Preview
FILED: SUFFOLK COUNTY CLERK 10/18/2022
11/16/2022 03:36
03:23 PM INDEX NO. 615613/2021
NYSCEF DOC. NO. 15
33 RECEIVED NYSCEF: 10/18/2022
11/16/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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JAYME THODE, Index No.: 615613/2021
Plaintiff,
THIRD-PARTY
- against - SUMMONS
TIMOTHY HILL CHILDREN’S RANCH, INC.,
TIMOTHY HILL FARM, LLC, APPLE DAY CAMP,
INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE
TIMOTHY FOUNDATION, INC., and JERRELL HILL,
in his official and individual capacity,
Defendants.
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TIMOTHY HILL CHILDREN’S RANCH, INC., Third-Party
APPLE DAY CAMP, INC., TIMOTHY HILL Index No.:
CHRISTIAN CAMP, INC., THE TIMOTHY
FOUNDATION, INC., and JERRELL HILL,
in his official and individual capacity,
Third-party Plaintiffs,
- against -
LAWRENCE G. BRATHWAITE III, PHILADELPHIA
INDEMNITY INSURANCE COMPANY, AND TOKIO
MARINE SPECIALTY INSURANCE COMPANY,
Third-party Defendants.
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TO THE ABOVE-NAMED THIRD-PARTY DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the Third-Party Complaint of the
defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY
CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION,
INC. and JERRELL HILL, a copy of which is herewith served upon you, and to serve a copy of
your Answer upon the undersigned attorneys for the defendants/third-party plaintiffs, DEVITT
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SPELLMAN BARRETT, LLP, at their offices located at 50 Route 111, Suite 314, Smithtown,
New York 11787, and upon the attorneys for plaintiff, RHEINGOLD GIUFFRA RUFFO &
PLOTKIN, LLP, 551 Fifth Avenue, 29th Floor, New York, New York 10176, within twenty (20)
days after service of the Summons and Third-Party Complaint, exclusive of the day of service, or
within thirty (30) days after the service is completed, if service is made upon you by any method
other than by personal delivery to you within the State of New York.
PLEASE TAKE NOTICE, that in the case of your failure to answer the Third-Party
Complaint of the defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH,
INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY
FOUNDATION, INC. and JERRELL HILL, a judgment will be taken against you by default for
the relief demanded in the Third-Party Complaint.
Dated: Smithtown, New York
September 28, 2022
Yours,
DEVITT SPELLMAN BARRETT, LLP
/s/ Scott J. Kreppein
By: Scott J. Kreppein
Attorneys for Defendant/Third-party
Plaintiffs, TIMOTHY HILL CHILDREN’S
RANCH, INC., APPLE DAY CAMP, INC.,
TIMOTHY HILL CHRISTIAN CAMP,
INC., THE TIMOTHY FOUNDATION,
INC. and JERRELL HILL
50 Route 111, Suite 314
Smithtown, New York 11787
(631) 724-8833
Our File No: TH9490JD (SJK/lvh)
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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JAYME THODE, Index No.: 615613/2021
Plaintiff,
THIRD-PARTY
- against - VERIFIED COMPLAINT
TIMOTHY HILL CHILDREN’S RANCH, INC.,
TIMOTHY HILL FARM, LLC, APPLE DAY CAMP,
INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE
TIMOTHY FOUNDATION, INC., and JERRELL HILL,
in his official and individual capacity,
Defendants.
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TIMOTHY HILL CHILDREN’S RANCH, INC., Third-Party
APPLE DAY CAMP, INC., TIMOTHY HILL Index No.:
CHRISTIAN CAMP, INC., THE TIMOTHY
FOUNDATION, INC., and JERRELL HILL,
in his official and individual capacity,
Third-party Plaintiffs,
- against -
LAWRENCE G. BRATHWAITE III, PHILADELPHIA
INDEMNITY INSURANCE COMPANY, AND TOKIO
MARINE SPECIALTY INSURANCE COMPANY,
Third-party Defendants.
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Defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC.,
APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY
FOUNDATION, INC. and JERRELL HILL, by their attorneys, DEVITT SPELLMAN
BARRETT, LLP, as and for their Third-Party Complaint against the third-party defendants,
LAWRENCE G. BRATHWAITE III, PHILADELPHIA INDEMNITY INSURANCE
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COMPANY, AND TOKIO MARINE SPECIALTY INSURANCE COMPANY, respectfully
allege as follows:
1. That at all times mentioned herein, defendant/third-party plaintiff, TIMOTHY
HILL CHILDREN’S RANCH, INC., is a corporation duly organized and existing under the virtue
of the laws of the State of New York.
2. That at all times mentioned herein, defendant/third-party plaintiff, APPLE DAY
CAMP, INC., is a corporation duly organized and existing under the virtue of the laws of the State
of New York.
3. That at all times mentioned herein, defendant/third-party plaintiff, TIMOTHY
HILL CHRISTIAN CAMP, INC., is a corporation duly organized and existing under the virtue of
the laws of the State of New York.
4. That at all times mentioned herein, defendant/third-party plaintiff, THE TIMOTHY
FOUNDATION, INC., is a corporation duly organized and existing under the virtue of the laws
of the State of New York.
5. That at all times mentioned herein, defendant/third-party plaintiff, JERRELL
HILL, is a was and still is a resident of the State of New York, County of Suffolk.
