Case 2:19-cv-00118 Document 1 Filed 02/15/19 Page 1 of 61 PageID #: 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

GREENBRIER HOTEL CORPORATION,
THE GREENBRIER SPORTING CLUB,
INC., GREENBRIER SPORTING CLUB
DEVELOPMENT COMPANY, INC., OLD
WHITE CHARITIES, INC., OAKHURST
CLUB LLC, GREENBRIER GOLF AND
TENNIS CLUB CORPORATION,
JUSTICE FAMILY GROUP, LLC, THE
CHESAPEAKE & OHIO TRAVELER,
INC., THE GREENBRIER RESORT &
CLUB MANAGEMENT CO.,
GREENBRIER IA, INC., OLD WHITE
CLUB CORPORATION, AND
GREENBRIER MEDICAL INSTITUTE,
LLC
Plaintiffs,

v.
ACE AMERICAN INSURANCE
COMPANY (CHUBB); ACE BERMUDA
INSURANCE LTD. (CHUBB); ALLIED
WORLD ASSURANCE COMPANY LTD.;
AON CLIENT TREATY (AUM); ARCH
INSURANCE COMPANY; ASPEN
BERMUDA LIMITED; ASPEN
SPECIALTY INSURANCE COMPANY;
UNKNOWN LEAD UNDERWRITER AT
LLOYDS, LONDON-BRIT SYNDICATE;
COLONY INSURANCE COMPANY;
ENDURANCE AMERICAN SPECIALTY
INSURANCE COMPANY; EVANSTON
INSURANCE COMPANY (MARKEL);
IRONSHORE INDEMNITY INC.;
IRONSHORE SPECIALTY INSURANCE
COMPANY; LANDMARK AMERICAN
INSURANCE COMPANY; LIBERTY
MUTUAL FIRE INSURANCE
COMPANY; LIBERTY SURPLUS
INSURANCE CORPORATION;

2:19-cv-00118
Case No. --------COMPLAINT FOR DECLARATORY
AND OTHER RELIEF

 Case 2:19-cv-00118 Document 1 Filed 02/15/19 Page 2 of 61 PageID #: 2

UNKNOWN LEAD UNDERWRITERS OF
LLOYDS SYNDICATE (TBD): LLOYDS
SYNDICATE AFB, LLOYDS SYNDICATE
AMA, LLOYDS SYNDICATE AMT,
LLOYDS SYNDICATE ANV, LLOYDS
SYNDICATE APL, LLOYDS SYNDICATE
ASC, LLOYDS SYNDICATE ATL,
LLOYDS SYNDICATE BAR, LLOYDS
SYNDICATE BRT, LLOYDS SYNDICATE
CHN, LLOYDS SYNDICATE CNP,
LLOYDS SYNDICATE HCC, LLOYDS
SYNDICATE MKL, LLOYDS
SYNDICATE MMX, LLOYDS
SYNDICATE MSP, LLOYDS SYNDICATE
QBE UK, LLOYDS SYNDICATE RNR,
LLOYDS SYNDICATE SJC, LLOYDS
SYNDICATE TAL, LLOYDS SYNDICATE
TMK; GEORGE ATTIPOE; JAMIE
MARTIN; TOM AYTON; SIMON DUKE;
SAMANTHA SHAW; STEPHEN CARR;
JENNIFER STYLE; MATTHEW
NARBETT; MARK LADBROOK;
MAPFRE; NOVAE BERMUDA
UNDERWRITING LTD; OIL CASUALTY
INSURANCE LTD (OCIL); QBE
INSURANCE CORP.; RSUI INDEMNITY
INSURANCE COMPANY; SOMPO
JAPAN INSURANCE CO. OF AMERICA;
STARR SURPLUS LINES INSURANCE
CO; SWISS REINSURANCE AMERICA
CORPORATION; TOKIO MARINE
AMERICA INSURANCE COMPANY,
LTD; XL CATLIN INSURANCE
COMPANY;XLINSURANCE
(BERMUDA) LTD; RESORT HOTEL
ASSOCIATION, INC.; RESORT HOTEL
INSURANCE SERVICES, INC.; RESORT
HOTEL INSURANCE COMPANY;
BANKERSINSURANCE,LLC;AND
VERICLAIM, INC.
Defendants.

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COMPLAINT FOR DECLARATORY AND OTHER RELIEF
Plaintiffs, Greenbrier Hotel Corporation ("Greenbrier Hotel"), The Greenbrier Sporting
Club, Inc. ("Greenbrier Club"), Greenbrier Sporting Club Development Company, Inc.
("Greenbrier Development"), Old White Charities, Inc. ("Old White"), Oakhurst Club LLC
("Oakhurst"), Greenbrier Golf and Tennis Club Corporation ("Greenbrier Golf'), Justice Family
Group, LLC ("Justice Group"), The Chesapeake & Ohio Traveler, Inc. ("Chesapeake"), The
Greenbrier Resort & Club Management Co. ("Greenbrier Management"), Greenbrier IA, Inc.
("Greenbrier IA"), Old White Club Corporation ("Old White Club"), Greenbrier Medical
Institute, LLC ("Greenbrier Medical") ( collectively, Plaintiffs"), by counsel, and for their
Complaint for Declaratory and other Relief, respectfully state as follows:
I.

THE PARTIES, JURISDICTION AND VENUE

A.

The Parties

1.

Plaintiff Greenbrier Hotel is a for-profit corporation, organized and existing under

the laws of the State of West Virginia.
2.

Plaintiff Greenbrier Club is a for-profit corporation, organized and existing under

the laws of the State of West Virginia. 3.

Plaintiff Greenbrier Development is a for-profit corporation, organized and

existing under the laws of the State of Delaware.
4.

Plaintiff Old White is a not-for-profit corporation, organized and existing under

the laws of the State of West Virginia.
5.

Plaintiff Oakhurst is a limited liability company, organized and existing under the

laws of the State of West Virginia.

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6.

Plaintiff Greenbrier Golf is a for-profit corporation, organized and existing under

the laws of the State of West Virginia.
7.

Plaintiff Justice Group is a limited liability company, organized and existing

under the laws of the State of Delaware.
8.

Plaintiff Chesapeake is a for-profit corporation, organized and existing under the

laws of the Commonwealth of Virginia.
9.

Plaintiff Greenbrier Management is a for-profit corporation, organized and

existing under the laws of the Commonwealth of Virginia.
10.

Plaintiff Greenbrier IA is a for-profit corporation, organized and existing under

the laws of the State of Delaware.
11.

Plaintiff Old White Club is a for-profit corporation, organized and existing under

the laws of the State of West Virginia.
12.

Plaintiff Greenbrier Medical is a limited liability company organized and existing

under the laws of the State of West Virginia.
13.

Defendant Ace American Insurance Company (Chubb) is an insurance company

organized and existing under the laws of the Commonwealth of Pennsylvania. Its principal
office is located at 436 Walnut Street, Philadelphia, Pennsylvania 19106, and service is made
upon its registered agent for service of process Paul Bech, 436 Walnut Street, W AO4K,
Philadelphia, Pennsylvania 19106, through the West Virginia Secretary of State
14.

Defendant Ace Bermuda Insurance Ltd. (Chubb) is a Bermuda Corporation. Its

principal office is located at 17 Woodboume Ave., Hamilton HM 08, Bermuda, and service is

4

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made through the West Virginia Secretary of State, State Capitol Building, Charleston, West
Virginia 25305.
15.

Defendant Allied World Assurance Company, Ltd. is an insurance company

organized and existing under the laws of Bermuda. Its principal office is located at 27 Richmond
Road, Pembroke HM 08, Bermuda and service is made through the West Virginia Secretary of
State, State Capitol Building, Charleston, West Virginia 25305.
16.

Defendant Aon Client Treaty (AUM) is a subsidiary of Aon, a United Kingdom

corporation with an office located at Aon Center, 200 East Randolph Street, Chicago, Illinois
60601 and service is made upon Andy Jenn, COO, Aon Client Treaty, 200 East Randolph Street,
Chicago, Illinois 60601 through the West Virginia Secretary of State, State Capitol Building,
Charleston, West Virginia 25305.
17.

Defendant Arch Insurance Company is an insurance company organized and

existing under the laws of the State of Missouri. Its principal office is located at 2345 Grand
Blvd., Attn: M. Gilligan, Kansas City, Missouri 64108, and its West Virginia registered agent
for service of process is Corporation Trust Company, 209 West Washington Street, Charleston,
West Virginia 25302.
18.

Defendant Aspen Bermuda Limited is an insurance company organized and

existing under the laws of Bermuda. Its principal office is located at 141 Front Street, Hamilton
HM 11, Bermuda and service is made through the West Virginia Secretary of State, State Capitol
Building, Charleston, West Virginia 25305.
19.

Defendant Aspen Specialty Insurance Company is a Delaware corporation with an

address of 175 Capital Blvd., Ste. 300, Rocky Hill, Connecticut 06067 and service is made upon

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David Alan Cohen, President, Aspen Specialty Insurance Company, 175 Capital Blvd., Ste. 300,
Rocky Hill, Connecticut 06067 through the West Virginia Secretary of State, State Capitol
Building, Charleston, West Virginia 25305.
20.

Defendant Unknown is Lead Underwriter of Certain Underwriters At Lloyds,

London-Brit Syndicate, Reinsurance Policy Number PD-10136-02 issued to Resort Hotel
Insurance Company ("RHIC") under Policy Number PAR 2106Bl. RHIC has a principal place
of business at 76 St. Paul Street, #500, Burlington, Vermont. The Registered Agent for RHIC is
AON Insurance Managers, Inc., 76 St. Paul Street, #500, Burlington, Vermont 05401 with
service of process through the West Virginia Secretary of State, State Capitol Building,
Charleston, West Virginia 25305.
21.

Defendant Colony Insurance Company is an insurance company organized and

existing under the laws of the Commonwealth of Virginia. Its principal office is located at 8720
Stony Point Parkway, Ste. 400, Richmond, Virginia 23235 and service is made upon any Officer
of Colony Insurance Company, 8720 Stony Point Parkway, Ste. 400, Richmond, Virginia 23235
through the West Virginia Secretary of State, State Capitol Building, Charleston, West Virginia
25305.
22.

Defendant Endurance American Specialty Insurance Company is an insurance

company organized and existing under the laws of the State of Delaware. Its principal office is 4
Manhattanville Road, Purchase, New York 10577 and its registered agent for service of process
is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801.

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23.

Defendant Evanston Insurance Company (n/k/a Markel Insurance Company) is an

insurance company organized and existing under the laws of the State of Illinois. Its principal
office is located at 4600 Cox Road, Glen Allen, Pennsylvania 23060 and its Registered Agent for
service of process is Kathleen Sturgeon, Evanston Insurance Company (n/k/a Markel Insurance
Company), Ten Parkway North, Illinois 60015 through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
24.

