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Case 3:11-cv-01493-ST

Document 1

Filed 12/09/11

Christopher L. Reive, OSB # 833058

E-mail: chris.reive@jordanramis.com

Harlan E. Jones, OSB # 850549

E-mail: harlan.jones@jordanramis.com

Aaron Brian, OSB # 981849

E-mail: aaron.bryon@jordanramis.com

JORDAN RAMIS PC

Attorneys at Law

Two Centerpointe Dr 6th Fir

Lake Oswego OR 97035

Telephone: (503) 598-7070

Facsimile: (503) 598-7373

Attorneys for Defendant Siltronic Corporation

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Page ID#: 1

FiLEaD9DEClii4.15usK-.3FP

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

SILTRONIC CORPORATION, a Delaware

corporation,

v.

Plaintiff,

sOJ

/2ft1W493

COMPLAINT

Declaratory Judgment and Breach

of Contract

EMPLOYERS INSURANCE COMPANY OF

WAUSAU, a Wisconsin corporation; GRANITE

STATE INSURANCE COMPANY, a Pennsylvania

corporation; CENTURY INDEMNITY

COMPANY, a Pennsylvania corporation; and

FIREMAN'S FUND INSURANCE COMPANY, a

California corporation,

Defendants.

JURY TRIAL DEMANDED

ST

Plaintiff Siltronic Corporation, formerly known as Wacker Siltronic Corporation

("Siltronic"), assertsthis complaintagainst defendants Employers InsuranceCompanyof Wausau("Wausau"), Granite State Insurance Company("Granite State"), Century Indemnity

Company, as successor to CCI Insurance Company, as successor to Insurance Company of North

America ("CenturyIndemnity"), and Fireman's Fund Insurance Company("Fireman's Fund")

(collectively, the "Insurers") and alleges as follows:

COMPLAINT - Page 1

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THE PARTIES

1.

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Siltronic is incorporated under the laws of the state of Delaware, with its principal place

of business in Portland, Oregon. Siltronic is engaged in the manufacture of silicon wafers for the

electronics industry at its facility located at 7200 NW Front Avenue in Portland, Oregon (the

"Property").

2.

Wausau is an insurance company incorporated under the laws of the state of Wisconsin,

with its principal place of business in Massachusetts. Wausau is engaged in the business of

selling insurance, including liability insurance, to companies and individuals. Wausau regularly

transacts business in Oregon and Multnomah County, and that business is not isolated or

sporadic. Nationwide Insurance Company ("Nationwide") is administering Siltronic's insurance

coverage claim against Wausau.

3.

Granite State is an insurance company incorporated under the laws of the state of

Pennsylvania, with its principal place of business in New York.

Granite State is engaged in the

business of selling insurance, including liability insurance, to companies and individuals.

Granite State regularly transacts business in Oregon and Multnomah County, and that business is

not isolated or sporadic.

The insurance coverage claim of Siltronic against Granite State is

currently being administered by Chartis Casualty Company ("Chartis").

4.

Century Indemnity is an insurance company incorporated under the laws of the state of

Pennsylvania, with its principal place of business in Pennsylvania. Century Indemnity is

engaged in the business of selling insurance, including liability insurance, to companies and

individuals. Century Indemnity regularly transacts business in Oregon and Multnomah County,

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and that business is not isolated or sporadic. With regard to Policy XBC 152145, issued to

Siltronic by the Insurance Company of North America ("INA"), Century Indemnity

is the

successor to CCI Insurance Company, which is the successor to INA.

5.

Fireman's Fund is an insurance company incorporated under the laws of the state of

California, with its principal place of business in California. Fireman's Fund is engaged in the

business of selling insurance, including liability insurance, to companies and individuals.

Fireman's Fund regularly transacts business in Oregon and Multnomah County, and that

business is not isolated or sporadic.

JURISDICTION AND VENUE

6.

This court has jurisdiction of this matter under 28 U.S.C. § 1332 because the amount in

controversy exceeds the sum or value of $75,000, exclusive of the interest and costs, and because

the action is between citizens of different states.

7.

Venue is proper in this District under 28 U.S.C. § 1391 because a substantial part of the

events or omissions giving rise to the claim occurred in this District.

GENERAL ALLEGATIONS

The Insurance Policies

8.

Siltronic purchased liability insurance policies from the Insurers which provide, among

other things, liability insurance coverage for defense costs incurred in defending against claims

by third parties, including claims for property damage.

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The insurance policies issued to Siltronic by the defendants are as follow:

Policy Term

Insurer

Policy Number

Type and Amount of

Coverage

8/17/78 -1/1/80

Wausau

2320 00 039640

General Liability-$1

 

million

11/1/78 -1/1/80

Granite State

6578-5751

Umbrella Liability-$4

 

million

1/1/80-81

Wausau

2321 00 039640

General Liability -$1

 

million

1/1/80-81

Granite State

6580-6886

Umbrella Liability-$5

 

million

1/1/80-81

Fireman's Fund

XLX 1217784

Blanket Excess-$10

 

million

1/1/81 - 82

Wausau

2322 00 039640

General Liability-$1

 

million

1/1/81-82

Granite State

6581-8028

Umbrella Liability-$5

million

1/1/81-82

Century Indemnity

XBC 152145

Blanket Excess - $10

 

million

1/1/82-83

Wausau

2323 00 039640

General Liability-$1

 

million

1/1/82 - 83

Granite State

6582-8987

Umbrella Liability-$5

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1/1/82-83

Fireman's Fund

XLX 1370824

Blanket Excess - $10

 

million

1/1/83-84

Wausau

2324 00 039640

General Liability - $1

 

million

1/1/83-84

Granite State

6583-0219

Umbrella Liability-$5

 

million

1/1/83-84

Fireman's Fund

XLX 1370811

Blanket Excess-$10

 

million

1/1/84-85

Wausau

2325 00 039640

General Liability-$1

million

1/1/84 -

85

Granite State

6584-1229

Umbrella Liability-$5

 

million

1/1/84 -

85

Fireman's Fund

XLX 1370769

Blanket Excess-$10

 

million

1/1/85 - 86

Wausau

2326 00 039640

General Liability-$1

million

Copies of excerpts of the policies described above are attached hereto and incorporated

herein as Exhibit A, as substitutes for the actual policies, which are too voluminous to attach to

this Complaint. Copies of such policies will be made available upon request.

10.

The policies described herein were issued and delivered to Siltronic at its address in

Oregon, and they contain endorsements that are particular to Oregon or are required by Oregon

law.

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The Wausau Policies

11.

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The policies issued by Wausau to Siltronic promise to "pay on behalf of [Siltronic] all

sums which [Siltronic] shall become legally obligated to pay as damages because of

damage to which this insurance applies, caused by

12.

an occurrence

"

property

The policies issued by Wausau to Siltronic define "property damage" to include "physical

injuryto or destruction of tangiblepropertywhich occurs during the policy period

13.

"

The policies issued by Wausau to Siltronic define "occurrence" to mean "an accident,

including continuous or repeated exposure to conditions, which results in

property damage

neither expected nor intended from the standpoint of the insured."

14.

The policies issued by Wausau to Siltronic provide that Wausau "shall have the right and

duty to defend any suit against [Siltronic] seeking damages on account of

even if any of the allegations of the suit are groundless, false or fraudulent

property damage,

but the company

shall not be obligated to pay any claim or judgment or to defend any suit after the applicable

limit of the company's liability has been exhausted by payment ofjudgments or settlements."

15.

The policies issued by Wausau to Siltronic provide an express exception to the pollution

exclusion for "sudden and accidental" releases of pollutants.

16.

The costs incurred in the defense of suits under the policies issued by Wausau to Siltronic

do not erode the general liability limits of the policies. Only the payment of settlements or

judgments erodes the general liability limits of the policies. Wausau is obligated to defend

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Siltronic against any covered suit until "the applicable limit of the company's liability has been

exhausted by payments ofjudgments or settlements."

17.

Until Wausau's liability has been exhausted by indemnity payments, the policies issued

by Wausau to Siltronic provide coverage for covered defense costs, unlimited in amount.

Defense costs are not subject to a deductible or retention.

Granite State Policies

18.

Umbrella liability policy numbers 6581-8028 (1/1/81 to 1/1/82), 6582-8987 (1/1/82 to

1/1/83), 6583-0219 (1/1/83 to 1/1/84), and 6584-1229 (1/1/84 to 1/1/85) issued to Siltronic by

Granite State each contain a Following Form Endorsement which provides, in pertinent part that:

"Notwithstanding anything contained herein to the contrary, it is hereby understood and agreed

that where scheduled underlying insurance is written under terms and conditions providing

greater protection or indemnity to the Assured than the terms and conditions of this policy, this

insurance shall pay on behalf of the Assured upon the same terms, conditions and limitations of

the applicable underlying insurance

"

DEQ and EPA Claims

19.

Siltronic acquired the Property in August 1978. The Property is located in northwest

Portland, Oregon on the southwest shoreline of the Willamette River and covers approximately

85 acres.

It is zoned "heavy industrial" and surrounded on three sides by industrial properties

including properties owned by Northwest Natural Gas Company ("NW Natural"), SLLI/Bayer

Crop Science, ESCO Corporation, and LSS/Arkema, all of which are presently conducting

environmental investigations of their respective properties. In or about December 2000, a 5 1/2-

mile section of the Lower Willamette River, a portion of which is immediately adjacent to the

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Property, was placed on the National Priorities List ("NPL"), also known as the Superfund List,

by the United States Environmental Protection Agency ("EPA"). The Superfund study area has

since been expanded to include ten (10) river miles. The Property is located adjacent to the

approximate center of that section of the river now known as the Portland Harbor Superfund Site.

20.

