ACE FIRE UNDERWRITERS INSURANCE COMPANY v. SHERATON BURLINGTON HOTEL & CONFERENCE CENTER et al...

8/9/2019 ACE FIRE UNDERWRITERS INSURANCE COMPANY v. SHERATON BURLINGTON HOTEL & CONFERENCE CENTER et al

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AT

LAW

P.O.

BOX257

ROUTE

116

VT

05461

802) 482 2137

IN THE UNITED ST TES DISTRICT COURT

FOR THE DISTRICT OF VERMONT

U.S. O I S T I ~ I T

OU

DISTRICT OF VERi 10

FiLE

2 15 JAN 14 PH 3:

ACE FIRE UNDERWRITERS INSURANCE

COMPANY, as subrogee ofMarlboro School

of

Music and/or Soovin Kim, A.T.I.M.A.

436 Walnut Street

Philadelphia, PA 19106

Plaintiff

v

SHERATON BURLINGTON HOTEL

CONFERENCE CENTER

870 Williston Road

Burlington, VT 05403

and

STARWOOD HOTELS AND RESORTS

WORLDWIDE, INC.

One StarPoint

Stamford, T 06902

and

FCH/SH LEASING II, L.L.C.

545 E. John Carpenter Freeway, Suite 1300

Irving, TX 75062

Defendants

ML ACTION ~

Y

o::PUTY

CLERK

COMPL INT

JURY TRI L DEM NDED

Plaintiff, ACE Fire Underwriters Insurance Company, as subrogee

of

Marlboro School

of

Music and/or Soovin Kim, A.T.I.M.A., by and through its undersigned counsel, hereby

files this Complaint against Defendants Sheraton Burlington Hotel Conference Center,

Starwood Hotels and Resorts Worldwide, Inc., and FCH/SH Leasing II, L.L.C., and in

support thereof avers as follows:

Case 5:15-cv-00007-gwc Document 1 Filed 01/14/15 Page 1 of 6


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P RTIES

1

Plaintiff herein, ACE Fire Underwriters Insurance Company (hereinafter

ACE ), is a corporation duly organized and existing under the laws of the Commonwealth

of

Pennsylvania, with its principal place of business located at 436 Walnut Street, Philadelphia,

Pennsylvania 19106, and at all times material hereto, was engaged in the business of

msurance.

2. Defendant herein, Sheraton Burlington Hotel & Conference Center (hereinafter

Sheraton ), upon information and belief, is the trade name

of

the hotel and conference center

which at all times material hereto operated as the Sheraton Burlington Hotel Conference

Center located at 870 Williston Road, Burlington, VT 05403.

3 Defendant herein, Starwood Hotels and Resorts Worldwide, Inc. (hereinafter

Starwood ), is a corporation duly organized and existing under the laws of the State of

Connecticut, with its principal place ofbusiness located at One StarPoint, Stamford,

Connecticut 06902, and upon information and belief, at all times material hereto operated the

hotel and conference center doing business as and trading as the Sheraton Burlington Hotel

Conference Center located at 870 Williston Road, Burlington, VT 05403.

4 Defendant herein, FCH/SH Leasing II, L.L.C., (hereinafter Felcor ), is a

Delaware corporation, with its principal place

of business located at 545 E John Carpenter

Freeway, Suite 1300, Irving, TX 75062, and upon information and belief, at all times material

hereto, was the owner of the Sheraton Burlington Hotel

&

Conference Center located at 870

Williston Road, Burlington, VT 05403.

JURISDICTION ND VENUE

5

The jurisdiction of this Court is based upon diversity

of

citizenship pursuant to

28 U.S.C. 1332. The matter in controversy exclusive of interest and costs, exceeds the sum

of$75,000. Venue is proper in this judicial district pursuant to

28

U.S.C. 1391(a).

2



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F CTS

6. At all times material hereto, Plaintiff ACE provided insurance coverage to

Marlboro School of Music and/or Soovin Kim, A.T.I.M.A. (hereinafter Soovin Kim ) with

respect to an Antonius Stradivarius Cremonensis Faciebat ANNO 1709, Ex-Hammig Violin

(hereinafter Stradivarius Violin ).

7. At all times material hereto, and upon information and belief, Sheraton,

Starwood and/or Felcor owned, operated, possessed, maintained, repaired, renovated, erected,

supervised, managed and/or controlled the premises trading and doing business as the

Sheraton Burlington Hotel Conference Center located at 870 Williston Road, Burlington,

VT 05403, including the parking lots and sidewalks on, in, and about the Sheraton Burlington

Hotel Conference Center property (hereinafter the hotel ).

8 On

January 14, 2012, Soovin Kim, who was a guest

of

the hotel, parked his car

in the hotel parking lot a short distance from the hotel door. Mr. Kim was walking from his

car to the hotel door while carrying the Stradivarius Violin in its case when he slipped

on

ice

on

the sidewalk. When Soovin Kim slipped

on

the ice, the Stradivarius Violin case struck the

ground, and Soovin Kim's chin hit the case. The Stradivarius Violin was severely damaged.

9. The damage to the violin necessitated repairs in the amount of 89,470 and

caused a loss in value to the violin in excess of$1,000,000.

10. Due to the dangerous condition

of

the hotel parking lot and sidewalk, Soovin

Kim slipped on ice while carrying the Stradivarius Violin.

