AMERICAN SAFETY INDEMNITY COMPANY ASIC - CPL CONTRACTOR S POLLUTION LIABILITY POLICY

Transcription

1 AMERICAN SAFETY INDEMNITY COMPANY ASIC - CPL CONTRACTOR S POLLUTION LIABILITY POLICY IN THIS POLICY, CLAIM RELATED COSTS REDUCE THE LIMITS OF INSURANCE Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words you and your refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy. The words we, us and our refer to the Company providing this insurance. The word insured means any person or organization qualifying as such under WHO IS AN INSURED (SECTION IV). Other words and phrases that appear in quotation marks have special meaning. Refer to DEFINITIONS (SECTION II). In consideration of the payment of premiums under this policy, and in reliance upon the statements contained in the Declarations and any applications or other materials and information submitted herewith, and subject to the terms, conditions and exclusions of this policy, we agree with you as follows: SECTION I - CONTRACTOR S POLLUTION LIABILITY COVERAGE 1. Insuring Agreement. a. We will pay on behalf of the insured those sums in excess of the self-insured retention that the insured becomes legally obligated to pay as loss because of a pollution incident caused by the performance during the policy period of covered contracting operations in the coverage territory. We will have the right and duty to defend any claim or suit seeking such loss. We may at our discretion investigate any bodily injury, property damage, clean-up costs, loss or pollution incident and settle any claim or suit that may result. But: (1) The amount we will pay for loss is limited as described in SECTION V - LIMITS OF INSURANCE; and (2) Our right and duty to defend end at such time when allegations potentially covered by the policy are either dropped or dismissed with prejudice or when we have used up the applicable limit of insurance in the payment of loss, in the payment of settlements, or in our offer to settle or the tender to the potential plaintiff of the applicable limit of insurance. Once the applicable limit of insurance has been exhausted, we shall not be obligated to defend or continue to defend any claim or suit or pay any loss. We have the right to seek reimbursement for any claim related costs we incur in connection with any claim or suit that we defend which is found by judicial determination or by mutual agreement of the parties to this policy to not be covered under the policy. b. This insurance applies only if: (1) The bodily injury, property damage or clean-up costs takes place during the policy period; and (2) The bodily injury, property damage or clean-up costs first manifests itself during the policy period. SECTION II - DEFINITIONS 1. Arising from means arising out of, relating to or resulting from. 2. Auto means a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment. But auto does not include mobile equipment. 3. Bodily injury means physical injury, sickness, or disease sustained by a person, including death resulting from any of these, arising directly out of a pollution incident. Bodily injury includes mental anguish or emotional distress, but only if resulting directly from physical injury, sickness or disease sustained by the same person. 4. Claim means any written demand, notice, request for defense, request for indemnity, or other legal or equitable proceeding against any insured by a person, entity or asserted class for loss. 5. Claim related costs means all costs and expenses incurred by us or at our request associated with the cpl_pol.doc Copyright 1999 American Safety Indemnity Company Page 1 of 11

2 investigation, handling, defense, settlement or appeal of any claim or suit, including but not limited to amounts for attorneys fees, court costs, arbitration or mediation costs or expenses, expert and witness fees, investigative fees, consulting fees, adjustment fees or any other claim or suit related costs or expenses. All claim related costs will reduce the limits of liability. However, claim related costs does not include the time and expense incurred by any insured in assisting in resolving any claim or suit and expenses incurred by you for redesign, changes, additions or remedies performed by any insured and necessitated by a claim, unless approved in writing by the Company. 6. Clean-up costs means expenses incurred in the removal, detoxification, dilution, neutralization, or remediation of pollutants in contaminated soil (including any building or structure thereupon), surfacewater or groundwater, arising directly out of a pollution incident provided such expenses: a. Are specifically mandated by a governmental entity duly acting under the authority of environmental law(s); or b. Have been actually incurred by a governmental entity or third party. 7. Coverage territory means the United States of America (including its territories and possessions), Puerto Rico and Canada. 8. Covered contracting operations means those specifically described physical operations as listed in the endorsement attached to this policy entitled COVERED CONTRACTING OPERATIONS ENDORSEMENT which are performed directly by you or on your behalf for others at a project site. 9. Demolition hazard means: a. The collapse of or structural injury to any building or structure arising from the wrecking or taking out of any load-supporting structural member. b. The demolition hazard does not include the wrecking or taking out of any load-supporting structural member when such activities are performed by a contractor or subcontractor working for you or on your behalf, provided such contractor or subcontractor carries valid and collectible general liability insurance covering such operations naming you as an Additional Insured, with an insurance carrier that is authorized in the state where such activities are performed. c. The demolition hazard also does not include the renovation of a building or modifying of any non-structural member that is not load supporting. 