On October 4, 2000, DEQ issued a joint Order to Siltronic and its neighbor, NW Natural,

which by its terms requires them, jointly, to conduct a remedial investigation of the Property and

to implement source control measures, as deemed necessary by that investigation. That Order

(DEQ Order No. ECVC-NWR-00-27, hereinafter referred to as the "2000 DEQ Order") declares

the following as "Findings of Fact": (a) subsurface petroleum or tar has been encountered on the

Property; (b) groundwater samples collected at the Property were found to contain benzene,

PAHs, cyanide, and lead at concentrationsabove federal drinking water maximum contaminant

levels; (c) soil samples collected from geotechnical borings at the Property were found to be

saturated with a black, oily viscous substance which tested positive for PAHs; and (d)

groundwater samplescollectedat the Propertywere found to contain benzene and total

petroleum hydrocarbons in excess of maximum contaminant levels. The 2000 DEQ Order

declared as "Conclusions of Law" that: (a) the contaminants described in the Findings of Fact

are "hazardous substances" under ORS 465.200(15); (b) the presence of such hazardous

substancesin soils, groundwater, and sediments at or near the Property is the result of a "release"

into the environment under ORS 465.200(21); (c) the Property and adjacent contaminated

sedimentsare a "facility" under ORS 465.200(12); (d) Siltronic is a "person" under

ORS 465.200(20); and (e) as a current or past owner or operator of a facility, Siltronic is strictly,

jointly and severably liable under ORS 465.255 and, therefore, may be required by DEQ to

conduct a removal or remedial action necessary to protect public health, safety and the

environment pursuant to ORS 465.260(4).

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On December 8, 2000, EPA issued to Siltronic a Notice of Potential Liability ("EPA

Notice") stating that it deemed Siltronic a potentially responsible party ("PRP") for sediment

contamination then alleged to exist in the NPL designated section of the Willamette River and

that Siltronic may be ordered to perform response actions deemed necessary by EPA and/or DEQ

to protect public health, welfare, or the environment.

The EPA Notice also states that PRPs may

be required to pay for damages to, destruction of, or loss of natural resources, including the costs

of assessing such damages.

22.

On February 5, 2004, DEQ issued its Order (DEQ No. VC-NWR-03-16, hereinafter

referred to as the "2004 DEQ Order") requiring Siltronic alone to perform additional remedial

investigations and to conduct additional source control measures as dictated by that

investigation. The 2004 DEQ Order specifically targeted for a remedial investigation the

discovery of releases of trichloroethene ("TCE") and its degradation byproducts at the Property

and requires

Siltronic to identify and implement, if necessary, source control measures for

unpermitted discharges or releases of TCE and its associated hazardous substances to the

Willamette River.

23.

In September 2009, EPA, NW Natural, and Siltronic entered into an Administrative

Settlement Agreement and Order on Consentfor Removal Action with Respect to the "GASCO Sediments Site" ("AOC") which is located within the PortlandHarbor SuperfundSite. The AOC requires that Siltronic and NW Natural perform a responseaction investigation and design activities and to pay such response costs as may be incurredby the United States and Tribal

Governments at or in connection with an area known as the GASCO Sediments Site within the

boundariesof the Portland Harbor Superfund Site, as more fully described in the Statement of

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Work ("SOW") attached thereto. On September 1, 2009, Siltronic and NW Natural entered into

a Participation and Interim Cost Sharing Agreement in order to apportion between them, on an

interim and non-binding basis, the costs of performing the work required under the AOC. This

interim agreement provides that such mutual costs be paid in accord with the following formula:

(a) 92.5% by NW Natural; and (b) 7.5% by Siltronic.

24.

Under the threat of suit to seek recovery of related costs by EPA, DEQ, and other PRPs

with respect to the Portland Harbor Superfund Site, Siltronic has been obliged to incur

significant attorneys' fees, outside consultant fees, and costs and expenses during the course of

its participation in a collective effort of many other PRPs to further the ongoing investigation of

the Portland Harbor Superfund Site. The majority of the fees, costs and expenses incurred by

Siltronic in connection with the Property constitute "defense costs" covered by its insurance

policies.

25.

Pursuantto Oregonlaw, the demands made on Siltronic by EPA, DEQ, and other entities

identified by those agencies as PRPs for the liabilities associated with the PortlandHarbor

Superfund Site constitute "suits" and "lawsuits" for property damagewithin the meaningof

Siltronic's insurance policies.

Siltronic's Notice to Insurers of Claims

26.

On June 23,2003, Siltronic gave notice of the claims against it by EPA and DEQ to

Wausau, its primary general liability insurance provider. A true and correct copy of this notice is

attached hereto and incorporated herein as Exhibit B. Nationwide responded on behalf of

Wausau to Siltronic's tender for insurance coverage on September 11, 2003, agreeing to

participate in the defense of Siltronic, subject to a reservation of rights to deny coverage. A true

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and correct copy of Nationwide's response on behalf of Wausau is attached hereto and

incorporated herein as Exhibit C.

27.

On June 25, 2003, Siltronic gave notice of the claims against it by EPA and DEQ to

Granite State and Fireman's Fund, insurers which provide Siltronic's umbrella liability and

blanket excess liability coverage, respectively. A true and correct copy of this notice is attached

hereto and incorporated herein as Exhibit D. AIG Technical Services, Inc. responded on behalf

of Granite State to Siltronic's tender for insurance coverage on January 30, 2004, stating that no

obligation to pay arises under the Granite State policies until the underlying liability insurance

coveragehas been exhausted by virtue of settlements or judgments on claims, and asserting its

reservationof rights to deny coverage. On Julyl6, 2003, Fireman's Fund responded to

Siltronic's tender for insurance coverage denying coverage until such time as all applicable

underlying policies have been exhausted and asserting its reservation of rights to deny coverage.

28.

On June 22,2006, after discovery of a previouslylost policy, Siltronicnotifiedthe

Insurance Company of North America ("INA") of EPA's and DEQ's claimsagainstit. A true and correct copyof this noticeis attached hereto and incorporated herein as Exhibit E. Resolute Management, Inc. ("Resolute") responded on behalfof Century Indemnity, as successor to CCI Insurance Company, as successor to INA,to Siltronic's tenderfor insurance coverage on July 10,

2006 and on November 8, 2007, by providing Siltronic a copy of INA policy No. XBC 052145.

Resolute wrotethat no obligationto pay under the policy arises until an amount equal to the

underlying coverage has been paid on behalf of the policyholder for any settlement,judgment or

claim, and asserting its reservation of rights to deny coverage.

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Duty to Defend and/or Indemnify

(Wausau and Granite State)

29.

Page ID#: 12

Beginning in or about September 2003, Wausau, through its administrator Nationwide,

began paying Siltronic's costs incurred in response to the demands referenced above. During the

course of its payments and without prior notice to or general agreement from Siltronic or any

other defendant herein, Nationwide segregated and accounted for such payments as being for

'defense' or paid in satisfaction of Wausau's obligation to 'indemnify.' This method of

accountingfor payments made was asserted by Nationwide to be in accord with the terms of the

triggered Wausau primary insurance policies and with controlling Oregon statute.

30.

In or about February2007, Wausauand Siltronic entered into an Agreementto Fund

Settlement of State Claims in order to fund Siltronic's share of a partial settlement of DEQ

claims for past remedial action costs incurred in connection withthe Portland Harbor Superfund

Site. Wausauand Siltronic agreed that the amount of Siltronic's share of the settlement

($49,920) would be allocated and applied equally, pro rata, against the policylimits of eachof

the individual policies issuedby Wausau, and that the amount of coverage limits thereunder would be reduced therefore. A copy of the Agreement to Fund Settlement of State Claims is

attached hereto and incorporated herein as Exhibit F.

31.

In or about June 2008, Wausau and Siltronic entered into an Agreement to Fund Interim

Participation in Natural Resource InjuryAssessment in orderto fund Siltronic's shareof the interim payment to the National Resource Trustees underthe Interim Funding and Participation

Agreement in the amount of $27,777.78. Wausau and Siltronic agreed that the amount of said

payment wouldbe allocated and applied equally, pro rata, againstthe policylimits of eachof the

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individual policies issued by Wausau, and that the amount of coverage limits thereunder would

be reduced therefore. A copy of the Agreement to Fund Interim Participation in Natural

Resource Injury Assessment is attached hereto and incorporated herein as Exhibit G.

32.

In September 2009, Wausau's administrator, Nationwide, declared exhaustion of the

coverage limits of all Wausau primary liability insurance policies that it conceded had been

triggered by Siltronic's tender and the facts referenced above. However, and in support of

Wausau's claim of policy exhaustion, Nationwide declared that Wausau Policy No. 2320 00

039640, effective from 8/17/78 through 1/1/80 (the "1978-80 Policy"), is not yet triggered by

Siltronic's tender and the facts referenced above. As a result, Nationwide excluded from its

accounting of payments then made to datethe amount of primary coverage available under the

1978-80 Policy.

33.

Siltronic's umbrella liability insurance provider, Granite Statethroughits administrator,

Chartis, has acceptedSiltronic's tender for coverage, subjectto Granite State's express

reservation of right to contest Wausau's exhaustion claim.

34.

Chartis has since informed Siltronic that Granite State now disagrees with Nationwide's

contention that the 1978 - 80 Policyhas not been triggered for coverage based on the facts

alleged above. Chartis further disagrees withNationwide's accounting of certain costs

Nationwide has paid and with Nationwide's declaration that all of the insurance coverage available underthe Wausauprimarypolicieshas been 'exhausted.' As a result, GraniteState has

rejected and refused to pay certain reasonable and necessary costs and expenses incurred by

Siltronic in response to demands of the EPA, DEQ and other Portland HarborPRPs, for the

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reason that Granite State alleges such costs and expenses are covered and required to be paid by

Wausau.

35.

In response to the actions of Granite State described in Paragraph 34, above, Siltronic

tendered to Wausau, through its administrator Nationwide, Siltronic's demand

for payment of the

reasonable and necessary costs Siltronic has incurred and which Granite State, through its

administrator Chartis, has rejected for payment. Nationwide subsequently rejected Siltrionic's

tender and payment demand, as described herein.

36.

Wausau through its administrator, Nationwide, has breached its duty to defend and

indemnify Siltronic up to the limits of all of the Wausau primary policies listed in paragraph 9

above.

37.

In the alternative to Paragraph 36, above, Granite State through its administrator, Chartis,

has breached its duty to defend and indemnify Siltronic up to the limits of all of the Granite State

policies listed in paragraph 9 above.

38.

