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Applied Waterproofing Technology, Inc. v. American Safety Indemnity Co.

August 10, 2009

APPLIED WATERPROOFING TECHNOLOGY, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
v.
AMERICAN SAFETY INDEMNITY COMPANY, DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR IMPROPER VENUE AND DENYING AS MOOT DEFENDANT'S MOTION TO STAY

Presently before the Court is Defendant's motion to dismiss the complaint or alternatively to stay the case. (Doc. No. 4). For the reasons set forth herein, Defendant's motion to dismiss is GRANTED and the alternative motion to stay is DENIED as moot.

BACKGROUND

I. The Parties

Applied Waterproofing Technology, Inc. ("AWT"), a California corporation, is a water- proofing contractor with its principal place of business in California. American Safety Indemnity Co. ("ASI"), an Oklahoma corporation, maintains its principal place of business in Georgia.

II. Factual Background

A. The Insurance Contracts

Beginning in December 2007, Defendant ASI issued two commercial general liability insurance policies to Plaintiff AWT. The first contained a policy period of December 7, 2007 through December 7, 2008, and the second contained a policy period of December 7, 2008 to December 7, 2009. The insurance contract includes an endorsement which clearly states across the top "THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY." The endorsement goes on to state:

In consideration of the payment of premium, it is hereby agreed that the following changes are incorporated into the policy.

Section IV--COMMERCIAL GENERAL LIABILITY CONDITIONS is amended to include the following: Choice of Law.

This policy and all additions to, endorsements to, or modifications of the policy shall be interpreted under the laws of the State of Georgia. Consent to Jurisdiction.

By accepting this policy or by presenting a claim which an insured contends is or may be covered under this policy, the Named Insured and any other insured submits themselves to the jurisdiction of the Superior Court of Cobb County, Georgia and agrees that such court shall have jurisdiction and venue for purposes determining all rights and obligations under this agreement.

Any insured expressly consents to the jurisdiction and venue of the Superior Court of Cobb County Georgia for any "suit" brought to interpret or enforce the provisions of this agreement. By contending that there is or may be coverage under this policy, each insured agrees to accept service of process by any legally recognized method available under Georgia law. [Appendix of Exhibits in Support of Motion, Exhibit A, p. 75.]

B. The Maya Litigation

On November 17, 2008, medical center employee Susie Maya allegedly suffered respiratory damage after inhaling a chemical Plaintiff applied while conducting waterproofing work at Ms. Maya's place of employment. Approximately two months later Plaintiff AWT notified Defendant ASI that Ms. Maya had retained counsel and was making a claim against AWT. Defendant sent Plaintiff two reservation of rights letters on February 5, 2009 and February 19, 2009. On February 13, 2009, Ms. Maya and her husband ("the Mayas") filed suit ...


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