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HomeMy WebLinkAbout98-00391 '" . IN TilE UNITEIJ STATES IlISTIU( T I 'ollln II( II{ TilE Mml)I.E IHSTIUl:T OF I'ENNS\'I,V ANIA THE FROG, SWITCH & MANUFACTURING CO"INC, vs, Nil UNITED STATES FIRE INSURANCE COMPANY Jim\' T1UAl.llIiMANllEJ> N07'/C/:' 0,.. HHAf1!Jj'fJ, AND NOW, comes Ihe defendant, lJniled SllItes Fite InslIllInce ('llInpany, IInd iiII' the purpose only of removing Ihis ense to Ihe Uniled Sillies I Jisllicl COllrllin Ihe Middle District of Pennsylvania, respcctfully avers as filllows: J. This is a civil uction liIed IInd 1I0W pendillg in the COUll of COIllIllOII Pleas of i , , Cumberland Coullty, Pennsylvllniu, Civil Action No. 'JII.J'JI, 2. Said action wus illstituted on or IIhOll1 Jllnullry 21, I 'Jl)H,lIpolI the filing ofl'llIintifl's i i I I I i Writ of Summons in Civil Action. A Irlle IInd currecl cupy of slIhl Wril of SUlIlmons is nllnched hereto as Exhibit "A" and incorporatcd herein hy lelerence. 3, PlaintilT liIed a COlllplaint on April 16, 1')l)H. A Iruc IIlul COllect copy of suid Complaint is ullnched herelo liS Exhihil "II" III1lI incorpllllllcd helCill hy leferenee. 4. COlllpleledivelsity ofcili/enship exisls hetweenlhe pallies herelo,nsplllinlifl~ Frog, Switch & Manufucturinll COlllpany, 11Il'. is II Penllsylvllnilll'olporalion wilh ils principul place of business ul 600 liust Slreet in ('lIIlish', ('OIllIIl'r1I11UI ('ounly, I'enllsylvllnill, IInd dcfendallt, United States Fire Insurallcc COlllpiln)', is II Nell' J"I !,ey n11p'lIl1lion with ils principal place of business located in MorristowlI, Nell' lei M'Y, ,I, HI AM.... MAItlINI.... '" nnUlIll,ltU Exhibit A n. JAMES nEYNOLOS. In.. ESQUlnr f'A Allorncy 1.0. No. 102li2 IlEYNOI.OS & HAVAS ^ Prohtlllonol CorporAtion 101 Plno 51111111 Posl Office Box 932 Haulaburo, Pennsylvania 17108.0932 17.1 71 236.3200 Attorney 101 Plolntlff THE FROG, SWITCH & MANUFACTURING CO.. INC, THE FROG, SWITCH & MANUFACTURING CO., INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. 9B-391 CIVIL UNITED STATES FIRE INSURANCE COMPANY, Defendant JURY TRIAL DEMANDED COM P L A r N T 1. Plaintiff The Frog, Switch & Manufacturing Co., Inc. ("Frog") is a Pennsylvania corporation with a principal place of business at 600 East High Street, Carlisle, Pennsylvania 17013. 2. Defendant United States Fire Insurance Company ("USFIC") is a New York corporation with a principal place of business at 305 Madison Avenue, Morristown, New Jersey 07960. 3 . The Travelers Insurance Company ("The Travelers") issued to Frog a policy of insurance providing commercial general liability coverage, Policy No. EJ-660-107J430B-TIL-94, and covering the policy period September 1, 1994 through September 1, 1995 ("The Travelers Policy"). A copy of the relevant portions of The Travelers Policy is attached hereto, made a part hereof, and marked as Exhibit "A". A , J:NS.ll.RAlli:~.LI.CIES. 4, The insuring agreement under Coveroge B of Section I of The Travelers Policy provides coverage for, inte~ alia, advertising injury liability, as follows: "[The Travelers] will pay those sums that [Frog] becomes legally obligated to pay as damages because of . . . 'advertising injury' to which this coverage part applies. We will have the right and duty to defend any 'suit' seeking those damages. . . This insurance applies to: . . . 'Advertising injury' caused by an offense committed in the course of advertising your goods, products or services. , 5, "Advertising injury" is defined in Section V of The " Travelers Policy as follows: "Advertising injury" means injury arising out of one or more of the following offenses: a. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; b. Oral or written that violates privacy; publication of material a person's right of c. Misappropriation of advertising ideas or style of doing business; or d. 6. Infringement of copyright, slogan. The advertising injury limit of liability in The title or Travelers Policy is $1,000.000. I. -2- 7. USFIC issued to Frog a Commercial Umbrella Policy, Policy No. 553016945, Covering the policy period September 1, 1994 through September 1, 1995 ("USFIC POlicy"). A copy of the relevant portions of the USFIC Policy is attached hereto, made a part hereof, and marked as Exhibit "B". 8. Section I of the Insuring Agreements of the USFIC Policy provides Coverage for advertising injury liability as follows: "[USFIC] will pay on behalf of [Frog] those sums in excess of the 'Retained Limit' which [Frog], by reason of liability imposed by law . . , shall become legally obligated to pay as damages for: . . . 'Advertising Injury' caused by an act committed during the 'POlicy Period'," 9. Section II of the Insuring Agreements of the USFIC Policy provides that: [USFIC] shall have the right and duty to defend any "Claim" or "Suit" seeking damages cOvered by the terms and conditions of the [USFIC Policy] when: (a) the applicable limits of insurance of the underlying insurance policies . . , (the "Underlying Insurance"), plus the applicable limits of other insurance have been exhausted by payments; or (b) Damages are sought for , . . Injury" which are not "Underlying Insurance" insurance. "Advertising covered by or other 10. "Advertising injury" is defined in Section IV of the Insuring Agreements of the USFIC Policy as follows: . 3- " I , ~ , I I, " , I t' ': 13. The amount of the sel f. insured retention in the USFIC Policy is Zero Dollars ($0.00), " r' " 'I ,. 14, The limit of insurance set forth in the USFIC Policy relating to claims for advertising injury is $5,000.000 for each occurrence, and $10,000,000 in the aggregate. , I J [, ' l I r. ,~ ~ ~... ~ 1'\ 1'\ , ; B. ESCO LITIGATION 15. On July 17, 1995, ESCO Corporation ("ESCO") filed a Complaint against Frog and one of its employees, John R. Olds ("Olds") in the United States District Court for the Middle District of Pennsylvania at Civil Docket No. 1:CV-95-1153 ("the ESCO litigation"). A copy of the Complaint is attached hereto, made a part hereof, and marked as Exhibit "C". 16. In the Complaint, ESCO alleged that in January 1995, it acquired a dipper bucket product line from Amsco Cast Products, Inc. ("Amsco"), a leading supplier of all cast manganese steel large dipper buckets used in open-pit mining production. As part of the dipper bucket product line, ESCO allegedly purchased ! I ( I I ~ I Amsco's trade name, trademarks, and copyrights. 17. ESCO alleged that prior to its acquisition of the dipper bucket product line, Olds, who was Amsco's chief engineer i, ~ , for the dipper bucket product line before he became employed by Frog, misappropriated from Amsco trade secret and confidential business information, including numerous drawings and prints - 5- '. relating to the Amsco dipper bucket product line, and delivered this infomtation to Frog when he went to work for Frog. lB. ESCO alleged that Frog entered the dipper bucket product market after hiring Olds and receiving the trade secret and confidential business infomtation Olds brought with him from Amsco. 19. ESCO alleged that Frog entered the market for dipper buckets and component parts by using Amsco proprietary trade secret and confidential business infomtation and technology acquired from Olds. 20. ESCO alleged that in selling dipper buckets, Frog used trade secret and confidential business infomtation, including drawings, patterns and technology, pirated and misappropriated by prog and Olds, 21. In the Complaint, ESCO asserted claims for Unfair Competition: Tortious Disclosure and Use of Another's Trade Secrets (Count One); Unfair Competition: Procuring Confidential Business Information By Improper Means (Count Two); Intentional Interference with Prospective Contractual Relations (Count Three); Violation of Uniform Trade Secrets Act of Arizona (Count Pour); Common Law ConverSion (Count Five); and, Civil Conspiracy to Defraud and Commit Unlawful Acts (Count Six). 22. The basis for all of ESCO's claims was that Frog allegedly misappropriated Amsco's trade secrets and confidential ~ 6- .\: 23, As a result of the foregoing allegations, ESCO demanded j I' , .', " "'j if /, U business information in developing and marketing its own dipper bucket product line, damages in the Complaint from Frog on account of advertising injury as defined in the USFIC Policy, allegedly committed by Frog within the policy period of the USFIC Policy. i " , , 24, On August 30, 1995 and September 13, 1995, respectively, ESCO filed an Amended Complaint and Revised Amended l Complaint asserting the same six Counts as set forth in the Complaint, except that Count Six was retitled "Civil Conspiracy 25. On December 4, 1995, ESCO filed a Motion for Leave to t to Commit Unlawful Acts." File Second Amended Complaint, together with a supporting I , ! Memorandum. In its Motion, ESCO requested in part permission to assert four new causes of action closely related to the existing claims. The proposed new causes of action were for false advertising and reverse passing off under the Lanham Act, 15 U,S,C. ~1125(a), and violation of the New Mexico and Minnesota Uniform Trade Secret Acts. ESCO also sought to join two new parties in the litigation. 26. Count Nine of the proposed Second Amended Complaint was titled "False Advertising Under Lanham Act, 15 U,S.C. ~1125(a) (1988) Against Defendant I"rog." In the proposed Count Nine for false advertising, ESCO alleged that: .7- 79, Shortly after 01ds bocame ell1p10yed by Frog conul1ellcing October 17, 1994, defendant Frog launched a promotional campoign to the market for all cast manganese dipper buckets. This campaign included widespread distribution of a product promotional brochure, PUblication in an industry trade journal, and verbal and written direct Communication with CUstomers. In this campaign, defendant Frog falsely repreSented that it had developed a new and "revolutionary" design for dipper bucket parts and components, and falsely depicted a dipper bucket with a "Frog, Switch" logo. BO. In fact, at the time of defendant Frog's campaign, it had done no design work whatsoever, and the parts and components Frog was offering for sale and was selling were made from engineering drawings unlawfully appropriated by Olds from Amsco and used by Frog. The market was falsely led to believe that these products were independently designed by Frog, and was falsely led to believe that products of the type contained in the Amsco line could readily be replicated, produced and sold by Frog, 81. Plaintiffs have been damaged by defendant Frog'S actions in an amOunt to be proved at trial. 27. Count Ten of the proposed Second Amended Complaint was titled "Reverse Passing Off Under Lanham Act, 15 U.S.C. ~1125(a) (1988) Against Defendant Frog." In the proposed Count Ten for reverse passing off, ESCO alleged that: B4. The parts and components sold in commerce by defendant Frog as its own were really Amsco products made by use of the stolen drawings, a fonn of "reverse passing off." 85. Plaintiffs have been damaged by defendant Frog's actions in an amount to be proved at trial. .8- \: 2B. On December 19, 1995, BSCO filed a Reply Memorandum in support of its Motion for Leave to File a Second Amended Complaint wherein it stated that the new claims under the Lanham 1 'I., l' .' I.'.. ','" I" )/ II! Act are simply "outgrowths" of the "misappropriation and use of BSCO's proprietary interests by defendants." (Reply Memorandum, , . , ., , I,' I p. 11). 29. By Order dated January 19, 1996, the Magistrate Judge denied ESCO's Motion for Leave to File a Second Amended Complaint , r i' Il trade secret and confidential business information is ~ k on the basis that it was untimely. In reaching his decision, the Magistrate Judge stated: "The proposition that Olds had and used specifically alleged in the initial complaints filed on July 17, 1995. Doc. 1. The basis for any additional claims (false advertising, reverse passing off) is a reasoned inference from i , ! the facts related about Olds' use of Amsco information and plans ,~l and could have been deduced earlier. 'I (Order, p, 5). 30. On February 16, 1996, BSCO filed a Motion for Leave to File Revised Second Amended Complaint. The proposed Revised Second Amended Complaint was attached to the Motion and included the same counts for false advertising and reverse passing off , , asserted in the proposed Second Amended Complaint, but did not include the addition of two new parties BSCO sought to join in the Second Amended Complaint. .9 - 31. By Order daced March 21, 1996, the District Court affirmed the Magistrate JUdge's Order dated January 19, 1996, denying ESCO's Motion for Leave to File a Second Amended Complaint. 32. On March 28, 1996, after receipt of the District Court's Order affirming his denial of ESCO's Motion for Leave to File a Second Amended Complaint, the Magistrate JUdge denied ESCO's Motion for Leave to File a Revised Second Amended Complaint. 33. By Memorandum and Order dated September 25, 1996, the District Court reversed the Order of the Magistrate JUdge dated March 2B, 1996, and granted ESCO's Motion for Leave to File a Revised Second Amended Complaint. 34. On September 30, 1996, ESCO filed its Revised Second Amended Complaint asserting its new claims for false advertising and reverse passing off under the Lanham Act in Counts Nine and Ten, respectively. A copy of the Revised Second Amended Complaint is attached hereto, made a part hereof, and marked as Exhibit "0". 35. The allegations in paragraphs 76, 77 and 78 of Count Nine of the Revised Second Amended Complaint are exactly the same as the allegations in paragraphs 79, BO and 81 of Count Nine of the Second Amended Complaint. The allegations in paragraphs Bl ii fi ; .., i j: , ! and 82 of Count Ten of the Revised Second Amended Complaint are ,10- . . exactly the same as the allegations in paragraphs 84 and 85 of the Second Amended Complaint. 36. By Order dated November 1, 1996, the District Court entered summary judgment in favor of Frog and against ESCO on the Counts for violation of the Uniform 'rrade Secrets Acts of Arizona (Count Four), New Mexico (Count Five), and Minnesota (Count Six). 37. As a result of the foregoing allegations, ESCO demanded in the Revised Second Amended Complaint damages from Frog on account of advertising injury as defined in the USFIC Policy allegedly committed by Frog within the policy period of the USFIC Policy, 38. By Order dated April 29, 1997, the District Court placed the case on the June 9, 1997 Trial List. 39. On June 5, 1997, Frog and ESCO entered into a settlement agreement whereby in consideration for a mutual general release, Frog paid ESCO $2,625,000 in settlement of all \ 40. An Order of Dismissal, with prejudice, terminating the . I , I ! claims asserted by ESCO against Frog. litigation between ESCO and Frog was entered by the Court on June 10, 1997, C. DENIAL OF COVERAGE/REFUSAL TO DEFEND AND INDEMNIFY 41. By letter dated July 28, 1995, Frog timely provided USFIC with notice of the ESCO litigation and with a copy of the -11- Complaint. Frog requested that USFIC defend and indemnify Frog and Olds under the USFIC Policy. (Hereinafter Frog. and Olds shall be jointly referred to as "Frog" with respect to allegations regarding USFIC's duty to defend and indemnify Frog and Olds.) 42. By letter dated October 6, 1995, USFIC denied coverage and refused to defend or indemnify Frog for the claims asserted in the Complaint. 43. By letter dated November 2, 1995, Frog requested that USFIC withdraw its denial of coverage and again requested that USFIC defend and indemnify it against the claims asserted in the ESCO litigation, setting forth specific reasons in support of its position. 44. By letter dated December 7, 1995, Frog notified USFIC that ESCO was attempting to file a Second Amended Complaint which included claims for false advertising and reverse passing off under the Lanham Act. Frog sent USFIC a copy of the proposed Second Amended Complaint, which included new Counts Nine (false advertising) and Ten (reverse passing off). In the letter, Frog again requested that USFIC defend and indemnify it against the claims asserted in the ESCO litigation. 45. By letter dated January 22, 1996, USFIC responded to Frog's December 7, 1995 letter and reaffirmed its earlier denial of coverage and refusal to defend or indemnify Frog against the -12- claims asserted in the Complaint and further denied coverage and refused to defend or indemnify Frog against the additional claims asserted in Counts Nine and Ten of the proposed Second Amended Complaint. 46. By letter dated February 19, 1998, Frog timely made a written claim for indemnity under the USFIC Policy. In the letter, Frog notified USFIC of the settlement of the ESCO litigation and of the damages it had incurred as a result of USFIC's refusal to defend and indemnify Frog. Frog demanded that USFIC indemnify it for said damages which are set forth below. 47. USFIC has not indemnified Frog for the damages it has incurred, as demanded in the February 19, 1998 letter. 48. USFIC did not defend or indemnify Frog against the claims asserted by ESCO in the ESCO litigation nor did it file a declaratory judgment action to determine its duty to defend and/or indemnify Frog. 49. USFIC's denial of coverage and its refusal to defend and indemnify Frog was untimely and not sufficiently specific as to the reasons therefor. 50. Frog paid all premiums due USFIC for the USFIC Policy and has complied with all applicable conditions precedent to USFIC's fulfillment of its obligations to Frog under the USFIC Policy with respect to the ESCO litigation. -13 . USFIC Policy, including without limitation the advertising injury coverage contained therein. 57. USFIC had a duty to defend Frog under the USFIC Policy against the claims asserted in the ESCO litigation, and a duty to indemnify Frog for the damages it incurred as set forth below. 58. USFIC breached the USFIC Policy by denying coverage and refusing to defend and indemnify Frog against the claims asserted in the ESCO litigation. 59. USFIC breached the USFIC Policy by denying coverage and refusing to defend and indemnify Frog in an untimely fashion and without being sufficiently specific as to the reasons therefor. Therefore, USFIC is estopped from asserting defenses to Frog's claims. 60. Under the USFIC Policy, USFIC is obliged to indemnify Frog for the amount it paid to settle the ESCO litigation ($2,625,000) in excess of the "retained limit." The retained limit under the USFIC Policy is the limit of liability of $1,000,000 set forth in The Travelers Policy if it is determined that there is coverge under The Travelers Policy; or Zero ($0.00) Dollars if it is determined that there is no coverage under The Travelers Policy. USFIC has breached the USFIC Policy by failing and refusing to indemnify Frog for said damages. 61. As a result of its breach of the USFIC Policy, USFIC is also liable to Frog for, int'pr alia, the following damages: -15- I " . A. the amount of legal fees and other costs paid by Fr~g in defending the ESCO litigation ("underlying defense costs"); B. the expenses incurred by Frog in the nature of time expended by employees in the investigation and defense of the ESCO litigation; C. consequential damages, including but not limited to lost profits, lost business opportunities, and costs related to the financing of the underlying defense costs and the settlement payment; D. attorney's fees and costs incurred in bringing this action; and E. interest as allowed by law. 62. Frog has demanded that USFIC indemnify it for the foregoing damages, but USFIC has failed and refused to do so in breach of the USFIC POlicy. WHEREFORE, Plaintiff The Frog, Switch & Manufacturing Co., Inc. demands judgment in its favor and against Defendant United States Fire Insurance Company in an amount in excess of $25,000, the amount requiring referral to arbitration by local rule of Court, plus interest and costs. -16- . " . COUNT II BAD FAITH UNDER 42 PA. C.S.A. ~8371 63. Plaintiff incorporates herein by reference the averments of paragraphs 1 - 62 hereof as if set forth in their entirety. 64. USFIC, as insurer, has acted in bad faith with respect to Frog, its insured, in denying coverage for and in refusing to defend and indemnify Frog under the USFIC Policy against the claims asserted by ESCO in the ESCO litigation. 65. USFIC did not have a reasonable basis for denying coverage for and refusing to defend and indemnify Frog against the claims of ESCO asserted in the ESCO litigation. 66. USFIC did not act with the utmost good faith toward Frog nor did it accord Frog's interest the same consideration it gave its own interest in denying coverage and in refusing to defend and indemnify Frog under the USFIC POlicy. 67. USFIC's wrongful denial of coverage and refusal to defend and indemnify Frog against the claims asserted by ESCO in the ESCO litigation constitute bad faith under 42 Pa. C.S.A. 98371. 68. As a result of USFIC's bad faith actions, USFIC is liable to Frog for punitive damages, court costs and attorney's fees, and interest, all as provided in 42 Pa. C.S.A. 98371. -17- I .' . ," I I \: , YERIFICATION , J .. J I, LEE E. HUGHEY, state that I am the President of The Frog, Switch & Manufacturing Co., the Plaintiff in this action, and am authorized to make this Verification on its behalf. I state that the facts set forth in the foregoing COMPLAINT are true upon my personal knowledge, information and belief. I understand that my statements are made subject to 18 Pa. Cons. Stat. 9 4904, providing for criminal penalties for unsworn falsification to authorities. Date: fJ(JfI/~ 119/? The Frog, Switch & Manufacturing Co., Inc. (3825) Cl?R7'JFlCA7'E OFSmW1CE I, FRANCIS J. DEASEY, ESQUIRE, hereby certiry that I have served upon all person(s) listed belo\ a true and correct copy or Praecipe to Transrer, in the above matter by first class postage prepaid mail. R. James Reynolds, Jr., Esquire Reynolds & Havas, P.C. 101 Pine Street P.O. Box 932 Harrisburg, PA 17108-0932 .~~~. FRANCIS J. DEA N, ESQUIRE DATE: May 4, 1998 DEASEY. MAItDNEY & SENDER. lTD. 1 I . .. , Commonwealth of Pennsylvania County of Cumberland TilE FROG, SWITCIl & MANUFACTURING co., INC., PLAINTIFF Court of Lommon Pleas VI. UNITEn STATES FIRE INSURANCE COMPANY 305 MADISON AVENUE MORRISTOWN, NEW JERSEY 07960 DEFENDANT No. .__9_8:-.39.L.cnLIL._T.ERM..._____. 19.___ In __. .C.IV.IL..AC.TLON._=. .LAii.u Un. ___h_. TRUE COpy FROM AECOHD In T65tirnooy whe.-eol, I hl'Je unto tiel nrf hilod and tho seal of said Co at Carli.::Ju, Pl.. j Thi . 51' 19-2.L- To _ UNUED _ STATES_.ElIIRE.._INSURJ\.NCE_.cO You are hereby notified that TilE FR~ _SW I.:I:ClI..& _ MANUF.....C~URING. .cO,,--I-NG..ru n_.___.__ ..nuh.._____n __u _n_n n___ the Plaintiff ha commenced an action in n...._.~:!J!J:_I,_A(;;.:nQf:!___:__I,.l\~_n._n_.nnn___u__ against >JU which you are required Co defend or a dcCauh judgment may be entered against you. (SEAL) Dale n_.~i\_fo!l,J1Hl.'(_.?:.Lmu__m 19.9.l! ~ (T-n) .n__._.__p_L(.U~. . I'roth ota By4./J10' J._iL_l I'~ Depu _iJ~_.__ . . R. JAMES HEYNOLDS, JR.. ESaUIIlE PA AllutllllV 1.0. Nu. 10252 , l REYNOLDS & HAVAS A Prulo8fuof1111 Co,pur4l1lUn 101 Pine Stroul POIU Ollleo Box 932 HllrriRbufU. Po"nRylvl1mn '7108-0932 17171 236.3200 Attornoy for Plainllfl THE FROG. SWITCH & MANUFACTURING CO., INC. TilE FROG, SWITCH & MANUFACTURING CO., INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. 98-391 CIVIL UNITED STATES FIRE INSURANCE COMPANY Defendant JURY TRIAL DEMANDED AFFIDAVIT OF RETURN OF SERVICE BY MAIL On January 27, 1998, I mailed a true copy of the Writ of Summons by certified mail, return receipt requested, to Defendant United States Fire Insurance at its address. Defendant signed the Return Receipt upon delivery on January 29, 1998, and the receipt, attached hereto as Exhibit "A", was returned by the Post Office on February 2, 1998. I make these statements pursuant to 18 Pa. C.S. 94904, relating to unsworn falsification to authorities and understand that false statements may subject me to criminal penalties under that statute. Date: .1- " - Lj ~ "/ x' .' REYNOLDS & HAVAS A Professional Corporation 101 Pine Street Post Office Box 932 Ilarrisburg, Pennsylvania 17108-0932 (717) 236.3200 Attorney for Plaintiff THE FROG, SWITCH & MANUFACTURING CO., INC. ~, , , ". A, INSURAnCE POLICIES 4. The insuring agreement under Coverage B of Section I of The Travelers Pol icy provides coverage for, intet:: alia.., advertising injury liability, as follows: "[The Travelers] will pay those sums that [Frog] becomes legally obligated to pay as damages because of " 'advertising injury' to which this coverage part applies. We will have the right and duty to defend any 'suit' seeking those damages. . . This insurance applies to: . . . 