WEST VIRGINIA RECORD

CLARKSBURG – An incident that occurred during the All Good Music Festival in 2011 has four insurance companies involved in a lawsuit for damages.

St. Paul Fire & Marine Insurance Company and RSUI Indemnity Company were named as the defendant insurance companies in the suit.

American Insurance Company and Fireman’s Fund Insurance Company issued policies to Walther Corporation in 2011, and on July 14 through July 17, 2011, Walther, which was doing business as All Good Music Festival, organized a multi-day concert at Marvin’s Mountaintop Campground in Preston County, according to a complaint filed Jan. 2 in the U.S. District Court for the Northern District of West Virginia.

The plaintiffs claim Event Staffing, Inc., engaged in the business of providing guest service personnel, including ushers, ticket takers, door attendants, bag checks, ID checks/wristband, perimeter security, barricade security, overnight security, parking attendants, lawn chair sellers, merchandise sellers, computer operators, ABC enforcement assistance and state-certified security guards and professionals for entertainment-based events and clients.

During the event, some patrons parked their vehicles on very hilly terrain beside their campsite, despite rules prohibiting this, according to the suit, and the responsibility for controlling any potential or actual hazardous or dangerous conditions or activities was ESI’s responsibility, pursuant to its security service contract with Walther.

The plaintiffs claim on the morning of July 17, 2011, a vehicle being operated by Clay Lewin that had been improperly parked slid down the slope of a wet hillside and struck a tent being occupied by Nicole Faris Miller, Yen Ton and Elizabeth Rose Doran.

As a result of the incident, Miller died and Ton and Doran sustained serious injuries, according to the suit.

The plaintiffs claim ESI had a duty to observe and monitor the campsite area and require Lewin to move his vehicle from the campsite, but breached its duties and obligations under the security service contract by failing to do so.

On Sept. 26, 2011, Ton filed a personal injury suit against Walther and ESI, and on Oct. 11, 2011, Doran did the same, according to the suit.

The plaintiffs claim on Dec. 7, 2011, pursuant to the terms of the security service contract and Walther’s policies of insurance with American and Fireman’s Fund, the underlying tort actions filed against Walther was tendered to ESI and its insurers for a defense and full indemnification.

On Jan. 24, St. Paul acknowledged receipt of the formal tender and indicated it was still reviewing the matter, and on June 1, St. Paul acknowledged that Walther may potentially qualify as an additional insured under the policy issued by it to ESI. St. Paul stated that “its policy does not require any coverage to be primary and non-contributory; and… there would be no coverage under its policy to the extent that Walther is solely negligent,” according to the suit.

The plaintiffs claim on Dec. 12, St. Paul refused to defend and indemnify Walther; reimburse American and Fireman’s Fund for the $2,000 settlement it reached; and reimburse American and Fireman’s Fund for the costs they incurred for defending Walther.

On Dec. 19, RSUI adopted the position of St. Paul and also refused to do the same, according to the suit.

The plaintiffs claim since the defendants have refused to do defend or indemnify Walther for the claims asserted against them, the plaintiffs have fully covered the losses presented and have paid more than their fair share.

The defendants’ actions caused the plaintiffs damages, according to the suit.

The plaintiffs are seeking compensatory damages. They are being represented by Clarence E. Martin III and Paul B. Weiss.

The case has been assigned to U.S. District Court Judge Irene M. Keeley.

U.S. District Court for the Northern District of West Virginia: 1:13-cv-2