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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

COLLEGIATE LICENSING COMPANY Plaintiff, v. AMERICAN CASUALTY CO. OF READING, PENNSYLVANIA; GREAT DIVIDE INSURANCE COMPANY; ALLIED WORLD NATIONAL ASSURANCE COMPANY; WESTCHESTER FIRE INSURANCE COMPANY; and LEXINGTON INSURANCE COMPANY; Defendants.

) ) ) ) Civil Action No.: ____________ ) ) ) ) ) ) ) JURY TRIAL DEMANDED ) ) ) ) ) ) ) )

COMPLAINT Collegiate Licensing Company files this complaint, alleging as follows: 1. This is a complaint for breach of contract and declaratory judgment by Plaintiff Collegiate Licensing Company (CLC) against certain of its insurers, American Casualty Co. of Reading, Pennsylvania (American Casualty), Great

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Divide Insurance Company (Great Divide), Allied World National Assurance Company (Allied World), Westchester Fire Insurance Company (Westchester) and Lexington Insurance Company (Lexington) (collectively, the Insurers). CLC seeks, inter alia, damages for breach of contract and judicial declarations regarding the Insurers obligations under the insurance policies discussed herein, in connection with a number of putative class action lawsuits filed against CLC and other defendants. These underlying suits are brought by former National Collegiate Athletic Association student-athletes and some former professional athletes, alleging among other things that the NCAA, Electronic Arts, Inc. (which sells video games), and CLC have misappropriated their images. CLC vigorously disputes such allegations. It brings this suit to clarify its rights with respect to those underlying suits under insurance policies purchased from the above Insurers. PARTIES 2. Plaintiff CLC is a corporation organized and existing under the laws of the State of Georgia with its principal place of business in Atlanta, Georgia. CLC is a wholly-owned subsidiary of IMG Worldwide, Inc. (IMG), a named insured on many of the policies referenced in this Complaint. Either as a direct purchaser or

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as a wholly-owned subsidiary of IMG, CLC is an insured under the insurance policies referenced herein. 3. Defendant American Casualty is a corporation organized and existing under the laws of the State of Pennsylvania, with its principal place of business in Chicago, Illinois. American Casualty is registered to do business in Georgia and transacts business in this jurisdiction by issuing insurance policies to Georgia residents. American Casualty can be served with process through its registered agent in Georgia: CT Corporation System, 1201 Peachtree Street, Northeast, Atlanta, Georgia 30361. 4. Defendant Great Divide is a corporation organized and existing under the laws of the State of North Dakota, with its principal place of business in Arizona. Great Divide is registered to do business in Georgia and transacts business in this jurisdiction by issuing insurance policies to Georgia residents. Great Divide can be served with process through its registered agent in Georgia: Herbert Chestnut, 180 Cherokee Street, Northeast, Marietta, Georgia 30060.

