PURMS

[ Log In ]

 

COMMERCIAL GENERAL LIABILITY COVERAGE

 

FOR THE

 

PURMS JOINT SELF-INSURANCE AGREEMENT

 

Amended and Restated as of December 7, 2001

 

TABLE OF CONTENTS

                                                                                                                                                    

1.     Definitions for Commercial General Liability Coverage. 2

2.     Insuring Agreement and Conditions for CGL Coverage. 2

2.1.      Coverage for Liability Claims Arising out of an Occurrence. 2

2.2.      Liability Coverage Limit 2

2.3.      Deductible. 3

2.4.      Coverage Qualifications. 3

2.5.      Risks Which Must be Pre-Approved by the Fund as a Condition Precedent to Liability Coverage. 4

2.6.      Conditional Pre-Approval in Interim During Pre-Approval 4

2.7       Other Insurance and Third Party Indemnifications. 5

2.8       Separation of Insureds with Respect to Liability Claims Asserted Among Members and Single Liability Coverage Limit 7

2.9       Board's Authority to Establish the Number of Occurrences Involved in a Covered Liability Claim.. 7

3      Exclusions for CGL Coverage. 7

3.1       Employee Claims subject to Limiting Statutes. 7

3.2       Employee Claims for Personal Injuries. 8

3.3       Employee Claims re Employment Relationship. 8

3.4       Unsatisfied Coverage Qualifications. 8

3.5       Independent Contractors that are not Agents. 8

3.6       Unapproved Professional Independent Contractors Who may be Agents. 9

3.8       Intentional or Reckless Injury. 9

3.9       Unlawful Activities/Good Faith Exception. 9

3.10     Illegal Profits. 10

3.11     Illegal Remuneration. 10

3.12     Fines and Penalties. 10

3.13     Breach of Contract 10

3.14     Owned, Occupied or Rental Property. 10

3.15     Loaned Equipment 10

3.16     Unapproved Extraordinary Activities. 11

3.17     Unapproved Risks. 11

3.18     Loss of Use of Non-Injured Tangible Property. 11

3.19     Damage to Member's Products. 12

3.20     Damage to Work for Member 12

3.21     Product Recall 12

3.22     Nuclear Materials. 12

3.23     Large Watercraft 12

3.24     Claims Outside Member’s Business or Community Activities. 12

3.25     Claims By or on Behalf of Member Against its Empl 12

3.26     Injunctive Relief 12

3.27     Other Insurance and Third Party Indemnities. 12

3.28     Inverse Condemnation Awa. 12

3.29     War and Civil Insurrection. 13

3.30     Medical Services. 13

3.31     When Fund Lacks Coverage Authority.  Any Claim for which the Fund lacks authority to or is otherwise prohibited by law from providing Liability Coverage. 13

 


COMMERCIAL GENERAL LIABILITY COVERAGE

                                                                             

                                                                      FOR THE

                                                                

PURMS JOINT SELF-INSURANCE AGREEMENT

 

Amended and Restated as of December 7, 2001

 

 

Overview of Coverages for PURMS Risk Pools

 

 

The Coverages Sections of the SIA set forth the Insuring Agreements, Exclusions, and other terms and conditions which comprise the Coverages provided by the Fund for the Members of its Risk Pools and, as applicable, their Employees under the SIA. 

 

The current Liability Coverage provided by the Fund for Members of the Liability Pool includes:  Commercial General Liability (SIA § III, “CGL”); Public Officials & Entity Liability (SIA § IV, “PO&E”); Automobile Liability (SIA § V); and Pollution Liability (§ VI). The CGL Coverage was originally adopted on December 20, 1976, has been amended from time to time, and was unanimously re-adopted by the Members on December 7, 2001. The PO&E, Automobile and Pollution Liability Coverages were first adopted effective March 30, 1995. The PO&E Coverage was unanimously re-adopted by the Members on December 7, 2001.

 

The current Property Coverage provided by the Fund for Members of the Property Pool includes:  General Property Coverage (SIA § X) and Auto Physical Damage Coverage (SIA § XI). Both of these Property Coverages were originally adopted effective February 27, 1997.

