-
8/20/2019 J.K. PROJECT GROUP, INC. v. ACE AMERICAN INSURANCE COMPANY complaint
1/82EXHIBIT 1
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Case 1:15-cv-23984-KMW Document 1-2 Entered on FLSD Docket 10/23/2015 Page 1 of 82
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8/20/2019 J.K. PROJECT GROUP, INC. v. ACE AMERICAN INSURANCE COMPANY complaint
2/82
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he civil
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.K
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.
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sura
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Case 1:15-cv-23984-KMW Document 1-2 Entered on FLSD Docket 10/23/2015 Page 2 of 82
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8/20/2019 J.K. PROJECT GROUP, INC. v. ACE AMERICAN INSURANCE COMPANY complaint
3/82
COMPLEX
BUSINESS COURT
This action is
appropriate
for assignment
to
Complex Business Court as delineated and mandated
by
the
Administrative Order.
Yes
?No
III.
REMEDIES SOUGHT
(check
all that apply):
J3
Monetary;
?
Non-monetary
? Non-monetary
declaratory or Injunctive relief;
? Punitive
IV. NUMBER OF
CAUSES
OF ACTION: ( )
(Specify)
1
V.
IS THIS
CASE A CLASS ACTION LAWSUIT?
?Yes
M No
VI. HAS
NOTICE
OF ANY KNOWN RELATEDCASE BEEN FILED?
M
No
?Yes
-
f yes
list all
related cases by name, case
number
and court:
IS
JURY
TRIALDEMANDED IN COMPLAINT?
13 Yes
?No
VII.
I CERTIFY
that
the
information
I have
provided in this cover sheet Is
accurate
to
the
best of
my
knowledge
and belief.
Signature
s/
Mariano
RGonzalez FL Bar
No.:
983063
(Bar number, ifattorney)
ttorneyor party
Mariano
R Gonzalez
10/29/2014
(Type
or
print name) Date
Case 1:15-cv-23984-KMW Document 1-2 Entered on FLSD Docket 10/23/2015 Page 3 of 82
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4/82
Filin
g
1996
1850 Electron
ically
Filed
10/29/20
14 12:40:
32PM
IN
T
HE C
IRCUI
T
CO
URT
O
F
TH
E
1™ J
UDIC
IAL
CIRC
UIT
IN
AN
D
FO
RM
IAMI-
DADEC
OUNT
Y, FLO
RIDA
GENE
RAL
JU
RISDI
CTION
DIVIS
ION
C
ASE
NO
.
J.K.
PRO
JECT
GROU
P, INC.,
a Flo
rida
Corp
oratio
n.
P
laintiff,
v
A
CEAME
RICA
N INSU
RANC
E
C
OMP
ANY,
a Fo
reign
Corpo
ration
.
Defend
ant.
COM
PLAI
NT
P
laintiff
,
J.K.
PRO
JECTGR
OUP, IN
C. ( J.K
. P
ROJEC
T ), a
Florid
a C
orpora
tion, b
y
an
d
throu
gh u
ndersi
gned co
unsel, h
ereby su
es th
e
Defen
dant, AC
E AM
ERIC
AN INS
URA
NCE
COM
PANY
(
ACE )
, a For
eign
corpo
ration, and
states as
follo
ws:
I
Th
is i
s
an
actio
n
forbrea
ch
of
cont
ract whe
rein P
laintiff se
eks da
mages
in e
xcess
o
f
15,0
00.00.
Plain
tiff,
J.K. P
ROJE
CT, is
a
F
lorida
Corp
oration d
ulyauth
orized
tocondu
ct
busi
ness
2.
in t
he
S
tateof
Fl
orida an
d
o
perates
a gas
stat
ion in
Miam
i-Dade
Count
y,
F
lorida.
Defe
ndant AC
E is,
upo
n info
rmatio
n-
and
b
elief, a co
rporati
on duly
author
ized
to
.
condu
ct
bus
iness in
the
Stateof
Florid
a, and
whic
h
does
,
in fact
,
iss
uepol
icieso
f
insura
nce
in
Miam
i
D
adeCo
unty, Flor
ida.
Defe
ndant
issu
edan insura
nce
policy
toPlain
tiffbea
ringPo
licyN
o.TSPG
2467
859
.
0
01, which
insured
t
he
gas
statio
n locate
d
at
6
776
S
W 1
7 Avenu
e, Mi
ami,
FL3
3183, a
t
al
l releva
nt
tim
es
herein. Polic
y n
umber
TS
PG2467
1859 00 1
i
s hereto
attac
hed as E
xhibit A
.
1
Case 1:15-cv-23984-KMW Document 1-2 Entered on FLSD Docket 10/23/2015 Page 4 of 82
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8/20/2019 J.K. PROJECT GROUP, INC. v. ACE AMERICAN INSURANCE COMPANY complaint
5/82
O
n or
abou
t
A
pril 27,
2010,
wh
ile the sub
ject
polic
y was in fu
ll forc
e an
d effe
ct,
.
Plain
tiffsuff
ered da
mage lo
their
busine
ss as a
re
sult
of
a
r
eleaseof
pe
troleum f
rom an
un
dergro
und
st
orage tank
which co
ntamin
ated
thep
roperty
.
Up
on
inspec
tion
in
A
ugust
20
10,Pla
intiffd
iscove
red
t
hehigh
leve
ls
of
con
tamina
tionb
y
way
of f
ree floa
tingp
roduc
t and
notif
iedDe
fendan
t
of
loss
on
A
ugust 1
0,
201
0.
A
s
such, P
laintif
f
fil
ed a claim
wit
h
De
fendan
t a
nd
s
aid
c
laim
was assig
nedAce
No.:
.
JY
10J04
48470.
7. P
laintiff c
omplie
d
with a
nd perfo
rmed
all cond
itions
pr
eceden
t
u
nder
the subjec
t
p
olicy
for
the
re
coveryo
fben
efits
and/o
r
s
aid cond
itions
were
wa
ived b
y De
fendan
t.
8
Howe
ver, D
efenda
nt,
by
word
, co
nduct
anddeed
, ha s
denie
dcove
rageand h
as re
fused
to pay the
bene
fits d
ue for the
cover
ed loss
.
9
Def
endan
t, th
erefore
,
has
breach
ed the ter
ms
o
f
the subje
ct co
ntract of i
nsuran
ceby
faili
ng to
pay th
e b
enefits wh
ich becam
e due
andowing to
Pla
intiff as
a
result of
the co
vered lo
ss.
1
0 As
a res
ult of
Defe
ndant'
s
b
reach,
Plain
tiff has
suffe
red
damag
es in the
amo
unt
o
f
insura
nce
benefi
ts
dn
e
an
d ow
ing to
them
under the su
bject
policy
.
1
Defen
dant's co
nduct
has c
aused
Plainti
ff
to
retain
th
e servic
es of th
e
under
signed
attorne
y
to rep
resent
them
in this a
ction, an
d D
efend
ant is, the
refore,
also
liable
for rea
sonab
le
atto
rney's
fe
es pursua
nt
to Fla.S
tat. § 627
.428 fo
r
such
servic
es.