Defendant Ironshore Indemnity Inc. is an insurance company organized and

existing under the laws of the State of Minnesota. Its principal office is located at 1010 Dale
Street N, St. Paul, Minnesota 55117 and its West Virginia registered agent for service of process
is Corporation Service Company, 209 West Washington Street, Charleston, West Virginia
25313.
25.

Defendant Ironshore Specialty Insurance Company is an insurance company

organized and existing under the laws of the State of Arizona. Its principal office is located at 75
Federal Street, Boston, Massachusetts 02110 and service of process is made upon its Registered
Agent S. David Childers, Kutak Rock, LLP, 8601 N. Scottsdale Rd., #300, Scottsdale, Arizona
85253 through the West Virginia Secretary of State, State Capitol Building, Charleston, West
Virginia 25305.
26.

Defendant Landmark American Insurance Company is an insurance company

organized and existing under the laws of the State of Oklahoma. Its principal office is located at
945 East Paces Ferry Road, Suite 1800, Atlanta, Georgia 30326 and service of process is made
upon David Ernest Leonard, Chairman and CEO, Landmark American Insurance Company, 945

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East Paces Ferry Road, Suite 1800, Atlanta, Georgia 30326 through the West Virginia Secretary
of State, State Capitol Building, Charleston, West Virginia 25305.
27.

Defendant Liberty Mutual Fire Insurance Company is an insurance company

organized and existing under the laws of the Commonwealth of Massachusetts. Its principal
office is located at 17 5 Berkeley Street, Boston, Massachusetts 02116, and its registered agent
for service of process is Corporation Service Company, 84 State Street, Boston, Massachusetts,
02109 through the West Virginia Secretary of State, State Capitol Building, Charleston, West
Virginia 25305.
28.

Defendant Liberty Surplus Insurance Corporation is an insurance company

organized and existing under the laws of the Commonwealth of Massachusetts. Its principal
office is located at 175 Berkeley Street, Boston, Massachusetts 02116, and service is made upon
its Registered Agent, Corporation Service Company, 84 State Street, Boston, Massachusetts,
02109 through the West Virginia Secretary of State, State Capitol Building, Charleston, West
Virginia 25305.
29.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate 4444 by Sompa

Canopius subscribing to Policy Number CUAD122 issued to Resort Hotel Association, Inc.
("RHA"). RHA has a principal place of business 2100 East Cary Street, Suite 3, Richmond,
Virginia 23223. The Registered Agent for RHA is Gail Waddell, 2100 East Cary Street, Ste. 3,
Richmond, Virginia 23223 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
30.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate AFB subscribing

to Reinsurance Policy Number WB 1600099 issued to RHIC under Policy Number PAR 2106B 1.

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RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
31.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate AMA subscribing

to Reinsurance Policy Number WB1600219 issued to RHIC under Policy Number PAR 2106Bl.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
32.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate AMT subscribing

to Reinsurance Policy Number WB1600199 issued to RHIC under Policy Number PAR 2106Bl.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
33.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate ANV subscribing

to Reinsurance Policy Number WB1600197 issued to RHIC under Policy Number PAR 2106Bl.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.

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34.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate APL subscribing to

Reinsurance Policy Number WB 1600199 issued to RHIC under Policy Number PAR 2106B 1.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
35.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate ASC subscribing

to Reinsurance Policy Number WB 1600099 issued to RHIC under Policy Number PAR 2106B 1.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
36.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate ATL subscribing

to Reinsurance Policy Number WB1600197 issued to RHIC under Policy Number PAR 2106Bl.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
37.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate BAR subscribing

to Reinsurance Policy Number WB1600197 issued to RHIC under Policy Number PAR 2106Bl.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,

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Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
38.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate BRT subscribing

to Reinsurance Policy Number WB 1600126 issued to RHIC under Policy Number PAR 2106B 1.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
39.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate CHN subscribing

to Reinsurance Policy Number WB1600126 issued to RHIC under Policy Number PAR 2106Bl.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
40.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate CNP subscribing

to Reinsurance Policy Number WB 1600126 issued to RHIC under Policy Number PAR 2106B 1.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
41.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate HCC subscribing

to Reinsurance Policy Number WB 1600099 issued to RHIC under Policy Number PAR 2106B 1.

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RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
42.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate MKL subscribing

to Reinsurance Policy Number WB1600126 issued to RHIC under Policy Number PAR 2106Bl.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
43.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate MMX subscribing

to Reinsurance Policy Number WB1600126 issued to RHIC under Policy Number PAR 2106Bl.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
44.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate MSP subscribing

to Reinsurance Policy Number WB1600219 issued to RHIC under Policy Number PAR 2106Bl.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.

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45.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate QBE subscribing

to Reinsurance Policy Number WB1600199 issued to RHIC under Policy Number PAR 2106Bl.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
46.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate RNR subscribing

to Reinsurance Policy Number WB1600099 issued to RHIC under Policy Number PAR 2106Bl.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
47.

Defendant Unknown is Lead Underwriter of Lloyds Syndicate TMK subscribing

to Reinsurance Policy Number WB 1600099 issued to RHIC under Policy Number PAR 2106B 1.
RHIC has a principal place of business at 76 St. Paul Street, #500, Burlington, Vermont. The
Registered Agent for RHIC is AON Insurance Managers, Inc., 76 St. Paul Street, #500,
Burlington, Vermont 05401 with service of process through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
48.

Defendant George Attipoe is Lead Underwriter for Lloyd's Underwriter Syndicate

5151 ENH for Endurance Worldwide Insurance Limited, established under the law of the United
Kingdom, London, England, and bound a portion of Policy number WB 1600085 with Resort
Hotel Association, Inc. ("RHA"). RHA has a principal place of business 2100 East Cary Street,

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Suite 3, Richmond, Virginia 23223. The Registered Agent for RHA is Gail Waddell, 2100 East
Cary Street, Ste. 3, Richmond, Virginia 23223 with service of process through the West Virginia
Secretary of State, State Capitol Building, Charleston, West Virginia 25305.
49.

Defendant Jamie Martin is Lead Underwriter of Lloyd's Underwriter Syndicate

No. 4444 CNP, London, England for Canopius Syndicate 4444/958 (D&F Property), established
under the law of the United Kingdom, London, England, and bound a portion of Policy number
WB 1600085 with Resort Hotel Association, Inc. ("RHA"). RHA has a principal place of
business 2100 East Cary Street, Suite 3, Richmond, Virginia 23223. The Registered Agent for
RHA is Gail Waddell, 2100 East Cary Street, Ste. 3, Richmond, Virginia 23223 with service of
process through the West Virginia Secretary of State, State Capitol Building, Charleston, West
Virginia 25305.
50.

Defendant Tom Ayton is Lead Underwriter of Lloyd's Underwriter Syndicate No.

3000 MKL, London, England for Markel International Limited, established under the law of the
United Kingdom and bound a portion of Policy number WB 1600085 with RHA. RHA has a
principal place of business 2100 East Cary Street, Suite 3, Richmond, Virginia 23223. The
Registered Agent for RHA is Gail Waddell, 2100 East Cary Street, Ste. 3, Richmond, Virginia
23223 with service of process through the West Virginia Secretary of State, State Capitol
Building, Charleston, West Virginia 25305.
51.

Defendant Simon Duke is Lead Underwriter of Lloyd's Underwriter Syndicate

No. 1886, London, England for QBE Property, established under the law of the United Kingdom
and bound a portion of Policy number WB 1600085 with RHA. RHA has a principal place of
business 2100 East Cary Street, Suite 3, Richmond, Virginia 23223. The Registered Agent for

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RHA is Gail Waddell, 2100 East Cary Street, Ste. 3, Richmond, Virginia 23223 with service of
process through the West Virginia Secretary of State, State Capitol Building, Charleston, West
Virginia 25305.
52.

Defendant Samantha Shaw is Lead Underwriter of Lloyd's Syndicate No. 1206,

ATL, established under the law of the United Kingdom and bound a portion of Policy number
WB 1600085 with RHA. RHA has a principal place of business 2100 East Cary Street, Suite 3,
Richmond, Virginia 23223. The Registered Agent for RHA is Gail Waddell, 2100 East Cary
Street, Ste. 3, Richmond, Virginia 23223 with service of process through the West Virginia
Secretary of State, State Capitol Building, Charleston, West Virginia 25305.
53.

Defendant Stephen Carr is Lead Underwriter of ACT7 9536 B0823M71600001

N. A. Property, London, England for Aon Underwriting Managers, established under the law of
the United Kingdom and bound a portion of Policy number WB1600085 and Policy number
WB1600194 with RHA. RHA has a principal place of business 2100 East Cary Street, Suite 3,
Richmond, Virginia 23223. The Registered Agent for RHA is Gail Waddell, 2100 East Cary
Street, Ste. 3, Richmond, Virginia 23223 with service of process through the West Virginia
Secretary of State, State Capitol Building, Charleston, West Virginia 25305.
54.

Defendant Jennifer Style is Lead Underwriter of Lloyd's Underwriter Syndicate

No. 2987 BRIT, London, England for Brit Global Specialty, established under the law of the
United Kingdom and bound a portion of Policy number WB 1600085 with RHA. RHA has a
principal place of business 2100 East Cary Street, Suite 3, Richmond, Virginia 23223. The
Registered Agent for RHA is Gail Waddell, 2100 East Cary Street, Ste. 3, Richmond, Virginia

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23223 with service of process through the West Virginia Secretary of State, State Capitol
Building, Charleston, West Virginia 25305.
55.

Defendant Matthew Narbett is Lead Underwriter of Lloyds Syndicate 2003 XLC

for Catlin Syn 2003/Caitlin Insurance Co (UK) established under the law of the United Kingdom
and bound a portion of Policy number WB 16000194 with RHA. RHA has a principal place of
business 2100 East Cary Street, Suite 3, Richmond, Virginia 23223. The Registered Agent for
RHA is Gail Waddell, 2100 East Cary Street, Ste. 3, Richmond, Virginia 23223 with service of
process through the West Virginia Secretary of State, State Capitol Building, Charleston, West
Virginia 25305.
56.

Defendant Mark Ladbrook is Lead Underwriter of Lloyds Underwriter Syndicate

Bi, 1183 TAL, London, England established under the law of the United Kingdom and bound a
portion of Policy number WB 1600085 with RHA. RHA has a principal place of business 2100
East Cary Street, Suite 3, Richmond, Virginia 23223. The Registered Agent for RHA is Gail
Waddell, 2100 East Cary Street, Ste. 3, Richmond, Virginia 23223 with service of process
through the West Virginia Secretary of State, State Capitol Building, Charleston, West Virginia
25305.
57.

Defendant Mapfre is an insurance company organized and existing under the laws

of the State of California. Its principal office is located at 100 Campus Drive, Florham Park,
New Jersey 07932 and its West Virginia registered agent for service of process is Daniel P.
Olohan, 211 Main Street, Webster, Massachusetts 01570 through the West Virginia Secretary of
State, State Capitol Building, Charleston, West Virginia 25305.

