d.e. 1 notice of removal by ace american insurance company from monmouth county, case number mon l

8/2/2019 d.e. 1 Notice of Removal by Ace American Insurance Company From Monmouth County, Case Number Mon l

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Case 3:12-cv-02518-PGS-LHG Document 1 Filed 04/27/12 Page 1 of 60 PageID: 1

Christopher RaleighCOZEN O'CONNOR45 Broadway Atrium 16th FloorNew York, New York 10006Tel: (212) 509-9400Fax: (212) 509-9492Email: [email protected] for DefendantACE AMERICAN INSURANCE COMPANYUNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY-----------------------------------------------------)(DANIEL BACH; CAROL BACH;and KEY NORTH, LLC

Plaintiffs,vs.

ACE AMERICAN INSURANCECOMPANY; GLOBAL MARINEINSURANCE AGENCY INC.;JOHN DOES 1 -9 and ABCCORPORAnONS 1-9 ;Defendants.

------------------------------------------------------)(

Civil Action No.

NOTICE OF REMOVAL

Defendant ACE AMERICAN INSURANCE COMPANY (hereinafter referred toas "ACE"), by their attorneys COZEN O'CONNOR, respectfully files this Notice of Removalpursuant to 29 U.S.C. Sec. 1441(a), and in support thereof states the following:

1. On or about March 29, 2012, plaintiffs DANIEL BACH, CAROL BACH and KEYNORTH LLC commenced an action against ACE and co-defendant GLOBAL MARINEINSURANCE AGENCY INC. ("GLOBAL MARINE") by filing a Summons andComplaint in the Superior Court ofNew Jersey, Chancery Division, Monmouth County(the "State Court Action").


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2. A true and correct copy of plaintiffs' Summons and Complaint is attached hereto asExhibit "A", and, upon information and belief,. constitutes all process, pleadings, andorders filyd in the State Court Action.

3. In the State Court action, plaintiffs have filed a lawsuit against defendants allegingvarious causes of action. The first cause of action is asserted by DANIEL and CAROLBACH ("hereinafter collectively referred to as "the BACHS") against ACE and isdescribed. as "declaratory judgment", but is worded as a "breach of contact", and allegesthat ACE has not honored its obligations under the involved policy of insurance. Thefirst cause of action specifically references ACE's alleged refusal to honor plaintiffs'salvage claim.

4. The second cause of action is asserted by the BACHS against ACE and is described as"breach of contract," and describes further how ACE has not honored its duties under theinvolved policy of insurance.

5. The third cause of action is asserted by the BACHS against GLOBAL MARINE and isdescribed as "breach of contract", and specifically alleges GLOBAL MARINE failed toadd Mr. McGinty as an authorized operator of Motor Vessel "Sweet Caroline" ("theVessel") and to extend the navigation warranty to allow for navigation of the Vessel inFlorida during the winter season.

6. The fourth cause of action is asserted by the BACHS against ACE and is described as"negligence". ACE is alleged to have authorized the salvage of the Vessel, after sinking,by plaintiff KEY NORTH LLC.

7. The fifth cause of action is asserted by the BACHS against GLOBAL MARINE and isdescribed as "negligence".

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8. The sixth cause of action is asserted by the BACHS against both ACE and GLOBALMARINE, and is described as "unjust enrichment." The BACHS alleged having fulfilledtheir obligations under the policy of insurance and that ACE and GLOBAL MARINEshould not be allowed to benefit from their bargain, including but not limited to anyclaims and expenses concerning the loss of the Vessel, including salvage.

9. The seventh cause of action is asserted against both ACE and GLOBAL MARINE, andis described as "estoppel." The seventh cause of action alleges, in part, that ACEconfirmed it was going to pay for the salvage to KEY NORTH LLC, as well as confirminsurance coverage for the loss of the vessel in its entirety.

