THE PORT OF PORT ANGELES v. CERTAIN UNDERWRITERS AT LLOYD'S LONDON et al complaint

8/9/2019 THE PORT OF PORT ANGELES v. CERTAIN UNDERWRITERS AT LLOYD'S LONDON et al complaint

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EXHIBIT 1

Case 3:15-cv-05180-KLS Document 1-2 Filed 03/26/15 Page 1 of 33


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F I LE D

CLA LLAM COUNTY

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I I E G E W E

FEB 2 7 2015

1NSURANCE

C p M M 1 S S t O N E R

jAN 12 Z015

B A R B A R A C H F 3 6 S T E N S E N C L E R 4 C

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IN TI-iE SUPERIOR COURT OF TI;IE STATE OF WASHINGTON

IN AND FOR THE COUNTY Or CLALLAM

'1'HE PORT OF POR7' ANGrLES,

a Washington municipal corporation,

Plaintiff,

V

~

CERTAIN UNDERWRITERS AT LLOYD'S,

LONDON AND CERTA.IN

LONDON

MARICET' COMPANIES, BRI'I'ISH LAW

INSURANCE COMPANY, LTD.,

COMMERCIAL IJNION ASSURANCE

COMPANY P,L.C., CONTINENTAL

ASSURANC,k: OF I.,ONDON, LTD.,

EDINBURGI-i ASSURANCE COMPANY,

L.TD., EDINBURGI-i ASSURANCE

COMPANY, LTD. NO, 2, EDINBURGH

ASSURANCE COMPANY, L'1'I). N0. 3,

EXCESS INSURANCE COMPANY, L'1'D.,

INDEMNITY MARINE INSURANCL

COMPANY, LTD. T A/C, INSURANCE

COMPANY OF NORTH AMERICA, LA

RCUNION FRANCAISE S.A.

D'ASSURANCES ET DES

ItEASSURANCES, LA REUNION

FRA.NCAISE S.A. D'ASSURANCES ET

DES REASSUR-ANCES PL A/C,

PORT OF PORrI' ANGELES'

COMPLAIN`i' FOR DAMAGES AND

DECLARATORY JUDGMEN'1'

T E IE;NADi.f:[t LAW GROUPi>i,i,c

PACIfIC EiUIL.11ING

720 Third Avcuuc, Suitc 1400

SLA I`CLL:, WASHING'I 'ON 48104

206•621 1433

OR'.C'S COMPLAINT - I



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LII3ER I Y M UTUAL INSURANCE

COMPANY, NORTHERN ASSURANCE

COMPANY LTD., NORTI-IERN MARITIML

INSURANCE COM PA.NY, LTD., OCLAN

MARINL INSURANCE COMPANY, LTD.,

0C1;AN M ARINE INSURANCE

COMPANY, LTD. T A/C, ONEBEACON

INSURANCE COMPANY, PHOENIX

ASSURANC I: PUI3I.IC COM PANY LT D.,

PROVINCIAI., INSURANCE CO MPANY,

LTD., 'I'HRI:ADNErDLE INSURANCE

COMPANY , THE TRAVELERS

INDEMNITY COMPANY

The Port of Port Angeles (the "Port"), by and tlirougli its attorneys, by way of

complaint alleges as follows:

INTRODU TION

1

This is an action for (a) contract damages based on the defense and

indeninifieation provisions of the liability insurance policies sold by the defendants and/or

their predecessors in interest to the Port, sucll damages consisting of property damage

including environ>nental response costs irleurred by the Port in respond'zng to alleged

enviroiimental contamination at the MTA Sitc, K Ply Site, and West Hat•bor Site

(collectively "sites") and other related activities; (b) a declaratory judgment adjudicating

the i•espective rights, duties, and obligations of the parties under the liability insuranee

policies sold by the defendants or their predecessors to tlte Port; and (c) costs and

attorneys` fces incurred by tlYe

Port in bringing this action pursuant to additional provisions

of law.

TIIE P RTIES

2. The Port is a Washington municipal corporation in good standing with its

principal placc of busincss in 1'ort Angeles, Washington. The Port is the owner of

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T'1- C NADLL'R LAW GROUP ri-i,c

PACII7IC LiIJIL.UING

920 Ttkird Avenue Suite 1400

STsATTLIi, WASI-IINGTON 98104

POR'I''S CQZvIPLAINT - 2 06-621-1433



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ubstantial rcal property including property fronting on the Port AtigeIcs Harbor in

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lallam Cotlnty, Waslaington,

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hc defcndants ai-e insui•ance carriers, whicll at all times relevant to this

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ction were engagcd in the business of selling primaly, umbrella an.d/or excess liability

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nsurance polices.

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n consideration of substantial premiums paid by the Port, the defendants or

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heir predecessors issued prinlaly, umbrella and/or excess liability insurance policies to

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he Port. Ccrtain Underwriters at Lloyd's, Lonclon and Ccrtain London Market Insurers

9 LMI ) issued primaly, umbrella and/or excess liability policies to the Port from 1966

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hrougla 1988. General Accident Fire & Life Assurance issued primary, umbrella and/or

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xcess liability policies to the Port from May 16, 1961 to 1969. Travelers Indemnity

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olnpany ( 'f'ravelers ) issued prinlazy, umbrclla and/or excess liability policies to the

13 ort from 1969 to 1972. General Insurance Company of Anierica issued priinary,

14 . wnbrella and/or exeess liability policies to the Port fiom Januaiy 7, 1979 to 1982.

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n iliformation aiid belief, Liberty Muttlal Insurarlce Coinpany ( Liberty

16 utual ) is the successor in interest to General Insui

arlce Company of Anierica. On

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nformation and belief, Onel3eacon insurance company ( 4nel3eacon ) is the successor in

18 nterest to General Accident Fire and Life Assurance Corporation.

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xhibit A, attached hereto and incorporated by reference, sets forth the

20 acnes of the defendants presently known to the Port and, to the extent the Port has

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predecessors to the Port fi•om time to time, which are presently unlcnown to fihe 1'ort,

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xhibit A may be amended as additional applicable policies are discovered and as the

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urrently known states or countries of incorporation and the principal places of business

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re determined.

