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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK INSURANCE COMPANY OF NORTH AMERICA, CENTURY INDEMNITY
COMPANY, as successor to CIGNA SPECIALTY INSURANCE COMPANY (f/k/a CALIFORNIA UNION INSURANCE COMPANY), and ACE PROPERTY & CASUALTY INSURANCE COMPANY (f/k/a CIGNA PROPERTY & CASUALTY INSURANCE COMPANY), as successor in interest to CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA, but only as respects policies issued through CRAVENS, DARGAN & COMPANY, PACIFIC COAST, Petitioners, Civil Action No.

SYNGENTA CROP PROTECTION, LLC (f/k/a SYNGENTA CROP PROTECTION, INC.), BASF CORPORATION, as successor to BASF PERFORMANCE PRODUCTS LLC, as successor to CIBA CORPORATION, and NOVARTIS CORPORATION, Respondents.

PETITION TO CONFIRM ARBITRATION AWARD Petitioners Insurance Company of North America ("IN A"), Century Indemnity Company, as successor to CIGNA Specialty Insurance Company (f/k/a California Union Insurance Company) ("Century"), and ACE Property & Casualty Insurance Company (f/k/a CIGNA Property & Casualty Insurance Company), as successor in interest to Central National Insurance Company of Omaha, but only as respects policies issued

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through Cravens, Dargan & Company, Pacific Coast ("ACE P&C"), by their attorneys, for their Petition to Confirm Arbitration Award, pursuant to Section 9 of the Federal Arbitration Act ("FAA"), 9 U.S.C. 9, against respondents Syngenta Crop Protection, LLC (f/k/a Syngenta Crop Protection, Inc.) ("Syngenta Crop"), BASF Corporation, as successor to BASF Performance Products LLC, as successor to Ciba Corporation ("BASF"), and Novartis Corporation ("Novartis"), say: THE PARTIES 1. Petitioner INA is a Pennsylvania corporation with its principal place of

business in Philadelphia, Pennsylvania. 2. Petitioner Century is a Pennsylvania corporation with its principal place of

business in Philadelphia, Pennsylvania. 3. Petitioner ACE P&C is a Pennsylvania corporation with its principal place

of business in Philadelphia, Pennsylvania. 4. On information and belief, respondent Syngenta Crop is a Delaware

corporation with its principal place of business in Greensboro, North Carolina. 5. On information and belief, respondent BASF is a Delaware corporation

with its principal place of business in Florham Park, New Jersey. 6. On information and belief, respondent Novartis is a New York corporation

with its principal place of business in East Hanover, New Jersey. JURISDICTION AND VENUE 7. This petition is submitted under Chapter 1 of the FAA, 9 U.S.C. 1-16.

This proceeding involves a commercial arbitration agreement that is between citizens of the United States, and, thus, falls within Chapter 1 of the FAA. See 9 U.S.C. 1.

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8.

This Court has subject matter jurisdiction pursuant to28U.S.C.1332in

that the petition involves citizens of different states, there is diversity of citizenship between each Petitioner and Respondent, and the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. 9. On information and belief, this Court has personal jurisdiction over

Respondents because Novartis is incorporated in the State of New York and all of the Respondents do business in the State of New York. 10. Further, this Court has personal jurisdiction over the Respondents by

virtue of their agreement to arbitrate in New York City, pursuant to the Rules of the American Arbitration Association, and by virtue of the fact that the arbitration took place in New York City. 11. Venue is proper in this Court because a substantial part of the events

giving rise to this action occurred in this district. 28 U.S.C. 1391(a)(2). 12. Venue is also appropriate in this Court because the arbitration hearing was

conducted in this district pursuant to the parties' agreement.

BACKGROUND
13. Petitioners and respondents Novartis and BASF (through its predecessor

Ciba Specialty Chemicals Corporation) entered into a Settlement Agreement and Release effective January 13,1999. The agreement was finalized after a two day mediation in New York City. Among other things, the settlement agreement resolved a litigation between Petitioners and Novartis and BASF's predecessor Ciba-Geigy Corporation, which was pending in the Superior Court of New Jersey, Union County, entitled CibaGeigy Corporation v. Liberty Mutual Insurance Company, et al, No. L-97515-87. In that action, Ciba-Geigy sought insurance coverage for liabilities arising from numerous
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contaminated sites throughout the United States. See In re Environmental Ins. Declaratory Judgment Actions, 149 N.J. 278, 288, 693 A.2d 844, 848-49 (1997) (summarizing nature of the Ciba-Geigy action). 14. The Settlement Agreement provided that any dispute relating to the

agreement would be resolved through arbitration in New York City and that Kenneth R. Feinberg, Esq. would be the sole arbitrator. A true and correct copy of the arbitration provision of the Settlement Agreement and Release is attached as Exhibit " 1 " to the Declaration of Robert F. Walsh.1 15. On September 30, 2008, respondent Syngenta Crop filed a lawsuit against

