Motion to Stay Proceedings in LAVERNE N. BOYD, ADMINISTRATRIX vs. STEPHAN A. BURGAN, ET AL| Trellis.Law

On March 01, 2021 a Order was filed involving a dispute between Laverne N. Boyd, and Intergon General Insurance Corporation Aka National General Insurance Co., Stephen Burgan, for TORT-M.V. ACCIDENT in the District Court of Cuyahoga County.

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Motion No. 4917738

NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113

Court of Common Pleas

MOTION TO DISMISS
March 10,2021 20:05

By: BRIAN D. KERNS 0037015

Confirmation Nbr. 2201115

LAVERNE N. BOYD, ADMINISTRATRIX CV 21 944586

vs.
Judge: ANDREW J. SANTOLI
STEPHAN A. BURGAN, ET AL

Pages Filed: 19

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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

LAVERNE N. BOYD, Administratrix of the ) CASE NO. CV21 944586
Estate of Roberto Russell, aka Roberto Russell )
Deceased, ) JUDGE ANDREW J. SANTOLI
)
Plaintiff )
v. ) DEFENDANT’S MOTION TO
) DISMISS OR IN THE
STEPHAN A. BURGAN, ET AL. ) ALTERNATIVE TO STAY
)
Defendants )

Now comes Defendant, Integon General Insurance Corporation (“Integon”) and moves this

Court pursuant to Rule 12 of the Ohio Rules of Civil Procedure for dismissal of the Complaint filed

March 1, 2021. The parties hereto are named as parties in an earlier filed Federal Court action by

Integon arising from this same auto accident. Integon filed a Declaratory Judgment Action in the U.S.

District Court, Northern District of Ohio, Case No. 1:20-cv-02811-SO, in December, 2020 seeking

Declaratory Judgment as to ALL claims arising out of the accident giving rise to Plaintiff Boyd’s

claim in this case. This attempted action arises out of the same facts as the pre-existing Federal

lawsuit. In the alternative, Defendant requests a stay of all proceedings in the trial court in this case

until proceedings have been concluded in the currently pending action in the Northern District of

Ohio U.S. District Court. A memorandum in support is attached hereto.

BONNEZZI SWITZER POLITO
& HUPP CO. L.P.A.
46 Public Square, Suite 230
Medina, Ohio 44256
Telephone: (330) 952-0440
Fax: (330) 952- 2981
Email: bkems@bshplaw.conn

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MEMORANDUM IN SUPPORT
I. Introduction

On February 14, 2020, Stephan A. Burgan drove his vehicle at a high speed in the wrong

direction on East 93rd Street in Cleveland, Cuyahoga County Ohio. Stephan A. Burgan struck an

oncoming car driven by Deron Grant causing the deaths of Deron Grant, and Burgan’s passengers

Stephen M. Burgan (his son), and Roberto Russell (Plaintiff’s Decedent in this case). As a result of

the accident, Stephen A. Burgan was charged with Aggravated Vehicular Homicide. The criminal

charges are currently pending in the Cuyahoga County Court of Common Pleas, bearing case number

CR-20-650005-A. In addition, Stephan A. Burgan caused injuries to occupants of other vehicles

injured in the same accident, including Michael Brooks, Shawnay Hardaway, and Thomas Lee.

Plaintiff Burgan was driving a vehicle insured by Integon with an automobile liability policy with

insurance coverage limits of $25,000.00 per person and $50,000.00 per occurrence. Therefore, there

is only an aggregate of $50,000.00 in insurance coverage available to satisfy the liability claims of all

six (6) claimants.

As a result of having multiple claimants to a single liability policy with only $50,000.00

available, Integon filed an Interpleader and a Declaratory Judgment Action on December 1, 2020, in

U.S. District Court, Northern District of Ohio. (A true and accurate copy of the Complaint is attached

hereto as Exhibit “A”.) In the federal Declaratory Judgment action, Plaintiff Lavem Boyd,

Administratrix of Roberto Russell’s Estate, is a named Defendant along with allother claimants to

the proceeds of Stephen A. Burgan’s coverage with Integon. The federal suit seeks to determine

entitlement of ALL claimants (including Boyd) under the Integon liability policy. (Attached, Case

number: l:20-cv-02811-SO, Exhibit A). In that action, Integon seeks declaratory relief pursuant to

the Federal Declaratory Judgement Act, 28 U.S.C. § 2201(a), wherein Integon’s rights and obligations

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under a Personal Automobile Policy issued to Henrika Romero for all liability claims arising from

the February 14,2020 accident, will be determined.

