Case 5:15-cv-00007-gwc Document 1 Filed 01/14/15 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF VERMONT
ACE FIRE UNDERWRITERS INSURANCE
COMPANY, as subrogee ofMarlboro School of
Music and/or Soovin Kim, A.T.I.M.A.
436 Walnut Street
Philadelphia, PA 19106

U.S. OISTI~ICT COUR

DISTRICT OF VERi'10H
FiLED

2015 JAN 14 PH 3:

CML ACTION

N~ ~
---

BY

o::PUTY CLERK

COMPLAINT

Plaintiff

JURY TRIAL DEMANDED

v.
SHERATON BURLINGTON HOTEL &
CONFERENCE CENTER
870 Williston Road
Burlington, VT 05403
and
STARWOOD HOTELS AND RESORTS
WORLDWIDE, INC.
One StarPoint
Stamford, CT 06902
and
FCH/SH LEASING II, L.L.C.
545 E. John Carpenter Freeway, Suite 1300
Irving, TX 75062
Defendants
Plaintiff, ACE Fire Underwriters Insurance Company, as subrogee of Marlboro School
of Music and/or Soovin Kim, A.T.I.M.A., by and through its undersigned counsel, hereby
files this Complaint against Defendants Sheraton Burlington Hotel & Conference Center,
Starwood Hotels and Resorts Worldwide, Inc., and FCH/SH Leasing II, L.L.C., and in
support thereof avers as follows:
JOSEPH D. FALLON
ATTORNEY AT LAW
P.O. BOX257
10729 ROUTE 116
HINESBURG, VT 05461

(802) 482-2137

Case 5:15-cv-00007-gwc Document 1 Filed 01/14/15 Page 2 of 6

PARTIES

1.

Plaintiff herein, ACE Fire Underwriters Insurance Company (hereinafter

"ACE"), is a corporation duly organized and existing under the laws of the Commonwealth of
Pennsylvania, with its principal place of business located at 436 Walnut Street, Philadelphia,
Pennsylvania 19106, and at all times material hereto, was engaged in the business of
msurance.
2.

Defendant herein, Sheraton Burlington Hotel & Conference Center (hereinafter

"Sheraton"), upon information and belief, is the trade name of the hotel and conference center
which at all times material hereto operated as the Sheraton Burlington Hotel & Conference
Center located at 870 Williston Road, Burlington, VT 05403.
3.

Defendant herein, Starwood Hotels and Resorts Worldwide, Inc. (hereinafter

"Starwood"), is a corporation duly organized and existing under the laws of the State of
Connecticut, with its principal place ofbusiness located at One StarPoint, Stamford,
Connecticut 06902, and upon information and belief, at all times material hereto operated the
hotel and conference center doing business as and trading as the Sheraton Burlington Hotel &
Conference Center located at 870 Williston Road, Burlington, VT 05403.
4.

Defendant herein, FCH/SH Leasing II, L.L.C., (hereinafter "Felcor"), is a

Delaware corporation, with its principal place of business located at 545 E. John Carpenter
Freeway, Suite 1300, Irving, TX 75062, and upon information and belief, at all times material
hereto, was the owner of the Sheraton Burlington Hotel & Conference Center located at 870
Williston Road, Burlington, VT 05403.
JURISDICTION AND VENUE
JOSEPH D. FALLON
ATTORNEY AT LAW

5.

The jurisdiction of this Court is based upon diversity of citizenship pursuant to

P.O. BOX257
10729 ROUTE 116

28 U.S.C. 1332. The matter in controversy exclusive of interest and costs, exceeds the sum

HINESBURG. VT 05461

(802) 482-2137

of$75,000. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(a).

2

Case 5:15-cv-00007-gwc Document 1 Filed 01/14/15 Page 3 of 6

FACTS
6.

At all times material hereto, Plaintiff ACE provided insurance coverage to

Marlboro School of Music and/or Soovin Kim, A.T.I.M.A. (hereinafter "Soovin Kim") with
respect to an Antonius Stradivarius Cremonensis Faciebat ANNO 1709, "Ex-Hammig" Violin
(hereinafter "Stradivarius Violin").
7.

At all times material hereto, and upon information and belief, Sheraton,

Starwood and/or Felcor owned, operated, possessed, maintained, repaired, renovated, erected,
supervised, managed and/or controlled the premises trading and doing business as the
Sheraton Burlington Hotel & Conference Center located at 870 Williston Road, Burlington,
VT 05403, including the parking lots and sidewalks on, in, and about the Sheraton Burlington
Hotel & Conference Center property (hereinafter "the hotel").
8.

On January 14, 2012, Soovin Kim, who was a guest of the hotel, parked his car

in the hotel parking lot a short distance from the hotel door. Mr. Kim was walking from his
car to the hotel door while carrying the Stradivarius Violin in its case when he slipped on ice
on the sidewalk. When Soovin Kim slipped on the ice, the Stradivarius Violin case struck the
ground, and Soovin Kim's chin hit the case. The Stradivarius Violin was severely damaged.
9.

The damage to the violin necessitated repairs in the amount of$89,470 and

caused a loss in value to the violin in excess of$1,000,000.

10.

Due to the dangerous condition of the hotel parking lot and sidewalk, Soovin

Kim slipped on ice while carrying the Stradivarius Violin.

11.

Due to the dangerous condition of the hotel parking lot and sidewalk, Soovin

Kim was unable to prevent himself from falling while carrying the Stradivarius Violin.
JOSEPH D. FALLON

12.

The defective and unreasonably dangerous condition of the hotel parking lot

ATTORNEY AT LAW
P.O. BOX257

and sidewalk, inter alia, the icy and slippery conditions, were the proximate cause of Soovin

10729 ROUTE 116

HINESBURG, VT 05461

Kim's slip and fall and the damage to the Stradivarius Violin.