'Advertising injury' caused by an offense committed in the Course of advertising your goods, products or services. . " 5. "Advertising injury" is defined in Section V of The Travelers Policy as follows: "Advertising injury" means injury ar~s~ng out of one or more of the following offenses: a. Oral or written PUblication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; b. Oral or written that violates privacy; PUblication of material a person's right of c. Misappropriation of advertising ideas or style of doing business; or d. Infringement of copyright, slogan. 6. The advertising injury limit of liability in The title or Travelers Policy is $1,000.000. ,2. 7. USFIC issued to Frog a Commercial Umbrella POlicy, Policy No. 553016945, Covering the policy period September 1, 1994 through September. 1, 1995 ("USFIC POlicy"). A copy of.the relevant portions of the USFIC Policy is attached hereto, made a part hereof, and marked as Exhibit "B". 8. Section I of the Insuring Agreements of the USFIC Policy provides coverage for advertising injury liability as follows: "[USFIC] will pay on behalf of [Frog] those sums in excess of the 'Retained Limit' which [Frog], by reason of liability imposed by law . shall become legally obligated to pay as damages for: . . . 'Advertising Injury' caused by an act committed during the 'Policy PeriOd'." 9. Section II of the Insuring Agreements of the USFIC Policy provides that: [USFIC] shall have the right and duty to defend any "Claim" or "Suit" seeking damages covered by the terms and conditions of the [USFIC Policy] when: (a) the applicable limits of insurance of the underlYing insurance POlicies . . . (the "Underlying Insurance") , plus the applicable limits of other insurance have been exhausted by payments; or (b) Damages are sought for . . . Injury" which are not "Underlying Insurance" insurance. "Advertising covered by or other 10. "Advertising injury" is defined in Section IV of the Insuring Agreements of the USFIC Policy as follows: - 3- "Advertising Injury" means injury that arises out of your advertising activities as a result of: (1) oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; (2) oral or written that violates pri vacy; publication of material a person I s right of (3) misappropriation of advertising ideas or style of doing business; or (4) infringement of copyright, slogan. title or 11. "Retained Limit" is defined in Section IV of the Insuring Agreements of the USFIC Policy as follows: (1) with respect to any "Occurrence" that is covered by "Underlying Insurance" or any other insurance, the total of the applicable limits of the "Underlying Insurance" plus the applicable limits of any other insurance, or (2) with respect to any "Occurrence" that is not covered by "Underlying Insurance" or any other insurance, the amount of the Self-Insured Retention stated in Item 4(e) of the Declarations (the "Self- insured Retention"). 12. The Travelers POlicy, including its coverage for advertising injury with its limit of liability of $1,000,000, constitutes underlying insurance for purposes of the USFIC POlicy. -4- 13. 'I'he amount of the self. insured retention in the USFIC Policy is Zero Dollars ($0.00). 14. The limit of insurance set forth in the USFIC Policy relating to claims for advertising injury is $5,000.000 for each occurrence, and $10,000,000 in the aggregate. B. ESCO LITIGATION 15. On July 17, 1995, ESCO Corporation ("ESCO") filed a Complaint against Frog and one of its employees, John R. Olds ("Olds") in the United States District Court for the Middle District of Pennsylvania at Civil Dccket No. 1:CV-95'1153 ("the ESCO litigation"). A copy of the Complaint is attached hereto, made a part hereof, and marked as Exhibit "C". 16. In the Complaint, ESCO alleged that in January 1995, it acquired a dipper bucket product line from Amsco Cast Products, Inc. ("Amsco"), a leading supplier of all cast manganese steel large dipper buckets used in open. pit mining production. As part of the dipper bucket product line, ESCO allegedly purchased Amsco's trade name, trademarks, and copyrights. 17. ESCO alleged that prior to its acquisition of the dipper bucket product line, Olds, who was Amsco's chief engineer for the dipper bucket product line before he became employed by Frog, misappropriated from Amsco trade secret and confidential business information, including numerous drawings and prints -5- relating to the Amsco dipper bucket product line, and delivered this information to Frog when he went to work for Frog. 18. ESCO alleged that Frog entered the dipper bucket product market after hiring Olds and receiving the trade secret and confidential business information Olds brought with him from Amsco. 19. ESCO alleged that Frog entered the market for dipper buckets and component parts by using Amsco proprietary trade secret and confidential business information and technology acquired from Olds. 20. ESCO alleged that in selling dipper buckets, Frog used trade secret and confidential business information, including drawings, patterns and technology, pirated and misappropriated by Frog and Olds. 21. In the Complaint, ESCO asserted claims for Unfair Competition: Tortious Disclosure and Use of Another's Trade Secrets (Count One); Unfair Competition: Procuring Confidential Business Information By Improper Means (Count Two); Intentional Interference with Prospective Contractual Relations (Count Three); Violation of Uniform Trade Secrets Act of Arizona (Count Four); Common Law Conversion (Count Five); and, Civil Conspiracy to Defraud and Commit Unlawful Acts (Count Six). 22. The basis for all of ESCO's claims was that Frog allegedly misappropriated Amsco's trade secrets and confidential -6. business information in developing and marketing its own dipper bucket product line. 23. As a reeult of the foregoing allegations, ESCO demanded damages in the Complaint from Frog on account of advertising injury as defined in the USFIC Policy, allegedly committed by Frog within the policy period of the USFIC Policy. 24. On August 30, 1995 and September 13, 1995, respectively, ESCO filed an Amended Complaint and Revised Amended Complaint asserting the same six Counts as set forth in the Complaint, except that Count Six was retitled "Civil Conspiracy to Commit Unlawful Acts." 25. On December 4, 1995, ESCO filed a Motion for Leave to File Second Amended Complaint, together with a supporting Memorandum. In its Motion, ESCO requested in part permission to assert four new causes of action closely related to the existing I , \ 1 i I ., claims. The proposed new causes of action were for false advertising and reverse passing off under the Lanham Act, 15 U.S.C. sl125(a), and violation of the New Mexico and Minnesota Uniform Trade Secret Acts. ESCO also sought to join two new parties in the litigation. 26. Count Nine of the proposed Second Amended Complaint was titled "False Advertising Under Lanham Act, 15 U.S.C. sl125(a) (1988) Against Defendant Frog." In the proposed Count Nine for false advertising, ESCO alleged that: ,': ~ ; " ,lJ -7. 28. On December 19, 1995, ESCO filed a Reply Memorandum in support of its Motion for Leave to File a Second Amended CQmplaint wherein it stated that the new claims under the Lanham Act are simply "outgrowths" of the "misappropriation and use of ESCO's proprietary interests by defendants." (Reply Memorandum, p. 11). 29. By Order dated January 19, 1996, the Magistrate JUdge denied ESCO's Motion for Leave to File a Second Amended Complaint on the basis that it was untimely. In reaching his decision, the Magistrate JUdge stated: "The proposition that Olds had and used trade secret and confidential business information is specifically alleged in the initial complaints filed on July 17, 1995. Doc. 1. The basis for any additional claims (false advertising, reverse passing off) is a reasoned inference from the facts related about Olds' use of Amsco information and plans and could have been deduced earlier." (Order, p. 5). 30. On February 16, 1996, ESCO filed a Motion for Leave to File Revised Second Amended Complaint. The proposed Revised Second Amended Complaint was attached to the Motion and included the same counts for false advertiSing and reverse passing off asserted in the proposed Second Amended Complaint, but did not include the addition of two new parties ESCO sought to join in the Second Ame~ded Complaint. '9- \ \ . " ! I ! . " I , ~ I " " I 31. By Order dated March 21, 1996, the Di~trict Court affirmed the Magistrate JUdge's Order dated January 19, 1996, denyir~ ESCO's Motion for Leave to File a Second Amended Complaint. 32. On March 28, 1996, after receipt of the District Court's Order affirming his denial of ESCO's Motion for Leave to File a Second Amended Complaint, the Magistrate Judge denied ESCO's Motion for Leave to File a Revised Second Amended Complaint. 33. By Memorandum and Order dated September 25, 1996, the District Court reversed the Order of the Magistrate Judge dated March 28, 1996, and granted ESCO's Motion for Leave to File a Revised Second Amended Complaint. 34. On September 30, 1996, ESCO filed its Revised Second Amended Complaint asserting its new claims for false advertising and reverse passing off under the Lanham Act in Counts Nine and Ten, respectively. A copy of the Revised Second Amended Complaint is attached hereto, made a part hereof, and marked as Exhibit "D". 35. The allegations in paragraphs 76, 77 and 78 of Count Nine of the Revised Second Amended Complaint are exactly the same as the allegations in paragraphs 79, 80 and 81 of Count Nine of the Second Amended Complaint. The allegations in paragraphs 81 and 82 of Count Ten of the Revised Second Amended Complaint are -10- exactly the same as the allegations in paragraphs 84 and 85 of the Second Amended Complaint. 36. By Order dated November 1, 1996, the District Court entered summary judgment in favor of Frog and against ESCO on the Counts for violation of the Uniform Trade Secrets Acts of Arizona (Count Four), New Mexico (Count Five), and Minnesota (Count Six). 37. As a result of the foregoing allegations, ESCO demanded in the Revised Second Amended Complaint damages from Frog on account of advertising injury as defined in the USFIC Policy allegedly committed by Frog within the policy period of the USFIC Policy. 38. By Order dated April 29, 1997, the District Court placed the case on the June 9, 1997 Trial List. 39. On June 5, 1997, Frog and ESCO entered into a settlement agreement whereby in consideration for a mutual general release, Frog paid ESCO $2,625,000 in settlement of all claims asserted by ESCO against Frog. 40. An Order of Dismissal, with prejudice, terminating the litigation between ESCO and Frog was entered by the Court on June 10, 1997. C. I I ,~ I' J DENIAL OF COVERAGE/REFUSAL TO DEFEND AND INDEMNIFY 41. By letter dated July 28, 1995, Frog timely provided USFIC with notice of the ESCO litigation and with a copy of the I i; -11. Complaint. Frog requested that USFIC defend and indemnify Frog and Olds under the USFIC Policy. (Hereinafter Frog and Olds shall be jointly referred to as "Frog" with respect to allegations regarding USFIC's duty to defend and indemnify Frog and Olds.) 42. By letter dated October 6, 1995, USFIC denied coverage and refused to defend or indemnify Frog for the claims asserted in the Complaint. 43. By letter dated November 2, 1995, Frog requested that USFIC withdraw its denial of coverage and again requested that USFIC defend and indemnify it against the claims asserted in the ESCO litigation, setting forth specific reasons in support of its position. 44. By letter dated December 7, 1995, Frog notified USFIC that ESCO was attempting to file a Second Amended Complaint which included claims for false advertising and reverse passing off under the Lanham Act. Frog sent USFIC a copy of the proposed Second Amended Complaint, which included new Counts Nine (false advertising) and Ten (reverse passing off). In the letter, Frog again requested that USFIC defend and indemnify it against the claims asserted in the ESCO litigation. 45. By letter dated January 22, 1996, USFIC responded to Frog's December 7, 1995 letter and reaffirmed its earlier denial of coverage and refusal to defend or indemnify Frog against the -12. claims asserted in thp Complaint and further denied coverage and refused to defend or indemnify Frog against the addItional claims asserted in Counts Nine and Ten of.the proposed Second Amended Complaint. 46. By letter dated February 19, 1998, Frog timely made a written claim for indemnity under the USFIC Policy. In the letter, Frog notified USFIC of the settlement of the ESCO litigation and of the damages it had incurred as a result of USFIC's refusal to defend and indemnify Frog. Frog demanded that USFIC indemnify it for said damages which are set forth below. 47. USFIC has not indemnified Frog for the damages it has incurred, as demanded in the February 19, 1998 letter. 48. USFIC did not defend or indemnify Frog against the claims asserted by ESCO in the ESCO litigation nor did it file a declaratory judgment action to determine its duty to defend and/or indemnify Frog. 49. USFIC's denial of coverage and its refusal to defend and indemnify Frog was untimely and not sufficiently specific as to the reasons therefor. 50. Frog paid all premiums due USFIC for the USFIC Policy and has complied with all applicable conditions precedent to USFIC's fulfillment of its obligations to Frog under the USFIC Policy with respect to the ESCO litigation. -13- COUNT I BREACH OF CONTRACT 51. Plaintiff incorporates herein by reference the averments of paragraphs 1 - 50 hereof as if set forth in their entirety. 52. The claims asserted by ESCO in the Complaint and the Revised Second Amended Complaint filed in the ESCO litigation are covered by the USFIC Policy. 53. In the Complaint and the Revised Second Amended Complaint filed in the ESCO litigation, ESCO sought damages for, inter alia, advertising injury covered by the USFIC Policy. 54. In the Complaint and the Revised Second Amended Complaint filed in the ESCO litigation, ESCO alleged that it was injured as a result of Frog's false advertising and reverse passing off, which acts constitute misappropriation of advertising ideas or style of doing business, infringement of copyright, title or slogan, and/or disparagement of its goods, products or services. 55. ESCO's alleged injuries were caused by offenses committed in the course of Frog's advertising, marketing and promotion of its dipper bucket product line. 56. The claims asserted by ESCO in the Complaint and the Revised Second Amended Complaint filed in the ESCO litigation fall, or at least potentially fall, within the coverage of the -14. USFIC Policy, including without limitation the advertising injury coverage contained therein. 57. USFIC had a duty to defend Frog unde~ the USFIC Policy against the claims asserted in the ESCO litigation, and a duty to indemnify Frog for the damages it incurred as set forth below. 58. USFIC breached the USFIC Policy by denying coverage and refusing to defend and indemnify Frog against the claims asserted in the ESCO litigation. 59. USFIC breached the USFIC Policy by denying coverage and refusing to defend and indemnify Frog in an untimely fashion and without being sufficiently specific as to the reasons therefor. Therefore, USFIC is estopped from asserting defenses to Frog's claims. 60. Under the USFIC Policy, USFIC is obliged to indemnify Frog for the amount it paid to settle the ESCO litigation ($2,625,000) in excess of the "retained limit." The retained limit under the USFIC Policy is the limit of liability of $1,000,000 set forth in The Travelers Policy if it is determined that there is coverge under The Travelers Policy; or Zero ($0.00) Dollars if it is determined that there is no coverage under The Travelers Policy. USFIC has breached the USFIC Policy by failing and refusing to indemnify Frog for said damages. 61. As a result of its breach of the USFIC Policy, USFIC is also liable to Frog for, intpr alia, the following damages: -IS. A. the amount of legal fees and other costs paid by Frog in defending the ESCO litigation ("underlying defense costs"); B. the expenses incurred by Frog in the nature of time expended by employees in the investigation and defense of the ESCO litigation; C. consequential damages, including but not limited to lost profits, lost business opportunities, and costs related to the financing of the underlying defense costs and the settlement payment; D. attorney's fees and costs incurred in bringing this action; and E. interest as allowed by law. 62. Frog has demanded that USFIC indemnify it for the foregoing damages, but USFIC has failed and refused to do so in breach of the USFIC Policy. WHEREFORE, Plaintiff The Frog, Switch & Manufacturing Co., Inc. demands judgment in its favor and against Defendant United States Fire Insurance Company in an amount in excess of $25,000, the amount requiring referral to arbitration by local rule of Court, plus interest and costs. -16- ~-U BAD FAITH UNUER 42 PA. C.S.A. ~8371 63. Plaintiff incorporates herein by reference the averments of paragraphs 1 - 62 hereof as if set forth 'in their entirety. 64. USFIC, as insurer, has acted in bad faith with respect to Frog, its insured, in denying coverage for and in refusing to defend and indemnify Frog under the USFIC Policy against the claims asserted by ESCO in the ESCO litigation. 65. USFIC did not have a reasonable basis for denying coverage for and refusing to defend and indemnify Frog against the claims of ESCO asserted in the ESCO litigation. 66. USFIC did not act with the utmost good faith toward Frog nor did it accord Frog's interest the same consideration it gave its own interest in denying coverage and in refusing to defend and indemnify Frog under the USFIC POlicy. 67. USFIC's wrongful denial of coverage and refusal to defend and indemnify Frog against the claims asserted by ESCO in the ESCO litigation constitute bad faith under 42 Pa. C.S.A. s8371 . 68. As a result of USFIC's bad faith actions, USFIC is liable to Frog for punitive damages, court costs and attorney's fees, and interest, all as provided in 42 Pa. C.S.A. s8371. '17- pedido en la peticion de demanda. USTED PUEDA PERDER DINERO 0 PROPIEDADES 0 OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE, SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, .VAYA EN PERSONA 0 LLAME POR TELEFONA A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 Date: t/ /1. -98 I R. S EYNOLDS, PA rney I.D. No. REYNOLDS & HAVAS A Professional Corporation 101 Pine Street Post Office Box 932 Harrisburg, Pennsylvania 17108-0932 (717) 236 - 3200 Attorney for Plaintiff THE FROG, SWITCH & MANUFACTURING CO., INC. - '- . - -= - < .= '- . - -- - ,= .= = -= . One Towsr Square, Hartford, Connecticut 0618:1 THIS POLICY OOES NOT COVER POllUTION SEE ENOORSEMENr CO 21 49 II 88. AGENT TheTravelersj' FOU,..,RV COMMON POLICY DECLARATIONS ISSUE DATE: 09/19/94 POLICY NUMBER: E~-660-107~4308:rIL~~4 -..,- - ,.,... f-...... """"'::'H'& MC~5~h.,-I'I. : MAR" RECEIVED \ \1tf13199A I . 'L.'" ~- O~r ....~ING Ol~... ............;.. g.... From 09/01/94 to 09/01/95 12:01 A.M. St8ndard T ...- your 'W nensw ~ D I. NAMED INSURED AND MAILING FROG, SWITCH AND MANUFACTURING COMPANY P.O.BOX 70 CARLISLE, PA 17013 ADDRESS: 2. POLICY PERIOD: 3. LOCATIONS PremIses Loc. No. Bldg. No. Occupancy SEE IL TO 03 07 B6 Address ill OCT I 7 1994 WARSH & /dclfNHAH PHILADELPHIA 4. COVERAGE PARTS FORMING PART OF THIS POLICY AND INSURING COMPANIES: COMMERCIAL PROPERTY COV PART DECLARATIONS CP TO 01 07 B6 TIL COMMERCIAL GENERAL LIABILITY COV PART OECLARATIONS CG TO 01 12 88 TIL COMMERCIAL CRIME COV PART DECLARATIONS CR TO 01 07 86 TIL COMMERCIAL INLAND MARINE COV PART DECLARATIONS CM TO 01 07 86 TIL 5. NUMBERS OF INTERLINE FORMS AND ENDORSEMENTS FORMING A PART OF THIS POLICY: SEE IL TB 01 09 94 Each of thEfr15lTcn:nl1gis-a.-sepapa..t-e-PQ.l.; ,..v Containingpts complete provis1ons: I Polley No. insur.ng Company , I J ' I , , I t:.~ - .r:' ~ ~ i ~ ~ I .", Co = ,;, ~ I I 6. SUPPLEMENTAL POLICIES: Pol icy 'AMS BINDER BILLED d 7. PREMIUM SUMMARY: Prov1s1onal Premium Due at InceptIon Due at Each 151269 - -' E. ::: ... ..' .:: ~:; ~ '- r. , :: :J --= ,.... a.- 'S 130,356 S S NAME AND ADDRESS OF AGENT DR BROKER: MARSH-MCLENNAN INC-NY (57310) 1166 AVE OF THE AMERICAS NEW YORK. NY 10036 - .. - .. a .';: :- C :: Co :: ;3 ~ '-= ..... ."..:: c:.: :::: :.(l~ -:- - ~ ~ :: ..... -=: - - 5=- I L TO 02 11 8S PAGE 1 OF 1 . - = - .. :1 ~ 'n I '_ I... DFFz'CE : 'NEW YORK t!;, .' '.f. ~: ~ ~ '"'C.: ...:'~. ,. ~f>t " EXHIBIT A .< i~ . . ..... COMMON POLICY CONDITIONS All Coverage Parts Included In this policy are subject to the lollowlng condhlons: '- - - = = >- - - . ~= -- - ~ 0= - - '- A. CANCELLATION 1. The first Named Insured shown In the Decla. rations may cancel this policy by mailing or delivering to us advance written notice 01 cancellation. 2. We may caneel this policy or any Coveraga Part by mailing or delivering to tha IIrst Named Insured written nollce of cancellation at least: a. 10 days before the effective date of can. cellation n we cancel for nonpayment of premium; or b. 30 days before the effective date 01 can. cellation n w~. eancel lor any other reason. 3, We will mall or deliver our nollce to the first Named Insured's last mailing address known to us. 4. Notice 01 cancellallon will state the effective date of cancellallon, II the policy Is can. celled, that date will become the end of the policy period, If a COlIerage Pan Is can. celled, that date will become the end 01 the policy period as respects that Coverage Pan only. 5. If this policy or any Coverage Pan is can. celled, we will send the first Named Insured any premium refund due. If we cancel, the refund will be pro rata. If the first Named Insured cancels. the refund may be less than pro rata, The cancellation will be effective even ff we have not made or offered a refund, 6. If notice is mailed, proof of mailing Will be sufficient proof of notice. B. CHANGES This policy contains all the agreements between you and us concerning the Insurance afforded. The first Named Insured shown in the Declar. ations is authorized to make changes in the terms of this policy with our consent. This pol. icy's terms can be amended or waived only by endorsement issued by us as pan of this policy, C. EXAMINATION OF YOUR BOOKS AND RE. CORDS We may examine and audit your books and records as they relate to this policy at any time during the policy period and up to three years aftelVv'ard. D. INSPECTIONS AND SURVEYS We have the right but are not obligated to: 1. Make inspectIons and surveys at any lime: IL TO 01 1189 2. Give you reports on the condhlons we find; and 3. Recommend changes. Any Inspections, surveys, reports or recom. mendations relate only to Insurabilhy and the premiums to be charged. We do not make safety Inspections. We do not undertake to perform the duty of any person or organiza- tion to provide for the health or safety of workers or the public. And we do not warrant that condhlons: 1. Are safe or healthful; or 2. Comply whh laws, regulations, codes or standards. This condhlon applies not only to us, but also to any rating, advisory, rate service or similar organization which makes insurance inspections, surveys, repons or recommen. dations, E. PREMIUMS 1. The first Named Insured shown in the Decla. ralions: a. Is responsible for the payment of all premiums; and b. Will be the payee lor any return pre. miums we pay. 2. We compute all premiums for this policy in accordance whh our rules. rates, rating plans. premiums and minimum premiums. The premium shown in the Declarations was computed based on rates and rules in effect at the lime the policy was issued, On each renewal COntinuation or anniversary of the effective date of this policy, we will compute the premium in accordance with our rates and rules then in effect. F, TRANSFER OF YOUR RIGHTS AND DUTIES UNDER THIS POLICY Your rights and duties under this policy may not be transferred without our wrinen consent except in the case of death of an individual named insured. lf you die, your rights and duties will be transferred to your legal representative but only while acting within the scope of duties as your legal representative, Until your legal represen. tative is appointed. anyone having proper temporary custody of your property will have rights and duties but only with respect to that property. Includes COPYrighted malerlal of Insurance Servlces Office. ""th its permission. COPYrlgnt. Insurance Services Office, 1989 Page 1 01 2 "', GENERAL LIABILITY }.l ~ tl ~" 4 ~ }\ IV. I ~ or.!' 1'1 ~ :f.t ~ ~. '- '- - '- -= . - - < == .