 

Members of the Property Pool may participate in either or both Property Coverages (SIA § X and/or § XI).  Members of the Liability Pool must participate in all Liability Coverages provided by the Fund (SIA § III - VI).

 

The current Health & Welfare Coverage provided by the Fund for the Members of the H&W Pool is set forth in § XIV. The H&W Coverage was originally adopted on March 16, 2000, effective April 1, 2000, and was amended and restated and unanimously re-adopted by the Members as of December 7, 2001. 

 

These Coverages, as amended from time to time pursuant to § I, ¶ 5.2, are specifically incorporated into the Interlocal Agreement and shall be deemed a part of that Agreement as if fully set forth therein.

 

 

 

 

 

COMMERCIAL GENERAL LIABILITY COVERAGE

 

 

1.     Definitions for Commercial General Liability Coverage.  The Definitions set forth in the Definitions Section of the SIA (see, § II)are applicable to the interpretation of the Liability Coverage provided by the CGL Coverage in this § III.

 

2.     Insuring Agreement and Conditions for CGL Coverage.  Under its Commercial General Liability ("CGL") Coverage, the Fund provides the following:

 

2.1.          Coverage for Liability Claims Arising out of an Occurrence.  Except as otherwise provided in this ¶ 2 and in ¶ 3 below, or in other sections of the SIA (see, e.g., § I., ¶ 13.5), and subject to § VII regarding Claims Resolution, the Fund shall pay on behalf of any Member or Employee all Defense Costs and all monetary Damages such Member or Employee has or may become legally obligated to pay to a Third-Party resulting from a Covered Liability Claim for Personal Injury or Property Damage arising out of an Occurrence that happened during the Coverage Period; provided, however, that the Fund shall not be obligated to provide Defense or to make any Coverage Payments on behalf of an Employee unless the Coverage Qualifications set forth in ¶ 2.4 below are satisfied. Directors, Officers of the Fund, and members of the Executive, Operations and Administrative Committees, and such other committees as are established by the Board, shall be deemed to be acting within the scope of their employment for a Member when acting within the scope of their duties for the Fund.  Multiple Liability Claims arising out of a single Occurrence, even if asserted against different Members or their Employees, shall be deemed to be a single Covered Liability Claim arising from a single Occurrence

 

2.2.          Liability Coverage Limit.  The Fund shall not be obligated to pay an amount in excess of the Liability Coverage Limit established by the Board for one or more Covered Liability Claims arising out of any one Occurrence, irrespective of the number of Members or Employees who may be liable therefore; provided, however, that all Defense Costs incurred in connection with a Covered Liability Claim shall be included within the Liability Coverage Limit; and provided further, that if coverage for Defense Costs under the applicable Excess Liability Policy with respect to a particular Covered Liability Claim does not begin at the point the Fund has paid the total amount of its Liability Coverage Limit, including Defense Costs, and if the amount of Defense Costs and Incurred Liability resulting from the Covered Liability Claim exceed the Liability Coverage Limit, then the Board may, for Sufficient Cause and by Super-Majority Vote, increase the Liability Coverage Limit for such Claim in an amount within its discretion, up to a maximum of $500,000 of additional Coverage for the Claim, including Defense Costs.  The Fund's Liability Coverage Limit, effective January 1, 1996, is $1,000,000, less the amount of the Deductible determined by the Board as provided in ¶ 2.3; provided, however, that the Board may increase or decrease the Liability Coverage Limit from time to time by Super-Majority Vote, and any such change shall thereafter be reflected as provided in § I, ¶ 5.7, and in § III, ¶ 2.2 of revised Operational Rules.  Any such change in the amount of the Liability Coverage Limit shall not apply to any Liability Claim arising from an Occurrence which took place prior to the effective date of the amendment, except as permitted in § I., ¶ 5.4.2.2.  The Board shall attempt to coordinate any changes in the Liability Coverage Limit with the Attachment Points of any Excess Liability Policies to prevent or minimize any gaps in coverage. 

