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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA


ATLANTA DIVISION

ENERGY SYSTEMS GROUP, LLC,
an Indiana Limited Liability
Company, ACE AMERICAN
INSURANCE COMPANY, a
Pennsylvania Corporation,

Plaintiffs,

v.

IVAN WARE & SON, INC.,
a Kentucky Corporation,

Defendant.
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Case No.:


DEMAND FOR JURY TRIAL


COMPLAINT AT LAW


NOW COME Plaintiffs, ENERGY SYSTEMS GROUP, LLC (Energy
Systems) and ACE AMERICAN INSURANCE COMPANY (ACE), by and
through their attorneys and for their Complaint at Law against Defendant, IVAN
WARE & SON, INC. (Ware), state as follows:
THE PARTIES
1. Plaintiff Energy Systems is a corporation organized under the laws of
the State of Indiana with its principal place of business at 4655 Rosebud Lane,
Newburg, IN 47630. Energy Systems is in the business of providing on-site power
generation and infrastructure, among other things.
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2. Plaintiff ACE is a Pennsylvania corporation with its principal place of
business located at 436 Walnut Street, Philadelphia, PA 19106. At all times
relevant hereto, ACE was authorized and licensed to sell insurance services and to
conduct business within the State of Georgia. ACE is a proper Plaintiff in this
action as it has paid claims made by Energy Systems under a contract of insurance
No. N05104634, providing for subrogation of ACE to the rights of its insured.
3. Defendant Ware is a corporation organized under the laws of the State
of Kentucky with its principal place of business in Louisville, Kentucky. Ware is
in the business of selling and servicing commercial boiler equipment.
JURISDICTION
4. Jurisdiction over this controversy is evoked pursuant to 28 U.S.C.
1332(a)(2) as there is no commonality of citizenship among the parties and the
amount in controversy exceeds the sum of $75,000.00, exclusive of interest and
costs.
VENUE
5. Venue is proper in the Northern District of Georgia pursuant to 28
U.S.C. 1391(a)(2) as a substantial part of the events or omissions giving rise to
this Complaint occurred in this District.


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GENERAL ALLEGATIONS
6. This case involves damage to a building, boiler system and steam
delivery system at the Central Utility Plant at Clark Atlanta University in Atlanta,
Georgia. In 2006, Energy Systems was hired to completely renovate and operate
the Central Utility Plant at Clark Atlanta University in Atlanta, Georgia. As part of
that renovation project, Energy Systems installed Cleaver-Brooks Profire NTS
boilers at the Central Utility Plant. After the completion of the project, Energy
Systems hired Ware to provide regular maintenance services and as needed.
7. Pursuant to its Management Agreement with Clark Atlanta
University, Energy Systems was obligated to operate and maintain the Central
Utility Plant. Pursuant to that Management Agreement, Energy Systems was also
obligated to procure and maintain property insurance that covered the boiler
equipment and the building in which such equipment was housed.
8. On December 21, 2012, a technician for Ware was at the Central
Utility Plant replacing a gas valve and tuning a Cleaver-Brooks Profire NTS boiler
installed on site.
9. Following the installation of the gas valve, as the Ware technician was
tuning the boiler, the boiler sustained multiple flame failures. The technician then
made various adjustments to stop the flame failures, and during this tuning process,
the boiler exploded.
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10. The resulting explosion caused extensive damage to the boiler system,
the building in which it was housed and the steam delivery system.
11. At all relevant times ACE was the insurer for Energy Systems
property, including the property at the Central Utility Plant at Clark Atlanta
University, pursuant to insurance Policy Number N05104634.
COUNT I
NEGLIGENCE

12. Plaintiffs repeat and incorporate the allegations set forth in Paragraphs
1 through 11 above as if each were fully and completely set forth herein.
13. At all times relevant, Defendant Ware owed a duty to Energy Systems
to exercise due care and caution in repairing the boiler so as to prevent damage to
the boiler and the building in which it was situated.
14. Notwithstanding the aforesaid duty and in breach thereof, on
December 21, 2012, Defendant Ware, through its agents and employees, in the
course of tuning the above-referenced boiler, negligently allowed excess fuel to
build up within the boiler, resulting in an explosive mixture which was
subsequently ignited, resulting in the above-referenced explosion
15. As a direct and proximate result of Defendant Wares negligence, the
boiler system, building and steam delivery system at the Central Utility Plant at
Clark Atlanta University sustained substantial damage, in excess of $2 million.
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16. ACE has a subrogation interest in recovering its payments made to
Energy Systems and, pursuant to its contract of insurance with Energy Systems,
ACE is hereby asserting any and all rights, claims and interests Energy Systems
may have against any person or entity that may be liable for causing its damages.
ACE is a bona fide subrogee of Energy Systems to the full extent of any payments
it has made and which it will make in the future to Energy Systems arising from
this incident. To date, ACE has paid Energy Systems more than $1 million and
total claim payments are expected to total approximately $2 million.
17. Energy Systems has incurred a deductible loss in the amount of
$100,000 and seeks recovery of this sum herein. In addition, Energy Systems
seeks damages in the sum of $82,834.82 for lost revenue due to loss of steam
caused by damage to steam delivery piping.
WHEREFORE, Plaintiffs ENERGY SYSTEMS GROUP, LLC and ACE
AMERICAN INSURANCE COMPANY respectfully request judgment be entered
in their favor and against Defendant IVAN WARE & SON, INC. in an amount in
excess of $75,000.00 plus costs, pre and post-judgment interest and for such other
and further relief as this Court deems equitable and just.
JURY DEMAND
A trial by jury composed of the maximum number of jurors permitted under
the law is hereby demanded.
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Respectfully submitted,
_/s/Brian T. Moore__________
Brian Thomas Moore
Georgia Bar No. 518505
Drew Eckl & Farnham
Post Office Box 7600
880 W. Peachtree Street
Atlanta, GA 30357
Telephone: (404) 885-6108
Facsimile: (404) 876-0992
Email: bmoore@deflaw.com

Counsel for Plaintiffs ENERGY
SYSTEMS GROUP, LLC and ACE
AMERICAN INSURANCE
COMPANY

JURY DEMAND
A trial by jury composed of the maximum number of jurors permitted under
the law is hereby demanded.


5404124/1
06617-110224





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