10. Disposal means all activities associated with the deposit of pollutants or other materials at a regulated or unregulated disposal site, including but not limited to any landfill. 11. Executive officer means a person holding any of the officer positions created by your charter, by-laws or any other similar governing document. 12. Explosion hazard includes property damage arising out of blasting or explosion. 13. Insured contract means: a. That part of any written contract or written agreement under which you assume the tort liability of another party to pay damages not otherwise excluded under the policy because of bodily injury, property damage or clean-up costs to a third person or organization and caused by your negligence. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. b. An insured contract does not include that part of any contract or agreement: (1) That indemnifies another party for claims or suits arising from the performance of covered contracting operations within 50 feet of any railroad or subway property; (2) Under which any insured assumes liability for claims or suits arising from the rendering of or failure to render professional services ; (3) Under which any insured agrees to indemnify, hold harmless, defend, make contribution to or share damages with another party for claims or suits directly or indirectly arising from the indemnified party s negligence, actions, inactions or status, including (without limitation) for vicarious liability, derivative liability, strict liability or liability without fault except for the actions or inactions of the Named Insured; or (4) That indemnifies or agrees to make contribution to, or share damages with, another party for damage by fire to premises rented or loaned to or occupied by the insured. 14. Landfill means a regulated or unregulated disposal site used for the disposal of solid or liquid wastes on or beneath the land. 15. Leased worker means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related cpl_pol.doc Copyright 1999 American Safety Indemnity Company Page 2 of 11

3 to the conduct of your business. Leased worker does not include a temporary worker. 16. Loading or unloading means the handling of property at a project site where covered contracting operations are performed: a. After it is moved from the place where it is accepted for movement into or onto an aircraft, rolling stock, watercraft or auto ; b. While it is in or on an aircraft, rolling stock, watercraft or auto ; or c. While it is being moved from an aircraft, rolling stock, watercraft or auto to the place where it is finally delivered; but loading or unloading does not include the movement of property by means of a mechanical device, other than a hand truck, that is not attached to the aircraft, rolling stock, watercraft or auto. For the purposes of this definition, property includes pollutants. 17. Loss means: a. Monetary awards or settlements of compensatory damages because of bodily injury or property damage ; b. Cleanup costs ; and c. All claim related costs. However, loss shall not include: (1) injunctive or equitable relief; (2) the return of fees or other charges for services rendered; and (3) any fines, including but not limited to civil, administrative or criminal fines, penalties, assessments, punitive damages, exemplary damages, multiplied damages, liquidated damages or damages for delay. 18. Mobile equipment means any of the following types of land vehicles, including any attached machinery or equipment: a. Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; b. Vehicles maintained for use solely on or next to an insured s premises; c. Vehicles that travel on crawler treads; d. Vehicles, whether self-propelled or not, maintained primarily to provide mobility to permanently mounted: (1) Power cranes, shovels, loaders, diggers or drills; or (2) Road construction or resurfacing equipment such as graders, scrapers or rollers; e. Vehicles not described in a., b., c. or d. above that are not self-propelled and are maintained primarily to provide mobility to permanently attached equipment of the following types: (1) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment; or (2) Cherry pickers and similar devices used to raise or lower workers; f. Vehicles not described in a., b., c. or d. above maintained primarily for purposes other than the transportation of persons or cargo. However, self-propelled vehicles with the following types of permanently attached equipment are not mobile equipment but will be considered autos : a. Equipment designed primarily for: (1) Snow removal; (2) Road maintenance, but not construction or resurfacing; or (3) Street cleaning; b. Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers; and c. Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment. 19. Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including but not limited to smoke, vapor, soot, fumes, acids, alkalis, toxic chemicals and waste materials. 20. Pollution incident means the actual discharge, dispersal, release or escape of pollutants into or upon land, the atmosphere or watercourse or body of water, provided such conditions are not naturally present in the environment. 