2:12-cv-12546-AC-LJM Doc # 3

Filed 06/18/12 Pg 1 of 11

Pg ID 48

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION CASE NO. 2:12-cv-12546-AC-LJM NISRINE MINI MART, INC., and ALI CHEBLI, Plaintiffs, v. ACE AMERICAN INSURANCE COMPANY, Defendant. Judge Avern Cohn Magistrate Judge Laurie J. Michelson

_______________________________________________________________________________ IBRAHIM HAMMOUD (P75765) RUSSELL W. PORRITT II (P38659) WARD, ANDERSON, PORRITT & BRYANT, ELSHARNOBY & ASSOCIATES, P.C. PLC Attorney for Plaintiffs 4190 Telegraph Road, Suite 2300 12824 Ford Rd Ste. 2 Bloomfield Hill, Michigan 48302 Dearborn, MI 48126 (248) 593-1440; Fax: 593-7920 (facsimile) (313) 478-4494; Fax: (866-380-4535) rporritt@wardanderson.com iyhammoud@gmail.com Of counsel: Gregory P. Deschenes (BBO No. 550830) (admission pending) gdeschenes@nixonpeabody.com Troy K. Lieberman (BBO No. 681755) (admission pending) tlieberman@nixonpeabody.com NIXON PEABODY LLP 100 Summer Street Boston, Massachusetts 02110 (617) 345-1000; Fax: (617) 345-1300 _____________________________________________________________________________ ANSWER AND DEFENSES OF ACE AMERICAN INSURANCE COMPANY TO PLAINTIFFS COMPLAINT Pursuant to Fed. R. Civ. P. 8, defendant ACE American Insurance Company (ACE American), by and through its undersigned attorneys, hereby responds to the numbered -114022613.3

2:12-cv-12546-AC-LJM Doc # 3

Filed 06/18/12 Pg 2 of 11

Pg ID 49

paragraphs of the Complaint of Plaintiffs Nisrine Mini Mart, Inc. (Nisrine) and Ali Chebli (Chebli) (together Plaintiffs) as follows: INTRODUCTION 1. ACE American admits that an action for money damages was brought by Nisrine

and Chebli. The remaining allegations of Paragraph 1 constitute legal conclusions to which no response is required. To the extent that the remaining allegations in Paragraph 1 require a response from ACE American, they are denied. JURISDICTION ALLEGATIONS 2. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 2. 3. 4. Admitted. The allegations contained in Paragraph 4 constitute legal conclusions to which no

response is required. To the extent that the allegations in Paragraph 4 require a response from ACE American, they are denied. 5. The allegations contained in Paragraph 5 constitute legal conclusions to which no

response is required. To the extent that the allegations in Paragraph 5 require a response from ACE American, they are denied. FACTUAL ALLEGATIONS 6. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 6. 7. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 7.

-214022613.3

2:12-cv-12546-AC-LJM Doc # 3

Filed 06/18/12 Pg 3 of 11

Pg ID 50

8.

ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 8. 9. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 9. 10. ACE American admits that ACE American issued to Nisrine an Underground

Storage Tanks Liability Policy Claims-Made, Policy Number TSP G21843428 001, for the period May 26, 2006 to May 26, 2007 (the Policy). Responding further, ACE American states that the Policy speaks for itself and to the extent that the allegations of Paragraph 10 mischaracterize or misstate the terms and conditions of the Policy, ACE American denies those allegations. ACE American denies the remaining allegations of Paragraph 10. 11. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 11. 12. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 12. 13. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 13. 14. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 14. 15. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 15. 16. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 16.

-314022613.3

2:12-cv-12546-AC-LJM Doc # 3

Filed 06/18/12 Pg 4 of 11

Pg ID 51

17.

ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 17. 18. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 18. 19. ACE American admits that Plaintiff submitted a claim to ACE American. ACE

American is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations of Paragraph 19. 20. 21. Denied. ACE American admits that by letter dated March 27, 2012, ACE American

denied Nisrines claim. ACE Americans disclaimer letter speaks for itself, and to the extent that the allegations of Paragraph 21 mischaracterize or misstate the contents of the letter, ACE American denies those allegations. 22. ACE American admits that an action was brought for money damages by Nisrine

and Chebli. The remaining allegations of Paragraph 22 constitute legal conclusions to which no response is required. To the extent that the remaining allegations in Paragraph 22 require a response from ACE American, they are denied. CLAIMS Count I. Breach of Contract 23. ACE American admits that it issued the Policy to Nisrine. Responding further,

ACE American states that the Policy speaks for itself. To the extent the allegations of Paragraph 23 mischaracterize or misstate the terms and conditions of the Policy, ACE American denies those allegations.

