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ORIGINAL

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FILED

Superior Court of California

P.K.SCHRIEFFERLLP

Paul K. Schrieffer, Esq. (CSB# 151358)


Wayne H. Hammack, Esq. (CSB# 202709)

County ofLos Angeles

100 N. Barranca Avenue, Suite 1100

West Covina, California 91791


Telephone: (626) 373-2444
Facsimile: (626)974-8403

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OtC 102015
r, Executive Officer/Cleri:
SherriR.Cj
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By_

'Judl Lara

Attorneys for Plaintiffs CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON


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rULlCY NO. Bl1672025a

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SUPERIOR COURT OFTHE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES, CENTRAL DISTRICT

BC 6 0I 7 1

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CERTAIN UNDERWRITERS AT

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Case No.:

LLOYD'S OF LONDON SUBSCRIBING


TO CONTINGENCY NON

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ASSIGNED FOR ALL PURPOSES TO: THE

APPEARANCE AND CANCELLATION


POLICY NO. Bl 1672025a,

HONORABLE

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DEPT.:

Plaintiffs,
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vs.

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COMPLAINT FOR:

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NICKELBACK; NICKELBACK
PRODUCTIONS, INC; CHAD

1. DECLARATORY RELIEF RESCISSION

KROEGER; and DOES 1-75, inclusive,


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2. DECLARATORY RELIEF-NO DUTY

Defendants.

TO INDEMNIFY

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Plaintiffs CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON SUBSCRIBING


TO CONTINGENCY NON-APPEARANCE AND CANCELLATION POLICY NO.

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Bl1672025a ("Underwriters"), on information and belief and in support of thgir^mplaint,

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allege as follows:

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INTRODUCTION

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Ihis is an insurance dispute between sophisticated parties^o a*contjftgn,Sy non< >

appearance and cancellation policy. Plaintiffs Certain Underwriters at Lloyd's?of londorl


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Subscribing to Contingency Non-Appearance and Cancellation Policy No. Bl 1672025a


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COMPLAINT FOR DECLARATORY RELIEF

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regarding Chad Kroeger's pre-existing vocal cord condition.

Underwriters issued the Policy to Nickelback as the Assured for coverage in connection
with Nickelback's series of concerts known as the "No Fixed Address" Tour which was to
consist of performances in North America, Australia, Asia, and Europe between February and

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late-November 2015. Nickelback is a Canadian rock band from Hanna, Alberta. The Insured

Persons under the Policy are the members ofthe band Nickelback, specifically: Chad Kroeger
(lead vocalist and guitarist), Ryan Peake (guitarist and back-up vocalist), Mike Kroeger (bassist)

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("Underwriters") seek rescission ofthe policy or alternatively ajudicial determination that there
is no coverage for any claims made under Contingency Non-Appearance and Cancellation
Policy No. Bl 1672025a (the "Policy") due to material misrepresentations and non-disclosures

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and Daniel Adair (drummer and percussionist), hereafter collectively "Nickelback."

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2.

Between late-June and 2015 early July 2015, Underwriters were informed that

the lead singer of Nickelback, Chad Kroeger, was diagnosed with acondition for which surgery
was needed and which would prevent Nickelback from performing any of the remaining
scheduled tour dates, which included the entire 3rd Leg ofthe tour (35 performances in North
America) and the 4th Leg (30 European performances). As aresult, those dates were cancelled.

3.
The Assured, Nickelback, made a claim for coverage under the policy and
Underwriters have sought to obtain documents and other information necessary to determine
Nickelback's entitlement to coverage under the policy. The parties have an actual and present

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controversy regarding what coverage, if any, is afforded under the policy and/or whether the

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policy should be rescinded for non-disclosures and/or misrepresentations as more fully set forth
below. Nickelback has failed and refused to provide Underwriters with necessary information,
including but not limited to, information and documents regarding Chad Kroeger's medical
history, which Underwriters are informed and believe are directly relevant to and necessary for

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the determination of whether Nickelback's claim is covered.

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COMPLAINT FOR DECLARATORY RELIEF

THE PARTIES
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5.
Underwriters are informed and believe and thereon allege that defendant
Nickelback is a legal entity ofunknown form, existing in the State ofCalifornia, and identified
in the insurance Policy at issue in this proceeding as Nickelback, c/o GSO Business

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Management, LLC, 15260 Ventura Blvd., Suite 2100, Sherman Oaks, CA 91403.

6.

Underwriters are informed and believe and thereon allege that defendant

Nickelback Productions, Inc. isa corporation duly organized under the laws ofCanada.

7.

The true names and capacities, whether individual, corporate, associate, or

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otherwise, of defendants DOE 1 through DOE 75, inclusive, are unknown to Underwriters who

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therefore sue such defendants by such fictitious names, and Underwriters will amend their

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complaint to show the true names and capacities when the same have been ascertained.

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Underwriters are informed and believe and thereon allege that DOE 1 through DOE 75,

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inclusive, are responsible in some manner for the events and happenings referred to herein.

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8.

Underwriters are informed and believe and thereon allege that the complaint is

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filed in the judicial district which is the principal place where Nickelback, c/o GSO Business

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Management, LLC does business.

