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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION V. MARIO BAKER, INIDIVIDUALLY, AS NEXT FRIEND OF AMARION BAKER AND TAYSHAWN BAKER, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SONIA BAKER, STELLA LOPEZ, AND JESUS CISNEROS. ACE AMERICAN INSURANCE COMPANY, Plaintiff,

Case No.

COMPLAINT FOR DECLARATORY JUDGMENT TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE: COMES NOW, Plaintiff Ace American Insurance Company (Ace) and files its Complaint for Declaratory Judgment against Mario Baker, Individually, as Next Friend of Amarion Baker and Tayshawn Baker, and as Personal Representative of the Estate of Sonia Baker, Stella Lopez, and Jesus Cisneros, pursuant to Federal Rule of Civil Procedure 57, 28 U.S.C. 2201, and Texas Civil Practice and Remedies Code 37.001, et seq., and would show the Court as follows: STATEMENT OF THE CASE 1. This is an action for declaratory relief pursuant to Title 28 U.S.C. 2201, et seq., in

which Ace seeks a declaration concerning the existence and scope of its contractual obligation to defend and indemnify Defendant Cisneros and to pay judgment, if any, against Cisneros and in favor of Mario Baker, Individually, as Next Friend of Amarion Baker and Tayshawn Baker, and as Personal Representative of the estate of Sonia Baker, and Stella Lopez (the underlying plaintiffs) in Cause No. 017 254391 11, styled Mario Baker, Individually, as Next Friend of Amarion Baker and Tayshawn Baker, and as Personal Representative of the Estate of Sonia Baker, and Stella Lopez v. Jesus Cisneros, currently pending in the 17th District Court of Tarrant County, Texas (the Baker suit).

COMPLAINT FOR DECLARATORY JUDGMENT

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THE PARTIES 2. Plaintiff Ace is an insurance company organized and existing under the laws of the

State of Pennsylvania and maintains its principal place of business in Pennsylvania. 3. Mario Baker, individually, as next friend of Amarion Baker and Tayshawn

Baker, and as personal representative of the Estate of Sonia Baker, is an individual who may be served with process at his place of residence, 7628 Harmony Drive, Fort Worth, Texas, 76133. 4. Stella Lopez is an individual who may be served with process at her place of

residence, 7628 Harmony Drive, Fort Worth, Texas, 76133. 5. Jesus Cisneros is an individual who may be served with process at the Neal Prison

Unit, 9055 Spur 591, Amarillo, Texas 79107, TDCJ number 01682006. JURISDICTION AND VENUE 6. This is an action for declaratory judgment pursuant to 28 U.S.C. 2201, et seq.

for the purpose of determining questions of actual controversy between the parties as more fully appears below. Jurisdiction in this action is based upon Title 28 U.S.C. 1332(a), there being complete diverse citizenship between the parties. The amount in controversy exceeds $75,000.00, exclusive of interest and costs. The court therefore has jurisdiction over this dispute. 7. Venue is proper in the Northern District of Texas under 28 U.S.C. 1391 because

all or a substantial part of the events giving rise to the suit occurred within the Northern District of Texas. The Baker suit, as to which Ace seeks a declaration of its obligations, is pending in the 17th District Court, Tarrant County, Texas. As stated above, all Defendants are parties to the Baker suit. Thus, any purported obligation to defend or indemnify Cisneros or pay any judgment in

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favor of the underlying plaintiffs and against Cisneros in the Baker suit falls within the Fort Worth Division of the Northern District of Texas. Therefore, venue is proper in the Fort Worth Division of the Northern District of Texas. NATURE OF ADVERSARY PROCEEDING 8. This is an insurance coverage dispute. By the instant proceeding, Ace seeks a

declaration from this Court that it has no duty or obligation pursuant to the excess policy (defined below) regarding the Baker suit. Specifically, Ace seeks a declaration that it has no duty to defend or indemnify Defendant Cisneros in the Baker suit under the excess policy issued to Enterprise Rent-A-Car Company (Enterprise). Further, Ace seeks a declaration that it does not have any duty or obligation to pay any judgments which may be rendered in favor of the underlying plaintiffs and against Cisneros in the Baker suit. FACTUAL BACKGROUND A. Ace Insurance Policy at Issue 9. Ace issued an excess business auto policy no. SCA H0824134A to Enterprise

for the policy period March 1, 2008 to August 1,2010 (the excess policy). See attached Exhibit A. B. Underlying Lawsuit 10. The Baker suit arises out of an automobile accident that occurred on December