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58.

Defendant Novae Bermuda Underwriting Ltd. is an insurance company organized

and existing under the law of Bermuda. Its principal office is located at Canon's Court, 22
Victoria Street, Hamilton, HM 12, Bermuda and service is made through the West Virginia
Secretary of State, State Capitol Building, Charleston, West Virginia 25305.
59.

Defendant Oil Casualty Insurance Ltd (OCIL) is an insurance company organized

and existing under the law of Bermuda. Its principal office is located at 3 Bermudiana Road,
Hamilton, HM 08, Bermuda and service is made through the West Virginia Secretary of State,
State Capitol Building, Charleston, West Virginia 25305.
60.

Defendant QBE Insurance Corporation is an insurance company organized and

existing under the laws of the Commonwealth of Pennsylvania. Its principal office is 600 N. 2nd
Street, Ste. 401, Harrisburg, Pennsylvania and its West Virginia registered agent for service of
process is any Officer, QBE Insurance, 600 N. 2nd Street, Ste. 401, Harrisburg, Pennsylvania
through the West Virginia Secretary of State, State Capitol Building, Charleston, West Virginia
25305.
61.

Defendant RSUI Indemnity Company is an insurance company organized and

existing under the laws of the State of New Hampshire. Its principal office and its registered
agent for service of process are c/o Nixon Peabody LLP, 889 Elm Street, Manchester, New
Hampshire 03101 through the West Virginia Secretary of State, State Capitol Building,
Charleston, West Virginia 25305.
62.

Defendant Sompo Japan Insurance Co. Of America is an insurance company

organized and existing under the laws of the State of New York. Its principal office is located at
777 Third Avenue, 24th Floor, New York, New York 10017 and its West Virginia registered

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agent for service of process is John Calotta, 11405 North Community House Road, Charlotte,
North Carolina 28277 through the West Virginia Secretary of State, State Capitol Building,
Charleston, West Virginia 25305.
63.

Defendant Starr Surplus Lines Insurance Co. is an insurance company organized

and existing under the laws of the State of Illinois. Its principal office is located at 399 Park
Avenue, New York, New York 10022 and its West Virginia registered agent for service of
process is CT Corporation System, 1627 Quarrier Street, Charleston, West Virginia 25311
through the West Virginia Secretary of State, State Capitol Building, Charleston, West Virginia
25305.
64.

Defendant Swiss Reinsurance America Corporation is an insurance company

organized and existing under the laws of the State of New York. Its principal office is located at
175 King Street, Armonk, New York 10504 and its West Virginia registered agent for service of
process is Lawrence Licitra, Senior Legal Counsel, Swiss Reinsurance America Corporation, 175
King Street, Armonk, New York 10504 through the West Virginia Secretary of State, State
Capitol Building, Charleston, West Virginia 25305.
65.

Defendant Tokio Marine America Insurance Company is an insurance company

organized and existing under the laws of the State ofNew York. Its principal office is located at
1221 Avenue of the Americas, Suite 1500, New York, New York 10020 and its registered agent
for service of process is Edward Sayogo, TMNA Services, LLC, 1221 Avenue of the Americas,
Suite 1500, New York, New York 10020 through the West Virginia Secretary of State, State
Capitol Building, Charleston, West Virginia 25305.

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66.

Defendant XL Catlin Insurance Company is a corporation organized and existing

under the law of Bermuda. XL Catlin Insurance Company's principal office is O'Hara House,
One Bermudiana Road, Hamilton, HM 11, Bermuda and service is made through the West
Virginia Secretary of State, State Capitol Building, Charleston, West Virginia 25305.
67.

Defendant XL Insurance (Bermuda) Ltd is a corporation organized and existing

under the law of Bermuda. XL Insurance (Bermuda) Ltd.'s principal office is located at XL
House, One Bermudiana Road, Hamilton, HM 11, Bermuda and service is made through the
West Virginia Secretary of State, State Capitol Building, Charleston, West Virginia 25305.
68.

Defendant Resort Hotel Association, Inc. ("RHA") is a for-profit corporation,

organized and existing under the laws of the State of Vermont. RHA's principal office is located
at 2100 East Cary Street, Suite 3, Richmond, Virginia 23223. The Registered Agent for RHA is
Gail Waddell, 2100 East Cary Street, Ste. 3, Richmond, Virginia 23223 with service of process
through the West Virginia Secretary of State, State Capitol Building, Charleston, West Virginia
25305.
69.

Defendant Resort Hotel Insurance Services, Inc. ("RHIS") is a for-profit

corporation, organized and existing under the laws of the Commonwealth of Virginia. RHIS'
principal office is located at 2100 East Cary Street, Suite 3, Richmond, Virginia 23223. The
Registered Agent for RHIS is Gail Waddell, 2100 East Cary Street, Ste. 3, Richmond, Virginia
23223 with service of process through the West Virginia Secretary of State, State Capitol
Building, Charleston, West Virginia 25305.
70.

Defendant Resort Hotel Insurance Company ("RHIC") is a for-profit corporation,

organized and existing under the laws of the State of Vermont. RHIC has a principal place of

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business at 76 St. Paul Street, #500, Burlington, Vermont. The Registered Agent for RHIC is
AON Insurance Managers, Inc., 76 St. Paul Street, #500, Burlington, Vermont 05401 with
service of process through the West Virginia Secretary of State, State Capitol Building,
Charleston, West Virginia 25305.
71.

Defendant Bankers Insurance, LLC ("Bankers") is an insurance company

organized under the laws of the State of Florida. Bankers' principal office is located at 11101
Roosevelt Blvd. N, St. Petersburg, Florida, 33733-5707 and its West Virginia registered agent
for service of process is Corporation Service Company, 209 West Washington Street,
Charleston, West Virginia 25302 through the West Virginia Secretary of State, State Capitol
Building, Charleston, West Virginia 25305.
72.

Defendant VeriClaim, Inc. ("Vericlaim") is a corporation organized under the

laws of the State of Delaware. Vericlaim's principal office is located at 1100 Ridgeway Loop
Road, Memphis, Tennessee 38120 and its West Virginia registered agent for service of process is
Corporation Service Company, 209 West Washington Street, Charleston, West Virginia 25302
through the West Virginia Secretary of State, State Capitol Building, Charleston, West Virginia
25305.
73.

RHA is the named insured on numerous policies of insurance that cover

properties owned by one, more or all Plaintiffs in White Sulphur Springs, Greenbrier County,
West Virginia (the "Policies"). By way of policy endorsements, Plaintiffs, with the exception of
Greenbrier Medical, are also named insureds under the Policies. Greenbrier Medical owns
property on the Hotel grounds that is insured under the Policies.

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74.

With the exception of RHA, RHIS, Bankers and Vericlaim, each of the remaining

Defendants ("Defendant Insurers") is an insurer on one or more of the Policies.
75.

RHA and RHIS were agents of Plaintiffs at all times relevant hereto, through

whom the Policies were selected and obtained for Plaintiffs. The Policies covered real and
personal property located in West Virginia. The damages that resulted in the claims at issue
were suffered by Plaintiffs in West Virginia, and the claims that were submitted by Plaintiffs to
RHA and RHIS were formulated and approved in West Virginia. Upon receipt of the claims,
RHA and RHIS determined which of the subject Policies provided the requisite coverage and to
which insurers those claims should be submitted.
76.

At all relevant times, each of the Defendants named herein transacted business in

West Virginia, contracted to supply good or services in West Virginia and/or contracted to insure
persons and property located in West Virginia.
77.

Upon information and belief, RHIC - a Defendant Insurer- is also affiliated with

RHA and RHIS, although their exact relationship is unknown to Plaintiffs.
78.

Bankers was also an agent of Plaintiffs at all times relevant hereto, through whom

the Policies were selected and obtained for Plaintiffs.
79.

Vericlaim is the designated loss adjuster under the Policies.

80.

Each Plaintiff is an entity affiliated with a destination resort, and as described in

detail below each has incurred and continues to incur losses through business interruption, extra
expenses, expenses to reduce loss, soft costs and loss of rental value/ income, as those terms are
believed to be, and ought to be, defined and covered under the Policies. These damages occurred
in West Virginia and arose from acts and omissions in West Virginia.

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81.

Certain of the Policies were issued by non-American companies and include

international arbitration provisions. The other policies are devoid of such provisions.

B.

Jurisdiction And Venue

82.

This Court has jurisdiction over this action pursuant to 9 U.S.C. § 201, et seq.

Specifically, the Policies issued by four Defendant Insurers, which Policies include significant
policy limits, also include international arbitration provisions that arise under the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York
Convention) and adopted by Congress at 9 U.S.C. §§ 201, et seq., which Convention provides
for federal question jurisdiction.
83.

This Court has original jurisdiction over this action pursuant to 28 U.S.C. § 2201,

et seq., in that it seeks a declaratory judgment.
84.

This Court has original jurisdiction over this action pursuant to 28 U.S.C. § 1331,

and supplemental jurisdiction over the state law claims. Jurisdiction is also proper in this Court
pursuant to the West Virginia Long-Arm Statute, W. Va. Code§ 56-3-33, in that at all relevant
times each Defendant transacted business in West Virginia, contracted to supply goods or
services in West Virginia and/or contracted to insure persons and property located in West
Virginia.
85.

Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) in that a

substantial part of the events or omissions giving rise to Plaintiffs' claims occurred in West
Virginia, as detailed in Paragraphs 75, 76, and 80, supra, and in that at all relevant times each
Defendant transacted business in West Virginia, contracted to supply goods or services in West
Virginia and/or contracted to insure persons and property located in West Virginia. Venue is

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proper in this Court pursuant to 9 U.S.C. § 204, which provides that an action may be brought in
any District Court in which, save for an arbitration agreement, the action could have been
brought. In addition, Plaintiffs forwarded premiums for the Policies at issue to RHA from West
Virginia.

II.

FACTUAL BACKGROUND

A.

Plaintiffs' Properties.

86.

Plaintiffs, individually or jointly, own certain properties located in White Sulphur

Springs, Greenbrier County, West Virginia. Specifically, they own the Greenbrier Hotel and
Resort (the "Hotel") and the Greenbrier Sporting Club (the "Club").
87.

The Hotel property includes three championship-level courses - the Old White

Course, the Meadows Course and the Greenbrier Course - as well as the historic Old Hickory
Shafted Oakhurst 9-hole course (the "Old Oakhurst Course"). The Old White Course has been
the host of the Greenbrier Classic (the "Tournament"), a PGA Tour event, since 2010.
88.

The Club property includes a fourth championship-level course - the Sam Snead

Course. At the time of the flood described below, Greenbrier Club was in the process of
constructing a sixth course - the New Oakhurst Course. The New Oakhurst Course is to be a
mountain course located adjacent to the oldest known country club in America and was designed
by four golfing legends - Arnold Palmer, Jack Nicklaus, Gary Player and Lee Trevino. This was
the only time all four golfing legends had come together to design and develop a golf course.
89.