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Contingency Non-Appearance and Cancellation Policy No. Bl 1672025a ("Underwriters").


Underwriters are authorized to and do issue insurance to California residents through licensed
surplus line brokers inaccordance with the laws ofthe State ofCalifornia.

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Plaintiffs are Certain Underwriters at Lloyd's of London Subscribing to

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4.

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FACTUAL BACKGROUND AND GENERAL ALLEGATIONS

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A.

The Policy

9.
In or about late-November/early-December 2014, Nickelback, by and through its
agent and insurance broker, Doodson Broking Group, began seeking insurance coverage from

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Underwriters for Nickelback's "No Fixed Address Tour," which was scheduled to commence in

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North America on or aboutFebruary 14, 2015.

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10.

Thereafter, and in exchange for valuable consideration, Underwriters issued

Contingency Non-Appearance and Cancellation Policy No. Bl1672025a (the "Policy") to


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COMPLAINT FOR DECLARATORY RELIEF

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Assured Nickelback c/o GSO Business Management, LLC, and Insured Persons: Chad Kroeger,

Ryan Peake, Mike Kroeger and Daniel Adair, effective January29,2015 to November 25,2015,'

with a$26,722,200 limit ofindemnity.

11. Over the ensuing months, the Policy was amended seven times via Contract
Endorsement. Endorsement No. 7, effective June 15, 2015, reflected arevised total limit of

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indemnity of $22,780,953.75. The revised limit of indemnity for Leg 3of the Tour (North
America) was $8,923,578.75. The revised limit of indemnity for Leg 4of the Tour (Europe)
was $4,182,375. Thus as of the date of the cancellations, the total limit of indemnity for the
remaining dates was $13,105,953.75.

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respect to Nickelback for the following dates:

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LCg l~2015iOrth American Performances between February 14 and April 7,

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\*11" 6U2alian Perforniances between May 15 and June 3,2015;

2015

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Amencan Performances between June 19 and September 4,

LC *~20ifUrPean Performances between September 30 and November 24,

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2?a

The Policy provides coverage for "Insured Performance^) or Event(s)" with

13. Underwriters are informed and believe and thereon allege that the first two Legs
of the Tour were completed. It was just before the commencement of Leg 3that Underwriters
were informed of Chad Kroeger's illness, which has been widely reported on in the press and
social media. Thereafter, Underwriters were informed that Kroeger would need surgery for a
vocal cord cyst and that the remaining dates (Legs 3and 4) would be cancelled.

14.

The Policy sets forth the Insured's Duty to disclose material information as

follows:

Material information is information that would influence an Insurer in


deciding whether arisk is acceptable and, ifso the premium, terms

S?,SStr
disdose
a11 such
^rmation
result in the policy a?pHed,FailUre-t?
being rendered void and
as aresult
claims
may notcould
be

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AH material information must be disclosed to insurers to enable

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terms to be negotiated and cover arranged. This is not limited to


answering specific questions that may be asked. Any changes which

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COMPLAINT FOR DECLARATORY RELIEF

The duty ofdisclosure is re-imposed when there are changes or

variations in cover and when the policy is renewed or extended

In addition, changes which substantially increase the risk, or relate to


compliance with awarranty or condition in the policy must be notified at

once.
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Please contact us ifyou are in any doubt as to whether or not information

might be material orif you any concerns that Arthur Doodson (Brokers)

Limited might not be aware of all material information.


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The Policy also states as a condition precedent that:


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It is acondition precedent to the liability of Insurers that all Insured persons


have been fit and healthy for aperiod ofthirty (30) days prior to Inception.

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15.

The Policy provides indemnity to Nickelback for its Ascertained Net Loss and

Additional Costs as set out in Clauses 1.1,1.2 and 3.1 ofthe Policy.
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16.

The Policy provides inpertinent part as follows:

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1.

INSURING CLAUSE

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1.1
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Subject always to the terms, conditions, limitations and exclusions

contained herein orendorsed hereon this Insurance is to indemnify the


Assured [Nickelback] for their Ascertained Net Loss should any Insured

Performance(s) or Event(s) specified in the Schedule be necessarily

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Cancelled, Abandoned, Postponed, Interrupted or Relocated.

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Provided that:

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the necessary Cancellation, Abandonment,


Postponement, Interruption or Relocation is the

(1.1.1)

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sole and direct result of one ormore of the perils

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described in 2.1 to 2.6 below and

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(1.1.2)

such peril is stated in the Schedule to be Insured

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and

(1.1.3)

such peril is beyond the control of:


(i)

the Assured [Nickelback] and

(ii)
(iii)

each and every Insured Person and


in respect of peril 2.6 belowthe Assured and the
Insured Person(s).

(1.1.4)

the circumstances giving rise to the loss first occurs


duringthe Period of Insurance stated in the
Schedule.

Additional Costs:
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1.2

diminish a loss herein insured.

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The Policy's "Perils" include at clause 2:


Accident Illness:

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ACCIDENT to or ILLNESS ofany Insured Person which, in the opinion


ofan independent medical practitioner approved by the Underwriters,
entirely prevents any Insured Person from appearing or continuing to
appear in any or all ofthe Insured Performance^) orEvent(s).