11, 2009. The vehicle driven by Sonia Baker was hit by the vehicle driven by Jesus Cisneros. Sonia Baker was killed as a result of the accident. 11. According to Peace Officer Wanglers Crash Report, Cisneross blood

alcohol analysis showed blood alcohol concentration of .17%, which is more than twice
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the legal limit for intoxication in the state of Texas. 12. On or about August 4, 2011, the Baker suit was filed. Cisneros is the sole

defendant. According to the Baker suit: Jesus Cisneros was driving a Toyota Highlander, west in the 3800 block of Columbus Trail. Speeding down the residential neighborhood street at grossly excessive speeds, Cisneros' vehicle collided with Sonia Baker's PT Cruiser, leaving Sonia Baker dead at the scene. 13. The Baker suit asserts causes of action of negligence and negligence per se,

gross negligence, and exemplary damages. C. Relevant Insurance Provisions 14. Section I - Covered Autos provides that only those autos or the policy exposure

basis identified on the declarations page for which this policy was rated are covered. The excess policy provides coverage for: Any auto provided on a short term rental to an eligible renter(s) of the Named Insured for which an executed written master agreement is in place between a Named Insured and such eligible renter. Such master agreement must specify that the Named Insured will provide Liability Coverage to the eligible renter for the same Limit of Insurance as stated in the Declarations. Eligible renters will be on file with the Named Insureds. 15. The insuring agreement under Section II - Liability Coverage provides: 1. Coverage We will pay the insured for the ultimate net loss in excess of the retained limit shown in the Declarations that the insured legally must pay as damages because of bodily injury or property damage to which this policy applies, caused by an accident and resulting from the ownership, maintenance, or use of a covered auto. This policy does not apply to defense, investigation, settlement, or legal expenses, or prejudgment interest arising out of any accident but we shall have the right and opportunity to assume from the insured the
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defense and control of any claim or suit, including any appeal from a judgment, seeking payment of damages covered under this policy arising out of such accident that we believe likely to exceed the retained limit. In such event we and the insured shall cooperate fully. 16. The excess policy contains the following relevant definitions: Accident includes continuous or repeated exposure to the same condition resulting in bodily injury or property damage. Auto means a land motor vehicle, trailer or semi-trailer designed for travel on public roads but does not include mobile equipment. Bodily injury means bodily injury, sickness or disease sustained by a person including death resulting from any of these. Insured means any person or organization qualifying as an insured in the Who Is An Insured provision of the applicable coverage. Except with respect to the Limit of Insurance, the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or suit is brought Loss means direct and accidental loss or damage. Property damage means damage to or loss of use of tangible property. Ultimate net loss means the total amount the insured is legally obligated to pay as damages for a covered claim or suit either by adjudication or a settlement to which we agree in writing, and includes deductions for recoveries and salvages which have or will be paid. Ultimate Net Loss does not include any of the expenses incurred by the insured or us in connection with defending the claim or suit. 17. Pursuant to endorsement #6, the definition of retained limit is deleted and replaced

with the following: K. The retained limit will be equal to the minimum financial responsibility limit required by state. Retained limit does not include any prejudgment interest, interest that accrues after entry of the judgment, nor any expenses incurred by the insured in the defense of any claim or suit.

Further, the following relevant definitions are added:

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Authorized driver means only those individuals who have a valid driver's license and are either: a. b. named on the rental agreement or are authorized drivers under a written agreement with one or more Named Insureds.

All other drivers are unauthorized, except where required by law. Occupying means in, upon, getting in, on or off the rental vehicle. Master agreement means any written executed agreement entered into by the Named Insured and an Eligible Renter, which specifies that the Named Insured will provide liability coverage to the Eligible Renter. Rental agreement means a signed agreement to rent or lease an auto that is entered into: a. b. within the coverage territory and with a covered date of loss within the policy period.

Rental auto means an auto furnished by the Named Insured under a rental agreement. Eligible renter means authorized renters of a corporate or other account of the named Insured. 18. The Who is An Insured section of the excess policy provides: The

following are insureds:... b. Anyone else while using with your permission a covered auto you own, hire or borrow....

This section is amended as per endorsement 5, which provides that the Who Is An Insured (Section II) is amended to include any person(s) or organization(s) for whom you have agreed in a written contract to provide insurance but only for damages which are covered by this insurance; and which Enterprise has agreed to provide in such contract.