21. Professional services means: a. The preparing, approving, recommending or failing to prepare, approve or recommend maps, drawings, opinions, reports, surveys, change orders, designs, specifications, hazard assessment plans, response actions, abatement methods or products, air monitoring plans or insurance requirements; b. Supervisory, inspection, training or engineering services; or c. Commercial or industrial hygiene, air monitoring, testing, laboratory analysis, public health, legal, accounting, architectural, medical, nursing, data processing, consulting or investment advisory services. 22. Project site means the immediate area of a building, structure or property within which covered contracting operations are performed. 23. Property damage means: a. Physical injury to, destruction or contamination of tangible property, including the resulting loss of cpl_pol.doc Copyright 1999 American Safety Indemnity Company Page 3 of 11

4 use of that property, arising directly out of a pollution incident ; or b. Loss of use of tangible property that is not physically injured or destroyed, provided that such loss of use arises directly out of a pollution incident. 24. Suit means a civil proceeding in which loss to which this insurance applies is alleged. Suit includes: a. An arbitration proceeding in which such loss is claimed and to which you must submit or do submit with our consent; or b. Any other alternative dispute resolution proceeding in which such loss is claimed and to which you submit with our consent. 25. Supervisory employee means any executive officer, project foreman, site supervisor, project manager, or any officer, director, manager or supervisor who is or who has at any time been employed by or working on behalf of any insured. 26. Temporary worker means a person who is furnished to you to substitute for a permanent employee on leave or to meet seasonal or short-term workload conditions. 27. Your product means: a. Any goods or products, other than real property, manufactured, specified, recommended, sold, handled, distributed or disposed of by: (1) You; (2) Others trading under your name; or (3) A person or organization whose business or assets you have acquired; and b. Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products. Your product includes: a. Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of your product ; and b. The providing of or failure to provide warnings or instructions. Your product does not include vending machines or other property rented to or located for the use of others but not sold. SECTION III - EXCLUSIONS 1. This insurance does not apply to any claim or suit arising from : a. Prior Pollution Incidents. Any pollution incident existing, commencing or occurring prior to the inception date of this Policy. b. Expected, Intended or Dishonest Acts. Any dishonest, fraudulent, malicious, willful, wanton, illegal, expected or intentional act, or pollution incident by or at the direction of any insured; or any intentional, deliberate or willful failure by any insured to comply with any statute, regulation, ordinance, administrative complaint, notice of probation, notice letter, executive order or instructions of any governmental or public agency or body. c. Contractual Liability. Breach of contract or the failure to perform any contract or agreement or the assumption of liability by any insured in a written or oral contract or agreement. This exclusion does not apply to liability for loss : (1) That you would have in the absence of the contract or agreement; or (2) Assumed in a written contract or agreement that is an insured contract, provided that the bodily injury, property damage or clean-up costs takes place and first manifests itself subsequent to the execution of the contract or agreement. d. Workers Compensation and Similar Laws. Any obligation of any insured under a workers compensation, disability benefits or unemployment compensation law or any similar law. e. Employers Liability. Bodily injury to: (1) Any employee or former employee of any insured, including any leased worker or temporary worker. (2) The spouse, child, parent, brother or sister of that employee, former employee, leased worker or temporary worker as a consequence of paragraph (1) above. This exclusion applies: (1) Whether any insured may be liable as an employer, former employer or in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury or damage. f. Fines, Penalties or Assessments. Any fines, including but not limited to any civil, administrative or criminal fines, penalties, assessments, punitive damages, exemplary damages, multiplied damages, liquidated damages or damages for delay. cpl_pol.doc Copyright 1999 American Safety Indemnity Company Page 4 of 11

