bnsf railway company v. ace property and casualty insurance company underlying complaint

8/7/2019 BNSF RAILWAY COMPANY v. ACE PROPERTY AND CASUALTY INSURANCE COMPANY Underlying Complaint

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Case: 1:10-cv-04230 Document #: 1-2 Filed: 07/08/10 Page 1 of 81 PageID #:12


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Case I :08-cv-06720 Document 1 Filed 11/24/08 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF ILLINOIS

FILED: NOVEMBER 24 , 2008JAMESTODDBUSS, ) 08 CV 6720

) JUDGE HIBBLERPlaintiff, ) MAGISTRATE JUDGE MASONAOvs. ) Cause No :

)BNSF RAILWAY COMPANY ) JURY TRIAL DEMANDEDServe: )CT Corp. System )208 So. Lasalle Suite 814 )Chicago, Ii 60604 )

)Defendant. )COMPLAINT

(Federal Employers Liability Act)COMES NOW Plaintiff, James Todd Buss, by and through his attorneys, Holland,

Groves, Schneller & Stoize, L.L.C., and for his cause of action against the Defendant,Burlington Northern Santa Fe Railway Company (BNSF), states:

1. That the Defendant, BNSF Railway Company is now, and was at all timeshereinafter mentioned, a railway corporation duly organized and existing according to lawto engage in, and was engaged in, business as a common carrier in interstate commerce inthe states of Missouri, Illinois and other states of the Union. That the BNSF RailwayCompany operates its railway throughout the territory comprising the United States DistrictCourt for the Northern District of Illinois.

2. That at al l times hereinafter mentioned, Plaintiff James Todd Buss, wasemployed by Defendant, BNSF Railway Company, as a locomotive engineer in furtherance



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of its interstate commerce.3. That at all times hereinafter mentioned, the Plaintiff and the DefendantBNSF

Railway Company,were employed and engaged in interstate commerce and by reason thereoftheir mutual and respective rights and liabilities were governed by a certain Act ofCongress,known as the Federal Employers Liability Act, 45 U.S.C. Section 5 1-60. That this actionis properly venued in this Court under the FELA, Federal Rules of Civil Procedure and local

rules and that this Court has jurisdiction pursuant to 28 U.S.C. 1331, Federal QuestionJurisdiction.

4. That on or about September 12, 2008, while employed as a Engineer for theBNSF Railway Company, the train Plaintiffwas riding violently collided with another train,after a brakeman threw an incorrect switch and Plainitffwas given an incorrect car count ator near Mendota, Illinois, and Plaintiff, James Todd Buss, sustained serious injuries as aresult thereof.

5. Plaintiff, James Todd Buss, states that his injuries and damages were due inwhole or in part as a result of the negligent acts or omissions of the Defendant in one ormore of the following particulars:

a. Failed to provide Plaintiffwith a reasonably safe place to work; orb. Failed to provide Plaintiffwith reasonably safe equipment; orc. Failed to properly construct and/or design its tracks; ord. Failed to warn of the unsafe condition on its track; or

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e. Failed to provide a crash worthy locomotive; orf. Failed to warn Plaintiff of dangers known to Defendant or that with

reasonable inspection, should have been known to defendant; org. Failed to provide reasonably safe conditions for work; orh. Failed to heed the warnings of its employees regarding the track

conditions; ori. Failed to properly train Plaintiffs co-workers in a manner that would

provide a safe work environment; orj. Failed to provide reasonably safe methods of work; ork. Failed to follow its own rules and standards for the construction,

design and inspection of its tracks; or1. Failed to follow its own rules and standards for the backing of trains.

6. As a result, in whole or in part, of the aforementioned conduct of theDefendant, BNSF Railway Company, Plaintiff, James Todd Buss, was caused to suffer thefollowing serious, painful, and permanent injuries, to-wit: Plaintiff was knockedunconscious and suffered injuries to his head, neck, shoulders, back and spine and thebones,joints, discs, nerves, blood vessels, ligaments, and adjacent structures, as well as his internalorgans; Plaintiffwas caused to undergo x-rays and medical treatment and painful tests, andmay in the future be caused to undergo surgery. Plaintiff has suffered and does continue tosuffer from post-concussion syndrome, headaches, and cognitive defects. Plaintiffhas lostthe wages of his employment with Defendant and may in the future lose further such wagesand fringe benefits; Plaintiffhas expended or obligated himselffor necessary and reasonable

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Case 1 :08-cv-06720 Document I Filed 11/24/08 Page 4 of 4

medical expenses and hospital care and will in the future be caused to expend further suchsums. Plaintiffhas suffered pain and suffering and will in the future have pain and sufferingas a result ofDefendants negligence. Plaintiffs abilityto work, labor, and enjoythe normalpursuits of life has been impaired and lessened all to Plaintiffs damage.

WHEREFORE, Plaintiff, James Todd Buss, prays for Judgment against theDefendant, BNSF RailwayCompany, for a sum fair and reasonable under the circumstancesin excess of Five Million Dollars ($5,000,000.00), together with his costs herein expended.

Holland, Groves, Schneller & Stolze, L.L.C.Is! Eric D. Holland

Eric D. Holland #06207110Steven J. Stoize #6203254Gerard B. Schneller #06205863Steven L. Groves #6211737300 N. Tucker, Suite 801St. Louis, MO 63101(314) 241-8111(314)241-5554 FaxEmail: stevenstolze(ZIsbcg1oba1.netEmail: gschneller(a11fe1a.comEmail: eholland(allfe1a.comAttorneys for Plaintiff

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Case 1:08-cv-06720 Document 6 Filed 12/31/2008 Page 1 of 6

iN THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTR ICT OF ILL INOIS

JAMES TODD BUSS , ))Plaintiff, ) Cause No: 08 CV 6720)vs. ) Judge Hibbler)BNSF RAILWAY COM PANY ) Magistrate Judge Mason)De fendant. )

ANSWER TO COMPLAINTBNSF Rai lway Company (BNSF) , by its attorneys, Raymond H. Grob le III,

William J. McFadden and Daley Mohan Grob le, P.C., for its Answer to PlaintiffsComplaint, sta tes as follows :

1. That the Defendant, BNSF R ailwa y Company is now, and was at all timeshereinafter mentioned , a railway co rporat ion duly organized and ex isting according tolaw to engage in, and was engaged in, business as a common carrier in in ters tat ecommerce in the state s of Missouri, Ill ino is and other sta tes of the Un ion. Tha t BNSFRai lway Company operates its railway throughout the territory compromising the UnitedStates District Court of the Northern District of Ill inois.

ANSWER: BNSF Railway Compan y admits the al lega tio ns contained inParag raph 1 of Plaintiffs Complaint .

2. That at all tim es hereinafter mentioned, Plain tiff, James Todd Buss, wasemployed by Defendan t, BNSF Railway Company, as a loc omotive engine er infurthe rance of its interstate commerce.

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ANSWER: BNSF Railway Company admits the allegations contained inParagraph 1 of Plaintiffs Complaint the allegations contained in Paragraph 2 ofPlaintiffs Complaint.

3. That at all times hereinaftermentioned, the Plaintiff and the DefendantBNSF Railway Company, were employed and engaged in interstate commerce and byreason thereof their mutual and respective rights and liabilities were governed by acertain Ac t of Congress, known as the Federal Employers Liability Act, 45 U.S.C.Section 5l-60. That this action is properly venued in this Court under the FELA, FederalRules of Civil Procedure and local rules.

ANSWER: BNSF Railway Company admits that this action is governed by th eFederal Employers Liability Act, that this Court has jurisdiction pursuant to 28 U.S.C. 1331, and that this matter is properly venued in this Court. BNSF Railway Companydenies the remaining allegations contained in Paragraph 3 of Plaintiffs Complaint.

4. That on or about September 12, 2008, while employed as a Engineer fort he BNSF Railway Company, the train Plaintiffwas riding violently collided withanother train, after a brakeman threw an incorrect switch and Plaintiffwas given anincorrect car count at or near Mendota , Illinois, and Plaintiff , James Todd Buss, sustainedserious injuries as a result thereof.

ANSWER: BNSF Railway Company admits that Plaintiffwas employed by itas an Engineer on September 12, 2008, and that Plaintiffs train came into contact with astanding cut of cars during a switching move. Defendant denies the remainingallegations contained in Paragraph 4 of Plaintiffs Complaint.

