INSURING AGREEMENT
In return for the premium charged, and subject to this Policy's terms, conditions and limitations, including the terms, conditions and limitations stated in the Declarations portion of this policy, THE COMPANY agrees to pay on behalf of the INSURED all sums which the INSURED becomes legally obligated to pay for damages arising out of the risks covered as defined in the STATED UNDERLYING POLICY OR STATED UNDERLYING POLICIES. It is agreed, however, that liability arising out of the risks of: sale of an aircraft; assumption of liability by the INSURED under contract or agreement; the use of premises; use of non-owned aircraft; or personal injury, are not covered under this Policy unless such coverage(s) are specifically checked as included on the DECLARATIONS pages at the time of issue or are specifically endorsed on this Policy to add such coverage.
LIMITS OF EXCESS LIABILITY
It is agreed that the Company's liability under this Policy shall be limited to the Ultimate Net Loss in excess of the Insured's Underlying Policy Limits as those terms are defined herein. Provided however that the company shall in no event be required to pay any amount greater than the Excess Limits Under This Policy as set out in Item 3. B. of the Declarations pages of this Policy.
The company shall not be required to pay any more than the Excess Limits Under This Policy as reflected in Item 3. B. of theDeclarations pages of this Policy even if the Ultimate Net Loss exceeds the Excess Limits Under This Policy.
DEFINITIONS
The following terms are shown in bold type and shall have the following meaning.
1. Ultimate Net Loss
Shall mean the sum which the insured becomes legally obligated to pay, arising from an Occurrence to which this Policy applies after deducting the Underlying Policy Limits and Costs.
2. Costs
Shall mean the sums paid in interest accruing after entry of judgment, investigation, loss adjustment and legal expenses (excluding, however, all office expense of the Insured, all expenses for salaried employees of the Insured and retainer fees for counsel normally paid by the Insured).
3. Insured
Shall mean the holder named in Item 1. A. of the Declarations pages.
4. The Company
Shall mean the Insurance Company designated on the Declarations pages as the "Excess Insurance Company."
5. Occurrence
Shall have the same meaning in this Policy as it does in the Stated Underlying Policies. However, for purposes of this Policy, all Occurrences arising from one accident, incident or event shall be one (and only one) Occurrence (regardless of the actual, total, or multiple numbers of deaths, bodily injuries to persons, or extent of property damages) and must arise only from the risks set forth on the Declarations pages of this Policy.
6. Stated Underlying Policy or Stated Underlying Policies
Shall mean those policies scheduled on the Schedule of Stated Underlying Insurance Policies on Page 1 of the Declarations pages of this Policy or those which are added by specific endorsement to this Policy.
7. Other Insurance
Shall mean any other collectible insurance with any other insurer that is available to the Insured covering a loss arising out of an Occurrence that is other than and in addition to the Stated Underlying Policies.
8. Underlying Policy Limits or Underlying Policies' Limits Shall mean the sum of the Stated Underlying Policies' Limits, as set out in
ITEM 3. A. of the DECLARATIONS pages of this Policy, and the applicable limits of any OTHER INSURANCE available to the insured. Neither the STATED UNDERLYING POLICIES' LIMITS nor the limits for OTHER INSURANCE shall be reduced by any amount not collectible from the STATED UNDERLYING POLICIES or OTHER INSURANCE for any reason whatsoever including, but not limited to, financial impairment, insolvency, liquidation or refusal to pay under the STATED UNDERLYING POLICIES or OTHER INSURANCE. Inability to collect from the STATED UNDERLYING POLICIES or OTHER INSURANCE for any reason whatsoever is not covered by this Policy.
Shall mean the limits of liability under this Policy as set out in ITEM 3. B. of the DECLARATIONS pages of this Policy.