Along with the New Oakhurst Course, Greenbrier Club and Oakhurst had

developed plans for hundreds of luxury home sites both at the Club location and at the Oakhurst
location. Oakhurst also had plans for a ski resort (the New Oakhurst Course, the luxury home

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development at Oakhurst and the ski resort referred to collectively as the "Oakhurst
Development") to attract guests to the Hotel and the Club in the winter months. The ski resort
was planned to be open only to those staying at the Hotel and to members of the Club.
90.

In 2015, Oakhurst and Greenbrier Club initiated an intense marketing campaign to

sell lots at the Club and at the Oakhurst Development. In order to obtain a lot at either site, each
purchaser is or was required to pay a one-time initiation fee of $140,000 and is or was
responsible for annual dues in the approximate amount of $18,000. These lots, even in light of
the related fees, were desirable in large part because of the presence of the Sam Snead Course at
the Club property, the planned Oakhurst Course and the planned ski resort.
91.

As a special incentive, Oakhurst and Greenbrier Club offered the first forty (40)

purchasers oflots a waiver of the initiation fee and a lifetime waiver of the annual dues.
92.

The ski resort was scheduled to open in December 2016, and the Club was also

actively securing $500,000 founding memberships for the Oakhurst Development. The purchase
oflots at the Club and at the Oakhurst Development, the construction of homes on those lots, the
ski resort development and the efforts to secure founding memberships all effectively ceased
after the flood.
B.

The Thousand-Year Flood.

93.

On June 23, 2016, a thousand-year flood event (the "Flood") devastated the

Greenbrier Valley in White Sulphur Springs, West Virginia. Approximately eleven inches of
rain fell in the area within a twelve-hour period.

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94.

Twenty-three fatalities resulted from the Flood, making it one of the deadliest

floods in West Virginia history. Flooding in the town of White Sulphur Springs, where the
Hotel, the Club and the Oakhurst Development are located, was especially catastrophic.
95.

The disaster recovery efforts following the flooding were significant and lasted

for several months. Some of the hardest-hit areas were low-lying areas in White Sulphur Springs
where many of Plaintiffs' employees live. Homes were swept away, and people were displaced.
96.

Plaintiffs employ over 1,600 people who live in and around the devastated

communities, and their immediate focus after the Flood was on the well-being of the community.
The Hotel opened immediately following the Flood in order to house displaced members of the
community free-of-charge. Plaintiffs' primary goal at that time was to get the properties reopened so that Plaintiffs' employees could get to their jobs and their paychecks. In addition to
expending time and energy getting the properties re-opened, Greenbrier Hotel and members of
the Greenbrier Club raised millions of dollars to help the community recover. Plaintiffs are
proud of the role they played in the inspiring story of the aftermath of the Flood.

C.

The Damage To The Hotel.

97.

The Hotel is 240 years old and is an historic landmark. Located in the Allegheny

Mountains of West Virginia, it is a destination resort.
98.

The Hotel and surrounding buildings were severely damaged by the excessive

rainfall and resulting Flood. By way of representative examples, but by no means limitation:
a.

The casino at the Hotel was partially flooded.

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b.

Colonial Hall, which houses a ballroom and conference center, sustained
significant roof and structural damage. There is also now a concern that
mold has or may appear.

c.

The brand-new chapel was flooded by six feet of water.

d.

The tennis stadium was flooded by twenty-five feet of water.

e.

The golf academy was completely destroyed.

f.

The golf equipment buildings were devastated.

g.

Roof breaks in the hotel caused water and other damage to guest rooms,
hallways and furniture.

99.

In addition to the physical damage, the Hotel also suffered economic damage

from the loss of hotel guest stay revenue, revenue from the operation of the Greenbrier,
Meadows, Old Oakhurst and Old White Courses, revenue associated with the cancellation of the
Tournament in 2016 and, as described below, the resulting punitive decision by the PGA to
move the Tournament to the early fall starting in 2019 and thereafter. This action, prompted by
the cancellation of the 2016 Tournament which was necessitated by the Flood, made the
Tournament, including related Hotel stays, much less lucrative for Plaintiffs, and in particular for
Greenbrier Hotel.

D.

The Damage To The Club And The Oak.burst Development.
1.

100.

The Club.

The Sam Snead Course located on the Club property was partially destroyed by

the Flood and remained closed because of the damage for one year. To date, Greenbrier Club
has spent over $5 million in rebuilding the Sam Snead Course.

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101.

The loss of the Sam Snead Course has of course also resulted in lost revenues and

has had a detrimental effect on the efforts of the Greenbrier Club and Oakhurst to sell the
residential lots and to acquire the related initiation fees and annual dues, all as described above.
2.

102.

The Oakhurst Development.

The ability to market and sell lots at the Oakhurst Development has likewise been

nearly eradicated because of the Flood. The construction of the New Oakhurst Course and the
ski facility, and the existence of the Sam Snead Course, were key selling points for lots at the
Oakhurst Development. Those selling points have now been destroyed, or severely damaged,
because of Defendant Insurers' bad faith failure and refusal to pay Plaintiffs' claims related to
those Courses and the ski resort.
103.

Plaintiffs' damages are ongoing and will continue well beyond the point in time

that the New Oakhurst Course is constructed and opened, and the ski resort is constructed and
opened. Even after these events take place, Plaintiffs - and in particular Greenbrier Club and
Oakhurst - will most likely continue to experience difficulties in selling lots.
E.

The Damage To The Golf Courses.
1.

104.

The Meadows, Greenbrier, Sam Snead, Old Oakhurst and New
Oakhurst Courses.

The Sam Snead Course and the Meadows Course sustained heavy damage as a

result of the Flood. The remediation and restoration costs were in the millions of dollars. The
Greenbrier Course, which sustained the least amount of damage, was able to be opened in April
2017, with a limited number of playable holes. Work on the Sam Snead Course was completed,
and the course opened in May of 2017, and the Meadows Course, which was completely
destroyed and rebuilt was reopened in September 2017. The Old Oakhurst Course was
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substantially damaged and has yet to be reopened. The losses sustained because of the extensive
amounts of time these courses were closed were significant.
105.

As described above, development of the New Oakhurst Course, which was

commenced prior to the Flood, has now completely ceased, and Plaintiffs continue to suffer
damage and losses as a result of that course remaining incomplete.
2.
106.

The Old White Course.

The Old White Course also suffered significant damage as a result of the Flood.

The damage was so severe that the Tournament, which is held at the Old White Course,
scheduled to take place over the 2016 Fourth of July holiday, had to be cancelled.
107.

The Flood resulted in major media coverage, due to the Tournament being

cancelled and also because of phone video of the damage to the Hotel, the Club and the Oakhurst
Development captured by professional golfer Bubba Watson, who owns property at the Oakhurst
Development.
108.

Greenbrier Hotel spends millions of dollars every year to host the Tournament.

The first two days of the Tournament are televised on the Golf Channel and the weekend rounds
are televised nationally on CBS. The exposure received by the Hotel from the Tournament is
very significant, and the Tournament is the marquee event for the Hotel from a marketing
perspective.
109.

Prior to the Tournament scheduled for July 2016, Greenbrier Hotel had paid the

required title sponsorship fee to PGA of America in the amount of nearly $10 million.
Greenbrier Hotel had also secured $5+ million in sponsorship fees from supporting individuals
and businesses for the 2016 Tournament.

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110.

Following the Flood and the cancellation of the 2016 Tournament, there was

significant uncertainty regarding whether the Old White Course could be repaired and ready for
the 2017 Tournament. Because of this uncertainty, Greenbrier Hotel was concerned about
maintaining its sponsorship base and about its ability to secure revenue for the 2017 and future
Tournaments.
111.

As a show of good faith and good will, and as a result of these concerns,

Greenbrier Hotel allowed the 2016 sponsors who had already paid their sponsorship fees for the
2016 Tournament to "roll over" those fees to the 2017 Tournament.
112.

In March and June of 2016, Greenbrier Hotel had paid to the PGA of America the

required $9.7 million title sponsorship fee for the 2016 Tournament. Because the Tournament
was cancelled, the PGA eventually refunded $3.6 million of this amount, but the remainder$6.1 million - was not refunded and was not paid to Greenbrier Hotel by Defendant Insurers.
113.

Another consequence of the Flood, referenced briefly above, was the change in

the date of the Tournament. In 2012, Greenbrier Hotel executed an agreement with PGA of
America pursuant to which Greenbrier Hotel would host the Tournament every year through
2021, with annual title sponsorship fees paid by Greenbrier Hotel that increased by 5% each
year. Because of the Flood and the failure of Defendant Insurers to meet their obligations under
the Policies, Greenbrier Hotel did not have sufficient funds to pay the $10.4 million title
sponsorship fee for the 2017 Tournament. Greenbrier Hotel brought this situation to the
attention of PGA America, and PGA America agreed that the $10.4 million fee for the 2017
Tournament could be paid in four equal installments, in 2018, 2019, 2020, and 2021, along with
the title sponsorship fees for each of those years. In exchange, however, PGA America required

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Greenbrier Hotel to give up its summer Tournament date and move the Tournament to
September. The Tournament will be held in the fall in 2019 and thereafter through 2026.
114.

Moving the Tournament to the fall will result in competition for viewership and

attendance with collegiate and professional football games played on the same weekend as the
Tournament. The Tournament will also lose CBS and all the media coverage from CBS because
of the fall date.
115.

The financial impact oflosing the Fourth of July Tournament dates will be felt by

Plaintiffs for years to come and has resulted in damages for lost profits in excess of tens of
millions of dollars.

F.

The Policies Procured By RHA, RHIS And Bankers.

116.

Plaintiffs directed RHA and RHIS to procure property insurance for Plaintiffs'

properties that would provide sufficient coverage.
117.

RHA and RHIS knew and understood that Plaintiffs are involved in the

hospitality, recreation, golf and property development industries. RHA and RHIS knew or
should have known that Plaintiffs' properties included historical landmarks. RHA and RHIS
knew or should have known that Plaintiffs' properties provided the significant majority, if not
all, of Plaintiffs' income, that Plaintiffs are internationally known for the quality of their golf
courses, and that those golf courses are an important part of Plaintiffs' reputations and incomes.
118.

RHA and RHIS knew or should have known that Plaintiffs would not purchase

Policies that limited total recoveries for all Courses to $10 million (as described below). RHA
and RHIS knew or should have known that Plaintiffs would not purchase Policies that required
them to arbitrate any coverage issues in international forums, that required the use of English

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Barristers, and that required the application of English law. RHA and RHIS committed errors
and omissions in obtaining Policies that contravened these interests of Plaintiffs and grossly
negligently failed to adequately disclose to Plaintiffs the existence of the offending provisions.
119.

