FILED: NEW YORK COUNTY CLERK 04/09/ :33 PM INDEX NO /2015 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/09/2015

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1 FILED: NEW YORK COUNTY CLERK 04/09/ :33 PM INDEX NO /2015 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/09/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x ERlC BARNUM, MARK BARNUM, SALLY BARNUM, and STATE FARM FIRE AND CASUALTY COMPANY - against- Plaintiffs, Certain Underwriters at LLOYD'S, LONDON as Identified In a Policy of Insurance Issued to Sigma Alpha Epsilon, Inc. Bearing Policy Number I OJRFCO-13-L and MARIE LOURDES ANDRE, individually and as Administrator of the Estate of GEORGE DES DUNES, Deceased, Index No.: Date Purchased: SUMMONS Basis of Venue: Plaintiffs Residence Defendants x To the above named Defendants: YOU ARE HEREBY SUMMONS to answer the Complaint in this action and to serve a copy of your answer on the Plaintiffs within 20 days after the service of the summons, exclusive of the date of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Dated: Smithtown, New York April 9, LLP By: Daniel L. Adams, Esq. Attorneys for Plaintiffs 50 Route 111, Suite 314 Smithtown, New York (631) KMS/JDRJDLA File No.: FF6287W8

2 To: Underwriters at Lloyd's, London The Museum Office Building 25 West 53,d Street 14th Floor New York, New York WRIGHT & O'DONNELL, P.C. Attorneys for Defendant SIGMA ALPHA EPSILON FRATERNITY 15 East Ridge Pike, Suite 570 Conshohocken, PA PAUL FRANK & COLLINS I Church Street P.O. Box 1307 Burlington, VT FRIEDLANDER, FRIEDLANDER & ARCESI, P.e. 425 Park Avenue, P.O. Box 109 Waverly, NY BODE & GRENIER, LLP 1150 Connecticut Avenue, N.W. Ninth Floor Washington, DC

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x ERIC BARNUM, MARK BARNUM, SALLY BARNUM, and STATE FARM FIRE AND CASUALTY COMPANY Index No.: Date Purchased: - against - Plaintiffs, DECLARATORY JUDGMENT COMPLAINT Certain Underwriters at LLOYD' S, LONDON as Identified In a Policy of Insurance Issued to Sigma Alpha Epsilon, Inc. Bearing Policy Number IOJRFCO-13-L and MARIE LOURDES ANDRE, individually and as Administrator of the Estate of GEORGE DESDUNES, Deceased, Defendants x Plaintiffs ERIC BARNUM, MARK BARNUM, SALLY BARNUM and STATE FARM FIRE AND CASUALTY COMPANY, by their attorneys, DEVITT SPELLMAN BARRETT LLP, as and for its Complaint for Declaratory Judgment declaring the legal rights and relations of the parties to this action, allege as follows: l. Plaintiff ERIC BARNUM is an individual and a resident of the County of New York, State of New York. 2. Plaintiff MARK BARNUM is an individual and a resident of the County of Monroe, State of New York. 3. Plaintiff SALL Y BARNUM is an individual and a resident of the County of Monroe, State of New York. 4. At all times herein mentioned, plaintiff STATE FARM FI RE AND CASUALTY COMP ANY (hereinafter referred to as "STATE FARM") is a foreign insurance company transacting insurance business in the State of New York.

4 5. At all times herein mentioned, defendant LLOYD'S, LONDON is a foreign insurance company transacting insurance business in the State of New York. 6. At all ti mes herein mentioned, defendant LLOYD'S, LONDON is a domestic insurance company transacting insurance business in the State of New York. 7. At all times herein mentioned, defendant Underwriters at LLOYD' S, LONDON IS a domestic insurance company transacting insurance business in the State of New York. 8. At all times herein mentioned, defendant Underwriters at LLOYD' S, LONDON is a foreign insurance company transacting insurance business in the State of New York. 9. At all times herein menti oned, defendant Underwriters at LLOYD'S, LONDON transacted insurance business in the State of New York. 10. Defendants MARIE LOURDES ANDRE, individually and as administrator of the Estate of GEORGE DESDUNES, Deceased, (hereinafter referred to collectively as the "Underlying Plaintiffs") are named as defendants for purpose of notice only. NATURE OF THE ACTION II. On or about June 24, 20 II, defendants MARIE LOURDES ANDRE, individually and as administrator of the Estate of GEORGE DESDUNES, Deceased, commenced an action (hereinafter referred to as "the Underlying Action") in Supreme Court, Kings County entitled MARIE LOURDES ANDRE, individually and as administrator of the Estate of GEORGE DESDUNES, Deceased, v. SIGMA ALPHA EPSILON FRATERNITY, ERIC BARNUM, et ai., under Index No , seeking damages stemming from the death of GEORGE DESDUNES. The complaint asserts claims of negligence against the plaintiff herein ERIC BARNUM and all other defendants. The Complaint has been amended to add additional defendants.