Once the policy limits of $50,000 are deposited with the Federal court, the parties are entitled

to seek a judicial determination of the available policy limits and their respective shares of those

policy limits.

Plaintiff filed the present action with this Court on March 1,2021, three months after Integon

filed its Complaint in U.S. District Court. Plaintiff Laverne Boyd filed this action three (3) months

after she was already named in the federal lawsuit. Further, Boyd was aware of the pending federal

case at the time of filing this action.1 The claim she has attempted to assert here is a compulsory

counterclaim in the earlier filed Federal suit.

IL Law and Argument

The general rule is that when the jurisdiction of two courts is invoked concerning the same

subject matter, the tribunal whose power was first invoked acquires jurisdiction, to the exclusion of

all other tribunals, to adjudicate the matter. State ex rel. Judson v. Spahr (1987), 33 Ohio St. 3d 111,

113, 515 N.E.2d [*482] 911; Commercial Union Ins. Co. v. Wheeling Pittsburgh Corp., 106 Ohio

App.3d 477, 481-482, 666 N.E.2d 571 (2d Dist.1995). The jurisdictional-priority rule provides that

as between courts of concurrent jurisdiction, the tribunal whose power is first invoked acquires

exclusive jurisdiction to adjudicate the whole issue and settle the rights of the parties." Newman v.

Martinez, 4th Dist. Pike No. 15CA857, 2016-Ohio-647, 17; see also, State ex rel. Vanni v.

McMonagle, 137 Ohio St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243; State ex rel. McGirr v. Winkler,

Slip Opinion No. 2017-0hio-8046, U 19, 152 Ohio St. 3d 100, 93 N.E.3d 928, citing State ex rel.

1 See attached Exhibit "B", email dated February 1, 2021 from Brian Kerns to attorney Jack Turoff (and ail other
counsel for claimants to this policy)providing a copy of the federal complaint and requesting he sign a waiver of
service on behalf of the La Verne Boyd, adm of Estate of Roberto Russell.

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Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, see also. Long v. Grill, 155

Ohio App.3d 135, 2003-Ohio-5665, 799 N.E.2d 642, T|27 (10th Dist.)("The 'rule of priority of

jurisdiction' applies to actions pending in different Ohio courts that have concurrent jurisdiction;

Nationwide Mui. Fire Ins. Co. v.Modroo, 11th Dist. Geauga No. 2004-G-2557, 2004-Ohio-4697, J

12; Mouded v. 20! 8-Ohio-284,105 N.E.3d 466, 9 (Sth Dist.). The Supreme Court of Ohio

has "recognized that the jurisdictional-priority rule can apply even when the causes of action and

relief requested are not exactly the same, as long as the actions present part of the same 'whole issue.'"

State ex rel. Dunlap v. Sarko, 135 Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, 11.

Ohio Courts have long held that “(a]s between courts of concurrent jurisdiction, the tribunal

whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the

exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the

parties.” State ex rel. Phillips v. Polcar, 50 Ohio St. 2d 279, 365 N.E.2d 33 (1977), 279 citing John

Weenink & Sons Co. v. Court of Common Pleas, 150 Ohio St. 349 (1948). (emphasis added)', see

also, Commercial Union Ins. Co. v. Wheeling Pittsburgh Corp. 106 Ohio App. 3d 477, N.E.2d 571

(2nd Dist. 1995).