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This insurance also indemnifies the Assured for proven additional costs
orcharges reasonably and necessarily paid by the Assured to avoid or

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The Policy also includes, in relevant part, the following terms, conditions and

exclusions:
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Truth of Statements:

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truthfully declared all material facts likely to influence a reasonable


Underwriter in determining:

(4.1.1) whether ornot to accept the risk orany subsequent amendment,


(4.1.2) the premium,

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(4.1.3) theconditions, exclusions andlimitations,

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having diligently made allnecessary inquiries to establish those facts.

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It is a condition precedent to the liability of the Underwriters that the Assured


has:

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CONDITIONS PRECEDENT

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Pre-existing Medical Conditions:

(4.2.1) established to their best knowledge and beliefafter making


diligent inquiry that no insured Person has any physical, mental or
medical condition or is undergoing any treatment, medical or
otherwise, other than those advised to the Underwriters and
agreed by them in writing, and that each Insured Person is fit to
fulfil the commitments insured herein.

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COMPLAINT FOR DECLARATORY RELIEF

(4.2.2) accepted that any such pre-existing condition in (4.2.1) agreed by

the Underwriters will only be covered hereunder ifthe Insured

otherwise essential to the Insured Person's well-being during the

Person continues to follow any prescribed regime medical or

period of this Insurance.

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Other Pre-existing Conditions:

(4.3.1) no knowledge at inception, ofany undisclosed matter, fact or


circumstance, actual orthreatened, that increases orcould increase

the possibility of a loss under this Insurance.

(4.3.2) confirmed that no Insured Person has knowledge at inception, of


any undisclosed matter, fact orcircumstance, actual orthreatened,
that increases orcould increase the possibility ofa loss under this

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Insurance.

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(4.5)

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Obligation to Rearrange:

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(4.6)

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declared that all information contained inthe written Proposal


Form orsupplied to support such proposal orother application for
this Insurance isin all respects true and complete and unchanged
atthe inception ofthis Insurance. Further the Assured agrees that
all such informationis material, such items form the basis of this
Insurance and are incorporated herein.

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Materiality of Information:

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an obligation to rearrange Cancelled or Abandoned Insured


Performance(s) or Event(s) to another time in orderto avoid or
diminish a loss herein Insured.

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5.

WARRANTIES

It is warranted that the Assured shall:


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Contractual requirements and authorizations:

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(5.3) ensure that all necessary contractual arrangements have been


madeand confirmed in writing with the Assured and that all

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necessary authorizations (which for the avoidance of doubt shall

include, but not belimited to, the obtaining oflicenses, permits,


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visas, copyright and patents) are obtained in atimely manner and


valid for the period ofthe Insured Performance^) or Event(s).
GENERAL CONDITIONS
False or Fraudulent Acts:

(6.1) Any fraud, misstatement or concealment in the information

provided or in the making ofaclaim or otherwise howsoever,

shall render all claims hereunder forfeit.


Due DiligenceClause:

(6.2) The Assured shall at all times do and concur in doing all things
necessary to avoid or diminish a loss under this Insurance.
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Compliance with Terms:


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(6.4) The Assured shall observe and fulfill the terms and conditions
contained herein or endorsed hereon.

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Maintenance of Records:

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(6.9) The Assured shall maintain adequate records in connection with

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the subjectmatter issued hereunder.

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EXCLUSIONS

This Insurance does not cover any loss directly or indirectly arising out

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of, contributed to by, or resulting from:

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Personal Incapacity:

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(7.3.3) insufficient voice quality, unless directly due to illness or disease


contracted orbodily injury occurring during the Period of

Insurance,
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(7.3.6) their unreasonable or capricious behavior,


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COMPLAINT FOR DECLARATORY RELIEF

Duty of Care:

(7.4) the Assured's or any Insured Person's lack ofcare, diligence or


prudent behavior, the result ofwhich would increase the risk,
and/or likelihood of a loss, hereunder.

(7.5) the illegal possession or illicit taking ofdrugs and their effects.
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Contractual Requirements and Authorizations:

(7.13.3)

ensure that all necessary contractual arrangements were


made and confirmed in writing with the Assured andthat

allnecessary authorizations, (which for the avoidance of

doubt shall include, but not be limited to, the obtaining of


licenses, permits, visas, copyright and patents) be obtained
ina timely manner and valid for the period ofthe Insured

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Performance(s) or Event(s).

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Fraud:
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(7.14) any fraud, misrepresentation orconcealment by the Assured or


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any Insured Person.


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8.

