Case 6:14-cv-00021 Document 1 Filed in TXSD on 03/14/14 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION NICKLOS DRILLING COMPANY, Plaintiff, VS. ACE AMERICAN INSURANCE COMPANY, Defendant.

Civil Action No. 6:14-cv-21

DEFENDANT ACE AMERICAN INSURANCE COMPANYS NOTICE OF REMOVAL Defendant ACE American Insurance Company (ACE) hereby removes this civil action originally filed in the 267th Judicial District Court, Jackson County, Texas to the United States District Court for the Southern District of Texas, Victoria Division, pursuant to 28 U.S.C. 1332, 1441 and 1446. More specifically, 1. On or about February 10, 2014, Plaintiff Nicklos Drilling Company (Nicklos or

Plaintiff) filed Plaintiffs Original Petition in the 267th Judicial District Court, Jackson County, Texas, under Cause No. 14-2-14626 (the State Court Action) against ACE. Plaintiffs Original Petition alleges that ACE owes it a defense and indemnity in an underlying lawsuit for claims brought by Miramar Petroleum, Inc. (Miramar) against Nicklos (Underlying Lawsuit). Nicklos bases its claim on its alleged status as an additional insured under a general liability policy issued by ACE to its first named insured, Miramar. In the State Court Action, Nicklos alleges causes of action against ACE for declaratory judgment, breach of contract, and violation of the Texas Insurance Code. See Plaintiffs Original Petition 13-16 at App-ACE 010-0111.

Attached to ACEs Notice of Removal as Exhibit A is the State Court Actions Docket Sheet with certified copies of the documents filed in the State Court Action. All references to App-ACE are to documents within Exhibit A.
1

Defendant ACE American Insurance Companys Notice of Removal

Page 1

Case 6:14-cv-00021 Document 1 Filed in TXSD on 03/14/14 Page 2 of 4

2.

ACE was served with the State Court Action by service on C.T. Corporation

System on February 14, 2014. On March 7, 2014, ACE filed its Motion to Transfer Venue and Without Waiving and Subject Thereto, Original Answer in the State Court Action (Defendants Motion). See Defendants Motion at App-ACE 020-026. ACE reserves its rights to request a transfer from the Victoria Division to the Houston Division based on its originally filed State Court Motion to Transfer Venue. 3. This Notice of Removal is timely filed within thirty days from service on ACE of

Plaintiffs Original Petition. 28 U.S.C. 1446(b). 4. The amount in controversy, exclusive of interest and costs, is $75,000.00 or more.

The Fifth Circuit has held that the amounts to be considered when ascertaining the amount in controversy when an insurer could be liable for sums under state law are the policy limits, potential attorneys fees, penalties, statutory damages and punitive damages. St. Paul Reins. Co. v. Greenberg, 134 F.1250, 1253 (5th Cir. 1998). Only interest and costs are not included for the purposes of calculating the amount in controversy. Id. In the State Court Action, the Plaintiff alleges that it is currently seeking its attorneys fees from defending itself in the Underlying Lawsuit in the then current amount of less than $50,000.00 and that the indemnity amount in controversy in the Underlying Lawsuit exceeds $1,000,000.00. See Plaintiffs Original Petition 1 at App-ACE 005. Plaintiff also seeks damages for violation of the Texas Prompt Payment Statute. Id. at App-ACE 012. 5. Plaintiff Nicklos was incorporated in Texas and maintains its principal place of

business in Harris County, Texas. See Id. at 2, App-ACE 006. For purposes of diversity jurisdiction, Plaintiff is a citizen of the state of Texas.

Defendant ACE American Insurance Companys Notice of Removal

Page 2

Case 6:14-cv-00021 Document 1 Filed in TXSD on 03/14/14 Page 3 of 4

6.

ACE was incorporated in Pennsylvania and maintains its principal place of

business in Philadelphia County, Pennsylvania. See Id. at 3, App-ACE 006. For purposes of diversity jurisdiction, ACE is a citizen of the state of Pennsylvania. 7. Plaintiff is a citizen of Texas and ACE is a citizen of Pennsylvania. Therefore,

complete diversity exists among the parties and because the amount in controversy is more than $75,000.00, this Court has subject matter jurisdiction based on diversity of citizenship. 8. ACE, pursuant to 28 U.S.C. 1446(a), 1447(b), and 1449, hereby attaches a copy

of the State Court Actions docket sheet dated March 12, 2014, and the State Court Actions pleadings filed and/or served as of the date hereof, to its Notice of Removal. See Id. at AppACE 001. The documents filed in the State Court Action included in Exhibit A attached hereto as App-ACE 001-026 are: a. b. c. d. e. f. 9. 10. Register of Action / Docket dated March 12, 2014 (App-ACE 001-004); Plaintiffs Original Petition dated February 10, 2014 (App-ACE 005-013); Citation dated February 10, 2014 (App-ACE 014-015); State Civil Cover Sheet (per clerk of the court, not in record); Proof of Service on C.T. Corporation dated February 15, 2014 (App-ACE 016-019); and Defendants Motion to Transfer Venue and Without Waiving and Subject Thereto, Original Answer, dated March 7, 2014 (App-ACE 020-026).

Plaintiff has not made a jury demand in the State Court Action or paid a jury fee. Pursuant to Local Rule 81, Defendant attaches hereto as Exhibit B, a list of all

counsel of record, including addresses, telephone numbers and parties represented. WHEREFORE, Defendant ACE American Insurance Company respectfully prays the State Court Action be removed from the 267th Judicial District Court, Jackson County, Texas to

Defendant ACE American Insurance Companys Notice of Removal

Page 3

Case 6:14-cv-00021 Document 1 Filed in TXSD on 03/14/14 Page 4 of 4

the United States District Court for the Southern District of Texas, Victoria Division, pursuant to 28 U.S.C. 1332, 1441 and 1446. Respectfully submitted,

/s/ Alicia G. Curran Alicia G. Curran Attorney-in-Charge State Bar Number 12587500 Southern District Bar Number 19226 acurran@cozen.com Of Counsel: COZEN OCONNOR 1717 Main Street, Suite 3400 Dallas, Texas 75201-7335 Telephone: (214) 462-3000 Facsimile: (214) 462-3299 ATTORNEYS FOR DEFENDANT ACE AMERICAN INSURANCE COMPANY

CERTIFICATE OF SERVICE I hereby certify that on this 14th day of March, 2014, a true and correct copy of the above and foregoing was sent to Plaintiffs counsel, via certified mail, return receipt requested. Roy L. Barnes Jesus Garcia, Jr. Tucker, Barnes, Garcia & De La Garza, P.C. 712 Main Street, Suite 1600 Houston, TX 77002 Attorneys for Plaintiff /s/ Alicia G. Curran Alicia G. Curran

Defendant ACE American Insurance Companys Notice of Removal

Page 4