Case 1:21-cv-05527 Document 1 Filed 10/05/21 Page 1 of 4 PageID #: 1
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`----------------------------------------------------------------------x
`WAUSAU BUSINESS INSURANCE
`COMPANY,
`
`-against-
`
`Plaintiff,
`
`CLOVE LAKES HEAL TH CARE AND
`REHABILITATION CENTER, INC.,
`
`Defendant.
`----------------------------------------------------------------------x
`M A D A M S/S I R S:
`
`Civil Action No.
`
`COMPLAINT
`
`Plaintiff WAUSAU BUSINESS INSURANCE COMPANY ("Wausau
`
`Business"), by its attorneys, JAFFE & ASHER LLP, as and for its Complaint against
`
`defendant CLOVE LAKES HEAL TH CARE AND REHABILITATION CENTER, INC.
`
`("Clove Lakes"), allege as follows:
`
`THE PARTIES
`
`1.
`
`This Court has jurisdiction over this matter pursuant to 28 U.S.C. §
`
`1332(a) by reason of the diversity of citizenship of the parties and the fact that the
`
`amounts in controversy exceed the sum of $75,000 exclusive of costs. This is an action
`
`for damages based upon breach of contract.
`
`2.
`
`At all times hereinafter mentioned, Wausau Business was, and still is,
`
`a stock insurance company organized under the laws of the State of Wisconsin, with its
`
`principal place of business located at 1 7 5 Berkeley Street, Boston, Massachusetts 02116.
`
`3.
`
`At all times hereinafter mentioned, Wausau Business was, and still is,
`
`an insurance company duly authorized to conduct business within the State of New York.
`1
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`----------------------------------------------------------------------x
`WAUSAU BUSINESS INSURANCE
`COMPANY,
`
`-against-
`
`Plaintiff,
`
`CLOVE LAKES HEAL TH CARE AND
`REHABILITATION CENTER, INC.,
`
`Defendant.
`----------------------------------------------------------------------x
`M A D A M S/S I R S:
`
`Civil Action No.
`
`COMPLAINT
`
`Plaintiff WAUSAU BUSINESS INSURANCE COMPANY ("Wausau
`
`Business"), by its attorneys, JAFFE & ASHER LLP, as and for its Complaint against
`
`defendant CLOVE LAKES HEAL TH CARE AND REHABILITATION CENTER, INC.
`
`("Clove Lakes"), allege as follows:
`
`THE PARTIES
`
`1.
`
`This Court has jurisdiction over this matter pursuant to 28 U.S.C. §
`
`1332(a) by reason of the diversity of citizenship of the parties and the fact that the
`
`amounts in controversy exceed the sum of $75,000 exclusive of costs. This is an action
`
`for damages based upon breach of contract.
`
`2.
`
`At all times hereinafter mentioned, Wausau Business was, and still is,
`
`a stock insurance company organized under the laws of the State of Wisconsin, with its
`
`principal place of business located at 1 7 5 Berkeley Street, Boston, Massachusetts 02116.
`
`3.
`
`At all times hereinafter mentioned, Wausau Business was, and still is,
`
`an insurance company duly authorized to conduct business within the State of New York.
`1
`
`
`
`Case 1:21-cv-05527 Document 1 Filed 10/05/21 Page 2 of 4 PageID #: 2
`
`4.
`
`Upon information and belief, at all times hereinafter mentioned,
`
`Clove Lakes was, and still is, a corporation organized under the laws of the State of New
`
`York, with its principal place of business located at 25 Fanning Street, Staten Island, New
`
`York 10952.
`
`5.
`
`Upon information and belief, at all times hereinafter mentioned,
`
`Clove Lakes was, and still is, in the business of owing and running a health care and
`
`rehabilitation center.
`
`AS AND FOR A FIRST CLAIM FOR RELIEF
`
`6.
`
`Plaintiff repeats and realleges each and every allegation contained in
`
`paragraphs "1" through "5" of this Complaint as through fully set forth at length herein.
`
`7.
`
`At the special instance and request of Clove Lakes, Wausau Business
`
`issued a Workers Compensation and Employers Liability Insurance Policy, No. WCK-Y91-
`
`443783-016, with a policy period from November 21, 2006 to November 21, 2007,
`
`to Clove Lakes as the Named Insured (the "Wausau Policy").
`
`8.
`
`The premiums for the Wausau Policy is determined, in part, based
`
`upon Clove Lakes' payroll during the policy period and the classification of each
`
`employee's employment.
`
`· 9. Wausau Business duly conducted audits of the Clove Lakes' payroll
`
`for of the Wausau Policy, and Clove Lakes has not raised any issues or objections to the
`
`audit results.
`
`10.
`
`In addition, pursuant to an agreement entitled "Retrospective
`
`Premium Endorsement Large Risk Alternative Rating Option," which Clove Lakes signed
`2
`
`
`
`Case 1:21-cv-05527 Document 1 Filed 10/05/21 Page 3 of 4 PageID #: 3
`
`for and is part of the Wausau Policy, Clove Lakes and Wausau Business agreed that the
`
`premiums would be based, in part, upon Incurred Losses under the Wausau Policies (the
`
`"Retrospective Premium").
`
`11 . Clove Lakes agreed that the Retrospective Premium would be
`
`calculated annually, and Clove Lakes agreed to pay Retrospective Premium when invoiced.
`
`12. Clove Lakes has satisfied and paid all Retrospective Premium
`
`obligations for the respective adjustments that occurred prior to 2021.
`
`13. On or about May 20, 2021, Wausau Business issued its 2021
`
`retrospective adjustment invoice, which included the Fourteenth Retrospective Adjustment
`
`for the 2006-07 Policy (the "2021 Retrospective Adjustment").
`
`14. The 2021 Retrospective Adjustment was based upon a May 1, 2021
`
`valuation date claims.
`
`15. As a result of the 2021 Retrospective Adjustment, the sum of
`
`$236,342 became due and owing to Wausau Business by Clove Lakes.
`
`16. Although duly demanded, Clove Lakes has failed and refused to pay
`
`the $236,342, except that Clove Lakes received a credit of $21 for the Eleventh
`
`Retrospective Adjustment on the 2009 to 2010 policy, leaving the sum of $236,321
`
`due and owing to Wausau Business by Clove Lakes for the 2021 Retrospective
`
`Adjustment.
`
`17.
`
`By reason of the foregoing, Wausau Business has sustained damages of
`
`$236,321, plus interest at 9% per annum from May 20, 2021.
`
`3
`
`
`
`Case 1:21-cv-05527 Document 1 Filed 10/05/21 Page 4 of 4 PageID #: 4
`
`WHEREFORE, plaintiff WAUSAU BUSINESS INSURANCE COMPANY
`
`demands judgment against defendant CLOVE LAKES HEALTH CARE AND
`
`REHABILITATION CENTER, INC. in the sum of $236,321, plus interest at 9% per
`
`annum from May 20, 2021, and granting plaintiff the costs and disbursements of this
`
`action, together with such other and further relief as this Court deems just and proper.
`
`Dated: New York, New York
`October 5, 2021
`
`Yours, etc.
`
`JAFFE & ASHER LLP
`
`~~
`
`By_: - - - - - - -- - -
`Marshall T. Potashner, Esq.
`Attorneys for Plaintiff
`WAUSAU BUSINESS INSURANCE
`COMPANY
`445 Hamilton Avenue, Suite 405
`White Plains, New York 10601
`(212) 687-3000
`
`4
`
`
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