EMJ CORPORATION et al v. HUDSON SPECIALTY INSURANCE COMPANY et al Complaint

8/3/2019 EMJ CORPORATION et al v. HUDSON SPECIALTY INSURANCE COMPANY et al Complaint

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Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/111 of 18 PagelD #: 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTH ERN DISTRICT OF MISSISSIPPI

DELTA DIVISION

EMJ CORPORATION *and WESTCHESTER FIRE *INSURANCE COMPANY *

*

Plaintiffs, *

VS. * Cause No. ^ : [JCV 7,7 y j ^ ?-V

HUDSON SPECIALTY INSURANCE

COMPANY and AMERISURE

MUTUAL INSURANCE COMPANY,

*

A

*

Defendants. *

ORIGINAL COMPLAINT

TO THE HONO RABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiffs, EMJ Corporation and Westchester Fire Insurance

Company, by and through undersigned counsel, who pursuant to Rule 57 of the Federal

Rules of Civil Procedure, the United States Declaratory Judgment Act, 28 U.S.C. § 2201,

and other applicable laws, file this Original Complaint against Defendants, Hudson

Specialty Insurance Company and Amerisure Mutual Insurance Company, and in support

thereof would respectfully show as follows:

I.

PARTIES

1.1 Plaintiff EMJ Corporation (hereinafter som etimes referred to as one of the

"Plaintiffs" or "EMJ") is a Tennessee corporation having its principal place of business in

Chattanooga, Tennessee.



Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/11 2 of 18 PagelD #: 2

1.2 Plaintiff Westchester Fire Insurance Company (hereinafter sometimes referred to

as one of the "Plaintiffs" or "ACE") is a Pennsylvania corporation having its principal

place of business in Philadelphia, P ennsylvania.

1.3 Defendant Hu dson Specialty Insurance Com pany (hereinafter sometimes referred

to as one of the "Defendants" or "Hudson") is a New York corporation having its

principal place of business at 17 State Street, 29 th Floor, New Y ork, Ne w York 10004.

1.4 Defendant Amerisure Mutual Insurance Company (hereinafter sometimes referred

to as one of the "Defendants" or "Amerisure") is a Michigan corporation having its

principal place of business at 26777 Halsted Road, Farmington Hills, Michigan 48331-

3586.

II.

SERVICE OF PROCESS

2.1 Defendant Hudson Specialty Insurance Company may be served through its

registered agent for service of process, Mike Chaney, Mississippi Commissioner of

Insurance, Mississippi Insurance Department, 1001 Woolfolk State Office Building, 501

N. West Street, Suite 1001, Jackson, M ississippi 39201.

2.2 Defendant Am erisure Mutual Insurance Company may be served through its

registered agent for service of process, Doug Duke, 920 Trustmark Bldg., Jackson,

Mississippi 39201.

III.

SUBJECT MATTER JUR ISDICTION

3.1 Subject matter jurisd iction is proper in this Court on the basis of federal diversity

jurisdiction in accordance with 28 U.S.C. § 1332, et seq., and the Federal Declaratory




Judgment Act, 28 U.S.C. § 2201, et seq. The matter in controversy excee ds, exclusive of

interest and costs, the sum of $75,000.

3.2 This case involves an unsettled question of M ississippi law in connec tion with an

on-going state court lawsuit which presents an actual controversy of a justiciable nature

between the parties concerning contracts of insurance, breach of contract, bad faith,

and/or claims for contribution and/or indemnity under law.

IV.

PERSONAL JURISDICTION

4.1 This Court has personal jurisdiction over Hudson and Am erisure because they are

doing business in and otherwise have sufficient contacts with the State of Mississippi,

and Hudson has expressly consented to personal jurisdiction in this forum by written

contract.

V.

VENUE

5.1 Venue is proper in the Northern District of Mississippi pursuant to 28 U.S.C . §

1391 because a substantial part of the events or alleged omissions giving rise to the claim

occurred in this Distric t; Hudson and Am erisure are subject to personal jurisdiction in

this District; and Hudson has expressly agreed to waive any objection to venue by written

contract.

