IN THE SUPERIOR COURT OF FLOYD COUNTY STATE OF GEORGIA

Transcription

1 IN THE SUPERIOR COURT OF FLOYD COUNTY STATE OF GEORGIA CHAD BARKER and ) MELISSA BARKER, ) ) Plaintiffs, ) ) v. ) CIVIL ACTION ) FILE NO: CSJK ENTERPRISES, INC. ) f/k/a and d/b/a ) SERVPRO OF FLOYD COUNTY, INC ) and NORA CARILLO BARCAREL ) a/k/a NORA CARILLO BALCARCEL ) ) Defendants. ) COMPLAINT Chad Barker and Melissa Barker, Plaintiffs in the above-styled action ( Plaintiffs ), file this Complaint, and complain against Defendants as follows: JURISDICTION AND VENUE 1. Plaintiff Chad Barker is a resident of the State of Georgia residing at 84 Sandpiper Trail, Ringgold, Georgia Plaintiff Melissa Barker is a resident of the State of Georgia residing at 84 Sandpiper Trail, Ringgold, Georgia Plaintiffs are husband and wife. 1

2 3. Defendant CSJK Enterprises, Inc. f/k/a and d/b/a Servpro of Floyd County, Inc. ( SERVPRO ) is a Georgia corporation subject to the jurisdiction of this Court and may be served at the office of its registered agent, Jackie R. Copeland, 3729 Martha Berry Hwy., Rome, Floyd County, Georgia Defendant NORA CARILLO BARCAREL ( BARCAREL ) is an individual who upon information and belief is an illegal alien from the Central American country of Guatemala. On April 29, 2009, she pleaded guilty to the criminal charges of financial transaction fraud and forgery which are related to the allegations in this Complaint. BARCAREL is subject to the jurisdiction of this Court. BARCAREL s last known residential address is 213 Oakwood Street, Rome, Floyd County, Georgia. Currently, BARCAREL may be served at the Floyd County Detention Center at 2526 New Calhoun Highway, Rome, Floyd County, Georgia

3 Factual Background 5. Defendant SERVPRO specializes in property restoration after fire. As touted by SERVPRO s website: When fire and water take control of your life, [SERVPRO] help[s] you take it back. SERVPRO of Floyd County specializes in the cleanup and restoration of residential and commercial property after a fire, smoke, or water damage situation On February 9, 2008, Plaintiffs Chad and Melissa Barker had a fire at their home in Ringgold, Georgia. The house sustained significant damage due to fire, smoke, and water damage. 7. After the fire, SERVPRO was retained by the Barkers insurance company to clean up and restore their property due to the damage sustained during the fire. 8. As an initial step in the cleaning and restoration process, certain SERVPRO employees were tasked with packing all of the Barkers possessions so that repairs could be made. 3

4 9. Defendant BARCAREL was an employee of SERVPRO who was sent to the Barker s home and assigned to pack their personal belongings. 10. Because of her status as a SERVPRO employee, she had access to the personal papers and effects of the Barkers that contained personal and sensitive identifying information. 11. While in the Barker home as a SERVPRO employee, and while performing the duties assigned to her by SERVPRO, Defendant BARCAREL stole the Barkers checkbooks along with checks from several different banking accounts including checking, savings, and investment accounts. 12. While in the Barker home as a SERVPRO employee, and while performing the duties assigned to her by SERVPRO, Defendant BARCAREL also stole documents with the Barker s personal and sensitive identifying information including but not limited to Melissa Barker s social security number, birth date, college degree title, job history, and mother s maiden name, and Chad Barker s social security and birth date. 4

5 13. Upon information and belief, prior to the theft at the Barker home, Defendant BARCAREL had previously been questioned by a woman she identified as Jackie who is the owner of SERVPRO of Floyd County for another theft at a SERVPRO s customer s home in Cedartown. SERVPRO was fully aware of this previous questioning, but continued to allow BARCAREL access to its customers homes and personal effects. 14. SERVPRO knew or should have known that Defendant BARCAREL was illegally in the country, yet it consciously chose to employ her and trust her with its customers most sensitive information without conducting a background check. Upon information and belief, SERVPRO did not adequately screen its employees to determine whether they were legally authorized to work in this country or whether they had any prior criminal history. 15. With the Barkers personal information in hand, BARCAREL attempted to open approximately sixty new credit accounts in the Barkers name. 16. With the Barkers checkbook, checking account, and savings information in hand, BARCAREL cashed checks and withdrew money. In total, BARCAREL 5

6 attempted to steal approximately $17,500 and succeeded in stealing approximately $9,000 from the BARKERS accounts. 17. Only after receiving notices in the mail from various banks and credit cards indicating that someone had applied for credit with the Barkers information were the Barkers put on notice of the theft of their identities. 18. The Barkers took immediate action to freeze their credit accounts and place the appropriate fraud alerts with the major credit bureaus. The Barkers have spent months attempting to undo the damage done by BARCAREL s actions. 19. To date, the Barkers have incurred approximately $20,000 in actual damages and expect to incur much more costs and expenses in credit monitoring and related charges as a direct result of BARCAREL s fraud and SERVPRO s negligence. COUNT I: DEFENDANT BARCAREL S VIOLATION OF O.C.G.A Plaintiffs re-allege the preceding paragraphs as though fully restated herein. 6