6. That at all times mentioned herein, the third-party defendant, LAWRENCE G.
BRATHWAITE III, was and, upon information and belief, still is a resident of the State of New
York, County of Suffolk.
7. Defendant PHILADELPHIA INDEMNITY INSURANCE COMPANY, is a
foreign corporation, organized and existing under the laws of the State of Pennsylvania.
8. Defendant TOKIO MARINE SPECIALTY INSURANCE COMPANY, is a
foreign corporation, organized and existing under the laws of the State of Delaware.
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9. The plaintiff, JAYME THODE, commenced an action against the defendants/third-
party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC.,
TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and
JERRELL HILL, and defendant, TIMOTHY HILL FARM, LLC, seeking damages for personal
injuries allegedly sustained as a result of being raped by third-party defendant, LAWRENCE G.
BRATHWAITE III, on or about May 25, 1992.
10. Plaintiff, JAYME THODE, alleges that at the time of the alleged assault, she was
visiting one or more residents of TIMOTHY HILL CHILDREN’S RANCH, INC.
11. Plaintiff, JAYME THODE, is further claiming that the alleged incident occurred as
the result of negligence on the part of the defendants/third-party plaintiffs, TIMOTHY HILL
CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN
CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, in their ownership,
operation, management, control, supervision, and maintenance of the subject premises, as well as
the hiring and retention of its employees.
12. Plaintiff, JAYME THODE, is alleging, among other injuries, a claim for continuing
and ongoing emotional distress.
13. That the defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S
RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE
TIMOTHY FOUNDATION, INC. and JERRELL HILL, have denied any and all acts of
negligence alleged in the plaintiff’s Complaint. Issue was duly joined by the defendants,
TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL
CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, by way
of service of their Verified Answer.
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14. On February 14, 2019, New York State enacted the Child Victims Act (L. 2019
c.11; CPLR 214-g) (“CVA”), which extended the limitations period for civil actions seeking
redress for injuries arising from certain sexual offenses, and opened a one-year window reviving
civil actions for which the statute of limitations has already run.
15. On September 25, 2019, the New York State Department of Financial Services
issued Insurance Circular Letter No. 11 (2019), which, among other things, encouraged insurers
to “act in utmost good faith and to take the initiative to be cooperative so that victims may be
compensated,” and provided guidance interpreting insurers’ obligations with respect to CVA
claims pursuant to applicable New York State laws and regulations, including that insurers must:
a. “fairly review such policies, interpreting such contracts so as to
resolve any ambiguities in the policyholders’ favor,”
b. “perform on its duties to defend policyholders”; and
c. “maintain a policy record… at least until the expiration of the
applicable statute(s) of limitations,” and the fact that “the CVA
revised the applicable statute of limitations… has the effect of
extending the applicable records retention requirements.
16. Receipt of the above-referenced Complaint in Thode v. Timothy Hill Children’s
Ranch, Inc., et al., Suffolk County Index No.: 615613/2021, was the first notice received by the
defendants/third-party plaintiffs of any alleged occurrence, injury, or claim involving Jayme
Thode.
17. In 1992, when Ms. Thode alleges she was assaulted, defendants/third-party
plaintiffs were insured by Reliance Insurance Company; however, Reliance has been liquidated,
with all policies terminated effective November 2003. (In Re Reliance Insurance Co.,
Pennsylvania Commonwealth Court Docket No. 269-MD-2001).
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18. From 2012, to date, at the time the third-party plaintiffs received the first notice of
Ms. Thode’s claim, or any alleged incident or injury related thereto, they were insured by
Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty Insurance Company.
19. Upon information and belief, Philadelphia Indemnity Insurance Company and
Tokio Marine Specialty Insurance Company are related entities, operating from the same address,
using letterhead that identifies both entities as “Philadelphia Insurance Companies” “A Member
of the Tokio Marine Group.”
20. Upon information and belief, the policies defendants/third-party plaintiffs
purchased from Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty
Insurance Company from 2012 to date include “SEXUAL OR PHYSICAL ABUSE OR
MOLESTATION” (“SPAM”) coverage.
21. The SPAM Vicarious Liability Coverage Occurrence Form included with
defendants/third-party plaintiffs’ annual policies of insurance with Philadelphia Indemnity
Insurance Company and/or Tokio Marine Specialty Insurance Company from 1992 to date, which
the insurers have referred to as “Occurrence SPAM Forms,” each state, among other things, at
Section I thereof, which is entitled “Insuring Agreement”:
1. (a) We will pay those sums that the insured is legally
obligated to pay as “damages” because of “bodily injury” to
which this insurance applies, if the insured is alleged to be
liable for another person’s “abusive conduct” based solely
on either disparate impact or vicarious liability by reason of:
(1) negligent: (a) employment; (b) selection; (c)
investigation; (d) supervision; (e) reporting… (f) retention…
of any “employee”, volunteer or any other person or persons
for whom the insured is or ever was legally responsible; or
(2) the negligent: (a) design; (b) control; (c) maintenance;
(d) supervision; (e) inspection; or (f) investigation of
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prospective tenants; of your premises, premises in your
control, or premises you have leased to another
***
we have the right and duty to defend any “suit” seeking
“damages” because of another person’s “abusive conduct"
even if the allegations of the "suit" are groundless, false or
fraudulent. However, we have no duty to defend the insured
against any “suit” seeking “damages” to which this
insurance does not apply. … But
***
(c) Prior to the policy period, no insured… and no
"employee" authorized by you to give or receive notice of an
occurrence or claim, knew that the "bodily injury" had
occurred, in whole or in part. If such a listed insured or
authorized "employee" knew, prior to the policy period, that
the "bodily injury" occurred, then any continuation, change
or resumption of such "bodily injury" during or after the
policy period will be deemed to have been known prior to
the policy period.