5 g. Property Damage. Property damage to: (1) Work performed by or on behalf of the insured or its parent, subsidiary or affiliate and arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith; (2) Your product ; (3) Property you own, rent, or occupy; (4) Premises you sell, give away, or abandon; (5) Property loaned to you; or (6) Personal property in the care, custody or control of the insured. h. Explosion and Demolition Hazards. Property damage included within: (1) The explosion hazard ; or (2) The demolition hazard. i. Pollutants - Premises. Any discharge, dispersal, release, seepage, migration, inhalation or escape of pollutants on, at, under or emanating from any property, location, structure or site you currently or have ever owned, operated or rented. j. Aircraft, Auto, Rolling Stock or Watercraft. The ownership, maintenance, use or entrustment to others of any aircraft, auto, rolling stock or watercraft. Use includes operation and loading or unloading. This exclusion does not apply to loading or unloading by or on behalf of the Named Insured of any auto or rolling stock. k. Nuclear Hazard. (1) Any claim or suit for which there is any other policy, insurance or coverage or with respect to which an insured under this policy is also an insured under a Nuclear Energy Liability Policy issued by the Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada or any of their successors, or would be an insured under any such policy but for its termination upon exhaustion of its Limit of Liability. (2) 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 (b) Any insured is, or had this policy not been issued by us would be, 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. (3) The hazardous properties of any radioactive material, nuclear material, nuclear waste, or spent fuel. (4) Hazardous properties of nuclear material, if: (a) The nuclear material (i) is at any nuclear facility owned by, or operated by or on behalf of, any insured or (ii) has been discharged or dispensed therefrom; (b) The nuclear material is contained in spend fuel or nuclear waste at any time possessed, handled, used, processed, stored, transported or disposed of, by or on behalf of any insured; or (c) The claim or suit arises out of the furnishing by any insured of services, materials, parts or equipment in connection with the planning, construction, maintenance, operation or use of any nuclear facility. (5) As used in this exclusion: (a) hazardous properties include radioactive, toxic or explosive properties; (b) nuclear material means source material, special nuclear material or by-product material ; (c) source material, special nuclear material and by-product material have the meanings given them in the Atomic Energy Act of 1954 or in any law amendatory thereof; (d) spent fuel means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in a nuclear reactor ; (e) nuclear waste means any waste material (i) containing nuclear material, radioactive material or by-product material and (ii) resulting from the operation by any person or organization of any nuclear facility ; (f) nuclear facility means: (i) Any nuclear reactor ; (ii) Any equipment or device designed or used for separating the isotopes of uranium or plutonium, processing or utilizing spent fuel, or handling, processing or packaging nuclear waste ; (iii) 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 cpl_pol.doc Copyright 1999 American Safety Indemnity Company Page 5 of 11

6 custody of the insured at the premises where such equipment 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; (iv) Any structure, basis, escalation, premises or place prepared or used for the storage or disposal of nuclear 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 operations; (g) nuclear reactor means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material. (h) As used in this exclusion, property damage includes all forms of radioactive contamination of property. l. Force Majeure. Any consequence, whether direct or indirect, of war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection for military or usurped power, strike, riot, civil commotion, flood, earthquake, windstorm or other acts of God. m. Professional Services. The rendering or failure to render any professional services. n. Guaranties and Warranties. Any implied, express, oral or written guarantee or warranty. o. Storage/Treatment/Disposal. (1) Any storage, disposal or landfilling of any hazardous or nonhazardous substances or material or arising from any site, facility or landfill that is not a project site ; or (2) any pollution incident on, at, under or emanating from any location to which you or others working directly or indirectly on your behalf arranges for, sends or ever have sent materials for treatment, recycling, reclamation, storage or disposal unless specifically endorsed onto this policy. p. Transportation. Any waste or any products, materials or pollutants transported, shipped or delivered via mobile equipment, auto, aircraft, watercraft or rolling stock to a location beyond the boundaries of a project site. q. Insured vs. Insured. Loss claimed by any insured or additional insured against another insured or additional insured. r. Other Insurance. Covered contracting operations rendered in connection with any project with respect to which you have procured a contractor s pollution liability insurance policy purporting to apply to a specific project. This exclusion applies even if the loss is not covered in whole or in part by that insurance policy for any reason. s. Antitrust. Antitrust, unfair competition or restraint of trade. t. Development, Sale, Acquisition - Real Estate. The development of, acquisition, transfer or sale of real estate by you or on your behalf, or any defect or impairment to title to real property, including fixtures. u. Patent Infringement. Use of, infringement of or interference with patents, trademarks, servicemarks, tradenames, copyright, software, trade secrets, intellectual property or other similar rights. v. Goods and Products. Any goods, products or equipment manufactured, sold, handled, installed, distributed or disposed of by you, your subsidiaries, any entity which wholly or partly owns, operates or manages you or any subsidiary of such entity, others under license by you, your vendors or subcontractors or any other person or entity working directly or indirectly on your behalf. w. Related Parties. Loss claimed by any of the following: (1) any related business enterprise which is operated, managed or owned, in whole or in part, by the insured, or (2) a parent company of the insured, or (3) any affiliated or subsidiary company of the insured. x. Business Enterprise. Any insured s involvement as a partner, officer, director, stockholder, employer or employee of any business enterprise not named in the Declarations, or arising from any insured s involvement in covered contracting operations rendered to or on behalf of, any business enterprise not named in the Declarations that wholly or partly owns the insured or which to any cpl_pol.doc Copyright 1999 American Safety Indemnity Company Page 6 of 11