= - - -- - - -' -- - -- -- - '- ,.." ,", " .~.; ';~:: H :~~~ :<} H' ~':! ."'- .Y" :<, ::r: ~~. ~~ ;~ ....... ?J .::~; iJ :k~ ~ ...... TheTravelersJ , , . TABLE OF CONTENTS COMMERCIAL GENERAL LIABILITY COVERAGE FORM CG 00 01 11 BB SECTION I..COVERAGES Coverage A.. Bodily Injury and Propeny Damage Liability Beginning on Page Insuring Agreement..........................,...............,_..,.... 1 Excl us Ions ....,......,..........,.............,...........,......................... 1 Coverage B.. Personal and Advenlslng Injury Llabll~y Insuring Agreement.................................................. 4 Excl us Ions ...._........'........................,....................,....... 4 Coverage C.. Medical Payments Supplementary Payments Insuring Agreement,........................................,.....,..... 4 Excl usions ........,...................,...........,...........................,...5 5 . - SECTION II..WHO IS AN INSURED...........................,..............................,............................,.........,............................5 SECTION III..LIMITS OF INSURANCE .........................,..............................,..,..............,................,...,.......,................... 6 SECTION IVuCOMMERCIAL GENERAL LIABILITY CONDITIONS ...................,.....,..........,........................ 7 c ..- Bankruptcy ..................,................................,...........................................,................................,........................................... 7 Duties in the !Ovent of Occurrence. Claim or Suit..,..............................,...........,..........................,............... 7 Legal Action Aga inst Us .................,.......'.....,.........,..,....................,....'.............,..............,................,............................ 7 Other I nsurance .'...................,....................,.......,.,.....,.._,.,.,...'..........,......,...........,......"........,...."....,..........,..,.....,..., 7 Premium Audit.........,.........,.....,...................................,.........,....................................,......,...........,..............,.......................8 Representations ..................,..,.....,..............................,.,...............,...,..........,..............,...........................,..,............... 8 Separatlo n of I nsureds ............,..,........,........................................................,........,.................................................'.. 8 Transfer of Rights of Recovery Against Others To Us .........................,....,..............,..,.........................8 When We Do Not Renew....,................................................,...............,.........,.......................................,................... 8 " -:= ,,- c=:= . SECTION V..DEFINITIONS 8 ..................................................................................................................................................... CG TO 34 07 91 , , Ono Tower Square, Hanford, ConnoclleUl 0618J Theuavelers'j I, ~: COMMERCIAL GENERAL LIABILITY COVERAGE PART DECLARATIONS Policy Number: Eu-GGr-i07u4308~TIL-94 , I' '.j " j I Declarations Period: From 09/01/94 tu u8/01/95 12:01 A.M. Standard Time at your mailing address shown In the Common Policy Declarations. The Commercial General Liability Coverage Part conSists of t~ese Declarations and the Coverage Form shown below. [ 1. COVERAGE AND LIMITS OF INSURANCE: COMMERCI AL GENERAL LI ABI LITY COVERAGE FORM General Aggregate Limit (Other than Products'Completed Operations) LIMITS OF INSURANCE $ 2,000,000 $ 1,000,000 $ I ,000,000 $ 1,000,000 $ 50.000 $ 5.000 t fi I I iJ , , " Products-Completed Operations Aggregate Limit Personal & Advertising Injury LimIt Each Occurrence Limit Fire Damage Limit (anyone fire) Medical Expense LimIt (anyone person) ~ AUDIT PERIOD: ANNUAL .= 3. FORM OF BUSINESS: CORPORATION < := .- -= 4, NUMBERS OF FORMS, SCHEDULES AND ENDORSEMENTS FORMING PART OF THIS COVERAGE PART ARE ATTACHED AS A SEPARATE L!STING. ~ -- I~' :.1 i COMMERCIAL GENERAL LIABILITY COVERAGE IS SUBJECT TO A GENERAL AGGREGATE LIMIT l I , . -' COMMERCIAL GENERAL UABILITY COMMERCIAL GENERAL LIABILITY COVERAGE FORM Various provisions In this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what Is and Is not covered. Throughout this policy the words "you" and "your' refer to the Named Insured shown In the Declarations, and any other person or organization quamylng as a Named Insured under this polley. The words "we," "us'" and "our' refer to the company providing this Insurance. The word "Insured" means any person or organization qualifying as such under WHO IS AN INSURED (SEC- TION II). Other words and phrases that appear In quotation marks have special meaning. Refer to DEFINITIONS (SECTION V). SECTION I-COVERAGES COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY .= 1. Insuring Agreement. a. We will pay those sums that the Insured be. comes legally obligated to pay as damages because of "bodily Injury' or '''property dam. age" to which this Insurance applies. We will have the right and duty to defend any "suh" seeking those damages. We may at our dls. cretlon Investigate eny "occurrence" and set. tie any claim or "suh" that may result. But: (1) The amount we will pay for damages is IImhed as described In LIMITS OF IN- SURANCE (SECTION III); and (2) Our right and duty to defend end when we have used up the applicable limit of insurance in the payment of judgments or settlements under Coverages A or B or medical expenses under Coverage C, No other obligation or lIabilhy to pay sums or perform acts or services Is covered unless explichly provided for under SUPPLEMEN. TARY PAYMENTS-COVERAGES A AND B. b. This insurance applies to "bodily injury' and "property damage" only If: (1) The "bodily injury' or "property damage" is caused by an "occurrence" that takes place in the "coverage terrhory'; and (2) The "bodily Injury' or "property damage' occurs during the policy period. c Damages because of '''bodily injury' Include damages claimed by any person or organi. zatlon for care, loss of services or death reo suiting at any time from the "bodily injury." '- e=: -= : -- 2. exclusions. This Insurance does not apply to: a. "Bodily Injury' or "property damage" ex. pected or Intended from the standpoint of the Insured. This exclusion does not apply to "bodily injury' resulting from the use of rea. sonable force to protect persons or property b. "Bodily Injury' or "property damage" for which the Insured Is obligated to pay dam. ages by reason of the assumption ofllabllhy in a contract or agreement. This exclusion does not apply to liability for damages: (1) Assumed in a contract or agreement that Is an "Insured contract," provided the "bodily Injury' or '''property damage" oc. curs subsequent to the execution of the contract or agreement: or (2) That the insured would have in the ab. sence of the contract or agreement. c. "Bodily injury' or "property damage" for which any Insured may be held liable by rea. son of: (1) Causing or contributing to the intoxica. tion of any person; (2) The furnishirtg of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) Any statute, ordinance or regulation rela. ting to the sale, gilt, distribution or use of alcoholic beverages. This exclusion applies only If you are in the business of manufacturing distributing, sell. ing, serving or furnishing alcoholic beverag. es, d, Any obligation of the insured under a work. ers' compensation, disabilhy benefhs or un. CG 00 0 t 11 88 Cooyrlqht. Insurance Services OHlce, Inc '982 '988 C:;na 1 r"f 4. l '\: " t' ~ J i. I COMMERCIAL GENERAL LIABILITY employment compensation law or any sImilar law. e. "Bodily Injury" to: (1) An employee of the Insured arising out of and In the course of employment by the Insured: or (2) The spouse, child, parent, brother or sls. ter of that employee as a consequence of (1) above. This exclusIon applies: (1) Whetherthe Insured may be liable as an employer or In any other capacny; and (2) To any obligation to share damages wnh or repay somiione else who must pay damages because of the Injury. This exclusion does not apply to liability as. sumed by the Insured under an "Insured con. tract." f. (1) "Bodily Injury' or "property damage" arls. Ing out of the actual, alleged or threaten. ed discharge, dispersal, seepage, migra. tlon, release or escape of pollutants: (a) At or from any premises, sne or loca. tlon which is or was at any time own. ed or occupied by, or rented or loaned to, any Insured; (b) At or from any premIses, sne or loca. tlon which Is or was at any time used by or for any insured or others for the handling, storage, disposal, pro. cessing or treatment of waste: (c) Which are or were at any time trans. ported, handled, stored, treated, dis. posed of, or processed as waste by or for any Insured or any person or organization for whom you may be legally responsible; or (d) At or from any premises, site or loca. tlon on which any Insured or any contractors or subconlractors work. Ing directly or Indirectly on any in. sured's behalf are performing opera. tlons: (i) if the pollutants are brought on or to the premises, sne or loca. tion in connection with such operations by such Insured, con. tractor or subcontractor; or (ii) if the operations are to test for. mOnitor. clean up, remove, con. "age 2 01 tl taln, treat, detoxHy or neutralize, or In any way ruspond 10, oras- sess the effects of pollutants. SUbparagraphs (a) and (d)(Q do not apply to "bodDy Injury" or "property dam. age" arising out of heat, smoke or fumes from a hostDe fire, As used In this exclusion, a hostUe fire means one whIch becomes uncontroll- able or breaks out from where n was In. tended to be. (2) Any loss, cost or expense arisIng out of any: (a) Request, demand or order that any Insured or others test fOf, monnor, clean up, remove, contain, treat, de- toxHy or neutralize, or In any way reo spond to, or assess the effects of pollutants; or (b) ClaIm or suit by or on behalf of a governmental authorny for damages because of testIng for, monnorlng, cleanIng up, removing, containing, treating, detoxHylng or neutralizing, or In any way respondIng to, or as. sesslng the effects of pollutants. Pollutants means any solid, liquid, gaseous or thermal Irritant or contaminant, Including smoke, vapor, soot, fumes, acIds, alkalis, chemicals and waste. Waste Includes materials to be recycled, reconditioned or reclaimed. g. "Bodily injury' or "property damage" arising out of the ownership, maintenance. use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any Insured. Use Includes oper. atlon and "loading or unloading." This exclusion does not apply to: (1) A watercraft while ashore on premises you own or rent; (2) A watercraft.you do not own that is: (a)..Les~ .han 26 feet long; and (b) l~ot being usee 10 carry lJersons or property for a charge; (3) Parking an "auto" on, or on the ways next to, premises you own or rent. pro. vided the "auto" is not owned by or rent. ed or loaned to you or the Insured: Copyright. Insurance Services OHice. Inc.. 1982, 1988 CG 0001 11 aa '- -- , : .- - : -= w (4) Llabnlty assumed under any "Insured contract" for the ownership, maintenance or use of aircraft or watorcraft; or (5) '''Bodily Injury" or "property damage" arl. sing oUl of the operation 01 any 01 the equipment listed In paragraph 1.(2) or 1.(3) of the definition 01 "'mobllo equip. ment" (Section V.B.). h. "Bodily Injury" or "property damago" arising OUl of: (1) The transportation of "mobile equipment" by an "aUlo" owned or operated by or rented or loaned to any Insured; or (2) The use of ~moblle equipment" IQ, or while In practlee or prsparatlon lor, a prearranged racing, speed or demolition contest or In any stunting activity. i. "Bodily Injury' or "property damage" due 10 war, whether or not declared, or any act or condition Incident to war. War Includes civil war. Insurrection, rebellion or revolUllon, This exclusion applies only to liability assumed under a contract or agreement. j. "Property damage" to: (1) Property you own, rent, or occupy; (2) Premises you sell, give away or aban. don, II the "property damage" arises out of any part of those premises: (3) Property loaned to you: (4) Personal property In the care, custody or control 01 the insured: (5) That particular part 01 real property on which you or any contractors or subcon. tractors working directly or indirectly on your behalf are performing operations. if the "property damage" arises out ot those operations; or (6) That particular part of any property that must be restored. repaired or replaced because "your work" was incorrectly per. formed on It. Paragraph (2) of this exclusion does not apply if the premises are "your work' and were never Occupied, rented or held for rent, al by you. Paragraphs (3). (4), (5) and (6) of this ex. :Iusion do not apply to liability assumed un. der a sidetrack agreement. C G 00 0 1 1 1 ee COMMERCIAL GENERAL LIABILITY Paragraph (6) of this exclusion does not apply to 'property demago' Included In tho "products.completed operallons hazard." k. "Property demega" to "your product" arising oUl 01 It or any part 01 It. I. "Property dam ago' to "your work' arising oUl 01 It or any part of It and Included In the "products-compleled oporatlons hazard," This exclusion does not apply II the damaged work or tho work OUl of which tho damage arises was performed on your bohalf by a subcontractor. m. 'Property damago" to "Impaired property' or property that has not been physically Injured arising OUl 01: (1) A defect, deficiency, Inadequacy or dangerous condition In "your product" or your work": or (2) A delay or failure by you or anyone ac. tlng on your behalf to perform a contract or agreement In accordance with Its terms. This exclusion does not apply to the loss 01 use of other property arising oUl of sudden and accidental physical Injury to "your prod. uct" or "your work' after It has been pUl to Its Intended use. n. Damages claimed lor any loss, cost or ex. pense Incurred by you or others for the loss 01 use. withdrawal, recall, Inspection, repair. replacement, adjustment, removal or dispo. salof: (1) "Your product"'; (2) "Your work'; or (3) "Impaired property'; if such product, work, or property Is with. drawn or recuiled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition In It. Exclusions c. through n, do not apply to damage by lire to premises rented to you. A separate limit of insurance applies to this coverage as described in LIMITS OF INSURANCE (SECTION III). Copyright, Insurance Services Office. Inc.. 1982, 1988 Page 3 of 11 COMMERCIAL GENERAL LIABILITY COVERAGE B. PERSONAL AND ADVERT/SING INJURY LIABILITY I. Insuring Agreement. a. We will pay those sums thaI the Insured be. eomes legally obligated to pay as damages because of "personal Injury" or "advertising Injury" to which this coverage part applies. We will have the right and dUly to defend any "su~' seeking those damages. We may at our discretion Investigate any "occurrence" or of. fense and senJe any claim or "su~" thaI may result. BUI: (1) The amounl we will pay for damages Is IIm~ed as described In LIMITS OF INSURANCE (SECTION III); and ' (2) Our right and dUly to defend end when we have used up the applicable IIm~ of Insurance In the payment of judgments or senlements under Coverage A or 8 or medical expenses under Coverage C. No other obligation or lIabll~y to pay sums or perform acts or services Is covered unless expllc~ly provided for under SUPPLEMEN. TARY PAYMENTS-COVERAGES A AND B. b. This Insurance applies to: (1) "Personal Injury' caused by an offense arising OUl of your business, excluding advertising, publishing, broadeasting or telecasting done by or for you: (2) "Advertising Injury' caused by an offense committed In the course of advertising your goods, products or services: but only if the offense was committed In the "coverage terr~ory' during the policy period. 2. ExclusiDns. This insurancll does not apply to: a. "Personal Injury' or "advertising Injury': (1) Arising OUl of oral or wrinen publication of material, if done by or at the direction of the Insured with knowledge of ~s fal. s~y: (2) Arising OUl of oral or wrinen publication of material whose first publication took place before the beginning of the policy period; (3) Arising Out of the wiilful violation of a penal statUle or ordinance comm,ned by or with the consenl of the insured; or Page 4 of 11 (4) For which the Insured has asaumed liability In a contract or agreement. This exclusion does not apply to liability for damages that the Insured would have In the absenee of the contract or agree. ment. b, "Advertising Injury" arising oUl of: (1) Breach of contract. other than misappro- priation of advertising Ideas under an Im- plied contract; (2) The failure of goods, products or servic- es to conform with advertised quality or performance; (3) The wrong description of the price of goods. products or services; or (4) An offense eommltted by an Insured whose business Is advertising, broad. casting, publishing or telecasting. COVERAGE C. MEDICAL PAYMENTS 1. Insuring Agreement. a. We will pay medIcal expenses as described below for "bodily Injury' caused by an accl. dent: (1) On premises you own or rent; (2) On ways next to premises you own or rent; or (3) Because of your operations: provided that: (1) The accident takes place in the "cover. age terrrtory' and during the policy period; (2) The expenses are incurred and reported to us w~hln one year of the date of the accident; and (3) The injured person submits to examina. lion, al our expense, by physicians of our choice as often as we reasonably reo quire. b. We wiil make these payments regardless of tault. These payments will not exceed the ap- plicable IIm~ of insurance, We will pay reasonable expenses for: (1) First aid at the time of an accident: (2) Necessary medical, surgical, x.ray and dental services, Including prosthetic de. vices: and (3) Necessary ambulance. hosp~al, profes. sional nursing and funeral services, Copyright. Insurance Services OHice. Inc,. 1982. 1988 CGOOOl1188 ,- 2. Exclusions. We will not pay expenses for "bodily Infury': a. To any Insured, b. To a person hired to do work for or on behalf of any Insured or a tenant of any Insured. c. To a person Infured on that part of premises you own or rent that the person normally occupies. d. To a person, whether or not an employee of any insured, n benefits for the "bodlly Infury' are payable or must be provided under a workers' compensation or disability benems law or a similar law. e. To a person in/ured"whlle taking part iri ath. lelics. I. Included whhln the "products.completed op' eratlons hazard." g. :xcluded under Coverage A. h. Due 10 war. whether or not declared. or any aCI or condition incident to war. War in. cludes civil war Insurrection, rebellion or revolution. SUPPLEMENTARY PAYMENTS-COVERAGES A AND B We will pay with respect to any claim or "suit" we defend: I. All expenses we incur. 2. Uo to 5250 for cost of bail bonds required be. cause of accidents or traffic law violations arising out 01 the use 01 any vehicle to which the Bodily Injury Liab,lity Coverage applies, We do not have to furnish these bonds, 3, The CCSl of bonds to release attachments, but only lor oond amounls within the applicable limit of insurance. We do not have to furnish these oonds. 4. All reasonable expenses incurred by the insured at our request to assist us In the Investigation or defense of the claim or "suit," Including actual loss 01 earnings up to S100 a day because of time off from work, 5. All costs taxed against the insured in the "suit." 6. Prejudgment interest awarded against the in. sureo on that pan of the judgment we pay. If we make an offer 10 pay the applicable limit of in. surance. we woll not pay any prejudgment inter. est based on that period of time after the offer, ; -= .- -- C::; 0001 1188 COMMERCIAL GENERAL UABILITY 7. All Interest on the full emount of any Judgment that accrues after entry of the Judgment and before we have paid, offered to pay, or deposited in court the part of theludgment that is within the applicable limit of Insurance. These payments will not reduce the limits of In. surance. SECTION II-WHO IS AN INSURED 1. If you are designated In the Declarations as: a. An Individual, you and your spouse are In- sureds, but only with respect to the conduct of a business of which you are the sole owner. b. A pannershlp or Joint venture, you are an Insured. Your members, your partners, and their spouses are also Insureds, but only with respect to the conduct of your business. c. An organization other than a partnership or joint venture, you are an Insured. Your ex- ecutive officers and dIrectors are insureds, but only with respect to theIr duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. 2. Each of the following is also an Insured: a. Your employees, other than your executive officers, but only for acts withIn the scope of their employment by you. However, no employee is an Insured for: (1) "Bodily injury' or "personal injury' to you or to a co.employee while in the course of his or her employment, or the spouse. child, parent, brother or sister of that co. employee as a consequence of such "bodily injury' or "personal Infury," or for any obligation to share damages with or repay someone else who must pay dam. ages because of the injury; or (2) "Bodily injury' or "personal Injury' arising out of his or her providing or failing to provide professional health care servic. es; or (3)'Propeny damage" to propeny owned or occupied by or rented or loaned to that employee, any of your other employees, or any of your panners or members (if you are a pannership or joint venture). b. Any person (other than your employee), or any organization while acting as your real es. tate manager, Cooyright, Insurance Services Office, Inc. 1982 , 9RR 0'::1"'0::"" .. , . COMMERCIAL GENERAL LIABILITY c. Any person or organization having proper temporary custody of your property ~ you die, but only: (1) W~h respect to lIabU~y arising out of the maintenance or use of that property; and (2) UntO your legal representative has been appointed. d. Your legal representative ~ you die, but only w~h respect to duties as such. That repre- sentative wOI have all your rights and duties under this Coverage Part. 3. W~h respect to .mobOe equipment" registered In your name under any motor vehicle registration law, any person Is an Illsured whUe driving such equipment along a public highway with your per- mission. Any other person or organization responsible for the conduct of such person Is also an Insured, but only with respect to liability arising out of the operation of the equipment, and only If no other Insurance of any kind Is available to that person or organization for this liability. However, no person or organization is an Insured with respect to: a. "Bodily Injury' to a co-employee of the per- son driving the equipment; or b. "Property damage" to property owned by, rented to, In the charge of or occupied by- you or the employer of any person who is an insured under this provision. 