WH
EREFO
RE, P
laintif
f, J
.K. PR
OJEC
T GRO
UP, INC.,
a
Florid
a
corp
oration
,
d
emand
s
j
udgme
nt a
gainst
the
Defe
ndant, AC
E
AME
RICA
N
INSU
RANC
E COM
PAN
Y,
a
F
oreign
corpo
ration, for
(i)
dam
ages and
intere
st thereon
, (ii)
attor
ney's fees
a
nd cos
ts
pu
rsuant
to
Fla.St
at.
§
627
.428,
a
nd (iii)
s
uch oth
eran
d
farthe
r r
elief as
this
couit
deems ju
st and p
roper.
2
Case 1:15-cv-23984-KMW Document 1-2 Entered on FLSD Docket 10/23/2015 Page 5 of 82
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6/82
DE
MAN
DFOR
JU
RY
TR
IAL
Plainti
ffs
d
emand
a trial
by jury
ofall
issu
es
so
triable a
s o
f rig
ht
by
jur
y.
Dat
ed th is 29
th da y of
Oct
ober 2
014
Law
Off
ices
o
f
Gonz
alez Ass
ociates
,
P.A.
Attorn
ey for P
laintiff
s
3600 Red
Ro
ad, Suite 60
3
Mram
ar, Flor
ida 33025
T
el: 9
54-538
-1304
mail 1:
mg@
gonza
lezlega
l.com
Email
2: jennife
r@gonz
alezleg
al.com
By:
/s/ Marian
o R
. Go
nzalez
M
ariano
R. Gonza
lez,
Es
q.
Florid
a
ar
No.: 98306
3
3
Case 1:15-cv-23984-KMW Document 1-2 Entered on FLSD Docket 10/23/2015 Page 6 of 82
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EXHIBIT
A
Case 1:15-cv-23984-KMW Document 1-2 Entered on FLSD Docket 10/23/2015 Page 7 of 82
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8/20/2019 J.K. PROJECT GROUP, INC. v. ACE AMERICAN INSURANCE COMPANY complaint
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Declarations-
Underground Storage Tanks
LiabilityPolicyCaims-Made
ACE
American Insurance Company
NAMED INSURED
AND
ADDRESS
POLICY IDENTIFICATION
J.K.
ProjectGroup,
Inc.
6776 S.W.
117 Avenue
Miami,FL33183
G24
671859001SP
PRODUCER
CODE: 277240
MARKETING OFFICE: Philadelphia
MARKET
HAZARD CODE: N/A
PIIC CODE:
5541
INDUSTRY
CODE:
N/A
POLICY IS:
OF G24671859
New
NAMED INSURED
IS
:
J.K. Project Group,
Inc.
BUSINESS
OF
INSURED : Misc. - PetroleumStorage
TO
OLICY PERIOD :
FROM 10/01/2009
10/01/2010
At 12:01
A.M.
standard lime
at
your
mailing
address shown above.
IN
RETURN
FOR
THE PAYMENTOF
PREMIUM,
WE
AGREEWTH
YOU
TO PROVIDE
THE INSURANCE
AS STATES
IN THIS POLICY, SUBJECTTO
ALL
THE TERMS AND CONDITIONS
OF
THIS POLICY.
IMPORTANT
NOTICE
THIS
POLICY IS
ISSUED ON
A CLAIMS-MADE
BASIS
COVERAGE
A
OF THIS INSURANCE
DOES
NOTAPPLY TO BODILY INJURY OR
PROPETY DAMAGE , AND COVERAGE B
OF
THIS INSURANCE DOES NOT APPLY
TO
CORRECTIVE ACTION
COSTS ,
WHICH OCCUR
BEFORE
THE RETROACTIVE
DATE
SHOWN
BELOW.
RETROACTIVE
DATE:
10/01/2009
ETROACTIVE DATE:
UW-5X99
(2/97)
Case 1:15-cv-23984-KMW Document 1-2 Entered on FLSD Docket 10/23/2015 Page 8 of 82
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9/82
POLIC
Y IDE
NTIFIC
ATION
DEC
LARAT
IONS UN
DERGR
OUND
STORA
GETAN
KLI
ABILITYPO
LICY
CLAIMS-MADE
G
2467185
9 001
SP
a
ge
2
L
IMITSO
F INSU
RANCE
UND
ERGR
OUND
STORA
GET
ANK INC
IDENT
LIMIT
1 000 0
00
AG
GREG
ATE L
IMIT
1.00
0.000
1 000
00 0
E
FENSE
EXP
ENSE
AMOU
NT
DEDU
CTIBLE
S
10,0
00
(Enler amount
of
deductible or
none
ifno ded
uctible
amount
applie
s.)
DEDU
CTIBLE
AMO
UNT
E
PAIDENT
IFICAT
IONAN
DPREM
IUM
PAYM
ENTCO
NDITIO
NS
EPA
IDEN
TIFICA
TION N
UMBE
R (If app
licable
):. As
onfile
with the in
surer
AUD
ITPERIO
D: No
ne
P
AYME
NTFRE
QUEN
CY: A
nnual
PAYM
ENT SCHE
DULE:
N
/A
1,767
.00
Pre
mium:
Florida Hurricane Catastrophe
17.67
15.90
Flo
rida Insura
nce
Guaran
ty Asso
ciation 20
07 R
egular
Asse
ssmen
t
TOTA
LAM
OUNT
DUE
1,800.
57
(Inclu
des 1%Florid
a
0.9% RFIG
A2007
lax)
P
REMIU
MS RE
SULTIN
G FRO
MA
UDITARE N
OT I
NCLUD
ED IN
THEA
BOVE.
SCH
EDULEOFL
OCAT
IONS
LOCAT
ION
NUMB
ERA
NDADD
RESS OF
IN
SURED SIT
E:As
onfile wit
h
th
e
insure
r
4
.
I.
5.
.
6
.
.
UW
-5X99
(2/97
)
Case 1:15-cv-23984-KMW Document 1-2 Entered on FLSD Docket 10/23/2015 Page 9 of 82
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8/20/2019 J.K. PROJECT GROUP, INC. v. ACE AMERICAN INSURANCE COMPANY complaint
10/82
COM
MERC
IAL GE
NERA
L
L
IABIL
ITY
C
G 0042
10
01
U
ND
ER
GR
OU
ND ST
OR
AG
E
TA
NK
PO
LIC
Y
DE
SIG
NA
TE
DT
AN
KS
T
HIS FO
RM
PRO
VIDES
CL
AIMS
-MADE C
OVER
AGE.
PLEA
SE
READ T
HE
ENTIR
E FORM
CAR
EFUL
LY.
COVE
RAGE A
OF T
HIS
POLIC
Y P
ROVID
ES BO
DILY
I
NJUR
Y AND
PRO
PERT
Y DAM
AGE
LIAB
ILITY
CO
VERA
GE ON
A
CLA
IMS-M
ADE B
ASIS
. COVE
RAG
E B O
F THIS
POL
ICY
PROV
IDES
COR
REC
TIVE
AC
TION
COS
TS COV
ERAG
E ON
AN IN
CIDEN
T-RE
PORT
ED BASIS
.
THIS
POL
ICY PRO
VIDE
S P
AYME
NTS
FOR D
EFEN
SE E
XPEN
SE W
HICH
AR
E LI
MITED U
NDER
TH
E
P
ROVIS
IONS
OF DE
FENS
E EXP
ENSE
PA
YMEN
TS P
ARAG
RAPH 2.
OF
SECT
ION III)
.
Variou
s prov
isions
in thi
s polic
y restr
ict cov
erage
.
