COMPLAINT against BAPTISTE & WILDER, P.C., ROBERT M. BAPTISTE, PATRICK J. SZYMANSKI (Filing fee $ 250) filed by AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY. (Attachments: # (1) Exhibit 1# (2) Exhibit 2# (3) Exhibit 3)(lc, )
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Page 1 IN THE UNITED STATES DISTRICT COURT
FOR DISTRICT OF COLUMBIA
AMERICAN GUARANTEE AND
LIABILITY INSURANCE COMPANY
One Liberty Plaza
165 Broadway
53rd Floor
New York, New York 10006
Plaintiff,
v.
BAPTISTE & WILDER, P.C.,
Registered Agent: Susan Boyle
1150 Connecticut Ave., NW
Suite 500
Washington, D.C. 20036
ROBERT M. BAPTISTE,
1150 Connecticut Ave., NW
Suite 500
Washington, D.C. 20036
and
PATRICK J. SZYMANSKI,
The International Brotherhood
of Teamsters
25 Louisiana Ave., N.W.
Washington, D.C. 20001
Defendants.
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CASE NO.: __________
COMPLAINT FOR DECLARATORY RELIEF
Pursuant to 28 U.S.C. § 2201 and Federal Rule of Civil Procedure 57, Plaintiff American
Guarantee and Liability Insurance Company (“American Guarantee”) files this, its complaint for
declaratory relief, and alleges as follows:Page 2 In this action, American Guarantee seeks a declaration of its rights and duties with
respect to coverage issues under a lawyers professional liability insurance policy issued to
Defendant Baptiste & Wilder, P.C. (“Baptiste & Wilder” or the “Insured”).
PARTIES
2.
Plaintiff American Guarantee is a New York corporation engaged in the insurance
business with a statutory home office located at One Liberty Plaza, 165 Broadway, 53rd Floor,
New York, New York 10006, and a main administrative office or principal place of business
located at 1400 American Lane, Schaumburg, Illinois 60196. It is authorized to transact business
and has transacted business in the District of Columbia.
3.
Defendant Baptiste & Wilder is a professional corporation, organized and existing
under the laws of the District of Columbia, with its principal place of business at 1150
Connecticut Avenue, NW, Suite 500, Washington, D.C. 20036.
4.
On information and belief, Defendant Robert M. Baptiste (“Baptiste”) is an
individual attorney residing at 7 Grafton Street, Chevy Chase, Maryland 20815 and a business
address of 1150 Connecticut Avenue, N.W., Suite 500, Washington, D.C. 20036. This Court
has jurisdiction over Baptiste and venue is proper in this Court.
5.
On information and belief, Patrick J. Szymanksi (“Szymanski”) is an individual
attorney residing at 3724 4th Street, Arlington, Virginia and a business address of 1150
Connecticut Avenue, N.W., Suite 500, Washington, D.C. 20036. This Court has jurisdiction
over Szymanski and venue is proper in this Court.
JURISDICTION AND VENUE
6.
This action is between citizens of different states and there is complete diversity
of citizenship between all plaintiffs and all defendants.
-21869204v1Page 3 This controversy involves coverage under a legal malpractice insurance policy
with a $4 million limit of liability in the aggregate for claims seeking an amount in excess of
$75,000. Accordingly, the amount in controversy exceeds $75,000.00, exclusive of costs and
interest. Thus, this Court has original jurisdiction pursuant to 28 U.S.C. §1332.
8.
Venue is properly laid in this Court pursuant to 28 U.S.C. §1391(a) because the
insurance policy that is the subject of this action was delivered in this judicial district and a
substantial part of the events or omissions giving rise to the claims for which the Insured seeks
coverage occurred in this judicial district.
BACKGROUND FACTS
I.
The Claim Against the Insureds in the Underlying Complaint.
9.
American Guarantee received notice of a complaint filed on October 1, 2004 (the
“Underlying Complaint”) by Martha J. Lockwood (the “Claimant”) against Baptiste & Wilder,
Baptiste, and Szymanski (collectively, the “Insureds”).
A true and correct copy of the
Underlying Complaint is attached hereto as Exhibit 1.
10.