7 extent controls, operates, or manages the insured, or that is wholly or partly owned by an insured, or in which an insured is an officer, partner, director or employee, or which is to any extent controlled, operated, or managed by an insured. y. Employment-Related Practices. (1) Any person because of: (a) Refusal to employ that person; (b) Termination of that person s employment; (c) Refusal or failure to promote that person; (d) Employment-related practices, policies, acts or omissions, including but not limited to coercion, promotion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation or discrimination directed at that person; or (e) Labor contract or agreement, or any employee benefit, or benefit plan or program, including but not limited to liability under the National Labor Relations Act, the Labor Management Relations Act, the Davis Bacon Act, the Employee Retirement Income Security Act of 1974, the Americans With Disabilities Act, or any workers compensation or similar federal or state laws. (2) By the spouse, child, parent, brother or sister, or personal representative or administrator of that person as a consequence of the actions or inactions described in paragraphs (a), (b), (c), (d) or (e) above. This exclusion applies: (1) Whether any insured may be liable as an employer or in any other capacity; and (2) To any obligation of any insured to share damages with or repay someone else who must pay damages because of the offense, injury, claim, suit or loss. z. Progressive Or Continuing Injury Or Damage. Any pollution incident, bodily injury, property damage or clean-up costs which first arose prior to the policy period, even if the results of the pollution incident, bodily injury, property damage or clean-up costs are continuing in nature or extend beyond the policy period during which the pollution incident, bodily injury, property damage or clean-up costs first arose even if the results continue into this or any subsequent policy period. SECTION IV - WHO IS AN INSURED 1. If you are designated in the Declarations as: a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members and your partners and their spouses are also insureds, but only with respect to the conduct of your business. c. An organization other than a partnership or joint venture, you are an insured. Your executive officers and directors are insureds, but only with respect to their duty as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. 2. Each of the following is also an insured: a. Your employees, including a leased worker or temporary worker, other than your executive officers, but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, no employee is an insured for: (1) Bodily injury : (a) To you, to your partners or members (if you are a partnership or joint venture), or to a co-employee, leased worker or temporary worker while in the course of his or her employment or while performing duties related to the conduct of your business; (b) To the spouse, child, parent, brother or sister of that co-employee, leased worker or temporary worker as a consequence of paragraph (1)(a) above; or (c) For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in paragraphs (1)(a) or (b) above. (2) Property damage or clean-up costs to or arising from property owned, occupied, used by, rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any employee, a leased worker or temporary worker, or, if you are a partnership or joint venture, by any partner or member. b. Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this policy. No person or organization is an insured with respect to the conduct of any current or past partnership or joint venture that is not shown as a Named Insured in the Declarations or by endorsement to this policy. cpl_pol.doc Copyright 1999 American Safety Indemnity Company Page 7 of 11

8 SECTION V - LIMITS OF INSURANCE 1. The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or suits brought; c. Persons or organizations making claims or bringing suits ; d. Governmental actions or environmental regulations with respect to clean-up costs ; e. Certificates of insurance issued; or f. Pollution incidents. 2. The Aggregate Limit stated in the Declarations is the most we will pay for all loss because of all bodily injury, property damage and clean-up costs arising from all pollution incidents. Claim related costs will reduce the limits of insurance. 3. Subject to the Aggregate Limit in paragraph 2. above, the Each Loss Limit is the most we will pay for the sum of all loss because of bodily injury, property damage and clean-up costs arising from any one pollution incident. Claim related costs will reduce the limits of insurance. 