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19. provides:

The Who Is An Insured section is also amended by endorsement 12, which

Section II- Liability Coverage, A - Coverage, 1. - Who Is An Insured, is amended to add Renters and Authorized Drivers as additional insured as long as the following criteria are met: a. the Renter or Authorized Driver is Occupying the Rental Auto while the Rental Auto is being operated by the Renter or Authorized Driver; and coverage has been afforded through and on file with Enterprise Rent-A-Car Company or any Named Insured acting as an auto rental facility, including, but not limited to the entities listed in the SCHEDULE OF NAMED INSUREDS endorsement to this policy; and all terms and conditions of the Rental Agreement and any master agreement governing the terms of rental have been met. The excess policy excludes coverage for any renter or authorized driver for

b.

c.

20.

bodily injury or property damage which results from the use of the rental auto in a manner which is prohibited by the rental agreement. 21. The rental agreement provides that a vehicle shall not be driven by any

person impaired by the use of narcotics, alcohol, intoxicants, or drugs, used with or without a prescription. CAUSE OF ACTION FOR DECLARATORY JUDGMENT 22. Ace is providing Cisneros a defense in the Baker suit subject to a reservation of

rights under the excess policy. Accordingly, a controversy exists regarding the extent, if any, of Ace's duties and obligations in or as to the Baker suit. Ace seeks a declaration from this Court that it has no duty to defend or indemnify Cisneros in or as to the Baker suit and does not have a duty to pay any judgment against Cisneros on the grounds that:
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a.

The Baker suit does not contain allegations falling within the insuring agreement of the excess policy; Cisneros does not qualify as an insured under the terms of the excess policy; Cisneros was operating the vehicle illegally under the influence of alcohol; Cisneros was not authorized to drive the vehicle at the time of the accident; Ace has no duty to defend or indemnify Cisneros in the Baker suit; and Ace has no duty or obligation to pay any judgment against Cisneros and in favor of the underlying plaintiffs in the Baker suit.

b.

c.

d.

e. f.

23.

Ace is entitled to recover its reasonable and necessary attorney's fees and

expenses incurred in the filing and prosecution of this action, pursuant to Texas Civil Practice and Remedies Code 38.001(8). WHEREFORE, PREMISES CONSIDERED, Plaintiff Ace American Insurance Company prays that Defendants Mario Baker, individually, as next friend of Amarion Baker and Tayshawn Baker, and as personal representative of the estate of Sonia Baker, Stella Lopez, and Jesus Cisneros be served and answer herein, and that upon final trial hereof, judgment will be rendered declaring that: 1. Plaintiff Ace American Insurance Company has no duty to defend Jesus Cisneros in Mario Baker, Individually, as Next Friend of Amarion Baker and Tayshown Baker and as Personal Representative of the Estate of Sonia Baker, and Stella Lopez v. Jesus Cisneros, currently pending in the 17th District Court of Tarrant County, Texas; Plaintiff Ace American Insurance Company has no duty to indemnify Jesus Cisneros in Mario Baker, Individually, as Next Friend of Amarion Baker and Tayshawn Baker and as Personal Representative of the Estate of Sonia Baker, and Stella Lopez v. Jesus Cisneros, currently pending in the 17th District Court of
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2.

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Tarrant County, Texas; 3. Plaintiff Ace American Insurance Company has no duty or obligation to pay any judgments which may be rendered in favor of Mario Baker, individually, as next friend of Amarion Baker and Tayshawn Baker, and as personal representative of the estate of Sonia Baker, and Stella Lopez, and against Defendant Jesus Cisneros in Mario Baker, Individually, as Next Friend of Amarion Baker and Tayshawn Baker and as Personal Representative of the Estate of Sonia Baker, and Stella Lopez v. Jesus Cisneros, currently pending in the 17,h District Court of Tarrant County, Texas; and Such other and further relief to which Ace American Insurance Company is entitled or will ever pray. Respectfully submitted, TOUCHSTONE, BERNAYS, JOHNSTON, BEALL, SMITH & STOLLENWERCK, L.L.P. By: /s/ Dawn Woelfel Hansen Dawn Woelfel Hansen (Attorney-in-Charge) State Bar No. 00786361 Barton L. Ridley State Bar No. 00791529 4040 Renaissance Tower 1201 Elm Street Dallas, Texas 75270-2196 Facsimile (214) 741-7548 Telephone (214)741-1166 Dawn.Hansen@tbjbs.com

4.

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