After the Flood occurred, and as part of the process of formulating their claims,

Plaintiffs made repeated requests to RHA and RHIS to provide them with copies of the Policies critical documents never provided to Plaintiffs when the existing insurance coverage was
obtained by RHA and RHIS. It took over twelve months, and the institution of a lawsuit by
certain of Plaintiffs, to finally obtain copies of the Policies that were paid for by Plaintiffs and
that purported to cover Plaintiffs' claims. Plaintiffs believe that one reason RHA and RHIS
failed to provide them with the Policies was that they knew Plaintiffs were unaware of the golf
course coverage limitations and the international arbitration provisions in certain of the Policies
and that Plaintiffs would be outraged when they learned of those provisions.
120.

Bankers likewise knew and understood that Plaintiffs are involved in the

hospitality, recreation, golf and property development industries. Bankers knew or should have
known that Plaintiffs' properties included historical landmarks. Bankers knew or should have
known that Plaintiffs' properties provided the significant majority, if not all, of Plaintiffs'
income, that Plaintiffs are internationally known for the quality of their golf courses, and that
those golf courses are an important part of Plaintiffs' reputations and incomes.
121.

Bankers knew or should have known that Plaintiffs would not purchase Policies

that limited total recoveries for all Courses to $10 million (as described below). Bankers knew
or should have known that Plaintiffs would not purchase Policies that required them to arbitrate
any coverage issues in international forums, that required the use of English Barristers, and that

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required the application of English law, but likewise committed errors and omissions in
obtaining Policies that contravened these interests of Plaintiffs and grossly negligently failed to
adequately disclose to Plaintiffs the existence of the offending provisions.
G.

Plaintiffs Assert Claims Under The Policies And Defendant Insurers
Wrongfully Refuse The Majority Of The Claims.

122.

Plaintiffs timely notified RHA, RBIS and Bankers of their claims for losses and

coverage related to the extensive damage sustained as a result of the Flood and understood and
reasonably believed that RHA, RHIS and Bankers would take all steps necessary to present those
claims to the insurers, including the Defendant Insurers.
123.

Upon information and belief, RHA, RHIS and Bankers submitted Plaintiffs'

claims to nine insurers, but Plaintiffs are without knowledge as to whether the claims were
indeed submitted to only nine insurers and, if so, which nine insurers RHA, RHIS and Bankers
chose, why they chose those insurers, the extent of coverage available under each said policy,
and which, if any, of the nine insurers has made payments under their respective policies.
124.

Upon information and belief, certain of the insurers recognized the extent of the

damage and that their policies were fully exposed. These insurers paid their respective policy
limits and exited the claims process. Again, however, Plaintiffs have no direct knowledge as to
whether this is true and which insurers have "paid out."
125.

Plaintiffs estimate their "basic" claim - for property damage alone - to be in

excess of $50 million, with other basic claims totaling in excess of $55 million for business
interruption, extra expenses, expenses to reduce loss, soft costs and loss of rental value/rental
income. Plaintiffs believe they have suffered and will continue to suffer tens of millions of
dollars in damages resulting from lost sales at the Oakhurst Development, including lot sales, ski
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memberships and golf memberships, losses related to the loss of the summer PGA Tournament
slot and numerous marketing costs and losses which have yet to be quantified.
126.

Vericlaim was named as an adjuster under the Policies and was retained by

Goodman-Gable-Gould ("GGG"), the entity Plaintiffs initially hired to consult as to the claims
and to assist in formulating the claims. GGG was subsequently replaced by BDO, but Vericlaim
has been the adjuster for Defendant Insurers at all relevant times hereto.
127.

To date, approximately $37 million of Plaintiffs' claims have been paid.

Vericlaim has wrongfully and in violation of its duties to Plaintiffs, informed the Defendant
Insurers that Plaintiffs' financial losses total only $37 million, causing damage to Plaintiffs and
to Governor Justice. Plaintiffs assert that Plaintiffs are still owed in excess of $75 million from
Defendant Insurers.
128.

In addition to the expectations Plaintiffs had of RHA, RBIS and Bankers,

Plaintiffs also had the reasonable expectation that Plaintiffs' flood damages would be covered by
the Policies and that Defendant Insurers would negotiate those claims in good faith. Plaintiffs
made a reasonable demand during the course of their negotiations with Defendant Insurers that
was within policy limits. Defendant Insurers did not reasonably, fairly or promptly respond.
129.

Instead, the negotiations as a whole from the time of the Flood to the last payment

of proceeds have been inadequate, conducted in bad faith and conducted in violation of
Defendant Insurers' statutory and common law duties of good faith and fair dealing implied in
the Policies and according to applicable West Virginia and other law.
130.

By way of example, but not limitation, Defendant Insurers, acting on the

information and opinions provided by Vericlaim:

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a.

have refused to cover the $6.1 million title sponsorship fee that Greenbrier
Hotel lost for the 2016 Tournament yet have taken a credit against
Plaintiffs' recoveries for the $3.6 million that PGA America refunded to
Greenbrier Hotel;

b.

have refused to cover the $5+ million sponsorship fees that Greenbrier
Hotel received for the 2016 Tournament but rolled over to the 2017
Tournament, citing an "Act of God" clause in many of the sponsorship
contracts that arguably would have precluded the sponsors from
recovering their 2016 fees; and

c.

have refused to cover the $10.4 million title sponsorship fee due from
Greenbrier Hotel to PGA America for the 2017 Tournament despite the
fact that Greenbrier Hotel's inability to pay that fee arose directly from
Defendant Insurers' bad faith failure to timely pay Plaintiffs' claims as
presented and in full.

In addition, Defendant Insurers, acting on the information and opinions provided by Vericlaim,
have disallowed recovery of many other aspects of Plaintiffs' damages incurred as a result of the
cancellation of the 2016 Tournament and the loss of the July Tournament dates for 2019 through
2026.
131.

As described above, the physical damage to the golf courses was extensive and it

took more than one year to repair the Old White Course. Following the Flood, Plaintiffs
undertook one of the largest, if not the largest, golf remediation/construction projects in the
world to date in order to return the courses to championship level, worthy of hosting PGA tour

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events and to maintain the consistency at the holes. Plaintiffs were also intent on preserving the
historic landmark status of the Hotel and its properties. Defendant Insurers, acting on the
information and opinions provided by Vericlaim, have taken the unreasonable and bad faith
position that the work performed was above and beyond that allowed by the Policies, despite the
fact that the Policies included provisions related to maintaining the Hotel's historic landmark
status.
132.

Certain of the Policies have occurrence sub-limits of$10 million for golf course

repairs, regardless of the number of courses or policyholders impacted by the occurrence.
Defendant Insurers, acting on the information and unsupportable opinions provided by
Vericlaim, have inexcusably and in bad faith failed to even tender the $10 million limit for the
repairs to the four championship-level courses, not to mention the financial damage caused by
Plaintiffs' inability to continue the development of the New Oakhurst Course.
133.

Because of Defendant Insurers' intransigent, bad faith, unreasonable refusal to

honor their contractual obligations, Plaintiffs - and in particular Greenbrier Hotel - have been
brought to near financial insolvency and have been unable to fulfill certain of their financial
obligations.
134.

Defendant Insurers, acting on the information and unsupportable opinions

provided by Vericlaim, have also denied any coverage for the residential and ski resort portions
of the Oakhurst Development, despite the fact that significant construction was underway when
the Flood occurred.
135.

Plaintiffs initially retained GGG to consult with Plaintiffs and formulate their

claims, and subsequently retained BDO, an expert in claims determination, to review and assist

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in formulating and submitting the claims. BDO provided the amounts of the losses, but
Defendant Insurers wrongfully and negligently disregarded the values that BDO formulated.
136.

RHA, as the insured under the Policies, and Vericlaim, as the designated loss

adjuster, are liable to Plaintiffs because of their bad faith failure and refusal to insist and ensure
that Defendant Insurers adhere to the provisions of the Policies with respect to Plaintiffs' claims
and to act fairly, honestly and in good faith.
13 7.

RHA, RHIS and Bankers, as the agents who procured the Policies for Plaintiffs at

the request of Plaintiffs, are also liable to Plaintiffs because of their errors, omissions and bad
faith failures to procure adequate coverage, coverage that does not unreasonably limit coverage
available for the golf courses, and coverage that does not require international arbitration in order
to recover in the event of disputes.

COUNTI
(Declaratory Judgment - Against Defendant Insurers)

138.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 137 of this Complaint as if fully set forth herein.
13 9.

Plaintiffs have made claims under the Policies in excess of $100 million to

compensate them for the damages and losses sustained as a result of the Flood. Because of the
amount of time that has passed and the continuing nature of Plaintiffs' damages and losses,
Plaintiffs estimate the claims now exceed $107 million, with only approximately $37 million of
that amount having been paid. This estimated amount does not include claims related to the loss
of sales at the Oakhurst Development, the loss of the summer date for the PGA Tournament and
related marketing costs and additional losses.

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140.

Defendant Insurers have wrongfully failed and refused to pay Plaintiffs' claims in

full and as presented.
141.

Defendant Insurers have claimed that certain of Plaintiffs' damages and losses are

not covered by the Policies.
142.

Plaintiffs, by contrast, assert that Plaintiffs' losses and damages, as set forth in

their claims, are covered in their entirety under the Policies.
143.

A real and justiciable controversy therefore exists as to the extent and amount of

coverage the Policies provide for Plaintiffs' damages and losses.
144.

Plaintiffs are therefore entitled to a Declaratory Judgment declaring that the

Policies provide full coverage for Plaintiffs' claims.
145.

Plaintiffs further assert that Defendant Insurers' failure and refusal to pay

Plaintiffs' claims in full and as presented, and their claims that certain of Plaintiffs' damages and
losses are not covered by the Policies, have been undertaken and asserted in bad faith and in
violation of the West Virginia Unfair Trade Practices Act (the "UTPA"), W. Va. Code§§ 33-114(9), et seq., and Plaintiffs are therefore entitled to recover damages that include, but are not
limited to, consequential damages, net economic losses, aggravation, inconvenience and their
reasonable attorney fees in bringing this action.
146.

Plaintiffs also further assert that under the laws of the State of West Virginia,

when an insured substantially prevails in a coverage dispute against his insurer, the insurer is
liable for the insured' s reasonable attorney fees, the expenses of litigation, and damages for
aggravation and inconvenience.

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147.

Accordingly, Plaintiffs seek a declaration of this Court that, in the event they

substantially prevail in the instant coverage dispute, they are entitled to recover all damages
available to them under the law as set forth in Hayseeds, Inc. v State Farm Fire & Cas., 352
S.E.2d 73 (W. Va. 1986), Miller v. Fluharty, 500 S.E.2d 310 (W. Va. 1997), and their progeny,
including but not limited to damages arising from the aggravation and inconvenience
experienced by Plaintiffs and their principals, including James C. Justice, II, related to Defendant
Insurers' failure and refusal to timely pay Plaintiffs' claims in full and as presented.