10. The eighth cause of action is asserted by KEY NORTH against ACE, and is described as"estoppel." The eighth cause of action alleges how an ACE adjuster by the name ofMike Burns represented to KEY NORTH that ACE would pay for the salvage of the

. vessel.11. The nintli cause of action is asserted by KEY NORTH against ACE, and is described as

"breach of contract." The ninth cause of action alleges that ACE entered into anenforceable oral contract with KEY NORTH for the salvage of the vessel.

12. As explained above, throughout the numerous allegations against both ACE and.GLOBAL MARINE, plaintiffs allege ACE orally agreed to pay for salvage expenses

relating to recovery of the Vessel. In the United States, the applicable law governingmarine salvage is the general maritime law of the United States. See Westar MarineServo Heerema Marine Contractors, 621 F.Supp. 1135 (N.D.Cal. 1985).

13. Plaintiffs' salvage allegations are interwoven throughout many of their causes of actions,including the fourth, sixth, seventh, eighth and ninth causes of action.

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14. Plaintiffs' salvage allegations are interwoven throughout many of their causes of actions,including'the fourth, sixth, seventh, eighth and ninth causes of action.

15. The district courts of the United States have original jurisdiction over this action pursuantto 28 U.S.C. Sec. 1331 and 1333 in that the matter in controversy, i.e. salvage of thevessel, is governed by settled principles of admiralty and maritime jurisdiction. See In reHudson River Mid-Air Collision on August 9, 2009, 2011 WL 2463527, *2 (D.N.J. 2011)("admiralty's area of particular competence" . . . [includes] "maritime liens, the generalaverage, captures and prizes, limitation of liability, cargo damage, and claims forsalvage." citing Executive Jet Aviation v. City o/Cleveland, 409 U.S. 249, 270 (1972;Historic Aircraft Recovery Corp. v. Wrecked andAbandoned Voight F4U-I Aircraft, 294F.Supp.2d 132 (D.Me. 2003) (salvage of vessel in navigable waters off FernandinaBeach, Florida is subject to admiralty and maritime jurisdiction whereas recovery ofwrecked plane in small, non-navigable lake is not) and Sullivan v. General Helicopters,Int'l., 564 F.Supp.2d 496 (D.Md. 2008) (salvage granted to helicopter being moved fromvessel onto a pier).

16. There is an additional basis for subject matter jurisdiction pursuant to 28 U.S.C. Sec.1333 in that the matter in controversy involves an interpretation and application ofcertain clauses in marine yacht policy of insurance relating to a "lay-up" and"navigation" warranty. ACE issued a marine yacht policy of insurance in favor of theBACHS. Both the "lay-up" and "navigation" warranties are terms of art with particularapplication in a marine yacht policy and relate to ordinary vessel operations in thenavigable waters of the United States. As such, to the extent that this dispute involvesthe interpretation of these marine policy provisions, this dispute necessarily triggersmaritime commerce for the purposes of admiralty and maritime jurisdiction. See

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of federal courts and could be removed from state court); Monarch Industrial Corp. v.American Motorists Ins. Co., 276 F.Supp. 972 (S.D.N.Y. 1967) (suit against marinecargo insurer was properly removed to federal court); Wunderlich v. Netherlands Ins.Co., 125 F.Supp. 877 (S.D.N.Y. 1954) (dispute over interpretation of marine insurancepolicies Was within original jurisdiction of federal court and savings to suitors clause didnot defeat removal).

16. Upon information and belief, there may be sufficient basis to also assert diversityjurisdiction pursuant to 28 U.S.C. Sec. 1332.

17. Plaintiffs 'DANIEL and CAROL BACH are individuals who reside at 135 1 t Street, #3C,Keyport, Monmouth County, New Jersey.

18. Plaintiff KEY NORTH LLC is a Florida corporation with a principal place of businesslocated at 94668 Duck Lake Drive, Fernandina Beach, Florida

.19. Defendant ACE AMERICAN INSURANCE COMPANY is a California corporationwith a principal place of business located at 1601 Chestnut Street, Philadelphia, PA19103.