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5. Plaintiff, James Todd Buss, states that his injuries and dam ages were duein whole or in part as a result of the neg ligent acts or omiss ions of the Defendan t in oneor more of the following particulars:

a. Fai led to pro vide Plaintiff with a reasonably safe place to work; orb. Fa iled to provid e Plaintiff with reasonably safe equipment; orc. Faile d to proper ly construct and/or design its tracks; ord. Fa iled to warn of the unsafe condition on its track; ore. Fa ile d to provid e a crash worthy locomotive ; orf. Fai led to warn Plaintiff of dangers known to Defen dant or thatwith reasonable inspection, should have bee n known to defendant; org. Failed to prov ide reas onably safe cond ition s for work ; orh. Fai led to heed the warnings of its employee s rega rd ing the trackcondition s; ori. Fai led to proper ly tra in Plainti ff s co -worke rs in a manne r tha twou ld prov ide a safe work env ironmen t; orj. Fa iled to prov ide reasonab ly safe methods of work; ork. failed to follow its own rules and standards for the construction ,des ign and inspection of its tracks; or1. Faile d to fol low its own rules and standards for backin g of trains.

ANSWER: BNSF Railw ay Company denies the allegations con taine d inParagraph 5, includ ing subparagraphs a) th rough 1).

6. As a result, in whole o r in part, of the aforem entioned conduct of theDefendant, BNSF Railway Company, Plaintif f, James Todd Buss , was cau sed to sufferthe following serious , pa infu l, a nd permanent injuries, to-wit: Plaintiffwas knockedunconscious and suffered in jurie s to his head, neck, shoulders, back and spine and the

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Case 1:08-cv-06720 Document 6 FHed 12/31/2008 Page 4 of 6

bones, joints, discs, nerves, blood vessels, ligaments, and adjacent structures, as well ashis internal organs; Plaintiff was caused to undergo x-rays and medical treatment andpainful rests, and may in the future be caused to undergo surgery. Plaintiff ha s sufferedand does continue to suffer from post-concussion syndrome, headaches, and cognitivedefects. Plaintiffhas lost the wages of his employment with Defendant and may in thefuture lose further such wages and fringe benefits; Plaintiff has expended or obligatedhimself for necessary and reasonable medical expenses and hospital care and will i n thefuture be caused to expend further such sums. Plaintiff has suffered pain and sufferingand will in the future have paid and suffering as a result of Defendants negligence.Plaintiffs ability to work, labor, and enjoy the normal pursuits of life has been impairedand lessened all to Plaintiffs damage.

ANSWER: BNSF Railway Company denies the allegations contained inParagraph 5.

WHEREFORE, Defendant BNSF Railway Company denies that it is liable toPlaintiff in any amount whatsoever, and demands the entry of a judgment dismissingPlaintiffs Complaint with prejudice, together with an award for all costs incurred in thedefense of this action.

AFFIRMATIVE DEFENSESWithout prejudice to and in addition to its denials of the allegations in PlaintiffsComplaint, for its Affirmative Defenses to Plaintiffs Complaint, BNSF RailwayCompany states as follows:

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Case 1:08-cv-06720 Document 6 Fil ed 12/31/2008 Page 5 of 6

FIRST AFFIRMATIVE DEFENSEAt the tim e and place of the alleged occurrence , the fai lure of plaintiff to exercise

ordinary care for his own safe ty cau sed, in whole or in part, the alleged occurren ce andthe injurie s and damages al leg ed in plaintiffs complain t, if any, in fact were receive d.According ly , if the con duct of plaintiff is no t a complete bar to plaintiffs recovery ofdamages here in, then any damages aw arded to plaintiff be reduced in proportion to thepercentage of plaintiffs con tributory neg ligence .

SECOND AFFIRMATIVE DEFENSEPlaintiffs alleged injuries or cond ition s of ill being pre-existed the occu rrence

al leged in plaintiffs complaint. BNSF Railw ay Company is not liable for any po rtion ofplaintiffs alleged damages which are due to a pre-existing injury or cond ition of illbeing, and plaintiff is no t entitled to recover on his claim to the ex tent tha t plaintiffsdamages are due to a pre-existing injury or pre-existing cond ition of ill be ing .

THIRD AFFIRMATIVE DEFENSEThe fo llow ing were paid to plaintiff, or may be paid to plaintiff, prior to the time

of trial:Railroad retirement benef its pu rsuant to Sec tion 12(o) of the Ra ilroadUnemployment In surance Act and/or advances paid to plaintiffpursuant toagreements for advancement of fund s by the parties hereto.

The to tal amount of any such paymen ts, inclu ding continuing benef its, must be allowedas cre dits agains t the amount of any judgment determined herein in favor of plaintiff.

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Case 1:08-cv-06720 Document 6 Filed 12/31/2008 Page 6 of 6

FOURTH AFFIRMATIVE DEFENSE

Plaintiff has a leg al duty to mitigate his alleged dam ages by returning to work assoon as physically able, or, if no t able to re turn to his prior emp loymen t, by seekingalt erna tiv e employment. Plaintiff has breached his duty by failing to mitigate his all egeddamages, and any recovery must be reduced fo r this failu re to mitigate.

WHEREFORE, Defendant BNSF Railw ay Company requests this Cou rt to denyPlaintiffs claim for damages , or, in the alte rnative, to red uce any damages awa rded toPlaintiff in acco rd with these de fenses .

BNSF RAILWAY COMPANY

By: s/Raymond H. Grob le IIIOne of its Attorneys

DALEY MOHAN GROBLE, P.C.Raymond H. Groble, IIIWilliam J. McFadden55 West Mon roe, Suite 1600Ch icago, Il linois 60603P. (31 2) 422 -9999F. (312) 422-5370Atto rneys for Defendant

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EXHIBIT C

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enforce that provision for any subsequent breach thereof.IN WITNESSWHEREOF, the parties hereto have caused this Agreement to be executed in duplicate the day and year lirsI hereinabove written.

THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANYdo Staubach Global Services5650 N. Riverside Dr., Ste. 101Fort Worth, Texas 76137-2464

Blame BilderbackDirector Development & Acquisition

. ADVANCED DRAINAGE SYSTEMS, INC.1600 Industrial DriveMendota, Illinois 61342

By:

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ATTACHEDTOCONTRACTBETWEEN

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DeclarationsACEUSA Commercial Umbrella

Liability PolicyPRODUCER CODE OFFICE PREVIOUS POLICY NUMBER277935 Chicago G23873187AUDIT FREQUENCY PRODUCER PACNone ARTHUR J GALLAGHER RISK MANAGEMENT SERVICES INC NTANAMED INSURED IS: BUSINESS OF INSURED PIICCompany Plastics pipe 3084Policy Number: XOO G23864034Policy Period: From 04/01/2008 to 04/01/2009

12:0 1 A.M Standard Time at the Address of the Named Insured as stated hereinNAMED INSURED AND ADDRESS COVERAGE IS PROVIDED IN THE COMPANY DESIGNATED BELOWAdvanced Drainage Systems, Inc. ACE Property And Casualty Insurance Company4640 Trueman Blvd.Hiltard, OH 43026

Limits of Insurance$ 25,000,000 Each Occurrence $ 25,000,000 General Aggregate

. $ 25,000,000 Products Completed Operations AggregateSelf Insured Retention $ 50,000

PremiumBasis of Premium: Flat

. $ 405,331 Advance Premium $ 405,331 Annual Minimum Premium$ 19,301 Terrorism Premium included in above

Schedule of Underlying InsuranceThe Schedule is described on form no.: CCIEI5, which forms a part of this Policys Declarations.

Endorsements Attached to and forming a part of this Policy at inception:See attached Schedule of Endorsements

DATE OF ISSUE SIGNATURE OF AUTHORIZED AGENTApril 21, 2008

Copy Certifie TrueAnd Correct By ..

