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 NORTHERN DISTRICT

OF MISSISSIPPI DELTA DIVISION EMJ CORPORATION and WESTCHESTER FIRE INSURANCE COMPANY Plaintiffs, VS. HUDSON SPECIALTY INSURANCE COMPANY and AMERISURE MUTUAL INSURANCE COMPANY, Defendants. * * *
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Cause No. ^ : [JCV 7,7 y j ^ ?-V

ORIGINAL COMPLAINT TO THE HONORABLE 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 sometimes 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, Pennsylvania. 1.3 Defendant Hudson Specialty Insurance Company (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, 29th Floor, New York, New 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 483313586. 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, Mississippi 39201.

2.2

Defendant Amerisure 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 JURISDICTION 3.1 Subject matter jurisdiction 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

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/11 3 of 18 PagelD #: 3 Judgment Act, 28 U.S.C. 2201, et seq. The matter in controversy exceeds, exclusive of interest and costs, the sum of $75,000. 3.2 This case involves an unsettled question of Mississippi law in connection 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 Amerisure 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 District; Hudson and Amerisure 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 Corporation 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

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/11 4 of 18 PagelD #: 4 Agreement") for the execution of work on a JC Penney Project in Southaven, Mississippi ("the Project"). A true and correct copy of the Subcontractor Agreement is attached as Exhibit "A" and incorporated herein by reference as though copied and set forth completely herein. 6.2 John Meeker, an employee 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 Meekers 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 nonconforming and dangerous condition." (Exhibit "B", *\2\). 6.5 The Meekers further allege that "the Defendants are liable under the theories of

negligence, failure to warn, breach of warranty, breach of contract and strict liability in tort." (Exhibit "B", 1J16).

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/11 5 of 18 PagelD #: 5 6.6 The Meekers have demanded judgment of and from the defendants in the

Underlying Litigation in the amount of $25,000,000.00 in actual damages, plus attorney's fees, interest and costs (Exhibit "B", Prayer for Relief/Demand). 6.7 Plaintiffs refer to Exhibit "B" for the alleged facts of Mr. Meeker's accident,

alleged theories of liability against them, and alleged damages. EMJ 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 EMJ Corporation is ongoing and currently

pending in the DeSoto County, Mississippi. A final judgment 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 named have either settled or have been dismissed. 6.9 Contract Steel and EMJ were at all relevant times operating pursuant to the

Subcontractor Agreement executed and in effect prior to John Meeker's alleged April 30, 2005 accident.

VII. CONTRACTUAL OBLIGATIONS

7.1 The Subcontractor Agreement 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 of the Underlying Litigation, and to name EMJ Corporation as an

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/11 6 of 18 PagelD #: 6 additional insured on said policies, pursuant to Paragraph 5(b) of the Subcontractor Agreement which provides: (b) SUBCONTRACTOR shall maintain, at its own cost, such insurance as will protect it and CONTRACTOR from (i) claims under the Workmen's Compensation Law of the State in which the Work is being performed, and (ii) any claim for bodily injury, including death, and property damage, both physical and loss of use, which may arise from the Work or any performance under this Subcontract, whether such Work or performance are by SUBCONTRACTOR or any of his subcontractors or anyone directly or indirectly employed by him, said insurance to be in the limits as set forth in the Contract Documents. SUBCONTRACTOR shall provide such insurance through an insurance company acceptable to CONTRACTOR, and will furnish a Certificate of Insurance to CONTRACTOR. This insurance shall be primary and shall name CONTRACTOR as an additional insured. This Certificate of Insurance must be returned with this agreement, and must provide a thirty (30) day cancellation notice, with notice to CONTRACTOR by SUBCONTRACTOR and the Insurer. . .(Emphasis added). (Exhibit "A," % 5(b)). 7.2 Pursuant to Paragraph 5(c) of the Subcontractor Agreement, 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 provides: 5. (c) SUBCONTRACTOR shall bear the risk of loss with respect to the restoration or repair of any of SUBCONTRACTOR'S Work or material caused or resulting from casualties or risks not insured under any standard casualty or builder's risk policy provided by CONTRACTOR or Owner under 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)).

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/11 7 of 18 PagelD #: 7 VIII. EMJ INSURANCE 8.1 Plaintiff Westchester Fire Insurance Company issued Commercial Umbrella

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 Meekers' claims against EMJ in the Underlying Litigation. 8.2 Pursuant to the ACE 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 ACE Policy contains the following "other insurance" clause which

specifically negates contribution with any other insurance: H. Other Insurance. If there is any other collectible insurance available 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 Condition H does not apply to any insurance policy purchased specifically (and which is so specified 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 Company issued Commercial Umbrella

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

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/11 8 of 18 PagelD #: 8 April 30, 2005, and extends to the Meekers' claims against EMJ in the Underlying Litigation. 9.2 Plaintiff EMJ Corporation is an additional insured on the Hudson Policy pursuant

to Section III - WHO IS AN INSURED, which provides in relevant part: 2. Except with respect to: Any "auto" or "Mobile equipment" registered in your name under any motor vehicle registration law; each of the following is also an insured:
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e.