Because of the contract breaches alleged in the alternative in paragraphs 36 and 37,

above, at least the following insured, reasonable and necessary costs of Siltronic's performance

and participation of certain actions and activities have not been paid by either Wausau or Granite

State to date:

A. Siltronic's obligation to fund a portion of the cost of Phase II of that certain

cooperative Natural Resource Damage Assessment ("NRDA") in the amount of

$90,277.78, which amount was paid directly by Siltronic on or about July 1, 2011.

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B. The cost of work invoiced by Siltronic's environmental consultant, Maul Foster &

Alongi ("MFA"), and disallowed by Wausau and Granite State for payment, now totaling

$65,165.70. This amount increases monthly, and includes the cost of work invoiced by

MFA disallowed for payment by the above carriers. Such amounts either have been or

will be paid by Siltronic, with the final amount to be proved at trial.

C. The amount of NW Natural's invoice for 7.5% of its early removal action costs

totaling $219,116.53, together with Siltronic's share in the amount of $26,309.87 of

EPA's oversight charges with respect to the same. This amount is expected to increase,

with the final amount to be proved at trial.

D. Siltronic's direct costs in the amount of $450,000 incurred addressing legacy

contamination as necessitated in order to protect and preserve its legal rights and

interests, prior to tender of its claim to its carriers in 2003. These costs were included in

Siltronic's original tender and have never been denied or paid by Wausau.

E. Siltronic's direct expenses of not less than $475,000 incurred as the result of its

participation in covered remediation activities after tender of its claims in 2003.

39.

As a result of the above-described breaches of the duty to defend by Wausau and Granite

State, Siltronic is entitled to recover the amounts that its insurers have failed to pay, together

with interest at the Oregon statutory rate of 9% per annum.

ORS 465.480

40.

ORS 465.480 applies to Siltronic's right to payment of defense costs by its insurers, as

well as Siltronic's other rights with respect to this action.

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41.

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Siltronic has given notice of the claims alleged against Wausau and Granite State to its

other insurers, as required under ORS 465.480(b).

FIRST CLAIM FOR RELIEF

(Declaratory Judgment - All Defendants)

42.

Siltronic incorporates paragraphs 1 through 41 above as if fully set forth herein.

43.

Wausau's conduct, and that of its agent Nationwide, described above is inconsistent with

the rights of Siltronic and the obligations of Wausau under the Wausau policies. Granite State's

conduct, and that of its agent Chartis, described above is inconsistentwith the rights of Siltronic

andthe obligations of Granite Stateunderthe Granite State policies. Accordingly, an actual and

justiciable controversy exists between the parties regarding Wausau's and Granite State's

defense and indemnification obligations under Oregon law.

44.

Pursuant to 28 U.S.C. § 2201, Siltronic requests that the Court issue a declaratory

judgment declaring the rights and duties of Siltronic, Wausau, Granite State, Century Indemnity

and Fireman's Fund under their respective policies.

WHEREFORE, Siltronic demands judgment in its favor against its insurers:

A. Declaring and adjudging the rights and obligations of the insurers and Siltronic

under the insurance policies;

B. Requiring Wausau to pay on behalf of Siltronic or reimburse all defense costs

causedby the environmental claims describedherein, until such time as the limits

of the Wausau policies, including the 1978 - 80 Policy, have been exhausted by

the payment of settlements or judgments;

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C. Requiring Granite State to pay on behalf of Siltronic or reimburse all defense

costs caused by the environmental claims described herein, after the Wausau

policy limits have been exhausted by the payment of settlements or judgments,

and until such time as the Granite State policies have been exhausted by the

payment of settlements and judgments;

D. Enjoining Wausau and Granite State from failing and refusing to pay on behalf of

Siltronic all defense costs caused by the environmental claims described herein;

E. Declaring which of Wausau or Granite State is liable to Siltronic under the

policies issued by them, respectively, to pay the full amount of Siltronic's

reasonable and necessary costs incurred in response to the claims described in

paragraphs 19 through 25, above, including but not limited to the specific

amounts alleged to be owed in Paragraph 38 hereinabove;

F. Declaring which of Wausau or Granite State is liable to Siltronic under the

policies issued by them, respectively, to pay the fair and reasonable rates of

lawyers, consultants, and others hired to defend Siltronic, as proven by Siltronic

at the trial of this matter or otherwise;

G. Declaring which of Wausau or Granite State is liable to Siltronic under the

policies issued by them, respectively, to promptly pay the reasonable and

necessary future fees, costs, and expenses incurred by Siltronic and submitted to

them for payment through their respective agents;

H. Granting Siltronic specific performance of the Wausau and Granite State policies;

I. For costs of suits;

J. For all counsel fees, expert fees and other costs relating to the litigation of this

matter; and

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K. For such and other and further relief, including any appropriate equitable relief, as

the Court may deem just and proper.

45.

Siltronic is entitled to the recovery of its attorneys' fees and costs herein pursuant to

ORS 742.061.

SECOND CLAIM FOR RELIEF

(Breach of Contract - Wausau and Granite State)

46.

Siltronic incorporates paragraphs 1 through 45 as if fully set forth herein.

47.

Siltronic has satisfied all covenants and conditions required of it under the insurance

policies if any.

48.

Wausau and Granite State accepted premiums from Siltronic and issued their respective

policies promising, among other things, to defend any suit against Siltronic seeking damages on

account of property damage.

49.

Wausau and/or Granite State have failed to pay Siltronic's defense costs described in

Paragraph 38 hereinabove.

50.

Wausau's conduct and positions, and that of its agent Nationwide, as set forth above,

have no reasonable basis under the Wausau policies. Accordingly, they constitute anticipatory

and actual breaches of contract by Wausau through its agent, Nationwide.

/////

/////

Case 3:11-cv-01493-ST

Document 1

Filed 12/09/11

51.

Page 19 of 20

Page ID#: 19

Granite State's conduct and positions, and that of its agent Chartis, as set forth above,

have no reasonable basis under the Granite State policies. Accordingly, they constitute

anticipatory and actual breaches of contract by Granite State through its agent, Chartis.

52.

As a direct and proximate result of the breaches of contract by Wausau and Granite State,

through their agents Nationwide and Chartis, Siltronic has been damaged in an amount in excess

of $1,325,869.80 according to proof at trial. These breachesof contract have caused, and will

continue to cause, damages to Siltronic, and they materially affect Siltronic's ability to defend

the claims against it with respect to the Property.

Siltronic is entitled to recover all such damages

plus prejudgment interest at the Oregon statutory of 9% per annum.

53.

Siltronic is entitled to recover its attorneys' fees and costs herein pursuant to

ORS 742.061.

54.

Siltronic's costs of defending against the environmental claims described above are

within the coverage provided by the Wausau and Granite State policies.

55.

An accident or occurrence, or personal injury, or property damage or other triggering

event has taken place at the Property during the Wausau and Granite State policy periods.

WHEREFORE, Siltronic demands judgment in its favor against its insurers:

A. Awarding Siltronic money damages in an amount to be proved at trial or other

determination of not less than $1,325,869.80 according to proof at trial, plus

interest at the Oregon statutory rate of nine percent (9%);

B. For costs of suit;

Case 3:11-cv-01493-ST

Document 1

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Page 20 of 20

Page ID#: 20

C.

For all counsel fees, expert fees and other costs relating to the litigation of this

matter; and

D.

For such other and further relief, including any appropriate equitable relief, as the

Court may deem just and proper.

DEMAND FOR JURY TRIAL

Siltronic demands trial by jury.

Dated this

'

day of December, 2011.

56.

JORDAN RAMIS PC

CHRISTOPHER L. OSB # 853058

Telephone: (503) 598-7070

Facsimile:

(503) 598-7373

chris.reive@jordanramis.com

Attorney(s) for Plaintiff Siltronic

Corporation

.r

(

Case 3:11-cv-01493-ST

Document 1-1

Filed 12/09/11

Page 1 of 272

Page ID#: 21

-d4 1-").::)7 f.D

.

::- .

DupliCate OngmaL

!l.£e' QI:,W~U:$.a~

-. tOMBltfAfle'rtrcA~DAtf(P'Otlty~

PLEASE READ YOUR POLICY

THIS POLICY IS NONASSESSABLE

;'

MUTUALS.MEMBERSHIP AND VOTING NOTICE: The insured is notified that by virtue of Employers Mutual liability Insurance Company of WIsconsin, and is entitled 10 vote either

meetings of said .Company. The annual Meetings are held in its home office at Wausau, Wisconsin, on the fourth

this policy, he is a member of the

in perSQn or by proxy at any and all

Friday of

May, in each year, at 9:00 o'clock A.

M

Employers Mutual Liability Insurance Company of wisconsin

HOME OFFICE: WAUSAU, WISCONSIN

(A mutual insurance company, herein called the company)

In consideration

subject to all of the terms of this policy, agrees with the named insured as follows:

of the payment of the premium, in reliance upon the statements

in the declarations

made a part hereof and

COVERAGES

The insurance afforded by this policy is only with respect to such Coverages as are indicated by specific premium

charges in the appropriate part of this policy.

charge or

Coverage Schedule or Schedules of the Coverage Part or Parts attached

to and hereby made a .

SUPPLEMENTARY PAYMENTS

The company will pay, in addition to the applicable limit of liability:

(a) all expenses

incurred by the company,

all costs taxed

against the Insured in any suit

and all interest

therein which accrues after entry of the judgment

before .the company has paid or tendered

defended by the company

on the entire amount of any judgment

and

or ~eposited in

court that part of the judgment

the limit of the

which does not exceed

company's liability thereon;

(b) premiums on appeal bonds re<luired in any such suit,

pre.

miums on bonds to

release attachments

in any such

suit

for an amount not in excess of the a~licable

liability of this policy, and the cost of bail bonds required of the insured because of accident or traffic law viola lion

limit of

10.77

61J.1.1

Exhibit A Page 1 of 272

Case 3:11-cv-01493-ST

Document 1-1

Filed 12/09/11

Page 2 of 272

Page ID#: 22

arising out of the use of any vehicle to which this policy applies, not to exceed $250 per bail bond, but the com. pany shall havB no obligation to apply for or furnish any such bonds;

(c) expenSBSincurred by the insured for first aid to others at the time of an accident, for bodily Injury to which this

policy applies;

(d) reasonable expenses incurred by the insured at the com. pany's request in assisting the company in the investiga-

tion or defense of any claim or suit, including actual loss

of earnings not

to exceed $25 per day.