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5. Defendant Allied World is a corporation organized and existing under the laws of the State of New Hampshire, with its principal place of business in Massachusetts. Allied World is registered to do business in Georgia and transacts business in this jurisdiction by issuing insurance policies to Georgia residents. Allied World can be served with process through its registered agent in Georgia: Corporation Service Company, 40 Technology Parkway South #300, Norcross, Georgia 30092. 6. Defendant Westchester is a corporation organized and existing under the laws of the State of Pennsylvania, with its principal place of business in Pennsylvania. Westchester is registered to do business in Georgia and transacts business in this jurisdiction by issuing insurance policies to Georgia residents. Westchester can be served with process through its registered agent in Georgia: Mark G. Irwin, 500 Colonial Center Parkway, #200, Roswell, Georgia 30076. 7. Defendant Lexington is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business in Massachusetts. Lexington transacts business in this jurisdiction by issuing insurance policies under which Georgia citizens are the named insureds. Furthermore, pursuant to the 4
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Service of Suit clause contained in the insurance policy issued by Lexington at issue in this action, Lexington has submitted to jurisdiction in Georgia. JURISDICTION 8. This Court has jurisdiction of this action pursuant to 28 U.S.C. 1332, 2201 and 2202. Complete diversity of citizenship exists between the parties, and the amount in controversy is in excess of $75,000 (Seventy-Five Thousand Dollars and no/100), exclusive of interest and costs. VENUE 9. Venue is proper in this Court pursuant to 28 U.S.C. 1391 (a) and (c). THE PRIMARY INSURANCE POLICIES 10. American Casualty issued primary commercial general liability policy number L 2071894473 to CLC with a Policy Period of June 13, 2004 to June 13, 2005. A true and correct copy of this policy is attached hereto as Exhibit A. This policy renewed on substantially similar terms for the policy periods June 13, 2005 to June 13, 2006 and June 13, 2006 to June 13, 2007 under policy number P 2077720720. In addition, American Casualty also issued excess/umbrella policies to CLC covering the same Policy Periods, under policy numbers L 2071894490 5
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and P 2077720734. These American Casualty policies are collectively referenced herein as the American Casualty Primary Policies. 11. The American Casualty primary policies each have a $1 million Personal and Advertising Injury limit of insurance and a $2 million General Aggregate limit of insurance. 12. Great Divide issued primary commercial general liability policy number CLA 1007022-11 to IMG Worldwide, Inc. (IMG) and its subsidiaries (including CLC), with a policy period of August 10, 2006 to August 10, 2007. A true and correct copy of this policy is attached hereto as Exhibit B. This policy renewed on substantially similar terms, as policy number CLA 1007022-12 with a policy period of August 10, 2007 to August 10, 2008; as policy number CLA 1007022-13 with a policy period of August 10, 2008 to August 10, 2009; and as policy number CLA 1007022-14 with a policy period August 10, 2009 to August 10, 2010. As a subsidiary of IMG beginning in May 2007, CLC is an insured under these policies. These Great Divide Primary Policies are collectively referenced herein as the Great Divide Primary Policies.

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13. The Great Divide Primary Policies each have a $2 million Personal and Advertising Injury limit of insurance and a $2 million General Aggregate limit of insurance. 14. Allied World issued primary commercial general liability policy number 0305-8314 to IMG and CLC (as an entity in which IMG owns more than a fifty percent interest), with a policy period of August 10, 2010 to August 10, 2011. A true and correct copy of this policy is attached hereto as Exhibit C. This policy is referenced herein as the Allied World Primary Policy. 15. The Allied World Primary Policy has a $1 million Personal and Advertising Injury Limit of Insurance and a $2 million General Aggregate Limit of Insurance. 16. The American Casualty Primary Policies, Great Divide Primary Policies and Allied World Primary Policy (collectively, the Primary CGL Policies) each contain nearly identical terms. In particular, the Insuring Agreements for Coverage B Personal and Advertising Injury Liability in each of the Primary CGL Policies provide: 7
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We will pay those sums that the insured becomes legally obligated to pay as damages because of personal and advertising injury to which this insurance applies. We will have the right and duty to defend the insured against any suit seeking those damages. Primary CGL Policies, Coverage B Insuring Agreement 1.a. 17. The Primary CGL Policies each define personal and advertising injury as: [I]njury, including consequential bodily injury, arising out of one or more of the following offenses: a. b. c. False arrest, detention or imprisonment; Malicious prosecution; The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor; Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a persons or organizations goods, products or services; Oral or written publication, in any manner, of material that violates a persons right of privacy; The use of anothers advertising idea in your advertisement; or Infringing upon anothers copyright, trade dress or slogan in your advertisement.

d.

e.

f.

g.