5 12. The Underlying Plaintiffs claim that GEORGE DESDUNES died on February 25, in the Sigma Alpha Epsilon fraternity house at Cornell University in Ithaca, New York as a result of consuming alcohol. The Underlying Plaintiffs allege that GEORGE DES DUNES consumed the alcohol in connection with his membership with the Sigma Alpha Epsilon fraternity. Plaintiff ERIC BARNUM was the president of the Cornell University chapter of Sigma Alpha Epsilon at the time of the alleged incident. 13. Certain Underwriters at LLOYD'S, LONDON issued a policy of insurance to Sigma Alpha Epsilon Fraternity, Inc. bearing the policy number IOJRFCO-13-L (hereinafter referred to as "the LLOYD'S, LONDON policy"). 14. Certain Underwriters at LLOYD'S, LONDON issued a policy of insurance to Sigma Alpha Epsilon Fraternity, Inc. bearing the policy number IOJRFCO-13-L with effective dates December 31, 2010 to December 3 1, The terms and conditions of the LLOYD'S, LONDON policy are incorporated herein by reference. 15. Certain Underwriters at LLOYD' S, LONDON di sclaimed coverage for ERI C BARNUM. Certain Underwriters at LLOYD' S, LONDON did not allege that ERIC BARNUM was not an "Insured" as that term is defined in the policy. Instead, Certain Underwriters at LLOYD' S, LONDON disclaimed coverage for ERIC BARNUM claiming that the policy excludes coverage to any insured for any claims arising out of, in any way related to, or in any way resulting from any type or form of "Hazing". Certain Underwriters at LLOYD'S, LONDON asserted that all claim asserted by the Underlying Plaintiffs arise out of hazing and therefore there is no coverage pursuant to the hazing exclusion. However, the complaint does not allege that ERIC BARNUM directly caused or

6 participated in the alleged hazing. Therefore, the hazing exclusion does not apply to ERIC BARNUM. 16. Certain Underwriters at LLOYD'S, LONDON further claimed that the policy excludes coverage for any claim arising out of, in any way related to or in any way resulting from any Violation of Fraternity Alcohol or Drug Policy. Certain Underwriters at LLOYD'S, LONDON asserted that all claims asserted by the Underl ying Plaintiffs arise out of underage alcohol consumption. However, the claims in the complaint are not confined solely to the provision of alcohol and include claims of negligent training, supervision, and control. Therefore, this exclusion cannot apply to bar coverage for all the claims in the complaint. 17. The LLOYD'S, LONDON policy provides coverage to ERIC BARNUM. 18. ERIC BARNUM is an insured under the LLOYD'S, LONDON policy. 19. The LLOYD' S, LONDON policy provides coverage to ERIC BARNUM on a primary and noncontributory basis. 20. The LLOYD' S, LONDON policy covers ERIC BARNUM and affords primary liability coverage to ERIC BARNUM for the Underlying Action. 21. STATE FARM issued insurance policy number 32-CG to MARK BARNUM and SALL Y BARNUM for the aforementioned time period (hereinafter referred to as "the STATE FARM policy"). Pursuant to the STATE FARM policy, STATE FARM is defending ERIC BARNUM in the Underlying Action under a reservation of rights. 22. By letter dated November 15, 2011 and March 15, 2012, ERIC BARNUM through counsel tendered his claims for insurance coverage, defendant and indemnification

7 pursuant to the LLOYD' S, LONDON policy to Certain Underwriters at LLOYD ' S, LONDON through their counsel. 23. Certain Underwriters at LLOYD' S, LONDON have failed to accept the tender and have refused to acknowledge their duty to defend and indemnify ERIC BARNUM in the Underlying Action. 24. ERIC BARNUM has generally denied all allegations asserted against him in the Underlying Action, but notwithstanding such denials may be exposed to damages by reason of a possible verdict or judgment. AS AND FOR A FIRST CAUSE OF ACTION 25. Plaintiffs repeat, reiterate and reallege each and every allegation contained in paragraphs " I" through "22" of this Complaint with the same force and effect as if more full y set forth at length herein. 26. The LLOYD' S, LONDON policy was in full force and effect at the time of the occurrence at issue in the Underlying Action. 27. The LLOYD'S, LONDON policy affords coverage to ERIC BARNUM for the claims made against him in the Underlying Action. 28. ERIC BARNUM has complied with all terms and conditions precedent under the LLOYD'S, LONDON policy to obtain insurance coverage for the underlying action. 29. Certain Underwriters at LLOYD'S, LONDON have wrongfully failed and refused to provide coverage to ERIC BARNUM in the Underlying Action. 30. Because of Certain Underwriters at LLOYD'S, LONDON's wrongful denial and refusal to provide coverage, ERIC BARNUM has been deprived of his contractual rights under the LLOYD'S, LONDON policy to a defense and indemnification.