COUNT II
(Breach Of Contract- Against Defendant Insurers)
148.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 14 7 of this Complaint as if fully set forth herein.
149.

Each of the Policies entered into between one or more Defendant Insurers and

one, more or all of Plaintiffs is a contract.
150.

Pursuant to the terms of each Policy, Defendant Insurers agreed to provide the

coverage specified in the Policy in the event of a catastrophic loss such as the Flood that
occurred in West Virginia in 2016 and that caused devastating damage to Plaintiffs.
151.

By failing to honor and pay Plaintiffs' claims in full and as presented, Defendant

Insurers have materially breached the Policies. As a direct and proximate cause of these
breaches of the Policies, Plaintiffs have suffered damage in an amount believed to be in excess of
$107 million total, of which amount approximately $37 million has been paid.
152.

Plaintiffs are therefore entitled to recover compensatory damages from Defendant

Insurers, each in amounts proportional to the extent of their coverage vis-a-vis the $600 million

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total coverage, arising from their breaches of the Policies, the exact amount of which is estimated
to be in excess of $7 5 million but which will be determined at trial in an amount in excess of the
minimum jurisdictional limits of this Court.
In addition, under the laws of the State of West Virginia, when an insured

153.

substantially prevails in a coverage dispute against his insurer, the insurer is liable for the
insured's reasonable attorney fees, the expenses oflitigation, and damages for aggravation and
.
.
mconvemence.

154.

Accordingly, in the event that Plaintiffs substantially prevail in the instant

coverage dispute, they are entitled to recover all damages available to them under the law as set
forth in_Hayseeds, Inc. v. State Farm Fire & Cas., 352 S.E.2d 73 (W.Va. 1986), Miller v.
Fluharty, 500 S.E.2d 310 (W.Va. 1997), and their progeny, including but not limited to damages

arising from the aggravation and inconvenience experienced by Plaintiffs and their principals,
including James C. Justice, II, related to Defendant Insurers' failure and refusal to timely pay
Plaintiffs' claims in full and as presented.
COUNTIII
(Breach Of Implied Covenant Of Good Faith, Honesty And Fair Dealing Against Defendant Insurers)
15 5.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 154 of this Complaint as if fully set forth herein.
156.

At all times relevant herein, and since at least March 2016, when the Policies

were entered into between Plaintiffs and Defendant Insurers, there was imposed upon each
Defendant Insurer an implied covenant of good faith, honesty and fair dealing in favor of
Plaintiffs, as the named insureds under the Policies.
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157.

This implied covenant of good faith, honesty and fair dealing required that

Defendant Insurers act in the best interest of Plaintiffs with respect to the claims they asserted
under the Policies.
158.

Defendant Insurers breached this implied covenant of good faith, honesty and fair

dealing by wrongfully and in bad faith refusing to pay Plaintiffs' claims under the Policies, in
full and as presented.
159.

As a direct and proximate result of Defendant Insurers' breaches of the implied

covenant of good faith, honesty and fair dealing, Plaintiffs have suffered and will continue to
suffer financial losses and losses to their prospective business advantages, and Defendant
Insurers have wrongfully benefitted.
160.

Plaintiffs are therefore entitled to recover compensatory damages from Defendant

Insurers, each in an amount proportional to the extent of their coverage vis-a-vis the $600 million
total coverage, arising from their breaches of the implied covenant of good faith, honesty and fair
dealing, the exact amount of which is estimated to be in excess of $75 million but which will be
determined at trial in an amount in excess of the minimum jurisdictional limits of this Court.

COUNTIV
(Violation Of West Virginia Unfair Trade Practices Act, W. Va. Code§§ 33-11-4(9), et seq.
-Against Defendant Insurers)
161.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 160 of this Complaint as if fully set forth herein.
162.

When they entered into the Polices, Plaintiffs had the reasonable expectation that

any flood damages they might sustain would be covered by the Policies. Plaintiffs also had the

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reasonable expectation that Defendant Insurers would act in good faith in settling any claims
asserted by Plaintiffs, including Plaintiffs' claims related to the Flood.
163.

The negotiations as a whole from the time of the Flood to the last payment of

proceeds made by Defendant Insurers were conducted in bad faith and Defendant Insurers
wrongfully and unfairly denied or reduced a substantial portion of Plaintiffs' claims. Plaintiffs
made a reasonable demand during the course of negotiations, which demand was within the
limits of the Policies, but Defendant Insurers in bad faith failed to reasonably and promptly
respond. This conduct on the part of Defendant Insurers was more than a single violation of the
UTPA, and Defendant Insurers' violations of the UTP A arose from separate, discrete acts or
omissions in the settlement of Plaintiffs' claims and represent the habit, custom or business
policy of one, more or all Defendant Insurers.
164.

Defendant Insurers' failure to pay the claims in full and as presented, failure to

use good faith in settling the claims, bad faith failure to reasonably and promptly respond to
Plaintiffs' claims all constituted bad faith negotiation of an insurance settlement. Defendant
Insurers mishandled each and every aspect of the claims submitted by Plaintiffs from the outset
and their bad faith in responding to and negotiating Plaintiffs' claims are representative of
Defendant Insurers' general unfair business practices.
165.

Defendant Insurers ' bad faith actions and omissions with respect to Plaintiffs'

claims were all in violation of the UTP A.
166.

As a direct and proximate result of Defendant Insurers' violations of the UTP A,

Plaintiffs have suffered damages and Defendant Insurers have benefitted. Plaintiffs are therefore
entitled to recover compensatory and consequential damages from Defendant Insurers, each in

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amounts proportional to the extent of their coverage vis-a-vis the $600 million total coverage,
arising from their violations of the UTP A, the exact amounts of which are estimated by Plaintiffs
to be in excess of $75 million but which will be determined at trial in excess of the minimum
jurisdictional limits of this Court.
167.

In addition, and because Defendant Insurers' denial of Plaintiffs' claims was

carried out with actual malice toward Plaintiffs or with a conscious, reckless and outrageous
indifference to the welfare of Plaintiffs, they are entitled to recover punitive damages from
Defendant Insurers, each in an amount proportional to the extent of their coverage vis-a-vis the
$600 million total coverage, the exact amount of which will be determined at trial in excess of
the minimum jurisdictional limits of this Court.

COUNTV
(Common Law Bad Faith-Against Defendant Insurers)
168.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 167 of this Complaint as if fully set forth herein.
169.

When they entered into the Polices, Plaintiffs had the reasonable expectation that

any flood damages they might sustain would be covered by the Policies. Plaintiffs also had the
reasonable expectation that Defendant Insurers would act in good faith in settling any claims
asserted by Plaintiffs, including Plaintiffs' claims related to the Flood.
170.

The negotiations as a whole from the time of the Flood to the last payment of

proceeds made by Defendant Insurers were conducted in bad faith and Defendant Insurers
wrongfully and unfairly denied or reduced a substantial portion of Plaintiffs' claims. Plaintiffs
made a reasonable demand during the course of negotiations, which demand was within the

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limits of the Policies, but Defendant Insurers in bad faith failed to not reasonably and promptly
respond.
171.

Defendant Insurers' failure to pay the claims in full and as presented, failure to

use good faith in settling the claims, bad faith failure to reasonably and promptly respond to
Plaintiffs' claims all constituted bad faith negotiation of an insurance settlement.
172.

In addition, Defendant Insurers acted with actual malice toward Plaintiffs or with

a conscious, reckless and outrageous indifference to the welfare of Plaintiffs in denying
Plaintiffs' claims under the Policies. In so doing, Defendant Insurers continued their general,
wrongful business practice of handling claims under policies issued by them in bad faith.
173.

As a direct and proximate result of Defendant Insurers' bad faith negotiations and

bad faith failure to pay Plaintiffs' claims in full and as presented, Plaintiffs have suffered
damages and Defendant Insurers have benefitted.
174.

Plaintiffs are therefore entitled to recover compensatory damages and punitive

damages from Defendant Insurers, in separate amounts, each in amounts proportional to the
extent of their coverage vis-a-vis the $600 million total coverage, arising from their bad faith
negotiations and bad faith failure to pay Plaintiffs' claims, the exact amounts of which are
estimated by Plaintiffs to be in excess of $75 million (compensatory damages) and $300 million
(punitive damages), and which will be determined at trial in excess of the minimum
jurisdictional limits of this Court.

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COUNT VI
(Interference With Existing And Prospective Business Advantages Against Defendant Insurers)

175.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 174 of this Complaint as if fully set forth herein.
176.

When they issued the Policies, Defendant Insurers knew that Plaintiffs are

involved in the hospitality, recreation, golf and property development industries. When they
issued the Policies, Defendant Insurers knew that Plaintiffs' businesses involve, and indeed
depend upon, their entering into contractual and other business relationships with third parties.
177.

Defendant Insurers have interfered with and damaged Plaintiffs' ability to meet

their existing business obligations to third parties and to enter into new business opportunities
with third parties through their actions and omissions described herein, including but not limited
to:
a.

failing to cover the $6.1 million title sponsorship fee for the 2016
Tournament that was not reimbursed by PGA America;

b.

taking a $3.6 million credit against Plaintiffs' recoveries for the portion of
the 2016 title sponsorship fee refunded to Greenbrier Hotel;

c.

refusing to cover the $5+ million sponsorship fees paid to Greenbrier
Hotel for the 2016 Tournament that Greenbrier Hotel rolled over to the
2017 Tournament;

d.

failing to pay in full and as presented Plaintiffs' claims for repairing the
five existing golf courses;

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e.

failing to pay in full and as presented Plaintiffs' claims related to the
Hotel, the Oakhurst Development- including the ski resort, the New
Oakhurst course and the residential development; and

f.
178.

failing to pay in full and as presented Plaintiffs' claims for lost business.

Defendant Insurers knew or should have known that Plaintiffs would and did

reasonably believe that any and all damages caused by a natural disaster such as the Flood would
be covered by the Policies, and that Plaintiffs relied upon this reasonable belief in conducting
their respective businesses.
179.

By wrongfully and in bad faith failing to pay Plaintiffs' claims in full and as

presented, Defendant Insurers have denied Plaintiffs the opportunity to fully profit from their
respective businesses and have thereby interfered in the existing and prospective business
advantages and opportunities of Plaintiffs.
180.

As a direct and proximate result of such wrongful interference in their existing

and prospective business advantages and opportunities, Plaintiffs have suffered and will continue
to suffer financial losses and damage.
181.

Plaintiffs are therefore entitled to recover compensatory damages from Defendant

Insurers, in separate amounts, each in amounts proportional to the extent of their coverage vis-avis the $600 million total coverage, arising from their interference with Plaintiffs ' existing and
prospective business advantages and opportunities, the exact amounts of which are estimated to
be in excess of $75 million but which will be determined at trial in an amount in excess of the
minimum jurisdictional limits of this Court.