 

2.3.          Deductible.  All Members shall be required to pay a Deductible in an amount determined by the Board for each Covered Liability Claim asserted against a Member and/or its Employees. If more than one Covered Liability Claim arises out of one Occurrence, they shall be deemed a single Covered Liability Claim and the Member shall be required to pay only one Deductible for all such Claims.  In a Multi-Member Claim, even if it arises out of a single Occurrence, each Member against which such Claim is asserted shall be required to pay a Deductible; provided, however, that the Member shall pay the Deductible when the Covered Liability Claim is asserted against both the Member and one or more of its Employees; and, provided further, that the Employee shall pay the Deductible with respect to a Covered Liability Claim asserted against the Employee only which does not involve the Member. The initial Deductible shall equal $250; provided, however, that the Board may increase or decrease the amount of the Deductible from time to time by Super-Majority Vote, and any such change shall thereafter be reflected as provided in § I, ¶ 5.7, and in § III, ¶ 2.3 of revised Operational Rules.  A change in the amount of the Deductible shall not apply to any Liability Claim arising from an Occurrence which took place prior to the effective date of the amendment, except as permitted in § I., ¶ 5.4.2.2.

 

2.4.          Coverage Qualifications.  As a condition precedent to Defense and Liability Coverage under the SIA for Insured Agents and Insured Volunteers, the Insured Agent/Volunteer must have been Pre-Approved, as required by ¶ 2.5.3 below, in accordance with the applicable procedures in the Operational Rules, or satisfy any applicable "emergency" exception thereto.  In addition, it must affirmatively appear to the satisfaction of the Administrative Committee that the following additional Coverage Qualifications have been met:

2.4.1.               Employees.  The Employee's act or omission must have contributed to the Occurrence giving rise to the Covered Liability Claim asserted against the Employee, and the Employee must have been acting: (a) In good faith; and (b) Within the scope of the Employee's employment with or duties for a Member.

 

2.4.2.               Insured Agents and Insured Volunteers. The Insured Agent's/Volunteer's act or omission must have contributed to the Occurrence giving rise to the Covered Liability Claim asserted against the Insured Agent/Volunteer, and the Insured Agent/Volunteer must have been acting: (a) As the legal Agent for the Member; (b) In good faith; and (c) Within the scope of the Agency relationship with the Member.

 

2.4.3.               Coverage for a Member for Vicarious Liability does not Depend upon Whether the Employee Satisfies the Coverage Qualifications.  Whether the Fund provides Liability Coverage for the Member for a Claim asserted against the Member for Vicarious Liability based upon the acts or omissions of its Employee or Insured Agent/Volunteer shall be separate from and shall not be dependent upon whether the Fund provides Liability Coverage directly to such Member's Employee or Insured Agent/Volunteer based on satisfaction of the applicable Coverage Qualifications.

 

2.5.          Risks Which Must be Pre-Approved by the Fund as a Condition Precedent to Liability Coverage.  Liability Coverage for each of the following types of Risk must first be Pre-Approved in writing, in accordance with the procedures in Op. Rules, § III, ¶ 2.5, either by the Administrator or by the Administrative Committee as a condition precedent to the Fund providing Liability Coverage for Claims based on Occurrences arising out of such Risks:

2.5.1.               Members' Indemnifications of their Agents.  Coverage for Members for their written indemnifications of their Agents (see, § III, ¶ 3.7).

 

2.5.2.               Members' Indemnifications of Professional Independent Contractor Agents.  Coverage for Members' for their written indemnifications of Professional Independent Contractors that may qualify as Agents of the Members (see, § III, ¶ 3.6);

 

2.5.3.               Additional Insureds.  Coverage for Insured Agents and Insured Volunteers as Additional Insureds under the SIA or under the Fund's Excess Liability Policies (see, § III, ¶ 2.4.2 and ¶ 3.7);

 

2.5.4.               Member's Contractual Assumptions of Liability.  Coverage for Members for Liability Claims arising out of their written contractual assumptions of liability (see, § III, ¶ 3.7).

 

2.5.5.               Members' Extraordinary Activities.  Coverage for Members for Liability Claims arising from their Extraordinary Activities (see, § III, ¶ 3.16);

 

2.5.6.               Joint Ventures. Coverage for any Liability Claims against Members or their Employees for Personal Injury or Property Damage arising out of any Joint Venture between one or more Members and Third Parties (see, § III, ¶ 3.17); and

 

2.5.7.               Other Risks Requiring Pre-Approval.  Coverage for any other type of Risk which the Board may, by Majority Vote, from time to time designate as subject to Pre-Approval by the Fund as a condition precedent to Liability Coverage by the Fund, as may be set forth in Operational Rules.