VI.

BACKGROUND FACTS

6.1 On or about February 15, 2005, EMJ C orporation and Contract Steel Construction,

Inc. (hereinafter sometimes referred to as "Contract Steel") entered into a Subcontractor

Agreement No. 2456013131 (hereinafter sometimes referred to as the "Subcontractor

3




Agreem ent") for the execution of work on a JC Penney Project in Southaven, M ississippi

("the Pro ject"). A true and correct copy of the Subcontractor Agreem ent is attached as

Exhibit "A" and incorporated herein by reference as though copied and set forth

completely herein.

6.2 John Meeker, an em ployee of Professional Services Industries, Inc., assigned to

inspect the steel support structure of an entrance canopy at the Project allegedly sustained

personal injuries on April 30, 2005, while descending a steel stairway during the

performance of his duties as a structural steel inspector on the Project.

6.3 On or about April 24, 2008, John Meeker and his wife, Mary Lou Meeker, filed

suit in the Circuit Court of DeSoto County, Mississippi, against Contract Steel

Construction, Inc., EMJ Corporation and others, in the action styled John Meeker, et al,

v. J.C. Penney Corporation, Inc., et al, Civil Action No. CV2008-0148 (hereinafter

referred to as the "Underlying Litigation"), seeking damages for personal injuries

allegedly sustained as a result of the April 30, 2005, incident, all as is more fully shown

by reference to the Complaint filed in the Underlying Litigation, a true and correct copy

of which is attached as Exhibit "B ."

6.4 Therein, the M eekers allege that the "negligence, gross negligence and breaches of

contract of the Defendants EMJ Corporation and Contract Steel Construction, Inc.

resulted in the defective ship's ladder being erected at the Project which created non

conforming and dangerous condition." (Exhibit "B", *\2\).

6.5 The Meekers further allege that "the Defendan ts are liable under the theories of

negligence, failure to warn, breach of warranty, breach of contract and strict liability in

tort." (Exhibit "B", 1J16).




6.6 The Meekers have demanded judgm ent of and from the defendants in the

Underlying Litigation in the am ount of $25,000,000.00 in actual damag es, plus attorney's

fees, interest and costs (Exhibit "B", Prayer for Relief/Demand).

6.7 Plaintiffs refer to Exh ibit " B " for the alleged facts of Mr. M eeker's accident,

alleged theories of liability against them , and alleged damages. EM J Corporation filed

responsive pleadings denying any and all liability to John and Mary Lou Meeker in the

Underlying Litigation.

6.8 The Underlying Litigation against EM J Corporation is ongoing and currently

pending in the DeSoto County, Mississippi. A final judgm ent has not been rendered as

respects EMJ Corporation in the Underlying Litigation as of yet, nor have the disputed

claims against EMJ been settled as of yet. A Judgment discussing Contract Steel is now

the subject of an on-going appeal. All other defendants nam ed have either settled or have

been dismissed.

6.9 Contract Steel and EM J were at all relevant times operating pursuant to the

Subcontractor Agreem ent executed and in effect prior to John M eek er's alleged April 30,

2005 accident.

VII.

CONTRACTUAL OBLIGATIONS

7.1 The Subcontractor Agreem ent requires Contract Steel Construction, Inc., as

"Subcontractor," to provide insurance coverage on a primary basis to protect EMJ

Corporation as "Contractor" under the insurance policies that cover liability for the

incident made the basis o f the Underlying Litigation, and to nam e EM J Corporation as an




additional insured on said policies, pursuant to Paragraph 5(b) of the Subcontractor

Agreement which provides:

(b) SUB CONTR AC TOR shall maintain, at its own cost, suchinsurance as will protect it and CONTRACTOR from (i)

claims under the Workmen's Compensation Law of the Statein which the Work is being performed, and (ii) any claim forbodily injury, including death, and property damage, bothphysical and loss of use, which may arise from the Work orany performance under this Subcontract, whether such Workor performance are by SUBCONTRACTOR or any of hissubcontractors or anyone directly or indirectly employed byhim, said insurance to be in the limits as set forth in theContract Docum ents. SUBCO NTRA CTOR shall providesuch insurance through an insurance company acceptable to

CONTRACTOR, and will furnish a Certificate of Insuranceto CONTRACTOR. This insurance shall be primary and

shall name CONTRACTOR as an additional insured.