In the Underlying Complaint, the Claimant alleges that she was discharged from
her employment position in September 1995. She retained Baptiste & Wilder to represent her in
an arbitration against her employer for a contract claim for lost wages, benefits and severance
pay arising from her discharge. (See Exh. 1, ¶¶ 7-8).
11.
Sometime in 1995 or 1996, the Insureds advised the Claimant to also consider
filing a civil lawsuit against the principals of her employer for defamation, wrongful discharge,
intentional interference with the Claimant’s employment contract, and intentional infliction of
emotional distress. (Id. at ¶9).
-31869204v1Page 4 As a result, on or about September 20, 1996, the Insured, acting through
Szymanski, filed a complaint on the Claimant’s behalf in the Superior Court of the District of
Columbia. The complaint demanded judgment against the Claimant’s former employer in the
amount of $1.5 million dollars. (Id. at ¶10).
13.
The Claimant alleges that Baptiste advised the Claimant that her civil case was
very strong, and she could expect to recover at least $1 million dollars. (Id. at ¶11).
14.
After late 1996, the Claimant did not hear anything concerning her case from the
Insureds. However, she did have conversations with Szymanski regarding the arbitration and
other matters in 1997 and 1999, but the civil lawsuit was never discussed. The Claimant alleges
that the last time the case was discussed was in late 1996 when Szymanksi advised the Claimant
that both defendants had been served with process. (Id. at ¶12, 16).
15.
In January 2002, the Claimant began making inquiries regarding the status of her
lawsuit. She tried to contact the Insureds by telephone and wrote four letters to them asking for
information about the case. The Insureds never responded. (Id. at ¶13).
16.
About one year later, the Claimant visited the clerk’s office of the Superior Court
of the District of Columbia and asked to review her file. The Claimant discovered that her case
was dismissed on December 12, 1996 for failure to file an affidavit evidencing service on the
defendants within the time allowed by the Superior Court rules. By this time, the statute of
limitations for her case had long expired. (Id. at ¶14-15).
17.
The Underlying Complaint alleges that the Insureds breached their duty of care by
failing to file the requisite affidavit, by failing to take steps to reinstate the lawsuit, by failing to
file a new lawsuit before the expiration of the applicable statute of limitations, and by failing to
notify the Claimant that her case had been dismissed in time for her to file the lawsuit again. The
-41869204v1Page 5 Claimant seeks $1.5 million in damages, including psychological and emotional distress (the
allegations in the Underlying Complaint are referred to herein as the “Claim”).
II.
The Policy.
18.
American Guarantee issued Lawyers Professional Liability No. LPL 4907012-1 to
the Insured on a claims made and reported basis for a policy period of November 5, 2003 to
November 5, 2004 (the “Policy”). The limit of liability is $4,000,000 for each claim and
$4,000,000 in the aggregate, with a $10,000 deductible per claim. A true and correct copy of the
Policy is attached hereto as Exhibit 2.
19.
The Insureds seek a defense and indemnity for the Claim under the Policy.
20.
American Guarantee has initially agreed to provide the Insured a defense against
the Claim subject to a full and complete reservation of rights as to both the duty to defend and
the duty to indemnify.
21.
The Insureds dispute American Guarantee’s coverage opinion and contend that
the Claim is covered. There is, therefore, an actual controversy between the parties as to the
existence of coverage for the Claim.
COUNT I – DUTY TO DEFEND
22.
American Guarantee incorporates its allegations of Paragraphs 1 though 21 herein
by reference.
23.
American Guarantee has no duty to defend against the Claim because the Claim is
not covered pursuant to the following terms of the Policy:
I.
The Claim Is Not Covered Under the Policy Because the Insureds Had Prior
Knowledge of the Claim.
24.
The Policy does not provide coverage for acts or omissions occurring prior to the
policy period when the insured, prior to the inception of the first policy issued by American
-51869204v1Page 6 Guarantee, had “any reasonable basis 1) to believe that any Insured had breached a
professional duty, or 2) to foresee that any such act or omission or Related Act or Omission
might reasonably be expected to be the basis of a Claim against any Insured.” (Exh. 2, Policy,
Section I, A) (emphasis added).
25.
As the Policy is a renewal, the first Policy issued by American Guarantee incepted
on November 5, 2002. When the Underlying Complaint was dismissed in December 1996, the
Insureds had a reasonable basis to believe that they had breached a professional duty by failing to
file the appropriate service affidavit with the court.