4. One or more claims arising from the same, related, or continuous or ongoing pollution incident shall be considered a single claim and the limit of liability as applicable to Each Loss shall apply. SECTION VI - CONDITIONS 1. Bankruptcy. Bankruptcy or insolvency of the insured or of the insured s estate will not relieve us of our obligations under this policy. 2. Duties In the Event of A Claim, Suit or Pollution Incident. a. You must see to it that we receive written notification as soon as possible but in no event later than ten (10) days of any supervisory employee becoming aware of any claim, suit, pollution incident, bodily injury or property damage which may result in a claim, suit or any action or proceeding to impose an obligation on the insured for any clean-up costs. Notice should include: (1) How, when and where the bodily injury, property damage or pollution incident took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising from the pollution incident. Notice of a pollution incident is not notice of a claim. b. If a claim is made against any insured or an action or suit is initiated, you must see to it that we receive written notice of the claim or notice of action or suit within ten (10) days of any supervisory employee becoming aware of any such claim, action or suit. c. The insured and any employee of such insured must: (1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with any claim, suit or pollution incident ; (2) Authorize us to obtain records and other information including but not limited to all technical reports, laboratory data, field notes or any other documents generated by persons the insured has hired to investigate a claim, suit or pollution incident or to remediate a pollution incident, all expert reports, investigations and data collected by experts the insured has retained, whether or not you intend to use the material for any purpose; (3) Cooperate with us in the investigation, settlement or defense of the claim, suit or pollution incident ; and (4) Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may apply. (5) Be willing to submit to recorded statements and examinations under oath and must sign his or her testimony. d. No insured will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for minor first aid, without our consent. e. We shall have the right, but not the duty, to participate in decisions regarding clean-up or remediation of a pollution incident, or to assume direct control over all aspects of such clean-up or remediation and the adjustment of any claim or suit up to the applicable limit of liability. 3. Legal Action Against Us. No person or organization has a right under this policy: a. To join us as a party or otherwise bring us into a suit asking for damages from an insured; or b. To sue us on this policy unless all of its terms have been fully complied with. cpl_pol.doc Copyright 1999 American Safety Indemnity Company Page 8 of 11

9 A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured obtained after an actual trial, but we will not be liable for damages that are not payable under the terms of this policy or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant s legal representative. 4. Other Insurance. This insurance is excess over any other valid and collectible insurance available to any insured, whether primary, pro-rata, excess, contingent or on any other basis. This insurance shall in no way be increased or expanded as a result of the receivership, insolvency or inability to pay of any insurer with respect to the duty to indemnify and the duty to defend. This also applies to the insured while acting as a self-insured for any coverage. When this insurance is excess, we will have no obligation or duty under SECTION I to defend any claim or suit that any other insurer has a duty to defend. When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: a. The total amount that all such other insurance would pay in the absence of this insurance; and b. The total of all deductible and self-insured amounts under all such other insurance. 5. Premium Audit. a. We will compute all premiums for this policy in accordance with our rules and rates, which are incorporated herein and made a part of this policy. b. Premium shown in this policy as advance premium is a deposit premium only. At the close of each audit period, we will compute the earned premium for that period. Audit premiums are due and payable on notice to the first Named Insured. If the sum of the advance and audit premiums paid for the policy period is greater than the earned premium, we will return the excess to the first Named Insured subject to us retaining at least the Minimum Premium stated in the Declarations. c. The first Named Insured must keep records of the information we need for premium computation, and send us copies at such times as we may request. 6. Representations. By accepting this policy, you agree: a. The statements in the Declarations, application for insurance, any other underwriting, loss control or claims related information, and any other information submitted to us was accurate and complete at the time you reported that information; b. You shall notify us as soon as possible, but no later than 30 days, of your knowledge of any information indicating that the Declarations, application for insurance, any other underwriting or claims related information, or any other material information submitted to us was not accurate and complete at the time you provided that information or is no longer accurate or complete; c. Those statements are based upon representations you made to us; and d. We have issued this policy in reliance upon your representations. 