11. Due to the dangerous condition

of

the hotel parking lot and sidewalk, Soovin

Kim was unable to prevent himself from falling while carrying the Stradivarius Violin.

12. The defective and unreasonably dangerous condition of the hotel parking lot

and sidewalk, inter alia, the icy and slippery conditions, were the proximate cause of Soovin

Kim's slip and fall and the damage to the Stradivarius Violin.

3



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13 Soovin Kim slipped and fell causing damage to the Stradivarius Violin as a

result of the dangerous and defective condition that the hotel knew existed or should have

known existed and which was caused by the negligence, recklessness and carelessness of the

Defendants resulting in damage to the Stradivarius Violin.

14

As a direct result

of

the defective and unreasonably dangerous condition of the

hotel parking lot and sidewalk, inter alia, the icy and slippery conditions of the hotel parking

lot and sidewalk, the Stradivarius Violin was caused to be damaged.

15 The damage to the Stradivarius Violin was the direct result of the negligence,

recklessness and carelessness

of

the Defendants and was due in no manner whatsoever to any

act or failure to act on the part

of

Soovin Kim.

16

The Defendants knew and/or should have known

of

the defective and

unreasonably dangerous conditions

of

the parking lot and sidewalk, inter alia, that the hotel

and sidewalk were icy and slippery, as it existed on its property at the time Soovin Kim fell

and the Stradivarius Violin was damaged.

17

As a direct and proximate result

of

the negligence, recklessness, carelessness

and other activities

of

the Defendants, the Stradivarius Violin was caused to be damaged.

18. Pursuant to the terms and conditions

of

its contract

of

insurance, Plaintiff ACE

has made payments to its insured Soovin Kim in an amount in excess

of

75,000.

19 As a result

of

the aforesaid payments, and pursuant to the contract

of

insurance

and by operation of law, Plaintiff ACE is subrogated to the rights of its insured Soovin Kim

against all parties responsible for the occurrence

of

said damages.

NEGLIGEN E

20.

Plaintiff ACE incorporates by reference the allegations in the paragraphs above

as though fully set forth at length herein.



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21. The Defendants knew or should have known about the defective and

unreasonably dangerous conditions

of

the hotel property in that the hotel parking lot and

sidewalk were icy and slippery, the Defendants did not take reasonable measures to correct

and/or repair the defective and unreasonably dangerous conditions, or to warn those lawfully

on the premises of the defective and unreasonably dangerous conditions which existed

thereon.

22. The Defendants owed Soovin Kim a duty

of

care to keep the premises in

reasonable repair and to maintain the premises in a reasonably safe condition, and the

Defendants were required by law to take reasonable measures to eliminate and/or control the

icy and slippery conditions which caused the parking lot and sideway to be defective and

unreasonably dangerous which were known and/or discoverable.

23. Soovin Kim s fall and the damage to the Stradivarius Violin were caused by

the negligence, carelessness and negligent omissions of Defendants, their agents, servants

and/or employees acting within the course and scope of their employment in:

a) allowing defective and unreasonably dangerous conditions to exist on

the hotel property, including the parking lot and sidewalk;

b) failing to use reasonable care in the maintenance

of

the hotel property,

including the parking lot and sidewalk;

c) failing to repair and/or maintain the parking lot and sidewalk such that

the parking lot and sidewalk could be safely traversable by Soovin Kim

and/or other patrons and/or other invitees;

d) failing to address and/or correct the defective and unreasonably

dangerous conditions existing with respect to the parking lot and

sidewalk;

e) failing to treat and/or correct the icy and slippery conditions existing in

the parking lot and sidewalk;

f)

g)

failing to discover the defective and unreasonably dangerous conditions

of

the parking lot and sidewalk;

failing to warn invitees of the defective and/or unreasonably dangerous

conditions existing with respect to the parking lot and sidewalk;

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(h) failing to act as a reasonable and prudent property owner in the

maintenance and safety of the parking lot and sidewalk;

(i) failing to properly and adequately treat the parking lot and sidewalk for

the icy and slippery conditions;

G otherwise failing to use due care under the circumstances.

24. As a direct and proximate result of the aforesaid conduct of Defendants,

Plaintiff ACE sustained damages in an amount in excess of 75,000.

WHEREFORE, Plaintiff ACE demands judgment against Defendants in an amount in

excess of 75,000, together with interest and the cost of this action, and for such other and

further relief as the Court deems just.

PLAINTIFF DEMANDS TRIAL BY JURY

DATED at Hinesburg, Vermont, this

14th

day

of

January, 2015.

Of

Counsel:

Samuel

J

Pace, Jr., Esq.

Dugan, Brinkmann, Maginnis and Pace

1800 John

F

Kennedy Blvd., Suite 1400

Philadelphia, PA 19103-7421

Tel: 215-563-3500

Cell: 215-778-1604

Email: [email protected]

BY:

J eph D Fall , Esq.

PO Box 257, 10729 Route 116

Hinesburg, Vermont 05461

Tel: 802-482-2137

Fax: 802-482-2138

Email: [email protected]

ATTORNEY FOR PLAINTIFF


ACE FIRE UNDERWRITERS INSURANCE COMPANY v. SHERATON BURLINGTON HOTEL & CONFERENCE CENTER et al...

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Transcript of ACE FIRE UNDERWRITERS INSURANCE COMPANY v. SHERATON BURLINGTON HOTEL & CONFERENCE CENTER et al...