20-12097-scc Doc 63 Filed 09/22/20 Entered 09/22/20 13:11 ...
Transcript of 20-12097-scc Doc 63 Filed 09/22/20 Entered 09/22/20 13:11 ...
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
CMMON Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, AND CENTURY 21 INC.
Plaintiffs,
v.
STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTAN INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712
Defendants.
Case No. 20-cv-
Removed from the New York State Supreme Court, New York County, Index No. 652975/2020
NOTICE OF REMOVAL
TO THE HONORABLE COURT:
1. Century 21 Department Stores LLC (“C21”), a debtor in possession in the
chapter 11 cases captioned In re Century 21 Department Stores LLC, et al., No. 20-12097 (joint
administration pending) (the “Bankruptcy Cases”), pending before the United States Bankruptcy
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Court for the Southern District of New York (the “Bankruptcy Court”), by and through its
undersigned counsel, hereby files this notice (the “Notice of Removal”) pursuant to 28 U.S.C.
§ 1452 and Rule 9027 of the Federal Rules of Bankruptcy Procedure to remove to this Court the
action pending in New York State Supreme Court, New York County, under Index
No. 652975/2020 (the “Insurance Action”), and respectfully states as follows:
2. C21 and several of its non-debtor affiliates (collectively, the “Plaintiffs” or
“Policyholders”) are named insureds under various insurance policies (collectively, the “Insurance
Policies”) that provide up to $350 million of insurance coverage, including for property damage,
business interruption and other situations that would prevent the public from entering C21’s chain
of department stores. Since 2007, the Policyholders have historically paid on average more than
$1.4 million per year in annual premiums to their insurance providers for such coverage.
Although the Plaintiffs’ losses as a result of the COVID-19 pandemic and ensuing store closures
are covered under the Insurance Policies, the defendant insurers (“Insurance Providers” or
“Defendants”) have refused to honor their obligations under the Insurance Policies.
3. As a result, and after lengthy delays by the Insurance Providers, on July 8,
2020, C21 and the other Plaintiffs commenced the Insurance Action against the Defendants (a)
alleging breach of the relevant Insurance Policies as a result of the Insurance Providers’ failure to
compensate the Plaintiffs for their losses under the Insurance Policies, (b) seeking damages of over
$175 million for the period March 2020 through May 31, 2020 and reserving their right to seek
additional amounts for subsequent time periods, and (c) seeking consequential damages in an
amount to be determined. As of the date of this filing, no Defendants have filed appearances,
answered or otherwise responded to the Complaint in the Insurance Action, and no judge has been
assigned.
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4. On September 10, 2020, C21 and its affiliated debtors in possession
(collectively, the “Debtors”) commenced the Bankruptcy Cases with the Bankruptcy Court.
JURISDICTION
5. Pursuant to 28 U.S.C. §1452, “[a] party may remove any claim or cause of
action … to the district court where such civil action is pending, if such district court has
jurisdiction of such claim or cause of action under section 1334 of this title.” 11 U.S.C. §1452(a);
see also FED. R. BANKR. PROC. 9027.
6. Section 1334 provides that “the district courts shall have original but not
exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases
under title 11.” 28 U.S.C. §1334(b). The Second Circuit employs an “expansive test for ‘related
to’ jurisdiction articulated by the Third Circuit in In re Pacor.” In re Refco, Inc. Sec. Litig., 628 F.
Supp. 2d 432, 437 (S.D.N.Y. 2008). “Litigation is ‘related to’ a bankruptcy proceeding ‘if the
action’s outcome might have any conceivable effect on the bankruptcy estate.’” Post Investors
LLC v. Gribble, 2012 WL 4466619, *3 (S.D.N.Y. Sept. 27, 2012) (quoting Parmalat Capital Fin.
Ltd. v. Bank of Am. Corp., 639 F.3d 572, 579 (2d Cir. 2011) (quoting In re Cuyahoga Equip. Corp.,
980 F.2d 110, 114 (2d Cir. 1992))); see also In re Pacor, 743 F.2d 984, 994 (3d Cir. 1984) (“[T]he
test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of
that proceeding could conceivably have any effect on the estate being administered in bankruptcy”).
“Proceedings ‘related to’ the bankruptcy include . . . causes of action owned by the debtor which
become property of the estate pursuant to 11 U.S.C. § 541 . . . . [This] type of ‘related to’
proceeding involves a claim like . . . state-law breach of contract action . . . .” Celotex Corp. v.
Edwards, 514 U.S. 300, 308 n. 5, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995).
7. The Insurance Action is “related to” the Bankruptcy Cases because the
outcome of the Insurance Action will have more than just a conceivable effect on C21’s bankruptcy
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estate. Proceeds from the Insurance Policies are by far the largest asset of the chapter 11 estate.
Resolution of the Insurance Action in favor of the Plaintiffs – which C21 anticipates should yield
up to $175M, and perhaps more for the Plaintiffs – will have a profound impact on recoveries for
all of C21’s creditors, particularly unsecured creditors, whose recoveries may be in large part
dependent on the insurance proceeds. Conversely, a resolution of the Insurance Action in favor of
the Defendants could leave very little recovery for C21 and the other Debtors’ creditors.
Accordingly, this Court has jurisdiction over the Insurance Action pursuant to 28 U.S.C. § 1334(b).
8. Further, 28 U.S.C. § 1334(e) provides that the “district court in which a case
under title 11 is commenced or is pending shall have exclusive jurisdiction … of all the property,
wherever located, of the debtor as of the commencement of such case, and of property of the
estate….” The Insurance Action is a cause of action and/or a claim for relief asserted by C21,
which causes of action and/or claims for relief now belong to C21’s bankruptcy estate as a result
of the commencement of C21’s Bankruptcy Case and should be asserted for the benefit of C21’s
creditors. Pan Am. World Airways, Inc. v. Evergreen Int'l Airlines, Inc., 132 B.R. 4, 8 (S.D.N.Y.
1991) (“The notion that prepetition causes of action are not a proper subject for consideration by
the bankruptcy court is also undercut by 11 U.S.C. § 541(a)(1), which provides that the debtor's
estate includes ‘all legal and equitable interests of the debtor in property as of the commencement
of the action.’) The estate includes prepetition causes of action possessed by the debtor, and any
recovery inures to the benefit of the estate.”). Accordingly, the Court also has jurisdiction over
the Insurance Action under the provisions of 28 U.S.C. § 1334(e).
9. The non-debtor plaintiffs in the Insurance Action have consented to removal
of the Insurance Action.
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10. On this basis, C21 seeks to remove the Insurance Action to this Court
pending referral to the Bankruptcy Court. See Standing Order of Reference Re: Title 11, M-431
(Feb. 1, 2012) (“any or all cases under title 11 and any or all proceedings arising under title 11 or
arising in or related to a case under title 11 are referred to the bankruptcy judges for this district.”).
Other Requirements for Removal
11. The removal of the Insurance Action is timely pursuant to Rule
9027(a)(2)(A) of the Federal Rules of Bankruptcy Procedure because the Notice of Removal has
been filed with the Clerk of Bankruptcy Court within ninety days after the order for relief in the
Bankruptcy Case. F. R. BANKR. P. 9027(a)(2)(A).
12. The Insurance Action constitutes a core proceeding because resolution of
the claims asserted in the Insurance Action relates to matters concerning the administration of
C21’s and its affiliated-Debtors’ estates, counterclaims against persons filing claims against the
Debtors’ estates, orders to turn over property of the estates, proceedings affecting the liquidation
of the Debtors’ assets of the estates and the adjustment of the debtor-creditor relationship. See 28
U.S.C. §§ 157(b)(2)(A), (C), and (O).
13. C21 and the other Plaintiffs consent to the entry of a final judgment by the
Bankruptcy Court.
14. The United States District Court for the Southern District of New York is
the United States District embracing the Supreme Court for New York County, New York, where
the Insurance Action was filed and is pending. 28 U.S.C. § 112(a). Therefore, venue of the
removed Insurance Action is proper in this Court.
15. Because the Insurance Action is being removed on the basis of bankruptcy
jurisdiction, consent of all properly joined and served defendants is not required. In re WorldCom,
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Inc. Sec. Litig., 293 B.R. 308, 300 (S.D.N.Y. 2003) (“It seems clear that Section 1452(a) does not
require the defendants’ unanimous consent to removal.”)
16. Copies of all process and pleadings filed in the Insurance Action are
attached hereto, as Exhibits A and B. The Defendants have not yet filed an answer to the Plaintiffs’
complaint in the Insurance Action.
NOTICE
17. Pursuant to 28 U.S.C. §1446(d) and Bankruptcy Rule 9027, a copy of this
Notice of Removal is being served on all adverse parties in the Insurance Action and filed with the
clerk for the Supreme Court for New York County, New York, where the Insurance Action was
originally filed.
WHEREFORE, C21 respectfully requests that the Insurance Action be removed to
this Court.
Dated: September 10, 2020
New York, New York Respectfully submitted,
/s/ Steve Y. Ma Steve Y. Ma Peter J. Young (pro hac vice pending) PROSKAUER ROSE LLP 2029 Century Park East, Suite 2400 Los Angeles, CA 90067-3010 Telephone: (310) 557-2900 Facsimile: (310) 557-2193 Email: [email protected] Email: [email protected] -and- Lucy F. Kweskin Matthew A. Skrzynski PROSKAUER ROSE LLP Eleven Times Square New York, New York 10036 Telephone: (212) 969-3000
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Facsimile: (212) 969-2900 Email: [email protected] Email: [email protected] -and- Jeff J. Marwil (pro hac vice pending) Brooke H. Blackwell (pro hac vice pending) PROSKAUER ROSE LLP 70 West Madison, Ste. 3800 Chicago, IL 60602-4342 Telephone: (962) 962-3550 Facsimile: (962) 962-3551
Proposed Attorneys for Debtor and Debtor in Possession Century 21 Department Stores LLC
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JS 44C/SDNY REV. 06/01/17
CIVIL COVER SHEETThe JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for use of the Clerk of Court for the purpose of initiating the civil docket sheet.
PLAINTIFFS DEFENDANTS
ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER ATTORNEYS (IF KNOWN)
CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE)(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? No YesJudge Previously Assigned
If yes, was this case Vol. Invol. Dismissed. No Yes If yes, give date _______________________ & Case No. ______________________
IS THIS AN INTERNATIONAL ARBITRATION CASE? No Yes
(PLACE AN [x] IN ONE BOX ONLY) NATURE OF SUIT
CONTRACT
[ ] 110 INSURANCE[ ] 120 MARINE[ ] 130 MILLER ACT[ ] 140 NEGOTIABLE
INSTRUMENT[ ] 150 RECOVERY OF
OVERPAYMENT &ENFORCEMENTOF JUDGMENT
[ ] 151 MEDICARE ACT[ ] 152 RECOVERY OF
DEFAULTEDSTUDENT LOANS(EXCL VETERANS)
[ ] 153 RECOVERY OFOVERPAYMENTOF VETERAN'SBENEFITS
[ ] 160 STOCKHOLDERSSUITS
[ ] 190 OTHERCONTRACT
[ ] 195 CONTRACTPRODUCTLIABILITY
[ ] 196 FRANCHISE
REAL PROPERTY
[ ] 210 LANDCONDEMNATION
[ ] 220 FORECLOSURE[ ] 230 RENT LEASE &
EJECTMENT[ ] 240 TORTS TO LAND[ ] 245 TORT PRODUCT
LIABILITY[ ] 290 ALL OTHER
REAL PROPERTY
TORTS
PERSONAL INJURY
[ ] 310 AIRPLANE[ ] 315 AIRPLANE PRODUCT
LIABILITY[ ] 320 ASSAULT, LIBEL &
SLANDER[ ] 330 FEDERAL
EMPLOYERS'LIABILITY
[ ] 340 MARINE[ ] 345 MARINE PRODUCT
LIABILITY[ ] 350 MOTOR VEHICLE[ ] 355 MOTOR VEHICLE
PRODUCT LIABILITY[ ] 360 OTHER PERSONAL
INJURY
ACTIONS UNDER STATUTES
CIVIL RIGHTS
PERSONAL INJURY
[ ] 365 PERSONAL INJURYPRODUCT LIABILITY
[ ] 368 ASBESTOS PERSONALINJURY PRODUCTLIABILITY
PERSONAL PROPERTY
[ ] 370 OTHER FRAUD[ ] 371 TRUTH IN LENDING
[ ] 380 OTHER PERSONALPROPERTY DAMAGE
[ ] 385 PROPERTY DAMAGEPRODUCT LIABILITY
PRISONER PETITIONS
[ ] 510 MOTIONS TOVACATE SENTENCE28 USC 2255
[ ] 530 HABEAS CORPUS[ ] 535 DEATH PENALTY[ ] 540 MANDAMUS & OTHER
PRISONER CIVIL RIGHTS
[ ] 550 CIVIL RIGHTS[ ] 555 PRISON CONDITION
FORFEITURE/PENALTY
21 USC 881
LABOR
[ ] 710 FAIR LABORSTANDARDS ACT
[ ] 720 LABOR/MGMTRELATIONS
[ ] 740 RAILWAY LABOR ACT[ ] 751 FAMILY MEDICAL LEAVE ACT (FMLA)
[ ] 790 OTHER LABORLITIGATION
[ ] 791 EMPL RET INCSECURITY ACT (ERISA)
IMMIGRATION
[ ] 462 NATURALIZATIONAPPLICATION
[ ] 465 OTHER IMMIGRATIONACTIONS
CONDITIONS OF CONFINEMENT
ACTIONS UNDER STATUTES
BANKRUPTCY
[ ] 422 APPEAL28 USC 158
[ ] 423 WITHDRAWAL28 USC 157
PROPERTY RIGHTS
[ ] 820 COPYRIGHTS[ ] 830 PATENT
[ ] 840 TRADEMARKSOCIAL SECURITY
[ ] 861 HIA (1395ff)[ ] 862 BLACK LUNG (923)[ ] 863 DIWC/DIWW (405(g))[ ] 864 SSID TITLE XVI[ ] 865 RSI (405(g))
FEDERAL TAX SUITS
[ ] 870 TAXES (U.S. Plaintiff orDefendant)
[ ] 871 IRS-THIRD PARTY26 USC 7609
OTHER STATUTES
[ ] 400 STATEREAPPORTIONMENT
[ ] 410 ANTITRUST[ ] 430 BANKS & BANKING[ ] 450 COMMERCE[ ] 460 DEPORTATION[ ] 470 RACKETEER INFLU-
ENCED & CORRUPTORGANIZATION ACT(RICO)
[ ] 480 CONSUMER CREDIT[ ] 490 CABLE/SATELLITE TV
[ ] 850 SECURITIES/COMMODITIES/EXCHANGE
[ ] 890 OTHER STATUTORYACTIONS
[ ] 891 AGRICULTURAL ACTS
[ ] 893 ENVIRONMENTALMATTERS
[ ] 895 FREEDOM OFINFORMATION ACT
[ ] 896 ARBITRATION[ ] 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEW OR APPEAL OF AGENCY DECISION
Check if demanded in complaint:
CHECK IF THIS IS A CLASS ACTIONDO YOU CLAIM THIS CASE IS RELATED TO A CIVIL CASE NOW PENDING IN S.D.N.Y. AS DEFINED BY LOCAL RULE FOR DIVISION OF BUSINESS 13?
UNDER F.R.C.P. 23 IF SO, STATE:
DEMAND $______________ OTHER ______________ JUDGE _________________________________ DOCKET NUMBER_________________
Check YES only if demanded in complaintJURY DEMAND: YES NO NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32).
[ ] 690 OTHER
[ ] 625 DRUG RELATEDSEIZURE OF PROPERTY
[ ] 560 CIVIL DETAINEE
DISABILITIES -OTHER[ ] 446 AMERICANS WITH
EMPLOYMENTDISABILITIES -
[ ] 445 AMERICANS WITHACCOMMODATIONS
[ ] 443 HOUSING/[ ] 442 EMPLOYMENT[ ] 441 VOTING
[ ] 440 OTHER CIVIL RIGHTS (Non-Prisoner)
[ ] 375 FALSE CLAIMS
[ ] 448 EDUCATION
[ ] 463 ALIEN DETAINEE
[ ] 362 PERSONAL INJURY -MED MALPRACTICE
[ ] 367 HEALTHCARE/PHARMACEUTICAL PERSONAL INJURY/PRODUCT LIABILITY
[ ] 950 CONSTITUTIONALITY OF STATE STATUTES
[ ] 376 QUI TAM
[ ] 835 PATENT-ABBREVIATED NEW DRUG APPLICATION1111111111111111111111111
Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC TRUE BLUE ASSOCIATES LLC STAR OF DAVID IRAYMOND 77
STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO EVANSTAN
Steve Y. Ma Peter J. Young (pro hac vice pending) PROSKAUER ROSE LLP 2029 Century Park East Suite 2400
Removal of New York state court action to S.D.N.Y. and subsequently to S.D.N.Y Bankruptcy Court in connection with chapter 11 proceedin
✔
✖
✖
175,585,799
✖
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(PLACE AN x IN ONE BOX ONLY) ORIGIN1 Original
Proceeding2 Removed from
State Court
a. all parties represented
b. At least one party is pro se.
3 Remanded from Appellate Court
4 Reinstated or Reopened
5 Transferred from (Specify District)
6 Appeal to District Judge from Magistrate Judge
(PLACE AN x IN ONE BOX ONLY) BASIS OF JURISDICTION IF DIVERSITY, INDICATE1 U.S. PLAINTIFF 2 U.S. DEFENDANT 3 FEDERAL QUESTION 4 DIVERSITY
(U.S. NOT A PARTY)
CITIZENSHIP BELOW.
CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)
(Place an [X] in one box for Plaintiff and one box for Defendant)
PTF DEF PTF DEF PTF DEFCITIZEN OF THIS STATE [ ] 1 [ ] 1 CITIZEN OR SUBJECT OF A [ ] 3 [ ] 3 INCORPORATED and PRINCIPAL PLACE [ ] 5 [ ] 5
FOREIGN COUNTRY OF BUSINESS IN ANOTHER STATE
CITIZEN OF ANOTHER STATE [ ] 2 [ ] 2 INCORPORATED or PRINCIPAL PLACE [ ] 4 [ ] 4 FOREIGN NATION [ ] 6 [ ] 6 OF BUSINESS IN THIS STATE
PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)
DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)
DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN THE RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:
Check one: THIS ACTION SHOULD BE ASSIGNED TO: WHITE PLAINS MANHATTAN
DATE
RECEIPT #
SIGNATURE OF ATTORNEY OF RECORD ADMITTED TO PRACTICE IN THIS DISTRICT[ ] NO[ ] YES (DATE ADMITTED Mo. _______ Yr. _______)Attorney Bar Code #
Magistrate Judge is to be designated by the Clerk of the Court.
Magistrate Judge _________________________________________________________ is so Designated.
Ruby J. Krajick, Clerk of Court by _____________ Deputy Clerk, DATED _____________________.
UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)
COURTHOUSE ASSIGNMENTI hereby certify that this case should be assigned to the courthouse indicated below pursuant to Local Rule for Division of Business 18, 20 or 21.
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7Multidistrict Litigation (Transferred)
Multidistrict Litigation (Direct File)
**Bankruptcy Court Jurisdiction under 28 USC 1334**
S ACTION SHOULD BE ASSIGNED TO:
SIGNATURE OF ATTORNEY OF RECORD
✖
✖
Century 21 Department Stores LLC and Century 21, Inc.: 22 Cortlandt Street, New York, New York 10007; 66 Pearl Retail LLC, 66 Pearl Retail II LLC, 66 Pearl Retail ISG LLC: 66 Pearl Street, New York, NY 10004; 173 Bway Blue LLC: 173 Broadway New York, NY 10007; 262 Mott Blue TIC LLC: 262 Mott Street, New York, NY 10012; 444 86 Blue LLC: 444 86th Street, Brooklyn, NY 11209; Miami DD 101 Blue LLC: 101 Northeast 40th Street, Miami, FL 33137; 28 Newbury JSRE TIC LLC, True Blue
Starr Surplus Lines Insurance Co.: 399 Park Avenue 8th Floor New York, NY 10022; Allianz Global Risks US Insurance Co.: 225 West Washington Street, Suite 1800, Chicago, IL 60606; Axis Surplus Lines Insurance Co.: 111 South Wacker Drive, Suite 3500, Chicago, IL 60606; Liberty Mutual Fire Insurance Co.: 175 Berkeley Street, Boston, MA 02116; Steadfast Insurance Co.: 1400 American Lane, Schaumburg, IL 60196; Endurance American Specialty Insurance Co.: 750 3rd Avenue, New York, New
1001 C f 6001
✖
9/10/2020✖ Aug. 2015
5210182
✖
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
CMMON Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, AND CENTURY 21 INC.
Plaintiffs,
v.
STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTAN INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712
Defendants.
Case No. 20-cv-
Removed from the New York State Supreme Court, New York County, Index No. 652975/2020
CORPORATE DISCLOSURE STATEMENT PURSUANT TO FED. R. CIV. P. 7.1
Pursuant to Federal Rule of Civil Procedure 7.1, the undersigned Attorney of Record for
Plaintiff Century 21 Department Stores LLC, certifies as follows:
1. Century 21, Inc., which is one hundred percent (100%) owned solely by individuals,
owns one percent (1%) of the total membership interests, which comprise one
hundred percent (100%) of the voting rights, of C21 Department Stores Holdings
LLC (“C21 Holdings”). Ninety-nine percent (99%) of the total membership
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interests, which have no voting rights, of C21 Holdings are owned by individuals and
family trusts.
2. C21 Holdings owns one hundred percent (100%) of the membership interests in
Plaintiff Century 21 Department Stores LLC.
3. No publicly held corporation owns 10% or more of Century 21 Department Stores
LLC stock.
Dated: September 10, 2020 New York, New York
Respectfully submitted,
/s/ Steve Y. Ma
Steve Y. Ma PROSKAUER ROSE LLP 2029 Century Park East, Suite 2400 Los Angeles, CA 90067-3010 Telephone: (310) 557-2900 Facsimile: (310) 557-2193
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-1-
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, AND CENTURY 21 INC. Plaintiffs, v. STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTAN INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712 Defendants.
Case No. 1:20-cv-07437-LGS ANSWER OF LANDMARK AMERICAN INSURANCE CO
Defendant Landmark American Insurance Co. (“Landmark”), by its attorneys, for its
Answer in response to Plaintiffs’ Complaint, states as follows:
1. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 1 of the Complaint and, accordingly, denies the same.
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2. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 2 of the Complaint and, accordingly, denies the same.
3. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 3 of the Complaint and, accordingly, denies the same.
4. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 4 of the Complaint and, accordingly, denies the same.
5. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 5 of the Complaint and, accordingly, denies the same.
6. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 6 of the Complaint and, accordingly, denies the same.
7. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 7 of the Complaint and, accordingly, denies the same.
8. In response to paragraph 8 of the Complaint, Landmark admits that it received a
premium from its insured, Century 21 Department Stores, LLC (“Century 21”), in exchange for
insurance policies that are at issue in this action, and they have adjusted the COVID-19 insurance
claim submitted by Century 21. As to the remaining allegations in paragraph 8 of the Complaint,
Landmark is without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, denies the same.
9. In response to paragraph 9 of the Complaint, Landmark states that it has timely
adjusted the insurance claim at issue in this action. Landmark denies the remaining allegations in
paragraph 9 of the Complaint insofar as they are directed to it. The remaining allegations in
paragraph 9 of the Complaint are not directed to Landmark. As such, a response is not required
from it. To the extent a response is deemed necessary, Landmark is without knowledge or
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information sufficient to form a belief as to the truth of the allegations in paragraph 9 of the
Complaint and, accordingly, denies the same.
10. Landmark denies the allegations in paragraph 10 of the Complaint insofar as they
are directed to it. The remaining allegations in paragraph 10 of the Complaint are not directed to
Landmark. As such, a response is not required from it. To the extent a response is deemed
necessary, Landmark is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 10 of the Complaint and, accordingly, denies the same.
11. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 11 of the Complaint and, accordingly, denies the same.
12. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 12 of the Complaint and, accordingly, denies the same.
13. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 13 of the Complaint and, accordingly, denies the same.
14. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 14 of the Complaint and, accordingly, denies the same.
15. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 15 of the Complaint and, accordingly, denies the same.
16. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 16 of the Complaint and, accordingly, denies the same.
17. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 17 of the Complaint and, accordingly, denies the same.
18. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 18 of the Complaint and, accordingly, denies the same.
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19. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 19 of the Complaint and, accordingly, denies the same.
20. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 20 of the Complaint and, accordingly, denies the same.
21. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 21 of the Complaint and, accordingly, denies the same.
22. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 22 of the Complaint and, accordingly, denies the same.
23. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 23 of the Complaint and, accordingly, denies the same.
24. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 24 of the Complaint and, accordingly, denies the same.
25. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 25 of the Complaint and, accordingly, denies the same.
26. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 26 of the Complaint and, accordingly, denies the same.
27. The allegations in paragraph 27 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 27 of the Complaint and, accordingly, denies the same.
28. The allegations in paragraph 28 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
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is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 28 of the Complaint and, accordingly, denies the same.
29. The allegations in paragraph 29 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 29 of the Complaint and, accordingly, denies the same.
30. The allegations in paragraph 30 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 30 of the Complaint and, accordingly, denies the same.
31. The allegations in paragraph 31 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 31 of the Complaint and, accordingly, denies the same.
32. The allegations in paragraph 32 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 32 of the Complaint and, accordingly, denies the same.
33. The allegations in paragraph 33 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 33 of the Complaint and, accordingly, denies the same.
34. Landmark admits the allegations in paragraph 34 of the Complaint.
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35. The allegations in paragraph 35 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 35 of the Complaint and, accordingly, denies the same.
36. The allegations in paragraph 36 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 36 of the Complaint and, accordingly, denies the same.
37. The allegations in paragraph 37 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 37 of the Complaint and, accordingly, denies the same.
38. Landmark admits that the scientific community refers to SARS-CoV-2 as the
coronavirus and COVID-19 as the disease from the coronavirus. As to the remaining allegations
in paragraph 38 of the Complaint, Landmark is without knowledge or information sufficient to
form a belief as to the truth of the allegations and, accordingly, denies the same.
39. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 39 of the Complaint and, accordingly, denies the same.
40. Landmark admits that the World Health Organization has declared COVID-19 to
be a public health emergency. As to the remaining allegations in paragraph 40 of the Complaint,
Landmark is without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, denies the same.
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41. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 41 of the Complaint and, accordingly, denies the same.
42. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 42 of the Complaint and, accordingly, denies the same.
43. Landmark admits that COVID-19 has received widespread media attention. As to
the remaining allegations in paragraph 43 of the Complaint, Landmark is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
44. Landmark admits that the Center for Disease Control has made various
recommendations with respect to COVID-19. As to the remaining allegations in paragraph 44 of
the Complaint, Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
45. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 45 of the Complaint and, accordingly, denies the same.
46. Landmark denies the allegations in paragraph 46 of the Complaint.
47. Landmark denies the allegations in paragraph 47 of the Complaint.
48. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 48 of the Complaint and, accordingly, denies the same.
49. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 49 of the Complaint and, accordingly, denies the same.
50. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 50 of the Complaint and, accordingly, denies the same.
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51. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 51 of the Complaint and, accordingly, denies the same.
52. Landmark admits that state and/or local governments in jurisdictions where
Century 21 maintains stores issued orders with respect to COVID-19. As to the remaining
allegations in paragraph 52, Landmark is without knowledge or information sufficient to form a
belief as to the truth of those allegations and, accordingly, denies the same.
53. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 53 of the Complaint and, accordingly, denies the same.
54. In response to paragraph 54 of the Complaint, Landmark admits that Plaintiffs
purport to quote from various orders issued by governmental authorities, states that such orders
are not attached to or quoted in their entirety in the Complaint and speak for themselves, and denies
the remaining allegations in paragraph 54 of the Complaint.
55. In response to paragraph 55 of the Complaint, Landmark denies that any
governmental order evidences damages being suffered by Plaintiffs. As to the remaining
allegations in paragraph 55 of the Complaint, Landmark is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
56. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 56 of the Complaint and, accordingly, denies the same.
57. Landmark admits that Plaintiffs submitted a document entitled “Sworn Statement
in Partial Proof of Loss” to Landmark’s representative on or about May 26, 2020. Landmark
denies the remaining allegations in paragraph 57 of the Complaint.
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58. Landmark admits that Plaintiffs submitted certain documentation with its “Sworn
Statement in Partial Proof of Loss” on or about May 26, 2020. Landmark denies the remaining
allegations in paragraph 58.
59. Landmark admits that Plaintiffs allege a breach of contract in this action, denies
that Plaintiffs are entitled to any relief in this action and denies that it has failed to pay any amounts
owed under its insurance policies at issue in this action. As to the remaining allegations in
paragraph 59 of the Complaint, Landmark is without knowledge or information sufficient to form
a belief as to the truth of the allegations and, accordingly, denies the same.
60. Answering the allegations in paragraph 60 of the Complaint, Landmark states that
it provided insurance policies to Century 21 with an inception date of August 1, 2019 and that the
limit of liability and other terms of coverage are set forth in the insurance policies. As to the
remaining allegations in paragraph 60 of the Complaint, Landmark is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
61. Answering the allegations in paragraph 61 of the Complaint, Landmark admits that
the policies it provide to Century 21, Policy Nos. LHT909485 and LHT909486, are listed on
Schedule A to the Complaint and that the limit of liability and other terms of coverage are set forth
in the insurance policies (the “Landmark Policies”). Answering further, Landmark states that the
Landmark Policies are subject to all of the terms, conditions, limitations, and exclusions set forth
therein and denies the allegations in paragraph 61, including Schedule A to the Complaint, to the
extent that they are inconsistent with those terms, conditions, limitations, and exclusions. As to
the remaining allegations in paragraph 61 of the Complaint, Landmark is without knowledge or
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information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
62. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 62 of the Complaint and, accordingly, denies the same.
63. Landmark admits that the Landmark Policies provide certain coverages and states
that the Landmark Policies are subject to all of the terms, conditions, limitations, and exclusions
set forth therein and denies the allegations in paragraph 63 to the extent that they are inconsistent
with those terms, conditions, limitations, and exclusions. As to the remaining allegations in
paragraph 63 of the Complaint, Landmark is without knowledge or information sufficient to form
a belief as to the truth of the allegations and, accordingly, denies the same.
64. Landmark admits the allegations in paragraph 64 insofar as they relate to the
Landmark Policies. As to the remaining allegations in paragraph 64 of the Complaint, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations
and, accordingly, denies the same.
65. Landmark admits that the policy period for the Landmark Policies includes March
2020 and the filing date of Plaintiffs’ Complaint. As to the remaining allegations in paragraph 65
of the Complaint, Landmark is without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, denies the same.
66. Landmark admits that the Landmark Policies are one of multiple property insurance
policies provided to Century 21 for the 219-2020 policy period and denies the remaining
allegations in paragraph 66 insofar as they relate to Landmark. As to the remaining allegations in
paragraph 66 of the Complaint, Landmark is without knowledge or information sufficient to form
a belief as to the truth of the allegations and, accordingly, denies the same.
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67. Landmark states that the Landmark Policies are subject to all of the terms,
conditions, limitations, and exclusions set forth therein and denies the allegations in paragraph 67
to the extent that they are inconsistent with those terms, conditions, limitations, and exclusions.
As to the remaining allegations in paragraph 67 of the Complaint, Landmark is without knowledge
or information sufficient to form a belief as to the truth of the allegations and, accordingly, denies
the same.
68. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 68 of the Complaint. Answering further, Landmark states that the Landmark Policies
are subject to all of their terms, conditions, limitations, and exclusions. Landmark denies the
allegations of paragraph 68 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
68 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
69. The allegations in paragraph 69 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 69 of the Complaint and, accordingly, denies the same.
70. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 70 of the Complaint and denies that this language correctly states the limit of liability
applicable to the Landmark Policies. Answering further, Landmark states that the Landmark
Policies are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies
the allegations of paragraph 70 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
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70 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
71. Landmark admits that the Landmark Policies provide certain coverages subject to
all of the terms, conditions, limitations, and exclusions set forth therein, and denies that the
allegations in paragraph 71 are a complete and accurate statement of any coverage provided by the
Landmark Policies. Landmark denies the allegations of paragraph 71 to the extent that they are
inconsistent with the terms, conditions, limitations, and exclusions in the Landmark Policies. As
to the remaining allegations in paragraph 71 of the Complaint, Landmark is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
72. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 72 of the Complaint. Answering further, Landmark states that the Landmark Policies
are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies the
allegations of paragraph 72 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
72 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
73. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 73 of the Complaint. Answering further, Landmark states that the Landmark Policies
are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies the
allegations of paragraph 73 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
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73 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
74. The allegations in paragraph 74 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 74 of the Complaint and, accordingly, denies the same.
75. Landmark admits that the Landmark Policies provide coverage for business
interruption subject to all of the terms, conditions, limitations, and exclusions in the Landmark
Policies, and denies that the allegations in paragraph 75 are a complete and accurate statement of
any coverage provided by the Landmark Policies. Landmark denies the allegations of paragraph
75 to the extent that they are insistent with the terms, conditions, limitations, and exclusions in the
Landmark Policies. As to the remaining allegations in paragraph 75 of the Complaint, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations
and, accordingly, denies the same.
76. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 76 of the Complaint. Answering further, Landmark states that the Landmark Policies
are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies the
allegations of paragraph 76 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
76 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
77. The allegations in paragraph 77 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
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is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 77 of the Complaint and, accordingly, denies the same.
78. The allegations in paragraph 78 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 78 of the Complaint and, accordingly, denies the same.
79. Landmark admits that the Landmark Policies provide coverage for contingent
business interruption subject to all of the terms, conditions, limitations, and exclusions in the
Landmark Policies, and denies that the allegations in paragraph 79 are a complete and accurate
statement of any coverage provided by the Landmark Policies. Landmark denies the allegations
of paragraph 79 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Landmark Policies. As to the remaining allegations in paragraph 79 of the
Complaint, Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
80. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 80 of the Complaint. Answering further, Landmark states that the Landmark Policies
are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies the
allegations of paragraph 80 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
80 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
81. The allegations in paragraph 81 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
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is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 81 of the Complaint and, accordingly, denies the same.
82. Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 82 of the Complaint and, accordingly, denies the same.
83. Landmark admits that the Landmark Policies provide coverage for extra expense
subject to all of the terms, conditions, limitations, and exclusions in the Landmark Policies, and
denies that the allegations in paragraph 83 are a complete and accurate statement of any coverage
provided by the Landmark Policies. Landmark denies the allegations of paragraph 83 to the extent
that they are inconsistent with the terms, conditions, limitations, and exclusions in the Landmark
Policies. As to the remaining allegations in paragraph 83 of the Complaint, Landmark is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
84. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 84 of the Complaint. Answering further, Landmark states that the Landmark Policies
are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies the
allegations of paragraph 84 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
84 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
85. The allegations in paragraph 85 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 85 of the Complaint and, accordingly, denies the same.
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86. Landmark admits that the Landmark Policies contain a section titled Rents and
Rental Values, which is subject to all of the terms, conditions, limitations, and exclusions in the
Landmark Policies, and denies that the allegations in paragraph 86 are a complete and accurate
statement of any coverage provided by the Landmark Policies. Landmark denies the allegations
of paragraph 86 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Landmark Policies. As to the remaining allegations in paragraph 86 of the
Complaint, Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
87. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 87 of the Complaint. Answering further, Landmark states that the Landmark Policies
are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies the
allegations of paragraph 87 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
87 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
88. The allegations in paragraph 88 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 88 of the Complaint and, accordingly, denies the same.