R
ead
the e
ntire p
olicy car
efully
to de
termin
e rig
hts, dutie
s and
wha
t
Is
and
is n
ot covere
d.
Th
rougho
ut
this poli
cy the
wor
ds you
and yo
ur re
fer to
the
Name
d Insu
red show
n in the
Decla
ration
s, and
any
othe
r per
son or o
rganiz
ation
quali
fying as a
Named
Insure
d und
er this
po
licy. T
he
w
ords
we
, us
and our
refer to the company providing
this
insurance.
The
word
insu
red m
eans an
y pers
on
or o
rganiz
ation
quali
fying as such
un
der Se
ction I
I
Who
Is An Insu
red.
The phras
e firs
t Nam
ed I
nsured
mean
s the fir
st pe
rson or
orga
nizatio
n list
ed as a N
amed
Ins
ured in
the Dec
la
r
ations.
Oth
er w
ords and p
hrases
that
appe
ar in qu
otation
marks
have
s
pecial mea
ning.
Ref
er to Secti
on Vi
Defi
nitions
.
(c) A
claim
for
dama
ges beca
use
of the
bodily inju
ry o
r p
roper
ty dam
age Is
fi
rst made
again
st any in
sured
, in
writ
i
ng, in
acco
rdance w
ith P
aragra
ph (3)
b
elow,
durin
g
th
e
po
licy period o
r an
y
Exte
nded R
eporti
ng Perio
d we
provid
e
unde
r
Se
ction V
Ex
tended
Rep
orting
Period
s.
3)
A
claim
by a
person
or organization
seek
ing
dam
ages
w
ill
be d
eemed
to
have
b
een
m
ade
at the
ea
rlier of the
foll
owing
times
:
a
) Whe
n
notice
of
su
ch
claim
is rec
eived
an
d record
ed
by a
ny in
sured or by
us,
whic
heverc
omes fir
st; or
(b)
Whe
n
we
m
ake a s
ettleme
nt in
acco
r
danc
ew
ith Para
graph
3.
b
elow.
All c
laims for
da
mages be
cause
of
bod
ily
inju
ry to
the
sam
e
per
son,
inc
luding
dam
a
ges cl
aimed b
y any pe
rson
or
organi
zation
f
or care,
loss
of
servic
es or deat
h
resulti
ng
at an
y
time
from
the
b
odily injury
, will
be
de
emed to
have b
een m
ade at the
time th
e
first
of
those claims is made against any
in
sure
d.
SECTI
ON
UNDE
RGRO
UND ST
ORAG
E TA
NK
COV
ERAG
E
1. Ins
uring Ag
reem
ent
a.
Cove
rage
ABodil
y Injur
y
AndPr
operty
Dam
age L
iabili
ty
(
1)
W
e
w
ill pay
t
hose sum
s tha
t
the Ins
ured
be
comes
l
egally obl
igated
to pay
as co
m
pensatory damages because
of
bodily
in
jury
or
prop
erty da
mage
to wh
ich
this in
sura
nce ap
plies.
2
) Th
is ins
urance
appli
es to
bodi
ly injury a
nd
prope
rtyda
mage
only if:
a T
he bod
ily
injur
y or
proper
ty dam
age
is
ca
used by
an u
ndergr
ound s
torage
tank
incide
nt that
com
menc
es o
n
or
af
te
r th
e Ret
roactiv
e Dale
sh
own
i
n
the
De
clarat
ions of
this
po
licy
and
before
th
e end
of
t
he
policy period;
b
) T
he i
nsured
s re
spons
ibility to
paydam
ag
es beca
use
of
bodil
y injury
o
r
prop
erty
dam
age
is de
termin
ed
i
n a
s
uit
on
the
merits
in the
coverage territory
or in
a
settl
ement
we agree
to; a
nd
© ISO
Pro
perties
, Inc.
, 2000
Pa
ge o
f 12
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004
2 10 0
1
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11/82
(4) The
amount
we
will
pay
for damages be
cause
of
bodily injury or properlydam
age (Coverage A)
or for
corrective action
costs
is limited
as
described
in Paragraph
1. of
Section
III
-Limits Of Insurance.
All claims for damages
because
of prop
erty
damage causing
loss to
the
same
per
son
or organization as a result of an un
derground storage
tank
incident
will be
deemed to
have
been made at the time
the
first
of
those claims is made against any in
sured.
(4) The amount we will pay for damages be
cause
of
bodily
injury or property dam
age
or for corrective action
costs
(Cov
erage B) is limited as described in
Paragraph 1.
of
Section III
-Limits Of
In
surance.
b.
Coverage
B
-Corrective Action Costs
(1)
We will
pay
those
sums the Insured be
comes legally obligated to pay for correc
tive action costs
to which this
Insurance
applies as a result of
an
underground stor
age
tank
incident .
(2)
This insurance applies only if:
(a) An underground storage tank incident
commences on
or after
the Retroactive
Date shown in (he Declarations of
this
policy and before the end of the policy
period; and
(b) Such underground storage
tank
inci
dent
is reported in
writing,
in accor
dance
with
Paragraph (3) below, during
the policy
period or any Extended
Re
porting Period we provide under Section
V-
Extended Reporting
Periods.
(3) An
underground storage tank
incident will
be considered reported at
the
earliest time:
(a) You
report
to us.
in
writing, an under
ground storage tank Incident ;
(b) You
report to
an
implementing
agency , in writing, an underground
storage tank
incident ; or
.
(c) You
receive
a written
notice
from
an
implementing agency
which requests
or
demands
that
you
take
action
due to
an underground storage tank incident .
2. Exclusions
This
insurancedoes not
apply
to:
a. Expected Or
Intended injury
Bodilyinjury or property
damage
expected
or intended
from
the
standpoint of the
insured.
b.
Contractual
Liablity
Bodily injury or
property
damage
for which
the insured is obigated to
pay damages
by
reason of the assumption of liablity in a con
tract
or agreement. This
exclusion
does not
apply to liability for
damages
thai
the
insured
would
have
in
the absence
of the
contract or
agreement.
c. Workers' Compensation And Similar
Laws
Any obligation of
the
insured
under a workers'
compensation,
disability
benefits
or unem
ployment compensation lawor any similar
law.
d. Employer's
Liability
Bodily
injury to:
(1) An employee of the insured arising out of
and in the course of:
(a) Employment bythe insured; or
(b) Performing duties related to the
conduct
of the
insured's business; or
(2) The spouse, child, parent, brother or sister
of
that employee as a consequence of
Paragraph (1) above.
This
exclusion
applies:
(1)
Whether the insured may be liabe as
an
employer or
in
anyother capacity; and
(2)
To any obligation to share damages with or
repay someone eise who must pay
dam
ages because
of
the injury.
© ISO
Properties,
Inc., 2000
Page 2
of
12 P
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Case 1:15-cv-23984-KMW Document 1-2 Entered on FLSD Docket 10/23/2015 Page 11 of 82
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8/20/2019 J.K. PROJECT GROUP, INC. v. ACE AMERICAN INSURANCE COMPANY complaint
12/82
3.
