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Allegrino v. Conway E & S

April 26, 2010


The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

Judge Nora Barry Fischer


I. Introduction

This action involves various claims brought by pro se Plaintiff, Anthony J. Allegrino, II ("Plaintiff"),*fn1 he avers were assigned to him by Liberty Immobiliare, Inc. ("Liberty"),*fn2 based on alleged real and personal business property damage and causes of action seeking to collect insurance proceeds under property insurance policies issued to Liberty by Defendants Certain Underwriters at Lloyd's, Advent Underwriting Limited, a/k/a Lloyd's Syndicate 780, and Omega Underwriting Agents Ltd., a/k/a Lloyd's Syndicate 958 ("Underwriters"). (Docket No. 3).*fn3 The subject insurance policies provide coverage subject to certain terms and conditions for investment and/or rental property located in Duquesne, Pennsylvania (and other venues) owned by Liberty, as well as business personal property. (Docket No. 3 at 4; Docket No. 83). Plaintiff has asserted eleven (11) "claims,"*fn4 initially naming eleven (11) different Defendants.*fn5 ( Id. ). This matter comes before the Court on Defendant, Champion Claim Service, Inc.'s ("Champion") Motion to Dismiss Plaintiff's Amended Complaint, and/or for Summary Judgment. (Docket No. 33). As discussed infra , Champion's motion will be addressed as a motion to dismiss under Rule 12(b)6). For the following reasons, the motion is granted.

II. Factual Background

Since this matter comes before the Court on a motion to dismiss, the factual allegations contained in Plaintiff's Amended Complaint are assumed as true. Hemi Group, LLC v. City of New York , -- U.S. --, 130 S.Ct. 983, 986-87 (Jan. 25, 2010)(citing Leatherman v. Tarrant County Narcotics and Intelligence & Coordination Unit , 507 U.S. 163, 164 (1993)). The pertinent facts are as follows.

A. The Parties Relevant to the Instant Motion

Plaintiff is a domiciliary of California, and a current resident of New York. (Docket No. 3 at 3). Liberty is a Delaware corporation with its principal place of business in New York. ( Id ).

Plaintiff is the primary stockholder and president of Liberty, the owner of the subject rental investment property, a multi-unit apartment building, at 138 Aurilles Street in Duquesne, Pennsylvania, which is the focus of Plaintiff's claims. ( Id. at 4-5; see also Docket No. 33-2 at 1-2). Champion is a Pennsylvania independent adjuster that was engaged by Raphael & Associates, a third party claims administrator, to handle Liberty's claims against Underwriters. (Docket No. 3 at 3-4; Docket No. 33 at 2).

B. The Insurance Policies

Liberty is the policyholder of two insurance policies that provided coverage for commercial, building and personal property, issued by Underwriters, for the property at 138 Aurilles Street in Duquesne, Pennsylvania: (1) policy number CONW-51534-07, which provided insurance from May 9, 2007 to May 9, 2008; and (2) policy number CONW-51636-08, which provided insurance from May 9, 2008 to May 9, 2009. (Docket No. 3 at 4-5; Docket No. 144). Plaintiff avers that the policy documents listed "Certain Underwriters at Lloyds [sic]" and "Lloyds [sic] of London" as the insurer.*fn6 ( Id. at 4). Yet, on November 6, 2009, Defendant Conway E & S, Inc. allegedly identified two other parties to the insurance agreements: Defendants, Omega Underwriting Agents, Ltd., syndicate 958, and Advent Underwriting Limited, syndicate 780. ( Id. ). Prior to that date, Plaintiff understood that according to the language of the policies and the representations of the agent who sold them to Liberty, i.e. Defendant Associates of Risk Transfer, Inc., doing business as RTI Insurance Services ("RTI"), Defendants Society of Lloyd's and Lloyd's TSP Group were the insurer.*fn7 ( Id. at 5). On November 10, 2009, Plaintiff took by assignment from Liberty any and all outstanding and unresolved claims made on the policies.*fn8 (Docket No. 3 at 5). These policy claims included those related to damage to both the real business property on Aurilles Street as well to Plaintiff's business personal property that was located within the building. ( Id. ).

Only the language of the insurance policies relevant to this Court's instant rulings, and the reader's understanding of the same, are provided herein.*fn9 Per the declarations page (Docket No. 144 at 3), the name of the insured is listed as Liberty Immobiliare, Inc., located at 606 Union Avenue, New Windsor, New York (Docket No. 144 at 3). The insured premises include, inter alia , 138 Aurilles Street in Duquesne, Pennsylvania. ( Id. ). The declaration page also states that the insurance is 100 % effective with Certain Underwriters at Lloyd's, while Charles T. Conway, President of Conway E & S, Inc., has signed the policy as the correspondent. ( Id. at 3-4).