Similarly, in Federal Court “[t]he first-to-file rule is a well-established doctrine of federal

comity. The rule was first recognized by the U.S. Supreme Court in Smith v. M’lver, 22 U.S. (9

Wheat.) 532, 6 L. Ed. 152 (1824). There the Court ruled that “in all cases of concurrent jurisdiction,

the court which first has possession of the subject must decide it.” Id. At 534.” Robinson Premium

Meats, Inc. v. Kenray Assocs., E.D. Ky. Civil Action No. 6: 05-354-DCR, 2005 U.S. Dist. LEXIS

23457, at *3 (Oct. 12,2005).

The suit filed by Integon in U.S. District Court, Northern District of Ohio and assigned to

Judge Solomon Oliver in 2020 encompasses not only the wrongful death claim of the Estate of

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Roberto Russell, but all such death and injury claims arising from the February 14, 2020 accident

allegedly caused by Stephen A. Boyd. In this earlier filed federal action, Integon requests the Judge

Oliver to enforce the limits of liability in the Integon policy as it relates to the damages Plaintiff Boyd

seeks in this later filed case. Here, Plaintiff asserts an action, based on the same set of operative facts

as the case already pending in federal Court. Allowing both cases to proceed could result a multitude

of injustices including contradictory judgments on liability and damages issues between the same

parties; potential contradictory declaratory judgement rulings; contradictory insurance coverage

determinations and/or inequities as between Plaintiff Boyd and the other five (5) claimants named in

the earlier filed federal lawsuit.

In short, Integon’s federal court Complaint was filed first. Ohio case law on this point is clear.

It holds that the later filed action should be dismissed2 or at the very least stayed pending the outcome

of the first filed action which seeks to settle all issues with all interested parties. The public policy

underlying this jurisprudence is understandable because it promotes judicial economy and the public

policy interest in avoiding duplication of discovery, pleadings, motions, hearing and potentially

conflicting court decisions over the same subject matter. This action must be dismissed and the

federal suit involving ALL interested parties permitted to proceed to determine the rights and duties

of all the various interested parties.

2 The Supreme Court of Ohio has also adopted the doctrine of forum non conveniens which allows a court with proper
jurisdiction to dismiss an action when doing so would further the ends of justice and promote the convenience of the
parties and witnesses. Chambers v. Merrell-Dow Pharmaceuticals, Inc. (1988), 35 Ohio St.3d 123,126,519 N.E.2d 370.
The doctrine of forum non conveniens supplies a basis for a court to resist imposition of the case upon its jurisdiction.
Id. There are a number of public and private interests that a trial court must analyze before dismissing a case based on
forum non conveniens. Id. Private interest factors include: access to sources of proof; the availability of compulsory
process for attendance of unwilling witnesses; the cost and location of obtaining attendance of willing witnesses; the
possibility of inspecting the premises if appropriate; and other practical problems that make trial of a case easy,
expeditious and inexpensive. Id. at 127. Public interest factors to be considered include administrative difficulties and
delay to other litigants caused by congested court dockets, the imposition of jury duty upon citizens of the jurisdiction,
and the appropriateness of litigating a case in a forum familiar with the applicable law. Id.

Nationwide Mut. Fire Ins. Co. v. Modroo, 11th Dist. Geauga No. 2004-G-2557, 2004-Ohio-4697, U 16

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III. Conclusion

Suit was first filed involving these same parties and issues in United States District Court in

December, 2020. La Verne Boyd as administratrix of the Estate Of Roberto Russell, has a compulsory

claim to assert in that action if she seeks recovery under the Integon liability insurance policy covering

Stephen A. Burgan for damages he caused in the February, 2020 fatal accident. Ohio law mandates

dismissal of this state court claim.

The first court whose power is invoked is entitled to determine the dispute at issue between

the parties. Defendant, Integon General Insurance Corporation plead and filed its case in United States

District Court in December 2020. This instant action seeks to litigate the same issues as those plead

by Integon in the federal action, but without all the necessary and interested parties to the dispute.

Dismissal is mandated under Ohio law and the clear weight of authority. In the alternative to

dismissal. Defendant requests this action be stayed until the outcome of U.S District Court, Northern

District of Ohio Case No. 1:20-cv-02811 -SO, pending before Judge Solomon Oliver.