This Certificate of Insurance must be returned with thisagreement, and must provide a thirty (30) day cancellationnotice, with notice to CONTRACTOR bySUBCONTRACTOR and the Insurer. . .(Emphasis added).

(Exhibit "A," %5(b)).

7.2 Pursuant to Paragraph 5(c) of the Subcontractor Ag reem ent, Contract Steel as

"Subcontractor" also waived all rights of subrogation against EMJ for any loss covered

by insurance. Paragraph 5(c) of the Subcontractor Agreement provide s:

5. (c) SUBCONTRACTOR shall bear the risk of loss with respect to therestoration or repair of any of SUBCONTRACTOR'S Work or materialcaused or resulting from casualties or risks not insured under any standardcasualty or builder's risk policy provided by CONTRACTOR or Ownerunder the Contract Documents. SUBCONTRACTOR waives any rights

of subrogation against CONTRACTOR or Owner for any loss covered

by insurance of any type. (Emphasis added).

(Exhibit "A ," Tf5(c)).




VIII.

EMJ INSURANCE

8.1 Plaintiff Westchester Fire Insurance Com pany issued Com mercial Um brella

Policy No. CUW-785683 to EMJ, a true and correct copy of which is attached as Exhibit

"C," for the policy period January 31, 2005 to January 31, 2006 ("the ACE Policy"). The

coverage afforded by the ACE Policy was in full force and effect on April 30, 2005 and

extends to the Me eke rs' claims against EMJ in the Underlying L itigation.

8.2 Pursuant to the AC E Policy, Plaintiff Westchester Fire Insurance Company has

legal contractual obligations and duties to protect its insured, EMJ, for and/or against the

risks at issue in the Underlying Litigation.

8.3 The AC E Policy contains the following "other insurance " clause which

specifically negates contribution with any other insurance:

H. Other Insurance. If there is any other collectible insuranceavailable to the "Insured" (whether such insurance is stated to be primary,contributing, excess or contingent) that covers a loss that is also covered by

this policy, the insurance provided by this policy will apply in excess of,and shall not contribute with, such insurance. This Cond ition H does notapply to any insurance policy purchased specifically (and which is sospecified in such insurance policy) to apply in excess of this policy.

(Exhibit "C," ACE Policy, Conditions).

IX .

CONTRACT STEEL INSURANCE

9.1 Defendant Hudson Specialty Insurance Com pany issued Com mercial Um brella

Liability Policy No. CSPI-UM-00507, a true and correct copy of which is attached as

Exhibit "D," for the policy period January 30, 2005 to January 30, 2006 ("the Hudson

Policy "). The coverage afforded by the Hudson Policy was in full force and effect on




April 30, 2005, and extends to the Meekers' claims against EMJ in the Underlying

Litigation.

9.2 Plaintiff EM J Corpo ration is an additional insured on the Hudson Policy pursuant

to Section III - WHO IS AN INS UR ED , which provides in relevant part:

2. Except with respect to: Any "auto " or "M obile equipm ent"registered in your name under any motor vehicle registrationlaw;

each of the following is also an insured:

* * *

e. Any person or organization qualifying as an insuredunder any policy of "underlying insurance ."Coverage afforded such insureds under this policyapplies only to injury or damage:

(1) Which is covered by this policy ; and

(2) Which is covered by the "underlyinginsurance" or would be covered but for theexhaustion of such policy's limits of insurance.

