CONTRACTORS ENVIRONMENTAL LEGAL LIABILITY (CELL)
COVERAGE FORM
Various provisions in this policy restrict coverage. Please read the entire policy carefully to determine rights, duties and what is and is not covered.
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 words “we”, “us” and “our” refer to the Company providing this insurance.
The word “insured” means any person or organization qualifying as such under SECTION II – WHO IS AN INSURED.
Defined terms, other than headings, appear in bold face type. Refer to SECTION V - DEFINITIONS.
SECTION I - COVERAGES
COVERAGE SPECIFIC INSURING AGREEMENTS
Coverage A: Contractors Pollution Liability
1. We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury, property damage or environmental damage to which this insurance applies arising out of a pollution incident caused by your work but only if:
a. The bodily injury, property damage or environmental damage is caused by an occurrence that takes place in the coverage territory; and
b. The bodily injury, property damage or environmental damage takes place during the policy period.
2. We will pay emergency response expenses incurred by or on behalf of any insured in response to an imminent and substantial threat to human health or the environment arising out of a pollution incident caused by your work but only if:
a. The pollution incident first commenced during the policy period; b. The pollution incident takes place in the coverage territory; c. The emergency response expenses are incurred within seven (7) days of first commencement of the pollution incident; and
d. The pollution incident and related emergency response expenses are reported to us within twenty-one (21) days of first commencement of the pollution incident.
Coverage B: Pollution Liability During Transportation
1. We will pay those sums that the insured becomes legally obligated to pay as damages to which this insurance applies because of:
a. Bodily injury, property damage or environmental damage arising out of a pollution incident during transportation; or
b. Bodily injury, property damage or environmental damage arising out of misdelivery during transportation; But only if:
(1) The bodily injury, property damage or environmental damage is caused by an occurrence that takes place in the coverage territory; and
(2) The bodily injury, property damage or environmental damage takes place during the policy period.
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 2 of 21
2. We will pay emergency response expenses incurred by or on behalf of any insured in response to an imminent and substantial threat to human health or the environment arising out of a pollution incident during transportation or misdelivery during transportation but only if:
a. The pollution incident or misdelivery first commenced during the policy period; b. The pollution incident or misdelivery takes place in the coverage territory; c. The emergency response expenses are incurred within seven (7) days of first commencement of the pollution incident or misdelivery; and
d. The pollution incident or misdelivery and related emergency response expenses are reported to us in writing within twenty-one (21) days of first commencement of the pollution incident or misdelivery.
Coverage C: Non-Owned Site Pollution Liability
We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury, property damage or environmental damage to which this insurance applies arising out of a pollution incident on, at, under or migrating from any non-owned site but only if:
a. The bodily injury, property damage or environmental damage is caused by an occurrence that takes place in the coverage territory; and
b. The bodily injury, property damage or environmental damage takes place during the policy period.
Coverage D: Time-Element Pollution Liability
1. We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury, property damage or environmental damage to which this insurance applies arising out of a time-element pollution incident on, at, under or migrating from any covered property but only if:
a. The bodily injury, property damage or environmental damage is caused by an occurrence that takes place in the coverage territory;
b. The bodily injury, property damage or environmental damage takes place during the policy period; c. The insured discovers the pollution incident within ten (10) days of first commencement of the pollution incident; and
d. The pollution incident is reported to us in writing within thirty (30) days of first commencement of the pollution incident.
2. We will pay emergency response expenses incurred by or on behalf of any insured in response to an imminent and substantial threat to human health or the environment arising out of a time-element pollution incident on, at, under or migrating from any covered property but only if:
a. The pollution incident first commenced during the policy period; b. The pollution incident takes place in the coverage territory; c. The emergency response expenses are incurred within seven (7) days of first commencement of the pollution incident; and
The pollution incident and related emergency response expenses are reported to us within twenty-one (21) days of first commencement of the pollution incident.
Coverage E: Image Restoration Expenses
We will pay image restoration expenses incurred by or on behalf of you that directly result from an image restoration event arising out of a pollution incident caused by your work, during transportation or misdelivery during transportation on, at, under or migrating from any covered property or non-owned site but only if:
a. The pollution incident giving rise to the image restoration expenses first commenced during the policy period; IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 3 of 21
b. The pollution incident giving rise to the image restoration expenses takes place in the coverage territory; and c. The image restoration expenses are incurred by or on behalf of you within fourteen (14) days of the first newspaper or magazine publication or television news broadcast alleging responsibility by you for such pollution incident giving rise to the image restoration event and within thirty (30) days of the first commencement of such pollution incident.
Coverage F: Disinfection Event Expenses
We will pay disinfection expenses incurred by or on behalf of any insured arising from a disinfection event caused by your work but only if:
a. The disinfection event first commenced during the policy period; b. The disinfection event takes place in the coverage territory; c. The disinfection expenses are incurred within fourteen (14) days of first commencement of the disinfection event; and d. The disinfection event is reported to us within fourteen (14) days of first commencement of the disinfection event.
Coverage G: Pre-Claim Event Expenses
We will pay pre-claim event expenses incurred by or on behalf of any insured arising from a pre-claim event caused by your work but only if:
a. The pre-claim event first commenced and is reported to us during the policy period; and b. The pre-claim event takes place in the coverage territory.
COMMON INSURING AGREEMENTS
The following insuring agreements apply to Coverages A through G inclusive:
1. We will have the right and duty to defend the insured against any suit seeking damages for bodily injury, property damage or environmental damage to which any of Coverages A through G applies. However, we will have no duty to defend the insured against any suit seeking damages to which any of those coverages do not apply. We may, at our discretion, investigate any occurrence and settle any claim or suit that may result. But:
a. The amount we will pay for damages is limited as described in SECTION III - LIMITS OF INSURANCE AND DEDUCTIBLE;
b. Our right and duty to defend ends when we have used up the applicable limits of insurance in the payment of judgments, settlements, clean-up costs, emergency response expenses, image restoration expenses, disinfection event expenses or pre-claim event expenses; and
c. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under SUPPLEMENTARY PAYMENTS.