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182.

In addition, Defendant Insurers undertook these actions with actual malice toward

Plaintiffs or with a conscious, reckless and outrageous indifference to the health and welfare of
Plaintiffs, and Plaintiffs are therefore entitled to recover punitive damages in an amount to be
determined at trial in an amount in excess of the minimum jurisdictional limits of this Court.
COUNT VII
(Tortious Interference With Contractual Relations -Against Defendant Insurers)

183.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 182 of this Complaint as if fully set forth herein.
184.

When they issued the Policies, Defendant Insurers knew that Plaintiffs are

involved in the hospitality, recreation, golf and property development industries. When they
issued the Policies, Defendant Insurers knew that Plaintiffs' businesses involve, and indeed
depend upon, their entering into contractual and other business relationships with third parties.
185.

Defendant Insurers have interfered with and damaged Plaintiffs' ability to meet

their existing contractual obligations to certain third parties through their actions and omissions
described herein, including but not limited to:
a.

failing to cover the $6.1 million title sponsorship fee for the 2016
Tournament that was not reimbursed by PGA America;

b.

taking a $3.6 million credit against Plaintiffs' recoveries for the portion of
the 2016 title sponsorship fee refunded to Greenbrier Hotel;

c.

refusing to cover the $5+ million sponsorship fees paid to Greenbrier
Hotel for the 2016 Tournament that Greenbrier Hotel rolled over to the
2017 Tournament;
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d.

failing to pay in full and as presented Plaintiffs' claims for repairing the
five existing golf courses;

e.

failing to pay in full and as presented Plaintiffs' claims related to the
Hotel, the Oakhurst Development- including the ski resort, the New
Oakhurst course and the residential development; and

f.
186.

failing to pay in full and as presented Plaintiffs' claims for lost business.

Defendant Insurers knew or should have known that Plaintiffs would and did

reasonably believe that any and all damages caused by a natural disaster such as the Flood would
be covered by the Policies, and that Plaintiffs relied upon this reasonable belief in entering into
business contracts with third parties.
187.

By wrongfully and in bad faith failing to pay Plaintiffs' claims in full and as

presented, Defendant Insurers have caused Plaintiffs to breach certain of their respective
contracts with third parties, have caused reputational and financial damage to Governor Justice
and have thereby interfered in the contractual relations that Plaintiffs have with third parties.
188.

As a direct and proximate result of such wrongful interference in their contractual

relations, Plaintiffs have suffered and will continue to suffer financial losses and damage.
189.

Plaintiffs are therefore entitled to recover compensatory damages from Defendant

Insurers, in separate amounts, each in amounts proportional to the extent of their coverage vis-avis the $600 million total coverage, arising from their interference with Plaintiffs' contractual
relations, the exact amounts of which are estimated to be in excess of $75 million but which will
be determined at trial in an amount in excess of the minimum jurisdictional limits of this Court.

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190.

In addition, Defendant Insurers undertook these actions with actual malice toward

Plaintiffs or with a conscious, reckless and outrageous indifference to the health and welfare of
Plaintiffs, and Plaintiffs are therefore entitled to recover punitive damages in an amount to be
determined at trial in excess of the minimum jurisdictional limits of this Court.
COUNT VIII
(Breach Of Contract - Against RHA And RHIS)

191.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 190 of this Complaint as if fully set forth herein.
192.

Plaintiffs entered into contractual arrangements with RHA and RHIS pursuant to

which these entities would select and obtain appropriate policies of property insurance for
Plaintiffs.
193.

RHA and RHIS also agreed that any claims under the Policies would be submitted

to them, and that they would competently, honestly, fairly and vigorously pursue those claims
and the recoveries sought thereunder with the Defendant Insurers.
194.

RHA and RHIS knew and understood that Plaintiffs are involved in the

hospitality, recreation, golf and property development industries. RHA and RHIS knew or
should have known that Plaintiffs' properties included historical landmarks. RHA and RHIS
knew or should have known that Plaintiffs' properties provided the significant majority, if not
all, of Plaintiffs' income, that Plaintiffs are internationally known for the quality of their golf
courses, and that those golf courses are an important part of Plaintiffs' reputations and incomes.
195.

RHA and RHIS knew or should have known that Plaintiffs would not purchase

Policies that limited total recoveries for the Courses to $10 million. RHA and RHIS knew or

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should have known that Plaintiffs would not purchase Policies that required them to arbitrate any
coverage issues in international forums, that required the use of English Barristers, and that
required the application of English law. RHA and RHIS committed errors and omissions in
obtaining Policies that contravened these interests of Plaintiffs and grossly negligently failed to
adequately disclose to Plaintiffs the existence of the offending provisions.
196.

By procuring policies of insurance that may not entirely cover all of Plaintiffs'

damages and losses related to the Flood, by procuring policies of insurance that limited coverage
for the Courses, by procuring policies that in some instances include international arbitrations
provisions, and by failing to adequately assist Plaintiffs in receiving timely and full payment of
Plaintiffs' claims, RHA and RHIS have breached their contractual obligations owed to Plaintiffs.
As a direct and proximate cause of these breaches by RHA and RHIS, Plaintiffs have suffered
damage in a total amount believed to be in excess of $107 million.
197.

Plaintiffs are therefore entitled to recover compensatory damages from

Defendants RHA and RHIS, jointly and severally, arising from their breaches of their contractual
obligations to Plaintiffs, the exact amount of which is estimated to be in excess of $75 million
but which will be determined at trial in an amount in excess of the minimum jurisdictional limits
of this Court.

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COUNTIX
(Breach Of Implied Covenant Of Good Faith, Honesty And Fair Dealing Against RHA And RHIS)

198.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 197 of this Complaint as if fully set forth herein.
199.

At all times relevant herein, and since at least March 2016, when Plaintiffs and

RBA and RBIS entered into the contractual agreements referenced in Count VIII, supra, there
was imposed upon RBA and RBIS an implied covenant of good faith, honesty and fair dealing in
favor of Plaintiffs.
200.

This implied covenant of good faith and fair dealing required that RBA and RBIS

act in the best interest of Plaintiffs with respect to the policies procured by these Defendants for
Plaintiffs and with respect to the claims asserted by Plaintiffs against the Policies.
201.

Defendants RBA and RHIS breached the implied covenant of good faith, honesty

and fair dealing by procuring policies of insurance that may not cover all of Plaintiffs' damages
and losses related to the Flood, by procuring policies of insurance that limited coverage for the
Courses, by procuring policies that in some instances include international arbitrations
provisions, and by failing to adequately assist Plaintiffs in receiving timely and full payment of
their claims.
202.

As a direct and proximate result of these Defendants' breaches of the implied

covenant of good faith, honesty and fair dealing, Plaintiffs have suffered and will continue to
suffer financial losses and losses to their prospective business advantages, and RBA and RBIS
have wrongfully benefitted.

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203.

Plaintiffs are therefore entitled to recover compensatory damages from RHA and

RHIS, jointly and severally, arising from their breaches of the implied covenant of good faith,
honesty and fair dealing, the exact amount of which is estimated to be in excess of $75 million
and which will be determined at trial in an amount in excess of the minimum jurisdictional limits
of this Court.
COUNTX

(Negligent And Grossly Negligent Misrepresentations Against RHA And RHIS)

204.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 203 of this Complaint as if fully set forth herein.
205.

In procuring the Policies for Plaintiffs, RHA and RHIS had a duty to not supply or

make false, misleading, inaccurate or incomplete representations to the Plaintiffs.
206.

RHA and RHIS had a pecuniary interest in obtaining and maintaining Plaintiffs'

businesses and were obligated to exercise reasonable care and competence in communicating
with Plaintiffs and in procuring the Policies.
207.

In particular, RHA and RHIS knew or should have known that Plaintiffs are

involved in the hospitality, recreation, golf and property development industries, that Plaintiffs'
properties included historical landmarks, that Plaintiffs' properties provided the significant
majority, if not all, of their income, that Plaintiffs are internationally known for the quality of
their golf courses, and that those golf courses are an important part of Plaintiffs' reputations and
mcomes.
208.

RHA and RHIS knew or should have known that Plaintiffs would not purchase

Policies that limited total recoveries for the Courses to $10 million. RHA and RHIS knew or
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should have known that Plaintiffs would not purchase Policies that required them to arbitrate any
coverage issues in international forums, that required the use of English Barristers, and that
required the application of English law. Finally, RHA and RHIS knew or should have known
that Plaintiffs believed RHA and RHIS held this knowledge about Plaintiffs and that Plaintiffs
would rely upon RHA and RHIS to utilize that knowledge and expertise in obtaining appropriate
policies of property insurance.
209.

RHA and RHIS instead procured policies of insurance that may or may not

provide full coverage for Plaintiffs' damages and losses and that in some instances include
international arbitration provisions. This information about the Policies was material to
Plaintiffs, and RHA and RHIS downplayed, concealed and misrepresented that the Policies
might not provide the required coverage and that certain of the Policies included international
arbitration policies, even going so far as to withhold the Policies from Plaintiffs until certain of
Plaintiffs filed suit to obtain copies of the Policies.
210.

Plaintiffs relied on the grossly negligent or recklessly-made misrepresentations of

RHA and RHIS that the Policies were adequate for Plaintiffs' needs, would not unreasonably
limit coverage for the Courses, and would not require Plaintiffs to arbitrate in an international
forum using English Barristers and the application of English law in the event of disputes under
the Policies.
211.

As a direct and proximate result of such grossly negligent and reckless

misrepresentations, Plaintiffs have been damaged and are entitled to recover compensatory
damages from RHA and RHIS,jointly and severally, the exact amount of which is estimated to

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be in excess of $75 million but which will be determined at trial in an amount in excess of the
minimum jurisdictional limits of this Court.
212.

In addition, RHA and RHIS acted with actual malice toward Plaintiffs or with a

conscious, reckless and outrageous indifference to the welfare of Plaintiffs, and Plaintiffs are
therefore entitled to recover punitive damages in an amount to be determined at trial in excess of
the minimum jurisdictional limits of this Court.
COUNT XI

(Breach Of Contract-Against Bankers)
213.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 212 of this Complaint as if fully set forth herein.
214.

Plaintiffs entered into a contractual arrangement with Bankers pursuant to which

Bankers, in conjunction with RHA and RHIS, would select and obtain appropriate policies of
property insurance for Plaintiffs.
215.

Bankers knew and understood that Plaintiffs are involved in the hospitality,

recreation, golf and property development industries. Bankers knew or should have known that
Plaintiffs' properties included historical landmarks. Bankers knew or should have known that
Plaintiffs' properties provided the significant majority, if not all, of their income, that Plaintiffs
are internationally known for the quality of their golf courses, and that those golf courses are an
important part of Plaintiffs' reputations and incomes.
216.

