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Manila, Branch ______



- versus - Civil Case No. __________

For Specific Performance
with Damages




PLAINTIFF, through counsel and to this Honorable Court,

respectfully avers that:

1) Plaintiff is a domestic corporation organized and existing

under Philippine laws with principal business address at Suite 501 and
502, Metropolitan Tower, 1746 Mabini Street, Malate, Manila; it is
represented herein by its president, Ma. Lourdes M. Austria;

2) Defendant is likewise a domestic corporation organized and

existing under Philippines laws with principal business address at
Yuchengco Building, 484 Quintin Paredes Street, Binondo, Manila
where it may be served with summons and other court processes;

3) Pursuant to its customs brokerage and freight forwarding

business, plaintiff maintains a warehousing facility at 2059 Dr. M.
Carreon Street, Sta. Ana, Manila where goods, merchandise and other

cargoes processed by the company at the customs office are kept and
stored prior to their delivery to its clients;

4) Shortly prior to December 18, 2008, upon being apprised by

plaintiff of its intention to insure itself for any liability it may face
should the goods owned by its clients suffer damage or loss while in
its custody inside its warehouse, defendant sent its authorized
representatives to plaintiffs warehouse who conducted a thorough
inspection of the same as well as made an inventory and appraisal of
the goods stored in the warehouse;

5) On the same occasion, upon written queries made by

defendants representatives, plaintiffs personnel fully disclosed to
them the nature of plaintiffs business as customs broker and freight
forwarder, particularly the fact that the company did not own the
goods in its warehouse; defendants representatives were made fully
aware that the goods being proposed for insurance coverage were only
held in trust by plaintiff and that they belonged to its clients;

6) On December 18, 2008, fully aware that the goods sought to

be insured were only held in trust by plaintiff and that the latters
purpose in seeking insurance coverage was to protect itself from
liability in case the goods it was holding in trust for its clients suffer
damage and loss while in its warehouse, defendant issued to plaintiff
Fire Insurance Policy No. F-0001-200802575 insuring the goods in
plaintiffs warehouse for P20,000,000.00 from December 16, 2008 to
December 16, 2009; for the policy, plaintiff paid defendant premium
in the amount of P62,305.00; defendant led plaintiff to believe that the
insurance policy it proposed and eventually issued to it was best
suited for its requirements; photocopies of the policy and the premium
billing are hereto attached as Annexes A and B;

7) The Fire Insurance Policy issued by defendant carried with it

several endorsements for extended coverage one of which was an
endorsement extending coverage to include loss or damage caused by
flood for which plaintiff paid defendant additional premium in the
amount of P5,000.00; under this endorsement, the term flood was
defined as the entry of water into the premises insured, from without,
due to inundation of land not usually covered by water, (a) by reason
of an extraordinary high tide or (b) following Typhoon, Cyclone,
and/or Windstorm or (c) the bursting or overflowing of rivers,
reservoirs, canals and the like.;

8) When typhoon Ondoy struck on September 26, 2009, no

area in Metro Manila was spared by the rampaging floodwaters
including Sta. Ana, Manila where plaintiffs warehouse was located;
several days after the typhoon, the goods stored in plaintiffs
warehouse remained submerged under several feet of deep floodwater
resulting in either substantial damage to or total loss of the goods;
after an appraisal of the extent of damage wrought by typhoon
Ondoys floodwaters on the goods inside plaintiffs warehouse, it was
determined by plaintiff that the total value of the loss or damage was

9) On November 23, 2009, upon request of defendants

designated adjuster, Cunningham Lindsey, plaintiff submitted to the
latter an Incident Report and a Sworn Statement of Loss indicating in
detail the circumstances of the loss or damage, its cause, the date and
time when it occurred, the exact place where it occurred, the actions
taken by plaintiff, if any, to minimize or prevent it, who witnessed its
occurrence, other factors that might have contributed to it, a
description of specific items damaged or lost, the manner and extent

of the loss or damage and, more significantly, the fact that plaintiff did
not own the goods insured but only held them for safekeeping and
storage for its customers; photocopies of the Incident Report and
Sworn Statement of Loss are hereto attached as Annexes C and D,

10) On December 16, 2009, upon expiration of Fire Insurance

Policy No. F-0001-200802575 under which plaintiff has a pending
claim, defendant issued to plaintiff Fire Insurance Policy No. F-0001-
201000044 insuring from December 16, 2009 to December 16, 2010
another set of goods kept and stored at plaintiffs warehouse for which
plaintiff paid premium in the amount of P117,136.80;