XS-22695 (07/2007) ACE Property & Casualty Insurance Company

DeclarationsCase: 1:10-cv-04230 Document #: 1-2 Filed: 07/08/10 Page 27 of 81 PageID #:38


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ACE USA Commercial UmbrellaLiability Policy

PRODUCER CODE OFFICE PREVIOUS POLICY NUMBER277935 Chicago G23873187AUDIT FREQUENCY PRODUCER PACNone ARTHUR J GALLAGHER RISK MANAGEMENT SERVICES INC NTANAMED INSURED IS: BUSINESS OF INSURED PIICCompany Plastics pipe 3084Policy Number: XOO G23864034Policy Period: From 04/01/2008 to 04/01/2009

12:01 A.M Standard Time at the Address of the Named Insured as stated hereinNAMED INSURED AND ADDRESS COVERAGE IS PROVIDED IN THE COMPANY DESIGNATED BELOWAdvanced Drainage Systems, Inc. ACE Property And Casualty Insurance Company4640 Trueman Blvd.Hillard, OH 43026

Limits of Insurance$ 25,000,000 Each Occurrence $ 25,000,000 General Aggregate

$ 25,000,000 Products Completed Operations AggregateSelf Insured Retention $ 50,000

Prem i urnBasis of Premium: Flat

$ 405,331 Advance Premium $ 405,331 Annual Minimum Premium$ 19,301 Terrorism Premium included in above

Schedule of Underlying InsuranceThe Schedule is described on form no.: CCI E15, which forms a part of this Policys Declarations.

Endorsements Attached to and forming a part of this Policy at inception:See attached Schedule of Endorsements

DATE OF ISSUE SIGNATURE OF AUTHORIZED AGENTApril 21, 2008

XS-22695 (07/2007) ACE Property & Casualty Insurance Company

SCHEDULE OF ENDORSEMENTSCase: 1:10-cv-04230 Document #: 1-2 Filed: 07/08/10 Page 28 of 81 PageID #:39


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Named InsuredAdvanced Drainage Systems, Inc.Policy Symbol Policy Number Policy Period Effective Date of EndorsementXOO G23864034 0410112008 - 04/01/2009 04/0112008Issued By (Name of Insurance Company)ACE Property And Casualty Insurance CompanyXS20835 (08/06) Commercial Umbrella Liability PolicyCC1 K i 1 e (02/06) SignaturesCC1 El 5 Joint Venture Endorsement (Scaled Limits/Scaled Attachment)TRIA11b(0l/08) Disclosure Pursuant To Terrorism Risk Insurance ActXS1V35a (07/04) Ohio Changes -Cancellation, Nonrenewal And State Required ConditionsXS20779 (08/06) Fungi Or Bacteria ExclusionXS20782 (08/06) Cancellation Amendatory EndorsementXS20790 (08/06) Silica, Dust And Particulate Matter ExclusionXS20796 (08/06) Cross Suits ExclusionXS20819 (08/06) Professional Services Liability Exclusion -AbsoluteXS20827 (08/06) Unimpaired Aggregate EndorsementXS20829 (08/06) Absolute Pollution ExclusionXS21 589 (01/07) Foreign Liability Follow Form EndorsementXS23669 (01/08) Cap On Losses From Certified Acts Of TerrorismALL20887 (10/06) ACE Producer Compensation Practices & PoliciesIL P 001 (01/04) U.S. Treasury Departments Office of Foreign Assets Control (OFAC) Advisory Notice To

Policyholders

CC1E15 Pagelofl


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E. Damage to PropertyCase: 1:10-cv-04230 Document #: 1-2 Filed: 07/08/10 Page 34 of 81 PageID #:45


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Property damage to:1. Property you own, rent, or occupy, including any costs or expenses incurred by you, or any other

person, organization or entity, for repair, replacement, enhancement, restoration or maintenance ofsuch property for any reason, including prevention of injury to a person or damage to anothersproperty;

2. Premises you sell, give away or abandon, if the property damage arises out of any part of thosepremises;

3. Property loaned to you;4. Personal property in the care, custody or control of the insured;5. That particular part of real property on which you or any contractors or subcontractors working directlyor indirectly on your behalf are performing operations, if the property damage arises out of those

operations; or6. That particular part of any property that must be restored, repaired or replaced because your work

was incorrectly performed on it.Paragraphs 1, 3 and 4 of this exclusion do not apply to property damage (other than damage by fire) topremises, including the contents of such premises, rented to you for a period of seven (7) or fewerconsecutive days.Paragraph 2 of this exclusion does not apply if the premises are your work and were never occupied,rented or held for rental by you.Paragraphs 3, 4, 5 and 6 of this exclusion do not apply to liability assumed under a sidetrack agreement.Paragraph 6 of this exclusion does not apply to property damage included in the products-completedoperations hazard.

F. Damage to Your ProductProperty damage to your product arising out of it or any part of it.G. Damage to Your WorkProperty damage to your work arising out of it or any part of it and included in the products-completedoperations hazard.This exclusion does not apply if the damaged work or the work out of which the damage arises wasperformed on your behalf by a subcontractor.H. Electronic Cha t Rooms or Bulletin BoardsPersonal and advertising injury arising out of an electronic chat room or bulletin board the insured hosts,owns, or over which the insured exercises control.I. Employers LiabilityBodily injury to:1. An employee of the insured arising out of and in the course of:

a. Employment by the insured; orb. Performing duties related to the conduct of the insureds business; or

2. The spouse, child, parent, brother or sister of that employee as a consequence of Paragraph 1above.This exclusion applies:

1. Whether the insured may be liable as an employer or in any other capacity; and

XS-20835 (08/06) Page 6 of 19


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if such product, work, or property is withdrawn or recalled from the market or from use by any person ororganization because of a known or suspected defect, deficiency, inadequacy or dangerous condition init.



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T. Trade or Economic SanctionsTo the extent that trade or economic sanctions or other laws or regulations prohibit us from providinginsurance, including, but not limited to, the payment of claims.

U. Unauthorized Use of Anothers Name or ProductPersonal and advertising injury arising out of the unauthorized use of anothers name or product in youre-mail address, domain name or meta-tag, or any other similar tactics to mislead anothers potentialcustomers.

V. Unsolicited CommunicationsBodily injury, property damage or personal and advertising injury arising out any form ofcommunication, including but not limited to facsimile, electronic mail, posted mail or telephone, in whichthe recipient has not specifically requested the communication. This exclusion also applies tocommunications which are made or allegedly made in violation of the:

1. Telephone Consumer Protection Act (TCPA) including anyAmendment of or addition to such law; or

2. The CAN-SPAM Act of 2003, including any amendment ofOr addition to such law; or

3. Any statute, ordinance or regulation, other than the TCPAOr CAN-SPAM Ac t of 2003, which prohibits or limits the sending, transmitting, communicatingor distribution of material or information.

W. WarBodily injury, property damage or personal and advertising injury, however caused, arising, directly orindirectly, as a result of or in connection with war, whether declared or not, or any act or condition incident towar. War includes civil war, insurrection, civil commotion, rebellion or revolution.

VI. CONDITIONSA. Appeals

In the event you or any underlying insurer elects not to appeal a judgment in excess of the amount of theunderlying insurance or other insurance, we may elect to appeal. If we elect to appeal, we will beliable for,in addition to the applicable Limits of Insurance of this policy, all court costs, expenses incurredand intereston that amount of any judgment that does not exceed the applicable L im it s o f Insuranceshown in theDeclarations related to such an appeal, subject to the limitations set forth in Section III -Defense And Supplementary Payments.

B. Assignment of Your Rights and DutiesYour rights and duties under this policy may not be transferred, except by an endorsement to this policyissued by us. If you die or are legally declared bankrupt, then your rights and duties will be transferred toyour legal representative, but only while acting within the scope of duties as your legal representative.Until your legal representative is appointed, anyone having temporary custody of your property will haveyour rights and duties, but only with respect to that property.

XS-20835 (08/06) Page 12 of 19


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X. Temporary worker means a person who is furnished to you to substitute for a permanent employee onleave or to meet seasonal or short-term workload conditions.

Y. Underlying insurance means the policy or policies of insurance listed in the Schedule of Underlying



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Insurance attached to and forming a part of this policy.Z. Volunteer worker means a person who is not your employee, and who donates his or her work and

acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary orother compensation by you or anyone else for their work performed for you.

AA. Your product:1. Means:

a. Any goods or products, other than real property, manufactured, sold, handled, distributed ordisposed of 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 furnished in connection withsuch goods or products.

2. Includes:a. Warranties or representations made at any time with respect to the fitness, quality, durability,

performance or use of your product; andb. The providing of or failure to provide warnings or instructions.