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IURISDICTION AND VENUE

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1 his Court lias suhject matter jurisdiction over this declaratoiy judgment

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ction under RC W 7.24.010, et seq. because a real and ,justiciable controversy exists.

8 uI•ther, this Court has.personal jurisdiction because the defendants or their predecessors

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ach sold insurance to the Port in Washington.

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. enue is proper in this Court pursuant to RCW 48.05.220 because a

11 ubstantial part of the events or omissions giving rise to the claims brought in this action

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ccurrcd in Clailam County, which is also the situs of the dainaged property that has giveli

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ise to tlie liability alleged herein.

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EIE POLICIES

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rom at least 1966, defcndants or their predccessors sold to the Port cel•tain

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rinlary, umbrella and/or excess liability insurance policies, including those policies set

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orth in I;xhibit T3, and possibly otliers ("Policies°). I;xhibit B, attached hereto and

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ncorporated herein by rcference, sets fortll the applicable policy nuxnbers and periods of

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overage foi

each defendant.

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I'he Port paid all premiums due and owing under the Policies and complied

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ith all applicable conditions of cacli of the Policies.

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HE ENVII20NMENTAL LIABILITIES

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1.

ertain environmental liabilities have been asserted against the Port (the

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Environmental Liabilities") by the federal and/or statc governments and\or other parties

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TI-il:?NnDL1;R LAW GROUI'hl1c

t'AC:II'ic 13U11.,DING

720 fhircl Avenite, Suite 1400

SI=A7'11.13, WASI-IING 1'ON 98104

PORT'S COMPLAINT - 4

06-621-1433



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collectively, the Environtnental Claimants ). These parties assert that the Port is liable

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or the invcstigation and remediation of property damage resulting froin environmental

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ontamination at the sites referred to by the Port as Marine Trades Area Site ( MTA

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ite ), tlie K Ply Site, and the Western Harbor Sedimcnts Site, located in Port Angelcs,

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Washington.

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2.

hc Environmental Claimants allege property damage caused by among

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thel• tliings, chemicals, minerals, waste, by-products and/or other substances (eollectively

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I-Iazardous Substances ) allegedly produced, generated, deposited or disposed on property

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wned or operated by the Port. The Environmental Claimants allege that the I-Iazardous

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ubstances have damaged or threatcn to damage the groundwater, sediments, surface

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aters, and/or natural resources, and that the actual or potential contaminatioti resulting

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i•ona the prescnce of and migration of Hazardous Substances at or near thc sites

may

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pl•esent an ilnlninent and substantial danger to the public health or welfare.

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3.

he Cnvironmental Claimants souglit and still seek to require the Port to

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nvestigate, monitor, survey, test and gather information to identify and evaluate the

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xistence of property damage including daniage to the environment and danger to the

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ublic hcaltli or welfare, and to remediate eiivironinental contaniination and property

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amage whicli was uncovered.

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4,

I'lie I;nvironmental Liabilities and the sums expended to date by the Port in

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ontlectlon Wlth the Erivlronmental Liabilities fall within the coverage of the Policies

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liich the defendants or their predcccssors sold to the Port.

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5.

he dcfendants brcached obligations that they undertook in the Policies by

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ailing to comply with Washington regulations regarding such matters, and by failing to

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illfill their duties to timely investigate the Port's claims, determine coverage and

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TE-IL NADLE,R LA W C;RCIUPrt.i.c

PACIPIC t3UtLDiNG

720 Tliird Ave nuc, suitc 1400

sLn 1`I LC, WAs1lING rON 98104


06-621-1433



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ndemnify t.he Port for ccllain expenses it lias incurred as a result of the Environmental

2 II Liabilities.

3 rFENDANTS LIABILITY FOR EXPENSES OF SUIT

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n aecordancc with the poliey terms and conditions, the Port notified the

5 efendants and/or their predecessors of claims with respect to certain insurance policics.

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7. n responsc to the Port's claim for its environtnental liabilities at the MTA

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ite, 'Travelers denied coverage. The MTA site was later divided into two sites, the MTA

8 ite and the K Ply site. Travelers has not Lnade a coverage determination with respect to

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he K Ply site. The retnaining defendants accepted the Port's tender of the defense of

its

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nvironmental liabilities at the MTA site and the K Ply site under reservations of rights,

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ncli+ding thc rights to deny coverage and to seel< reimbursement of payments made to or

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n the POrt's behalf. Despite being provided notice of the Port's claims more thaii twenty

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ears ago, these defendants have failed to make coverage deternlinations regarding their

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indemnity obligations with respect to the MTA and K Ply sites. In response to the Port's

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lairn fol• its environmental liabilities at the Wcstern Harbor site, all of the defendants

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ccepted the Port's tender of defense under reservations of rights, including the riglits to

17 cny coverage and to seek reinibursement of payments made to or on tiie Port's behalf

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lespite being provided notice of the Port's claims inore t11an three years ago, all of the

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efendants have failed to nlake coverage determinations regarding their indemnity

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bligations with respect to the Western 1-larbor site. All of the defendants have breached

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heir enhanced duty of good faith to their insured by failing to promptly conduct an

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dequate and reasonable investigatioli, by failing to niake a coverage determination, and by

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iving greater consideration to their own interests than those of their insured

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8.

he Port was foreed to bring this lawsuit to obtairl the benefits o£ its

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Tl IE NADL,GR LAW GROUPri,i.c

P AC IF IC I IUILDINC 3

720 9 Itird Avenue, Suile 1 400

SL•:nT i1.E, WASH1 NG rON 98104

206-621•1433

OR I''S COMPLAINT - 6



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nsurance policies issued by the dcfendants because the defendants breached their

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bligations to investigate, defend, and/or inderruiify the Port pursuant to the terms of the

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olicies.

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IRST CL IM FOR RELIrF

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Damages)

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1 he Port incol

porates the allegations of paragraplls 1 tlu•ough 18, as if fully

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et folrth herein.