4. Any organization you newly acquire or form, other than a partnership or loint venture, and over which you maintain ownership or majority interest. will qualify as a Named Insured if there is no other similar Insurance available to that or. ganizatlon. However: a. Coverage under this provision is afforded only until the 90th day after you acquire or form the organization or the end of the policy period, whichever is earlier; b. Coverage A does not apply to "bodily injury' or "property damage" that occurred before you acquired or formed the organization; and c. Coverage B does not apply to "personal in. jury' or "advertising Injury' arising out of an offense committed before you acquired or formed the organization. No person or organization is an insured with respect to the conduct of any current or past partnership or Paoe 6 of 11 lolnt venture that Is not shown as a Named Insured In the Declarations. SECTION lII-LIMITS OF INSURANCE 1. The Limits of Insurance shown In the Declara. tlons and the rules below fix the most we wnJ pay regardless of the number of: a. Insureds: b. Claims made or .sultS" brought: or c. Persons or organizations making claims or bringing .sults.. 2. The General Aggregate Limit Is the most we wUI pay for the sum of: a. Medical expenses under Coverage C: b. Damages under Coverage A, except damag. es because of "bodily Injury' or "property damage" Included In the "products-complet- ed operations hazard"; and c. Damages under Coverage B. 3. The Products.Completed Operations Aggregate Limit Is the most we will pay under Coverage A for damages because of "bodily Injury" and "property damage" Included In the "products- completed operations hazard." 4. Subject to 2. above, the Personal and Advertising Injury Limit is the most we wnJ pay under Coverage B for the sum of all damages because of all "personal Injury' and all .'advertising injury' sustained by anyone person or organization. 5. Subject to 2. or 3. above. whichever applies, the Each Occurrence Limit is the most we will pay for the sum of: a. Damages under Coverage A; and b. Medical expenses under Coverage C because of all "bodily injury' and "property damage" arising out of anyone "occurrence:' 6. Subject to 5. above, the Fire Damage Limit is the most we will pay under Coverage A for damages because of "property damage" to premises rent. ed to you arising out of anyone fire. 7. Subject to 5. above, the Medical Expense Limit is the most we will pay under Coverage C for all medical expenses because of "bodily Injury' sus. tained by anyone person. The limits of this Coverage Part apply separately to each consecutive annual period and to any remain. ing period of less than 12 months, starting with the beginning of the policy period shown in the Declara. tlons, unless the policy period is extended alter is. (""~~Vri,.,ht In~llr~~"'o C'o...,l"'ne nUI,..n I...... '"0''' ....no ""r:nnno .1 '- . - "= ,,= - ,= - -- . , . - -= '= := suance lor an additIonal period 01 less than 12 months. In that case, tha additIonal period will be deemed part 01 the last preceding period lor pur. poses 01 determining the Limits 01 Insurance. SECTION IV-COMMERCIAL GENERAL LIABILITY CONDITIONS 1. Bankruptcy. Bankruptcy or Insolvency of the Insured or 01 the Insured's estate will not relieve us 01 our obllga. tions under this Coverage Part. 2. Duties In The Event 01 Occurrence, Claim Or Suit. a. You must see to It that we are notnled as soon as pracllcable 61 an "occurrence" or an offense which may result In a claim. To ths extent possible, notice should Include: (1) How, when and where the "occurrence" or offense took place; (2) The names and addresses of any Injured persons and witnesses; and (3) The nature and location of any Injury or damage arising out 01 the "occurrenr.e" or offense. b. If a claim Is made or "suit" Is brought against any Insured, you must: (1) Immediately record the specnlcs of the claim or "suit" and the date received; and (2) Notijy us as soon as praclicable. You must see to It that we receive wri11en nOllce of the claim or "suit" as soon as prac. ticable. c, You and any other involved insured must: (1) Immediately send us copies 01 any demands, nolices, summonses or legal papers received In conneclion with the claim or "suit"; (2) Authorize us to obtain records and other information; (3) Cooperate wilh us in the investigalion. settlement or defense of the claim or "surt"; and (4) Assist us, upon our request, In the en. forcement of any right against any per. son or organization which may be liable to Ihe insured because 01 Injury or dam. age to which this insurance may also apply. co 00 01 11 88 COMMERCIAL GENERAL LIABILITY d, No Insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or Incur any expense, othar than for first eld, without our consent. 3. Legal ActIon AgaInst Us. No person or organlzallon has a right under this Coveraga Part: a. To loin us as a party or otherwise bring us Into a "suir' aSking for damages Irom an In. sured; or b. To sue us on this Coverage Part unless all of Its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a finalludgmenl against an Insured obtaIned after an actual trial; but we will not be liable for damages that are not payable under the terms of this Coverage Part or that are In excess of the applicable limit of in. suranee. An agreed settlement means a settle. ment and release of liability signed by us, the Insured and the claimant or the claimant's legal represenlatlve. 4. Other Insurance. II other valid and collectible Insurance Is avail. able to the Insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows: a. Primary Insurance This Insurance Is primary except when b. below applies. If this insurance is primary, our obligations are not ~ffected unless any of the other insurance Is also primary. Then. we will share wilh all that olher insurance by the method described in c, below. b. Excess Insurance This insurance is excess over any of the Dther Insurance, whether primary, excess. contingent or on any other basis: (1) That Is Fire, Extended Coverage. Build. er's Risk, Installation Risk or similar cov. erage for "your work"; (2) ThaI Is Fire Insurance for premises rent. ed to you; or (3) II the loss arises out 01 the maintenance or use of aircraft, "autos" or watercraft to Ihe extenl not subject 10 Exclusion g, of Coverage A (Section I). When this Insurance is excess, we will have no duty under Coverage A or B to defend Cooynghl. Insurance Services Office. Inc" 1982. 1988 Page i of 11 \, . . COMMERCIAL GENERAL LIABILITY any claim or 'sul\" that any other Insurer has a duty to defend, If no other Insurer defends, we will undertake to do so, but we will be entnled to the Insured's rights against all those other Insurers. When this Insurance Is excess over other In- surance, we will pay only our share of the amount of the loss, n any, that exceeds the sum of: (t) The total amount that all such other In. surance would pay for the loss In the absence of this Insurance; and (2) The total of all deductible and self.ln. sured amounts under all that other In. surance. - . We will share the remaining loss, if any, with any other Insurance that Is not described in this Excess Insurance provision and was not bought specnlcally to apply In excess of the Limits of Insurance shown In the Declara. tfons of this Cover;lge Part. 'oo Method of Sharing If all of the other Insurance permits contribu. tfon by equal shares, we will follow this method also. Under this approach each in. surer contributes equal amounts until it has paid its applicable limit of Insurance or none of the loss remains, whichever comes first. If any of the other Insurance does not permit contribution by equal shares, we will con. tribute by limits. Under this method, each insurer's share Is based on the ratio of its applicable limit of Insurance to the total ap. pllcable limits of Insurance of all Insurers, 5. Premium Audit. a. We will compute all premiums for this Cover. age Part In accordance with our rules and rates, b. Premium shown In this Coverage Part as ad. vance premium Is a deposit premium only. At the close of each audit period we will com. pute the earned premium for that period, Audit premiums are due and payable on no. lice to the first Named Insured, If the sum of the advance and audit premiums paid for the policy term is greater than the earned pre. mium, we will return the excess to the first Named Insured. c. The first Named Insured must keep records of the information we need for premium com. Page 8 of 11 putatlon, and send us copies at such tfmes as we may request. 6. Representations. By acceptfng this policy, you agree: a. The statements In the Declaratfons are ac- curate and complete; b. Those statements are based upon repre- sentations you made to us; and c. We have Issued this policy In reliance upon your representations. 7. Separation Of Insureds. Except with respect to the Limits of Insurance, and any rights or duties specnlcally assigned In this Coverage Part to the first Named Insured, this Insurance applies: a. As n each Named Insured were the only Named Insured; and b. Separately to each Insured against whom claim Is made or "suit" Is brought. 8. Transfer Of Rights Of Recovery Against Others To Us. If the Insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The In. sured must do nothing after loss to Impair them. At our request, the insured will bring 'suit" or transfer those rights to us and help us emorce them. 9. When We Do Not Renew. If we decide not to renew this Coverage Part, we will mail or deliver to the first Named Insured shown in the Declarations written notice of the nonrenewal not less than 30 days before the ex. piratfon date. If notice is mailed, proof of mailing will be suffi. cient proof of notice, SECTION V-DEFINITIONS 1. "Advertising Injury' means Injury arising out of one or morl) of the following offenses: a. Oral or written. publlcatfon of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; b. Oral or wrinen publication of material that violates a person's right of privacy; c. Misappropriation of advertising ideas or style of doing business; or Copyright, Insurance Services Office, Incoo 1982, 1988 CG 0001 11 88 I ~, I', "I . .. . ....t .' J : d. Infringement of copyright, t~le or slogan. 2. "Auto" means a land motor vehicle, trailer or semitrailer designed for travel on public roads, Including any anachedmachlnery or equipment. But "auto" does not Include "mobile equipment." 3. "Bodily Injury" means bodily InJury, sickness or disease sustained by a person, Including death resulting from any of these at any time. 4. "Coverage terrftory' means: a. The Un~ed States of America (Including its terr~orles and possessions), Puano Rico and Canada: b. International waters or airspace, provided the Infury or damage does not occur In the course of travel or transportation 10 or from any place not Included In a. above; or c. All pans of the world II: (1) The Infury or damage arises out of: (a) Goods or products made or sold by you In the territory described In a. above; or (b) The activities of a person whose home Is In the territory described In a. above. but Is away for a short time on your business; and (2) The Insured's responsibll~y to pay damages Is determined In a "suit" on the merits, In the territory described In a. abovs or in a sen/ement we agree to. 5, "Impaired property' means tangible property. other than "your product" or "your work," that cannot be used or is less useful because: a. It Incorporates "your product" or "your work" that is known or thought to be defective, defi. cient. inadequate or dangerous: or b. You have failed 10 fulfill the terms of a con. tract or agreement: rl such property can be restored to use by: a, The repair, replacement, adjustment or removal of "your product" or "your work": or "= <=: == "- - -=: -= == b, Your fulfilling the terms cf the conlract or agreement. 6. 'Insured contract" means: a, A lease of prem'ses: b, A Sidetrack agreement: CG 000111 BB COMMERCIAL GENERAL LIABILITY c. Any easement or license agreement, except In connection w~h construction or demol~lon operations on or w~hln 50 feet ot a railroad; d. An obligation, as required by ordinance, to Indemnlly a munlclpal~y, except In connec- tion with work for a munlclpal~y; e. An elevator maintenance agreement; or I. That pan of any other contract or agreement penalnfng to your business (Including an In. demnlflcatlon of a munlclpaJ~y In connection with work performed for a munlclpaJ~y) under which you assume the ton IlabBlty of another pany to pay for 'bodily Injury" or "propany damage' to a third person or or- ganization. Ton liability means a liability that would be Imposed by law In the absence of any contract or agreement. An "Insured contracr' does not Include thaI part of any contract or agreement: a. That Indemnllles any person or organization for "bodily Injury' or "property damage" aris. ing out of construction or demolition opera. tlons, within 50 feet of any railroad propsrty and affecting any railroad bridge or trestle, tracks, road. beds, tunnel, underpass or crossing; b. That Indemnllies an architect, engineer or surveyor for Infury or damage arising out of: (1) Preparing, approving or failing 10 prepare or approve maps. drawings. opinions. reports, surveys. change or. ders, designs or specrlicalions: or (2) Giving directions or instructions, or fall. ing 10 give them. II that is the primary cause of the injury or damage; c. Under which the insured, II an architect, en. gineer or surveyor, assumes fiability for an inlury or damage arising out of the insured's rendering or failure to renoer professional services, including those listed in b, above and supervisory, inspeclion or engineering services: or d. That indemnrlies any person or organization for damage by fire to premises renteo or loaned to you, 7. 'Loading or unloading" means the handling cf property: Cooyright. Insurance Services OUice, Inc.. 19B2. 1988 Page 9 of 11 i I I \ , 'j i '. " I' , COMMERCIAL GENERAL LIABILITY a. After" Is moved from the place where it Is aceepted for movement Into or onto an aircraft, watercraft or "auto"; b. Whllo" Is In or on an aircraft, watercra" or "autO"; or c. While " Is being moved from an aircraft, watercraft or "auto" to tha place where n Is finally delivered; but "loading or Unloading" doas not Includs the movement of property by means of a mechanIcal device, other than a hand truck, that Is not at. tached to the aircraft, watercraft or "auto." 8. "Mobile equIpment" means any of the following types of land vehIcles. IncludIng any al\ac~ed machInery or equIpment: a. BUlldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; b. Vehicles maintained for use solely on or next to premises you own or rent; c. Vehicles that travel on crawler treads; d. Vehicles, whether self.propelled or not, main. talned primarily to provide mobility to per. manently moUnted: (1) Power cranes, shovels. loaders, diggers or drills; or (2) Road construction or resurfacing equip. ment such as graders, scrapers or roll. ers; e. Vehicles not described In a" b" c. or d, above that are not self.propelled and are maintained primarily to provide mobilny to permanently attached equipment of the fOl. lowing types: (1) Air compressors. pumps and generators, Including spraying, welding, building cleaning, geophysical exploration. light. ing and well servicing equipment; or (2) Cherry pickers and similar devices used to raise or lower workers; f. Vehicles not described in a.. b" c. or d. above maintained primarily for purposes other than the transportation of persons or cargo, However, self.propelled vehicles wnh the tol. lowing types of permanently attached equip. ment are not "mobile equipment"' but will be considered "autos": (1) Equipment designed primarily for: (a) Snow removal; (b) Road maintenance but not construc. tlon or surfacing; (c) Street claanlng; (2) Cherry pIckers and similar devIces mounted on automobile or truck chassIs and Used to raise or lower workers; and (3) Air compressors, pump and generators, Including spraying, welding, buildIng cleaning, geophysical exploration, fight- Ing and well servlelng equipment. 9. "Occurrence" means an dt'lldent, Including con. tlnuous or repeated expo.we to substantially the same general harmful cononlons. 10. "Personalln/ury' means Injury, other than "bodily Injury," arising out of one or more of the following offenses: a. False arrest, detention or Imprisonment; b. Malfclous prosecution; c. The wrongful eviction from, wrongful entry Into, or Invasion of the rIght of private oc. cupancy of a room, dwelling or premises that a person occupIes by or on behalf of hs owner, landlord or lessor; d. Oral or written publfcatlon of materiaJ that slanders or libels a person or organization or disparages a person's or organ/zatlon's goods, products or servIces; or e. Oral or written publfcatlon of material that violates a person's right of privacy. 11. a. "Products.completed operations hazard" in. cludes all "bodily injury' and "property damage" occurring away from premises you own or rent and arising out of "your product" or "your work" except: (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned. b. "Your work"' will be deemed completed at the earliest of the following times: (1) When all of the work called for in your contract has been completed, (2) When all of the work to be done at the sIte has been completed if your contract calls for work at more than one srte, (3) When that part of the work done at a job sile has been put to ns intended use by "age lOaf 11 COPYright, Insurance Services OHice, Inc.. 1982. 1988 CG 00 01 11 88 . " .= < := , -= -= 0_ . any person or organization other than another contractor or subcontractor workIng on the same projecl. Work thaI may need service, maintenance, correction, repair or replacement, but which Is otherwise complete, will be treated as completed. c. This hazard does not Include "bodily Injury' or "property damage" erlslng out of: (1) The transportation 01 property, unless the Injury or damage arises out 01 a con- dition In or on a vehicle created by the '1oadlng or unloading" 01 It: (2) The existence ot. tools, un Installed equip. ment or abandoned or unused materfals: (3) Products or operations lor which the classKlcatlon In this Coverage Part or in our manual 01 rules Includes products or completed operations. 12. "Property damage" means: a. Physical Injury to tangible property, Includ. Ing all resulting loss 01 use of that property. All such loss 01 use shall be deemed to occur atlhe time 01 the physical Injury that caused II: or b. Loss of use 01 tangible property that Is not physically Injured. All such loss shall be deemed to occur at the time 01 the "occur. rence" that caused II. tJ, "Suit" means a civil proceeding In which damage because of "bodily injury," "property damage," "personal Injury' or "advertising injury' 10 which Ihis insurance applies are alleged, "Sui!" in. c1udes: a. An arbitration proceeding in which such da. mages are claimed and to which you must submit or do submit with our consent: or CG 00 01 11 aa COMMERCIAL GENERAL LIABILITY b. Any other alternative dIspute resolution pro- ceeding In which such damages are claimed and to which you submit with our consent. 14. "Your producr means: a. Any goods or products, other than real prop- erty manufactured, sold, handled, dIstributed or dIsposed 01 by: (1) You: (2) Others trading under your name; or (3) A person or organization whose busIness or assets you have acquired; and b. Containers (other than vehIcles), materials, parts or equipment lurnlshed In connection with sueh goods or products. "Your product" Includes: a. Warranties or representations made at any time with respect to the fitness, quality, dura- bility, performance or use 01 "your product"; and b. The providing of or lailure to provide warn. Ings or Instructions. "Your product" does not Include vending macho Ines or other property rented to or located for the use of others but not sold. 15. "Your work" means: a. Work or operations performed by you or on your behalf: and b. Materials, parts or equipment furnished in connection with such work or operations, "Your work" includes: a. Warranties or representations made at any time with respect to the fitness, quality, duro ability, performance or use of "your work": and b. The providing of or failure to provide warn. ings or instructions, Copyright. Insurance Services OHice. Inc.. 1982, 1988 Page 11 of 11 '- - - "= - >= - - "- :::= "- - "- - -= c= - "- - . , . I POLICY NUMBER EJ-660-1 07 J4308-TIL-94 COMMERCIAL GENERAL LIABILITY ISSUE DATE: 09- 19-94 '.... " \'-:i THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - LESSOR 'OF LEASED EQUIPMENT This endorsement modi flea insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART Name of Person or Organization: SCHEDULE PENN EOUIPMENT ASSOCIATION, INC. ROUTE 322, PO BOX 567 -- MILROY PA 17063 IIf no entry appears above. information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement) WHO IS AN INSURED (Section I/) is amended to include as an insured the personls) or organization(s) shown in the Schedule. but only with respect to their liability arising out of the maintenance. op- eration or use by you of equipment leased to you by such person(s) or organizationlsl. subject to the following additional exclusions: This insurance does not apply: 1. To any "occurrence" which takes place after the equipment lease expires: 2. To "bodily injury" or "property damage" arising out of the sole negligence of the person or or- ganization shown in the Schedule. CG 20 28 11 85 Copyright. Insurance ServIces Qffice. Inc.. 1984 Paoe 1 or 1 ...., , . COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. TOTAL POLLUTION EXCLUSION ENDORSEMENT This endorsement moonles Insurance provided under tho following: COMMERCIAL GENERAL LIABILITY COVERAGE PART Exclusion I. under COVERAGE A (Section I) Is replaced by the following: I. (1) "Bodily Injury' or 'propeny damage" which would not have occurred In whole or pan but lor the actual alleged or threatened dis- charge, dispersal, seepage, migration, release or escape of pollutants at any time. (2) Any loss, cost or expense arising out 01 any: (a) Request, demand or order that any Insured or others test lor, monitor, clean up, remove, contain, treat, deloxny or neutralize, or In any way respond to, or assess the eHects 01 pollutants; or (b) Claim or suit by or on behalf of a gOY. ernmental authority lor damages be. cause 01 testing lor, monitoring, cleaning up, removing, containing, treating, detoxnylng or neutralizing, or In any way responding to, or assessing the effects or pollutants. Pollutants means any solid, liquid, gasaous, or thermal Irritant cr contaminant Including smoke, vapor, soot, lumes, acid, alkalis, chemicals and waste. Waste Includes material to be recycled, reconditioned or reclaimed. CG214911ea Copyright. Insurance Services Office. Jnc.. 1988, 1992 Page 1 01 1 POLICY NUMBER: Eu-GGO-l07u430B-TIL-94 COMMERCIAL GENERAL LIABILITY ISSUE DATE: 09-19-94 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED-VENDORS BROAD FORM This endorsement modnles Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART A. SCHEDULE Name of Person or Organization (Vendor): ALL VENDORS v Your products: ON FILE WITH COMPANY / (If no entry appears above, Information required to complete this endorsement will be shown In the Declarations as applicable to this endorsement.) B. PROVISIONS WHO IS AN INSURED (Section II) is amended to Include as an Insured any person or organization (referred to below as ''Vendor') shown In the Schedule, but only w~h respect to "bodily Injury' or "property damage" arising out of "your products" shown In the Schedule which are distributed or sold in the regular course of the vendor's business subject to the following additional provisions: 1. The Insurance afforded the vendor does not apply to: a. "Bodily injury' or "property damage" for which the insured is obligated to pay damages by reason of the assumption of lIablllly In a contract or agreement. This exclusion does not apply to lIabi1~y for damages that the vendor would have In the absence of the contract Dr agree. ment: b. Any express warranty, or any distribution or sale for a purpose unauthorized by you; c. Any physical or chemical change In the prod uct made intentionally by the ven- dor; d. Repackaging, unless unpacked solely for the purpose of inspection, demonstra- tion, testing, or the subst~ution of parts under instructions from the manufac- turer, and then repackaged In the original container; e. Demonstration, Instailatlon, servicing or repair operations, except such opera. tlons performed at the vendor's premises in connection w~h the sale of the product: f. Products which. after distribution or sale by you, have been labeled or relabeled or used as a container, part or Ingredient of any other thing or substance by or for the vendor; g. The sole negligence of the vendor, 2. This insurancs does not apply to any insured person or organization, from whom you have acquired such products, or any ingredient. part or container, entering Into, accompany. ing or containing such products. Includes copyrighted material of Insurance Services Office, Inc" with its permission Copyright. Insurance Services Office. Inc" 1984 CG T3 30 1 t ss Page 1 of 1 '- : .