CONDITIONS
1. PAYMENT OF COSTS
COSTS incurred by the INSURED for which the INSURED is not covered by the STATED UNDERLYING POLICIES or OTHER INSURANCE shall be apportioned as follows:
A. No COSTS shall be incurred by the INSURED without the written consent of the COMPANY.
B. Should claims become settled prior to going into court for not more than the limits of the STATED UNDERLYING POLICIES, then no COSTS shall be payable by the COMPANY.
C. Should the sum for which the claims be so settled exceed the limits of the STATED UNDERLYING POLICIES, the COMPANY, if they consent, shall contribute to the COSTS incurred by the INSURED. Such COMPANY contribution to be in the ratio that their proportion of the ULTIMATE NET LOSS, as finally settled, bears to the whole amount of the settlement.
D. The COMPANY shall not be called upon to assume charge of the settlement or defense of any claim or proceeding instituted against the INSURED. The COMPANY shall have the right and opportunity to associate with the INSURED in the defense and control of any claims or proceeding reasonably likely to involve the COMPANY. In such event the INSURED and the COMPANY shall cooperate fully.
E. In the event that the INSURED elects not to appeal a judgment in excess of the STATED UNDERLYING POLICIES, the COMPANY may elect to conduct such appeal at their own costs and expense and shall be liable for any taxable court costs and interest. In no event shall the total liability of the COMPANY exceed the EXCESS LIMITS under this Policy as stated above, plus the expense of such appeal.
2. ACTION AGAINST THE COMPANY
No action shall lie against the COMPANY unless the INSURED shall have fully complied with all of the terms of this Policy and the STATED UNDERLYING POLICIES and OTHER INSURANCE. No one has a right to sue the COMPANY until the amount of the INSURED'S obligation to pay an amount of ULTIMATE NET LOSS in excess of the UNDERLYING POLICY LIMITS shall have been finally determined by a court, or by written agreement of the INSURED, the claimant and the COMPANY. The INSURED must make a written claim for any loss in which the COMPANY may be liable within one year after such determination. Bankruptcy or insolvency of an INSURED or an INSURED'S estate does not relieve the COMPANY of its obligations under this Policy.
3. STATED UNDERLYING POLICIES
This Policy is subject to the same warranties, promises, terms, conditions and exclusions (except as regards the premium, the obligation to investigate and defend, the amounts and Limits of Liability/Coverage Limits and the Renewal Agreement, if any, and except as otherwise provided in this Policy) as are contained in or as may be added to the STATED UNDERLYING POLICIES prior to any OCCURRENCE for which claim is made. Provided that the COMPANY may specifically exclude or amend certain terms of the STATED UNDERLYING POLICIES from coverage under this Aviation Excess Liability Policy. Any such amendments or excluded terms shall be stated hereon.
A. It is an express condition precedent to coverage under this Policy and to the liability of the COMPANY that the STATED UNDERLYING POLICIES shall be maintained in full force and effect during the period of this Policy including, at the minimum, those limits stated on page 1, DECLARATIONS, ITEM 3. , at inception hereof.
B. It is an express condition precedent to coverage under this Policy and to the liability of the COMPANY that payment for any OCCURRENCE arising from Airport General Liability shall be subject to no less than the provisions of the "Noise and Pollution and Other Perils Clause" and the "Aviation Radioactive Contamination Exclusion Clause" which form a part of this Policy by endorsement.
4. CHANGES TO STATED UNDERLYING
If there is any amendment or other change to the warranties, promises, terms conditions or exclusions of the STATED UNDERLYING POLICIES, the INSURED shall give immediate written notice to the COMPANY. The COMPANY shall have the option of either accepting such amendments and amending the premium accordingly or refusing such amendment in which case this Policy shall cease to follow the STATED UNDERLYING POLICIES with respect to such amendments only. The COMPANY shall accept such amendments or other changes to the STATED UNDERLYING POLICIES only by providing the INSURED written acceptance in the form of a written endorsement of such amendments or changes. The parties expressly agree that the COMPANY shall not be bound by any amendments or other changes to the STATED UNDERLYING POLICIES unless the INSURED receives such written endorsement from the COMPANY.
