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

OWENS CORNING SALES, LLC et al v. LIQUID ASPHALT SYSTEMS, INC. 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: 
4:12-cv-00026 Search Pacer
ACE Group party(s): 
Opposing Party: 
Owens Corning Sales, LLC
Court Type: 
Federal
US District Court: 
Western District of Missouri
Date Filed: 
Jan 9 2012

"COUNT I - DECLARATORY JUDGMENT

32. Plaintiffs incorporate by reference the allegations contained in paragraphs 1-31 as if fully set forth herein.

33. Liquid Asphalt has demanded that Owens Corning and its insurance carrier Ace defend and indemnify Liquid Asphalt for the underlying lawsuits pursuant to the purported indemnification provision contained in paragraph 3.d. of the purported Liquid Asphalt lease form.

34. The Owens Corning Purchase Order was issued after the purported Liquid Asphalt lease form, however, and states that the Purchase Order, when accepted "either by acknowledgement or the commencement of performance," constitutes acceptance of the terms of the Purchase Order. The Purchase Order further states that it is the entire agreement between the parties and supersedes all prior oral or written agreements, including the purported Liquid Asphalt lease form.

35. After receiving the Purchase Order, Liquid Asphalt issued an invoice to Owens Corning that specifically acknowledged and referenced by number the Purchase Order, thereby evidencing its assent to the Purchase Order Terms and Conditions.

36. For the foregoing reasons, Plaintiffs request a declaration that the terms and conditions of the agreement governing the contractual relationship between Owens Corning and Liquid Asphalt are those specified in the Owens Corning Purchase Order attached as Exhibit E, or alternatively, that the terms and conditions of the agreement do not include the indemnification provision in paragraph 3.d. of the purported Liquid Asphalt lease form.

COUNT II - DECLARATORY JUDGMENT

37. Plaintiffs incorporate by reference the allegations contained in paragraphs 1-36 as if fully set forth herein.

38. Alternatively, if the Court finds that the indemnification provision in paragraph 3.d. of the Liquid Asphalt lease form is part of the agreement between Owens Corning and Liquid Asphalt, Plaintiffs request a declaration that such provision is unenforceable and void for the following reasons.

39. Mo. Rev. Stat. § 434.100 provides that "in any contract or agreement for private construction work, a party's covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence or wrongdoing is void as against public policy and wholly unenforceable." Mo. Rev. Stat. § 434.100.1.

40. Under the statute, "construction work" includes, but is not limited to "the construction, alteration, maintenance or repair of any building [or] structure . . . and shall include the furnishing of . . . materials or equipment, in connection with such work." Mo. Rev. Stat. § 434.100.3.

41. As part of the process to transition from the use of Owens Coming's permanent storage tank to the temporary asphalt storage tank provided by Liquid Asphalt, Rand Construction Company, an additional defendant in the underlying lawsuits, "designed, constructed, and installed an asphalt delivery and piping system between the permanent asphalt storage tank and temporary asphalt storage tank designed, constructed and supplied by Defendants . . . Liquid Asphalt and Black Wolf." Ex. A (Jones Amended Petition) at If 16; Ex. B (Pruett Amended Petition) at If 16.

42. Liquid Asphalt's furnishing of materials and/or equipment, namely the temporary asphalt storage tank, was in connection with the pipe delivery system construction work provided by Rand Construction Company. This is "construction work" within the meaning of the statute, and the tank furnished by Liquid Asphalt is "the furnishing of . . . materials or equipment in connection with such work."

43. Paragraph 3.d. of the Liquid Asphalt lease form provides that Owens Corning must defend and indemnify Liquid Asphalt for Liquid Asphalt's own negligence or wrongdoing. Owens Corning therefore requests a declaration that this indemnity provision is "void as against public policy and wholly unenforceable" under Mo. Rev. Stat. § 434.100.1.