(802) 482-2137

Case 5:15-cv-00007-gwc Document 1 Filed 01/14/15 Page 4 of 6

13.

Soovin Kim slipped and fell causing damage to the Stradivarius Violin as a

result of the dangerous and defective condition that the hotel knew existed or should have
known existed and which was caused by the negligence, recklessness and carelessness of the
Defendants resulting in damage to the Stradivarius Violin.
14.

As a direct result of the defective and unreasonably dangerous condition of the

hotel parking lot and sidewalk, inter alia, the icy and slippery conditions of the hotel parking
lot and sidewalk, the Stradivarius Violin was caused to be damaged.
15.

The damage to the Stradivarius Violin was the direct result of the negligence,

recklessness and carelessness of the Defendants and was due in no manner whatsoever to any
act or failure to act on the part of Soovin Kim.
16.

The Defendants knew and/or should have known of the defective and

unreasonably dangerous conditions of the parking lot and sidewalk, inter alia, that the hotel
and sidewalk were icy and slippery, as it existed on its property at the time Soovin Kim fell
and the Stradivarius Violin was damaged.
17.

As a direct and proximate result of the negligence, recklessness, carelessness

and other activities of the Defendants, the Stradivarius Violin was caused to be damaged.
18.

Pursuant to the terms and conditions of its contract of insurance, Plaintiff ACE

has made payments to its insured Soovin Kim in an amount in excess of $75,000.
19.

As a result of the aforesaid payments, and pursuant to the contract of insurance

and by operation of law, Plaintiff ACE is subrogated to the rights of its insured Soovin Kim
against all parties responsible for the occurrence of said damages.
NEGLIGENCE
JOSEPH D. FALLON
ATTORNEY AT LAW

20.

Plaintiff ACE incorporates by reference the allegations in the paragraphs above

P.O. BOX257
10729 ROUTE 116

as though fully set forth at length herein.

HINESBURG, VT 05461

(802) 482-2137

Case 5:15-cv-00007-gwc Document 1 Filed 01/14/15 Page 5 of 6

21.

The Defendants knew or should have known about the defective and

unreasonably dangerous conditions of the hotel property in that the hotel parking lot and
sidewalk were icy and slippery, the Defendants did not take reasonable measures to correct
and/or repair the defective and unreasonably dangerous conditions, or to warn those lawfully
on the premises of the defective and unreasonably dangerous conditions which existed
thereon.
22.

The Defendants owed Soovin Kim a duty of care to keep the premises in

reasonable repair and to maintain the premises in a reasonably safe condition, and the
Defendants were required by law to take reasonable measures to eliminate and/or control the
icy and slippery conditions which caused the parking lot and sideway to be defective and
unreasonably dangerous which were known and/or discoverable.
23.

Soovin Kim's fall and the damage to the Stradivarius Violin were caused by

the negligence, carelessness and negligent omissions of Defendants, their agents, servants
and/or employees acting within the course and scope of their employment in:

JOSEPH D. FALLON
ATTORNEY AT LAW

(a)

allowing defective and unreasonably dangerous conditions to exist on

the hotel property, including the parking lot and sidewalk;

(b)

failing to use reasonable care in the maintenance of the hotel property,

including the parking lot and sidewalk;

(c)

failing to repair and/or maintain the parking lot and sidewalk such that
the parking lot and sidewalk could be safely traversable by Soovin Kim
and/or other patrons and/or other invitees;

(d)

failing to address and/or correct the defective and unreasonably

dangerous conditions existing with respect to the parking lot and
sidewalk;

(e)

failing to treat and/or correct the icy and slippery conditions existing in
the parking lot and sidewalk;

(f)

failing to discover the defective and unreasonably dangerous conditions

of the parking lot and sidewalk;

(g)

failing to warn invitees of the defective and/or unreasonably dangerous

conditions existing with respect to the parking lot and sidewalk;

P.O. BOX257
10729 ROUTE 116
HINESBURG, VT 05461

(802) 482-2137

Case 5:15-cv-00007-gwc Document 1 Filed 01/14/15 Page 6 of 6

24.

(h)

failing to act as a reasonable and prudent property owner in the

maintenance and safety of the parking lot and sidewalk;

(i)

failing to properly and adequately treat the parking lot and sidewalk for
the icy and slippery conditions;

G)

otherwise failing to use due care under the circumstances.

As a direct and proximate result of the aforesaid conduct of Defendants,

Plaintiff ACE sustained damages in an amount in excess of$75,000.

WHEREFORE, Plaintiff ACE demands judgment against Defendants in an amount in
excess of $75,000, together with interest and the cost of this action, and for such other and
further relief as the Court deems just.
PLAINTIFF DEMANDS TRIAL BY JURY.

DATED at Hinesburg, Vermont, this 14th day of January, 2015.

BY:
J eph D. Fall , Esq.
PO Box 257, 10729 Route 116
Hinesburg, Vermont 05461
Tel:
802-482-2137
Fax: 802-482-2138
Email: jfallon@madriver.com
ATTORNEY FOR PLAINTIFF

Of Counsel:

JOSEPH D. FALLON
ATTORNEY AT LAW
P.O. BOX257

Samuel J. Pace, Jr., Esq.

Dugan, Brinkmann, Maginnis and Pace
1800 John F. Kennedy Blvd., Suite 1400
Philadelphia, PA 19103-7421
Tel: 215-563-3500
Cell: 215-778-1604
Email: sjpace@dbmplaw.com

10729 ROUTE 116

HINESBURG, VT 05461

(802) 482-2137