* * *

Any person or organization for whom you have agreedin writing prior to any "occurrence" or "offense" toprovide insurance such as is afforded by this policy,but only with respect to operations performed by youor on your behalf, or facilities owned or used by you. .

(Exhibit " D ," Hudson Policy, Section III, Who Is An Insured, TJ2(e) and %L(f)).

9.3 Pursuant to the Hud son Policy, Defendant Hudson Specialty Insurance Company

has legal contractual obligations and duties to protect, defend and indemnify EMJ for

and/or against the risks at issue in the on-going Underlying Litigation.

8




9.4 The Hudson Policy contains the following "other insurance" clause, quoted in

relevant part, which does not specifically negate contribution with any other insurance:

10. Other Insurance

If other valid and collectible insurance is available to the insured for"ultimate not loss" [sic] we cover under this policy, our obligations underthis policy are limited as follows:

a. As this insurance is excess over any other insurance, whetherprimary, excess, contingent or on any other basis, except suchinsurance as is specifically purchased to apply in excess of thispolicy's Limit of Insurance, we will pay only our share of theamount of "ultimate net loss," if any, that exceeds the sum of:

(1) The total amount that all such other insurance wou ld payfor the loss in the absence of this insurance; and

(2) The total of all deductible and self-insured amounts underthis or any other insurance.

(Exhibit "D ," Hudso n Policy, Section V - Conditions, f 10).

9.5 Defendant Am erisure Mutual Insurance Com pany issued Com mercial General

Liability Policy No. CPP13 84892030005, a true and correct copy of which is attached as

Exhibit "E," for the policy period January 30, 2005 to January 30, 2006 ("the Amerisure

Po licy"). The coverage afforded by the Am erisure Policy was in full force and effect on

April 30, 2005 and extends to the Meekers' claims against EMJ in the Underlying

Litigation.

9.6 Plaintiff EM J Corpo ration is an additional insured on the Am erisure Policy

through Additional Insured Endorsement, which provides:

A. Section II - W ho Is An Insured is amended to include as anadditional insured any person or organization for whom youare performing operations when you and such person ororganization hav e agreed in writing in a contract or agreementthat such person or organization be added as an additional




insured on your policy. Such person or organiza tion is anadditional insured only with respect to liability for "bodilyinjury," "property dam age" or "personal and advertisinginjury" caused, in whole or in part, by:

1. Your acts or omissions; or

2. The acts or omissions of those acting on your behalf;

in the performance of your ongoing operations for theadditional insured.

(Exhibit "E ," Am erisure Policy, Additional Insured Endorsem ent, Additional Insured -

Owners, Lessees or Contractors - Automatic Status When Required In Construction

Agreement With You).

9.7 Pursuant to the Am erisure Policy, Defendant Amerisure Mutual Insurance

Company has legal contractual obligations and duties to protect, defend and indemnify

EMJ for and/or against the risks at issue in the on-going Underlying Litigation.

9.8 A true and correct copy of the Certificate of Liability Insurance provided by

Contract Steel to EMJ evidencing that EMJ as Certificate Holder was named an

additional insured un der the Am erisure and Hudson P olicies is attached as Exhibit "F. "

9.9 The Am erisure and Hudso n Policies are primary to all other coverage available to

EMJ and thereby provide coverage for the accident and injuries complained of by John

and Mary Lou Meeker, alleged to have occurred on or about April 30 , 2005 .

9.10 Under the contracts and applicable law, Amerisure and Hudson owe additional

insurance coverage to EM J C orporation on a primary b asis.

X.B R E AC H OF C ONT R AC T

10.1 Plaintiffs incorpo rate the previous allegations as if fully set forth herein.

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10.2 Defendants Hudson and Amerisure are obligated under their respective policies of

insurance to provide a defense and/or insurance coverage to EMJ as an additional insured

against the claims asserted by John and Mary Lou Meeker in the on-going Underlying

Litigation. Those claim s are covered occu rrences which fall within the scope of coverage

provided under the Hudson and Amerisure Policies.

