FILED: NEW YORK COUNTY CLERK 02/16/ :40 PM INDEX NO /2016 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/28/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X LIVE NATION MARKETING, INC., LIVE NATION WORLDWIDE, INC., and WESTCHESTER FIRE INSURANCE COMPANY Plaintiffs, AMENDED COMPLAINT -against- Index No: /2016 GREENWICH INSURANCE COMPANY, XL SPECIALTY INSURANCE COMPANY, XL CATLIN, and XYZ COMPANIES 1-5, said names being fictitious except the same are identified as insurers of Best Buy, Defendants X Plaintiffs, Live Nation Marketing, Inc., Live Nation Worldwide, Inc. (collectively Live Nation ) and Westchester Fire Insurance Company ( Westchester ) by their attorneys Connell Foley LLP, for their Complaint allege, upon information and belief, as follows: NATURE OF THE ACTION 1. Plaintiffs, Live Nation, managed a concert venue located at Jones Beach, Wantagh, NY, identified as Nikon at Jones Beach Theater. On or about March 27, 2013, Live Nation entered into a Sponsorship Agreement contract with Best Buy Stores, LP ( Best Buy ) wherein Best Buy contracted to be a non-exclusive sponsor of concerts in the consumer electronics category, also known as a Non-exclusive Category Sponsor of events produced and managed at the Jones Beach venue ( Sponsorship Agreement ). Under the Sponsorship Agreement, Best Buy agreed, among other things, to obtain liability and umbrella insurance to 1 of 15

2 cover Best Buy s Sponsorship operations, and further agreed to have Live Nation, named as additional insureds under these insurance policies. 2. In turn, Best Buy hired, retained, or contracted with Mark Perez to oversee, design, construct, or add to a Best Buy promotions and advertising booth, alternatively identified a kiosk, truss, or pavilion, to further the sponsorship operations of Best Buy at the Jones Beach venue. 3. In accordance with the provisions of the Sponsorship Agreement, Best Buy obtained a liability insurance policy from Greenwich Insurance Company, ( Greenwich ), and also had Live Nation named as additional insureds under the Greenwich policy. 4. In accordance with the provisions of the Sponsorship Agreement, Best Buy also obtained an umbrella insurance policy from XL Specialty Insurance Co ( XL Specialty ) and, on information and belief, had Live Nation named as additional insureds under the XL Specialty policy. 5. In accordance with the provisions of the Sponsorship Agreement, Best Buy also obtained an insurance policy, umbrella or general liability, from XYZ Companies 1-5 and, on information and belief, named Live Nation as additional insureds under XYZ Companies 1-5s policies. 6. Plaintiff Westchester Fire Insurance Company ( Westchester ) issued a Commercial umbrella insurance policy to Live Nation and has been called upon to defend and indemnify Live Nation in connection with claims arising out to of the operations of Best Buy at the Jones Beach venue, in the matter styled Mark Perez v. Beach Concerts, Inc., et al., Index No /13 (the Perez Lawsuit ). In this action, Live Nation and Westchester assert claims for 2 2 of 15

3 declaratory relief, breach of contract, and reimbursement of defense costs as against Greenwich, XL Specialty, and XYZ Companies 1-5 based on their failure and/or refusal to acknowledge Live Nation as additional insureds under the Greenwich Policy, XL Specialty Policy or XYZ Companies 1-5s Policies, defend Live Nation, or pay defense costs, or indemnify Live Nation in connection with various claims asserting in the Perez Lawsuit, despite numerous requests made by and on behalf of Live Nation. PARTIES 7. Plaintiff Live Nation Worldwide, Inc. is a foreign corporation authorized to do business in the State of New York, with its principal place of business in Beverly Hills, California. 8. Plaintiff Live Nation Marketing, Inc. is a foreign corporation authorized to do business in the State of New York, with its principal place of business in Beverly Hills, California. 9. Plaintiff Westchester is a Pennsylvania corporation with its principal place of business in Philadelphia, Pennsylvania. 10. On information and belief, Defendant Greenwich is a Delaware corporation with its principal place of business in Connecticut, and it is authorized to and conducts business in the State of New York. 11. On information and belief, Defendant XL Specialty is a Delaware corporation with it principal place of business in Connecticut, and is authorized to and conducts business in the State of New York. 12. XYZ Companies 1-5 are fictitiously named insurance companies pursuant to N.Y. CPLR of 15

