Case 5:15-cv gwc Document 1 Filed 01/14/15 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

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1 Case 5:15-cv 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, P A U.S. OISTI~ICT COUR DISTRICT OF VERi'10H FiLED 2015 JAN 14 PH 3: CML ACTION N~ ~ BY o::puty CLERK COMPLAINT Plaintiff v. JURY TRIAL DEMANDED SHERATON BURLINGTON HOTEL & CONFERENCE CENTER 870 Williston Road Burlington, VT and STARWOOD HOTELS AND RESORTS WORLDWIDE, INC. One StarPoint Stamford, CT and FCH/SH LEASING II, L.L.C. 545 E. John Carpenter Freeway, Suite 1300 Irving, TX 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:

2 Case 5:15-cv 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 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 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 JURISDICTION AND VENUE HINESBURG. VT The jurisdiction of this Court is based upon diversity of citizenship pursuant to 28 U.S.C The matter in controversy exclusive of interest and costs, exceeds the sum of$75,000. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(a). 2

3 Case 5:15-cv 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, 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. 12. The defective and unreasonably dangerous condition of the hotel parking lot and sidewalk, inter alia, the icy and slippery conditions, were the proximate cause of Soovin Kim's slip and fall and the damage to the Stradivarius Violin. 3

4 Case 5:15-cv gwc Document 1 Filed 01/14/15 Page 4 of 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, 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 20. Plaintiff ACE incorporates by reference the allegations in the paragraphs above as though fully set forth at length herein. 4

5 Case 5:15-cv gwc Document 1 Filed 01/14/15 Page 5 of 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: (a) (b) (c) (d) (e) (f) (g) allowing defective and unreasonably dangerous conditions to exist on the hotel property, including the parking lot and sidewalk; failing to use reasonable care in the maintenance of the hotel property, including the parking lot and sidewalk; 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; failing to address and/or correct the defective and unreasonably dangerous conditions existing with respect to the parking lot and sidewalk; failing to treat and/or correct the icy and slippery conditions existing in the parking lot and sidewalk; failing to discover the defective and unreasonably dangerous conditions of the parking lot and sidewalk; failing to warn invitees of the defective and/or unreasonably dangerous conditions existing with respect to the parking lot and sidewalk; 5

6 Case 5:15-cv gwc Document 1 Filed 01/14/15 Page 6 of 6 (h) (i) failing to act as a reasonable and prudent property owner in the maintenance and safety of the parking lot and sidewalk; 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. 24. 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, BY: J eph D. Fall, Esq. PO Box 257, Route 116 Hinesburg, Vermont Tel: Fax: jfallon@madriver.com / ATTORNEY FOR PLAINTIFF Of Counsel: Samuel J. Pace, Jr., Esq. Dugan, Brinkmann, Maginnis and Pace 1800 John F. Kennedy Blvd., Suite 1400 Philadelphia, PA Tel: Cell: sjpace@dbmplaw.com 6