89. Landmark admits that the Landmark Policies contain a section titled Interruption
by Civil Authority, which is subject to all of the terms, conditions, limitations, and exclusions in
the Landmark Policies, and denies that the allegations in paragraph 89 are a complete and accurate
statement of any coverage provided by the Landmark Policies. Landmark denies the allegations
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of paragraph 89 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Landmark Policies. As to the remaining allegations in paragraph 89 of the
Complaint, Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
90. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 90 of the Complaint. Answering further, Landmark states that the Landmark Policies
are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies the
allegations of paragraph 90 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
90 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
91. The allegations in paragraph 91 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 91 of the Complaint and, accordingly, denies the same.
92. Landmark admits that the Landmark Policies contain a section titled
Ingress/Egress, which is subject to all of the terms, conditions, limitations, and exclusions in the
Landmark Policies, and denies that the allegations in paragraph 92 are a complete and accurate
statement of any coverage provided by the Landmark Policies. Landmark denies the allegations
of paragraph 92 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Landmark Policies. As to the remaining allegations in paragraph 92 of the
Complaint, Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
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93. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 93 of the Complaint. Answering further, Landmark states that the Landmark Policies
are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies the
allegations of paragraph 93 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
93 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
94. The allegations in paragraph 94 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 94 of the Complaint and, accordingly, denies the same.
95. Landmark admits that the Landmark Policies contain a section titled Consequential
Reduction in Values, which is subject to all of the terms, conditions, limitations, and exclusions in
the Landmark Policies, and denies that the allegations in paragraph 95 are a complete and accurate
statement of any coverage provided by the Landmark Policies. Landmark denies the allegations
of paragraph 95 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Landmark Policies. As to the remaining allegations in paragraph 95 of the
Complaint, Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
96. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 96 of the Complaint. Answering further, Landmark states that the Landmark Policies
are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies the
allegations of paragraph 96 to the extent that they are inconsistent with the terms, conditions,
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limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
96 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
97. The allegations in paragraph 97 of the Complaint are not directed to Landmark. As
such, a response is not required from it. To the extent a response is deemed necessary, Landmark
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 97 of the Complaint and, accordingly, denies the same.
98. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 98 of the Complaint. Answering further, Landmark states that the Landmark Policies
are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies the
allegations of paragraph 98 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
98 of the Complaint, Landmark is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
99. Landmark admits that the Landmark Policies provide certain coverages and states
that the Landmark Policies is subject to all of the terms, conditions, limitations, and exclusions set
forth therein, and denies the allegations in paragraph 99 to the extent that they are inconsistent
with those terms, conditions, limitations, and exclusions. As to the remaining allegations in
paragraph 99 of the Complaint, Landmark is without knowledge or information sufficient to form
a belief as to the truth of the allegations and, accordingly, denies the same.
100. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 100 of the Complaint. Answering further, Landmark states that the Landmark
Policies are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies
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the allegations of paragraph 100 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
100 of the Complaint, Landmark is without knowledge or information sufficient to form a belief
as to the truth of the allegations and, accordingly, denies the same.
101. The allegations in paragraph 101 of the Complaint are not directed to Landmark.
As such, a response is not required from it. To the extent a response is deemed necessary,
Landmark is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 101 of the Complaint and, accordingly, denies the same.
102. Landmark denies the allegations in paragraph 102 of the Complaint insofar as they
relate to the Landmark Policies. As to the remaining allegations in paragraph 102 of the
Complaint, Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
103. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 103 of the Complaint and denies that it drafted the Landmark Policies. Answering
further, Landmark states that the Landmark Policies are subject to all of its terms, conditions,
limitations, and exclusions. Landmark denies the allegations of paragraph 103 to the extent that
they are inconsistent with the terms, conditions, limitations, and exclusions in the Landmark
Policies. As to the remaining allegations in paragraph 103 of the Complaint, Landmark is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
104. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 104 of the Complaint. Answering further, Landmark states that the Landmark
Policies are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies
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the allegations of paragraph 104 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
104 of the Complaint, Landmark is without knowledge or information sufficient to form a belief
as to the truth of the allegations and, accordingly, denies the same.
105. The allegations in paragraph 105 of the Complaint are not directed to Landmark.
As such, a response is not required from it. To the extent a response is deemed necessary,
Landmark is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 105 of the Complaint and, accordingly, denies the same.
106. Landmark denies the allegations in paragraph 106 of the Complaint insofar as they
relate to the Landmark Policies. As to the remaining allegations in paragraph 106 of the
Complaint, Landmark is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
107. Landmark admits that the Landmark Policies contain, in part, the language quoted
in paragraph 107 of the Complaint. Answering further, Landmark states that the Landmark
Policies are subject to all of its terms, conditions, limitations, and exclusions. Landmark denies
the allegations of paragraph 107 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Landmark Policies. As to the remaining allegations in paragraph
107 of the Complaint, Landmark is without knowledge or information sufficient to form a belief
as to the truth of the allegations and, accordingly, denies the same.
108. Landmark admits that Century 21 submitted a document entitled “Sworn Statement
in Partial Proof of Loss” with certain documentation to Landmark’s representative on or about
May 26, 2020. Landmark denies the remaining allegations in paragraph 108 of the Complaint.
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109. The allegations in paragraph 109 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, Landmark denies the
allegations in paragraph 109.
110. In response to paragraph 110 of the Complaint, Landmark states that on or about
June 16, 2020 it responded in writing to the proof of loss submitted by Century 21 Department
Stores, LLC, such response speaks for itself, and Landmark denies any allegations in paragraph
110 that are inconsistent with this response. Landmark denies the remaining allegations in
paragraph 110 of the Complaint.
111. Landmark denies the allegations in paragraph 111 of the Complaint.
112. Landmark denies the allegations in paragraph 112 of the Complaint.
113. Landmark denies the allegations in paragraph 113 of the Complaint.
114. Landmark denies the allegations in paragraph 114 of the Complaint.
115. Landmark denies the allegations in paragraph 115 of the Complaint.
116. Landmark denies the allegations in paragraph 116 of the Complaint.
117. In response to paragraph 117 of the Complaint, Landmark states that Plaintiffs have
provided some of the information requested by Landmark. Landmark denies the remaining
allegations in paragraph 117 of the Complaint.
118. Landmark denies the allegations in paragraph 118 of the Complaint.
119. Landmark denies the allegations in paragraph 119 of the Complaint.
120. Landmark denies the allegations in paragraph 120 of the Complaint.
121. Landmark denies the allegations in paragraph 121 of the Complaint.
122. The allegations in paragraph 122 of the Complaint are not directed to Landmark.
As such, a response is not required from it. To the extent a response is deemed necessary,
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Landmark is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 122 of the Complaint and, accordingly, denies the same.
123. Landmark repeats and incorporates by reference its responses to the allegations
contained in paragraph 1 through 122 of the Complaint as if each were set forth individually and
incorporated fully herein.
124. In response to paragraph 124 of the Complaint, Landmark states that it entered into
a contract with Century 21 and the other insureds under the Landmark Policies. As to the
remaining allegations in paragraph 124 of the Complaint, Landmark is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
125. Landmark denies the allegations in paragraph 125 of the Complaint.
126. Landmark denies the allegations in paragraph 126 of the Complaint.
127. Landmark denies the allegations in paragraph 127 of the Complaint.
128. Landmark denies the allegations in paragraph 128 of the Complaint.
129. Landmark repeats and incorporates by reference its responses to the allegations
contained in paragraph 1 through 128 of the Complaint as if each were set forth individually and
incorporated fully herein.
130. The allegations in paragraph 130 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, Landmark denies the
allegations in paragraph 130.
131. Landmark denies the allegations in paragraph 131 of the Complaint.
132. Landmark denies the allegations in paragraph 132 of the Complaint.
133. Landmark denies the allegations in paragraph 133 of the Complaint.
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134. Landmark denies the allegations in paragraph 134 of the Complaint.
135. Landmark denies that Plaintiffs are entitled to the relief requested in the
unnumbered Wherefore paragraph following paragraph 134 of the Complaint.
ADDITIONAL DEFENSES
Landmark asserts the following separate defenses without assuming any burden of proof
or persuasion.
FIRST ADDITIONAL DEFENSE
The Complaint is barred, in whole or in part, to the extent that it fails to state a cause of
action against Landmark upon which relief may be granted.
SECOND ADDITIONAL DEFENSE
The Landmark Policies contain the following exclusion:
We will not pay for loss or damage caused directly or indirectly by the discharge, dispersal, seepage, migration, release, escape or application of any pathogenic or poisonous biological or chemical materials. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. However, if both A. and B. below apply, we will pay up to a maximum of $10,000 for any and all claims for such loss or damage arising out of events occurring within the term of this policy: A. The pathogenic or poisonous biological or chemical materials are normally kept at or brought onto your premises, with your consent, for use in your business operations at your premises; and B. The discharge, dispersal, seepage, migration, release, escape or application of the pathogenic or poisonous biological or chemical materials is accidental and is not the result of a willful or malicious act against any persons, organizations, or property of any nature.
There is no coverage under the Landmark Policies because of the application of this exclusion.
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THIRD ADDITIONAL DEFENSE
The Landmark Policies identify “Loss of market/Delay of Use” as excluded perils. There
is no coverage for Plaintiffs’ claims to the extent they arise from these perils.
FOURTH ADDITIONAL DEFENSE
Landmark already has paid to Century 21 the amount due under the Landmark Policies for
interruption of or interference with the insureds’ business in direct consequence of infectious or
contagious disease and thus Plaintiffs are entitled to no further recovery for their insurance claim.
FIFTH ADDITIONAL DEFENSE
Coverage under the Landmark Policies is barred to the extent that Plaintiffs seek to recover
amounts that do not arise from physical loss or damage to insured property.
SIXTH ADDITIONAL DEFENSE
Coverage under the Landmark Policies is barred to the extent that the losses and damages
alleged in the Complaint are not covered under the terms, conditions, exclusions, and/or limitations
of the Landmark Policies.
SEVENTH ADDITIONAL DEFENSE
Plaintiffs’ claim and alleged loss or damage are subject to, and limited by, limits, sublimits
and deductibles under Landmark Policies.
EIGHTH ADDITIONAL DEFENSE
Landmark’s obligation to Plaintiffs, if any, is subject to offset for recoveries by Plaintiffs
from other persons or entities, including any governmental entities, for Plaintiffs’ losses or
damages.
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NINTH ADDITIONAL DEFENSE
Plaintiffs are not entitled to recover their attorney’s fees under any cause of action asserted
in the Complaint or any other possible cause of action.
TENTH ADDITIONAL DEFENSE
Landmark reserves the right to offer and rely on any other terms, conditions, limitations,
requirements, deductibles, and exclusions contained in the Landmark Policies. In the event that
facts become known through discovery in this action that may support the assertion of additional
defenses or that may cause other terms, conditions, limitations, requirements, deductibles, and/or
exclusions contained in the Landmark Policies to apply to Plaintiffs’ claims, Landmark reserves
the right to seek leave from this Court to amend their defenses accordingly.
WHEREFORE Landmark respectfully request that this Court dismiss Plaintiffs’ Complaint
with prejudice, enter judgment in favor of Landmark, and grant such other relief as the Court shall
deem just and equitable.
ROBINS KAPLAN LLP /s/ Meegan F. Hollywood Meegan F. Hollywood 399 Park Avenue, Suite 3600 New York, NY 10022 Telephone: (212) 980 7400 Facsimile: (212) 980 7499 Email: [email protected] Matthew M. Burke, Esq. (pro hac vice motion forthcoming) ROBINS KAPLAN LLP 800 Boylston Street, Suite 2500 Boston, MA 02199 Telephone: (617) 859-2711 Facsimile: (617) 267-8288 [email protected]
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Attorneys for Defendant Landmark American Insurance Co.
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CERTIFICATE OF SERVICE
I, Meegan F. Hollywood, hereby certify that on this day, I electronically filed the within
document with the Clerk of the Court using the CM/ECF system that will send notification of such
filing(s) to all counsel of record. The document is available for viewing and downloading through
the ECF system.
Dated: September 18, 2020 /s/ Meegan F. Hollywood Meegan F. Hollywood
37124651.2
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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, AND CENTURY 21 INC. Plaintiffs, v. STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTAN INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712 Defendants.
Case No. 1:20-cv-07437-LGS ANSWER OF LIBERTY MUTUAL FIRE INSURANCE CO.
Defendant Liberty Mutual Fire Insurance Co. (“Liberty Mutual”), by its attorneys, for its
Answer in response to Plaintiffs’ Complaint, states as follows:
1. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 1 of the Complaint and, accordingly, denies the same.
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2. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 2 of the Complaint and, accordingly, denies the same.
3. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 3 of the Complaint and, accordingly, denies the same.
4. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 4 of the Complaint and, accordingly, denies the same.
5. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 5 of the Complaint and, accordingly, denies the same.
6. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 6 of the Complaint and, accordingly, denies the same.
7. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 7 of the Complaint and, accordingly, denies the same.
8. In response to paragraph 8 of the Complaint, Liberty Mutual admits that it received
a premium from its insured, Century 21 Department Stores, LLC (“Century 21”), in exchange for
the insurance policies at issue in this action, they have adjusted the COVID-19 insurance claim
submitted by Century 21, and have made payments under its insurance policies with respect to this
insurance claim. As to the remaining allegations in paragraph 8 of the Complaint, Liberty Mutual
is without knowledge or information sufficient to form a belief as to the truth of the allegations
and, accordingly, denies the same.
9. In response to paragraph 9 of the Complaint, Liberty Mutual states that it has timely
adjusted the insurance claim at issue in this action and made payments under its insurance policies
with respect to this insurance claim. Liberty Mutual denies the remaining allegations in paragraph
9 of the Complaint insofar as they are directed to it. The remaining allegations in paragraph 9 of
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the Complaint are not directed to Liberty Mutual. As such, a response is not required from it. To
the extent a response is deemed necessary, Liberty Mutual is without knowledge or information
sufficient to form a belief as to the truth of the allegations in paragraph 9 of the Complaint and,
accordingly, denies the same.
10. Liberty Mutual denies the allegations in paragraph 10 of the Complaint insofar as
they are directed to it. The remaining allegations in paragraph 10 of the Complaint are not directed
to Liberty Mutual. As such, a response is not required from it. To the extent a response is deemed
necessary, Liberty Mutual is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 10 of the Complaint and, accordingly, denies the same.
11. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 11 of the Complaint and, accordingly, denies the same.
12. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 12 of the Complaint and, accordingly, denies the same.
13. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 13 of the Complaint and, accordingly, denies the same.
14. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 14 of the Complaint and, accordingly, denies the same.
15. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 15 of the Complaint and, accordingly, denies the same.
16. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 16 of the Complaint and, accordingly, denies the same.
17. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 17 of the Complaint and, accordingly, denies the same.
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18. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 18 of the Complaint and, accordingly, denies the same.
19. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 19 of the Complaint and, accordingly, denies the same.
20. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 20 of the Complaint and, accordingly, denies the same.
21. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 21 of the Complaint and, accordingly, denies the same.
22. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 22 of the Complaint and, accordingly, denies the same.
23. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 23 of the Complaint and, accordingly, denies the same.
24. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 24 of the Complaint and, accordingly, denies the same.
25. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 25 of the Complaint and, accordingly, denies the same.
26. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 26 of the Complaint and, accordingly, denies the same.
27. The allegations in paragraph 27 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 27 of the Complaint and, accordingly, denies the same.
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28. The allegations in paragraph 28 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 28 of the Complaint and, accordingly, denies the same.
29. The allegations in paragraph 29 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 29 of the Complaint and, accordingly, denies the same.
30. Liberty Mutual admits the allegations in paragraph 30 of the Complaint.
31. The allegations in paragraph 31 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 31 of the Complaint and, accordingly, denies the same.
32. The allegations in paragraph 32 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 32 of the Complaint and, accordingly, denies the same.
33. The allegations in paragraph 33 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 33 of the Complaint and, accordingly, denies the same.
34. The allegations in paragraph 34 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
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Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 34 of the Complaint and, accordingly, denies the same.
35. The allegations in paragraph 35 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 35 of the Complaint and, accordingly, denies the same.
36. The allegations in paragraph 36 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 36 of the Complaint and, accordingly, denies the same.
37. The allegations in paragraph 37 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 37 of the Complaint and, accordingly, denies the same.
38. Liberty Mutual admits that the scientific community refers to SARS-CoV-2 as the
coronavirus and COVID-19 as the disease from the coronavirus. As to the remaining allegations
in paragraph 38 of the Complaint, Liberty Mutual is without knowledge or information sufficient
to form a belief as to the truth of the allegations and, accordingly, denies the same.
39. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 39 of the Complaint and, accordingly, denies the same.
40. Liberty Mutual admits that the World Health Organization has declared COVID-
19 to be a public health emergency. As to the remaining allegations in paragraph 40 of the
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Complaint, Liberty Mutual is without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, denies the same.
41. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 41 of the Complaint and, accordingly, denies the same.
42. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 42 of the Complaint and, accordingly, denies the same.
43. Liberty Mutual admits that COVID-19 has received widespread media attention.
As to the remaining allegations in paragraph 43 of the Complaint, Liberty Mutual is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
44. Liberty Mutual admits that the Center for Disease Control has made various
recommendations with respect to COVID-19. As to the remaining allegations in paragraph 44 of
the Complaint, Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
45. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 45 of the Complaint and, accordingly, denies the same.
46. Liberty Mutual denies the allegations in paragraph 46 of the Complaint.
47. Liberty Mutual denies the allegations in paragraph 47 of the Complaint.
48. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 48 of the Complaint and, accordingly, denies the same.
49. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 49 of the Complaint and, accordingly, denies the same.
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50. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 50 of the Complaint and, accordingly, denies the same.
51. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 51 of the Complaint and, accordingly, denies the same.
52. Liberty Mutual admits that state and/or local governments in jurisdictions where
Century 21 maintains stores issued orders with respect to COVID-19. As to the remaining
allegations in paragraph 52, Liberty Mutual is without knowledge or information sufficient to form
a belief as to the truth of those allegations and, accordingly, denies the same.
53. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 53 of the Complaint and, accordingly, denies the same.
54. In response to paragraph 54 of the Complaint, Liberty Mutual admits that Plaintiffs
purport to quote from various orders issued by governmental authorities, states that such orders
are not attached to or quoted in their entirety in the Complaint and speak for themselves, and denies
the remaining allegations in paragraph 54 of the Complaint.
55. In response to paragraph 55 of the Complaint, Liberty Mutual denies that any
governmental order evidences damages being suffered by Plaintiffs. As to the remaining
allegations in paragraph 55 of the Complaint, Liberty Mutual is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
56. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 56 of the Complaint and, accordingly, denies the same.
57. Liberty Mutual admits that Plaintiffs submitted a document entitled “Sworn
Statement in Partial Proof of Loss” to Liberty Mutual’s representative on or about May 26, 2020.
Liberty Mutual denies the remaining allegations in paragraph 57 of the Complaint.
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58. Liberty Mutual admits that Plaintiffs submitted certain documentation with its
“Sworn Statement in Partial Proof of Loss” on or about May 26, 2020. Liberty Mutual denies the
remaining allegations in paragraph 58.
59. Liberty Mutual admits that Plaintiffs allege a breach of contract in this action,
denies that Plaintiffs are entitled to any relief in this action and denies that it has failed to pay any
amounts owed under its insurance policies that are at issue in this action. As to the remaining
allegations in paragraph 59 of the Complaint, Liberty Mutual is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
60. Answering the allegations in paragraph 60 of the Complaint, Liberty Mutual states
it provided two insurance policies to Century 21 with an inception date of August 1, 2019 and that
the limit of liability and other terms of coverage are set forth in those insurance policies. As to the
remaining allegations in paragraph 60 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
61. Answering the allegations in paragraph 61 of the Complaint, Liberty Mutual admits
that the policies it provided to Century 21, Policy Nos. YS2-L9L-464440-019 and MQ2-L9L-
464440-029, are listed on Schedule A to the Complaint and that the limits of liability and other
terms of coverage are set forth in the insurance policies (the “Liberty Mutual Policies”).
Answering further, Liberty Mutual states that the Liberty Mutual Policies are subject to all of the
terms, conditions, limitations, and exclusions set forth therein and denies the allegations in
paragraph 61, including Schedule A to the Complaint, to the extent that they are inconsistent with
those terms, conditions, limitations, and exclusions. As to the remaining allegations in paragraph
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61 of the Complaint, Liberty Mutual is without knowledge or information sufficient to form a
belief as to the truth of the allegations and, accordingly, denies the same.
62. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 62 of the Complaint and, accordingly, denies the same.
63. Liberty Mutual admits that Liberty Mutual Policies provide certain coverages and
states that the Liberty Mutual Policies are subject to all of the terms, conditions, limitations, and
exclusions set forth therein and denies the allegations in paragraph 63 to the extent that they are
inconsistent with those terms, conditions, limitations, and exclusions. As to the remaining
allegations in paragraph 63 of the Complaint, Liberty Mutual is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
64. Liberty Mutual admits the allegations in paragraph 64 insofar as they relate to the
Liberty Mutual Policies. As to the remaining allegations in paragraph 64 of the Complaint, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, denies the same.
65. Liberty Mutual admits that the policy period for the Liberty Mutual Policies
includes March 2020 and the filing date of Plaintiffs’ Complaint. As to the remaining allegations
in paragraph 65 of the Complaint, Liberty Mutual is without knowledge or information sufficient
to form a belief as to the truth of the allegations and, accordingly, denies the same.
66. Liberty Mutual admits that the Liberty Mutual Policies are among the multiple
property insurance policies provided to Century 21 for the 219-2020 policy period and denies the
remaining allegations in paragraph 66 insofar as they relate to Liberty Mutual. As to the remaining
allegations in paragraph 66 of the Complaint, Liberty Mutual is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
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67. Liberty Mutual states that the Liberty Mutual Policies are subject to all of the terms,
conditions, limitations, and exclusions set forth therein and denies the allegations in paragraph 67
to the extent that they are inconsistent with those terms, conditions, limitations, and exclusions.
As to the remaining allegations in paragraph 67 of the Complaint, Liberty Mutual is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
68. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 68 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 68 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in Liberty Mutual Policies. As to the remaining
allegations in paragraph 68 of the Complaint, Liberty Mutual is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
69. The allegations in paragraph 69 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 69 of the Complaint and, accordingly, denies the same.
70. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 70 of the Complaint and denies that this language correctly states
the limit of liability applicable to the Liberty Mutual Policies. Answering further, Liberty Mutual
states that the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and
exclusions. Liberty Mutual denies the allegations of paragraph 70 to the extent that they are
inconsistent with the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies.
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As to the remaining allegations in paragraph 70 of the Complaint, Liberty Mutual is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
71. Liberty Mutual admits that the Liberty Mutual Policies provide certain coverages
subject to all of the terms, conditions, limitations, and exclusions set forth therein, and denies that
the allegations in paragraph 71 are a complete and accurate statement of any coverage provided
by the Liberty Mutual Policies. Liberty Mutual denies the allegations of paragraph 71 to the extent
that they are inconsistent with the terms, conditions, limitations, and exclusions in the Liberty
Mutual Policies. As to the remaining allegations in paragraph 71 of the Complaint, Liberty Mutual
is without knowledge or information sufficient to form a belief as to the truth of the allegations
and, accordingly, denies the same.
72. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 72 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 72 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 72 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
73. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 73 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 73 to the extent that they are inconsistent with
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the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 73 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
74. The allegations in paragraph 74 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 74 of the Complaint and, accordingly, denies the same.
75. Liberty Mutual admits that the Liberty Mutual Policies provide coverage for
business interruption subject to all of the terms, conditions, limitations, and exclusions in the
Liberty Mutual Policies, and denies that the allegations in paragraph 75 are a complete and accurate
statement of any coverage provided by the Liberty Mutual Policies. Liberty Mutual denies the
allegations of paragraph 75 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Liberty Mutual Policies. As to the remaining allegations in
paragraph 75 of the Complaint, Liberty Mutual is without knowledge or information sufficient to
form a belief as to the truth of the allegations and, accordingly, denies the same.
76. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 76 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 76 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 76 of the Complaint, Liberty Mutual is without knowledge or
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information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
77. The allegations in paragraph 77 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 77 of the Complaint and, accordingly, denies the same.
78. The allegations in paragraph 78 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 78 of the Complaint and, accordingly, denies the same.
79. Liberty Mutual admits that the Liberty Mutual Policies provide coverage for
contingent business interruption subject to all of the terms, conditions, limitations, and exclusions
in the Liberty Mutual Policies, and denies that the allegations in paragraph 79 are a complete and
accurate statement of any coverage provided by the Liberty Mutual Policies. Liberty Mutual
denies the allegations of paragraph 79 to the extent that they are inconsistent with the terms,
conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the remaining
allegations in paragraph 79 of the Complaint, Liberty Mutual is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
80. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 80 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 80 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
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remaining allegations in paragraph 80 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
81. The allegations in paragraph 81 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 81 of the Complaint and, accordingly, denies the same.
82. Liberty Mutual is without knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 82 of the Complaint and, accordingly, denies the same.
83. Liberty Mutual admits that the Liberty Mutual Policies provide coverage for extra
expense subject to all of the terms, conditions, limitations, and exclusions in Liberty Mutual
Policies, and denies that the allegations in paragraph 83 are a complete and accurate statement of
any coverage provided by the Liberty Mutual Policies. Liberty Mutual denies the allegations of
paragraph 83 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Liberty Mutual Policies. As to the remaining allegations in paragraph 83 of the
Complaint, Liberty Mutual is without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, denies the same.
84. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 84 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 84 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 84 of the Complaint, Liberty Mutual is without knowledge or
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information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
85. The allegations in paragraph 85 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 85 of the Complaint and, accordingly, denies the same.
86. Liberty Mutual admits that the Liberty Mutual Policies contain a section titled
Rents and Rental Values, which are subject to all of the terms, conditions, limitations, and
exclusions in the Liberty Mutual Policies, and denies that the allegations in paragraph 86 are a
complete and accurate statement of any coverage provided by the Liberty Mutual Policies. Liberty
Mutual denies the allegations of paragraph 86 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the remaining
allegations in paragraph 86 of the Complaint, Liberty Mutual is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
87. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 87 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 87 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 87 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
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88. The allegations in paragraph 88 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 88 of the Complaint and, accordingly, denies the same.
89. Liberty Mutual admits that the Liberty Mutual Policies contain a section titled
Interruption by Civil Authority, which are subject to all of the terms, conditions, limitations, and
exclusions in the Liberty Mutual Policies, and denies that the allegations in paragraph 89 are a
complete and accurate statement of any coverage provided by the Liberty Mutual Policies. Liberty
Mutual denies the allegations of paragraph 89 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the remaining
allegations in paragraph 89 of the Complaint, Liberty Mutual is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
90. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 90 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 90 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 90 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
91. The allegations in paragraph 91 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
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Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 91 of the Complaint and, accordingly, denies the same.
92. Liberty Mutual admits that the Liberty Mutual Policies contain a section titled
Ingress/Egress, which are subject to all of the terms, conditions, limitations, and exclusions in the
Liberty Mutual Policies, and denies that the allegations in paragraph 92 are a complete and accurate
statement of any coverage provided by the Liberty Mutual Policies. Liberty Mutual denies the
allegations of paragraph 92 to the extent that they are inconsistent with the terms, conditions,
limitations, and exclusions in the Liberty Mutual Policies. As to the remaining allegations in
paragraph 92 of the Complaint, Liberty Mutual is without knowledge or information sufficient to
form a belief as to the truth of the allegations and, accordingly, denies the same.
93. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 93 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 93 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 93 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
94. The allegations in paragraph 94 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 94 of the Complaint and, accordingly, denies the same.
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95. Liberty Mutual admits that the Liberty Mutual Policies contain a section titled
Consequential Reduction in Values, which are subject to all of the terms, conditions, limitations,
and exclusions in the Liberty Mutual Policies, and denies that the allegations in paragraph 95 are
a complete and accurate statement of any coverage provided by the Liberty Mutual Policies.
Liberty Mutual denies the allegations of paragraph 95 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 95 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
96. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 96 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 96 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 96 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
97. The allegations in paragraph 97 of the Complaint are not directed to Liberty Mutual.
As such, a response is not required from it. To the extent a response is deemed necessary, Liberty
Mutual is without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 97 of the Complaint and, accordingly, denies the same.
98. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 98 of the Complaint. Answering further, Liberty Mutual states that
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the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 98 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 98 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
99. Liberty Mutual admits that the Liberty Mutual Policies provide certain coverages
and states that the Liberty Mutual Policies are subject to all of the terms, conditions, limitations,
and exclusions set forth therein and denies the allegations in paragraph 99 to the extent that they
are inconsistent with those terms, conditions, limitations, and exclusions. As to the remaining
allegations in paragraph 99 of the Complaint, Liberty Mutual is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
100. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 100 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 100 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 100 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
101. The allegations in paragraph 101 of the Complaint are not directed to Liberty
Mutual. As such, a response is not required from it. To the extent a response is deemed necessary,
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Liberty Mutual is without knowledge or information sufficient to form a belief as to the truth of
the allegations in paragraph 101 of the Complaint and, accordingly, denies the same.
102. Liberty Mutual denies the allegations in paragraph 102 of the Complaint insofar as
they relate to the Liberty Mutual Policies. As to the remaining allegations in paragraph 102 of the
Complaint, Liberty Mutual is without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, denies the same.
103. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 103 of the Complaint and denies that it drafted the Liberty Mutual
Policies. Answering further, Liberty Mutual states that the Liberty Mutual Policies are subject to
all of their terms, conditions, limitations, and exclusions. Liberty Mutual denies the allegations of
paragraph 103 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Liberty Mutual Policies. As to the remaining allegations in paragraph 103 of the
Complaint, Liberty Mutual is without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, denies the same.
104. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 104 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 104 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 104 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
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105. The allegations in paragraph 105 of the Complaint are not directed to Liberty
Mutual. As such, a response is not required from it. To the extent a response is deemed necessary,
Liberty Mutual is without knowledge or information sufficient to form a belief as to the truth of
the allegations in paragraph 105 of the Complaint and, accordingly, denies the same.
106. Liberty Mutual denies the allegations in paragraph 106 of the Complaint insofar as
they relate to the Liberty Mutual Policies. As to the remaining allegations in paragraph 106 of the
Complaint, Liberty Mutual is without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, denies the same.
107. Liberty Mutual admits that the Liberty Mutual Policies contain, in part, the
language quoted in paragraph 107 of the Complaint. Answering further, Liberty Mutual states that
the Liberty Mutual Policies are subject to all of their terms, conditions, limitations, and exclusions.
Liberty Mutual denies the allegations of paragraph 107 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in the Liberty Mutual Policies. As to the
remaining allegations in paragraph 107 of the Complaint, Liberty Mutual is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
108. Liberty Mutual admits that Century 21 submitted a document entitled “Sworn
Statement in Partial Proof of Loss” with certain documentation to Liberty Mutual’s representative
on or about May 26, 2020. Liberty Mutual denies the remaining allegations in paragraph 108 of
the Complaint.
109. The allegations in paragraph 109 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, Liberty Mutual denies the
allegations in paragraph 109.
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110. In response to paragraph 110 of the Complaint, Liberty Mutual states that on or
about June 16, 2020 it responded in writing to the proof of loss submitted by Century 21, such
response speaks for itself, and Liberty Mutual denies any allegations in paragraph 110 that are
inconsistent with this response. Liberty Mutual denies the remaining allegations in paragraph 110
of the Complaint.
111. Liberty Mutual denies the allegations in paragraph 111 of the Complaint.
112. Liberty Mutual denies the allegations in paragraph 112 of the Complaint.
113. Liberty Mutual denies the allegations in paragraph 113 of the Complaint.
114. Liberty Mutual denies the allegations in paragraph 114 of the Complaint.
115. Liberty Mutual denies the allegations in paragraph 115 of the Complaint.
116. Liberty Mutual denies the allegations in paragraph 116 of the Complaint.
117. In response to paragraph 117 of the Complaint, Liberty Mutual states that Plaintiffs
have provided some of the information requested by Liberty Mutual. Liberty Mutual denies the
remaining allegations in paragraph 117 of the Complaint.
118. Liberty Mutual denies the allegations in paragraph 118 of the Complaint.
119. Liberty Mutual denies the allegations in paragraph 119 of the Complaint.
120. Liberty Mutual denies the allegations in paragraph 120 of the Complaint.
121. Liberty Mutual denies the allegations in paragraph 121 of the Complaint.
122. The allegations in paragraph 122 of the Complaint are not directed to Liberty
Mutual. As such, a response is not required from it. To the extent a response is deemed necessary,
Liberty Mutual is without knowledge or information sufficient to form a belief as to the truth of
the allegations in paragraph 122 of the Complaint and, accordingly, denies the same.
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123. Liberty Mutual repeats and incorporates by reference its responses to the allegations
contained in paragraph 1 through 122 of the Complaint as if each were set forth individually and
incorporated fully herein.
124. In response to paragraph 124 of the Complaint, Liberty Mutual states that it entered
into a contract with Century 21 and the other insureds under the Liberty Mutual Policies. As to
the remaining allegations in paragraph 124 of the Complaint, Liberty Mutual is without knowledge
or information sufficient to form a belief as to the truth of the allegations and, accordingly, denies
the same.
125. Liberty Mutual denies the allegations in paragraph 125 of the Complaint.
126. Liberty Mutual denies the allegations in paragraph 126 of the Complaint.
127. Liberty Mutual denies the allegations in paragraph 127 of the Complaint.
128. Liberty Mutual denies the allegations in paragraph 128 of the Complaint.
129. Liberty Mutual repeats and incorporates by reference its responses to the allegations
contained in paragraph 1 through 128 of the Complaint as if each were set forth individually and
incorporated fully herein.
130. The allegations in paragraph 130 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, Liberty Mutual denies the
allegations in paragraph 130.
131. Liberty Mutual denies the allegations in paragraph 131 of the Complaint.
132. Liberty Mutual denies the allegations in paragraph 132 of the Complaint.
133. Liberty Mutual denies the allegations in paragraph 133 of the Complaint.
134. Liberty Mutual denies the allegations in paragraph 134 of the Complaint.
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135. Liberty Mutual denies that Plaintiffs are entitled to the relief requested in the
unnumbered Wherefore paragraph following paragraph 134 of the Complaint.
ADDITIONAL DEFENSES
Liberty Mutual asserts the following separate defenses without assuming any burden of
proof or persuasion.
FIRST ADDITIONAL DEFENSE
The Complaint is barred, in whole or in part, to the extent that it fails to state a cause of
action against Liberty Mutual upon which relief may be granted.
SECOND ADDITIONAL DEFENSE
The Liberty Mutual Policies contain the following exclusion:
This policy does not insure against loss caused by the presence, discharge, dispersal, seepage, migration, release or escape of any pollutant(s) unless the presence, discharge, dispersal, seepage, migration, release or escape is itself caused by fire, lightning, aircraft, explosion, riot, civil commotion, smoke, vehicles, windstorm or hail to property contained in any building, vandalism, malicious mischief or leakage or accidental discharge from automatic fire protective systems. But if loss by any of the above twelve (12) perils ensues, then this Company shall be liable for only loss caused by the ensuing peril.
Nor, will the Company pay under this policy for the costs associated with the enforcement of any ordinance or law which requires any insured or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of pollutants.
The italicized term pollutant(s) as used in this endorsement means any solid, liquid, gaseous or thermal irritant or contaminant, including, but not limited to, fiber, smoke, vapor, soot, fumes, acid, alkalis, chemicals, biological, organic or bacterial agents and waste. Waste includes, but is not limited to, materials to be recycled, reconditioned or reclaimed. However, pollutant(s) does not include ammonia.
There is no coverage under the Liberty Mutual Policies because of the application of this exclusion.
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THIRD ADDITIONAL DEFENSE
The Liberty Mutual Policies identify “Loss of market/Delay of Use” as excluded perils.
There is no coverage for Plaintiffs’ claims to the extent they arise from these perils.
FOURTH ADDITIONAL DEFENSE
Liberty Mutual already has paid to Century 21 the amount due under the Liberty Mutual
Policies for interruption of or interference with the insureds’ business in direct consequence of
infectious or contagious disease and thus Plaintiffs are entitled to no further recovery for their
insurance claim.
