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ST. PAUL FIRE AND MARINE INSURANCE COMPANY v. WESTCHESTER FIRE INSURANCE COMPANY

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: 
5:14-cv-05401 Search Pacer
ACE Group party(s): 
Opposing Party: 
St. Paul Fire and Marine Insurance Company
Court Type: 
Federal
US District Court: 
Northern District of California
Date Filed: 
Dec 9 2014

Comes now Plaintiff, ST. PAUL FIRE AND MARINE INSURANCE COMPANY (referred
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to as “Plaintiff” or “TRAVELERS”) and pleads the following allegations on information and belief
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in support of its Complaint herein:  
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1. The present action seeks a judicial declaration concerning the rights and obligations
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as to TRAVELERS, and Defendant WESTCHESTER FIRE INSURANCE COMPANY with regard
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to defense fees and costs incurred in the action entitled, The Board of Trustees of California State
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University v. Clark Construction Group, Inc., et al., Santa Clara County Superior Court case no.
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111CV214032 (the "Underlying Action").  

JURISDICTION
2. Plaintiff ST. PAUL FIRE AND MARINE INSURANCE COMPANY
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(“TRAVELERS”) is now, and at all relevant times was, a corporation, existing under the laws of the
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State of Connecticut with its principal place of business in Hartford, Connecticut.  TRAVELERS is,
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and at all relevant times was, an insurance carrier eligible to do business as an insurer in the State of
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California.   
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3.
Plaintiff is informed and believes and thereon alleges Defendant WESTCHESTER
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FIRE INSURANCE COMPANY (“WESTCHESTER”) is a corporation organized and existing
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under the laws of the State of Pennsylvania with its principal place of business in Pennsylvania.  
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Plaintiff is further informed and believes and thereon alleges that WESTCHESTER is, and at all
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times relevant was, an insurance carrier eligible to do business as an insurer in the State of
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California.
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4.
Defendants sued herein as DOES 1 through 10, inclusive, are sued herein by such
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fictitious names because Plaintiff is unaware of the true names and capacities of said DOE
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defendants.  Plaintiff will amend this Complaint to reflect the true names when the same are
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ascertained.  Plaintiff is informed and believes and thereon alleges that said DOE defendants are
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responsible for the acts, events, and circumstances alleged herein, or are interested parties to this
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action.
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5.
The amount in controversy exceeds $75,000, and represents fees and costs sought in
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connection with the defense and/or indemnification of the parties’ mutual insured with regard to the
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Underlying Action.   
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6. The Court has diversity jurisdiction as Plaintiff is domiciled in Connecticut and the
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Defendant is domiciled in Pennsylvania.
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VENUE
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7. Plaintiff is informed and believes and thereon alleges the acts and/or omissions at
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issue in this litigation took place in this judicial district within the State of California.  The
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Underlying Action is pending in this judicial district.  Venue, therefore, lies with this Court, as a
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1
substantial part of the events which are the subject of the claims asserted herein are located and/or
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took place in this judicial district.
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4
 A.
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8.
GENERAL ALLEGATIONS
The Insurance Policies
TRAVELERS issued the following CCIP general commercial liability insurance
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policy under which The Clark Construction Group, Inc. (“Clark”) and F.W. Spencer & Sons, Inc.
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(“Spencer”) qualify as insureds: policy number KK06801051, effective from 11/15/02 to 8/1/05 (the
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“TRAVELERS Policy”).  The TRAVELERS Policy contains a $2,000,000 per event limit.
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9. Plaintiff is informed and believes and thereon alleges Defendant WESTCHESTER
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issued excess CCIP commercial general liability insurance policy under which Clark and Spencer
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qualify as insureds: policy number MLA 733242, effective from 11/15/02 to 8/1/05 (the
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“WESTCHESTER Policy”). Plaintiff is informed and believes that the WESTCHESTER Policy
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contains a $25 million per occurrence limit excess to the TRAVELERS Policy.  
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10. Plaintiff is informed and believes and thereon alleges each of the policies issued by
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the Defendants identified herein fictitiously as DOES 1 to 10 name or designate Clark and/or
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Spencer as an insured thereon, whether as a named insured or an additional insured.
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11. Defendants WESTCHESTER, and DOES 1 through 10 are in possession of their
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respective policies of insurance and know the terms and contents thereof, to an equal or greater
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extent than Plaintiff. However, on information and belief, Plaintiff alleges the Defendants’ policies
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provide an insuring agreement and are written on standard forms which provide, in part, an
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agreement to defend any insured from and against suits seeking damages potentially covered under
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the insurance policies and/or to pay any amounts the insured is legally obligated to pay for covered
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damages.
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12.
Plaintiff is informed and believes by reason of the declarations and/or additional
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insured endorsements on WESTCHESTER and DOES 1 through 10’s policies, Clark and/or
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Spencer are insured on these Defendants’ policies for purposes of the insuring agreement(s) therein.
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///