11) It is significant to note that while defendant had been

repeatedly made aware that the goods it insured on December 16,
2008 were goods only held in trust by plaintiff for its clients and the
goods it was insuring on December 16, 2009 were likewise being
held in trust by plaintiff for its clients, the new fire insurance policy
it issued to plaintiff contained identical terms and conditions and the
same endorsements which expressly excluded from its coverage goods
held in trust; in effect, under the two policies issued by defendant to
plaintiff, the goods the former insured were, at the same time and
under the same policies, excluded from coverage;

12) On March 23, 2010, plaintiff, through its lawyer, Atty. Jose
B. Ferrer, made formal demand upon defendant to pay its claim under
Fire Insurance Policy No. F-0001-200802575 in the total amount of
P7,109,061.63; in a letter dated May 19, 2010 addressed to plaintiffs
counsel, defendant denied plaintiffs claim citing, among others, the
ground that the policy it issued expressly excluded from its coverage

goods held in trust by the insured; photocopies of the letters are

hereto attached as Annexes E and F, respectively;

13) On July 16, 2010, plaintiff, this time acting through its
president, Ma. Lourdes M. Austria, wrote defendant a second letter
expressing frustration and disappointment over the denial of its
claim and asking defendant to reconsider its decision; in the same
letter, plaintiff served formal notice upon defendant that it was
cancelling Fire Insurance Policy No. F-0001-201000044 for the
reason that it was the same policy, containing the same terms and
conditions, as its predecessor under which plaintiffs claim was
denied; a photocopy of the letter is hereto attached as Annex G;

14) In a letter dated July 30, 2010, defendant flatly rejected

plaintiffs appeal for reconsideration reiterating the ground that
plaintiff did not have insurable interest on the property insured as
owner on which basis, the defendant said, it accepted the property for
insurance; in the letter, defendant offered to refund the premiums and
charges paid by plaintiff for Fire Insurance Policy No. F-0001-
200802575 and Fire Insurance Policy No. F-0001-201000044;
plaintiff rejected the defendants offer; a photocopy of the letter is
hereto attached as Annex H;

15) On August 11, 2010, plaintiffs counsel made formal and

final demand upon defendant to pay its claim but again the same
proved futile; if only to exhaust all avenues for settling its claim out of
court, plaintiff exerted earnest efforts to have the matter of its claim
resolved by the Insurance Commission but to no avail; photocopies of
plaintiffs August 11, 2010 letter to defendant and August 16, 2011
letter to the Insurance Commission are hereto attached as Annexes I
and J, respectively;

16) Due to defendants warrantless and capricious refusal to pay

plaintiffs plainly valid and just claim, it was constrained to retain the
services of counsel for which it incurred expenses in the amount of
P100,000.00 as attorneys fees and the sum of no less than
P350,000.00 for filing fees and other litigation expenses; plaintiff
also obligated itself to pay its counsel appearance fee in the amount of
P5,000.00 per court appearance;


WHEREFORE, it is respectfully prayed that judgment be

rendered ordering defendant:

a) To pay plaintiff the sum of P7,109,061.63 as actual damages;

b) To pay plaintiff the sum of P100,000.00 as attorneys fee plus

whatever expenses plaintiff incurs for its counsels appearance fees;

c) To pay plaintiff the sum of P350,000.00 as litigation


d) To pay the cost of suit.

Other reliefs just and equitable under the premises are likewise
prayed for.

La Pias City, September 30, 2011.


Counsel for Plaintiff
20 Y. Catral St., BFRV, Las Pias City
PTR No. 10156520J/2-25-11/L.P.
Roll of Attorneys No. 32568
IBP No. 862982/4-8-110/Pasig City
MCLE Exemption No. III-000570
August 11, 2009/ Pasig City


I, MA. LOURDES M. AUSTRIA, of legal age, Filipino and holding office

at Suite 501 and 502, Metropolitan Tower, 1746 Mabini Street, Malate, Manila,
declares under oath that:

1) I am corporate president of plaintiff in the above entitled case; I caused

the preparation of the foregoing petition; and all material allegations therein are
true of my own knowledge;

2) Plaintiff has not commenced any action or filed any claim involving the
same issues in any court, tribunal or quasi-judicial agency and to the best of my
knowledge, no such other action or claim is pending therein;

3) Should I hereafter learn that the same or similar action or claim has
been filed or is pending before any court, tribunal or quasi-judicial agency, I
undertake to report said fact within five (5) days from such knowledge to this
Honorable Court.


SUBSCRIBED AND SWORN to before me this ______ day of

_______________, 2011, affiant exhibiting to me her CTR No. ______________,
issued at _______________, on _______________.

Doc. No. ______

Page No. ______
Book No. ______
Series of 2011