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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CENTURY INDEMNITY COMPANY,
(AS SUCCESSOR TO CCIINSURANCE COMPANY, AS
SUCCESSOR TO INSURANCE
COMPANY OF NORTH AMERICA),
Plaintiff,
v.
ANHEUSER-BUSCH, INC.,
Defendant.
)
)))))))) CIVIL ACTION NO. 4:11-CV-1097)) JURY TRIAL DEMANDED))
COMPLAINT AND REQUEST FOR DECLARATORY JUDGMENT
Plaintiff, Century Indemnity Company, as successor to CCI Insurance Company, as
successor to Insurance Company of North America (Century), by its undersigned counsel, for
its Complaint against Defendant, alleges as follows:
NATURE OF ACTION
1. This is an action for declaratory judgment. Plaintiff seeks this Courtsdetermination concerning the scope and nature of its obligations, if any, as issuers of certain
liability insurance policies to Defendant, Anheuser-Busch, Inc. (Anheuser-Busch).
2. This case arises out of multiple underlying asbestos-related bodily injury claimsand lawsuits (the Underlying Claims) brought against Defendant, for which Defendant has or
may seek defense and/or indemnification from Plaintiff.
3. In connection with the Underlying Claims, for which Defendant now claims ormay claim coverage in the near future, an actual, justiciable controversy exists between the
parties as to which a declaratory judgment setting forth their respective rights and obligations
under the subject insurance policies is necessary and appropriate.
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THE PARTIES
4. Plaintiff Century is the successor to CCI Insurance Company, as successor toInsurance Company of North America. Century is an insurance company organized under the
laws of the Commonwealth of Pennsylvania, having its principal place of business in
Philadelphia, Pennsylvania. At all times relevant to this action, Century was authorized to
conduct business in the State of Missouri, including within the Eastern District.
5. Upon information and belief, Defendant Anheuser-Busch is, and at all timesrelevant to this Complaint was, a Missouri corporation whose principal place of business is
located in St. Louis, Missouri.
JURISDICTION AND VENUE
6. This Court has original jurisdiction over this declaratory judgment action basedupon 28 U.S.C. 1332(a) and 28 U.S.C. 2201 et. seq. The amount in controversy exceeds,
exclusive of interest and costs, the sum of $75,000.
7. Venue is proper in this Court pursuant to 28 U.S.C. 1391(a).THE UNDERLYING ASBESTOS-RELATED BODILY INJURY CLAIMS
8. Upon information and belief, asbestos-related bodily injury claims have been andmay in the future be asserted by various private-party claimants for compensatory and punitive
damages and other legal and/or equitable relief against Defendant as a result of alleged exposure
to asbestos or asbestos-containing products at an Anheuser-Busch facility.
9. Upon information and belief, generally, the underlying claimants allege that theywere exposed to asbestos or asbestos-containing products at an Anheuser-Busch facility as far
back as 1940 and as recently as the 1990s.
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10. A list of known underlying asbestos lawsuits brought against Defendant isattached hereto as Exhibit A.
11. Defendant has sought insurance coverage from Plaintiff for some or all of thoseasbestos-related bodily injury claims.
12. Defendant has asserted or may assert that Plaintiff is or may be obligated todefend Anheuser-Busch and/or assume liability for defense costs incurred or to be incurred by
Anheuser-Busch in connection with present and future asbestos-related bodily injury claims.
13. Anheuser-Busch has asserted or may assert that Plaintiff is or may be obligated toindemnify Anheuser-Busch for any judgments or settlements in connection with Anheuser-
Buschs liabilities arising out of some or all of the asbestos-related bodily injury claims.
PLAINTIFFS INSURANCE POLICIES AT ISSUE
14. This Complaint stems from certain excess insurance policies issued by Century(through its predecessor in interest, Insurance Company of North America) to Anheuser-Busch
for the policy years 1980 through 1992 (the Century Policies).
15. The Century Policies are excess and/or umbrella policies which are excess of thelimits of certain underlying insurance policies and/or retained limits, depending on the purported
potential coverage, if any, implicated by the underlying claim.
16. A list of the Century Policies is attached hereto as Exhibit B.17. Upon information and belief, the Century Policies were brokered, negotiated,
contracted for and issued in Missouri.
18. Upon information and belief, many key witnesses and documents relevant to thesubject matter of this action are located in Missouri.
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19. Upon information and belief, to the extent that Anheuser-Busch properly hastendered claims to Plaintiff for asbestos-related bodily injury under the Century Policies,
Plaintiff has timely and properly reserved its right to disclaim coverage.