Primary CGL Policies, Definitions V.14. 8

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18. The Primary CGL Policies are occurrence-based policies, meaning that they generally are triggered based on when the circumstances giving rise to the Underlying Actions (for example the offense(s)) took place. THE UMBRELLA INSURANCE POLICIES 19. In addition to the above-referenced American Casualty Primary Policies, American Casualty issued excess/umbrella policies to CLC covering the same policy periods. American Casualty issued policy number L 2071894490 to CLC for the policy period June 13, 2004 to June 13, 2005. A true and correct copy of this policy is attached hereto as Exhibit D. This policy renewed on substantially similar terms for the policy periods June 13, 2005 to June 13, 2006, and June 13, 2006 to June 13, 2007, each under policy number P 2077720734. These policies are collectively referenced herein as the American Casualty Umbrella Policies. 20. The American Casualty Umbrella Policies each have a $5 million Each Incident limit of insurance and a $5 million Aggregate limit of insurance. They are umbrella policies that, in certain circumstances provide primary coverage, but in other circumstances provide coverage that is excess of the American Casualty Primary Policies. 9
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21. Westchester issued commercial umbrella liability policy number G22035459001 to IMG and its subsidiaries (including CLC), with a Policy Period of August 10, 2006 to August 10, 2007. A true and correct copy of this policy is attached hereto as Exhibit E. This policy renewed as policy number G22035459002 with a policy period of August 10, 2007 to August 10, 2008; as policy number G22035459003 with a policy period of August 10, 2008 to August 10, 2009; and as policy number G22035459004 with a policy period of August 10, 2009 to August 10, 2010. These Westchester policies are collectively referenced herein as the Westchester Umbrella Policies. The Westchester Umbrella Policies are substantially similar in their terms. 22. The Westchester Umbrella Policies each have a $25 million Personal and Advertising Injury limit of insurance and a $25 million Aggregate limit of insurance. As above, the Westchester Umbrella Policies are umbrella policies that in certain circumstances provide primary coverage, but in other circumstances provide coverage that is excess of the Great Divide Primary Policies. 23. Lexington issued commercial umbrella liability policy number 013136479 to IMG and its subsidiaries (including CLC), with a Policy Period of August 10, 2010 10
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to August 10, 2011 (the Lexington Umbrella Policy). A true and correct copy of this policy is attached hereto as Exhibit F. 24. The Lexington Umbrella Policy has a $25 million Each Occurrence limit of insurance and a $25 million General Aggregate limit of insurance. The Lexington Umbrella Policy is an umbrella policy that in certain circumstances provides primary coverage, but in other circumstances provides coverage that is excess of the Allied World Primary Policy. THE UNDERLYING ACTIONS 25. On or about May 5, 2009, Samuel Keller filed a complaint styled Keller, et al. v. Electronic Arts, Inc., National Collegiate Athletic Association and Collegiate Licensing Company, Case No. CV09-1967 (Keller), in the United States District Court for the Northern District of California. A true and correct copy of this complaint is attached hereto as Exhibit G. 26. On or about July 21, 2009, Edward OBannon filed a complaint styled OBannon, et al. v. National Collegiate Athletic Association and Collegiate Licensing Company, Case No. CV09-3329 (OBannon), in the United States 11
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District Court for the Northern District of California. A true and correct copy of this complaint is attached hereto as Exhibit H. 27. On or about September 4, 2009, Bryon Bishop filed a complaint styled Bishop, et al. v. Electronic Arts, Inc., et al., National Collegiate Licensing Association and Collegiate Licensing Company, Case No. CV09-4128 (Bishop), in the United States District Court for the Northern District of California. A true and correct copy of this complaint is attached hereto as Exhibit I. 28. On or about September 15, 2009, Brad Nuckles and Ryan Lawson filed a complaint styled Nuckles, Lawson, et al. v. National Collegiate Athletic Association, Inc. and Collegiate Licensing Company, Case No. 27864 (Nuckles), in the Circuit Court for Washington County, Tennessee. The case was subsequently removed to removed to the District Court for the Eastern District of Tennessee, USDC Case No. CV09-235. A true and correct copy of this complaint is attached hereto as Exhibit J. On or about January 29, 2010, the Nuckles plaintiffs dismissed their lawsuit.

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29. On or about October 14, 2009, Craig Newsome filed a complaint styled Newsome, et al. v. National Collegiate Athletic Association and Collegiate Licensing Company, Case No. CV09-4882 (Newsome), in the United States District Court for the Northern District of California. A true and correct copy of this complaint is attached hereto as Exhibit K. 30. On or about October 29, 2009, Danny Wimprine filed a complaint styled Wimprine, et al. v. National Collegiate Athletic Association and Collegiate Licensing Company, Case No. CV09-5134-BZ (Wimprine), in the United States District Court for the Northern District of California. A true and correct copy of this complaint is attached hereto as Exhibit L. 31. On or about October 27, 2009, Michael Anderson filed a complaint styled Anderson, et al. v. National Collegiate Athletic Association and Collegiate Licensing Company, Case No. CV09-5100-BZ (Anderson), in the United States District Court for the Northern District of California. A true and correct copy of this complaint is attached hereto as Exhibit M.