O
ur Ri
ght And Duty
To Defen
d
W
e
wil
t have the
right and
duty
to
defe
nd the in
sured
aga
inst any suit
seeking
damages b
e
cause
of b
odily injury or
property
damage to
w
hich
this
ins
urance
a
pplies,
or se
eking the pay
ment
of
corrective action costs
to which t
his
in
suranc
e applies, and to
pa
y
or
reim
burse for de
fense e
xpense as
provided u
nder Pa
ragraph 2. of
Sect
ion
III
Limits
Of
Insur
ance
a
nd
Defense Ex
pense
Amount and
P
aragraph
4.
Defense
Ex
pen
se Pa
yments
b
elow.
However, w
e
will have no duly to
defend
th
e In
sured
against,
or
to
p
ay or reimbu
rse for de
fense
expens
e for, s
uits seekin
g
dam
ages, or se
eking
the pa
yment of
corrective action cos
ts , n
ot
co
v
ered
by this policy.
We
m
ay at our discr
etion inves
tigate any und
er
ground sto
rage t
ank incide
nt
and
settle
any suit
or
claim for
bo
dily
inju
ry , pro
perty dam
age or
corrective action c
osts
that may
resu
lt.
Ou
r
d
uty to d
efend and to pay or
reimburs
e for
defens
e expense
i
s limit
ed
a
s described in
Para
grap
h
2
. of S
ection III Lim
its
Of
Ins
urance and
Defense
Expense
Am
ount
and P
aragraph
4.
De
fen
se Exp
ense Pa
yments belo
w
and
ends at
the
earlier of
the following ti
mes:
a. Wh
en we have used
up
the
a
pplicable lim
it of
insura
nce
fn
the payme
nt of judgm
ents
o
r set
tlem
ents, or pa
yments or r
eimburseme
nts for
co
rrective action costs ;
or
b. Wh
en we hav
e
used
up the
Defen
se Expense
A
mount in p
ayments or
reimbursem
ents of
defense
e
xpense .
This
applies both
to cl
aims
or su
its pendi
ng
a
t
that
lime
and
(hose
Hied
thereafter.
4.
Defense Expe
nse Paymen
ts
Defens
e expen
se payme
nts or reim
bursements
are sub
ject to
the
D
efense
Expense
Amount
shown
in th
e
D
eclarations of th
is policy.
Th
is
ap
plies
e
ven
if,
by mutu
al agreem
ent or court order,
t
he
in
sured
assum
es control of the
defe
nse
of a
suit
before the
Limit
Of
Insuran
ce
or
the De
fense
Ex
pense
Amo
unt
is used
up.
If
no
Defense Ex
pense Am
ount is sho
wn
in
the Declarat
ions o
f this
policy, the Defens
e
Expense Amo
unt shall be
equal to the
Aggregate
Lim
it
sho
wn in
the Decla
r
ations
of this policy
. If the insured
assume
s
con
trol of the
defense bef
ore the Defense
Expense
Amount
is
used
up,
we will r
eimburse
the insured,
or
pay, for reaso
nable defe
nse
expense , but o
nly
up
to the re
maining Def
ense Expen
se Amo
unt
then
available
.
e.
D
amageToProperty
Property
dama
ge
to:
(1) Property you
own, rent
or occupy,
Including
any costs o
r
expenses inc
urred
by
yo
u,
or
any
other
pe
rson,
organizati
on
or
entity, f
or
repair,
replacement enhancement restora
tion or ma
intenance
of
s
uch prop
erty
f
or
any reason, inc
luding preve
ntionof
Injury to
a person
ordamage
to anothe
r's
p
roperty;
(2)
Premi
ses you sel
l, give
awayor ab
andon, if
the
prope
rty damag
e arises out o
f any
part of t
hose prem
ises;
(3) Propert
y
l
oaned
to you;
or
(4)
Person
al
p
roperty
in the care, cus
tody or
contr
ol of the
insured.
f.
F
ailureT
o ComplyW
ith
En
vironment
al
Law
s
Bod
ily injury , p
roperty dam
age or
correc
tive
action
costs arising out of an
unde
r
groun
d storage
tan
k incident whic
h res
ults
from or is
dir
ectly
or
indirectly
attributabl
e to
failure to
comply
w
ith a
ny applic
able
statu
te,
regulation, ordinanc
e, direct
ive or o
rder
re
lat
ing to
the
pro
tection
of the env
ironment an
d
promu
lgated
by
an
y governmen
tal
bo
dy,
pro
vided
that
fa
ilure
to
com
ply is
willful or delib
erate
act orom
ission of:
(1)
T
he Insured;
or
(2)
Yo
u or
any of you
r members
, managers,
p
artners or
exec
utive officers .
g.
C
orrectiveActio
ns
Corrective
actio
n
costs
o
r
any o
ther e
x
penses
(
1) R
esulting fr
om
any
u
nderground
storage
tan
k inciden
t
which
is in
tended
from the
sta
ndpoint
o
f the insured
;
(2)
Resulting from ac
tions
taken to
report,
inv
estigate
or
confirm
a release
;
(3) To repair, rep
lace or upgr
ade a
ny insured
tank ;
(4)
Which are fin
es or pena
lties imposed
by a
federa
l,
state or
loca
l
gov
ernmental auth
or-
ity
;
(5)
T
o r
eplace the con
tents of an
insure
d
tank
; or
(6)
Which are part of
your
restoration,
en
han
cement or
routine ma
intenance
of any
insured ta
nk or
of
th
e site whe
re
any
in
sured
tank is located.
© ISO
Propertie
s, Inc., 2000
Page 3 12
CG
00
42
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8/20/2019 J.K. PROJECT GROUP, INC. v. ACE AMERICAN INSURANCE COMPANY complaint
13/82
d.
An
organization other
than a partnership, joint
venture or limited
liability
company, you are an
insured.
Your
executive
officers
and
directors
are
Insureds,
but only
with
respect to their du
ties as your officers or
directors.
Your stock
holders are also insureds, but onlywith respect
to
their liablityasstockholders.
2, Each
of
the following
is
also
an insured:
a.
Your
employees ,
other
than
either
your ex
ecutive officers (if you
are
an organization
other
than
a partnership, Joint
venture or
lim
ited
liablity
company) oryour
managers (if
you
are a
limited
liability company),
but
only for
acts within
the
scope of their employment
by
you
or while performing duties related to the
conduct of
your
business. However, none of
these employees Is an insured for:
5. Supplementary Payments
We will pay, with
respect
to any
claim
we Investi
gate or
settle
or any suit
against
an
insured we
defend, or
any
claim or suit
to
which this insur
ance applies and
for
which an
applicable limit
of
insurance
is
available
for payment
of
damages or
corrective
actioncosts :
a. All interest
on
the
full
amount of any judgment
that accrues
after
entry of
the judgment and
before
we
have paid, offered
to pay,
or depos
ited
in
court the part of the judgment that is
within the
applicable limit of insurance.
b.
Expenses
incurred by the
insured for first
aid
administered to others at
the
time of an un
derground storage
tank
incident for bodily
in
jury towhich this insurance applies.
c.
Prejudgment interest
awarded
against
the
insured on
that part of the judgment we pay. If
we make an
offer
to pay the applicable limit
of
insurance,
we will
not pay any
prejudgment
in
terest based on that period
of
time after the of-
(1)
Bodilyinjury :
(a) To you, to your partners
or
members (if
you are a partnership or joint venture),
to
your members (if
you are
a limited li
ability company), or to a
co- employee
while
that
co- employeen is
either in the
course of his
or
her employment
or
per
forming duties
related
to
the
conduct of
your business;
(b) To the spouse, child, parent, brother or
sister of that co- employee as a conse
quence
of
Paragraph
(1)(a)
above;
or
(c) For which there is any obigation to
share damages with or repay someone
else who
must pay damages
because of
the injurydescribed in Paragraphs
(1)(a)
or (b) above.