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he Port was required to expend, and continues to bc required to expend

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ubstantial sums to respond to the Environmental Liabilities. I'he Port's response costs

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nclude, but are not limited to, the cost to investigate and respond to the )

nvironmental

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iabilities.

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he defendants assumed duties pursuant to the Policies to deferid the Port

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nd to indemnify it fol

certain costs and liability incurred by reason of the Environmental

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iabilities. By denying coverage, by failing to pay all of the Port's response costs, and/or

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y failing to make a coverage determination, the defendants llave breached these dtlties. ,

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FCOND CLAZM FO R RELIFF

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Declaratory ReIieQ

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2.

he Port incorporates the allegations of paragraphs I lhroug1121, as if fillly

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et forth herein.

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3.

he Port assei

ts that the defendants have obligations to defend and

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ndemnify the Port and to pay in full the costs which are being incurred and wliieh will

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ontinue to bc incurred by the Port in connection with the Environmental Liabilities. By

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ts coverage denial witli respect to the M1'A site, and by its failure to malce a coverage

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eterminatiolt with respect to thc K Ply and Western Harbor site, Travelers denies that it is

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PHE NAI)1.ER L,AW GROUPi>u.c

i'ACII'IC [3UIi.DING

720 1 hird Avenue, Suile 1400

SI.iATTLE, VdASHING'rolJ 98104


06-621-1433



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1 I bound by the obligations asserted by the Port. By their failure to make a covel•age

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etermination, the remaining dcfendants also deny that they are bound by the obligations

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sserted by the Port with respect to all the sites.

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ccordingly, an actual and justiciable controversy presently exists between

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he Port and the defendants as to the defendants obligations to defend and to pay the costs

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rising out of the Environmental Liabilities.

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IIIRD CLAIM FOR RELIEF

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Attoriiey Fees)

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5.

he Port incorporates thc allegations of paragraphs I through 24, as if fully

10 et forth herein.

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6.

s a consequence of the Port having to bring suit to obtain the benefits of its

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nsurance coverage under the Policies, the defendants are liable to thc Port for its

13 easoiiable attorney fees and costs in bringing this suit.

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EOUEST FOR RELIEF

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hereforc, the Port of Port Angeles requests relief as follows:

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or judgnient in favor of the Port and against the defendants, jointly and

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everally, awarding damages in an alnount sufficient to conlpensate the Port for alI costs,

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ees, and expecises incurred in responding to and defending the Environmental Liabilities

19 liroiugli the date of tl•ial in this action.

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or a deciaratoiy judgment confirming the defendants joint and several

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bligafiion to defeiid and indemnify the Port against all filture claims, costs, daniages, and

22 dverse judgments and awards arising fi•om the Lnvironmental Liabilities.

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. or a judgment in favor of the Port and against the defendants, jointly and

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everally, for attorneys fees, expenses and costs incurred in this action; for prejudgment

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TI-16 NAULI:R LAW GRO tJPt11.LC

PACIFIC RUfLI)ING

720 1 hird Avcnue, Suito 1400

SGIATTLE, WASf I ING rON 98104

206-621-1433

ORT S COMPLAINT - 8



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and post judgment interest on all sulns awarded the Port; and for such other and further

relief as may be allowed by any provision of law or that this Court deems just and proper.

t

DATED this

ay of January, 2015.

I I-IE NAllLL;R LAW GROL JP PL.I_.0

I V j a r k

N.

Nacller,

W NliA No. 1zs 126

Liberty Waters, WSIIn No. 37034

John S. Dolese, WSB A N o. 1801 5, of Counsel

Attorneys for Plaintiff, Port of Port A ngeles

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rt-iENADL,ER LAW GROUPni.r.

I ACII IC Q UIL.DING

720 I hird Avenue, S uite 1400

SI:AT 1 LC, WASII INGTON 98104

PORT S COMPLAINT - 9

06-621-1433



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EXHIBIT

Place of

rirtcipal Place of

Defendant Iixcorporation

usiness

13ritisli Law Insurancc Company, Ltd.

Certain Underwriters at Lloyd's, London

Commercial Union Assurance Company

England

ondon, England

P.L.C.

Continental Assurance of London, Ltd.

England

ondon, England

r;dinburgh Assurance Company, Ltd.

rdinburgh Assurance Coinpany, Ltd. No. 2

I?d1nbLlrgh Assurancc Company Ltd. No. 3

Excess Insurance Cornpany, Ltd.

England ondon, England

Indemnity Marine Insurance Company, Ltd.

T

A/C

lnsuranee Company of Nortll America

La Reunion Francaise S.A. d'Assurances et

Erance

aris, France

des Reassurances

La Reunion Francaise S.A. d'Assurances et

des Reassurances PL A/C

Liberty Mutual Insurance Company

I3oston

over, New

Massachusetts

-iampshire

Northern Assurance Cotnpany Ltd.

Northern Maritime Insurance Coinpany, Ltd.

Occan Marine Insurance Company, Ltd.

Ocean Marine Insurance Coinpany, Ltd. T

A/C

OneBcacon Insurance Conipany

-Iarrisburg

anton,

Pennsylvania

assachusetts

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Defendant

Plioenix Assurance Public Coinpany Ltd.

Provincial Insurancc Company, Ltd.