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32. On or about November 13, 2009, Samuel Jacobson filed a complaint styled Jacobson, et al. v. National Collegiate Athletic Association and Collegiate Licensing Company, Case No. CV-09-5372 (Jacobson), in the United States District Court for the Northern District of California. A true and correct copy of this complaint is attached hereto as Exhibit N. 33. On or about November 13, 2009, Damien Rhodes filed a complaint styled Rhodes, et al. v. National Collegiate Athletic Association and Collegiate Licensing Company, Case No. CV-09-5378 (Rhodes), in the United States District Court for the Northern District of California. A true and correct copy of this complaint is attached hereto as Exhibit O. 34. On or about January 15, 2010, Keller, OBannon, Bishop, Newsome, Wimprine, Anderson, Jacobson and Rhodes were consolidated into the lawsuit styled In re NCAA Student-Athlete Name & Likeness Licensing Litigation, Case No. 09-1976-CW (In re NCAA), in the United States District Court for the Northern District of California.

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35. The In re NCAA plaintiffs filed a Consolidated Amended Class Action Complaint on March 10, 2010. Subsequently, on May 16, 2011, the In re NCAA plaintiffs filed a Second Consolidated Amended Class Action Complaint. The Second Consolidated Amended Class Action Complaint is attached hereto as Exhibit P. 36. On or about February 12, 2010, Ishmael Thrower filed a complaint styled Thrower, et al. v. National Collegiate Athletic Association and Collegiate Licensing Company, Case No. 3:10-cv-00632-VRW (Thrower), in the United States District Court for the Northern District of California. A true and correct copy of this complaint is attached hereto as Exhibit Q. 37. On or about January 26, 2011, Oscar Robertson, Tate George and Ray Ellis filed a complaint styled Robertson, et al. v. National Collegiate Athletic Association, Collegiate Licensing Company and Electronic Arts, Case No. 3:10cv-00632-VRW (Robertson), in the United States District Court for the Northern District of California. A true and correct copy of this complaint is attached hereto as Exhibit R.

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38. The Robertson and Thrower lawsuits have been deemed administratively related to the In re NCAA lawsuit by the United States District Court for the Northern District of California, such that each has been assigned to the same District Court Judge. 39. The In re NCAA, Nuckles, Thrower and Robertson lawsuits are collectively referenced herein as the Underlying Actions. Additional lawsuits that have been or may be filed in the future may be included in this lawsuit at a later date. For example, CLC recently learned that on or about October 5, 2011, William F. Russell filed a complaint styled William F. Russell v. National Collegiate Athletic Association, Collegiate Licensing Company and Electronic Arts, Inc., Case No. C11-04938 (Russell), in the United States District Court for the Northern District of California. A true and correct copy of the Russell complaint is attached hereto as Exhibit S. After CLC tenders this suit to the Insurers, the Russell suit will likely also become a subject of this suit.

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CLCS CLAIMS UNDER THE POLICIES 40. CLC has tendered each of the Underlying Actions to American Casualty under the American Casualty Primary Policies and the American Casualty Umbrella Policies. 41. American Casualty agreed to defend CLC in the Underlying Actions, pursuant to a purported reservation of rights. However, as discussed below, American Casualty has imposed certain conditions and limitations on its defense that constitute a breach of the American Casualty Primary Policies. 42. CLC has tendered each of the Underlying Actions to Great Divide under the Great Divide Primary Policies, requesting that Great Divide defend and indemnify CLC. In addition, CLC has tendered each of the Underlying Actions to Westchester under the Westchester Umbrella Policies. 43. Great Divide has refused to defend or indemnify CLC with respect to the Underlying Actions. Westchester has likewise denied coverage under the Westchester Umbrella Policies.