(2)
Property damage
to
property:
(a) Owned,
occupied or
used
by,
(b) Rented to, in
the care,
custodyor con
trol
of,
or over which physical control is
being exercised for
anypurposeby
you, any of
your employees , any
partner
or member (if
you
are a
partnership
or joint
venture), or
any
member (if
you
are a
lim
ited liability
company).
fer.
These amounts will
not reduce
the
Limits
Of
In
surance
or
Defense Expense Amount
as
provided
under Section IN.
6. No Other
Obigation
Or Liablity
No
other obligation
or
liablity
to
pay
sums or
to
perform acts or services is covered unless explic
itly
provided for
in
this policy.
SECTION II-WHO
IS AN INSURED
1. If
you
are designated in the Declarations
of
this
policyas:
a.
An individual, you and your spouse are
in
sureds, but
only with respect
to
the
conduct
of
a
business ofwhich
you
are Ihe
sole
owner.
b.
A partnership or
joint
venture, you are an in
sured. Your members, your partners and their
spouses
are also insureds, but only with re
spect to the
conduct of your business.
c. A limited liability company, you are an
insured.
Your members
are
also insureds, but only
with
respect to the
conduct of
your business.
Your
managers are
insureds,
but
only
with respect
to their
duties as your managers.
©
ISO Properties, Inc., 2000
Page
4 of 12
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4210 01
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8/20/2019 J.K. PROJECT GROUP, INC. v. ACE AMERICAN INSURANCE COMPANY complaint
14/82
If
Ih
e
sum
of dama
ges
and
corre
ctive action
costs
is less
than the
Undergro
und
Stor
ageTa
nk
I
ncident
Limit, w
e will pay
all of an
y
deduct
ible
am
ount, if
applicab
le,
to
effec
t sett
lement
o
f any
claim or suit .
Upo
n
not
ice
of our
paymen
t
of
a
deduc
tible amoun
t,
y
ou
shall promptly
reimbu
rse
us
for
the part
of
the
deductible amount
we paid.
Each p
ayment we
m
ake for
damages or
for cor
rec
tive action co
sts reduces
both the
Under
ground S
torage T
ank In
cident
Limit and
(he
Ag
g
regate
Limi
t.
The
Limits Of
Insuranc
e
o
f th
is policy appl
y sepa
rately to each
consecut
ive
a
nnual
p
eriod an
d to
any
remain
ing
perio
d
of less t
han 1
2
months
,
sta
rting with
the begi
nning of Ihe
poli
cy
period
sho
wn in the D
eclaratio
ns, unless
the
pol
icy pe
riod
is extended
aft
er issu
ance for an addi
tional
perio
d
of les
s
than 12
months. In th
at case
, the
additio
nal
period
w
ill
be de
emed part
of
the la
st
p
receding p
eriod
for purposes
of dete
rmining
Ihe
Limits
Of
Insurance.
2.
D
efense
E
xpense A
mount
a
.
The Defense
Expen
se
A
mount as
desc
ribed in
Paragra
ph 4. of
Sectio
n
I
Defens
e Expense
Paymen
ts is the mo
st
we a
re obliga
ted
to
pay
for defen
se
expense
,regard
less
o
f the num
ber of
:
(1) Insured
s;
(2)
P
ersons o
r
organiz
ations
mak
ing
claim
s
or
br
inging
suit
s ;
(3)
Claimsm
ade
or
suits
bro
ught; or
(4) Undergr
ound
storag
e tank
in
cidents .
b.
Each
paym
ent or r
eimburse
ment we ma
ke for
defense expense reduces
(he
Defense
Ex
pense
Amount
but wi
ll
not reduce the
Li
mits Of
Insuranc
e.
c. The
Def
ense
E
xpense
Amou
nt is not subje
ct
to
a
ded
uctible,
if
applicabl
e.
d
. The
Defen
se
Expe
nse
Amount applie
s sepa
rate
ly
to
each conse
cutive an
nual p
eriod and
to an
y re
maining p
eriod
of
less
than
12
month
s,
starting with the
beginn
ing of (he
pol
ic
y period
sho
wn in the
Declar
ations, un
less
the
policy
perio
d I
s ex
tended
after issuance fo
r
an
addi
tional peri
od
of less than
12
mo
nths. In
that case,
the
add
itional
perio
d
will
be deemed
part of
the last
prec
eding peri
od
f
or
p
urposes
of d
etermining
the Defe
nse Expense
Amou
nt.
b
. Any
per
son or o
rganizatio
n having
proper
tempor
ary custody of
your
pr
operty
if you
die,
but
only:
(1)
With
respect to
liability aris
ing out of
the
m
aintenan
ce
or use
of
that
pro
perty;
and
(2) Until
your
legal
representative
has been
ap
pointed.
c. Your legal
represen
tative
if
you die,
bu
t only
with respec
t to
duties as suc
h. That r
epresen
tative
will
ha
ve
a
ll y
our
rights
and dutie
s
under
this polic
y.
No person or
o
rganizatio
n
is
an Insured w
ith
re
spect
to
th
e
conduc
t of any
current or
past pa
rt
nership
, join
t
ventur
e
o
r
limited liability
c
ompany
that
is
not sh
own as
a Named Ins
ured in
the Dec
larations of
this
pol
icy.
SE
CTION III L
IMITS O
F INSU
RANCE A
ND
DEF
ENSE EX
PENSE
AMOUN
T
1.
LimitsO
f Ins
urance
a. Th
e Lim
its Of Insur
ance
s
hown
in
th
e
Declara
tion
s of this p
olicy
a
nd the ru
les
below
f
ix the
mos
t
w
e
will
pay regardless
of the
n
umber of:
(1) Insured
s;
(2
) Pers
ons o
r organ
izations
making claims
or
bri
nging suit
s ;
(3)
Cla
ims made or suits
brough
t;
or
(4) Req
uests o
r
deman
ds made by
imple
ment
ing
agencie
s seeking
co
rrective
ac
tion
costs
or requ
iring
action by yo
u.
b. T
heAggre
gate
L
imit is the mos
t
wew
ill pay for
the s
um
of:
(1
) All
d
amages becaus
e of all b
odily
injury
and
propert
y
damage
; and
(2)
A
ll corre
ctiveaction costs .
c
. We
will pay da
mages
and corr
ective act
ion
costs
only
for
th
e
am
ount of dam
ages or
cor
rec
tive action
costs wh
ich are
in exce
ss
of
the
deduc
tible
amo
unt, if
any, show
n
in
the
Decla
r
ations.
Subject to the
Aggr
egate
Lim
it
above,
th
e
mos
t we
will
p
ay in any on
e
und
erground
storage
tan
k in
cident for the
sum o
f:
(1
) A
ll damages because
of a
ll
bodily in
jury
a
nd
property
da
mage ;
a
nd
(2)
A
ll correcti
ve action costs
will be the
lesser
of
the eac
h U
ndergroun
d
Storage Tank
Incident Limit
or the
sum
of
thos
e
damage
s and
c
orrective
a
ction
costs .