 

2.6.          Conditional Pre-Approval in Interim During Pre-Approval.  For purposes of the Pre-Approval process required in ¶ 2.5, except with respect to Liability Coverage for Additional Insureds, the Member shall be deemed to have satisfied its Pre-Approval obligations, and the Fund may not deny Liability Coverage for lack of Pre-Approval, with respect to any Liability Claims that arise from the Risk from the moment the Member's written request for Pre-Approval is received by the Administrator; provided, that Pre-Approval for proposed Additional Insureds shall not be effective until the date written approval therefore is given by the Fund; and provided further that, in any event, the Administrator or Administrative Committee shall, within 30 days from the date the Member's Pre-Approval request is received, inform the Member in writing either that:

 

(a)   The Risk submitted has been Pre-Approved for Coverage by the Fund (i.e., the Fund may not deny Liability Coverage solely on the basis that the Claim was not "Pre-Approved");

 

(b)  The Risk submitted has been Pre-Approved, but because the Risk poses a unique or substantial additional exposure to the Fund, Liability Coverage for the Risk is conditioned on the Administrative Committee and Member reaching agreement on the amount of Contract Conversion Hours to be added to the Member's Employee Hours Worked under the General Assessment Formula and for what period of time; or

 

(c)   The Fund does not accept and will not provide Liability Coverage for the Risk, stating the specific reasons therefore. 

 

            Any conditional Pre-Approval provided by the Fund during the Pre-Approval process under this ¶ 2.6 shall cease immediately upon delivery of written notice to the Member that the Fund does not Pre-Approve Liability Coverage for the Risk submitted.

 

2.7            Other Insurance and Third Party Indemnifications.  If any valid and collectible Other Insurance or Third Party Indemnifications (hereinafter, included within the meaning of "Other Insurance") are available to the Insured for a Liability Claim the Fund Covers under the SIA, the Fund's Liability Coverage obligations are limited as follows:

 

2.7.1.               Primary Insurance.  The Fund's Liability Coverage is primary except when it is deemed "excess" under the terms of ¶ 2.7.2 below.  If the Fund's Liability Coverage is primary, the Fund's obligations are not affected unless any of the Other Insurance is also primary.  Then, except as provided in ¶ 2.7.2 below, the Fund will share with all such Other Insurance that is primary by the methods described in ¶ 2.7.3 below.

 

 

2.7.2.               Excess Insurance.

 

2.7.2.1.                    When Fund's Liability Coverage is Excess.  The Fund's Liability Coverage and any indemnifications the Fund has made of its Officers, Employees and Agents, is excess over any of the Other Insurance, whether primary, excess, contingent or on any other basis:

 

(a)             That is fire, extended coverage, builders risk, installation risk or similar coverage for a Member's "work;"

 

(b)            That is fire insurance for premises rented to a Member;

 

(c)             If the loss arises out of the maintenance or use of aircraft, Autos, or watercraft to the extent not subject to the Exclusion in ¶ 3.23;

 

(d)            With respect to Liability Claims that are covered by any of the Fund's indemnifications of its Officers, Employees or Agents, any Other Insurance also providing coverage or protection for such Claims under the circumstances, excluding indemnifications by Members;

 

(e)             With respect to Liability Claims asserted against a Member or Employee as a result of acts or omissions by a Member's Agent or Insured Agent, any such Other Insurance available to such Agent also providing coverage or protection for such Claims;

 

(f)              With respect to Liability Claims arising out of any Joint Venture, any Other Insurance available to any Third Party involved in the Joint Venture that also provides coverage or protection for such Claims, unless all such Other Insurance shares insurance coverage or pays on the applicable indemnifications with respect to such Claims in accordance with one of the methods identified in ¶ 2.7.3 below.

 

(g)             With respect to any Other Insurance or Liability Claims as determined by the Board and set forth in the Operational Rules.

