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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

AXIS INSURANCE COMPANY v. TURNER INDUSTRIES GROUP, LLC et al

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
2:14-cv-00146 Search Pacer
ACE Group party(s): 
Opposing Party: 
Axis Insurance Company
Court Type: 
Federal
US District Court: 
Eastern District of Louisiana
Date Filed: 
Jan 20 2014

BACKGROUND
11. This Complaint arises out of the specific facts pled in four separate underlying
suits filed against TIG, TI, Kyle David Joekel, Terry Smith, Brian Smith, Gemini, ACE,
Steadfast Insurance Company and AXIS in the 40 Judicial District Court for the Parish of St.
John the Baptist. AXIS is seeking a declaration that it has no obligation to defend and indemnify
Turner, Kyle David Joekel, Terry Smith and/or Brian Smith in the following underlying actions:
(1) M. Scott Boyington, et al. v. Turner Industries Group, LLC and/or Turner Industries, LLC, et
al., Civil Action No. 65268(B), 40th Judicial District Court for the Parish of St. John the Baptist
("Boyington Action"); (2) Misty McTopy Triche, et al. v. Turner Industries Group, LLC and/or
Turner Industries, LLC, et al., Civil Action No. 65271(B), 40th Judicial District Court for the
Parish of St. John the Baptist ("M. Triche Action"); (3) Daniell Legnon Nielson, et al. v. Turner
Industries Group, LLC and/or Turner Industries, LLC, et al., Civil Action No. 65270(A), 40th
Judicial District Court for the Parish of St. John the Baptist ("Nielson Action") and (4) Jason
Triche, et al. v. Turner Industries Group, LLC and/or Turner Industries, LLC, et al., Civil Action
No. 65279(B), 40th Judicial District Court for the Parish of St. John the Baptist ("J. Triche
Action") (collectively referred to as the "Underlying Actions"). In the alternative, if it is
determined that AXIS has any obligation of insurance to TIG, TI or the Individual Defendants
from one or more of the underlying actions, AXIS seeks a declaration concerning the number of
occurrences, that the per occurrence limits of any underlying insurance provided by Gemini must
be fully exhausted prior to any coverage obligation of AXIS being triggered, and that the
coverage obligations owed by ACE to any joint insured of AXIS, for off-site liability, are
primary and come before any obligations owed by AXIS.
12. The claims in the Underlying Actions arise out of gunfire from Kyle David
Joekel, Terry Smith and/or Brian Smith (the individuals are hereafter collectively referred to as
the "Individual Defendants").
13. The Underlying Actions alleged causes of action arising out of the bodily injury
or death to Officer M. Scott Boyington, Officer Jeremy Michael Triche, Officer Jason Triche,
Officer Brandon Nielsen (hereinafter jointly referred to as the "Officers") caused by the gunfire
from the Individual Defendants.
14. In each of the Underlying Actions, the plaintiffs seek to hold TIG and TI liable for
damages arising out of the bodily injuries based upon theories of vicarious liability and gross
negligence and/or negligent hiring, retention and/or supervision.
15. In each of the Underlying Actions, the plaintiffs seek to hold each of the
Individual Defendants liable for damages arising out of the bodily injuries based on the firing of
bullets at the Officers, which intentional acts the plaintiffs couch in their pleadings correctly as
intentional acts and as also incorrectly and without any merit as being negligent acts.
16. During the relevant period, Diamond Green Diesel, LLC ("DGD") and Valero
(collectively "DGD") were constructing a bio-diesel plant in Norco, Louisiana.
17. TIG acted as the general contractor on the project.
TIG, under "Section 9. Insurance" provides
that TIG, as the "Contractor" under the Agreement, prior to commencing work will be enrolled
in the Owner Controlled Insurance Program ("OCIP") coverage provided under the Agreement:
20. The Agreement provides that the OCIP will include general liability coverage
amongst other coverages with "Shared Project Limits for General Liability: $2,000,000
occurrence/$4,000,000 aggregate" and excess limits of $25 million.
21. The Agreement between DGD and TIG, under "Section 9. Insurance, (a) Non-
OCIP" states that TIG, as the "Contractor" under the Agreement, is advised that the OCIP
coverage provided under the Agreement:
...does not cover ail business and other risks that Contractor could potentially encounter on this
Project and/or in its business in general. Contractor should fully evaluate the insurance coverages
included in the OCIP and determine what risks it will self insure or purchase and maintain its own
insurance to address, as it deems necessary to further protect itself against claims which may
arise from operations under or in any way related to or arising from this contract."
22. The Agreement also contains the following specific requirements for Non-OCIP
coverage:
B. Commercial General Liability: (off-site)
LIMITS: $1,000,000 combined single limit
COVERAGES: ...
(10) Endorsement making coverage primary to any coverage maintained
by Additional Insureds
D. Umbrella Liability
LIMITS: $25,000,000 Combined Single Limit Bodily Injury and Property Damage in excess
of Employer's Liability, Commercial General Liability and Automobile Liability Coverages
described above
A. The Boyington Petition
23. On or about August 20, 2013, M. Scott Boyington and his wife (on their own
behalf and on behalf of their children) filed a petition against, inter alia, TIG and TI (which the
Boyingtons improperly refer to jointly as "Turner Industries") and the Individual Defendants
asserting a claim for damages arising out of the bodily injury suffered by M. Scott Boyington as
well as claims by his wife and children for their related losses (the "Boyington Petition"). A copy
of the Boyington Petition is attached as Exhibit A.
24. The Boyington Petition alleges in relevant part that:
a. on or about August 16, 2012, Mr. Boyington was "on duty in and near the
Valero off-site parking area in St. John Parish performing work on behalf of
Valero" (Ex. A, p.2,1| 2);
b. the Individual Defendants were employees of "Turner Industries" working at
the Valero/ Diamond Green facility in St. Charles Parish (Ex. A, p.2, ^j 2);
c. Deputy Boyington was performing security detail for Valero, namely directing
traffic out of the off-site parking area on to Louisiana Hwy 3217 as the project
employees were exiting the parking area after working the night shift (Ex. A,
P-2,113);
d. a vehicle driven by Terry Smith and occupied by the other Individual
Defendants and others "[sjuddenly and without warning... drove at a high rate
of speed and pulled into the exit area of the Valero off-site parking lot to
avoid the line of vehicles waiting to exit the Valero parking lot" (Ex. A, p.2, ^j
5);
e. Deputy Boyington requested that they pull to the side while he directed traffic
and that Terry Smith refused to pull to the side or produce his driver's license
and "instead confronted M. Scott Boyington" (Ex. A, p.2, ]j 6);
f. Deputy Boyington requested that Terry Smith turn in his employee badge and
that Mr. Smith refused and "sped off down Louisiana Hwy 3217 at a high rate
ofspeed"(Ex.A,p.3,P);
g. Deputy Boyington followed the vehicle being driven by Terry Smith "which
alternately slowed, stopped, and sped off, and at some point stopped on the
side of the road in the vicinity of the Valero parking lot, where M. Scott
Boyington pulled his vehicle in front of the Smith vehicle and began to exit
his vehicle" (Ex. A, p.3, TJH);
h. "[s]uddenly and without warning, one or more of the occupants of the Smith
vehicle, believed to be Brian Smith and/or Joekel, began shooting at M. Scott
Boyington, who was hit with bullets multiple times from a high powered
firearm, as Terry Smith drove the vehicle away at a high rate of speed" (Ex.
A,p.3,tl2),and;
i. Deputy Boyington returned back to the parking area where he met EMS
personnel and he received severe physical and mental injuries as a result of
the incident (Ex. A, p.3, f 13).
25. The Boyingtons further allege "upon information and belief the following:
• The occupants of the vehicle were arrested and criminally charged;
At the time of the incident Terry Smith, Brian Smith and/or Kyle Joekel were on
the FBI's Domestic Terrorism Watch List;
• At the time of the incident there were one or more outstanding warrants for the
arrest of Terry Smith, Brian Smith and/or Kyle Joekel;
• Terry Smith had been involved in a similar incident with a police officer in 2009
after which he was charged with driving with a suspended license and disobeying
a police officer;
• Terry Smith's employment was terminated after that incident.1
26. The Boyington Petition alleges a claim for "Negligence and/or Fault of Turner
Industries" claiming that "Turner Industries" was grossly negligent or alternatively negligent in,
inter alia, failing to properly conduct a pre-employment screening of the Individual Defendants,
in hiring the Individual Defendants, failing to warn Deputy Boyington of the Individual
Defendants' backgrounds and violent tendencies, failing to ensure that co-workers, employees
and others were kept safe and failing to have adequate security on duty at the time of the
accident. (Ex. A, p.5)
27. In the "Negligence and/or Fault of Turner Industries" claim, the Boyingtons also
allege the following (Ex. A, p.8, % 45):
Turner Industries is independently and vicariously liable for the
willful and/or negligent acts of the occupants of the Smith vehicle
as these acts were primarily employment related arising out of a
dispute relating to employment, on the Turner Industries, Diamond
Green and Valero premises, and occurred during the hours of
employment, such that Turner Industries, Diamond Green and
Valero knew or should have known that injury to M. Scott
Boyington and others was substantially certain to follow.
28. The Boyington Petition also alleges a claim for "the Intentional and/or Negligent
Acts of Terry Smith, Brian Smith and/or Kyle David Joekel." (Ex. A, p. 10)
29. Mr. Boyington seeks damages for past, present and future: pain and suffering,
mental pain, anguish, etc., as well as medical expenses, loss of enjoyment of life and lost wages,
and he also seeks to recover for: lost earning capacity, intentional and negligent infliction of
emotional distress, permanent disability, permanent disfigurement, loss of chosen profession,
loss of insurability, and loss of ability to engage in personal relations and recreational activities.
(Ex. A, pp. 15-16)
30. Mrs. Boyington and the children seek damages for loss of consortium, economic
support, companionship, service and society, etc. (Ex. A, p. 16, K 76)
B. The M. Triche Petition.
31. On or about August 20, Misty McTopy Triche, both on her behalf and on behalf
of her son, filed a petition against, inter alia, TIG and TI (which the Triches improperly refer to
jointly as "Turner") and the Individual Defendants seeking damages for wrongful death and
survivor damages arising out of the death of Jeremy Michael Triche (the "M. Triche Petition").
A copy of the M. Triche Petition is attached as Exhibit B.
32. The M. Triche Petition contains the same or substantially similar allegations as
the Boyington Petition summarized above. (Ex. B)
33. The M. Triche Petition also alleges in relevant part that:
a. It is believed that Brian Smith and Kyle David Joekel encouraged and enticed
Terry Smith to defy deputy Boyington's lawful authority during the above
described incident and to flee the scene in order to cause further, and future,
confrontation with law enforcement knowing that said law enforcement would
pursue. Upon information and belief, Joekel, the Smiths, and the Smith
vehicle occupants desired a confrontation with law enforcement (Ex. B, p.3, J
9);
b. the Smith vehicle then proceeded from the scene of the shooting of officer
Boyington to Riverview Campground where Joekel and the Smiths
maintained a residence (Ex. B, p.4, If 11);
c. Sheriff Deputies Jeremy Triche, Jason Triche and Brandon Nielsen responded
to the calls concerning the shooting of Deputy Boyington and appeared at the
Riverview Campground shortly after Joekel and the Smiths (Ex. B, p.4, ^j 14);
d. as the Deputies attempted to investigate the scene they were "violently
ambushed and intentionally shot by Defendant Joekel, who intended to cause
their death" (Ex. B, p.4, J 15);
e. Deputies Jeremy Triche and Brandon Nielsen lost their lives and Deputy
Jason Triche was gravely wounded (Ex. B, p.5, ^ 16);
f. Kyle Joekel was arrested and charged with two counts of first-degree murder
and three counts of attempted first-degree murder of a police officer and
principal to attempted first-degree murder of a police officer (Ex. B, p.5, If
18);
g. Terry and Brian Smith were arrested and charged with various felonies related
to the shootings (Ex. B, p.5, ff 19), and;
h. "The acts of the occupants of the Smith vehicle were primarily employment
related" and "the acts complained of herein arose out of a dispute relating to
employment, while employed by Turner and were immediately congruent
Superior. (Ex. B, pp. 7-8, 12)
35. The Triches also seeks damages from the Individual Defendants based upon the
intentional acts of the Individual Defendants that the Triches couch in their pleadings correctly as
intentional acts and as also incorrectly and without any merit as being negligent acts. (Ex. B,
p.15,151)
36. The M. Triche Petition seeks damages for past, present and future: pain and
suffering, mental pain, anguish, etc., as well as medical expenses, loss of enjoyment of life and
lost wages, and he also seeks to recover for: lost earning capacity, intentional and negligent
infliction of emotional distress, permanent disability, permanent disfigurement, loss of chosen
profession, loss of insurability, and loss of ability to engage in personal relations and recreational
activities. (Ex. B, p. 16, f 55)
37. Ms. Triche and her son seek damages for loss of consortium, economic support,
companionship, service and society, etc. (Ex. B, p. 16, \ 55)
C. The Nielsen Action.
38. On or about August 20, Daniell Legnon Nielsen, both on her behalf and on behalf
of her son, filed a petition against, inter alia, TIG and TI (which the Nielsens improperly refer to
jointly as "Turner") seeking damages for wrongful death and survivor damages arising out of the
death of Brandon Nielsen, her husband (the "Nielsen Petition"). A copy of the Nielsen Petition is
attached as Exhibit C.
39. The Nielsen Petition contains the same or substantially similar allegations as the
Boyington Petition and the M. Triche Petition summarized above.
40. The Nielsen Petition also alleges that Brandon Nielsen was employed as a
commissioned deputy sheriff with the St. John the Baptist Parish Police Department on August
16,2012.(Ex.C,p.2,f4)
41. In the Nielsen Petition, the allegations related to how Brandon Nielsen and the
other deputies were shot are consistent with the Boyington and the M. Triche Petitions with the
exception that the Nielsen Petition asserts that Brian Smith and Kyle Joekel were the shooters.
(Ex.C,p.4,tl5)
42. Similar to the M. Triche Petition, the Nielsen Petition asserts claims against
"Turner" for damages arising out of the death of Deputy Nielsen based upon negligent hiring,
negligent retention and Respondeat Superior. (Ex. C, pp.9-11)
43. Ms. Nielsen also seeks damages from the Individual Defendants arising out of the
death Deputy Nielsen based upon the intentional acts of the Individual Defendants that the
Nielsens couch in their pleadings correctly as intentional acts and as also incorrectly and without
any merit as being negligent acts. (Ex. C, p. 14, Tf 54)
44. The Nielsen plaintiffs seek damages for past, present and future: pain and
suffering, mental pain, anguish, etc., as well as medical expenses, loss of enjoyment of life and
lost wages, and also seek to recover for: lost earning capacity, intentional and negligent infliction
of emotional distress, permanent disability, permanent disfigurement, loss of chosen profession,
loss of insurability, and loss of ability to engage in personal relations and recreational activities.
(Ex.C,p.l5,l 58)
45. Ms. Nielsen and her daughter seek damages for loss of consortium, economic
support, companionship, service and society, etc. (Ex. C, p.15, T| 58)
D. The J. Triche Petition.
46. On or about August 26, 2013, Jason Triche, his wife, Melissa Triche, and their
minor child filed a petition against, inter alia, TIG and TI (that the Triches improperly refers to
jointly as "Turner") and the Individual Defendants seeking damages for the bodily injuries he
suffered (the "J. Triche Petition"). A copy of the J. Triche Petition is attached as Exhibit D.
47. The J. Triche Petition contains the same or substantially similar allegations as the
Boyington, M. Triche and the Nielsen Petitions summarized above.
48. The J. Triche Petition alleges that Jason Triche was employed as a deputy/police
officer with the St. John the Baptist Parish Police Department on August 16, 2012. (Ex. D, p.2, \
2)
49. As in the other Petitions, the Triches assert claims against "Turner" based upon
negligent hiring, negligent retention and Respondeat Superior. (Ex. D, pp.7-9)
50. The Triches also seeks damages from the Individual Defendants based upon the
intentional acts of the Individual Defendants that the Triches couch in their pleadings correctly as
intentional acts and as also incorrectly and without any merit as being negligent acts. (Ex. D,
p.11,144)
51. Jason Triche seeks damages for past, present and future: pain and suffering,
mental pain, anguish, etc., as well as medical expenses, loss of enjoyment of life and lost wages,
and he also seeks to recover for: lost earning capacity, intentional and negligent infliction of
emotional distress, permanent disability, permanent disfigurement, loss of chosen profession,
loss of insurability, and loss of ability to engage in personal relations and recreational activities.
(Ex. D, p. 12, U 48)
52. Melissa Triche and her child seek damages for loss of consortium, economic
support, companionship, service and society, etc. (Ex. D, pp. 12-13, ^ 48)
F. The Gemini Policy.
53. Gemini Insurance Company issued Commercial General Liability policy no.
VCWP001018 to the Named Insured Diamond Green Diesel, LLC for the policy period from
April 15, 2011 to March 13, 2013 (the "Gemini Policy"). Upon information and belief a true and
correct copy of the Gemini Policy is attached hereto as Exhibit "E".
54. The Gemini Policy provides $2,000,000 in limits per occurrence with a general
aggregate of $4,000,000. (Ex. E, Declarations)
55. The Gemini Policy provides general liability coverage, pursuant to the following
relevant terms and conditions to the Named Insureds under the Policy (Ex. E, Excess Liability
Policy form):
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 word "insured" means any person or organization qualifying as such under Section II - Who
is An Insured.
SECTION I - COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages
because of "bodily injury" or "property damage" to which this insurance applies.
b. This insurance applies to "bodily injury" and "property damage" only if:
(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes
place in the "coverage territory"
does not apply to "bodily injury" resulting from the use of
reasonable force to protect persons or property.
d. Worker's Compensation And Similar Laws
Any obligation of the insured under a Workers' compensation, disability benefits or
unemployment compensation law or any similar law.
e. Employer's Liability
"Bodily injury" to:
(1) An "employee" of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured's business...
This exclusion applies whether the insured may be liable as an employer or in
any other capacity and to any obligation to share damages with or repay
someone else who must pay damages because of the injury.
This exclusion does not apply to liability assumed by the insured under an
"insured contract."
SECTION II -WHO IS AN INSURED
2. Each of the following is also an insured:
b. Your "volunteer workers" only while performing duties related to the conduct of your
business, or your "employees"... but only for acts within the scope of their
employment by you or while performing duties related to the conduct of your
business.
SECTION V - DEFINITIONS
5. "Employee" includes a "leased worker". Employee does not include a "temporary worker."
10. "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 to the
conduct of your business. "Leased worker" does not include a "temporary worker".
13. "Occurrence" means an accident, including continuous or repeated exposure to
substantially the same general or harmful conditions.
19. "Temporary worker" means a person who is furnished to you to substitute for a
permanent "employee" on leave or to meet a seasonal or short-term workload conditions.
56. Endorsement No. 4 of the Gemini Policy, the Named Insured Endorsement,
includes "all contractors, all tiers of subcontractors, each separate contractor of Sponsor or others
for whom Sponsor contracts to furnish Insurance under the Insurance program for this project..."
(Ex. E)
57. Endorsement No. 18 (Ex. E) "Limitation Of Coverage To Designated Premises Or
Project" of the Gemini Policy describes the premises as "Norco, Louisiana" and the project as
"Construction of Bio-Diesel Plant" and states,
This insurance applies only to "bodily injury", "property damage", "personal and
advertising injury" and medical expenses arising out of:
1. The ownership, maintenance or use of the premises shown in the
Schedule and operations necessary or incidental to those premises;
or
2. The project shown in the Schedule.
58. Endorsement No. 22 (Ex. E) of the Gemini Policy entitled "Primary/
Noncontributory" states:
If you are required by a written contract to provide primary insurance then this policy shall
be primary and non-contributory and condition 4, Other Insurance, as shown under
Section IV on form CG 00 01 12 07, does not apply but only with respect to coverage
provided by this policy for the additional named insured in the schedule.
59. Endorsement No. 36 (Ex. E) of the Gemini Policy entitled "Amendment to Other
Insurance" reads:
"Other Insurance - Amended
Condition 4. Other Insurance is deleted and replaced by the following:
With respect to the coverage afforded by this policy to an insured and
arising out of the designated project or premises, this insurance shall
apply before any other insurance, whether primary, excess, contingent or
on any other basis, available to an insured on which the insured is also
an insured, and we will not seek contribution from such other insurance
for defense or indemnity."
G. The AXIS Policy.
60. AXIS issued excess liability policy no. MNU759504/01/2011 to the Named
Insured Diamond Green Diesel, LLC for the policy period from April 15, 2011 to March 31,
2013 (the "AXIS Policy"). Upon information and belief, a true and correct copy of the AXIS
Policy is attached as Exhibit F.
61. The AXIS Policy provides liability coverage with limits of $25,000,000 above the
Gemini Policy, which is First Underlying Insurance to the AXIS limits. (Ex. F, Excess Liability
Policy Declarations)
62. The AXIS Policy contains, inter alia, the following terms and conditions2:
I. INSURING AGREEMENT
1. The coverage provided by this policy is excess insurance and, except as otherwise stated in this
policy, follows the terms, conditions, exclusions, and endorsements of the "first underlying insurance"
as shown in Item 8. of the Declarations. Further this policy will follow any additional exclusions
included in any other "underlying insurance". Under no circumstances will this coverage be broader
than any "underlying insurance".
2. We wiil pay the sums in excess of the "underlying insurance" that you become legally obligated to
pay as damages because of injury or damage to which this insurance applies, provided that the
"underlying insurance" also applies, or would have applied but for the exhaustion of the applicable
Limits of Insurance.
6. We have no other obligations or liabilities to pay sums or perform services, except as described in
Section II. DEFENSE AND DEFENSE EXPENSE.
7. Where any terms of this policy are more restrictive than any terms of any "underlying insurance",
the terms of this policy will apply.
8. Settlement of any claim or suit for an amount in excess of any "underlying insurance" shall not be
binding on us unless we consent in writing.
V. CONDITIONS
8. Loss Payable:
a. Liability under this policy shall not apply unless and until the insured and the underlying
insurer has become obligated to pay the amount of the "underlying insurance". Such
obligation by the underlying insurer and us to pay damages shall have been previously
Ex. F, Excess Liability Policy form and attached Endorsements.
determined by a final settlement or judgment after an actual trial or written agreement
between the insured, the claimant or the claimant's legal representative, the underlying
insurer and us.
10. Unimpaired Aggregates of Underlying Insurance:
If an aggregate limit of any "underlying insurance" has been reduced below the aggregate amount
shown in the Schedule of Underlying Insurance for that "underlying insurance" as a result of
losses occurring prior to the inception date of this policy or as a result of losses not covered by
this insurance, we will apply all insurance provided by this policy as if the aggregate of the
"underlying insurance" had not been reduced below the limit amount shown in the Schedule of
Underlying Insurance.
12. "Other Insurance": This insurance is excess over, and shall not contribute to any other insurance,
whether primary, excess, contingent or on any other basis. This condition applies to any duty to
indemnify and to any duty to defend. This condition will not apply to insurance specifically written
as excess over this policy.
VI. DEFINITIONS
6. "Underlying insurance" means the policy or policies of insurance listed in the Declarations under
the Schedule of Underlying Insurance, including any self-insured retentions or deductibles that
are a part of such policies.
Endorsement B
Section V. CONDITIONS, Item 11. Other Insurance, shall not apply when a contract, into which you
have entered, requires the Commercial General Liability Policy and Commercial Automobile Liability
Policy shown in Schedule A. UNDERLYING INSURANCE to be primary. However, this exception to
the Other insurance Condition applies only as respects liability arising out of your operations, your
work, or premises owned or rented to you.
Endorsement C
Amendatory Endorsement- Duty to Defend
Section II Defense and Defense Expenses is deleted in its entirety and replaced by the following:
1. Defense
We shall have the right and duty to assume charge of the settlement or defense of any claim made,
suit brought, or proceeding instituted against you upon exhaustion of'underlying insurance'. If we do
not exercise such right and duty or if "underlying insurance" is not exhausted we will have the right
and opportunity to associate with you in the defense and control of any claim, suit or proceeding we
reasonably think likely will involve us.
2. Defense Expense
a. Our obligation to pay defense expenses and our duty to defend the insured against suits to
which this policy applies is subject to the following limitations and conditions:
(1) We will have the right and the duty to assume charge of the defense and control of
any claim, suit or proceeding to which this policy applies.
(2) You must obtain our written consent before any defense expense is incurred for any
claim, suit, or processing to which this policy applies.
(3) We have no obligation to pay for defense expenses incurred by you where any
"underlying insurance" is not available or collectible because of the bankruptcy or
insolvency of any underlying insurer or you, for any reason.
Endorsement D
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; or
c. Persons or organizations making claims or bringing suits.
3. Subject to Paragraphs 2. above, the Each Occurrence Limit stated in Item 3. Of the Declarations
is the most we will pay for:
(1) any injury and damage arising out of one occurrence or offense, or
(2) any wrongful act, error or omission.
4. if applicable limits of insurance of the "underlying insurance" shown in Item 8. of the Declarations
are reduced or exhausted by payments of damages from one or more occurrences covered by
this policy, the limits of insurance of this policy will apply in excess of such reduced or exhausted
limits.
G. The ACE Policy.
63. Upon information and belief, ACE issued Commercial General Liability policy
No. HDOG26437593 to TIG and TI providing primary coverage of $2,000,000.00 per
occurrence for the policy period from March 1, 2012 through March 1, 2013 (the "ACE Policy").
COUNT I—DECLARATION THAT THE INDIVIDUAL DEFENDANTS ARE NOT
INSUREDS UNDER THE AXIS POLICY
64. AXIS incorporates by reference the allegations pled in the preceding Paragraphs
as if stated fully herein.
65. The Gemini Policy states that employees of Named Insureds are considered to
also be insureds, "but only for the acts within the scope of their employment by you or while
performing duties related to the conduct of your business."
66. All illegal and wrongful acts of the Individual Defendants that caused bodily
injury to the Officers were acts not within the scope of their employment for TIG or while
performing duties related to TIG conducting its business as a contractor on the project.
67. AXIS therefore seeks a declaration that it has no coverage obligations for defense
or indemnity to any of the Individual Defendants because they do not constitute insureds under
the AXIS Policy.

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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