Should the COMPANY accept any change to the STATED UNDERLYING POLICIES, then the premium shall be adjusted as determined by the Company.
Notice to or knowledge of any agent or other person about amendments to, or changes to, STATED UNDERLYING POLICIES shall not effect a waiver or change any part of this Policy or stop the COMPANY from asserting any right under it. The terms of this Policy cannot be waived or changed except by written endorsement.
5. ADDITIONAL INSUREDS
If a manufacturer, repairer, supplier, or servicing agent is included as an Additional Insured under this Policy, such addition shall not prejudice the COMPANY from its rights of recourse against such Additional Insured, where such right of recourse would have existed had they not been included.
6. OTHER EXCESS INSURANCE
If the INSURED wishes to purchase additional excess liability coverage in excess of and in addition to this Policy, INSURED may do so if the COMPANY agrees in writing to allow it.
7. SUBROGATION
In case of any payment under this Policy, the COMPANY has the right to act in concert with all other interests, (including entitles listed in the SCHEDULE OF UNDERLYING INSURANCE POLICIES on Page 1 of the DECLARATIONS pages of this Policy and/or the INSURED) in the exercise of the COMPANY'S rights of subrogation of recovery against any person or organization.
8. CANCELLATION
INSURED may cancel this Policy only by written notice to the COMPANY stating when thereafter the cancellation shall be effective. The COMPANY may cancel this Policy by mailing to the INSURED, at the address shown in ITEM 1. A. of this Policy, written notice stating when not less than 30 days thereafter such cancellation shall be effective. The mailing of notice shall be sufficient proof of notice. The time of the surrender or the effective date and hour of cancellation stated in the notice shall become the end of the Policy Period. Delivery of such written notice either by the named INSURED or the COMPANY shall be equivalent to mailing. If the named INSURED cancels, earned premium shall be computed in accordance with the customary short rate table and procedure. If the COMPANY cancels, earned premium shall be computed prorata. Premium adjustment may be made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender of earned premium is not a condition of cancellation.
9. NOTICE OF OCCURRENCE
When an OCCURRENCE takes place, written notice shall be given by or on behalf of the INSURED to the Aviation Underwriting Managers as soon as practicable. Such notice shall contain information sufficient to identify the INSURED and also reasonable obtainable information concerning the time, place and circumstances of the OCCURRENCE, the name and addresses of injured parties and of available witnesses.
10. REQUIRED STATED UNDERLYING
It is an express condition precedent to any coverage of this Policy that the STATED UNDERLYING POLICIES be kept in full force and effect at the time of any loss occasioning claim under this Policy. If for any reason these required STATED UNDERLYING POLICIES have been cancelled, or are otherwise not in effect due to exclusion or any other reason whatsoever, there is no coverage under this Policy.
11. SEVERABILITY
If any provision of this Policy is ever judicially determined to be void, invalid or unenforceable, the remaining provision of this Policy shall not be affected by such determination.
CLARENDON NATIONAL INSURANCE COMPANY
C/O AVIATION MANAGERS
P.O. BOX 6275
FORT WORTH, TX 76115
AVIATION RADIOACTIVE CONTAMINATION EXCLUSION CLAUSE
(1) This Policy does not cover
(a) loss or destruction of or damage to any property whatsoever or any loss or expense whatsoever resulting or arising therefrom
(b) any legal liability of whatsoever nature directly or indirectly caused or contributed to by or arising from ionizing radiation or contamination by radioactivity from any source whatsoever.