B.  The Underlying Action
13. The Underlying Action arises out of construction of the University Campus Village
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at the San Jose State University (the “Project”).  The Project consists of three multi-story residential
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buildings above a two level parking structure.  Building A is eight stories high and contains
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apartment units for faculty and staff.  Building B has several different types of apartments for
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student use, and has portions that are nine and fifteen stories high.  Building C is seven stories high
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and is designed with suite type units.  All three buildings are built on a podium that serves as the
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roof of a two level parking garage.  Clark was the general contractor for the Project and retained
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Spencer to install all the “Mechanical” work at the Project, via subcontract dated May 15, 2003.  
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The Project was completed on or about December 22, 2005.
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14. Via letter dated February 10, 2011, the University placed Clark on notice that the
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buildings in the Project have experienced leaks through pipes throughout the complex.  The
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University subsequently initiated litigation as against both Clark and Spencer, alleging that the
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plumbing system was defectively installed, in the action entitled, The Board of Trustees of
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California State University v. Clark Construction Group, Inc., et al., Santa Clara County Superior
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Court case no. 111CV214032 (the "Underlying Action").
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15. Clark and Spencer both tendered their defense and indemnity in the Underlying
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Action to TRAVELERS under the TRAVELERS Policy.  TRAVELERS accepted the tenders and
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agreed to defend Clark and Spencer subject to a reservation of rights.  To date, Clark and Spencer
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have incurred in excess of $1.5 million in fees and costs in the defense of the Underlying Action.
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16. Clark and Spencer have also tendered the Underlying Action to WESTCHESTER
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under the WESTCHESTER Policy.
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17. The parties have been attempting to settle Clark and Spencer’s potential liability with
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the plaintiff in the Underlying Action.  TRAVELERS has offered to contribute its policy limits to
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the settlement.  However, WESTCHESTER has been delaying in attempting to settle the
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Underlying Action and refusing to meaningfully participate in settlement discussions.  As a result of
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WESTCHESTER’s refusal to settle, TRAVELERS has been forced to incur continuing and
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additional sums in the defense of Clark and Spencer in the Underlying Action.
 
18. Plaintiff is informed and believes and thereon alleges Clark and/or Spencer tendered
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its defense and indemnity with regard to the Underlying Action to DOES 1 through 10 as a named
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insured or an additional insured under the carriers’ respective policies of insurance.  Plaintiff is
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informed and believes and thereon alleges
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tenders of defense and indemnity.
DOES 1 through 10 denied Clark and/or Spencer’s
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19.
FIRST CAUSE OF ACTION FOR DECLARATORY RELIEF
(By TRAVELERS Against WESTCHESTER and DOES 1 through 10)
Plaintiff hereby re-alleges and incorporates by reference each allegation contained in
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all preceding paragraphs of this Complaint as though fully set forth herein.
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20. An actual, present and justiciable controversy has arisen and now exists between
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Plaintiff on the one hand and the Defendants on the other, concerning their respective rights, duties
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and obligations under the insurance policies issued by each of them.  
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21. In particular, Plaintiff contends, and is informed and believes
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WESTCHESTER and DOES 1 through 10 deny the following:  
that Defendants

Defendant WESTCHESTER has and had a duty to meaningfully participate in
settlement negotiations and settle the Underlying Action;
As a result of WESTCHESTER’s failure to settle the Underlying Action,
TRAVELERS has been forced to incur continuing and additional sums in the defense
of Clark and Spencer in the Underlying Action;
Defendants WESTCHESTER and DOES 1 through 10 had and have a duty to defend
and/or indemnify Clark and/or Spencer against the claims, demands, actions and
causes of action asserted against Clark and Spencer in the Underlying Action;  
Defendants WESTCHESTER and DOES 1 through 10 had and have an equitable
duty and responsibility to pay a fair and proportionate share of the costs of defense
and/or indemnity incurred on behalf of Clark and/or Spencer;
The costs of defending and/or indemnifying Clark and/or Spencer have been and are
being borne disproportionately by Plaintiff; and  
The costs associated with the defense and/or indemnification of Clark and Spencer