Brian D. Kerns (0037015)
BONNEZZI SWITZER POLITO
& HUPP CO. L.P.A.
46 Public Square, Suite 230
Medina, Ohio 44256
Telephone: (330) 952-0440
Fax: (330) 952- 2981
Email: bkemsigjbshplaw.com
Attorney for Defendant Integon

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Certificate of Service

This will certify that a true copy of the foregoing Motion To Dismiss Or In The

Alternative Stay was hereby served upon Plaintiff counsel Jack Turoff via this Court’s electronic

filing system this 10th day of March, 2020, as follows:

Jack N. Turoff, Esq.
Turoff & Turoff
20600 Chagrin Boulevard, Suite 600
Shaker Heights, OH 44122
Attorney for Plaintiff

BONEZZI SWITZER POLITO
& HUPP CO. LPA
Attorneys for Defendant

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

INTEGON GENERAL INSURANCE ) CASE NO.
CORPORATION )
5630 University Parkway, PO Box 3199 ) JUDGE
Winston-Salem NC 27102-3199 )
)
Plaintiff )
)
v. ) COMPLAINT FOR
) DECLARATORY JUDGMENT
LA VERNE N. BOYD, Administratrix of the )
Estate of Roberto Russell, aka Roberto )
Russell Eli, deceased )
20600 Chagrin Blvd. #600 )
Shaker Hei ghts, Ohio 44122 )
)
and )
)
MARQUETTA HARPER, Administratrix of the )
Estate of Deron Grant, deceased )
141121 Saybrook Ave. )
Cleveland, Ohio 44105 )
)
and )
)
NICOLE LONGING, Esq., Administratrix of the )
Estate of Stephen M. Burgan, deceased )
11811 Shaker Blvd. #420 )
Cleveland, Ohio 44120 )
)
and )
)
MICHAEL BROOKS )
12412 Havana Road )
Garfield Hts., Ohio 44125 )
)
and )
)
SHAWNAY HARDAWAY )
1170 East 113th St. )
Cleveland, Ohio 44108 )
)
and )

; DEFENDANTS
i EXHIBIT
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)
THOMAS LEE )
1170 East 113th St. )
Cleveland, Ohio 44108 )
)
and )
)
STEPHEN A. BURGAN )
4280 East 124th St. )
Cleveland, Ohio 44105 )
)
and )
)
HENRIKA ROMERO )
4224 Story St. )
Memphis, Tennessee 38128 )
)
and )
)
CUYAHOGA COUNTY CHILD SUPPORT )
ENFORCEMENT AGENCY )
1640 Superior Avenue East )
P.O. Box 93318 )
Cleveland, Ohio 44101-5318 )
)
Defendants )

Now comes the Plaintiff Integon General Insurance Corporation (“Integon”) and for its

Complaint against Defendants La Verne N. Boyd, Administratrix of the Estate of Roberto Russell

aka Roberto Russell Eli, Marquetta Harper, Administratrix of the Estate of Deron Grant, Nicole

Longino, Esq., Administratrix of the Estate of Stephen M. Burgan, Michael Brooks, Shawnay

Hardaway, Thomas Lee, Stephen A. Burgan, Henrika Romero, and the Cuyahoga County Child

Support Enforcement Agency (“CSEA) hereby states as follows:

NATURE OF ACTION

1. Integon seeks declaratory relief pursuant to the Federal Declaratory Judgment Act,

28 U.S.C. 2201(a).

2
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2. Integon seeks a declaration by this Court concerning its rights and obligations under

a Personal Automobile Policy issued to Henrika Romero for various liability claims arising from

a February 14, 2020 vehicular accident which occurred while Stephen A. Burgan was operating

Ms. Romero’s Kia Forte on East 93rd Street in Cleveland, Ohio. Mr. Burgan’s allegedly tortious

misconduct killed Roberto Russell, Deron Grant, and Stephen M. Burgan and injured Michael

Brooks, Shawnay Hardaway, and Thomas Lee.

THE PARTIES

3. Plaintiff Integon is an insurance company incorporated under the laws of North

Carolina with its principal place of business in Winston-Salem, North Carolina.

