Lloyd's v. Nickelback Complaint PDF
Lloyd's v. Nickelback Complaint PDF
Lloyd's v. Nickelback Complaint PDF
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FILED
P.K.SCHRIEFFERLLP
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OtC 102015
r, Executive Officer/Cleri:
SherriR.Cj
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By_
'Judl Lara
BC 6 0I 7 1
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CERTAIN UNDERWRITERS AT
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Case No.:
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HONORABLE
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DEPT.:
Plaintiffs,
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vs.
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COMPLAINT FOR:
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NICKELBACK; NICKELBACK
PRODUCTIONS, INC; CHAD
Defendants.
TO INDEMNIFY
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allege as follows:
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INTRODUCTION
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Underwriters issued the Policy to Nickelback as the Assured for coverage in connection
with Nickelback's series of concerts known as the "No Fixed Address" Tour which was to
consist of performances in North America, Australia, Asia, and Europe between February and
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late-November 2015. Nickelback is a Canadian rock band from Hanna, Alberta. The Insured
Persons under the Policy are the members ofthe band Nickelback, specifically: Chad Kroeger
(lead vocalist and guitarist), Ryan Peake (guitarist and back-up vocalist), Mike Kroeger (bassist)
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("Underwriters") seek rescission ofthe policy or alternatively ajudicial determination that there
is no coverage for any claims made under Contingency Non-Appearance and Cancellation
Policy No. Bl 1672025a (the "Policy") due to material misrepresentations and non-disclosures
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2.
Between late-June and 2015 early July 2015, Underwriters were informed that
the lead singer of Nickelback, Chad Kroeger, was diagnosed with acondition for which surgery
was needed and which would prevent Nickelback from performing any of the remaining
scheduled tour dates, which included the entire 3rd Leg ofthe tour (35 performances in North
America) and the 4th Leg (30 European performances). As aresult, those dates were cancelled.
3.
The Assured, Nickelback, made a claim for coverage under the policy and
Underwriters have sought to obtain documents and other information necessary to determine
Nickelback's entitlement to coverage under the policy. The parties have an actual and present
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controversy regarding what coverage, if any, is afforded under the policy and/or whether the
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policy should be rescinded for non-disclosures and/or misrepresentations as more fully set forth
below. Nickelback has failed and refused to provide Underwriters with necessary information,
including but not limited to, information and documents regarding Chad Kroeger's medical
history, which Underwriters are informed and believe are directly relevant to and necessary for
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THE PARTIES
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5.
Underwriters are informed and believe and thereon allege that defendant
Nickelback is a legal entity ofunknown form, existing in the State ofCalifornia, and identified
in the insurance Policy at issue in this proceeding as Nickelback, c/o GSO Business
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Management, LLC, 15260 Ventura Blvd., Suite 2100, Sherman Oaks, CA 91403.
6.
Underwriters are informed and believe and thereon allege that defendant
Nickelback Productions, Inc. isa corporation duly organized under the laws ofCanada.
7.
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otherwise, of defendants DOE 1 through DOE 75, inclusive, are unknown to Underwriters who
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therefore sue such defendants by such fictitious names, and Underwriters will amend their
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complaint to show the true names and capacities when the same have been ascertained.
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Underwriters are informed and believe and thereon allege that DOE 1 through DOE 75,
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inclusive, are responsible in some manner for the events and happenings referred to herein.
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8.
Underwriters are informed and believe and thereon allege that the complaint is
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filed in the judicial district which is the principal place where Nickelback, c/o GSO Business
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4.
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A.
The Policy
9.
In or about late-November/early-December 2014, Nickelback, by and through its
agent and insurance broker, Doodson Broking Group, began seeking insurance coverage from
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Underwriters for Nickelback's "No Fixed Address Tour," which was scheduled to commence in
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10.
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Assured Nickelback c/o GSO Business Management, LLC, and Insured Persons: Chad Kroeger,
Ryan Peake, Mike Kroeger and Daniel Adair, effective January29,2015 to November 25,2015,'
11. Over the ensuing months, the Policy was amended seven times via Contract
Endorsement. Endorsement No. 7, effective June 15, 2015, reflected arevised total limit of
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indemnity of $22,780,953.75. The revised limit of indemnity for Leg 3of the Tour (North
America) was $8,923,578.75. The revised limit of indemnity for Leg 4of the Tour (Europe)
was $4,182,375. Thus as of the date of the cancellations, the total limit of indemnity for the
remaining dates was $13,105,953.75.
12.
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2015
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13. Underwriters are informed and believe and thereon allege that the first two Legs
of the Tour were completed. It was just before the commencement of Leg 3that Underwriters
were informed of Chad Kroeger's illness, which has been widely reported on in the press and
social media. Thereafter, Underwriters were informed that Kroeger would need surgery for a
vocal cord cyst and that the remaining dates (Legs 3and 4) would be cancelled.
14.
The Policy sets forth the Insured's Duty to disclose material information as
follows:
S?,SStr
disdose
a11 such
^rmation
result in the policy a?pHed,FailUre-t?
being rendered void and
as aresult
claims
may notcould
be
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KoS"""*** ght**"*qUtatinhasbeentanuistak>
COMPLAINT FOR DECLARATORY RELIEF
once.
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might be material orif you any concerns that Arthur Doodson (Brokers)
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15.
The Policy provides indemnity to Nickelback for its Ascertained Net Loss and
Additional Costs as set out in Clauses 1.1,1.2 and 3.1 ofthe Policy.
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16.
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1.
INSURING CLAUSE
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1.1
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Provided that:
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(1.1.1)
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(1.1.2)
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and
(1.1.3)
(ii)
(iii)
(1.1.4)
Additional Costs:
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1.2
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2.2
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This insurance also indemnifies the Assured for proven additional costs
orcharges reasonably and necessarily paid by the Assured to avoid or
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The Policy also includes, in relevant part, the following terms, conditions and
exclusions:
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Truth of Statements:
4.1
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CONDITIONS PRECEDENT
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Insurance.
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(4.5)
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Obligation to Rearrange:
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(4.6)
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Materiality of Information:
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5.
WARRANTIES
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(6.2) The Assured shall at all times do and concur in doing all things
necessary to avoid or diminish a loss under this Insurance.
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(6.4) The Assured shall observe and fulfill the terms and conditions
contained herein or endorsed hereon.
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Maintenance of Records:
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EXCLUSIONS
This Insurance does not cover any loss directly or indirectly arising out
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Personal Incapacity:
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Insurance,
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Duty of Care:
(7.5) the illegal possession or illicit taking ofdrugs and their effects.
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(7.13.3)
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Performance(s) or Event(s).
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Fraud:
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8.
CLAIMS PROCEDURE
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the Underwriters;
(ii)
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(iii)
8.2
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8.3
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19. After Chad Kroeger's reported illness and Nickelback's ensuing decision to
cancel the remaining performances for the 3rd and 4th legs ofthe tour, Nickelback made a claim
for benefits under the Policy. As has been widely reported in the media and by Nickelback on
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its social media accounts and in the press, Mr. Kroeger underwent surgery to remove a cyst
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20. Underwriters are informed and believe and thereon allege that Mr. Kroeger had a
pre-existing condition on his vocal cord ("the condition"), pre-dating inception ofthe policy,
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which was never disclosed to Underwriters prior to the inception ofthe Policy. The condition
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constitutes material information as defined in the Policy which should have been disclosed and
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which was material to Underwriters' decision whether to issue the Policy, set premium for the
Policy, and/or setting the terms, conditions and exclusions ofthe Policy.
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21. Underwriters are informed and believe, and thereon allege, that their ability to
investigate and evaluate the claim remains impaired because all requested information has not,
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continued to reserve all of their rights under the Policy's terms and conditions and California
law, specifically including their right to rescind the Policy.
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24. Underwriters allege that the Policy benefit is not due and/or owing to defendants
and that the Policy is properly subject to rescission. Underwriters allege that the Policy is void
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Underwriters are informed and believe and thereon allege that defendants failed
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defendants knew about Mr. Kroeger's medical history, including but not limited to the pre
existing condition which was material to Underwriters' decision whether to issue the Policy, set
premium for the Policy, and/or set the terms, conditions and exclusions of the Policy.
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Underwriters are informed and believe that Mr. Kroeger had been previously treated for the
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condition dating back as far as the Spring of2012, and that the condition was diagnosed as of
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26. Underwriters are further informed and believe and thereon allege that defendants
knew or should have known, based upon a diligent inquiry as required by the Policy, that the
condition had been diagnosed and treated since the Spring of2012.
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Underwriters are informed and believe and thereon allege that defendants
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contend that they are entitled to coverage under the Policy in the amount of $13,105,953.75.
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Underwriters further allege on information and belief that defendants do not agree that the
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Policy is properly subject to rescission nor do they agree that the Policy is void ab initio based
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29. By reason of the foregoing, there exists now an actual, justiciable controversy
between the parties and with respect to their rights and obligations under the policy. This Court
is vested with the power to declare and adjudicate the rights and legal obligations of the parties
to this action with reference to the issues raised by this Complaint. Underwriters desire a
judicial determination ofthe rights and obligations ofeach ofthe parties to this action under the
Policy. Ajudicial determination is necessary and appropriate at this time in order that each of
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the parties may ascertain their respective rights and duties as to each other and may conduct
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30. Underwriters request that this Court make and enter its biding judicial
declarations in accordance with their contentions above. The requested declarations are both
necessary and proper at this time under the circumstances in that the interests of judicial
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therefore request that the Policy be declared null and void ab initio, and that the Policy be
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32.
In the alternative, an actual controversy has arisen and now exists between
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Underwriters and defendants. Underwriters contend that they have no duty to indemnify
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Precedent, General Conditions, and Exclusions in the Policy and because defendants are in
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breach of the Policy conditions regarding providing necessary information, assistance, and
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documentation.
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33. Underwriters contend that they have no duty to indemnify defendants based upon
the Policy's Insurance Clause because such peril, as described in the Policy, was not beyond the
INSURING CLAUSE
1.1
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Provided that:
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(1.1.1)
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(1.1.2)
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(1.1.3)
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(1.1.4)
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(i)
(ii)
(iii)
34. Underwriters allege on information and belief that the "peril" was not beyond the
control ofthe Insured, in this case, Chad Kroeger. Underwriters are informed and believe, and
on that basis allege, that Nickelback has contended or will contend to the contrary.
Underwriters request that this Court make and enter its binding judicial declarations in
accordance with their contentions above. The requested declarations are both necessary and
proper at this time under the circumstances in that the interests of judicial economy and
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Underwriters contend that they do not have aduty to indemnify defendants based
upon the Policy's applicable Conditions Precedent, including but not limited to "Pre-existing
Medical Conditions" and "Other Pre-existing Conditions." The Policy states as Conditions
Precedent as follows:
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4.
CONDITIONS PRECEDENT
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Truth of Statements:
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4.1
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Insurance.
Materiality of Information:
Obligation to Rearrange:
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to indemnify defendant because Underwriters are informed and believe and thereon allege that
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Mr. Kroeger had a pre-existing condition on his vocal cord ("the condition"), pre-dating
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inception of the policy, which was never disclosed to Underwriters prior to the inception of the
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Policy. The condition constitutes material information as defined in the Policy which should
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have been disclosed and which was material to Underwriters' decision whether to issue the
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Policy, set premium for the Policy, and/or setting the terms, conditions and exclusions of the
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Policy.
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37.
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Underwriters are informed and believe and thereon allege that they have no duty
Underwriters allege further based upon information and belief that they have no
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duty to indemnify defendant tothe extent that defendant has failed to comply with its obligation
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under the Policy to rearrange cancelled or abandoned dates in order to diminish the loss under
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the Policy.
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38.
Underwriters request that this Court make and enter its binding judicial
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declarations in accordance with their contentions above. The requested declarations are both
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necessary and proper at this time under the circumstances in that the interests of judicial
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0;
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Underwriters are informed and believe and thereon allege that there is no
obligation to indemnify defendant for any purported "loss" with respect to the fourth Leg of the
Tour. Even ifcoverage were found to exist under the Policy, Defendants have failed to provide
evidence ofproperly executed contractual obligations with respect to any ofthe venues at which
defendants were scheduled to perform in Europe during the fourth leg of the Tour. The only
documents provided by defendants are unsigned contracts, dated after defendants reported the
claim to Underwriters, which are unenforceable and impose no contractual obligations on
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defendants. Absent enforceable contracts for those performances, Underwriters have no duty to
indemnify Nickelback for those performances pursuant to Clause 5ofthe Policy:
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5.