7. Transfer of Rights of Recovery Against Others To Us. If the insured has rights to recover all or part of any payment we have made under this policy, those rights are transferred to us. The insured must do nothing to impair them. At our request, the insured will bring a claim or transfer those rights to us and help us enforce them. 8. Inspection. We shall have the right, but not the obligation, to inspect covered contracting operations, your property, documents and operations or any site, wherever located, at any time and from time to time. The insured shall assure access by our representatives to all such areas and documents. Neither our right to make inspections nor the making thereof, nor the making of any report as a result thereof, shall constitute an undertaking, by us or our representatives, of or for the insured s or any other person s or entity s benefit, to determine, warrant or guarantee that such property or operations are safe, appropriate, or in compliance with any law, rule or environmental regulations. 9. Liability of the Company. The insured agrees that our liability hereunder shall be satisfied solely from our available funds and that our directors, officers, agents, managers, representatives, and shareholders shall have no liability hereunder to any insured. 10. Investigations. It is expressly agreed by the insured that the undertaking, or agreement to undertake, by us, of any investigation, report, settlement or defense of any: a. claim, notice, suit, loss, demand, complaint or similar matter; cpl_pol.doc Copyright 1999 American Safety Indemnity Company Page 9 of 11

10 b. pollution incident ; or c. other fact or circumstance, shall not constitute either a waiver by us, or any estoppel on us to later assert any term, condition, provision or exclusion in the policy, or the applicability thereof to any such claim, notice suit, demand, pollution incident or complaint. It is agreed that any such action by us shall be undertaken with reservation of all rights. 11. Cancellation. a. The first Named Insured shown in the Declarations may cancel this policy by mailing or delivering to us advance written notice of cancellation. b. We may cancel this policy by mailing or delivering to the first Named Insured written notice of cancellation at least: (1) 10 days before the effective date of cancellation if we cancel for non-payment of premium; or (2) 30 days before the effective date of cancellation if we cancel for any other reason. c. We will mail or deliver our notice to the first Named Insured s last mailing address known to us. d. Notice of cancellation will state the effective date of cancellation. The policy period will end on that date. e. If this policy is canceled, we will send the first Named Insured any premium refund due subject to us retaining at least the Minimum Premium stated in the Declarations. If we cancel, the refund will be pro-rata. If the first Named Insured cancels, the refund may be less than pro-rata. The cancellation will be effective even if we have not made or offered a refund. f. If notice is mailed, proof of mailing will be sufficient proof of notice. 12. Premiums. The first Named Insured shown in the Declarations: a. Is responsible for the payment of all premiums; and b. Will be the payee for any return premiums we pay. 13. Assignment. The insured shall not assign, transfer or otherwise confer upon another person or entity, whether voluntarily or by operation of law, any right, obligation or interest in the policy without our express written consent. 14. Choice of Law. This policy and all additions to, endorsements to, or modifications of the policy shall be interpreted under the laws of the State of Georgia. 15. Consent to Jurisdiction. By accepting this policy or by presenting a claim which an insured contends is or may be covered under this policy, the Named Insured and any other insured submits themselves to the jurisdiction of the Superior Court of Cobb County, Georgia and agrees that such court shall have jurisdiction and venue for purposes determining all rights and obligations under this agreement. Any insured expressly consents to the jurisdiction and venue of the Superior Court of Cobb County, Georgia for any suit brought to interpret or enforce the provisions of this agreement. By contending that there is or may be coverage under this policy, each insured agrees to accept service of process by any legally recognized method available under Georgia law. 16. Allocation and Reimbursement. a. The cost and expense of any investigation, defense, settlement, judgment or other expense associated with every suit shall be allocated as follows: (1) If suit is divided into separate counts, allocation to an insured shall be based upon the following fraction: Number of counts of suit that are covered Number of counts of suit that may not be covered The Reservation of Rights or Nonwaiver Agreement issued by us shall determine the counts that are or may not be covered. (2) If the suit is not divided into separate counts, any insured shall pay one half. b. Any insured who does not pay all sums in paragraph a. within thirty (30) days of mailing to the last known address of that insured shall have withdrawn any demand that we undertake any obligation under this policy and shall have waived any and all rights under this policy. c. Every insured shall reimburse us with regard to any cost or expense of investigation, defense, settlement, judgment, or any other expense incurred by us with regard to those portions of any claim or suit that are or may not be covered. cpl_pol.doc Copyright 1999 American Safety Indemnity Company Page 10 of 11