Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

NATIONWIDE MUTUAL INSURANCE COMPANY PLAINTIFF

VS. NO. 3:09CV650-HTW-LRA

SUSAN T. RIDGWAY AND HENRY G. FOX DEFENDANTS

AMENDED COMPLAINT FOR DECLARATORY JUDGMENT

Plaintiff Nationwide Mutual Insurance Company (“Nationwide”) hereby files its

Amended Complaint for Declaratory Judgment and asserts as follows:

PARTIES

1.

Nationwide is a foreign corporation incorporated under the laws of the State of Ohio with

its principal place of business in Columbus, Ohio. Nationwide is authorized to do business in the

State of Mississippi.

2.

Susan T. Ridgway is an adult resident citizen of the State of Mississippi who may be

served with process of this Court at 111 Vinca Drive, Madison, Mississippi.

3.

Defendant Henry G. Fox is an adult resident citizen of the State of Mississippi believed to

be residing at 166 Belle Pointe, Madison, Mississippi 39110. Defendant Fox may be served with

process of the court by delivery of a copy of the summons and complaint to him and by delivery

of a copy of the summons and complaint to his conservator Betty Ruth Fox, pursuant to F.R.C.P.

4(g) and M.R.C.P. 4(d)(2)(B).

 Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 2 of 12

JURISDICTION

4.

This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a), as this action is between

citizens of different states, and the amount in controversy, exclusive of interest and cost, exceeds

the sum and value of $75,000.

VENUE

5.

Venue is proper in the Jackson Division of the Southern District of Mississippi pursuant

to 28 U.S.C. § 1391(a), because (1) a defendant resides in Madison County, Mississippi and all

defendants reside in the same state and (2) a substantial part of the events or omissions giving

rise to this action occurred in Madison County, Mississippi.

REQUEST FOR DECLARATORY RELIEF

6.

There is a real, substantial, and justifiable controversy between the parties concerning the

rights and duties of the parties with respect to a contract of insurance at issue in this case.

7.

This is an action for declaratory judgment pursuant to 28 U.S.C. § 2201, for the purpose

of determining questions of actual dispute in controversy between the parties as will be more

fully described herein.

FACTS GIVING RISE TO CONTROVERSY

8.

On March 21, 2009, defendant Susan T. Ridgway (“Ridgway”) was a passenger in a

vehicle driven by her boyfriend Richard T. Jones (“Jones”) when Jones lost control of the vehicle

658153
2
 Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 3 of 12

causing a collision to occur between their vehicle and a vehicle driven by defendant Henry G.

Fox (“Fox”). The investigating officer noted that Jones was driving under the influence, driving

too fast for conditions and failed to keep his vehicle in its proper lane. See State of Mississippi

Uniform Crash Report, Exhibit A. Upon information and belief, Jones was charged with driving

under the influence.

9.

As a result of the collision, defendant Fox suffered bodily injury and other damages.

10.

Upon information and belief, defendant Ridgway was partially unclothed at the time of

the accident and may have been engaged in activity that distracted Jones or otherwise caused him

to lose concentration and control of the vehicle.

11.

At the time of the filing of this Complaint for Declaratory Judgment, no lawsuit has been

filed against Jones and/or Ridgway. However, Fox has retained counsel, and plaintiff has reason

to believe that suit will be filed against Ridgway.

POLICY AT ISSUE

12.

Defendant Ridgway is an insured under a homeowners policy with plaintiff Nationwide,

being policy number 63 23 HO 400407. A certified copy of the policy is attached as Exhibit B

and is incorporated herein by reference. The policy was in effect at the time of the automobile

collision. The policy, under Section II Liability Coverages contains Coverage E for Personal

Liability and Coverage F for Medical Payments To Others. The policy also contains Additional

Liability Coverages as well as a number of exclusions and defined terms.

658153
3
 Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 4 of 12

13.

Coverage E – Personal Liability states as follows:

We will pay damages an insured is legally obligated to pay due

to an occurrence resulting from negligent personal acts or
negligence arising out of the ownership, maintenance or use of
real or personal property. We will provide a defense at our
expense by counsel of our choice. We may investigate and settle
any claim or suit. Our duty to defend a claim or suit ends when
the amount we pay for damages equals our limit of liability.
Damages include prejudgment interest awarded against the
insured.

This coverage is excess over other valid and collectible insurance.

It does not apply to insurance written as excess over the
applicable limits of liability.

14.