4 JURISDICTION AND VENUE 13. This declaratory judgment action is brought pursuant to N.Y. CPLR An actual justiciable controversy exists among Plaintiffs and Defendants within the meaning of N.Y. CPLR 3001 regarding the existence of insurance coverage under the Greenwich and XL Specialty policies, as described in more detail below. 15. This Court has jurisdiction of this action under N.Y. CPLR 302, as all Defendants are authorized to conduct business and/or are transacting business within the State of New York. 16. Live Nation are defendants in the Perez Lawsuit venued in the Supreme Court of New York, County of New York, and the allegations and claims asserted therein giving rise to Live Nation s proper claim for insurance coverage under the terms of the Greenwich Policy and XL Specialty Policy. 17. Venue is proper in this Court pursuant to N.Y. CPLR 503. BACKGROUND 18. Live Nation managed and promoted a concert series event or events at the Jones Beach, NY, venue. 19. Live Nation and Best Buy entered into a Sponsorship Agreement dated March 27, 2013, wherein Best Buy became a Non-Exclusive Category Sponsor of the concert series. Pursuant to Section 5.a. of the Sponsorship Agreement, Best Buy is obligated, among other things, as follows: 5. Terms and Conditions. The following terms and conditions govern the Agreement. a. Sponsor s Insurance. Sponsor will maintain and pay all premium costs for, and will ensure that all contractors of 4 4 of 15

5 Sponsor maintain and pay for, the following insurance coverage in amounts not less than specified throughout the duration of the Term: i. Statutory Worker s Compensation including Employer s Liability Insurance, subject to limits of not less than One Million Dollars ($1,000,000.00), affording coverage under applicable worker s compensation laws. Sponsor will cause, if allowed by law, its worker s compensation carrier to waive insurer s right of subrogation with respect to Manager Additional Indemnitiees. ii. Commercial General Liability Insurance for limits of not less than One Million Dollars ($1,000,000.00) per occurrence Bodily Injury and Property Damage combined; One Million Dollars ($1,000,000.00) per occurrence Personal and Advertising Injury; Two Million Dollars ($2,000,000.00) aggregates Products and Completed Operations Liability; One Hundred Thousand Dollars ($100,000.00) Fire Legal Liability, and Two Million Dollars ($2,000,000.00) general aggregate limit per event. The policy shall be written on an occurrence basis. * * * iv. Umbrella Liability Insurance at not less than Four Million Dollars ($4,000,000.00) limit providing excess coverage over all limits and coverages noted in Sections 5.1.ii and 5.a.iii above. This policy shall be written on an occurrence basis. v. The polices noted in Sections 5.a.ii, 5.a.iii and 5.a.1v above shall list Manager (and its landlords, if any), and their respective parents, members, partners, affiliates, divisions and subsidiaries, and their respective officers, directors, shareholders, employees, agents and representatives as additional insureds with respect to any and all Claims arising from Sponsor s operation. Further, coverage for the additional insureds will apply on a primary basis irrespective of any other insurance, whether collectible or not. Should any additional 5 5 of 15

6 premium be charged for such coverages or waivers, Sponsor will be responsible to pay said additional premium charge to their insurer. * * * vii. The Insurance obligations stated in this Section 5.a are independent of, and shall not be affected by the scope or validity of, any other indemnity or insurance provisions in other sections of this Agreement. * * * 20. Accordingly, under the terms of the Sponsorship Agreement, Best Buy was obligated to have Live Nation named as additional insureds under the liability and umbrella insurance policies issued to Best Buy by Greenwich, XL Specialty, and XYZ Companies 1-5 which Best Buy did, in whole or part, as evidenced by the Certificate of Insurance issued to Live Nation which reads in part: Nikon at Jones Beach Theater, Live Nation Marketing, Inc. ( Manager ) is included as additional insureds under the General Liability coverage as their interest may appear. Waiver of Subrogation applies to the Worker s Compensation coverage as required by contract. General Liability coverage evidenced herein is Primary and Non-Contributory to other insurance available to an additional insured, but only in accordance with the Policies provisions. 21. Best Buy was required to procure commercial liability insurance for limits not less than $1,000,000 per occurrence and umbrella liability insurance with a limit of not less than $4,000,000, naming Live Nation as additional insureds. 22. Best Buy procured a Commercial General Liability Insurance Policy from Greenwich, Policy No. RGE (the Greenwich Policy ). 6 6 of 15