CLAIMS PROCEDURE

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Insurance, the Assured shall:

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It is a condition precedent to the liability of the Underwriters that in the event of


a happening or circumstance which could give rise to a claim under this

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(8.1.1) as a matter ofurgency give notice by the most expeditious means


ofthe happening ofany circumstance, to the name(s) designated
in the attached Schedule;

(8.1.2) confirm the facts in writing assoon aspossible, with as much


informationas available;

(8.1.3) make no admission ofliability without the prior written consent of


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the Underwriters;

(8.1.4) take all steps tominimize oravoid any loss hereunder;

(8.1.5) provide the Underwriters ortheir appointed representatives with:


(i)

allnecessary assistance ina timely manner,

(ii)

all information required,

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COMPLAINT FOR DECLARATORY RELIEF

(iii)

all documentation and records necessary to establish and

assess indemnity hereunder and copies ofextracts as may


be required;

(8.1.6) prove the loss to the satisfaction ofthe Underwriters;

(8.1.7) forward immediately to the Underwriters or their representatives


any letter, writ or other document received in connection with any

claim made under this insurance.


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may bedesignated by the Underwriters ortheir representatives.

8.3

as soon as ispracticable render a signed and sworn proof ofloss to


the Underwriters or their representative to substantiate the

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asoften asmay bereasonably required submit to examination

under oath on all matters connected with a claim, by any person


named by the Underwriters atsuch reasonable time and place as

occurrence, nature, cause and amount of loss claimed under this


Insurance.

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19. After Chad Kroeger's reported illness and Nickelback's ensuing decision to
cancel the remaining performances for the 3rd and 4th legs ofthe tour, Nickelback made a claim
for benefits under the Policy. As has been widely reported in the media and by Nickelback on

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its social media accounts and in the press, Mr. Kroeger underwent surgery to remove a cyst

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from his vocal cord in July 2015.

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20. Underwriters are informed and believe and thereon allege that Mr. Kroeger had a
pre-existing condition on his vocal cord ("the condition"), pre-dating inception ofthe policy,

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which was never disclosed to Underwriters prior to the inception ofthe Policy. The condition

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constitutes material information as defined in the Policy which should have been disclosed and

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which was material to Underwriters' decision whether to issue the Policy, set premium for the
Policy, and/or setting the terms, conditions and exclusions ofthe Policy.

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The Insurance Claim

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21. Underwriters are informed and believe, and thereon allege, that their ability to
investigate and evaluate the claim remains impaired because all requested information has not,

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to date, been provided by Nickelback.

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COMPLAINT FOR DECLARATORY RELIEF

22.

While Underwriters have continued to conduct their investigation, they have

continued to reserve all of their rights under the Policy's terms and conditions and California
law, specifically including their right to rescind the Policy.

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(Declaratory Relief- Rescission Against All Defendants)

23. Underwriters incorporate paragraphs 1 through 22 as if set forth in full in their


First Cause of Action for Declaratory Relief - Rescission.

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FIRST CAUSE OF ACTION

24. Underwriters allege that the Policy benefit is not due and/or owing to defendants
and that the Policy is properly subject to rescission. Underwriters allege that the Policy is void

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ab initio based on material non-disclosures and/or misrepresentations and/or concealments by,

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and/or on behalfofdefendants during the underwriting ofthe Policy.

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Underwriters are informed and believe and thereon allege that defendants failed

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to communicate to Underwriters and ought to have communicated to Underwriters that which

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defendants knew about Mr. Kroeger's medical history, including but not limited to the pre
existing condition which was material to Underwriters' decision whether to issue the Policy, set
premium for the Policy, and/or set the terms, conditions and exclusions of the Policy.

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Underwriters are informed and believe that Mr. Kroeger had been previously treated for the

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condition dating back as far as the Spring of2012, and that the condition was diagnosed as of

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the Spring of 2012.

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26. Underwriters are further informed and believe and thereon allege that defendants
knew or should have known, based upon a diligent inquiry as required by the Policy, that the
condition had been diagnosed and treated since the Spring of2012.

< 41 a

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Underwriters are informed and believe and thereon allege that defendants

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contend that they are entitled to coverage under the Policy in the amount of $13,105,953.75.

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Underwriters further allege on information and belief that defendants do not agree that the

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Policy is properly subject to rescission nor do they agree that the Policy is void ab initio based

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upon material misrepresentations and/or concealment.

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COMPLAINT FOR DECLARATORY RELIEF

rescinded and Underwriters hereby tender repayment ofall premiums received.

29. By reason of the foregoing, there exists now an actual, justiciable controversy
between the parties and with respect to their rights and obligations under the policy. This Court
is vested with the power to declare and adjudicate the rights and legal obligations of the parties

to this action with reference to the issues raised by this Complaint. Underwriters desire a
judicial determination ofthe rights and obligations ofeach ofthe parties to this action under the

Policy. Ajudicial determination is necessary and appropriate at this time in order that each of

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the parties may ascertain their respective rights and duties as to each other and may conduct

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themselves accordingly nowandin the future.

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30. Underwriters request that this Court make and enter its biding judicial
declarations in accordance with their contentions above. The requested declarations are both
necessary and proper at this time under the circumstances in that the interests of judicial

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Underwriters accordingly have no adequate remedy at law. Underwriters

therefore request that the Policy be declared null and void ab initio, and that the Policy be

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economy andsubstantial justice will be served thereby.

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SECOND CAUSE OF ACTION

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(For Declaratory Relief- No Duty to Indemnify Against All Defendants)

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31.

Underwriters incorporate paragraphs 1 through 29 as if set forth in full in their

Second Cause ofAction for Declaratory Relief- No Duty to Indemnify.