Petitioners and others in the Superior Court of New Jersey, Law Division, Union County, styled Syngenta Crop Protection, Inc. v. Insurance Company of North America, et al, Docket No. UNN-L-3230-08 (the "Union County action"). Syngenta Crop sought declaratory relief that it was entitled to insurance coverage, as an alleged successor to Novartis, under primary and excess liability insurance policies that Petitioners issued to Geigy Chemical Corporation and Ciba-Geigy Corporation from 1958 to 1986, which were at issue in the Ciba-Geigy action. Syngenta Crop sought coverage for a lawsuit filed against it in Madison County, Illinois, styled Holiday Shores Sanitary District v. Syngenta Crop Protection, Inc. and Growmark, Inc., No. 04-L-710 (Cir. Ct. 3d 111. Madison County) (the "Holiday Shores action"). Syngenta Crop also sought damages for breach of contract. 16. Petitioners had denied coverage for the Holiday Shores action when it was

tendered by Syngenta Crop on the ground that it was released by the Settlement
The Settlement Agreement contains a confidentiality clause. Accordingly, Petitioners have submitted a copy of the arbitration provision of the Settlement Agreement through the separate Declaration of Robert F. Walsh, Esq. and are simultaneously filing a Motion To Seal the declaration.
1

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Agreement. On February 26, 2009, the court in the Union County action entered a Consent Order providing that: Syngenta and [petitioners] will arbitrate the issue of whether Syngenta's claims for insurance coverage in connection with the underlying action at issue herein, Holiday Shores Sanitary District v. Syngenta Crop Protection, Inc., No. 04-L-710 (Cir. Ct. 3d Cir. 111. Madison Co.) were released under the terms of the January 13,1999 Settlement Agreement ("Settlement Agreement") between Novartis Corporation and Ciba Specialty Chemicals Corporation, on the one hand, and [petitioners] and their affiliated companies, on the other hand. The arbitration will be conducted pursuant to the arbitration provisions of the Settlement Agreement. 17. On March 25, 2009, Petitioners submitted to the American Arbitration

Association a demand for arbitration against Respondents. Petitioners requested a determination that the claims asserted in the Union County action filed by Syngenta Crop were released under the Settlement Agreement. 18. On April 21,2010, Syngenta Crop amended its complaint in the Union

County action to seek declaratory relief that it was entitled to insurance coverage, as an alleged successor to Novartis, under the primary and excess liability insurance policies that petitioners issued to Geigy Chemical Corporation and Ciba-Geigy Corporation from 1958 to 1986 for another lawsuit filed against Syngenta Crop in the Southern District of Illinois, styled City of Greenville v. Syngenta Crop Protection, Inc., et ano., No. 10-188JPG (S.D. 111.) (the "City of Greenville action"). Syngenta Crop also sought damages for breach of contract. The City of Greenville action was similar to the Holiday Shores action. 19. On May 27, 2010, the court in the Union County action entered an

Amended Consent Order providing that:

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Syngenta and [Petitioners] will arbitrate the issue of whether Syngenta's claims for insurance coverage in connection with the underlying actions at issue herein, Holiday Shores Sanitary District v. Syngenta Crop Protection, Inc., No. 04-L-710 (Cir. Ct. 3d Cir. 111. Madison Co.) (the "Holiday Shores action") and City of Greenville, Illinois, et al. v. Syngenta Crop Protection, Inc., et al, No. 10-188-TPG (S.D.I11.) (the "City of Greenville action") (collectively referred to herein as the "Underlying Actions") were released under the terms of the January 13, 1999 Settlement Agreement ("Settlement Agreement") between Novartis Corporation and Ciba Specialty Chemicals Corporation, on the one hand, and [Petitioners] and their affiliated companies, on the other hand. Arbitration of this issue will be conducted pursuant to the provisions of the Settlement Agreement. 20. Thereafter, Petitioners amended their arbitration demand to request a

determination that both the Holiday Shores action and the City of Greenville action were released. 21. Syngenta Crop has advised Petitioners that it has incurred defense costs in

the Holiday Shores and City of Greenville actions far in excess of $75,000, and that it seeks to recover those costs from Petitioners, as well as future defense costs and any damages that may be awarded against Syngenta Crop in those actions. 22. On June 14-15, 2011, Petitioners and Respondents participated in a two-

day evidentiary hearing in New York City in connection with the arbitration. 23. On October 7, 2011, the arbitrator, Kenneth R. Feinberg, Esq., issued a