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44. After inception of the Allied World Primary Policy, CLC tendered the pending In re NCAA, Thrower and Robertson cases to Allied World, requesting that Allied World defend and indemnify CLC. In addition, CLC has tendered these lawsuits to Lexington under the Lexington Umbrella Policy. 45. Allied World accepted CLCs tender of the Robertson lawsuit and agreed to defend CLC in the Robertson lawsuit (and another, similar lawsuit that has been since dismissed), pursuant to a purported reservation of rights. Allied World has not informed CLC of its coverage determination with respect to the In re NCAA and Thrower lawsuits. Lexington has not informed CLC of its coverage position with respect to any of the suits CLC tendered. 46. CLC also has insurance as an additional insured under commercial general liability insurance policies issued to Electronic Arts, Inc., which are issued by National Union Fire Insurance Company of Pittsburgh, Pa. (National Union). National Union agreed to defend CLC in the Underlying Actions, subject to a reservation of rights, and significant limitations and restrictions. Recently, however, National Union filed a Complaint for Declaratory Relief and Reimbursement of Defense Costs against EA and CLC in the United States District 18
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Court for the Northern District of California, styled National Union Fire Insurance Company of Pittsburgh, Pa., et al. v. Electronic Arts, Inc., et al., Case No. C1104897. In that lawsuit, National Union seeks a declaration that it owes no duty to defend or indemnify CLC in connection with the Underlying Actions, and seeks reimbursement of defense costs paid to CLC in connection with the Underlying Actions. 47. In light of the above, CLC is entitled to, among other things, a determination and declaration in this Court as to the parties rights and obligations under the American Casualty Primary Policies, the Great Divide Primary Policies, and the Allied World Primary Policy; and is likewise entitled to such a determination under the American Casualty Primary Policies, the Westchester Umbrella Policies, and the Lexington Umbrella Policy (collectively, the Umbrella Policies). COUNT I Breach of Contract Against American Casualty 48. CLC incorporates herein by reference paragraphs 1 through 47 as fully set forth herein.

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49. The Underlying Actions allege injury within the coverage of the American Casualty Primary Policies. At the very least, the Underlying Actions allege injury that is potentially covered by the American Casualty Primary Policies. Therefore, American Casualty owes CLC a duty to defend in the Underlying Actions. 50. CLC has complied with all terms and conditions in the American Casualty Primary Policies, or such compliance has been excused, waived or relieved by estoppel. Additionally, none of the exclusions in the American Casualty Primary Policies preclude coverage, or American Casualtys reliance on such exclusions has been waived or estopped. 51. American Casualty has breached its contractual obligations under the American Casualty Primary Policies by refusing to confirm and provide a full and complete defense to CLC in the Underlying Actions. Among other things, American Casualty has refused to pay the full amount of defense costs CLC has incurred and will continue to incur. American Casualty takes the erroneous position contrary to the plain language of the American Casualty Primary Policies that California Civil Code section 2860 governs the amounts which American Casualty is required to pay to defend CLC in the Underlying Actions. 20
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Further, American Casualty attempted to condition its defense of CLC in the Underlying Actions upon a purported right to seek recoupment from CLC of any defense costs that American Casualty pays to CLC, but which American Casualty contends relate solely to claims that are not covered under the American Casualty Primary Policies. American Casualty has no right to such recoupment under the American Casualty Primary Policies, or at law. 52. As a direct and proximate result of American Casualtys breach, American Casualty has caused CLC to incur damages, including without limitation legal fees and expenses to defend the Underlying Actions. 53. CLC is entitled to recover from American Casualty damages arising out of American Casualtys breach of its obligations under the American Casualty Primary Policies, including attorneys fees and costs, and interest thereon, in an amount to be proven at trial.

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COUNT II Declaratory Judgment against American Casualty regarding its Duty to Defend under the American Casualty Primary Policies 54. CLC incorporates herein by reference paragraphs 1 through 53 as fully set forth herein. 55. The Underlying Actions allege injury within the coverage of the American Casualty Primary Policies. At the very least, the Underlying Actions allege injury that is potentially covered by the American Casualty Primary Policies. Therefore, American Casualty owes CLC a duty to defend in the Underlying Actions. 56. CLC has complied with all terms and conditions in the American Casualty Primary Policies, or such compliance has been excused, waived or relieved by estoppel. Additionally, none of the exclusions in the American Casualty Primary Policies preclude coverage, or American Casualtys reliance on such exclusions has been waived or estopped. 57. American Casualty has failed and refused to fulfill its duty to defend CLC in the Underlying Actions, as set forth herein.

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58. In light of the above, there exists a case of actual controversy between CLC and American Casualty under 28. U.S.C. 2201, related to American Casualtys duty to defend CLC in the Underlying Actions. American Casualty alleges, among other things, that it does not owe a duty to pay the full amount of CLCs defense costs in the Underlying Actions, and that it may recoup certain defense costs from CLC after they are paid. CLC contends that it is owed a full and complete defense under the American Casualty Primary Policies, not subject to California Civil Code section 2860 or any right of recoupment. 59. A declaration of rights pursuant to 28 U.S.C. 2201 and 2202 would resolve the uncertainty with respect to the obligations of American Casualty to defend CLC in the Underlying Actions. 60. CLC is entitled to a declaration that American Casualty has an indivisible duty to defend CLC in the Underlying Actions under the terms of the American Casualty Primary Policies.