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32.

In the alternative, an actual controversy has arisen and now exists between

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Underwriters and defendants. Underwriters contend that they have no duty to indemnify

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defendants because the tender is expressly excluded by Conditions Additional, Conditions

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Precedent, General Conditions, and Exclusions in the Policy and because defendants are in

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breach of the Policy conditions regarding providing necessary information, assistance, and

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documentation.

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COMPLAINT FOR DECLARATORY RELIEF

Peril Not Beyond the Control ofthe Insured

33. Underwriters contend that they have no duty to indemnify defendants based upon
the Policy's Insurance Clause because such peril, as described in the Policy, was not beyond the

control of defendants. The Insurance Clause states:


1.

INSURING CLAUSE
1.1

Subject always to the terms, conditions, limitations andexclusions

contained herein orendorsed hereon this Insurance is to indemnify


the Assured [Nickelback] for their Ascertained Net Loss should
anyInsured Performance^) or Event(s) specified in the Schedule

be necessarily Cancelled, Abandoned, Postponed, Interrupted or


Relocated.

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Provided that:
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(1.1.1)

the necessary Cancellation, Abandonment,


Postponement, Interruption or Relocation is the

soleand direct result of one or more of the perils

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described in 2.1 to 2.6 below and


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(1.1.2)

such peril is stated in the Schedule to be Insured


and

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(1.1.3)

such peril is beyond the control of:

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(1.1.4)
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(i)

the Assured [Nickelback] and

(ii)
(iii)

each and every Insured Person and


in respect of peril 2.6 belowthe Assured and the
Insured Person(s).

the circumstances giving riseto the loss first occurs


during the Period of Insurance stated in the
Schedule.

34. Underwriters allege on information and belief that the "peril" was not beyond the
control ofthe Insured, in this case, Chad Kroeger. Underwriters are informed and believe, and
on that basis allege, that Nickelback has contended or will contend to the contrary.
Underwriters request that this Court make and enter its binding judicial declarations in
accordance with their contentions above. The requested declarations are both necessary and
proper at this time under the circumstances in that the interests of judicial economy and
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COMPLAINT FOR DECLARATORY RELIEF

substantial justice will be served thereby.

Underwriters contend that they do not have aduty to indemnify defendants based

upon the Policy's applicable Conditions Precedent, including but not limited to "Pre-existing

Medical Conditions" and "Other Pre-existing Conditions." The Policy states as Conditions

Precedent as follows:

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Pre-existing Medical andOther Conditions

4.

CONDITIONS PRECEDENT

Itisa condition precedent to the liability ofthe Underwriters that the


Assured has:

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Truth of Statements:

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4.1

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truthfully declared all material facts likely to influence a


reasonable Underwriter indetermining:

(4.1.1) whether or not to accept the risk or any subsequent amendment,


(4.1.2) the premium,

(4.1.3) the conditions, exclusions and limitations,


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having diligently made all necessary inquiries to establish those facts.


Pre-existing Medical Conditions:

(4.2.1) established to their best knowledge and beliefafter making


diligent inquiry that no insured Person has any physical, mental or

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fulfil the commitments insuredherein.

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otherwise essential to the Insured Person's well-being during the


Other Pre-existing Conditions:

(4.3.1) no knowledge at inception, ofany undisclosed matter, fact or


circumstance, actual orthreatened, that increases orcould increase

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the Underwriters will only be covered hereunder if the Insured

Person continues to follow any prescribed regime medical or

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k!

(4.2.2) accepted that any such pre-existing condition in (4.2.1) agreed by


period of this Insurance.

K>
-..

medical condition oris undergoing any treatment, medical or


otherwise, other than those advised to the Underwriters and
agreed by them inwriting, and that each Insured Person is fit to

the possibilityof a loss under this Insurance.

28

14

COMPLAINT FOR DECLARATORY RELIEF

(4.3.2) confirmed that no Insured Person has knowledge at inception, of

any undisclosed matter, fact orcircumstance, actual orthreatened,


that increases orcould increase the possibility ofa loss under this

Insurance.

Materiality of Information:

(4.5) declared that all information contained in the written Proposal


Form orsupplied to support such proposal orother application for

this Insurance is in all respects true and complete and unchanged

at the inception of this Insurance. Further the Assured agrees that


all such information is material, such items form the basis of this

Insurance and are incorporated herein.


8

Obligation to Rearrange:
9

(4.6) an obligation to rearrange Cancelled or Abandoned Insured


Performance(s) or Event(s) to another time in order to avoid or

10

diminish a loss herein Insured.

11
4i * * e

j **25

12

fltai(U

13

to indemnify defendant because Underwriters are informed and believe and thereon allege that

14

Mr. Kroeger had a pre-existing condition on his vocal cord ("the condition"), pre-dating

15

inception of the policy, which was never disclosed to Underwriters prior to the inception of the

16

Policy. The condition constitutes material information as defined in the Policy which should

17

have been disclosed and which was material to Underwriters' decision whether to issue the

18

Policy, set premium for the Policy, and/or setting the terms, conditions and exclusions of the

19

Policy.