= ,= - : " -== -= == - - -- - '== COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFUllY. AMENDMENT OF COVERAGE TERRITORY V' (Worldwide Coverage) This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART Paragraph 4.."Coverage Terrttory'-of Section V.. Deflnttlons Is emended by adding the following para- graph d.: - . d. Anywhere else In the world, sUbJect to the fol- lowing addttlonal provisions: (1) (a) The Other Insurance condttlon of Section IV-Commercial General Llablltty Condi- tions Is replaced by the following: This Insurance Is primary wtth respect any other lIablltty Insurance available to you if such other Insurance was pur- chased by and issued to you specifically to apply In excess of this Insurance. This Insurance Is excess over all other in- surance whether primary, excess, contino gent or on any other basis. When this Insurance is excess over other Insurance, we will pay only our share of the amount of the loss, If any, that ex- ceeds the sum of: (I) The total amount that all such other insurance would pay for the loss In the absence of this insurance: and (ii) The total of all deductible and sell insured amounts under all that In. surance. (b) Notwrthstandlng any other provisions of this endorsement or this policy, no coverage is provided for damages aris. ing out of: (i) The ownership, maintenance or use of any premises you acquire or con. trol outside the United States of America including rts terrrtories and possessions, Puerto Rico or Canada; or (ii) Operations outside the Unrted States of America including its terrrtories CG T4 93 11 aa and possessions, Puerto Rico or Canada. This provision applies only to premises or operations exposures which exist for more than 30 days and then only if you fall to report such premises or operations to us within 30 days of your acquisition of such premises or commencement of such operations. (2) If a "suit" on the merits for damages Is brought outside the United States of America Including its territories and possessions, Puerto Rico or Canada the following addi- tional provisions apply: (a) The Insuring Agreements of Coverages A and B are amended by replacing the words 'We will pay' with the words 'We will reimburse the insured for.' (b) Notwithstanding any other provision of this endorsement or of this policy, if claim Is made or "suit" is brought In another place other than in the Unrted States of America. we have the right but not the duty to investigate that claim and defend that suit. When we decide not to investigate, settle or defend, the Insured under our supervision must make or cause to be made a reasonable Inves. tigatlon and defense of that case. Sub. ject to our prior authorization, the In. sured will also make, to the extent pos. sible, any settlement or settlements as we and the insured agree upon. We will reimburse the Insured for the reasonable cost of that Investigation and defense. Within the applicable limits of the policy we will also reimburse the insured for the amounts of any authorized settlements. Page 1 of 1 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POUCY. PLEASE READ IT CAREFULLY. EXCLUSION - EMPLOYMENT-RELATED PRACTICES V This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PROVISIONS This Insurance does not apply to "bodily Injury" or "personal InJury' arIsing out of any: (1) Refusal to employ; (2) Termination of employment; (3) Coercion, demotion, evaluation, reas'slgn. me nt, discipline, defamation, harassment, humiliation, discrimination, or other employ. me nt-related practices, policies, acts or omissions; or (4) Consequential 'bodDy Injury' or 'personal In. Jury' as a result of (1) through (3) above. With respect 10 "bodily Injury," this exclusIon applies whether the Insured may be held liable as an em- ployer or In any other capacity and to any obligation to share damages with or to repay someone else. who must pay damages because of the Injury. " I' Ii I' ,/ i CG T5 120189 Page 1 of 1 I I ,I , GENERAL PURPOSE ENDORSEMENT GENERAL LIABILITY POLICY NUMBER: EJ-660-107J4308-TIL-94 AMENDMENT (BROAD FORM NAMED INSURED) PARAGRAPH 4. OF SECTION II - WHO IS AN INSURED IS REPLACED WITH THE FOLLOWING r ,/ 4. YOUR EXISTING SUBSIDIARIES AND ANY ORGANIZATION YOU NEWLY ACQUIRE OR FORM, OTHER THAN A PARTNERSHIP DR JOINT VENTURE, ANO OVER WHICH YOU MAINTAIN OWNERSHIP OR MAJORITY INTEREST, WILL BE DEEMED TO BE A NAMED INSURED IF THERE IS NO OTHER SIMILAR INSURANCE AVAILABLE TO THAT ORGANIZATION. HOWEVER: A. COVERAGE A OOES NOT APPLY TO "BOOILY INJURY" OR "PROPERTY DAMAGE" THAT OCCURRED BEFORE YOU ACOUIRED OR FORMED THE ORGANIZATION; AND B. COVERAGE B DOES NOT APPLY TO "PERSONAL INJURY" DR "ADVERTISING INJURY" ARISING OUT OF AN OFFENSE COMMITTED BEFORE YOU ACQUIRED OR FORMED THE ORGANIZATION. ~ '\ , I '- - - .- == j , .= - <= - = "- -== -= - - - . CG T8 01 09 94 PAGE 01 (ENO) '- " - - .. c= c::::: "- - "- - c::::: - '- , , . THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. / NUCLEAR ENERGY LIABILITY EXCLUSION ENDORSEMENT (Broad Form) This endorsement modifies Insurance provided under the following: BUSINESSOWNERS POLICY COMMERCIAL AUTO COVERAGE PART COMMERCIAL GENERAL LIABILITY COVERAGE PART FARM COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART L1aUOR LIABILITY COVERAGE PART POLLUTION LIABILITY COVERAGE PART OWNERS AND CONTRACTORS PROTECTIVE L1ABILl1Y COVERAGE PART RAILROAD PROTECTIVE LIABILITY COVERAGE PART SPECIAL PROTECTIVE AND HIGHWAY LIABILI1Y POLICY NEW YORK DEPARTMENT OF TRANSPORTATION 1. The insurance does not apply: A. Under any Liability Coverage. to .bodlly injury" or .property damage:" (1) With respect to which an "insured" under the policy is also an insured undsr a nuclear energy liability policy issued by Nuclear Energy Liability In- surance Association. Mutual Atomic Energy liability Underwriters. Nuclear Insurance Association of Canada or any of their successors. or would be an insured under any such policy but for its termination upon exhaustion of its limit of liability: or (2) Resulting from the "hazardous prop- erties" of "nuclear material" and with respect to which (a) any person or organization is required to maintain fi- nancial protection pursuant to the Atomic Energy Act of 1954. or any law amendatory thereof. or Ib) the "insured" is. or had this policy not been issued would be. entitled to indemnity from the United States of America. or any agency thereof, with any per- son or organization, B. Under any Medical Payments coverage. to expenses incurred with respect to "bodily injury. resulting from the -haz- ardous properties" of "nuclear material" and arising out of the operation of a "nuclear facility" by any person or or- ganization. c. Under any Liability Coverage. to "bodily injury" or "property damage" resulting from "hazardous properties" of "nuclear material." if: (1) The "nuclear material" la) is at any "nuclear facility" owned by or on behalf' of. an "insured" or (b) has been discharged or dispersed therefrom; 'L 00 21 11 85 Copyright. Insurance Services Qffice. Inc., 1983. 1984 (2) The "nuclear material" is contained in "spent fuel" or "waste" at any time pos- sessed. handled. used. processed. stored. transported or disposed of by or on behalf of an "insured;" or (3) The .bodily injury" or "property damage" arises out of the furnishing by an "in- sured" of services. materials. parts or equipment in connection with the planning. construction. maintenance. operation or uss of any "nuclear facility: but if such facility is located within the United States of America. its territories or possessions or Canada. this exclusion (31 applies only to .property damage" to such .nuclear facility" and any property thereat 2. As used in this endorsement "Hazardous properties" include radioactive, toxic or explosive properties; "Nuclear material" means .source material: "Special nuclear material" or "by-product material;" "Source material: "special nuclear material: and -by-product material" have the meanings given them in the Atomic Ensrgy Act of 1954 or in any law amendatory thereof: "Spent fuel" means any fuel element or fuel component. solid or liquid. which has been used or exposed to radiation in a .nuclear reactor;" "Waste- means any waste material (a) containing "by-product material" other than the tailings or wastes produced by the extraction or concen- tration of uranium or thorium from any ore processed primarily for Its "source material" content. and Ib) resulting from the operation by any person or organization of any "nuclear facllity" inlcuded under the first two paragraphs of the definition of "nuclear facility'- Page 1 of 2 o "Nuclear facility" means: lal Any 'nuclear reactor;. (bl Any equipment or device designed or ussd for 111 separating the Isotopes of uranium or plutonium. 121 processing or utilizing "spent fuel; or (3) handling. processing or packaging 'waste;" Ie) Any equipment or device used for the processing. fabricating or alloying of 'special nuclear material" if at any time the total amount of such material In the custody of the "insured" at the premises where such equipment or device is lo- cated consists of~ more than 25 grams of plutonium or uranium 233 or any Page 2 of 2 combination thereof, or more than 250 grams of uranium 235; Cd) Any structure. basin. excavation. premises or place prepared or used for the stor- age or disposal of "waste;" and Includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations; "Nuclear reactor" means any apparatus designed or used to sustain nuclear fission in a self- supporting chain reaction or to contain a critical mass of fissionable material; . .Property damage" Includes all forms of radio- active contamination of property. Copyright. Insurance Services Qffice, Inc" 1983, 1984 IL no 21 11 ~'" l' ',i , ~ I, " , )", I ,..., , . . ~ Crum&Forster 'U 'Insurance TYPE OF POLICY (AI Automobile Liability Policy Type and Symbol Bus. Auto Truckers (B) Garage Liability Symbol (C) Commercial General Liability Comprehensive General Liability (D) Liquor Liability (E) Standard Workers Compensation and Employers Liability SCHEDULE A - SCHEDULE OF UNDERLYING INSURANCE PAGE 2 INSURER! APPLICABLE LIMITS POLICY NO. Bodily Injury and Property Damage Combined Single Limit Each Accident Bodily Injury and Property Damage Combined Single Limit Each Accident "Other Than Auto" Aggregate Each Occurrence Limit General Aggregate Limit nPer Location 0 Per Project PrOducts/Completed Operations Aggregate Limit Polley Aggregate Limit Personal & Advertising Injury Limit Fire Damage Limit - anyone fire Bodily Injury and Property Damage Combined Single Limit Each Occurrence Aggregate when applicable Each Common Cause Aggregate Coverage B - Employers Liability Bodily Injury By Accident $lOO,OOO Each Accident Bodily I njury By Disease $500,000 Policy Limit Bodily Injury By Disease $lOO,OOO Each Employee lIP.leP-1"'1 (l"lUTV,l... (I..ic."") rOt) q/119'/--~5' (-' 1', POLICY PERIOD FI REMANS FUND TBA 9-l-94/95 (OTHER STATES) J ""'n:' t=o,v'l C,rlz) ~./q?7,;1-~ vi I IF... -l'::;- I . . ,.. Crum& Fors tel . r:r Insurance SCHEDULE A. SCHEDULE OF UNDERLYING INSURANCE PAGE 1 INSURER/ TYPE OF POLICY APPLICABLE LIMITS POLICY NO. (AI Automobile Lieblllty Polley Type and Symbol X Bus. Auto 1 Truckers (B) Garage Liability Symbol (C) Commercial General Liability Comprehensive General liability (D) Liquor liability (El Standard Workers Compensation and Employers liability POLICY . PERIOD Bodily Injury and Property Damage Combined Single limit $1,000,000 Each Accident TRAVELERS TBA Go:;' ~C.AP- "H'vl( , "III . "ilL..- 9-1-94/95 Bodily Injury and Property Damage Combined Single limit Each Aceldent "Other Than Auto" Aggregate $l , 000 , 000 Each Occurrence Limit $2,000,000 General Aggregate limit nPer Location 0 Per Project $l, 000,000 PrOductS/Completed Operations Aggregate limit N/A Policy Aggregate limit $l , 000 , 000 Personal & Advertising Injury limit $ 50 , 000 Fire Damage limit - anyone fire Bodily Injury and Property Damage Combined Single limit TRAVELERS TBA ~.:r-vc...o- :0'1 .::r-'t.38 9-l-94/95 Each Occurrence Aggregate when applicable Each Common Cause Aggregate Coverage B - Employers liability Bodily Injury By Accident $l, 000,000 Each Accident Bodily Injury By Disease $l, 000,000 Policy Limit Bodily Injury By Disease $l, 000,000 Eaeh Employee GENERAL REINSURANCE TBA )C.-I"O'1~ C 9-1-94/95 (PA) (F)FOREIGN LIABILITY LIMIT $l,OOO,OOO TRAVELERS TBA E:s-- (..l.,oO-IO-''S '-13:;> 9-l-94/95 f , ~ Crum&Forster . cJ' .Insurance THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY, DEFENDER AMENDATORY ENDORSEMENT /'" I. Insuring Agreement I., Coverage, Is amended by deleling Paragraph (1) and replacing It with the following: I. COVERAGE (1) We will pay on behalf of the 'Insured' those sums in excess of the 'Retained Limit' which the 'Insured', by reason of liability Imposed by law, or assumed by the 'Insured' under Contract prior to the 'Occurrence', shall become legally obligated to pay as damages for: (a) 'Bodily Injury' or 'Property Damage' occurring during the Policy Period staled In lIem 2 of the Declaralions ('Policy Period'} and caused by an 'Occurrence'; (b) 'Personal Injury' caused by an offense com mined during the 'Policy Period'; or (c) 'Advenlsing Injury' caused by an act commined during the 'Policy Period'. II. Condition M., Maintenance of Underlying Insurance, is amended by deleting Paragraph (3) and replacing it with the lollowing: (3) thai the limits of liability as warranted by the 'Underlying Insurance' will not change, except for reduction or exhaustion in the aggregate or Occurrence limits due to payments for: (a) 'BOdily Injury' or 'Property Damage' occurring during the 'Policy Period' and caused by an .Occurrence'; (b) 'Personal Injury' caused by an oHense committed during the 'Policy Period'; or (c) 'Advenising Injury' caused by an act committed during the 'Policy Period'. III. Definition I. is amended by deleling from Paragraph (3), Subparagraph (a). the following language: '(as delined in Subparagraph (4), below).' This endorsement is a part of your policy and takes eHect on the eHective date of your policy, unless another effective date is shown below. Complete only when this endorsement is not prepared with the policy or is not to be eHective with the policy. POlicy # Effective on and after ,19 12:01 a,m, standard time. , I I i1 f. I~ . , i I i I i ,I f.... r. !.;,,; , Issued to Countersigned by AUlhorized Aepresemalive FM 1010.12';019.90) / , . ~ Crum&Forster , if ,Insurance THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. BROAD KNOWLEDGE/NOTICE OF OCCURRENCE V" The following Is added to Conditions Part E., Duties In the Event or 'Occurrence', 'Claim', or 'Sun': (5) Knowledge 01 'Occurrence' by an agent, servant or employee 01 an 'Insured' does not Imply knowledge by you unless you have received notice Irom the agent, servant or employee. (6) Failure by an agent, servant or employee 01 an 'Insured' (other than an officer) to notify us 01 an 'Occurrence' which may result In a 'Claim' or 'Suit' under this policy will not jeopardize your coverage. i .1 II " 1 i ,t " ;.: \, : 'I " rl: , , j .~ Crum&Forster . r.r, Insurance i\' i" I , THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY, Ii. i \,' , J I' 1 I ! I i I' , t l EXCLUSION OF DAMAGE TO REAL OR PERSONAL PROPERTY / This policy does not apply to 'Property Damage' to: 1. Real property leased to, rented 10, occupied or managed by the 'Insured', or ~ 'Personal Property'ln the care, custody or control 01 the 'Insured', or over which the 'Insured' Is, lor any purpose, exercising physical control. 'Personal Property' means all propeny other than real property. r, I! , I, I ! This endorsement is a pan of your policy and takes eHect on the eHective dale of your policy, unless another effective date is shown below. \.; , , I ' , i I I I I, ! Complete only when this endorsement is not prepared with the policy Dr is not to be effective with the policy. Policy # Effective on and after ,19 12:01 a.m. standard time. Issued to Countersigned by Authorized Represemaltve . ,. Crum&Forster . r:r ,Insurance I , . POLICY NUMBER: 553 016945 7 THE FROG, SWITCH, AND MANUFACTURING COMPANY THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. ABSOLUTE ASBESTOS EXCLUSION / ';1 j I I 1. This policy does not apply to 'Bodily Injury', 'Property Damage', 'Personal Injury', or 'Advertising Injury' In any way or to any extent arising out of or Involving asbestos, asbestos fibers, or any product conlalning asbestos or asbestos fibers. 2. This policy does not apply to 'Economic Loss','Diminutlon of Property','Abatement Costs', or any other loss, cost, or expense Including 'Equitable Relief', In any way or to any extent arising out of or Involving asbestos, asbestos fibers or any product containing asbestos, or asbestos fibers. 3. This policy provides no coverage for any fees; costs, or expenses of any nature whatsoever in the Invesllgallon or defense of any 'Claim' or 'Suit' arising out of or Involving asbestos, asbestos fibers, or any product containing asbestos or asbestos fibers. For the purpose of this exclusion only, the following additional terms are defined: 'Abatement Costs' mean any actual or potential damages, costs, fees, or expenses, including the costs of Inspecllon, removal, or replacement. 'Dlmlnullon of PrDperty' means the diminishing or lessening in value of property. 'Economic Loss' means any actual or potential damages, costs, fees, expenses, or lost profits arising out of or Involving the manufacture or utilization of a good or product. 'Equitable Relief' means any remedy or relief, including restitution or injunctive relief, soughl in a court whh equitable powers. I \ 1 I .t Acceptance by Named Insured Tille , I , ~ Date This endorsement is a part of your policy and takes effect on the effective date of your policy, unless another effective date is shown below. Complete only when this endorsement is not prepared with the policy or is not to be effective with the policy. . ~: , '. " Policy # , Effective on and aher ,19 12:01 a,m. standard time. Issued to ,. " I.' Countersigned by AI rthf"l,i"'nrf Cnnrnrnnt':1tiHn" I . w . ~ Crum&Forster C/ Insurance THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY, FOREIGN EXPOSURE LIMITATION / Insuring Agreement VII. Territory is hereby deleted and replaced by the following: VII. Territory This policy applies to 'Occurrences' that happen within the United States, Its territories, possessions or Canada. With respect to 'Bodily InJUry', 'Propeny Damage', 'Advenlslng InJUry', or 'Personal Injury' for claims arising out of 'Occurrences' happening outside the United States, Its territories, possessions or Canada this policy Is limited to the coverage provided by the 'Underlying Insurance'. If coverage is not provided by 'Underlying Insurance', coverage is excluded from this policy. This endorsement is a pan of your policy and takes effect on the effective date of your policy, unless another elfective date is shown below. Complete only when this endorsement is not prepared with the policy or is not to be etfective with the policy. Policy # Effective on and alter .19 12:01 a.m. standard time. Issued to Countersigned by Authorized Aepresenlalive FM ID\'Q,11n 191891 I , . .' ~ Crum&Forster ci' Insurance '.' United States Fire Insurance Company A New York Corporation Home Office: New York, NY Licensed In all stales. The North River Insurance Company A New Jersey Corporation Home Office: Township of Morris, NJ Licensed In all slales. Crum & Forster Insurance Company A New Jersey Corporation Home Office: Township of Morris, NJ Licensed In New Jersey. Premier Insurance Company A Florida Corporation Home Office: Maitland, FL Lleensed In Florida and Georgia. Crum & Forster Underwriters Co. of Ohio An Ohio Corporation Home Office: Cincinnati, OH Licensed In Ohio. FM 101.0.1108 (2.94) Pago 1 0111 , . ,. Crum&Forster r.r Insurance THE DEFENDER COMMERCIAL UMBRELLA POLICY INTRODUCTION Various provisions In this polley restrict coverage. Read the entire policy carefully to determine rights, duties and what Is and Is not covered. Throughout this policy, the words "you", "your" and "Named Insured' refer to any person or organization Iden- tified as a "Named Insured' under INSURING AGREE- MENT III, the words 'Insured" or "Insureds" refer to any person or organization quallfyfng as an "Insured" under INSURING AGREEMENT III and the words "we", "us", "our" and "Company' refer to the COMPANY stated In Item 3 of the Declarations as providing this Insurance. Other words and phrases that appear In Initial capita!' let- ters and quotation marks have special meanings. Refer to INSURING AGREEMENT IV and other provisions of this polley for such meanings. In consideration of the payment of premium and In reliance upon the statements In the Declarations and sub. Ject to the limits of Insuranca set forth In INSURING AGREEMENT V (the "Limits of InsuraneJ"), the EX- CLUSIONS, the CONDITIONS and the other terms of this policy, the Company agrees with the "Named Insured" to provide coverage, as follows: INSURING AGREEMENTS I. COVERAGE (1) We will pay on behalf of the "Insured" those sums In excess of the "Retained Limit" which the "Insured" by reason of liability Imposed by law, or assumed by the "Insured" under contract prior to the "Occurrence", shall become legally obligated 10 pay as damages for: (a) "Bodily Injury'; (b) "Property Damage"; (c) "Personal Injury'; or (d) "Advenlslng Injury': arising out of an "Occurrence" during the POLICY PERIOD stated In Item 2 of the Declarations (the "Polley Period"). (2) The amount we pay for damages Is limited as described In INSURING AGREEMENT V. (3) If we are prevented by law or statute to "pay on behalf of the Insured", we will, In accordance with (1) & (2) above, Indemnify the "Insured" for those sums In excess of the "Retained Limit". II. DEFENSE SETTLEMENT (1) We shall have the right and duty to defend any "Claim" or "Suit" seeking damages covered by the terms and conditions of this policy when: la) the applicable limits of Insurance of the underly. ng Insurance policies set forth In Schedule A and to be maintained by you In aecordance with Condition M of this policy (the "Underlying Insurance"), plus the applicable limits of other Insurance have been exhausted by payments; or (b) Damages are sought for "Bodily Injury', "Proper- ty Damage", "Personal Injury', or "Advertising In- jury' which are not covered by "Underlying nsurance" or other Insuranee. (2) When we assume the defense of any "Claim" or "Suit", at our sole discretion we may Investigate, negotiate and sellle any "Occurrence", "Claim", "Suit" or trial. We will pay our expenses In addition to the applicable "Limits of Insurance" under this policy, subject to the provisions of subparagraph (5) below. (3) We also have the following obligations, but only to the extent that they are not Included In "Underlying Insurance" or other Insurance: (a) We will pay the premium for any bond required by law to release anachments for amounts not ex- ceeding the applicable "Limits of Insurance"; but we are not obligated to apply for or furnish any such bond: (b) We will pay the premium for all appeal bonds re- quired by law to appeal any "Claim" or "Suit" we defend; but we are not obligated to apply for or fur- nish any such bond. (c) We will pay all costs taxed against the "Insured" In any "Claim" or "Suit" we defend. (d) We will pay all pre-judgment Interest against the "Insured" anrlbutable to that part of any judgment which we become obligated to pay; but our duty to pay such Interest ends when we have offered to pay or deposited In court, the part of the Judgment which we become obligated to pay and which Is within the applicable "Limits of Insurance." (e) We will pay all post.judgment Interest against the "Insured" anrlbutable to that pan of any judg- ment which we become obligated to pay; but our duty to pay such Interest ends when we have paid, or offered to payor deposited In coun, the pan of the judgment which we become obligated to pay and which Is within the applicable "Limits of In- surance". (f) We will reimburse the "Insured" for expenses that are Incurred at our request. (4) We will not be obligated to Investigate, negotiate, senle or defend any "Claim", "Suit" or trial brought against, or applicable to, any "Insured" when: (a) Insurance Is available to or collectible by the "In. sured" under any "Underlying Insurance" or other Insurance; (b) the "Underlying Insurance" Is not available or collectible because of the bankruptcy, Insolvency or Inability or lallure to comply with any of Its polley obligations 01 the underlying Insurer(s) providing such "Underlying Insurance"; or (c) the "Underlying Insurance" Is not available or collectible because you did not maintain or meet the requirements 01 such Insurance as warranted by, or you otherwise violated the provfslons 01, Con. dltlon M of this polley. However, we will, at our sole discretion, have the right and opportunity to associate and participate with you or any provfder 01 "Underlying Insurance" or other Insuranee In the Investigation. negotiation, settlement, delense or trial 01 any "Claim" or "Suit" reasonably likely to Involve us under this policy. II we exercise such right, we will do so at our own expense. (5) Notwithstanding the loregolng, our right and duty to defend under this INSURING AGREEMENT II ends when the applicable "Limits of Insurance", as ,stated In Item 4(a), 4(b), 4(c) or 4(d) 01 the Declarations, has been exhausted by our payments. ,.