 

2.7.2.2  Fund's Obligations When Its Liability Coverage is Excess. 

 

(a)             Defense. When the Fund's Liability Coverage is excess, the Fund will have no Duty to Defend any Claim that any Other Insurer has a duty to defend.  If no Other Insurer defends, the Fund will undertake to do so, but the Fund will be entitled to the Insured's rights against all those Other Insurers.

 

(b)            Limitation on Coverage Payments.  When the Fund's Liability Coverage is excess over the Other Insurance, the Fund will pay only its share of the amount of the Liability Claim, if any, that exceeds the sum of:

 

                                                    (1)          The total amount that all such Other Insurance would pay for the Claim in the absence of the Fund's Liability Coverage; and

 

                                                    (2)          The total of all deductibles and self-insured amounts under all that Other Insurance.

 

The Fund will share, in accordance with ¶ 2.7.3 below, the remainder of the Claim, if any, with any Other Insurance that is not described in this subparagraph 2.7 and was not bought specifically to apply in excess of the Fund's Liability Coverage Limit as part of the Fund's Excess Liability Coverage.

 

2.7.3                 Methods of Sharing Insurance Coverage. 

 

2.7.3.1  By Equal Shares.  If all of the Other Insurance permits contribution by equal shares, the Fund will follow this method also.  Under this approach, each obligor contributes equal amounts until it has paid its applicable limit of insurance or indemnity protection, or none of the Claim remains to be paid, whichever comes first.

 

2.7.3.2  By Limits.  If any of the Other Insurance does not permit contribution by equal shares, the Fund will contribute by limits.  Under this method, each obligor's share is based on the ratio of its applicable limit of insurance or indemnity protection to the total applicable limits of all Other Insurance.

 

2.8            Separation of Insureds with Respect to Liability Claims Asserted Among Members and Single Liability Coverage Limit.  Except with respect to Liability Claims excluded under the Exclusion paragraphs of the various Liability Coverage Sections of the SIA, in the event any Covered Liability Claim is asserted by an Insured under the SIA against any other Insured under the SIA, the Fund will provide Coverage for the Claim for such other Insured against which the Claim is made in the same manner as if the Claim was being asserted by a Third Party; provided, however, that when two or more Members or their Employees assert Liability Claims against each other arising out of the same Occurrence, the total of the Fund's Liability Coverage obligation shall be its Liability Coverage Limit; and, provided further, that no Employee of one Insured shall be construed to be an Employee of any other Insured, unless at the time of injury or death, there exists a relationship of master/servant between such Employer and such other Insured.

 

2.9            Board's Authority to Establish the Number of Occurrences Involved in a Covered Liability Claim.  The Board shall have the authority, by Super-Majority Vote, to establish the number of Occurrences involved in connection with any Covered Liability Claim and such determination shall be binding on all Members involved in the Claim; provided, however, that in making its decision, the Board shall consider the advice of General Counsel regarding the applicable law; and provided, further, that the Board's failure to affirmatively establish the number of Occurrences with respect to a Covered Liability Claim shall result in the Claim being treated as a single Occurrence by the Fund; and provided further, that any Dispute with the result of the Board's Vote may be submitted to Arbitration pursuant to § I., ¶ 24.5 and the Arbitrator shall affirm the Board's decision unless it is contrary to clearly established Washington law.

 

3       Exclusions for CGL Coverage.  Notwithstanding the provisions of any other section of the SIA, the Fund shall not provide Defense or Liability Coverage for the types of Liability Claims described in the "Exclusions" below which shall not be Covered Liability Claims.  The subsection headings for the Exclusions are for ease of reference only and shall have no effect with respect to the substantive meanings of the Exclusions.

 

3.1            Employee Claims subject to Limiting Statutes.  Any Claim for which a Member, or any insurance company as the Member's insurer, may be held liable under any worker's compensation, unemployment compensation or disability benefits law, or under any similar law, or any Claim which would have been covered by any such law but for a waiver entered into by a Member with an Employee.

 

3.2            Employee Claims for Personal Injuries.  Any Claim by an Employee for Personal Injuries that occurred while the Employee was performing services for or at the request of the Member, whether or not for compensation, even if such Claim is not subject to worker's compensation, unemployment compensation, disability benefits laws or similar laws limiting employees' personal injury claims against their employers (like Washington State's Industrial Insurance Act); provided, however, that the Fund will provide Liability Coverage for such a Claim to the extent compensation would have been afforded had the Industrial Insurance Act, as hereafter amended, applied; and provided, further, that this Exclusion shall not apply to Liability Coverage for such Claims by Employees brought under the Jones Act.