SUMMARY OF CLAIMS
20. Upon information and belief, there are disputes between Plaintiff and Defendantregarding Plaintiffs obligation, if any, to indemnify Defendant for losses resulting from the
Underlying Claims, to reimburse Defendant for defense costs expended in connection with the
Underlying Claims, and to provide Defendant a defense against the Underlying Claims. Plaintiff
contends that it has no such obligation for some or all of the Underlying Claims. Alternatively,
if Plaintiff is found to have any such obligation, Plaintiff contends that these obligations are
limited pursuant to the terms, conditions and exclusions set forth in the Century Policies. Upon
information and belief, Defendant disputes Plaintiffs contentions.
21. As such, an actual, immediate, and justiciable controversy exists between Plaintiffand Defendant concerning their respective rights and obligations, if any, under the Century
Policies with respect to some or all of the underlying asbestos-related bodily injury claims.
22. Pursuant to 28 U.S.C. 2201 et. seq, Plaintiff is entitled to a judicialdetermination concerning the scope and nature of its rights and obligations, if any, under the
Century Policies with respect to some or all of the Underlying Claims.
COUNT I(Declaratory Judgment)
23. Plaintiff incorporates herein by reference paragraphs 1 through 22 set forth abovein this Complaint.
24. Plaintiff seeks a declaration that under the express terms, conditions, andexclusions contained in the Century Policies, Plaintiff has no obligation, either in whole or in
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part, to defend and/or indemnify Defendant for losses resulting from asbestos-related bodily
injury claims arising out of the alleged exposure to asbestos at an Anheuser-Busch facility,
which have been asserted, or which may be asserted, against Defendant because, among other
things:
(a) the asbestos-related bodily injury claims asserted against Defendant do notconstitute claims for personal injury, bodily injury, or property damage that took place during the
applicable periods of the Century Policies;
(b) the asbestos-related bodily injury claims asserted against Defendant do notarise out of an accident or occurrence as required by the Century Policies;
(c) some or all of the asbestos-related bodily injury claims asserted againstDefendant do not constitute claims for damages because of personal injury, bodily injury, and/or
property damage within the meaning of the Century Policies;
(d) some or all of Defendants alleged damages do not constitute ultimate netloss as defined in the Century Policies;
(e) on information and belief, some or all of Defendants expense, loss orobligation was voluntarily incurred, without the consent of Plaintiff, thus barring coverage under
the Century Policies;
(f) to the extent that some or all of the insurance recovery sought byDefendant is for liability associated with punitive damages or civil or criminal penalties or fines,
coverage is barred by applicable law, public policy, the language of the Century Policies, and by
the excess fines, due process and equal protection clauses of the United States Constitution, and
the Constitution of the State of Missouri, and other states;
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(g) to the extent that Defendant is and/or will be seeking insurance recoveryfor liability arising out of events, acts, occurrences, transactions, losses or claims which were in
progress or were not contingent or unknown at the time of the issuance of the Century Policies,
recovery is barred by applicable law, public policy, and the language of the Century Policies;
(h) Defendant is not entitled to coverage under some or all of the CenturyPolicies to the extent that Defendant or those persons acting on its behalf have made
misrepresentations, including, without limitation, those deriving from the failure to disclose
material facts, in the course of procuring such insurance policies, regarding the nature of
Defendants business operations and/or existing or known asbestos problems resulting from
those practices and operations;
(i) coverage is not afforded under the Century Policies for any individual orentity which is not expressly identified therein as a named or additional insured;
(j) Defendant is not entitled to coverage under the Century Policies to theextent it has failed to mitigate and/or avoid any of the losses sustained in connection with the
asbestos-related bodily injury claims;
(k) coverage is barred to the extent that any asbestos-related claim or claimsasserted against Defendant resulted from Defendants violation of statute, regulation, ordinance
or public policy;
(l) to the extent that the asbestos-related bodily injury claims againstDefendant constitute claims for liability assumed by Defendant under any contract or agreement,
such claims may not be within the scope of coverage otherwise afforded by the Century Policies;
(m) coverage is precluded under the Century Policies to the extent that anyasbestos-related claim arose out of Defendants willful or intentional conduct;
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(n) there is no coverage under the Century Policies to the extent that theinsured failed to satisfy conditions precedent, including without limitation, the failure to furnish