3. Does not include vending machines or other property rented to or located for the use of others but notsold.

BB. Your work:1. 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 operations2. Includes:

a. Warranties or representations made at any time with respect to the fitness, quality, durability,performance or use of your work, and

b. The providing of or failure to provide warnings or instructions.

XS-20835 (08/06) Page 19 of 19

SIGNATURESNamed Insured Endorsement NumberAdvanced Drainage Systems, Inc. 1



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THE ONLY SIGNATURES APPLICABLE TO THIS POLICY ARE THOSE REPRESENTING THE COMPANY NAMED ONTHE FIRST PAGE OF THE DECLARATIONS.

By signing and delivering the policy to you, we state that it is a valid contract.INDEMNITY INSURANCE COMPANY OF NORTH AMERICA

436 Walnut Street, P.O. Box 1000, Philadelphia, Pennsylvania 19106BANKERS STANDARD FIRE AND MARINE COMPANY

436 Walnut Street, P.O. Box 1000, Philadelphia, Pennsylvania 19106BANKERS STANDARD INSURANCE COMPANY436 Walnut Street, P.O. Box 1000, Philadelphia, Pennsylvania 19106

ACE INDEMNITY INSURANCE COMPANY436 Walnut Street, P.O. Box 1000, Philadelphia, Pennsylvania 19106

ACE AMERICAN INSURANCE COMPANY436 Walnut Street, P.O. Box 1000, Philadelphia, Pennsylvania 19106

ACE PROPERTY AND CASUALTY INSURANCE COMPANY436 Walnut Street, P.O. Box 1000, Philadelphia, Pennsylvania 19106

INSURANCE COMPANY OF NORTH AMERICA436 Walnut Street, P.O. Box 1000, Philadelphia, Pennsylvania 19106

PACIFIC EMPLOYERS INSURANCE COMPANY436 Walnut Street, P.O. Box 1000, Philadelphia, Pennsylvania 19106

ACE FIRE UNDERWRITERS INSURANCE COMPANY436 Walnut Street, P.O. Box 1000, Philadelphia, Pennsylvania 19106

ZGEEIGAN,Secretary

WESTCHESTER FIRE INSURANCE COMPANY1325 Avenue of the Americas, 19th Floor, New York, NY 10019

GELIGAN, Secretary hWDENNIS A. CROSBY, JR., President

Policy Symbol Policy Number Policy Period Effective Date of EndorsementXOO G23864034 0410112008 - 0410112009 04I01I2008Issued By (Name of Insurance Company)ACE Property And Casualty Insurance Company

JOHN J. LUPICA. President

CC-lKlle (02/06) Ptd. in U.S.A.Authorized Agent


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g. A determination by the Superintendent of Insurance that the continuation of the policy would create acondition that would be hazardous to the policyholders or the public.

3. We will mail written notice of cancellation to the first Named Insured, and agent if any, at the last mailingmailing will sufficient proof of notice.



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addresses known to us. Proof of be4. We will mail the notice of cancellation at least:

a. 10 days before the effective date of cancellation, if we cancel for nonpayment of premium; orb. 30 days before the effective date of cancellation, if we cancel for a reason stated in 2.b. through 2.g.

above.5. The notice of cancellation will:a. State the effective date of cancellation. The policy period will end on that date.b. Contain the date of the not ice and the policy number, and will state the reason for cancellation.

6. Policies written for a term of more than one year or on a continuous basis may be cancelled by us for anyreason at an anniversary date, upon 30 days written notice of cancellation.

7. If this policy is cancelled, we will send the first Named Insured any premium refund due. If we cancel, therefund will be pro rata. If the first Named Insured cancels, the refund may be less than pro rata. Thecancellation will be effective even if we have not made or offered a refund.

C. The following is added to the Common Policy Conditions and supersedes any provisions to the contrary:NONRENEWAL1. If we elect not to renew this policy, we will mail written notice of nonrenewal to the first Named Insured, and

agent if any, at the last mailing addresses known to us. The notice will contain the date of the notice and thepolicy number, and will state the expiration date of the policy.

2. We will mail the notice of nonrenewal at least 30 days before the expiration date of the policy.3. Proof of mailing will be sufficient proof of notice.

Authorized Agent

XS-1 V35a (07/04) Reprinted with permission of Insurance Services Office Page 2 of 2

FUNGI OR BACTERIA EXCLUSIONNamed Insured Endorsement Number



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Advanced Drainage Systems, Inc. 5Policy Symbol Policy Number Policy Period Effective Date of EndorsementXOO G23864034 04/01/2008 - 04/01/2009 04101/2008Issued By (Name of Insurance Company)ACE Property And Casualty Insurance Company

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.This endorsement modifies insurance provided under the following:

COMMERCIAL UMBRELLA LIABILITY POLICY

This insurance does not apply to bodily injury, property damage or personal and advertising injury arising out of orin any way related to the actual, alleged or threatened inhalation of, ingestion of, contact with, exposure to, existenceof, or presence of, any fungi or bacteria, regardless of whether any other cause, event, mat er ia l o r p ro du ct contributedconcurrently or in any sequence to bodily injury, property damage or personal and advertising injury.Fungi means any type or form of fungus, mold, mildew, mycotoxins, spores, or scents or by-products produced orreleased by fungi, but does not include any fungi intended by the insured for human consumption.All other terms and conditions of the policy remain unchanged.

Authorized AgentXS-20779 (08/06) Page 1 of 1

CANCELLATION AMENDATORY ENDORSEMENT

Named Insured Endorsement NumberAdvanced Drainage Systems, Inc. 6



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Policy Symbol Policy Number Policy Period Effective Date of EndorsementXOO G23864034 04101/2008 - 04101/2009 04/0112008Issued By (Name of Insurance Company)ACE Property And Casualty Insurance Company



Parts 1., 2., 5 and 6. of Condition D of Section VI CONDITIONS are deleted and replaced by the following:

1. This policy may be cancelled by you by mailing to us written notice stating when such cancellation shall beeffective.2. This policy may be cancelled by us by mailing to you at your last known address, written notice stating when,not less than ninety (90) days thereafter, ten (10) days if cancellation is for non-payment of any unpaid portion of thepremium, such cancellation shall be effective. The mailing of notice shall be sufficient proof of notice. The effectivedate and hour of cancellation stated in the notice shall be the end of the policy period. Under no circumstance willour notice of cancellation to you be less than the minimum required by State law or regulation.5. If you cancel, earned premiums shall be computed in accordance with the applicable short rate table orprocedure. If we cancel, earned premium shall be computed pro-rata.6. Premium adjustment may be made at the time cancellation becomes effective, our check or the check of ourrepresentative mailed to you shall be sufficient proof of any refund or premium due you.

All other terms and conditions of the policy remain unchanged.

Authorized Agent

XS-20782 (08/06) Page 1 of 1

SILICA, DUST AND PARTICULATE MATTER EXCLUSIONNamed Insured Endorsement NumberAdvanced Drainage Systems, Inc. 7



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Policy Symbol Policy Number Policy Period Effective Date of EndorsementXOO G23864034 04101/2008 - 04/0112009 04/01/2008Issued By (Name of Insurance Company)ACE Property And Casualty Insurance Company



This insurance does not apply t o bodi ly injury, property damage or personal and advertising injury arising outof, resulting from, or in any way related to, in whole or in part, the respiration, inspiration, inhalation or breathing inof dust or particulate matter. Dust or particulate matter may include, but is not limited to: dust, particulate matter,inspirable dust, respirable dust, smoke, mist, dirt, fibers, grit, soot, salt, acids, bases, metals, aerosols, crystals,minerals, sand, silicates, or silica.The addition of this endorsement does not imply that other policy provisions, including but not limited to anypollution exclusion or asbestos exclusion, do not also exclude coverage for dust or particulate matter relatedbodily injury, property damage or personal and advertising injury.All other terms and conditions of the policy remain unchanged.

Authorized AgentXS-20790 (08/06) Reprinted in part, with permission of ISO Properties, Inc., 2001 Page 1 of 1

CROSS SUITS EXCLUSION

Named Insured Endorsement NumberAdvanced Drainage Systems, Inc. 8Policy Symbol Policy Number Policy Period Effective Date of Endorsement



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XOO G23864034 0410112008 -04101/2009 0410112008Issued By (Name of Insurance Company)ACE Property And Casualty Insurance Company



This insurance does not apply to any bodily injury, property damage or personal and advertising injury arisingout of any claim or suit by one Named Insured against another Named Insured.All other terms and conditions of the policy remain unchanged.