Mil

Kg*

36.

37.

20

Underwriters are informed and believe and thereon allege that they have no duty

Underwriters allege further based upon information and belief that they have no

21

duty to indemnify defendant tothe extent that defendant has failed to comply with its obligation

22

under the Policy to rearrange cancelled or abandoned dates in order to diminish the loss under

23

the Policy.

24

38.

Underwriters request that this Court make and enter its binding judicial

25

declarations in accordance with their contentions above. The requested declarations are both

26

necessary and proper at this time under the circumstances in that the interests of judicial

27

economyand substantial justice will be served thereby.

28

///

0;

0
15

COMPLAINT FOR DECLARATORY RELIEF

No Loss - Leg 4 (European Dates)

3
4

Underwriters are informed and believe and thereon allege that there is no

obligation to indemnify defendant for any purported "loss" with respect to the fourth Leg of the
Tour. Even ifcoverage were found to exist under the Policy, Defendants have failed to provide

evidence ofproperly executed contractual obligations with respect to any ofthe venues at which

defendants were scheduled to perform in Europe during the fourth leg of the Tour. The only
documents provided by defendants are unsigned contracts, dated after defendants reported the
claim to Underwriters, which are unenforceable and impose no contractual obligations on

9
10

39.

defendants. Absent enforceable contracts for those performances, Underwriters have no duty to
indemnify Nickelback for those performances pursuant to Clause 5ofthe Policy:

11

5.

12

WARRANTIES

It is warranted that the Assured shall:

13

14

15

(5.3)

ensure thatall necessary contractual arrangements have been


made and confirmed in writing with the Assuredand that all
necessary authorizations (which for the avoidance of doubt shall

16

* 2 > a

Contractual requirements and authorizations:

include, butnot be limited to, the obtaining of licenses, permits,


visas, copyright and patents) are obtained in a timely manner and
valid for theperiod of the Insured Performance(s) or Event(s).

17

18
(ft 4) &

40.

19

to?

20

declarations in accordance with their contentions above. The requested declarations are both

21

necessary and proper at this time under the circumstances in that the interests of judicial

22

economy and substantial justicewill be served thereby.


General Conditions

23
H-

H-

Underwriters request that this Court make and enter its biding judicial

41.

24

Underwriters are further informed and believe and thereon allege that they have

25

no duty to indemnify defendants based upon the Policy's General Conditions, including, but not

26

limited to, False or Fraudulent Acts, Due Diligence Clause, Compliance with Terms and

27

Maintenance of Records. The Policy sets forth the following General Conditions:

28

///

14.''
16

COMPLAINT FOR DECLARATORY RELIEF

False or Fraudulent Acts:

(6.1)

Any fraud, misstatementor concealment in the information

provided or in the making of a claim or otherwise howsoever,

shall render all claims hereunder forfeit.


4

Due Diligence Clause:


5

(6.2) The Assured shall atall times do and concur indoing all things
necessary to avoid or diminish a loss under this Insurance.

Compliance with Terms:

(6.4)

The Assured shall observe and fulfill the terms and conditions
contained herein or endorsed hereon.

10

11

* o\ * 2

Maintenance of Records:

12

(6.9) The Assured shall maintainadequaterecords in connection with

13

the subject matter issued hereunder.

14

ft $Snn

42.

15

8i"
*u > 3

16

indemnify Defendantbased upon the above, and that Defendantcontendsotherwise.

43.

17 >

declarations in accordance with their contentions above. The requested declarations are both

19

necessary and proper at this time under the circumstances in that the interests of judicial

20

economy and substantial justice will be served thereby.

21

Personal Incapacity, Duty ofCare, Contractual Requirements andAuthorizations,

22

Misrepresentation

44.

23
K-

Underwriters request that this Court make and enter its biding judicial

18
< 4) A

&;?

Underwriters are informed and believe and thereon allege that there is no duty to

Underwriters further allege on information and belief that they have no duty to

24

indemnify Nickelback based upon the Policy's applicable Exclusions, including, but not limited

25

to, Personal Incapacity, Duty of Care, Contractual Requirements and Authorizations, and

26

Misrepresentation. The Policy includes the following:

27
28

///

///

17

COMPLAINT FOR DECLARATORY RELIEF


in-

7.

EXCLUSIONS

This Insurance does not cover any loss directly or indirectly arising out

of, contributed to by, or resulting from:

Personal Incapacity:

(7.3.3) insufficient voice quality, unless directly due to illness ordisease


contracted or bodily injury occurring during the Period of

Insurance,
8

(7.3.6) their unreasonable orcapricious behavior,

10


11

Duty of Care:

12

(7.4) the Assured's or any Insured Person's lack ofcare, diligence or


prudent behavior, the result ofwhich would increase the risk,

13

and/or likelihood of a loss, hereunder.