FIFTH ADDITIONAL DEFENSE
Coverage under the Liberty Mutual Policies is barred to the extent that Plaintiffs seek to
recover amounts that do not arise from physical loss or damage to insured property.
SIXTH ADDITIONAL DEFENSE
Coverage under the Liberty Mutual Policies is barred to the extent that the losses and
damages alleged in the Complaint are not covered under the terms, conditions, exclusions, and/or
limitations of the Liberty Mutual Policies.
SEVENTH ADDITIONAL DEFENSE
Plaintiffs’ claim and alleged loss or damage are subject to, and limited by, limits, sublimits
and deductibles under Liberty Mutual Policies.
EIGHTH ADDITIONAL DEFENSE
Liberty Mutual’s obligation to Plaintiffs, if any, is subject to offset for recoveries by
Plaintiffs from other persons or entities, including any governmental entities, for Plaintiffs’ losses
or damages.
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NINTH ADDITIONAL DEFENSE
Plaintiffs are not entitled to recover their attorney’s fees under any cause of action asserted
in the Complaint or any other possible cause of action.
TENTH ADDITIONAL DEFENSE
Liberty Mutual reserves the right to offer and rely on any other terms, conditions,
limitations, requirements, deductibles, and exclusions contained in the Liberty Mutual Policies. In
the event that facts become known through discovery in this action that may support the assertion
of additional defenses or that may cause other terms, conditions, limitations, requirements,
deductibles, and/or exclusions contained in the Liberty Mutual Policies to apply to Plaintiffs’
claims, Liberty Mutual reserves the right to seek leave from this Court to amend their defenses
accordingly.
WHEREFORE Liberty Mutual respectfully request that this Court dismiss Plaintiffs’
Complaint with prejudice, enter judgment in favor of Liberty Mutual, and grant such other relief
as the Court shall deem just and equitable.
ROBINS KAPLAN LLP /s/ Meegan F. Hollywood Meegan F. Hollywood 399 Park Avenue, Suite 3600 New York, NY 10022 Telephone: (212) 980 7400 Facsimile: (212) 980 7499 Email: [email protected] Matthew M. Burke, Esq. (pro hac vice motion forthcoming) ROBINS KAPLAN LLP 800 Boylston Street, Suite 2500 Boston, MA 02199 Telephone: (617) 859-2711
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Facsimile: (617) 267-8288 [email protected]
Attorneys for Defendant Liberty Mutual Fire Insurance Co.
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CERTIFICATE OF SERVICE
I, Meegan F. Hollywood, hereby certify that on this day, I electronically filed the within
document with the Clerk of the Court using the CM/ECF system that will send notification of such
filing(s) to all counsel of record. The document is available for viewing and downloading through
the ECF system.
Dated: September 18, 2020 /s/ Meegan F. Hollywood Meegan F. Hollywood
37124629.2
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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, AND CENTURY 21 INC. Plaintiffs, v. STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTAN INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712 Defendants.
Case No. 1:20-cv-07437-LGS ANSWER OF STARR SURPLUS LINES INSURANCE CO.
Defendant Starr Surplus Lines Insurance Co. (“Starr”), by its attorneys, for its Answer in
response to Plaintiffs’ Complaint, states as follows:
1. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 1 of the Complaint and, accordingly, denies the same.
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2. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 2 of the Complaint and, accordingly, denies the same.
3. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 3 of the Complaint and, accordingly, denies the same.
4. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 4 of the Complaint and, accordingly, denies the same.
5. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 5 of the Complaint and, accordingly, denies the same.
6. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 6 of the Complaint and, accordingly, denies the same.
7. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 7 of the Complaint and, accordingly, denies the same.
8. In response to paragraph 8 of the Complaint, Starr admits that it received a premium
from its insured, Century 21 Department Stores, LLC (“Century 21”), in exchange for an insurance
policy that is at issue in this action, they have adjusted the COVID-19 insurance claim submitted
by Century 21, and have made payments under its insurance policy with respect to this insurance
claim. As to the remaining allegations in paragraph 8 of the Complaint, Starr is without knowledge
or information sufficient to form a belief as to the truth of the allegations and, accordingly, denies
the same.
9. In response to paragraph 9 of the Complaint, Starr states that it has timely adjusted
the insurance claim at issue in this action and made payments under its insurance policy with
respect to this insurance claim. Starr denies the remaining allegations in paragraph 9 of the
Complaint insofar as they are directed to it. The remaining allegations in paragraph 9 of the
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Complaint are not directed to Starr. As such, a response is not required from it. To the extent a
response is deemed necessary, Starr is without knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 9 of the Complaint and, accordingly, denies the same.
10. Starr denies the allegations in paragraph 10 of the Complaint insofar as they are
directed to it. The remaining allegations in paragraph 10 of the Complaint are not directed to Starr.
As such, a response is not required from it. To the extent a response is deemed necessary, Starr is
without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 10 of the Complaint and, accordingly, denies the same.
11. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 11 of the Complaint and, accordingly, denies the same.
12. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 12 of the Complaint and, accordingly, denies the same.
13. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 13 of the Complaint and, accordingly, denies the same.
14. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 14 of the Complaint and, accordingly, denies the same.
15. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 15 of the Complaint and, accordingly, denies the same.
16. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 16 of the Complaint and, accordingly, denies the same.
17. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 17 of the Complaint and, accordingly, denies the same.
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18. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 18 of the Complaint and, accordingly, denies the same.
19. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 19 of the Complaint and, accordingly, denies the same.
20. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 20 of the Complaint and, accordingly, denies the same.
21. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 21 of the Complaint and, accordingly, denies the same.
22. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 22 of the Complaint and, accordingly, denies the same.
23. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 23 of the Complaint and, accordingly, denies the same.
24. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 24 of the Complaint and, accordingly, denies the same.
25. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 25 of the Complaint and, accordingly, denies the same.
26. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 26 of the Complaint and, accordingly, denies the same.
27. Starr admits the allegations in paragraph 27 of the Complaint.
28. The allegations in paragraph 28 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
28 of the Complaint and, accordingly, denies the same.
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29. The allegations in paragraph 29 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
29 of the Complaint and, accordingly, denies the same.
30. The allegations in paragraph 30 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
30 of the Complaint and, accordingly, denies the same.
31. The allegations in paragraph 31 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
31 of the Complaint and, accordingly, denies the same.
32. The allegations in paragraph 32 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
32 of the Complaint and, accordingly, denies the same.
33. The allegations in paragraph 33 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
33 of the Complaint and, accordingly, denies the same.
34. The allegations in paragraph 34 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
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knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
34 of the Complaint and, accordingly, denies the same.
35. The allegations in paragraph 35 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
35 of the Complaint and, accordingly, denies the same.
36. The allegations in paragraph 36 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
36 of the Complaint and, accordingly, denies the same.
37. The allegations in paragraph 37 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
37 of the Complaint and, accordingly, denies the same.
38. Starr admits that the scientific community refers to SARS-CoV-2 as the coronavirus
and COVID-19 as the disease from the coronavirus. As to the remaining allegations in paragraph
38 of the Complaint, Starr is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
39. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 39 of the Complaint and, accordingly, denies the same.
40. Starr admits that the World Health Organization has declared COVID-19 to be a
public health emergency. As to the remaining allegations in paragraph 40 of the Complaint, Starr
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is without knowledge or information sufficient to form a belief as to the truth of the allegations
and, accordingly, denies the same.
41. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 41 of the Complaint and, accordingly, denies the same.
42. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 42 of the Complaint and, accordingly, denies the same.
43. Starr admits that COVID-19 has received widespread media attention. As to the
remaining allegations in paragraph 43 of the Complaint, Starr is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
44. Starr admits that the Center for Disease Control has made various recommendations
with respect to COVID-19. As to the remaining allegations in paragraph 44 of the Complaint,
Starr is without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, denies the same.
45. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 45 of the Complaint and, accordingly, denies the same.
46. Starr denies the allegations in paragraph 46 of the Complaint.
47. Starr denies the allegations in paragraph 47 of the Complaint.
48. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 48 of the Complaint and, accordingly, denies the same.
49. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 49 of the Complaint and, accordingly, denies the same.
50. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 50 of the Complaint and, accordingly, denies the same.
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51. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 51 of the Complaint and, accordingly, denies the same.
52. Starr admits that state and/or local governments in jurisdictions where Century 21
maintains stores issued orders with respect to COVID-19. As to the remaining allegations in
paragraph 52, Starr is without knowledge or information sufficient to form a belief as to the truth
of those allegations and, accordingly, denies the same.
53. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 53 of the Complaint and, accordingly, denies the same.
54. In response to paragraph 54 of the Complaint, Starr admits that Plaintiffs purport
to quote from various orders issued by governmental authorities, states that such orders are not
attached to or quoted in their entirety in the Complaint and speak for themselves, and denies the
remaining allegations in paragraph 54 of the Complaint.
55. In response to paragraph 55 of the Complaint, Starr denies that any governmental
order evidences damages being suffered by Plaintiffs. As to the remaining allegations in paragraph
55 of the Complaint, Starr is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
56. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 56 of the Complaint and, accordingly, denies the same.
57. Starr admits that Plaintiffs submitted a document entitled “Sworn Statement in
Partial Proof of Loss” to Starr’s representative on or about May 26, 2020. Starr denies the
remaining allegations in paragraph 57 of the Complaint.
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58. Starr admits that Plaintiffs submitted certain documentation with its “Sworn
Statement in Partial Proof of Loss” on or about May 26, 2020. Starr denies the remaining
allegations in paragraph 58.
59. Starr admits that Plaintiffs allege a breach of contract in this action, denies that
Plaintiffs are entitled to any relief in this action and denies that it has failed to pay any amounts
owed under the insurance policy it subscribed that is at issue in this action. As to the remaining
allegations in paragraph 59 of the Complaint, Starr is without knowledge or information sufficient
to form a belief as to the truth of the allegations and, accordingly, denies the same.
60. Answering the allegations in paragraph 60 of the Complaint, Starr states that it
provided an insurance policy to Century 21 with an inception date of August 1, 2019 and that the
limit of liability and other terms of coverage are set forth in the insurance policy. As to the
remaining allegations in paragraph 60 of the Complaint, Starr is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
61. Answering the allegations in paragraph 61 of the Complaint, Starr admits that the
policy it provided to Century 21, Policy No. SLSTPTY11215019, is listed on Schedule A to the
Complaint and that the limit of liability and other terms of coverage are set forth in the insurance
policy (the “Starr Policy”). Answering further, Starr states that the Starr Policy is subject to all of
the terms, conditions, limitations, and exclusions set forth therein and denies the allegations in
paragraph 61, including Schedule A to the Complaint, to the extent that they are inconsistent with
those terms, conditions, limitations, and exclusions. As to the remaining allegations in paragraph
61 of the Complaint, Starr is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
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62. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 62 of the Complaint and, accordingly, denies the same.
63. Starr admits that the Starr Policy provides certain coverages and states that the Starr
Policy is subject to all of the terms, conditions, limitations, and exclusions set forth therein and
denies the allegations in paragraph 63 to the extent that they are inconsistent with those terms,
conditions, limitations, and exclusions. As to the remaining allegations in paragraph 63 of the
Complaint, Starr is without knowledge or information sufficient to form a belief as to the truth of
the allegations and, accordingly, denies the same.
64. Starr admits the allegations in paragraph 64 insofar as they relate to the Starr Policy.
As to the remaining allegations in paragraph 64 of the Complaint, Starr is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
65. Starr admits that the policy period for the Starr Policy includes March 2020 and the
filing date of Plaintiffs’ Complaint. As to the remaining allegations in paragraph 65 of the
Complaint, Starr is without knowledge or information sufficient to form a belief as to the truth of
the allegations and, accordingly, denies the same.
66. Starr admits that the Starr Policy is one of multiple property insurance policies
provided to Century 21 for the 219-2020 policy period and denies the remaining allegations in
paragraph 66 insofar as they relate to Starr. As to the remaining allegations in paragraph 66 of the
Complaint, Starr is without knowledge or information sufficient to form a belief as to the truth of
the allegations and, accordingly, denies the same.
67. Starr states that the Starr Policy is subject to all of the terms, conditions, limitations,
and exclusions set forth therein and denies the allegations in paragraph 67 to the extent that they
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are inconsistent with those terms, conditions, limitations, and exclusions. As to the remaining
allegations in paragraph 67 of the Complaint, Starr is without knowledge or information sufficient
to form a belief as to the truth of the allegations and, accordingly, denies the same.
68. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
68 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 68 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 68 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
69. The allegations in paragraph 69 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
69 of the Complaint and, accordingly, denies the same.
70. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
70 of the Complaint and denies that this language correctly states the limit of liability applicable
to the Starr Policy. Answering further, Starr states that the Starr Policy is subject to all of its terms,
conditions, limitations, and exclusions. Starr denies the allegations of paragraph 70 to the extent
that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr Policy.
As to the remaining allegations in paragraph 70 of the Complaint, Starr is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
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71. Starr admits that the Starr Policy provides certain coverages subject to all of the
terms, conditions, limitations, and exclusions set forth therein, and denies that the allegations in
paragraph 71 are a complete and accurate statement of any coverage provided by the Starr Policy.
Starr denies the allegations of paragraph 71 to the extent that they are inconsistent with the terms,
conditions, limitations, and exclusions in the Starr Policy. As to the remaining allegations in
paragraph 71 of the Complaint, Starr is without knowledge or information sufficient to form a
belief as to the truth of the allegations and, accordingly, denies the same.
72. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
72 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 72 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 72 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
73. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
73 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 73 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 73 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
74. The allegations in paragraph 74 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
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knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
74 of the Complaint and, accordingly, denies the same.
75. Starr admits that the Starr Policy provides coverage for business interruption
subject to all of the terms, conditions, limitations, and exclusions in the Starr Policy, and denies
that the allegations in paragraph 75 are a complete and accurate statement of any coverage
provided by the Starr Policy. Starr denies the allegations of paragraph 75 to the extent that they
are inconsistent with the terms, conditions, limitations, and exclusions in the Starr Policy. As to
the remaining allegations in paragraph 75 of the Complaint, Starr is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
76. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
76 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 76 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 76 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
77. The allegations in paragraph 77 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
77 of the Complaint and, accordingly, denies the same.
78. The allegations in paragraph 78 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
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knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
78 of the Complaint and, accordingly, denies the same.
79. Starr admits that the Starr Policy provides coverage for contingent business
interruption subject to all of the terms, conditions, limitations, and exclusions in the Starr Policy,
and denies that the allegations in paragraph 79 are a complete and accurate statement of any
coverage provided by the Starr Policy. Starr denies the allegations of paragraph 79 to the extent
that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr Policy.
As to the remaining allegations in paragraph 79 of the Complaint, Starr is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
80. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
80 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 80 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 80 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
81. The allegations in paragraph 81 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
81 of the Complaint and, accordingly, denies the same.
82. Starr is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 82 of the Complaint and, accordingly, denies the same.
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83. Starr admits that the Starr Policy provides coverage for extra expense subject to all
of the terms, conditions, limitations, and exclusions in the Starr Policy, and denies that the
allegations in paragraph 83 are a complete and accurate statement of any coverage provided by the
Starr Policy. Starr denies the allegations of paragraph 83 to the extent that they are inconsistent
with the terms, conditions, limitations, and exclusions in the Starr Policy. As to the remaining
allegations in paragraph 83 of the Complaint, Starr is without knowledge or information sufficient
to form a belief as to the truth of the allegations and, accordingly, denies the same.
84. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
84 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 84 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 84 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
85. The allegations in paragraph 85 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
85 of the Complaint and, accordingly, denies the same.
86. Starr admits that the Starr Policy contains a section titled Rents and Rental Values,
which is subject to all of the terms, conditions, limitations, and exclusions in the Starr Policy, and
denies that the allegations in paragraph 86 are a complete and accurate statement of any coverage
provided by the Starr Policy. Starr denies the allegations of paragraph 86 to the extent that they
are inconsistent with the terms, conditions, limitations, and exclusions in the Starr Policy. As to
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the remaining allegations in paragraph 86 of the Complaint, Starr is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
87. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
87 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 87 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 87 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
88. The allegations in paragraph 88 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
88 of the Complaint and, accordingly, denies the same.
89. Starr admits that the Starr Policy contains a section titled Interruption by Civil
Authority, which is subject to all of the terms, conditions, limitations, and exclusions in the Starr
Policy, and denies that the allegations in paragraph 89 are a complete and accurate statement of
any coverage provided by the Starr Policy. Starr denies the allegations of paragraph 89 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 89 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
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90. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
90 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 90 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 90 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
91. The allegations in paragraph 91 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
91 of the Complaint and, accordingly, denies the same.
92. Starr admits that the Starr Policy contains a section titled Ingress/Egress, which is
subject to all of the terms, conditions, limitations, and exclusions in the Starr Policy, and denies
that the allegations in paragraph 92 are a complete and accurate statement of any coverage
provided by Starr the Policy. Starr denies the allegations of paragraph 92 to the extent that they
are inconsistent with the terms, conditions, limitations, and exclusions in the Starr Policy. As to
the remaining allegations in paragraph 92 of the Complaint, Starr is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
93. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
93 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 93 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
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Policy. As to the remaining allegations in paragraph 93 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
94. The allegations in paragraph 94 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
94 of the Complaint and, accordingly, denies the same.
95. Starr admits that the Starr Policy contains a section titled Consequential Reduction
in Values, which is subject to all of the terms, conditions, limitations, and exclusions in the Starr
Policy, and denies that the allegations in paragraph 95 are a complete and accurate statement of
any coverage provided by the Starr Policy. Starr denies the allegations of paragraph 95 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 95 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
96. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
96 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of it
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 96 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 96 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
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97. The allegations in paragraph 97 of the Complaint are not directed to Starr. As such,
a response is not required from it. To the extent a response is deemed necessary, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph
97 of the Complaint and, accordingly, denies the same.
98. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
98 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 98 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 98 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
99. Starr admits that the Starr Policy provides certain coverages and states that the Starr
Policy is subject to all of the terms, conditions, limitations, and exclusions set forth therein, and
denies the allegations in paragraph 99 to the extent that they are inconsistent with those terms,
conditions, limitations, and exclusions. As to the remaining allegations in paragraph 99 of the
Complaint, Starr is without knowledge or information sufficient to form a belief as to the truth of
the allegations and, accordingly, denies the same.
100. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
100 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 100 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 100 of the Complaint, Starr is without
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knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
101. The allegations in paragraph 101 of the Complaint are not directed to Starr. As
such, a response is not required from it. To the extent a response is deemed necessary, Starr is
without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 101 of the Complaint and, accordingly, denies the same.
102. Starr denies the allegations in paragraph 102 of the Complaint insofar as they relate
to the Starr Policy. As to the remaining allegations in paragraph 102 of the Complaint, Starr is
without knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
103. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
103 of the Complaint and denies that it drafted the Starr Policy. Answering further, Starr states
that the Starr Policy is subject to all of its terms, conditions, limitations, and exclusions. Starr
denies the allegations of paragraph 103 to the extent that they are inconsistent with the terms,
conditions, limitations, and exclusions in the Starr Policy. As to the remaining allegations in
paragraph 103 of the Complaint, Starr is without knowledge or information sufficient to form a
belief as to the truth of the allegations and, accordingly, denies the same.
104. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
104 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 104 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 104 of the Complaint, Starr is without
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knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
105. The allegations in paragraph 105 of the Complaint are not directed to Starr. As
such, a response is not required from it. To the extent a response is deemed necessary, Starr is
without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 105 of the Complaint and, accordingly, denies the same.
106. Starr denies the allegations in paragraph 106 of the Complaint insofar as they relate
to the Starr Policy. As to the remaining allegations in paragraph 106 of the Complaint, Starr is
without knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
107. Starr admits that the Starr Policy contains, in part, the language quoted in paragraph
107 of the Complaint. Answering further, Starr states that the Starr Policy is subject to all of its
terms, conditions, limitations, and exclusions. Starr denies the allegations of paragraph 107 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the Starr
Policy. As to the remaining allegations in paragraph 107 of the Complaint, Starr is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
108. Starr admits that Century 21 submitted a document entitled “Sworn Statement in
Partial Proof of Loss” with certain documentation to Starr’s representative on or about May 26,
2020. Starr denies the remaining allegations in paragraph 108 of the Complaint.
109. The allegations in paragraph 109 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, Starr denies the allegations
in paragraph 109.
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110. In response to paragraph 110 of the Complaint, Starr states that on or about June
16, 2020 it responded in writing to the proof of loss submitted by Century 21, such response speaks
for itself, and Starr denies any allegations in paragraph 110 that are inconsistent with this response.
Starr denies the remaining allegations in paragraph 110 of the Complaint.
111. Starr denies the allegations in paragraph 111 of the Complaint.
112. Starr denies the allegations in paragraph 112 of the Complaint.
113. Starr denies the allegations in paragraph 113 of the Complaint.
114. Starr denies the allegations in paragraph 114 of the Complaint.
115. Starr denies the allegations in paragraph 115 of the Complaint.
116. Starr denies the allegations in paragraph 116 of the Complaint.
117. In response to paragraph 117 of the Complaint, Starr states that Plaintiffs have
provided some of the information requested by Starr. Starr denies the remaining allegations in
paragraph 117 of the Complaint.
118. Starr denies the allegations in paragraph 118 of the Complaint.
119. Starr denies the allegations in paragraph 119 of the Complaint.
120. Starr denies the allegations in paragraph 120 of the Complaint.
121. Starr denies the allegations in paragraph 121 of the Complaint.
122. The allegations in paragraph 122 of the Complaint are not directed to Starr. As
such, a response is not required from it. To the extent a response is deemed necessary, Starr is
without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 122 of the Complaint and, accordingly, denies the same.
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123. Starr repeats and incorporates by reference its responses to the allegations contained
in paragraph 1 through 122 of the Complaint as if each were set forth individually and incorporated
fully herein.
124. In response to paragraph 124 of the Complaint, Starr states that it entered into a
contract with Century 21 and the other insureds under the Starr Policy. As to the remaining
allegations in paragraph 124 of the Complaint, Starr is without knowledge or information sufficient
to form a belief as to the truth of the allegations and, accordingly, denies the same.
125. Starr denies the allegations in paragraph 125 of the Complaint.
126. Starr denies the allegations in paragraph 126 of the Complaint.
127. Starr denies the allegations in paragraph 127 of the Complaint.
128. Starr denies the allegations in paragraph 128 of the Complaint.
129. Starr repeats and incorporates by reference its responses to the allegations contained
in paragraph 1 through 128 of the Complaint as if each were set forth individually and incorporated
fully herein.
130. The allegations in paragraph 130 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, Starr denies the allegations
in paragraph 130.
131. Starr denies the allegations in paragraph 131 of the Complaint.
132. Starr denies the allegations in paragraph 132 of the Complaint.
133. Starr denies the allegations in paragraph 133 of the Complaint.
134. Starr denies the allegations in paragraph 134 of the Complaint.
135. Starr denies that Plaintiffs are entitled to the relief requested in the unnumbered
Wherefore paragraph following paragraph 134 of the Complaint.
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ADDITIONAL DEFENSES
Starr asserts the following separate defenses without assuming any burden of proof or
persuasion.
FIRST ADDITIONAL DEFENSE
The Complaint is barred, in whole or in part, to the extent that it fails to state a cause of
action against Starr upon which relief may be granted.
SECOND ADDITIONAL DEFENSE
The Starr Policy identifies “Loss of market/Delay of Use” as excluded perils. There is no
coverage for Plaintiffs’ claims to the extent they arise from these perils.
THIRD ADDITIONAL DEFENSE
Starr already has paid to Century 21 the amount due under the Starr Policy for interruption
of or interference with the insureds’ business in direct consequence of infectious or contagious
disease and thus Plaintiffs are entitled to no further recovery for their insurance claim.
FOURTH ADDITIONAL DEFENSE
Coverage under the Starr Policy is barred to the extent that Plaintiffs seek to recover
amounts that do not arise from physical loss or damage to insured property.
FIFTH ADDITIONAL DEFENSE
Coverage under the Starr Policy is barred to the extent that the losses and damages alleged
in the Complaint are not covered under the terms, conditions, exclusions, and/or limitations of the
Starr Policy.
SIXTH ADDITIONAL DEFENSE
Plaintiffs’ claim and alleged loss or damage are subject to, and limited by, limits, sublimits
and deductibles under the Starr Policy.
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SEVENTH ADDITIONAL DEFENSE
Starr’s obligation to Plaintiffs, if any, is subject to offset for recoveries by Plaintiffs from
other persons or entities, including any governmental entities, for Plaintiffs’ losses or damages.
EIGHTH ADDITIONAL DEFENSE
Plaintiffs are not entitled to recover their attorney’s fees under any cause of action asserted
in the Complaint or any other possible cause of action.
NINTH ADDITIONAL DEFENSE
Starr reserves the right to offer and rely on any other terms, conditions, limitations,
requirements, deductibles, and exclusions contained in the Starr Policy. In the event that facts
become known through discovery in this action that may support the assertion of additional
defenses or that may cause other terms, conditions, limitations, requirements, deductibles, and/or
exclusions contained in the Starr Policy to apply to Plaintiffs’ claims, Starr reserves the right to
seek leave from this Court to amend their defenses accordingly.
WHEREFORE Starr respectfully requests that this Court dismiss Plaintiffs’ Complaint
with prejudice, enter judgment in favor of Starr, and grant such other relief as the Court shall deem
just and equitable.
ROBINS KAPLAN LLP /s/ Meegan F. Hollywood Meegan F. Hollywood 399 Park Avenue, Suite 3600 New York, NY 10022 Telephone: (212) 980 7400 Facsimile: (212) 980 7499 Email: [email protected]
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Matthew M. Burke, Esq. (pro hac vice motion forthcoming) ROBINS KAPLAN LLP 800 Boylston Street, Suite 2500 Boston, MA 02199 Telephone: (617) 859-2711 Facsimile: (617) 267-8288 [email protected]
Attorneys for Defendant Starr Surplus Lines Insurance Co.
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CERTIFICATE OF SERVICE
I, Meegan F. Hollywood, hereby certify that on this day, I electronically filed the within
document with the Clerk of the Court using the CM/ECF system that will send notification of such
filing(s) to all counsel of record. The document is available for viewing and downloading through
the ECF system.
Dated: September 18, 2020 /s/ Meegan F. Hollywood Meegan F. Hollywood
37124589.2
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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, AND CENTURY 21 INC. Plaintiffs, v. STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTAN INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712 Defendants.
Case No. 1:20-cv-07437-LGS ANSWER OF STEADFAST INSURANCE COMPANY
Defendant Steadfast Insurance Co. (“Steadfast”), by its attorneys, for its Answer in
response to Plaintiffs’ Complaint, states as follows:
1. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 1 of the Complaint and, accordingly, denies the same.
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2. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 2 of the Complaint and, accordingly, denies the same.
3. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 3 of the Complaint and, accordingly, denies the same.
4. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 4 of the Complaint and, accordingly, denies the same.
5. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 5 of the Complaint and, accordingly, denies the same.
6. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 6 of the Complaint and, accordingly, denies the same.
7. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 7 of the Complaint and, accordingly, denies the same.
8. In response to paragraph 8 of the Complaint, Steadfast admits that it received a
premium from its insured, Century 21 Department Stores, LLC (“Century 21”), in exchange for
an insurance policy that is at issue in this action, they have adjusted the COVID-19 insurance claim
submitted by Century 21, and have made payments under its insurance policy with respect to this
insurance claim. As to the remaining allegations in paragraph 8 of the Complaint, Steadfast is
without knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
9. In response to paragraph 9 of the Complaint, Steadfast states that it has timely
adjusted the insurance claim at issue in this action and made payments under its insurance policy
with respect to this insurance claim. Steadfast denies the remaining allegations in paragraph 9 of
the Complaint insofar as they are directed to it. The remaining allegations in paragraph 9 of the
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Complaint are not directed to Steadfast. As such, a response is not required from it. To the extent
a response is deemed necessary, Steadfast is without knowledge or information sufficient to form
a belief as to the truth of the allegations in paragraph 9 of the Complaint and, accordingly, denies
the same.
10. Steadfast denies the allegations in paragraph 10 of the Complaint insofar as they
are directed to it. The remaining allegations in paragraph 10 of the Complaint are not directed to
Steadfast. As such, a response is not required from it. To the extent a response is deemed
necessary, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 10 of the Complaint and, accordingly, denies the same.
11. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 11 of the Complaint and, accordingly, denies the same.
12. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 12 of the Complaint and, accordingly, denies the same.
13. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 13 of the Complaint and, accordingly, denies the same.
14. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 14 of the Complaint and, accordingly, denies the same.
15. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 15 of the Complaint and, accordingly, denies the same.
16. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 16 of the Complaint and, accordingly, denies the same.
17. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 17 of the Complaint and, accordingly, denies the same.
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18. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 18 of the Complaint and, accordingly, denies the same.
19. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 19 of the Complaint and, accordingly, denies the same.
20. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 20 of the Complaint and, accordingly, denies the same.
21. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 21 of the Complaint and, accordingly, denies the same.
22. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 22 of the Complaint and, accordingly, denies the same.
23. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 23 of the Complaint and, accordingly, denies the same.
24. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 24 of the Complaint and, accordingly, denies the same.
25. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 25 of the Complaint and, accordingly, denies the same.
26. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 26 of the Complaint and, accordingly, denies the same.
27. The allegations in paragraph 27 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 27 of the Complaint and, accordingly, denies the same.
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28. The allegations in paragraph 28 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 28 of the Complaint and, accordingly, denies the same.
29. The allegations in paragraph 29 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 29 of the Complaint and, accordingly, denies the same.
30. The allegations in paragraph 30 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 30 of the Complaint and, accordingly, denies the same.
31. Steadfast admits the allegations in paragraph 31 of the Complaint.
32. The allegations in paragraph 32 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 32 of the Complaint and, accordingly, denies the same.
33. The allegations in paragraph 33 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 33 of the Complaint and, accordingly, denies the same.
34. The allegations in paragraph 34 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
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is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 34 of the Complaint and, accordingly, denies the same.
35. The allegations in paragraph 35 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 35 of the Complaint and, accordingly, denies the same.
36. The allegations in paragraph 36 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 36 of the Complaint and, accordingly, denies the same.
37. The allegations in paragraph 37 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 37 of the Complaint and, accordingly, denies the same.
38. Steadfast admits that the scientific community refers to SARS-CoV-2 as the
coronavirus and COVID-19 as the disease from the coronavirus. As to the remaining allegations
in paragraph 38 of the Complaint, Steadfast is without knowledge or information sufficient to form
a belief as to the truth of the allegations and, accordingly, denies the same.
39. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 39 of the Complaint and, accordingly, denies the same.
40. Steadfast admits that the World Health Organization has declared COVID-19 to be
a public health emergency. As to the remaining allegations in paragraph 40 of the Complaint,
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Steadfast is without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, denies the same.
41. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 41 of the Complaint and, accordingly, denies the same.
42. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 42 of the Complaint and, accordingly, denies the same.
Steadfast further states that, to the extent the Center for Disease Control issued statements
regarding COVID-19, such statements speak for themselves.
43. Steadfast admits that COVID-19 has received widespread media attention. As to
the remaining allegations in paragraph 43 of the Complaint, Steadfast is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
44. Steadfast admits that the Center for Disease Control has made various statements
with respect to COVID-19 and further states that such statements speak for themselves. As to the
remaining allegations in paragraph 44 of the Complaint, Steadfast is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
45. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 45 of the Complaint and, accordingly, denies the same.
46. Steadfast denies the allegations in paragraph 46 of the Complaint.
47. Steadfast denies the allegations in paragraph 47 of the Complaint.
48. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 48 of the Complaint and, accordingly, denies the same.
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49. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 49 of the Complaint and, accordingly, denies the same.
50. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 50 of the Complaint and, accordingly, denies the same.
51. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 51 of the Complaint and, accordingly, denies the same.
52. Steadfast admits that state and/or local governments in jurisdictions where Century
21 maintains stores issued orders with respect to COVID-19 and states that such orders speak for
themselves. As to the remaining allegations in paragraph 52, Steadfast is without knowledge or
information sufficient to form a belief as to the truth of those allegations and, accordingly, denies
the same.
53. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 53 of the Complaint and, accordingly, denies the same.
54. In response to paragraph 54 of the Complaint, Steadfast admits that Plaintiffs
purport to quote from various orders issued by governmental authorities, states that such orders
are not attached to or quoted in their entirety in the Complaint and speak for themselves, and denies
the remaining allegations in paragraph 54 of the Complaint.
55. In response to paragraph 55 of the Complaint, Steadfast denies that any
governmental order evidences damages being suffered by Plaintiffs. As to the remaining
allegations in paragraph 55 of the Complaint, Steadfast is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
56. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 56 of the Complaint and, accordingly, denies the same.
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57. Steadfast admits that Plaintiffs submitted a document entitled “Sworn Statement in
Partial Proof of Loss” to Steadfast’s representative on or about May 26, 2020. Steadfast denies
the remaining allegations in paragraph 57 of the Complaint.
58. Steadfast admits that Plaintiffs submitted certain documentation with its “Sworn
Statement in Partial Proof of Loss” on or about May 26, 2020. Steadfast denies the remaining
allegations in paragraph 58.
59. Steadfast admits that Plaintiffs allege a breach of contract in this action, denies that
Plaintiffs are entitled to any relief in this action and denies that it has failed to pay any amounts
owed under its insurance policy that is at issue in this action. As to the remaining allegations in
paragraph 59 of the Complaint, Steadfast is without knowledge or information sufficient to form
a belief as to the truth of the allegations and, accordingly, denies the same.
60. Answering the allegations in paragraph 60 of the Complaint, Steadfast states that it
provided an insurance policy to Century 21 with an inception date of August 1, 2019 and that the
limit of liability and other terms of coverage are set forth in the insurance policy. As to the
remaining allegations in paragraph 60 of the Complaint, Steadfast is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
61. Answering the allegations in paragraph 61 of the Complaint, Steadfast admits that
the policy it provided to Century 21, Policy No. XPP 5492113-06, is listed on Schedule A to the
Complaint and that the limit of liability and other terms of coverage are set forth in the insurance
policy (the “Steadfast Policy”). Answering further, Steadfast states that the Steadfast Policy is
subject to all of the terms, conditions, limitations, and exclusions set forth therein and denies the
allegations in paragraph 61, including Schedule A to the Complaint, to the extent that they are
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inconsistent with those terms, conditions, limitations, and exclusions. As to the remaining
allegations in paragraph 61 of the Complaint, Steadfast is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
62. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 62 of the Complaint and, accordingly, denies the same.
63. Steadfast admits that the Steadfast Policy provides certain coverages and states that
the Steadfast Policy is subject to all of the terms, conditions, limitations, and exclusions set forth
therein and denies the allegations in paragraph 63 to the extent that they are inconsistent with those
terms, conditions, limitations, and exclusions. As to the remaining allegations in paragraph 63 of
the Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations and, accordingly, denies the same.
64. Steadfast admits the allegations in paragraph 64 insofar as they relate to the
Steadfast Policy. As to the remaining allegations in paragraph 64 of the Complaint, Steadfast is
without knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
65. Steadfast admits that the policy period for the Steadfast Policy includes March 2020
and the filing date of Plaintiffs’ Complaint. As to the remaining allegations in paragraph 65 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
66. Steadfast admits that the Steadfast Policy is one of multiple property insurance
policies provided to Century 21 for the 2019-2020 policy period and denies the remaining
allegations in paragraph 66 insofar as they relate to Steadfast. As to the remaining allegations in
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paragraph 66 of the Complaint, Steadfast is without knowledge or information sufficient to form
a belief as to the truth of the allegations and, accordingly, denies the same.
