Lawd-1 - 2019-cv-01173-00014 Response by USIC PDF

Case 1:19-cv-01173-DDD-JPM Document 14 Filed 11/22/19 Page 1 of 7 PageID #: 45
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
KAYLA J. GILES § CIVIL ACTION NO. 1:19-cv-01173

Plaintiff, §
§ CHIEF JUDGE DEE D. DRELL
§
VERSUS § MAGISTRATE JUDGE JOSEPH
§ H.L. PEREZ-MONTES
DELTA DEFENSE LLC ET AL. §
Defendants §
§
ANSWER AND DEFENSES

BY UNITED SPECIALTY INSURANCE COMPANY
NOW INTO COURT, through undersigned counsel, comes Defendant United
Specialty Insurance Company (“USIC”), as an alleged insurer of Delta Defense, L.L.C.,
in response to the First Amended and Re-Stated Complaint to Recover Funds Due Under
Insurance Policy (“Complaint”)1 filed by Plaintiff Kayla J. Giles (“Plaintiff”) respectfully
avers as follows:
DEFENSES
FIRST DEFENSE
The allegations in the Complaint fail to state a claim against USIC upon which
relief may be granted.
SECOND DEFENSE
Plaintiff has failed to provide sufficient specificity in the allegations of the
Complaint to permit a full response thereto, and USIC accordingly reserves its right to
1
Plaintiff filed a re-stated complaint in response to the Court’s Sua Sponte Jurisdictional Briefing Order.
In the event the Court finds that USIC was to have answered the original complaint (Rec. Doc. 1), USIC
adopts its defenses and responses as set forth herein and denies any remaining allegations.
raise any and all defenses under the USIC policy at issue (the “Policy”) or applicable law
until the precise nature of the claims are ascertained through discovery or through
amendments to pleadings.
THIRD DEFENSE
The claims asserted in the Complaint are barred because the claim for defense
arising out the charge for multiple criminal offenses (“Underlying Litigation”) does meet
the terms of the insuring agreement of the Policy.
FOURTH DEFENSE
The claims asserted in the Complaint are barred because USIC has no obligation
to provide a defense or duty to defend in connection with the investigation or defense of
any criminal charge or criminal proceeding against the insured such as the Underlying
Litigation.
FIFTH DEFENSE
The claims asserted in the Complaint are barred under the Policy because the
requirements of the Defense Payments and Expense provision of the Policy have not been
satisfied which include in part:
2. We will pay criminal defense costs incurred by an insured as follows:
a. We will pay, up to the Criminal Defense Occurrence limit

stated in the Declarations, the reasonable and necessary
costs and expenses incurred by the insured in connection
with the investigation or defense of any criminal charge or
criminal proceeding arising out of the use of a firearm, or
other weapon, that is “legally possessed” but only if and
when:
(1) The insured is arrested or charged with, or subject to

inquiry or questing regarding, a crime as a result of
the use of a firearm, or other weapon, that is “legally

possessed” and used in a “act of self-defense”, and
(2) The use of the firearm, or other weapon, in “act of
self-defense” occurred during the policy period, and
(3) The arrest, charges, inquiry or questioning occurred
no later than 60 days after the end of the policy
period.
b. Such reasonable and necessary costs and expenses

shall include legal fees incurred by the insured for the
payment of legal counsel provided that such counsel’s
rates are reasonable and commensurate with the
experience of the attorney, the complexity of the
proceeding, and the rates typically paid in the
jurisdiction where the proceeding is pending.
c. Payment of costs and expenses will reduce the
Criminal Defense Occurrence Limit shown in the
Declarations.
d. We have no obligation to provide a defense in
connection with the investigation or defense of any
criminal charge or criminal proceeding against the
insured.
***
“Self Defense” is defined under the Policy as:
1. “Act of self-defense” means an act of defending one’s person or others by the

actual or threatened use of a firearm, or other weapon, that is “legally
possessed’, against an imminent threat of death or serious bodily harm by an
aggressor, but only if.
a. any force used is both reasonable under the circumstances and
proportionate to the threat; and
b. the act is permitted by applicable law.
SIXTH DEFENSE
The claims asserted in the Complaint are barred, either in whole or in part, by the
terms, exclusions, conditions and/or limitations contained in the Policy.
SEVENTH DEFENSE
The claims asserted in the Complaint are barred, either in whole or in part, to the
extent that the act(s) or omission(s) which gave rise to the claims alleged in the
Underlying Litigation were in violation of public policy or law.