8 31. By reason of the foregoing, ERIC BARNUM seeks a declaration that Certain Underwriters at LLOYD'S, LONDON have an duty to defendant and indemnify ERIC BARNUM under the LLOYD' S, LONDON policy in connection with the Underlying Action. 32. There ex ists a real, actual and justiciable controversy between the Plaintiffs and Defendants herein. 33. Pl ai nti ffs have no adequate remedy at law to have their rights and duties determined as to the merits set forth herein. AS AND FOR A SECOND CAUSE OF ACTION 34. Plaintiffs repeat, reiterate and reallege each and every allegation contained in paragraphs " 1" through "31" of this Complaint with the same force and effect as if more fully set forth at length herein. 35. ERIC BARNUM is an insured under the LLOYD ' S, LONDON policy. 36. ERIC BARNUM is entitled to defense and indemnification under the LLOYD ' S, LONDON policy. 37. Certain Underwriters at LLOYD'S, LONDON have failed to accept ERI C BARNUM's tender of hi s defense and indemnity in the Underlying Action. 38. Because of the aforesaid wrongful denial of coverage, STATE FARM has been forced to incur costs in defending ERIC BARNUM in connection with the Underlying Action which amounts should have been paid by Certain Underwriters at LLOYD' S, LONDON under the LLOYD'S, LONDON policy. 39. By reason of the foregoing, STATE FARM is entitled to monetary judgment against Certain Underwriters at LLOYD' S, LONDON for the costs of defending the Underlying

9 Action and for any damages that may be awarded against ERlC BARNUM In the Underl ying Action, plus interest. AS AND FOR A THIRD CAUSE OF ACTION 40. Plaintiffs repeat, reiterate and reallege each and every allegation contained in paragraphs " I" through "39" of thi s Complaint with the same force and effect as if more fully set forth at length herein. 41. Certain Underwriters at LLOYD' S, LONDON issued a policy of insurance to Sigma Alpha Epsilon Fraternity, Inc. bearing the policy number I OJRFCO-1 3-L with effective dates December 31, 20 I 0 to Decem ber 3 I, 20 II. 42. By issuing the policy, LLOYD' S, LONDON contracted to provide defense and indemnification to insureds under the policy. 43. ERlC BARNUM is an insured under the LLOYD'S, LONDON policy. 44. ERIC BARNUM is entitled to defense and indemnification under the LLOYD' S, LONDON policy. 45. Certain Underwriters at LLOYD' S, LONDON, by their refusal to defend and indemni fy ERlC BARNUM in the Underlying Action, have breached the contract of insurance issued by Certain Underwriters at LLOYD'S, LONDON. 46. That by reason of Certain Underwriters at LLOYD'S, LONDON's breach of contract, ERIC BARNUM, MARK BARNUM, SALLY BARNUM and STATE FARM FIRE AND CASUALTY COMPANY have been damaged. 47. Because of the aforesaid breach of contract, STATE FARM has been forced to incur costs in defending ERlC BARNUM in connection with the Underlying Action which

10 amounts should have been paid by Certain Underwriters at LLOYD'S, LONDON under the LLOYD'S, LONDON policy. 48. By reason of the foregoing, STATE FARM is entitled to monetary judgment against Certain Underwriters at LLOYD' S, LONDON for the costs of defending the Underl ying Acti on and for any damages that may be awarded against ERIC BARNUM in the Underl ying Action, plus interest. WHEREFORE, Plaintiffs pray that judgment be entered in this action: I) declaring that the LLOYD'S, LONDON policy affords primary liability insurance coverage to ERIC BARNUM for the claims asserted against him in the Underlying Action, and that Certain Underwriters at LLOYD' S, LONDON are, therefore, obligated to defend and indemnify ERIC BARNUM in connection with the underlying action on a primary and noncontributory basis; 2) against Certain Underwriters at LLOYD'S, LONDON for all attorneys' fees, costs, interest and other expenses incurred by STATE FARM FIRE AND CASUALTY COMPANY in connection with the defense of ERIC BARNUM in the Underlying Action up to the date of judgment; 3) against Certain Underwriters at LLOYD'S, LONDON for all costs of settlement of the underlying claim and/or satisfaction of any judgment as may be obtained against ERIC BARNUM in the Underl ying Action; 4) awarding Plaintiffs their costs and attorneys' fees incurred herein; 5) such other and further relief as this Court may deem just and proper. Dated: Smithtown, New York April 9, 2015

11 .\1/"\I,,",LTT, LLP By: DanielL. Adams, Esq. Attorneys for Plaintiffs 50 Route Ill, Suite 314 Smithtown, New York (631) KMS/JDRlDLA File No.: FF6287W8 To: Underwriters at Lloyd' s, London The Museum Office Building 25 West 53,d Street 14'h Floor New York, New York WRIGHT & O'DONNELL, P.c. Attorneys for Defendant SIGMA ALPHA EPSILON FRATERNITY 15 East Ridge Pike, Suite 570 Conshohocken, P A PAUL FRANK & COLLINS 1 Church Street P.O. Box 1307 Burlington, VT FRIEDLANDER, FRIEDLANDER & ARCESI, P.c. 425 Park Avenue, P.O. Box 109 Waverly, NY BODE & GRENIER, LLP 1150 Connecticut Avenue, N.W. Ninth Floor Washington, DC