26.
Additionally, beginning in January 2002, the Claimant sent letters to the Insureds
and left several telephone messages regarding the status of her lawsuit. At least by the time of
the Claimant’s inquiries, the Insureds should have realized that the lawsuit was dismissed in
1996 and that they failed to timely re-file the lawsuit. A true and correct copy of the letters from
the Claimant to the Insureds are attached hereto as Exhibit 3.
27.
At the very latest, the Insureds should have anticipated a claim by the time of the
Claimant’s letter dated July 15, 2002 addressed to Baptiste. Certainly, in that letter, the Claimant
expressed her great concern that her civil case “will never come to justice” and expressed her
concern that she had not heard back from the Insureds regarding her case. (See Exh. 3).
28.
From these facts, it appears that the Claimant was disconcerted by the Insureds’
failure to respond to her telephone calls or letters. Accordingly, the Insureds had a reasonable
basis to anticipate a claim in light of the Claimant’s inquiries, regardless of whether the Insureds
believed such a claim had merit.
29.
Consequently, because the Insureds had a reasonable basis to foresee that they
breached a professional duty or that their acts or omissions might be the basis of a claim prior to
-61869204v1Page 7 the inception of the Policy, American Guarantee has no obligation to provide a defense to the
Insureds as the Policy does not provide coverage for the Claim.
II.
The Policy Does Not Cover the Claim Against Szymanski.
30.
The Policy contains a Deletion of Lawyers Endorsement which deletes Szymanski
as an insured under the Policy effective February 29, 2004. (See Exh. 2).
31.
Szymanski is individually named as a defendant in the Underlying Complaint.
32.
Accordingly, American Guarantee has no obligation to provide Szymanski a
defense, and any judgment against Szymanski is not covered by the Policy.
COUNT II – DUTY TO INDEMNIFY
33.
American Guarantee incorporates its allegations of Paragraphs 1 through 32
herein by reference.
34.
The Policy only provides indemnity if the actual facts establish a covered claim.
Accordingly, to the extent that a claimant actually recovers a judgment based on facts which
establish non-coverage under any of the provisions quoted above, American Guarantee has no
obligation to indemnify the Insureds in connection with the Claim.
35.
In addition to the provisions quoted above, the following terms limit or eliminate
any duty to indemnify:
I.
The Claim May Not be Seeking “Damages” Covered by the Policy.
36.
The Claim may not be seeking “Damages” covered by the Policy. The Insuring
Agreement states that the Policy will cover only those sums which the Insured shall become
legally obligated to pay as “Damages,” as that term is defined under the Policy. That definition
states:
-71869204v1Page 8 Damages means a monetary portion of any judgment, award or settlement,
provided such settlement is negotiated with the assistance and approval of
the Company. Damages do not include:
1.
compensation for bodily injury to, sickness, disease, death
of any person, emotional distress or other emotional
judgments or awards;
...
(Exh. 2, VI(E)).
37.
The Complaint alleges that the Claimant suffered psychological and emotional
distress as a result of the Insureds’ actions. Any such recovery would not fall within the
definition of damages under Section VI(E)(1) of the Policy.
38.
Accordingly, to the extent that actual facts establish liability for the Claimant’s
emotional distress as a result of the Insureds’ actions, American Guarantee has no obligation to
indemnify the Insureds for such liability.
WHEREFORE, American Guarantee respectfully prays that:
(a)
This Court issue a declaratory judgment that American Guarantee has no duty to
defend the Insureds against the Claim;
(b)
This Court issue a declaratory judgment that American Guarantee has no duty to
indemnify the Insureds for any judgment issued or settlement entered into in connection with the
Claim;
(c)
This Court award American Guarantee its costs incurred in pursing this action,
including reasonable attorneys fees; and
(d)
This Court grant American Guarantee such other and further relief as may be just
and proper under the circumstances of this case.
Respectfully submitted this ___ day of October, 2005.
-81869204v1Page 9 CARR MALONEY P.C.