14

>"3N S

(7.5) the illegal possession or illicit taking ofdrugs and their effects.
15

16

8 a 5 -

Contractual Requirements and Authorizations:


17

(7.13.3)

n b 0X[ g
v f) ft.3

18

made andconfirmed in writing withthe Assured andthat


all necessary authorizations, (which forthe avoidance of

_ (ft ,4)
19

doubt shall include, but not be limited to, the obtaining of


licenses, permits, visas, copyright and patents) be obtained
ina timely manner and valid for the period ofthe Insured

20

21

22
23

ensure that all necessary contractual arrangements were

Performance(s) or Event(s).
Fraud:

(7.14) any fraud, misrepresentation orconcealment by the Assured or


any Insured Person.

24

27

45. Underwriters request that this Court make and enter its biding judicial
declarations in accordance with their contentions above. The requested declarations are both
necessary and proper at this time under the circumstances in that the interests of judicial

28

economy and substantial justice will beserved thereby.

25
26

0;

0
18

COMPLAINT FOR DECLARATORY RELIEF

I
2

5
6
7

Failure to Cooperate and Provide Necessary Information and ProofofLoss


46. Underwriters further allege on information and belief that they have no duty to
indemnify Nickelback based upon condition precedent 8 of the Policy which states that
Nickelback shall comply with the claims procedure as follows:
8.

CLAIMS PROCEDURE

It is a condition precedent to the liability of theUnderwriters that inthe


event ofa happening orcircumstance which could give rise to a claim
under this insurance, the Assured shall:

8
9

(8.1.1) as a matter ofurgency give notice by the most expeditious means


ofthe happening of any circumstance, tothe name(s) designated
in the attached Schedule;

10

JS*2
-**2S

J'-5I^2

11

(8.1.2) confirm the facts in writing as soon aspossible, with as much

12

(8.1.3) make no admission of liability without the prior written consent of

information as available;
the Underwriters;

13
14

(8.1.4) take all steps to minimize or avoid any loss hereunder;

15

(8.1.5) provide the Underwriters or their appointed representatives with:

fa. S
16

(i)
(ii)

all necessary assistance in a timely manner,


all information required,

17

(iii)

alldocumentation and records necessary to establish and


assess indemnity hereunder and copies of extracts as may

* 8 S

Hi*

v n ft5

be required;

18

i ti a

19

20
21

(8.1.6) prove the loss to the satisfaction of theUnderwriters;

(8.1.7) forward immediately tothe Underwriters or their representatives


any letter, writ orother document received inconnection with any
claim made under this insurance.

22

23

8.2

under oath onall matters connected with a claim, by any person


named by the Underwriters at such reasonable time and place as
may be designated bythe Underwriters or their representatives.

24

K'-

25

K-

26

as oftenas may be reasonably required submitto examination

8.3

as soon as is practicable render a signed and sworn proofof loss to


the Underwriters or their representative to substantiate the

27

occurrence, nature, cause and amount of loss claimed under this


Insurance.

IV

28

0
19

COMPLAINT FOR DECLARATORY RELIEF

47.

UNDERWRITERS desire ajudicial determination and declaration of their rights

and obligations under the Policy with respect to the Insurance Clause and Conditions

Additional, Conditions Precedent, General Conditions, and Exclusions in the Policy.


48. A judicial determination of the respective obligations of the parties to this
Complaint is appropriate under the circumstances, and no other adequate remedy is available to

Underwriters.

THEREFORE, Underwriters pray for judgment as follows:

FIRST CAUSE OF ACTION

10

0
- 0

fci-irt

PRAYER FOR RELIEF

11

4) ^ a

(1) An order declaring and adjudging that Contingency Non-Appearance and


Cancellation Insurance Policy No. Bl 1672025a is null and void ab initio and is rescinded;

12

(2)

13

under the Policy and that defendants are only entitled to refund of the premium paid for the

14

Policy and nothing further;

15

(3)
(4)
(5)

16

w 5 e 4>

2Ta

An order declaring and adjudicating that defendants are not entitled to benefits

17
18

An order entering judgment in favor ofUnderwriters and against defendants;


An order awarding Underwriters all recoverable costs ofsuit incurred herein; and
For such other and further relief as the Court may deem just and proper.

SECOND CAUSE OF ACTION

4 (ft 41 A
19

20
21

22

(1) An order declaring and adjudging that Underwriters have no duty to indemnify
defendants because the tender is expressly excluded by Conditions Additional, Conditions
Precedent, General Conditions, and/or Exclusions in the Policy, in addition to defendants'
failure to cooperate and provide necessary information and proofofloss;

23

(2)
(3)

24

An order entering judgment in favor ofUnderwriters and against defendants;


An order awarding Underwriters ail recoverable costs ofsuit incurred herein; and

fV'

0'

r-.j

25

///

26

///

27

///

28

///
20

COMPLAINT FOR DECLARATORY RELIEF

(4)

For such other and further relief as the Court may deem just and proper.

Dated: December 9,2015

By

PauTK. Schrieffer>

Wayne H. Hammack, Esq.