EIGHTH DEFENSE
extent that coverage under the Policy violates public policy.
NINTH DEFENSE
extent of accord and satisfaction through payments made by USIC.
TENTH DEFENSE
USIC incorporates herein by reference, as if set forth herein in extenso, all
defenses to the claims which have been asserted or will be asserted by any other
Defendant in this action to the extent that such defenses are not inconsistent with the
foregoing defenses asserted by USIC. USIC further reserves the right to raise any
additional defenses as discovery proceeds.
ANSWER TO ENUMERATED ALLEGATIONS
And now, for answer to the enumerated allegations of the Complaint, USIC
responds as follows:
1. USIC denies the allegations in Paragraphs 1-2 of the Complaint for lack of
information sufficient to justify a belief therein and/or because those allegations contain
conclusions of law that require no answer from USIC.
2. To the extent they are directed at USIC, USIC denies the allegations in
Paragraph 3 of the Complaint except to admit that USIC, a surplus lines insurance
company, is a foreign insurance company approved to issue policies in Louisiana through
a surplus lines broker. To the extent the allegations in Paragraph 3 of the Petition are
directed at other defendants, USIC denies those allegations for lack of information
sufficient to justify a belief therein.
3. USIC denies the allegations in Paragraph 4 of the Complaint for lack of
information sufficient to justify a belief therein.
4. To the extent they are directed at USIC, USIC denies the allegations in
Paragraph 5 of the Complaint except to admit that USIC is a foreign insurer approved to
issue policies in Louisiana through a surplus lines broker, is incorporated in the state of
Delaware with its principal place of business in Texas, and can be served through the
Louisiana Secretary of State. To the extent the allegations in Paragraph 5 of the Petition
are directed at other defendant, USIC denies those allegations for lack of information
sufficient to justify a belief therein.
5. To the extent directed at USIC, USIC denies the allegations in Paragraphs
6-10 of the Complaint except to admit that USIC entered into a negotiated insurance
contract with Delta Defense Inc. subject to, and in accordance with, the terms, conditions,
limitations and exclusions of the Policy. The Policy is the best evidence of its contents.
USIC denies that the Policy provides coverage for defense of the Underlying Litigation.
To the extent directed at any other defendant, USIC denies the allegations in Paragraphs
6-10 of the Complaint for lack of information sufficient to justify a belief therein and/or
because those allegations contain conclusions of law that require no answer from USIC.
6. To the extent the allegations in Paragraphs 11-12 of the Complaint refer to
any written document, USIC states that those written documents are the best evidence of
their contents. To the extent the remaining allegations in Paragraphs 11-12 constitute
conclusions of law, no response is required. To the extent a response to such is deemed
necessary, USIC denies these legal conclusions. Any remaining factual allegations are
denied for lack of sufficient information to justify a belief as to the matters asserted
therein except to admit that Kayla J. Giles used a weapon and was arrested and charged
with multiple criminal defenses.
7. USIC denies Paragraph 13 of the Complaint.
8. USIC denies the allegations in Paragraphs 14 of the Complaint except to
admit that USIC advanced $50,000 to Plaintiff. To the extent this Paragraph references
the Policy, the Policy is the best evidence of its contents. USIC denies that the Policy
provides coverage for defense of the Underlying Litigation.
9. USIC denies the allegation in Paragraph 15 of the Complaint.
10. The allegations in Paragraph 16 contain conclusions of law that require no
answer from USIC. To the extent an answer is deemed required, USIC denies the
allegations.
11. USIC denies the allegations in Paragraph 17 of the Complaint except to
admit that Kayla J. Giles hired a criminal defense attorney.
12. USIC denies the allegations in Paragraphs 18-21 of the Complaint except
to admit that USIC entered into a negotiated insurance contract with Delta Defense Inc.
subject to, and in accordance with, the terms, conditions, limitations and exclusions of the
Policy. The Policy is the best evidence of its contents. USIC denies that the Policy
provides coverage for defense of the Underlying Litigation.
13. Paragraph 22 and the final paragraph of the Complaint contain requests for
relief to which no response is required. However, to the extent that a response may be
deemed to be required, USIC denies that Plaintiff is entitled to any of the relief requested.
14. To the extent a response is required to any allegation in any mis-numbered