2. Bodily injury, property damage or environmental damage will be deemed to have been known to have occurred at the earliest time when any responsible executive:
a. Reports all, or any part, of the bodily injury, property damage or environmental damage to us or any other insurer;
b. Receives a written or verbal demand or claim for damages because of the bodily injury, property damage or environmental damage; or
c. Becomes aware by any other means that bodily injury, property damage or environmental damage has occurred or has begun to occur.
3. The following applies to progressive or indivisible bodily injury, property damage or environmental damage, including any continuation, change or resumption of such bodily injury, property damage or environmental damage, which takes place over a period of days, weeks, months or longer caused by continuous or repeated exposure to the same, related or continuous pollution incident:
a. Such bodily injury, property damage or environmental damage shall be deemed to have taken place only on the IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 4 of 21
date of first exposure to such pollution incident; or
b. Such bodily injury, property damage or environmental damage shall be deemed to have taken place during the policy period of the first policy issued by us or by our affiliate(s) to you providing coverage substantially the same as that provided by this policy for bodily injury, property damage or environmental damage that takes place during the policy period, but only if:
(1) The date of first exposure cannot be determined or is before the effective date of the first policy issued by us or by our affiliate(s) to you providing coverage substantially the same as that provided by this policy for bodily injury, property damage or environmental damage that takes place during the policy period; and (2) Such bodily injury, property damage or environmental damage continues, in fact, to take place during this policy period.
4. If the same, related or continuous pollution incident results in bodily injury, property damage or environmental damage that takes place during the policy periods of different policies issued by us or by our affiliate(s) to you providing coverage substantially the same as that provided by this policy for bodily injury, property damage or environmental damage that takes place during the policy period:
a. All such bodily injury, property damage and environmental damage shall be deemed to have taken place only during the first policy period of such policies in which any of the bodily injury, property damage or environmental damage took place; and
b. All damages arising from all such bodily injury, property damage or environmental damage shall be deemed to have arisen from one occurrence and shall be subject to the Each Occurrence Limit applicable to the policy for such first policy period.
5. Damages because of bodily injury include damages claimed by any person or organization for care, loss of services or death resulting at any time from the bodily injury.
SUPPLEMENTARY PAYMENTS
1. We will pay, with respect to any claim we investigate or settle, any suit against an insured we defend or any emergency response expenses incurred by or on behalf of any insured:
a. All expenses we incur.
b. All attorneys’ fees or attorneys’ expenses incurred by the insured in connection with emergency response expenses.
c. All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or suit, including actual loss of earnings up to $500 a day because of time off from work. d. All court costs taxed against the insured in the suit. However, these payments do not include attorneys’ fees or attorneys’ expenses taxed against the insured.
e. Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer.
f. All interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid, offered to pay, or deposited in court the part of the judgment that is within the applicable limit of insurance.
These payments will not reduce the limits of insurance.
2. If we defend an insured against a suit and an indemnitee of the insured is also named as a party to the suit, we will defend that indemnitee if all of the following conditions are met:
a. The suit against the indemnitee seeks damages for which the insured has assumed the liability of the indemnitee in a contract or agreement that is an insured contract; b. This insurance applies to such liability assumed by the insured; c. The obligation to defend, or the cost of the defense of, that indemnitee, has also been assumed by the insured in IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 5 of 21
the same insured contract;
d. The allegations in the suit and the information we know about the occurrence are such that no conflict appears to exist between the interests of the insured and the interests of the indemnitee; e. The indemnitee and the insured ask us to conduct and control the defense of the indemnitee against such suit and agree that we can assign the same counsel to defend the insured and the indemnitee; and f. The indemnitee:
(1) Agrees in writing to:
(a) Cooperate with us in the investigation, settlement or defense of the suit; (b) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the suit;
(c) Notify any other insurer whose coverage is available to the indemnitee; (d) Cooperate with us with respect to coordinating other applicable insurance available to the indemnitee; and
(2) Provides us with written authorization to:
(a) Obtain records and other information related to the suit; and (b) Conduct and control the defense of the indemnitee in such suit.
So long as the above conditions are met, attorneys' fees incurred by us in the defense of that indemnitee, necessary litigation expenses incurred by us and necessary litigation expenses incurred by the indemnitee at our request will be paid as SUPPLEMENTARY PAYMENTS. Notwithstanding the provisions of COMMON EXCLUSIONS, Exclusion 1.
Contractual Liability, Paragraph b., such payments will not be deemed to be damages for bodily injury, property damage and environmental damage and will not reduce the limits of insurance.
Our obligation to defend an insured’s indemnitee and to pay for attorneys' fees and necessary litigation expenses as SUPPLEMENTARY PAYMENTS ends when we have used up the applicable limit of insurance in the payment of judgments or settlements; or the conditions set forth above, or the terms of the agreement described in Paragraph f. above, are no longer met.
COMMON EXCLUSIONS:
The insurance does not apply to:
1. Contractual Liability
Bodily injury, property damage or environmental damage for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:
a. That the insured would have in the absence of the contract or agreement; or b. Assumed in a contract or agreement that is an insured contract, provided the bodily injury, property damage or environmental damage occurs subsequent to the execution of the contract or agreement. Solely for the purposes of liability assumed in an insured contract, reasonable attorneys’ fees and necessary litigation expenses incurred by or for a party other than an insured are deemed to be damages because of bodily injury, property damage or environmental damage, provided:
(1) Liability to such party for, or for the cost of, that party’s defense has also been assumed in the same insured contract; and
(2) Such attorneys’ fees and litigation expenses are for defense of that party against a civil or alternative dispute resolution proceeding in which damages to which this insurance applies are alleged.