-- (6) II we are prevented by law or statUte Irom complying with INSURING AGREEMENT II 01 this policy, we will reimburse the "Insured" lor any expense Incurred. with our prior written consent.. . IV. III. NAMED INSURED AND INSURED (1) The term "Named Insured" as used herein means any Individual or organization stated In Item 1 of the Declarations as a NAMED INSURED and: (a) II you are an organization other than a partner. ship or Joint venture, any of your subsidiary com. panles or any company over Which you exercise control and actively manage; (b) II you are an Individual, your spouse, but only with respect to the conduct of the business of whiCh you are sole owner; or (c) II you are a partnership or a Joint venture, your partners or members and their spouses, but only with respect to their conduct of your business. (2) The term "Insured" as used herein means the "Named Insured" and: (a) any person, organization, trustee or estate that has obligated you by written contract to provide the Insurance that Is afforded by this policy, but only with respect to liability arising out of "Your Work" "Your Product" and to property owned or used by you; (b) at your option and subject to the terms of this poliey, any person, organization, trustee, or estate (other than the "Named Insured") Included as an additional Insured In the "Underlying Insurance", but only with respect to lIablllly arising out of "Your Work", "Your Product", or property owned or used by you; (c) your executive officers, directors and stock. holders, but only within the scope of their duties as such; (d) at your option and subject to the terms of this policy, any 01 your employees whlla within the scope 01 their employment by you, exeept lor: (I) "Bodily InjUry' or "Property Damage" arising out 01 the use 0 an "Automobile', other than one owned by, loaned to, or hired by you; (II) "Bodily InJury' or "Personal InjurY' to you or your co.emproyee while In the course of his or her employment, or the spouse, ehlld,. parent, brother or sister 01 that co-employee as a conse- quence 01 such "Bodily Injury" or 'Personal In- jury' or lor any obligation to share damages with or repay someone else who must pay damages because 01 the Injury. (e) any person who has your permission to use an "Automobile" owned by, loaned to you, or hired lor use by you, and any person or organization legally responsible lor the use 01 that "Automobile"; or (I) any person (other than your employee) or any organization while acting as manager 01 your real estate. DEFINITIONS A. "Advertising Injury" means Injury that arises out of your advertising activities as a result 01: (1) oral or written publication of material that slanders or libels a person or organization or dls. parages a person's or organization's goods. products or services; (2) oral or written publication of material that vio. lates a person's right of privacy; (3) misappropriation of advertising Ideas or style of doing business; or (4) Infringement of copyright, title or slogan. B. "Automobile" means a land motor vehicle, trailer or semi-trailer designed for travel on public roads. Including any attached machinery or equipment. "Automobile" does not include "Mobile Equipment" but docs Include sell.propelled vehicles with the foliowing types of permanently attached equipment: (1) Equipment designed primarily for: (a) snow removal; (b) road maintenance. but not construction or resurfacing; or (c) street cleaning; (2) cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers: and (3) air compressors, pumps and generalors, Includ. Ing spraying, welding, building cleaning, geophysi- cal exploration, lighting and well servicing equipment, C. "Bodily Injury' means bodily Injury, sickness, disease, disability, shock, mental anguish, mental Injury and humiliation, Including reSUlting death. D. "ClaIm" means any demand upon the 'Insured' for monetary compensation, whether formal or Informal, written or orel, Including, without IImllatlon, the service of 'Suit' papers or arbitration proceedings against the "Insured" for monetary compensation alleging liability of the "Insured' as a resutt of an "Occurrence' which mayor may not be covered by the policy. The term "Claim" does not Include reports of accidents, or "Oceurrences', or any acts, errors, offenses or omissions which may give rise to a "Claim" under this policy. E. "Impaired Property' means tangible property, other than "Your Product", or ''Your Work", that (1) cannot be used or Is less useful because: (a) It Incorporates "Your Product" or "Your Work" that Is known or thought to be defective, defi- cient, Inadequate, or dangerous; or (b) you have failed to fulnll the terms of a con- tract or agreement; and (2) can be restored to use by: (a) the repair, replacement, adjustment, or removal of "Your Product" or "Your Work": or (b) your fulfillment of the terms of such contract or agreement. F. "Mobile Equipment" means any of the following types of land vehicles, Including any attached machinery or equipment, but does not Include any vehicle defined as an "Automobile": (1) bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; (2) vehicles maintained for use solely on or next to premises you own or rent; (3) vehicles that travel on crawler treads; (4) vehicles, whether self. propelled or not, main- tained primarily to provide mobility to permanently mounted: (a) power cranes, shovels, loaders, diggers or drills; or (b) road construction or resurfacing equipment, such as graders, scrapers or rollers, (51 Vehicles not described In SUbparagraph (1), (2), (3 or 14) above that are not self-propelled and are malnta ned primarily to provide mobility to per- manently attached equlpmant of the following types: (a) air compressors, pumps and generators, In- cluding spraying, welding, building eleanlng, geophysical exploration, lighting and well servic- Ing equipment; or . (bl eherry pickers and similar devices used to ra se or lower workers; (6~ Vehicles not described In subparagraph (1), (2), (3 or (4) abova maIntained primarily for purposes ot er than the transportation of persons or cargo. G. "Occurrence" means: (1) An accident, Including continuous or repeated exposure to substantially the same general harmful conditions, that resutts In "Bodily InjurY" or "Proper- ty Damage' that Is not expected or not Inlended by the "Insured". All damages that arise from continuous or repeated exposure to substantially the same general condl. tlons are considered to arise from one "Occur- rence". (2) An offense that results In "Personal Injury'. All damages that arise from exposure to the same act, publication or general conditions are con. sldered to arise from one "Occurrence". (3) An act that results in "Advertising Injury'. All damages that arise trom exposure to the same publication, misappropriation, Infringement, harm. ful material or act are considered to arise from one "Occurrence" regardless of: (a) the frequency of repetition; (b) the number, kind or type of media used; or (c) the number of claimants. H. "Personal Injury' means Injury, other than "Bodily Injury' and "Advertising Infury' arising out of the following offenses: (1) false arrest, detention or Imprisonment; (2) malicious prosecution; (3) wrongful eviction from, wrongful entry Into, or in. vasion ot the right of private occupancy of a room, dwelling or premises that a person occupies. 11 done by or on behalf of Its owner, landlord or les. sor; (4) oral or written publication of malerlal that K. "Retained Umll" means whichever of the following Is slanders or libels e p"erson or organization or dls. applicable: parages a person s or organization's goods, products or services; (1) with respect to any "Oecurrence" that Is covered (5) oral or written publication of material that vlo. by "Underlying Insurance" or any other Insurance, the total of the applleable limits of the "Underlytng lates a person's right of privacy; or Insurance" plus the applicable limits of any other In. (6) discrimination. surance; or I. "Produets - Completed Operetlons Hazard' means: (2) with respeet to any "Occurrence" that Is not covered b~ "Underlying Insurance" or any other In- i: sura nee, t e amount of the Self.lnsured Retention , i' (1) All "Bodily Injury' and 'Property Damage" occur- ,stated In Item 4~e) of the Declarations (the 'Self.ln. ring away from wemlses you own or rent and arls. sured Retention" . 'I Ing out 0 ''Your roduel" or ''Your Work" except: L. "Sulf' means a civil proceeding In which damages, (a) products that are stili In your physical pos. because of 'Bodily InJury', "Property Damage", session; or "Personal Injury' or "Advertising InJurY' to which this (b) work that has not yet been completed or Insurance applies, are alleged. "Suit" Includes: abandoned. . (1) an arbitration proceeding In which such (2) "Your Work" will be deemed completed at the damages are claimed and to which you must sub. earliest of the fOllowing times: mlt or do submit with our consent; (a) when all of the work called for In Jour con. (2) any other alternative dispute resolution Jroceed- tract or agreement has been complete ; Ing In which such damages are clalme and to which you submit with our consent; or (b) when all of the work to be done at the site (3) an appeal of a civil proceeding. has been completed, If your contract or agree. ment calls for work at more than one site; or "Underlying Insurance" means the policies listed In M, (cl when that part of the work done at a Job slle Schedule A - Schedule of Underlying Insurance and has been put to Its Intended use by any person any other policies purchas3d or Issued for any newly or organization other than another contractor or acquired or formed organization not more restrictive subcontractor working on the same project. than the terms, conditions, endorsements, and limits For purposes of sUbpara~raPhs (1) and (2) above, of liability of the policies listed In Schedule A and to be maintained by you In accordance with Condition work that may need serv ce, maintenance, correc. M of this polley. tlon, repair or replacement, but which Is otherwise complets, will be treated as completed. N, "Your Product" means: (3) "Products/Completed Operations Hazard" does not Include "Bodily Injury' or "Property Damage" (1) any goods or products, other than real!roperty, arising out of: manufactured, sold, handled, distribute or dls. (a) the transportation of property, unless the In. posed of by: jury or damage arises out of a condillon In or on (a) you; a vehicle created by the loading or unloading (as defined In subparagraph (4) below) of It; or (b) others trading under your name; or (b) the existence of tools, unlnstalled equipment (c) a person or organization whose business or or abandoned or unused materials. assets you have acquired; and J. "Property Damage" means: (2) containers (other than vehicles), materials, parts or equipment furnished In connection wilh such (1) physical Injury to tangible property, Including all goods or products, resulting loss of use of that property (all such loss of "Your Product" Includes warranties or representations use shall be deemed to occur at the time of the I physical Injury that caused ill; or made at any time with respect to the fitness, quality, I 1 durability, performance or use of ilems described In I (2) loss of use of tangible property that Is not physl. subparagraph (1) or (2) above and the providing of I I cally Injured (all such loss being deemed to occur or failure to provide warnings or Instructions. at the time of the "Occurrence" Ihat caused il), I "Your Product" does not Include vending machines Dr , , other property rented to or located for the use of I others, but not sold. L. I . O. "Your Work" means: (1) work or operations performed by you or on your behalf: and (2) materials, parts or equipment furnished In con. nectlon with sueh work or operations. "Your Work" Includes warranties or representations made at any time with respect to the fIlness, quality, durability, performance or use of Items described In subparagraph (1) or (2) above and the providing of or failure to provide warnings or Instructions. V. LIMITS OF INSURANCE A, The 'Umlts of Insurance' shown In the Declarations and the rules below flx the most we will pay, regardless of the number of: 3. (1) "Insureds"; (2) "Claims" made or "Suits" brought: or (3) persons or organizations making "Claims" or bringing "Suits". If there Is a limit stated In Item 4(b) of the Declarations for the General Aggregate Limit (Other than Prodtlcts/Completed Operations), that amount Is the most we will pay for all damages under INSURANCE AGREEMENT I, except for: (1) Injury and damage Included In the "Products/Completed Operations Hazard" and (2) coverages Included In the "Underlying Insurance" to which no underlying aggregate limit applies. If there Is a limit stated In Item 4(c) of the Declarations for the Products/Completed Operations Aggregate Limit, that amount Is the most we will pay under INSURING AGREEMENT I for damages because of In/ury and damage Included In the "Products/Completed Operations Hazard". ~ J. J, If there Is a limit stated In Item 4(d) of the Declarations for Combined Aggregate Limit, that amount Is the most we will pay under INSURING AGREEMENT I for all damages, except damages because of ownership or use of an "Automobile". Subject to paragraphs B, C and D above, the Each Occurrence Limit stated In Item 4(a) of the Declarations Is the most we will pay for damages for "Bodily InJury', "Personal Injury'. "Property Damage" and "Advertising Injury' arising out of anyone "Occurrence". If the applicable limit of Insurance of the "Underlying Insurance" or of other Insurance are reduced or exhausted by payments from one or more "Occurrences" happening during the "Policy Period" of this polley, the "Limits of Insurance" of this polley will apply In oxcoss of such reduced or exh'austed. limits, G. The "Limits of Insurance' of this policy apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the polley period, unless the polley period Is extended after Issuance of this polley for an additional period of less than 12 months. In that case, the eddltlonal period will be deemed part of the last preceding polley period for purposes of determining the 'Umlts of Insurance', VI. SELF-INSURED RETENTION You will pay up to the amount of the Self Insured Reten. tlon, as stated In Item 4(el of the Declarations, for any "Claims' or "Suits' covered by this polley and to which no "Underlying Insurance" or other Insurance applies. VII. TERRITORY This polley applies to "Occurrences" that happen anywhere. EXCLUSIONS This policy does not apply to: A. "Bodily Injury' or "Property Damage" expected or Intended from the standpoint of the "Insured". This exclusion A does not apply to "Bodily Injury' resulting from the use of reasonable force to protect persons or property. B, Any obligation for which the "Insured" or any of Its Insurers may be held liable under any workers compensation, unemployment compensation, disability benefits or similar laws. C, "Bodily Injury' or "Personal InJury' that: (1) arises on the basis of race, creed, color, sex, age, national origin: or (2) results In, or arises from, termination of employ- ment. D. "Property Damage" to any property owned by the "Insured". E. "Property Damage" to "Your Product", arising out of it or any part of It. F, "Property Damage" to "Your Work' arising out of It or any part 01 It and Included In the "Products/Completed Operations Hazard". This exclusion F does not apply If the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. f , G. "Property Damage" to "Impaired Property' or property that has not been physleally Injured arising out 01: (1) a defect, deficiency, Inadequacy or dangerous condition In "Your Product" or "Your Work"; or (2) a delay or lallure by you or anyone acting on your be hall to perlorm a contract or agreement In accordance with Its terms. This Exclusion G does not arPly to the loss 01 use of other property arising out 0 sudden and accidental physical InJury to "Your Product" or "Your Work' after It has been put to Its Intended use. H. Damages claimed lor any loss, cost or expense Incurred by you or others lor the loss 01 use, withdrawal, recall, Inspection, repair, replacement, adjustment, removal or disposal of: (1) "Your Produet"; (2) "Your Work'; or (3) "Impaired PropertY': If such product, work, or property Is withdrawn or recalled from the market or Irom use by any person or organization because of a known or suspected defect, deficiency, Inadequacy, or dangerous condition In It. I. "Advertising Injury' that resulls from: (1) the laflure to meet the requirements of a written contract or agreement: (2) Inlrlngement on a registered trademark, service mark, or trade name by using such lor goods 0' services sold, offered for sale, or adverllsed (other than such use of lIt1es or slogans); (3) Incorrect description of any article or com. modlty; or (4) a mistake In an advertised price. J, (1) "Bodlfy Injury' or "Property Damage" arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants (as defined below): (a) that are, or that are contained, In any property that Is: (I) being moved from the place where such property or pollutants are accepted by the "In. sured" for movement Into or onto an "Automobile"; (II) being transported or towed by the "Automobile": (ill) otherwise In the course of transit by the "In. sured"; (Iv) being stored, disposed of, treated or processed In or upon the "Automobile"; or (v) being moved from the "Automoblfe" to the place where such property or pollutants are finally delivered, disposed 01 or abandoned by the "Insured"; , (b) at or Irom any premises, site or locetlon which Is or was at any time owned or occupied by, or rented or loaned to, any "Insured"; (e) at or Irom any premises, site or locallon which Is or was at any time used by or lor any "Insured" or others lor the handling, storage, disposal, process- Ing or treatment 01 waste (as denned below); (d) which are or were at any time transported, handled, stored, treated, disposed 01, or processed as waste by or lor any "Insured" or any person or organization lor whom any "Insured" may be legally responsible; or (e) at or Irom any premises, site or location on which any "Insured" or any contractors or sub- contractors working directly or Indirectly on any "Insured's" behalf ore performing operetlons: (I) If the pollutants are brought on or to the premises, site or location In eonnectlon with such operations by such "Insured", contractor or subcontractor; or (II) If the operations are to test lor, monitor, clean up, remove, contain, treat, detoxify or neutralize, or In any way respond to, or assess the effects 01 pollutants. (2) Any request, demand, order, "Claim", or "Suit" by the "Insured", a governmental authorily, or others for payment under this policy for any loss, COSI, or expense to test, monitor, clean.up, remove, contain, treat, detoxify, or neutralize, or any way rsspond to, or assess the effects of pollutants, To the eXlent that any of the above Is determined to be "Bodily Injury' or "Property Damage", said "80dlly Injury' or "Property Damage" Is also excluded. For purposes 01 this Exclusion J, the term "pol. lutants" means any solid, liquid, gaseous or thermal Irrllant or contaminant, Including without IImitallon. smoke, vapor, soot, lumes, acids, alkalis, chemicals and waste and the term '\vaste" Includes materials to be recycled, reconditioned or reclaimed. Subparagraphs (1 )(a)(lv) and (1 )(b) through (1 )(e) 01 this Exclusion J do not apply to fuels, lubricants. fluids, exhaust gases or other similar pollutants that are needed for or result from the normal electrical. hydraulic or mechanical funcllonlng of an "Automobile" or Its parts If the pollutants escaps or are discharged, dispersed or released directly Irorr, an "Automobile" part designed by lis manufacturer to hold, store, receive or dispose of such pollutants. SUbparagraphs (1) (b) through (1) (e) of this Ex. c1uslon J do not apply to pollutants not In or upor. an "Automobile" If: I: i ! I L , , I , . , :......... , . (I) tho pollutants or any proporty In which tho pollutants aro contalnad aro upset, overturned or damagos as a result of the malntonance or uso of an "Automobllo"; (II) tho dlschargo, dispersal, rolease or oscapo of the pollutants Is caused directly by sueh upset, oven urn or damage; and (III) the "Bodily Injury" or "Propeny Damage" resuttlng therefrom Is not otherwise excluded under sUbparagraph (1) (a) of this exclusion J. SUbparagraphs (1) (b) and (1) (e) of this exclusion J do not apply to 'Bodily InJury' or "Propeny Damage" arising out of smOKe or fumes from a hos- tile fire. For purposes of lhls exclusion J, a "hostile fire" means a fire which becomes uncontrollable or breaks out from where It was Intended to be. K. "Bodily InJurY' or 'Property Damage' arising out of the ownership, maintenance, operation, use, loading or unloading of aIrcraft or entrustment to others of any aircraft, except aircraft chartered with crew. . L. "Bodily Injury', "Personal Injury" or "Propeny Damage" thai rosutts from, or any condition thaI Is Incidental to, any of the following: (a) war, whether or not declared; (b) civil war; (c) Insurrection; (d) rebellion; (e) revolution: or (I) warlike operations. CONDITIONS A. Premium