or unnumbered paragraphs, USIC denies the allegations and asserts and re-avers all of its
answers, responses, exceptions, and defenses set forth in its answers to the Complaint, as
if set forth in extenso.
WHEREFORE, USIC denies that Plaintiff is entitled to any of the relief that has
been demanded and prays for judgment as follows:
1. That the Complaint filed herein by the Plaintiff be dismissed her cost and
with prejudice; and
2. For such other equitable and legal relief as the Court may deem just and
proper.
Respectfully submitted,
/s/ Céleste D. Elliott

Celeste D. Elliott
La. Bar No. 24068
Shaundra M. Schudmak
La. Bar No. 32007
LUGENBUHL, WHEATON, PECK, RANKIN &
HUBBARD
601 Poydras Street, Suite 2775
New Orleans, LA 70130
Telephone: (504) 568-1990
Facsimile: (504) 310-9195
Emails: [email protected]
[email protected]
Attorneys for Defendant United Specialty
Insurance Company
CERTIFICATE OF SERVICE
I hereby certify that on 22 November 2019 a copy of the foregoing was filed
electronically with the Clerk of Court using the CM/ECF system. Notice of this filing
will be sent to all counsel by operation of the court’s electronic filing system.
/s/ Céleste D. Elliott

Celeste D. Elliott

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Case 1:19-cv-01173-DDD-JPM Document 14 Filed 11/22/19 Page 1 of 7 PageID #: 45

UNITED STATES DISTRICT COURT

KAYLA J. GILES § CIVIL ACTION NO. 1:19-cv-01173

ANSWER AND DEFENSES

NOW INTO COURT, through undersigned counsel, comes Defendant United

Specialty Insurance Company (“USIC”), as an alleged insurer of Delta Defense, L.L.C.,

Insurance Policy (“Complaint”)1 filed by Plaintiff Kayla J. Giles (“Plaintiff”) respectfully

relief may be granted.

Plaintiff has failed to provide sufficient specificity in the allegations of the

the terms of the insuring agreement of the Policy.

to provide a defense or duty to defend in connection with the investigation or defense of

satisfied which include in part:

2. We will pay criminal defense costs incurred by an insured as follows:

a. We will pay, up to the Criminal Defense Occurrence limit

(1) The insured is arrested or charged with, or subject to

the use of a firearm, or other weapon, that is “legally

b. Such reasonable and necessary costs and expenses

1. “Act of self-defense” means an act of defending one’s person or others by the

terms, exclusions, conditions and/or limitations contained in the Policy.

Underlying Litigation were in violation of public policy or law.

extent that coverage under the Policy violates public policy.

extent of accord and satisfaction through payments made by USIC.

USIC incorporates herein by reference, as if set forth herein in extenso, all

additional defenses as discovery proceeds.

ANSWER TO ENUMERATED ALLEGATIONS

conclusions of law that require no answer from USIC.

company, is a foreign insurance company approved to issue policies in Louisiana through

sufficient to justify a belief therein.

3. USIC denies the allegations in Paragraph 4 of the Complaint for lack of

information sufficient to justify a belief therein.

sufficient to justify a belief therein.

5. To the extent directed at USIC, USIC denies the allegations in Paragraphs

6. To the extent the allegations in Paragraphs 11-12 of the Complaint refer to

conclusions of law, no response is required. To the extent a response to such is deemed

with multiple criminal defenses.

7. USIC denies Paragraph 13 of the Complaint.

8. USIC denies the allegations in Paragraphs 14 of the Complaint except to

provides coverage for defense of the Underlying Litigation.

9. USIC denies the allegation in Paragraph 15 of the Complaint.

10. The allegations in Paragraph 16 contain conclusions of law that require no

11. USIC denies the allegations in Paragraph 17 of the Complaint except to

admit that Kayla J. Giles hired a criminal defense attorney.

provides coverage for defense of the Underlying Litigation.

14. To the extent a response is required to any allegation in any mis-numbered

if set forth in extenso.

been demanded and prays for judgment as follows:

with prejudice; and

/s/ Céleste D. Elliott

/s/ Céleste D. Elliott

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