67. Steadfast states that the Steadfast Policy is subject to all of the terms, conditions,
limitations, and exclusions set forth therein and denies the allegations in paragraph 67 to the extent
that they are inconsistent with those terms, conditions, limitations, and exclusions. As to the
remaining allegations in paragraph 67 of the Complaint, Steadfast is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
68. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 68 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 68 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 68 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
69. The allegations in paragraph 69 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 69 of the Complaint and, accordingly, denies the same.
70. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 70 of the Complaint and denies that this language correctly states the limit of liability
applicable to the Steadfast Policy. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
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of paragraph 70 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 70 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
71. Steadfast admits that the Steadfast Policy provides certain coverages subject to all
of the terms, conditions, limitations, and exclusions set forth therein, and denies that the allegations
in paragraph 71 are a complete and accurate statement of any coverage provided by the Steadfast
Policy. Steadfast denies the allegations of paragraph 71 to the extent that they are inconsistent
with the terms, conditions, limitations, and exclusions in the Steadfast Policy. As to the remaining
allegations in paragraph 71 of the Complaint, Steadfast is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
72. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 72 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 72 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 72 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
73. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 73 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 73 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 73 of the
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Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
74. The allegations in paragraph 74 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 74 of the Complaint and, accordingly, denies the same.
75. Steadfast admits that the Steadfast Policy provides coverage for business
interruption subject to all of the terms, conditions, limitations, and exclusions in the Steadfast
Policy, and denies that the allegations in paragraph 75 are a complete and accurate statement of
any coverage provided by the Steadfast Policy. Steadfast denies the allegations of paragraph 75
to the extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the
Steadfast Policy. As to the remaining allegations in paragraph 75 of the Complaint, Steadfast is
without knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
76. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 76 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 76 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 76 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
77. The allegations in paragraph 77 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
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is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 77 of the Complaint and, accordingly, denies the same.
78. The allegations in paragraph 78 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 78 of the Complaint and, accordingly, denies the same.
79. Steadfast admits that the Steadfast Policy provides coverage for contingent business
interruption subject to all of the terms, conditions, limitations, and exclusions in the Steadfast
Policy, and denies that the allegations in paragraph 79 are a complete and accurate statement of
any coverage provided by the Steadfast Policy. Steadfast denies the allegations of paragraph 79
to the extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the
Steadfast Policy. As to the remaining allegations in paragraph 79 of the Complaint, Steadfast is
without knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
80. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 80 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 80 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 80 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
81. The allegations in paragraph 81 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
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is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 81 of the Complaint and, accordingly, denies the same.
82. Steadfast is without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 82 of the Complaint and, accordingly, denies the same.
83. Steadfast admits that the Steadfast Policy provides coverage for extra expense
subject to all of the terms, conditions, limitations, and exclusions in the Steadfast Policy, and
denies that the allegations in paragraph 83 are a complete and accurate statement of any coverage
provided by the Steadfast Policy. Steadfast denies the allegations of paragraph 83 to the extent
that they are inconsistent with the terms, conditions, limitations, and exclusions in the Steadfast
Policy. As to the remaining allegations in paragraph 83 of the Complaint, Steadfast is without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
84. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 84 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 84 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 84 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
85. The allegations in paragraph 85 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 85 of the Complaint and, accordingly, denies the same.
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86. Steadfast admits that the Steadfast Policy contains a section titled Rents and Rental
Values, which is subject to all of the terms, conditions, limitations, and exclusions in the Steadfast
Policy, and denies that the allegations in paragraph 86 are a complete and accurate statement of
any coverage provided by the Steadfast Policy. Steadfast denies the allegations of paragraph 86
to the extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the
Steadfast Policy. As to the remaining allegations in paragraph 86 of the Complaint, Steadfast is
without knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
87. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 87 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 87 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 87 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
88. The allegations in paragraph 88 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 88 of the Complaint and, accordingly, denies the same.
89. Steadfast admits that the Steadfast Policy contains a section titled Interruption by
Civil Authority, which is subject to all of the terms, conditions, limitations, and exclusions in the
Steadfast Policy, and denies that the allegations in paragraph 89 are a complete and accurate
statement of any coverage provided by the Steadfast Policy. Steadfast denies the allegations of
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paragraph 89 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 89 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
90. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 90 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 90 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 90 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
91. The allegations in paragraph 91 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 91 of the Complaint and, accordingly, denies the same.
92. Steadfast admits that the Steadfast Policy contains a section titled Ingress/Egress,
which is subject to all of the terms, conditions, limitations, and exclusions in the Steadfast Policy,
and denies that the allegations in paragraph 92 are a complete and accurate statement of any
coverage provided by the Steadfast Policy. Steadfast denies the allegations of paragraph 92 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in the
Steadfast Policy. As to the remaining allegations in paragraph 92 of the Complaint, Steadfast is
without knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, denies the same.
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93. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 93 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 93 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 93 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
94. The allegations in paragraph 94 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 94 of the Complaint and, accordingly, denies the same.
95. Steadfast admits that the Steadfast Policy contains a section titled Consequential
Reduction in Values, which is subject to all of the terms, conditions, limitations, and exclusions in
the Steadfast Policy, and denies that the allegations in paragraph 95 are a complete and accurate
statement of any coverage provided by the Steadfast Policy. Steadfast denies the allegations of
paragraph 95 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 95 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
96. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 96 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 96 to the extent that they are inconsistent with the terms, conditions, limitations, and
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exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 96 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
97. The allegations in paragraph 97 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 97 of the Complaint and, accordingly, denies the same.
98. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 98 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 98 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 98 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
99. Steadfast admits that the Steadfast Policy provides certain coverages, states that the
Steadfast Policy is subject to all of the terms, conditions, limitations, and exclusions set forth
therein, and denies the allegations in paragraph 99 to the extent that they are inconsistent with
those terms, conditions, limitations, and exclusions. As to the remaining allegations in paragraph
99 of the Complaint, Steadfast is without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, denies the same.
100. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 100 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
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of paragraph 100 to the extent that they are inconsistent with the terms, conditions, limitations,
and exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 100 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
101. The allegations in paragraph 101 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 101 of the Complaint and, accordingly, denies the same.
102. Steadfast denies the allegations in paragraph 102 of the Complaint insofar as they
relate to the Steadfast Policy. As to the remaining allegations in paragraph 102 of the Complaint,
Steadfast is without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, denies the same.
103. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 103 of the Complaint and denies that it drafted the Steadfast Policy. Answering further,
Steadfast states that the Steadfast Policy is subject to all of its terms, conditions, limitations, and
exclusions. Steadfast denies the allegations of paragraph 103 to the extent that they are
inconsistent with the terms, conditions, limitations, and exclusions in the Steadfast Policy. As to
the remaining allegations in paragraph 103 of the Complaint, Steadfast is without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, denies the
same.
104. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 104 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
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of paragraph 104 to the extent that they are inconsistent with the terms, conditions, limitations,
and exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 104 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
105. The allegations in paragraph 105 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 105 of the Complaint and, accordingly, denies the same.
106. Steadfast denies the allegations in paragraph 106 of the Complaint insofar as they
relate to the Steadfast Policy. As to the remaining allegations in paragraph 106 of the Complaint,
Steadfast is without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, denies the same.
107. Steadfast admits that the Steadfast Policy contains, in part, the language quoted in
paragraph 107 of the Complaint. Answering further, Steadfast states that the Steadfast Policy is
subject to all of its terms, conditions, limitations, and exclusions. Steadfast denies the allegations
of paragraph 107 to the extent that they are inconsistent with the terms, conditions, limitations,
and exclusions in the Steadfast Policy. As to the remaining allegations in paragraph 107 of the
Complaint, Steadfast is without knowledge or information sufficient to form a belief as to the truth
of the allegations and, accordingly, denies the same.
108. Steadfast admits that Century 21 submitted a document entitled “Sworn Statement
in Partial Proof of Loss” with certain documentation to Steadfast’s representative on or about May
26, 2020. Steadfast denies the remaining allegations in paragraph 108 of the Complaint.
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109. The allegations in paragraph 109 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, Steadfast denies the
allegations in paragraph 109.
110. In response to paragraph 110 of the Complaint, Steadfast states that on or about
June 16, 2020 it responded in writing to the proof of loss submitted by Century 21, such response
speaks for itself, and Steadfast denies any allegations in paragraph 110 that are inconsistent with
this response. Steadfast denies the remaining allegations in paragraph 110 of the Complaint.
111. Steadfast denies the allegations in paragraph 111 of the Complaint.
112. Steadfast denies the allegations in paragraph 112 of the Complaint.
113. Steadfast denies the allegations in paragraph 113 of the Complaint.
114. Steadfast denies the allegations in paragraph 114 of the Complaint.
115. Steadfast denies the allegations in paragraph 115 of the Complaint.
116. Steadfast denies the allegations in paragraph 116 of the Complaint.
117. In response to paragraph 117 of the Complaint, Steadfast states that Plaintiffs have
provided some of the information requested by Steadfast. Steadfast denies the remaining
allegations in paragraph 117 of the Complaint.
118. Steadfast denies the allegations in paragraph 118 of the Complaint.
119. Steadfast denies the allegations in paragraph 119 of the Complaint.
120. Steadfast denies the allegations in paragraph 120 of the Complaint.
121. Steadfast denies the allegations in paragraph 121 of the Complaint.
122. The allegations in paragraph 122 of the Complaint are not directed to Steadfast. As
such, a response is not required from it. To the extent a response is deemed necessary, Steadfast
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is without knowledge or information sufficient to form a belief as to the truth of the allegations in
paragraph 122 of the Complaint and, accordingly, denies the same.
123. Steadfast repeats and incorporates by reference its responses to the allegations
contained in paragraph 1 through 122 of the Complaint as if each were set forth individually and
incorporated fully herein.
124. In response to paragraph 124 of the Complaint, Steadfast states that it entered into
a contract with Century 21 and the other insureds under the Steadfast Policy. As to the remaining
allegations in paragraph 124 of the Complaint, Steadfast is without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, denies the same.
125. Steadfast denies the allegations in paragraph 125 of the Complaint.
126. Steadfast denies the allegations in paragraph 126 of the Complaint.
127. Steadfast denies the allegations in paragraph 127 of the Complaint.
128. Steadfast denies the allegations in paragraph 128 of the Complaint.
129. Steadfast repeats and incorporates by reference its responses to the allegations
contained in paragraph 1 through 128 of the Complaint as if each were set forth individually and
incorporated fully herein.
130. The allegations in paragraph 130 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, Steadfast denies the
allegations in paragraph 130.
131. Steadfast denies the allegations in paragraph 131 of the Complaint.
132. Steadfast denies the allegations in paragraph 132 of the Complaint.
133. Steadfast denies the allegations in paragraph 133 of the Complaint.
134. Steadfast denies the allegations in paragraph 134 of the Complaint.
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135. Steadfast denies that Plaintiffs are entitled to the relief requested in the unnumbered
Wherefore paragraph following paragraph 134 of the Complaint.
ADDITIONAL DEFENSES
Steadfast asserts the following separate defenses without assuming any burden of proof or
persuasion.
FIRST ADDITIONAL DEFENSE
The Complaint is barred, in whole or in part, to the extent that it fails to state a cause of
action against Steadfast upon which relief may be granted.
SECOND ADDITIONAL DEFENSE
The Steadfast Policy contains the following exclusion:
This policy does not cover loss or damage caused by, resulting from, contributed by or made worse by actual, alleged or threatened release, discharge, escape, or dispersal of CONTAMINANTS OR POLLUTANTS all whether direct or indirect, proximate or remote or in whole or in part caused by, contributed to or aggravated by any physical damage insured by this policy.
….
CONTAMINANTS OR POLLUTANTS means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste, which after its release can cause or threaten damage to human health or human welfare or cause or threatens damage, deterioration, loss of value, marketability, or loss of use to property insured hereunder, including, but not limited to, bacteria, fungi, virus, or hazardous substances as listed in the federal water, Pollution Control act, Clean Water Air Act, Resource Conservation and Recovery Act of 1976, and Toxic Substances Control Act or as designated by the U.S. Environmental Protection agency. Waste includes materials to be recycled, reconditioned or reclaimed.
There is no coverage under the Steadfast Policy because of the application of this exclusion.
THIRD ADDITIONAL DEFENSE
The Steadfast Policy identifies “Loss of market/Delay of Use” as excluded perils. There
is no coverage for Plaintiffs’ claims to the extent they arise from these perils.
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FOURTH ADDITIONAL DEFENSE
Steadfast already has paid to Century 21 the amount due under the Steadfast Policy for
interruption of or interference with the insureds’ business in direct consequence of infectious or
contagious disease and thus Plaintiffs are entitled to no further recovery for their insurance claim.
FIFTH ADDITIONAL DEFENSE
Coverage under the Steadfast Policy is barred to the extent that Plaintiffs seek to recover
amounts that do not arise from physical loss or damage to insured property.
SIXTH ADDITIONAL DEFENSE
Coverage under the Steadfast Policy is barred to the extent that the losses and damages
alleged in the Complaint are not covered under the terms, conditions, exclusions, limitations,
definitions and/or endorsements of the Steadfast Policy.
SEVENTH ADDITIONAL DEFENSE
Plaintiffs’ claim and alleged loss or damage are subject to, and limited by, limits, sublimits
and deductibles under the Steadfast Policy.
EIGHTH ADDITIONAL DEFENSE
Steadfast’s obligation to Plaintiffs, if any, is subject to offset for recoveries by Plaintiffs
from other persons or entities, including through distributions, disbursements, credits, loans,
grants, government or private assistance, or other payments, for Plaintiffs’ losses or damages.
NINTH ADDITIONAL DEFENSE
Plaintiffs are not entitled to recover their attorney’s fees under any cause of action asserted
in the Complaint or any other possible cause of action.
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TENTH ADDITIONAL DEFENSE
Steadfast reserves the right to offer and rely on any other terms, conditions, limitations,
requirements, deductibles, and exclusions contained in the Steadfast Policy. In the event that facts
become known through discovery in this action that may support the assertion of additional
defenses or that may cause other terms, conditions, limitations, requirements, deductibles, and/or
exclusions contained in the Steadfast Policy to apply to Plaintiffs’ claims, Steadfast reserves the
right to seek leave from this Court to amend their defenses accordingly.
ELEVENTH ADDITIONAL DEFENSE
Plaintiffs’ claims are barred to the extent that Plaintiffs have failed to satisfy the
obligations, covenants, and conditions precedent and subsequent required under the Steadfast
Policy.
TWELFTH ADDITIONAL DEFENSE
Plaintiffs’ claims are barred, in whole or in part, to the extent Plaintiffs have waived or are
estopped to assert their rights under the Steadfast Policy.
THIRTEENTH ADDITIONAL DEFENSE
Plaintiffs’ recovery is barred to the extent that Plaintiffs have failed to mitigate their
damages.
FOURTEENTH ADDITIONAL DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs have suffered no
damages as a result of the matters alleged in Plaintiffs’ Complaint.
FIFTEENTH ADDITIONAL DEFENSE
Plaintiffs’ claims are barred to the extent that any Plaintiff is not an insured and/or does
not have an insurable interest.
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WHEREFORE Steadfast respectfully request that this Court dismiss Plaintiffs’ Complaint
with prejudice, enter judgment in favor of Steadfast, and grant such other relief as the Court shall
deem just and equitable.
ROBINS KAPLAN LLP /s/ Meegan F. Hollywood Meegan F. Hollywood 399 Park Avenue, Suite 3600 New York, NY 10022 Telephone: (212) 980 7400 Facsimile: (212) 980 7499 Email: [email protected] Matthew M. Burke, Esq. (pro hac vice motion forthcoming) ROBINS KAPLAN LLP 800 Boylston Street, Suite 2500 Boston, MA 02199 Telephone: (617) 859-2711 Facsimile: (617) 267-8288 [email protected]
Attorneys for Defendant Steadfast Insurance Co.
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CERTIFICATE OF SERVICE
I, Meegan F. Hollywood, hereby certify that on this day, I electronically filed the within
document with the Clerk of the Court using the CM/ECF system that will send notification of such
filing(s) to all counsel of record. The document is available for viewing and downloading through
the ECF system.
Dated: September 18, 2020 /s/ Meegan F. Hollywood Meegan F. Hollywood
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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, AND CENTURY 21 INC. Plaintiffs, v. STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTAN INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712 Defendants.
Case No. 1:20-cv-07437 ANSWER OF CERTAIN UNDERWRITERS AT LLOYD’S SUBSCRIBING TO POLICY NOS. B0180PG1902346, B0180PG1902696, B0180PG1902698, B0180PG1902702, B0180PG1902704, B0180PG1902707, AND B0180PG1902712
Defendants Certain Underwriters at Lloyd’s Subscribing to Policy Nos. B0180PG1902346,
B0180PG1902696, B0180PG1902698, B0180PG1902702, B0180PG1902704,
B0180PG1902707, and B0180PG1902712 (“Underwriters”), by their attorneys, for their Answer
in response to Plaintiffs’ Complaint, state as follows:
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1. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 1 of the Complaint and, accordingly, deny the same.
2. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 2 of the Complaint and, accordingly, deny the same.
3. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 3 of the Complaint and, accordingly, deny the same.
4. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 4 of the Complaint and, accordingly, deny the same.
5. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 5 of the Complaint and, accordingly, deny the same.
6. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 6 of the Complaint and, accordingly, deny the same.
7. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 7 of the Complaint and, accordingly, deny the same.
8. In response to paragraph 8 of the Complaint, Underwriters admit that they received
a premium from their insured, Century 21 Department Stores, LLC (“Century 21”), in exchange
for the insurance policies that are at issue in this action, they have adjusted the COVID-19
insurance claim submitted by Century 21, and have made payments under their insurance policies
with respect to this insurance claim. As to the remaining allegations in paragraph 8 of the
Complaint, Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, deny the same.
9. In response to paragraph 9 of the Complaint, Underwriters state that they have
timely adjusted the insurance claim at issue in this action and made payments under their insurance
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policies with respect to this insurance claim. Underwriters deny the remaining allegations in
paragraph 9 of the Complaint insofar as they are directed to them. The remaining allegations in
paragraph 9 of the Complaint are not directed to Underwriters. As such, a response is not required
from them. To the extent a response is deemed necessary, Underwriters are without knowledge or
information sufficient to form a belief as to the truth of the allegations in paragraph 9 of the
Complaint and, accordingly, deny the same.
10. Underwriters deny the allegations in paragraph 10 of the Complaint insofar as they
are directed to them. The remaining allegations in paragraph 10 of the Complaint are not directed
to Underwriters. As such, a response is not required from them. To the extent a response is deemed
necessary, Underwriters are without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 10 of the Complaint and, accordingly, deny the same.
11. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 11 of the Complaint and, accordingly, deny the same.
12. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 12 of the Complaint and, accordingly, deny the same.
13. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 13 of the Complaint and, accordingly, deny the same.
14. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 14 of the Complaint and, accordingly, deny the same.
15. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 15 of the Complaint and, accordingly, deny the same.
16. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 16 of the Complaint and, accordingly, deny the same.
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17. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 17 of the Complaint and, accordingly, deny the same.
18. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 18 of the Complaint and, accordingly, deny the same.
19. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 19 of the Complaint and, accordingly, deny the same.
20. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 20 of the Complaint and, accordingly, deny the same.
21. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 21 of the Complaint and, accordingly, deny the same.
22. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 22 of the Complaint and, accordingly, deny the same.
23. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 23 of the Complaint and, accordingly, deny the same.
24. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 24 of the Complaint and, accordingly, deny the same.
25. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 25 of the Complaint and, accordingly, deny the same.
26. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 26 of the Complaint and, accordingly, deny the same.
27. The allegations in paragraph 27 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
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Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 27 of the Complaint and, accordingly, deny the same.
28. The allegations in paragraph 28 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 28 of the Complaint and, accordingly, deny the same.
29. The allegations in paragraph 29 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 29 of the Complaint and, accordingly, deny the same.
30. The allegations in paragraph 30 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 30 of the Complaint and, accordingly, deny the same.
31. The allegations in paragraph 31 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 31 of the Complaint and, accordingly, deny the same.
32. The allegations in paragraph 32 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 32 of the Complaint and, accordingly, deny the same.
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33. The allegations in paragraph 33 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 33 of the Complaint and, accordingly, deny the same.
34. The allegations in paragraph 34 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 34 of the Complaint and, accordingly, deny the same.
35. The allegations in paragraph 35 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 35 of the Complaint and, accordingly, deny the same.
36. The allegations in paragraph 36 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 36 of the Complaint and, accordingly, deny the same.
37. Underwriters deny the allegations in paragraph 37 of the Complaint.
38. Underwriters admit that the scientific community refers to SARS-CoV-2 as the
coronavirus and COVID-19 as the disease from the coronavirus. As to the remaining allegations
in paragraph 38 of the Complaint, Underwriters are without knowledge or information sufficient
to form a belief as to the truth of the allegations and, accordingly, deny the same.
39. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 39 of the Complaint and, accordingly, deny the same.
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40. Underwriters admit that the World Health Organization has declared COVID-19 to
be a public health emergency. As to the remaining allegations in paragraph 40 of the Complaint,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, deny the same.
41. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 41 of the Complaint and, accordingly, deny the same.
42. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 42 of the Complaint and, accordingly, deny the same.
43. Underwriters admit that COVID-19 has received widespread media attention. As
to the remaining allegations in paragraph 43 of the Complaint, Underwriters are without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, deny the same.
44. Underwriters admit that the Center for Disease Control has made various
recommendations with respect to COVID-19. As to the remaining allegations in paragraph 44 of
the Complaint, Underwriters are without knowledge or information sufficient to form a belief as
to the truth of the allegations and, accordingly, deny the same.
45. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 45 of the Complaint and, accordingly, deny the same.
46. Underwriters deny the allegations in paragraph 46 of the Complaint.
47. Underwriters deny the allegations in paragraph 47 of the Complaint.
48. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 48 of the Complaint and, accordingly, deny the same.
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49. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 49 of the Complaint and, accordingly, deny the same.
50. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 50 of the Complaint and, accordingly, deny the same.
51. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 51 of the Complaint and, accordingly, deny the same.
52. Underwriters admit that state and/or local governments in jurisdictions where
Century 21 maintains stores issued orders with respect to COVID-19. As to the remaining
allegations in paragraph 52, Underwriters are without knowledge or information sufficient to form
a belief as to the truth of those allegations and, accordingly, deny the same.
53. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 53 of the Complaint and, accordingly, deny the same.
54. In response to paragraph 54 of the Complaint, Underwriters admit that Plaintiffs
purport to quote from various orders issued by governmental authorities, state that such orders are
not attached to or quoted in their entirety in the Complaint and speak for themselves, and deny the
remaining allegations in paragraph 54 of the Complaint.
55. In response to paragraph 55 of the Complaint, Underwriters deny that any
governmental order evidences damages being suffered by Plaintiffs. As to the remaining
allegations in paragraph 55 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
56. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 56 of the Complaint and, accordingly, deny the same.
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57. Underwriters admit that Plaintiffs submitted a document entitled “Sworn Statement
in Partial Proof of Loss” to Underwriters’ representative on or about May 26, 2020. Underwriters
deny the remaining allegations in paragraph 57 of the Complaint.
58. Underwriters admit that Plaintiffs submitted certain documentation with its “Sworn
Statement in Partial Proof of Loss” on or about May 26, 2020. Underwriters deny the remaining
allegations in paragraph 58.
59. Underwriters admit that Plaintiffs allege a breach of contract in this action, deny
that Plaintiffs are entitled to any relief in this action and deny that they have failed to pay any
amounts owed under the insurance policies they subscribed that are at issue in this action. As to
the remaining allegations in paragraph 59 of the Complaint, Underwriters are without knowledge
or information sufficient to form a belief as to the truth of the allegations and, accordingly, deny
the same.
60. Answering the allegations in paragraph 60 of the Complaint, Underwriters state that
they severally subscribed various insurance policies placed by Century 21 Department Stores, LLC
with an inception date of August 1, 2019 and that the limit of liability and other terms of coverage
are set forth in those insurance policies. As to the remaining allegations in paragraph 60 of the
Complaint, Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, deny the same.
61. Answering the allegations in paragraph 61 of the Complaint, Underwriters admit
that the policies they severally subscribed to Century 21, Policy Nos. B0180PG1902346,
B0180PG1902696, B0180PG1902698, B0180PG1902702, B0180PG1902704,
B0180PG1902707, and B0180PG1902712, are listed on Schedule A to the Complaint and that the
limit of liability and other terms of coverage are set forth in those insurance policies
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(“Underwriters’ Policies”). Answering further, Underwriters state that Underwriters’ Policies are
subject to all of the terms, conditions, limitations, and exclusions set forth therein and deny the
allegations in paragraph 61, including Schedule A to the Complaint, to the extent that they are
inconsistent with those terms, conditions, limitations, and exclusions. As to the remaining
allegations in paragraph 61 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
62. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 62 of the Complaint and, accordingly, deny the same.
63. Underwriters admit that Underwriters’ Policies provide certain coverages and state
that Underwriters’ Policies are subject to all of the terms, conditions, limitations, and exclusions
set forth therein and deny the allegations in paragraph 63 to the extent that they are inconsistent
with those terms, conditions, limitations, and exclusions. As to the remaining allegations in
paragraph 63 of the Complaint, Underwriters are without knowledge or information sufficient to
form a belief as to the truth of the allegations and, accordingly, deny the same.
64. Underwriters admit the allegations in paragraph 64 insofar as they relate to
Underwriters’ Policies. As to the remaining allegations in paragraph 64 of the Complaint,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, deny the same.
65. Underwriters admit that the policy period for Underwriters’ Policies includes
March 2020 and the filing date of Plaintiffs’ Complaint. As to the remaining allegations in
paragraph 65 of the Complaint, Underwriters are without knowledge or information sufficient to
form a belief as to the truth of the allegations and, accordingly, deny the same.
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66. Underwriters admit that Underwriters’ Policies are among the multiple property
insurance policies provided to Century 21 for the 219-2020 policy period and denies the remaining
allegations in paragraph 66 insofar as they relate to Starr. As to the remaining allegations in
paragraph 66 of the Complaint, Underwriters are without knowledge or information sufficient to
form a belief as to the truth of the allegations and, accordingly, deny the same.
67. Underwriters state that Underwriters’ Policies are subject to all of the terms,
conditions, limitations, and exclusions set forth therein and deny the allegations in paragraph 67
to the extent that they are inconsistent with those terms, conditions, limitations, and exclusions.
As to the remaining allegations in paragraph 67 of the Complaint, Underwriters are without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, deny the same.
68. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 68 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 68 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 68 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
69. The allegations in paragraph 69 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 69 of the Complaint and, accordingly, deny the same.
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70. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 70 of the Complaint and deny that this language correctly states the limit of
liability applicable to Underwriters’ Policies. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 70 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 70 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
71. Underwriters admit that Underwriters’ Policies provide certain coverages subject
to all of the terms, conditions, limitations, and exclusions set forth therein, and deny that the
allegations in paragraph 71 are a complete and accurate statement of any coverage provided by
Underwriters’ Policies. Underwriters deny the allegations of paragraph 71 to the extent that they
are inconsistent with the terms, conditions, limitations, and exclusions in Underwriters’ Policies.
As to the remaining allegations in paragraph 71 of the Complaint, Underwriters are without
knowledge or information sufficient to form a belief as to the truth of the allegations and,
accordingly, deny the same.
72. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 72 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 72 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 72 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
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73. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 73 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 73 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 73 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
74. The allegations in paragraph 74 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 74 of the Complaint and, accordingly, deny the same.
75. Underwriters admit that Underwriters’ Policies provide coverage for business
interruption subject to all of the terms, conditions, limitations, and exclusions in Underwriters’
Policies, and deny that the allegations in paragraph 75 are a complete and accurate statement of
any coverage provided by Underwriters’ Policies. Underwriters deny the allegations of paragraph
75 to the extent that they are inconsistent with the terms, conditions, limitations, and exclusions in
Underwriters’ Policies. As to the remaining allegations in paragraph 75 of the Complaint,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, deny the same.
76. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 76 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 76 to the extent that they are inconsistent with the
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terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 76 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
77. The allegations in paragraph 77 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 77 of the Complaint and, accordingly, deny the same.
78. The allegations in paragraph 78 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 78 of the Complaint and, accordingly, deny the same.
79. Underwriters admit that Underwriters’ Policies provide coverage for contingent
business interruption subject to all of the terms, conditions, limitations, and exclusions in
Underwriters’ Policies, and deny that the allegations in paragraph 79 are a complete and accurate
statement of any coverage provided by Underwriters’ Policies. Underwriters deny the allegations
of paragraph 79 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in Underwriters’ Policies. As to the remaining allegations in paragraph 79 of the
Complaint, Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, deny the same.
80. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 80 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 80 to the extent that they are inconsistent with the
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terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 80 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
81. The allegations in paragraph 81 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 81 of the Complaint and, accordingly, deny the same.
82. Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 82 of the Complaint and, accordingly, deny the same.
83. Underwriters admit that Underwriters’ Policies provide coverage for extra expense
subject to all of the terms, conditions, limitations, and exclusions in Underwriters’ Policies, and
deny that the allegations in paragraph 83 are a complete and accurate statement of any coverage
provided by Underwriters’ Policies. Underwriters deny the allegations of paragraph 83 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in
Underwriters’ Policies. As to the remaining allegations in paragraph 83 of the Complaint,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, deny the same.
84. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 84 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 84 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
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allegations in paragraph 84 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
85. The allegations in paragraph 85 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 85 of the Complaint and, accordingly, deny the same.
86. Underwriters admit that Underwriters’ Policies contain a section titled Rents and
Rental Values, which is subject to all of the terms, conditions, limitations, and exclusions in
Underwriters’ Policies, and deny that the allegations in paragraph 86 are a complete and accurate
statement of any coverage provided by Underwriters’ Policies. Underwriters deny the allegations
of paragraph 86 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in Underwriters’ Policies. As to the remaining allegations in paragraph 86 of the
Complaint, Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, deny the same.
87. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 87 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 87 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 87 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
88. The allegations in paragraph 88 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
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Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 88 of the Complaint and, accordingly, deny the same.
89. Underwriters admit that Underwriters’ Policies contain a section titled Interruption
by Civil Authority, which is subject to all of the terms, conditions, limitations, and exclusions in
Underwriters’ Policies, and deny that the allegations in paragraph 89 are a complete and accurate
statement of any coverage provided by Underwriters’ Policies. Underwriters deny the allegations
of paragraph 89 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in Underwriters’ Policies. As to the remaining allegations in paragraph 89 of the
Complaint, Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, deny the same.
90. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 90 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 90 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 90 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
91. The allegations in paragraph 91 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 91 of the Complaint and, accordingly, deny the same.
92. Underwriters admit that Underwriters’ Policies contain a section titled
Ingress/Egress, which is subject to all of the terms, conditions, limitations, and exclusions in
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Underwriters’ Policies, and deny that the allegations in paragraph 92 are a complete and accurate
statement of any coverage provided by Underwriters’ Policies. Underwriters deny the allegations
of paragraph 92 to the extent that they are inconsistent with the terms, conditions, limitations, and
exclusions in Underwriters’ Policies. As to the remaining allegations in paragraph 92 of the
Complaint, Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, deny the same.
93. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 93 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 93 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 93 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
94. The allegations in paragraph 94 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 94 of the Complaint and, accordingly, deny the same.
95. Underwriters admit that Underwriters’ Policies contain a section titled
Consequential Reduction in Values, which is subject to all of the terms, conditions, limitations,
and exclusions in Underwriters’ Policies, and deny that the allegations in paragraph 95 are a
complete and accurate statement of any coverage provided by Underwriters’ Policies.
Underwriters deny the allegations of paragraph 95 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
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allegations in paragraph 95 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
96. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 96 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 96 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 96 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
97. The allegations in paragraph 97 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 97 of the Complaint and, accordingly, deny the same.
98. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 98 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 98 to the extent that they are inconsistent with the
terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 98 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
99. Underwriters admit that Underwriters’ Policies provide certain coverages and state
that Underwriters’ Policies are subject to all of the terms, conditions, limitations, and exclusions
set forth therein and deny the allegations in paragraph 99 to the extent that they are inconsistent
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with those terms, conditions, limitations, and exclusions. As to the remaining allegations in
paragraph 99 of the Complaint, Underwriters are without knowledge or information sufficient to
form a belief as to the truth of the allegations and, accordingly, deny the same.
100. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 100 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 100 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 100 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
101. The allegations in paragraph 101 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 101 of the Complaint and, accordingly, deny the same.
102. Underwriters deny the allegations in paragraph 102 of the Complaint insofar as they
relate to Underwriters’ Policies. As to the remaining allegations in paragraph 102 of the
Complaint, Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, deny the same.
103. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 103 of the Complaint and deny that they drafted Underwriters’ Policies.
Answering further, Underwriters state that Underwriters’ Policies are subject to all of their terms,
conditions, limitations, and exclusions. Underwriters deny the allegations of paragraph 103 to the
extent that they are inconsistent with the terms, conditions, limitations, and exclusions in
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Underwriters’ Policies. As to the remaining allegations in paragraph 103 of the Complaint,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations and, accordingly, deny the same.
104. Underwriters admit that Underwriters’ Policies contain, in part, the language
quoted in paragraph 104 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 104 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
allegations in paragraph 104 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
105. The allegations in paragraph 105 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 105 of the Complaint and, accordingly, deny the same.
106. Underwriters deny the allegations in paragraph 106 of the Complaint insofar as they
relate to Underwriters’ Policies. As to the remaining allegations in paragraph 106 of the
Complaint, Underwriters are without knowledge or information sufficient to form a belief as to
the truth of the allegations and, accordingly, deny the same.
107. Underwriters admit that certain of Underwriters’ Policies contain, in part, the
language quoted in paragraph 107 of the Complaint. Answering further, Underwriters state that
Underwriters’ Policies are subject to all of their terms, conditions, limitations, and exclusions.
Underwriters deny the allegations of paragraph 107 to the extent that they are inconsistent with
the terms, conditions, limitations, and exclusions in Underwriters’ Policies. As to the remaining
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allegations in paragraph 107 of the Complaint, Underwriters are without knowledge or information
sufficient to form a belief as to the truth of the allegations and, accordingly, deny the same.
108. Underwriters admit that Century 21 submitted a document entitled “Sworn
Statement in Partial Proof of Loss” with certain documentation to Underwriters’ representative on
or about May 26, 2020. Underwriters deny the remaining allegations in paragraph 108 of the
Complaint.
109. The allegations in paragraph 109 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, Underwriters deny the
allegations in paragraph 109.
110. In response to paragraph 110 of the Complaint, Underwriters state that on or about
June 16, 2020 they responded in writing to the proof of loss submitted by Century 21, such
response speaks for itself, and Underwriters deny any allegations in paragraph 110 that are
inconsistent with this response. Underwriters deny the remaining allegations in paragraph 110 of
the Complaint.
111. Underwriters deny the allegations in paragraph 111 of the Complaint.
112. Underwriters deny the allegations in paragraph 112 of the Complaint.
113. Underwriters deny the allegations in paragraph 113 of the Complaint.
114. Underwriters deny the allegations in paragraph 114 of the Complaint.
115. Underwriters deny the allegations in paragraph 115 of the Complaint.
116. Underwriters deny the allegations in paragraph 116 of the Complaint.
117. In response to paragraph 117 of the Complaint, Underwriters state that Plaintiffs
have provided some of the information requested by Underwriters. Underwriters deny the
remaining allegations in paragraph 117 of the Complaint.
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118. Underwriters deny the allegations in paragraph 118 of the Complaint.
119. Underwriters deny the allegations in paragraph 119 of the Complaint.
120. Underwriters deny the allegations in paragraph 120 of the Complaint.
121. Underwriters deny the allegations in paragraph 121 of the Complaint.
122. The allegations in paragraph 122 of the Complaint are not directed to Underwriters.
As such, a response is not required from them. To the extent a response is deemed necessary,
Underwriters are without knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 122 of the Complaint and, accordingly, deny the same.
123. Underwriters repeat and incorporate by reference their responses to the allegations
contained in paragraph 1 through 122 of the Complaint as if each were set forth individually and
incorporated fully herein.