PROFESSIONAL SERVICES LIABILITY EXCLUSION -ABSOLUTENamed Insured Endorsement NumberAdvanced Drainage Systems, Inc. 9potcy Symbol Policy Number Policy Period Effective Date of Endorsement



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XOO G23864034 0410112008 - 04101/2009 04101/2008Issued By (Name of Insurance Company)ACE Property An d Casualty Insurance Company


COMMERCIAL UMBRELLA LIABILITY POLICYThis insurance does not apply to any bodily injury, property damage or personal and advertising injury arisingout of the providing of or failing to provide any services of a professional nature.All other terms and conditions of the policy remain unchanged.

Authorized AgentXS20819 (08/06) Page 1 of 1

UNIMPAIRED AGGREGATE ENDORSEMENT




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XOO G23864034 04/0112008 - 04101/2009 04/0112008Issued By (Name of Insurance Company)ACE Property And Casualty Insurance Company



The Limit s o f Insurance of this policy shall not apply in excess of any reduced or exhausted underlying aggregatelimit of liability to the extent that such reduction or exhaustion is the result of any injury, damage, expense, cost,loss, liability or legal obligation which is not covered by this policy.All other terms and conditions of the policy remain unchanged.


ABSOLUTE POLLUTION EXCLUSION




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XOO G23864034 0410112008 - 04101/2009 04/01/2008Issued By (Name of Insurance Company)ACE Property And Casualty Insurance Company



Exclusion R. of Section V EXCLUSIONS is deleted and replaced by the following:

This insurance does not apply to any injury, damage, expense, cost, loss , l iabil ity or legal obligation arising outof or in any way related to pollution, however caused.Pollution includes the actual, alleged or potential presence in or introduction into the environment of anysubstance, if such substance has or is alleged to have the effect of making the environment impure, harmful, ordangerous. Environment includes any air, land, structure or the air therein, watercourse or water, includingunderground water.All other terms and conditions of the policy remain unchanged.


FOREIGN LIABILITY FOLLOW FORM ENDORSEMENTNamed Insured Endorsement NumberAdvanced Drainage Systems, Inc. 12Policy Symbol Policy Number Policy Period Effective Date of Endorsement



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XOO G23864034 04/0112008 - 04101/2009 04101/2008Issued By (Name of Insurance Company)ACE Property And Casualty Insurance Company


COMMERCIAL UMBRELLA LIABILITY POLICYThis insurance does not apply to bodily injury, property damage or personal and advertising injury that occursoutside the United States of America, its territories and possessions, Puerto Rico and Canada.Definition D. (Coverage Territory) is amended to exclude anywhere except the United States of America, itsterritories and possessions, Puerto Rico and Canada.However, if insurance for such bodily injury, property damage or personal and advertising injury is providedby a policy listed in the scheduled underlying insurance:

1) This exclusion and amendment of the Coverage Territory shall not apply; and2) Coverage under this policy for such bodily injury, property damage, or personal and advertising injury

will follow the terms, definitions, conditions and exclusions of scheduled underlying insurance, subject tothe policy period, limits of insurance, premium and all other terms, definitions, conditions and exclusionsof this policy. Coverage provided by this policy will be no broader than the coverage provided byscheduled underlying insurance.

Notwithstanding I and 2 above, this insurance does not apply to loss, injury, damage claim or suit, arisingdirectly or indirectly as a result of or in connection with terrorism that occurs in the following countries:

Afghanistan, Albania, Algeria, Angola, Armenia, Azerbaijan, Bahrain, Bosnia & Herzegovina, Burundi,Cambodia, Central African Republic, Colombia, Cote dlvoire, Cuba, Democratic Republic of Congo,Egypt, Ethiopia, Federal Republic of Yugoslavia, Georgia, Guinea-Bissau, Haiti, India, Indonesia, Iran,Iraq, Israel, Jordan, Kosovo, Kuwait, Kyrgyz Republic, Lebanon, Liberia, Libya, Macedonia, Nigeria, NorthKorea, Northern Ireland, Oman, Pakistan, Peru, Philippines, Qatar, Rwanda, Saudi Arabia, Serbia, SierraLeone, Somalia, Sri Lanka, Sudan, Syria, Tajikistan, Turkey, Uganda, United Arab Emirates, Uzbekistan,Venezuela, West Bank and Gaza, Yemen, Zaire, Zimbabwe.

All other terms and conditions of this policy remain unchanged.

Authorized Agent

XS-21589 (01/07)



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ACE Producer CompensationPractices & Policies

ACE believes that policyholders should have access to information about ACEs practices and policies related tothe payment of compensation to brokers and independent agents. You can obtain that information by accessingour website at http://www.aceproducercompensation.com or by calling the following toll-free telephone number:1-866-512-2862.

ALL-20887 (10/06)

ACE USA SPECIA LTY CLAIM SFORWARD BY FAX, MAIL OR E-MAILTO:

LOSS NOTIF ICATIO N FORM ACE USA Specialty Claims140 Broadway, 40th FloorNew York, NY 10005Fax No.: (646) 458 - 5933



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Today s Date: 21 April 2008 CasuaItyRiskExcessFirstNoticeace-jna.com

Notice of: (check all that apply)El First-Party Claim LI Potential ClaimLI Third-Party Claim LI Litigation initiatedLI Other_______________Insureds Name & Contact InformationCompany Name: Advanced Drainage Systems, Inc. Point of Contact:Address 4640 Trueman Blvd.Hillard, OH 43026Phone Number:BrokerlAgents Name & Contact InformationCompany Name: ARTHUR J GALLAGHER RISK Point of Contact: Ronald LiszkaMANAGEMENT SERVICES INCAdd M-K FERGUSON PLAZAress. 1500W THIRD STREET SUITE 405CLEVELAND, OH 44113Phone Number:Policy InformationPolicy Number: XOO G23864034 Policy Period: 04/01/2008 - 04/01/2009Limits of Liability: 25,000,000 per 25,000,000 agg Self-Insured Retention/Deductible: 50,000.00Loss InformationDate of Incident/Claim: Location:Claimant Name/Address:Description of Loss:

Please list all attached or encosed documentation: E (check if none provided)

Name of Person Completing This Form: Signature:Form Version: May 2007

IL P 001 01 04U.S. TREASURY DEPARTMENTS OFFICE OF FOREIGNASSETS CONTROL (OFAC)



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ADVISORY NOTICE TO POLICYHOLDERSNo coverage is provided by this Policyholder Notice nor can it be construed to replace any provisions of your poiicy. You should read your policy and review your Declarations page for complete information on the coverages youare provided.This Notice provides information concerning possible impact on your insurance coverage due to directives issuedby OFAC. Please read this Notice carefully.The Office of Foreign Assets Control (OFAC) administers and enforces sanctions policy, based on Presidentialdeclarations of national emergency. OFAC has identified and listed numerous:

Foreign agents; Front organizations; Terrorists; Terrorist organizations; and Narcotics traffickers;

as Specially Designated Nationals and Blocked Persons. This list can be located on the United States Treasurysweb site http//www.treas.gov/ofac.In accordance with OFAC regulations, if it is determined that you or any other insured, or any person or entityclaiming the benefits of this insurance has violated U.S. sanctions law or is a Specially Designated National andBlocked Person, as identified by OFAC, this insurance will be considered a blocked or frozen contract and allprovisions of this insurance are immediately subject to OFAC. When an insurance policy is considered to be sucha blocked or frozen contract, no payments nor premium refunds may be made without authorization from OFAC.Other limitations on the premiums and payments also apply.

IL P 001 01 04 ISO Properties, Inc., 2004 Page 1 of I

AMENDATORY ENDORSEMENTNamed Insured Endorsement Number



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Advanced Drainage Systems, Inc. 14Policy Symbol Policy Number Policy Period Effective Date of EndorsementXOO G23864034 04101120080410112009 0410112008Issued By (Name of Insurance Company)ACE Property And Casualty Insurance Company

THIS ENDORSEMENT CHANGES TH E POLICY. PLEASE READ IT CAREFULLY.This endorsement modifies insurance provided under the following:


It is understood and agreed that this policy is amended per the following: Revised Schedule of Underlying Endorsement 15 Non-Concurrency Endorsement

All other terms and conditions of this policy remain unchanged.