Page 5
of 12
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ties,
Inc., 2000
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(3)
Coo
perate with us
in th
e
inv
estigation
o
r
set
tlement of
the cla
im
or
defense a
gainst
the
suit , requ
est or de
mand;
and
(4)
Assist
us, upon o
ur reques
t, in
the en
forcem
ent of any r
ight against a
ny pers
on
or
or
ganization
which
may b
e
liabl
e to th
e
insu
red
because o
f inju
ry
or d
amage
to
which thi
s insuranc
e
may
al
soapply
.
d. With
respect
to Coverag
e A,
no insure
d
w
ill,
e
xcept at th
at ins
ured s own cos
t,
v
oluntarily
m
ake a p
ayment, a
ssume
any oblig
ation, or
incur any ex
pense,
other than
for f
irst aid,
with
out our con
sent.
3.
L
egal Ac
tionAga
inst
Us
SECT
ION IV
CO
NDITION
S
1. Ban
kruptcy
Ba
nkruptcy or
insolve
ncy of the
insure
d
or
of the
insured'
s
e
state
will
n
ot
relieve us
o
f
ou
r
ob
liga
tion
s under this
policy.
2
. Duties I
n The
EventOf
An
Un
dergroun
d
Storage Ta
nk Incident
a. You m
ust see
to it
that
we are notif
ied
promptl
y of an
unde
rground s
torage
t
ank inci
dent
which
may resu
lt
in
a claim, re
quest,
d
emand o
r
p
roceeding
to imp
ose an
obligation
on t
he
insu
red for dam
ages
beca
use
o
f bodily
injury or
prope
rty damage
or f
or correcti
ve
ac
tion
costs . N
otice
s
hould in
clude:
(1) How,
when and
where
the
und
erground
stora
ge ta
nk incide
nt
to
ok place;
(2)
The names
and
address
es of any in
jured
person
s an
d
witn
esses;
and
(3)
The nature
and locatio
n of
any inju
ry, dam
ageo
r rele
ase .
Notice
of
an
u
ndergroun
d storag
e lank inci
de
nt is not
notice
of
a
claim un
der C
overage
A (Sect
ion
I).
N
otice o
f an underg
round
stor
age ta
nk incident
is not a re
port of an und
er
ground st
orage ta
nk inciden
t under
Coverage
B (Sec
tion I)
unless su
ch
n
otice
meets the re
p
orting
requireme
nt provided in
Paragra
ph
1 .b.(3
) under C
overage
B (Section
I)
.
b. I
f a claim is
mad
e
or
suit is bro
ught aga
inst
a
ny
In
sured, or
if
a
reque
st or d
emand is re
ceived f
rom
an impleme
nting agency
requir
in
g a
ction by you,
because of
an
undergro
und
s
torage
tank incide
nt , y
ou must see
to it th
at
we
receive prompt written notice
of
such claim,
s
uit ,
request
or demand
.
c. In
c
onnection with
an
underg
round storage
tank inciden
t ,
you
a
nd any
othe
r
invo
lved in
sured must
:
(
1) Im
mediately
send us copi
es o
f
a
ny re
quests,
de
mands, notices,
summo
nses or
le
gal papers rec
eived
in connect
ion with
the clai
m or suit ;
(2) Auth
orize us
to
o
btain reco
rds
and other
i
nformation
;
No per
son or organiz
ation has
a right
under this
polic
y:
a.
To join us as
a party o
r otherwise
bring us
into
a
suit asking
fordamag
es
from an
insured;
o
r
b.
To sue
us un
der this poli
cy unless all
of its
terms have
been
fully
compliedwith.
A person o
r organi
zation
may sue us
to reco
ver
on a
n agree
d se
ttlement or o
n
a
final
judg
ment
aga
inst a
n
insure
d; but
we will not
b
e
l
iable f
or
damages
or for
correctiv
e
a
ction costs
that
are
not paya
ble unde
r the
terms of t
his policy or t
hat
are
in
ex
cess o
f
t
he appli
cable limit
of
in
surance.
An ag
reed
settlem
ent means
a settl
ement and
re
lease
of liability
signed
by us, the
insured
and
th
e
claima
nt
or th
e cla
imant's legal
represen
tative.
4. O
ther Insura
nce
If oth
er
v
alid
and collect
ible
insurance is
available
to the
ins
ured
f
or
a
loss w
e co
ver
u
nder this
pol
icy
, o
ur
ob
ligations a
re limted
as
follows:
a
.
Pr
imary Ins
urance
This in
surance
Is prim
ary except
when b
. be
low app
lies. Whe
n this
insura
nce is prim
ary,
our o
bligations
are
n
ot af
fected
unless a
ny
o
f
the o
ther
insuran
ce
is also
primary. Then,
we
will
share
with all (
hat other
insura
nce by th
e
metho
d described
in c. below
.
©
ISO
Prope
rties, Inc.
, 2000
Page 6 o
f 1
2
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c. Method
OfShar
ing
If all
of th
e
other
ins
urance permit
s
c
ontribu
tion by equ
al shares
,
we
will
follow
this
method
also.
U
nder this
approach each
insurer con
tributes
equa
l
amoun
ts un
til
R has pa
id its ap
plicable
limit
of insurance
or
none of the loss
remains, whi
chever
comes first.
if any of t
he
other insurance does
not permit
contribut
ion by
equ
al shares,
we w
ill
cont
ribute
by
lim
its. Under this
method, each
in
surer s
sha
re
is based
on the rati
o of
its
applicabl
e
limit of insurance to th
e total a
pplicable lim
its
of insuran
ce of
all
insurers.
5. Pr
emium udit
a. We wi
ll compu
te
ail
prem
iums for this poli
cy
in
acco
rdancewith ou
r rules and rales.
b. Premiu
m shown in
this po
licy
as a
dvance
premium is a
deposit p
remium only. At the
clos
e of each aud
it period we
will compute the
earned premium for
that
period and send no
tice to
the first
Named Insured. The due
date
for
audit
and
retros
pective premiu
ms is the
date
shown
as the
due
date
on
the bill. If
the
sum of
the advan
ce and audit
premiums pa
id
for the
policy
period
is greate
r
tha
n the earne
d
prem
ium, we
will return
the
exces
s
to
Ihe first
N
amed Insured.
c. Th
e first Named Insured
must keep
records
of
the informat
ion we need
for
pr
emium
computa
tion, and
s
end us
c
opies at such
times
as
we
may reques
t.
6. Repr
esentations
By
accep
ting
this policy,
you agree:
a.
The statements
in
the Declarations
of
this
policy are
accu
rate
and c
omplete;
b.
Those statem
ents
are
based upon
representa
t
ions
you ma
de
to
us;
and
c
. W
e have
issu
ed
this polic
y
in relian
ce
upon
your represen
tations.
7.
Separation f
Insureds
Except wi
th respect to
the Limits Of Insurance,
the
Defense
Expense Amount,
and
an
y r
ights or
d
u
ties
specificall
y
assigned in
this
policy to the
first
N
amed In
sured, this insu
rance applies:
a. As if eac
h Named Insu
red were t
he on
ly
Named Ins
ured;
and
b.
Separately
to
each insured
against
whom
c
laim is made
or suit is brought.
b.