2. Criminal Fines, Penalties and Assessments
Any criminal fines, criminal penalties or criminal assessments.
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 6 of 21
3. Damage to Conveyance
Property damage to any conveyance utilized during transportation. This exclusion does not apply to claims made by third-party carriers for such property damage arising from the insured’s negligence.
4. Damage to Property
Property damage or environmental damage to property you own or occupy including any costs or expenses incurred by you, or any other person, organization or entity, for repair, remediation, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another’s property.
Solely as respects environmental damage, this exclusion does not apply to Coverage D: Time-Element Pollution Liability.
5. Damage to Your Work
Property damage or environmental damage to that particular part of any property on which you are performing your work if the property damage or environmental damage arises out of your work.
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.
6. Employer's Liability
Bodily injury to:
a. An employee of the insured, arising out of and in the course of employment by the insured or performing duties related to the conduct of the insured's business; or
b. Any person whose right to assert a claim against the insured arises by reason of any employment, blood, marital, or any other relationship with the insured or its parent, subsidiary or affiliate.
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.
7. Expected or Intended Injury or Damage
Bodily injury, property damage or environmental damage expected or intended from the standpoint of a responsible executive.
8. Known Injury or Damage
Bodily injury, property damage, environmental damage, image restoration event, disinfection event or pre-claim event that occurred in whole or in part prior to the policy period and was known prior to the policy period by a responsible executive. Any continuation, change or resumption of such bodily injury, property damage, environmental damage, image restoration event, disinfection event or pre-claim event will be deemed to have been known by a responsible executive prior to the policy period.
This exclusion does not apply to any continuation, change or resumption of environmental damage caused by your work performed after the effective date of the policy period.
9. Naturally Present Pollutants
Property damage or environmental damage arising out of pollutants at levels naturally present where the environmental damage or property damage occurs.
However, this exclusion does not apply:
a. To clean-up costs required by environmental laws governing the liability or responsibilities of an insured to respond to a pollution incident; or
b. If such damage is a result of an unexpected or unintended pollution incident arising from your work.
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 7 of 21
10. Noncompliance
Bodily injury, property damage, environmental damage, image restoration event, disinfection event or pre-claim event that results from or are associated with a responsible executive’s intentional disregard of, or deliberate, knowing, willful or dishonest noncompliance with any environmental law, including but not limited to the failure to comply with any regulation applicable to air emissions or effluent discharges, or any other statute, regulation, ordinance, order, administrative complaint, notice of violation, notice letter, or instruction by or on behalf of any governmental agency or representative or other federal, state, local or other applicable legal requirement.
However, this exclusion shall not apply to noncompliance based upon:
a. Good faith reliance upon written advice of qualified counsel received in advance of such noncompliance; or b. Reasonable efforts to mitigate a pollution incident that necessitates immediate action, provided that such pollution incident is reported to us in writing within twenty-one (21) days of its first commencement.
11. Nuclear Material
Bodily injury, property damage or environmental damage based upon or arising out of the radioactive, toxic or explosive properties of nuclear material and with respect to which the insured is:
a. Required to maintain financial protection pursuant to the Atomic Energy Act of 1954; b. Entitled to indemnity from the United States of America or any agency thereof; or c. An insured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters, Nuclear Insurance Association of Canada or any of their successors, or would be an insured under any such policy but for its termination upon exhaustion of limits.
12. Prior Pollutants or Pollution Incident
Bodily injury, property damage or environmental damage arising out of (i) pollutants or a pollution incident resulting from your work, (ii) pollutants or a pollution incident on, at, under or migrating from any covered property or nonowned site or (iii) pollutants or a pollution incident during transportation or misdelivery during transportation, known to a responsible executive prior to the effective date of the policy period.
This exclusion does not apply if:
a. The pollutants or pollution incident giving rise to the bodily injury, property damage or environmental damage is specifically referenced, or identified on a Prior Pollutants or Pollution Incident Exclusion Amendment Endorsement attached to this policy; or
b. We have been notified in writing of a claim arising from such pollution incident giving rise to bodily injury, property damage or environmental damage during the policy period of a policy previously issued by us.
13. War
Bodily injury, property damage, environmental damage, image restoration event, disinfection event or pre-claim event however caused, arising, directly or indirectly, out of:
a. War, including undeclared or civil war;
b. Warlike action by a military force, including action in hindering or defending against an actual or expected attack, by any government, sovereign or other authority using military personnel or other agents; or c. Insurrection, rebellion, revolution, usurped power, or action taken by governmental authority in hindering or defending against any of these.
14. Workers Compensation and Similar Laws
Any obligation of the insured under a workers compensation, disability benefits or unemployment compensation law or any similar law.
15. Your Product
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 8 of 21
Bodily injury, property damage or environmental damage based upon or arising out of your product after you have relinquished possession of the same, except if installed as part of your work.
16. Asbestos and Lead
Solely with respects to Coverage D: Time-Element Pollution Liability, environmental damage arising from asbestos, asbestos containing materials or lead-based paint in, on or applied to any building or other structure. a. This exclusion does not apply to clean-up costs for the remediation of soil, surface water or groundwater. b. This exclusion does not apply to clean-up costs to remediate asbestos, asbestos containing materials or lead-based paint within any structure that has been inadvertently displaced and such clean-up costs are the direct result of a pollution incident which first commences during the policy period and arises from explosion, fire, lightning, Flood or windstorm damage, provided that:
(1) The insured discovers the pollution incident within ten (10) days of first commencement of the pollution incident;
(2) The pollution incident is reported to us in writing within thirty (30) days of first commencement of the pollution incident; and
(3) Subject to Section III. LIMITS OF INSURANCE AND DEDUCTIBLE, Paragraphs 1. through 9., the most we will pay for clean-up costs, regardless of the number of insureds, covered properties, pollution incidents, claims or claimants, pursuant to the exception contained in this Paragraph shall not exceed $100,000.
SECTION II - WHO IS AN INSURED
1. If you are designated in the Declarations as:
a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.
b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business. c. A limited liability company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business. Your managers are insureds, but only with respect to their duties as your managers. d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your executive officers and directors are insureds, but only with respect to their duties as your officers or directors.
Your stockholders are also insureds, but only with respect to their liability as stockholders. e. A trust, you are an insured. Your trustees are also insureds, but only with respect to their duties as trustees.
2. Each of the following is also an insured:
a. Your volunteer workers only while performing duties related to the conduct of your business, or your employees, other than either your executive officers (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these employees or volunteer workers are insureds for:
(1) Bodily injury:
(a) To you, to your partners or members (if you are a partnership or joint venture) or to your members (if you are a limited liability company); or
(b) For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraph (1) (a) above. (2) Property damage or environmental damage to property owned, occupied or used by rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 9 of 21
employees, volunteer workers, any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company).
b. Any person or organization having proper temporary custody of your property if you die, but only with respect to liability arising out of the maintenance or use of that property and until your legal representative has been appointed.
c. Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this policy.
d. Any person or organization you agree to include as an insured in a written contract, written agreement or permit, but only with respect to bodily injury, property damage or environmental damage arising out of your work. e. Any person or organization that has at least a 50% controlling interest in you but only with respect to bodily injury, property damage or environmental damage arising out of their financial control of you. f. A joint venture to which you are a party, but only to the extent of your participation in such joint venture.
SECTION III - LIMITS OF INSURANCE AND DEDUCTIBLE
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;
c. Persons or organizations making claims or bringing suits; d. Pollution incidents;
e. Image restoration events;
f. Disinfection events; or
g. Pre-claim events.
2. The Policy Aggregate Limit is the most we will pay for the sum of all damages, emergency response expenses, image restoration expenses, disinfection event expenses and pre-claim event expenses under Coverages A through G inclusive.
3. Subject to Paragraph 2. above, the Each Occurrence Limit is the most we will pay for the sum of all damages, emergency response expenses, image restoration expenses, disinfection event expenses and pre-claim event expenses under Coverages A through G inclusive arising out of any one occurrence.
4. The limit of insurance applies in excess of the deductible amount shown in the Declarations. The deductible amount applies to the sum of all damages, emergency response expenses and legal and claims expense payments because of bodily injury, property damage and environmental damage arising out of any one occurrence.
We may pay any part or the entire deductible amount to effect settlement of any claim or suit or to pay clean-up costs or emergency response expenses which may be covered under this policy and, upon notification of the action taken, you shall promptly reimburse us for such part of the deductible amount as has been paid by us.
5. The Image Restoration Expense Aggregate Limit is the most we will pay for the sum of all image restoration expenses.
Subject to the Image Restoration Expenses Aggregate Limit, the Image Restoration Expenses Each Occurrence Limit is the most we will pay for all image restoration expenses arising out of the same, related or continuous image restoration event. The Image Restoration Expenses Each Occurrence Limit applies in excess of the deductible amount shown in the Declarations.
6. The Disinfection Event Expenses Aggregate Limit is the most we will pay for the sum of all disinfection event expenses.
Subject to the Disinfection Event Expenses Aggregate Limit, the Disinfection Event Expenses Each Occurrence Limit is the most we will pay for disinfection event expenses arising out of the same, related or continuous disinfection event.
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 10 of 21
The Disinfection Event Expenses Each Occurrence Limit applies in excess of the deductible amount shown in the Declarations.
7. The Pre-Claim Event Expenses Aggregate Limit is the most we will pay for the sum of all pre-claim event expenses.
Subject to the Pre-Claim Event Expenses Aggregate Limit, the Pre-Claim Event Expenses Each Occurrence Limit is the most we will pay for pre-claim event expenses arising out of the same, related or continuous pre-claim event. The PreClaim Event Expenses Each Occurrence Limit applies in excess of the deductible amount shown in the Declarations.
8. The limits of insurance apply to the entire policy period. If the policy period is extended after policy issuance for an additional period, the additional period will be deemed part of the last preceding period for the purposes of determining the limits of insurance.
9. If the first named insured and us jointly agree to utilize mediation as a means to resolve a claim made against you, and if such claim is resolved as a direct result of and during such mediation, the deductible obligation stated in the Declarations shall be reduced by 50% subject to a maximum reduction of $25,000 for all claims resolved during mediation. We shall reimburse the first named insured for any such reimbursable deductible payments made prior to the mediation as soon as practical after the conclusion of such mediation.
SECTION IV - CONDITIONS
1. Assignment
This policy may not be assigned without our prior written consent. Assignment of interest under this policy shall not bind us until our consent is endorsed thereon.
2. Bankruptcy
Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations.
3. Cancellation
a. The first Named Insured shown in the Declarations may cancel this policy by mailing or delivering to us advance written notice of cancellation.
b. We may cancel this policy by mailing or delivering to the first Named Insured written notice of cancellation at least:
(1) Ten (10) days before the effective date of cancellation if we cancel for nonpayment of premium; or (2) Ninety (90) days before the effective date of cancellation if we cancel for any other reason. c. We will mail or deliver our notice to the first Named Insured's last mailing address known to us. d. Notice of cancellation will state the effective date of cancellation. The policy period will end on that date. e. If this policy is cancelled, we will send the first Named Insured any premium refund due. If we cancel, the refund will be pro rata. If the first Named Insured cancels, the refund may be less than pro rata and will be subject to the minimum earned premium stated in the Declarations. The cancellation will be effective even if we have not made or offered a refund.
f. If notice is mailed, proof of mailing will be sufficient proof of notice.