Authorized Agent

CC1E15

NON-CONCURRENCY ENDORSEMENT(Does not Recognize Non-Concurrency)




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XOO G23864034 04/01/2008 04/01/2009 04/01/2008Issued By (Name of Insurance Company)ACE Property And Casualty Insurance Company



Whenever the policy period of any scheduled underlying insurance is non-concurrent with the policy period ofthis policy, notwithstanding anything contained in this policy to the contrary, it is hereby understood and agreedthat:

1. there shall be no liability under this policy for any occurrence which commenced or first took place priorto the inception date of this policy: and

2. the Limits of Insurance under the schedule of underlying insurance shall not be deemed eroded orexhausted by any payments for occurrences which commenced or first took place prior to the inceptiondate of this policy, and shall be deemed reduced or exhausted only by payment of covered losses orexpenses in connection with occurrences which occur solely during the period of this policy; and

3. wherever reference is made herein to the schedule of underlying insurance the words including anyrenewal thereof shall be deemed to be appended immediately thereafter.

Policy period means the period stated in the declarations of this policy.All other terms and conditions of this policy remain unchanged.


SCHEDULE OF UNDERLYING INSURANCE

Named InsuredAdvanced Drainage Systems, Inc.Policy Symbol Policy Number Policy Period Effective Date of Endorsement



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XOO G23864034 4/1/2008 to 4/01/2009 4/1/2008Issued By (Name of Insurance Company)ACE Property and Casualty Insurance Company

General LiabilityCompany: TravelersPolicy Period: 4/1/2008 to 4/1/2009 $1,000,000 Each Occurrence

$6,000,000 General Aggregate$2,000,000 Products & CompletedOperations Aggregate

Automobile LiabilityCompany: TravelersPolicy Period: 4/1/2008 to 4/1/2009 $5,000,000 Each Accident (CSL)

Employers LiabilityCompany: TravelersPolicy Period: 4/1/2008 to 4/1/2009 $1,000,000 Each Accident$1,000,000 Disease Policy Limit

$1,000,000 Disease EachEmployee

Aircraft LiabilityCompany: Global AerospacePolicy Period: 4/1/2008 to 4/1/2009 $200,000,000 Each Occurrence

Employers Liability (Canada)Company: TravelersPolicy Period: 4/1/2008 to 4/1/2009 $1,000,000 Each Accident$1,000,000 Disease Policy Limit$1,000,000 Disease EachEmployee

CC1E15 Page 1 of2

Automobile Liability (Canada)Company: TravelersPolicy Period: 4/1/2008 to 4/1/2009 $5,000,000 Each Accident (CSL)



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Automobile Liability (Puerto Rico)Company: Real Legacy AssurancePolicy Period: 12/23/2008 to 12/23/2009 $1,000,000 Each Accident (CSL)

General Liability (Foreign)Company: ACEPolicy Period: 4/1/2008 to 4/1/2009 $1,000,000 Each Occurrence

$2,000,000 General Aggregate

Employee Benefits Liability (Foreign)Company: ACEPolicy Period: 4/1/2008 to 4/1/2009 $1,000,000 Each Occurrence$1,000,000 Aggregate

Automobile Liability (Foreign)Company: ACEPolicy Period: 4/1/2008 to 4/1/2009 $1,000,000 Each Accident (CSL)

In ally jurisdiction, state, or province where the amount of Employers Liability insurance provided by the UnderlyingInsurer(s) is by law Unlimited, the underlying Employers Liability limit(s) shown in the above schedule do not apply and nocoverage shall be provided for Employers Liability under this policy.

CC1EI5 Page2of2



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EXHIBIT E



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Raymond H. Groble III Direct: [email protected]

September 28, 2009CERTIFIED MAIL - RETURN RECEIPT REQUESTEDAdvanced Drainage Systems, Inc.1600 Industrial DriveMendota, Illinois 61342

Re: Buss v. BNSF Railway CompanyDear Sir/Madam:

This firm represents BNSF Railway Company (BNSF) in connection with a claimbrought by James Todd Buss for injuries received when he was placing railcars on the industrytracks at Advanced Drainage Systems. Inc. (ADS). A copy of the complaint filed in thismatter is attached.At the time of this accident Mr. Buss was on ADS track pursuant to an Industry TrackAgreement dated January 7, 2003 (the Agreement). That Agreement provides, in relevant part,that ADS will indemnify, defend and hold harmless BNSF from all claims of any kind or naturearising from this Agreement. See Par. 10 (a)(i). Mr. Buss claim arises from the Agreement inthat BNSF was operating over the industry track to provide service to ADS pursuant to theAgreement. Accordingly, we hereby demand that you defend, indemnify and hold harmlessBNSF in the suit filed by Mr. Buss.Additionally, Paragraph 11 of the Agreement requires ADS to obtain and maintain bothCommercial General Liability Insurance and Workers Compensation Insurance naming BNSF asan additional insured. This insurance is to provide BNSF, in part, with coverage for claimsunder the Federal Employers Liability Act. Mr. Buss claim is brought under the FederalEmployers Liability Act, and should be covered by ADS insurance. Please provide us with acopy of all insurance policies maintained by ADS pursuant to the Agreement.We look forward to receiving your prompt response.

Sincerely,

Raymond H. Groble IIIEnclosures



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EXHIBIT F

Julie A. StolteClaim DepartmentTRAVELERS Nape rve, IL 60563(630) 961-8679(866) 206-7948 (fax)

November 9, 2009



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Mr. Raymond Groble, ifi VIA E-MAILDaley Mohan Groble55 West Monroe, Suite 1600Chicago, IL 60603

RE: Insu red: Advanced Drainage Systems, Inc.Claimant: James Todd BussDate of Lo ss: 9/12/08Our File #: EGE9461

Dear Mr. Groble:This letter shall serve as follow-up to our October 3, 2009 correspondence wherein we hadacknowledged BNSF Railway Companys tender of defense in the James To dd Bus s vs. BNS FRailway Com pany matter which is current pending in the United States District Court of theNorthern District of illinois under Cause No. 08 CV 6720.Mr. Bus s alleges in his Complaint that while working as an Engineer fo r BNSF Railway Company(BNSF) on September 12, 2008 , he sustained severe injuries when the train he was riding onviolently collided with another train after a brakeman threw an incorrect sw itch . The plaintiffclaims that BNSF failed to do the following: provide him with reasonably safe equipment andconditions at work; properly construction and/or design its tracks and warn him of their unsafecondition; provide a crash worthy locomotive; warn him of the danger known to BNSF or that withreasonable inspection, should have been known to BNSF; heed the warnings of its employeesregarding the track conditions; properly train his co-workers in a manner that would provide a safework environment; provide reasonably saf e methods of work; follow its own rules an d s tandar ds f orthe construction, design and inspection of its tracks or follow its own rules and standards fo r thebacking of trains.Travelers Property Casualty Company of America (Travelers) issued a Commercial GeneralLiability insurance policy to Advanced Drainage Systems, Inc. under policy number TC2JGLSA-281K728A which was in effect during the policy period of April 1, 2008 through April 1, 2009 .We have carefully reviewed the plaintiffs allegations, Advanced Drainage Sy stem s policy and theIndustry Track Agreement which BNSF entered into with Advanced Drainage Systems and havedetermined that additional insured coverage is not afforded to BNSF for this matter. We have,however, concluded that contractual liability insurance coverage is afforded for BNSF. As such , wewill participate in BNSFs defense subject to the conditions and reservation of rights set forthbelow.

Mr. Raymond Groble, ifiNovember 9, 2009Page 2

Advanced Drainage Systems polic y provide s in pertinent part the fo llowing:SECTION I -COVERAGES



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COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY1. Insuring Agreementa. We will pay those sums that the insured become s lega lly ob ligated to pay asdamages because of bodily in jury or prop erty dama ge to whic1i thisinsurance app lies. We will have the rig ht and duty to defend the insuredagainst any suit seeking those damages . However , we w ill have no duty todefend the insu red against any suit seeking damages for bod ily injury orproperty damage to which th is insurance does not apply. We may, at ourdiscretion, investigate any occurrence and settle any claim or sui t thatmay result. But:

(1) Th e amount we will pay for damages is limited as described inSection III Limits Of Ins urance; and(2) Our rig ht and duty to defend ends when we have used up theapplicable lim it of insurance in the paymen t of judgments orsettlements under Coverages A or B or medical expenses underCoverage C.