7 23. Best Buy procured an Umbrella Liability Policy from XL Specialty, Policy No. US :I13A (the XL Specialty Policy ). 24. Best Buy procured a Commercial General Liability Insurance Policies or Umbrella Policies from XYZ Companies 1-5 ( XYZ Companies 1-5 Policies ). 25. After the effective date of the Sponsorship Agreement, Best Buy contracted with, or hired, Mark Perez to assist Best Buy s operations at the venue site by constructing, erecting, adding to, and/or directing the erection, construction or addition to the Best Buy promotion and advertising tower, truss, building, pavilion, or other named structure at the venue. 26. In the course of working on and assisting in the Best Buy s operations of building, erecting, constructing, or overseeing and directing the building, erection, or construction of the Best Buy advertising and promotion tower, truss, pavilion, or building, Mark Perez was injured. 27. Upon information and belief, Defendants admit that the Policies provide in pertinent part If coverage provided to the additional insured is required by contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. Since Best Buy was required to procure insurance naming Live Nation as additional insured for any and all claims arising in any manner from Best Buy s operations, Live Nation are additional insureds under the policies. 28. The Greenwich Policy has a $1 million per occurrence limit of liability for bodily injury and property damage and a $5 million general aggregate limit. 29. The XL Specialty Policy has a $10 million per occurrence limit of liability and a $10 million aggregate limit. 7 7 of 15

8 30. Pursuant to Sponsorship Agreement, section 5.a.vii, the insurance policies were required to be independent of and shall not be affected by the scope or validity of any other indemnity or insurance provisions in other sections of the Sponsorship Agreement. 31. Pursuant to Section 5.a.v. of the Sponsorship Agreement, the insurance procured by Best Buy naming Live Nation as additional insureds will apply on a primary basis irrespective of any other insurance, whether collectible or not. The Certificate of Insurance confirmed this requirement and further indicated that the Policies were also non-contributory of other insurance. 32. Westchester issued to Live Nation a Commercial Umbrella insurance policy no. G effective November 1, 2012 (the Westchester Policy ). 33. Demand has been made upon Westchester to cover the Perez Lawsuit claims and defense costs under the terms and conditions of the Westchester Policy. The Westchester Policy is excess to the Greenwich, XL Specialty, and XYZ Companies 1-5 Policies. 34. The Westchester Policy provides that if Live Nation has any rights to recover all or part of any payment made by Westchester under its policy, those rights are transferred to Westchester. As such, Westchester has both a contractual and common law right of subrogation against Greenwich, XL Specialty, and XYZ Companies 1-5. The Perez Accident 35. On or before June 26, 2013, Best Buy hired, contracted with, retained the services of, and otherwise engaged Mark Perez to design, construct, erect, produce, and or oversee, direct, manage, and otherwise control the construction of the Best Buy advertising and promotional tower, truss, building, or pavilion at the Jones Beach venue. This construction was in the aid, 8 8 of 15