 

3.3            Employee Claims re Employment Relationship.  Any Claim against a Member or Employee by one or more of the Member's Employees arising out of the employment relationship, or by any person who has applied for employment with a Member, but only to the extent such Claim seeks recovery of: (1) wages, salary, pension contributions, or any other form of compensation or benefits; (2) any penalties or liquidated damages; (3) reinstatement, promotion or similar mandatory injunctive relief; or (4) costs or attorneys' fees; provided, however, that the Fund shall provide Defense for such Claims, to the extent they seek such types of recoveries, in accordance with § VII., ¶ 5, but the amount of the Fund's obligation to pay Defense Costs relating thereto shall be limited to $25,000 unless, and then only for so long as, the Administrative Committee determines that continued Defense of the Claim by the Fund is reasonable considering the circumstances (including the settlement alternatives available to the Member). 

 

3.4            Unsatisfied Coverage Qualifications.  Any Claim asserted against an Employee or Insured Agent or Insured Volunteer with respect to which the applicable Coverage Qualifications have not been satisfied. 

 

 

 

3.5            Independent Contractors that are not Agents.  Any Claim made against any Independent Contractor of a Member, regardless of whether the Member has indemnified the Independent Contractor, if with respect to the Claim the relationship of such Independent Contractor to the Member does not satisfy all of the Agency principles embodied in the Coverage Qualifications applicable to Insured Agents and Insured Volunteers in ¶ 2.4.2; provided, however, that this Exclusion shall not apply to the extent State or Federal law imposes liability on the Member for the acts or omissions of the Independent Contractor, without the existence of an Agency relationship between the Member and Independent Contractor, so long as such liability does not arise from the Member's voluntarily indemnification of the Independent Contractor. 

 

3.6            Unapproved Professional Independent Contractors Who may be Agents.  Any Claim made against an Independent Contractor of a Member, even if the Independent Contractor satisfies the Coverage Qualifications set forth in § 2.4.2 for Insured Agents/Volunteers, and any Claim against a Member for its Vicarious Liability arising in a connection therewith, even if the Member has indemnified the Independent Contractor, if the Claim arises from the rendering of professional services (including without limitation, bond counsel, consulting engineers, independent auditors, architects, actuaries, and appraisers) by a Professional Independent Contractor, unless the Member's contract with such Professional Independent Contractor had been Pre-Approved, or conditionally Pre-Approved under ¶ 2.6, prior to the date of the Occurrence giving rise to the Claim.

 

3.7            Contractual Assumptions of Liability.  Any Claim asserted against a Member or Employee based on the Member's or Employee's contractual assumption of the liability of a Third Party to the extent such assumption imposes liability upon the Member or Employee beyond what the law would impose on the Member or Employee in the absence of such contractual assumption, unless, with respect to that Claim, all of the Agency principles embodied in the additional Coverage Qualifications applicable to Insured Agents and Insured Volunteers in ¶ 2.4.2 are satisfied and the Member's contractual assumption was Pre-Approved or conditionally Pre-Approval at the time under § III, ¶ 2.6; provided, however, this Exclusion shall not apply to a Claim based upon a Members' contractual assumption of liability in connection with the acquisition of less than a fee simple interest in real property (like a lease, easement, permit or franchise) where the Member's assumption of the liability arising out of the acts of Third Parties causing Personal Injury or Property Damage to some other Third Party on or using the real property or owning an adjacent property is a condition of the transfer of such real property interest; and provided, further, that the above exception to Exclusion 3.7 shall not apply to a Claim to the extent it is based upon a Member's assumption of liability for any of the other contracting party's negligence.

 

3.8            Intentional or Reckless Injury. Any Claim for Personal Injury or Property Damage where, by act or omission of the Insured or by act or omission at the direction of the Insured, the Insured intended to cause Personal Injury or Property Damage, or any Claim for Personal Injury or Property Damage where the Insured was reckless with respect to whether the Insured’s act or omission would cause the type of Injury or Damage that in fact occurred.