Bankers knew or should have known that Plaintiffs would not purchase Policies

that limited total recoveries for the Courses to $10 million. Bankers knew or should have known
that Plaintiffs would not purchase Policies that required them to arbitrate any coverage issues in

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international forums, that required the use of English Barristers, and that required the application
of English law. Bankers committed errors and omissions in obtaining Policies that contravened
these interests of Plaintiffs and grossly negligently failed to adequately disclose to Plaintiffs the
existence of the offending provisions.
217.

By participating in the procurement of policies of insurance that may not cover all

of Plaintiffs' damages and losses related to the Flood, by participating in the procurement of
policies of insurance that limited coverage for the Courses, and by participating in the
procurement of policies of insurance that in some instances include international arbitration
provisions, Bankers has breached its contractual obligations owed to Plaintiffs. As a direct and
proximate cause of these breaches by Bankers, Plaintiffs have suffered damage in an amount
believed to be in excess of $107 million.
218.

Plaintiffs are therefore entitled to recover compensatory damages from Bankers

arising from its breaches of its contractual obligations to them, the exact amount of which is
estimated to be in excess of $75 million but which will be determined at trial in an amount in
excess of the minimum jurisdictional limits of this Court.

COUNT XII

(Breach Of Implied Covenant Of Good Faith, Honesty
And Fair Dealing-Against Bankers)
219.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 218 of this Complaint as if fully set forth herein.
220.

At all times relevant herein, and since at least March 2016, when Plaintiffs and

Bankers entered into the contractual agreements referenced in Count XI, supra, there was

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imposed upon Bankers an implied covenant of good faith, honesty and fair dealing in favor of
Plaintiffs.
221.

This implied covenant of good faith and fair dealing required that Bankers act in

the best interest of Plaintiffs with respect to the policies procured by Bankers, in conjunction
with RHA and RHIS.
222.

Bankers breached the implied covenant of good faith, honesty and fair dealing by

procuring policies of insurance in conjunction with RHA and RHIS that may not cover all of
Plaintiffs' damages and losses related to the Flood, by procuring policies of insurance in
conjunction with RHA and RHIS that limited coverage for the Courses, and by procuring
policies of insurance that in some instances include international arbitrations provisions and by
failing to in good faith and honestly disclose and provide such information to Plaintiffs.
223.

As a direct and proximate result of Bankers' breaches of the implied covenant of

good faith, honesty and fair dealing, Plaintiffs have suffered and will continue to suffer financial
losses and losses to their prospective business advantages, and Bankers has wrongfully
benefitted.
224.

Plaintiffs are therefore entitled to recover compensatory damages from Bankers

arising from its breaches of the implied covenant of good faith, honesty and fair dealing, the
exact amount of which is estimated to be in excess of $75 million but which will be determined
at trial in an amount in excess of the minimum jurisdictional limits of this Court.

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COUNT XIII
(Breach Of The Duty Of Good Faith, Honesty And Fair Dealing - Against Vericlaim)
225.

Plaintiffs repeat and reallege each and every allegation set forth in Paragraphs 1

through 224 of this Complaint as if fully set forth herein.
226.

At all times relevant herein, and since at least March 2016 when Vericlaim was

retained/appointed to act as the designated loss adjuster for Plaintiffs' claims, there was imposed
upon Vericlaim an duty of good faith and fair dealing in favor of Plaintiffs.
227.

This duty of good faith, honesty and fair dealing required that Vericlaim act in the

best interest of Plaintiffs with respect to the claims asserted against the Policies by Plaintiffs.
228.

Vericlaim breached the implied covenant of good faith, honesty and fair dealing

by understating certain of Plaintiffs' claims, by wrongfully determining that other of Plaintiffs'
claims were not covered by the Policies and by recommending that Defendant Insurers adopt
these findings in responding to and negotiating Plaintiffs' claims.
229.

As a direct and proximate result ofVericlaim's breaches of the duty of good faith,

honesty and fair dealing it owed to Plaintiffs, they have suffered and will continue to suffer
financial losses and losses to their prospective business advantages, and Vericlaim has
wrongfully benefitted.
230.

Plaintiffs are therefore entitled to recover compensatory damages from Vericlaim

arising from its breaches of the duty of good faith and fair dealing, the exact amount of which is
estimated to be in excess of $75 million but which will be determined at trial in an amount in
excess of the minimum jurisdictional limits of this Court.

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WHEREFORE, Plaintiffs respectfully request Judgment on their Complaint herein as
follows:
Declaratory Judgments pursuant to 28 U.S.C. §2201(a) on Count I as follows:

A.
1.

11.

declaring that the Policies provide full coverage for Plaintiffs' claims;
declaring that Defendant Insurers' failure and refusal to pay Plaintiffs'
claims in full and as presented, and their assertion that certain of
Plaintiffs' damages and losses are not covered by the Policies, were
undertaken and asserted in bad faith and in violation of W. Va. Code§§
33-11-4(9), et seq., and that Plaintiffs are therefore also entitled to recover
damages that include, but are not limited to, consequential damages, net
economic losses, aggravation, inconvenience and their reasonable attorney
fees in bringing this action; and

111.

declaring that, in the event Plaintiffs substantially prevail in the instant
coverage dispute, they are entitled to recover from Defendant Insurers all
damages available to Plaintiffs under the law as set forth in Hayseeds, Inc.

v State Farm Fire & Cas., 352 S.E.2d 73 (W. Va. 1986), Miller v.
Fluharty, 500 S.E.2d 310 (W. Va. 1997), and their progeny, including but
not limited to damages arising from the aggravation and inconvenience
experienced by Plaintiffs and their principals, including James C. Justice,
II, related to Defendant Insurers' failure and refusal to timely pay
Plaintiffs' claims in full and as presented.

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 Case 2:19-cv-00118 Document 1 Filed 02/15/19 Page 58 of 61 PageID #: 58

B.

A Judgment on Count II for compensatory damages against Defendants Insurers,

each in amounts proportional to the extent of their coverage vis-a-vis the $600 million total
coverage, for breach of contract;
C.

A Judgment on Count III for compensatory damages against Defendant Insurers,

each in amounts proportional to the extent of their coverage vis-a-vis the $600 million total
coverage, for breach of the implied duty of good faith, honesty and fair dealing;
D.

A Judgment on Count IV for compensatory, consequential and punitive damages,

in separate amounts, against Defendant Insurers, each in amounts proportional to the extent of
their coverage vis-a-vis the $600 million total coverage, for violations of the West Virginia
Unfair Trade Practices Act;
E.

A Judgment on Count V for compensatory and punitive damages, in separate

amounts, against Defendants Insurers, each in amounts proportional to the extent of their
coverage vis-a-vis the $600 million total coverage, for common law bad faith;
F.

A Judgment on Count VI for compensatory and punitive damages, in separate

amounts, against Defendant Insurers, each in amounts proportional to the extent of their
coverage vis-a-vis the $600 million total coverage, for interference with existing and prospective
business advantages;
G.

A Judgment on Count VII for compensatory and punitive damages, in separate

amounts, against Defendant Insurers, each in amounts proportional to the extent of their
coverage vis-a-vis the $600 million total coverage, for tortious interference with contractual
relations;

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 Case 2:19-cv-00118 Document 1 Filed 02/15/19 Page 59 of 61 PageID #: 59

H.

A Judgment on Count VIII for compensatory damages against RHA and RHIS,

jointly and severally, for breach of contract;
I.

A Judgment on Count IX for compensatory damages against RHA and RHIS,

jointly and severally, for breach of the implied covenant of good faith, honesty and fair dealing;
J.

A Judgment on Count X for compensatory and punitive damages, in separate

amounts, against RHA and RHIS, jointly and severally, for negligent and grossly negligent
misrepresentations;
K.

A Judgment on Count XI for compensatory damages against Bankers for breach

of contract;
L.

A Judgment on Count XII for compensatory damages against Bankers for breach

of the implied covenant of good faith, honesty and fair dealing;
M.

A Judgment on Count XIII for compensatory damages against Vericlaim for

breach of the duty of good faith, honesty and fair dealing;
N.

An award of the reasonable attorney fees and expenses that Plaintiffs incurred in

the course of this coverage dispute, together with damages for aggravation and inconvenience,
and all further relief available to a policyholder who substantially prevails against its insurer,
including but not limited to damages arising from the aggravation and inconvenience
experienced by Plaintiffs and their principals, including James C. Justice, II, related to Defendant
Insurers' failure and refusal to timely pay Plaintiffs' claims in full and as presented;
0.

An Order upon demand to compel arbitration pursuant to each Policy that

includes an arbitration provision;

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P.

A docket preference expediting these proceedings in accordance with Rule 57 of

the Federal Rules of Civil Procedure;
Q.

A reasonable attorney's fee;

R.

Trial by jury on all counts so triable; and

S.

Such further relief as Plaintiffs appear entitled, in addition to the costs and

disbursements of this action.
Respectfully submitted,

Isl Michael W. Carey
MICHAEL W. CAREY, WVSB No. 635
JOHN A. KESSLER, WVSB No. 2027
CAREY, SCOTT, DOUGLAS & KESSLER, PLLC
901 Chase Tower, 706 Virginia Street, East (25301)
P.O. Box 913
Charleston, West Virginia 25323
Telephone: (304) 345-1234
Facsimile: (304) 342-1105
mwcarey@csdlawfirm.com
jkessler@csdlawfirm.com
and
RICHARD A. GETTY
(Pro Hae Vice Admission to be filed)
and
DANIELLE HARLAN
(Pro Hae Vice Admission to be filed)
THE GETTY LAW GROUP, PLLC
1900 Lexington Financial Center
250 West Main Street
Lexington, Kentucky 40507
Telephone: (859) 259-1900
Facsimile: (859) 259-1909
rgetty@gettylawgroup.com
dharlan@gettylawgroup.com
and
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LAURENCE J. ZIELKE
(Pro Hae Vice Admission to be filed)
and
JANICE THERIOT
(Pro Hae Vice Admission to be filed)
ZIELKE LAW FIRM, PLLC
462 S. 4 th St.
Suite 1250
Louisville, Kentucky 40202
Telephone: (502) 589-4600
lzielke@zielkefirm.com
jtheriot@zielkefirm.com
COUNSEL FOR PLAINTIFFS, GREENBRIER
HOTEL CORPORATION, THE GREENBRIER
SPORTING CLUB, INC., GREENBRIER
SPORTING CLUB DEVELOPMENT COMPANY,
INC., OLD WHITE CHARITIES, INC.,
OAKHURST CLUB LLC, GREENBRIER GOLF
AND TENNIS CLUB CORPORATION, JUSTICE
FAMILY GROUP, LLC, THE CHESAPEAKE &
OHIO TRAVELER, INC., THE GREENBRIER
RESORT & CLUB MANAGEMENT CO.,
GREENBRIER IA, INC., OLD WHITE CLUB
CORPORATION, AND GREENBRIER
MEDICAL INSTITUTE, LLC

dhbpld213 la

61