44. In addition, Liquid Asphalt and/or its affiliate Black Wolf also owed a nondelegable duty to design and manufacture a safe product. Further, the purported Liquid Asphalt lease form provided that Owens Corning was required to return the storage tank at the end of the lease in the same condition as received. Therefore, Owens Corning was not authorized, much less obligated, to make any changes to the design of the tank in order to cure any flaws or defects therein.

45. Accordingly, Plaintiffs alternatively request a declaration that the indemnity provision in the Liquid Asphalt lease form is void against public policy, in that the seller of a product owes a non-delegable duty to design and manufacture a safe product, or that such indemnity provision should be construed consistent with such public policy in a manner that does not require Owens Corning to defend or indemnify Liquid Asphalt against the allegations made in the underlying lawsuits.

COUNT III - DECLARATORY JUDGMENT

46. Plaintiffs incorporate by reference the allegations contained in paragraphs 1-45 as if fully set forth herein.

47. In the event that Liquid Asphalt is asserting a claim as an additional insured under the Ace policy, Ace requests a declaration that the additional insured endorsements of the policy (endorsements 19 and 22 attached as Exhibit G) do not afford coverage to Liquid Asphalt, because the bodily injury liability claims asserted in the underlying lawsuits against Liquid Asphalt are predicated solely upon product liability claims arising from Liquid Asphalt's own negligence and/or defective conditions in its products, as opposed to any alleged acts or omissions of Owens Corning.

COUNT IV - DECLARATORY JUDGMENT

48. Plaintiffs incorporate by reference the allegations contained in paragraphs 1-47 as if fully set forth herein.

49. Liquid Asphalt did not make any demand upon Owens Corning or Ace for defense and indemnification until September 13, 2011, over nine months after the underlying lawsuits were filed.

50. Liquid Asphalt's delay in making such demand is unexplained and unreasonable, and has prejudiced the ability of Owens Corning and Ace to defend against the allegations asserted in the underlying lawsuits and to protect their interest as alleged indemnitors.

51. Plaintiffs request a declaration that Liquid Asphalt's delay in making its demand for defense and indemnification has discharged any obligations that any of the Plaintiffs might otherwise have had for defense or indemnification of Liquid Asphalt. Alternatively, in the event the Court determines that any defense obligations are owed, such obligations should be limited to defense expenses incurred after September 13, 2011, and should be further allocated to those defense expenses attributable solely to the defense of Liquid Asphalt (as opposed to the defense by the same law firm of its affiliate, Black Wolf).

WHEREFORE, Plaintiffs request that the Court enter judgment:
(1) Declaring under Count I that the rights and duties of Owens Corning and Liquid Asphalt are governed by the terms and conditions of the Owens Corning Purchase Order and that Owens Corning does not have a duty to defend or indemnify Liquid Asphalt with respect to the underlying lawsuits; or alternatively, declaring that the terms and conditions of the agreement between Owens Corning and Liquid Asphalt do not include the indemnification provision in paragraph 3.d. of the purported Liquid Asphalt lease form;

(2) Declaring under Count II that, should the terms and conditions of the purported Liquid Asphalt lease form govern the rights and duties between Owens Corning and Liquid Asphalt in any manner whatsoever, paragraph 3.d. of the Liquid Asphalt lease form requiring defense and indemnity is void and unenforceable as violating Mo. Rev. Stat. § 434.100 and/or as violating the public policy that a product seller owes a non-delegable duty to design and manufacture a safe product; or alternatively, construing such indemnity provision consistent with such public policy in a manner that does not require Owens Corning to defend or indemnify Liquid Asphalt against the allegations made in the underlying lawsuits;

(3) Declaring under Count III that Liquid Asphalt has no direct rights of defense or indemnification against Ace as an additional insured under the Ace policy with respect to the allegations made in the underlying lawsuits;

(4) Declaring under Count IV that any rights that Liquid Asphalt might otherwise have had for defense and indemnification, if any, were lost as a result of Liquid Asphalt's delay in requesting defense and indemnification; or alternatively, if any defense obligation is determined to be owed, that such obligation is limited to post-tender defense expenses of Liquid Asphalt only; and

(5) Granting such other and further relief as the Court deems just and proper under the circumstances."

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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