DEFINITIONS

When used in this policy (including endorsements forming a part hereol):

"automobile" means a land motor vehicle, trailer or semi- trailer designed for trml on public roads (including any machinery or apparatus attached thereto), but does not in- clude mobile equipment;

"bodily injury" means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom;

"collapse hazard" includes "structural property damage" as defined herein and property damage to any other property at any time resulting therefrom. "Structural properly dam- age" meansthe collapse of or structural injury to any building or structure due to (1) grading of land, excavating, borrowing, filling, back-filling, tunneling, pile driving, cofferdam work or caisson work or (2) moving, shoring, underpinning, raising or demolition of any building or structure or removal or rebuild. ing of any structural support thereof. The collapse hazarddoes not include property damage (1) arising out of operations performed for the named Insured by independent contractors, or (2) included within the completed operations hazard or the undergroundproperty damagehazard, or (3) for which liability is assumedby the insured under an incidental contract;

'1

"completed operations hazard" includes bodily Injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but onry if the bodily Injury elr property damageoccurs after such operations have been completed or abandonedand occurs away from premises owned by or rented to the named insured. "Operations" include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:

(1)

when all operations to

be performed by or on behalf of the

named insured under the contract have been completed,

(2)

when all operations to be performed

by or on behalf of the

named insured at the site of the operations have been completed, or (31 when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a prin. cipal as a part of the same project.

Operationswhich may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed. The completed operations hazard does not include bodily Injury or property damagearising out of

(a) operations in connection with the transportation of proper.

ty, unless the

of a condition in or on a vehicle created by the loading or

bodily injury or property damage aris~s out

unloading thereof,

(b)

the existence of tools, uninstalled e-quipmentor abandoned or unused materials, or

(c)

operations for which the classification stated in the policy or in the company's manual specifies "including completed operations";

"elevator" means any hoisting or lowering

device to connect

floors or landings, whether or not in service, and all appliances thereof including any car, platform, shaft, hoistway, stairway, runway, power equipment and machinery; but does not include an automobile servicing hoist, or a hoist without a platform outside a building if without mechanical power or if not attached to building walls, or a hod or material hoist used in alteration, construction or demolition operations, or an inclined conveyor used exclusively for carrying property or a dumb- waiter used exclusively for carrying property and having a compartment height not exceeding four feet;

"explosion hazard" Includes property dama~e arising out of blasting or explosion, The explosiDn hazard croes not include

property damage(1) arising out of the explosion of air or steam vessels, piping under pressure, prime movers, machinery or power transmitting equipment, or (2) arising out of operations performed for the named Insured by independent_contractors, or (3} included within the completed operations hazard or the

underground property damagehazard, or (4) for

is assumed by the insured under an Incidental contract;

which liability

"incidental contract" means any written (1) [ease 01 pre. mises, (2) easement agreement, e)(cept in connection with construction or demolition operations on or adjacent to a railroad, (3) undertaking to indemnify a municipality required by municipal ordinance, except in connection with work for the municipalily, (4) sidetrack agreement, or (5) elevator maintenance agreement;

"Insured" means any person or organization qualifying as an insured in the "Persons Insured" provision of the applicable insurance coverage.The insurance afforded applies separately to each Insured against whom claim is made Of suit is brought, except with respect to the limits of the company's liability;

"mobile equipment" means a land "ehicl e (including any machinery or apparatus attached thereto), whether or not self.propelled, (I) not subject to rootor vehicle registration, or (2) maintained for use exclusively on premises owned by or rented to the named insured, including the ways immediately adjoining, Of (3) designed for use principally off public roads, or (4} designed or maintained for the sole purpose of affording mobility to equipment of the following types forming an integral part of or permanently attached to such vehicle:

power cranes, shovels, loaders, diggers and drills; concrete mixers (other than the mix.in-transit type); graders, scrapers, rollers and other road construction or repair equipment; air.compressors, pumps and generators, including spraying, welding and building cleaning equipment; and geophysical exploration and well servicing equipment;

Exhibit A Page 2 of 272

Case 3:11-cv-01493-ST

Document 1-1

Filed 12/09/11

Page 3 of 272

Page ID#: 23

"named Insured" means the person or organization named in Item 1. of the declarations of this policy;

means goods or products man-

distributed by the named insured

or by others trading under his name, including any container thereof (other than a vehicle), but "named insured's products" shall not include a vending machine or any property other than such container, rented to or located for use of others

but not sold;

"occurrence" means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured;

"named insured's products"

ufactured, sold, handled or

"policy territory" means:

(1) the United States of America, its territories or possessions, or Canada, or

(2) international waters or air space, provided the bodily injury or property damage does not occur in the course of travel or transportation to or from any other country, state or nation, or

(3) anywhere in the bodily injury or

world with fespect to damages becauseof property damage arising out of a product

which was sold for use or consumption within the territory described in paragraph (1) above, provided the original suit for such damages is brought within such territory;

"products hazard" includes bodily injury and property dam. age arising out of the named insured's products or reliance upon a representation or warranty made at any time with

respect thereto, but only if the bodily injury or property dam. age occurs away from premises owned by or rented to the

named insured and after physical has been relinquished to others;

"property damage" means (1) physical injury to or deslruc- tion of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting there.

from, or (2) loss of

physically injured or destroyed provided such loss of use is

caused by' an occurrence during the

"underground property damage hazard" includes under. ground property damage as defined herein and property dam- age to any other property at any time resulting therefrom. "Underground property damage" means property damage to wires, conduits, pipes, mains, sewers, tanks, tunnels, any similar property. and any apparatus in connection therewith, beneath the surlace of the ground or water, caused by and occurring during the use of mechanical equipment for the purpose of grading land, paving, excavating, drilling, borrowing, filling, back.fiIling or pile driving. The underground property damage hazard does not include property damage (1) arising out of operations performed for the named insured by inde. pendent contractors, or (2) included within the completed oper- ations hazard, or (3) for which liability is assummed by the insured under an Incidental contract.

possession of such products

use of tangible property which has not been

policy period;

CONDITIONS

1. Premium All premiums for this

accordancewith the company's rules, rates, rating plans, pre.

miums and minimum premiums applicable to the insurance afforded herein.

policy shall be computed in

Premium designated in this policy as "advance premium"

only which shalf be credited to the

amount of the earned premium due at the end of the policy

period. At the

. is a deposit premium

close of each period (or part thereof terminating

with the end of the policy period) designated in the declara. tions as the audit period the earned premium shall be com. puted for such period and, upon notice thereof to the named insured, shall become due and payable. If the total earnedpremium for the policy period is less than the premium

companyshall return to the namedinsured

the unearned portion paid by the named insured. The named Insured shall maintain records of such informa' tion as is necessary for premium computation, and shall send copies of such records to the company at the end of the policy period and at such tfmes during the policy period as the company may direct.

previously paid, the

2. Inspection and Audit The company shall be permitted but

not obligated to inspect the named Insured's property and operations at any time. Neither the company's right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking, on behalf of or for the benefit of the named insured or others, to determine or warrant that such property or operations are safe or healthful, or are in

compliance with any law, rule or regulation. The company may examine and audit the named insured's books and records at any time during the policy period and extensions thereof and within three years after the final ter. mination of this policy, as far as they relate to the subject matter of this insurance.

3. Financial Responsibility laws When this policy is certified

as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, such insurance as is afforded by this policy for bodily injury

liability or for property damage liability shall comply with

provisions of such law to the extent of the coverage and limits of liability required by such law. The insured agrees to reimburse the company for any payment made by the com. pany which it would not have been obllgated to make under

the terms of this policy except for the agreement contained in this paragraph.

the

4.

insured's Duties in the Event of Occurrence, Claim or Suit

(a)

In the event of an occurrence, written notice containing particulars sufficient to identify the Insured and also reasonablyobtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the Insured to the company or any of its authorized agents as soon as practicable.

(b)

If claim is made or suit is brought against the insured,

the insured shall immediately forward to the companyevery demand, notice, summons or other process received by him or his representative. (c} The insured shall cooperate with the company and, upon the company's request, assist in making settlements, in the conduct of sltits and in enforcing any right of contri- bution or indemnity against any person or organization who may be liable to the Insured because of injury or damagewlth respect to which insurance is afforded under this policy; and the Insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The Insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of accident.

Exhibit A Page 3 of 272

I

Case 3:11-cv-01493-ST

Document 1-1

Filed 12/09/11

Page 4 of 272

Page ID#: 24

5. Action Against Company No action shall lie against the

company unless, as a condition

have been full compliance with all of the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the cia imant and the company. Any person or organization or the legal representative there. of who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No person or organ. ization shall have any right under this policy to join the cam. pany as a party to any action against the insured to determine the Insured's liability, nor shall the C'Ompanybe impleaded by the insured or his legal representative. Bankruptcy or in. solvency of the insured or of the insured's estate shall not relieve the company of any of its obligations hereunder.

precedent thereto, there shall

6. Other Insurance The insurance afforded by this policy is

primary insurance, except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or cantin. gent basis, the amount of the company's liability under this policy shall not be reduced by the existence of such other insurance. When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the company shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable can. tribution provision below:

(a)

Contribution by Equal Shares. If all of such other valid and collectible insurance provides for contribution by equal shares, the company shall not be liable for a greater pro. portion of such loss than would be payable if each insurer contributes an equal share until the share of each insurer equals the lowest applicable limit of liability under any one policy or the full amount of the loss is paid, and with respect to any amount of loss not so paid the remaining insurers then continue to contribute equal shares of the remaining amount of the loss untn each such insurer has

paid its limit in

full or

the. full amount of the loss is paid.

(b)

Contributilln by Limits. If any of such other insurance does not provide for contribution by equal shares, the company shall not be liable f(lr a' greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss.

7.

Subroiation In the event of any payment under this policy,

the company shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.

8. ChanEesNotice to any agent or knowledge possessed by

any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by

endorsement issued to form a part of ,this policy.