***
(b) This insurance applies to “damages” because of “bodily
injury” only if: (1) The “bodily injury” is caused by “abusive
conduct that takes place in the “coverage territory”; (2) The
“bodily injury” occurs during the policy period.
22. Under the Definitions section, Section V of the Occurrence SPAM Forms, the term
“Bodily Injury” is defined by stating “’Bodily Injury’ means bodily injury, sickness or disease
including emotional distress or anguish including death resulting therefrom.”
23. Under the Definitions section, Section V of the Occurrence SPAM Forms, the
definition of “abusive conduct” includes the statement that such conduct is “deemed to take
place… at the time of the first such act or encounter unless abuse began prior to the policy period
and the insured was unaware that the molestation had occurred, in whole or in part.”
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24. Upon information and belief, for 2021-2022, Third-Party Plaintiffs’ insurance with
Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty Insurance Company
also included claims-made
25. Jayme Thode has asserted claims against the defendants/third-party plaintiffs for,
among other things, emotional distress occurring during the policy periods wherein
defendants/third-party plaintiffs were insured by Philadelphia Indemnity Insurance Co. and/or
Tokio Marine Specialty Insurance Company, and prior to the policy period, none of the
defendants/third-party plaintiffs, nor any of their employees authorized to receive notice of an
occurrence or claim knew that any of Ms. Thode’s alleged bodily injuries had occurred, in whole
or in part.
26. Jayme Thode has asserted claims against the defendants/third-party plaintiffs for,
among other things, abusive conduct that the defendants/third-party plaintiffs were wholly
unaware had allegedly occurred.
27. Upon information and belief, in addition to occurrence-based SPAM coverage,
some or all of the defendants/third-party plaintiffs’ policies with Philadelphia Indemnity Insurance
Company and/or Tokio Marine Specialty Insurance Company also included what they have
referred to as “Claims-Made SPAM Form” coverage and “Abusive Conduct Liability Coverage
Form – Claims Made.”
28. Philadelphia Indemnity Insurance Company and Tokio Marine Specialty Insurance
Company were duly notified of the claims made against defendants/third-party plaintiffs by Ms.
Thode, and demanded defense and indemnification.
29. By letter dated October 29, 2021, a Senior Claims Supervisor writing on behalf of
both Philadelphia Indemnity Insurance Company and Tokio Marine Specialty Insurance Company
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disclaimed coverage for Thode v. Timothy Hill Children’s Ranch, Inc., et al., Suffolk County Index
No.: 615613/2021 and declined to pay defense costs or indemnify any defendant named in that
action.
30. In their October 29, 2021 letter, Philadelphia Indemnity Insurance Company and
Tokio Marine Specialty Insurance Company identified ten potentially applicable primary policies,
and ten potentially applicable excess/umbrella policies.
31. In their October 29, 2021 letter, Philadelphia Indemnity Insurance Company and
Tokio Marine Specialty Insurance Company interpret their Occurrence SPAM Forms as only
providing coverage “for ‘bodily injury’ caused by ‘abusive conduct’ during the policy period.”
32. In their October 29, 2021 letter, Philadelphia Indemnity Insurance Company and
Tokio Marine Specialty Insurance Company deny coverage under the “ACL Claims-Made Form
of the 2021-2022 Primary Policy” because, they reason, the claims made coverage only applies if
the “‘abusive conduct’ did not occur before the Retroactive Date” of June 4, 2020.
33. A copy of the ACL Claims-Made Form of the 2021-2022 Primary Policy has not
been provided and, upon information and belief, should contain language covering claims that the
insured was wholly unaware of prior to the policy period, and is intended to provide coverage for
claims such as those brought by Ms. Thode where the claim was first asserted during the policy
period and the insured had no knowledge of the claim prior to the policy period.
AS AND FOR A FIRST CAUSE OF ACTION FOR COMMON LAW
INDEMNIFICATION
34. Defendants/third-party plaintiffs repeat, reiterate, and reallege each and every
allegation hereinabove as if fully set forth herein.
35. That ifthe plaintiff’s allegations as set forth in the Complaint are substantiated,
which is expressly denied herein, and plaintiff recovers judgement against the defendants/third-
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party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC.,
TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and
JERRELL HILL, as a result of any negligence other than plaintiff’s own negligence, such as
damages will have been sustained as a result of the acts, omissions and/or negligence, such
damages will have been sustained as a result of the acts, omissions and/or negligence of the third-
party defendant, LAWRENCE G. BRATHWAITE III, and not through any negligence on the part
of the defendants/third-party plaintiffs.
36. If a judgment or settlement is recovered by plaintiff from the defendants/third-party
plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC.,
TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and
JERRELL HILL, such recovery will have come about because of the negligence, carelessness,
recklessness, or intentional acts of the third-party defendant, LAWRENCE G. BRATHWAITE III.