Coverage F – Medical Payments To Others states as follows:

We will pay the necessary medical and funeral expenses incurred

within three years after an accident causing bodily injury. This
coverage does not apply to you. It does not apply to regular
residents of your household. It does apply to residence
employees. Payment under this coverage is not an admission of
our or an insured’s liability. This coverage applies as follows:

1. to a person on the insured location with consent of an

insured.

2. to a person off the insured location, if the bodily injury:

a) arises out of a condition in the insured

location,

b) is caused by the activities of an insured,

c) is caused by a residence employee of an

insured,

d) is caused by an animal owned by or in the

care of an insured.

658153
4
 Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 5 of 12

15.

Additional Liability Coverages provides in pertinent part:

We will pay the following in addition to the limits of liability.

These additional coverages are not subject to the Section II
Liability Exclusions.

***

3. Damage to Property of Others. We will pay for property

damage to property of others caused by an insured
regardless of legal liability. We will pay up to $1,000 per
occurrence, but not more than the smallest of the
replacement cost or the cost to repair the damaged property.
We will not pay for property damage:

a) to property covered under Section I.

b) caused intentionally by an insured who is age 13 or

older.

c) to property owned by or rented to an insured, a

tenant of an insured, or a resident in your
household.

d) arising out of:

(1) business pursuits.

(2) an act or omission in connection with a

premises owned, rented, or controlled by an
insured, other than an insured location.

(3) the ownership, maintenance or use of a

motor vehicle, aircraft, or watercraft.

16.

Section II Liability Coverages contains the following pertinent exclusions:

1. Coverage E – Personal Liability and Coverage F – Medical

Payments to Others do not apply to bodily injury or
property damage:

658153
5
 Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 6 of 12

a) caused intentionally by or at the direction of an

insured, including willful acts the result of which
the insured knows or ought to know will follow
from the insured’s conduct.

This exclusion 1.a) does not apply to corporal

punishment of pupils.

b) caused by or resulting from an act or omission

which is criminal in nature and committed by an
insured.

This exclusion 1.b) applies regardless of whether

the insured is actually charged with, or convicted of
a crime.

***

g) arising out of the ownership, maintenance or use of,

or loading or unloading of; entrustment or the
negligent supervision by an insured of, or
statutorily imposed liability on an insured related to
the use of:

(1) an aircraft.

(2) a motor vehicle or all other motorized land

conveyance owned by or operated by, or
rented or loaned to an insured.

This exclusion 1.g)(2) does not apply to:

(a) a vehicle owned by an insured and

designed for recreation off public
roads while on an insured location.

(b) a motorized golf cart while being

operated to or from, or on the
premises of a golf course.

(c) a vehicle not subject to motor

vehicle registration which is:

I) used to serve an insured’s

residence; or

658153
6
 Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 7 of 12

II) designed for assisting the

handicapped.

(d) a vehicle in dead storage on an

insured location. Dead storage
means physically prepared for long
term storage.

(e) a boat, camp, home or utility trailer

not being towed or carried on a
vehicle defined in general Definition
6.a).

(f) bodily injury to any residence

employee arising out of and in the
course of employment by an
insured.

(3) a watercraft owned or operated by, or rented

or loaned to an insured:

(a) if the watercraft is a personal

watercraft powered by an internal
combustion engine and utilizing a
water jet pump or has inboard,
inboard-outdrive or outboard motor
power of more than 50 horsepower.

(b) if it is a sailing vessel, with or

without auxiliary power, 26 feet or
more in overall length.

(c) while rented to others.

(d) while being used to carry persons or

property for a fee.

(e) wile being used without an

insured’s permission.

(f) while being used in an official race

or speed test. This exclusion does
not apply to sailboats.

(g) if it is an airboat, air cushion or

similar type watercraft.

658153
7
 Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 8 of 12

This exclusion 1.g)(3) does not apply:

(1) while the watercraft is stored.

(2) when an insured rents or borrows a

nonowned outboard motor boat for eight (8)
or less consecutive days.

(3) to bodily injury to any residence employee

arising out of and in the course of
employment by an insured.

17.

The policy also contains the following pertinent definitions:

1. “BODILY INJURY” means bodily harm, including

resulting care, sickness or disease, loss of services or
death. Bodily injury does not include emotional distress,
mental anguish, humiliation, mental distress or injury, or
any similar injury unless the direct result of bodily harm.

***

4. “OCCURRENCE” means bodily injury or property

damage resulting from an accident, including continuous
or repeated exposure to the same general condition. The
occurrence must be during the policy period.