-414022613.3

2:12-cv-12546-AC-LJM Doc # 3

Filed 06/18/12 Pg 5 of 11

Pg ID 52

24.

ACE American states that the Policy speaks for itself.

To the extent the

allegations of Paragraph 24 mischaracterize or misstate the terms and conditions of the Policy, ACE American denies those allegations. 25. 26. 27. Denied. Denied. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 27. 28. 29. Denied. Denied.

Count II. Unfairly Failed To Pay Insurance Benefits. [MCL 500.2006(1)] 30. ACE American restates and incorporates its responses to Paragraph 1-29, as if set

forth in full herein. 31. 32. Denied. ACE American is without knowledge or information sufficient to form a belief as

to the truth of the allegations in Paragraph 32. 33. ACE American admits that it denied Nisrines claim by letter dated March 27,

2012. ACE American denies the remaining allegations of Paragraph 33. 34. 35. 36. Denied. Denied. The allegations contained in Paragraph 36 constitute legal conclusions to which

no response is required. To the extent that the allegations in Paragraph 36 require a response from ACE American, they are denied. 37. Denied.

-514022613.3

2:12-cv-12546-AC-LJM Doc # 3

Filed 06/18/12 Pg 6 of 11

Pg ID 53

AFFIRMATIVE AND OTHER DEFENSES First Defense (Failure to State Claim) Plaintiffs Complaint fails to state facts sufficient to constitute a claim upon which relief can be granted against ACE American. Second Defense (Lack of Standing) The claims asserted in the Complaint by Plaintiff Chebli are or may be barred due to his lack of standing to assert such claims. Third Defense (Failure to Satisfy Terms of Policy) To the extent Plaintiffs claims have failed to satisfy the terms, conditions, limitations, and exclusions contained in the Policy, coverage is or may be barred.

Fourth Defense (Failure to Perform Conditions Precedent) To the extent Plaintiffs have failed to perform any of their obligations under the Policy, coverage is or may be barred. Fifth Defense (Doctrine of Laches) The claims asserted in the Complaint are or may be barred by the doctrine of laches.

Sixth Defense (Deductible Not Met) To the extent Plaintiffs have failed to establish exhaustion of the deductible, the claims asserted in the Complaint may be barred, in whole or in part. Seventh Defense (Events Do Not Constitute Underground Storage Tank Incident) -614022613.3

2:12-cv-12546-AC-LJM Doc # 3

Filed 06/18/12 Pg 7 of 11

Pg ID 54

The claims asserted in the Complaint are barred, in whole or in part, to the extent those claims do not arise from an underground storage tank incident within the meaning of the Policy. Eighth Defense (Expected or Intended Damage) To the extent some or all of the alleged conditions referenced in the Complaint were expected or intended in whole or in part by Plaintiffs, coverage is or may be barred. Ninth Defense (Alleged Damage Was From Excluded Corrective Action Costs) The claims asserted in the Complaint are barred, in whole or in part, to the extent those claims arise from corrective action costs falling within Exclusion g. of the Policy, including but not limited to costs or any other expenses [t]o repair, replace or upgrade any insured tank. Tenth Defense (Alleged Damage Was From Failure to Comply With Environmental Laws) The claims asserted in the Complaint are barred, in whole or in part, to the extent those claims arise from a failure to comply with environmental laws within the meaning of Exclusion f. of the Policy. Eleventh Defense (Intended Incident) The claims asserted in the Complaint are barred, in whole or in part, to the extent those claims arise from corrective action costs or any other expenses resulting from an underground storage tank incident which was intended from the standpoint of the insured.

-714022613.3

2:12-cv-12546-AC-LJM Doc # 3

Filed 06/18/12 Pg 8 of 11

Pg ID 55

Twelfth Defense (Policy Terms, Exclusions, Conditions, Limitations) The claims asserted in the Complaint are or may be barred, in whole or in part, by the terms, exclusions, conditions and limitations contained in the Policy. Thirteenth Defense (Failure to Disclose Material Facts) To the extent, if any, Plaintiffs negligently or intentionally concealed, misrepresented, or failed to disclose facts which were material and known by Plaintiffs to be material to the risks undertaken by ACE American, the claims asserted in the Complaint is or may be barred. Fourteenth Defense (Failure to Mitigate) To the extent Plaintiffs failed to mitigate, minimize, or avoid any losses they allegedly have sustained, any recovery that might be obtained against ACE American must be reduced by that amount. Fifteenth Defense (Failure to Give Timely Notice) To the extent Plaintiffs failed to give ACE American timely notice of conditions, claims, events, or damages asserted in the Complaint and/or may have otherwise failed to give timely notice to ACE American in accordance with the terms and conditions of the Policy, coverage is or may be barred. Sixteenth Defense (Violation of Law and/or Public Policy) To the extent Plaintiffs acts or failures to act, which gave rise to the alleged conditions referenced in the Complaint, were in violation of law and/or public policy, coverage is or may be barred, in whole or in part.