 

3.9            Unlawful Activities/Good Faith Exception. Any Claim based on an Occurrence arising out of the Business or Community Activities of a Member which were not lawful under either State or Federal law at the time of the Occurrence, unless the Member undertook such Activities in good faith and with the reasonable belief that the action constituting such Activities was lawful at the time and fell within industry standards as a reasonable Public Utility Operations practice.  For purposes of this Exclusion, a Member’s intentional, knowing or reckless violation of applicable laws precludes a finding both of “good faith” and a “reasonable belief in the lawfulness” of such action. The Procedures for determining a Member's good faith, reasonable belief and the applicable industry standards are set forth in Op. Rules, § III, ¶ 3.9.

 

3.10         Illegal Profits.  Any Claim resulting from any Member or Employee gaining any profit or advantage to which they were not legally entitled, but this Exclusion shall not apply to the extent such Member or Employee transferred such profit or advantage in good faith to a Third Party and reasonable efforts by the Member or Employee, as determined by the Administrative Committee, have failed to secure its return.

 

3.11         Illegal Remuneration.  Any Claim for the return by a Member or Employee of any remuneration in fact paid to them if payment of such remuneration shall be in violation of law; but this Exclusion shall not apply to the extent such Member or Employee transferred such profit or advantage in good faith to a Third Party and reasonable efforts by the Member or Employee, as determined by the Administrative Committee, have failed to secure its return.

 

3.12         Fines and Penalties.  The payment of any fines or civil or criminal penalties imposed upon a Member or Employee by any court, or any governmental agency, but this Exclusion shall not apply to that portion of any fine imposed by an Environ­mental Enforcement Agency which is applied to Remediation Costs.

 

3.13         Breach of Contract.  Any Claim arising out of the failure to perform or breach of a written or oral contract or agreement, but this Exclusion shall not apply to any Claim for Personal Injury or Property Damage, nor shall it apply to Claims for breach of a written or oral contract or agreement premised upon the negligent performance of such contract or agreement.

 

3.14         Owned, Occupied or Rental Property.  Any Claim for damage to or loss of:

 

(a)             Property owned or occupied by, rented to or being used by the Member against which the Claim is asserted, or against whose Employee the Claim is asserted; or

 

(b)            Property occupied by, rented to or used by an Employee acting within the scope of his or her employment, or property owned by the Employee while being used within the scope of his or her employment;

(c)             Property in the care, custody or control of the Member or Employee or as to which the Member or Employee is for any purpose exercising physical control;

 

provided however, that Coverage for any Claim for Pollution damage to a Member's Owned Property, otherwise subject to this Exclusion ¶ 3.14, shall be governed by § VI, ¶ 3.1 of the Pollution Coverage.

 

3.15         Loaned Equipment.

 

(a)             For Community Activities.  Any Claim arising out of or in connection with the operation of Equipment loaned by a Member, or Employee at the request of a Member, for Community Activities, unless such Equipment is operated exclusively by an Employee of the Member.

 

(b)            For Business Activities.  Any Claim arising out of or in connection with the operation of Equipment loaned by a Member, or Employee at the request of a Member, for Business Activities, whether or not the Equipment is operated by an Employee, unless the Member has obtained a written indemnification and hold-harmless agreement from the person or entity borrowing or otherwise utilizing the Equipment ("Borrower"), which shall be deemed automatically assigned to the Fund for the protection of the Fund if a Covered Liability Claim arises against the Member or Employee and the Fund provides Liability Coverage with respect thereto; provided, however, this Exclusion shall not apply if the Equipment was loaned in an emergency situation making the requirement of obtaining such an indemnity agreement unreasonable under the circumstances.  The requirements of the indemnification and hold harmless agreement are set forth in Op. Rules, § III, ¶ 3.15.

 

3.16         Unapproved Extraordinary Activities.  Any Claim arising from an Extraordinary Activity of a Member unless the Member, as soon as practicable under the circumstances, notified the Administrator of the Extraordinary Activity or the Member's intent to enter into the Extraordinary Activity and received the written PreApproval from the Fund for conducting the Extraordinary Activity in accordance with Op. Rules, § III, ¶ 3.16.

