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IN THE CIRCUIT COURT OF BALDWIN COUNTY, ALABAMA * *Plaintiffs,CIVIL ACTION NUMBER*vs. CV-99-792* *** * * * ** * * * Defendants. * COMPLAINT 1.Plaintiffs, Bryan K. Bunten and Lisa Bunten, are over the age of nineteen (19) years of age and are resident citizens of Baldwin County, Alabama.2.Defendant, Southern United Fire Insurance Company (hereinafter SUF ), is a domestic corporation organized under the laws of the State of Alabama, and which does business 2 in Baldwin County, Alabama, and at all material times to this Complaint, was doing business in Baldwin County, Alabama. 3.Defendant, Best Rate Insurance Agency (hereinafter Best Rate ), is a domestic corporation/association organized under the laws of Alabama, and which does business in Baldwin County, Alabama, and at all materials times to this Complaint, was doing business in Baldwin County, Alabama.4.Defendants, John Doe I, John Doe II, John Doe III, John Doe IV, and John Doe V, are those individuals, corporations, insurance companies, proprietorships, partnerships, or other entities whose names and identities are otherwise unknown at this time by the Plaintiffs but who will be added by amendment when ascertained and who participated in the sale, servicing, handling and/or canceling of certain insurance policies issued by Southern United Fire Insurance Company to, on or behalf of Plaintiffs and/or who provided said insurance coverage to Plaintiffs on the 1994 Thunder-Bird vehicle involved herein.5.In or about mid 1996, the Buntens purchased a 1994 Ford Thunder-Bird LX with VIN Number 1FALP6Z42RH165063 from BayView Ford in Daphne, Alabama. The lienholder required insurance on the automobile (drivers) as a condition of the loan. BayView Ford told the Buntens that they had a company (Best Rate) which would come to the dealership to talk to them about insurance. While at the dealership, agents Bob and his wife from Best Rate spoke to the Buntens about purchasing the insurance. The Buntens made application for insurance with SUF, and a policywas issued with Policy Number PA-135064-1. The Buntens purchased full coverage , including liability, medical payments and collision. 3 6.The Buntens financed their insurance premiums through Time Payment Plan as allowed by SUF. The Buntens continuously paid their monthly installments for the insurance coverage up to and including March 5, 1998. 7. In approximately January of 1997, Lisa Bunten s Alabama Drivers License expired. She did not renew her license until late February, 1998. Prior to Lisa Bunten s renewal of the license, the automobile policy with SUF came up for renewal. The policy expired early in January, 1998, and was automatically renewed upon payment of a premium by the Buntens.8. When the policy was renewed, SUF raised the premium amount due to Lisa Buntens license being expired at that time. The company was aware that the license was not current from review of a motor vehicle report it had requested from the State of Alabama. Best Rate forwarded a letter to the Buntens requesting that upon Lisa s renewal of the license, she needed to forward a copy to them. The Buntens paid the increased premium rate because of the license being expired, and kept their insurance with SUF. 9.Also, after renewal of the policy in January of 1998, Bryan K. Bunten purchased a vehicle. He went to Best Rate in Daphne on or around February 20, 1998, to include the newly purchased truck on their policy with SUF. The lady that Bryan K. Bunten spoke with looked at the truck for insurance purposes. While there, the lady informed Mr. Bunten that the truck would be included and there would simply be an increase in the policy premium. Mr. Bunten was not informed as of February 20, 1998 that the SUF policy did not exist or that there was any problem with their insurance coverage with SUF.10. Lisa Bunten renewed her driver s license in late February of 1998. The Buntens February premium was due on or before February 28, without a late fee, and between 4 February 28 and March 5, 1998 with a late fee. On March 5, 1998, Lisa Bunten was involved in a motor vehicle accident in which the 1994 Thunder-Bird was badly damaged; she and her children incurred medical bills; the driver of the other vehicle was possibly injured; and the other drivers vehicle was damaged. Mr. Bunten was to pay the next premium on March 5, the day of the accident. Because he went to see about his wife and children upon learning of the accident, he did not make it to the office of Time Payment Plan to make the premium. Coverage did not expire, however, until 12:01 a.m. on March 6, 1998, making the accident covered. 