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Page 1 - COMPLAINT 

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Ball Janik LLP

101 SW Main Street, Suite 1100 

Portland, Oregon 97204-3219 

Telephone 503.228.2525 

Kyle A. Sturm, OSB No. 080214 

ksturm@balljanik.com 

BALL JANIK LLP 

101 SW Main Street, Suite 1100 

Portland, Oregon 97204-3219 

503-228-2525 

Fax 503-295-1058 

Attorneys for BANETTE PROPERTIES, LLC 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION

BANETTE PROPERTIES, LLC, an Oregon 

limited liability company, 

Plaintiff, 

v. 

AMCO INSURANCE COMPANY, a foreign 

company, 

Defendant. 

Case No. 

COMPLAINT [Declaratory Relief; 

Breach of Contract] 

DEMAND FOR JURY TRIAL ON ALL 

ISSUES TRIABLE BY JURY 

For its complaint against defendant, plaintiff alleges as follows: 

1. Plaintiff Banette Properties LLC (“Banette”) is an Oregon limited liability 

company. 

2. AMCO Insurance Company issued a general liability policy to Banette as an 

insured. AMCO is an Iowa insurance company that was, and is, authorized to issue insurance 

policies in Oregon. 

3. In March 2015, a lawsuit was filed against Banette, styled as Jefe, Inc. v. Banette 

Case 3:15-cv-01344-PK Document 1 Filed 07/20/15 Page 1 of 5
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Page 2 - COMPLAINT 

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Ball Janik LLP

101 SW Main Street, Suite 1100 

Portland, Oregon 97204-3219 

Telephone 503.228.2525 

Properties, Inc., Multnomah County Case No. 15CV07401 (the “Underlying Litigation”),1

seeking damages of no less than $200,000. 

4. Banette timely tendered defense of the Underlying Litigation to AMCO. 

5. AMCO denied coverage and refused to defend Banette in the Underlying 

Litigation. 

6. This Court has jurisdiction over the subject matter of this action pursuant to 28 

U.S.C. §1332(a), because there is complete diversity of citizenship between the parties. The 

amount in controversy exceeds the sum of $75,000. Venue lies with this Court pursuant to 28 

U.S.C. §1391(a), because the events which give rise to this dispute occurred in the District of 

Oregon. 

FIRST CAUSE OF ACTION 

(Declaratory Relief)

7. Banette realleges all paragraphs above and incorporates the same by reference. 

8. Defendant issued a liability insurance policy to Banette (policy number ACP 

GLAO 7505138102 (the “Policy”)). 

9. The Policy obligates Defendant to indemnify Banette for damages and to defend 

Banette in the event of a suit. 

10. Despite its obligations to defend and indemnify Banette, Defendant denied 

coverage to Banette. 

11. An actual and justiciable controversy exists between the parties with respect to 

coverage under the Policy. Banette therefore requests a declaration and an adjudication of the 

rights, duties, and liabilities of the parties regarding Banette’s claims for defense and indemnity 

arising from the Underlying Litigation. 

12. Banette seeks a declaration from this court that: (1) Defendant owes Banette a 

 

1

 Multnomah County Circuit Court recently granted Banette’s Motion to Change Venue, and as a result, 

the Underlying Litigation will be transferred to Clackamas County Circuit Court. 

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Page 3 - COMPLAINT 

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Ball Janik LLP

101 SW Main Street, Suite 1100 

Portland, Oregon 97204-3219 

Telephone 503.228.2525 

duty to defend in the Underlying Litigation; (2) Defendant breached that duty; (3) there are no 

exclusions or limitations which apply to abrogate those duties; (4) Defendant must reimburse 

Banette for any fees and expenses it has incurred and must immediately undertake the defense of 

Banette in the Underlying Litigation; and (5) Defendant must indemnify Banette against all 

liability for damages in the Underlying Litigation. 

SECOND CAUSE OF ACTION 

(Count I: Breach of Contract – Express) 

13. Banette realleges all paragraphs above and incorporates the same by reference. 

14. Defendant failed to fully accept, acknowledge and undertake its contractual duties 

and obligations to Banette with respect to the Underlying Litigation. 

15. Defendant breached its contractual obligations under the Policy by failing or 

declining to accept and/or perform its contractual duties and obligations with respect to Banette’s 

rights to a defense and payment of Banette’s legal liabilities for damages in the Underlying 

Litigation. 

16. Banette has performed all of its obligations and conditions precedent under the 

Policy, except any that were waived or excused. 

17. As a direct and proximate result of Defendant’s breaches of the Policy, Banette 

was and is deprived of the benefit of insurance coverage provided under the Policy and seeks 

damages in an amount to be proven at trial, but which are no less than $200,000. 

18. Banette seeks attorney fees pursuant to ORS 742.061 and pre-judgment interest. 

(County II: Breach of Contract – Implied)

19. Banette realleges all paragraphs above and incorporates the same by reference. 

20. The covenant of good faith and fair dealing is implied into the terms of the Policy. 

21. The implied covenant of good faith and fair dealing serves to protect the 

reasonable expectations of Banette under the Policy. 

22. The claims brought against Banette in the Underlying Litigation fell within the 

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Page 4 - COMPLAINT 

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Ball Janik LLP

101 SW Main Street, Suite 1100 

Portland, Oregon 97204-3219 

Telephone 503.228.2525 

coverage provided by the Policy, and therefore Banette reasonably expected Defendant to 

(among other things): 

a. Apply the Policy terms in a manner which preserved Banette’s reasonable 

expectation of coverage; 

b. Apply the Policy terms in a manner which treated Banette’s interests at least equal 

to its own; and 

c. Undertake the defense and settlement of the Underlying Litigation in a manner 

which treated Banette’s interests at least equal to its own. 

23. Defendant breached the implied covenant of good faith and fair dealing by 

depriving Banette of the reasonable expectations under the Policy. 

24. As a result of Defendant’s breach of its implied covenant to act in good faith and 

deal fairly in its performance under the Policy, Banette seeks damages in an amount to be proven 

at trial, but which are no less than $200,000. 

25. Banette has performed all of its obligations and conditions precedent under the 

Policy, except any that were waived or excused. 

26. Banette seeks attorney fees pursuant to ORS 742.061 and pre-judgment interest. 

PRAYER FOR RELIEF

WHEREFORE, Banette prays for judgment against Defendant as follows: 

A. Judgment in its favor; 

B. Damages in the amount of no less than $200,000; 

C. Prejudgment interest; 

D. Attorney fees; and 

/// 

/// 

/// 

/// 

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Page 5 - COMPLAINT 

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Ball Janik LLP

101 SW Main Street, Suite 1100 

Portland, Oregon 97204-3219 

Telephone 503.228.2525 

E. Any other relief the court deems just and/or equitable. 

DATED: July 20, 2015 Respectfully submitted, 

By: /s/ Kyle A. Sturm 

Kyle A. Sturm, OSB No. 080214 

BALL JANIK LLP 

101 SW Main Street, Suite 1100 

Portland, OR 97204 

503.228.2525 (phone) 

503.295.1058 (fax) 

ksturm@balljanik.com (email) 

Attorney for BANETTE PROPERTIES, LLC 

Trial Attorney: Kyle A. Sturm 

Case 3:15-cv-01344-PK Document 1 Filed 07/20/15 Page 5 of 5