of the Occurrence that caused it).

(2)

2005-06 Westchester Policy (Ex. F), Section IV Definitions, J. The 2007-08 and 2008-09 Westchester Policies have a nearly identical definition of Property Damage. 25. As applied to Property Damage, the 2005-06 and 2006-07

Westchester Policy defines Occurrence as: (1) An accident, including continuous or repeated exposure to substantially the same general harmful conditions, that results in Bodily Injury or Property Damage that is not expected or not intended by the Insured. 10

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 11 of 23. PageID #: 11

All damages that arise from continuous or repeated exposure to substantially the same general conditions are considered to arise from one Occurrence. 2005-06 Westchester Policy (Ex. F), Section IV Definitions, G. The 2007-08 and 2008-09 Westchester Policies define Occurrence as an accident, including continuous or repeated exposure to substantially the same general harmful conditions. 2007-08 Westchester Policy (Ex. G), Section V Definitions, 13. 26. The Underlying Insurance identified in each Westchester Policy is

the Great Divide Policy applicable to the same policy year. As described above, each of the Great Divide Policies contains a $1 million, per Occurrence sub-limit for Property Damage. Thus, the Westchester Policies are structured to provide $25 million in coverage for settlements and judgments excess of the $1 million Great Divide sub-limit for such loss. Where the Great Divide policies provide no coverage, each Westchester Policy applies excess of the $10,000 Self-insured Retention identified therein. Thus, after application of the $1 million Property Damage sub-limit (i.e., the Retained Limit), these provisions obligated Westchester to pay the remaining $4 million of the $5 million Gastaldi settlement. 27. The Westchester Policies also impose upon Westchester a duty to

defend IMG and IMGA for any suit seeking damages covered by the policies. The 2005-06 and 2006-07 Westchester Policies provide as follows: 11

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 12 of 23. PageID #: 12

(1)

We shall have the right and duty to defend any Claim or Suit seeking damages covered by the terms and conditions of this policy when: (a) the applicable limits of insurance of the underlying insurance policies set forth in Schedule A and to be maintained by you in accordance with Condition M of this policy (the Underlying Insurance), plus the applicable limits of other insurance have been exhausted by payments; or (b) Damages are sought for Bodily Injury, Property Damage, Personal Injury, or Advertising Injury which are not covered by Underlying Insurance or other insurance. . . .

(4) We will not be obligated to investigate, negotiate, settle or defend any Claim, Suit or trial brought against, or applicable to, any Insured when: (a) insurance is available to or collectible by the Insured under any Underlying Insurance or other insurance; (b) the Underlying Insurance is not available or collectible because of the bankruptcy, insolvency or inability or failure to comply with any of its policy obligations of the underlying insurer(s) providing such Underlying Insurance; or (c) the Underlying Insurance is not available or collectible because you did not maintain or meet the requirements of such insurance as warranted by, or you otherwise violated the provisions of, Condition M of this policy. 2005-06 Westchester Policy (Ex. F), Section II Defense Settlement, (1) and (4).

12

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 13 of 23. PageID #: 13

28.

Condition M of the 2005-06 and 2006-07 Westchester Policies

provide as follows (sub-paragraph (3) appears in Endorsement M03 (3/94)): M. Maintenance of Underlying Insurance. You agree: (1) that the Underlying Insurance shall remain in force during the Policy Period; (2) that the terms, conditions and endorsements of the Underlying Insurance will not materially change; and (3) That the limits of liability as warranted by the Underlying Insurance will not change, except for reduction or exhaustion in the aggregate or occurrence limits due to payments for: (a) Bodily Injury or Property Damage occurring during the Policy Period and caused by an Occurrence; . . . If you do not meet these requirements, this insurance shall apply as if the Underlying Insurance were available and collectible. 2005-06 Westchester Policy (Ex. F), Condition M and Amendatory Endorsement M03 (3/94). 29. The 2007-08 and 2008-09 Westchester Policies also contain duty to

defend provisions, as follows: We will have the right and duty to defend the insured against any "suit" seeking damages for such "bodily injury" or "property damage" when the "underlying insurance does not provide coverage or the limits of "underlying insurance" have been exhausted. . . . However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. 2007-08 Westchester Policy (Ex. G), Section I Coverages, 1(a). 13

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 14 of 23. PageID #: 14

30.