No other obligation or liability to pay sums or perform acts or services is coveredunless explicitly provided for under Supplementary Payme nts Coverages A and B.b. This insurance appli es to bodily in jury and property dam age only if:(1) The bodily in jury or p roperty dam age is caused by an occurrence thattakes place in the coverage territory ;(2) The bodily injury or property dam age occurs durin g the policy pe riod;and

* * * *

2. ExclusionsThis insurance does not apply to:

* * * *

b. Contractual LiabilityBodily in jury or p roperty damage for whic h the insured is obligated topay damages by reason of the assumption of liability in a contract oragreement. This exclusion does not apply to liab ility for damages:(1) That the insured would have in the absence of the contract oragreement; or(2) Assumed in a contract or agreement that is an insure d contract,provided the bodily injury or proper ty damage occurs subsequentto the execution of the contract or ag reemen t. Solely fo r the pu rposesof liability assumed in an insured contract, reasonable attorney fee sand necessary litigation expenses incurred by or for a party oth er thanan insured are deemed to be damages because of bodily injury orproperty damage, provid ed:

(a) Liability to such par ty for, or for the cost of, that pa rtysdefense has also been assumed in the sam e insured contrac t;and

Mr . Raymond Grob le, ifiNovember 9, 2009Page 3

(b ) Such atto rney fees and litigation expenses are fo r defense of thatpar ty against a civi l or alternative dispute resolution proceeding inwh ich damages to wh ich th is insurance applies are alleged .



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* * * *

d. Workers Compensation And Similar LawsAny ob ligation of the insured under a wo rkers compensation, disabilitybenefits or unemployment compensation law or any similar law.e. Employers LiabilityBodily inju ry to:(1) An employee of the insured arising out of and in the course of:(a) Employment by the insured; or

(b) Performing duties re lated to the conduct of the insuredsbusiness; or(2) The spouse, child, paren t, brother or sister of that employee as aconsequence of Paragraph (1) above .This exclusion applies:(1) Whether the insured may be liable as an employer or in any othercapacity; and(2) To any obligation to share damages with or rep ay someone else whomust pay damages because of the injury.This exclusion does not app ly to liability assumed by the insured under anin sured contra ct.

* * * *

SUPPLEMENTARY PAYMENTS -COVERAGES A AND BWe will pay , with respect to any claim we investigate or settle, or any suitagainst an insu red we defend:a. All expenses we incur.b. Up to $250 for cost of ba il bonds required because of acciden ts ortraffic law violations ar isi ng out of the use of any vehicle to which theBodily Injury Liability Coverage applies. We do not have to furnishthese bonds .c. The cos t of bonds to release attachments, but only for bond amountswith in the applicable lim it of insurance . We do not have to furnishthese bonds.d. All reasonable expenses incurred by the insured at ou r request toassist us in the investigation or defense of the claim or suit ,including actual loss of earnin gs up to $250 a day because of time offfrom work.e. All costs taxed against the insured in the suit.f. Prejudgment interest awarded aga inst the insured on that par t of thejudgment we pay. If we make an offer to pay the app licable limit ofinsurance, we will not pay any prejudgment interest based on thatperiod of time after the offer.

Mr. Raymond Groble , ifiNovember 9, 2009Page 4

g. All interest on the full amount of any judgment that accrues after en tryof the judgment and before we have paid, offered to pay, or depositedin cou rt the part of the judgment tha t is within the applicable lim it ofi



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nsurance .These payments will n ot reduce the lim its of insurance.

2. if we defend an insured agains t a suit and an indemnit ee of the insured isalso named as a par ty to the suit, we will defend that indemnitee if all of thefollowing conditions are m et:a. The suit against the ind emn itee seeks damages for which theinsured has assumed the liab ili ty of the indemnitee in a contract oragreement that is an in sured contract;b. This insurance applies to such liability assumed by the insured;c. The obligation to defend, or the cost of the defense of, thatindemnitee, has also been assumed by the insured in the sameinsured contract;d. The allegations in the suit and the information we know about theoccurrence are such tha t no conflict appears to exist be tween theinterests of the insured and the interests of the ind emnitee;e. The indemnitee and the insu red ask us to conduct and control thedefense of that indemnitee against such suit and agree that we canassign the same counsel to defend the insured and the indemnitee; andf. The indem nite e:

(1) Agrees in writing to:(a) Cooperate wi th us in the investigation , se ttlemen t ordefense of the suit;(b) Immediately send us copies of any demands, no tices,summonses or leg al papers received in connection withthe suit;(c) Notify any other insurer whose coverage is available tothe indemn itee ; and(d) Cooperate wi th us with respect to coordinating otherapplicable insurance available to the indemn itee; and

(2) Provides us with writ ten authorization to:(a) Obtain records and other information related to thesuit; and(b) Conduct and con trol the defense of the indemnitee insuch suit .

So long as the above conditions are me t, a ttorneys fees incurred by usin the defe nse of that ind emnitee, necess ary litigation expensesincurred by us and necessary litigation expenses incurred by theindemnitee at our request will be paid as Supplementary Payments .Notwithstanding the provisions of Paragraph 2.b.(2) of Section I Coverage A Bodily Injury And Property Damage Liability , suchpaymen ts will no t be deemed to be damages for bodily injury andproperty damage and will no t reduce the lim its of insurance .

Mr. Raymo nd Groble, ifiNovember 9, 2009Page 5

Our obligation to defen d an insureds indemnit ee and to pay forattorneys fees and necessary litigation expenses as SupplementaryPayments ends when:



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a. We have used up the applicable limit of insurance in thepayment of judgments or settlements; orb. The conditions set forth above , or the terms of the agreementdescribed in Pa ragraph f. above, are no longer met.

* * * *

SECTION V -DEFINITIONS* * * *

3. Bod ily in jury means bod ily injury, sic kn ess or dise ase sustaine d by ape rson , including death resulting from any of these at any tim e.* * * *

9. Insured contract means:a. A contract for a lease of premises. However, that portion of thecontract for a lease of prem ises that indemnifies any person ororganization for damage by fire to prem ises whi le rented to you ortemporarily occupied by you with permission of the owner is no t aninsured contract;b. A sidetrack agreement;c. Any easement or license agreement, except in connection withconstruction or demo lition operations on or wi thin 50 feet of ara ilroad;d. An obligation, as required by ordinance, to indemn ify a munic ipality,

except in connection with wo rk for a municipality;e. An elevator maintenance ag reement ;f. That part of any other contract or agreement pertaining to you rbusiness (including an indemnification of a municipality inconnection with work pe rformed for a municipality) un der which youassum e the tort liability of another pa rty to pay for bodily injury orproperty damage to a third pe rson or organization. To rt lia bilitymeans a liability tha t would be imposed by law in the absence of anycontract or ag reemen t.

Paragraph f. does no t include tha t part of any contra ct or agreement:(1) That indemnifies a railroad for bodily injury or propertydamage arising out of construction or demolition operations ,within 50 feet of any railroad property and affecting anyrailroad bridge or tre stle, tra cks, road-beds , tunn el, underpassor crossing;(2) That indemnifies an architect, engineer or su rveyor for injuryor damage ar ising out of:

(a) Prepa ring , approving, or fai ling to prepare or approve,maps, shop drawings , op inions, reports, surveys, fieldorders, change orders or drawings and specifications;or


(b) Giving directions or instructions, or failing to givethem, if tha t is the primary cause of the injury ordamage; or



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(3) Under which the insured, if an architect, engineer or su rveyor ,assumes liability for an injury or damage arising ou t of theinsureds rendering or failure to render professional services,including those listed in (2) above and supervisory, inspection,architectural or engineering activities.* * * *

13. Occurrence means an accident, including continuous or repeated exposureto substantially the same general harmful conditions.* * * *

17. Property damage means:a. Physical injury to tangible property, including all resulting los s of useof that property. All such los s of use sh all be deemed to occur at thetime of the physical injury that caused it; orb. Loss of use of tangible property that is no t physically injured. All suchloss of use shall be deemed to occur at the time of the occurrencethat caused it.