Any person or organization qualifying as an insured under any policy of "underlying insurance." Coverage afforded such insureds under this policy applies only to injury or damage: (1) (2) Which is covered by this policy; and Which is covered by the "underlying insurance" or would be covered but for the exhaustion of such policy's limits of insurance.

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Any person or organization for whom you have agreed in writing prior to any "occurrence" or "offense" to provide insurance such as is afforded by this policy, but only with respect to operations performed by you or 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 Hudson 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.
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Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/11 9 of 18 PagelD #: 9 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 under this policy are limited as follows: a. As this insurance is excess over any other insurance, whether primary, excess, contingent or on any other basis, except such insurance as is specifically purchased to apply in excess of this policy's Limit of Insurance, we will pay only our share of the amount of "ultimate net loss," if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and under

(2) The total of all deductible and self-insured amounts this or any other insurance. (Exhibit "D," Hudson Policy, Section V - Conditions, f 10). 9.5

Defendant Amerisure Mutual Insurance Company issued Commercial 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 Policy"). The coverage afforded by the Amerisure 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 EMJ Corporation is an additional insured on the Amerisure Policy

through Additional Insured Endorsement, which provides: A. Section II - Who Is An Insured is amended to include as an additional insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/1110 of 18 PagelD #: 10 insured on your policy. Such person or organization is an additional insured only with respect to liability for "bodily injury," "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. 2. Your acts or omissions; or The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured.

(Exhibit "E," Amerisure Policy, Additional Insured Endorsement, Additional Insured Owners, Lessees or Contractors - Automatic Status When Required In Construction Agreement With You). 9.7 Pursuant to the Amerisure 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 under the Amerisure and Hudson Policies is attached as Exhibit "F." 9.9 The Amerisure and Hudson 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 EMJ Corporation on a primary basis. X. BREACH OF CONTRACT 10.1 Plaintiffs incorporate the previous allegations as if fully set forth herein.

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Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/1111 of 18 PagelD #: 11 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 claims are covered occurrences which fall within the scope of coverage provided under the Hudson and Amerisure Policies. 10.3 Pursuant to their respective Policies, Defendants Hudson and Amerisure have an

obligation to defend and indemnify EMJ Corporation in the Underlying Litigation. 10.4 The actions of Defendants Hudson and Amerisure 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 11.2 Plaintiffs incorporate the previous allegations as if fully set forth herein. 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 made under 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

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/1112 of 18 PagelD #: 12 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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Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/1113 of 18 PagelD #: 13 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 Company 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 America, 13 So. 3d 1270 (Miss. 2009). 12.3 Plaintiff Westchester Fire Insurance Company 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 Westchester 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 EMJ Corporation in the Underlying Litigation. 13

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/1114 of 18 PagelD #: 14 XIII. BAD FAITH 13.1 13.2 Plaintiffs incorporate the previous allegations as if fully set forth herein. 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 Amerisure 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 extracontractual damages and consequential damages, including, but not limited to, attorneys' fees, court costs, and other economic losses. XIV. CLAIM FOR DECLARATORY JUDGMENT AND OTHER RELIEF 14.1 14.2 Plaintiffs incorporate the previous allegations as if fully set forth herein. This Honorable 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. 14

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/1115 of 18 PagelD #: 15 14.3 An actual case or controversy 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 Litigation. 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. Therefore, a Declaratory Judgment is necessary, and Plaintiffs respectfully request this Honorable Court declare their rights under the subject policies. 14.4 An award of attorneys' 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 ACE demand a trial by jury. WHEREFORE, PREMISES CONSIDERED, EMJ Corporation and Westchester Fire Insurance Company respectfully pray that Hudson Specialty 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 15

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/1116 of 18 PagelD #: 16 Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company declaring that: (a) EMJ Corporation is an additional insured on the Hudson 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 ACE Policy; (b) EMJ Corporation is an additional insured on the Amerisure 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 ACE Policy; (c) EMJ is entitled to a defense and indemnity under the Hudson and Amerisure Policies for the claims asserted in the Underlying Litigation; (d) The ACE Policy is implicated only after exhaustion of the applicable policy limits of the Hudson and Amerisure 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) Amerisure Mutual Insurance Company 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; 16

Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/1117 of 18 PagelD #: 17 (g) Plaintiff Westchester Fire Insurance Company 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 Westchester Fire Insurance Company 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 EMJ in the Underlying Litigation, and/or reimbursement of such amounts. (i) EMJ Corporation and its insurer Westchester 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 Westchester Fire Insurance Company are entitled to recover and be awarded their Court costs incurred in filing and pursuing this action; (k) EMJ Corporation and its insurer Westchester Fire Insurance Company are entitled to recover and be awarded pre-judgment and post-judgment interest;

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Case: 2:ll-cv-00228-WAP-JMV Doc #: 1 Filed: 11/28/1118 of 18 PagelD #: 18 (1) Hudson Specialty Insurance Company and Amerisure Mutual Insurance Company 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 Mississippi Code 11-1-65; and (m) EMJ Corporation and Westchester Fire Insurance Company 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 28th 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 PLLC 400 East Capitol Street (39201) P. O. Box 650 Jackson, MS 39205 Telephone: (601) 965-1900 Facsimile: (601)965-1901 Email: miicka@watkinseager.com Email: ihowell@watkinseager.com 18