By: William J. Carter /s/______
William J. Carter, 329637
1615 L Street, N.W.
Suite 500
Washington, D.C. 20036
(202) 310-5500 (telephone)
(202) 310-5555 (facsimile)
Attorneys for American Guarantee and
Liability Insurance Company
-91869204v1
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Case 1:05-cv-01958-JR
Document 1
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IN THE UNITED STATES DISTRICT COURT
FOR DISTRICT OF COLUMBIA
AMERICAN GUARANTEE AND
LIABILITY INSURANCE COMPANY
One Liberty Plaza
165 Broadway
53rd Floor
New York, New York 10006
Plaintiff,
v.
BAPTISTE & WILDER, P.C.,
Registered Agent: Susan Boyle
1150 Connecticut Ave., NW
Suite 500
Washington, D.C. 20036
ROBERT M. BAPTISTE,
1150 Connecticut Ave., NW
Suite 500
Washington, D.C. 20036
and
PATRICK J. SZYMANSKI,
The International Brotherhood
of Teamsters
25 Louisiana Ave., N.W.
Washington, D.C. 20001
Defendants.
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CASE NO.: __________
COMPLAINT FOR DECLARATORY RELIEF
Pursuant to 28 U.S.C. § 2201 and Federal Rule of Civil Procedure 57, Plaintiff American
Guarantee and Liability Insurance Company (“American Guarantee”) files this, its complaint for
declaratory relief, and alleges as follows:
PDF Page 3
Case 1:05-cv-01958-JR
1.
Document 1
Filed 10/04/2005
Page 2 of 9
In this action, American Guarantee seeks a declaration of its rights and duties with
respect to coverage issues under a lawyers professional liability insurance policy issued to
Defendant Baptiste & Wilder, P.C. (“Baptiste & Wilder” or the “Insured”).
PARTIES
2.
Plaintiff American Guarantee is a New York corporation engaged in the insurance
business with a statutory home office located at One Liberty Plaza, 165 Broadway, 53rd Floor,
New York, New York 10006, and a main administrative office or principal place of business
located at 1400 American Lane, Schaumburg, Illinois 60196. It is authorized to transact business
and has transacted business in the District of Columbia.
3.
Defendant Baptiste & Wilder is a professional corporation, organized and existing
under the laws of the District of Columbia, with its principal place of business at 1150
Connecticut Avenue, NW, Suite 500, Washington, D.C. 20036.
4.
On information and belief, Defendant Robert M. Baptiste (“Baptiste”) is an
individual attorney residing at 7 Grafton Street, Chevy Chase, Maryland 20815 and a business
address of 1150 Connecticut Avenue, N.W., Suite 500, Washington, D.C. 20036. This Court
has jurisdiction over Baptiste and venue is proper in this Court.
5.
On information and belief, Patrick J. Szymanksi (“Szymanski”) is an individual
attorney residing at 3724 4th Street, Arlington, Virginia and a business address of 1150
Connecticut Avenue, N.W., Suite 500, Washington, D.C. 20036. This Court has jurisdiction
over Szymanski and venue is proper in this Court.
JURISDICTION AND VENUE
6.
This action is between citizens of different states and there is complete diversity
of citizenship between all plaintiffs and all defendants.
-21869204v1
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Case 1:05-cv-01958-JR
7.
Document 1
Filed 10/04/2005
Page 3 of 9
This controversy involves coverage under a legal malpractice insurance policy
with a $4 million limit of liability in the aggregate for claims seeking an amount in excess of
$75,000. Accordingly, the amount in controversy exceeds $75,000.00, exclusive of costs and
interest. Thus, this Court has original jurisdiction pursuant to 28 U.S.C. §1332.
8.
Venue is properly laid in this Court pursuant to 28 U.S.C. §1391(a) because the
insurance policy that is the subject of this action was delivered in this judicial district and a
substantial part of the events or omissions giving rise to the claims for which the Insured seeks
coverage occurred in this judicial district.
BACKGROUND FACTS
I.
The Claim Against the Insureds in the Underlying Complaint.
9.
American Guarantee received notice of a complaint filed on October 1, 2004 (the
“Underlying Complaint”) by Martha J. Lockwood (the “Claimant”) against Baptiste & Wilder,
Baptiste, and Szymanski (collectively, the “Insureds”).
A true and correct copy of the
Underlying Complaint is attached hereto as Exhibit 1.
10.
In the Underlying Complaint, the Claimant alleges that she was discharged from
her employment position in September 1995. She retained Baptiste & Wilder to represent her in
an arbitration against her employer for a contract claim for lost wages, benefits and severance
pay arising from her discharge. (See Exh. 1, ¶¶ 7-8).