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COUNT III Declaratory Judgment against American Casualty regarding the American Casualty Umbrella Policies 61. CLC incorporates herein by reference paragraphs 1 through 60 as fully set forth herein. 62. The Underlying Actions allege injury within the coverage of the American Casualty Umbrella Policies. 63. CLC has complied with all terms and conditions in the American Casualty Umbrella Policies, or such compliance has been excused, waived or relieved by estoppel. Additionally, none of the exclusions in the American Casualty Umbrella Policies preclude coverage, or American Casualtys reliance on such exclusions has been waived or estopped. 64. In light of the above, there exists a case of actual controversy between CLC and American Casualty with respect to their rights and obligations under the American Casualty Umbrella Policies, that is appropriate for resolution pursuant to 28 U.S.C. 2201 and 2202. CLC is entitled to a declaration that the Underlying Actions are covered by the American Casualty Umbrella Policies. 24
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COUNT IV Breach of Contract Against Great Divide 65. CLC incorporates herein by reference paragraphs 1 through 47 as fully set forth herein. 66. The Underlying Actions allege injury within the coverage of the Great Divide Primary Policies. At the very least, the Underlying Actions allege injury that is potentially covered by the Great Divide Primary Policies. Therefore, Great Divide owes CLC a duty to defend in the Underlying Actions. 67. CLC has complied with all terms and conditions in the Great Divide Primary Policies, or such compliance has been excused, waived or relieved by estoppel. Additionally, none of the exclusions in the Great Divide Primary Policies preclude coverage, or Great Divides reliance on such exclusions has been waived or estopped. 68. Great Divide has breached its contractual obligations under the Great Divide Primary Policies by refusing to defend, or confirm its obligation to defend, CLC in

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the Underlying Actions. Great Divides denial of coverage is set forth in numerous letters between Great Divide and CLC. 69. As a direct and proximate result of Great Divides breach, Great Divide has caused CLC to incur damages, including without limitation significant legal fees and expenses to defend the Underlying Actions. 70. CLC is entitled to recover from Great Divide damages arising out of Great Divides breach of its obligations under the Great Divide Primary Policies, including attorneys fees and costs, and interest thereon, in an amount to be proven at trial. COUNT V Declaratory Judgment against Great Divide regarding its Duty to Defend under the Great Divide Primary Policies 71. CLC incorporates herein by reference paragraphs 1 through 47 and paragraphs 65 through 70 as fully set forth herein.

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72. The Underlying Actions allege injury within the coverage of the Great Divide Primary Policies. At the very least, the Underlying Actions allege injury that is potentially covered by the Great Divide Primary Policies. Therefore, Great Divide owes CLC a duty to defend in the Underlying Actions. 73. CLC has complied with all terms and conditions in the Great Divide Primary Policies, or such compliance has been excused, waived or relieved by estoppel. Additionally, none of the exclusions in the Great Divide Primary Policies preclude coverage, or Great Divides reliance on such exclusions has been waived or estopped. 74. Great Divide has failed and refused to confirm or fulfill its duty to defend CLC in the Underlying Actions, as set forth herein. 75. There exists a case of actual controversy under 28 U.S.C. 2201 between CLC and Great Divide related to Great Divides duty to defend the Underlying Actions. Great Divide has failed and refused to provide any defense to CLC in the Underlying Actions. CLC contends that it is owed a full and complete defense under the Great Divide Primary Policies. 27
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76. A declaration of rights pursuant to 28 U.S.C. 2201 and 2202 would resolve the uncertainty currently facing CLC with respect to the obligations of Great Divide to defend CLC in the Underlying Actions. 77. CLC is entitled to a declaration that Great Divide has an indivisible duty to defend CLC in the Underlying Actions under the terms of the Great Divide Primary Policies. COUNT VI Declaratory Judgment against Westchester regarding the Westchester Umbrella Policies 78. CLC incorporates herein by reference paragraphs 1 through 47 and paragraphs 65 through 77 as fully set forth herein. 79. The Underlying Actions allege injury within the coverage of the Westchester Umbrella Policies. 80. CLC has complied with all terms and conditions in the Westchester Umbrella Policies, or such compliance has been excused, waived or relieved by estoppel. Additionally, none of the exclusions in the Westchester Umbrella 28
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Policies preclude coverage, or Westchesters reliance on such exclusions has been waived or estopped. 81. In light of the above, there exists a case of actual controversy between CLC and Westchester with respect to their rights and obligations under the Westchester Umbrella Policies, that is appropriate for resolution pursuant to 28 U.S.C. 2201 and 2202. CLC is entitled to a declaration that the Underlying Actions are covered by the Westchester Umbrella Policies. COUNT VII Declaratory Judgment against Allied World regarding its Duty to Defend under the Allied World Primary Policy 82. CLC incorporates herein by reference paragraphs 1 through 47 as fully set forth herein. 83. The Underlying Actions allege injury within the coverage of the Allied World Primary Policy. At the very least, the Underlying Actions allege injury that is potentially covered by the Allied World Primary Policy. Therefore, Allied World owes CLC a duty to defend in the Underlying Actions.

