DEFENDANTS' MOTION AND MEMORANDUM TO FILE THIRD PARTY COMPLAINT AGAINST INSURERS

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' MOTION AND MEMORANDUM TO FILE THIRD PARTY COMPLAINT AGAINST INSURERS

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
AWARE WOMAN CENTER
FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE
Defendants.

CASE NO.: 97-1197-CV-ORL-19B

DEFENDANTS' MOTION AND MEMORANDUM TO FILE THIRD PARTY COMPLAINT AGAINST INSURERS FOR INDEMNIFICATION, EXEMPLARY DAMAGES, AND SEVERANCE OF INSURANCE MATTERS

DEFENDANTS AWCC et al. respectfully move this Court for leave to file and serve the appended third party complaint against declining insurer and insurance claims administrator, pursuant to FRCP 14(a). In support of this motion, AWCC states that this is the core circumstance for Rule 14(a) impleader. The third party defendant insurance companies have wrongly denied coverage and indemnification for defense of the underlying claims. The overall controversy will be more efficiently determined by bringing in the insurers before this Court, and separately determining their liability promptly as a matter of law. This may be accomplished by a decision on partial summary judgment regarding coverage liability and indemnification therefor.

Rule 14(a) expressly contemplates impleader of insurers, particularly declining defense insurers who may be liable to defendants for all defense costs and expenses incurred over the past ten months of this complex federal litigation, and hereafter. Wright & Miller, FEDERAL PRACTICE AND PROCEDURE, v 6, c 4, sec 1449, "Defendant's Insurer." Both the Rule, case law, and commentary are clear on the propriety of this impleader. See, e.g., Colton v. Swain, 527 F.2d 296 (7th Cir. 1975), aff'g 358 F. Supp. 859 (N.D. Ill. 1973), the leading case of many.

The coverage issue and mounting litigation costs to AWCC are important and ripe for determination, but are separable from the underlying action. Coverage may be determined without affecting the underlying case in any significant way. All proceedings on the third party complaint can be apart from the FACE case and AWCC counterclaims, and according to a separate timetable. E.g., AWCC will seek partial summary judgment after 20 days, based upon straightforward facts material to coverage.

It is desirable to determine the coverage questions promptly. AWCC has been subjected to an insubstantial lawsuit for nearly a year, and has incurred debilitating costs and litigation expenses, despite having paid expensive insurance premiums for Comprehensive General Liability Insurance.

WHEREFORE, AWCC et al. respectfully move this Court for leave to file the appended Rule 14 Third Party Complaint.

RESPECTFULLY SUBMITTED:

Roy Lucas <signed>
DC # 153957
c/o PO Box 1433
Melbourne, FL 32902
(407) 725-2413

Susan England
FL # 0186018
2805 Lakeview Drive
Fern Park, FL 32730
(407) 339-4600

ATTORNEYS FOR DEFENDANT-COUNTERCLAIMANTS AWCC ET AL.

CERTIFICATE OF SERVICE AND RULE 3.01 COMPLIANCE:

This Motion and Memorandum to File Third Party Complaint has been served by First Class Mail this 11th day of August, 1998, dispatched to Christopher Sapp, Esq., P.O. Box 1012, Lehigh Acres, FL 33970, with whom the undersigned personally talked about the motion on the previous day in compliance with 3.01.

By: Roy Lucas <signed>