7 21. Plaintiffs are individuals whose personal identifying information has been obtained and used without their permission. As such, they are consumer victims as that term is defined by O.C.G.A Defendant BARCAREL willingly and fraudulently obtained Plaintiffs identifying information, without Plaintiffs authorization or consent, with the intent to fraudulently use same. 23. As a result of Defendant BARCAREL s intentional violation of Georgia law, Defendants are liable to Plaintiffs for general damages, punitive damages, and reasonable attorneys fees and expenses of litigation pursuant to O.C.G.A As a result of Defendant BARCAREL s intentional violation of Georgia law, Defendants are liable to Plaintiffs for three times the amount of Plaintiffs actual damages pursuant to O.C.G.A

8 COUNT II: DEFENDANT BARCAREL s THEFT BY TAKING 25. Plaintiffs re-allege the preceding paragraphs as though fully restated herein. 26. Defendant BARCAREL unlawfully took and used Plaintiffs personal effects and identifying information. 27. Defendant BARCAREL took Plaintiffs personal effects and identifying information with the intent to deprive Plaintiffs of their property. COUNT II: SERVPRO S LIABILITY UNDER RESPONDEAT SUPERIOR 28. Plaintiffs re-allege the preceding paragraphs as though fully restated herein. 29. SERVPRO controlled and directed when and where BARCAREL worked at the time of BARCAREL s theft of Plaintiffs identifying information and personal effects. 8

9 30. SERVPRO compensated BARCAREL for her work at the time of BARCAREL s theft of Plaintiffs identifying information and personal effects. 31. SERVPRO assigned BARCAREL to work at Plaintiffs home and to pack up and gather the very personal papers and effects from which she stole Plaintiffs personal information. In other words, the theft occurred within the scope of the actual work that BARCAREL had been directed to accomplish by SERVPRO. 32. The only reason that BARCAREL was given access to Plaintiffs personal information and effects was by virtue of her employment with SERVPRO. 33. At all times relevant to the allegations of this Complaint, Defendant BARCAREL was acting within the scope of her employment with SERVPRO. 34. Because BARCAREL was acting within the scope of her employment with SERVPRO, SERVPRO is liable to Plaintiffs for the torts committed by BARCAREL pursuant to O.C.G.A

10 COUNT III: SERVPRO S LIABILITY FOR THE NEGLIGENT HIRING AND RETENTION OF DEFENDANT BARCAREL 35. Plaintiffs re-allege the preceding paragraphs as though fully restated herein. 36. SERVPRO knew, or in the exercise of ordinary care should have known, that Defendant BARCAREL was not authorized to work in this country and was incompetent to perform the work that SERVPRO directed her to perform at Plaintiffs residence. alien. 37. SERVPRO knew or should have known that BARCAREL was an illegal 38. SERVPRO did nothing to check BARCAREL s prior work history and to determine whether or not she had criminal conviction before being directed to perform work at Plaintiffs residence. 10

11 39. Because of SERVPRO s failure to properly screen its employee BARCAREL before hiring her, and SERVPRO s violation of federal law regarding the employment of illegal aliens. Plaintiffs were damaged by BARCAREL s theft of Plaintiffs identifying information and personal effects. COUNT IV: SERVPRO S LIABILITY UNDER NEGLIGENCE PER SE 40. Plaintiff re-alleges the preceding paragraphs as though fully restated herein. 41. SERVPRO violated federal statutes 8 U.S.C and 1324(a) when they unlawfully hired BARCAREL. 42. All businesses have a legal duty to abide by federal immigration and hiring laws. 43. This duty was breached when SERVPRO knew or recklessly disregarded the fact that BARCAREL had entered and remained in the United States in violation of law and concealed, harbored, or shielded her from detection by providing her with employment, all in violation of 8 U.S.C

12 44. This duty was also breached when SERVPRO violated 8 U.S.C encouraged or assisted BARCAREL in residing in the United States by employing her, since it knew or recklessly disregarded the fact that her presence in the United States violated the law. 45. SERVPRO also breached this duty, and violated 8 U.S.C. 1324(a), when it failed to comply with the employment verification system at the time it hired BARCAREL. 46. These statutes were designed to protect the safety and security of the United States and its citizens, which includes financial security. 47. Chad and Melissa Barker are United States citizens and these statutes were implemented to protect them from this type of harm. 48. Furthermore, the breach of SERVPRO s duties was the proximate cause of the harm sustained by the Plaintiffs. Thus, Defendant SERVPRO should be liable to Plaintiffs under a theory of negligence per se. 12

13 COUNT V: ATTORNEY S FEES AND COSTS 49. Plaintiff re-alleges the preceding paragraphs as though fully restated herein. 50. Defendants have been stubbornly litigious, have acted in bad faith, and have caused Plaintiff unnecessary trouble and expense. 51. Accordingly, Plaintiffs are entitled to recover expenses of litigation, pursuant to O.C.G.A WHEREFORE, Plaintiffs pray that this Court grant judgment against Defendants as follows: (a) For actual damages, punitive damages, and reasonable attorneys fees and expenses of litigation; (b) For three times the amount of Plaintiffs actual damages pursuant to O.C.G.A ; and (c) For such other and further relief as this Court deems just and proper. 13

14 Respectfully submitted this day of, PATE & BRODY, LLP Pate & Brody, LLP Page A. Pate 101 Marietta Street, Suite 3300 Georgia Bar No.: Atlanta, Georgia (404) Bernard S. Brody Georgia Bar No.: