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7/21/2019 Lloyd's v. Nickelback complaint.pdf
http://slidepdf.com/reader/full/lloyds-v-nickelback-complaintpdf 1/26
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ORIGINAL
FILED
Superior Court
of
California
County of
Los Angeles
OtC
102015
r, Executive
Officer/Cleri:
__,
Deputy
P.K.SCHRIEFFERLLP
Paul
K.
Schrieffer,
Esq.
(CSB 151358)
Wayne
H. Hammack, Esq. (CSB 202709)
100 N.
Barranca Avenue, Suite
1100
West Covina,
California
91791 w^ntd
Telephone: (626) 373-2444
fXWJ* *Facsimile:
(626)974-8403
^jl^jOjP
SherriR.Cj
B y_
'Judl Lara
Attorneys for
Plaintiffs
CERTAIN UNDERWRITERS AT
LLOYD'S OF
LONDON
rULlCY
NO.
Bl1672025a
£>< }?J~*
C
2L_
SUPERIOR COURT OFTHE STATE OFCALIFORNIA
COUNTY OF
LOS ANGELES,
CENTRAL DISTRICT
BC 6 0 I 7 1 §
CERTAIN UNDERWRITERS AT
LLOYD'S OF LONDONSUBSCRIBING
TO CONTINGENCYNON
APPEARANCEANDCANCELLATION
POLICY
NO. Bl
1672025a,
Plaintiffs,
vs
NICKELBACK; NICKELBACK
PRODUCTIONS, INC;CHAD
KROEGER; and DOES 1-75,
inclusive,
Defendants.
Case
No.:
ASSIGNEDFORALLPURPOSESTO: THE
HONORABLE
DEPT.:
COMPLAINT
FOR:
1. DECLARATORY RELIEF -
RESCISSION
2. DECLARATORY RELIEF-NO
DUTY
TO
INDEMNIFY
Plaintiffs CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON SUBSCRIBING
TO CONTINGENCY NON-APPEARANCE
AND
CANCELLATION POLICY
NO.
Bl
1672025a ( Underwriters ), on
information
and belief
and
in
support of thgir^mplaint,
allege as follows:
INTRODUCTION
I. Ihis is an insurance dispute between sophisticated parties^o a*contjftg§n,Sy non<>
appearance and cancellation
policy.
Plaintiffs Certain Underwriters at Lloyd s?
of londorl
•j 5 £
Subscribing to Contingency
Non-Appearance and
Cancellation Policy No. Bl
1672025a
o o
CO •>.
1
COMPLAINT FORDECLARATORYRELIEF
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7/21/2019 Lloyd's v. Nickelback complaint.pdf
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VI
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( Underwriters )
seek
rescission
of
the policy
or
alternatively
a
judicial 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
regarding
Chad
Kroeger's
pre-existing
vocal cord
condition.
Underwriters issued the Policy
to
Nickelback
as
the Assured for coverage in connection
with
Nickelback's
series
ofconcerts known as
the
No Fixed
Address
Tour which was
to
consist
of performances
in North America,
Australia,
Asia,
and
Europe
between
February
and
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)
and Daniel
Adair (drummer
and
percussionist), hereafter
collectively Nickelback.
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
of the
tour (35
performances in North
America) and
the
4th Leg
(30
European performances).
As a
result,
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
controversy regarding
what coverage,
if
any,
is afforded
under
the policy
and/or whether the
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
the determinationofwhetherNickelback's claim is covered.
// /
// /
// /
COMPLAINT FOR DECLARATORY RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
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THE
PARTIES
4. Plaintiffs are Certain Underwriters at Lloyd s of London Subscribing to
Contingency Non-Appearance and Cancellation Policy
No.
Bl
1672025a
( Underwriters ).
Underwriters
are
authorized
to and do issue insurance to
California
residents
through licensed
surplus line brokers in
accordance with the laws
of
the
State ofCalifornia.
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
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 of
Canada.
7. The true
names
and
capacities,
whether
individual, corporate, associate, or
otherwise,
of
defendants
DOE 1 through DOE 75,
inclusive,
are unknown toUnderwriters
who
therefore
sue such
defendants by
such fictitious names, and
Underwriters
will amend
their
complaint to
show
the true
names
and capacities when the
same have
been
ascertained.
Underwriters are informed and believe
and
thereon allege
that DOE
1 through
DOE 75,
inclusive, are
responsible
in some manner for the events and happenings referred to herein.
8. Underwriters
are
informed
and
believe
and
thereon allege that
the
complaint
is
filed in the judicial district
which
is the principal place where Nickelback, c/o
GSO
Business
Management, LLC does business.
FACTUAL
BACKGROUND AND
GENERAL ALLEGATIONS
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
Underwriters forNickelback's NoFixed Address Tour,
which
was scheduled to commence in
North America
onorabout
February
14,
2015.
10. Thereafter,
and in
exchange
for
valuable
consideration,
Underwriters
issued
Contingency Non-Appearance and Cancellation Policy
No.
Bl1672025a
(the
Policy ) to
3
COMPLAINT FOR DECLARATORY RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
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©
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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
January
29,2015 to November 25,2015,
with a$26,722,200 limitofindemnity.
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
indemnity
of
22,780,953.75. The
revised limit of indemnity for Leg
3
of the
Tour (North
America) was 8,923,578.75. The revised limit of indemnity for Leg
4
of 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. The
Policy
provides coverage for
Insured Performance^) or Event(s) with
respect
to Nickelback
for the following
dates:
LCg l
~2015iOrth
American Performances between February 14 and April 7,
\*11 « 6U2alian Perforniances between May
15
and June
3,2015;
2015
Amencan Performances
between
June 19
and
September 4,
LC§
*~20°ifUr°Pean Performances between September 30 and November
24,
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:
Material
information
is
information that would influence
an
Insurer
in
deciding whether arisk is acceptable and, if
so
the
premium, terms
S?,SSt£°™r°
£a?pHed,FailUre-t?
disdose such ^°rmation could
result in the policy being rendered
void
and as aresult claims may not be
AH material information must be disclosed
to
insurers to enable
terms to be negotiated
and
cover arranged. This is
not
limited to
answering
specific questions that may
be
asked. Any
changes
which
KoS *** ght** *qU°tati°nhasbeen«tan«uistak>
COMPLAINT FOR DECLARATORY
RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
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The duty
of
disclosure is re-imposed
when
there are changes
or
variations in
cover and when the policy
is renewed or
extended
In addition, changes which substantially increase the
risk,
or relate to
compliance
with
awarranty
or condition in the policy must be
notified
at
on c e
Please
contact
us
if
you
are
in any doubt as to whether
or
not information
might be material
orif
you any concerns that ArthurDoodson (Brokers)
Limited might notbe aware ofallmaterial information.
The
Policy also states as a condition precedent that:
It is acondition precedent to
the
liability of Insurers that all Insured persons
have
been fit and healthy
for a
period
ofthirty (30)
days prior to
Inception.
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
of
the Policy.
16. The
Policy provides inpertinent
part
as follows:
1. INSURING CLAUSE
1.1
Subject
always tothe terms,
conditions, limitations
and exclusions
contained
herein
orendorsed
hereon this
Insurance is to
indemnify
the
Assured [Nickelback]
for their
Ascertained
Net
Loss
should any
Insured
Performance(s)
or Event(s)
specified in the
Schedule
be
necessarily
Cancelled,
Abandoned,
Postponed,
Interrupted orRelocated.
Provided that:
(1.1.1)
(1.1.2)
thenecessary Cancellation, Abandonment,
Postponement, Interruption or Relocation is the
sole
and direct result
ofone ormore of
the
perils
described in 2.1 to 2.6 below and
such peril is stated in the Schedule to be Insured
and
(1.1.3) such peril is beyond the control of:
(i) theAssured
[Nickelback]
and
(ii) each and every InsuredPersonand
(iii) in respect ofperil2.6belowtheAssured andthe
Insured Person(s).
7/21/2019 Lloyd's v. Nickelback complaint.pdf
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17 .
18 .
exclusions:
(1.1.4)
the
circumstances giving rise
to the loss
first
occurs
duringthe Period
of
Insurance statedin the
Schedule.
Additional Costs:
1.2
This insurance also
indemnifies
the Assured for
proven additional
costs
or
charges reasonably
and necessarily paid
by
the Assured to avoid or
diminish a loss herein insured.
The Policy's Perils includeat clause2:
Accident
Illness:
2.2 ACCIDENT
to
or ILLNESS ofany Insured
Person
which, in the opinion
of
an
independent
medical
practitioner
approved
by
the Underwriters,
entirely prevents any Insured
Person
from
appearing or continuing to
appear
in any or
all
of
the Insured
Performance^)
or
Event(s).
The
Policy also includes, in relevant
part,
the following
terms,
conditions and
4.
CONDITIONS PRECEDENT
Itisa
condition
precedent to
the
liability ofthe
Underwriters that the Assured
has:
Truth o f Statements:
4.1 truthfully declared all material facts
likely
to influence a
reasonable
Underwriter in determining:
(4.1.1) whether
or
not to
accept
the risk
orany subsequent
amendment,
(4.1.2) the premium,
(4.1.3) the
conditions,
exclusions and
limitations,
having
diligently
made
allnecessary
inquiries
toestablish those facts.
Pre-existing
Medical Conditions:
(4.2.1) established to their best knowledge and belief
after
making
diligent inquiry that
no
insured Person
has
any physical, mental
or
medical
condition
oris undergoing any treatment, medical or
otherwise, other than those advised to the Underwriters and
agreedby them inwriting,and that each Insured Personis fit to
fulfil the commitments insured herein.
COMPLAINT
FOR
DECLARATORY
RELIEF
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(4.2.2)
accepted that
any
such pre-existing
condition
in
(4.2.1) agreed by
the Underwriters
will
only
be
covered hereunder if the Insured
Person continues to follow any prescribed regime medical or
otherwise essential to the Insured Person's well-being during
the
period
of
this Insurance.
Other Pre-existing Conditions:
(4.3.1) no
knowledge at
inception, of
any undisclosed matter,
fact
or
circumstance,
actual
or threatened, that increases orcould
increase
the possibilityof a loss under this Insurance.
(4.3.2)
confirmed
that no
Insured Person
has knowledge at
inception,
of
any
undisclosed matter, fact orcircumstance, actual orthreatened,
that
increases orcould increase the possibility ofa loss
under
this
Insurance.
* * *
Materiality of Information:
(4.5)
declared that all information contained inthe written Proposal
Form
or
supplied
to support
such proposal
orother
application
for
this
Insurance
is in all respects true
and
complete
and
unchanged
at
the inception
ofthis
Insurance. Further the Assured agrees that
all such informationis material, such items form the basis of this
Insurance andare incorporated herein.
Obligation to Rearrange:
5.
(4.6)
an obligation to rearrange Cancelled or Abandoned Insured
Performance(s) or Event(s) to
another
timeinorderto avoid or
diminish a loss herein Insured.
* * *
WARRANTIES
It is
warranted that the Assured
shall:
* * *
Contractual requirements and authorizations:
(5.3) ensure that all necessary contractual arrangements
have been
madeandconfirmed inwriting with the
Assured
andthatall
necessary authorizations (which for the avoidance
of
doubt shall
include,
but
not belimited
to,
the obtaining of licenses, permits,
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visas, copyright and patents) are obtained
in a
timely manner and
valid
for
the
period of
the
Insured Performance^) or Event(s).
GENERAL CONDITIONS
False or Fraudulent Acts:
(6.1) Any fraud,
misstatement or concealment
in the
information
provided or in the
making
ofaclaim or
otherwise
howsoever,
shall render
all
claims
hereunder
forfeit.
Due DiligenceClause:
(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.
* * *
Compliance with Terms:
(6.4)
The
Assured shall
observe
and fulfill
the
terms and
conditions
contained herein or endorsed hereon.
* * *
Maintenance
of
Records:
(6.9) The Assured shall
maintain
adequate
records
in
connection
with
the subjectmatter issuedhereunder.
* * *
EXCLUSIONS
This
Insurance does
not cover any loss
directly or indirectly arising out
of,
contributed to by, or resulting
from:
Personal Incapacity:
* * *
(7.3.3)
insufficient
voice quality, unless directly due
to illness
or disease
contracted
or
bodily injury occurring during
the
Period
of
Insurance,
* * *
(7.3.6) their
unreasonable
or
capricious
behavior,
* * *
COMPLAINT FOR DECLARATORY RELIEF
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Duty ofCare:
(7.4) the
Assured's or
any
Insured Person's lack of care, diligence
or
prudent behavior, the result ofwhich would increase the risk,
and/or likelihood
of a loss, hereunder.
(7.5)
the
illegal possession
or
illicit taking ofdrugs and their effects.
* * *
Contractual Requirements and Authorizations:
(7.13.3) ensure that all necessary contractual arrangements were
made and
confirmed
in
writing
withtheAssured andthat
allnecessary authorizations,
(which
for the avoidance of
doubt shall include, but not
be limited to,
the obtaining of
licenses,
permits,
visas,
copyright and patents) be obtained
ina
timely manner
and
valid
for
the
period
of
the Insured
Performance(s) orEvent(s).
Fraud:
(7.14)
any fraud, misrepresentation
orconcealment by the Assured or
any Insured Person.
* * *
8. CLAIMS
PROCEDURE
It isa condition
precedent
to
the
liability of
the
Underwriters
that
in the event of
a
happening
or
circumstance
which
could give rise
toa
claim
under this
Insurance, the Assured shall:
(8.1.1)
as
amatter ofurgency
give notice by the
most expeditious
means
ofthe happening of
any
circumstance, to
the
name(s) designated
in theattached Schedule;
(8.1.2) confirm the facts inwriting assoon aspossible, with asmuch
informationas available;
(8.1.3)
make no
admission
of liability without the prior written
consent
of
the Underwriters;
(8.1.4)
take all steps
tominimize oravoid
any loss
hereunder;
(8.1.5) provide
the
Underwriters ortheir appointed representatives
with:
(i) all
necessary
assistance ina
timely manner,
(ii) all information required,
COMPLAINT FOR DECLARATORY RELIEF
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(iii) all documentation and records necessary to
establish and
assess indemnity hereunder and copies ofextracts as may
be required;
(8.1.6) prove the
loss
to
the
satisfaction
of
the
Underwriters;
(8.1.7) forward immediately to the Underwriters or their representatives
any letter, writ or other document received in connection with any
claim made under this insurance.
8.2
asoften asmay bereasonably required submit
to
examination
under
oath
on all matters connected with a claim, by any person
named
by
the Underwriters at
such
reasonable
time
and
place
as
may
bedesignated
by
the Underwriters or
their
representatives.
8.3
as
soon
as
ispracticable render a signed
and
sworn
proof
ofloss to
theUnderwriters or theirrepresentative to substantiate the
occurrence,
nature, cause
and
amount of
loss
claimed under
this
Insurance.
B. The Insurance Claim
19. After
Chad
Kroeger's reported illness and
Nickelback's
ensuing decision to
cancel the remaining performances for
the
3rd and
4th
legs of the tour, Nickelback made a claim
for
benefits
under the Policy.
As
has
been widely reported
in
the media and by
Nickelback
on
its social media accounts and in the press, Mr. Kroeger underwent surgery to remove a cyst
fromhis vocal cord in July
2015.
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
of
the
policy,
which
was
never
disclosed
to
Underwriters
prior to the inception of the Policy. The condition
constitutes material information as defined in
the
Policy which should
have
been disclosed and
which was
material to Underwriters' decision whether to issue
the
Policy, set premium
for
the
Policy,
and/or setting the terms,
conditions and
exclusions
of
the Policy.
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,
to date, been providedbyNickelback.
/ //
/ //
10
COMPLAINT FOR
DECLARATORY
RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
http://slidepdf.com/reader/full/lloyds-v-nickelback-complaintpdf 11/26
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U7
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9
10
11
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13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
22.
While Underwriters have continued
to
conduct
their
investigation,
they
have
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.
FIRST
CAUSE
OF
ACTION
(Declaratory
Relief-
Rescission
AgainstAll Defendants)
23.
Underwriters incorporate paragraphs 1 through 22 as if
set
forth
in full in
their
First
Cause
of
Action
for Declaratory Relief -Rescission.
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
ab
initio
based
on
material
non-disclosures and/or
misrepresentations
and/or concealments by,
and/or on
behalf
of
defendants during the underwriting
of
the Policy.
25.
Underwriters are informed
and
believe
and thereon
allege
that
defendants
failed
to communicate to Underwriters and ought to have communicated to Underwriters that
which
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.
Underwriters
are informed
and
believe that Mr. Kroeger had been previously treated for
the
condition
dating back
as
far as the
Spring
of
2012, and that the
condition
was diagnosed
as
of
the Spring
of
2012.
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
of
2012.
27. Underwriters
are informed and
believe
and
thereon allege that
defendants
contend
that
they are entitled to coverage under
the
Policy in
the
amount of $13,105,953.75.
Underwriters further allege
on
information and belief
that
defendants do not agree
that the
Policy is properly
subject
to rescission nor do they agree that the
Policy
is void ab
initio
based
upon material misrepresentations and/or concealment.
// /
u
COMPLAINT FOR DECLARATORY RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
http://slidepdf.com/reader/full/lloyds-v-nickelback-complaintpdf 12/26
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9
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8
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11
12
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16
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19
20
21
22
23
24
25
26
27
28
28. Underwriters accordingly have no adequate
remedy at
law.
Underwriters
therefore request that
the
Policy
be
declared
null
and void ab initio, and that
the
Policy
be
rescinded andUnderwriters hereby tender repayment
of
all premiums
received.
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
of
the rights
and obligations ofeach of
the
parties to this action under
the
Policy.
A
judicial determination
is
necessary and
appropriate at this
time in
order
that each
of
the
parties
may ascertain their respective rights and duties as to each other and may conduct
themselves accordingly nowandinthe
future.
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
economy andsubstantial justice will be served thereby.
SECOND
CAUSE
OF
ACTION
For
Declaratory Relief-
No Duty
to Indemnify
Against
All Defendants)
31. Underwriters incorporate
paragraphs 1
through 29 as
if
set
forth
in
full in their
Second Cause ofAction for Declaratory
Relief- No
Duty
to
Indemnify.
32. In the
alternative,
an actual controversy has
arisen
and
now
exists between
Underwriters and defendants. Underwriters contend that they have
no
duty
to
indemnify
defendants because
the tender is
expressly excluded
by
Conditions Additional,
Conditions
Precedent, General Conditions, and Exclusions in
the
Policy and
because
defendants are in
breach
of
the Policy conditions regarding
providing necessary information,
assistance, and
documentation.
// /
// /
// /
12
COMPLAINT FOR
DECLARATORY
RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
http://slidepdf.com/reader/full/lloyds-v-nickelback-complaintpdf 13/26
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1
2
3
4
5
6
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8
9
10
11
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15
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23
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28
Peril Not
Beyond
the
Control of
the Insured
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
control
of
defendants. The Insurance Clause states:
1.
INSURING
CLAUSE
1.1
Subject
always to the terms, conditions,
limitations
andexclusions
contained herein
or
endorsed hereon
this
Insurance
is to
indemnify
the
Assured [Nickelback]
for theirAscertained Net
Loss should
anyInsured Performance^) orEvent(s) specified inthe
Schedule
be necessarily Cancelled,
Abandoned,
Postponed, Interrupted or
Relocated.
Provided that:
(1.1.1)
the
necessary
Cancellation, Abandonment,
Postponement, Interruptionor Relocation is the
soleand
direct result
ofoneormore ofthe
perils
described
in 2.1 to
2.6 below and
(1.1.2) such peril is stated in the Schedule to be Insured
and
(1.1.3) such peril is beyondthe control of:
(i) theAssured [Nickelback] and
(ii) each and every Insured Person and
(iii) in respect of peril 2.6 belowtheAssured andthe
Insured Person(s).
(1.1.4)
thecircumstances
giving
riseto the loss first
occurs
during the Period
of
Insurance stated in the
Schedule.
34. Underwriters allege on information and belief that
the
peril was
not beyond
the
control
of the
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
13
COMPLAINT FOR DECLARATORY RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
http://slidepdf.com/reader/full/lloyds-v-nickelback-complaintpdf 14/26
©
fcSw
©
vi u a
a;©?
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2
3
4
5
6
7
8
9
10
11
12
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15
16
17
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20
21
22
23
H-
24
K
-. .
25
H -
26
0
27
k
28
H -
y i
substantial
justice
will be served thereby.
Pre-existing
Medical
andOther Conditions
35. Underwriters contend that they do
not have
a
duty 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:
4.
CONDITIONS PRECEDENT
Itisa
condition precedent to the liability
ofthe
Underwriters
that
the
Assured has:
Truth
of
Statements:
4.1
truthfully declared
all
material
facts
likely
to
influence
a
reasonable Underwriter indetermining:
(4.1.1) whether or not to
accept
the
risk or
any
subsequent amendment,
(4.1.2) thepremium,
(4.1.3)
the
conditions, exclusions and
limitations,
having
diligently
made
all
necessary
inquiries to establish
those
facts.
Pre-existing Medical Conditions:
(4.2.1)
established
to their best knowledge
and belief
after making
diligent inquiry that no insured Person has any physical, mental or
medical
condition
or
is
undergoing any treatment, medical
or
otherwise, other than those advised to
the
Underwriters
and
agreed
by them inwriting, and
that each Insured Person
is fit to
fulfil the commitments insuredherein.
(4.2.2) accepted
that
any such
pre-existing condition
in
(4.2.1) agreed by
the
Underwriters will only be covered hereunder
if
the
Insured
Person
continues
to follow
any prescribed
regime
medical or
otherwise essential to
the
Insured
Person's
well-being during the
period of this Insurance.
Other Pre-existing Conditions:
(4.3.1)
no
knowledge at inception, ofany undisclosed matter, fact or
circumstance,
actual or
threatened,
that increases orcould increase
thepossibilityof a loss under this Insurance.
14
COMPLAINT FORDECLARATORY RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
http://slidepdf.com/reader/full/lloyds-v-nickelback-complaintpdf 15/26
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2
3
4
5
6
7
8
9
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15
16
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23
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25
26
27
28
(4.3.2) confirmed that no Insured Person has knowledge at inception, of
any
undisclosed matter,
fact
or
circumstance, actual
or
threatened,
that
increases
orcould increase
the
possibility ofa
loss
under this
Insurance.
* * *
Materiality
of
Information:
(4.5) declared that
all information contained
in the written
Proposal
Form orsupplied
to support such proposal
orother
application for
this
Insurance
is in
all respects true
and
complete
and unchanged
at the inception of this Insurance. Further the
Assured
agrees that
all such information is material, such items form the basis of this
Insurance andare incorporated herein.
Obligation to Rearrange:
(4.6) an obligation to rearrangeCancelled or Abandoned Insured
Performance(s) or Event(s) to another time in order to avoid or
diminish
a
loss herein Insured.
36.
Underwriters
are
informed
and believe and thereon allege that they have no
duty
to indemnify
defendant because 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 of the policy, which was
never
disclosed to Underwriters prior to
the
inception of the
Policy. The
condition
constitutes material information as
defined in
the
Policy which
should
have been disclosed and which was material to Underwriters' decision whether to issue the
Policy,
set
premium
for the
Policy,
and/or setting the
terms,
conditions and exclusions of
the
Policy.
37. Underwriters allege further
based upon
information
and
belief that
they have
no
duty to indemnify defendant to the extent that
defendant has
failed to comply
with
its obligation
under the Policy to rearrange cancelled or abandoned dates in order to diminish the loss under
the Policy.
38. 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
economyand substantial justice willbe servedthereby.
// /
15
COMPLAINT
FOR DECLARATORY RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
http://slidepdf.com/reader/full/lloyds-v-nickelback-complaintpdf 16/26
©
I
2 > ©a
• • ft
4
t
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H-
14.
1
2
3
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5
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7
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28
No Loss - Leg 4 European
Dates)
39.
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
if
coverage 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
defendants.
Absent enforceable contracts for
those
performances, Underwriters have no duty
to
indemnify
Nickelback
for those performances pursuant
to
Clause 5ofthe Policy:
5.
WARRANTIES
It is warranted that the Assured shall:
* * *
Contractual requirements and authorizations:
(5.3) ensure thatallnecessary
contractual
arrangements have
been
madeandconfirmed inwritingwith theAssuredand that all
necessary authorizations (which for the avoidance
of
doubt shall
include, butnotbe limited to,the obtaining of licenses, permits,
visas,
copyright andpatents) areobtained in a
timely manner
and
valid fortheperiod ofthe Insured Performance(s) orEvent(s).
40. 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
economy andsubstantial justice
will
be
served
thereby.
General
onditions
41. Underwriters are further informed and
believe
and thereon
allege
that
they
have
no
duty
to
indemnify
defendants
based upon the
Policy's
General
Conditions,
including,
but not
limited to, False or Fraudulent Acts,
Due
Diligence Clause, Compliance with Terms and
Maintenance ofRecords. ThePolicy
sets
forth the
following General
Conditions:
// /
16
COMPLAINT FOR DECLARATORY RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
http://slidepdf.com/reader/full/lloyds-v-nickelback-complaintpdf 17/26
©
•« o\
2
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«8i»
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;©?
©
K
in-
l
2
3
4
5
6
7
8
9
10
11
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13
14
15
16
17 >
18
19
20
21
22
23
24
25
26
27
28
False or
Fraudulent Acts:
(6.1) Any fraud, misstatementor concealment in the information
provided
orin
the making
of a
claim
or
otherwise howsoever,
shall render all claims hereunder forfeit.
Due Diligence Clause:
(6.2) The Assured
shall atall times
do and
concur in
doing all things
necessary to avoid or diminish a loss under this Insurance.
* * *
Compliance with Terms:
(6.4) The Assured shall observe and fulfill the terms and conditions
contained
herein or
endorsed hereon.
* * *
Maintenance o f
Records:
(6.9) TheAssured shall maintainadequaterecords in connection with
the subject matter issued hereunder.
42.
Underwriters
are
informed
and
believe
and thereon allege that there isno duty to
indemnify Defendantbaseduponthe
above,
and thatDefendantcontendsotherwise.
43.
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
economy and substantialjustice will be served thereby.
Personal
Incapacity,
Duty
ofCare, Contractual Requirements
and
Authorizations,
Misrepresentation
44. Underwriters further allege on information and belief
that
they have no duty to
indemnify Nickelback based upon
the Policy's
applicable Exclusions, including,
but
not limited
to, Personal Incapacity,
Duty
of
Care, Contractual
Requirements and Authorizations,
and
Misrepresentation.
The
Policy includes the following:
/ //
// /
17
COMPLAINT
FOR
DECLARATORY
RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
http://slidepdf.com/reader/full/lloyds-v-nickelback-complaintpdf 18/26
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i
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7. EXCLUSIONS
This
Insurance
does
not
cover any loss directly or indirectly
arising out
of, contributed to
by,
or resulting
from:
Personal
Incapacity:
* * *
(7.3.3) insufficient voice quality, unless directly due to illness ordisease
contracted
orbodily injury
occurring
during the
Period
of
Insurance,
* * *
(7.3.6)
their
unreasonable orcapricious
behavior,
* * *
Duty
of
Care:
(7.4) the Assured's
or
any Insured Person's lack ofcare,
diligence or
prudent behavior, the
result of
which
would increase
the risk,
and/orlikelihood of a loss, hereunder.
(7.5) the illegal
possession or illicit
taking of
drugs
and
their effects.
Contractual Requirements and Authorizations:
(7.13.3)
Fraud:
ensure
that all necessary contractual arrangements
were
made
andconfirmed inwriting withthe
Assured
andthat
allnecessary
authorizations,
(which fortheavoidance of
doubt
shall include,
but
not be limited
to,
the
obtaining
of
licenses, permits, visas,
copyright
and patents)
be
obtained
ina
timely manner and valid for
the
period
of
the
Insured
Performance(s)
or
Event(s).
(7.14)
any fraud, misrepresentation
or
concealment by
the
Assured or
any
Insured Person.
* * *
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
economy
and substantial justice will be
served thereby.
18
COMPLAINT FOR DECLARATORY RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
http://slidepdf.com/reader/full/lloyds-v-nickelback-complaintpdf 19/26
©
. ©
J«S 2
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•Hi
v
«n
ft5
« «i ti a
©
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IV
0
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Failure to
Cooperate and
Provide Necessary Information and
Proof
ofLoss
46. Underwriters further allege on information and belief
that
they
have
no duty to
indemnify
Nickelback based
upon
condition
precedent 8
of the
Policy which states
that
Nickelback
shall comply
with
the claims
procedure
as
follows:
8.
CLAIMS PROCEDURE
Itisa
condition precedent
to the
liability
ofthe
Underwriters that
in the
event ofa
happening
orcircumstance which could give
rise
to
a claim
under this insurance, the Assured shall:
(8.1.1) as amatter ofurgency give notice
by the most
expeditious means
of the happening ofany circumstance, to the name(s) designated
in the attachedSchedule;
(8.1.2) confirm the
facts
in
writing
as
soon
as
possible, with
as
much
information as available;
(8.1.3)
make
no admission of liability without the prior written consent of
the Underwriters;
(8.1.4)
take
all steps
to
minimize
or
avoid
any
loss hereunder;
(8.1.5) provide
the
Underwriters
or their
appointed representatives
with:
(i) all necessary assistance in a timely manner,
(ii) all information required,
(iii) all
documentation
and
records
necessary to
establish
and
assess indemnity hereunder and copies
of
extracts
asmay
be required;
(8.1.6) prove the loss to the satisfaction oftheUnderwriters;
(8.1.7) forward immediately to the Underwriters or their representatives
any letter, writ
orother
document received
in
connection with any
claim made under this insurance.
8.2
8. 3
as oftenas maybe reasonably required submitto examination
under
oath
onall matters
connected with
a
claim, by
any
person
named
by
the
Underwriters
at
such reasonable
time and place as
may be
designated
by
the Underwriters
or their
representatives.
as soon asis
practicable
render a signed and
sworn
proofof loss to
theUnderwriters or their representative to substantiate the
occurrence, nature, cause and amount of loss claimed under this
Insurance.
19
COMPLAINT
FOR
DECLARATORY
RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
http://slidepdf.com/reader/full/lloyds-v-nickelback-complaintpdf 20/26
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4
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7
8
9
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21
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28
47. UNDERWRITERS
desire
a
judicial determination and declaration
of
their
rights
and obligations
under
the Policy with
respect
to the
Insurance Clause
and Conditions
Additional, Conditions
Precedent,
General Conditions,
and
Exclusions
in the Policy.
48.
A
judicial
determination
of
the
respective obligations
of
the
parties
to
this
Complaint
is
appropriate under the circumstances,
and
no other
adequate
remedy
is available to
Underwriters.
PRAYER
FOR RELIEF
THEREFORE, Underwriters pray for judgment as
follows:
FIRST CAUSE
OF
ACTION
(1)
An
order declaring
and adjudging
that
Contingency
Non-Appearance and
Cancellation
Insurance Policy
No.
Bl
1672025a
is
null and
void
ab
initio
and
is
rescinded;
(2)
An order declaring and adjudicating that defendants are not
entitled
to benefits
under the
Policy and that defendants are only entitled to refund
of
the
premium
paid
for
the
Policy andnothing further;
(3) An
order
entering
judgment
in
favor ofUnderwriters
and against
defendants;
(4) An order awarding
Underwriters
all recoverable costs
ofsuit incurred
herein; and
(5) For such
other
and further reliefas the Court may deem just and proper.
SECOND CAUSE OF ACTION
(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
proof
ofloss;
(2) An order entering judgment
in favor
ofUnderwriters and against
defendants;
(3) An order
awarding
Underwriters ail recoverable costs ofsuit incurred herein; and
/ / /
// /
// /
// /
20
COMPLAINT FOR DECLARATORY RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
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9 38
* b
i© ^ . ^
m 5
«\fl 0
His
v n
ft a
*©*
o
10
11
12
13
14
15
16
17
18
19
20
21
22
23
H-
24
M
25
H-
26
0 ;
27
N.1
28
0 ;
K
l /I
(4) For such
other and further relief as the Court may
deem just
and
proper.
Dated: December 9,2015
By
PauTK. Schrieffer>
Wayne
H.
Hammack, Esq.
Attorneys for Plaintiffs, CERTAIN
UNDERWRITERS AT LLOYD S OF
LONDON SUBSCRIBING TO
CONTINGENCYNON-APPEARANCE
AND CANCELLATION POLICY
NO.
B11672025a
21
COMPLAINT FOR DECLARATORY RELIEF
7/21/2019 Lloyd's v. Nickelback complaint.pdf
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Wayne H.Hammacki Esq. (CSB
202709)
P.K.SchriefferLLP
100
N.
Barranca
Ave^Ste.l 100,
West Covina,
CA
91791
TELEPHONE NO
626-373-2444
FAX NO
626-974-8403
attorney
FOR Name).Certain Underwriters
atLloyd sof
London,
Plaintiff
ORIGINAL
FOR COURTUSe ONLY
CM-010
SUPERIOR COURT
OF
CALIFORNIA. COUNTY
OF
LOS
AngeleS
streetaodress: 111
N. Hil l S tr ee t
MAILING
AODRESS: Same
city and zip code: Los Angeles, CA 90012
branch
name:
Central District - Stanley Mosk Courthouse
CASE
NAME:
CertainUnderwriters at Lloyd's
of
Londonv. Nickelback, et al.
,^Srt^iCalifornia
r),secuUveO«icer/CUrk
1
.Oepttt)'
CIVIL
CASE
COVER
SHEET
CI]
Unlimited
•
Limited
(Amount (Amount
demanded demanded
is
exceeds 25,000) 25,000or less)
Complex Case Designation
I 1 Counter fZZD Joinder
Filed with
first
appearance bydefendant
(Cal.
Rulesof
Court,
rule3.402)
CASE
NUMBER
JUOGE:
BC fi 0 3 7 l 8
DEPT:
Items
1-6 below mustbe completed see
instructions on
page
2).
1.
Check
one
box
below
for
thecase type thatbest describes thiscase
Auto Tort
Auto (22)
Uninsured motorist (46)
Other
PVPO/WD
(Personal Injury/Property
Damage/Wrongful Death) Tort
(ZH Asbestos (04)
[Z]
Product
liability (24)
j Medical malpractice (45)
• Other Pl/PD/WD (23)
Non-PI/PD/WO
(Other)
Tort
Business
tort/unfair
business practice
(07) L j Other real property (26)
Civilrights (08)
Defamation (13)
Fraud (16)
Intellectual property (19)
Professional negligence (25)
Other non-PI/PD/WD tort (35)
5 l o ymen t
Wrongful termination (36)
I I Other
employment
(15)
Contract
J Breach of contract/warranty (06)
• Rule
3.740 collections
(09)
I I
Other collections
09
LX-I Insurance coverage (18)
I I Other contract (37)
Real
Property
I I Eminent domain/Inverse
condemnation (14)
I I Wrongful eviction (33)
Unlawful Detainer
l
Commercial
(31)
CZ3
Residential
(32)
•
Drugs (38)
Judic ia l Review
Asset forfeiture (05)
L—J Petition re;
arbitration award
(11)
• Writ of mandate (02)
Provisionally Complex CivilLitigation
(Cal. Rules of Court,
rules
3.400-3.403)
I,. J AntitrustrTrade regulation (03)
I j
Construction
defect
(10)
CZ3 Mass tort
(40)
I I
Securities
litigation
(28)
| j
Environmental/Toxic
tort (30)
I—I Insurance coverage
claims
arising from the
above
listed provisionally complex
case
types (41)
Enforcement of Judgment
I I
Enforcement
of judgment (20)
Miscellaneous CivilComplaint
• RICO (27)
I I Other
complaint
not specified above (42)
Miscellaneous Civil Petit ion
j j
Partnership
and
corporate governance
(21)
I I
Other petition not specified above)
43
^ I I Other
judicial
review 39
2.
This
case I—I
is
ODisnot
complex
under rule 3.400
of the
California Rules
of Court. If
the
case is complex,
mark
the
factors requiring
exceptional
judicial
management:
a.
LJ
Large number of separately
represented
parties d. • Large number of
witnesses
b. L_J Extensive motion
practice
raising difficult or novel e. •
Coordination
with
related actions
pending in one ormore courts
issues*a t will be time-consuming to resolve inother
counties,
states,orcountries, orina federal court
c. •
Substantial
amount of
documentary evidence
f. •
Substantial
postjudgment
judicial
supervision
3. Remedies sought (check
all that apply : aO monetary b.
QD
nonmonetary;
declaratory
or injunctive relief c. •
punitive
4.__Wumber of
causes
of action specify : Two (2) -—^
5._ This case L_J is IXI
js
not a class action suit.
6. ' Ifthere are any knownrelated cases, fileand serve a noticeof related
case.,
Date: December 9,2015
_
Paul K. Schrieffer
TYPE OR PRINTNAME)
Font Adopted forMandatory Use
Judicial Council of
California
CM-010 [Rev. July 1,2007]
NOTICE
••Plaintiff
must
file this
cover sheet
with
the
first paper filed
in theaction orproceeding
(except
small claims casesorcases
filed
xgnder the
Probate
Code,
Family Code,
or
Welfare and Institutions Code). (Cal. Rules
of
Court, rule 3.220.) Failure
to
file may result
In
sanctions.
£File this
cover
sheet
in
addition toanycover sheet required by
local
court
rule.
this caseis
complex under
rule
3.400
et seq. ofthe California
Rules
ofCourt, you
must
serve a
copy of
this cover sheet
on
all
other parties to the actionor proceeding.
VUnless this is a
collections
case under
rule
3.740 ora complex
case,
this
cover
sheet will be used
for
statistical purposes only.
~— ——— Pago 1 of i
CIVIL CASE COVER SHEET
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
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