should be equitably apportioned between and among Plaintiff and Defendants
WESTCHESTER and DOES 1 through 10
principles.  
under applicable law and equitable
22. Plaintiff asserts and contends that declaratory judgment is both necessary and proper
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at this time for the court to determine the respective rights and liabilities of the parties regarding
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their obligations to pay for the defense and/or indemnification of Clark and Spencer against the
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allegations made in the Underlying Action.  
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9
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23.
SECOND CAUSE OF ACTION FOR EQUITABLE CONTRIBUTION
(By TRAVELERS Against WESTCHESTER and DOES 1 through 10)
Plaintiff hereby re-alleges and incorporates by reference each allegation contained in
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all preceding paragraphs of this Complaint as though fully set forth herein.
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24. Plaintiff has agreed to defend Clark and Spencer against the claims asserted against it
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in the Underlying Action, pursuant to the terms and conditions of the TRAVELERS Policy, and
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subject to a full reservation of its rights.  
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25. Plaintiff is informed and believes and thereon alleges that the policy(ies) issued by
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Defendants WESTCHESTER and DOES 1 through 10, provide liability insurance to Clark and/or
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Spencer, designating Clark and/or Spencer as a named insured or additional insured thereon.
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Plaintiff is further informed and believes and thereon alleges that the allegations made, pleaded or
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otherwise asserted against Clark and/or Spencer in the Underlying Action, if true, set forth claims
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for damages potentially covered under WESTCHESTER’s and DOES 1 through 10’s policies.
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26. As such, Defendants WESTCHESTER and DOES 1 through 10, and each of them,
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are obligated to participate in the defense and/or indemnification of Clark and/or Spencer in the
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Underlying Action by reason of their respectively underwritten policies of insurance, which provide
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an agreement to undertake the duty to defend suits seeking damages from bodily injury or property
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damage potentially covered under their respective policies and/or the duty to indemnify for liability
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for bodily injury or property damage covered under their respective policies. In addition, Defendant
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WESTCHESTER is obligated to undertake the continuing defense of Clark and Spencer by reason
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of its failure to meaningfully participate in settlement negotiations and settle the Underlying Action.
 
27. All conditions precedent to Defendants WESTCHESTER’s and DOES 1 through
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10’s obligations under their respective policies of insurance have been satisfied, waived, and/or
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excused. Defendants WESTCHESTER’s and DOES 1 through 10’s obligations to defend and/or
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indemnify Clark and Spencer are currently due and owing.  
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28. Defendants WESTCHESTER and DOES 1 through 10, and each of them, have to
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date failed to participate in the defense and/or indemnification of Clark and/or Spencer, and/or
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failed to contribute a full and equitable share toward Plaintiff’s costs of defending and/or
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indemnifying Clark and/or Spencer which have been incurred and which are being incurred in
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connection with the Underlying Action.   
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29. By reason of Defendants WESTCHESTER’s and DOES 1 through 10’s failure to
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discharge their obligations and equitably participate in the defense and/or indemnification of Clark
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and Spencer, Plaintiff has incurred and/or paid, and will incur and/or pay, more costs than it would
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have, had Defendants WESTCHESTER and DOES 1 through 10 agreed to defend and/or contribute
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a full and equitable share to the defense and/or indemnity of Clark and Spencer in performance of
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their due and owing obligations under their respective insurance policies.  
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30. Defendants WESTCHESTER’s and DOES 1 through 10’s failure to discharge their
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obligations under their respective policies of insurance is wrongful and thus causing an inequitable
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result, in that Plaintiff is paying and has paid more than its equitable share of the costs of defending
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and/or indemnifying Clark and Spencer in the Underlying Action without the participation of
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Defendants in paying for such costs.  
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31. Because of Defendants WESTCHESTER’s and DOES 1 through 10’s wrongful
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failure to discharge their obligations under their respective policies of insurance, Plaintiff is entitled
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to an award of equitable contribution, to reimburse it for costs equivalent to each Defendants
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WESTCHESTER’s and DOES 1 through 10’s fair and equitable proportionate share of the total
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costs of defense and/or indemnification incurred in connection with the claims against  
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Clark and Spencer in the Underlying Action, with interest thereon at the prescribed legal rate.

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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