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WARRANTIES
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(5.3)
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declarations in accordance with their contentions above. The requested declarations are both
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necessary and proper at this time under the circumstances in that the interests of judicial
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Underwriters request that this Court make and enter its biding judicial
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Underwriters are further informed and believe and thereon allege that they have
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no duty to indemnify defendants based upon the Policy's General Conditions, including, but not
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limited to, False or Fraudulent Acts, Due Diligence Clause, Compliance with Terms and
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Maintenance of Records. The Policy sets forth the following General Conditions:
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(6.1)
(6.2) The Assured shall atall times do and concur indoing all things
necessary to avoid or diminish a loss under this Insurance.
(6.4)
The Assured shall observe and fulfill the terms and conditions
contained herein or endorsed hereon.
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Maintenance of Records:
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declarations in accordance with their contentions above. The requested declarations are both
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necessary and proper at this time under the circumstances in that the interests of judicial
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Misrepresentation
44.
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Underwriters request that this Court make and enter its biding judicial
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Underwriters are informed and believe and thereon allege that there is no duty to
Underwriters further allege on information and belief that they have no duty to
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indemnify Nickelback based upon the Policy's applicable Exclusions, including, but not limited
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to, Personal Incapacity, Duty of Care, Contractual Requirements and Authorizations, and
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7.
EXCLUSIONS
This Insurance does not cover any loss directly or indirectly arising out
Personal Incapacity:
Insurance,
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Duty of Care:
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(7.5) the illegal possession or illicit taking ofdrugs and their effects.
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(7.13.3)
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_ (ft ,4)
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Performance(s) or Event(s).
Fraud:
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45. Underwriters request that this Court make and enter its biding judicial
declarations in accordance with their contentions above. The requested declarations are both
necessary and proper at this time under the circumstances in that the interests of judicial
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0
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CLAIMS PROCEDURE
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information as available;
the Underwriters;
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(i)
(ii)
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(iii)
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be required;
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and obligations under the Policy with respect to the Insurance Clause and Conditions
Underwriters.
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(2)
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under the Policy and that defendants are only entitled to refund of the premium paid for the
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(3)
(4)
(5)
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An order declaring and adjudicating that defendants are not entitled to benefits
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(1) An order declaring and adjudging that Underwriters have no duty to indemnify
defendants because the tender is expressly excluded by Conditions Additional, Conditions
Precedent, General Conditions, and/or Exclusions in the Policy, in addition to defendants'
failure to cooperate and provide necessary information and proofofloss;
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(2)
(3)
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(4)
For such other and further relief as the Court may deem just and proper.
By
PauTK. Schrieffer>
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*****
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ORIGINAL
CM-010
FOR COURT USe ONLY
,^Srt^iCalifornia
P.K.SchriefferLLP
r),secuUveOicer/CUrk
.Oepttt)'
CASE NAME:
CI] Unlimited
(Amount
(Amount
demanded
demanded is
CASE NUMBER
Limited
I 1 Counter
fZZD Joinder
JUOGE:
BC fi 0 3 7 l 8
exceeds $25,000)
1. Check one box below for the case type thatbest describes thiscase
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Real Property
I Eminent domain/Inverse
condemnation (14)
Enforcement of Judgment
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Unlawful Detainer
l Commercial (31)
2. This case II is
Drugs (38)
Judicial Review
RICO (27)
I Other complaint (not specified above) (42)
ODisnot complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the
d.
b. L_J Extensive motion practice raising difficult or novel e. Coordination with related actions pending in one or more courts
issues*at will be time-consuming to resolve
-^
6. '"Ifthere are any known related cases, fileand serve a notice of related case.,
Paul K. Schrieffer
(TYPE OR PRINT NAME)
NOTICE
Plaintiff must file this cover sheetwith thefirst paper filed in theaction orproceeding (except small claims casesorcasesfiled
xgnder the Probate Code, Family Code, orWelfare and Institutions Code). (Cal. Rules ofCourt, rule 3.220.) Failure tofile may result
In sanctions.
File this cover sheet in addition to anycover sheet required by local court rule.
Jf this caseiscomplex under rule 3.400 et seq. ofthe California
Rules ofCourt, you must serve a copy of this cover sheet on all
VUnless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only.
~^
Font Adopted forMandatory Use
Judicial Council of California
Pago 1 of i
Cal. Rules of Court, rules 2.30.3.220.3.400-3.403,3.740:
Cal. Standards of JudicialAdministration,std, 3.10
www.courtinfo.ca.sov