20. Defendant GLOBAL MARINE INSURANCE AGENCY INC. is a corporation or otherbusiness entity from one of the fifty states, with a principal place of business located at12935 S. West Bayshore Drive, Suite 2005, Traverse City, MI 49684.

21. Therefore, upon information and belief, all of the parties to this litigation are citizens ofdifferent states.

22. Plaintiffs, in the complaint, have not specified a quantum for their costs and expensesarising from the underlying action, but pursuant to 28 U.S.C. Sec. 1446(c)(2)(A)(i),plaintiffs do seek nonmonetary relief. Upon information and belief, plaintiffs arecollectively seeking damages which exceed seventy-five thousand dollars ($75,000.00),

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exclusive of interest and costs. Based on telephone calls with plaintiffs' counsel, webelieve plaintiffs' total damages, for the purposes of calculating the quantum ofdamagesfor diversity jurisdiction purposes, exceed seventy-five thousand dollars ($75,000.00),exclusive'ofinterest and costs.

23. ACE has conferred with co-defendant GLOBAL MARINE and they have no objection toremoval to federal court.

24. In filing this Notice of Removal, ACE does not waive any defense, limitation, exclusion,warranty; exception or argument as set forth' in the subject policy of insurance pursuantto federal maritime common law and New Jersey state law.

25. The District of New Jersey, Trenton Vicinage embraces the place where the State CourtAction is pending.

26. On or about April 5, 2012, ACE received a ~ o u r t e s y copy of the Summons and VerifiedComplaint. Upon information and belief, a docket number has not been assigned to theState Court action for want of the Case Information Statement which has yet to be filedby plaintiff s counsel. Upon information and belief, a docket number will be assigned assoon as a Case Information Statement has been filed.

27. This Notice of Removal is being filed with this Court within thirty (30) days after ACEfirst received, through service or otherwise, a copy of the initial pleading setting forth theclaim for relief upon which the State Court Action is based.

28. Since the district courts of the United States have original jurisdiction of all civil actionsarising under the Constitution, laws or treaties of the United States, this Court hasjurisdiction over this action pursuant to 28 U.S.C. Sec. 1331.

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29. ACE, upon filing ofthis Notice ofRemoval, will, as required by 28 U.S.C. Sec. 1446(d),file a copy of the Notice ofRemoval with the Clerk of the Superior Court ofNew Jersey,Chancery Division, Monmouth County, and will serve a copy of same upon plaintiff.

WHEREFORE, defendant ACE AMERICAN INSURANCE COMPANYrespectfully submit that this Notice ofRemoval complies with the statutory requirements andrespectfully requests that the action now pending against it be removed from the Superior Courtof New Jersey, Chancery Division, Monmouth County to this Court, that this action proceed inthis Court as a properly removed action, and that defendants have such other and further relief asjustice requires.Dated: New York, New YorkApril 25, 2012

Respectfully submitted,COZEN O'CONNORAttorneys for DefendantACE AMERICAN INSURANCECOMPANY, # ~ ~ , -By:' v ? / / ~

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Christopher I gh45 Broadway Atrium, 16 th FloorNew York, New York 10006-3792Tel.: (212) 509-9400Fax: (212) 509-9492Email: [email protected]


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TO:Kevin J. Begley, Esq.Kevin J. Begley Attorney at Law LLCAttorneys for Plaintiffs3010 Bordentown AvenueParlin, New Jersey 08859Tel: (732) [email protected] C. Donohue, Esq.Farkas & Donohue LLCAttorneys for DefendantGlobal Marine Insurance Agency25 A Hanover Road, Suite 320Florham Park, New Jersey 07932Tel: (973) [email protected]

NEWYORK_DOWNTOWN\2451448\1320793.000

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d.e. 1 notice of removal by ace american insurance company from monmouth county, case number mon l

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