4. Roberto Russell, Deron Grant, Stephen M. Burgan, Michael Brooks, Shawnay

Hardaway, and Thomas Lee sustained injuries in the February 14, 2020 accident. They were all

residents of Cuyahoga County, State of Ohio, at the time of the accident.

5. Defendant Stephen A. Burgen allegedly caused the auto accident involving all of

the injured parties. He was a resident of Cuyahoga County, State of Ohio, at the time of the

accident. Integon states upon information and belief that he was a “permissive user” of the vehicle

and, if so, would be an “insured” under Integon’s policy. He is being joined as an interested party

whose rights under Integon’s policy will be affected by this Court’s coverage determination(s).

6. Defendant Henrika Romero is a resident of Memphis, Tennessee. She was the

owner of the 2016 KIA Forte Ex that was being operated by her boyfriend, Stephen A. Burgen, at

the time of the accident. Ms. Romero had entrusted her KIA to Stephen A. Burgen for his use in

Ohio for a period of several months preceding the accident. She may have liability claims

presented against her alleging that she negligently entrusted her vehicle here in Ohio. Integon

issued its Personal Automobile Policy (policy number 2007728464) to Henrika Romero covering

3
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the KIA Forte and it was in effect at the time of the accident. Henrika Romero is being joined as

an interested party whose rights under Integon’s policy will be affected by this Court’s coverage

determination(s).

7. Defendant Cuyahoga County Support Enforcement Agency (Hereafter “CSEA”)

has notified Integon that the CSEA is asserting a lien with respect to any amount owed to Roberto

D. Russell up to $10,966.95 and that the CSEA is asserting a lien with respect to any amount owed

to Deron Grant up to $10,798.31. The CSEA is being joined as an interested party whose rights

under Integon’s policy will be affected by this Court’s coverage determination(s).

JURISDICTION AND VENUE

8. There is federal court jurisdiction under 28 U.S.C. 1332(a) because there is

complete diversity of citizenship between Plaintiff Integon and all of the Defendants, and the

amount in controversy exceeds $75,000.

9. Venue is proper in the Northern District of Ohio under 28 U.S.C. 1391(b)(2)

because this is the judicial district in which a substantial part of the events or omissions giving rise

to the claim occurred.

THE AUTOMOBILE ACCIDENT

10. On Friday, February 14, 2020, at approximately 8:01 p.m., Stephen A. Burgan

operated his girlfriend’s 2016 Kia Forte northbound, the wrong way, in the southbound center lane

of E. 93rd Street. Mr. Burgan caused the Kia to collide head on with a 2020 Toyota Camry being

operated by Deron M. Grant who was driving in the southbound center lane of E. 93rd Street. The

force of the impact caused the rear of the 2016 Kia to come off the ground, rotate in a clockwise

direction and strike the left side of a 2003 Toyota Camry being operated by Michael Brooks in the

southbound curb lane of E. 93rd Street. The force of the impact caused the 2020 Toyota operated

4
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by Grant to rotate in a clockwise direction and collide with the left side of a 2016 Chevrolet Impala

being operated by Shawnay P. Hardaway in the northbound curb lane of E. 93rd Street.

11. Deron M. Grant died as a result of the collision. Roberto D. Russell, who was a

passenger inthe2016Kia Forte, died as a result of the collision. Stephen M. Burgan (son of Steven

A. Burgan), who was a passenger of the 2016 Kia Forte, received critical injuries as a result of the

collision and died months later. Michael Brooks, Shawnay Hardaway, and Thomas Lee (a

passenger in Hardaway’s Impala) sustained injuries as a result of the accident.

INTEGON’S POLICY

12. Integon had in effect at the time of the February 14, 2020 accident a Personal

Automobile Policy issued to Henrika Romero covering her 2016 KIA Forte Ex. The policy

provides liability insurance coverage with limits of insurance of $25,000 Each Person/$50,000

Each Accident. A true, complete, and accurate copy of Integon’s Personal Automobile Policy is

attached as Exhibit A.