-814022613.3

2:12-cv-12546-AC-LJM Doc # 3

Filed 06/18/12 Pg 9 of 11

Pg ID 56

Seventeenth Defense (Incident Not Within Policy Period) The claims asserted in the Complaint are or may be barred, in whole or in part, to the extent that any alleged underground storage tank incident giving rise to the corrective action costs commenced prior to the Policy Retroactive Date of May 26, 2005 or after the expiration of the policy period. Eighteenth Defense (Known Risk, Known Loss and/or Loss-In-Progress) The claims asserted in the Complaint are barred, in whole or in part, to the extent Plaintiffs seek reimbursement for liability arising from an event, act, occurrence, loss or claim that was in progress or was known or was not contingent at or before the time ACE American issued the Policy. Nineteenth Defense (Voluntary Payments) To the extent any payment made or obligations assumed by Plaintiffs with respect to the claims alleged in the Complaint were made or assumed voluntarily without ACE Americans knowledge or consent, the claims asserted in the Complaint are or may be barred, in whole or in part. Twentieth Defense (Misrepresentation) To the extent Plaintiffs made any misrepresentations on their application for insurance, the claims asserted in the Complaint are or may be barred, in whole or in part.

-914022613.3

2:12-cv-12546-AC-LJM Doc # 3

Filed 06/18/12 Pg 10 of 11

Pg ID 57

Twenty-First Defense (Failure to Cooperate) The claims asserted in the Complaint are barred, in whole or in part, to the extent Plaintiffs failed to cooperate with ACE American in the investigation of their claim in breach of the Policy. Twenty-Second Defense (Fines and Penalties) The claims asserted in the Complaint are barred, in whole or in part, to the extent they seek coverage for fines or penalties. Twenty-Third Defense (ACE Americans Good Faith Compliance with Contractual Rights and Obligations) Plaintiffs claims are barred, in whole or in part, because ACE American has acted in good faith and in accordance with its contractual rights and obligations. Twenty-Fourth Defense (Plaintiffs Are Not Insureds) To the extent that any of the Plaintiffs are not insureds, named insureds, or additional insureds under the Policy, coverage is or may be barred, in whole or in part. Twenty-Fifth Defense (Reservations of Right to Add Additional Defenses) ACE American expressly reserves the right to assert any or all additional defenses which become apparent and which may be pertinent to the Complaint once the precise nature of Plaintiffs claims are ascertained through discovery and investigation. WHEREFORE, Defendant ACE American Insurance Company respectfully requests that this Court: A. Enter judgment in its favor on Counts I and II of Plaintiffs Nisrine Mini Mart, Inc. and Ali Cheblis Complaint; -1014022613.3

2:12-cv-12546-AC-LJM Doc # 3

Filed 06/18/12 Pg 11 of 11

Pg ID 58

B. Award it interest, costs, and attorneys fees ACE American has incurred in defending against the Complaint; and C. Grant it such further relief as is just and appropriate. Respectfully submitted, ACE AMERICAN INSURANCE COMPANY, By its attorneys,

/s/ Russell W. Porritt II

RUSSELL W. PORRITT II (P38659) WARD, ANDERSON, PORRITT & BRYANT, PLC 4190 Telegraph Road, Suite 2300 Bloomfield Hill, Michigan 48302 (248) 593-1440 (248) 593-7920 (facsimile) rporritt@wardanderson.com Of counsel: Gregory P. Deschenes (BBO No. 550830) (admission pending) gdeschenes@nixonpeabody.com Troy K. Lieberman (BBO No. 681755) (admission pending) tlieberman@nixonpeabody.com NIXON PEABODY LLP 100 Summer Street Boston, Massachusetts 02110 (617) 345-1000 (617) 345-1300 (facsimile)

Dated: June 18, 2012

PROOF OF SERVICE The undersigned certifies that a copy of the foregoing instrument was served upon the attorneys of record of all parties to the above cause by electronic filing at their respective e-mail addresses as disclosed by the pleadings of record herein and/or by U.S. Mail, on June 18, 2012. I declare under penalty of perjury that the above statement is true to the best of my knowledge, information and belief. /s/ Bonnie L. Klimek ___________________________________ Bonnie L. Klimek

-1114022613.3