11.
Sometime in 1995 or 1996, the Insureds advised the Claimant to also consider
filing a civil lawsuit against the principals of her employer for defamation, wrongful discharge,
intentional interference with the Claimant’s employment contract, and intentional infliction of
emotional distress. (Id. at ¶9).
-31869204v1
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Case 1:05-cv-01958-JR
12.
Document 1
Filed 10/04/2005
Page 4 of 9
As a result, on or about September 20, 1996, the Insured, acting through
Szymanski, filed a complaint on the Claimant’s behalf in the Superior Court of the District of
Columbia. The complaint demanded judgment against the Claimant’s former employer in the
amount of $1.5 million dollars. (Id. at ¶10).
13.
The Claimant alleges that Baptiste advised the Claimant that her civil case was
very strong, and she could expect to recover at least $1 million dollars. (Id. at ¶11).
14.
After late 1996, the Claimant did not hear anything concerning her case from the
Insureds. However, she did have conversations with Szymanski regarding the arbitration and
other matters in 1997 and 1999, but the civil lawsuit was never discussed. The Claimant alleges
that the last time the case was discussed was in late 1996 when Szymanksi advised the Claimant
that both defendants had been served with process. (Id. at ¶12, 16).
15.
In January 2002, the Claimant began making inquiries regarding the status of her
lawsuit. She tried to contact the Insureds by telephone and wrote four letters to them asking for
information about the case. The Insureds never responded. (Id. at ¶13).
16.
About one year later, the Claimant visited the clerk’s office of the Superior Court
of the District of Columbia and asked to review her file. The Claimant discovered that her case
was dismissed on December 12, 1996 for failure to file an affidavit evidencing service on the
defendants within the time allowed by the Superior Court rules. By this time, the statute of
limitations for her case had long expired. (Id. at ¶14-15).
17.
The Underlying Complaint alleges that the Insureds breached their duty of care by
failing to file the requisite affidavit, by failing to take steps to reinstate the lawsuit, by failing to
file a new lawsuit before the expiration of the applicable statute of limitations, and by failing to
notify the Claimant that her case had been dismissed in time for her to file the lawsuit again. The
-41869204v1
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Claimant seeks $1.5 million in damages, including psychological and emotional distress (the
allegations in the Underlying Complaint are referred to herein as the “Claim”).
II.
The Policy.
18.
American Guarantee issued Lawyers Professional Liability No. LPL 4907012-1 to
the Insured on a claims made and reported basis for a policy period of November 5, 2003 to
November 5, 2004 (the “Policy”). The limit of liability is $4,000,000 for each claim and
$4,000,000 in the aggregate, with a $10,000 deductible per claim. A true and correct copy of the
Policy is attached hereto as Exhibit 2.
19.
The Insureds seek a defense and indemnity for the Claim under the Policy.
20.
American Guarantee has initially agreed to provide the Insured a defense against
the Claim subject to a full and complete reservation of rights as to both the duty to defend and
the duty to indemnify.
21.
The Insureds dispute American Guarantee’s coverage opinion and contend that
the Claim is covered. There is, therefore, an actual controversy between the parties as to the
existence of coverage for the Claim.
COUNT I – DUTY TO DEFEND
22.
American Guarantee incorporates its allegations of Paragraphs 1 though 21 herein
by reference.
23.
American Guarantee has no duty to defend against the Claim because the Claim is
not covered pursuant to the following terms of the Policy:
I.
The Claim Is Not Covered Under the Policy Because the Insureds Had Prior
Knowledge of the Claim.
24.
The Policy does not provide coverage for acts or omissions occurring prior to the
policy period when the insured, prior to the inception of the first policy issued by American
-51869204v1
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Guarantee, had “any reasonable basis 1) to believe that any Insured had breached a
professional duty, or 2) to foresee that any such act or omission or Related Act or Omission
might reasonably be expected to be the basis of a Claim against any Insured.” (Exh. 2, Policy,
Section I, A) (emphasis added).
25.
As the Policy is a renewal, the first Policy issued by American Guarantee incepted
on November 5, 2002. When the Underlying Complaint was dismissed in December 1996, the
Insureds had a reasonable basis to believe that they had breached a professional duty by failing to
file the appropriate service affidavit with the court.