4. Changes
This policy contains all the agreements between you and us concerning the insurance afforded. The first Named Insured shown in the Declarations is authorized to make changes in the terms of this policy with our consent. This policy's terms can be amended or waived only by endorsement issued by us and made a part of this policy.
5. Choice of Forum
In the event that the insured and we have any dispute concerning or relating to this policy, including its formation, coverage provided hereunder, or the meaning, interpretation or operation of any term, condition, definition or provision of this policy resulting in litigation, arbitration or other form of dispute resolution, the insured agrees with us that any such litigation shall take place in the appropriate federal or state courts located in New York, New York and any arbitration or other form of dispute resolution shall take place in New York, New York.
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 11 of 21
6. Choice of Law
In the event that the insured and we have any dispute concerning or relating to this policy, including its formation, coverage provided hereunder, or the meaning, interpretation or operation of any term, condition, definition or provision of this policy resulting in litigation, arbitration or other form of dispute resolution, the insured agrees with us that the internal laws of the State of New York shall apply without giving effect to any conflicts or choice of law principles. The terms and conditions of this policy shall not be deemed to constitute a contract of adhesion and shall not be construed in favor of or against any party hereto by reason or authorship or otherwise.
7. Currency
All reimbursement shall be made in United States currency at the rate of exchange prevailing on the date of judgment if judgment is rendered, the date of settlement if settlement is agreed upon with our written consent, or the date of payment of clean-up costs, image restoration expenses, disinfection expenses, emergency response expenses and pre-claim event expenses whichever is applicable.
8. Duties In The Event Of Occurrence, Pollution Incident, Claim or Suit a. You must see to it that we are notified as soon as practicable of an occurrence, or pollution incident which may result in a claim. To the extent possible, notice should include:
(1) How, when and where the occurrence or pollution incident took place; (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the occurrence or pollution incident. b. If a claim is made or suit is brought against any insured, you must:
(1) Immediately record the specifics of the claim or suit and the date received; and (2) Notify us as soon as practicable.
You must see to it that we receive written notice of the claim or suit as soon as practicable. c. You and any other involved insured must:
(1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or suit;
(2) Authorize us to obtain records and other information; (3) Cooperate with us in the investigation or settlement of the claim or defense against the suit; and (4) Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may also apply. d. In the event emergency response expenses are incurred, you must provide, in writing, all available information relating to such emergency response expenses, and the pollution incident giving rise thereto to us within twentyone (21) days of first commencement of the pollution incident. Such information shall include all applicable information detailed in Paragraph a. above.
e. In the event image restoration expenses, disinfection expenses or pre-claim event expenses are incurred, you must provide, in writing, all available information relating to such expenses, and the image restoration event, disinfection event or pre-claim event giving rise thereto to us within fourteen (14) days of first commencement of such event. Such information shall include all applicable information detailed in Paragraph a. above. f. In the event of a time-element pollution incident, you must provide, in writing, all available information relating to the pollution incident giving rise thereto to us within thirty (30) days of first commencement of the pollution incident. Such information shall include all applicable information detailed in Paragraph a. above. e. No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid and emergency response expenses, without our consent.
When any insured becomes legally obligated to pay clean-up costs to which this insurance applies, the insured IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 12 of 21
must:
(1) Submit, for our approval, all proposed work plans prior to submittal to any regulatory agency. (2) Submit, for our approval, all bids and contracts for clean-up costs prior to execution or issuance. (3) Forward progress submittals regarding clean-up costs at reasonable intervals and always prior to submittal to any regulatory agency that is authorized to review and approve such submittals.
We shall have the right, but not the duty, to assume direct control of such clean-up costs. Any clean-up costs incurred by us shall be applied against the applicable deductible and limit of insurance. g. If we are prohibited under applicable law from investigating, defending or settling any such claim or suit, the insured shall, under our supervision, arrange for such investigation and defense thereof as is reasonably necessary, and subject to our prior authorization, shall effect such settlement thereof.
9. Economic and Trade Sanctions
In accordance with laws and regulation of the United States concerning economic and trade sanctions administered and enforced by The Office Of Foreign Assets Control (OFAC), this policy is void ab initio solely with respect to any term or condition of this policy that violates any laws or regulations of the United States concerning economic and trade sanctions.
10. Enforceability
If any part of this policy is deemed invalid or unenforceable, it shall not affect the validity or enforceability of any other part of this policy, which shall be enforced to the full extent permitted by law.
11. Headings
The descriptions in the headings and sub-headings of this policy are inserted solely for convenience and do not constitute any part of the terms or conditions on this policy.
12. Independent Counsel
In the event the insured is entitled by law to select independent counsel to oversee our defense of a claim or suit at our expense, the attorney fees and all other litigation expenses we must pay to that counsel are limited to the rates we actually pay to counsel we retain in the ordinary course of business in the defense of similar claims or suits in the community where the claim or suit arose or is being defended.
Additionally, we may exercise the right to require that such counsel have certain minimum qualifications with respect to their competency including experience in defending claims or suits similar to the one pending against the insured and to require such counsel have errors and omissions insurance coverage. As respects any such counsel, the insured agrees that counsel will timely respond to our request for information regarding the claims or suit.
Furthermore, the insured may at any time, by the insured’s written consent, freely and fully waive these rights to select independent counsel.
13. Inspections and Surveys
a. We have the right to:
(1) Make inspections and surveys at any time;
(2) Give you reports on the conditions we find; and
(3) Recommend changes.
b. We are not obligated to make any inspections, surveys, reports or recommendations and any such actions we do undertake relate only to insurability and the premiums to be charged. We do not make safety inspections. We do not undertake to perform the duty of any person or organization to provide for the health or safety of workers or the public. And we do not warrant that conditions:
(1) Are safe or healthful; or
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 13 of 21
(2) Comply with laws, regulations, codes or standards.
