IN THE STATE COURT OF DEKALB COUNTY

STATE OF GEORGIA

Jamil Khan, as Assignee of )

6420 Roswell Road Inc. d/b/a Flashers, )
)
Plaintiff, )
) Civil Action File No.
vs. )
)
Landmark American Insurance Company, )
)
Defendant. )

RENEWED COMPLAINT

COMES NOW, Jamil Khan, Plaintiff herein, as Assignee of 6420 Roswell Road, Inc.

d/b/a Flashers (Flashers), through counsel, and files this Renewed Complaint against

Landmark American Insurance Company, and shows this Court as follows:

JURISDICTION

1. Defendant Landmark American Insurance Company (Landmark or

Defendant) is a foreign corporation that is not registered to do business in the State of

Georgia.

2. Landmark sold insurance to Flashers, a business in the State of Georgia, as a

surplus lines carrier pursuant to O.C.G.A. 33-5-1 et seq.

3. Pursuant to the Service of Suit endorsement to Policy Number LHA104579

issued by Landmark to Flashers, Landmark is subject to the jurisdiction of this Court and

venue is proper.

4. Pursuant to the Service of Suit endorsement to Policy Number LHA104579

issued by Landmark to Flashers, Landmark may be served with this Complaint through the

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Senior Claims Officer of RSUI Group, Inc., Peter Bregman, located at 945 East Paces Ferry

Road, Suite 1800, Atlanta, Georgia 30326-1125.

FACTUAL BACKGROUND

5. Flashers is an adult entertainment club, commonly known as a strip club,

located on Roswell Road in Sandy Springs, Georgia.

6. Landmark issued a policy of commercial general liability insurance to

Flashers, Policy Number LHA104579, which was effective from October 15, 2006 to October

15, 2007 (the policy).

7. Landmark timely received full payment from Flashers of the $45,000.00

premium charged for that policy.

8. On November 4, 2006, Plaintiff was visiting Flashers as a customer.

9. After staying at Flashers for about 45 minutes, Plaintiff was asked by a

Flashers employee to leave the club.

10. Outside of the club, Plaintiff was shot six times in and about the chest and

back.

11. Plaintiff remarkably survived, but not before sustainting serious and permanent

injuries, and amassing susbstantial medical bills from several months of hospitalization and

rehabilitation.

12. Flashers reported the claim to Landmark pursuant to the terms of the policy,

and Landmark began an investigation into the claim.

13. Flashers cooperated in all respects with Landmarks investigation of the claim.

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 14. The insurance policy issued by Landmark to Flashers contained coverage for

an assault and battery committed by an employee of Flashers to protect persons and/or

property.

15. On July 12, 2007, Landmark issued a reservation of rights letter to Flashers.

16. On August 10, 2007, Landmark withdrew its reservation of rights and notified

Flashers by letter that Landmark was declining to cover the claim and would refuse to defend

any lawsuit filed against Flashers.

17. On August 16, 2007, Plaintiff filed a lawsuit against Flashers and Charles

Evans, the landlord of Flashers, in the State Court of Fulton County.

18. Paragraphs 33 36 of the lawsuit alleged that Plaintiff was shot by or at the

direction of an employee of Flashers, and that the employee was acting within the course of

Flashers business at the time of the shooting.

19. Flashers notified Landmark of the lawsuit and asked Landmark to provide a

defense to the lawsuit.

20. On October 16, 2007, Landmark again notified Flashers by letter that

Landmark was declining to cover the claim and would refuse to defend any lawsuit filed

against Flashers.

21. On November 5, 2007, Plaintiff, through counsel, sent Landmark a copy of the

Complaint by certified mail.

22. On November 15, 2007, Landmark again notified Flashers by letter that

Landmark was declining to cover the claim and would refuse to defend any lawsuit filed

against Flashers.

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 23. After Landmark refused to provide a defense to the lawsuit, Flashers hired a

lawyer to defend the lawsuit.

24. An Answer to the lawsuit on behalf of Flashers was filed on October 29, 2007.

25. Plaintiff, through counsel, sent written discovery to Flashers that was never

responded to.

26. On September 11, 2008, Judge Bessen of the Fulton County State Court struck

the Answers of both Defendants and entered a default judgment on liability in favor of the

Plaintiff.

27. After conducting a bench trial on damages, Judge Bessen entered a final

Judgment against Flashers and Mr. Evans on April 30, 2009, in the amount of $2,308,684.70.

A copy of the Judgment is attached as Exhibit E.

28. On September 11, 2009, Flashers assigned its interests in any claims it may

have against Landmark to Plaintiff. A copy of the Assignment is attached as Exhibit F.

COUNT I - BREACH OF DUTY TO DEFEND

29. Plaintiff re-alleges and incorporates paragraphs 1 through 28 of this Complaint

as if fully set forth herein.

30. The policy issued by Landmark to Flashers includes a duty to defend the

insured in any lawsuit seeking damages that would be covered by the policy.

31. By refusing to provide Flashers with a defense of the shooting claim,

Defendant Landmark has breached its insurance policy contract with Flashers.

32. Landmarks breach of its duty to defend ultimately led to a judgment being

against its insured in the amount of $2,308,684.80.

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 33. As assignee, Plaintiff therefore requests that the Court enter a Judgment

against Defendant requiring that Landmark cover and pay for all of Plaintiffs losses and

damages stemming from the claim, including the full amount of the April 30, 2009 Judgment

and any accrued interest.

RENEWAL ACTION

34. This is a renewal action of Civil Action File No. 09A-19335-7, originally filed

in the State Court of DeKalb County, Georgia on October 7, 2009, subsequently transferred to

the Superior Court of DeKalb County on December 11, 2011 and given case number 11-CV-

13473, and voluntarily dismissed without prejudice on January 6, 2017.

35. This renewal action is filed within 6 months of the dismissal of the prior

action.

36. The prior action was not a void suit, so that it may be renewed under statute, it

is based upon the same cause of action, and it is not a renewal of a previous action that was

dismissed on its merits so that dismissal would act as a bar to the re-bringing of the petition.

37. All costs of the prior action have been paid pursuant to O.C.G.A. 9-11-41(d).

38. All conditions precedent to filing a renewal action pursuant to O.C.G.A. 9-2-

61 have been met.

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 CONCLUSION

WHEREFORE, Plaintiff respectfully prays for relief from this Court as follows:

(a) That Plaintiff have a trial by jury on all issues;

(b) That under Count I, Plaintiff be awarded damages from Defendant in the

amount $2,308,684.70 plus accrued interest from April 30, 2009 to the date of trial; and

(c) That this Court or jury provide Plaintiff with such other and further relief as it

deems just, equitable and proper.

Respectfully submitted this 27th day of January, 2017.

/s/Glenn Loewenthal
Glenn Loewenthal
Georgia Bar No. 455707
Attorney for Plaintiff

Glenn Loewenthal, P.C.

3300 Windy Ridge Parkway, Suite 710
Atlanta, GA 30339
Ph.: (404) 441-1481
Fax.: (678) 669-2155
E-mail: glenn@glpc-law.com