124. In response to paragraph 124 of the Complaint, Underwriters state that they entered
into a contract with Century 21 and the other insureds under Underwriters’ Policies. As to the
remaining allegations in paragraph 124 of the Complaint, Underwriters are without knowledge or
information sufficient to form a belief as to the truth of the allegations and, accordingly, deny the
same.
125. Underwriters deny the allegations in paragraph 125 of the Complaint.
126. Underwriters deny the allegations in paragraph 126 of the Complaint.
127. Underwriters deny the allegations in paragraph 127 of the Complaint.
128. Underwriters deny the allegations in paragraph 128 of the Complaint.
129. Underwriters repeat and incorporate by reference their responses to the allegations
contained in paragraph 1 through 128 of the Complaint as if each were set forth individually and
incorporated fully herein.
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130. The allegations in paragraph 130 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, Underwriters deny the
allegations in paragraph 130.
131. Underwriters deny the allegations in paragraph 131 of the Complaint.
132. Underwriters deny the allegations in paragraph 132 of the Complaint.
133. Underwriters deny the allegations in paragraph 133 of the Complaint.
134. Underwriters deny the allegations in paragraph 134 of the Complaint.
135. Underwriters deny that Plaintiffs are entitled to the relief requested in the
unnumbered Wherefore paragraph following paragraph 134 of the Complaint.
ADDITIONAL DEFENSES
Underwriters assert the following separate defenses without assuming any burden of proof
or persuasion.
FIRST ADDITIONAL DEFENSE
The Complaint is barred, in whole or in part, to the extent that it fails to state a cause of
action against Underwriters upon which relief may be granted.
SECOND ADDITIONAL DEFENSE
Underwriters’ Policies contain the following exclusion:
This policy does not insure against loss caused by the presence, discharge, dispersal, seepage, migration, release or escape of any pollutant(s) unless the presence, discharge, dispersal, seepage, migration, release or escape is itself caused by fire, lightning, aircraft, explosion, riot, civil commotion, smoke, vehicles, windstorm or hail to property contained in any building, vandalism, malicious mischief or leakage or accidental discharge from automatic fire protective systems. But if loss by any of the above twelve (12) perils ensues, then this Company shall be liable for only loss caused by the ensuing peril.
Nor, will the Company pay under this policy for the costs associated with the enforcement of any ordinance or law which requires any insured or others to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of pollutants.
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The italicized term pollutant(s) as used in this endorsement means any solid, liquid, gaseous or thermal irritant or contaminant, including, but not limited to, fiber, smoke, vapor, soot, fumes, acid, alkalis, chemicals, biological, organic or bacterial agents and waste. Waste includes, but is not limited to, materials to be recycled, reconditioned or reclaimed. However, pollutant(s) does not include ammonia.
There is no coverage under Underwriters’ Policies because of the application of this exclusion.
THIRD ADDITIONAL DEFENSE
Underwriters’ Policies identify “Loss of market/Delay of Use” as excluded perils. There
is no coverage for Plaintiffs’ claims to the extent they arise from these perils.
FOURTH ADDITIONAL DEFENSE
Underwriters already have paid to Century 21 the amount due under Underwriters’ Policies
for interruption of or interference with the insureds’ business in direct consequence of infectious
or contagious disease and thus Plaintiffs are entitled to no further recovery for their insurance
claim.
FIFTH ADDITIONAL DEFENSE
Coverage under Underwriters’ Policies is barred to the extent that Plaintiffs seek to recover
amounts that do not arise from physical loss or damage to insured property.
SIXTH ADDITIONAL DEFENSE
Coverage under Underwriters’ Policies is barred to the extent that the losses and damages
alleged in the Complaint are not covered under the terms, conditions, exclusions, and/or limitations
of Underwriters’ Policies.
SEVENTH ADDITIONAL DEFENSE
Plaintiffs’ claim and alleged loss or damage are subject to, and limited by, limits, sublimits
and deductibles under Underwriters’ Policies.
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EIGHTH ADDITIONAL DEFENSE
Underwriters’ obligation to Plaintiff, if any, is subject to offset for recoveries by Plaintiffs
from other persons or entities, including any governmental entities, for Plaintiffs’ losses or
damages.
NINTH ADDITIONAL DEFENSE
Plaintiffs are not entitled to recover their attorney’s fees under any cause of action asserted
in the Complaint or any other possible cause of action.
TENTH ADDITIONAL DEFENSE
Underwriters reserve the right to offer and rely on any other terms, conditions, limitations,
requirements, deductibles, and exclusions contained in Underwriters’ Policies. In the event that
facts become known through discovery in this action that may support the assertion of additional
defenses or that may cause other terms, conditions, limitations, requirements, deductibles, and/or
exclusions contained in Underwriters’ Policies to apply to Plaintiffs’ claims, Underwriters reserve
the right to seek leave from this Court to amend their defenses accordingly.
WHEREFORE Underwriters respectfully request that this Court dismiss Plaintiffs’
Complaint with prejudice, enter judgment in favor of Underwriters, and grant such other relief as
the Court shall deem just and equitable.
ROBINS KAPLAN LLP /s/ Meegan F. Hollywood Meegan F. Hollywood 399 Park Avenue, Suite 3600 New York, NY 10022 Telephone: (212) 980 7400 Facsimile: (212) 980 7499 Email: [email protected]
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-27- 37124192.2
Matthew M. Burke, Esq. (pro hac vice motion forthcoming) ROBINS KAPLAN LLP 800 Boylston Street, Suite 2500 Boston, MA 02199 Telephone: (617) 859-2711 Facsimile: (617) 267-8288 [email protected]
Attorneys for Defendants Certain Underwriters at Lloyd’s Subscribing to Policy Nos. B0180PG1902346, B0180PG1902696, B0180PG1902698, B0180PG1902702, B0180PG1902704, B0180PG1902707, and B0180PG1902712
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CERTIFICATE OF SERVICE
I, Meegan F. Hollywood, hereby certify that on this day, I electronically filed the within
document with the Clerk of the Court using the CM/ECF system that will send notification of such
filing(s) to all counsel of record. The document is available for viewing and downloading through
the ECF system.
Dated: September 18, 2020 /s/ Meegan F. Hollywood Meegan F. Hollywood
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1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CENTURY 21 DEPARTMENT STORES, LLC, 66 PEARL RETAIL, LLC, 66 PEARL RETAIL II, LLC, 66 PEARL RETAIL ISG, LLC, 173 BWAY BLUE LLC, 262 MOTT BLUE TIC LLC, 444 86 BLUE LLC, MIAMI
DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES
LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, and CENTURY 21, INC.,
Plaintiffs,
v.
STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE
CO., EVANSTON INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., QBE SPECIALTY INSURANCE CO., GREAT AMERICAN FIDELITY INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712,
Defendants.
.
Case No. 1:20-CV-07437 (LGS) (SLC)
NOTICE OF APPEARANCE
TO THE CLERK OF THE COURT AND ALL PARTIES OF RECORD:
Please enter my appearance as counsel in this case for Defendant Allianz Global Risks US
Insurance Co.
I certify that I am admitted to practice before this Court.
[SIGNATURES ON FOLLOWING PAGE]
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Dated: New York, New York
September 18, 2020 Respectfully submitted,
DLA PIPER LLP (US)
/s/ Michael Hynes
Michael Hynes (MH5086)
DLA PIPER LLP (US)
1251 Avenue of the Americas
New York, NY 10020
Tel: (212) 335-4942
Fax: (212) 884-8642
Attorney for Defendant Allianz Global Risks
US Insurance Co.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CENTURY 21 DEPARTMENT STORES, LLC, 66 PEARL RETAIL, LLC, 66 PEARL RETAIL II, LLC, 66 PEARL RETAIL ISG, LLC, 173 BWAY BLUE LLC, 262 MOTT BLUE TIC LLC, 444 86 BLUE LLC, MIAMI
DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES
LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, and CENTURY 21, INC.,
Plaintiffs,
v.
STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE
CO., EVANSTON INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., QBE SPECIALTY INSURANCE CO., GREAT AMERICAN FIDELITY INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712,
Defendants.
.
Case No. 1:20-CV-07437 (LGS) (SLC)
DEFENDANT ALLIANZ GLOBAL
RISKS US INSURANCE CO.’S
RULE 7.1 CORPORATE DISCLOSURE
STATEMENT
Pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Defendant Allianz Global
Risks US Insurance Co. (“AGR US”), states that it is a non-governmental corporation, organized
under the laws of Illinois, with its principal place of business in Chicago, Illinois. Allianz of
America, Inc. is the parent corporation for AGR US and owns eighty percent (80%) of its voting
stock. The remaining twenty percent (20%) of the AGR US voting stock is owned by AGCS
International Holding B.V. Each of Allianz of America, Inc. and AGCS International Holding
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B.V. are wholly owned indirect subsidiaries of Allianz SE, a publicly traded company. Thus,
Allianz SE indirectly owns 10% percent or more of the AGR US Stock.
Dated: New York, New York
September 18, 2020 Respectfully submitted,
DLA PIPER LLP (US)
/s/ Michael Hynes
Michael Hynes (MH5086)
DLA PIPER LLP (US)
1251 Avenue of the Americas
New York, NY 10020
Tel: (212) 335-4942
Fax: (212) 884-8642
Attorney for Defendant Allianz Global Risks
US Insurance Co.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
CENTURY 21 DEPARTMENT STORES, LLC, 66 PEARL RETAIL, LLC, 66 PEARL RETAIL II, LLC, 66 PEARL RETAIL ISG, LLC, 173 BWAY BLUE LLC, 262 MOTT BLUE TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, and CENTURY 21, INC.,
Plaintiffs,
v.
STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTON INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., QBE SPECIALTY INSURANCE CO., GREAT AMERICAN FIDELITY INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712,
Defendants.
Case No. 1:20-CV-07437 (LGS) (SLC)
ALLIANZ GLOBAL RISKS US INSURANCE CO.’S
ANSWER TO THE PLAINTIFFS’ COMPLAINT Michael Hynes (MH5086) DLA PIPER LLP (US) 1251 Avenue of the Americas New York, NY 10020 Tel: (212) 335-4942 Fax: (212) 884-8642
[email protected] Attorney for Defendant Allianz Global Risks US Insurance Co.
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Defendant ALLIANZ GLOBAL RISKS US INSURANCE CO. (“AGR US”) by its
attorneys, DLA PIPER (US), answering the Plaintiffs' Complaint, allege as follows:
RESPONSES TO ALLEGATIONS
INTRODUCTION
1. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 1 of the Complaint.
2. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 2 of the Complaint.
3. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 3 of the Complaint.
4. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 4 of the Complaint.1
5. Defendant AGR US admits that Plaintiff Century 21 Department Stores, LLC (or
affiliated, subsidiary or otherwise related entities) operates retail department stores located in four
states. Defendant AGR US denies knowledge or information sufficient to form a belief as to the
truth of the balance of the allegations in paragraph 5 of the Complaint.
6. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 6 of the Complaint.
7. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 7 of the Complaint.
8. In response to paragraph 8 of the Complaint, Defendant AGR US admits that it
received a premium in connection with the insurance policies that it issued to Plaintiffs CENTURY
1 Defendant AGR US denies that the opinion attributed to a fictional television character in footnote 1 of the Complaint is a factual allegation requiring a response.
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21 DEPARTMENT STORES, LLC, 173 BWAY BLUE LLC, 262 MOTT BLUE TIC LLC, 444
86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, SABRA
ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, and CENTURY 21, INC. Defendant AGR
US further admits that certain government entities issued orders in an attempt to stop the spread
of COVID-19. Defendant AGR US respectfully refers the Court to its policies for their terms,
conditions, exclusions and limitations. As to the remaining allegations in paragraph 8 of the
Complaint, Defendant AGR US is without knowledge or information sufficient to form a belief as
to the truth of the allegations.
9. In response to paragraph 9 of the Complaint, Defendant AGR US states that it has
timely adjusted the insurance claim at issue in this action and paid Plaintiffs $1 million in response
to the insurance claim. Defendant AGR US denies the remaining allegations in paragraph 9 of the
Complaint insofar as they are directed to AGR US.
10. Defendant AGR US denies the allegations in paragraph 10 of the Complaint.
PARTIES
11. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 11 of the Complaint.2
12. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 12 of the Complaint.
13. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 13 of the Complaint.
2 Defendant AGR US notes that Plaintiff Century 21 Department Stores, LLC is the only party—Plaintiff or Defendant—that is currently a party to bankruptcy proceedings. See, e.g., Cause 20-12097; In Re Century 21 Department Stores LLC; in the U.S. Bankruptcy Court for the Southern District of New York at Dkt. 1.
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14. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 14 of the Complaint.
15. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 15 of the Complaint.
16. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 16 of the Complaint.
17. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 17 of the Complaint.
18. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 18 of the Complaint.
19. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 19 of the Complaint.
20. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 20 of the Complaint.
21. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 21 of the Complaint.
22. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 22 of the Complaint.
23. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 23 of the Complaint.
24. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 24 of the Complaint.
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25. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 25 of the Complaint.
26. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 26 of the Complaint.
27. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 27 of the Complaint.
28. Defendant AGR US admits the allegations in paragraph 28 of the Complaint.
29. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 29 of the Complaint.
30. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 30 of the Complaint.
31. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 31 of the Complaint.
32. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 32 of the Complaint.
33. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 33 of the Complaint.
34. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 34 of the Complaint.
35. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 35 of the Complaint.
36. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 36 of the Complaint.
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37. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 37 of the Complaint.
THE NOVEL CORONAVIRUS AND ITS EFFECTS
38. Defendant AGR US admits that SARS-CoV-2 is commonly referred to as COVID-
19 and a global pandemic. As to the remaining allegations in paragraph 38 of the Complaint,
Defendant AGR US denies knowledge or information sufficient to form a belief as to the truth of
the remaining allegations in paragraph 38 of the Complaint.
39. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 39 of the Complaint.
40. Defendant AGR US denies knowledge or information to sufficient to form a belief
as to the truth of the remaining allegations in paragraph 40 of the Complaint and respectfully refers
the Court to the World Health Organization (the “WHO”) for the contents of its public statements.
41. Defendant AGR US admits that it is commonly understood that the SARS-COV-2
virus can be transmitted from one human to another. Defendant AGR US denies knowledge or
information sufficient to form a belief as to the truth of the balance of the allegations in paragraph
41 of the Complaint and respectfully refers the Court to the WHO for the contents to its public
statements to the unidentified studies referenced in paragraph 41 of the Complaint for its contents.
42. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 42 of the Complaint and respectfully refers the Court to
the Center for Disease Control (“CDC”) for the content of its public statements.
43. Defendant AGR US admits that COVID-19 has received widespread media
attention and otherwise denies knowledge or information sufficient to form a belief as to the truth
of the remaining allegations in paragraph 43 of the Complaint.
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44. Defendant AGR denies knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 44 of the Complaint and respectfully refers the Court to
the CDC for the content of its public statements.
45. Defendant AGR US denies the allegations in paragraph 45 of the Complaint.
46. Defendant AGR US denies the allegations in paragraph 46 of the Complaint.
47. Defendant AGR US denies the allegations in paragraph 47 of the Complaint.
48. Defendant AGR US respectfully refers the Court to the CDC for the content of its
public statements and to the unidentified studies referenced in paragraph 48 of the Complaint. for
their contents. Defendant AGR US otherwise denies knowledge or information sufficient to form
a belief as to the truth the allegations in paragraph 48 of the Complaint.
49. Defendant AGR US respectfully refers the Court to the referenced media article for
its contents and otherwise denies knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 49 of the Complaint.
50. Defendant AGR US respectfully refers the Court to the referenced media article for
its contents and otherwise denies knowledge or information sufficient to form a belief as to the
truth the allegations in paragraph 50 of the Complaint.
51. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth the allegations in paragraph 51 of the Complaint.
52. Defendant AGR US admits that certain government entities issued orders to prevent
the spread of COVID-19 and respectfully refers the Court to those orders for their contents. As to
the remaining allegations in paragraph 52, Defendant AGR US denies knowledge or information
sufficient to form a belief as to the truth of those allegations in paragraph 52 of the Complaint.
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53. Defendant AGR US denies the allegations in paragraph 53 of the Complaint and
respectfully refers the Court to orders referenced in paragraph 53 of the Complaint for their
contents.
54. Defendant AGR US admits that Plaintiffs purport to quote from various orders
issued by certain government entities and respectfully refer the Court to those orders for their
contents. Defendant AGR US otherwise denies the allegations in paragraph 54 of the Complaint.
55. Defendant AGR US denies the allegations in paragraph 55 of the Complaint.
56. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 56 of the Complaint.
57. Defendant AGR US admits that Plaintiffs submitted a Sworn Statement in Partial
Proof of Loss dated May 26, 2020 and respectfully refers the Court to that submission for its
contents. Defendant AGR US otherwise denies the allegations in paragraph 57 of the Complaint.
58. Defendant AGR US admits that Plaintiffs submitted certain documents as part of
its Sworn Statement in Partial Proof of Loss and respectfully refers the Court to those documents
for their contents. Defendant AGR US otherwise denies the allegations in paragraph 58 of the
Complaint.
THE CENTURY 21 INSURANCE PROGRAM
59. Defendant AGR US denies the allegations in paragraph 59 of the Complaint other
than to admit that Plaintiff asserts a breach of contract claim in this action.
60. Defendant AGR US admits that Plaintiffs procured a property insurance program
and respectfully refers the Court to the associated insurance policies for their terms, conditions,
exclusions and limitations. Defendant AGR US otherwise denies the allegations in paragraph 60
of the Complaint.
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61. To the extent that the allegations in paragraph 61 of the Complaint are directed
against Defendant AGR US, it admits that the policy it issued to Century 21 Department Stores,
LLC is listed on Schedule A to the Complaint and respectfully refers the Court to the AGR US
Policy for its terms, conditions, exclusions and limitations. As to the remaining allegations in
paragraph 61 of the Complaint, Defendant AGR US denies knowledge or information sufficient
to form a belief as to the truth of the allegations in paragraph 61 of the Complaint.
62. Defendant AGR US admits that Plaintiffs CENTURY 21 DEPARTMENT
STORES, LLC, 173 BWAY BLUE LLC, 262 MOTT BLUE TIC LLC, 444 86 BLUE LLC,
MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, SABRA ASSOCIATES LLC, 315
SEVENTH RETAIL LLC, and CENTURY 21, INC. are Named Insureds under the AGR US
Policy. Defendant AGR US respectfully refers the Court to AGR US Policy for its terms,
conditions, limitations and exclusions. Defendant AGR US otherwise denies knowledge or
information sufficient to form a belief as to the truth of the allegations in paragraph 62 of the
Complaint.
63. Defendant AGR US admits that the AGR US Policy provides certain coverages to
Plaintiffs and respectfully refers the Court to AGR US Policy for its terms, conditions, limitations,
and exclusions. Defendant AGR US otherwise denies knowledge or information sufficient to form
a belief as to the truth of the allegations in paragraph 63 of the Complaint.
64. Defendant AGR US admits that the AGR US Policy has a Policy Period of August
1, 2019 to August 1, 2020 and respectfully refers the Court to the AGR US Policy for its terms,
conditions, exclusions and limitations. Defendant AGR US otherwise denies knowledge or
information sufficient to form a belief as to the truth of the allegations in paragraph 64 of the
Complaint.
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65. Defendant AGR US admits that the AGR US Policy was in effect as of March 2020
and July 8, 2020 and respectfully refers the Court to the AGR US Policy for its terms, conditions,
exclusions and limitations. Defendant AGR US otherwise denies knowledge or information
sufficient to form a belief as to the truth of the allegations in paragraph 65 of the Complaint.
66. Defendant AGR US denies the allegations in paragraph 66 of the Complaint and
respectfully refers the Court to the AGR US Policy for its terms, conditions, limitations and
exclusions.
67. Defendant AGR US admits that the AGR US Policy contains the quoted language
in paragraph 67 of the Complaint (“all risk”) and respectfully refers the Court to the AGR US
Policy for its terms, conditions, limitations and exclusions. Defendant AGR US otherwise denies
the allegations in paragraph 67 of the Complaint.
68. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 68 of the Complaint.
69. Defendant AGR US admits that that the AGR US Policy contains the language
quoted in paragraph 69 of the Complaint and respectfully refers the Court to the AGR US Policy
for all of its terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies
the allegations in paragraph 69 of the Complaint.
70. Defendant AGR US respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations and otherwise denies knowledge or information
sufficient to form a belief as to the truth of the allegations in paragraph 70 of the Complaint.
71. Defendant AGR US admits that the AGR US Policy provides certain coverages
subject to its terms, conditions, limitations and exclusions. Defendant AGR US otherwise denies
the allegations in paragraph 71 of the Complaint.
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72. Defendant AGR US respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations, and otherwise denies the allegations in paragraph 72
of the Complaint.
73. Defendant AGR US respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations, and otherwise denies the allegations in paragraph 73
of the Complaint.
74. Defendant AGR US admits that the AGR US Policy contains the quoted language
in paragraph 74 of the Complaint and respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies the allegations
of paragraph 74 of the Complaint.
75. Defendant AGR US respectfully refers the Court to the AGR US Policy for its
terms, conditions, limitations, and exclusions, and otherwise denies the allegations of paragraph
75 of the Complaint.
76. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 76 of the Complaint.
77. Defendant AGR US admits that the AGR US Policy contains the language quoted
in paragraph 77 of the Complaint, and respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies the allegations
of paragraph 77 of the Complaint.
78. Defendant AGR US admits that the AGR US Policy contains the language quoted
in paragraph 78 of the Complaint, and respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies the allegations
of paragraph 78 of the Complaint.
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79. Defendant AGR US denies the allegations in paragraph 79 of the Complaint, and
respectfully refers the Court to the AGR US Policy for its terms, conditions, exclusions and
limitations.
80. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 80 of the Complaint.
81. Defendant AGR US admits that the AGR US Policy contains the language quoted
in paragraph 81 of the Complaint, and respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies the allegations
of paragraph 81.
82. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 82 of the Complaint.
83. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 83 of the Complaint.
84. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 84 of the Complaint.
85. Defendant AGR US admits that the AGR US Policy contains the language quoted
in paragraph 85 of the Complaint, and respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies the allegations
of paragraph 85 of the Complaint.
86. Defendant AGR US is without knowledge or information sufficient to form a belief
as to the truth of the allegations.
87. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 87 of the Complaint.
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88. Defendant AGR US admits that the AGR US Policy contains the language quoted
in paragraph 88 of the Complaint, and respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies the allegations
of paragraph 88 of the Complaint.
89. Defendant AGR US respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations and otherwise denies the allegations in paragraph 89
of the Complaint.
90. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 90 of the Complaint.
91. Defendant AGR US admits that the AGR US Policy contains the language quoted
in paragraph 91 of the Complaint, and respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies the allegations
in paragraph 91 of the Complaint.
92. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 92 of the Complaint, and respectfully refers the Court
to the AGR US Policy for its terms, conditions, exclusions and limitations. Defendant AGR US
otherwise denies the allegations in paragraph 92 of the Complaint..
93. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 93 of the Complaint.
94. Defendant AGR US admits that the AGR US Policy contains the language quoted
in paragraph 94 of the Complaint, and respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies the allegations
of paragraph 94 of the Complaint.
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95. Defendant AGR US respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations, and otherwise denies the allegations of paragraph 95
of the Complaint.
96. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 96 of the Complaint.
97. Defendant AGR US admits that the AGR US Policy contains the language quoted
in paragraph 97 of the Complaint, and respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations.
98. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 98 of the Complaint.
99. Defendant AGR US denies the allegations of paragraph 99 to the Complaint.
100. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 100 of the Complaint.
101. Defendant AGR US admits that the AGR US Policy contains the language quoted
in paragraph 101 of the Complaint, and respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies the allegations
of paragraph 101 of the Complaint.
102. Defendant AGR US denies the allegations in paragraph 102 of the Complaint.
103. Defendant AGR US denies the allegations in paragraph 103 of the Complaint.
104. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 104 of the Complaint.
105. Defendant AGR US admits that the AGR US Policy contains the language quoted
in paragraph 105 of the Complaint, and respectfully refers the Court to the AGR US Policy for its
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terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies the allegations
of paragraph 105 of the Complaint.
106. Defendant AGR respectfully refers the Court to the AGR US Policy for its terms,
conditions, exclusions and limitations, and otherwise denies the allegations of paragraph 106 of
the Complaint.
107. Defendant AGR US admits that the AGR Policy contains the quoted language in
paragraph 107 of the Complaint, and respectfully refers the Court to the AGR US Policy for its
terms, conditions, exclusions and limitations. Defendant AGR US otherwise denies knowledge or
information sufficient to form a belief as to the truth of the balance of the allegations in paragraph
107 of the Complaint.
DEFENDANT AGR US’ RESPONSES TO PLAINTIFFS’ CLAIMED LOSSES
108. Defendant AGR US admits that Plaintiffs submitted a Sworn Statement in Partial
Proof of Loss dated May 26, 2020 and respectfully refers the Court to that submission for its
contents. Defendant AGR US otherwise denies the allegations in paragraph 108 of the Complaint.
109. The allegations in paragraph 109 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, AGR US denies the
allegations in paragraph 109.
110. Defendant AGR US admits that, on June 16, 2020, the Independent Adjuster
designated in the AGR US Policy sent Plaintiffs correspondence reserving all rights in response to
the Sworn Statement in Partial Proof of Loss and requesting information needed to investigate and
evaluate the claim. Defendants AGR US respectfully refers the Court to that correspondence for
its contents. Defendant AGR US otherwise denies the remaining allegations in paragraph 110 of
the Complaint.
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111. Defendant AGR US respectfully refers the Court to the correspondence between
Plaintiffs and the Independent Adjuster for their contents and otherwise denies the allegations in
paragraph 111 of the Complaint.
112. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 112 of the Complaint.
113. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 113 of the Complaint.
114. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 114 of the Complaint.
115. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 115 of the Complaint.
116. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 116 of the Complaint.
117. Defendant AGR US respectfully refers the Court to the correspondence between
Plaintiffs and the Independent Adjuster for their contents and otherwise denies the allegations in
paragraph 117 of the Complaint.
118. Defendant AGR US denies the allegations in paragraph 118 of the Complaint.
119. Defendant AGR US denies the allegations in paragraph 119 of the Complaint.
120. Defendant AGR US denies the allegations in paragraph 120 of the Complaint.
121. Defendant AGR US denies the allegations in paragraph 121 of the Complaint.
122. Defendant AGR US denies knowledge or information sufficient to form a belief as
to the truth of the allegations in paragraph 122 of the Complaint.
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ANSWER TO THE FIRST CAUSE OF ACTION (Breach of Contract)
123. Defendant AGR US repeats, reiterates and realleges each and every answer to each
and every allegation contained in paragraphs 1 through 122 of the Complaint with the same force
and effect as if fully set forth at length herein in answer to paragraph 123 of the Complaint.
124. Defendant AGR US admits that the AGR US Policy is a binding contract with the
Named Insureds and respectfully refers the Court to the AGR US Policy for its terms, conditions,
exclusions and limitations. Defendant AGR US otherwise denies knowledge or information
sufficient to form a belief as to the truth of the balance of the allegations in paragraph 124 of the
Complaint.
125. Defendant AGR US denies the allegations in paragraph 125 of the Complaint.
126. Defendant AGR US denies the allegations in paragraph 126 of the Complaint.
127. Defendant AGR US denies the allegations in paragraph 127 of the Complaint.
128. Defendant AGR US denies the allegations in paragraph 128 of the Complaint.
ANSWER TO THE SECOND CAUSE OF ACTION (Breach of Contract – Implied Covenant of Good Faith and Fair Dealing)
129. Defendant AGR US repeats, reiterates and realleges each and every answer to each
and every allegation contained in paragraphs 1 through 128 of the Complaint with the same force
and effect as if fully set forth at length herein in answer to paragraph 129 of the Complaint.
130. The allegations in paragraph 130 of the Complaint state legal conclusions to which
no response is required. To the extent a response is deemed necessary, Defendant AGR US denies
the allegations in paragraph 130.
131. Defendant AGR US denies the allegations in paragraph 131 of the Complaint.
132. Defendant AGR US denies the allegations in paragraph 132 of the Complaint.
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133. Defendant AGR US denies the allegations in paragraph 133 of the Complaint.
134. Defendant AGR US denies the allegations in paragraph 134 of the Complaint.
135. Defendant AGR US denies the Plaintiffs are entitled to the relief requested in the
unnumbered “Wherefore” paragraph following paragraph 134 of the Complaint.
AFFIRMATIVE AND OTHER DEFENSES
FIRST DEFENSE
136. This Court lacks jurisdiction over this action and each and every cause of action set
forth in the Complaint.
SECOND DEFENSE
137. The Complaint is barred, in whole or in part, because it fails to state a cause of
action against Defendant AGR US upon which relief may be granted.
THIRD DEFENSE
138. The AGR US Policy contains the following exclusion, “This ‘policy’ does not
cover . . . loss of market or loss of use.” There is no coverage for Plaintiffs’ claims to the extent
they arise from these perils.
FOURTH DEFENSE
139. The AGR US Policy contains the following exclusion:
This "policy" does not cover the following, but if physical loss or damage not otherwise excluded by this "policy" to Insured Property at Insured Location(s) results, then only such resulting physical loss or damage is covered by this "policy":
f. disease, infestation.
There is no coverage under the AGR US Policy because of the application of this exclusion.
FIFTH DEFENSE
140. The Allianz Policy also excludes coverage for:
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(1) loss, damage, cost or expense incurred by the Insured; and (2) fines or penalties imposed on the Insured at the order of any government agency, court or any other authority; in connection with the actual or suspected presence of "contaminants" arising or resulting from any cause whatsoever, except as otherwise provided under DECONTAMINATION COSTS and LAND AND WATER CONTAMINANTS CLEANUP, REMOVAL AND DISPOSAL.
The Allianz Policy defines "contaminants" to include "virus." There is no coverage for Plaintiffs’
claims because of the application of this exclusion.
SIXTH DEFENSE
141. Defendant AGR US has already paid to Plaintiffs the maximum amount due under
the AGR US Policy in response to their claims, and thus Plaintiffs are entitled to no further
recovery for their insurance claim.
SEVENTH DEFENSE
142. The obligations of Defendant AGR US are strictly defined, limited and controlled
by the terms, conditions, exclusions and limitations of the AGR US Policy, including without
limitation the "Other Insurance" clause set forth in Section V.G. of the AGR US Policy, and
Defendant AGR US has no other legally enforceable obligation to any Plaintiff.
EIGHTH DEFENSE
143. The coverage obligations of Defendant AGR US, if any, are strictly limited to the
participation of AGR US in the AGR US Policy, which is "$50,000,000 (being 20% ) part of
$250,000 excess of Policy deductible.”
NINTH DEFENSE
144. Plaintiffs have the burden of proving any alleged direct physical damage, their
alleged losses, that their damages were caused by a covered cause of loss, and that each and every
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one of the elements required to trigger coverage has occurred or otherwise been satisfied. Since
Plaintiffs have not done so, there is no coverage under the AGR US Policy.
TENTH DEFENSE
145. Plaintiffs' claims are not covered under the AGR US Policy because there has been
no direct physical loss or damage to any Insured Property at Insured Location(s) or any other
relevant property as required by the AGR US Policy.
ELEVENTH DEFENSE
146. Plaintiffs' claims are or may be barred in whole or in part to the extent any Plaintiff
failed to perform or satisfy obligations, covenants, conditions precedent or conditions subsequent
under the AGR US Policy, including without limitation the "Requirements in Case of Loss" clause
in Section IV.C.8. of the AGR US Policy.
TWELFTH DEFENSE
147. Defendant AGR US has performed all of its obligations and has otherwise satisfied
all of the terms and conditions for which it is responsible under the AGR US Policy, in accordance
with the terms, conditions, exclusions, limitations and other provisions of the AGR US Policy.
THIRTEENTH DEFENSE
148. Coverage under the AGR US Policy is barred to the extent that the losses and
damages alleged in the Complaint are not covered under the terms, conditions, exclusions and
limitations of the AGR US Policy.
FOURTEENTH DEFENSE
149. Plaintiffs’ claim and alleged loss or damage are subject to, and limited by, limits,
sub limits and deductibles under the AGR US Policy.
FIFTEENTH DEFENSE
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150. Plaintiffs have failed to make reasonable efforts to mitigate or avoid their damages,
if any.
SIXTEENTH DEFENSE
151. Plaintiffs are not entitled to recover from Defendant AGR US their costs, expenses,
or attorney's fees in this action.
SEVENTEENTH DEFENSE
152. Plaintiffs are not entitled to recover from Defendant AGR US any liquidated,
consequential or other extra-contractual damages.
EIGHTEENTH DEFENSE
153. Defendant AGR US avails itself of and adopts such other defenses raised by any
other Defendant(s) as may be applicable to Defendant AGR US.
NINETEENTH DEFENSE
154. Any Plaintiff that is not an insured under and as defined by the AGR US Policy
has failed to state a claim upon which relief can be granted.
TWENTIETH DEFENSE
155. Some or all of the Plaintiffs lack standing, capacity or authority to have brought
this action or to maintain it.
TWENTY-FIRST DEFENSE
156. Plaintiffs have no rights, title or interest in the Plaintiffs' alleged insurance claim,
or are otherwise not a real party in interest.
TWENTY-SECOND DEFENSE
157. Defendant AGR US reserves the right to amend, supplement or otherwise modify
this Answer or any of the defenses set forth herein, including by asserting any and all applicable
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defenses which may later appear to be applicable.
WHEREFORE, Defendant AGR US respectfully requests this Honorable Court enter
judgment in its favor and against Plaintiffs as follows:
(1) On the First Cause of Action, declaring Defendant AGR US has not breached the AGR
US Policy and that Defendant AGR US has no liability in respect of the Plaintiffs' claimed loss or
any other amounts;
(2) On the Second Cause of Action, declaring Defendant AGR US has not breached the
AGR US Policy or any of its duties, contractual or otherwise, to Plaintiffs, and that Defendant
AGR US has no liability in respect of the Plaintiffs' claimed loss, attorney's fees, costs or any other
amounts;
(3) Declaring Plaintiffs are not entitled to any fees or costs of this action;
(4) Dismissing the Complaint with prejudice, together with the costs and disbursements of
this action and for any expenses incurred in the defense thereof, including without limitation
attorney's fees and costs;
(5) Declaring there is no coverage for Plaintiffs’ insurance claims as against AGR US ;
(6) Declaring Plaintiffs' claims, whether or not related to insurance, to be without merit;
and
(7) Awarding to Defendant AGR US such further equitable, declaratory or other relief to
which AGR US may be entitled and which this Court may determine is fair and just.
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Dated: New York, New York September 18, 2020 Respectfully submitted, DLA PIPER LLP (US)
/s/ Michael Hynes Michael Hynes (MH5086) DLA PIPER LLP (US) 1251 Avenue of the Americas New York, NY 10020 Tel: (212) 335-4942 Fax: (212) 884-8642
[email protected] Attorney for Defendant Allianz Global Risks US Insurance Co.
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, AND CENTURY 21 INC.
Plaintiffs, v. STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTAN INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712
Defendants.
Civil Action No.: 1:20-cv-07437-LGS NOTICE OF APPEARANCE OF COUNSEL
PLEASE TAKE NOTICE that Joanna L. Young of Kennedys CMK LLP hereby enters her
appearance as counsel for Defendant, AXIS Surplus Insurance Company i/s/h/a AXIS Surplus
Lines Insurance Co., in the above-entitled case. The Court and counsel are requested to
serve Joanna L. Young of Kennedys CMK LLP with all pleadings, correspondence and notices.
Dated: New York, New York September 18, 2020
KENNEDYS CMK LLP
/s/ Joanna L. Young Joanna L. Young, Esq. Attorneys for Defendant AXIS Surplus Insurance Company i/s/h/a AXIS Surplus Lines Insurance Co. 570 Lexington Avenue, 8th Floor New York, New York 10022 (212) 252-0004 Fax. (212) 832-4920 [email protected]
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, AND CENTURY 21 INC.