11.After Lisa Bunten arrived home from the hospital, the Buntens contacted Best Rate and informed them of the accident. Best Rate told the Buntens that they did not have coverage for the accident claim because SUF had canceled their insurance coverage on or about February 11, 1998 due to Lisa not having a current driver s license. The Buntens had received no notice of this cancellation, written or otherwise, from SUF. After this conversation with Best Rate the day of the accident, the Buntens then received a letter from Best Rate dated the day of the accident, March 5, stating that your insurance policy has lapsed as of 2/11/98.12. The Buntens subsequently contacted SUF to make the claim for the accident and to request a defense if they were sued by the driver/owner of the other vehicle. They received a letter dated August 17, 1998 from SUF stating that no coverage was available for the March 5, 1998 accident because SUF had canceled the policy as of February 11, 1998 at 12:01 a.m. SUF denied the claim because of the stated cancellation.13.Plaintiffs allege that the Defendants SUF and Best Rate had in effect said policy of insurance that did provide coverage to Plaintiffs should they become involved in an automobile accident. Such policy promised or contractually agreed to pay certain benefits. 5 14.Plaintiffs allege that said Defendants handled, processed, and/or serviced the claims made under the policy which covered the Plaintiffs and/or it was the job or duty of said Defendants to adjust, service, investigate, and handle the claim on behalf of the Plaintiffs and/or it was said Defendants responsibility to pay the benefits promised or contracted for in said policy of insurance.15. The Defendants stood in fiduciary positions of trust to the Plaintiffs in regard to all matters relating to their insurance policy, and representations stated herein as to the coverage, existence, and continuance of the SUF insurance were false and made by the Defendants with knowledge of their falseness. Relying upon and trusting the representations of Defendants, the Plaintiffs did not pursue other coverage or renew Lisa Bunten s license prior to late February, 1998. They continued to pay premiums for the SUF policy subsequent to its renewal and the addition of Mr. Bunten s newly purchased vehicle in late February, 1998.16.Further, the Defendants while acting in their fiduciary positions of trust, failed to disclose to the Plaintiffs the following material facts concerning their insurance:(a) Upon first purchasing the insurance in approximately May of 1996, the Plaintiffs were not told that failure to keep your driver s licence current or to renew same within a certain period of time after its expiration would be a reason for cancellation of the insurance policy by SUF;(2)Upon renewal of said policy in January of 1998, that failure to have a current driver s license provided cancellation for the policy when in fact said Defendants had knowledge of same at the time of renewal and raised the premium due because of that reason;(3) That failure to have a current driver s license and renew same within a certain time period after receiving notice of the increased rate for their renewal of 1998 would provide a reason for SUF to cancel the policy, and that SUF would indeed cancel the policy;(4) That the policy was actually canceled as of February 11, 1998 given that 6 neither SUF nor Best Rate forwarded correspondence to Plaintiffs prior to March 6, 1998, the day after the accident had occurred, that the insurance had been canceled;(5)That subsequent to February 11, 1998, SUF considered the Buntens not to have coverage and that they were uninsured according to SUF s records; and/or(6) That any accident or claim which would occur subsequent to February 11, 1998 would be uncovered by the said policy with SUF, including claims made by the Plaintiffs themselves and any claims made against the Plaintiffs by third-parties.17. Said failures to disclose were made with the intention to deceive the Plaintiffs and did deceive them to their damage and detriment.18.Plaintiffs allege that Defendants, separately and severally, consciously or deliberately engaged in oppression, fraud, bad faith, conspiracy to commit fraud, negligence, wantonness or malice with regard to the Plaintiffs. Plaintiffs allege that the Defendants have engaged in a patternand practice of such fraudulent conduct or omissions.19. Defendants, with respect to their agents, employees and servants:(1)Knew or should have known of the unfitness of the agents, employees or servants, and employed them or continued to employ them, or used their services without proper instructions with disregard to the rights and financial safety and security of the Plaintiffs;(2)Authorized the wrongful conduct;(3)Ratified the wrongful conduct; and/or(4)The acts of said agents, servants or employees were calculated to and did benefit said Defendants.20. The Plaintiffs have been damaged in that they have lost the premiums paid for such automobile insurance from May, 1996 to January, 1998; they have lost the money they have paid to Time Payment Plan for financing the insurance premiums; they have lost the benefits that 7 they are entitled to under the policy with Defendants; they lost the payment of claims by SUF related to the damage and injuries which occurred to the Plaintiffs and the third-parties involved in the accident of March 5, 1998'; they have lost the costs of defense against claims by the third- parties if those are filed; they have suffered extreme emotional distress and mental anguish; and they have suffered financial hardship. COUNT ONE BREACH OF CONTRACT 21.The Plaintiffs adopt and reallege each and every allegation of paragraphs 1 - 20.22.Defendants had a contract of automobile insurance with the Plaintiffs which required Defendants to pay insurance benefits to Plaintiffs and/or third-parties in the event that Plaintiffs suffered loss, damage, and injury and/or third-parties suffered loss, damage, and injury because of Plaintiffs, in an automobile accident. 