Thus, each of the Westchester Policies imposed on Westchester a duty

to defend the Gastaldi Lawsuit from its outset, where the suit fell within the coverage afforded by the Westchester Policies (which it did); and where the Underlying Insurance was not available and collectible, or did not provide coverage (which it was not and did not). IMGAs Claim Under the Westchester Policies 31. IMG and IMGA provided timely notice of the Gastaldi Lawsuit to

Westchester. Thereafter, as IMG and IMGA did with Great Divide, the parties repeatedly communicated about coverage issues, and exchanged numerous letters concerning the Gastaldi Lawsuit, in which IMG and IMGA explained the bases for coverage under the Westchester Policies. Attached hereto as Exhibit H is a compilation of recent letters concerning their positions. As recently as March 14, 2011, Westchester reiterated its refusal to provide coverage. 32. The Gastaldi Lawsuit alleges, among other things, Property

Damage caused by an Occurrence as those terms are defined by the Westchester Policies. Notably, the definitions of Property Damage and Occurrence in the Westchester Policies and Great Divide Policies are virtually identical. 33. Additionally, none of the exclusions or conditions contained in the

Westchester Policies operate to preclude coverage for IMG and IMGAs claims. 14

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 15 of 23. PageID #: 15

34.

As discussed above, the 2005-06 Great Divide Policys $1 million

Property Damage sub-limit has been exhausted. Under the 2005-06 Westchester Policy, Westchester is obligated to reimburse IMG and IMGA for that portion of the Gastaldi settlement payment in excess of the 2005-06 Great Divide Policys $1 million Retained Limit. Westchester has breached its obligation by refusing to pay IMG and IMGA $4 million. 35. To the extent any of the other Westchester Policies are deemed to

apply, those policies apply excess of the $10,000 Self-Insured Retention in each policy year, because insurance under the other Great Divide Policies is not available or collectible. In such event, Westchester has likewise breached its obligations under those policies. 36. In addition to its duty to indemnify, Westchester had a duty to defend

IMG and IMGA in the Gastaldi Lawsuit under one or more of the Westchester Policies. As described above, the Gastaldi Lawsuit alleged Property Damage caused by an Occurrence under the Westchester Policies. Westchester breached this duty by refusing to honor its duty to defend IMG and IMGA in the Gastaldi Lawsuit. 37. Until the case settled, the Gastaldi plaintiffs sought damages well in

excess of any limits afforded by IMGs Underlying Insurance. Westchesters 15

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 16 of 23. PageID #: 16

refusal to acknowledge its duty to defend left IMG and IMGA uninsured and unprotected throughout the Gastaldi Lawsuit. Moreover, the applicable limits of the Underlying Insurance are exhausted, thereby also invoking Westchesters duty to defend under these circumstances. Because of its breach, in addition to its indemnity obligation for the Gastaldi settlement payment in excess of the 2005-06 Great Divide Policys $1 million Retained Limit, Westchester is obligated under one or more of the Westchester Policies to pay the remaining amount of IMG and IMGAs defense costs associated with the Gastaldi Lawsuit. The total amount of these defense costs exceeds $5 million, plus interest. COUNT I (Breach of Contract Duty to Indemnify) 38. IMG and IMGA incorporate herein by reference paragraphs 1 through

37 of this Complaint as fully set forth herein. 39. IMG and IMGA have complied with all applicable conditions

precedent contained in the Westchester Policies. Additionally, none of the exclusions in the Westchester Policies preclude coverage for IMG and IMGAs claims.

16

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 17 of 23. PageID #: 17

40.

Westchester has a duty to indemnify IMG and IMGA under one or

more of the Westchester Policies because the Gastaldi Lawsuit sought alleged Property Damage caused by an Occurrence. 41. Westchester has materially breached its obligation under one or more

of the Westchester Policies regarding its duty to indemnify IMG and IMGA in the Gastaldi Lawsuit for those sums in excess of the Retained Limit, as defined by the Westchester Policies. 42. As a direct and proximate result of Westchesters breach, Westchester

has deprived IMG and IMGA of the benefit of the insurance policies for which IMG has paid substantial premiums, and has caused IMG and IMGA to incur significant legal fees and expenses. 43. IMG and IMGA have been damaged in an amount to be proven at trial,

plus interest and appropriate damages. As set forth above, this amount is $4 million, which is the difference between the $5 million settlement payment for the Gastaldi Lawsuit and the $1 million Retained Limit under the 2005-06 Great Divide Policy, plus interest and other appropriate damages.

17

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 18 of 23. PageID #: 18

COUNT II (Breach of Contract -- Duty to Defend) 44. IMG and IMGA incorporate herein by reference paragraphs 1 through

43 of this Complaint as fully set forth herein. 45. Westchester had a duty to defend IMG and IMGA under the

Westchester Policies because the Gastaldi Lawsuit alleged Property Damage caused by an Occurrence. 46. By failing to defend IMG and IMGA in the Gastaldi Lawsuit,

Westchester materially breached its obligation under one or more of the Westchester Policies. 47. As a direct and proximate result of Westchesters breach, Westchester

has deprived IMG and IMGA of the benefit of the insurance for which IMG has paid substantial premiums to Westchester, and has caused IMG and IMGA to incur significant legal defense fees and expenses. 48. IMG and IMGA have been damaged in an amount to be proven at trial,

which consists of unreimbursed defense costs associated with the Gastaldi Lawsuit, plus interest and other appropriate damages. This amount exceeds $5 million.