This applies not only to us, but also to any rating, advisory, rate service or similar organization which makes insurance inspections, surveys, reports or recommendations.
14. Legal Action Against Us
No person or organization has a right under this policy:
a. To join us as a party or otherwise bring us into a suit asking for damages from an insured; or b. To sue us on this policy unless all of its terms have been fully complied with.
A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this policy or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant's legal representative.
15. Multiple Coverage Sections
No claim, or part thereof, for which we have accepted coverage or coverage has been held to apply under one or more Coverages in this policy shall be covered under any other Coverages in this policy.
16. Other Insurance
If other valid and collectible insurance is available to the insured for a loss we cover under this policy, our obligations are limited as follows:
a. Primary Insurance
This insurance is primary except when paragraph b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in paragraph c. below. However, regardless of whether b. below applies, in the event that a written contract or agreement or permit requires this insurance to be primary for any person or organization you agreed to insure and such person or organization is an insured under this policy, we will not seek contributions from any such other insurance issued to such person or organization. b. Excess Insurance
(1) This insurance is excess over:
(a) Any of the other insurance, whether primary, excess, contingent or on any other basis, that is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for your work; (b) Any other insurance, whether primary, excess, contingent or on any other basis, available to you covering liability for damages arising out of your work, for which you have been added as an additional insured; (c) Any project specific insurance, whether primary, excess, contingent or on any other basis, available to you covering liability for damages arising out of your work at a specified job site; or (d) Any other insurance, whether primary, excess, contingent or on any other basis, that covers loss arising in whole or part from mold matter, legionella pneumophila or a disinfection event. (2) When this insurance is excess, we will have no duty to defend the insured against any suit if any other insurer has a duty to defend the insured against that suit. If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. (3) When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of:
(a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; (b) The total of all deductible and self-insured amounts under all that other insurance; and (c) The deductible and self-insured amounts under this insurance.
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 14 of 21
(4) We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the limits of insurance shown in the Declarations of this policy.
c. Method Of Sharing
If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts, excess of applicable deductible and self-insured amounts under all such insurance, until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first.
If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers.
17. Premiums and Deductible
The first Named Insured shown in the Declarations:
a. Is responsible for the payment of all premiums;
b. Will be the payee for any return premiums we pay; and c. Is responsible for the payment of all deductibles.
18. Representations
By accepting this policy, you agree:
a. The statements in the Declarations are accurate and complete; b. Those statements are based upon representations you made to us; and c. We have issued this policy in reliance upon your representations.
19. Separation Of Insureds
Except with respect to the limits of insurance and any rights or duties specifically assigned in this policy to the first Named Insured, this insurance applies:
a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom claim is made or suit is brought.
20. Service of Suit
Subject to SECTION IV – CONDITIONS, Condition 5. Choice of Forum above, it is agreed that in the event of failure of us to pay any amount claimed to be due hereunder, we, at the request of the insured, will submit to the jurisdiction of a court of competent jurisdiction within the United States. Nothing in this condition constitutes or should be understood to constitute a waiver of our rights to commence an action in any court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another court as permitted by the laws of the United States or of any state in the United States. It is further agreed that service of process in such suit may be made upon us and that in any suit instituted against us upon this contract, we will abide by the final decision of such court or of any appellate court in the event of any appeal.
Further, pursuant to any statute of any state, territory, or district of the United States which makes provision therefore, we hereby designate the Superintendent, Commissioner, Director of Insurance, or other officer specified for that purpose in the statute, or his or her successor or successors in office as its true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the insured or any beneficiary hereunder arising out of this contract of insurance, and hereby designates the above named counsel as the person to whom the said officer is authorized to mail such process or a true copy thereof.
21. Transfer Of Rights Of Recovery Against Others To Us If the insured has rights to recover all or part of any payment we have made under this policy, those rights are IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 15 of 21
transferred to us. At our request, the insured will bring suit or transfer those rights to us and help us enforce them.
However, if the insured has waived rights of recovery against any person or organization prior to a loss, we waive any right of recovery we may have under this policy against such person or organization.
22. Transfer of Your Rights and Duties Under This Policy Your rights and duties under this policy may not be transferred without our written consent except in the case of death of an individual named insured.
If you die, your rights and duties will be transferred to your legal representative but only while acting within the scope of duties as your legal representative. Until your legal representative is appointed, anyone having proper temporary custody of your property will have your rights and duties but only with respect to that property.
23. When We Do Not Renew
If we decide not to renew, we will mail or deliver to the first Named Insured shown in the Declarations written notice of the nonrenewal not less than ninety (90) days before the expiration date. If notice is mailed, proof of mailing will be sufficient proof of notice.
SECTION V - DEFINITIONS
1. Bodily injury means physical injury, sickness, disease, building-related illness, mental anguish, shock or emotional distress sustained by any person, including death resulting therefrom. Bodily injury shall also include medical monitoring costs.
2. Claim means a demand, notice or assertion of a legal right alleging liability or responsibility on the part of the insured.
3. Clean-up costs means reasonable and necessary costs, charges and expenses incurred to investigate, remove, dispose of, contain, treat, neutralize, monitor or test soil, surface water, groundwater or other contaminated media but only:
a. To the extent required by environmental laws governing the liability or responsibilities of the insured to respond to a pollution incident;
b. In the absence of an applicable environmental law, to the extent recommended in writing by an environmental professional;
c. To the extent incurred by the government or any political subdivision within Definition 5.a. Coverage territory; or d. To the extent incurred by parties other than you.
Clean-up costs also includes restoration costs.
Clean-up costs does not include costs, charges or expenses incurred by the insured for materials supplied or services performed by the insured.
4. Conveyance means any auto, railcar, rolling stock, train, watercraft or aircraft. Conveyance does not include pipelines.