Plaintiff with prompt and adequate written notice of any alleged occurrence, and immediate
notice of all claims or suits as required by the terms and conditions of the policies;
(o) there is no coverage under the Century Policies for the Underlying Claimsto the extent that they contain asbestos exclusions;
(p) there is no coverage under the Century Policies to the extent that theinsured failed to consult with and obtain prior consent from Plaintiff before entering into any
agreements, incurring any legal costs, or assuming any obligations with respect to any claims for
which they seek reimbursement or indemnity, or to the extent that the insured has breached its
duty to cooperate;
(q) there is no coverage under the Century Policies to the extent that theinsured has impaired Plaintiffs rights of subrogation, indemnity or contribution;
(r) there is no coverage under the Century Policies to the extent that anyapplicable statute of limitations or contractual limitation period has expired;
(s) there is no coverage under the Century Policies to the extent that theUnderlying Claims seek injunctive or equitable relief (including the costs of complying with
equitable relief or government regulations or directives) or for settlements or judgments with
respect thereto;
(t) coverage is barred under the Century Policies to any extent that theUnderlying Claims are claims for which the insured may be held liable under any workmens
compensation, unemployment compensation or disability benefits law, or under any similar law;
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(u) coverage is barred under the Century Policies to the extent the UnderlyingClaims seek recovery for bodily injury to an employee of the insured arising out of and in the
course of the claimants employment by the insured;
(v) with regard to the Century Policies, Plaintiff further asserts andincorporates herein by reference any and all defenses to coverage that may be asserted under the
terms, conditions and exclusions of any underlying insurance policies, to the extent that the
Century Policies follow form to or incorporate the provisions of such underlying policies;
(w) coverage is barred under the Century Policies to the extent that the insuredsettled any underlying asbestos-bodily injury claim where the underlying claimant had not shown
sufficient evidence of exposure to asbestos, the insureds product, and/or the insureds premises,
or was otherwise unreasonable;
(x) coverage is precluded under the Century Policies to the extent that anyterms, conditions, definitions, exclusions, and endorsements of said policies apply to
Defendants asbestos-related bodily injury claims.
COUNT II
(Declaratory Judgment)
25. Plaintiff incorporates herein by reference paragraphs 1 through 24 set forth abovein this Complaint.
26. As set forth in Count I above, Plaintiff has no obligation under the CenturyPolicies, either in whole or in part, to indemnify Defendant for losses arising in connection with
the Underlying Claims, to reimburse Defendant for defense costs incurred in defending such
Underlying Claims, or to provide Defendant a defense against such Underlying Claims. In the
alternative, if such an obligation is found to exist for some such losses under some or all of the
Century Policies, Plaintiff seeks a declaration that:
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(a) if and to the extent that coverage for any asbestos-related bodily injuryclaims asserted against Defendant is determined to exist under the Century Policies, Plaintiff is
not obligated under any such policies until the limits of all applicable underlying policies,
deductibles, self-insured retentions, and/or applicable retained limits have been properly and
fully exhausted; and
(b) damages arising from said bodily injury claims must dividedpro rata, bytime on the risk, across all years in which the alleged exposure to asbestos occurred, such that
Plaintiff is only responsible for its share of covered losses allocated to the periods of the Century
Policies that exceed the limits of underlying coverage, self-insured retentions, and/or retained
limits; and
(c) any indemnity for the Underlying Claims and/or defense costs allocated tothose time periods for which Defendant did not purchase insurance coverage, for which no
relevant insurance coverage is known to exist, for which any relevant insurance coverage has
been exhausted, or for which insurance coverage is otherwise unavailable, must be borne by
Defendant.
WHEREFORE, Plaintiff respectfully requests that the Court:
(a) Declare that Plaintiff has no obligation to defend or indemnity Defendantwith respect to some or all of the Underlying Claims;
(b) In the alternative, declare that damages, if any, arising from an UnderlyingClaim must be allocatedpro rata over all years in which the alleged exposure to asbestos
occurred and further declare the respective rights and obligations of the parties under the Century
Policies, and declare the limits of any obligation of Plaintiff to defend and/or indemnify
Defendant for costs incurred with respect to some or all of the Underlying Claims;
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(c) Award Plaintiff its costs; and(d) Grant Plaintiff such other and further relief as may be necessary and
appropriate under the circumstances.
DANNA MCKITRICK P.C.