Attorneys for Plaintiffs, CERTAIN
UNDERWRITERS AT LLOYD'S OF
LONDON SUBSCRIBING TO
CONTINGENCY NON-APPEARANCE
AND CANCELLATION POLICY NO.
B11672025a
10

11

9*38

*****

12

13

* b i ^.^

14

m 5 \fl*0

15

16

"His

17

v * n ft.a

18
19

**
o

20
21

22
23
H-

24

M
25

H-

26

0;
27

N.1

28

0;
K

21

COMPLAINT FOR DECLARATORY RELIEF

l/I

ORIGINAL

Wayne H. Hammacki Esq. (CSB# 202709)

CM-010
FOR COURT USe ONLY

,^Srt^iCalifornia

P.K.SchriefferLLP

100 N. Barranca Ave^Ste.l 100, West Covina, CA 91791

TELEPHONE NO.: 626-373-2444


FAX NO.: 626-974-8403
attorney FOR (Name).Certain Underwriters at Lloyd's of London, Plaintiff

SUPERIOR COURT OF CALIFORNIA. COUNTY OF LOS AngeleS

r),secuUveOicer/CUrk

streetaodress: 111 N. Hill Street


MAILING AODRESS: Same

cityand zip code: Los Angeles, CA 90012


branch name: Central District - Stanley Mosk Courthouse

.Oepttt)'

CASE NAME:

Certain Underwriters at Lloyd's of Londonv. Nickelback, et al.


CIVIL CASE COVER SHEET

CI] Unlimited

(Amount

(Amount

demanded

demanded is

CASE NUMBER

Complex Case Designation

Limited

I 1 Counter

fZZD Joinder
JUOGE:

BC fi 0 3 7 l 8

Filed with first appearance by defendant


$25,000or less)
DEPT:
(Cal. Rules of Court, rule 3.402)
Items 1-6 below must be completed (see instructions on page 2).

exceeds $25,000)

1. Check one box below for the case type thatbest describes thiscase
Auto Tort

Contract

J Breach of contract/warranty (06)

Auto (22)

Uninsured motorist (46)

Other PVPO/WD (Personal Injury/Property


Damage/Wrongful Death) Tort

(ZH Asbestos (04)


[Z] Product liability (24)

j Medical malpractice (45)

Other Pl/PD/WD (23)

Non-PI/PD/WO (Other) Tort

Rule 3.740 collections (09)

I,. J AntitrustrTrade regulation (03)

I I Other collections (09)


LX-I Insurance coverage (18)
I I Other contract (37)

I j Construction defect (10)


CZ3 Mass tort (40)
I

I Securities litigation (28)

Real Property

j Environmental/Toxic tort (30)

II Insurance coverage claims arising from the

I Eminent domain/Inverse
condemnation (14)

above listed provisionally complex case


types (41)

I Wrongful eviction (33)

Business tort/unfair business practice (07) Lj Other real property (26)

Enforcement of Judgment

Civilrights (08)
Defamation (13)
Fraud (16)

Unlawful Detainer

l Commercial (31)

Intellectual property (19)


Professional negligence (25)
5loyment

Wrongful termination (36)

I Other employment (15)


^

2. This case II is

I Enforcement of judgment (20)

Miscellaneous Civil Complaint

CZ3 Residential (32)

Drugs (38)

Judicial Review

RICO (27)
I Other complaint (not specified above) (42)

Miscellaneous Civil Petition

Asset forfeiture (05)

Other non-PI/PD/WD tort (35)

Provisionally Complex Civil Litigation


(Cal. Rules of Court, rules 3.400-3.403)

LJ Petition re; arbitration award (11) I

Writ of mandate (02)

j Partnership and corporate governance (21)


I Other petition (not specified above) (43)

I I Other judicial review (39)

ODisnot complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the

factors requiring exceptional judicial management:

a. LJ Large number of separately represented parties

d.

Large number of witnesses

b. L_J Extensive motion practice raising difficult or novel e. Coordination with related actions pending in one or more courts
issues*at will be time-consuming to resolve

inother counties, states, orcountries, or ina federal court

c. Substantial amount of documentary evidence


f. Substantial postjudgment judicial supervision
3. Remedies sought (check all that apply): aO monetary b. QD nonmonetary; declaratory or injunctive relief c. punitive

4.__Wumber of causes of action (specify): Two (2)


5._ This case L_J is

-^

I XI js not a class action suit.

6. '"Ifthere are any known related cases, fileand serve a notice of related case.,

Date: December 9,2015


_"

Paul K. Schrieffer
(TYPE OR PRINT NAME)

NOTICE

Plaintiff must file this cover sheetwith thefirst paper filed in theaction orproceeding (except small claims casesorcasesfiled
xgnder the Probate Code, Family Code, orWelfare and Institutions Code). (Cal. Rules ofCourt, rule 3.220.) Failure tofile may result
In sanctions.

File this cover sheet in addition to anycover sheet required by local court rule.
Jf this caseiscomplex under rule 3.400 et seq. ofthe California

other parties to the action or proceeding.

Rules ofCourt, you must serve a copy of this cover sheet on all

VUnless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only.

~^
Font Adopted forMandatory Use
Judicial Council of California

CM-010 [Rev. July 1,2007]

CIVIL CASE COVER SHEET

Pago 1 of i
Cal. Rules of Court, rules 2.30.3.220.3.400-3.403,3.740:
Cal. Standards of JudicialAdministration,std, 3.10
www.courtinfo.ca.sov

UxisNexis Automated California Judicial Council Forms