23.The Plaintiffs satisfied all conditions precedent to the contract of insurance which existed between Plaintiffs and Defendants. Lisa Bunten was involved in an accident on or about March 5, 1998. Plaintiffs notified the Defendants or their agents or employees of such, and filed a claim for such benefits due under said policy. 24.Defendants have failed and refused to pay the insurance benefits due to the Plaintiffs or third-party(ies) as required by the terms of the contract or contracts of insurance between the Plaintiffs and Defendants.25. As a direct and proximate result of this breach of contract by Defendants, the Plaintiffs have been damaged as stated in paragraph 20.WHEREFORE, the Plaintiffs demand judgment against Defendants for compensatory damages in an amount in excess of the jurisdictional limits of this Court, plus interest and costs. COUNT TWO 8 (BREACH OF CONTRACT) 26.Plaintiffs adopt and reallege paragraphs 1 - 20.27.Defendants had a contract of insurance with the Plaintiffs which required Defendants to pay insurance benefits to a designated third-party or to Plaintiff in the event that Plaintiffs suffered loss, damage, and injury and/or third-party(ies) suffered same because of Plaintiffs in an automobile accident. 28.Under the contract of insurance between Defendants and the Plaintiffs, Defendants had a contractual duty to investigate, in a reasonable and timely manner, the existence of coverage by Plaintiffs and all claims for insurance benefits submitted by the Plaintiffs or third-parties, and to communicate with the Plaintiffs to advise them of any determination on their claim.29. Defendants also had a duty to inform Plaintiffs of the alleged unilateral cancellation of Plaintiffs policy of insurance with Defendants with a certain form and time period so that Plaintiffs could protect, contest same and/or secure other insurance.30.Defendants have failed and refused to investigate, in a reasonable and timely manner as stated and further Defendants failed and refused to communicate with the Plaintiffs as to Defendants cancellation of said policy.31. As a direct and proximate result of this breach of contract by the Defendants, the Plaintiffs have been damaged as stated in paragraph 20.WHEREFORE, the Plaintiffs demand judgment against Defendants for compensatory damages in an amount in excess of the jurisdictional limits of this Court, plus interest and costs. COUNT THREE 9 (WILLFUL MISREPRESENTATION) 32.Plaintiffs adopt and reallege paragraphs 1 - 20.33.Plaintiffs bring this action against the Defendants for willful misrepresentation pursuant to Alabama Code 6-5-100 and 6-5-101 (1975).34. Plaintiffs allege that Defendants made false representations and/or omissions of fact to the Plaintiffs concerning existing material facts as indicated in above paragraphs and that such representations and/or omissions of fact were made with knowledge or belief on the part of the Defendants that said representations and omissions of fact were false. Said representations and/or omissions of fact were made by the Defendants with the intent to induce the Plaintiffs to act and Plaintiffs did in fact rely upon these to their detriment.35.Plaintiffs suffered damages as stated in paragraph 20 as a proximate consequence.WHEREFORE, Plaintiffs demand judgment in excess of the jurisdictional limits of this Court against all Defendants for compensatory damages, punitive damages, interest and costs. COUNT FOUR (RECKLESS MISREPRESENTATION) 36.Plaintiffs adopt and reallege paragraphs 1 - 20.37.Plaintiffs bring this action against Defendants for reckless misrepresentation pursuant to Alabama Code 6-5-100 and 6-5-101 (11975).38. Plaintiffs allege that Defendants made reckless misrepresentations and/or omissions of fact to them concerning existing material facts and that same were made by Defendants recklessly or without sufficient information. Such were further made with the intent 10 to induce the Plaintiffs to act, and Plaintiffs relied on said misrepresentations and/or omissions and acted on same to their detriment.39.Plaintiffs suffered damages as stated in paragraph 20 as a proximate consequence.WHEREFORE, Plaintiffs demand judgment in excess of the jurisdictional limits of this Court against all Defendants for compensatory damages, punitive damages, interest and costs. COUNT FIVE (MISTAKEN MISREPRESENTATION) 40.Plaintiffs adopt and reallege paragraphs 1 - 20.41.Plaintiffs bring this action for mistaken representation pursuant to Alabama Code 6-5-100 and 6-5-101 (1975).42.Plaintiffs allege that the Defendants made innocent or mistaken misrepresentations and/or omissions of fact concerning existing material facts. Such were made by Defendants withthe intent to induce the Plaintiffs to act or continue to act and rely and Plaintiffs did in fact rely and acted on same to their damage and detriment.43.Plaintiffs suffered damages as stated in paragraph 20 as a proximate consequence.WHEREFORE, Plaintiffs demand judgment in excess of the jurisdictional limits of this Court against all defendants for compensatory damages, punitive damages, interest and costs. COUNT SIX(DECEIT) 44.Plaintiffs adopt and reallege paragraphs 1 - 20. 