Exces
s
In
surance
(1)
This insu
rance is
excess over any
of the
othe
r insur
ance,
whe
ther primary,
excess,
contingent or
on any other ba
sis, that is
ef
fec
tive prior to the begi
nning of the p
olicy
period shown in the
Declarationsof
this pol
icy an
d ap
plies
to
bodil
y
injur
y or prop
erty da
mage o
n other than a c
laims-made
basis
or
corrective action costs o
n oth
er
th
an
an
incident-rep
orted
basis,
if:
a No
Retr
oactive Date
is shown in
the
D
eclarations of this
policy; or
(b)
T
he othe
r insurance has a p
olicy p
eriod
which
continues afte
r the Retroac
tive
Date show
n in
ihe Declara
tions of this
policy.
2
W
hen
this
insuranc
e is exc
ess, we
will
hav
e no
duty under Section
Under
ground
Storage Tank
Covera
ge to defend
the insured
agains
t
an
y suit if any
other
insurer h
as
a
duly to
defend
the insured
against
th
at
su it . If
no ot
her insurer de
fends and the
Defense
Expense
Amount
under
this
policy
ha
s
n
ot been use
d
up,
we
will unde
rtake
to
pr
ovide a defense
In ac
cordan
ce with the
provision
s
of Parag
raph
3.
of
Sect
ion Undergro
und Storage
Tank
Coverage. Ho
wever, w
e will be entitled to
th
e insureds
rights against
all tho
se other
insur
ers.
(3) Wh
en
t
his insura
nce is excess
over o
ther
insuran
ce, we
will
pay
on
ly
our share
of the
am
ount of
the
loss,
if any,
that
e
xceeds th
e
sum
of:
(a) The total
amount
that all such
other
insurance
would pay for
the los
s
in
the
absence of
this
ins
urance; and
(b) Th
e
total
of all deducti
ble
and
self
-
insure
d amount
s
und
er
all
that
other
in
surance
(4) We will share
the
remaining lo
ss,
if
any,
with
any
other insurance tha
t is not de
scribed
in
this
Excess I
nsurance Provision
and w
as not
bought
specifically to apply in
excess
of ihe L
imits
Of In
surance shown
in
t
he Decl
arations of this policy.
©
ISO Propertie
s, Inc., 2000
Page
7
of 12
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12.Financial
Responsiblity
And Reimbursement
if
this policy is issued to certify your
compliance
with the Federal Environmental Protection
Agency
financial responsibility requirements imposed on
you as
an
owner or
operator of
an insured tank ,
we will
comply
with
such
financial responsibility
requrements.
You agree to
reimburse us
for
any
payment made by us
on your
behalf which
we
would not have been obligated to make under the
terms of this policy
but for the
agreement con
tained
in the
first
sentence
of this
condition.
8.
Transfer Of
Rights
Of RecoveryAgainst
Others To Us
if the
insured
has rights to
recover
all or part
of
any
payment
we
have made under this
policy,
those rights are transferred to us. The insured
must
do nothing
after
loss to Impair them.
At
our
request, the insured will bring suit or transfer
those
rights to
usand
help us
enforce them.
9.
Policy Issued
To Comply
Wth
Law
Or
Reguation
When requested, we agree to furnish to the direc
tor
of the
implementing
agency a signed
dupli
cate original of this policy and all endorsements
issued with this policy.
10.Cance latlon
a.
The
first Named Insured
may cancel this policy
by
mailing
or
delivering to
us
advance
written
notice
of
cancellation.
b.
We
may cancel this
policy
by sending
by
certi
fied mail, or delivering,
to
you a written notice
at
your last
mailing
address known to us.
Cancellation will be
effective:
(1)
10 days after
you
receive notice
of cancel
lation if we
cancel for
nonpayment
of pre
mium
or
misrepresentation by you; or
(2)
60 days after you receive notice
of
cancel
lation
ifwe cancel forany other reason,
unless we specify a later date in our notice as
the
effective
date of
cancellation.
c. If
this policy
is cancelled, 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 ef
fective even
if we
have not made or offered a
refund.
11. Nonrenewal
If we decide not to renew this
policy,
we
will
send
written notice of nonrenewal
to you
at least 60
days
before
the end of the policy period.
We will
send
our
nonrenewal notice by
certified mail, or
deliver it,
to you at
your
last
mailing address
known to us.
13. Examination OfYour Books And Records
We may
examine and audit
your
books and rec
ords
as
they relate
to
this policy at
any
time during
the policy
period
and
up to
three years
afterward.
14. Inspections
And
Surveys
a.
We have the
right,
but are not obligated, to:
(1)
Make
inspectionsand surveys
at
anytime;
(2)
Give you reports
on
the conditions we find;
and
(3)
Recommend
changes.
b. Any inspections, surveys, reports or recom
mendations relate only
to
insurability
and the
premiums to
be charged.
We
do not make
safety inspections.
We
do not undertake
to
perform Ihe duty of any
person or organization
to
provide for the health or safety of workers or
the public.
And we
do
not warrant that
condi
tions:
(1) Are safe
or
healthful; or
(2) Comply
with
laws, regulations, codes or
standards.
c.
This
condition
applies not
only
to
us,
but
also
to
any rating, advisory, rate service or
similar
organization which
makes
insurance inspec
tions, surveys, reports
or
recommendations.
© ISO
Properties,
Inc.,
2000
Page
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of
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b.
When either of
the
following
has
occurred:
(1) A limit of insurance has actually
been
used
up in the payment of
judgments
or
settle*
menls for damages or In the payment
of
correctiveactioncosts ; or
(2)
The Defense Expense
Amount
has
actually
been used
up
in the
payment or
reim
bursement
of
defense
expenses ,
we will:
(a) Notify the
first
Named Insured in writing,
as soon as
practicable, that:
(i)
Such a
limit has actually been used
up and that
our
duty
to
defend the
insured against suits seeking
dam
ages
subject to
that limit has also
ended;
or
(ii)
The Defense
Expense Amount
has
actually
been used up and
that our
duty to defend
the
insured against
any
suit ,
seeking damages
has
ended,
whichever Is
applicable.
(b) Initiate, and cooperate
in,
the transfer
of
control, to any
appropriate
insured, of
15. Premiums
The
first
Named
Insured
shown in the Declara
tions:
a. Is
responsible for the payment
of all
premiums;
and
b.
Will
be the payee for any return premium we
pay.
16. If
You
Are
Permitted
To
Retain Defense
Counsel
If
by mutual agreement or
court
order
the
Insured
is given the
right
to retain defense counsel and
neither
the
Limit Of Insurance
nor
the
Defense
Expense Amount has
been
used up, the following
provisions
apply:
a.
We retain
the
right,
at
our discretion,
to:
(1) Settle,
approve
or
disapprove the settle
ment
of
any claim or
suit ; and
(2)
Appeal
any
Judgment, award or
ruling
at
our
expense.
b. You
and
any
other involved
insured must:
(1) Continue
to comply
with the Duties In The
Event
Of An Underground
Storage
Tank
incident Condition (Paragraph 2. of this
section) as well as
the other
provisions
of
this
policy; and
(2)
Direct defense counsel of the insured to:
(a)
Furnish us with the
information
we
may
request to evaluate suils
under
this
policy for those suits ; and
(b) Cooperate with any counsel
we
may
select to
monitor
or associate
in the
de
fense of those suits .
17.Transfer Of Duties When
A Limit
Of
Insurance
Or
The Defense
Expense
Amount Is
Used
Up
a.