7 llreadneedle Insurance Company

1 he Travelers Indennnity Com pany

Place of rincipal Place of

Incorporation asiness

ITartford,

artford,

Connecticut

onnecticut

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EXI IIBIT B

Port of Port Angeles Primlr y Covera ;e

Policy/ Cer•tificate No. Effective Dates

Insirrer

CG 366433 5

/

1 6/1961-5/16 1

962

General Accident I ire and

Life Assurance Company

CG 366712 5 1 6

962-5/16/1963

Gencral Accident Pire and


CG 384259 5/16/1963-5/16/1964

General Accident Fire and


CG 370877

5/16/1964-5/16/1965 General Accident Fire and


CG 451052 5

6/1965-5/16/1966

General Accident i ire and

Life Assuranee Company

CG 450793

5/16/1966-5/16/1967

General Accident rire and

Life Assurance Conipany

GLA 36-728-14

5/16/1967-5/16/1968 General Aecident Pire and

Life Assuranee Company

GLA 37-758-04 5

6/1968-

5

1

6 1969

General Accident rire and

Life Assuranee Coinpany

650-2689023-IND

11/1/1972-11/1/1973

The Travelers Indeintlity

Company

650-188A227-9-IND

1 l/1/1973-1 i/1/1974 The Travelers Indemnity

Coinpany

650-188A227-9-IND-74

11/1/1974-11/1/1975

The Travelers Indemnity

Company

650-188A227-9-IND-78

11/1/1978-11/1/1979

The Travelers Indeinnity

Company

Cl 922901

I/1/1979-1/1/1982

General Insurance

Company of Ainerica

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MC 5984

/1/1982-t/1/1984

ertain Underwriters at

Lloyd s, London

MC 6023

/1/1984-1/1/1988

ertain Underwriters at

Lloyd s, London

Pox•t of Port Aiiiieles Excess Coveragc

Policy/ Cei tificate No. ffective Dates

Insui•er

ST 13938

2/31/1966-12/31/1969

Certain Undex

writers at Lloyd s,

London and Certain London

Market Companies

ST 13937 2/31/1966-12/31/1969

Certain Underwriters at Lloyd s,


Market Companies

S I' 13934

1/18/1966-12/31/1966



Market Companies

CtIP-189A750-A

l./1/1973-11/

/

974

'I'he Travelers Indezn.nity

Company

CUP-189A750-8-74

1/1/1974-11/1/1975

The Travelers Indernnity

Cornpany

JSL 1025

2/31/1977-12/31/1979



Maricet Companies

JSL1070

2/31/1979-12/31/1980


London and Certain I,ondon

Market Companics

JS1_. 1091

2/31/1980-12/31/1983

Ccrtain Underwriters at Lloyd s,

I,ondon and Certain London

Market Companies

JSL 1142

2/31/1983-12/31/1986


London and Certain L.ondon

Market Coanpanies

13-2



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CERTAIN UNDERWRITERS AT

LLOYD'S, LONDON AND CERTAIN

LONDON MARKET COMPANIES,

BRITISH LAW INSURANCE

COMPANY, LTD., COMMERCIAL

UNION ASSURANCE COMPANY

P.L.C., CONTINENTAL ASSURANCE

OF LONDON, LTD., EDINBURGH

ASSURANCE COMPANY, LTD.,

EDINBURGH ASSURANCE

COMPANY, LTD. NO. 2, EDINBURGH

ASSURANCE COMPANY, LTD. NO.

3, EXCESS INSURANCE COMPANY,

LTD., INDEMNITY MARINE

INSURANCE COMPANY, LTD. T

A/C, INSURANCE COMPANY OF

NORTH AMERICA, LA REUNION

FRANCAISE S.A. D'ASSURANCES

ET DES REASSURANCES, LA

REUNION FRANCAISE S.A.

D'ASSURANCES ET DES

REASSURANCES PL A/C, LIBERTY

MUTUAL INSURANCE COMPANY,

DECLARATION REGARDING EMAIL TRANSMISSION

Re: PORT OF PORT ANGELES COMPLAINT FOR

DAMAGES AND DECLARATORY JUDGMENT

NO.

DECLARATION REGARDING

E MAIL TRANSMISSION

GR 17(a)(2)

PLATT IRWIN LAW FIRM

403 South Peabody S t.

Port Angeles, WA 98362

360) 457-3327

SUPERIOR COURT OF WASHINGTON FOR CLALLAM COUNTY

THE PORT OF PORT ANGELES,


Plaintiff,



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NORTHERN ASSURANCE

COMPANY LTD. NORTHERN

MARITIME INSURANCE COM PANY

LTD. OCEAN MARINE INSURANCE

COMPANY LTD. OCEAN MARINE

INSURANCE COMPANY LTD. T A/C

ONEBEACONINSURANCE

COMPANY PHOENIX ASSURANCE

PUBLIC COMPANY LTD.

PROVINCIAL INSURANCE

COMPANY LTD. THREADNEEDLE

INSURANCE COMPANY THE

TRAVELERS INDEMNITY

COMPANY

The undersigned SIMON BARNHART declares and states as follows:

1

On the 12`

day of January 201 5 I received the PORT OF PORT

ANGELES COMPLAINT FOR DAMAGES AND DECLARATORY JUDGMENT,

via email transmission signed by M ark S. Nadler.

2.

I have examined the document to which this Declaration is attached and it

consists of 1 5 pages including this Declaration.

3.

It is complete and legible.

I declare under penalty of perjury under the laws of the State of W ashington that

the foregoing is true and correct.

DATED this 12 t

day of January 2015 at Port Angeles Washington.

SIMON BARNHART

DECLARATION REGARD ING EMAIL TRANSMISSION

Re: PORT OF PORT ANGELES COMPLAINT FOR

DAMAGES AND DECLARATORY JUDGMENT

PLATT IRWIN LAW

IRM

403 South Peabody St.

Port Angeles, WA 98362

(360) 457-3327



17/33


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PFliEIVED

F £ 8 2 7 2 1 5

INSURANCE

C O M M f S S IO N E R

IN THE SUPERIOR COURT OF TIIE STATE OF WASHINGTON

IN AND FOR TIIE COUNTY OF CLALLAM

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'1'HE PORT OF PORT ANGELES,


Plaintiff,

V

CERTAIN tJNDF..,RWRITERS AT

LLOYD'S, LONDON, ASSICURAZIONI

GENERALI S.P.A., BALOISE

INSURANCE COMPANY, LTD., BRITISI

LAW INSURANCE COMPANY, LTD.,

BRITISII LAW INSURANCE COMPANY

L'TD. NO. 2 A/C, COMMERCIAL UNION

COMMERCIAL UNION ASSURANCE

COMPANY P.L.C., CONTINENTAL

ASSURANCI_; OF LONDON, LTD.,

EDINBURGH ASSURANCE COMPANY,

LTD., EDINBURGH ASSURANCE

COMPANY, LTD. NO. 2, EDINBtJRGH

ASSURANCE COMPANY, LTD, NO. 3,

EXCESS INSURANCE COMPANY, LTD.