5. “INSURED” means you and the following persons if

residents of your household at the residence premises:

a) your relatives;

b) any other person under age 21 and in the care of

you or your relatives;

Insured also means the following with respect to:

c) a person or entity legally responsible for animals or

covered watercraft that are either owned by or in the
custody of an insured. A person or entity using or
having custody of these animals or watercraft in the
course of business, or without permission of the
owner, if not an insured.

658153
8
 Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 9 of 12

d) any person operating, utilizing, or maintaining a

covered vehicle while engaged in your employment
of that of an insured.

THE CONTROVERSIES

18.

As stated above, suit has not been filed against defendant Ridgway. However, plaintiff

believes that suit will be filed against her and is hereby asking that this Court make a

determination on coverage thereby affecting plaintiff’s duty to defend and/or indemnify

defendant Ridgway.

19.

Nationwide’s position is that coverage does not exist, and it, therefore, has no duty to

defend and/or indemnify Ridgway should suit be filed against her. The reasons for Nationwide’s

position are identified below as controversies.

20.

There exists a controversy as to whether Coverage E would provide coverage for

Ridgway if she were sued.

21.

There exists a controversy as to whether Coverage F would provide coverage for

Ridgway if she were sued.

22.

There exists a controversy as to whether Additional Liability Coverages provides

coverage for Ridgway if she were sued.

658153
9
 Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 10 of 12

23.

There exists a controversy as to whether the actions of defendant Ridgway constituted an

“occurrence.”

24.

There exists a controversy as to whether Fox’s damages were caused intentionally by or

at the direction of an insured, including willful acts the result of which the insured knows or

ought to have known would follow from the insured’s conduct.

25.

There exists a controversy as to whether the damages of Fox were caused by or resulting

from an act or omission which is criminal in nature and committed by an insured.

26.

There exists a controversy as to whether the damages of Fox arose out of the ownership,

maintenance or use of a motor vehicle, pursuant to Exclusion G of Section II Liability

Coverages.

27.

There exists a controversy as to whether, under the terms and conditions of the policy,

Nationwide would owe a defense and indemnity to defendant Ridgway were she sued for

damages suffered by Fox resulting from the subject automobile collision.

28.

For these reasons and any such other reasons that may be revealed or may be in existence

in the event suit is filed against Ridgway, Nationwide seeks this Court’s determination as to the

coverage issues outlined herein, and others that may be presented.

658153
10
 Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 11 of 12

WHEREFORE, PREMISES CONSIDERED, Nationwide respectfully requests that this

Court enter an order and judgment declaring the rights and duties of Nationwide under the

aforementioned policy of insurance (Exhibit “B”) as it relates to the conduct of defendant

Ridgway as outlined above. Nationwide further respectfully requests that the Court enter an

order and judgment as follows:

(1) That no coverage exists for defendant Ridgway under the Nationwide

homeowners policy, being number 63 23 HO 400407 for any damages or injury suffered by

defendant Henry G. Fox as a result of or any way related to the automobile collision on March

21, 2009, and thus Nationwide has no duty to defend or indemnify Ridgway for any allegations

or claims that could be stated against her arising out of the aforementioned automobile collision.

(2) That Nationwide would have no liability to defendant Fox for any claims asserted

by him against defendant Ridgway for damages resulting from the aforementioned automobile

collision.

(3) That the Court grant other general relief as the Court deems appropriate and

necessary.

DATED this the 13th day of January 2010.

Respectfully submitted,

NATIONWIDE MUTUAL INSURANCE

COMPANY

s/John D. Brady, MS Bar #9780

658153
11
 Case 3:09-cv-00650-HTW-LRA Document 2 Filed 01/13/10 Page 12 of 12

Of Counsel:

Mitchell, McNutt & Sams

Attorneys at Law
215 Fifth Street North
Post Office Box 1366
Columbus, Mississippi 39703-1366
Phone: (662) 328-2316
Fax: (662) 328-8035

CERTIFICATE OF SERVICE

I, the undersigned, John D. Brady, do hereby certify that I have this day served via U.S.
Mail, postage prepaid, a true and correct copy of the foregoing to:

G. Todd Burwell, Esquire

Latham & Burwell
618 Crescent Boulevard, Suite 200
Ridgeland, MS 39157
Attorney for Defendant Susan T. Ridgway

Crymes G. Pittman, Esquire

Pittman, Germany, Roberts & Welsh, L.L.P.
P. O. Box 22985
Jackson, MS 39225-2985
Attorney for Defendant Henry G. Fox

SO CERTIFIED, this the 13th day of January, 2010.

s/John D. Brady

658153
12