18

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 19 of 23. PageID #: 19

COUNT III (Bad Faith Denial of Insurance Coverage) 49. IMGA incorporates herein by reference paragraphs 1 through 48 of

this Complaint as fully set forth herein. 50. Westchester has wrongfully denied all coverage for the losses IMG

and IMGA incurred in defending and settling the Gastaldi Lawsuit. Despite repeated requests, Westchester continues to refuse to acknowledge any coverage under the Westchester Policies. 51. Westchesters wrongful denial of coverage constitutes bad faith.

Among other things, Westchester had no reasonable justification for its denial of coverage. 52. Accordingly, IMG and IMGA are entitled to recover from

Westchester extra-contractual damages, including without limitation compensatory damages flowing from Westchesters bad faith denials, attorneys fees incurred by IMG and IMGA pursuing coverage in light of Westchesters wrongful denial of coverage, pre-judgment interest, punitive damages, and such other relief as the Court deems appropriate.

19

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 20 of 23. PageID #: 20

COUNT IV (Declaratory Judgment on Westchesters Duty to Defend and Indemnify) 53. IMG and IMGA incorporate herein by reference paragraphs 1 through

52 of this Complaint as fully set forth herein. 54. Westchester owed IMG and IMGA a duty to defend and indemnify

them in the Gastaldi Lawsuit. 55. Westchesters failure to pay any of IMG and IMGAs defense costs

and settlement payment in connection with the Gastaldi Lawsuit constitutes a material breach of its duties and obligations under the Westchester Policies. 56. In light of the above, there exists an actual controversy between the

parties appropriate for the entry of a declaratory judgment pursuant to 28 U.S.C. 2201, in IMG and IMGAs favor. 57. IMG and IMGA are entitled to a declaration that Westchester

breached one or more of the Westchester Policies; that Westchester had a duty to defend and indemnify IMG and IMGA in the Gastaldi Lawsuit; and that Westchester owes IMG and IMGA amounts to be determined by the Court. PRAYER FOR RELIEF WHEREFORE, IMG and IMGA respectfully seek the following:

20

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 21 of 23. PageID #: 21

A.

That the Court enter judgment in favor of IMG and IMGA on all causes of action;

B.

On all causes of action, an award of damages in IMG and IMGAs favor in an amount to be determined at trial;

C.

On IMG and IMGAs Third Cause of Action, extra-contractual damages, including without limitation compensatory damages flowing from Westchesters bad faith denials, attorneys fees incurred by IMG and IMGA pursuing coverage in light of Westchesters wrongful denial of coverage, pre-judgment interest, punitive damages, and such other relief as the Court deems appropriate;

D.

On IMG and IMGAs Fourth Cause of Action, a declaration that (a) Westchester materially breached one or more of the Westchester Policies; and (b) Westchester has an obligation to pay defense costs and indemnity payments for the Gastaldi Lawsuit in amounts determined by this Court;

E.

On all claims for relief, an award of IMG and IMGAs reasonable attorneys fees, pre-judgment and post-judgment interest, costs and the expenses of this action; 21

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 22 of 23. PageID #: 22

F.

On all claims for relief, for such other, further and different relief as this Court deems just and proper; and

G.

That this case be tried by a jury.

Respectfully submitted, /s/Lynn R. Larsen__________ Lynn Rowe Larsen (0055824) lynn@timsweeneylaw.com Timothy F. Sweeney (0040027) tim@timsweeneylaw.com LAW OFFICE OF TIMOTHY FARRELL SWEENEY The 820 Building, Suite 430 820 W. Superior Avenue Cleveland, Ohio 44113 (216) 241-5003 (216) 241-3138 (fax) Counsel for Plaintiffs IMG Worldwide, Inc. and IMG Academies, LLP Of Counsel: Brent W. Brougher, Georgia Bar No. 086373 bbrougher@kilpatricktownsend.com Ellen P. McCarley, Georgia Bar No. 461982 emccarley@kilpatricktownsend.com KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 (404) 815-6500 (404) 815-6555

22

Case: 1:11-cv-01594-DCN Doc #: 1 Filed: 08/02/11 23 of 23. PageID #: 23

REQUEST FOR TRIAL BY JURY IMG and IMGA hereby request that this case be tried to a jury.

/s/Lynn R. Larsen__________ Lynn Rowe Larsen (0055824) Timothy F. Sweeney (0040027) Attorneys for Plaintiffs IMG Worldwide, Inc. and IMG Academies, LLP

23