10.3 Pursuant to their respective Policies, Defendants H udson and Am erisure have an

obligation to defend and indemnify EMJ Corporation in the Underlying Litigation.

10.4 The actions of Defendan ts Hu dson and Am erisure in refusing to honor their

obligations and duties to defend and indemnify their insured, EMJ, pursuant to their

respective policies of insurance constitute a breach of contract on the part of each.

XL

CONTRACTUAL. LEGAL AND EQUITABLE

SUBROGATION

11.1 Plaintiffs incorporate the previous allegations as if fully set forth herein.

11.2 The ACE Policy contains a subrogation clause which provides, in pertinent part:

I. Transfer of Rights of Recovery Against Others to Us. If any"Insured" has rights to recover all or part of any payment we have madeunder this policy, those rights are transferred to us.

(Exhibit "C," ACE Policy, Conditions).

11.3 Pursuant to the ACE Policy, Plaintiff Westchester Fire Insurance Company is

contractually subrogated to the rights of EMJ against Defendants, Hudson Specialty

Insurance Company and Amerisure Mutual Insurance Company.

11.4 As a result of the on-going Underlying Litigation and potential liability on the part

of EMJ (which liability is at all times denied), Plaintiff Westchester Fire Insurance

Company is contractually subrogated to the rights of its insured, EMJ, to pursue claims

11




against Defendants, Hudson Specialty Insurance Company and Amerisure Mutual

Insurance Company, for defense, indemnity, payments to be made in satisfaction of

judgment and/or settlement, and costs and expenses arising out of the said Defendants'

past, existing and anticipated future failure to defend and indemnify the insured, EMJ.

To the extent of such payments to be made as a result of the Underlying Litigation,

Defendants, Hudson Specialty Insurance Company and Amerisure Mutual Insurance

Company, are liable to Plaintiff, Westchester Fire Insurance Company, pursuant to its

contractual rights of subrogation.

11.5 Alternatively, Plaintiff Westchester Fire Insurance Company is legally and/or

equitably subrogated to the rights of EMJ against Defendants, Hudson Specialty

Insurance Company and Amerisure Mutual Insurance Company.

11.6 Plaintiff Westchester Fire Insurance Company specifically avails itself of the

doctrine of equitable subrogation and has standing to pursue contribution and/or

reimbursement against Defendants, Hudson Specialty Insurance Company and Amerisure

Mutual Insurance Company, for any and all defense costs and expenses, satisfaction of

judgment and/or settlement payments incurred or to be incurred as respects the defense

and/or indemnity of EMJ Corporation in the Underlying Litigation. To the extent of such

payments made as a result of the Underlying Litigation, Defendants, Hudson Specialty

Insurance Company and Amerisure Mutual Insurance Company, are liable to Plaintiff,

Westchester Fire Insurance Company, pursuant to its legal and/or equitable rights of

subrogation.

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XII.

CONTRACTUAL, LEGAL AND EQUITABLE

CONTRIBUTION

12.1 Plaintiffs incorporate the previous allegations as if fully set forth herein.

12.2 Plaintiff Westchester Fire Insurance Com pany has or will have contractual, legal

and/or equitable contribution rights against Defendants, Hudson Specialty Insurance

Company and Amerisure Mutual Insurance Company, which rights exist independently

of any rights of the common insured, EMJ. See Guidant Mutual Ins. Co. v. Indemnity

Ins. Co. of North A merica, 13 So. 3d 1270 (Miss. 2009 ).

12.3 Plaintiff Westchester Fire Insurance Com pany has a claim for contractual, legal

and/or equitable contribution against Defendants, Hudson Specialty Insurance Company

and Amerisure Mutual Insurance Company, for defense, indemnity, satisfaction of

judgment and/or settlement payments, and costs and expenses arising out of the said

Defendants' past, existing and anticipated future failure to defend and indemnify the

insured, EMJ. To the extent of such payments made as a result of the Underlying

Litigation, Defendants, Hudson Specialty Insurance Company and Amerisure Mutual

Insurance Company, are liable to Plaintiff, Westchester Fire Insurance Company, for

indemnity and/or contribution.