INDEMNITY MARINE ASSURANCE

COMPANY, I.,TD. T A/C, INDEMNITY

MARINE INSURANCE COMPANY, LTD

T A/C, INSURANCE COMPANY OF

NORTI-I

NO. 15-2-00027-9

PORT OF PORT ANGELES' FIRST

AMENDED COMPLAINT FOR

DAMAGES AND DECLARATORY

JUDGMENT

Tl-IL' NADLLR LAW GRUUPrt.l.c

Pacific 13uilding

720 Ttiird Avenue, Sttite 1400

Scaltic, Washingto» 98104

206-621-1433

Iwitlers(~ )nad I erlaivgrou p, com

ORT'S FIRST AMENDED COMPLAINT - 1



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AMERICA, LA REUNION FRANCAISE

S.A. D'ASSURANCES ET DES

REASSURANCES, LA REUNION

FRANCAISE S.A. D'ASSURANCES ET

DES REASSURANCES PL A/C,

LIBERTY MUTUAL INSURANCE

COMPANY, NATIONAL INDEMNITY

COMPANY, NIPPON FIRE AND

MARINE INSURANCE COMPANY

(UK) W. LTD, NORTHERN

ASSURANCE COM PANY LTD.,

NORTHERN ASSURANCE CO. LTD.

NO. 6 A/C, NORTH ERN MA RITIME

INSURANCE COMPANY, LTD.,

OCEAN MA RINE INSURANCE

COMPANY, LTD., OCEAN MARINE

INSURANCE COMPAN Y, LTD. T

A/C, ONEBEACON INSURANCE

COMPANY, PHOENIX ASSURANCE

PLC, PHOENIX ASSURANCE PUBLIC

COMPANY LTD., PROVINCIAL

INSURANCE COM PANY, LTD., RIVER

THAM ES INSURANCE CO. LTD.,

SKANDIA U.K. INSURANCE PLC T

A/C, SCOTTISH LION INSURANCE

COMPANY, LTD., THREADNEEDLE

INSURANCE COMPANY,

THREADNEEDLEINSURANCE

COMPANY, LTD., THE TRAVELERS

INDEMNITY COMPANY,

WUTTEMBERGISCHE A.W. A/C,

YASUDA FIRE & M ARIE INSURANCE

CO. (UK) LTD., YASUD A FIRE &

MARINE INSURANCE COMPANY

(UK) LTD. T A/C,

Defendants

The Port of Port Angeles (the Port ), by way of complaint alleges as follows:

INTRODU TION

1. his is an environm ental insurance coverage action. Plaintiff the Port

seeks:

a.

declaration of the rights, duties, and liabilities of the parties under

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rimary, excess, and/or umbrella liability insurance policies issued by the defendants or

2 heir predecessors or reinsureds with respect to certain environmental liabilities incurred

3

y the Port for property damages in the form of environmental contamination and/or

4

lleged damage to natural resources;

5 .

amages for breach of defendants' contractual obligations under the

6

11 Policies with respect to certain environmental liabilities;

7

amages for bad faith, and Consumer Protection Act violations;

8 .

osts and attorneys' fees incurred by the Port in bringing this action and

9 ~I pursuant to additional provisions of law.

1

HE PARTIES

1 1

.

he Port is a Washington municipal corporation in good standing with its

12

rincipal place of business in Port Angeles, Washington. The Port is the owner and/or

13

essee of substantial real property including property fronting on the Port Angeles Harbor

14

n Clallam County, Washington.

15

.

he defendants are insurance carriers and/or successors for same, which at

16

ll times relevant to this action were engaged in the business of selling or managing

17

laims for primary, umbrella and/or excess liability insurance polices. Upon information

18

nd belief, none of the defendants are residents of or are domiciled within the state of

19

ashington, but all have transacted business within the state.

2

.

efendant The Travelers Indemnity Company ( Travelers ) is a

21

orporation organized under the laws of the State of Connecticut, with its principal place

22

f business in Hartford, Connecticut. Travelers is, and at all times relevant to this

23

omplaint was, an authorized insurer in the State of Washington.

24

efendant Liberty Mutual Insurance Company ( Liberty Mutual ) is a

25

orporation organized under the laws of the State of Massachusetts, with its principal

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1

lace of business in Dover, New Hampshire. Upon information and belief, Liberty

2 utual is the successor-in-interest to General Insurance Company of America. Liberty

3

utual is, and at all times relevant to this Complaint was, an authorized insurer in the

4

tate of Washington.

5

.

efendant OneBeacon Insurance Company ( OneBeacon ) is a

6

orporation organized under the laws of the State of Pennsylvania, with its principal

7

lace of business in Canton, Massachusetts. Upon information and belief, OneBeacon is

8

he successor-in-interest to General Accident Fire and Life Assurance Company.

9 .

efendants Certain Underwriters at Lloyd's, London and Certain London

10 arket Companies (together London Market Insurers or LMI ) underwrote the

11

ondon Market Insurance policies at issue in this case. Exhibit A, attached hereto and

12 ncorporated by reference, sets forth the names of the LMI defendants presently known

13

o the Port and, to the extent the Port has knowledge, their states or countries of

14 ncorporation, and principal places of business. There may be other applicable policies

15

hich have been issued by the LMI defendants to the Port from time to time, which are

16

resently unknown to the Port. Exhibit A may be amended as additional applicable

17

olicies are discovered and as the currently known states or countries of incorporation

18

nd the principal places of business are determined.

19

.

efendant National Indemnity Company ( NICO ) is

a

corporation

20

rganized under the laws of the State of Nebraska, with its principal place of business in

21

maha, Nebraska. NICO is, and at all times relevant to this Complaint was, an

22

uthorized insurer in the State of Washington. Upon information and belief, NICO is the

23

ssumption reinsurer of and/or the successor-in-interest to certain of the LMI defendants,

24

ncluding Certain Underwriters at Lloyd's, London, with respect to the London Market

25

nsurance policies at issue in this case.