Final Award of the Arbitrator, in which he found: A. The underlying Holiday Shores and City of Greenville claims are "property damage" products liability claims, not "personal injury" claims. B. The Settlement Agreement unambiguously and clearly released Syngenta Crop's claims for insurance coverage for Holiday Shores and City of Greenville.

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C. Given the unambiguous language of the Settlement Agreement, the Arbitrator need not rely on any extrinsic evidence presented at the hearing to determine the scope of the Release. D. petitioners' request for an award of attorney's fees and costs is denied. E. The administrative fees of the American Arbitration Association totaling $4,500.00 and the compensation and expenses of the arbitrator totaling $39,518.97 shall be borne equally by the parties. Therefore, Respondent Syngenta Crop Protection, Inc. shall reimburse petitioners the sum of $1,125.00, Respondent [BASF] shall reimburse [petitioners] the sum of $1,225.00 and Respondent Novartis Corporation shall reimburse [petitioners] the sum of $1,224.99 representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by [petitioners]. F. This Award is in full settlement of all claims and counterclaims submitted to this Arbitration. All claims not expressly granted herein are hereby, denied. A true and correct copy of the Final Award of the Arbitrator is attached hereto as Exhibit A. THE AWARD SHOULD BE CONFIRMED 24. Section 9 of the FAA provides that a court may confirm an arbitration

award and enter judgment thereon if the parties have agreed to such relief in their arbitration agreement. The arbitration clause of the Settlement Agreement states that any arbitration under the agreement shall be conducted pursuant to the rules of the American Arbitration Association. The AAA rules provide that when parties agree to arbitrate under its rules, they shall be deemed to have agreed that the resulting award may be confirmed and judgment entered thereon in any court having jurisdiction. 25. Section 9 of the FAA further provides that a party may seek an order

confirming an arbitration award within one year of the date the award was made, and that

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a court "must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of [the FAA]." 9 U.S.C. 9. 26. Second Circuit precedent is clear that, under this standard, "[arbitration

awards are subject to 'severely limited' review by the courts" and, thus, the courts shall confirm the award absent certain specific, enumerated grounds for refusal or deferral of recognition. Bradley v. Merrill Lynch & Co., Inc., 344 Fed. Appx. 689, 690 (2d Cir. 2009). 27. None of the grounds for vacating an award, as set out in the FAA under

section 10, is present. 28. Petitioners now ask this Court to confirm the Final Award of the

Arbitrator and enter judgment on the award pursuant to 9 U.S.C. 9. WHEREFORE, Petitioners respectfully request that the Court confirm the Final Award of the Arbitrator pursuant to 9 U.S.C. 9, and issue a judgment in favor of Petitioners and against the Respondents declaring that: A. The Holiday Shores action and the City of Greenville action are "property

damage" products liability claims, not "personal injury" claims. B. The Settlement Agreement unambiguously and clearly released Syngenta

Crop's claims for insurance coverage for the Holiday Shores action and the City of Greenville action C. Given the unambiguous language of the Settlement Agreement, the

Arbitrator need not rely on any extrinsic evidence presented at the hearing to determine the scope of the Release. D. Petitioners' request for an award of attorney's fees and costs is denied.

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E.

The administrative fees of the American Arbitration Association totaling

$4,500.00 and the compensation and expenses of the arbitrator totaling $39,518.97 shall be borne equally by the parties. Therefore, Syngenta Crop shall reimburse petitioners the sum of $1,125.00, BASF shall reimburse petitioners the sum of $1,225.00, and Novartis shall reimburse petitioners the sum of $1,224.99, representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by petitioners. F. This Judgment is in full settlement of all claims and counterclaims

submitted in the Arbitration. All claims not expressly granted herein are hereby, denied.