 

3.17         Unapproved Risks.  Any Claim arising out of a Risk which, under ¶ 2.5 or the Operational Rules, required PreApproval by the Fund as a condition precedent to Liability Coverage by the Fund therefor, and which had not been PreApproved or conditionally PreApproved under ¶ 2.6 at the time the Risk gives rise to the Occurrence upon which the Claim is based. 

 

3.18         Loss of Use of Non-Injured Tangible Property. Any Claim for loss of use of tangible property which has not been physically injured or destroyed resulting from:

 

(a)   A delay in or lack of performance by or on behalf of a Member of any contract or agreement or in providing any Service; or

 

(b)  The failure of a Member's Products, Services, or work performed by or on behalf of a Member to meet the level of performance, quality, fitness or durability warranted or represented by the Member;

 

provided, however, that subparagraph (a) shall not apply to the negligent performance of such contract or agreement or in providing any Service; and, provided further, that this Exclusion shall not apply to a Claim for Failure to Supply that qualifies as a Colorable Claim of Liability; and provided further, that this Exclusion shall not apply to loss of use of other tangible property resulting from the sudden and accidental physical injury to or destruction of a Member's Products or work performed by or on behalf of a Member after such Products or work have been put to use by a Third Party.

 

3.19         Damage to Member's Products.  Any Claim for Property Damage to a Member's Products arising out of such Products or any part of such Products.

 

3.20         Damage to Work for Member.  Any Claim for Property Damage to work performed by or on behalf of a Member, which Claim arises out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.

 

3.21         Product Recall.  Any Claim for Damages for the withdrawal, inspection, repair, replacement, or loss of use of a Member's Products or work completed by or for a Member or of any property of which such Products or work form a part, if such Products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein.

 

3.22         Nuclear Materials.  Any Claim arising out of the hazardous properties of nuclear material.

 

3.23         Large Watercraft.  Any Claim arising out of the ownership, maintenance, operation, use, loading or unloading of any watercraft greater than 75 feet in length operated by or rented or loaned to a Member, or any other watercraft greater than 75 feet in length operated by any Employee in the course of employment by a Member.

 

3.24         Claims Outside Member’s Business or Community Activities. Any Claim based on an Occurrence that did not arise out of a Member’s Business or Community Activities, whether the action causing the Occurrence was lawful at the time, or not.

 

3.25         Claims By or on Behalf of Member Against its Employees.  Any Claim made by or derivatively on behalf of a Member against one of the Member's own Employees, including, but not limited to, any Claim made by any Customer of a Member or other Third Party asserting the rights of the Member against the Member's own Employee, unless such Customer or other Third Party is acting totally independent of and without the suggestion, direction, assistance, participation, or intervention of the Member or its Public Officials, including Management, or any affiliate of the Member.

 

3.26         Injunctive Relief.  Any Claim seeking relief or redress in any form other than money damages, and any fees or expenses relating to or arising out of such a Claim. 

 

3.27         Other Insurance and Third Party Indemnities.  Any Claim for damages for which coverage or protection is provided by any Other Insurance if and to the extent provided in ¶ 2.7 herein.

 

3.28         Inverse Condemnation Awards.  The portion of any Claim for or in the nature of inverse condemnation, except to the extent the amount of such Claim exceeds the value of any interest in the real property acquired by the Insured in connection with or as a result of such proceedings.

 

3.29         War and Civil Insurrection.  For any Claim against a Member directly or indirectly occasioned by happening through or in consequence of war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalization or requisition or destruction of or damage to property by or under the order of any government or public or local authority.

 

3.30         Medical Services.  Any Claim resulting from the rendering or failure to render the following services by a Member or Employee:

 

(1)          Medical, surgical, dental, x-ray or nursing services or treatment, or the furnishing of food or beverages in connection therewith; or

 

(2)          The furnishing or dispensing of drugs or medical, surgical or dental supplies or appliances.

 

This Exclusion, however, shall not apply to any liability arising out of Incidental Medical Malpractice Injury.

 

3.31         When Fund Lacks Coverage Authority.  Any Claim for which the Fund lacks authority to or is otherwise prohibited by law from providing Liability Coverage.