5. Coverage territory means:
a. The United States of America (including its territories and possessions), Puerto Rico, Canada and The Gulf of Mexico;
b. International waters or airspace, but only if the injury or damage occurs in the course of travel or transportation between any places included in Paragraph a. above.
6. Covered property means those locations specifically scheduled in Item 9. of the Declarations, or any other location specifically endorsed to the policy as a covered property.
7. Disinfection event means any case or series of cases of communicable virus, bacteria or disease that requires reporting of such case or series of cases to any local, state or federal governmental or public health agency or entity.
Disinfection event does not include pollution incidents.
8. Disinfection expenses means reasonable fees and costs incurred by the insured to clean and disinfect a location after any disinfection event.
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 16 of 21
9. Emergency response expenses means reasonable and necessary costs, charges and expenses incurred to investigate, remove, dispose of, abate, contain, treat, neutralize, monitor or test soil, surface water, groundwater or other contaminated media.
10. Employee includes a leased worker and a temporary worker.
11. Environmental damage means physical damage to land, conveyances, structures on land or water, the atmosphere, any watercourse or body of water including surface water or groundwater, giving rise to clean-up costs or emergency response expense. Environmental damage does not include disinfection expenses.
12. Environmental laws means any federal, state, provincial, municipal or other local laws, including, but not limited to, statutes, rules, ordinances, guidance documents, regulations and all amendments thereto, including state voluntary cleanup or risk based corrective action guidance, and governmental, judicial or administrative orders and directives, that are applicable to a pollution incident.
13. Environmental professional means an individual approved and designated by us in writing who is duly certified or licensed in a recognized field of environmental science as required by a state board, a professional association, or both, who meet certain minimum qualifications and who maintain specified levels of errors and omissions insurance coverage acceptable to us. We shall consult with the insured in conjunction with the selection of the environmental professional.
14. Executive officer means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document.
15. Flood means a general and temporary condition of partial or complete inundation of two or more acres of normally dry land area or of two or more properties (at least one of which is a covered property) from:
a. Overflow of inland or tidal waters;
b. Unusual and rapid accumulation or runoff of surface waters from any source; c. Mudflow; or
d. Collapse or subsidence of land along the shore of a lake or similar body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels that result in a flood as defined above.
16. Image restoration event means a pollution incident which results in a newspaper or magazine publication or television news broadcast alleging responsibility by you for such pollution incident.
17. Image restoration expenses means reasonable expenses incurred by you to restore public reputation and consumer confidence. Image restoration expenses shall include fees and expenses incurred by you for services rendered by public relations or crisis management firms as well as reasonable and necessary printing, mailing of materials and travel by your executive officers, directors, members, partners or employees at the direction of such firms. Image restoration expenses shall not include the costs to purchase advertising on television, in newspapers or in any other media.
18. Insured contract means:
a. A contract for a lease of premises. However, that portion of the contract for a lease of premises in excess of thirty (30) consecutive days that indemnifies any person or organization for damage by fire, lightning or explosion to premises while rented to you or temporarily occupied by you with permission of the owner is not an insured contract;
b. A sidetrack agreement;
c. Any easement or license agreement;
d. An obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality;
e. An elevator maintenance agreement;
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 17 of 21
f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for bodily injury, property damage or environmental damage to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
Paragraph f. does not include that part of any contract or agreement that indemnifies an architect, engineer or surveyor for injury or damage arising out of:
(1) Preparing, approving or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications; or
(2) Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage.
19. 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.
20. Legal and claims expense payments means all amounts specified under SUPPLEMENTARY PAYMENTS, including:
a. All expenses we incur that are directly allocated to a particular claim or suit. b. All attorneys’ fees or attorneys’ expenses incurred by the insured in connection with emergency response expense.
21. Location means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway, waterway or right-of-way of a railroad.
22. Mediation means the non-binding intervention of a neutral third-party to effect settlement of a claim.
23. Misdelivery means the delivery of any liquid product into a wrong receptacle or to a wrong address or the erroneous delivery of one liquid product for another.
24. Mold matter means mold, mildew and fungi, whether or not such mold matter is living.
25. Natural resource damage means damages, sought by a governmental or tribal natural resource damage trustee who is authorized to act in such capacity by a natural resource damage statute governing the assessment and restoration of natural resource damages, for the physical injury to or destruction of, as well as the assessment of such injury or destruction, including the resulting loss of value of land, fish, wildlife, biota, air, water, groundwater, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States (including the resources of the fishery conservation zone established by the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.)), any state, local or provincial government, any foreign government, any Native American tribe, or, if such resources are subject to a trust restriction on alienation, any member of a Native American tribe.
26. Non-owned site means any location which was not at any time owned or occupied by you. A non-owned site shall include any job site location leased, rented or borrowed for use as a staging area to facilitate your work.
Non-owned site does not include:
a. Any location which is not licensed by the appropriate federal, state or local authority at the time such facility performs storage, disposal, processing or treatment of waste from your operations or your work in compliance with environmental law.
b. Any location or any part thereof that has been subject to a consent order or corrective action under environmental law or is listed or proposed to be listed on the Federal National Priorities list (NPL) prior to waste from your operations or your work being legally consigned for delivery or delivered for storage, disposal, processing or treatment at such location.
27. Nuclear material means source material, special nuclear material or byproduct material which have the meanings given them in the Atomic Energy Act of 1954 or in any law amendatory thereof.
28. Occurrence means an accident, including continuous or repeated exposure to substantially the same general harmful IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 18 of 21
conditions.
29. Policy period means the period of time stated in the Declarations. However, if the policy is cancelled in accordance with SECTION IV – CONDITIONS, Condition 3. Cancellation, the policy period ends on the effective date of such cancellation.
30. Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, soot, vapors, fumes, acids, alkalis, chemicals, hazardous substances, hazardous materials, or waste materials, including medical, infectious and pathological wastes. Pollutants shall also mean mold matter, legionella pneumophila and electromagnetic fields.
Pollutants, with the exception of mold matter and legionella pneumophila, does not include bacteria and viruses.
31. Pollution incident means:
a. The discharge, dispersal, release, escape, migration, or seepage of pollutants on, in, into, or upon land, conveyances, structures on land or water, the atmosphere, any watercourse or body of water including surface water or groundwater;
b. The discharge, dispersal, release, or escape of silt or sedimentation that originated at and migrated from a location where you are performing your work; or
c. The presence of mold matter.
Pollution incident includes the illicit abandonment of pollutants at any covered property or job site location provided that such abandonment was committed by parties other then you and without the knowledge of a responsible executive.
32. Pre-claim event means a pollution incident arising out of your work that would reasonably be expected to give rise to a claim covered by this policy.
33. Pre-claim event expense means:
a. Reasonable and necessary fees charged by an environmental professional or attorney mutually agreed upon by the first named insured shown in the Declarations and us, for environmental consulting, investigative, testing or legal services, solely to the extent such fees are incurred as a result of a pre-claim event; b. Costs, charges and expenses incurred by us in the investigation or adjustment of a pre-claim event; and c. All reasonable and necessary expenses incurred by you at our request to assist us in the investigation of a preclaim event, including your employees’ lost salaries or wages, up to $500 a day.
Except as expressly set forth in this Definition, pre-claim event expenses shall not include costs, charges or other expenses incurred: prior to our agreement upon the selection of an environmental professional or attorney; or by you for goods supplied by or on behalf of your staff or salaried employees, or its parent, subsidiary or affiliate, unless such costs, charges or other expenses are incurred with our prior written consent, which consent shall not be unreasonably withheld.
34. Property damage means:
a. Physical injury to or destruction of tangible property, including all resulting loss of use and diminished value of that property. All such loss of use and diminished value shall be deemed to occur at the time of the physical injury that caused it;
b. Loss of use of tangible property that is not physically injured or destroyed. All such loss of use shall be deemed to occur at the time of the occurrence or pollution incident that caused it; or c. Natural resource damage.
Property damage does not include environmental damage.
For the purpose of this insurance, electronic data is not tangible property. As used in this definition, electronic data means information, facts or programs stored as or on, created or used on, or transmitted to or from computer software, including systems and applications software, hard or floppy disks, CDROMS, tapes drives, cells, data processing devices or any other media which are used with electronically controlled equipment.
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 19 of 21
35. Responsible executive means any officer, director, risk manager, partner, your manager or supervisor responsible for environmental affairs, health and safety affairs, control or compliance or any other employee authorized by you to give or receive notice of an occurrence or claim.
36. Restoration costs means reasonable and necessary costs incurred by the insured with our prior written consent, to repair, restore or replace damaged real or personal property damaged during work performed in the course of incurring clean-up costs in order to restore the property to the condition it was in prior to being damaged during such work. Restoration costs shall not exceed the lesser of actual cash value of such real or personal property or the cost of repairing, restoring or replacing the damaged property with other property of like kind and quality. An adjustment for depreciation and physical condition shall be made in determining actual cash value. If a repair or replacement results in better than like kind or quality, we will not pay for the amount of the betterment, except to the extent:
a. Such betterments of the damaged property entail the use of materials which are environmentally preferable to those materials which comprised the damaged property.
b. Such environmentally preferable material must be certified as such by an applicable independent certifying body, where such certification is available, or, in the absence of such certification, based on our judgment in our sole discretion.
37. Suit means a civil proceeding in which damages to which this insurance applies are alleged. Suit includes an arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent or any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.
38. Temporary worker means a person who is furnished to you to substitute for a permanent worker on leave or to meet seasonal or short-term workload conditions.
39. Time-Element pollution incident means a pollution incident demonstrable as having first commenced at an identified time and place during the policy period provided such pollution incident does not originate or arise from, or relate to an underground storage tank.
40. Transportation means the movement of goods, product, merchandise, supplies or waste in a conveyance by the insured or a third party carrier to or from a job site or a non-owned site. Transportation includes the movement of goods, products, merchandise, supplies or waste into, onto or from a conveyance.
41. Underground storage tank means any tank, including any piping and appurtenances connected to the tank, located on or under an owned or occupied location that has at least ten (10) percent of its combined volume underground.
Underground storage tank does not include:
a. Septic tanks, sump pumps, or oil/water separators;
b. A tank that is enclosed within a basement or cellar, if the tank is upon or above the surface of the floor; or c. Storm-water or wastewater collection systems.
42. Volunteer worker means a person who is not your employee, and who donates his or her work and acts at the direction of and within the scope of duties determined by you, and is not paid a fee, salary or other compensation by you or anyone else for their work performed for you.
43. Your product:
a. Means:
(1) Any goods or products, other than real property, manufactured, sold or distributed by:
(a) You;
(b) Others trading under your name; or
(c) A person or organization whose business or assets you have acquired; and (2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products.
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 20 of 21
b. Includes:
(1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of your product; and
(2) The providing of or failure to provide warnings or instructions.
44. Your work:
a. Means:
(1) Work or operations performed by you or on your behalf at a location which was not at any time owned or occupied by you; and
(2) Materials, parts or equipment furnished in connection with such work or operations. b. Includes:
(1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of your work; and
(2) The providing of or failure to provide warnings or instructions.
IN WITNESS WHEREOF, the Insurer has caused this Policy to be executed and attested, but this Policy will not be valid unless countersigned by a duly authorized representative of the Insurer, to the extent required by applicable law.
Ironshore Specialty Insurance Company by:
Secretary President
IE.COV.CELL.001 (07/18) Includes copyrighted material of Insurance Services Offices, Inc. with its permission. Page 21 of 21