By: ___/s/ John F. Cooney________________John F. Cooney, #32522MO7701 Forsyth Boulevard, Suite 800St. Louis, Missouri 63105(314) 726-1000(314) 725-6592 (fax)[email protected]
Of counsel:
WHITE AND WILLIAMS LLP
Patricia B. Santelle,pro hac vice pendingShane R. Heskin,pro hac vice pendingOne Liberty Place, Suite 1800Philadelphia, PA 19103-7395(215) 864-6329(215) 399-9603 (fax)
Attorneys for PlaintiffCentury Indemnity Company
7806355v17795458v.17810254v.1
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LAST NAMEFIRST
NAME
MIDDLE
INITIALCAPTION VENUE
Walker RobertRobert and Helen Walker v. A.H. Voss Company, etal. Including Anheuser Busch
In San Francisco County Superior CCalifornia
Williams GloriaGloria Williams, et al. v. A.H. Voss Company, et al.including Anheuser Busch
In San Francisco County Superior CCalifornia
Yager IrmaIrma Yager, et al. v. ABEX Corp., et al. includingAnheuser Busch
In San Francisco County Superior CCalifornia
Cashen BillBill Cashen v. Northern Peabody, Inc. v. Anheuser
BuschGrimes Douglas
Douglas Grimes, et al. v. Exxon Corporation, et al.including Anheuser Busch
In the 57th Judicial District Court of BCounty, Texas
McHenry Charlie Charlie and Barbara McHenry In California Superior Court of San F
Zuniga Espiridion Zuniga Espiridion v. Anheuser Busch Odessa, Texas
West Richard A.Richard A. West, et al. v. Anheuser-Busch, Inc., etal.
Van Nuys, California
Hooker Dorothy I.Dorothy I. Hooker, et al. v. 3M Company includingAnheuser Busch, Inc.
149 District Court of Brazoria Count
Fandi JohnJohn Fandl, James Horvath, and Barbara Vogler, v.Anheuser-Busch, Inc.
In The Circuit Court for the City of SCounty, Missouri, Twenty Second JCircuit
7733213v.1
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7731899v.1
Exhibit B
Policies Issued by Century Indemnity Company (as Successor to CCI
Insurance Company, as Successor to Insurance of North America) to
Anheuser-Busch, Inc.
Policy Number Policy Period
XBC152493 07/01/80 06/30/81
XBC152728 07/01/81 06/30/82
XBC153752 07/01/82 06/30/83
XBC154304 07/01/83 06/30/84XBC154407 07/01/84 06/30/85
XBC154493 07/01/85 06/30/86
XBCGO313755 07/01/86 06/30/87
XBCG1042051-9 07/01/87 06/30/88
XOOG1023518-2 07/01/88 06/30/89
XOOG10238158 07/01/89 06/30/90
XOOG1157205-4 07/01/90 06/30/91
XOOG1157422-1 07/01/91 06/30/92
EXHIBIT B
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
)
, )
)
Plaintiff, )
)
v. ) Case No.)
, )
)
Defendant, )
)
ORIGINAL FILING FORM
THIS FORM MUST BE COMPLETED AND VERIFIED BY THE FILING PARTY
WHEN INITIATING A NEW CASE.
THIS SAME CAUSE, OR A SUBSTANTIALLY EQUIVALENT COMPLAINT, WAS
PREVIOUSLY FILED IN THIS COURT AS CASE NUMBER
AND ASSIGNED TO THE HONORABLE JUDGE .
THIS CAUSE IS RELATED, BUT IS NOT SUBSTANTIALLY EQUIVALENT TO ANY
PREVIOUSLY FILED COMPLAINT. THE RELATED CASE NUMBER IS AND
THAT CASE WAS ASSIGNED TO THE HONORABLE . THIS CASE MAY,
THEREFORE, BE OPENED AS AN ORIGINAL PROCEEDING.
NEITHER THIS SAME CAUSE, NOR A SUBSTANTIALLY EQUIVALENT
COMPLAINT, HAS BEEN PREVIOUSLY FILED IN THIS COURT, AND THEREFORE
MAY BE OPENED AS AN ORIGINAL PROCEEDING.
The undersigned affirms that the information provided above is true and correct.
Date:
Signature of Filing Party
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Century IndemnityCompany
4:11-CV-1097Anheuser-Busch, Inc.
06/17/2011 /s/ John F. Cooney
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AO 440 (Rev. 12/09) Summons in a Civil Action
UNITED STATES DISTRICT COURTfor the
__________ District of __________
)
))))))
Plaintiff
v. Civil Action No.
Defendant
SUMMONS IN A CIVIL ACTION
To: (Defendants name and address)
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.
CLERK OF COURT
Date:Signature of Clerk or Deputy Clerk
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Eastern District of Missouri
Century Indemnity Company
4:11-CV-1097
Anheuser-Busch, Inc.
Anheuser-Busch, Inc.Registered Agent: CT Corporation System
120 South Central AvenueClayton, Missouri 63105
John F. Cooney
Danna Mc.Kitrick, P.C.7701 Forsyth, Suite 800St. Louis, Missouri 63105
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AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on(date) .
I personally served the summons on the individual at (place)
on (date) ; or
I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individuals last known address; or
I served the summons on (name of individual) , who is
designated by law to accept service of process on behalf of(name of organization)
on (date) ; or
I returned the summons unexecuted because ; or
Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ .
I declare under penalty of perjury that this information is true.
Date:Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:
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4:11-CV-1097
0.00