Case 6:12-cv-01185-GKS-TBS Document 1

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FILED
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Petitioner,

2012 AUG - I PM I: I6

v.
THE RETREAT AT lWIN LAKES HOI\4EOWNERS' ASSOCIATION, INC., a Florida Non-Profit Corporation and SYBRINA D. FULTON, as the personal representative of the Estate of Trayvon Martin, deceased; Respondents.

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PETITION FOR DECLARATORY RELIEF Petitioner, Travelers Casualty and Surety Company of America ( Travelers"), by and through its undersigned attorneys, files this Petition for Declaratory Relief and states: FACTS REGARDING JURISDICTION AND VENUE 1. 2. This is an action for Declaratory Relief pursuant to 28 U.S.C. 2201. At all material times, Travelers is and was a Connecticut corporation with
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its principal place of business in Connecticut. 3. Upon information and belief, at all material times, The Retreat at Twin

Lakes Homeowners' Association, Inc. ("The Retreat at Twin Lakes") is and was a Florida non-profit corporation with its principal place of business in Orlando, Florida.

4.

Upon information and belief, at all material times, Sybrina D. Fulton is and

was a Florida citizen and resident of Miami-Dade County, Florida. Therefore, pursuant

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to 28 U.S.C. 1332(c)(2), Respondent Sybrina D. Fulton C'Fulton") is deemed to be a Florida citizen. 5. The amount in controversy exceeds the sum of $75,000 exclusive of

interest, attorneys' fees and costs. This Court has diversity jurisdiction by virtue of 28

u.s.c. 1332.
6. Venue is proper in the Middle District of Florida pursuant to 28 U.S.C.

1391 (a) because at least one Respondent resides within the district, and because a substantial part of the events giving rise to the claim occurred in the district.
GENERAL ALLEGATIONS

7.

On February 26, 2012, while inside the gated community of The Retreat at

Twin Lakes, Trayvon Martin was shot and killed by George Zimmerman, the designated neighborhood watch captain/coordinator for the community. 8. On or about March 30, 2012, Travelers issued a claims-made, Non-Profit

Management And Organization Liability insurance policy, which is a type of directors and officers (D&O) coverage, to The Retreat at Twin Lakes, Policy No. 104713705, effective from March 30, 2012 to March 30, 2013. A copy of the Policy is attached hereto as Exhibit A. 9. After the inception of the claims-made policy, Fulton made a claim for

monetary damages against the Travelers Policy issued to The Retreat at Twin Lakes as a result of the fatal shooting of Martin. 10. The Policy provides coverage under Section I INSURING

AGREEMENT, in pertinent part as follows:

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Liability Coverage (A) 1

The Insurer will pay on behalf of the Insureds Loss up to the available maximum aggregate Limit of Liability set forth in Item 32 of the Declarations which is incurred by the Insureds as the result of any Claim first made against the Insureds during the Policy Period or the Discovery Period, if purchased, for a Wrongful Act.

11.

The Policy contains the following definitions under Section II -

DEFINITIONS, which provides in pertinent part:

J.
Loss means the total amount excess of the applicable Retention which any Insured becomes legally obligated to pay as the result of all Claims first made against any Insured during the Policy Period for Wrongful Acts including, but not limited to, damages {including punitive or exemplary damages where insurable under applicable law), judgments, settlements and Defense Costs. Loss does not include {1) the multiple portion of any multiple damage award, (2) criminal or civil fines or penalties imposed by law, (3) taxes, (4) any amount not indemnified by the Insured Organization for which the Insured is absolved from payment by reason of any covenant, agreement or court order, and {5) matters uninsurable under the law pursuant to which this Policy is construed. 3
Related Wrongful Acts means Wrongful Acts that arise out of, are based on, relate to or are in consequence of, the same facts, circumstances or situations. Wrongful Act means any error, misstatement, misleading statement, act, omission, neglect, or breach of duty committed or attempted, or allegedly committed or attempted, by the Insured Organization or by one or more Insured Persons, individually or collectively, in their respective capacities as such, ....

Q.

S.

12.

The Policy contains the following relevant exclusion:

IV. EXCLUSIONS
The Insurer shall not be liable to make any payment for Loss in connection with any Claim made against any of the Insureds:
1) based upon, arising out of, directly or indirectly resulting
4

1
2

As amended by Endorsement CIRI 70004 (04-00), the "Non-Profit Change Endorsement".

Item 3 provides a $1,000,000 maximum aggregate Limit of Liability for all Claims first made in the Policy Period, inclusive of Defense Costs. As amended by Endorsement CIRI 70004 (04-00), the "Non-Profit Change Endorsement". As amended by Endorsement CIRI 70004 (02-02), the "Amended 81/PD Exclusion Endorsement".

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from, in consequence of, or in any way involving bodily injury, sickness, mental anguish, emotional distress, disease or death of any person, provided that this exclusion shall not apply to allegations of mental anguish or emotional distress if and only to the extent that such allegations are made as part of a Claim for Wrongful Employment Practices.

13.

Travelers is in doubt of its rights under the Policy and, by this Petition,

seeks a declaration of its rights and obligations with respect to the claim and demand made by Fulton upon Travelers and The Retreat at Twin Lakes as a result of the fatal shooting of Martin, and a finding by this Court that under the above-referenced Policy of insurance Travelers has no duty to defend or indemnify The Retreat at Twin Lakes in connection with the Fulton claim because coverage is precluded by the above exclusion. 14. There exists a bona fide actual present and practical need for the

declaration of coverage available under the Policy, and the rights and obligations of Travelers. 15. There exists a present ascertained or ascertainable state of facts or

present controversy as to a state of facts concerning the rights and obligations of Travelers under the Policy. 16. The rights and obligations of Travelers under the Policy are dependant

upon the facts and the law applicable to the facts affecting coverage under the Policy. 17. Travelers and each of the Respondents have an actual, present

controversy in the subject matter described herein. 18. 19. All proper and present interests are before the Court by proper process. All conditions precedent to the initiation and maintenance of this action

have been complied with, have occurred, or have been waived.

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WHEREFORE, Petitioner, Travelers respectfully requests this Court to enter a judgment declaring that: A. B. C. Travelers has no duty to defend The Retreat at Twin Lakes in connection with the Fulton claim and demand. Travelers has no duty to indemnify The Retreat at Twin Lakes in connection with the Fulton claim and demand. Travelers further requests judgment for its costs and disbursements incurred herein and for such other relief as may be warranted. Respectfully submitted,

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LITCHFIELD CAVO LLP Radice Corporate Center 600 Corporate Drive, Suite 600 Fort Lauderdale, FL 33334 Office: (954) 689-3000 Fax: (954) 689-3001 Email: catizone@litchfieldcavo.com Attorneys for Travelers