37. That the defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S
RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE
TIMOTHY FOUNDATION, INC. and JERRELL HILL, shall be entitled to judgement over third-
party defendant, LAWRENCE G. BRATHWAITE III, for any amount of judgement rendered
against defendants/third-party plaintiffs, based upon common law indemnification.
38. Wherefore, defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S
RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE
TIMOTHY FOUNDATION, INC. and JERRELL HILL, demand judgement over and against the
third-party defendant, LAWRENCE G. BRATHWAITE III, for full common law indemnity,
including but not limited to attorneys’ fees and all other costs and expenses, along with such other
and further relief as the court deems just proper.
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AS AND FOR A SECOND CAUSE OF ACTION FOR CONTRIBUTION
39. Defendants/third-party plaintiffs repeat, reiterate, and reallege each and every
allegation hereinabove as if fully set forth herein.
40. That ifthe plaintiff’s allegations as set forth in the Complaint are substantiated,
which is expressly denied herein, and plaintiff recovers judgement against the defendants/third-
party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC.,
TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and
JERRELL HILL, as a result of any negligence other than plaintiff’s own negligence, such as
damages will have been sustained as a result of the acts, omissions and/or negligence, such
damages will have been sustained as a result of the acts, omissions and/or negligence of the third-
party defendant, LAWRENCE G. BRATHWAITE III, and not through any negligence on the part
of the defendants/third-party plaintiffs.
41. That the defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S
RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE
TIMOTHY FOUNDATION, INC. and JERRELL HILL, shall be entitled to judgment over the
third-party defendant, LAWRENCE G. BRATHWAITE III, for any amount of judgment rendered
against the defendants/third-party plaintiffs, based upon contribution for an equitable share of any
judgment on the basis of comparative degree of culpability of said parties.
AS AND FOR A THIRD CAUSE OF ACTION FOR BREACH OF CONTRACT
42. Defendants/third-party plaintiffs repeat, reiterate, and reallege each and every
allegation hereinabove as if fully set forth herein.
43. Defendants/third-party plaintiffs had valid and enforceable contracts of insurance
with Philadelphia Indemnity Insurance Company.
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44. Defendants/third-party plaintiffs had valid and enforceable contracts of insurance
with Tokio Marine Specialty Insurance Company.
45. Third-party defendants Philadelphia Indemnity Insurance Company and/or Tokio
Marine Specialty Insurance Company breached their contract of insurance with the
defendants/third-party plaintiffs by disclaiming coverage for Thode v. Timothy Hill Children’s
Ranch, Inc., et al., Suffolk County Index No.: 615613/2021, failing to pay defense costs, and
declining to acknowledge their indemnification obligations.
46. As a direct and proximate result of the above-referenced breach of contract by third-
party defendants Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty
Insurance Company, defendants/third-party plaintiffs have suffered damages, including but not
limited to, attorneys’ fees.
47. Upon information and belief, Philadelphia Indemnity Insurance Company and/or
Tokio Marine Specialty Insurance Company’s disclaimer of coverage in the Thode v. Timothy Hill
Children’s Ranch, Inc., et al., Suffolk County Index No.: 615613/2021, particularly insofar as
interpreting the Occurrence SPAM Forms as being limited to coverage for “for ‘bodily injury’
caused by ‘abusive conduct’ during the policy period,” when no such language is contained on the
face of the policy and the language used in the policy clearly indicates that it covers bodily injuries
occurring during the policy period, including continuing emotional distress, provided the insured
did not have notice of those alleged injuries prior to the policy period, was made in bad faith.
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AS AND FOR A FOURTH CAUSE OF ACTION FOR DECLARATORY JUDGMENT
48. Defendants/third-party plaintiffs repeat, reiterate, and reallege each and every
allegation hereinabove as if fully set forth herein.
49. A justiciable controversy exists between defendants/third-party plaintiffs and third-
party defendants, Philadelphia Indemnity Insurance Company and Tokio Marine Specialty
Insurance Company, as to whether any the defendants/third-party plaintiffs’ policies of insurance
with those third-party defendants provides for coverage, including but not limited to for defense
costs, in Thode v. Timothy Hill Children’s Ranch, Inc., et al., Suffolk County Index No.:
615613/2021.
50. Defendants/third-party plaintiffs are entitled, pursuant to C.P.L.R. § 3001 to
declaratory relief as to the rights and other legal relations between defendants/third-party
plaintiffs and third-party defendants, Philadelphia Indemnity Insurance Company and Tokio
Marine Specialty Insurance Company, regarding whether there is coverage for Thode v. Timothy
Hill Children’s Ranch, Inc., et al., Suffolk County Index No.: 615613/2021 under any potentially
applicable policies of insurance.
DEMAND FOR RELIEF
WHEREFORE, defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S
RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE
TIMOTHY FOUNDATION, INC. and JERRELL HILL, demand judgment over and against third-
party defendant, LAWRENCE G. BRATHWAITE III, for all of defendants/third-party plaintiffs’
proportionate share of any judgment which may be recovered by plaintiff Thode against the
defendants/third-party plaintiffs; and against third-party defendants, PHILADELPHIA
INDEMNITY INSURANCE COMPANY and TOKIO MARINE SPECIALTY INSURANCE
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COMPANY, for compensatory damages, including all attorneys’ fees and other costs of defense,
injunctive relief requiring payment of all further costs of defense, and for declaratory relief to the
effect that defendants/third-party plaintiffs are entitled to defense and indemnification pursuant to
the applicable insurance policies; together with the costs, disbursements, interest, attorneys fees,
punitive damages, and such other and further relief in the defendants/third-party plaintiffs’ favor
as deems just, equitable, and proper.