Plaintiffs, v. STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTAN INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712
Defendants.
Civil Action No.: 1:20-cv-07437-LGS NOTICE OF APPEARANCE OF COUNSEL
PLEASE TAKE NOTICE that Kristin V. Gallagher of Kennedys CMK LLP hereby enters her
appearance as counsel for Defendant, AXIS Surplus Insurance Company i/s/h/a AXIS Surplus
Lines Insurance Co., in the above-entitled case. The Court and counsel are requested to
serve Kristin V. Gallagher of Kennedys CMK LLP with all pleadings, correspondence and
notices.
Dated: New York, New York September 18, 2020
KENNEDYS CMK LLP
/s/ Kristin V. Gallagher Kristin V. Gallagher, Esq. Attorneys for Defendant AXIS Surplus Insurance Company i/s/h/a AXIS Surplus Lines Insurance Co. 120 Mountain View Boulevard Post Office Box 650 Basking Ridge, New Jersey 07920 (908) 848-6300
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Fax. (908) 647-8390 [email protected]
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, AND CENTURY 21 INC.
Plaintiffs, v. STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTAN INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712
Defendants.
Civil Action No.: 1:20-cv-07437-LGS
Rule 7.1 CORPORATE DISCLOSURE
STATEMENT
Under Rule 7.1 of the Federal Rules of Civil Procedure, and to enable District Judges
and Magistrate Judges of the Court to evaluate possible disqualification or recusal, the
undersigned counsel for AXIS Surplus Insurance Company (a private non-governmental party)
certifies that the following are corporate parents, affiliates and/or subsidiaries of said party,
which are publicly held.
• AXIS Surplus Insurance Company is an Illinois domiciled insurer that is
wholly owned by AXIS Insurance Company, also an Illinois domiciled
insurer, which in turn is wholly owned by AXIS Specialty U.S.
Holdings, Inc., a Delaware domiciled holding company, which in turn
is wholly owned by AXIS Specialty Global Holdings Limited, an Ireland
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domiciled holding company, which is wholly owned by AXIS Capital
Holdings Limited, a Bermuda domiciled holding company that is
publicly traded on the New York Stock Exchange.
Dated: New York, New York September 18, 2020
KENNEDYS CMK LLP /s/ Kristin V. Gallagher Kristin V. Gallagher Joanna L. Young Attorneys for Defendant AXIS Surplus Insurance Company i/s/h/a AXIS Surplus Lines Insurance Co. 570 Lexington Avenue – 8th Floor New York, New York 10022 (212) 252-0004
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
Century 21 Department Stores LLC, 66 Pearl Retail, LLC, 66 Pearl Retail II, LLC, 66 Pearl Retail ISG, LLC, 173 Bway Blue LLC, 262 Mott Blue TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, AND CENTURY 21 INC.
Plaintiffs, v. STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTAN INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712
Defendants.
Civil Action No.: 1:20-cv-07437-LGS ANSWER
Defendant, AXIS Surplus Insurance Company i/s/h/a AXIS Surplus Lines Insurance Co.
(hereinafter “AXIS”), by and through its counsel, Kennedys CMK LLP, answers the Complaint
upon information and belief as follows:
INTRODUCTION
1. The allegations contained in paragraph 1 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 1 of the Complaint.
2. The allegations contained in paragraph 2 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
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denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 2 of the Complaint.
3. The allegations contained in paragraph 3 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 3 of the Complaint.
4. The allegations contained in paragraph 4 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 4 of the Complaint.
5. The allegations contained in paragraph 5 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 5 of the Complaint.
6. The allegations contained in paragraph 6 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 6 of the Complaint.
7. The allegations contained in paragraph 7 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 7 of the Complaint.
8. Defendant, AXIS, denies the allegations contained in paragraph 8 of the
Complaint as alleged.
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9. Defendant, AXIS, denies the allegations contained in paragraph 9 of the
Complaint as alleged.
10. Defendant, AXIS, denies the allegations contained in paragraph 10 of the
Complaint.
PARTIES
11. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 11 of the
Complaint.
12. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 12 of the
Complaint.
13. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 13 of the
Complaint.
14. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 14 of the
Complaint.
15. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 15 of the
Complaint.
16. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 16 of the
Complaint.
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17. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 17 of the
Complaint.
18. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 18 of the
Complaint.
19. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 19 of the
Complaint.
20. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 20 of the
Complaint.
21. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 21 of the
Complaint.
22. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 22 of the
Complaint.
23. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 23 of the
Complaint.
24. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 24 of the
Complaint.
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25. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 25 of the
Complaint.
26. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 26 of the
Complaint.
27. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 27 of the
Complaint.
28. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 28 of the
Complaint.
29. Defendant, AXIS, denies the allegation contained in paragraph 29 of the
Complaint as alleged, except admits that AXIS Surplus Insurance Company was and is a
foreign corporation organized and existing under and by virtue of the laws of Illinois, having
its principal place of business in Atlanta, Georgia.
30. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 30 of the
Complaint.
31. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 31 of the
Complaint.
32. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 32 of the
Complaint.
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33. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 33 of the
Complaint.
34. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 34 of the
Complaint.
35. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 35 of the
Complaint.
36. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 36 of the
Complaint.
37. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 37 of the
Complaint.
THE NOVEL CORONA VIRUS AND ITS EFFECTS
38. The allegations contained in paragraph 38 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 38 of the Complaint.
39. The allegations contained in paragraph 39 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 39 of the Complaint.
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40. The allegations contained in paragraph 40 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 40 of the Complaint.
41. The allegations contained in paragraph 41 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 41 of the Complaint.
42. The allegations contained in paragraph 42 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 42 of the Complaint.
43. The allegations contained in paragraph 43 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 43 of the Complaint.
44. The allegations contained in paragraph 44 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 44 of the Complaint.
45. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 45 of the
Complaint.
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46. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 46 of the
Complaint.
47. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 47 of the
Complaint.
48. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 48 of the
Complaint.
49. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 49 of the
Complaint.
50. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 50 of the
Complaint.
51. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 51 of the
Complaint.
52. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 52 of the
Complaint.
53. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 53 of the
Complaint.
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54. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 54 of the
Complaint.
55. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 55 of the
Complaint.
56. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 56 of the
Complaint.
57. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 57 of the
Complaint.
58. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 58 of the
Complaint.
THE CENTURY 21 INSURANCE PROGRAM
59. The allegations contained in paragraph 59 of the Complaint contains a statement of
Plaintiff’s position, to which no answer is required. To the extent that an answer is required, AXIS
denies having knowledge or information sufficient to form a belief as to the truth and accuracy of
the allegations contained in paragraph 59 of the Complaint.
60. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 60 of the
Complaint.
61. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 61 of the
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Complaint, except admits that AXIS issued an excess property policy to Century 21, LLC
under policy number EAF632184-19, in effect for the policy period April 1, 2019 to April 1,
2020, with limits of $15 million excess of $100,000 million excess of deductibles.
62. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 62 of the
Complaint insofar as they concern other insurers and/or insurance policies, and denies the
allegations contained in paragraph 62 of the Complaint as alleged with respect to the AXIS
Policy.
63. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 63 of the
Complaint insofar as they concern other insurers and/or insurance policies, and denies the
allegations contained in paragraph 63 of the Complaint as alleged with respect to the AXIS
Policy.
64. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 64 of the
Complaint insofar as they concern other insurers and/or insurance policies, except admits
that the AXIS policy was in effect August 1, 2019 to August 1, 2020.
65. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 65 of the
Complaint insofar as they concern other insurers and/or insurance policies, and with respect
to AXIS, denies the allegations in paragraph 65 of the Complaint as alleged.
66. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 66 of the
Complaint insofar as they concern other insurers and/or insurance policies, and with respect
to AXIS, denies the allegations in paragraph 66 of the Complaint as alleged.
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67. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 67 of the
Complaint insofar as they concern other insurers and/or insurance policies, and with respect
to AXIS, denies the allegations in paragraph 67 of the Complaint as alleged.
68. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 68 of the
Complaint insofar as they concern other insurers and/or insurance policies, except admits
the allegations contained in paragraph 68 as they apply to AXIS.
69. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 69 of the
Complaint.
70. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 70 of the
Complaint insofar as they concern other insurers and/or insurance policies, except admits
the allegations contained in paragraph 70 as they apply to AXIS.
71. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 71 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 71 as alleged as they apply to AXIS.
72. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 72 of the
Complaint insofar as they concern other insurers and/or insurance policies, except admits
the allegations contained in paragraph 72 as they apply to AXIS.
73. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 73 of the
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Complaint insofar as they concern other insurers and/or insurance policies, except admits
the allegations contained in paragraph 73 as they apply to AXIS.
74. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 74 of the
Complaint.
75. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 75 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 75 as alleged as they apply to AXIS.
76. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 76 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 76 as alleged as they apply to AXIS.
77. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 77 of the
Complaint.
78. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 78 of the
Complaint.
79. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 79 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 79 as alleged as they apply to AXIS.
80. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 80 of the
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Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 80 as alleged as they apply to AXIS.
81. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 81 of the
Complaint.
82. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 82 of the
Complaint.
83. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 83 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 83 as alleged as they apply to AXIS.
84. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 84 of the
Complaint insofar as they concern other insurers and/or insurance policies, except admits
the allegations contained in paragraph 71 as they apply to AXIS.
85. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 85 of the
Complaint.
86. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 86 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 86 as alleged as they apply to AXIS.
87. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 87 of the
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Complaint insofar as they concern other insurers and/or insurance policies, except admits
the allegations contained in paragraph 87 as alleged.
88. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 88 of the
Complaint.
89. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 89 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 89 as alleged as they apply to AXIS.
90. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 90 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 90 as alleged as they apply to AXIS.
91. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 91 of the
Complaint.
92. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 92 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 92 as alleged as they apply to AXIS.
93. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 93 of the
Complaint insofar as they concern other insurers and/or insurance policies, except admits
the allegations contained in paragraph 93 as alleged as they apply to AXIS.
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94. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 94 of the
Complaint.
95. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 95 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 95 as alleged as they apply to AXIS.
96. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 96 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 96 as alleged as they apply to AXIS.
97. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 97 of the
Complaint.
98. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 98 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 98 as alleged as they apply to AXIS.
99. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 99 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 99 as alleged as they apply to AXIS.
100. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 100 of the
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Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 100 as alleged as they apply to AXIS.
101. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 101 of the
Complaint.
102. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 102 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 102 as they apply to AXIS.
103. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 103 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 103 as alleged as they apply to AXIS.
104. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 104 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 104 as they apply to AXIS.
105. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 105 of the
Complaint.
106. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 106 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 106 as they apply to AXIS.
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107. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 107 of the
Complaint insofar as they concern other insurers and/or insurance policies, except denies
the allegations contained in paragraph 107 as they apply to AXIS.
108. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 108 of the
Complaint.
109. Defendant, AXIS, denies the allegations contained in paragraph 109 of the
Complaint.
110. Defendant, AXIS, denies the allegations contained in paragraph 110 of the
Complaint.
111. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 111 of the
Complaint.
112. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 112 of the
Complaint.
113. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 113 of the
Complaint.
114. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 114 of the
Complaint.
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115. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 115 of the
Complaint.
116. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 116 of the
Complaint.
117. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 117 of the
Complaint.
118. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 118 of the
Complaint.
119. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 119 of the
Complaint.
120. Defendant, AXIS, denies the allegations contained in paragraph 120 of the
Complaint.
121. Defendant, AXIS, denies the allegations contained in paragraph 121 of the
Complaint.
122. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 122 of the
Complaint.
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AS A FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS
123. Defendant, AXIS, repeats, reiterates and realleges each and every response to
the allegations contained in paragraphs 1 through 122, inclusive, as if fully set forth at length
herein.
124. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 124 of the
Complaint.
125. Defendant, AXIS, denies having knowledge or information sufficient to form a
belief as to the truth and accuracy of the allegations contained in paragraph 125 of the
Complaint.
126. Defendant, AXIS, denies the allegations contained in paragraph 126 of the
Complaint as alleged.
127. Defendant, AXIS, denies the allegations contained in paragraph 127 of the
Complaint.
128. Defendant, AXIS, denies the allegations contained in paragraph 128 of the
Complaint.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS
129. Defendant, AXIS, repeats, reiterates and realleges each and every response to
the allegations contained in paragraphs 1 through 128, inclusive, as if fully set forth at length
herein.
130. Defendant, AXIS, denies the allegations contained in paragraph 130 of the
Complaint as alleged.
131. Defendant, AXIS, denies the allegations contained in paragraph 131 of the
Complaint.
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132. Defendant, AXIS, denies the allegations contained in paragraph 132 of the
Complaint.
133. Defendant, AXIS, denies the allegations contained in paragraph 133 of the
Complaint.
134. Defendant, AXIS, denies the allegations contained in paragraph 134 of the
Complaint.
AS AND FOR A FIRST SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
There has been no physical loss of or damage to the property insured under the AXIS
policy and, therefore, coverage under the AXIS policy has not been triggered by Plaintiffs’
claims.
AS AND FOR A SECOND SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The Business Interruption coverage under the AXIS Policy has not been implicated by
the claims asserted by Plaintiffs because there has been no damage caused directly to the
insured property by a peril not otherwise excluded by the AXIS policy.
AS AND FOR A THIRD SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The Extra Expense coverage under the AXIS Policy has not been implicated by the
claims asserted by Plaintiffs, as there has been no damage or destruction to insured
property.
AS AND FOR A FOURTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The Rents and Rental Value coverage under the AXIS Policy has not been implicated
by the claims asserted by Plaintiffs because there has been no damage or loss to the
insured property and there is no evidence that the insured property, or a portion thereof, is
untentantable or has rendered any portion of the insured property untenantable.
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AS AND FOR A FIFTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The Interruption by Civil Authority coverage under the AXIS Policy has not been
implicated by the claims asserted by Plaintiffs because access to the vicinity has not been
restricted by order of civil authority due to a peril not otherwise excluded.
AS AND FOR A SIXTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
There is no Ingress/Egress coverage available under the AXIS Policy for the claims
asserted by Plaintiffs because there has been no direct physical loss or damage to property
of a type insured under the AXIS policy within five statute miles of the insured property, by
a peril not otherwise excluded, where ingress to or egress from the insured property is
restricted.
AS AND FOR A SEVENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
There is no Consequential Reduction in Values coverage under the AXIS Policy for the
claims asserted by Plaintiffs because (1) there has not been damage to one member of a
pair or set through insured peril; (2) there has been no reduction in value of undamaged
inventory located at a distribution/warehouse owned and/or operated by the Plaintiffs due
to damage at a covered retail location resulting from an insured peril; and (3) there has
been no reduction in value of undamaged inventory located at a covered retail location due
to damage at that location resulting from an insured peril.
AS AND FOR AN EIGHTH SEPARATE, DISTINCT AND
COMPLETE AFFIRMATIVE DEFENSE
The Pollutants and Contaminants Exclusion to the AXIS policy applies to bar
coverage for the claim because pollutants or contaminants includes those materials that
can cause or threaten damage to human health or human welfare or cause or threaten
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damage, deterioration, loss of value, marketability or loss of use to property, and
specifically includes, virus.
AS AND FOR A NINTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The Nuclear, Chemical and Biological Exclusion endorsement applies to bar coverage
for the claim because it precludes coverage for loss or damage arising directly or indirectly
from the dispersal, application or release of, or exposure to, biological materials or agents
that are harmful to property or human health, all whether controlled or uncontrolled, or
due to any act or condition incident to any of the foregoing, whether such loss be direct or
indirect, proximate or remote, or be in whole or in part caused by, contributed to, or
aggravated by, any physical loss or damage insured against by the AXIS policy, however
such dispersal, application, release or exposure may have been caused.
AS AND FOR A TENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
Plaintiffs, Miami DD 101 Blue LLC, True Blue Associates LLC, Star of David,
IRaymond-77 Warren LLC, Sabra Associates LLC, Webway Associates LLC and Century 21,
Inc. are not insureds or additional insureds under the AXIS policy.
AS AND FOR AN ELEVENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The AXIS policy contains a $250,000 per occurrence deductible for all retail
locations, except a $100,000 per occurrence deductible for 1085 Old Country Road a/k/a
89 Frost Street a/k/a 1111 Old Country Road a/k/a 770 Main Street, Westbury, New York.
AS AND FOR A TWELFTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The Loss of Market/Delay of Use exclusion to the AXIS policy bars coverage for the
claim resulting from loss of market or delay of use due to the COVID-19 pandemic and
resulting governmental orders.
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AS AND FOR A THIRTEENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The AXIS policy defines “occurrence” to mean any one loss, disaster or casualty or
series of losses, disasters or casualties arising out of one event.
AS AND FOR A FOURTEENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The Commercial Property Exclusion endorsement to the AXIS policy applies to bar
coverage for the claim, including (a) loss or damage caused by, resulting from, contributed
to or made worse by actual, alleged or threatened release, discharge, escape or dispersal
of pollutants or contaminants, however caused; (e) costs associated with the enforcement
or any ordinance or law which requires the Insured or others to test for, monitor, clean up,
remove, contain, treat, detoxify or neutralize, or in any way respond to or assess the
effects of pollutants or contaminants; (g) any cost to store or otherwise dispose of any
property because pollutants or contaminants infect the property; or (h) any expense for the
investigation or defense of any loss, damages or any cost, loss of use expense, fine or
penalty or for any expense or claim or suit related to any of the above.
AS AND FOR A FIFTEENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The AXIS policy does not include the Murder, Suicide and Infectious or Contagious
Disease Extension.
AS AND FOR A SIXTEENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The AXIS policy has sublimits of $2,500,000 per occurrence for Extra Expense
coverage and sublimits of $2,500,000 per occurrence for Contingent Business Income
coverage.
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AS AND FOR A SEVENTEENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The claims asserted by Plaintiffs are barred, in whole or in part, because the
Complaint for Declaratory Judgment fails to state facts sufficient to constitute a cause of
action upon which relief may be granted.
AS AND FOR A EIGHTEENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The claims asserted by Plaintiffs are barred because coverage is not implicated under
the AXIS policy.
AS AND FOR A NINETEENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
All or part of the sums for which Plaintiffs seek coverage may be precluded by the
applicable provisions, terms, conditions, limitations and exclusions of the AXIS policy placed
at issue herein, and/or by public policy or express provision of law.
AS AND FOR A TWENTIETH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
To the extent the AXIS policy is applicable to the instant matter, the rights and
obligations of Plaintiffs and AXIS are defined and controlled by the limits of liability, terms,
exclusions, conditions and other provisions of the AXIS policy placed at issue herein. The
terms, exclusions, conditions and other provisions of the AXIS policy are too voluminous to
itemize as affirmative defenses, and are therefore incorporated by reference herein.
AS AND FOR A TWENTY-FIRST SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred by the doctrines of waiver, estoppel and laches.
AS AND FOR A TWENTY-SECOND SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
Insurance coverage does not exist for all or part of the claims at issue pursuant to the
terms of the AXIS policy.
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AS AND FOR A TWENTY-THIRD SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The Contingent Business Interruption coverage under the AXIS Policy has not been
implicated by the claims asserted by Plaintiffs because there has been no damage to or
destruction by peril not otherwise excluded to Real or Personal property or facilities of
Suppliers or Customers which wholly or partially prevented the receipt or delivery of
materials to the Plaintiffs.
AS AND FOR A TWENTY-FOURTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The Pollutants and Contaminants Exclusion to the AXIS policy precludes coverage for
(a) all loss or damage caused by, resulting from, contributed to or made worse by actual,
alleged or threatened release, discharge, escape or dispersal of pollutants or contaminants,
however caused; and (e) the costs associated with the enforcement or any ordinance or law
which requires the Plaintiffs or others to test for, monitor, clean up, remove, contain,
treat, detoxify or neutralize, or in any way respond to or assess the effects of pollutants or
contaminant
AS AND FOR A TWENTY-FIFTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
Prior to the issuance of the AXIS Primary and Excess policies, on or about August 1,
2019, plaintiffs and/or their agents and/or representatives were aware and had knowledge,
and agreed, that the Murder, Suicide and Infectious or Contagious Disease Extension would
not be included in, or made a part of, the AXIS policy.
AS AND FOR A TWENTY-SIXTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
Coverage under the AXIS Excess policy has not been triggered because the underlying
$100,000,000 in insurance, and all applicable deductibles, have not been properly
exhausted by payment of the claim.
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AS AND FOR A TWENTY-SEVENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE
The AXIS Primary and Excess policies were issued on October 25, 2019, pursuant to a
binder that did not include the Murder, Suicide and Infectious or Contagious Disease
Extension.
WHEREFORE, Defendant, AXIS, prays for the following judgment:
1. That a judgment be entered in this action dismissing the Complaint against AXIS with prejudice, together with costs and disbursements; and
2. For any and other relief as this Court deems just.
Dated: New York, New York
September 18, 2020
KENNEDYS CMK LLP /s/ Kristin V. Gallagher Kristin V. Gallagher Joanna L. Young Attorneys for Defendant AXIS Surplus Insurance Company i/s/h/a AXIS Surplus Lines Insurance Co. 570 Lexington Avenue – 8th Floor New York, New York 10022 (212) 252-0004
TO: WEG AND MYERS, P.C. Dennis T. D’Antonio, Esq. Attorneys for Plaintiffs Federal Plaza 52 Duane Street, 2nd Floor New York, New York 10007 (212) 227-4210
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 1
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
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CENTURY 21 DEPARTMENT STORES, LLC, 66 PEARL RETAIL, LLC, 66 PEARL RETAIL II, LLC, PEARL RETAIL ISG, LLC, 173 BWAY BLUE LLC, 262 MOTT BLUE TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, WEBWAY ASSOCIATES LLC, and CENTURY 21, INC., Plaintiffs,
- against –
STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTON INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., QBE SPECIALTY INSURANCE CO., GREAT AMERICAN FIDELITY INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712,
Defendants.
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Case No. 1:20-cv-07437-LGS Removed from the New York State Supreme Court, New York County, Index No. 652975/2020
DEFENDANT QBE SPECIALTY INS. CO.’S ANSWER
Defendant QBE Specialty Insurance Company (“QBE”), by its attorneys, Zelle LLP, as
and for its Answer to Plaintiffs’ Complaint alleges, upon information and belief, as follows:
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 2
INTRODUCTION
1. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 1 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
2. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 2 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
3. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 3 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
4. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 4 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
5. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 5 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
6. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 6 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
7. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 7 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 3
8. QBE admits that QBE issued Policy No. CFE1317141 to Century 21 Department
Stores, LLC for a policy period from August 1, 2019 to August 1, 2020 (“QBE Policy”), subject
to all policy terms, conditions, limitations, and exclusions. QBE admits that Plaintiffs have paid
insurance premiums for the QBE Policy. QBE denies knowledge or information sufficient to
form a belief regarding the truth of the remaining allegations of paragraph 8 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein,
including the interpretation of the Policies, to the District Court.
9. QBE denies each and every allegation set forth in paragraph 9 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
10. QBE denies each and every allegation set forth in paragraph 10 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
PARTIES
11. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 11 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
12. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 12 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
13. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 13 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 4
14. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 14 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
15. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 15 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
16. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 16 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
17. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 17 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
18. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 18 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
19. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 19 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
20. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 20 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 5
21. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 21 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
22. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 22 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
23. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 23 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
24. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 24 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
25. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 25 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
26. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 26 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
27. The allegations contained in paragraph 27 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 27 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 6
28. The allegations contained in paragraph 28 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 28 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
29. The allegations contained in paragraph 29 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 29 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
30. The allegations contained in paragraph 30 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 30 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
31. The allegations contained in paragraph 31 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 31 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
32. The allegations contained in paragraph 32 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 7
in paragraph 32 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
33. The allegations contained in paragraph 33 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 33 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
34. The allegations contained in paragraph 34 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 34 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
35. QBE admits the allegations set forth in paragraph 35 of Plaintiffs’ Complaint.
36. The allegations contained in paragraph 36 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 36 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
37. The allegations contained in paragraph 37 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 37 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 8
THE NOVEL CORONAVIRUS AND ITS EFFECTS
38. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 38 of Plaintiffs’ Complaint, except avers that the novel
coronavirus, SARS-CoV-2 (“COVID-19”), is a global pandemic. QBE reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
39. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 39 of Plaintiffs’ Complaint, except avers that people
became infected with COVID-19 beginning the winter of 2019. QBE reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
40. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 40 of Plaintiffs’ Complaint, except avers that the World
Health Organization issued several declarations and statements regarding COVID-19. QBE
reserves and refers all questions of law, fact and/or conclusions therein to the District Court.
41. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 41 of Plaintiffs’ Complaint, except avers that COVID-19 is
transmitted by human-to-human contact. QBE denies knowledge or information sufficient to
form a belief regarding the truth of the remaining allegations in paragraph 41 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
42. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 42 of Plaintiffs’ Complaint, and reserves and refers
all questions of law, fact and/or conclusions therein to the District Court.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 9
43. QBE admits that the COVID-19 pandemic received media attention, as alleged in
paragraph 43 of Plaintiffs’ Complaint. QBE denies knowledge or information sufficient to form a
belief regarding the truth of the remaining allegations in paragraph 43 of Plaintiffs’ Complaint,
and reserves and refers all questions of law, fact and/or conclusions therein to the District Court.
44. QBE admits that federal, state, and local agencies began recommending certain
preventive measures. QBE denies knowledge or information sufficient to form a belief regarding
the truth of the remaining allegations in paragraph 44 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
45. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 45 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
46. QBE denies that Plaintiffs’ loss was caused by physical loss of or damage covered
by the QBE Policy and any Underlying Policies. QBE denies knowledge or information
sufficient to form a belief as to the truth of the allegations in paragraph 46 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein,
including the interpretation of the Policies, to the District Court.
47. QBE denies that Plaintiffs’ loss was caused by physical loss of or damage covered
by the QBE Policy and any Underlying Policies. QBE denies knowledge or information
sufficient to form a belief as to the truth of the allegations in paragraph 47 of Plaintiffs’
Complaint that Plaintiffs’ properties have been damaged and, accordingly, deny the same. QBE
reserves and refers all questions of law, fact and/or conclusions therein, including the
interpretation of the Policies, to the District Court.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 10
48. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the remaining allegations in paragraph 48 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
49. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the remaining allegations in paragraph 49 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
50. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the remaining allegations in paragraph 50 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
51. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the remaining allegations in paragraph 51 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
52. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the remaining allegations in paragraph 52 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
53. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the remaining allegations in paragraph 53 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
54. Paragraph 54 of Plaintiffs’ Complaint contains a summary statement of the case to
which no response is required. To the extent that a response is required, QBE denies that the
relevant orders referred to in Paragraph 54 of Plaintiffs’ Complaint trigger coverage under the
QBE Policy and any Underlying Policies. QBE reserves and refers all questions of law, fact
and/or conclusions therein, including the interpretation of the Policies, to the District Court.
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55. QBE denies that Plaintiffs’ loss was caused by physical loss of or damage covered
by the QBE Policy and any Underlying Policies. QBE denies knowledge or information
sufficient to form a belief regarding the truth of the remaining allegations in paragraph 55 of
Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or conclusions
therein, including the interpretation of the Policies, to the District Court.
56. QBE denies that Plaintiffs’ loss was caused by physical loss of or damage covered
by the QBE Policy and any Underlying Policies. QBE denies knowledge or information
sufficient to form a belief regarding the truth of the remaining allegations in paragraph 56 of
Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or conclusions
therein, including the interpretation of the Policies, to the District Court.
57. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 57 of Plaintiffs’ Complaint, and reserves and refers
all questions of law, fact and/or conclusions therein to the District Court.
58. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 58 of Plaintiffs’ Complaint, and reserves and refers
all questions of law, fact and/or conclusions therein to the District Court.
THE CENTURY 21 INSURANCE PROGRAM
59. Paragraph 59 of Plaintiffs’ Complaint contains a summary statement of the case to
which no response is required. To the extent that a response is required, QBE denies that it
breached Policy No. CFE1317141, issued by QBE to Century 21 Department Stores, LLC, and
reserves and refers all questions of law, fact and/or conclusions therein, including the
interpretation of the Policies, to the District Court.
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60. QBE denies the allegations set forth in paragraph 60 of Plaintiffs’ Complaint,
except avers that Plaintiffs procured a layered program of property insurance. QBE states that the
Policies speak for themselves, and are subject to all terms, conditions, limitations, and
exclusions. QBE reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
61. Paragraph 61 of Plaintiffs’ Complaint contains a summary statement of the case to
which no response is required. To the extent that a response is required, QBE states that the
Policies speak for themselves, and are subject to all terms, conditions, limitations, and
exclusions. QBE reserves and refers all questions of law, fact and/or conclusions therein,
including the interpretation of the Policies, to the District Court.
62. QBE denies the allegations set forth in paragraph 62 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
63. QBE denies the allegations set forth in paragraph 63 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
64. QBE denies the allegations set forth in paragraph 64 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
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conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
65. QBE denies the allegations set forth in paragraph 65 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
66. QBE denies the allegations set forth in paragraph 66 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
67. QBE denies the allegations set forth in paragraph 67 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
68. QBE denies the allegations set forth in paragraph 68 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
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69. The allegations contained in paragraph 69 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 69 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
70. QBE denies the allegations set forth in paragraph 70 of Plaintiffs’ Complaint,
except avers that Policies have a limit of liability and that coverage under the Policies is subject
to all terms, conditions, limitations, and exclusions. QBE states that the Policies speak for
themselves, and are subject to all terms, conditions, limitations, and exclusions. QBE reserves
and refers all questions of law, fact and/or conclusions therein to the District Court.
71. QBE denies the allegations set forth in paragraph 71 of Plaintiffs’ Complaint,
except avers that coverage under the Policies for insured property and business interruption
subject to all terms, conditions, limitations, and exclusions. QBE states that the Policies speak for
themselves, and are subject to all terms, conditions, limitations, and exclusions. QBE reserves
and refers all questions of law, fact and/or conclusions therein to the District Court.
72. QBE denies the allegations set forth in paragraph 72 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
73. QBE denies the allegations set forth in paragraph 73 of Plaintiffs’ Complaint,
except avers that Policies include an “Automatic Cover” provision subject to all terms,
conditions, limitations, and exclusions. QBE states that the Policies speak for themselves, and
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are subject to all terms, conditions, limitations, and exclusions. QBE reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
74. The allegations contained in paragraph 74 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 74 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
75. QBE denies the allegations set forth in paragraph 75 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
76. QBE denies the allegations set forth in paragraph 76 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
77. The allegations contained in paragraph 77 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 77 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
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78. The allegations contained in paragraph 78 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 78 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
79. QBE denies the allegations set forth in paragraph 79 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
80. The allegations contained in paragraph 80 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 80 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
81. The allegations contained in paragraph 81 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 81 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
82. QBE denies knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 82 of Plaintiffs’ Complaint, and reserves and refers all
questions of law, fact and/or conclusions therein to the District Court.
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83. QBE denies the allegations set forth in paragraph 83 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
84. QBE denies the allegations set forth in paragraph 84 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
85. The allegations contained in paragraph 85 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 85 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
86. QBE denies the allegations set forth in paragraph 86 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
87. QBE denies the allegations set forth in paragraph 87 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
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conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
88. The allegations contained in paragraph 88 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 88 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
89. QBE denies the allegations set forth in paragraph 89 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
90. QBE denies the allegations set forth in paragraph 90 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
91. The allegations contained in paragraph 91 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 91 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
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92. QBE denies the allegations set forth in paragraph 92 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
93. QBE denies the allegations set forth in paragraph 93 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
94. The allegations contained in paragraph 94 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 94 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
95. QBE denies the allegations set forth in paragraph 95 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
96. QBE denies the allegations set forth in paragraph 96 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
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conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court
97. The allegations contained in paragraph 97 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, denies
knowledge or information sufficient to form a belief regarding the truth of the allegations in
paragraph 97 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
98. QBE denies the allegations set forth in paragraph 98 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
99. QBE denies the allegations set forth in paragraph 99 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
100. QBE denies the allegations set forth in paragraph 100 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
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101. The allegations contained in paragraph 101 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 101 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact
and/or conclusions therein to the District Court .
102. QBE denies each and every allegation set forth in paragraph 102 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
103. QBE denies the allegations set forth in paragraph 103 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
104. QBE denies the allegations set forth in paragraph 104 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
105. The allegations contained in paragraph 105 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 105 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact
and/or conclusions therein to the District Court.
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106. QBE denies the allegations set forth in paragraph 106 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
107. QBE denies the allegations set forth in paragraph 107 of Plaintiffs’ Complaint,
except avers that coverage under the Policies is subject to all terms, conditions, limitations, and
exclusions. QBE states that the Policies speak for themselves, and are subject to all terms,
conditions, limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or
conclusions therein to the District Court.
TIMELY RESPONSE
108. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 108 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
109. The allegations contained in paragraph 109 of Plaintiffs’ Complaint constitute
legal conclusions to which no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 109 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact
and/or conclusions therein to the District Court.
110. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 110 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court .
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111. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 111 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
112. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 112 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
113. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 113 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
114. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 114 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
115. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 115 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
116. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the remaining allegations in paragraph 116 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
117. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 117 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
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118. QBE denies knowledge or information sufficient to form a belief regarding the
truth of the allegations set forth in paragraph 118 of Plaintiffs’ Complaint, and reserves and
refers all questions of law, fact and/or conclusions therein to the District Court.
119. Paragraph 119 of Plaintiffs’ Complaint contains a summary statement of the case
to which no response is required. To the extent that a response is required, QBE denies that
Plaintiffs’ claim is covered under the Policies. By way of further response, QBE denies
knowledge or information sufficient to form a belief regarding the truth of the remaining
allegations in paragraph 119 of Plaintiffs’ Complaint, and reserves and refers all questions of
law, fact and/or conclusions therein to the District Court.
120. QBE denies each and every allegation set forth in paragraph 120 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
121. QBE denies each and every allegation set forth in paragraph 121 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
122. The allegations contained in paragraph 122 of Plaintiffs’ Complaint do not pertain
to QBE and, therefore, no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 122 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact
and/or conclusions therein to the District Court.
CAUSE OF ACTION – BREACH OF CONTRACT
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123. In response to paragraph 123 of Plaintiffs’ Complaint, QBE repeats, reiterates,
and realleges each and every response made in response to paragraphs “1” through “122” with
the same force and effect as though more fully set forth herein.
124. QBE denies the allegations set forth in paragraph 124 of Plaintiffs’ Complaint,
except avers that the QBE Policy is a binding contract, subject to its terms, conditions,
limitations, and exclusions. QBE reserves and refers all questions of law, fact and/or conclusions
therein, including the interpretation of the Policies, to the District Court.
125. QBE denies each and every allegation set forth in paragraph 125 of Plaintiffs’
Complaint, including the allegation that Plaintiffs complied with all conditions precedent under
the Policies, except avers that Plaintiffs submitted a Sworn Statement Proof of Loss and that
Plaintiffs have paid insurance premiums for the QBE Policy. QBE reserves and refers all
questions of law, fact and/or conclusions therein, including the interpretation of the Policies, to
the District Court.
126. QBE denies each and every allegation set forth in paragraph 126 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
127. QBE denies each and every allegation set forth in paragraph 127 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
128. QBE denies each and every allegation set forth in paragraph 128 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
CAUSE OF ACTION – BREACH OF CONTRACT IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
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129. In response to paragraph 129 of Plaintiffs’ Complaint, QBE repeats, reiterates,
and realleges each and every response made in response to paragraphs “1” through “128” with
the same force and effect as though more fully set forth herein.
130. The allegations contained in paragraph 130 of Plaintiffs’ Complaint constitute
legal conclusions to which no response is required. To the extent a response is necessary, QBE
denies knowledge or information sufficient to form a belief regarding the truth of the allegations
in paragraph 130 of Plaintiffs’ Complaint, and reserves and refers all questions of law, fact
and/or conclusions therein to the District Court.
