Case: l:14-cv-01525 Document #: 1 Filed: 03/04/14 Page 1 of 8 PagelD #:1

GVC UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS - EASTERN DIVISION

THE HERTZ CORPORATION and, ACE AMERICAN INSURANCE COMPANY Plaintiffs, No. VANVA INC. d/b/a CUBS PARK SERVICE, JONATHAN HARRIS and EILEEN CARNAHAN, Defendants.

COMPLAINT FOR DECLARATORY JUDGMENT NOW COMES the Plaintiffs, THE HERTZ CORPORATION (hereinafter "HERTZ") and ACE AMERICAN INSRANCE COMPANY (hereinafter "ACE"), by their attorneys, PAPPAS DAVIDSON O'CONNOR & FILDES P C , in accordance with 28 U.S.C. Section 2201 and Rule 57 of the Federal Code of Civil Procedure, as and for their complaint for declaratory judgment against the Defendants, VANVA INC. d/b/a CUBS PARK SERVICE (hereinafter "VANVA"), JONATHAN HARRIS and EILEEN CARNAHAN, allege as follows: NATURE OF THE ACTION 1. This is an action for declaratory judgment, brought pursuant to 28 U.S.C.

Section 2201 and Rule 57 of the Federal Code of Civil Procedure, to determine a real and justiciable controversy among the parties with respect to their rights and obligations under the agency agreement between HERTZ and VANVA (hereinafter "the Agency Agreement") and the policy of insurance between ACE and VANVA for CARNAHAN's claim of personal

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injuries and damages arising out of an automobile accident that occurred on January 6, 2012, near the intersection of Waveland and Halsted Streets in Chicago, Illinois (hereinafter "the Claim"). HERTZ seeks an order declaring that VANVA is only entitled to liability coverage from HERTZ or HERTZ' insurers under the Agency Agreement for the defense and indemnification of VANVA and HARRIS for the Claim in the amount of $100,000.00. ACE seeks an order declaring that VANVA is not entitled to a defense or indemnification under ACE policy OGL G22526004. JURISDICTION AND VENUE 2. HERTZ is a corporation incorporated under the laws of Delaware with its

principal place of business in New Jersey. ACE is a corporation incorporated under the laws of Pennsylvania and its principal place of business is Pennsylvania. VANVA is a corporation incorporated under the laws of Illinois and its principal place of business is Illinois. HARRIS is a citizen of Illinois. CARNAHAN is a citizen of Illinois. The amount in controversy, without interest or costs, exceeds $75,000 or the sum or value specified in 28 U.S.C. Section 1332. 3. Venue is proper pursuant to 28 U.S.C. Section 1391 (b)(1) because all the

defendants reside in Illinois and 28 U.S.C. Section 1391 (b)(2) because a substantial part of the events occurred in Illinois. THE PARTIES 4. HERTZ is a corporation incorporated in Delaware with its principal place of

business in New Jersey. 5. ACE is a corporation incorporated under the laws of Pennsylvania with its

principal place of business in Pennsylvania.

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6.

VANVA is a corporation incorporated in Illinois with its principal place of

business in Illinois. 7. HARRIS is a citizen of Illinois and he is named as a required party pursuant to

Rule 19 (a)(1)(A) of the Federal Code of Civil Procedure. 8. CARNAHAN is a citizen of Illinois and she is named as a required party

pursuant to Rule 19 (a)(1)(A) of the Federal Code of Civil Procedure.

BACKGROUND FACTS 9. On or about September 13, 2010, VANVA and HERTZ entered into the Agency

Agreement. (See, Agency Agreement between VANVA and HERTZ attached as Ex. A). 10. Pursuant to section 2.1(c) of the Agency Agreement, Hertz agreed to furnish on

behalf of VANVA in connection with VANVA or VANVA's employee's necessary operation of any vehicle within the scope of the Agency Agreement protection against automobile liability. Such liability protection will be provided against liability to third parties and such protection will have limits for bodily injury or death up to $100,000 for each person and $300,000 for each accident, and $25,000 for property damage including HERTZ' responsibility as vehicle owner. (Ex. A at section 2.1(c)). 11. Pursuant to section 7.1 of the Agency Agreement, VANVA, at its expense will

maintain Comprehensive General Liability Insurance ("CGL policy"), including contractual, personal injury, completed operations and Fire Liability Insurance which covers VANVA's location and VANVA's operations but only as respects VANVA's activities involving rental of Hertz vehicles. Said insurance will be primary and not excess, with combined limits of $1,000,000. (Ex. A at section 7.1).

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12.