Dated: Smithtown, New York
September 28, 2022
Yours,
DEVITT SPELLMAN BARRETT, LLP
/s/ Scott J. Kreppein
By: Scott J. Kreppein
Attorneys for Defendant/Third-party
Plaintiffs, TIMOTHY HILL CHILDREN’S
RANCH, INC., APPLE DAY CAMP, INC.,
TIMOTHY HILL CHRISTIAN CAMP,
INC., THE TIMOTHY FOUNDATION,
INC. and JERRELL HILL
50 Route 111, Suite 314
Smithtown, New York 11787
(631) 724-8833
Our File No: TH9490JD (SJK/lvh)
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FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -----------------------------------------------------------------------X JAYME THODE, Index No.: 615613/2021 Plaintiff, THIRD-PARTY - against - SUMMONS TIMOTHY HILL CHILDREN’S RANCH, INC., TIMOTHY HILL FARM, LLC, APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC., and JERRELL HILL, in his official and individual capacity, Defendants. -----------------------------------------------------------------------X TIMOTHY HILL CHILDREN’S RANCH, INC., Third-Party APPLE DAY CAMP, INC., TIMOTHY HILL Index No.: CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC., and JERRELL HILL, in his official and individual capacity, Third-party Plaintiffs, - against - LAWRENCE G. BRATHWAITE III, PHILADELPHIA INDEMNITY INSURANCE COMPANY, AND TOKIO MARINE SPECIALTY INSURANCE COMPANY, Third-party Defendants. -----------------------------------------------------------------------X TO THE ABOVE-NAMED THIRD-PARTY DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Third-Party Complaint of the defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, a copy of which is herewith served upon you, and to serve a copy of your Answer upon the undersigned attorneys for the defendants/third-party plaintiffs, DEVITT 1 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 SPELLMAN BARRETT, LLP, at their offices located at 50 Route 111, Suite 314, Smithtown, New York 11787, and upon the attorneys for plaintiff, RHEINGOLD GIUFFRA RUFFO & PLOTKIN, LLP, 551 Fifth Avenue, 29th Floor, New York, New York 10176, within twenty (20) days after service of the Summons and Third-Party Complaint, exclusive of the day of service, or within thirty (30) days after the service is completed, if service is made upon you by any method other than by personal delivery to you within the State of New York. PLEASE TAKE NOTICE, that in the case of your failure to answer the Third-Party Complaint of the defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, a judgment will be taken against you by default for the relief demanded in the Third-Party Complaint. Dated: Smithtown, New York September 28, 2022 Yours, DEVITT SPELLMAN BARRETT, LLP /s/ Scott J. Kreppein By: Scott J. Kreppein Attorneys for Defendant/Third-party Plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL 50 Route 111, Suite 314 Smithtown, New York 11787 (631) 724-8833 Our File No: TH9490JD (SJK/lvh) 2 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -----------------------------------------------------------------------X JAYME THODE, Index No.: 615613/2021 Plaintiff, THIRD-PARTY - against - VERIFIED COMPLAINT TIMOTHY HILL CHILDREN’S RANCH, INC., TIMOTHY HILL FARM, LLC, APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC., and JERRELL HILL, in his official and individual capacity, Defendants. -----------------------------------------------------------------------X TIMOTHY HILL CHILDREN’S RANCH, INC., Third-Party APPLE DAY CAMP, INC., TIMOTHY HILL Index No.: CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC., and JERRELL HILL, in his official and individual capacity, Third-party Plaintiffs, - against - LAWRENCE G. BRATHWAITE III, PHILADELPHIA INDEMNITY INSURANCE COMPANY, AND TOKIO MARINE SPECIALTY INSURANCE COMPANY, Third-party Defendants. -----------------------------------------------------------------------X Defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, by their attorneys, DEVITT SPELLMAN BARRETT, LLP, as and for their Third-Party Complaint against the third-party defendants, LAWRENCE G. BRATHWAITE III, PHILADELPHIA INDEMNITY INSURANCE 3 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 COMPANY, AND TOKIO MARINE SPECIALTY INSURANCE COMPANY, respectfully allege as follows: 1. That at all times mentioned herein, defendant/third-party plaintiff, TIMOTHY HILL CHILDREN’S RANCH, INC., is a corporation duly organized and existing under the virtue of the laws of the State of New York. 2. That at all times mentioned herein, defendant/third-party plaintiff, APPLE DAY CAMP, INC., is a corporation duly organized and existing under the virtue of the laws of the State of New York. 3. That at all times mentioned herein, defendant/third-party plaintiff, TIMOTHY HILL CHRISTIAN CAMP, INC., is a corporation duly organized and existing under the virtue of the laws of the State of New York. 4. That at all times mentioned herein, defendant/third-party plaintiff, THE TIMOTHY FOUNDATION, INC., is a corporation duly organized and existing under the virtue of the laws of the State of New York. 5. That at all times mentioned herein, defendant/third-party plaintiff, JERRELL HILL, is a was and still is a resident of the State of New York, County of Suffolk. 6. That at all times mentioned herein, the third-party defendant, LAWRENCE G. BRATHWAITE III, was and, upon information and belief, still is a resident of the State of New York, County of Suffolk. 7. Defendant PHILADELPHIA INDEMNITY INSURANCE COMPANY, is a foreign corporation, organized and existing under the laws of the State of Pennsylvania. 8. Defendant TOKIO MARINE SPECIALTY INSURANCE COMPANY, is a foreign corporation, organized and existing under the laws of the State of Delaware. 4 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 9. The plaintiff, JAYME THODE, commenced an action against the defendants/third- party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, and defendant, TIMOTHY HILL FARM, LLC, seeking damages for personal injuries allegedly sustained as a result of being raped by third-party defendant, LAWRENCE G. BRATHWAITE III, on or about May 25, 1992. 