C. Claims Against the Policies

1. Vandalism

Plaintiff asserts that he incurred multiple losses caused by vandalism to the real property at 138 Aurilles Street, which are covered under the policies. ( Id. at 5). The first instance of vandalism occurred between November 7, 2007 and April 10, 2008. ( Id. at 5). The second instance occurred between May 23, 2008 and August 18, 2008. ( Id. at 6). The subject property was also allegedly flooded by a former worker. ( Id. ). Specifically, the flood was caused by a toilet which was intentionally smashed in an upstairs apartment, after the contractor was fired by Plaintiff over a financial dispute and work issue between the parties in November 2007. (Docket No. 3 at 6). Plaintiff alleges he promptly reported the vandalism claims. ( Id. ).

On September 4, 2008, Plaintiff submitted to Defendants an estimate of itemized damages related to the two instances of vandalism ( Id. ). He provided a second estimate on September 5, 2008. ( Id. ). Plaintiff thereafter filed a police report with Defendant City of Duquesne on October 25, 2008, providing the identity of Ernesto Avilles Sanchez as the individual who vandalized the property. ( Id. at 6). On November 10, 2008, Plaintiff contends that provided Defendants with additional itemized damage estimates. ( Id. at 7).

2. Windstorm

Plaintiff also alleges that he incurred losses related to damage to the Aurilles Street property caused by two windstorms on July 20 and 22, 2008. (Docket No. 3 at 7). All of the gutters on the apartment building were "blown off" in addition to other structural and non-structural damage. ( Id. ). Plaintiff filed claims against the policies related to the described windstorms with "Defendants" on August 18, 2008.*fn10 ( Id. at 5).

On September 4 and 5, 2008, Plaintiff also provided Defendants with estimates of itemized damages to the real and business property. ( Id. at 6-7). Later, on November 6, 2008, he provided an engineering report related to the same, with verification of the storms and related wind speeds. ( Id. at 6-7).

In addition, Plaintiff asserts that certain unidentified Defendants intentionally sent a "roofer" instead of a licensed engineer to examine the building for structural damage without notice to Plaintiff and that this "roofer" examined every side of the building, except the side where the damage had occurred. (Docket No. 3 at 8). Yet, Plaintiff contends that no investigation has been conducted by Defendants to determine any cause of loss to the property. ( Id. ). As of the date Plaintiff initiated this action, i.e. November 10, 2009, Defendants had not "adjudicated"*fn11 these insurance policy claims. ( Id. ).

3. Electronic Business Property

Plaintiff also alleges that certain of his electronic business personal property was damaged by vandalism. (Docket No. 3 at 8). On October 12, 2009, this damaged personal property was moved from 138 Aurilles Street to 359 Broadway in Newburgh, New York, to be stored. ( Id. ). The property was subsequently discarded by a worker at the new location. ( Id. ). Plaintiff further alleges that the damaged business property had been "previously inspected by Defendants" and was covered under the policies ( Id. ). Hence, Plaintiff filed a report with Defendants regarding the inadvertent disposal of the damaged business property on November 10, 2009. ( Id. ).

4. Demolition Damage

On or about October 2008, the property adjacent to 138 Aurilles Street, at building number 140, was demolished with the use of heavy machinery and vehicles. (Docket No. 3 at 9). Plaintiff avers that this demolition seriously damaged the foundation, floors, and walls of Plaintiff's building. ( Id. ) To this end, Plaintiff attests that Defendants used heavy equipment to destroy the basement and foundation on the neighboring property, thereby removing lateral support to Plaintiff's building. ( Id. ). Consequently, Plaintiff alleges that Defendants were negligent. ( Id. ).

On December 8, 2008, Plaintiff filed a claim against the subject policies for damage caused by the demolition, along with an engineering report. ( Id. ). A "Statutory Notice of Claim" was sent to "other Defendants" on or about March 4, 2009. ( Id. ). As of November 23, 2009, Plaintiff avers that Defendants, as a whole, have not "adjudicated" this claim. ( Id. ).

5. Defendants' Response to Claims

Relevant to the instant motion, Plaintiff asserts that on December 18, 2008, Champion sent him an acknowledgment letter.*fn12 (Docket No. 3 at 9). However, since that date, Plaintiff maintains he has not received anything further from Champion regarding his claims. ( Id. ). On May 7, 2009, Plaintiff asserts that "Defendants at Llloyds [sic] in London,"i.e. Omega Underwriting Agents, Ltd., Advent Underwriting Agents Limited, Society of Lloyd's, and Lloyd's TSP Group conducted an examination of Plaintiff under oath. (Docket No. 3 at 10). Since that date, however, Plaintiff states that he ...

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