Computallon. The rate, rating basis, and es. lImated units of exposure for the "Policy Period" will be stated In Item 6 or the Declarations. We will compute the premium for this polley by applying the rate to each unit of exposure or the rating basis. The estimated units of ex- oosure will be used to determine the advance premium. ,he actual units of exposure will be used to compute the earn~d premium. When this polley expires or II It Is cancelled, we will com. pute the earned premium. If the earned premium Is more than the advance premium, you will pay us the additional premium Immediately. If the earned premium Is less than the advance premium, we will return the excess premium to you. Regardless of the earned premium, the annual minimum premium stated In Item 6 of the Declarations will apply for each 12 months of the Policy Period. B. Inspecllons and Surveys. We have the right but are not obligated, to: ' (1) make Inspections and surveys at any time; (2) give you repons on the conditions we find: and (3) recommend changes. Any Inspections, surveys, reports or recommendations reo late only to Insurability and the premiums to be charged, We do not make safety Inspections. We do not undertake to perform the duty of any person or organization to pro. vide for the health or safety of workers or the public. And, we do not warrant that conditions are safe or healthful or comply with laws, regulations, codes or standards. This Condition B appllos not only to us, but also to any rating, advlsory, rate servlco or similar organization that makes Insurance Inspections, surveys, repons or recom. mendatlons. C. Examlnallon of Your Books and Records. We may examine and audit your books and records as they relate to this policy at any time during the Policy Period and for up to three years afterward. D. Separallon of Insureds. Except wllh respect to the 'Umlts of Insurance" and any rights or duties specifically esslgned In this policy to the first NAMED INSURED stated In Ilem 1 of the Declarations (the 'First Named In. sured"), this Insurance applies: (1) as If each "Named Insured" were the only "Named Insured"; and (2) separately to each "Insured" against whom a "Clalm'ls made or "Sull" Is brought. . E. DUlles In the Event of "Occurrence" "Claim' or "Sull'. ' (1) You must notify us of any "Occurrence" which may result In a "Claim" or "Suit" under this polley. Notice shall Include: (a) how. when and where the "Occurrence" took place; (b) the names and addresses of any Injured per. sons and witnesses; and (c) the nature and location of any Injury or damage arising OUl of the "Occurrence". , (2) If a "Claim" Is made or "Suit" Is brought against any "Insured" that Is likely to Involve this policy, you must notify us, In writing, of the "Claim" or "Suit" as soon as possible. (3) You and any other Involved "Insureds" must: (a) Immediately send us eoples of any demands, notices, summonses or legal papers received In connection with any "Claim" or "Suit"; (b) authorize us to obtain records and other Infor. matlon; (c) cooperate with us I" the Investigation, senlement or defense of any "Claim" or "Suit"; and (d) assist us, upon our request, In the enforcement of any right against any person or organization which may be liable to any "Insured" because of In. fury or damage to which this Insurance may also apply. (4) No "Insureds" will, exeept at their own cost, voluntarily make a payment, assume any obligation or Incur any expense, other than for first ald. without our consent. F. Appeals. If the "Insured" or any "Insured's" underlying Insurer elects not to appeal a Judgment that Is In excess of the "Retained Limit", we may elect to do so at our own ex. pense. In such case, we will pay all taxable costs, dlsbur.' " , , , . semo'nts and Inlorest, but we will not pay more than the appllcablo "Umlle of Insurance" set forth In INSURING AGREEMENT V, plus taxable costs, disbursements and In- tarest Incidental to the appeal. G. Loss Payments. (1) We will have liability for anyone "Occurrence" only when the amount of the "Retained Umll" wllh respect to such "Occurrence" has beon paid by; (a) the "Insured" (b) us on behalf 01 the "Insured" (other than under this policy); or (c) tho "Insured's" underlying Insurer. (2) " we are obliged to Indemnlly the "Insured" lor any payment 01 Judgments or settlements, the "Insured" must make a written claim within 12 monlhs of; (a) actually paying any amount In excess of the "Retained Limit"; or (b) the "Insured's" liability being made certain by: (I) the final Judgment 01 a trial; or (i1) the written agreement 01 the "Insured", the claimant and us. " any later payments are made by the "Insured" lor the same "Occurrence", written claim lor these payments must likewise be made. We will reimburse you lor these pay. ments within 30 days 01 confirming that they are payable by this policy, . The "Insured" will reimburse us promptly lor any amOUnl of judgmenls and settlements paid on behall of the "In. sured" that is wilhln the "Self.lnsured Retention", H. Other Insurance. II there Is any other collectible In. surance available to the "Insured" (whether such In. surance Is stated to be primary, contributing, excess or contingent) that covers a loss that Is also covered by this policy, the insurance provided by this policy will appty In excess ot, and shall not cOnlrlbute wilh, such Insurance, This Condition H does not apply to any insurance polley purchased specifically (and which Is so specified In such II1surance policy) to apply In excess of this policy, I. Transfer 01 Rights of Recovery Against Others to Us. If any "Insured" has rights to recover all or part of any pay. menl we have made under this polley, the,e rights are transferred to us, The "Insured" must do notlllng to Impair these rights or the transler thereof to us, The "Insured" will cooperate with us and, at our request, will assist In the pursuit and enforcement of those rights, It there is any money recovered, we will disburse that money, as follows: (1) first. we will repay any actual payment made by the "Insured" that Is In excess of the "Retained L1mil"; (2) second. we will be repaid to the extent of our actual payment; and (3) third, " any money remains, the "Insured" or any underlying Insurer will be repaid to the extenl of their actual paymenl. " any expenses are Ineurred to recover money, we will share the expenses wllh the "Insured" or any underlying Insurer In proportion to the amount that each Is repaid, " our recovery attempt Is not successlul, we will bear all of the recovery expenses. J. Changes. This policy Oncludlng the Declarations and any schedules and endorsements attached herelo) con. talns all the agreements between you and us concerning the Insurance afforded hereby. The first 'Named Insured" shown In the Declarations Is authorized to make changes In the terms 01 this policy, wllh our consent. This policy's terms and condlllons can be amended or waived only by endorsement Issued by us and made a part 01 this policy. K. Transfer 01 Your Rights and Duties Under This Policy. Your rights and duties under this policy may not be translerred without our prior written consent, except In the case 01 death of an Individual "Named Insured". " you die or are legally declared bankrupt, your rights and duties will be transferred to your legal representative, but only while acting wllhln the scope 01 duties as your legal representative. Until your legal representative Is ap. polnled, anyone having proper temporary custody of your property will have your rights and duties, but only with respect to that property. L. Cancellation. (1) The first "Named Insured" may caneelthls policy by mailing or delivering to us advance written notice of cancellation, (2) We may cancel this policy by mailing or delivering to the first "Named Insured" written notice 01 cancellation at least: (a) 10 days before the effective date of cancellation, if we cancel for nonpayment of premium; or (b) 30 days before the effective date of cancellation, if we cancel for any other reason, (3) We will mail or deliver our notice to the first "Named Insured's" last mailing address known to us. (4) Notice of cancellation will state the effective date of cancellation and will be effective lor all "Insureds" The "Policy Period" will end on that dats. (5) if this policy Is cancelled, we will send the firsl "Named Insured" any premium refund due. The premium refund will be pro rata, The cancellation wii' be effective even iI we have not made or offered c refund. (6) If notice Is mailed. proof of mailing will be sufficient proof of notice. M. Maintenance Df Underlying Insurance. You agree: (1) that the "Underlying Insurance" shall remain ir force during the "Policy Period"; I , (2) that the terms, condlllons and endorsemenls of the 'Underlying Insurence" wfll not meterlally change: and (3) that the limits of liability as warranted by Schedule A will not change, except lor reducllon or exhausllon In the aggregate or occurrence limits due to payments lor 'Occurrences' during the "Polley Period', you do not meet these requirements, this Insurance shall :ply as " the "Underlying Insurance" were available and Jllecllble. United States Fire Insurance Company Premier Insurance Company N. Bankruptcy or Insolvency of Underlying Insurer. For all purposes 0 Ihls policy, " any 'Underlylng Insurance'ls not available or collectible because 01 (a\ Ihe bankruptcy or Insolvency 01 the underlying Insurer(s providing such "Underlying Insurance' or (ll) the Inability or failure lor any other reason 01 such underlyfng Insurer(s) to comply with any 01 Ihe obllgallons 01 Its polley, then this policy shall allply (and amounts payable hereunder shall be deter. mined) as " such 'Underlyfng Insurance' were available and collectible. . We have properly Issued this polley, but It Is not valid un. less comllleted lly the allachment 01 Declarallons signed by our duly authorized represent alive. The North River Insurance Company Crum & Forster Insurance Company Crum & Forster Underwriters Co. of Ohio ~k"~ James K. Klllelea Secretary /~ James A. Stark President \ "'. I , . NUCLEAR ENERGY LIABILITY EXCLUSION ENDORSEMENT This policy does not apply: A. To "Bodily Injury," "Personal Injury' or "Property Damage": (1) With respect to which an Insured under the policy Is also an Insured under a nuclear enargy liability policy Issued by Nuclear Energy Uablllty Insurance Assocatlon, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an Insured under any such policy but for its termination Upon exhaustion of its limit of liability; or (2) Resunlng from the hazardous properties of nuclear material and with respect to whlqh (a) any person or organization Is required to maintain flnanclal protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, or (b) the Insured Is, or had Its policy not been Issued would be, entitled to Indemnity from the Unlled Stales of America, or any agency thereof, under any agreement entered Into by the United Stales of America, or any agency thereof, with any person or organization; B. To "Bodily Injury," "Personal Injury' or "Property Damage" or loss resulting from the hazardous properties of nuclear material, If: (1) The nuclear material (a) Is at any nuclear facility owned by, or operated by or on behalf of, an Insured or (b) has been discharged or dispersed therefrom: (2) The nuclear material Is contained In spent fuel or waste at any time possessed, handled, used, processed, stored, transported or disposed of by or on behalf of an Insured; or (3) The Injury, sickness, disease, death, destruction or loss arises out of the furnishing by an Insured of services, materials, parts or equipment In connection with the planning, construction, maintenance, operation or use of any nuclear facility, but If such facility Is located within the United States of America, Its territories or possessions or Canada, this exclusion (3) applies only to Injury to or destruction of or loss of property at such nuclear facility, As used In this endorsement: "hazardous properties" Include radioactive, toxic or ex. plosive properties; "nuclear material" means source malerlal, special nuclear material or by product material; "source malerlal", .speclal nuclear material" and "by. product materlar' have the meanings given them In the Atomic Energy Act of 1954 or In any law amendatory thereof; "spent fuer' means any fuel element or fuel component, solid or liquid, which has been used or exposed to radla. tlon In a nuclear reactor; ''Waste' means any waste material (1) containing by. product material and (2) resulting from lhe operation lly any person or organization of any nuclear facility Ineluded within the deflnltlon of nuclear facility under paragraph (1) and (2) thereof; "nuclear facility' means: (1) Any nuclear reaclor, (2) Any equipment or device designed or used for (a) separating the Isotopes of uranium or plutonium, (b) processing or utilizing spent fuel, or (e) handling, processing or packing waste, (3) Any equipment or device used for processing, fabricating or alloying of special nuclear material If at any time the total amount of such material In the custody of the Insured at the premises where such equipment or device Is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235, (4) Any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste, and Includes the site on which any of the foregoing is lo- cated, all operations eonducted on such site and all premises used for such operations; "nuclear reactor" means any apparatus designed or used to sustain nuclear fission In self.supportlng chain reaction or to contain a critical mass of fissionable material. With respect to Injury to or destruction of or loss of property, the word "injury' or "destruction" or "loss" In- cludes all forms of radioactive contamination of property. All other terms and conditions of this policy remain un. changed. I ~ B J ') \ , , , ,I ,~ ~ :/ ' I , (. " " ~' f , ., , ' ~ Crum&Fo, . ~ r.J' Insurance MARSH l!t McLEmiii"" ,;, RECEIVED r .. OCT - 7 004 CFI PITTSBURGII REGION ATTN: POLICY TYPING SUPERVISOR 30l GRANT ST., SUITE l200 flU PITTSBURGH, PA 15219-1409 un "~THCAST €:-!O;"'j" I1!VISi'. rnmO\Ylm 00 OCT I 4 1994 MARSH & McWlNAH PHIlADElPHIA . 553 MARSH & MCLENNAN INC NEG. COMM.l0.00% 03598 600 GRANT STREET PITTSBURGH, PA l52l9 03598 Dale; 09/29/94 553 016945 7 HEN AGENTS COPY ,. . , , w ~ mO\Yllf rn MARSH & McLE/lNAoII, ,: ':- RECEIVED OCT I 4 1994 OCT - 11994 MARSHtfrcUHrfH PHI ElPII .,nT\.I:,,,I:":" =-~-'I'" P.Q[JCY NUMBER THE DEFENDER 553 016945 7 Commercial Umbrella Policy CLIENT NUM 01080231 " , . ~ Crum&Forst~r r:r Insurance Declarations DA,.E ISSUED 09/28/94JH RENEWAL OR REPLACEMENT OF 55300479'6 6 Hem NAMED INSURED. ADDRESS 1. THE FROG, SWITCH, AND MANUFACTURING COMPANY P.O. BOX 70 CARLISLE, PA 17013 2.' POUcYPERIOD: POUCYCOVERSFROM 09/0l/l994 TO 09/01/1995 12:01 I.m. Standard 11ml It thl Nlmld Inlurod'l eddrulllltld Ibove. 3. COVERAGE IS PROVIDED BY COMPANY CHECKED Aglnt Numb.. 03598 O' REPRESENTATIVE: 1rI UNITED STATES FIRE INSURANCE COMPANY o THE NORTH RIVER INSURANCE COMPANY Agent er MARSH &. MCLENNAN I NC o WESTCHESTER FIRE tNSURANCE COMPANY Btek.. o INTERNATIONAL INSURANCE COMPANY OfflceAddrul 600 GRANT STREET o Tcwn, Stlte & ZIp PITTSBURGH, PA l52l9 NEG. COMM. 1 0.00% 4. UMIT OF INSURANCE _ AS IN INSURING AGREEMENT V AND VI (The Um"" ef Inlurance lie the arneuntl shewn bllow)' (d) Combined Aggregl" Umll $ 5,000,000 $lO,OOO,OOO $ 5,000,000 N/A ZERO (e) Each Occurrence Umll (b) Genoral Aggregate Umll (Othor than PreductS/Completed OporaUonl) (c) Preduct./Compteled Ope/lUen. Aggregale Umit (a) Sill tn.ured RetlnUen 5. POUCY JACKET, FORMS AND ENDORSEMENTS ATTACHED TO THIS POOc:nTlNCEPTlON"(NUMBER'AND.EDITION.DATE}- AS PER MASTER FORMS UST ATTACHED. r ~1~~;:r;~l~, ~ :~,~,::il,"-'''~ f'.:~:'r':'-:'~!l;'l I ()'lcum'~~' ..... '... " II';'':~.I.''':. . . '. In advlnc. adJu.tabll .Ia /1\1 el -- p.r FLAT CHARGE I, annu:~,'.' ...~~,~. ~~.U al~C ~)e"Pl.F"'-.- annual minimum premium _. /If_ ylll( C {'tttL-l e. PREMIUM IS PAYABLE .!-, $47,400 $47,400 AUTHORIZED REPRESENTATIVE THESE DECLARATIONS, TOGETHER WITH .POLICY PRoviSIONS - PART ONE,' AND ENDOFiS'E);\ENTS~rANY;1\RE1SSUED- .. n'CT n. ANn IN THE COMPLETION OF THE ABOVE NUMBERED POLICY. . ...- , I I i I I I C,,; ".~' Ci'::~. -(~~:i,~": ~~. ;': ;... ; " :. Countersigned by ... -- .'Of ........ . cor:oriJ::on. UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA 1 ; cC IlTION ;~ 5 := '1 ESCO CORPORATION, an Oregon -- Plaintiff, {JUDGE v. THE FROG, SWITCH & MANUFACTURING co" /riC., a Pennsylvania corporation, arc; JOHN R. OLDS, JURY TRIAL DEMANDED Defendants. FILED :':;~.::1?!2 ~URG, P.~ g)MPlAlNT -':;:.. ,I ;" ;s ~3 "d','";, ': ......, """''':;=_, Cl--' "~'~"';.J, 'S"'_M. t:1'1i( p."~ I:-'-'} JURISDICTION AND VENUE ., ~ __ 1. Plaintiff ESCO Corporation (hereinafter' ESeo' ) is an Oregon corporation ""'/1 '(5 Ptlncipal place of business in the State Dt Oregon. 2. Defendant The Frog, Switch & ManUfacturing Co., Inc. 'hereinafter ." 0,' , " , e,""""" """,,;"" w;,h ';' "'"",,' PI." of bo"",,, '" th, Comm"'W"lth of PennsYlvania. EXHIBIT C ;.l fi:o'. .i Vr -" ... IIj U. \,.l.J '''' ~J'~JUU P.ll7 , . l' , .\, I I 9. During 1994, ESCO negotiated with Amsco the acquisition by ESCO of . Amsco's manganese steel casting dipper bucket product line. including dipper buckllts, dippllr " , bucket parts and components, shrouds and related parts (but eXCluding dipper bucket points and adaPters for dipper buckets) (hereinafter the" Amsco dipper bucket product line"l. On January 12. 1995, an Agre/lment for the sale of the Amsco dipper bucket product line to ESCO was executed by Amsco and ES<;:O. Pursuant to that Agreement. Amsco conveyed to ESCO 311 patterns and drawings. design information, tools. tooling, templates and fixtures, gOI;,:.,;. flasks. and engineering and operating data relating to the Amsco dipper bucket pro::!u:: "ne. including trade name, trademarks, copyrights. technology. know-how, processes, related 3opllcations, and good will (hereafter the "Amsco trade sec~ets'). ESCO paid $2 m'::.c~ I ~r the rights to Amsco's dipper bucket product lIr.e In::! ~eio;ed technology. 10. The Amsco dipper bucket product line had substantial value to ESCO not Or.I'{ I:' :he prospect of sales of Amsco dipper buckets to the Ir.lr,lng :ndustry, but also for the pro~;,:~: of sales of replacement parts to users of the large ns:alled base of Amsco dipper buckets," active operation by the mining industry world-wide. Without the proprietary Amsco cat:crns ~nd drawings it would require substantial expense ana substantial time for a firm to at:emc: :0 replicate the Amsco dipper bucket product line anc J[S various components. 11. Frog operates a foundry in Carlisle. Pennsylvania. Prior to 1995, Frog was rot engaged in the production and sale of dipper buc~e:s or dipper bucket component parts, - 3. , . . . w' ....~. \.oU IU ~..lI::>.lW P.1J8 12. In September 1994, while negotiations for the safe to ESCO of the Amsco dipper bucket product line were in progress, Frog hired as an employee John R, aids. Amsco's chIef engineer. During tria course of his employment at Amsco, Mr. ~Ids obteined on a confidential basis proprietary information regarding tha Amsco dipper bucket product line. Including designs. patterns. and processes. 13. In or about Saptember 1994, John R. aids unlaWfully stole and removed from Amsco trade secret and confidential business Information. including numerous draWings and prints relating to the Amsco dipper bucket product line. Mr. aids then deliVered those to Frog for the unlawful and improper purpose of utilizing the confidential prints, draWings and technology in competition with Amsco or its successors or assigns. 14, Shortly lifter John R. aids left the employment of Amsco. the president of Amsco. Arthur A. Boren. reminded Mr. Olds that while he was in the employ of Amsco he had access to trade secret and confidential business information, that he was under a continuing obligation to maintain the confidentiality of that information. and that he was not to Usa or disclose it to others. Mr. aids acknowledged that he pOssessed such trade secret and eonfidential information. and that it would be improper for him to use or disclose it to others. Thereafter. on November 15, 1994.Amsco notified in writing both Mr, Olds and Frog that Mr. Olds was in possession of trade secret and confidential information, end that it would be a breach of his fiduciary duties to his formar employer for him to use or disclose that information to others, inClUding Frog. .4- . w c.)(:>.)W 1'.12 I' 24. ESCO has suffered substantial damage liS a result of tha unlewful misappropriation and use of the Amsco trade secrets by Frog and John R. aids. ESCO Is " , 'I ., entitled to an award of compensafllry damages against defendantl jOintly and s~verally in en amount to be determined at trial. In addition, because the actions of Frog end Mr. aIds were done willfully. knowingly. mellciously, wantonly. and with utter contempt of ESCO's I proprietary rights-rights of which defendants were expressly informed-ESCO is entitlad to an award of punitive damages against defendants jointly and severally. 25. Unless enjoined by this Court, Frog will continue to use ESCO's confidential business information adversely to ESCO's proprietary rights. Therefore, this Court should issue an order enjoining defendants from using any of ESCO's trade secrets relating to the Amsco dipper bucket product line. and each of them, for compensatory damages in excess of the jurisdictional limit of this Court. WHEREFORE, plaintiff demands judgment in its favor and against defendants, together with punitive damages in like or greater amount. together with injunctive relief as set forth above, together with interest and costs. I ,I I , - 8 - c.,),~..>tJt:J 1-'.14 29. ESCO has Stlffered substantial damage as a rllsult of defendants' unlawful misappropriation, disclosue and use of its confidential business informetlon. ESCO Is entitled to an eward of compensatory damages against defendants jointly an~ severally in an amount to be determined at trial. In addition, because the actions of Frog and Mr. Olds Were done willfully, knOWingly, maliciously, wantonly, and with utter contempt of ESCO's rights-rights of which defendants were expressly informed-ESCO is entitled to an awerd of punitive damages against defendants jointly and severally. 30. Unless enjoined by this COUrt, Frog will continue to use ESCO's confidential business information adversely to ESCO's rights. Therefore. this Court should issue en order enjoining defendants from using any Improperly obtained confidential business information relating to ESCO's dipper bucket product line. WHEREFORE. plaintiff demands jUdgment in its favor and against defendants. and each of them, for compensatory damages in excess of the juriSdictional limit of this Court. together with punitive damages in like or greater amount. together with injunctive relief as set , forth above, together with interest and costs. . . \ - 10- recover compensatory damages in an amount to be determined at trial. In addition, because. the ections of Frog and Mr. Olds were done willfully, knowingly, maliciously, wantonly, and with uttllr contempt of ESCO's rights, ESCO is entitled to an award of punitive damagea, , I ., ., ; I ageinst defendants jointly and sevarally. WHEREFORE. plaintiff .demands judgment in its favor and against defendants; and each of them, for compensatory damages in excess of the jurisdictional limit of this Court, f ~ together with punitive damages in like or greater amount, together with injunctive relief as set forth above, together with interest and costs. COUNT FOUR (Against Both Defendants for Violation of Uniform Trade Secrets Act of Arizona) 36. The averments of n 1 through 35 are incorporated herein. 