12.4 Plaintiff W estchester Fire Insurance Company specifically avails itself of the

doctrine of equitable contribution and has standing to pursue contribution and/or

reimbursement against Defendants, Hudson Specialty Insurance Company and Amerisure

Mutual Insurance Company, for any and all defense costs and expenses, satisfaction of

judgment and/or settlement payments incurred or to be incurred as respects the defense

and/or indemnity of EM J C orporation in the Underlying Litigation.

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XIII.BAD FAITH

13.1 Plaintiffs incorpo rate the previous allegations as if fully set forth herein.

13.2 The failure of Hudson Specialty Insurance Company and Amerisure Mutual

Insurance Company to honor their contractual obligations in favor of EMJ Corporation

for additional insured status and coverage under the Hudson Policy and the Amerisure

Policy, and for defense and indemnity in respect of the Underlying Litigation, constitutes

breach of the duty of good faith and fair dealing under Mississippi Code § 75-1-203 and

other applicable laws. The actions of Hudson and Am erisure further constitute bad faith

denials of an insurance claim and unfair settlement practices under applicable state and/or

federal law. The actions of Hudson and Amerisure were without arguable or legitimate

bases and were committed with malice and/or gross negligence, in careless disregard of

the rights of EMJ Corporation, such that an award for punitive damages is appropriate

under Mississippi Code § 11-1-65 and/or other applicable laws, as well as extra-

contractual damages and consequential damages, including, but not limited to, attorneys'

fees, court costs, and other eco nomic losses.

XIV.

CLAIM FOR DECLARATORY JUDGMENT

AND OTHER RELIEF

14.1 Plaintiffs incorporate the previous allegations as if fully set forth herein .

14.2 This Ho norab le Court should declare the rights and obligations of all persons

interested under the insurance contracts at issue herein pursuant to Rule 57 of the Federal

Rules of Civil Procedure, the United States Declaratory Judgment Act, 28 U.S.C. § 2201,

and otherwise.

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14.3 An actual case or controve rsy has arisen and now exists between the Plaintiffs and

Defendants relating to the duties of Hudson and Amerisure to provide liability coverage

to EMJ on a primary basis to pay any settlement or judgment against EMJ in the

Underlying Litigation as well as attorneys' fees and expenses incurred in the defense of

EMJ in the Underlying L itigation. In order to terminate the controversy and uncertainty

concerning the existence and/or extent of liability coverage and defense obligations under

the insurance contracts at issue, and in order to determine the priority of insurance

coverage within the context of the Underlying Litigation, it is necessary that a declaration

be made as to the rights and obligations of the parties hereto . There fore, a Declaratory

Judgment is necessary, and Plaintiffs respectfully request this Honorable Court declare

their rights under the subject policies.

14.4 An award of attor ney s' fees and expenses incurred by Plaintiffs would be

equitable and just, and Plaintiffs seek recovery of attorney's fees and expenses pursuant

to all applicable provisions of Mississippi, federal, and other laws.

XV.

JURY DEMAND

15.1 Plaintiffs EMJ and AC E demand a trial by jury.

WHEREFORE, PREMISES CONSIDERED, EMJ Corporation and Westchester

Fire Insurance Com pany respectfully pray that Hudson S pecialty Insurance Company and

Amerisure Mutual Insurance Company be cited to appear and answer, and that upon final

trial in this cause this Honorable Court declare the rights and obligations of each of the

parties with regard to the subject insurance policies, and that Plaintiffs EMJ Corporation

and Westchester Fire Insurance Company be awarded judgment against Defendants

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Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company

declaring that:

(a) EM J Corpo ration is an additional insured on the Hu dson Policy issued by

Hudson Specialty Insurance Company (in accordance with Paragraph 5(b)

of the Subcontractor Agreement) and such coverage is provided on a

primary basis, the policy limits of which must be fully exhausted prior to

that of the AC E P olicy;

(b) EM J Corporation is an additional insured on the Am erisure Policy issued

by Amerisure Mutual Insurance Company (in accordance with Paragraph

5(b) of the Subcontractor Agreement) and such coverage is provided on a

primary basis, the policy limits of which must be fully exhausted prior to

that of the AC E Po licy;

(c) EM J is entitled to a defense and indemnity unde r the Hudson and

Am erisure Policies for the claims asserted in the Underlying Litigation;

(d) The AC E Policy is implicated only after exhaustion of the applicable policy

limits of the Hudson and Am erisure Policies;

(e) Hudson Specialty Insurance Company breached the terms of the Hudson

Policy by not defending and indemnifying EMJ Corporation in respect of

the Underlying Litigation;

(f) Am erisure Mu tual Insurance Com pany breached the terms of the

Amerisure Policy by not defending and indemnifying EMJ Corporation in

respect of the Underlying Litigation, or alternatively by prematurely

withdrawing its defense of EMJ;

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(g) Plaintiff Westchester Fire Insurance Com pany is contractually, legally

and/or equitably subrogated to the rights of its insured, EMJ, against

Defendants, Hudson Specialty Insurance Company and Amerisure Mutual

Insurance Company, for any and all defense, indemnity and/or settlement

payments, costs and expenses incurred or to be incurred in respect of the

claims and litigation against EMJ in the Underlying Litigation, and/or

reimbursement of such amounts.

(h) Plaintiff W estchester Fire Insurance Com pany is entitled to contractual,

legal and/or equitable contribution from Defendants, Hudson Specialty

Insurance Company and Amerisure Mutual Insurance Company, for any

and all defense, indemnity and/or settlement payments, costs and expenses

incurred or to be incurred in respect of the claims and litigation against

EM J in the Underlying L itigation, and/or reimbursem ent of such amou nts.

(i) EM J Corporation and its insurer W estchester Fire Insurance Company are

entitled to recover and be awarded their attorney fees and expenses incurred

in filing and pursing this action;

(j) EMJ Corporation and its insurer W estchester Fire Insurance Company are

entitled to recover and be awarded their Court costs incurred in filing and

pursuing this action;

(k) EM J Corporation and its insurer W estchester Fire Insurance Company are

entitled to recover and be awarded pre-judgment and post-judgment

interest;

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(1) Hudson Specialty Insurance Company and Am erisure Mutual Insurance

Com pany breached their duties of good faith and fair dealing pursuant to

Mississippi Code § 75-1-203 and otherwise, acted in bad faith and with

malice and/or gross negligence such that EMJ Corporation and/or its

insurer Westchester are entitled to damages pursuant to Mississippi state

and/or federal and/or other applicable laws, including but not limited to

extra-contractual damages and consequential damages, attorneys' fees,

court costs, and other economic losses. An award for punitive damages is

also appropriate under M ississippi Code § 11-1-65; and

(m) EM J Corporation and Westchester Fire Insurance Com pany be awarded

such other and further relief, at law or in equity, general or special, to which

they may show themselves to be justly entitled.

THIS the 28 th day of November, 2011.

Respectfully submitted,

EMJ CORPORATION

and WESTCHESTER FIRE

INSURANCE COMPANY

Mark D. Jicka

OF COUNSEL:

Mark D. Jicka (MSB No. 8969)John B. Howell (MSB No. 102655)WATKINS & EAGER PLLC400 East Capitol Street (39201)P. O. Box 650Jackson, MS 39205Telephone: (601) 965-1900Facsimile: (601)965-1901Email: [email protected] Email: [email protected]

mailto:[email protected]




EMJ CORPORATION et al v. HUDSON SPECIALTY INSURANCE COMPANY et al Complaint

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