9 betterment, and advancement of the operations of Best Buy and its activities and operations under the Sponsorship Agreement at the event venue. 36. Perez alleges that as he was directing personnel in the construction efforts as aforementioned, including Michael Brogden, who while operating a forklift, accidently struck the tower on which Mr. Perez stood, causing him to fall and become injured. Mr. Brogden was acting in the role as a special employee of Mr. Perez and/or Best Buy at the time of the incident. 37. Perez alleges that Brogden was negligent and that Live Nation was vicariously liable for his actions. Live Nation denies an employer/employee relationship or that they are in any way vicariously liable for Brogden s actions as a matter of law. 38. Upon being served with the summons and/or complaint in the Perez Lawsuit, Live Nation provided Greenwich and XL Specialty with a prompt written notice of the claim or lawsuit and sent Greenwich and XL Specialty copies of each summons and/or complaint served upon them. In addition, Live Nation demanded defense and indemnity under the Policies. 39. Greenwich and XL Specialty, through representatives of XL Catlin, responded by denying coverage to Live Nation stating that since Brogden was Live Nation s employee coverage would be denied under the Sponsorship Agreements provisions requiring Best Buy to contractually indemnify and defend Live Nation. At no time, then or as of the filing of this Complaint, have XL Specialty or Greenwich responded to Live Nation s demand for insurance coverage pursuant to Sponsorship Agreement Section 5.a.ii, iv, v, and vii and Live Nation s status as additional insureds under the Greenwich Policy and XL Specialty Policy. 40. Live Nation, through counsel, has continually sought for clarification and explanation as to the reasoning of Greenwich and XL Specialty for their failure to defend Live 9 9 of 15

10 Nation under the aforementioned Sponsorship Agreement provisions and the terms of their Policies. No explanation or clarification has been given to Live Nation. FIRST CAUSE OF ACTION Declaratory Judgment as to the Duty to Defend 41. Plaintiffs repeat and reallege paragraphs 1 through 40 as if fully set forth herein. 42. Plaintiffs request a declaration by this Court that Greenwich, XL Specialty, and/or XYZ Companies 1-5 are/is obligated to pay all defense costs that Live Nation have incurred to date or will incur in the future with respect to each of the claims asserted in the Perez Lawsuit from the date of the Accident forward. SECOND CAUSE OF ACTION Declaratory Judgment as to the Duty to Indemnify 43. Plaintiffs repeat and reallege paragraphs 1 through 42 as if fully set forth herein. 44. Plaintiffs request a declaration by this Court that Greenwich, XL Specialty, and XYZ Companies 1-5 have a duty to indemnify Live Nation pursuant to the terms of the Greenwich Policy, XL Specialty Policy, and XYZ Companies 1-5 policies and the provisions of the Sponsorship Agreement. THIRD CAUSE OF ACTION Declaratory Judgment as to Live Nation s Additional Insured status 45. Plaintiffs repeat and reallege paragraphs 1 through 44 as if fully set forth herein. 46. Live Nation is entitled to a declaration by this Court that they are additional insureds under the Greenwich Policy, XL Specialty Policy and XYZ Companies 1-5 Policies. FOURTH CAUSE OF ACTION Breach of Contract 47. Plaintiffs repeat and reallege paragraphs 1 through 46 as if fully set forth herein of 15

11 48. Defendants, Greenwich, XL Specialty, and XYZ Companies 1-5 have breached the terms of their policies by refusing to defend and indemnify their additional insureds, Live Nation, and by not paying any part of Live Nation s defense cost or agreeing to indemnify Live Nation for the Perez Lawsuit claims. contract. herein. 49. Plaintiffs are entitled to and request damages as a result of Defendants breach of FIFTH CAUSE OF ACTION Claim for Contribution 50. Westchester repeats and realleges paragraphs 1 through 49 as if fully set forth 51. Demand has been made upon Westchester to respond and pay defense costs and indemnify Live Nation for all or some of the Perez Lawsuit claims and damages. 52. Defendants, Greenwich, XL Specialty, and XYZ Companies 1-5 are obligated to pay all, or in the alternative, some of the defense costs and indemnity payments incurred in connection with the defense of Live Nation in the Perez Lawsuit. 53. As a matter of law and equity, it is unfair and inappropriate for Westchester to be responsible for all of the defense costs incurred in the defense of Live Nation for the Perez Lawsuit. 54. Westchester, therefore, is entitled to obtain a declaration of the contribution obligations of Greenwich, XL Specialty, and XYZ Companies 1-5 with respect to defense costs and indemnity payments made in the Perez Lawsuit. 55. As a matter of law and equity, Greenwich, XL Specialty and XYZ Companies 1-5 are obligated to contribute to the payment of Live Nation s defense costs, incurred from the date of 15