In order to comply with its obligations under 7.1 of the Agency Agreement,

VANVA agreed to accept insurance from ACE with the premiums for the policy deducted from the monthly commission checks from HERTZ. (See, Insurance Acceptance Form, attached as Ex. B). 13. Pursuant to 7.1 of the Agency Agreement and the Insurance Acceptance Form,

VANVA was named in an endorsement to the ACE policy OGL G22526004 and that the ACE insurance only applies to "bodily injury", "property damage", "personal advertising injury" and medical expenses arising out of the ownership, maintenance or use of the VANVA premises and operations necessary or incidental to the VANVA premises effective November 1, 2011 to November 12, 2012. (See, ACE policy OGL G22526004 at the Commercial General Liability Coverage Form endorsement which is attached as Ex. C) (hereinafter "the Policy"). 14. On January 6, 2012, HARRIS was operating a car owned by HERTZ in the

course and scope of his employment with VANVA when HARRIS was involved in an accident with CARNAHAN near the intersection of Halsted and Waveland Streets in Chicago, Illinois ("the Claim"). 15. Subsequent to the Claim, CARNAHAN filed a complaint against HARRIS and

against VANVA under a theory of respondeat superior for the negligent conduct of HARRIS in the Circuit Court of Cook County, Illinois, Law Division, under docket number 12 L 2780. 16. Subsequent to the filing of the Claim in state court, VANVA tendered the

defense and indemnification of VANVA and HARRIS to HERTZ pursuant to the Agency Agreement. 17. HERTZ accepted the tender of the defense and indemnification of VANVA and

HARRIS pursuant to section 2.1 (c) of the Agency Agreement with limits for bodily injury or

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death up to $100,000 for each person and $300,000 for each accident, and $25,000 for property damage including HERTZ' responsibility as vehicle owner. (Ex. A at section 2.1(c)). 18. the Policy. 19. VANVA is not entitled to coverage for the Claim under the Policy because the On or about January 9, 2014, VANVA demanded coverage for the Claim under

Claim is excluded from coverage under the Policy pursuant to 2 (g) of the Policy. (Ex. C at 2 (g))THE AGENCY AGREEMENT 20. Section 2.1(c) of the Agency Agreement provides:

(Ex. A at 2.1(c)). 21. 7.1 Section 7.1 of the Agency Agreement provides:

At U tiuTM white lbs AgrwmMii la ia effect, Agent, it its txpensos, willflifllnwtawith an insurance wurier sttilthaioty to Hertz, Coirptthcoslvo General pliability Tnstirtaw, inctadinj; contractu*), jwmoruU tnjury, corrinlMed opmilont and Pkft l<eM TJebQity Injure***, ^Msh covtre ttw Location, and A$oat' opcrAtions,, but ottly M rtspeo * A gent's Rcn\viilpB involving rental of Kerte veb'elsf, TTIP polloy will nam* Kortz, Hwte Sy*tetn, Inc., fa)\t rp*tfivfr subsjdinrlec, affili&twi and parent coxnpflny> * & now &i\i htrtalto c ou*tihned, and rfuir respective omployotB, *JJ oddrtiwul iaiuttdi for liability for bodily injury iaslddltig dwih and properly dimagf. Said losifrftocd will bo prbnwy w>d not exco**, wlilt >: nbln&d efoglc limit of juot ten than One Miflfon Gfl,000,ODO) Dollars &r bodily Injury, inaludtrifi dabtb. and property ODiriDge in anyouaoceurr*Aee.

(Ex. A at 7.1)

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THE ACE POLICY

22. The Policy excludes coverage for autos as follows: 2. Exclusions This insurance does not apply to:
***

g. Aircraft, Auto Or Watercraft "Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and "loading or unloading". This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage" involved the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft that is owned or operated by or rented or loaned to any insured. (Ex. Cat2(g)). 23. "Auto" is defined in the Policy as follows: 2. "Auto" means: a. A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or b. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state where it is licensed or principally garaged. (Ex. C at Section V (2)). 24. The vehicle operated by HARRIS at the time of the Claim was a land motor

vehicle that was subject to the financial responsibility laws of Illinois.

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CLAIM
25. VANVA claims that it is entitled to a defense and indemnification for the Claim

under the Policy that it procured from HERTZ pursuant to 7.1 of the Agency Agreement. 26. HERTZ and ACE deny that VANVA is entitled to a defense and

indemnification for the Claim under the Policy procured pursuant to 7.1 of the Agency Agreement because the Claim is excluded from coverage under 2 (g) of the Policy. (Ex. C at 2 (g))27. The issue of whether the Policy obtained in compliance with 7.1 of the Agency

Agreement provides coverage to VANVA for the Claim is a real and justiciable controversy among the parties with respect to their rights and obligations under the Agency Agreement and the Policy.

WHEREFORE, HERTZ and ACE respectfully requests that this Court find and declare as follows: a. that the Policy obtained in compliance with 7.1 of the Agency Agreement excludes coverage for autos operated by VANVA and its employee, HARRIS pursuant to 2 (g) of the Policy; b. that the Policy obtained in compliance with 7.1 of the Agency Agreement does not provide insurance coverage for VANVA or HARRIS for the Claim; c. that the liability protection available to VANVA and HARRIS for the Claim under the Agency Agreement is limited to that liability coverage pursuant to 2.1(c) of the Agency Agreement;

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d.

HERTZ has no duties or obligations to defend and indemnify VANVA or HARRIS above the liability limits in 2.1(c) of the Agency Agreement;

e.

ACE has no duties or obligations to defend and indemnify VANVA or HARRIS for the Claim under the Policy; and

e.

Any other relief that Court deems just and appropriate.

Respectfully submitted, PAPPAS DAVIDSON O'CONNOR & FILDES, PC /s/ Gerald Cleary Attorneys for Hertz Corporation

Attorney for Defendant Hertz Corporation Gerald Cleary Pappas, Davidson, O'Connor & Fildes P.C. 900 West Jackson Boulevard, Six West Chicago, IL 60607 Telephone: 312/421-5960 Fax: 312/421-5310 gcleary@pdoflegal.com