If we
conclude that,
based on
underground
storage tank
incidents ,
claims
or
suits
which
have
been
reported
to
us and
to
which
this
in
surance may apply:
(1)
A limit
of
insurance is likely
to
be
used
up
in the payment
of
judgments or settlements
for
damages
or in the payment of correc
tive action costs ; or
(2) The Defense Expense Amount is likely
to
be used
up
in the payment or reimburse
ment of defense expenses ,
we will
notify
the
first
Named
Insured,
in writ
ing, to that effect.
all:
(i)
Caims;
and
(ii)
Suits
for which
the
duty lo defend
has
ended
for the
reason
described
in b.(1)
orb.(2)
above
and
which
are
reported to
us before
that
duty to defend ended.
(c) Take such
steps, as
we deem
appropri
ate, to
avoid
a
defaut
in,
or
continue
the
defense of,
such
suits until
such
transfer
is completed, provided
Ihe ap
propriate insured Is cooperating in
com
pleting
such
transfer.
c.
When
either b.(1) or b.(2) above has occurred,
the
first
Named insured, and any
other
insured
involved in a suit seeking damages
subject
to
that
iimit,
must:
(1)
Cooperate in the transfer of control
of
claims and suits ; and
(2)
Arrange
for the defense of such suit
within such lime period as agreed
to
be
tween the appropriate
insured
and us. Ab
sent any such agreement, arrangements
for
the
defense
of
such
suit mustbe made
as
soon as practicable.
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(ii) Cooperate with any counsel we may
select
to
monitor or
associate in de
fense of those suits .
(3)
Vouhave the
right to settle
anyoutstanding
or additional
claims or suits . However, our
obligation to pay for such
a
settlement
is
limited
to
the amount within
or
up
to
the
available limit
of
insurance.
g.
The exhaustion
of:
(1) Anylimit of
insurance by the payment of:
(a) Judgments or settlements for damages;
d.
We
will take no action with respect to defense
for any
claim
or
suit if
such
claim or suit is
reported
to
us after:
(1) The
applicable
limit of insurance has been
used
up,
even
if
the Defense Expense
Amount
has not
been used up;
or
(2)
The
Defense Expense Amount has been
used
up,
even
if
the limit of insurance
has
not
been used up.
When
either
d.(1) or d.(2) above
has
occurred,
it becomes the responsibility of the first Named
Insured, and any other insured involved in
such a claim or suit ,
to
arrange
defense
for
such
claim or
suit .
e. The first
Named Insured
will
reimburse us for
expenses we
incur in
taking
those steps
we
deem appropriate in accordance with Para
graph
b.
above.
The duty of the
first Named Insured to
reim
burse us will begin
on:
(1) The dale
on
which the
applicable
limit of
insurance is used up. if
we
sent notice in
accordance
with
Paragraph
a.
above; or
(2) The
date
on
which we sent notice
in
accor
dance
with Paragraph
b.
above,
if we did
not send notice in accordance with Para
graph a.
above.
f.
If a limit
of
insurance is available for
payment
of
damages or
corrective
action
costs , and
If
our duty to defend the insured against suits
and to pay defense expenses has
ended
be
cause we have
used
up the Defense Expense
Amount
and we have
transferred the control
of
defense
of
suits to you, the following
provi
sions apply:
(1) We retain
the right, at our
discretion,
to
appeal
any judgment,
award
or ruling
at
our
expense.
(2)
Youand
anyother involved insured must:
(a)
Continue to
comply
with the Duties In
The Event
Of An Underground Storage
Tank
Incident
Condition as well as the
otherprovisions
of this
policy;
and
(b) Direct defense counsel of the insured to:
(I)
Furnish
us with the information we
may
request to evaluate suits and
coverage under this policy for those
suts ; and
or
(b)
Corrective action
costs ; or
(2) The
Defense Expense
Amount
by the pay
ment or
reimbursement
of defense
ex
penses ,
and the
resuting end ofour duty
to
defend, will
not be affected by our
failure
to
comply
with
any of the
provisions of
this Condition.
SECTION
V-
EXTENDED REPORTING
PERIODS
1. We
will
provide
one or more
Extended
Reporting
Periods, as
described below, if:
a. This policy is cancelled or
not
renewed; or
b. We renew or replace this policy
with
insurance
that:
(1)
Has
a Retroactive
Date
later than the
date
shown in the Declarationsof this policy; or
(2) Does not
apply to bodily injury or prop
erty damage
on
a claims-made
basis or
corrective actions
costs1' on an
incident-
reported
basis.
2.
Extended Reporting Periods
do not
extend
the
policy period
or change
the scope of
coverage
provided. Theyapplyonlyto claims for:
a. Bodily
injury
or
property
damage caused
by; and
b. Corrective
action costs which result from
an
underground
storage
tank incident that com
menced before the
end
of the policy period, but
not before
the Retroactive Dale, if any, shown in
the
Declarations.
Once
in effect, Extended
Reporting Periods
may
not
be cancelled.
©
ISO
Properties,
Inc., 2000
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c.
The
i
nsurance
provided under th
e Supplem
en
tal Exte
nded
Reportin
g
Period
End
orsement
will be
excess
o
ver any
other valid and
col
lectible insura
nce av
ailable
to
the insured,
whether p
rimary,
excess, continge
nt o
r
on any
othe
r
basis
,
wh
ose pol
icy
period
begins
or
con
tin
ues after th
e endorsement
takes
effect,
Parag
raph
4.b.
of
Othe
r
Insuran
ce in Sect
ion
IV
Conditions will be
amended
accordingly.
d.
If th
e
S
upplemental
Exte
nded Reportin
g
P
e
riod is in effe
ct, we will
provide t
he
Suppl
e
mental
Aggregat
e Limit
a
nd a
Sup
plemental
Def
ense Expen
se
A
mount as
described below
,
but only
for claims first receiv
ed and
recorded
under
Coverage
A
and
incide
nts reported u
n
der C
overage
B
du
ring
the Supple
mental
Ex
tended
Reporting Period.
The
Sup
plemental Aggre
gate Limit Of Insur
an
ce will be
eq
ual to
thedollar amou
nt show
n
in
the Dec
larations In
effect at the end
of the
polic
y
perio
d fo
r
th
e
Ag
gregate Limit.
The Sup
pleme
ntal Defense
Expense A
mount wi
ll
be
equal
to
the d
ollar amount
shown in the Decla
rations in
effect at the
end of th
e policy period
for the
D
efense Expen
seAmou
nt.
Paragraph
s 1.b. and
2. of Section
III
Limits
Of Ins
urance A
nd Defense Exp
ense A
mount
will beamen
ded according
ly.
SECTIONVI
DEF
INITIONS
1.
Bodi ly
Injury
means b
odily injury,
sick
ness or
dis
ease
sustaine
d by
a
person, including d
eath re
sulting
from
any
of
these
at any
tim
e.
2. Corrective ac
tion
costs mean
s reasonable and
necessary
expenses
incurred by y
ou in response
to
a
confirmed underground
storage
tank
inci
den
t for
co
rreclive
aclio
n
as
specified in
40
CFR
Sect
ions 280.60-2
80.67 and 40
CFR Section
280.72 promulgate
d by
the Federal
Environme
ntal
Protection
Agency (EPA).
3
. Covera
ge
territo
ry means
the
U
nited
States