9. Assignment Assignment of interest under this policy shall

not bind the company until its consent is endorsed hereon; if, however, the named insured shall die, such insuralTce as is afforded by this policy shall apply (1) to the named insured's legal representative, as the named insured, but only while acting within the scope of his duties as such, and (2) with respect to the property of the named Insured, to the person having proper temporary custody thereof, as insured, but only until the appointment and qualification of the legal represen-

tative.

1D. Three Year Policy It this policy is issued for a period of. three years any limit of the company's liability stated in this polciy as "aggregate" shall apply separately to each consecu. tive annual period thereof.

11. Cancelation This policy may be canceled by the named

insured by mailing to the company written notice stating when thereafter the cancelation shall be effective. This policy may be canceled by the company by mailing to the named fnsured at the address shown in this policy, written notice stating when nat less than ten days thereafter such cancelation shall be effective. The mailing of notice as aforesaid shall be

sufficient proof of notice. The effective date and hour of cancelation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing. If the named Insured cancels, earned premium shall be computed in accordance with the customary short rate table and procedure. If the company cancers, earned premium shall be computed pro rata. Premium adjustment may be made

either at the time cancelation is effected or as

$(IOn as

practicable after cancelation becomes effective, but payment or tender of unearned premium is not a condition of cancela.

tion.

12. Declarations By acceptance of this policy, the named

insured agrees that the statements in the declarations are his agreements and representations, that this policy is issued'

in reliance upon the truth of such representations and that

policy embodies all agreements existing between himself and the company or any of its agents relating to this insurance.

13. Mutual Policy Conditions. PARTICIPATIONCLAUSEWITHOUT

this

CONTINGENTLIABILITY. No Contingent liability: This policy is nonassessable. The policyholder is a member of the company and shall participate, to the extent and upon the conditions fixed and determined by the Board of Directors in accordance with the provisions of law, in the distribution of diYidends so

fixed and determined.

IN WITNESSWHEREOF,the EMPLOYERSMUTUAL LIABILITY INSURANCECOMPANYOF WISCONSINhas caused this p(llicy to be signed by its president and secretary at Wausau,Wisconsin, and countersigned on the declarations page by a dury authorized representative of the company.

;f(l,w~

r

Secretary

/ ~

.

~

Presidenl

. 1l!=1, ===============================================:=J

Exhibit A Page 4 of 272

'J

Case 3:11-cv-01493-ST

Document 1-1

Filed 12/09/11

Page 5 of 272

Page ID#: 25

NUCLEAR ENERGYliABILITY EXCLUSIONENDORSEMENT (Broad Form)

This endorsement modifies the pro'lisions of tne policy relating to ALL AUTOMOBilE LIABILITY, GENERALLIABiliTY AHO MEO~ ICAl PAYMENTSINSURANCEOTHERTHAN FAMilY AUTOMOBILE,SPECIALPACKAGEAUTOMOBilE,COMPREHENSIVEPERSONAL AND FARMER'S COMPREHENSIVEPERSONAL It is agreed that:

I. The policy does not apply:

A. Under any liability Coverage, to bodily injury Of property damage

(1)

with respect to which an insured under the policy is also an insured under a nuclear energy liability policy issued by Nuclear Energy liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its limit of liability; or

(2)

resulting from the hazardous properties of nuclear material and with respect to which (a) any person or organization

is required to maintain financial protection

pursuant to the Atomic

Energy Act of 1954, or any law amendatory thereof,

or (h) the insured is, or had this policy not been issued would he, entitled to indemnity from the United States of America, or any agency thereof, under any agreement entered into by the United States of America, or any agency thereof, with any person or organization.

B. Under any Medical Payments Coverage, or under any Supplementary Payments provision relating to first aid, to expenses incurred with respect to hodily Injury resulting from the hazardous properties of nuclear material and arising out of the operation of a nuclear facility by any person or organization.

C. Under any Liability Coverage, to hodily injury or property damageresuJting from the hazardous

material, if

.

properties of nuclear

(I)

the nuclear material (a) is at any nuclear facility owned by, or operated by or on behalf of, an insured or (bl has been discharged or dispersed therefromj

(2)

the nuclear material is contained in spent fuel or waste at any time possessed, handled, used, processed, stored, transported or disposed of by or on hehalf of an insured; or

(3)

the bodily injury or property damage arises out of the furnishing by an Insured of services, materials, parts or equip-

ment in connection with the planning, construction, maintenance, operation or use of any nuclear facility, but if such facility is located within the United States of America, its territories or possessions or Canada, this exe/usion (3) applies only to property dama(e to suet! nuclear facility and any property thereat. II. As used in this endorsement:

"hazardous properties" include radioactive, toxic or explosi'le properties; "nuclear material" means source material, special nuclear material or byproduct materialj "source material", "special nuclear material", and "byproduct material" have the meanings given them in the Atomic Energy Act of 1954 or in any Jaw amendatory thereof; "spent fuel" means any fuel element or fuel component, sol id or liquid, which has heen used or exposed to radiation in a nuclear reactor; "waste" means any waste material (1) containing byproduct material and (2) resulting from the operation by any person or organization of any nuclear facility ine/uded within the defin ilion of nuclear facility under paragraph (al or (b) thereofj "nuclear facility" means {a) any nuclear reactor,

(b) any equipment or device designed or used for (1) separating the isotopes of uranium or plutonium, (2) processing or utilizing spent fuel, or (3) handling, processing or packaging waste, (c) any equipment or device used for the processing, fabricating or alloying of special nuclear material if at .any. time the total amount of such material in the custody of the insured at the premises where such equipmerrt or deVice IS located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235, (d) any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste, and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operat.ions;

"nuclear reactor"

contain a critical mass of fissionable materialj "property damage" includes all forms of radioactive contamination of property.

means any apparatus designed or used to sustain nuclear fissiorl in a

self.supporting chain reaction or to

HEW YORKEXCEPTION:The "Nuclear Energy liability Exclusion Endorsement (Broad Form)" does not apply to Automobile lia. bility Insurance in New York.

. Issued by the Company providing the insurance afforded by this policy as designated on the dedaratlons page made a part hereof.

All other provisions and conditions remain unchanged.

A0009

G320

Exhibit A Page 5 of 272

Case 3:11-cv-01493-ST

"

.'

.

Document 1-1

Filed 12/09/11

CO:.tBIJlATION CASUAL TV 'OLICY DECLARATIONS

Policy NlImblr

2320

00 039640

ItItII ,. Nlmld

IMUm and Ad,fress

", ,>

:'~;:':

.

;)

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•••

SUMMARYOF IISURANCE AND ~(M1U" CHAR81S

Page 6 of 272

--- ---- ----. -------------

COMPREHENSIVE GENERAL LIABILITY INSURANCE

COVlrfge Parts

5 I) 0 - 4 -

1

LESS PREMIUM PREVIOUSLY

Attachld to Form 60-1.1 and CO\'II'I9I Paru shown a bow. lauld by EMPLOYERS MUTUAL LIABILITY INSunANCE COMPANY OF WlSCONSIN AUll:h.d to Form J60-1.1 IIId CowrlVl Pam shown IbCM. lauld by ILLINOIS EMPLOYERS INSURANCE OF WAUSAU

10-76

PRTO.

'.;$,\

Counllniqnld by

"'60-1.1

.:

Page ID#: 26

Exhibit A Page 6 of 272

Case 3:11-cv-01493-ST

Document 1-1

• Inlured

'WACKER SILTRONIC CORP.