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1 .

efendants Certain Underwriters at Lloyd's, London are comprised of the

2

ndividuals, referred to as Names and organized into syndicates, who underwrote

3

ortions of, or all of, one or more of the London Market insurance policies at issue in

4 his case. As discussed in more detail below, Equitas reinsured the liability of those

5

yndicates and Names, and under English law, Equitas has been statutorily novated for

6

he syndicates and Names with respect to the London Market insurance policies at issue

7

n this case. NICO is the assumption reinsurer of Equitas.

8

0.

n consideration of substantial premiums paid by the Port, the defendants

9

r their predecessors and/or reinsureds issued primary, umbrella and/or excess liability

10

nsurance policies to the Port. General Accident Fire Life Assurance issued primary,

11

mbrella and/or excess liability policies to the Port from prior to May 16, 1961 to 1969.

12

he LMI defendants issued primary, umbrella and/or excess liability policies to the Port

13

rom at least 1966 through 1988. Travelers issued primary, umbrella and/or excess

14

iability policies to the Port from at least 1972 to 1978. General Insurance Company of

15

merica issued primary, umbrella and/or excess liability policies to the Port from 1979

16 to 1982.

17

1.

ICO is liable to the Port for all benefits the Port is entitled to from certain

18

f the LMI defendants under the London Market policies at issue in this case. On

19

nformation and belief, NICO is also liable to the Port along with LMI for the bad faith

20

laims handling of the Port's claims.

2

URISDICTION ND VENUE

22 2.

his Court has subject matter jurisdiction pursuant to RCW 2.08.010 and

23

CW 7.24.010,

et seq

Further, the Court has subject matter jurisdiction over this

24

eclaratory judgment action because a real and justiciable controversy exists.

25

3.

his Court has personal jurisdiction because each of the defendants is an

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1

uthorized insurer in the State of Washington and/or sold insurance to the Port in

2

ashington, or managed or reinsured policies sold to the Port in Washington.

3 4

Venue is proper in this Court pursuant to RCW 48.05.220, because a

4

ubstantial part of the events or omissions giving rise to the claims brought in this action

5

ccurred in Clallam County, which is also the situs of the damaged property that has

6

iven rise to the liability alleged herein.

7

URY DEMAND

8

5.

he Port hereby demands pursuant to CR 38(b), trial by jury of twelve of

9

ll issues so triable in this action.

10

HE PO LICIES

11

6.

rom prior to 1961, defendants or their predecessors or reinsureds sold to

12

he Port certain primary, umbrella and/or excess liability insurance policies, including

13

hose policies set forth in Exhibit B, and possibly others ( Policies ). The Port's claims

14

in this matter extend to any and all such additional policies as may become known to the

15

ort during the course of this litigation.

16 7

The Port paid all premiums due and owing under the Policies and complied

17

ith all applicable conditions of each of the Policies, including all conditions precedent

18

o coverage, if any.

19

HE ASSUMPTION REINSURANCE OF THE PORT S LONDON M ARKET

20

OLICIES

21

8. Equitas has been working since 1996 to achieve finality for the Names

22

Certain Underwriters at Lloyd's, London) by extinguishing their long tail liability under

23

he 1992 and prior non-life liability insurance they underwrote ( Business ).

24

9. By written agreement dated September 3, 1996 ( Reinsurance and Run-off

25

ontract ), Equitas Reinsurance Limited ( ERL ) reinsured the Names by assuming all

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1

f the Names' rights and obligations under the policies and undertaking to administer

2 II the Business.

3

0. By separate written agreement dated September 3, 1996 ( Retrocession

4

greement ), ERL retroceded the liability for the reinsurance and administration of the

5

un-off Names' Business to Equitas Limited ( EL ) and EL assumed all of the Names'

6

ights and obligations under the policies and undertook to administer the Business and

7 Run-off.

8

1. By yet another separate written agreement dated November 10, 2006

9 Retrocession and Run-off Agreement ) EL retroceded its liability for the reinsurance of

10 RL and the Names, along with the obligation to administer the run-off of the Names'

11

usiness to NICO, and NICO assumed all of the rights and obligations under the

12

olicies and undertook to administer the Business and Run-off, all of which was subject

13

o the English Court's approval of the Part VII Transfer and certain other conditions, all

14

f which have come to pass.

15

2. The November 10, 2006 Retrocession and Run-off Agreement also

16

rovided that EL delegated responsibility for the administration of the run-off of the

17

ames' Business to Equitas Management Services Limited ( EMSL ) subject to the

18

nglish Court's approval of the Part VII Transfer and certain other conditions, again all

19 f which have come to pass. Equitas Holdings Limited ( EHL ) the owner of EL, ERL

20 nd EMSL, promised in the same agreement to transfer full ownership of EMSL to

21 ICO subject to the same conditions which have come to pass. The agreement required

22

ICO to change the name of EMSL to some different name which does not include the

23

ord Equitas . NICO changed the name of EMSL to Resolute Management Services

24 Limited.

25 3. urrently, NICO and/or Equitas have reinsured, indemnified, and assumed

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all responsibilities of the N ames to deal directly with insureds, to service and administer

the contracts of insurance, and to adjust and pay the insured's claims for all benefits

under the insured's policies.

24.

Equitas Limited has publicly proclaimed to the Names' policyholders (of

which the Port of Port Angeles is one such policyholder), that you will have no further

claims, as a matter of English law, against the Nam es who underw rote your policies at

Lloyd's. ... Instead of your claims against the Nam es you w ill have claims against an

FSA authorised company... Similarly, Equitas Holdings Limited has proclaimed to the

Nam es that ... no Nam e has any further liability whatsoever, under English law, in

respect of 1992 and prior non-life Lloyd's liabilities. ... In the unlikely event that

Equitas becom es insolvent, no policyholder with an unsatisfied claim w ill be able to

enforce that claim in any court of the EEA to recover it from any Name. ... Now that we

have achieved finality under English law, [Equitas] believe[s] `the long day's task is

done......

25.

Since at least 2009, NICO's wholly owned subsidiary (Resolute

Management) has serviced portions or all of the Port's LMI insurance policies and

served as the primary point of contact for matters related to the Port's environmental

insurance claims against Certain Underwriters at Lloyd's, London.