13. The “Insuring Agreement” of “Part A>Liability Coverage” of the Integon policy

provides as follows in relevant part:

Subject to the limit of liability shown on the Declarations Page, if you pay us the premium
for Liability Coverage, we will pay compensatory damages for which an insured is legally
liable due to bodily injury or property damage caused by an accident that arises out of
the ownership, maintenance or use of an auto covered under this Part A.

14. The Integon policy defines “accident” to mean “a sudden, unexpected and

unintended event.”

15. The Integon policy provides that “derivative claims” include, but are not limited

to, damages for care, emotional injury or mental anguish, wrongful death, or loss of:

1. Service;
2. Consortium;
3. Society;

5
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4. Companionship;

resulting from the bodily injury of another or from witnessing the bodily injury of another

16. The “Limit of Liability” for Part A>Liability Coverage provides as follows in

relevant part:

A. The Bodily Injury limit of liability shown on the Declarations Page for each person
is the most we will pay for all damages, including derivative clams, arising out of
and due to bodily injury sustained by any one person in any one accident. For the
purpose of such limit of liability, all damages, including derivative claims, shall
constitute a single claim.

B. Subject to the limit of liability for each person, the Bodily Injury limit of liability
shown on the Declarations Page for each accident is the most we will pay for all
damages, including derivative claims, arising out of and due to bodily injury
resulting from any one accident. For the purpose of such limit of liability, all
damages, including derivative claims, shall constitute a single claim.

***

E. There will be no adding, stacking or combining of coverage. The limits of liability
for Bodily Injury Liability Coverage and Property Damage Liability Coverage
shown on the Declarations Page are the most we will pay as the result of any one
accident without regard to the number of:

1. Insureds, heirs or survivors:
2. Claimants;
3. Claims made;
4. Lawsuits filed;
5. Vehicles shown on the Declarations Page;
6. Premiums shown on the Declarations Page; or
7. Premiums paid.

17. There are six separate bodily injury liability claims arising out of the February 14,

2020 accident. Three of these include claims for wrongful death.

18. In accordance with Integon’s clear and unambiguous policy language, the Bodily

Injury limit of liability shown on the Declarations page of $25,000 Each Person “is the most we

will pay for all damages, including derivative claims, arising out of and due to bodily injury

6
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sustained by any one person in any one accident” and that “[f]or the purpose of such limit of

liability, all damages, including derivative claims, shall constitute a single claim.”

19. In accordance with Integon’s clear and unambiguous policy language, the Bodily

Injury limit of liability shown on the Declarations Page of $50,000 Each Accident “is the most we

will pay for all damages, including derivative claims, arising out of and due to bodily injury

resulting from any one accident” and that “[f]or the purpose of such limit of liability, all damages,

including derivative claims, shall constitute a single claim.”

20. It has been asserted by one or more of the Defendants that claims arising out of

Stephen A. Burgan’s allegedly negligent operation of the KIA Forte on February 14,2020 permits

recovery of more than the limits of liability coverage of $25,000 Each Person and $50,000 Each

Accident.

21. There was only one “accident” on February 14, 2020 caused by Stephen A.

Burgan’s allegedly negligent operation of Henrika Romero’s KIA Forte. Integon’s limit of liability

for all damages including derivative claims arising out of and due to bodily injury sustained by

any one person is $25,000 and itslimit of liability for all damages including derivative claims

arising out of and due to bodily injury resulting from any one accident is $50,000. Integon should

be allowed to interplead into Court its $50,000 “Each Accident” limit of liability thereby

exhausting its limit of liability for Part A>Liability Coverage.

22. Once the policy limits of $50,000.00 are interpleaded under Rule 22 of the Federal

Rules of Civil Procedure, Plaintiff requests an order declaring that it has no further obligation to

any claimant, Defendant, or any other parties under the insurance contract (“policy”) issued to

Henrika Romero as abovementioned.

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23. Once the policy limits of $50,000.00 are deposited with the court, the parties are

entitled to seek a judicial determination of the share of each party’s entitlement, without the further

involvement of Plaintiff.