26.
Additionally, beginning in January 2002, the Claimant sent letters to the Insureds
and left several telephone messages regarding the status of her lawsuit. At least by the time of
the Claimant’s inquiries, the Insureds should have realized that the lawsuit was dismissed in
1996 and that they failed to timely re-file the lawsuit. A true and correct copy of the letters from
the Claimant to the Insureds are attached hereto as Exhibit 3.
27.
At the very latest, the Insureds should have anticipated a claim by the time of the
Claimant’s letter dated July 15, 2002 addressed to Baptiste. Certainly, in that letter, the Claimant
expressed her great concern that her civil case “will never come to justice” and expressed her
concern that she had not heard back from the Insureds regarding her case. (See Exh. 3).
28.
From these facts, it appears that the Claimant was disconcerted by the Insureds’
failure to respond to her telephone calls or letters. Accordingly, the Insureds had a reasonable
basis to anticipate a claim in light of the Claimant’s inquiries, regardless of whether the Insureds
believed such a claim had merit.
29.
Consequently, because the Insureds had a reasonable basis to foresee that they
breached a professional duty or that their acts or omissions might be the basis of a claim prior to
-61869204v1
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the inception of the Policy, American Guarantee has no obligation to provide a defense to the
Insureds as the Policy does not provide coverage for the Claim.
II.
The Policy Does Not Cover the Claim Against Szymanski.
30.
The Policy contains a Deletion of Lawyers Endorsement which deletes Szymanski
as an insured under the Policy effective February 29, 2004. (See Exh. 2).
31.
Szymanski is individually named as a defendant in the Underlying Complaint.
32.
Accordingly, American Guarantee has no obligation to provide Szymanski a
defense, and any judgment against Szymanski is not covered by the Policy.
COUNT II – DUTY TO INDEMNIFY
33.
American Guarantee incorporates its allegations of Paragraphs 1 through 32
herein by reference.
34.
The Policy only provides indemnity if the actual facts establish a covered claim.
Accordingly, to the extent that a claimant actually recovers a judgment based on facts which
establish non-coverage under any of the provisions quoted above, American Guarantee has no
obligation to indemnify the Insureds in connection with the Claim.
35.
In addition to the provisions quoted above, the following terms limit or eliminate
any duty to indemnify:
I.
The Claim May Not be Seeking “Damages” Covered by the Policy.
36.
The Claim may not be seeking “Damages” covered by the Policy. The Insuring
Agreement states that the Policy will cover only those sums which the Insured shall become
legally obligated to pay as “Damages,” as that term is defined under the Policy. That definition
states:
-71869204v1
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Damages means a monetary portion of any judgment, award or settlement,
provided such settlement is negotiated with the assistance and approval of
the Company. Damages do not include:
1.
compensation for bodily injury to, sickness, disease, death
of any person, emotional distress or other emotional
judgments or awards;
...
(Exh. 2, VI(E)).
37.
The Complaint alleges that the Claimant suffered psychological and emotional
distress as a result of the Insureds’ actions. Any such recovery would not fall within the
definition of damages under Section VI(E)(1) of the Policy.
38.
Accordingly, to the extent that actual facts establish liability for the Claimant’s
emotional distress as a result of the Insureds’ actions, American Guarantee has no obligation to
indemnify the Insureds for such liability.
WHEREFORE, American Guarantee respectfully prays that:
(a)
This Court issue a declaratory judgment that American Guarantee has no duty to
defend the Insureds against the Claim;
(b)
This Court issue a declaratory judgment that American Guarantee has no duty to
indemnify the Insureds for any judgment issued or settlement entered into in connection with the
Claim;
(c)
This Court award American Guarantee its costs incurred in pursing this action,
including reasonable attorneys fees; and
(d)
This Court grant American Guarantee such other and further relief as may be just
and proper under the circumstances of this case.
Respectfully submitted this ___ day of October, 2005.
-81869204v1
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CARR MALONEY P.C.
By: William J. Carter /s/______
William J. Carter, 329637
1615 L Street, N.W.
Suite 500
Washington, D.C. 20036
(202) 310-5500 (telephone)
(202) 310-5555 (facsimile)
Attorneys for American Guarantee and
Liability Insurance Company
-91869204v1
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