131. QBE denies each and every allegation set forth in paragraph 131 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
132. QBE denies each and every allegation set forth in paragraph 132 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
133. QBE denies each and every allegation set forth in paragraph 133 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
134. QBE denies each and every allegation set forth in paragraph 134 of Plaintiffs’
Complaint, and reserves and refers all questions of law, fact and/or conclusions therein to the
District Court.
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QBE’S AFFIRMATIVE DEFENSES
First Affirmative Defense
Plaintiffs’ claims are barred, in whole or in part, on the basis that Plaintiffs’ Complaint
fails to state a claim against QBE upon which relief can be granted.
Second Affirmative Defense
Plaintiffs’ claims are barred, in whole or in part, by Plaintiffs’ failure to meet all
conditions precedent under the Policies.
Third Affirmative Defense
Plaintiffs’ claims are barred, in whole or in part, to the extent that Plaintiffs’ alleged
damages are not covered under the Policies.
Fourth Affirmative Defense
Plaintiffs’ claim is subject to and limited by all of the terms, conditions, limitations,
exclusions, and deductibles contained in the QBE Policy, as well as the terms and conditions of
any and all underlying insurance policies (the “Underlying Policies”) (collectively the
“Policies”).
Fifth Affirmative Defense
Plaintiffs’ claim is barred, in whole or in part, to the extent that it was not caused by
physical loss of or damage covered by the QBE Policy and any Underlying Policies.
Sixth Affirmative Defense
Coverage for Plaintiffs’ claim is limited by the applicable limits and any sub-limits
contained in the QBE Policy and any Underlying Policies.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 28
Seventh Affirmative Defense
Plaintiffs’ claim for Business Interruption is limited, in whole or in part, to the extent the
loss did not result from physical loss of or damage, as covered by the Policies to real and/or
personal property insured by the Policies, occurring during the term of the Policies.
Eighth Affirmative Defense
Plaintiffs’ claim for Extra Expense is limited, in whole or in part, to the extent any
claimed expenses were not incurred to continue operations protecting real or personal property
insured for only such length of time that would be required with the exercise of due diligence
and dispatch to rebuild, repair or replace such part of the property as having been damaged or
destroyed, and such expenses were incurred that would not normally have been incurred to
conduct the business, over and above cost(s) that would normally have been insured to conduct
the business had no loss occurred.
Ninth Affirmative Defense
To the extent Plaintiffs are seeking coverage under the Policies’ Interruption by a Civil
Authority provision, Plaintiffs claim is limited, in whole or in part, to the extent Plaintiffs did not
lose access to the vicinity due to order of civil authority. Interruption by Civil Authority
coverage would also be limited by the Policies’ 60-day limitation period.
Tenth Affirmative Defense
To the extent Plaintiffs are seeking coverage under the Policies’ Ingress/Egress provision,
Plaintiffs’ claim is limited, in whole or in part, to the extent Plaintiffs’ did not sustain physical
loss of or damage covered by the Policies and occurring at property located within a five (5)
statute miles of the Insured’s premises, ingress to or egress from the Insured’s premises by the
Policies was prevented. Ingress/Egress coverage would also be limited by the Policies’ 60-day
limitation period.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 29
Eleventh Affirmative Defense
To the extent Plaintiffs are seeking coverage under the Policies’ Contingent Business
provision, Plaintiffs’ claim is limited, in whole or in part, to the extent Plaintiffs did not sustain
physical loss of or damage covered by the Policies at the facilities of Suppliers or Customers
which wholly or partially prevents the receipt or delivery of materials to the account of the
Insured and results in a necessity interruption of the Insured’s normal business operations.
Twelfth Affirmative Defense
To the extent Plaintiffs seek Business Interruption coverage, including rental income, tax
interruption, tuition income, and extra expense coverage during an Extended Period of Liability,
that coverage is limited to the extent Plaintiff’s property did not sustain a covered loss requiring
rebuilding, repairing or replacement of covered property.
Thirteenth Affirmative Defense
To the extent Plaintiffs seek coverage under the Policies’ Rents and Rental Value
provision, that coverage is limited to the extent Plaintiffs’ property did not sustain direct damage
to one portion of the building by an insured peril which causes a tenant in an undamaged portion
of the building to abate their lease or be forced to vacate the premises even though there is no
direct damage to their premises, or if Plaintiffs’ loss is not a result of loss at a covered location or
at a location within proximity of a covered location, tenants vacate the premises due to their
inability and/or unwillingness to pay their rent.
Fourteenth Affirmative Defense
Plaintiff’s claim is barred, in whole or in part, by the Policies’ exclusion for any increase
of loss which may be occasioned by the suspension, lapse, or cancellation of any lease or license,
contract or order, unless such suspension, lapse, or cancellation results directly from the
interruption of business caused by direct physical loss or damage covered by the Policies.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 30
Fifteenth Affirmative Defense
Plaintiffs’ claim is barred, in whole or in part, by the Policies’ exclusion for loss of
market/delay of use.
Sixteenth Affirmative Defense
To the extent Plaintiffs seek coverage under the Policies’ Consequential Reduction in
Values provision, coverage is limited to the extent Plaintiffs’ loss is not a result of any part or
parts of garments lost or damaged within the coverage of the Policies, thereby rendering the
remaining undamaged part or parts unmerchantable as complete garments.
Seventeenth Affirmative Defense
Plaintiffs’ claim is barred, in whole or in part, to the extent that Plaintiffs’ claim involves
loss of inventory not caused by physical loss of or damage covered by the Policies.
Eighteenth Affirmative Defense
QBE’s Policy has not been triggered because the underlying layers have not been
exhausted.
Nineteenth Affirmative Defense
Plaintiffs’ claim against QBE is barred, in whole or in part, because the insurers of the
Underlying Policies have not paid, admitted liability for, or been held legally liable for the full
amount of their respective participation in the ultimate net loss, as specified in the Schedule of
Underlying Insurance.
Twentieth Affirmative Defense
Plaintiffs’ claim is barred, in whole or in part, by the QBE Policy’s Microorganism
Exclusion Endorsement, which states, in relevant part:
MICROORGANISM EXCLUSION (MAP) (Absolute)
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 31
This Policy does not insure any loss, damage, claim, cost, expense or other sum directly or indirectly arising out of or relating to:
mold, mildew, fungus, spores or other microorganism of any type, nature, or description, including but not limited to any substance whose presence poses an actual or potential threat to human health.
This exclusion applies regardless where there is (i) any physical loss or damage to insured property; (ii) any insured peril or cause, whether or not contributing concurrently or in any sequence; (iii) any loss of use, occupancy, or functionality; or (iv) any action required, including but not limited to repair, replacement, removal, cleanup, abatement, disposal, relocation, or steps taken to address medical or legal concerns. This exclusion replaces and supersedes any provision in the Policy that provides insurance, in whole or in part, for these matters.
Twenty-first Affirmative Defense
Plaintiffs’ claim is barred, in whole or in part, by the QBE Policy’s Seepage and
Pollution Exclusion Endorsement, which states, in relevant part:
SEEPAGE AND POLLUTION EXCLUSION
This policy does not insure the following: Against loss or damage caused by, resulting from, contributed to or made worse by actual, alleged or threatened release, discharge, escape or dispersal of CONTAMINANTS OR POLLUTANTS, all whether direct or indirect, proximate or remote or in whole or in part caused by, contributed to or aggravated by any physical damage insured by this policy. Nevertheless, if fire is not excluded from this policy and a fire arises directly or indirectly from seepage or contamination or pollution, any loss or damage insured under this policy arising directly from that fire is insured, subject to the provisions of this policy. Contaminants or Pollutants means any material which after its release can cause or threaten damage to human health or human welfare or causes or threatens damage, deterioration, loss of value, marketability or loss of use to property insured hereunder, including, but not limited to, bacteria, fungi, virus, or hazardous substances. This exclusion shall not apply when loss or damage is directly caused by fire, lightning or discharge from automatic fire protective systems.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 32
Twenty-second Affirmative Defense
Plaintiffs’ claim is barred, in whole or in part, by the QBE Policy’s Nuclear,
Biological, Chemical and Radiological Hazards Exclusion Endorsement, which states, in
relevant part:
NUCLEAR, BIOLOGICAL, CHEMICAL AND RADIOLOGICAL HAZARDS EXCLUSION
This endorsement modifies insurance provided under the following: I. We will not pay for any loss, damage, cost or expense, whether real or alleged, that is caused, results from, is exacerbated by or otherwise impacted by, either directly or indirectly, any of the following:
***
2) Biological Hazard – including, but not limited to, any biological and/or poisonous or pathogenic agent, material, product or substance, whether engineered or naturally occurring, that induces or is capable of inducing physical distress, illness, or disease;
Twenty-third Affirmative Defense
To the extent Plaintiffs seek coverage under the Policies’ Murder, Suicide and Infectious
or Contagious Disease Extension, that coverage is limited to the aggregate $5,000,000 limit of
liability.
Twenty-fourth Affirmative Defense
To the extent there is any coverage under the Policies, no liability shall attach under the
QBE Policy until and only after the underlying coverage shall apply first, until the applicable
attachment point has been reached, upon exhaustion of the limit of liability of the underlying
coverage, subject to the Insurer’s limit of liability as specified in the QBE Policy.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 33
Twenty-fifth Affirmative Defense
To the extent there is any coverage under the Policies, Plaintiffs’ claim to QBE shall be
offset by any other insurance due and payable to Plaintiffs. The QBE Policy shall not cover to
the extent of any other insurance whether prior or subsequent hereto in date and by whomsoever
effected, directly or indirectly covering the same property against the same perils.
Twenty-sixth Affirmative Defense
To the extent there is any coverage under the Policies, Plaintiffs’ claim to QBE shall be
offset by any other insurance proceeds recovered by Plaintiffs from an insurer not named in this
action for damage of the type sought by Plaintiffs in this action.
Twenty-seventh Affirmative Defense
Plaintiffs’ claim is barred, in whole or in part, to the extent Plaintiff and/or its agents’ acts
or omissions proximately caused or contributed to Plaintiffs’ injury.
Twenty-eighth Affirmative Defense
To the extent there is any coverage under the Policies, Plaintiffs’ failure to mitigate,
minimize, or otherwise avoid any losses or damages, must reduce any recovery against QBE.
Twenty-ninth Affirmative Defense
To the extent that Plaintiffs seek exemplary, extra contractual and/or punitive damages,
such damages are not recoverable or warranted in this action.
Thirtieth Affirmative Defense
To the extent that Plaintiffs seek consequential damages, such damages are not
recoverable or warranted in this action and Plaintiff has failed to set forth any proof or support.
Thirty-first Affirmative Defense
Plaintiffs’ claims are barred, in whole or in part, by the equitable doctrines of unclean
hands, waiver, estoppel and/or laches.
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 34
Thirty-second Affirmative Defense
None of the acts alleged by Plaintiffs against QBE constitute deceptive acts or practices
or a violation of law, nor were they misleading, unreasonable, or unfair in any material respect.
RESERVATION OF RIGHTS
Defendant QBE Specialty Insurance Company reserves the right to assert additional
defenses with respect to such losses or damages as additional information becomes available or
apparent as this litigation proceeds.
PRAYER FOR RELIEF
WHEREFORE, Defendant QBE Specialty Insurance Company respectfully requests that
the Court (i) dismiss the case with prejudice; (ii) enter judgment in Defendant QBE Specialty
Insurance Company’s favor; (iii) award Defendant QBE Specialty Insurance Company the costs
of defending this action, including its attorney’s fees and expenses; and (iv) grant QBE Specialty
Insurance Company such other and further relief as the Court deems just and proper.
Dated: September 18, 2020 New York, New York ZELLE LLP
______________________ Isabella Stankowski-Booker, Esq. 45 Broadway, Suite 920 New York, New York 10006 Tel.: (646) 876-4410 -and-
Shannon O’Malley, Esq. (to be admitted pro hac) M. Paige Tackett, Esq. (to be admitted pro hac)
901 Main Street; Suite 4000 Dallas, Texas 75202
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 35
ATTORNEYS FOR DEFENDANT QBE SPECIALTY INSURANCE COMPANY
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DEFENDANT QBE SPECIALTY INSURANCE COMPANY’S ANSWER & AFFIRMATIVE DEFENSES Page 36
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of September, 2020, a true and correct copy of the foregoing document was served via ECF and/or email to all attorneys of record. ZELLE LLP
_______________________ Isabella Stankowski-Booker, Esq. 45 Broadway, Suite 920 New York, New York 10006 Tel.: (646) 876-4410
4817-0158-8939v1
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DLA Piper LLP (US) 1251 Avenue of the Americas 27th Floor New York, New York 10020-1104 www.dlapiper.com Michael D. Hynes [email protected] T 212.335.4942 F 212.884.8642
September 18, 2020
BY ECF
The Honorable Lorna G. Schofield
United States District Judge
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007
Re: Century 21 Department Stores, LLC et al. v. Starr Surplus Lines Insurance Co. et al.,
Case No. 1:20-cv-07437, Request for Pre-Motion Conference for Motion to Withdraw
Reference
Dear Judge Schofield:
On behalf of Defendant Allianz Global Risks US Insurance Co. (“AGR US”), we write to request
a telephonic conference to address Defendant AGR US’s forthcoming motion to withdraw the
automatic referral of the referenced case to the United States Bankruptcy Court for the Southern
District of New York.
As a general matter, Rule 5011(a) of the Federal Rules of Bankruptcy Procedure states that a
motion to withdraw automatic referral shall be heard by the District Court, but the motion itself is
to be filed with the Bankruptcy Court, which will then transmit the motion and supporting
documents to the District Court. See Local Bankruptcy Rules for the Southern District of New
York, Rule 5011-1. However, Rule III.A.1 of Your Honor’s Individual Rules requires the parties
to file a pre-motion letter seeking a conference with the Court prior to filing any motion.
This unusual scenario arose because Plaintiffs originally commenced this action in New York state
court before filing for bankruptcy and removing its own case to this Court. In the interest of
following Your Honor’s Individual Rules as closely as possible, and after consultation with Your
Honor’s clerk, we submit this pre-motion letter before the motion to withdraw is filed in the
Southern District of New York Bankruptcy Court.
By way of background, Plaintiff Century 21 Department Stores, LLC (“Century 21”) and related
plaintiffs originally brought this insurance coverage action in the Supreme Court of the State of
New York, County of New York (Index No. 652975/2020) on July 8, 2020 (the “Insurance
Action”). In their Complaint, Plaintiffs allege that they lost $175 million in revenue when they
closed their department stores after “various government entities,” including New York City and
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Philadelphia, issued social distancing orders intended to protect the general public against the
spread of COVID-19. Plaintiffs further claim that AGR US and other defendant-insurers breached
their insurance policies by not paying the Plaintiffs’ $175 million claim and acted in bad faith.1
Century 21 subsequently filed for bankruptcy on September 10, 2020. The next day, Plaintiffs
removed their entire Insurance Action to this Court with the expectation that the case would be
automatically referred to the Bankruptcy Court pursuant to a standing order. In re Standing Order
of Reference Re Title 11, 12 Misc. 32 (S.D.N.Y. Feb. 1, 2012). Plaintiffs have already indicated
their intent to pursue their non-core insurance claims against Defendants in the Bankruptcy Court.
See Memorandum in Support of Debtors’ Chapter 11 Petition, Case No. 20-1209-SCC, at 2
(Docket No. 15).2
Pursuant to 28 U.S.C. § 157(d), however, “a district court may withdraw, in whole or in part, any
case or proceeding referred [to the bankruptcy court] under this section, on its own motion or on
timely motion of any party, for cause shown.” Scott v. AIG Prop. Cas. Co., 1:17-CV-1052-GHW,
2017 WL 1380607, at *2 (S.D.N.Y. Apr. 17, 2017). The Second Circuit has articulated a number
of non-exhaustive factors that district courts should consider in determining whether to withdraw
a reference under § 157(d). See In re Orion Pictures Corp., 4 F.3d 1095 (2d Cir. 1993). They are:
(1) whether the claim is core or non-core; (2) what is the most efficient use of judicial resources;
(3) what is the delay and what are the costs to the parties; (4) what will promote uniformity of
bankruptcy administration; (5) what will prevent forum shopping; and (6) other related factors. Id.
Pre-petition claims for breach of contract have routinely been treated as non-core proceedings
subject to withdrawal. See id. at 1102 (“It is clear that to the extent that the claim is for pre-petition
contract damages, it is non-core.”) (internal citations omitted); In re Coudert Bros., No. 11-cv-
4949, 2011 WL 7678683, at *5 (S.D.N.Y. Nov. 23, 2011) (“Where a contract sued upon was
formed prior to the bankruptcy petition, it will generally be highly unlikely that a proceeding based
on that contract turns on the bankruptcy laws.”). This includes insurance coverage disputes, like
the Insurance Action. See, e.g., In re EMS Fin. Servs., LLC, 491 B.R. 196, 203 (E.D.N.Y. 2013)
(treating insurance coverage action as a non-core proceeding because “the contract claims are not
1 Courts from around the country, including the Southern District of New York, have already rejected claims just like
the one asserted by the Plaintiffs here. See Social Life Magazine, Inc., v. Sentinel Insurance Company Limited, Case
No. 1:20-cv-03311-VEC; 2020 WL 2904834, at *15 (S.D.N.Y. May 14, 2020); accord Diesel Barbershop, LLC v.
State Farm Lloyds, No. 5:20-CV-461-DAE, 2020 WL 4724305, at *5 (W.D. Tex. Aug. 13, 2020); Rose’s 1, LLC v.
Erie Ins. Exchange, No. 2020 CA 002424 B, 2020 WL 4589206, at *4 (D.C. Super. Aug. 06, 2020); Gavrilides
Management Co. v. Michigan Insurance Co., Case No. 20-000258-CB (Mich. Cir. Ct. July 1, 2020).
2 Notably, most of the Plaintiffs who commenced the Insurance Action in the Supreme Court, County of New York
have not filed for bankruptcy protection.
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rendered core simply because they involve property of the estate.”); DeWitt Rehab. & Nursing
Ctr., Inc. v. Columbia Cas. Co., 464 B.R. 587, 591 (S.D.N.Y. 2012); Scott, 2017 WL 1380607, at
*4 (“[T]he breach of a pre-petition contract and breach of the implied covenant of good faith and
fair dealing are clearly non-core claims.”) (emphasis added).
Since 28 U.S.C. § 157(d) and Rule 5011(a) of the Federal Rules of Bankruptcy Procedure provide
that it is the District Court that decides whether to withdraw the reference, AGR US respectfully
requests that this Court schedule a pre-motion conference to set a schedule for the parties to brief
whether the automatic referral of the Insurance Action should be withdrawn. AGR US will confer
with counsel for all parties prior to the conference in an attempt to find a mutually agreeable
briefing schedule to present to this Court at that time.
We remain available to address any questions or concerns that the Court may have in the meantime.
Thank you very much for your attention to this matter.
Sincerely,
Michael D. Hynes
cc: All Counsel of Record (via ECF)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------------------X CENTURY 21 DEPARTMENT STORES, LLC, 66 PEARL RETAIL, LLC, 66 PEARL RETAIL II, LLC, 66 PEARL RETAIL ISG, LLC, 173 BWAY BLUE LLC, 262 MOTT BLUE TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, Case No. 20-cv-07437 WEBWAY ASSOCIATES LLC, and CENTURY 21, INC., (LGS) (SLC) Plaintiffs, NOTICE OF APPEARANCE -against- STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTON INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., QBE SPECIALTY INSURANCE CO., GREAT AMERICAN FIDELITY INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYD'S SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712, Defendants. -----------------------------------------------------------------------------X
TO THE CLERK OF THE COURT AND ALL PARTIES OF RECORD:
Please enter my appearance as counsel in this case for Defendant Endurance American
Specialty Insurance Co.
I certify that I am admitted to practice before this Court.
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Dated: New York, New York September 18, 2020
CLYDE & CO US LLP
By: /s/Corey R. Greenwald
Corey R. Greenwald
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
Tel: (212) 710-3900
Fax: (212) 710-3950
Email: [email protected]
Attorneys for Defendant Endurance American Specialty Insurance Co.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------------------X CENTURY 21 DEPARTMENT STORES, LLC, 66 PEARL RETAIL, LLC, 66 PEARL RETAIL II, LLC, 66 PEARL RETAIL ISG, LLC, 173 BWAY BLUE LLC, 262 MOTT BLUE TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, Case No. 20-cv-07437 WEBWAY ASSOCIATES LLC, and CENTURY 21, INC., (LGS) (SLC) Plaintiffs, CORPORATE DISCLOSURE -against- STATEMENT OF DEFENDANT STARR SURPLUS LINES INSURANCE CO., ENDURANCE ALLIANZ GLOBAL RISKS US INSURANCE CO., AMERICAN SPECIALTY AXIS SURPLUS LINES INSURANCE CO., INSURANCE CO. LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTON INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., QBE SPECIALTY INSURANCE CO., GREAT AMERICAN FIDELITY INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYD'S SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712, Defendants. -----------------------------------------------------------------------------X
Pursuant to Federal Rule of Civil Procedure 7.1, the undersigned counsel of record for
Endurance American Specialty Insurance Company, (“Endurance”), makes the following
corporate disclosure:
1. Endurance American Specialty Insurance Company is 100% owned by Endurance
American Insurance Company, which is 100% owned by Endurance Assurance Corporation.
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2. Endurance Assurance Corporation is a wholly owned subsidiary of Endurance
U.S. Holdings Corp., which is wholly owned by Endurance Specialty Insurance Ltd.
3. Endurance Specialty Insurance Ltd. is a wholly owned subsidiary of Sompo
International Holdings Ltd.
4. Sompo International Holdings Ltd. is a wholly owned subsidiary of Sompo Japan
Nipponkoa Insurance Inc.
5. Sompo Japan Nipponkoa Insurance Inc. is a wholly owned subsidiary of Sompo
Holdings, Inc., a holding company headquartered in Japan.
6. No entity owns 10% or more of the stock of Sompo Holdings, Inc.
Dated: New York, New York September 18, 2020
CLYDE & CO US LLP
By: /s/Corey R. Greenwald
Corey R. Greenwald
William M. Cooney
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
Tel: (212) 710-3900
Fax: (212) 710-3950
Email: [email protected]
Attorneys for Defendant Endurance American Specialty Insurance Co.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------------------X CENTURY 21 DEPARTMENT STORES, LLC, 66 PEARL RETAIL, LLC, 66 PEARL RETAIL II, LLC, 66 PEARL RETAIL ISG, LLC, 173 BWAY BLUE LLC, 262 MOTT BLUE TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, Case No. 20-cv-07437 WEBWAY ASSOCIATES LLC, and CENTURY 21, INC., (LGS) (SLC) Plaintiffs, ANSWER OF DEFENDANT -against- ENDURANCE AMERICAN SPECIALTY STARR SURPLUS LINES INSURANCE CO., INSURANCE CO. ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTON INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., QBE SPECIALTY INSURANCE CO., GREAT AMERICAN FIDELITY INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYD'S SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712, Defendants. -----------------------------------------------------------------------------X
Defendant ENDURANCE AMERICAN SPECIALTY INSURANCE CO. (“Endurance”)
by its attorneys, CLYDE & CO US LLP, answering the Plaintiffs' Complaint, alleges as follows. To
the extent any allegation in the Plaintiffs' Complaint is not expressly admitted or otherwise
addressed in the specific responses set forth below, it is denied:
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1. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 1 of the Complaint.
2. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 2 of the Complaint.
3. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 3 of the Complaint.
4. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 4 of the Complaint.1
5. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 5 of the Complaint.
6. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 6 of the Complaint.
7. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 7 of the Complaint.
8. Defendant Endurance admits that it received a premium payment in respect of its
participation in the risk. Defendant Endurance denies knowledge or information sufficient to
form a belief as to the truth of the balance of the allegations in paragraph 8 of the Complaint.
9. Defendant Endurance admits, on information and belief, that one or more
Plaintiffs have received, from certain other Defendants, payment of the only portion of Plaintiffs'
insurance claim that has been determined to constitute a covered claim, which is not at issue in
this litigation and for which Defendant Endurance indisputably does not have any liability.
Defendant Endurance denies knowledge or information sufficient to form a belief as to whether
1 Defendant Endurance denies that the opinion attributed to a fictional television character in footnote 1 of the Complaint is a factual allegation requiring a response.
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Plaintiffs received a partial payment of their insurance claim on June 15, 2020. Defendant
Endurance denies the balance of the allegations in paragraph 9 of the Complaint.
10. Defendant Endurance denies the allegations in paragraph 10 of the Complaint as
to Defendant Endurance. Defendant Endurance denies knowledge or information sufficient to
form a belief as to the truth of the balance of the allegations in paragraph 10 of the Complaint.
11. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 11 of the Complaint.
12. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 12 of the Complaint.
13. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 13 of the Complaint.
14. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 14 of the Complaint.
15. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 15 of the Complaint.
16. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 16 of the Complaint.
17. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 17 of the Complaint.
18. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 18 of the Complaint.
19. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 19 of the Complaint.
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20. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 20 of the Complaint.
21. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 21 of the Complaint.
22. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 22 of the Complaint.
23. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 23 of the Complaint.
24. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 24 of the Complaint.
25. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 25 of the Complaint.
26. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 26 of the Complaint.
27. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 27 of the Complaint.
28. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 28 of the Complaint.
29. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 29 of the Complaint.
30. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 30 of the Complaint.
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31. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 31 of the Complaint.
32. Defendant Endurance admits the allegations in paragraph 32 of the Complaint.
33. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 33 of the Complaint.
34. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 34 of the Complaint.
35. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 35 of the Complaint.
36. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 36 of the Complaint.
37. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 37 of the Complaint.
38. Defendant Endurance admits that the scientific community refers to SARS-CoV-2
as the coronavirus and COVID-19 as the disease from the coronavirus. Defendant Endurance
denies knowledge or information sufficient to form a belief as to the truth of the balance of the
allegations in paragraph 38 of the Complaint.
39. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 39 of the Complaint.
40. Defendant Endurance admits that the World Health Organization has declared
COVID-19 to be a public health emergency. Defendant Endurance denies knowledge or
information sufficient to form a belief as to the truth of the balance of the allegations in
paragraph 40 of the Complaint.
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41. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 41 of the Complaint.
42. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 42 of the Complaint.
43. Defendant Endurance admits that COVID-19 has received widespread media
attention. Defendant Endurance denies knowledge or information sufficient to form a belief as
to the truth of the balance of the allegations in paragraph 43 of the Complaint.
44. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 44 of the Complaint.
45. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 45 of the Complaint.
46. Defendant Endurance denies the allegations in paragraph 46 of the Complaint.
47. Defendant Endurance denies the allegations in paragraph 47 of the Complaint.
48. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 48 of the Complaint.
49. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 49 of the Complaint.
50. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 50 of the Complaint.
51. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 51 of the Complaint.
52. Defendant Endurance denies that all civil authority orders issued by states and
localities where Plaintiffs maintain their stores required the relevant properties to close their
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doors to the public. Defendant Endurance denies knowledge or information sufficient to form a
belief as to the truth of the balance of the allegations in paragraph 52 of the Complaint.
53. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 53 of the Complaint.
54. Defendant Endurance admits that Plaintiffs purport to quote from various orders
issued by governmental authorities, states that such orders are not attached to or quoted in their
entirety in the Complaint and speak for themselves. Defendant Endurance denies the balance of
the allegations in paragraph 54 of the Complaint.
55. Defendant Endurance denies that any order is evidence of damages suffered by
Plaintiffs. Defendant Endurance denies knowledge or information sufficient to form a belief as
to the truth of the balance of the allegations in paragraph 55 of the Complaint.
56. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 56 of the Complaint.
57. Defendant Endurance admits that Plaintiffs submitted a sworn statement in partial
proof of loss on May 26, 2020. Defendant Endurance denies the balance of the allegations in
paragraph 57 of the Complaint.
58. Defendant Endurance denies the allegations in paragraph 58 of the Complaint.
59. Defendant Endurance denies the allegations in paragraph 59 of the Complaint.
60. Defendant Endurance admits the allegations in paragraph 60 of the Complaint
with respect to its own participation. Defendant Endurance denies knowledge or information
sufficient to form a belief as to the truth of the balance of the allegations in paragraph 60 of the
Complaint.
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61. Defendant Endurance admits the allegations in paragraph 61 of the Complaint
with respect to its own participation. Defendant Endurance denies knowledge or information
sufficient to form a belief as to the truth of the balance of the allegations in paragraph 61 of the
Complaint.
62. Defendant Endurance admits that Plaintiffs CENTURY 21 DEPARTMENT
STORES, LLC; 173 BWAY BLUE LLC; 262 MOTT BLUE TIC LLC; 444 86 BLUE LLC; 28
NEWBURY JSRE TIC LLC; and 315 SEVENTH RETAIL LLC are Named Insureds under the
policy issued by Endurance (Policy No. ARP10011564202) and incorporating the Alliant-headed
manuscript policy form followed by Endurance (as well as other insurers) (said policy hereafter
referred to as the "Endurance Policy"), subject to all of its terms, conditions, exclusions, limits,
sublimits, limitations, definitions and other provisions. Defendant Endurance denies knowledge
or information sufficient to form a belief as to the truth of the balance of the allegations in
paragraph 62 of the Complaint.
63. Defendant Endurance admits that the Endurance Policy provides certain
coverages, subject to all of the terms, conditions, exclusions, limits, sublimits, limitations,
definitions and other provisions of the Endurance Policy. Defendant Endurance denies the
allegations in paragraph 63 of the Complaint to the extent that they are inconsistent with those
terms, conditions, exclusions, limits, sublimits, limitations, definitions and other provisions.
Defendant Endurance denies knowledge or information sufficient to form a belief as to the truth
of the balance of the allegations in paragraph 63 of the Complaint.
64. Defendant Endurance admits that, subject to all of its terms, conditions,
exclusions, limits, sublimits, limitations, definitions and other provisions, the Endurance Policy
has a Policy Period of August 1, 2019 to August 1, 2020. Defendant Endurance denies
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knowledge or information sufficient to form a belief as to the truth of the balance of the
allegations in paragraph 64 of the Complaint.
65. Defendant Endurance admits that, subject to all of its terms, conditions,
exclusions, limits, sublimits, limitations, definitions and other provisions, the Endurance Policy
was in effect as of March 2020. Defendant Endurance denies knowledge or information
sufficient to form a belief as to the truth of the balance of the allegations in paragraph 65 of the
Complaint.
66. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 66 of the Complaint.
67. Defendant Endurance denies the allegations in paragraph 67 of the Complaint.
68. Defendant Endurance admits that paragraph 68 of the Complaint quotes the
"Perils Insured" clause (Section IV.) of the Endurance Policy, which is subject to all of the terms,
conditions, exclusions, limits, sublimits, limitations, definitions and other provisions of the
Endurance Policy. Defendant Endurance denies knowledge or information sufficient to form a
belief as to the truth of the balance of the allegations in paragraph 68 of the Complaint.
69. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 69 of the Complaint.
70. Defendant Endurance admits that paragraph 70 of the Complaint quotes a portion
of the "Limits of Liability" clause (Section V.A.) of the Endurance Policy, which is subject to all
of the terms, conditions, exclusions, limits, sublimits, limitations, definitions and other
provisions of the Endurance Policy. Defendant Endurance denies knowledge or information
sufficient to form a belief as to the truth of the balance of the allegations in paragraph 70 of the
Complaint.
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71. Defendant Endurance admits that the Endurance Policy provides certain
coverages, subject to all of the terms, conditions, exclusions, limits, sublimits, limitations,
definitions and other provisions of the Endurance Policy. Defendant Endurance denies the
allegations in paragraph 71 of the Complaint to the extent that they are inconsistent with those
terms, conditions, exclusions, limits, sublimits, limitations, definitions and other provisions.
Defendant Endurance denies that the allegations in paragraph 71 are a complete and accurate
statement of any coverage provided by the Endurance Policy. Defendant Endurance denies
knowledge or information sufficient to form a belief as to the truth of the balance of the
allegations in paragraph 71 of the Complaint.
72. Defendant Endurance admits that paragraph 72 of the Complaint quotes a portion
of the "Interest and Property Covered" clause (Section VIII.A.(1)) of the Endurance Policy,
which is subject to all of the terms, conditions, exclusions, limits, sublimits, limitations,
definitions and other provisions of the Endurance Policy. Defendant Endurance denies
knowledge or information sufficient to form a belief as to the truth of the balance of the
allegations in paragraph 72 of the Complaint.
73. Defendant Endurance admits that paragraph 73 of the Complaint quotes the
"Automatic Cover" clause (Section VIII.B.) of the Endurance Policy, which is subject to all of
the terms, conditions, exclusions, limits, sublimits, limitations, definitions and other provisions
of the Endurance Policy. Defendant Endurance denies knowledge or information sufficient to
form a belief as to the truth of the balance of the allegations in paragraph 73 of the Complaint.
74. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 74 of the Complaint.
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75. Defendant Endurance admits that the Endurance Policy provides coverage for
business interruption subject to all of the terms, conditions, exclusions, limits, sublimits,
limitations, definitions and other provisions of the Endurance Policy. Defendant Endurance
denies that the allegations in paragraph 75 of the Complaint are a complete and accurate
statement of any coverage provided by the Endurance Policy. Defendant Endurance denies the
allegations of paragraph 75 to the extent that they are inconsistent with the terms, conditions,
exclusions, limits, sublimits, limitations, definitions and other provisions of the Endurance
Policy. Defendant Endurance denies knowledge or information sufficient to form a belief as to
the truth of the balance of the allegations in paragraph 75 of the Complaint.
76. Defendant Endurance admits that paragraph 76 of the Complaint quotes a portion
of the "Business Interruption" clause (Section VIII.C.) of the Endurance Policy, which is subject
to all of the terms, conditions, exclusions, limits, sublimits, limitations, definitions and other
provisions of the Endurance Policy. Defendant Endurance denies knowledge or information
sufficient to form a belief as to the truth of the balance of the allegations in paragraph 76 of the
Complaint.
77. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 77 of the Complaint.
78. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 78 of the Complaint.
79. Defendant Endurance admits that the Endurance Policy provides coverage for
contingent business interruption subject to all of the terms, conditions, exclusions, limits,
sublimits, limitations, definitions and other provisions of the Endurance Policy. Defendant
Endurance denies that the allegations in paragraph 79 of the Complaint are a complete and
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accurate statement of any coverage provided by the Endurance Policy. Defendant Endurance
denies the allegations of paragraph 79 to the extent that they are inconsistent with the terms,
conditions, exclusions, limits, sublimits, limitations, definitions and other provisions of the
Endurance Policy. Defendant Endurance denies knowledge or information sufficient to form a
belief as to the truth of the balance of the allegations in paragraph 79 of the Complaint.
80. Defendant Endurance admits that paragraph 80 of the Complaint quotes the
"Contingent Business Interruption" clause (Section VIII.D.) of the Endurance Policy, which is
subject to all of the terms, conditions, exclusions, limits, sublimits, limitations, definitions and
other provisions of the Endurance Policy. Defendant Endurance denies knowledge or
information sufficient to form a belief as to the truth of the balance of the allegations in
paragraph 80 of the Complaint.
81. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 81 of the Complaint.
82. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 82 of the Complaint.
83. Defendant Endurance admits that, subject to all of its terms, conditions,
exclusions, limits, sublimits, limitations, definitions and other provisions, the Endurance Policy
provides coverage for Extra Expense. Defendant Endurance denies knowledge or information
sufficient to form a belief as to the truth of the balance of the allegations in paragraph 83 of the
Complaint.
84. Defendant Endurance admits that paragraph 84 of the Complaint quotes the
"Extra Expense" clause (Section VIII.J.) of the Endurance Policy, which is subject to all of the
terms, conditions, exclusions, limits, sublimits, limitations, definitions and other provisions of
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the Endurance Policy. Defendant Endurance denies knowledge or information sufficient to form
a belief as to the truth of the balance of the allegations in paragraph 84 of the Complaint.
85. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 85 of the Complaint.
86. Defendant Endurance admits that, subject to all of its terms, conditions,
exclusions, limits, sublimits, limitations, definitions and other provisions, the Endurance Policy
provides coverage for loss of Rents. Defendant Endurance denies knowledge or information
sufficient to form a belief as to the truth of the balance of the allegations in paragraph 86 of the
Complaint.
87. Defendant Endurance admits that paragraph 87 of the Complaint quotes the
"Rents and Rental Value" clause (Section VIII.K.) of the Endurance Policy, which is subject to
all of the terms, conditions, exclusions, limits, sublimits, limitations, definitions and other
provisions of the Endurance Policy. Defendant Endurance denies knowledge or information
sufficient to form a belief as to the truth of the balance of the allegations in paragraph 87 of the
Complaint.
88. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 88 of the Complaint.
89. Defendant Endurance admits that, subject to all of its terms, conditions,
exclusions, limits, sublimits, limitations, definitions and other provisions, the Endurance Policy
provides coverage for interruption by civil authority. Defendant Endurance denies the balance of
the allegations in paragraph 89 of the Complaint.
90. Defendant Endurance admits that paragraph 90 of the Complaint quotes the
"Interruption by Civil Authority" clause (Section VIII.L.) of the Endurance Policy, which is
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subject to all of the terms, conditions, exclusions, limits, sublimits, limitations, definitions and
other provisions of the Endurance Policy. Defendant Endurance denies knowledge or
information sufficient to form a belief as to the truth of the balance of the allegations in
paragraph 90 of the Complaint.
91. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 91 of the Complaint.
92. Defendant Endurance admits that, subject to all of its terms, conditions,
exclusions, limits, sublimits, limitations, definitions and other provisions, the Endurance Policy
provides coverage for restriction of ingress to or egress from the Insured's premises. Defendant
Endurance denies the balance of the allegations in paragraph 92 of the Complaint.
93. Defendant Endurance objects to the allegations of paragraph 93 of the Complaint
as vague. Without waiving this objection, Defendant Endurance admits that paragraph 93 of the
Complaint quotes the "Ingress/Egress" clause (Section VIII.M.) of the Endurance Policy, which
is subject to all of the terms, conditions, exclusions, limits, sublimits, limitations, definitions and
other provisions of the Endurance Policy. Defendant Endurance denies knowledge or
information sufficient to form a belief as to the truth of the balance of the allegations in
paragraph 93 of the Complaint.
94. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 94 of the Complaint.
95. Defendant Endurance admits that, subject to all of its terms, conditions,
exclusions, limits, sublimits, limitations, definitions and other provisions, the Endurance Policy
provides coverage for consequential reduction in values. Defendant Endurance denies the
balance of the allegations in paragraph 95 of the Complaint.
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96. Defendant Endurance admits that paragraph 96 of the Complaint quotes a portion
of the "Consequential Reduction in Values" clause (Section VIII.O.) of the Endurance Policy,
which is subject to all of the terms, conditions, exclusions, limits, sublimits, limitations,
definitions and other provisions of the Endurance Policy. Defendant Endurance denies
knowledge or information sufficient to form a belief as to the truth of the balance of the
allegations in paragraph 96 of the Complaint.
97. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 97 of the Complaint.
98. Defendant Endurance admits that paragraph 98 of the Complaint quotes a portion
(Section IX.D.) of the Endurance Policy, which is subject to all of the terms, conditions,
exclusions, limits, sublimits, limitations, definitions and other provisions of the Endurance
Policy. Defendant Endurance denies knowledge or information sufficient to form a belief as to
the truth of the balance of the allegations in paragraph 98 of the Complaint.
99. Defendant Endurance denies the allegations in paragraph 99 of the Complaint.
100. Defendant Endurance admits that paragraph 100 of the Complaint quotes the
"Special Allowance" clause (Section X.K.) of the Endurance Policy, which is subject to all of the
terms, conditions, exclusions, limits, sublimits, limitations, definitions and other provisions of
the Endurance Policy. Defendant Endurance denies knowledge or information sufficient to form
a belief as to the truth of the balance of the allegations in paragraph 100 of the Complaint.
101. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 101 of the Complaint.
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102. Defendant Endurance denies the allegations in paragraph 102 of the Complaint as
to Defendant Endurance. Defendant Endurance denies knowledge or information sufficient to
form a belief as to the truth of the balance of the allegations in paragraph 102 of the Complaint.
103. Defendant Endurance admits that paragraph 103 of the Complaint quotes a
portion of the "Manuscript Wording" clause (Section XXV.A.) of the Endurance Policy, which is
subject to all of the terms, conditions, exclusions, limits, sublimits, limitations, definitions and
other provisions of the Endurance Policy. Defendant Endurance denies knowledge or
information sufficient to form a belief as to the truth of the balance of the allegations in
paragraph 103 of the Complaint.
104. Defendant Endurance denies the allegations in paragraph 104 of the Complaint.
105. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 105 of the Complaint.
106. Defendant Endurance denies the allegations in paragraph 106 of the Complaint as
to Defendant Endurance. Defendant Endurance denies knowledge or information sufficient to
form a belief as to the truth of the balance of the allegations in paragraph 106 of the Complaint.
107. Defendant Endurance admits that paragraph 107 of the Complaint quotes a
portion of the "Murder, Suicide and Infectious or Contagious Disease Extension" of the
Endurance Policy, which is subject to all of the terms, conditions, exclusions, limits, sublimits,
limitations, definitions and other provisions of the Endurance Policy. Defendant Endurance
denies knowledge or information sufficient to form a belief as to the truth of the balance of the
allegations in paragraph 107 of the Complaint.
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108. Defendant Endurance admits that Plaintiffs submitted a sworn statement in partial
proof of loss on May 26, 2020. Defendant Endurance denies the balance of the allegations in
paragraph 108 of the Complaint.
109. Defendant Endurance denies the allegations in paragraph 109 of the Complaint.
110. Defendant Endurance admits that on June 16, 2020 the Independent Adjuster
designated in the Endurance Policy, acting on behalf of Endurance as well as other insurers, sent
Plaintiff Century 21 Department Stores, LLC correspondence reserving all rights in respect of
the May 26, 2020 proof of loss and requesting information needed in order for insurers to
investigate and evaluate whether the claim is covered. Defendant denies the balance of the
allegations in paragraph 110 of the Complaint.
111. Defendant Endurance denies that any of Defendants' requests for information
were delayed. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the balance of the allegations in paragraph 111 of the Complaint.
112. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 112 of the Complaint.
113. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 113 of the Complaint.
114. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 114 of the Complaint.
115. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 115 of the Complaint.
116. Defendant Endurance denies the allegations in paragraph 116 of the Complaint.
117. Defendant Endurance denies the allegations in paragraph 117 of the Complaint.
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118. Defendant Endurance denies the allegations in paragraph 118 of the Complaint.
119. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 119 of the Complaint.
120. Defendant Endurance denies that the response to the May 26, 2020 proof of loss
was untimely, and otherwise denies the allegations in paragraph 120 of the Complaint.
121. Defendant Endurance denies the allegations in paragraph 121 of the Complaint.
122. Defendant Endurance admits that the webpage cited in paragraph 122 of the
Complaint is entitled "Business Interruption Coverage Frequently Asked Questions (FAQs)."
Defendant Endurance admits that paragraph 122 of the Complaint quotes a portion of the
webpage cited in paragraph 122 of the Complaint. Defendant Endurance admits that "[t]he
presence, or the suspected or feared presence, of COVID-19 generally will not mean that
property has suffered 'physical loss or damage'." Defendant Endurance denies knowledge or
information sufficient to form a belief as to the truth of the balance of the allegations in
paragraph 122 of the Complaint.
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION (Breach of Contract)
123. Defendant Endurance repeats, reiterates and realleges each and every answer to
each and every allegation contained in paragraphs 1 through 122 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 123 of the Complaint.
124. Defendant Endurance admits that, subject to all of its terms, conditions,
exclusions, limits, sublimits, limitations, definitions and other provisions, Endurance entered into
the Endurance Policy with the Named Insureds identified in the Endurance Policy. Defendant
Endurance denies knowledge or information sufficient to form a belief as to the truth of the
balance of the allegations in paragraph 124 of the Complaint.
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125. Defendant Endurance denies knowledge or information sufficient to form a belief
as to the truth of the allegations in paragraph 125 of the Complaint.
126. Defendant Endurance denies the allegations in paragraph 126 of the Complaint.
127. Defendant Endurance denies the allegations in paragraph 127 of the Complaint.
128. Defendant Endurance denies that it has breached any policies, and otherwise
denies the allegations in paragraph 128 of the Complaint.
AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION (Breach of Contract – Implied Covenant of Good Faith and Fair Dealing)
129. Defendant Endurance repeats, reiterates and realleges each and every answer to
each and every allegation contained in paragraphs 1 through 128 of the Complaint with the same
force and effect as if fully set forth at length herein in answer to paragraph 129 of the Complaint.
130. Defendant Endurance denies the allegations in paragraph 130 of the Complaint.
131. Defendant Endurance denies the allegations in paragraph 131 of the Complaint.
132. Defendant Endurance denies that it is under any obligation to have paid Plaintiffs'
claim, and otherwise denies the allegations in paragraph 132 of the Complaint.
133. Defendant Endurance denies the allegations in paragraph 133 of the Complaint.
134. Defendant Endurance denies the allegations in paragraph 134 of the Complaint.
AFFIRMATIVE DEFENSES
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
135. The Complaint, and each and every one of its causes of action, fails to state a
claim upon which relief can be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
136. There is an insufficiency of service of process upon Defendant Endurance.
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AS AND FOR A THIRD AFFIRMATIVE DEFENSE
137. This Court lacks subject matter jurisdiction over this action and each and every
cause of action set forth in the Complaint.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
138. This Court lacks personal jurisdiction over Defendant Endurance with respect to
the Complaint and each and every cause of action set forth in the Complaint.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
139. This Court is an improper venue with respect to the Complaint and each and every
cause of action set forth in the Complaint.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
140. This Court is a forum non conveniens with respect to the Complaint and each and
every cause of action set forth in the Complaint.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
141. The Complaint, and each and every one of its causes of action, is barred by
applicable statutes of limitations or repose.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
142. Some or all of the Plaintiffs lack standing, capacity or authority to have brought
this action or to maintain it.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
143. Some or all of the Plaintiffs have no rights, title or interest in the property or other
things that are the subject of Plaintiffs' insurance claim, or are otherwise not a real party in
interest.
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AS AND FOR A TENTH AFFIRMATIVE DEFENSE
144. The Complaint, and each and every one of its causes of action, is barred by the
doctrine of waiver.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
145. The Complaint, and each and every one of its causes of action, is barred by the
doctrine of estoppel.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
146. The Complaint, and each and every one of its causes of action, is barred by the
doctrine of laches.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
147. The Complaint, and each and every one of its causes of action, is barred by the
doctrines of res judicata or collateral estoppel.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
148. The obligations of Defendant Endurance are strictly defined, limited and
controlled by the terms, conditions, exclusions, limits, sublimits, limitations, definitions and
other provisions of the Endurance Policy, including without limitation the "Other Insurance"
clause set forth in Section XIII.D. of the Endurance Policy, and Defendant Endurance has no
other legally enforceable obligation to any Plaintiff.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
149. The coverage obligations of Defendant Endurance, if any, are strictly limited to
the participation of Endurance in the Endurance Policy, which is "15% or USD 2,250,000 part of
USD 15,000,000 excess of USD 10,000,000 excess of deductibles", regardless of the number of
coverages or locations that may be involved.
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AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
150. Any Plaintiff that is not an insured under and as defined by the Endurance Policy
has failed to state a claim upon which relief can be granted.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
151. Plaintiffs have the burden of proving their damages, that their damages were
caused by a covered cause of loss, and that each and every one of the elements required to trigger
coverage has occurred or otherwise been satisfied. To the extent any Plaintiff is unable to do so,
that Plaintiff's claims do not trigger coverage under the Endurance Policy.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
152. Plaintiffs' claims do not trigger coverage under the Endurance Policy because
there has been no physical loss or damage to any relevant property by a covered peril.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
153. Coverage for Plaintiffs' claims, if any, is limited or excluded by the Loss of
market/Delay of Use exclusion, which is set forth in Section XI.E. of the Endurance Policy.
Defendant Endurance continues to reserve all of its rights to rely on this exclusion to preclude
coverage for Plaintiffs' claims.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
154. Plaintiffs' claims are or may be barred in whole or in part to the extent any
Plaintiff failed to perform or satisfy obligations, covenants, conditions precedent or conditions
subsequent under the Endurance Policy, including without limitation the "Inspection & Audit"
clause in Section XXIV.B. of the Endurance Policy.
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AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
155. Defendant Endurance has performed all of its obligations and has otherwise
satisfied all of the terms and conditions for which it is responsible under the Endurance Policy, in
accordance with the terms, conditions, exclusions, limits, sublimits, limitations, definitions and
other provisions of the Endurance Policy.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
156. Plaintiffs have failed to make reasonable efforts to mitigate or avoid their
damages, if any.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
157. Plaintiffs are not entitled to recover from Defendant Endurance their costs,
expenses, or attorney's fees in this action.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
158. Plaintiffs are not entitled to recover from Defendant Endurance any liquidated,
consequential or other extra-contractual damages.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
159. Defendant Endurance avails itself of and adopts such other defenses raised by any
other Defendant(s) as may be applicable to Defendant Endurance.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
160. Defendant Endurance reserves the right to amend, supplement or otherwise
modify this Answer or any of the defenses set forth herein, including by asserting any and all
applicable defenses which may later appear to be applicable.
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WHEREFORE, Defendant Endurance respectfully requests this Honorable Court enter
judgment in its favor and against Plaintiffs as follows:
(1) On the First Cause of Action, declaring Defendant Endurance has not breached the
Endurance Policy and that Defendant Endurance has no liability in respect of the Plaintiffs'
claimed loss or any other amounts;
(2) On the Second Cause of Action, declaring Defendant Endurance has not breached the
Endurance Policy or any of its duties, contractual or otherwise, to Plaintiffs or any of them, and
that Defendant Endurance no liability in respect of the Plaintiffs' claimed loss, attorney's fees,
costs or any other amounts;
(3) Declaring Plaintiffs are not entitled to any fees or costs of this action;
(4) Dismissing the Complaint with prejudice, together with the costs and disbursements
of this action and for any expenses incurred in the defense thereof, including without limitation
attorney's fees and costs;
(5) Declaring there is no coverage for Plaintiffs, or any of them, for their insurance
claims;
(6) Declaring Plaintiffs' claims, whether or not related to insurance, to be without merit;
and
(7) Awarding to Defendant Endurance such other and further equitable, declaratory or
other relief to which Endurance may be entitled and which this Court may determine is just in
the premises.
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Dated: New York, New York September 18, 2020
CLYDE & CO US LLP
By: /s/Corey R. Greenwald
Corey R. Greenwald
William M. Cooney
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
Tel: (212) 710-3900
Fax: (212) 710-3950
Email: [email protected]
Attorneys for Defendant Endurance American Specialty Insurance Co.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------------------X CENTURY 21 DEPARTMENT STORES, LLC, 66 PEARL RETAIL, LLC, 66 PEARL RETAIL II, LLC, 66 PEARL RETAIL ISG, LLC, 173 BWAY BLUE LLC, 262 MOTT BLUE TIC LLC, 444 86 BLUE LLC, MIAMI DD 101 BLUE LLC, 28 NEWBURY JSRE TIC LLC, TRUE BLUE ASSOCIATES LLC, STAR OF DAVID, IRAYMOND-77 WARREN LLC, SABRA ASSOCIATES LLC, 315 SEVENTH RETAIL LLC, Case No. 20-cv-07437 WEBWAY ASSOCIATES LLC, and CENTURY 21, INC., (LGS) (SLC) Plaintiffs, NOTICE OF APPEARANCE -against- STARR SURPLUS LINES INSURANCE CO., ALLIANZ GLOBAL RISKS US INSURANCE CO., AXIS SURPLUS LINES INSURANCE CO., LIBERTY MUTUAL FIRE INSURANCE CO., STEADFAST INSURANCE CO., ENDURANCE AMERICAN SPECIALTY INSURANCE CO., EVANSTON INSURANCE CO., LANDMARK AMERICAN INSURANCE CO., QBE SPECIALTY INSURANCE CO., GREAT AMERICAN FIDELITY INSURANCE CO., and CERTAIN UNDERWRITERS AT LLOYD'S SUBSCRIBING TO POLICY Nos. PG1902704, PG1902346, PG1902696, PG1902698, PG1902707, PG1902702, and PG1902712, Defendants. -----------------------------------------------------------------------------X
TO THE CLERK OF THE COURT AND ALL PARTIES OF RECORD:
Please enter my appearance as counsel in this case for Defendant Endurance American
Specialty Insurance Co.
I certify that I am admitted to practice before this Court.
Case 1:20-cv-07437-LGS Document 21 Filed 09/18/20 Page 1 of 2
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Dated: New York, New York September 18, 2020
CLYDE & CO US LLP
By: /s/
William M. Cooney
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
Tel: (212) 710-3900
Fax: (212) 710-3950
Email: [email protected]
Attorneys for Defendant Endurance American Specialty Insurance Co.
Case 1:20-cv-07437-LGS Document 21 Filed 09/18/20 Page 2 of 2
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DLA Piper LLP (US) 1251 Avenue of the Americas 27th Floor New York, New York 10020-1104 www.dlapiper.com
Michael D. Hynes [email protected] T 212.335.4942 F 212.884.8642
September 18, 2020
BY ECF
The Honorable Lorna G. Schofield
United States District Judge
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007
Re: Century 21 Department Stores, LLC et al. v. Starr Surplus Lines Insurance Co. et al.,
Case No. 1:20-cv-07437, Request for Pre-Motion Conference for Motion to Withdraw
Reference
Dear Judge Schofield:
On behalf of Defendant Allianz Global Risks US Insurance Co. (“AGR US”), we write to request
a telephonic conference to address Defendant AGR US’s forthcoming motion to withdraw the
automatic referral of the referenced case to the United States Bankruptcy Court for the Southern
District of New York.
As a general matter, Rule 5011(a) of the Federal Rules of Bankruptcy Procedure states that a
motion to withdraw automatic referral shall be heard by the District Court, but the motion itself is
to be filed with the Bankruptcy Court, which will then transmit the motion and supporting
documents to the District Court. See Local Bankruptcy Rules for the Southern District of New
York, Rule 5011-1. However, Rule III.A.1 of Your Honor’s Individual Rules requires the parties
to file a pre-motion letter seeking a conference with the Court prior to filing any motion.
This unusual scenario arose because Plaintiffs originally commenced this action in New York state
court before filing for bankruptcy and removing its own case to this Court. In the interest of
following Your Honor’s Individual Rules as closely as possible, and after consultation with Your
Honor’s clerk, we submit this pre-motion letter before the motion to withdraw is filed in the
Southern District of New York Bankruptcy Court.
By way of background, Plaintiff Century 21 Department Stores, LLC (“Century 21”) and related
plaintiffs originally brought this insurance coverage action in the Supreme Court of the State of
New York, County of New York (Index No. 652975/2020) on July 8, 2020 (the “Insurance
Action”). In their Complaint, Plaintiffs allege that they lost $175 million in revenue when they
closed their department stores after “various government entities,” including New York City and
By September 28, 2020, Plaintiffs shall file a response on ECF to this pre-motion letter not to exceed 3 single spaced pages.
SO ORDERED.
Dated: September 21, 2020 New York, New York
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Philadelphia, issued social distancing orders intended to protect the general public against the
spread of COVID-19. Plaintiffs further claim that AGR US and other defendant-insurers breached
their insurance policies by not paying the Plaintiffs’ $175 million claim and acted in bad faith.1
Century 21 subsequently filed for bankruptcy on September 10, 2020. The next day, Plaintiffs
removed their entire Insurance Action to this Court with the expectation that the case would be
automatically referred to the Bankruptcy Court pursuant to a standing order. In re Standing Order
of Reference Re Title 11, 12 Misc. 32 (S.D.N.Y. Feb. 1, 2012). Plaintiffs have already indicated
their intent to pursue their non-core insurance claims against Defendants in the Bankruptcy Court.
See Memorandum in Support of Debtors’ Chapter 11 Petition, Case No. 20-1209-SCC, at 2
(Docket No. 15).2
Pursuant to 28 U.S.C. § 157(d), however, “a district court may withdraw, in whole or in part, any
case or proceeding referred [to the bankruptcy court] under this section, on its own motion or on
timely motion of any party, for cause shown.” Scott v. AIG Prop. Cas. Co., 1:17-CV-1052-GHW,
2017 WL 1380607, at *2 (S.D.N.Y. Apr. 17, 2017). The Second Circuit has articulated a number
of non-exhaustive factors that district courts should consider in determining whether to withdraw
a reference under § 157(d). See In re Orion Pictures Corp., 4 F.3d 1095 (2d Cir. 1993). They are:
(1) whether the claim is core or non-core; (2) what is the most efficient use of judicial resources;
(3) what is the delay and what are the costs to the parties; (4) what will promote uniformity of
bankruptcy administration; (5) what will prevent forum shopping; and (6) other related factors. Id.
Pre-petition claims for breach of contract have routinely been treated as non-core proceedings
subject to withdrawal. See id. at 1102 (“It is clear that to the extent that the claim is for pre-petition
contract damages, it is non-core.”) (internal citations omitted); In re Coudert Bros., No. 11-cv-
4949, 2011 WL 7678683, at *5 (S.D.N.Y. Nov. 23, 2011) (“Where a contract sued upon was
formed prior to the bankruptcy petition, it will generally be highly unlikely that a proceeding based
on that contract turns on the bankruptcy laws.”). This includes insurance coverage disputes, like
the Insurance Action. See, e.g., In re EMS Fin. Servs., LLC, 491 B.R. 196, 203 (E.D.N.Y. 2013)
(treating insurance coverage action as a non-core proceeding because “the contract claims are not
1 Courts from around the country, including the Southern District of New York, have already rejected claims just like
the one asserted by the Plaintiffs here. See Social Life Magazine, Inc., v. Sentinel Insurance Company Limited, Case
No. 1:20-cv-03311-VEC; 2020 WL 2904834, at *15 (S.D.N.Y. May 14, 2020); accord Diesel Barbershop, LLC v.
State Farm Lloyds, No. 5:20-CV-461-DAE, 2020 WL 4724305, at *5 (W.D. Tex. Aug. 13, 2020); Rose’s 1, LLC v.
Erie Ins. Exchange, No. 2020 CA 002424 B, 2020 WL 4589206, at *4 (D.C. Super. Aug. 06, 2020); Gavrilides
Management Co. v. Michigan Insurance Co., Case No. 20-000258-CB (Mich. Cir. Ct. July 1, 2020).
2 Notably, most of the Plaintiffs who commenced the Insurance Action in the Supreme Court, County of New York
have not filed for bankruptcy protection.
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Page Three
rendered core simply because they involve property of the estate.”); DeWitt Rehab. & Nursing
Ctr., Inc. v. Columbia Cas. Co., 464 B.R. 587, 591 (S.D.N.Y. 2012); Scott, 2017 WL 1380607, at
*4 (“[T]he breach of a pre-petition contract and breach of the implied covenant of good faith and
fair dealing are clearly non-core claims.”) (emphasis added).
Since 28 U.S.C. § 157(d) and Rule 5011(a) of the Federal Rules of Bankruptcy Procedure provide
that it is the District Court that decides whether to withdraw the reference, AGR US respectfully
requests that this Court schedule a pre-motion conference to set a schedule for the parties to brief
whether the automatic referral of the Insurance Action should be withdrawn. AGR US will confer
with counsel for all parties prior to the conference in an attempt to find a mutually agreeable
briefing schedule to present to this Court at that time.
We remain available to address any questions or concerns that the Court may have in the meantime.
Thank you very much for your attention to this matter.
Sincerely,
Michael D. Hynes
cc: All Counsel of Record (via ECF)
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CLOSED,BKREF,ECF
U.S. District CourtSouthern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:20-cv-07437-LGSInternal Use Only
Century 21 Department Stores LLC et al v. Starr Surplus LinesInsurance C0. et alAssigned to: Judge Lorna G. SchofieldCase in other court: Supreme Court, County of New York,
652975-2020Cause: 28:1452 R&R re motions to remand (non-core)
Date Filed: 09/10/2020Date Terminated: 09/22/2020Jury Demand: NoneNature of Suit: 110 InsuranceJurisdiction: Federal Question
Plaintiff
Century 21 Department Stores LLC represented by Steve Y. MaProskauer Rose LLP (NYC)11 Times SquareNew York, NY 10036(212)-969-3488Email: [email protected] TO BE NOTICED
Plaintiff
66 Pearl Retail, LLC
Plaintiff
66 Pearl Retail II, LLC
Plaintiff
66 Pearl Retail ISG, LLC
Plaintiff
173 Bway Blue LLC
Plaintiff
262 Mott Blue TIC LLC
Plaintiff
444 86 Blue LLC
Plaintiff
Miami DD 101 Blue LLC
Plaintiff
28 Newbury JSRE TIC LLC
Plaintiff
SDNY CM/ECF NextGen Version 1.2 https://nysd-ecf.sso.dcn/cgi-bin/DktRpt.pl?284620637713837-L_1_0-1
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True Blue Associates LLC
Plaintiff
Star of David
Plaintiff
IRaymond-77 Warren LLC
Plaintiff
Sabra Associates LLc
Plaintiff
315 Seventh Retail LLC
Plaintiff
Webway Axxociates LLC
Plaintiff
Century 21 Inc.
V.
Defendant
Starr Surplus Lines Insurance C0. represented by Meegan F. HollywoodRobins Kaplan LLP (NYC)399 Park Avenue, 36th FloorNew York, NY 10022212-980-7400Fax: 212-980-7499Email: [email protected] TO BE NOTICED
Defendant
Allianz Global Risks US Insurance Co. represented by Michael D. HynesDLA Piper US LLP (NY)1251 Avenue of the Americas, 27th FloorNew York, NY 10020(212) 335-4500Fax: (212) 335-4501Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED
Defendant
Axis Surplus Lines Insurance Co. represented by Kristin Vonderhorst GallagherKennedys120 Mountain View BoulevardP.O. Box 650Basking Ridge, NJ 07920
SDNY CM/ECF NextGen Version 1.2 https://nysd-ecf.sso.dcn/cgi-bin/DktRpt.pl?284620637713837-L_1_0-1
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908-848-6300Fax: 908-647-8390Email:[email protected] ATTORNEYATTORNEY TO BE NOTICED
Joanna Lyn YoungKennedys CMK LLP570 Lexington Avenue8th FloorNew York, NY 10022(212)-252-0004Fax: (212)-252-0444Email: [email protected] TO BE NOTICED
Defendant
Liberty Mutual Fire Insurance Co. represented by Meegan F. Hollywood(See above for address)ATTORNEY TO BE NOTICED
Defendant
Steadfast Insurance Co. represented by Meegan F. Hollywood(See above for address)ATTORNEY TO BE NOTICED
Defendant
Endurance American SpecialtyInsurance Co.
represented by Corey Russell GreenwaldClyde & Co US LLP (NYC)405 Lexington AveNew York, NY 10174(212)-710-3900Fax: (212)-710-3950Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED
William Michael CooneyClyde & Co US LLP (NYC)405 Lexington AveNew York, NY 10174212-710-3900Fax: 212-710-3950Email: [email protected] ATTORNEYATTORNEY TO BE NOTICED
Defendant
Evanstan Insurance Co.
SDNY CM/ECF NextGen Version 1.2 https://nysd-ecf.sso.dcn/cgi-bin/DktRpt.pl?284620637713837-L_1_0-1
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Defendant
Landmark American Insurance Co. represented by Meegan F. Hollywood(See above for address)ATTORNEY TO BE NOTICED
Defendant
Certain Underwriters At LloydsSubscribing To Policy Nos. PG1902704,PG1902346, PG1902696, PG1902698,PG1902707, PG1902702, andPG1902712
represented by Meegan F. Hollywood(See above for address)ATTORNEY TO BE NOTICED
Defendant
QBE Specialty Insurance Company represented by Isabella Karlina Stankowski-BookerZelle, LLP45 Broadway, Suite 720New York, NY 10006(864) 766-9998Email: [email protected] TO BE NOTICED
Date Filed # Docket Text
09/11/2020 1 NOTICE OF REMOVAL from Supreme Court, County of New York. Case Number:652975/2020. (Filing Fee $ 400.00, Receipt Number ANYSDC-21601520).Documentfiled by Century 21 Department Stores LLC. (Attachments: # 1 Exhibit A: Summonsand Complaint, # 2 Exhibit B: Affidavit of Service).(Ma, Steve) (Entered:09/11/2020)
09/11/2020 2 CIVIL COVER SHEET filed..(Ma, Steve) (Entered: 09/11/2020)
09/11/2020 3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Other AffiliateCentury 21, Inc., Other Affiliate C21 Department Stores Holdings LLC for Century21 Department Stores LLC. Document filed by Century 21 Department StoresLLC..(Ma, Steve) (Entered: 09/11/2020)
09/11/2020 ***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Noticeto attorney Steve Y. Ma. The party information for the following party/partieshas been modified: 444 86 BLUE LLC; MIAMI DD 101 BLUE LLC ; 28NEWBURY JSRE TIC LLC ; TRUE BLUE ASSOCIATES LLC ; STAR OFDAVID ;IRAYMOND-77 WARREN LLC ; SABRA ASSOCIATES LLC ; 315SEVENTH RETAIL LLC. The information for the party/parties has beenmodified for the following reason/reasons: party name was entered in all caps.(dnh) (Entered: 09/11/2020)
09/11/2020 CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action isassigned to Judge Lorna G. Schofield. Please download and review the IndividualPractices of the assigned District Judge, located at https://nysd.uscourts.gov/judges/district-judges. Attorneys are responsible for providing courtesy copies to judgeswhere their Individual Practices require such. Please download and review the ECFRules and Instructions, located at https://nysd.uscourts.gov/rules/ecf-related-
SDNY CM/ECF NextGen Version 1.2 https://nysd-ecf.sso.dcn/cgi-bin/DktRpt.pl?284620637713837-L_1_0-1
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instructions..(dnh) (Entered: 09/11/2020)
09/11/2020 Magistrate Judge Sarah L. Cave is so designated. Pursuant to 28 U.S.C. Section636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent toproceed before a United States Magistrate Judge. Parties who wish to consent mayaccess the necessary form at the following link: https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (dnh) (Entered: 09/11/2020)
09/11/2020 Case Designated ECF. (dnh) (Entered: 09/11/2020)
09/18/2020 4 ANSWER to Complaint. Document filed by Landmark American InsuranceCo...(Hollywood, Meegan) (Entered: 09/18/2020)
09/18/2020 5 ANSWER to Complaint. Document filed by Liberty Mutual Fire InsuranceCo...(Hollywood, Meegan) (Entered: 09/18/2020)
09/18/2020 6 ANSWER to Complaint. Document filed by Starr Surplus Lines InsuranceC0...(Hollywood, Meegan) (Entered: 09/18/2020)
09/18/2020 7 ANSWER to Complaint. Document filed by Steadfast Insurance Co...(Hollywood,Meegan) (Entered: 09/18/2020)
09/18/2020 8 ANSWER to Complaint. Document filed by Certain Underwriters At LloydsSubscribing To Policy Nos. PG1902704, PG1902346, PG1902696, PG1902698,PG1902707, PG1902702, and PG1902712..(Hollywood, Meegan) (Entered:09/18/2020)
09/18/2020 9 NOTICE OF APPEARANCE by Michael D. Hynes on behalf of Allianz Global RisksUS Insurance Co...(Hynes, Michael) (Entered: 09/18/2020)
09/18/2020 10 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate ParentAGCS International Holding B.V., Corporate Parent Allianz SE, Corporate ParentAllianz of America, Inc. for Allianz Global Risks US Insurance Co.. Document filedby Allianz Global Risks US Insurance Co...(Hynes, Michael) (Entered: 09/18/2020)
09/18/2020 11 ANSWER to Complaint. Document filed by Allianz Global Risks US InsuranceCo...(Hynes, Michael) (Entered: 09/18/2020)
09/18/2020 12 NOTICE OF APPEARANCE by Joanna Lyn Young on behalf of Axis Surplus LinesInsurance Co...(Young, Joanna) (Entered: 09/18/2020)
09/18/2020 13 NOTICE OF APPEARANCE by Kristin Vonderhorst Gallagher on behalf of AxisSurplus Lines Insurance Co...(Gallagher, Kristin) (Entered: 09/18/2020)
09/18/2020 14 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate ParentAXIS Insurance Company, Other Affiliate AXIS Specialty Global Holdings Limited,Other Affiliate Axis Capital Holding Limited, Other Affiliate AXIS Specialty U.S.Holdings, Inc. for Axis Surplus Lines Insurance Co.. Document filed by Axis SurplusLines Insurance Co...(Gallagher, Kristin) (Entered: 09/18/2020)
09/18/2020 15 ANSWER to Complaint. Document filed by Axis Surplus Lines InsuranceCo...(Gallagher, Kristin) (Entered: 09/18/2020)
09/18/2020 16 ANSWER to Complaint. Document filed by QBE Specialty Insurance Company..(Stankowski-Booker, Isabella) (Entered: 09/18/2020)
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09/18/2020 17 LETTER addressed to Judge Lorna G. Schofield from Michael D. Hynes datedSeptember 18, 2020 re: Request for Pre-Motion Conference. Document filed byAllianz Global Risks US Insurance Co...(Hynes, Michael) (Entered: 09/18/2020)
09/18/2020 18 NOTICE OF APPEARANCE by Corey Russell Greenwald on behalf of EnduranceAmerican Specialty Insurance Co...(Greenwald, Corey) (Entered: 09/18/2020)
09/18/2020 19 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate ParentEndurance American Insurance Company, Corporate Parent Endurance U.S. HoldingsCorp., Corporate Parent Endurance Specialty Insurance Ltd., Corporate ParentEndurance Assurance Corporation, Corporate Parent Sompo Japan NipponkoaInsurance Inc., Corporate Parent Sompo Holdings, Inc., Corporate Parent SompoInternational Holdings Ltd. for Endurance American Specialty Insurance Co..Document filed by Endurance American Specialty Insurance Co...(Greenwald, Corey)(Entered: 09/18/2020)
09/18/2020 20 ANSWER to Complaint. Document filed by Endurance American SpecialtyInsurance Co...(Greenwald, Corey) (Entered: 09/18/2020)
09/18/2020 21 NOTICE OF APPEARANCE by William Michael Cooney on behalf of EnduranceAmerican Specialty Insurance Co...(Cooney, William) (Entered: 09/18/2020)
09/21/2020 22 MEMO ENDORSEMENT on re: 17 Letter filed by Allianz Global Risks USInsurance Co. ENDORSEMENT: By September 28, 2020, Plaintiffs shall file aresponse on ECF to this pre-motion letter not to exceed 3 single spaced pages.(Signed by Judge Lorna G. Schofield on 9/21/2020) (cf) (Entered: 09/21/2020)
09/22/2020 23 DUPLICATE ORIGINAL AMENDED STANDING ORDER REFERRING CASE toBankruptcy Court as related to Bankruptcy Court Case No. 20-12097. Pursuant to 28U.S.C. Section 157(a) any or all cases under title 11 and any or all proceedings arisingunder title 11 or arising in or related to a case under title 11 are referred to thebankruptcy judges for this district. (See 1:12-mc-00032 (M-10-468) Order FiledFebruary 1, 2012) (Signed by Judge Loretta A. Preska on 1/31/2012) (gp) (Entered:09/22/2020)
09/22/2020 CASE TRANSFERRED OUT from the U.S.D.C. Southern District of New York tothe United States Bankruptcy Court - Southern District of New York..(gp) (Entered:09/22/2020)
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