11 45.Plaintiffs bring this action for deceit pursuant to Alabama Code 6-5-103 (1975).46.Plaintiffs allege that the Defendants deceived them by the willful representation of material facts and/or the fraudulent or reckless representation of facts as true, which the Defendants may not have known to be false, with the intent to deceive Plaintiffs, and upon which Plaintiffs acted to their injury.WHEREFORE, Plaintiffs demand judgment in excess of the jurisdictional limits of this Court against all Defendants for compensatory damages, punitive damages, interest and costs. COUNT SEVEN (FRAUDULENT DECEIT) 47.Plaintiffs adopt and reallege paragraphs 1 - 20.48.Plaintiffs bring this action for fraudulent deceit pursuant to Alabama Code 6-5- 104 (1975).49. Plaintiffs allege that the Defendants willfully deceived the Plaintiffs with the intent to induce them to alter their position to their injury or risk.50.Plaintiffs suffered damages as stated in paragraph 20 as a proximate consequence.WHEREFORE, Plaintiffs demand judgment in excess of the jurisdictional limits of this Court against all Defendants for compensatory damages, punitive damages, interest and costs. COUNT EIGHT (BAD FAITH FAILURE TO PAY) 51.Plaintiffs adopt and reallege paragraphs 1- 20.52.A contract of insurance existed between Plaintiffs and Defendants. 12 53.By the terms of the contract of insurance between Plaintiffs and Defendants, Defendants were obligated to pay the claim of the Plaintiffs and/or third-parties for insurance benefits, and/or provide a defense for Plaintiffs against third-parties. Defendants have not fulfilled this obligation and have thus breached said contract.54.Defendants have intentionally failed and refused to pay the claim or claims of the Plaintiffs or cover the claims of third-parties for insurance benefits.55.Defendants have no reasonably legitimate, arguable or debatable reason for their refusal to pay the claim or claims of the Plaintiffs for insurance benefits; that is, no reason open to dispute or question.56. Defendants had and have actual knowledge that no reasonably legitimate, arguable or debatable reason existed for Defendants failure to pay the claim or claims of the Plaintiffs and/or third-parties for insurance benefits.57.Defendants have accordingly acted in bad faith by refusing and failing to pay said insurance benefits.58. As a direct and proximate result of these acts of bad faith by Defendants, the Plaintiffs have been damaged as stated in paragraph 20.WHEREFORE, the Plaintiffs demand judgment against Defendants for compensatory damages and punitive damages in excess of the jurisdictional limits of this Court, plus interest and costs. COUNT NINE (BAD FAITH FAILURE TO INVESTIGATE 59. Plaintiffs adopt and reallege paragraphs 1 - 20. 13 60.A contract or contracts of insurance existed between Plaintiffs and Defendants.61. By the terms of the contract or contracts of insurance between Plaintiffs and Defendants, Defendants were obligated to pay the claim or claims of the Plaintiffs and/or third- parties for insurance benefits. Defendants have not fulfilled this obligation and have thus breached said contract. 62. Defendants have intentionally failed and constructively refused to pay the Plaintiffs claim or claims for insurance benefits.63.Defendants intentionally and/or recklessly failed and refused to investigate the claim or claims of the Plaintiffs for insurance benefits to determine whether there was a legitimate reason for failing and refusing to pay, and refusal and failure to inform Plaintiffs of the alleged unilateral cancellation of Plaintiffs policy with Defendants with a certain form and time period. 64. As a direct and proximate result of this breach of contract by Defendants, the Plaintiffs have been damaged as stated in paragraph 20.WHEREFORE, the Plaintiffs demand judgment against Defendants for compensatory damages and punitive damages in excess of the jurisdictional limits of this Court plus interest ad costs.RICHARD F. PATE & ASSOCIATES, P.C.Attorneys for PlaintiffsPost Office D rawer1308Mobile, Alabama 36633BY:____________________________ 14 Donna Ward BlackWAR034BY:____________________________Richard F. PatePAT020 PLAINTIFFS RESPECTFULLY REQUEST A TRIAL BY JURY AS TO ALL COUNTS HEREIN ________________________________Donna Ward Black 15 Please serve the Defendant, Southern United Fire Insurance Company, by private process server, Victor Houston (433-0300) at the following address: Southern United Fire Insurance Companyc/o Michael G. MylesOne Southern WayMobile, Alabama 36619Please serve the Defendant, Best Rate Insurance Agency, by private process server, Victor Houston (433-0300), at the following address: Best Rate Insurance Agencyc/o Ms. Jamie Smallwood3268 International DriveMobile, Alabama 36606