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84. CLC has complied with all terms and conditions in the Allied World Primary Policy, or such compliance has been excused, waived or relieved by estoppel. Additionally, none of the exclusions in the Allied World Primary Policy preclude coverage, or Allied Worlds reliance on such exclusions has been waived or estopped. 85. Allied World has failed to confirm it owes a duty to defend CLC in Underlying Actions, despite ample time to do so, as set forth herein. 86. There exists a case of actual controversy under 28 U.S.C. section 2801 between CLC and Allied World related to Allied Worlds duty to defend the Underlying Action. In addition, despite ample time to issue a coverage position, Allied World has not informed CLC of its coverage determination with respect to the In re NCAA and Thrower lawsuits. CLC contends that it is owed a full and complete defense to all the Underlying Lawsuits under the Allied World Primary Policy.

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87. A declaration of rights pursuant to 28 U.S.C. 2201 and 2202 would resolve the uncertainty currently facing CLC with respect to the obligations of Allied World to defend CLC in the Underlying Actions. 88. CLC is entitled to a declaration that Allied World has an indivisible duty to defend CLC in the Underlying Actions under the terms of the Allied World Primary Policy. COUNT VIII Declaratory Judgment against Lexington regarding the Lexington Umbrella Policy 89. CLC incorporates herein by reference paragraphs 1 through 47 and paragraphs 82 through 88 as fully set forth herein. 90. The Underlying Actions allege injury within the coverage of the Lexington Umbrella Policy. 91. CLC has complied with all terms and conditions in the Lexington Umbrella Policy, or such compliance has been excused, waived or relieved by estoppel.

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Additionally, none of the exclusions in the Lexington Umbrella Policy preclude coverage, or Lexingtons reliance on such exclusions has been waived or estopped. 92. In light of the above, there exists a case of actual controversy between CLC and Lexington with respect to their rights and obligations under the Lexington Umbrella Policy, that is appropriate for resolution pursuant to 28 U.S.C. 2201 and 2202. CLC is entitled to a declaration that the Underlying Actions likewise are covered by the Lexington Umbrella Policy. * * * WHEREFORE, CLC respectfully seeks the following: (1) (2) That the Court enter judgment in favor of CLC on all causes of action; On Counts One and Four, damages for breach of contract in an

amount sufficient to compensate CLC for defense costs it has incurred or will incur in connection with the Underlying Actions, including without limitation further attorneys fees, costs and interest; (3) On Counts Two, Five and Seven, judgment on CLCs behalf declaring

that American Casualty, Great Divide and Allied World each have an indivisible duty to defend CLC in the Underlying Actions pursuant to the terms of the Primary CGL Policies, which are not subject to California Civil Code section 2860; 32
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(4)

On Counts Three, Six and Eight, judgment on CLCs behalf declaring

that the Umbrella Policies issued by American Casualty, Westchester and Lexington provide coverage to CLC for the Underlying Actions; (5) CLCs reasonable attorneys fees, pre-judgment and post-judgment

interests, costs and expenses of this action; (6) (7) This case be tried by a jury; and Any other, further relief as the Court deems equitable and just.

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