Dated: October 31,2011 Respectfully submitted,

WHITE AND WILLIAMS LLP OF COUNSEL: By: Martin F. Siegal Lawrence A. Nathanson Siegal & Park 533 Fellowship Road, Suite 120 Mt. Laurel, NJ 08054 martin.siegal@mclolaw.com lawrence.nathanson@mclolaw.com (856)380-8900

Robert F. Walsh Rafael Vergara One Perm Plaza 250 West 34th Street, Suite 4110 New York, NY 10119 walshr@whiteandwilliams.com vergarar@whiteandwilliams.com (212) 244-9500 Attorneys for Petitioners

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EXHIBIT A FINAL AWARD OF THE ARBITRATOR

(Annexed to the "Petition To Confirm Arbitration Award" filed by Petitioners Insurance Company of North America, et al)

8301638v.l

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AMERICAN ARBITRATION ASSOCIATION Commercial Arbitration Tribunal

Insurance Company of North America, Inc., Century Indemnity Company, as successor to CIGNA Specialty Insurance Co., f/k/a California Union Insurance Company and ACE Property & Casualty Insurance Company (f/k/a CIGNA Property & Casualty Insurance Company), as successor in interest to Central National Insurance Company of Omaha, but Only as respects policies issued through Cravens, Dargan & Company, Pacific Coast

Claimants

Case No. 13 195 00880 09

-againstSyngenta Crop Protection, Inc., Novartis Corporation and Ciba Corporation, Respondents FINAL AWARD OF THE ARBITRATOR In the Settlement Agreement and Release dated January 13, 1999 ("the Settlement Agreement") at issue here, the parties to the Settlement Agreement, Insurance Company of North America, et al, and Novartis Corporation and Ciba Specialty Chemicals, Inc. agreed to resolve any dispute with respect to the Settlement Agreement through arbitration, designating Kenneth Feinberg as the sole arbitrator ("the Arbitrator). Claimants Insurance Company of North America, et al. and Respondents Syngenta Crop Protection, Inc., Novartis Corporation and Ciba Corporation have requested that the Arbitrator resolve a dispute among and

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between the Claimants and the Respondents regarding the scope of the release of insurance coverage in the Settlement Agreement ("the Release"). The Claimants assert that the insurance coverage under Claimants' policies for the Holiday Shores and City of Greenville claims was released in the Settlement Agreement. The Respondents assert that the coverage for the claims at issue was not released. The Claimants submitted to the Arbitrator a Motion for Entry of an Award declaring that the Claimants have no obligations under their policies to Syngenta Crop Protection, Inc. for the Holiday Shores and City of Greenville claims. Respondents opposed the motion and requested that the matter proceed to a full hearing pursuant to the Arbitration Clause in the Settlement Agreement. Oral argument on the motion was heard by the Arbitrator by telephone conference call. The Arbitrator denied the Motion for Entry of an Award based on the fact that the parties had agreed in the Settlement Agreement to resolve the dispute through arbitration and, therefore, a hearing should be held to allow the parties the opportunity to present evidence they deemed relevant to the question of the scope of the Release. An arbitration hearing was held before the Arbitrator in New York City, on June 14 and 15, 2011. Thereafter, the parties submitted post-hearing briefs. Having conducted a two day hearing at which time Claimants and Respondents examined and cross-examined various witnesses, and having reviewed the briefs, documents, and exhibits submitted by the parties, I have concluded as follows: 1. The underlying Holiday Shores and City of Greenville claims are "property damage" products liability claims, not "personal injury" claims. 2. The Settlement Agreement unambiguously and clearly releases Syngenta Crop's claims for insurance coverage for Holiday Shores and City of Greenville. 3. Given the unambiguous language of the Settlement Agreement, the Arbitrator need not rely on any extrinsic evidence presented at the hearing to determine the scope of the Release. 4. The Claimants' request for an award of attorney's fees and costs is denied.

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The administrative fees of the American Arbitration Association totaling $4,500.00 and the compensation and expenses of the arbitrator totaling $39,518.97 shall be borne equally by the parties. Therefore, Respondent Syngenta Crop Protection, Inc. shall reimburse Claimant the sum of $1,125.00, Respondent Ciba Corporation shall reimburse Claimant the sum of $1,225.00 and Respondent Novartis Corporation shall reimburse Claimant the sum of $1,224.99 representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by Claimant. This Award is in full settlement of all claims and counterclaims submitted to this Arbitration. All claims not expressly granted herein are hereby, denied.

SO ORDERED Date' Kenneth R. Feinberg/Esq g, tsq. Arbitrator

I, Kenneth R. Feinberg, Esq., do hereby affirm upon my oath as Arbitrator that I am the individual described in and who executed this instrument which is my Award.

Date

Kenneth R. FeinbVrg, Esq. Arbitrator