10. Plaintiff, JAYME THODE, alleges that at the time of the alleged assault, she was visiting one or more residents of TIMOTHY HILL CHILDREN’S RANCH, INC. 11. Plaintiff, JAYME THODE, is further claiming that the alleged incident occurred as the result of negligence on the part of the defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, in their ownership, operation, management, control, supervision, and maintenance of the subject premises, as well as the hiring and retention of its employees. 12. Plaintiff, JAYME THODE, is alleging, among other injuries, a claim for continuing and ongoing emotional distress. 13. That the defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, have denied any and all acts of negligence alleged in the plaintiff’s Complaint. Issue was duly joined by the defendants, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, by way of service of their Verified Answer. 5 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 14. On February 14, 2019, New York State enacted the Child Victims Act (L. 2019 c.11; CPLR 214-g) (“CVA”), which extended the limitations period for civil actions seeking redress for injuries arising from certain sexual offenses, and opened a one-year window reviving civil actions for which the statute of limitations has already run. 15. On September 25, 2019, the New York State Department of Financial Services issued Insurance Circular Letter No. 11 (2019), which, among other things, encouraged insurers to “act in utmost good faith and to take the initiative to be cooperative so that victims may be compensated,” and provided guidance interpreting insurers’ obligations with respect to CVA claims pursuant to applicable New York State laws and regulations, including that insurers must: a. “fairly review such policies, interpreting such contracts so as to resolve any ambiguities in the policyholders’ favor,” b. “perform on its duties to defend policyholders”; and c. “maintain a policy record… at least until the expiration of the applicable statute(s) of limitations,” and the fact that “the CVA revised the applicable statute of limitations… has the effect of extending the applicable records retention requirements. 16. Receipt of the above-referenced Complaint in Thode v. Timothy Hill Children’s Ranch, Inc., et al., Suffolk County Index No.: 615613/2021, was the first notice received by the defendants/third-party plaintiffs of any alleged occurrence, injury, or claim involving Jayme Thode. 17. In 1992, when Ms. Thode alleges she was assaulted, defendants/third-party plaintiffs were insured by Reliance Insurance Company; however, Reliance has been liquidated, with all policies terminated effective November 2003. (In Re Reliance Insurance Co., Pennsylvania Commonwealth Court Docket No. 269-MD-2001). 6 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 18. From 2012, to date, at the time the third-party plaintiffs received the first notice of Ms. Thode’s claim, or any alleged incident or injury related thereto, they were insured by Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty Insurance Company. 19. Upon information and belief, Philadelphia Indemnity Insurance Company and Tokio Marine Specialty Insurance Company are related entities, operating from the same address, using letterhead that identifies both entities as “Philadelphia Insurance Companies” “A Member of the Tokio Marine Group.” 20. Upon information and belief, the policies defendants/third-party plaintiffs purchased from Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty Insurance Company from 2012 to date include “SEXUAL OR PHYSICAL ABUSE OR MOLESTATION” (“SPAM”) coverage. 21. The SPAM Vicarious Liability Coverage Occurrence Form included with defendants/third-party plaintiffs’ annual policies of insurance with Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty Insurance Company from 1992 to date, which the insurers have referred to as “Occurrence SPAM Forms,” each state, among other things, at Section I thereof, which is entitled “Insuring Agreement”: 1. (a) We will pay those sums that the insured is legally obligated to pay as “damages” because of “bodily injury” to which this insurance applies, if the insured is alleged to be liable for another person’s “abusive conduct” based solely on either disparate impact or vicarious liability by reason of: (1) negligent: (a) employment; (b) selection; (c) investigation; (d) supervision; (e) reporting… (f) retention… of any “employee”, volunteer or any other person or persons for whom the insured is or ever was legally responsible; or (2) the negligent: (a) design; (b) control; (c) maintenance; (d) supervision; (e) inspection; or (f) investigation of 7 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 prospective tenants; of your premises, premises in your control, or premises you have leased to another *** we have the right and duty to defend any “suit” seeking “damages” because of another person’s “abusive conduct" even if the allegations of the "suit" are groundless, false or fraudulent. However, we have no duty to defend the insured against any “suit” seeking “damages” to which this insurance does not apply. … But *** (c) Prior to the policy period, no insured… and no "employee" authorized by you to give or receive notice of an occurrence or claim, knew that the "bodily injury" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" occurred, then any continuation, change or resumption of such "bodily injury" during or after the policy period will be deemed to have been known prior to the policy period. *** (b) This insurance applies to “damages” because of “bodily injury” only if: (1) The “bodily injury” is caused by “abusive conduct that takes place in the “coverage territory”; (2) The “bodily injury” occurs during the policy period. 