A -Bodily InjllfY Llabllily

s

Filed 12/09/11

Page 7 of 272

Page ID#: 27

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01 ~
••••••
C'lca WIllY 0Im. ••••••
01 •••••.•••
-
:
.' .
and m.y mal<. J ~ Inveuiption
and Itnlemalt
of •• y ,:lailll Of ALiIas II dec-.
n ••••••••••
die ClOI8fIIIlr•••• ••
••
-~
,
dalm or Jud~,
n' ur 10 defend any IUIt ICier the Ippinble
Iimil of the COCDpu)'"' till"'" •• b.- •.•.• ,•.,
~~~~%~
\CIU~mC'nt,.
Eulullona
','-"
1'::I;I:~~u:,~I~;~<;::~'m":J1 ~~P:~~lMared under any con:net Of
,_nt
ncept
.n Iadd
aI
-tnd11tvt tI\b ~
wlrnnl~
01 ! ,Inc •• or qlUllly or Ihe aamed m-mt'.
prodllCti or • wlmnly
lhal won
""II be dune ':'I J workmanlike manner;
~~~
performed by or on betIa:Woldie
.
(hllo bodUy Il\)ury or toopert)' damqit ulsinl oul oC rhe ownenltlp, maintenance, operation,
II) any aUlomobic 01 .ircraft owned Of operaled by Dr len ted Of loaned 10 Iny ••••••
_, Ioadlna Of IIIIIoadIal of'
Of
. '-'\,
. ;'.:;
<,
(2)
any
other aUlomobUe or alraarl operaled b) lilY pcnollin 11MCOIlfIlCof ItiI e.mplo)'_t
;
by u ••.•• :
/:'
.
bul Ih•• c,c1uuon does nol apply 10 the parkinl 0:' In "lIIObh
,
on premites owned by: realed 10 01 controW
by allJ
Ihe
"'IY' ,mmedLOllelyadjolnina, if IUd! latolllOb" Is not owned by or rented or Ioallld lO.ny ••• nlh
,::f:: :.l,'::'_,
(,. til bodUv injury or Pl'09f!IY c1I.mqIarlsi,.
out
<lr (I) the ownenhlp. maintclllDCe, operation. lUI, klIl1InI or ~,cif~
".'.'
rqulpmenl ••hlte ~In& ulCd 1ftIny preura •••• or (Iqaa1zed nd
prepulllOn
,
lllr any such contest or .,.iYity Of (2) the oDer'ltion or use or .ny ~t1t
Ipeed 01 demoliUo. coldttt or 1a.1II7 ~tJrw
1CthIIr •.•
'
or traItr deIIped
for _
".
"
.
(dllO bodBy InJury or
property darn.qe uiIint out ofllld In IJMooure of the Innsportatlon of •••••••••••
by III
.
.
opnalell hy ,'r renled 01 IoallCd to any t-ed;
.
.
':
,,;'~'lq, .-
(el
10 bodUy Injury or ~y
dama •• arlsilll out oC the OWDClrthlp,malntenuce. opentloe,_,1oacU,.
01' ~
0I!'.,.'F7.
III
any" Jwe •• h owned or operated by 01 rented or loaDed to III)' ••••••
01"
-'.:
.
atcrcuff
operaled by .ny penon in lbe 1:0_
of till employment by allY ~;
,~. \
{~I
~ny I)I~ •••••
does not apt''' to walacnft
wb.Je ubOIe 011prem\.seI 0W1IId by, rated to OIOOIlClOW by •.••••••
.
.
(I)
bul th" ndu<lon
10 bodily Injury
or pIOlM(ty d.ImqI uililll Ollt or the dilcltarp,
dllpenal. rekue IX eacape of •••••
wpon,lCIOt. r-.
10'1< ,h~mH:~I., liqulch or pIeS. Wilt. malalall III other Inttanll, colJ1lJftiBaat, 01 poIIatantl 11110or ••
IuId die
Wiler
'ow,", or hody or ••.•ler: but litis udUlion doea nol .pp1y if wd'I dilctlut!.o
diqlenll, ,
or IICIpt II ••••••
(allo bodBy injury or property darnap
dllCl 10 "'U, whether Of not d~Jand.
aYi
war, iftIurrection, rdlef1iotIlXrnoIotknIar
.
.:ondlli'" in<:ldenl 10 any of lhe fOlqoilll, with relpeC1 to
.:
.
.' '"i'-'
II lllab~'y
Juumed by the In-.d
under an lac:ldtstal COtdnl:I, or::.'
."~~:
(2)
nl"'''~< for fust aMi under Ihe Supplementary Paymentl proririon;
. ',.~~i
(h I 10 bod,.~' lJl,jury or ptOp«ty dunap ror ••.Itkb lhe ••••••
01 hla Indtmllitn may be htid liable
.
,;.'''~;7,'~''
( 1111 • :~,r<on or orpniulion
ertplCd In the bu~
ol manllllCturilll. distrlbutln&. aelltftl or ~
alcoholic: bnenps.:or
.'.0<"_, •
(11 if n';- :" .cl'llt~~.
II an owner or Ift10r or prenllCl uaod ror ax:h purpoaa,
'.
"\;:~~~,
If lu,:h .J I.Hl1ly
II Impowd
(I)
hy', (.r t-r'.lu,e or Ihe million
or,
.ny stalute. ordinance or resuJation ~
'.:"':;~:;.~~rf
to the aJe.Iift, t1istr1btJtlolllX ••. ol~,e:'-.
hcv(n~~. qr
,.' . :.~~ •.,.,;"~~
,_
("I hy ,
,,In
of lhe ICUina. ~inJ
or
rJvint oC IllY .Icoholic bcotenp 10 • minor
01 to a pInOII undar the InfJueuce 01 aIcaItaf~'.
-
.
,~U,,",,II conUtbules 10 lhe intollll:ltion or .ny pqaon;
h,,1 pall (Iil "f Ihh e,clwion does not apply wilh rnpee1 to UabUlty DClhe irtIIInd Of bl:llndannitee u u 0WDer IX Ie.-
,,-it ';<
Jho"e;
III
III 1m nb:J<.1tlOn for which lhe tn.s:red or Iny allier II his inlurer may be held liable under .ny wodlllCSl', COIDICtKltiDe,.
,omp<:n<alll'" or diubillly bendih law, or under lny similar law;
'.
"I
10 bod!.••.•'JIlury 10 .ny employCi: or the InIIIftd :1risInI out or and In lhe COIifICof hll emplD)'mClIl by tht ••••
or to
Ihe IIIA:''') III Indemnify anolher beauae
oC chnqc1 arisinl out of such Injury;
,.,
but IhJs ucha:lon docs DOtapply to fiabIBtJ _
.
.' : t:-,::;~
the
iMu •• ,' ,nd., In Incldencal contnd~
It)
In pt'O~~:
'.l.lmsp lu
'.,
c',".:-,'.J'
I
I)
r""pct \,
. ned
01 occupied by or renled 10 the buared.
. ,,1' ,:~}:' .•.
(1)
~IO["'f"
u",d by lhe Inmred. or
.; ',,:"fC.';:
11\ ~'"P<'t.
In Ihe .::are. cU'lody or control or Iht J:aa.ed or .1 10 whil:h the ••••. eIf is rOf .cry P\I!POIICua"daial pJI)'1kaI =~:.
hut p~r'
~) Ind (J) of this
r<, nol aPllly with
exc!lwon
do not .pv"
wtth r"pccI 10 IIlbUlly llIlder I writteD sldttradt acr-.:t
ud _
V,
ndu\lo:
respect 10 properly damap (olher Ih.an 10 eMnton) arlJinJ oul ol t1111l11of III •••••
at
,>
~.
h,. r~nt"1 t" or ,-ontrolled by lhe aa.rned InJllltd:<i;$
.: ~;
~~'( _:~
";.: ":,~
"'lcl2
-
(\.l) 1.71

Exhibit A Page 7 of 272

Case 3:11-cv-01493-ST

Document 1-1

Filed 12/09/11

COMPREHENsrvE GENERALlIABI~JB@;Rt-B{}t@SERAGE

Page 8 of 272

PART (Conlinued)

Page ID#: 28

(I)

to property

damage to premhe~

alienated

premi~s

or ;lnv part

thereof;

'. (m)

to loss of use of tangible

properly

which

by Ihe nunlX! insu~ hal nol been physically

arisin~ out of such injured or demoyed

re.lulling from

 

(I)

the de!ay

in or I3ck of pe~form.n,ce

by or on behalf

of Ihe l12~d

iruured

of any conlract

or agreement,

or

(

~allure

of the I12me~,lnsured

S products 01 work performed

by O! on b<'half of the named

inswed

10 meet

the level of performance

 

2 ) the quality,

filnesl or durability

warranted

or rcpmentcd

by the named

Insured:

'

bul this, exclusion

does

nO,t apply,

to lo~

of

use of other

tangible

property

resulling

from

Ihe sudden

and accidental

physical

injury

to or

destruction

of the named

,"sured

s pro~ucls

or work perfor~ed

by or on !>thalf

of the named

inswed

after

such productl

or work

have

been

pUI to use by any

pcrson

or organlutlon

 

other

than an Insured:

(n)

to property

~mage

10 the named

insured's

prodllCls arising out of ~llch prOducts

or any part of such

products;

 

(0)

to p~perty

damage

t~ work perf?rmed.

by or on, behalf

of,the

Il2med

Insured

arising

out

of the worle

or any

portion

thereof,

or out

of

materlall,

parts or equ'pment

furmshed

In connectIOn therewuh:

 

(p) to damages

for

claimed fo~ the withdrawal,

the

from

named

U1swed

the market

cUmage included

haurd

inspeclion,

properl}'

repair .• rcplac~menl,

of whIch

luch

or loss of use of the named

or wor\:

defect or deficiency

form

a part,

iruured's

produel5

or work completed

or properly

b~

or

or of any

produ,ts

01 luspected

if such products, therein:

code number

code number

work

arc

withdrawn

"x'.

or from

within;

use bec.1use of any known

(q) to properly

(I) the

explosion

in conne~lion

in conneccion

with oprralions

identified

in lhi~ policy

by a clJ~li(jcation

wilh operation< idcntified

in lhi., policy

by a d.,,,irkation

which includes

which includes

rhe symbol

Ihe symbol

(2) !.h~,'collapse huard c

,

 

(3) the underground

property

damage

hazard in cDnn<t:lion wilh operations

identified

in thil polky

by a cbssification

code number

which

includes

the s>'mbol

"u",

It PERSONS INSURED

     

Each of rhe following

is an insured

under

Ihis

insurance

to the exlent

set forth

below:

(a) if the

n.amed insured

is designated

in Ihe dedaralions

as an individual,

the person

50 de.signaled

but

only

with

respect

to

the conduct

of a

 

bU.<iness of which

he is Ihe sole proprielor,

and the spouse

of

the named insured

with re~pect

to the conduct

of such

a business'

(b) if the

n.amed

insured

is desi~naled

in the declarations

as a partnership

or joint venture,

the partnership

Or joinl venlure

SO designated

and any

parlner

or member

thereof

bUI only

with resp«'t

to his liability

as such;

 

named

insured is designaled

in Ihe declaralions

as other

lhan In individual,

partnership

or joint venture,

the organization

so designated

(c) if the and

(d)

any executive

(olher

any person

omeer,

Ihan an employee

dirtttor

or slockholder

of the named

Ihrleof

insured)

while acting within

or organization

Ihe scope

while acting

of his duties as real eSlate

as such;

for the: named

insured;

:lnd

(e)

with respect

for Ihe purpo,e

of 10L'Dmotion upon a publi<: highway,

manager of mobile equipment

registered

under

any molor

vehicle

ret!istralion

to the operation, law,

 

(i)

an employee

of thc named

insured

while opaating

any su~h equipmenl

in the course

of his employment,

and

(il)

any

olher

per!")n while operating

with Ihe permi~~ion

of Ihe named

insured

any such equipment

but

only

if there

regislered

in rhe

name

of the

named

 

insured

and

any person

or or~nization

IegaUy responsihle

for ~uch operation,

is no olher

valid and

collcctible

insurance

a,';)ilable,

eilhcr

on a primary

or eXceSI basis, to

~ul:h person or organization;

 

provided

that no per!oOn or orj!anization

shall he an

insured under this paragraph

 

Ie) with

respecl

(l)

bodily

Injury

to any fellow

employee

of ~uch pmon

injured

in Ihe course

or

his employmenl.

by the named

to; Or inSUred or the employer

of any

perlon

described

 

(2)

prop •.•.ty d:lmage

to prope,,>'

(iiI.

owned

by,

rented

to, in charge

of or o,<'upied

 

in ,ubpara~aph

 

This in'ura!'>,e

doe,'

n<'t apply

to bodily

injury

or property

damage

arising

out

of the "OndUCI of any

partnership

or joint

venture

of which

the

;,,':ur""

i, a parln<l

or member

and which

is nOI designaled

in Ihis pQlicy al a named

insured.