37. John R. Olds knowingly, intentionally, and wrongfully misappropriate ESCO trade secrets made eveilable to him with the acknowledged expectation that he woul keep such information completely confidential. Without privilege or justification, and with fu awareness thet he was acting in breach of his fiduciary duties to his former employer and i lawful assignee, Mr. Olds improperly disclosed the ESCO trade secrets to Frog. - 12- eJf.J.Jt.AJ f". J. ( 38. John R. Olds willful and malicious misappropriation of ESCO trade secrets concerning the Amsco dipper buclcwt product line was in violation of Ariz.Rav.Stat.Ann. !! 44- 401 through 44.407. 39. Frog knowingly, intentionally, and wrongfully used ESCO trade secrets: it acquired from John R. Olds, to d~velop the Amsco dipper bucket product line and to compete with ESCO for the Phelps Dodge Contract. At all relevant times, Frog was fully aware that the trade secrets it obtained from Mr. Olds had been wrongfully misappropriated and disclosed to Frog in breach of Mr. Olds' fiduciary duties to its former employer and its assig:-ee, 40. Frog's willful and malicious misappropriation of ESCO trade secret concerr..ng the dipper bucl<:et product line was in violation of Ariz.Rev.Stat.Ann. 5544-40 thrOl;;;h .14.407. 41. ESCO has sustained substantial damage as a direct result of defendants unlawful mIsappropriation of its trade secret information. ESCO is entitled to an award 0 damages against defendants jointly and severally in an amount to be determined at trial InCluding ESCO's actual loss on the Phelps Dodge Contf1Jct caused by defendant mIsappropriation, ESCO's lost opportunity for sale of replacement parts, and the unju enrichment obteined by Frog. In addition. because defendants' conduct in misappropriati ESCO's trade secrets was willful and malicious. ESCO is entitled to an award of reasonab - 13. . w COUNT FIVE (Common Law Conversion) 43. The uverments of " , through 42 are incorporated herein. 44. Thellctionl of the defandants al set forth above constltutelln unlllwful theft and convorslon of v.rulble proper:tY and property rights of the plaintiff. Defendants hevI and continue to exercise unlawful dominion end control ovor said propeny and property rights in a manner antagonistic to the ownership and righta of plaintiff. 45. The actions of de fondants arll wllfulllnd Intenticnalend are Intended to daprivo plelntiff of the benafits of its ownership interests. WHEREFORE. plaintiff demunds Judgment in Its favor and aguinst defandants, and eech of tham, for compansatory damages In excess of the Jurlsdictiona/llmit of this Court, togother with punItive damages in like or greater amount, together with Injunctive rellaf as set forth ebove, together with Interest and costs. - 16. . w COUNT 81'S ICivil Conspiracy to Cafraud 8Dd Commit UnlaWful Acts) 46. The averments of " 1 through 46 are Incorporated herein. 47. At times unknown to plaintiff, but believed to be commencing. Prior to September 1994 and continuing through the present, defendants Frog and John R. Olds, acting with the aid and assistance of others. entered into a conspiracy intended to defraUd tha plaintiff and intended to encourage, facilitate and accomplish the theft of valuable property and property rights from plaintiff and its predecessor in interest. 48. The defendants joined in a common purpose and concert of design and a common motive to unlaWfUlly obtain the patterns. draWings. plans. speCifications and technology for the Amsco dipper bucket product line and to cause injury to the plaintiff. 49. In fU"herance of said conspiracy, defendant O/ds made fraudulent misrepreSentations to plaintiff and its predecessor in interest as set forth above. 50. In furtherancB of said conspiracy. defendant Olds converted and misappropriated prOPBrty and prope"y rights which he knew belonged to others. In conducting Such ectivity, defendant Olds intended to deprive the plaintiff of the benefits and Ownership interest in such property end property rights. - 16- I P.B2 51. At the time said acts were committed, defendant aids knew the acts t be unlawful and he proceeded In spite of such knowledge. 52. In furtherance of said conspiracy. defendant Olds delivered the stole property to defendant Frog, knOWing and intending that defendant Frog would utilize the stole property for the joint economic edvantage of both defendents and to the detriment and inju of the plaintiff. 53. At all material times, defendant Frog had knowledge of defendant Olds acts and intended acts. and defendant Frog aided, abetted and encouraged defendant Olds t engage in such unlawful acts. 54. In furtherance of said conspiracy. defendant Frog knowingly accepte and thereafter utilized said stolen property and property rights for its own economic advantag and to the detriment and injury of the plaintiff. 55. At the time said acts were committed. defendant Frog knew the acts t be unlawful and it proceeded in spite of such knowledge. 56. The acts 8S set forth aforesaid, constitute an independent cause of actio' in tort for civil conspiracy which is actionable at law. - 17- . , ..._ _H'...... .. I. '-<I. ......... '::Sf:>,jW t'.W ou 57. Byvirtue of defendants' actions, plaintiffhassustained substantlallnjury and damege as set forth aforesaid. WHEREFORE, plaintiff demands judgment In its favor and against defendants, and each of tham, for compensatory damages in excess of t~e jurisdictional limit of this Court, together with punitive damages in like or greater amount, togather with Injunctive reliaf as set forth above, inclUding an Order that defendants be enjoined from using in any manner patterns, drawings, or technology unlaWfUlly obtained from Amsco Cast Products, 'nc. or Amalloy Corp. that were purchased by plaintiff. together with interest and costs. RHOADS & SINON /~~. C: B~:_k.- ~ i~') \'- ~~.. ',_ ~ \ :~ R. Stephen ShibliJ Attorney 1.0. '19258 P.O. Box 1146 , Harrisburg, PA 17108-1146 Telephone: 17171233-6731 DATE: July 14, 1995 , .' Attorneys for Plaintiff ESCO Corporation Of Counsel: Barnes H. Ellis Scott E. Crawford STOEL RIVES 2300 Standard Insurance Center 900 SW Fifth Avenue Portland. Oregon 97204.1268 Telephone: 16031 224-3380 ""27 . 1 a - I . "A '') ''( , I", ~<? '):1- <;>I'~ ('A 1-9, ,jl '.i ~.o /9.96' '1 ;ty~. "1,C <'~t91- " , I. I UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA ESCO CORPORATION, an Oregon corporation, ) ) ) ) ) ) ) ) ) ) ) ) ) CML ACTION 1:CV-95-1153 Plaintiffs, (JUDGE RAMBO) (MAGISTRATE JUDGE SMYSER) v. THE FROG, SWITCH & MANUFACTURING CO., INC., a Pennsylvania Corporation, and JOHN R. OLDS, JURY TRIAL DEMANDED . . I f I:, ji I ! Defendants. REVISED SECOND AMENDED COMPLAINT Plaintiffs allege: 1. JURISDICTION AND VENUE 1. Plaintiff ESCO Corporation (hereinafter "ESCO") is an Oregon corporation 3. John R. Olds ("Olds") is a citizen of the Commonwealth of Pennsylvania. EXHIIH'l' I I, ~ , [ i . I ' , , I I I I , ! with its principal place of business in the Slate of Oregon. 2. Defendant The Frog, Switch & Manufacturing Co., Inc. (hereinafter "Frog") is a Pennsylvania Corporation with its principal place of business in the Commonwealth of Pennsylvania. PO)(].12l"2.1 :7UU.am o f , 4, The amount in Controversy exceeds $50.000. exclusive of interest and costs. 5. This action arises out of tonious conduct committed in pan in the Middle District of Pennsylvania. 6. This Coun has jurisdiction over the subject matter of Counts Nine and Ten pursuant to 28 U.S.C. ~ 1331 (federal question) and over all COUnts pursuant to 28 U.S,C. ~ 1332 (diversity of citizenship). Venue in this district is proper pursuant to 28 U.S.C. !i 1391. n. FACTUAL BACKGROUND 7, ESCO is a leading manufacturer of large casting products for the mining, e.xcavalion and forest products industries. 8, Amalloy Corp.. a New Jersey corporation, is the parent corporation of Amsco Cast Products, Inc., a Canadian corporation, Amalloy and Amsco Cast Products, I , , Inc, an: hen:after referred to COllectively as "Amsco." Amsco was for many years the leading supplier of all cast manganese steel large dipper buckets for use in hard rock open-pil mining production. 9, During 1994, ESCO negotiated with Amsco and its bank the acquisition by ESCO or Amsco's all cast manganese steel clipper bucket product line. including dipper buckclS and dipper bucket pans and components (hereinafter the" Amsco dipper bucket product linc"). Pursuant to an agreement dated January 12. 1995. ESCO acquired all assels. propcnies and rights penaining to lhe Amsco dipper bucket product line. including pattcrns and drawings. design infonnation. tools. looling, lemplales and fixtures. gauging. Ilasks. and engineering and operating data. including trade name. trademarks. copyrights, i.ll\J 1:IH: I :1JIlJlun 2 ~. stolcn drawings in intcrstatc commcrcc and dclivcrcd thcm to Frog in Carlisle, Pennsylvania for the unlawful and improper purpose of utilizing the confidential drawings and technology in competition with Amsco or its successors or assigns. 15. Shonly after Olds infonned Amsco that he was leaving without notice to become excavation products manager of a direct competitor, the president of Amsco, Anhur A. Borin. called Olds and reminded him that while he was in the employ of Amsco hc had access to trade secret and confidential business infonnation, that he was under a continuing obligation to maintain the confidentiality of that infonnation, and that he was nlll to use or disclose it to others. including Frog. Olds acknowledged that he possessed r .'\ . \ , , such trade secret and confidential infonnation and that it would be improper for him to use it or disclose it to others. including Frog. In response to a direct question from Burin. Olds falsely stated he had taken no drawings or other documents from Amsco. Thereafter. on November 15, 1994. Amsco notified in writing both Olds and Frog that it would be a breach of Olds' fiduciary duties for him to use or disclose trade secret or confidential infonnation to others, incIuding Frog. 16. Olds and Frog knew that Amsco carefully protected its technology from I f ~1 J ' [I ! I I unauthorizcd usc. For example. in July 1994 Amsco. through Olds. provided Frog ccnain drawings rclating to a new 50+ cubic yard Amsco dippcr buckct so that Amsco could considcr Frog as a potential out-sourcc for manufacturc of its major componc:nl.>. but only providcd thc drawings after Frog signcd a Conlidcntiality Agrccment committing not to use thc drawings for its own purposcs. In addition. on cach Amsco drawing stolen by Olds appcarcd thc following statcmcnt: " '..., 1'1)\) 1:&": I :146J.al17 4 I . 25. Without justification or privilcge to do so. Olds knowingly, intentionally, and wrongfully misappropriated the Amsco trade secrets made available to him with the acknowledged expectation that he would keep such infonnation completely confidential. Without privilege or justification, and with full awareness that he was acting in breach of his fiduciary duties to his fonner employer and its lawful assignee, Olds improperly disclosed the Arnsco trade secrets to Frog, in part for the purpose of hanning ESCO, Arnsco's lawful assignee. 26. Without justification or privilege to do so, Frog knowingly, intentionally, and wrongfully used the Arnsco trade secrets it acquired from Olds, to develop the dipper bucket product line and to compete with ESCO for the Phelps Dodge Contract. At all relevant times, Frog was fully aware that the infonnalion it obtained from Olds had been wrongfully misappropriated and disclosed to Frog in brcach of Olds' fiduciary duties. 27. Alt. by reason of his work as principal design engineer of Amsco's 50+- yard bucket. and by reason of his consulting work for ESCO on the same project, is possessed of unique. technical knowle,dge relating to the dcsign of 50+-yard class of dipper buckets. Unless enjoined. Frog threatens to usc this knowlcdge adversely to ESCO and unfairly to the advantage of Frog. 28. ESCO has suffered substantial damage as a rcsult of the unlawful ~ " > ! misappropriation and use of the Amsco tradc secrets by Frog and Olds. and is threatened with usc by Frog of Alt's unique knowledgc rclating to 50+-yard buckets. ESCO is cntitlcd to an award of compensatory damages against dcfendants Olds and Frog jointly and scvcrally in an amount to be detennined at trial. In addition. because the actions of Frog and Olds were done willfully, knowingly. maliciously, wantonly, and with utter I, 1'(lXlllIB: I ~7.&6la.m 8 I . purpose of hanning ESCO, Amsco's lawful assignee, and in pan for the purpose of advancing thc rival business interests of his new employer, Frog. 32. Without justification or privilege to do so. Frog knowingly, intentionally, and wrongfully used the Amsco confidential business information belonging to ESCO to develop the dipper bucket product line and to compete with ESCO for the Phelps Dodge Comracts. Frog procured the Amsco confidential business information by improper means from Olds. At all relevant times, Frog was fully aware that the information it obtained from Olds had been wrongfully misappropriated and/or disclosed to Frog in bre;lch of Olds' fiduciary duties. 33. ESCO has suffered substantial damage as a result of defendants Olds' and Frog's unlawful misappropriation, disclosure and use of its conlidemial business inromlation, ESCO is entitled to an award of compensatory damages against defendants Ollis and Frog jointly and severally in an amoum to be detemlined at trial. In addition. because the actions of Frog and Olds were done willfully. knowingiy. maliciously, wamonly. and with uller comempt ofESCO's rights--rights or which those defendants were expressly informed--ESCO is emitled to an award or punitil'e damages against those llerendams joimly and severally. 34, Unless enjoined by this Coun, defendams will cominue to use ESCO's conlidemial business information adversely to ESCO's rights, Therefore. this Coun should issue an order enjoining defendams Olds and Frog from using any improperly obtained confidential business information relating to ESCO's dipper bucket product line. WHEREFORE. plaimiffs demand judgmem in ravor of ESCO and against defendams Olds and Frog, and each of them. for compensatory damages in excess of the l'Il\JI:~1~ I ~716HIlJ1 10 ',r, jurisdictional limit of this Court, together with punitive damages in like or greater amount, together with injunctive relief against Olds and Frog as set forth above, together with interest and costs. COUNT THREE (Intentional Interference With Prospective Contractual Relations) 35. The averments of" 1 through 37 arc incorporated herein. 36. ESCO had a prospective contractual relation in the Phelps Dodge Contracts. But for the tortious and unlawful conduct of Olds and Frog, ESCO would have been the successful bidder and would have obtained these profitable contracts, and the replacement parts business for these dippers. 37. In misappropriating and utilizing ESCO's trade secrets and confidential business information by means of which defendants submitted successful bids for the Phelps Dodge Contracts, Frog and Olds acted with the purpose and intent to harm ESCO by preventing ESCO from obtaining the Phelps Dodge Contracts. 38. Neither defendants Frog nor Olds was privileged or justified in misappropriating and using ESCO's trade secret and confidential business information to develop the dipper bucket product line and to submit competing. successful bids for the Phelps Dodge Contracts. 39. As a rcsult of defendants' intentional interference with ESCO's prospective contractual relationship with Phelps Dodge, ESCO has suffered and is entitled to recover compensatory damages in an amount to be determined at trial. In addition, because the actions of Frog and Olds were done willfully, knowingly. maliciously, wantonly. and with PDl().l1lSU.1 21~.o:m II I . SO. Frog's willful and malicious misappropriation of ESCO trade secrets /" i' I -' :, .', r II concerning the dipper bucket product line was in violation of N.M.S.A. ~~ 57-3A-l through 57-3A-7. 51. ESCO has sustained damage as a direct result of defendants' unlawful ,) j ; I ,-1 '.fj I misappropriation and/or use of its trade secret infonnation in New Mexico. ESCO is i ! , I' i , , , , , entitled to an award of damages against defendants Olds and Frog jointly and severally in an amount to be detennined at trial, including ESCO's actual loss of the New Mexico " i I; portion of the Phelps Dodge Contracts caused by defendants' misappropriation, ESCO's lost opportunity for sale of replacement parts, and the unjust enrichment obtained by Frog. In addition, because defendants' conduct in misappropriating ESCO's trade secrets was willful and malicious, ESCO is entitled to an award of reasonable attorneys' fees against defendants Olds and Frog jointly and severally pursuant to N.M.S.A. ~ 57-3A-S, and to an award of exemplary damages against defendants OIds and Frog jointly and severally in the amount of twice its compensatory damages. , I ' \ 1 I ,I 52. Pursuant to N.M.S.A. ~ 57-3A-3, this Court should issue an Order enjoining defendants Olds and Frog from further misappropriation of ESCO's trade secrets and confidential business infonnation relating to the Amsco dipper bucket product line. including further use thereof, or alternatively, enjoining defendants from further misappropriation of ESCO's confidential business infonnation that was the subject of its fonner trade secrets relating to the Amsco dipper bucket product line for a reasonable period of time sufficient to eliminate commercial advantage that otherwise would be derived by defendants from such misappropriation. i' POX}.lllm,1 l1.t6J.am 15 / . WHEREFORE, plaintiffs dcmand judgmcnt in favor of ESCO and against dcfcndants Olds and Frog, and cach of thcm, for compcnsatory damagcs in cxcess of thc jurisdictional limit of this Court, togcthcr with punitivc damagcs in twicc such amount pursuant to statute, together with injunctive relief against thesc defendants as set forth above. together with reasonable attorneys' fees as provided by statute, together with intercst and costs. . COUNT SIX (Violation of Uniform Trade Secrets Act of Minnesota) 53. The averments of" I through 55 are incorporatcd hcrein. 54, Olds' willful and malicious misappropriation of ESCO trade secrets conccrning the Amsco dipper bucket product Iinc was in violation of M.S.A. !i!i 325C.OI through 325C.08. 55. Frog knOWingly. intentionally, and wrongfully uscd ESCO trade secrets it acquircd from Olds to develop a rcplica of the Amsco dipper buckct product line and to compete in Minnesota with ESCO in ihe all cast dipper buckct markct. At all relevant timcs. Frog was fully aware that thc trade secrets it obtained from Olds had been wrongfully misappropriated and disclosed to Frog in breach of Olds' fiduciary duties to its former employer and its assignee. 56, Frog's willful and malicious misappropriation of ESCO trade secrets concerning the dipper bucket product line was in violation of M.S.A. !i!i 325C.OI through 325C,08, l'n~ll~a.H~ I :lUl]UDl 16 , . COUNT SEVEN (Common Law Conversion) 59. The avennents'of" 1 through 61 are incorporated herein. 60. The actions of defendants Olds and Frog as set forth above constitute an unlawful theft and conversion of valuable property and property rights of the plaintiffs. Defendants have and continue to exercise unlawful dominion and control over said property and property rights in a manner antagonistic to the ownership and rights of plaintiffs. 61. The actions of defendants Olds and Frog were wilful and intentional and were intended to deprive plaintiffs of the benefits of their ownership interests. WHEREFORE, plaintiffs demand judgment in favor of ESCO and against defendants Olds and Frog, and each of them, for compensatory damages in excess of the jurisdictional limit of this Court, together with punitive damages in like or greater amount. logether with injunctive relief as set forth above. together with interest and costs. COUNT EIGHT (Civil Conspiracy to Commit Unlawful Acts) 62. The avennents of" 1 through 64 are incorporated herein. 63. Prior to Olds' employment at Frog which commenced on October 17, 1994. defendants Frog and Olds entered into a conspiracy intended to encourage, facilitate and accomplish the theft of valuable property and property rights from plaintiffs. 64, In furtherance of said conspiracy, defendant Olds made misrepresentations 10 Amsco (which were reported to ESCO) as set forth above. and took other overt acts in ..OX J.11I5SlI J7'M<<m 18 " " i,' , , w 71. At the time said acts were committed. defendant Frog knew the acts to be unlawful and it proceeded in spite of such knowledge. 72. The acts as set forth a foresaid. constitute an independent cause of action in ,I ton for civil conspiracy which is actionable at law. 73. By vinue of defendants' actions, plaintiffs have sustained substantial injury and damage as set forth aforesaid. WHEREFORE, plaintiffs demand judgment in favor of ESCO and against defendants Olds and Frog, and each of them, for compensatory damages in excess of the jurisdictional limit of this Coun, together with punitive damages in like or greater amount, together with injunctive relief as set forth above, together with interest and costs. COUNT NINE (False Advenising Under Lanham Act, IS V.S.C. ~ 1125(a) (1988) Against Defendant Frog) 74. The averments of ~~ 1 through 76 are incorporated herein. 75. This Count arises under ~ 43(a) of the Lanham Act, 15 V.S.C. ~ 1125(a) (1988) which prohibits false designation of origin, false or misleading description of fact, or false or misleading representation of fact in commercial advenising or promotion. 76. Shonly after Olds became employed by Frog commencing October 17, 1994. defendant Frog launched a promotional campaign to the market for all cast manganese dipper buckers. This campaign included widespread distribution of a product promotional brochure, publication in an industry trade journal, and verbal and written direct communication to customers. In this campaign. defendant Frog falsely represented POXJ.lllSUI 21~ 20 , , 82. Plaintiffs have been damagcd by dcfendant Frog's actions in an amount to be provcd at trial. 83. Plaintiffs are entitled to recovcr attorneys' fees and costs incurred herein. WHEREFORE, plaintiffs demand judgmcnt in favor of ESCO and against defendant Frog for compensatory damages in excess of thc jurisdictional limit of this Court, together with interest and costs, including reasonable attorneys' fees. WHEREFORE, ESCO Corporation ("ESCO") prays for relief as follows: 1. That ESCO be aw!U'dcd damagcs in an amount to be dctcrmincd at trial, including punitivc damagcs; 2. That dcfcndants be enjoincd from using in any manner pattcrns, drawings, or tcchnology unlawfully obtaincd from Amsco that wcrc purchased by ESCO; 3. i' ! That all pattcrns madc by or for dcfcndants bascd in wholc or in part on drawings misappropriatcd from plaintiffs be dcstroyed; or in thc altcrnative, that i ~ dcfcndants be cnjoined from any use therefore for such period of time as thc Court fmds would have becn required for dcfendants to devclop such pattcrns by lawful means; 4. That plaintiffs be awarded thcir costs (including attorneys' fees) and disbursements incurrcd hercin; and ~ . , i , rox).uu,2.I nU1J..<<Uf 22 " , '"' I , 5. For such other and further relief as the Coun deems equitable. Plainliffs demand trial by jury. STOEL RIVES LLP ,aA-1't W- ifames H. Ellis Scott E. Crawford STOEL RIVES LLP 2300 Standard Insurance Center 900 SW Fifth Avenue Portland, OR 97204-1268 Telephone: (503) 224-3380 RHOADS & SINON R. Stephen Shibla Attorney 1.0. #19258 RHOADS & SINON PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Of Attorneys for Plaintiffs ESCO Corporation and AmalIoy Corp. DATED: September 30, 1996. POXJ.UlJSl.I 1746J..mJ1 23 " I , . CERTIFICATE OF SERVICE '"' I hereby certify that on September 30, 1996, a true and correct copy'of the foregoing Revised Second Amended Complaint was served by United States Mail, first class postage pre-paid, upon the following: David E. Lehman, Esquire Alan R. Boynton, Jr., Esquire Franklin A. Miles, Jr.. Esquire Randolph B. Houston, Esquire McNees, Wallace & Nurick 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 Christopher C. Conner, Esquire Mette, Evans & Woodside 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 " \'I'.n \.. -t' '" .L " \..\ <~ I~.' Cindy L. Lei~el ',' IQ5140