26.

By operation of the foregoing, NICO and/or Equitas are the assumption

reinsurers of the Port (or are otherwise successors in interest to the Names and

Syndicates that underwrote the Port's policies), and thus are liable to the Port for all

benefits the Port is entitled to from defendants Certain Underwriters at Lloyd's, London,

under the Port's London Market insurance policies at issue in this case.

THE UNDERLYING ENVIRONMENT L LI BILITIES

27.

The P ort has incurred, and w ill continue to incur, liability for third party

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property damag e to surface water, groundwater, sediments, and/or alleged dam age to

2 atural resources as a result of historical operations and the resulting environm ental

3

ontamination at the Marine Trades Area ( MTA ) Site, the K Ply Site, and the Western

4

ort Ang eles Harbo r ( Harb or ) Site (together referred to as the Sites ).

5

8.

he Port s environmental liabilities at the Sites arise out of occurrences or

6 ccidents that took place du ring the policy periods for each o f the Policies.

7

9. Third party property damage, in the form of alleged damage to natural

8

esources as well as contamination of groundwater, surface water, and/or sediments

9

ccurred during the policy pe riods for each of the Policies.

10

0.

he Port neither expected n or intended the releases or the resulting

11 roperty dam age at issue prior to the inception of the Policies.

12

1.

he defendants breached obligations that they undertook in the Policies by

13

ailing to comply with Washington regulations regarding such matters, by failing to -

14 romptly investigate the Port's claims, by failing to make coverage determinations, by

15

ailing to fulfill their duties to defend and /or indemn ify the Port for certain expenses it

16 as incurred as a result of its environm ental liabilities at the Sites, and by generally

17

lacing their own economic interests ahead of those of the Port, their insured.

18

EFENDANTS LIABILITY FOR EXPENSES OF SUIT

19

2.

n accordance with the policy terms and conditions, the Port notified the

20

efendants and/or their predecessors or reinsureds of the Port s claims with respect to the

21

TA site (which was later divided into two sites: the MTA Site and the K P ly Site) in

22

993. Defendant Travelers denied coverage for the Port s environmental liabilities at the

23

TA site. Defendant Travelers has not made a coverage determination for the Port s

24 nvironmental liabilities at the K Ply site. Defendants OneBeacon, Liberty Mutual, and

25

MI accepted the Port s tender of defense for the MTA and K Ply sites under

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27/33

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reservations of rights, including the rights to deny coverage and seek reimbursement of

payments (including those defendants determine to be indemnity payments) made to or

on behalf of the Port. Defendants OneBeacon, Liberty Mutual, and LMI have failed to

make a determination regarding their duty to indemnify the Port under their respective

policies. Despite receiving notice of the Port s claims for the MTA site more than twenty

years ago, defendants OneBeacon, Liberty Mutual, and LMI have failed to make a

coverage determination regarding their duty to indemnify the Port under their respective

policies.

33.

In accordance with the policy terms and conditions, the Port notified the

defendants and/or their predecessors or reinsureds of the Port s claims with respect to the

Harbor Site by 2011. Defendants Travelers, OneBeacon, Liberty Mutual, and LMI

accepted the Port s tender of defense for the Harbor Site under reservations of rights,

including the rights to deny coverage and seek reimbursement of payments (including

those defendants determine to be indemnity payments) made to or on behalf of the Port.

Despite receiving notice of the Port s claims for the Harbor site more than three years

ago, defendants Travelers, OneBeacon, Liberty Mutual, and LMI have failed to make a

determination regarding their duty to indemnify the Port under their respective policies.

34.

After agreeing to defend the Port under reservations of rights, the

defendants have delayed and continue to delay making coverage determinations,

allowing the passage of time to potentially prejudice the Port s ability to prove elements

of coverage at trial.

35.

Defendants have breached their enhanced duty of good faith to their

insured by failing to promptly conduct an adequate and reasonable investigation and by

giving greater consideration to their own interests than those of their insured.

36.

Over the course of handling the Port s claims, the defendants violated

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1

ther standards provided for in WAC 284-30, et seq.

which sets forth Washington s.

2

nfair claims settlement practices regulations.

3

7. The Port has been harmed by the defendants bad faith actions and

4 nactions in handling the Port s claims. Among other things, the Port has incurred

5

ttorney fees to address the wrongful actions and to bring this lawsuit to obtain the

6

enefits of its insurance policies because of the defendants failure to respond to,

7

nvestigate, and/or make coverage determinations in response to the Port s claims.

8 8.

he Port was forced to bring this lawsuit to obtain the benefits of its

9

nsurance policies issued by the defendants or their predecessors and/or reinsureds

10

ecause the defendants breached their obligations to investigate, defend, and/or

11

ndemnify the Port pursuant to the terms of the Policies.

12

IRST CLAIM FOR RELIEF

13

Damages)

14

9. he Port incorporates the allegations of the above paragraphs as if fully set

15 I forth herein.

16

0. The Port was required to expend, and continues to be required to expend

17

ubstantial sums arising from its environmental liabilities at the Sites. The Port s

18

esponse costs include, but are not limited to, the cost to investigate and remediate the

19 ontaminated groundwater, surface water and/or sediments, and to investigate and

20 espond to claims for alleged natural resource damages.

21

1.

he defendants and/or their predecessors or reinsureds assumed duties

22

pursuant to the Policies to defend the Port and to indemnify it for certain costs and

23

xpenses arising from the Port s environmental liabilities at the Sites. These defendants

24

ave breached these duties.

25

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ORT S FIRST AMENDED COMPLAINT - 11



29/33

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SECOND CLAIM FOR RELIEF

Declaratory Relief)

42.

The Port incorporates the allegations of the above paragraphs as if fully set

II forth herein.

43.

The Port asserts that the defendants have obligations to defend and

indemnify the Port and to pay in full the costs which are being incurred and which will

continue to be incurred by the Port in connection with its environmental liabilities at the

Sites. By either explicitly denying coverage or by failing to make coverage

determinations, the defendants deny that they are bound by the obligations asserted by

the Port.