Ill. LIMITS OF LIABILITY

HLp'oJlc<s

of

the

number

of (II insureds

under

l~i~ poliey, (21 persansor

orpnizations

,:"h? l~stai?

~ily

injury

or property

dlmage,

Or (J)

.-Ialml m3de

Dr SUils brought

on aecounl

of bodily

Injury or property

damage, the company

s Iiabiluy

IS limIted

as rollows:

 

Coverage

by

one

A-The

or

more

lolal liability

person~

of the compan)'

result

for all damagel, including shall

occurrence

damage~

as the

of anyone

not exceed

ror care and los~ of services,

the

limil

of bodily

injury

because

liabilily

of bodily

staled

in

injury suslained

Ihe

schedule

as

applicahle

10 """"h occurrence."

-

Subjecl

to tIle al.>ove provi~ion

rel'peClin!! "each oceu"enee".the

lolal !ia,bilil~

of rhe co.m~ny

for all dama!,«

because

of (I)

all bodily. i,,!jury

included

within

Ihe completed

hnard

and 12l all bodily

mJury mduded

wllhln

the produclS

hazard

shall

nOI exceed

the

hmlt

of

bodily injury

liability ,r'led

operalioru in the ~hcdule

al ".j!gregale".

Coverage

B- The

tolal

liabililY

for all damage<

he(ause

of all property

cUmage sUllained

by one or more

persons

or organizations

as

the

re-ulr

of anyone

of the compan)' ,hall

occurrence

nol

c:\L"Ced the limit

of property

damage

li.1bility staled

in

the schedule

as applicable

to

"C,1ch

ol'cunenc~".

Suhject

to

the

abow

provi~ion re'pcL'ling

",,"eh oecu"enee",

the IOlalliability

of the ~ompany

for all d3fn01ge, be~ause

of all properly

d3J1?ag~,r~

whirh

Ihi, <'overagc

in any

of Ihe numbered

subparagrJphs

below

,hall

nor cxceed

the

Iim,l

of property

damage

lIablhr}

,Ialed

in Ihc >ehedulc

applies and described a.S "'gj;r<'1!alc";

rated

"

II) all properly

d3mage ariling

oul

of premises

or opcration\

,., rated on a, re.munerahon

, ba'I,1 or ,eoDtra':lor ~ equIpment

.on a receipts

basIS,

including

property

damage

for which

liabilily

j, a,-,umcd

under any Incidental

eontracl

rdatlng

10 such premlscs

or operations.

bul excluding

property

damage included in suhpar~!,raph

121 below:,

 

(2) alT. prop

•.•.ty damage

arising

oul of and occurrins

in the <'Our.'e of operallon,

performed

by Independent

contra,cr~rs

and

g(neral

,upcn'i,jon

Ihereof

by

the

named

insured,

including any ~uch property

damage

for the ~med.lns~red. for v.h,ch ha~~IIY

IS 3'-lumed

under any ooeid,enlal

conlnct

rclaling

to ,u~h

operalions,

bul Ihis lubp;Hagraph

(2)

doc,

not Indude

propert>: danu~e

allSlng O~I of ma<olen~nce

or r,epalrs

at

premises

owned

h>' or rented

10 (he

named

insured or ~lruLrural

alreralions

at such

prem,se<

whlLh

do

not

<ovolve changong

the SIZe of or

movine

buildings

or olher ~lrUL'lUres:

 

','

lJlall

pro-perlY damage induded

wilhin

Ihe proouch

ha.zard and all properly

damage Indudcd

wilhon Ihe completed

opeultons

haza.rd.

limil shaU appl}' "palaldy

to Ihe property d1Ifla$e de'Cribed in subparagraphs

 

(I),

t2)

~nd 0) above, and underlubpara~aphs

(I)

Such aj:gTepte and (~). separalely

with r~pecl

10 "3~h project

awa}' from

premlles

owned

b}' or renred

10 the

named Insured,

 

Covtugcs

A and

B-For

Ihc purpme

of <.telerminin!! Ihe limit of Ihee,ompany',

liabUit~,

all

bodil>:

!njury

and property

damage

arising

OUI of

continuous

or repeated

c'po,ure

to ,ut"t:lnli.1liy

the lame ~eneral condllions

,hall be c'OnSldcred

as 311<lnl' out

of one occurrence.

 

IV.POLICY TERRITORY

This in<urance

applies

only

to bodily

injury or property

damage which occur< wilhin

the policy territory.

Issued

hy the Company

providin!! lhe insurance

afforded

by Ihis policy

al designated

on the

dedarationl

page made

a parI

hc-reof.

(~I)

1-7}

560-4-)

Page 2 of 2 Pages

Exhibit A Page 8 of 272

Named Insured:

~

.

-

"

.0

-

Case 3:11-cv-01493-ST

WACKER

S ILTRON IC CORP.

o

e.-;ption

of H•

oa

? l:';''/'v~ SUl1vnttry O' I rll;''li'Jn-l ¥\'hen Ap;lIIl':dl.~J

.,

"

,---- -- .- -------------

v

~

d ---GENERAL LIABILITY--- ~ (COMPOSITE RATED)

~

~

 

PRODUCTS AND COMPLETED OPERATIONS

ALL OTHER: PREMISES & OPERATIONS; OWNERS OR CONTRACTORS PROTECTIVE; BLANKET CONTRACTUAL ENDORSEMENT; SUPPLEMENTARY COVERAGES ENDORSEMENTj cMPLurtt BENEFITS

EXCESS LIMITS CHARGE

~

Document 1-1

Filed 12/09/11

Page 9 of 272

Page ID#: 29

GENERAL LIABILITY HAZARDS

PolievNo.2320 00 039640 Schedule No. 1 -".-- ~-- R,.,,("J;, ----------- EU'""'ted Pr.mjuma
PolievNo.2320 00 039640
Schedule No.
1
-".--
~--
R,.,,("J;,
-----------
EU'""'ted Pr.mjuma
--~
t:ttrn
CeJde
-~;;;;;
P'C'fTlium Il -
No.
Nurnuer
-I -:".ipc~lY
Bod,IV
Propertv
,-
In;uty
. ~
DerNge
Injurv
Oem.
(.1 Ar •• ISq, Ft.1
IblFrontlgl
leI Rtmurwr •• ion
1.1 Per l00'Sq. Ft. of Ara
lbl PIr Wnw foot
leI ••• $100 Remuneration

1

2

3

20050

(4:n

SALES

32,351,500

/

to

.

I

20050 r2.351',50~r

(43)

199901

(48)

PERfl,I.$~;~QO

. 2'i'fi: '~.'064

.

,-

5:. \

~'J<'

. '.j~'~.'

.:~;.;-:

'.~

2,070

00

.~i48.'~~IY.~'104

4}i88:j~0 ,

3,365 00

~.,;ki1~.~0.:/

cj"\~;~~o

."'.

"•

f\.

/f;

.2lt~

"'1 .~:1~

\{-t~

"~'.:~~

"

!I

,1

.

\'.;~' :.' ".~

. <f?'

'~i

'"

~.;~~;.::~

":0.

'.:-:.",

Exhibit A Page 9 of 272

Case 3:11-cv-01493-ST

Document 1-1

Filed 12/09/11

Page 10 of 272

Page ID#: 30

ENDORSEMENT

",:,;>r''''/~~[~.;'':

\ '::.~

Invoic. Hum,*

Invaict Ditl

,,';'}:/~:";;>Qf.~~~~,;'~~Jk:~:r;m:~;B.'~<~i:V:

"

~~~~'dO:;::A~ r:T~_;

~S~!f:tr

W£XER SIL 1RCtIIC 7:~'lj;f:)~ll~)i~'};~'}~!;~~:~";',

~=.~;:~~'.' ,7<,',:~~J~itl,

8'~~

THIS ENJORSe-err

OF Tt-E POLICY RELATINi TO Tl£ FOUQilINi:

MODIFIES SUCH INSUlWCEiAS:'JS

'",

~;8Y;'"

t

,'~ ',,' ?:::.:V: .•

CCWREt£NSIVE GENERAL

LIABILITY I~

.• ' ):'):~~~~~ri~,S~;

SINiLE LIMIT OF LIABILITY'

:<~'~:1iJ"~;Yj

:

.-1, :;'~~~:

:::/i.,t5;:;~ ~ ~.";\•

IT IS AGREED THAT T1-E "LIMITS OF LIABILITYt' PROVISIa-f IS OEL.ETEO':~:;' ';i';"H?:\

REPlACED BY T1-E FOLL~I"";:

.

.

.oi:::,:,,;'~,' :;t~;;J;:

Ill.

LI MITS OF LIAS I LI TV.'

,;~':i.,' ,,~t;.,

!<."I~,ARDLESSOF 1l£ Nl.I'5ER OF (1) INSUREDS l.N)ER nus POLICY, 0) PERSQIlS OR ORGANIZATI<J.JS \rK) SUSTAIN BOOILY I~ CR PROPERTY DN-W;E, OR 0) CLAIMS MADE OR SUITS BROLGHT <J-I , ACCOLM' OF BOOILY INJLRY OR PROPERTY DAMAGE, Tl£ <nP.AM"S:" LIABILITY IS LIMITED AS FOLLM:

',,'

LIMITS OF LIABILITY PER OC~.

STATED BELOti AS APPLICABLE TO ''EACH OC~"

n£ LIMIT OF LIABILITY",

IS ll£ TOTAL" .

'

Llf'IIT OF

Tl-E

C(M)ANY'S LIABILITY \N)ER COVER/oGES A N«J B' ':~

CO'~~lNED

FOR ALL

~S

FOR BOOILY INJLRY ~

PROPERTY 0AMAiiE

Salll CI'a

Co,

L COlI, T

AS THE RESULT OF

Am aE OCC1.JUtENCE.

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AGGREGATE LIMIT OF LIABILln. SUBJECT TO T1-E N!CVE PROVIsja(\)?'::

RESPECTINi "EAOi OCC~",

CCMJANY lNOER COVERPGES A ANO 8 ca.eU£O FCA"",~

ll£ TOTAL LIABILITY OF ~"/-:':-:;-9':':::;i~<::

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Exhibit A Page 10 of 272

Case 3:11-cv-01493-ST

~320 00 039640

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AGGREGATE LIMIT OF LIABILITY:

(~) II. i2

Document 1-1

,~"

Filed 12/09/11

BNDORSBMBNT (Coetlnecl)

.(,:

Page 11 of 272

Page ID#: 31

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Exhibit A Page 11 of 272

Pages

Case 3:11-cv-01493-ST

. -'1

Document 1-1

Filed 12/09/11

93~)SO100022

Page 12 of 272

Page ID#: 32

Duplicate Original

\t\ausau Insurance companies

,

!

COMBINATION CASUALTY POLICY

'-"--:---1

~~-------------_/\

.

THIS POLICY IS NONASSESSABLE

MUTUALS.MEMBERSHIP AND VOTING NOTICE: The insured is notified that by virtue of this policy, he is a member of the EMPLOYERSINSURANCE OF WAUSAUA Mutual Company, and is entitled to vote either in person or by proxy at any and all

the fourth friday 01

meetings of said company. The anrrual Meetings are hekl at its home office at Wausau, Wisconsin. on

May. in each year, at 9:00 A.M.

.

I

I

I

Employers Insurance of. Wausau A Mutual Company

HOME OFFICE: WAUSAU, WISCONSIN

(Herein called the company)

In consideration of the payment of the premium, in reliance upon the statements in the declarations made a part hereof and

subject to all of the terms 01 this policy, agrees with the named insured as follows:

.

COVERAGES

The insurance afforded by this policy is only with respect to such Coverages as are indicated by specific premium charge or

charges in the appropriate part 01 this policy.

Schedule Dr Schedules 0 r the Coverage Part or Parts attached to and hereby made a

Coverage

SUPPLEMENTARY PAYMENTS

The company will pay, in addition to the applicable limit of liability:

court that part of the judgment which does not exceed the limit of 1he company's liability thereon;

(a) all expenses incurred by the company, all costs taxed

amount of any judgment

and all interest on the entire

(b) premiums on appeal bonds

required in any such suil,

pre-

against the Insured in any suit defended by the company

miums on bonds to release attachments

for an amount not in excess of the applicable limit of

in any such

suit

l

••

.Oo

••

9-19

therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in

liability of this policy, and the cost of bail bonds

01 the insured because of accident or traffic law violation

required

••••

_

-

-

- '-'-60'1:1-

-----

--------

Exhibit A Page 12 of 272

Case 3:11-cv-01493-ST

Document 1-1

Filed 12/09/11

Page 13 of 272

Page ID#: 33

F11 ===============================W~50=~DO~~~=======================::;,

arising out of the use of any vehicle to which this policy

I applies, not to exceed $250 per bail bond, but the com. pany shall have no obligation to apply for or furnish any such bonds;

(cl expenses incurred by the insured for first aid to others

of an accident, for bodily injury to which this

at the time

policy applies; [d) reasonable expenses incurred by the insured at the com. pany's request in assisting the company in the investiga' tion or defense of any claim or suit, including actual loss of earnings not to exceed $2~ per day.

DEFINITIONS

o When used in this policy (including endorsements forming

a part hereof):

"automobile" means a land motor vehicle, trailer or semi. trailer designed for travel on public roads (including any machinery or apparatus attached thereto), but does not in. c1udemobile equipment;

"bodily injury" means bodily injury, sickness or disease

which occurs during the policy

period, including death at any time resulting therefrom;

"collapse haz.ard" includes "structural property damage" as defined herein and properly damage to any other property at any time resulting therefrom. "Structural property dam.

sustained by any person

o age" means the collapse of or structural injury to llny building

or structure due to (1) grading of land, excavating, borrowing,

fifling, back. filling, tunneling, pile driving, cofferdam work or

caisson work or (2) moving, shoring, underpinning, raising or

demolition of any building or structure or removal or rebuild. ing of any structural support thereof. The collapse hazard does not Include property damage (1) arising out of operations performed for the named insured by independent contractors,

or (2) included within the completed operations hazard or the

underiround property

is assumed by the insured under an Incidental contract;

damaie hazard, or (3) for which Iiabilily

"completed operations hazard" includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. "Operations" include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:

(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed,

(Z) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or

(3) when the portion of the work out of which the injury or damage arises has been put fo its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a prin- cipal as a part of the same project.

Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.

The completed operations hazard does not include bodily injury or property damage arising out of

(a) operations in connection with the transportation of proper- ty, unless the bodily injury or property damage arises out

in or on a vehicl e created by the loadine or

of a condition

unloading thereof,

(b) the existence of tools, uninstalled equipment" or abandoned or unused materials, or

(c) operations for which the classification stated in the policy or in the company's manual specifies "including completed operations";

"elevator" means any hoisting or lowering device to connect floors or landings, whether or not in service, and all appliances thereof including any car, platform, shaft, hoistway, stairway, runway, power equipment and machineryj but does not include an automobile servicing hoist, or a holst without a platform outside a building if without mechanical power or if not attached to building walls, or a hod or material hoist used in alteration, construction or demolition operations, or an inclined conveyor used exclusively for carrying property or a dumb. waiter used E'xclusively for carrying property and having a compartment height not exceeding four (eetj

"explosion hazard" includes property damage arising out of blasting or explosion. The explosion hazard does not include property damage (1) arising out of the explosion of air or steam vessels, piping under pressure, prime movers, machinery or power transmitting equipment, or (2) arising out of operations performed for the named insured by independent. contractors, or (3) included within the completed operatlons hazard or the underground property damage hazard, or (4) for which liability is Bssumed by the insured under an Incidental contract;

"incidental contract" means any written (1) lease of pre-

with

construction or demolition operations on or adjacent to a

railroad, (3) undertaking to indemnify a municipality required

except in connection with work for

the municipality, (4) sidetrack agreement, maintenance agreement;

"insured" means any person or organization qualifying as

an insured in the "Persons Insured"

insurance coverage. The insurance afforded applies separately to each insured against whom claim is made or suit is brought, except with respect to the limifs of the company's liability;

by municipal ordinance,

mises, (2) easement agreement, except in connection

or (5) elevator

provision of the applicable

"mobile

equipment" means a land vehicle (including any

machinery or apparatus attached thereto), whether or not sr:lf.propelled, (1) not subject to motor Vehicle registration, or

(2) maintained for use exclusively on

rented to the named insured, including the ways immediately adjoining, Of (3) designed for use principally off public roads, or (4) designed or maintained for the sole purpose of affording

mobility to equipment of the following types forming an integral part of or permanently attached to such Vehicle:

power cranes, shovels, loaders, diggers and drills; concrete mixers (other than the mix-in-transit type); graders, scrapers,

rollers and other road construction

air.compressors, pumps and generators, including spraying.

welding and bunding cleaning equipment; and geophysical exploration and well servicing equipment;

premlses owned by or

or repair equipment;

---------- - ---

Exhibit A Page 13 of 272

Case 3:11-cv-01493-ST

Document 1-1

Filed 12/09/11

Page 14 of 272

Page ID#: 34

==================================H396Q=H199~;::::::::::==================il-;' , ,'. I,:;;

"named insured" means the person or organization named in Item 1. of the declarations of this policy;

"named insured's products" means goods or products man. ufactured, sold, handled or distributed by th e named insured or by others trading under his name, including any container thereof (other than a vehicle), but "named insured's products" shall not include a vending machine or any property other than such container, renled to or located for use of others but not sold;

"OCcurrence" means an accident, including continuous or repeated exposur e to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured;

"policy territory" means:

(1) the United States of America, its territories or possessions, '

(2) international waters or air space, or properly damage or transportation nation, or

(3) anywhere in the world with respect to damages because of bodily injury or property damage arising out of a product which was sold for use or consumption within the territory described in paragraph (I} above, provided the original suit for such damages is brought within such territory:

to or from any other country, state or

or Canada, or

provided the bodily injury

travel

does not occur in the course of

"products hazard" includes bodily injury and property dam. age arising out 0.1 the riamed insured's products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property dam. age occurs away from. premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others;

"property damage" means (II physical injury to or deslruc. tion of tangible property which occurs during the policy period, including the loss of Use thereot at any time resulting there. from, or (2) loss of Use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy periOd;

"under,Eround property damage hazard" includes under. ground property damage as defined herein and property dam. age to any other property at any time resulting therefrom, "Underground property damage" means property damage to wires, conduits, pipes, mains, sewers, tanks, tunnels, any similar property, and any apparatus in connection therewith, beneath the surface of the ground or water, caused by and occurring during the use of mechanical equipment for the purpose of grading land, paving, excavating, drilling, borrowing, filling, back'filling or pile driving. The under,Eround property damage hazard does not include property damage (1} arising out of operations performed for the named insured by inde. pendent contractors, or (2) included within the completed oper. atlons hazard, or {31 for which liability is assummed by the insured under an incidental contract.

CONDLTlDHS

1. Premium All premiums for this policy shall be computed in accordance with the company's rules, rates, rating plans, pre- miums and minimum premiums applicable to the insurance afforded herein. Premium designated in this policy as "advance premium" is a deposit premium only which shall be credited to the amount of the earned premium due at the end of the policy

period. At the close of each period (or part thereof terminating with the end of the policy period) designated in the declara. tions as the audit period the earned premium shall be com. puted for such period and, upon notice thereot to the named insured, shall become due and payable. If the total earned premium for the policy period is tess than the premium previously paid, the company shaH return to the named insured

the unearned portion

The named Insured shall maintain records of such informa- tion as is necessary for premium computation, and shall send copies of such records to the company at the end of the policy period and at such times during the policy period as the company may direct.

paid by the named Insured.

2. Inspection and Audit The company shall be permitted

but

not obliga led to inspect the, named Insured's property

and

operations at any time. Neither the company's right to make inspections nor the making thereof nor any report thereon shall constitute an underlaking, on behalf of or for the benefit of the named insured or olhers, to determine or warrant that

such property or operations are safe or healthful, or are in compliance with any law, rule or regulation. The company may examine and audit the named insured's books and records at any time during the