For the purposes of this insurance, electronic data is not tangibleproperty.As used in th is definition, electronic da ta means information, facts orprograms stored as or on, created or used on, or transmitted to or fromcomputer software, including systems and applications software, hardor floppy disks, CD-ROMS, tapes, drives, cells, data processingdevices or any other media which are used with electronicallycontrolled equipment.18. Suit means a civ il proceeding in which damages because of bodily injury,property damage or personal and advertising injury to which th isinsurance applies are alleged. Suit includes:

a. An arbitration proceeding in which such damages are claimed and towhich the insured must submit or does submit with our consent; orb. Any other alternative dispute resolution proceeding in which suchdamages are claimed and to which the insured submits with ou rconsent.

* * * *

Advanced Drainage Sy stems policy contains the following endorsements which amends coverageunder their po licy:EXTENSION OF COVERAGE -BODILY INJURYThis endorsement modifies insurance provided under the following:COMMERCIAL GENERAL LIABILITY COVERAGE FORMPROVISIONSWith respect to all operations, bodily in jury in the DEFINITIONS section of thisinsurance is amended to include mental anguish, mental injury , shock, fright,


disability, humiliation, sickness or disease sustained by a person, including deathresulting from any of these at any time.* * * *



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ADDITIONAL INSURED -DESIGNATED PERSON OR ORGANIZATIONThis endorsement modifies insurance provided under the following:COMMERCIAL GENERAL LIABILITY COVERAGE PARTSCHEDULEName of person or organization:Any person or entity with whom you have agreed in a written contract, executed priorto loss to name as an additional insured, but only for the limits agreed to in suchcontract or the limits of insurance of this policy, whichever is less.WHO IS AN INSURED (Section II) is amended to include as an insured the personor organization shown in the Schedule as an insured but only with respect to liabilityarising ou t of your ac ts or omissions.* * * *

The Additional Insured Designated Person or Organization endorsement which attaches toAdvanced Drainage Sy stems policy provides that any person with whom Advanced DrainageSystems agrees in a written contract that has been executed prior to the loss to name as a additionalinsured would qualify as an additional insured under their policy but only with respect to liabilitywhich arises ou t of Advanced Drainage Sy stem s acts or omissions. Advanced Drainage did ag ree toprocure additional insurance for BNSF in the Industry Track Agreement; however, that additionalinsurance is limited to liability arising ou t of Advanced Drainages acts or omissions. Since th isloss solely arose ou t of BNSFs and it employees actions, additional insured coverage would no t beafforded to BNSF for th is los s. Even if additional insurance had been afforded; which we deny, theWorkers Compensation and Similar Laws and the Employers Liability exclusions which arequoted above would operate to bar coverage for BNSF for this loss . For these reasons, BNSF doesnot qualify as an additional insured under Advance Drainages policy and Travelers respectfullydenies BNSFs tender of defense on this basis.Advanced Drainage also agreed to defend and indemnify BNSF pursuant to the following provisionscontained within the Industry Track Agreement:

LIABILITYl0.(a) To the fullest extent permitted by law , Industry shall release, indemnify,defend and hold harmless Railroad and Railroads affiliated companies,partners, successors, assigns, legal representatives, officers, directors,shareholders, employees and agents (collectively, indemnities) for, fromand against any and all claims, liabilities, fines, penalties, costs , damages,losses, liens, causes of action, suits, demands, judgments and expenses(including, without limitation, court costs, atto rney s fees and costs of

investigation, removal and remediation and governmental oversight costs)


environmental or otherwise (collectively liabilities) of any nature , kind ordescription of any person or entity directly or indirectly arising ou t of,resulting from or related to (in whole or in part):



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(i) This agreement, including, without limitation, its environmentalprovisions,(ii) Any rights or interests granted pursuant to th is agreement,(iii) Industrys occupation and use of railroads property or the use andoperation by the railroad upon industrys property,(iv) The environmental condition and status of the track or railroadsproperty caused or aggravated by, or contributed to, in whole or inpa rt, by industry.(v) The environmental condition and status of industrys plant, or(vi) Any act of omission of industry or industrys officers, agents, invitees,employees, or contractors, or anyone directly or indirectly employedby any of them, or anyone they control or exercise control ove r,

Even if such liabilities arose from or are attributed to, in whole or in pa rt, anynegligence of any indemnitee. The only liabilities with respect to whichIndustrys obligation to indemnify the indemnitees does not apply areliabilities to the extent proximately caused by the gross negligence or willfulmisconduct of an indemnitee.* * * *

(c) Industry further agrees, regardless of any negligence or allegednegligence of any indemnitee, to indemnify, and hold harmless theindemnitees against and assume the defense of any liabilities assertedagainst or suffered by any indemnitee under or related to the FederalEmployers Liability Act (FELA) whenever employees of Industryor any of its agents, invitees, contractors claim or allege that they areemployees of any indemnitee or otherwise. This indenmity shall alsoextend, on the same basis, to FELA claims based on actual or allegedviolations of any federal, state or local laws or regulations, includingbut not limited to the Safety Appliance Act , the Boiler Inspection Act ,the Occupational Health and Safety Act, the Resource Conservationand Recovery Act, and any similar state or federal statute.

(d) Upon written notice from Railroad, Industry agrees to assume thedefense of any lawsuit or other proceeding brought against anyindemnitee by any entity relating to any matter covered by thisAgreement fo r which Industry has an obligation to assume liability forand/or save and hold harmless any indemnitee, Industry shall pay allcosts incident to such defense, including but no t limited to atto rney s


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Should BNSF agree to accept the conditions noted above, we ask tha t you notify us in writing orexecute th is letter below and return it back to my attention. Upon receipt of BNSFs writtenagreement or copy of this signed letter, we will proceed forward with BNSFs defense in the Bussmatter.



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We would also request that you please provide us with copies of all pleadings, discovery anddefense counsel correspondence which has been generated in this case thus far . In addition, pleaseprovide us with complete copies of the plaintiffs pre- and post-accident medical records and bills aswell as his tax , employment, group insurance and pharmacy records. We would also appreciatereceiving a detailed evaluation report from you which addresses the liability and damages aspectsinvolved in this case ; your resolution strategy including your recommendations regarding whatadditional work needs to be performed inn order to prepare th is case for settlement or tria l and yourprojected defense budget.

If you have any questions, please do not hesitate to contact me.Very truly yours,

Julie A. StolteMajor Case SpecialistTravelers Property Casualty Company of America630/961-8679

We agree to the conditions set forth above and authorize Travelers to participate in the defense ofBNSF in James Todd Buss vs. BNSF Railway Company matter which is filed in the United StatesDistrict Court of the Northern District of Illinois under Cause No. 08 CV 6720 .(Signature)



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9!IIHX]

R,t OM roressionai t


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November 3, 2009

Mr. Raymond H. GrobleDaley Mohan Groble55 West MonroeSui te 1600Ch icago, IL 60603VIA E-MAIL ONLYgrob1e(ddaleymohan . com

Insured: Burlington Northern Santa Fe CorporationPolicy No.: DOX G21 651096006Claimant: James T. BussClaim No.: JY09J0445962Dear Mr. Groble:ACE USA Professional Risk Claims (ACE) acknowledges receipt of the correspondencesubmitted in connection with the above referenced matter. Presently, we are in the process ofestablishing a claims file and reviewing the submitted information.Th is claim ha s been assigned to Deana Giancarlo for h andling. Once Deana completes her initialreview of the correspondence she will contact you to discuss this matter further.If you have any questions, you can contac t Deana directly at either (646) 458-6837 ordeana.giancarlo(4acegroup.com. Or, you can reach me at (646) 458 -6835. In the meantime,ACE reserves its rights and defenses in this matter under the po licy, at law and/or in equity.Sinc erely,

Michele Fen iceAssistant Vice PresidentACE USA Professional Risk

One of the ACE Group of insurance & Reinsurance Companies

ace usaCase: 1:10-cv-04230 Document #: 1-2 Filed: 07/08/10 Page 81 of 81 PageID #:92


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cc: Ron LiszkaArea Vice PresidentRisk ManagementArthur J. Gallagher Risk Management Services Inc.6100 Oak Tree BoulevardSuite 200Independence, OH 44131VIA E-MAIL ONLYron liszka2iajg.com

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bnsf railway company v. ace property and casualty insurance company underlying complaint

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