22. Under the Definitions section, Section V of the Occurrence SPAM Forms, the term “Bodily Injury” is defined by stating “’Bodily Injury’ means bodily injury, sickness or disease including emotional distress or anguish including death resulting therefrom.” 23. Under the Definitions section, Section V of the Occurrence SPAM Forms, the definition of “abusive conduct” includes the statement that such conduct is “deemed to take place… at the time of the first such act or encounter unless abuse began prior to the policy period and the insured was unaware that the molestation had occurred, in whole or in part.” 8 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 24. Upon information and belief, for 2021-2022, Third-Party Plaintiffs’ insurance with Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty Insurance Company also included claims-made 25. Jayme Thode has asserted claims against the defendants/third-party plaintiffs for, among other things, emotional distress occurring during the policy periods wherein defendants/third-party plaintiffs were insured by Philadelphia Indemnity Insurance Co. and/or Tokio Marine Specialty Insurance Company, and prior to the policy period, none of the defendants/third-party plaintiffs, nor any of their employees authorized to receive notice of an occurrence or claim knew that any of Ms. Thode’s alleged bodily injuries had occurred, in whole or in part. 26. Jayme Thode has asserted claims against the defendants/third-party plaintiffs for, among other things, abusive conduct that the defendants/third-party plaintiffs were wholly unaware had allegedly occurred. 27. Upon information and belief, in addition to occurrence-based SPAM coverage, some or all of the defendants/third-party plaintiffs’ policies with Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty Insurance Company also included what they have referred to as “Claims-Made SPAM Form” coverage and “Abusive Conduct Liability Coverage Form – Claims Made.” 28. Philadelphia Indemnity Insurance Company and Tokio Marine Specialty Insurance Company were duly notified of the claims made against defendants/third-party plaintiffs by Ms. Thode, and demanded defense and indemnification. 29. By letter dated October 29, 2021, a Senior Claims Supervisor writing on behalf of both Philadelphia Indemnity Insurance Company and Tokio Marine Specialty Insurance Company 9 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 disclaimed coverage for Thode v. Timothy Hill Children’s Ranch, Inc., et al., Suffolk County Index No.: 615613/2021 and declined to pay defense costs or indemnify any defendant named in that action. 30. In their October 29, 2021 letter, Philadelphia Indemnity Insurance Company and Tokio Marine Specialty Insurance Company identified ten potentially applicable primary policies, and ten potentially applicable excess/umbrella policies. 31. In their October 29, 2021 letter, Philadelphia Indemnity Insurance Company and Tokio Marine Specialty Insurance Company interpret their Occurrence SPAM Forms as only providing coverage “for ‘bodily injury’ caused by ‘abusive conduct’ during the policy period.” 32. In their October 29, 2021 letter, Philadelphia Indemnity Insurance Company and Tokio Marine Specialty Insurance Company deny coverage under the “ACL Claims-Made Form of the 2021-2022 Primary Policy” because, they reason, the claims made coverage only applies if the “‘abusive conduct’ did not occur before the Retroactive Date” of June 4, 2020. 33. A copy of the ACL Claims-Made Form of the 2021-2022 Primary Policy has not been provided and, upon information and belief, should contain language covering claims that the insured was wholly unaware of prior to the policy period, and is intended to provide coverage for claims such as those brought by Ms. Thode where the claim was first asserted during the policy period and the insured had no knowledge of the claim prior to the policy period. AS AND FOR A FIRST CAUSE OF ACTION FOR COMMON LAW INDEMNIFICATION 34. Defendants/third-party plaintiffs repeat, reiterate, and reallege each and every allegation hereinabove as if fully set forth herein. 35. That ifthe plaintiff’s allegations as set forth in the Complaint are substantiated, which is expressly denied herein, and plaintiff recovers judgement against the defendants/third- 10 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, as a result of any negligence other than plaintiff’s own negligence, such as damages will have been sustained as a result of the acts, omissions and/or negligence, such damages will have been sustained as a result of the acts, omissions and/or negligence of the third- party defendant, LAWRENCE G. BRATHWAITE III, and not through any negligence on the part of the defendants/third-party plaintiffs. 36. If a judgment or settlement is recovered by plaintiff from the defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, such recovery will have come about because of the negligence, carelessness, recklessness, or intentional acts of the third-party defendant, LAWRENCE G. BRATHWAITE III. 37. That the defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, shall be entitled to judgement over third- party defendant, LAWRENCE G. BRATHWAITE III, for any amount of judgement rendered against defendants/third-party plaintiffs, based upon common law indemnification. 38. Wherefore, defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, demand judgement over and against the third-party defendant, LAWRENCE G. BRATHWAITE III, for full common law indemnity, including but not limited to attorneys’ fees and all other costs and expenses, along with such other and further relief as the court deems just proper. 11 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 AS AND FOR A SECOND CAUSE OF ACTION FOR CONTRIBUTION 39. Defendants/third-party plaintiffs repeat, reiterate, and reallege each and every allegation hereinabove as if fully set forth herein. 