44.

Accordingly, an actual and justiciable controversy presently exists between

the Port and the defendants as to the defendants obligations to defend and indemnify the

Port for all costs arising out of its environmental liabilities at the Sites.

THIRD CLAIM FOR RELIEF

Bad Faith)

45.

The Port incorporates the allegations of the above paragraphs as if fully set

I forth herein.

46.

Under Washington law, an insurer must fulfill an enhanced obligation to

the insured as part of its duty of good faith. Insurers have broad obligations of fair

dealing and a responsibility to give due consideration to the insured s interests in all

matters. Defendants were obliged (a) to promptly conduct a thorough investigation and

to inform the Port of all developments relevant to claims of coverage, (b) to make a final

coverage determination, and (c) to refrain from actions demonstrating a greater concern

for their interests than the interests of the Port, their insured. Defendants breached their

enhanced duties of good faith by the actions and inactions alleged above.


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1

7. Defendants bad faith conduct has proximately caused damage to the Port

2

n an amount to be proven at trial. The Port is further entitled to costs and attorneys fees

3 xpended in seeking to compel defendants to provide the full benefit of the insurance

4 policies.

5 OURTH CLAIM FOR RELIEF

6 Consumer Protection Act Violations)

7 8.

he Port incorporates the allegations of the above paragraphs as if fully set

8 II forth herein.

9

9. n information and belief, the defendants, their predecessors, and/ or their

10

gents have engaged in multiple unfair and deceptive acts including without limitation

11

ne or more of the following: (1) Failing to adopt and implement reasonable standards

12

or the prompt investigation of claims; (2) Failing to affirm or deny coverage of claims

13

ithin a reasonable time; (3) Failing to complete the investigation of the Port s claims

14

ithin thirty days after notification of the claims; (4) Failing to make a coverage

15

etermination in writing within fifteen working days after receipt by the insurer of fully

16

ompleted and executed proofs of loss; (5) Failing to commence an investigation within

17

ifteen days into their records, to determine the issuance, and relevant terms and

18

onditions of the lost policies; (6) Failing to provide to the Port facts known or

19

iscovered during an investigation, including the identity of any witnesses with

20

nowledge of facts related to the issuance or existence of lost policies; (7) Failing to

21

rovide the Port with copies of documents establishing facts related to the lost policies;

22

8) Failing to commence investigation of an environmental claim within fifteen working

23 ays after receipt of a notice of an environmental claim; (9) Failing to cooperate with

24

he Port in the investigation of the environmental claims at issue in this litigation; (10)

25 ailing to make payments, under their duty to defend, for costs reasonably incurred in an


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1

nvestigation to determine the source of contamination, the type of contamination, and

2

he extent of the contamination; and (11) such conduct as shall appear through discovery

3 I and/or be proven at trial.

4

0.

he actions and/or inactions of defendants as alleged above constitute bad

5 I faith and unfair and deceptive business practices which were committed in the conduct

6 I of trade or commerce.

7 1.

he defendants are engaged in a business which affects the public interest

8

nd their actions occurred in the conduct of trade or commerce.

9

2. Defendants actions are prohibited by RCW 48.30.010, WAC 284-30-330,

10 t. seq.

and WAC 284-30-930,

et seq.

and are per se violations of the Washington

11

onsumer Protection Act, RCW 19.86.

12

3.

efendants actions have a public interest impact because they violate

13

tatutes and regulations containing legislative declaration of public interest impact and

14

ecause defendants actions were conducted in the course of their business as part of a

15

attern and practice that have and will be repeated in adjusting other insurance claims,

16

hereby affecting numerous insureds.

17

4.

efendants wrongful conduct has caused injury to the Port in its business

18 nd property and has hindered its ability to defend itself adequately against the statutory

19 environmental liabilities.

20 5.

efendants are liable for actual damages in an amount to be proven at trial;

21

he costs of this litigation, including attorneys fees; and exemplary damages to the extent

22 rovided by RCW 19.86.090.

23

IFTH CLAIM FOR RELIEF

24

Attorney Fees)

25

6.

he Port incorporates the allegations of the above paragraphs as if fully set

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1 II forth herein.

2

7. As a consequence of the Port having to bring suit to obtain the benefits of

3

ts insurance coverage under the Policies, the defendants are liable to the Port for the

4

ttorney fees and costs the Port incurred in bringing this suit and any petition for further

5 elief to enforce the orders and judgments entered during this action.

6

EQUEST FOR RELIEF

7 herefore, the Port of Port Angeles requests relief as follows:

8

8.

or judgment in favor of the Port and against the defendants, jointly and

9

everally, awarding damages in an amount sufficient to compensate the Port for all costs,

10

ees, and expenses incurred in responding to and defending the environmental liabilities

11 t the Sites through the date of trial in this action.

12

9.

or a declaratory judgment confirming the defendants joint and several

13

bligation to defend and indemnify the Port against all future claims, costs, damages, and

14 adverse judgments and awards arising from the environmental liabilities at the Sites.

15 0.

or a judgment in favor of the Port and against the defendants, jointly and

16

everally for the Port s damages caused by bad faith conduct in an amount to be proven

17 t trial;

18

1.

or a judgment in favor of the Port and against the defendants, jointly and

19

everally for exemplary damages to the extent provided by RCW 19.86.090;

20

2. For a judgment in favor of the Port and against the defendants, jointly and

21

everally, for attorneys fees, expenses and costs incurred in this action as allowed under

22 lympic Steamship

the Consumer Protection Act, and other applicable law;

23 3.

or prejudgment and post judgment interest on all sums awarded the Port;

4 and

25

4.

or such other and further relief as may be allowed by any provision of law

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or that this Court deems just and prop er.

DAT ED this

day of February 2015.


MarkS. Nadler, WSBA No.

8 26

eWaters, WSBA No. 37034

John . Dolese, WSBA No. 18015, of Counsel

Attorney s for Plaintiff Port of Port Angeles

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THE PORT OF PORT ANGELES v. CERTAIN UNDERWRITERS AT LLOYD'S LONDON et al complaint

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