12 of the Accident forward and indemnity payments made in the Perez Lawsuit, and requests judgment to that effect. herein. SIXTH CAUSE OF ACTION Claim for Equitable Subrogation 56. Westchester repeats and realleges paragraphs 1 through 55 as if fully set forth 57. Westchester is therefore equitably subrogated to the rights of Live Nation as against Defendants Greenwich, XL Specialty, and XYZ Companies 1-5 should be reimbursed for all, or in the alternative, some of the defense costs incurred in the defense of Live Nation and indemnity payment made in the Perez Lawsuit. 58. Under the doctrine of equitable subrogation, Westchester is entitled to be reimbursed by Defendants Greenwich, XL Specialty, and XYZ Companies 1-5 for all, or in the alternative, some of the defense costs incurred in the defense of Live Nation and indemnity payments made in the Perez Lawsuit and requests a judgment to that effect. forth herein. SEVENTH CAUSE OF ACTION Claim for Unjust Enrichment as to Defense Costs 59. Westchester repeats and realleges paragraphs 1 through 58 herein as if fully set 60. Defendants Greenwich, XL Specialty, and XYZ Companies 1-5 have been unjustly enriched because they have received the benefit of other insurer s, including Westchester s, defense of Live Nation in the Perez Lawsuit and have not paid any defense costs with respect to these lawsuits, nor acknowledge their obligation to indemnify Live Nation for claims asserted in the Perez Lawsuit of 15

13 61. Under the doctrine of unjust enrichment, Westchester is entitled to recover from Defendants Greenwich, XL Specialty, and XYZ Companies 1-5 all, or in the alternative, some of the defense costs incurred in the defense of Live Nation and indemnify payments made in the Perez Lawsuit and requests a judgment to that effect. WHEREFORE, Plaintiffs demand judgment: (a) On the First Cause of Action, declaring that Greenwich, XL Specialty, and XYZ Companies 1-5 are obligated to defend Live Nation and pay all defense costs that Live Nation have incurred to date or will incur in the future with respect to the Perez Lawsuit from the date of the Accident forward; (b) On the Second Cause of Action, declaring that Greenwich, XL Specialty, and XYZ Companies 1-5 are obligated to defend Live Nation and pay defense costs with respect to the Perez Lawsuit; (c) On the Third Cause of Action, declaring that Live Nation are additional insureds under the Greenwich Policy, XL Specialty Policy, and XYZ Companies 1-5 Policies; (d) On the Fourth Cause of Action, awarding Live Nation damages in an amount to be determined at trial for Greenwich, XL Specialty, and XYZ Companies 1-5s breach of contract; (e) On the Fifth Cause of Action, awarding Westchester contribution from Greenwich, XL Specialty, and XYZ Companies 1-5 for payment of all, or in the alternative, some of Live Nation s defense costs and indemnity payments in the Perez Lawsuit; (f) On the Sixth Cause of Action, awarding Westchester reimbursement by Greenwich, XL Specialty, and XYZ Companies 1-5 under the doctrine of equitable subrogation of 15

14 for all, or in the alternative, some of the defense costs incurred in the defense of Live Nation and indemnity payments made in the Perez Lawsuit; (g) On the Seventh Cause of Action, awarding Westchester reimbursement of all, or in the alternative, some of the defense costs incurred in the defense of Live Nation or indemnity payments made in the Perez Lawsuit from Greenwich, XL Specialty, and XYZ Companies 1-5 under the doctrine of unjust enrichment; (h) Otherwise determining the rights and obligations of Plaintiffs and Defendant with respect to each Policy and/or Contract; (i) (j) For prejudgment interest accrued on sums owed to Plaintiffs; For Plaintiffs' costs, disbursements, and attorneys' fees incurred in connection with this action; and (k) For such other relief and further as the Court deems just and proper. Dated: New York, New York February 16, 2017 CONNELL FOLEY LLP By:_ /s/ Jeffrey W. Moryan Jeffrey W. Moryan 888 Seventh Avenue New York, New York (212) Attorneys for Plaintiffs, Live Nation Marketing, Inc., Live Nation Worldwide, Inc., And Westchester Fire Insurance Company of 15

15 TO: Stephen M. Forte Alison P. Baker Shipman & Goodwin LLP 400 Park Avenue-Fifth Floor New York, NY Attorneys for Defendants Greenwich Insurance Company XL Specialty Insurance Company of 15