MONTECALVO v. ACE AMERICAN INSURANCE COMPANY petition to compel arbitration

June 10, 2018 | Author: ACELitigationWatch | Category: Arbitration, Jurisdiction, Insurance, Private Law, Social Institutions


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Case 3:14-cv-08109-JAP-LHG Document 1 Filed 12/30/14 Page 1 of 5 PageID: 1BLANK ROME LLP William R. Bennett, III, Esq. The Chrysler Building 405 Lexington Avenue New York, New York 10174-0208 Telephone: (212) 885-5000 Attorneys for Petitioner UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY - NEWARK FRANK MONTECALVO, as owner of the M/Y WASTE KNOT, Civ. Petitioner, and ACE AMERICAN INSURANCE COMPANY, PETITION TO COMPEL ARBITRATION Respondent. Petitioner FRANK MONTECALVO, as Owner of the M/Y WASTE KNOT (“Petitioner”), by its attorneys Blank Rome, LLP, complaining of the above-named Respondent ACE AMERICAN INSURANCE COMPANY (“ACE” or “Respondent”), alleges upon information and belief as follows: NATURE OF THE ACTION 1. This is a proceeding pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., to compel Respondent ACE to arbitrate a dispute arising under a contract of marine insurance, which requires arbitration of any controversy or claim “arising out of or relating to” the policy in accordance with the CPR Institute for Dispute Resolution Rules for Non-Administered Arbitration. 1 141413.00601/7474596v.1 Case 3:14-cv-08109-JAP-LHG Document 1 Filed 12/30/14 Page 2 of 5 PageID: 2 JURISDICTION AND VENUE 2. This action is within the Court’s admiralty and maritime subject matter jurisdiction pursuant to 9 U.S.C. § 1333, and is within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure, because the matter involves a contract of marine insurance. 3. This Court also has subject matter jurisdiction under 28 USC §1331 because the matter involves a federal question under the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”) and The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517, T.I.A.S. No. 6997, 330 U.N.T.S. 38 (1970), implemented by 9 U.S.C. § 201 et seq. (the “New York Convention”). 4. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Respondent ACE is subject to personal jurisdiction in this District and a substantial part of the events giving rise to the claim occurred in this District. THE PARTIES 5. At all material times, Petitioner Frank Montecalvo was and now is a resident of the State of New Jersey and brings this petition as the present owner of the M/Y WASTE KNOT (the “Vessel”). 6. At all material times, Respondent ACE was and now is a corporation duly organized and existing under the laws of the State of Pennsylvania, with its principal place of business in the State of Pennsylvania. FACTS 7. Mr. Montecalvo is the owner of the Vessel, a 2005 56-foot long Carver 560 Voyager called the “WASTE KNOT.” 2 141413.00601/7474596v.1 Case 3:14-cv-08109-JAP-LHG Document 1 Filed 12/30/14 Page 3 of 5 PageID: 3 8. ACE issued one or more written insurance policies to Mr. Montecalvo with respect to the Vessel whereby ACE would insure Mr. Montecalvo against certain losses under the terms of a “Recreational Marine Insurance Yachtsman” Policy for the period May 9, 2012 to May 9, 2013. Said insurance policy bears the policy number Y0677366A (the “Policy”). 9. The Arbitration Clause in the aforementioned Policy provides for the settlement of any and all disputes related to the Policy by arbitration. Specifically, the Arbitration clause reads as follows: ARBITRATION: Any controversy or claim, whether based on contract, tort, statute or other legal or equitable theory . . . arising out of or related to this policy . . . shall be referred to and settled by arbitration in accordance with the then current CPR Institute for Dispute Resolution Rules for Non-Administered Arbitration and this provision. This arbitration shall be governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, implemented at 9 U.S.C. §§201-2-8 . . . The arbitration shall be held in the state appearing in your address contained upon the Declaration Page and in accordance with the following procedure . . . . 10. The Vessel was damaged as a result of Hurricane Sandy in October 2012 during the applicable policy period. 11. On May 25, 2014, after several requests, ACE finally provided Mr. Montecalvo with the Damage Appraisal report prepared by Alcus Marine Technical Services, Inc. (“AMTS”). 12. The AMTS Damage Appraisal represents that AMTS estimates that the cost to repair the Vessel is $270,488.09. 13. Acting as a prudent insured, Mr. Montecalvo retained the services of TMS to perform a damage appraisal. The inspection and subsequent report prepared by TMS estimates the cost to repair the Vessel is $578,675.72. 3 141413.00601/7474596v.1 Case 3:14-cv-08109-JAP-LHG Document 1 Filed 12/30/14 Page 4 of 5 PageID: 4 14. The parties could not agree on the cost of repairs, so by letter dated December 9, 2014, Mr. Montecalvo requested pursuant to the terms and conditions of the Policy that the dispute regarding the cost of repairs be arbitrated. 15. ACE retained counsel and counsel for the parties communicated with each other regarding conducting a joint survey and arbitrating the dispute but no agreement was reached. 16. To date, ACE refuses to arbitrate the dispute. A reasonable time has elapsed since demand to submit to arbitration was made upon ACE. REQUEST FOR RELIEF 17. Petitioner repeats and realleges each and every allegation in paragraphs 1 through 16 as if set forth in full herein. 18. The agreement to arbitrate in the Policy is enforceable by this Court under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., which authorizes this Court, upon this Petition, to enter an Order directing that arbitration proceed in the manner provided for in the arbitration provision of the Policy. Petitioner therefore seeks a declaration that Respondent ACE is obligated to arbitrate in New Jersey and order thereon pursuant to 9 U.S.C. § 4. 19. Petitioner reserves its claim for its reasonable attorneys’ fees and costs incurred in making this Petition, and in seeking an order appointing an arbitrator and an order compelling Respondent ACE to participate in New Jersey arbitration, and granting such other and further relief as may be just in the premises. WHEREFORE, Petitioner Frank Montecalvo, as Owner, of the M/Y WASTE KNOT, prays that in accordance with the provisions of the Federal Arbitration Act, this Honorable Court (i) enter an order appointing an arbitrator; and 4 141413.00601/7474596v.1 Case 3:14-cv-08109-JAP-LHG Document 1 Filed 12/30/14 Page 5 of 5 PageID: 5 (ii) grant the relief requested herein compelling Respondent ACE to arbitrate Petitioner’s claims in accordance with the arbitration provision of ACE’s marine insurance Policy; and (iii) grant Petitioner such other and further relief as the Court may deem just and proper. Dated: New York, New York December 29, 2014 Respectfully submitted, BLANK ROME LLP Attorneys for Petitioner By: /s/ William R. Bennett, III William R. Bennett, III The Chrysler Building 405 Lexington Avenue New York, New York 10174-0208 Telephone: (212) 885-5000 5 141413.00601/7474596v.1
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