40. That ifthe plaintiff’s allegations as set forth in the Complaint are substantiated, which is expressly denied herein, and plaintiff recovers judgement against the defendants/third- party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, as a result of any negligence other than plaintiff’s own negligence, such as damages will have been sustained as a result of the acts, omissions and/or negligence, such damages will have been sustained as a result of the acts, omissions and/or negligence of the third- party defendant, LAWRENCE G. BRATHWAITE III, and not through any negligence on the part of the defendants/third-party plaintiffs. 41. That the defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, shall be entitled to judgment over the third-party defendant, LAWRENCE G. BRATHWAITE III, for any amount of judgment rendered against the defendants/third-party plaintiffs, based upon contribution for an equitable share of any judgment on the basis of comparative degree of culpability of said parties. AS AND FOR A THIRD CAUSE OF ACTION FOR BREACH OF CONTRACT 42. Defendants/third-party plaintiffs repeat, reiterate, and reallege each and every allegation hereinabove as if fully set forth herein. 43. Defendants/third-party plaintiffs had valid and enforceable contracts of insurance with Philadelphia Indemnity Insurance Company. 12 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 44. Defendants/third-party plaintiffs had valid and enforceable contracts of insurance with Tokio Marine Specialty Insurance Company. 45. Third-party defendants Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty Insurance Company breached their contract of insurance with the defendants/third-party plaintiffs by disclaiming coverage for Thode v. Timothy Hill Children’s Ranch, Inc., et al., Suffolk County Index No.: 615613/2021, failing to pay defense costs, and declining to acknowledge their indemnification obligations. 46. As a direct and proximate result of the above-referenced breach of contract by third- party defendants Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty Insurance Company, defendants/third-party plaintiffs have suffered damages, including but not limited to, attorneys’ fees. 47. Upon information and belief, Philadelphia Indemnity Insurance Company and/or Tokio Marine Specialty Insurance Company’s disclaimer of coverage in the Thode v. Timothy Hill Children’s Ranch, Inc., et al., Suffolk County Index No.: 615613/2021, particularly insofar as interpreting the Occurrence SPAM Forms as being limited to coverage for “for ‘bodily injury’ caused by ‘abusive conduct’ during the policy period,” when no such language is contained on the face of the policy and the language used in the policy clearly indicates that it covers bodily injuries occurring during the policy period, including continuing emotional distress, provided the insured did not have notice of those alleged injuries prior to the policy period, was made in bad faith. 13 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 AS AND FOR A FOURTH CAUSE OF ACTION FOR DECLARATORY JUDGMENT 48. Defendants/third-party plaintiffs repeat, reiterate, and reallege each and every allegation hereinabove as if fully set forth herein. 49. A justiciable controversy exists between defendants/third-party plaintiffs and third- party defendants, Philadelphia Indemnity Insurance Company and Tokio Marine Specialty Insurance Company, as to whether any the defendants/third-party plaintiffs’ policies of insurance with those third-party defendants provides for coverage, including but not limited to for defense costs, in Thode v. Timothy Hill Children’s Ranch, Inc., et al., Suffolk County Index No.: 615613/2021. 50. Defendants/third-party plaintiffs are entitled, pursuant to C.P.L.R. § 3001 to declaratory relief as to the rights and other legal relations between defendants/third-party plaintiffs and third-party defendants, Philadelphia Indemnity Insurance Company and Tokio Marine Specialty Insurance Company, regarding whether there is coverage for Thode v. Timothy Hill Children’s Ranch, Inc., et al., Suffolk County Index No.: 615613/2021 under any potentially applicable policies of insurance. DEMAND FOR RELIEF WHEREFORE, defendants/third-party plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL, demand judgment over and against third- party defendant, LAWRENCE G. BRATHWAITE III, for all of defendants/third-party plaintiffs’ proportionate share of any judgment which may be recovered by plaintiff Thode against the defendants/third-party plaintiffs; and against third-party defendants, PHILADELPHIA INDEMNITY INSURANCE COMPANY and TOKIO MARINE SPECIALTY INSURANCE 14 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36 03:23 PM INDEX NO. 615613/2021 NYSCEF DOC. NO. 15 33 RECEIVED NYSCEF: 10/18/2022 11/16/2022 COMPANY, for compensatory damages, including all attorneys’ fees and other costs of defense, injunctive relief requiring payment of all further costs of defense, and for declaratory relief to the effect that defendants/third-party plaintiffs are entitled to defense and indemnification pursuant to the applicable insurance policies; together with the costs, disbursements, interest, attorneys fees, punitive damages, and such other and further relief in the defendants/third-party plaintiffs’ favor as deems just, equitable, and proper. Dated: Smithtown, New York September 28, 2022 Yours, DEVITT SPELLMAN BARRETT, LLP /s/ Scott J. Kreppein By: Scott J. Kreppein Attorneys for Defendant/Third-party Plaintiffs, TIMOTHY HILL CHILDREN’S RANCH, INC., APPLE DAY CAMP, INC., TIMOTHY HILL CHRISTIAN CAMP, INC., THE TIMOTHY FOUNDATION, INC. and JERRELL HILL 50 Route 111, Suite 314 Smithtown, New York 11787 (631) 724-8833 Our File No: TH9490JD (SJK/lvh) 15 of 16 FILED: SUFFOLK COUNTY CLERK 10/18/2022 11/16/2022 03:36