24. One of the claimants under the policy, the Estate of Roberto Russell, is claiming it

alone is entitled to recover more than the $50,000.00 limit under the Integon policy, therefore,

Integon is in a position in which it cannot equitably satisfy all claimants under it’s policy which is

limited to a total payout to any and all claimants of the aggregate amount of $50,000.00 regardless

of how those proceeds are divided between the six separate parties.

WHEREFORE, Plaintiff Integon prays for judgment on its “Complaint for Declaratory

Judgment” including an Order providing as follows:

A. The Integon policy provides a Bodily Injury limit of liability shown on the
Declarations page of $25,000 Each Person which “is the most [Integon] will pay for all
damages, including derivative claims, arising out of and due to bodily injury sustained
by any one person in any one accident” and that “[f]or the purpose of such limit of
liability, all damages, including derivative claims, shall constitute a single claim;”

B. The Integon policy provides a Bodily Injury limit of liability shown on the
Declarations Page of $50,000 Each Accident which “is the most [Integon] will pay for
all damages, including derivative claims, arising out of and due to bodily injury resulting
from any one accident” and that “[f]or the purpose of such limit of liability, all damages,
including derivative claims, shall constitute a single claim;”

C. Stephen A. Burgen’s allegedly negligent operation of Henrika Romero’s KIA Forte
on the evening of February 14, 2020 was but one continuous accident that caused all of
the bodily injuries that flowed from it and, thus, the bodily injuries suffered by Roberto
Russell, Deron Grant, and Stephen M. Burgan, and their wrongful deaths, and the bodily
injuries suffered by Michael Brooks, Shawnay Hardaway, and Thomas Lee, are all
subject to the $25,000 “Each Person” limit of liability and the $50,000 “Each Accident”
limit of liability of Integon’s Personal Automobile Policy;

D. There was only one “accident” on February 14, 2020 caused by Stephen A. Burgan’s
allegedly negligent operation of Henrika Romero’s KIA Forte; Integon’s limit of liability
for each person is $25,000 and its limit of liability for each accident is $50,000; and
Integon is hereby allowed to interplead into Court its $50,000 “Each Accident” limit of
liability thereby exhausting its limit of liability for Part A>Liability Coverage; and

8
Electronically Filed 03/10/2021 20:05 / MOTION / CV 21 944586 / Confirmation Nbr. 2201115 / CLAJB
Case: l:20-cv-02811-SO Doc#:l Filed: 12/21/20 9 of 9. PagelD #: 9

E. An award to Integon of such further relief as the Court may deem just and proper
including its costs and attorneys’ fees.

Respectfully Submitted

/s/ Brian D. Kerns________
Brian D. Kerns (#0037015)
William A. Peseski (#0095235)
BONEZZI SWITZER POLITO
& HUPP CO. L.P.A.
46 Public Square, Suite 230
Medina, Ohio 44256
T: (330)952-0440
F: (330)952-2981
E: bkems@bsphlaw.com

9
Electronically Filed 03/10/2021 20:05 / MOTION / CV 21 944586 / Confirmation Nbr. 2201115 / CLAJB
Brian D. Kerns

From: Brian D. Kerns
Sent: Monday, February 1, 2021 8:27 PM
To: Jack Turoff; Nickeylawone@msn.com; KZERRUSEN@knrlegal.com; John J. Reagan;
Jgeorge@knrlegal.com; khaddad@chesterlaw.com
Cc: Ashley R. Gerber; Jgeorge@knrlegal.com; aclay@chesterlaw.com; lanblaw@aol.com;
aclay@chesterlaw.com; sergey.kats@katslaw.com; Carla R. Wagner; Katie E, Epperson
Subject: FW: Activity in Case 1:20-cv-02811 INTEGON GENERAL INSURANCE COMPANY v. BOYD
et al Complaint Cl

Case Info

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ANDREW J. SANTOLI Track Judge’s New Case

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Document Filed Date

March 10, 2021

Case Filing Date

March 01, 2021

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Order: LAVERNE N. BOYD, ADMINISTRATRIX vs. STEPHAN A. BURGAN, ET AL

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