(2) Loss, destruction, damage, expense or legal liability which, but for the provisions of paragraph (1) of this Clause, would be covered by this Policy and is directly or indirectly caused or contributed to by or arises from ionizing radiation or contamination by radioactivity from any' radioactive materials in course of carriage as cargo under International Air Transport Association regulations, shall (subject to all the other provisions of this Policy) be covered, provided that:
(a) it shall be a condition precedent to the liability of the Company that the carriage of any radioactive materials shall in alt respects comply with the current regulations issued by the International Air Transport Association relating to the carriage of restricted articles by air;
(b) this Policy shall only apply to any claim made against the Insured arising out of any accident or incident occurring during the period of this insurance and any such claim by the Insured against the Company by any claimant against the Insured shall have been made within three years after the date of the occurrence giving rise to the claim;
(c) in the case of any claim by virtue of this paragraph (2) for physical damage, the level of contamination shall have exceeded the maximum permissible level set out in the following scale: -
Beta, gamma, and low toxicity alpha emitters Not Exceeding 4 Bequerels/cm2
(104 microcuries/cm2)All other alpha emitters Not Exceeding 4 Bequerels/cm2
(104 microcuries/cm2)(d) the cover afforded by this paragraph (2) may be canceled at any time by the Company giving seven days notice of cancellation.
This endorsement forms a part of the Policy to which attached, effective on the inception date of the Policy unless otherwise stated herein. (The following information is required only when this endorsement is issued subsequent to preparation of the Policy.)
NOISE AND POLLUTION AND OTHER PERILS EXCLUSION CLAUSE
1. This Policy does not cover claims directly or indirectly occasioned by, happening through, or in consequence of:
(a) noise (whether audible to the human ear or not), vibration, sonic boom and any phenomena associated therewith,
(b) pollution and contamination of any kind whatsoever,
(c) electrical and electromagnetic interference,
(d) interference with the use of property:
unless caused by or resulting in a crash, fire, explosion, or collision or a recorded in-flight emergency causing abnormal aircraft operation.
2. With respect to any provision in the Policy concerning any duty of the Company to investigate or defend claims, such provision shall not apply and the Company shall not be required to defend:
(a) claims excluded by Paragraph I or
(b) a claim or claims covered by the Policy when combined with any claims excluded by Paragraph I (referred to below as "Combined Claims").
3. In respect of any Combined Claims, the Company shall (subject to proof of loss and the limits of the Policy) reimburse the Insured for that portion of the following items which may be allocated to the claim or claims covered by the Policy:
(i) damages awarded against the Insured and (ii) defense fees and expenses incurred by the Insured.
4. Nothing herein shall override any radioactive contamination or other exclusion clause attached to or forming part of this Policy.
This endorsement forms a part of the Policy to which attached, effective on the inception date of the Policy unless otherwise stated herein. (The following information is required only when this endorsement is issued subsequent to preparation of the Policy.)
WAR, HI-JACKING AND OTHER PERILS EXCLUSION CLAUSE (AVN.48B)
This policy does not cover claims caused by
(a) War, invasion, acts of foreign enemies, hostilities, (whether war be declared or not), civil war, rebellion, revolution, insurrection, martial law, military or usurped power or attempts at usurpation of power.
(b) Any hostile detonation of any weapon of war employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter.
(c) Strikes, riots, civil commotion's or labor disturbances.
(d) Any act of one or more persons, whether or not agents of a sovereign Power, for political or terrorist purposes and whether the loss or damage resulting therefrom is accidental or intentional.
(e) Any malicious act or act of sabotage.
(f) Confiscation, nationalization, seizure, restraint, detention, appropriation, requisition for title or use by or under the order of any Government (whether civil military or de facto) or public or local authority.
(g) Hi-jacking or any unlawful seizure or wrongful exercise of control of the aircraft or crew in flight (including any attempt at such seizure or control) made by any person or persons on board the aircraft acting without the consent of the Insured.
Furthermore, this Policy does not cover claims arising whilst the aircraft is outside the control of the Insured by reason of any of the above perils.
The aircraft shall be deemed to have been restored to the control of the Insured on the safe return of the aircraft to the Insured at an airfield not excluded by the geographical limits of this Policy, and entirely suitable for the operation of the aircraft (such safe return shall require that the aircraft be parked with engines shut down and under no duress.)
ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED.
HALTON HALL & ASSOCIATES, INC.