# Appendix — Preis v. Lexington Insurance Insurance Co Co (No. 08-594) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0373%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2008 ## Text la APPENDIX A IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Civil Action No. 06-0360-WS-C RICHARD PREIS and VICTORIA PREIS, Plaintiffs, vs. LEXINGTON INSURANCE COMPANY, Defendant. ORDER ON JURY TRIAL This action came before the Court for trial by jury on August 13, 14 and 15, 2007, with United States District Judge William H. Steele presiding. The jury was selected on July 31, 2007 and sworn on the morning of trial. The Plaintiffs presented their evidence and rested on August 13, 2007. The Defendant filed a Motion for Judgment as a Matter of Law at the conclusion of the Plaintiffs’ case. The Defendant presented its evidence and rested on August 14, 2007. The Defendant renewed its Motion for Judgment as a Matter of Law at the close of all the evidence which was GRANTED with respect to loss of contents and DENIED with respect to the house for the reasons stated on the record. The Plaintiff filed a Motion for Judgment as a Matter of Law at the conclusion of all the evidence which was DENIED for the reasons stated on the record. The Court held a charge conference with counsel and the parties gave their closing arguments to the jury. The Court charged the jury on the applicable law and the jury commenced their deliberations. 2a On the 15th day of August, 2007, the jury who having heard the evidence, the arguments of counsel and having considered the same upon their oaths, returned the verdict, a copy of which is attached hereto, into open court with counsel present. DONE and ORDERED this 21st day of August, 2007. /s/William H. Steele William H. Steele United States District Judge 3a IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION CIVIL ACTION 06-0360-WS-C RICHARD PREIS and VICTORIA HEARIN PREIS, Plaintiffs, Vv. LEXINGTON INSURANCE COMPANY, Defendant. VERDICT FORM WITH SPECIAL INTERROGATORIES 1. Do you find that the Plaintiffs property located at 15049 Scenic Highway 98, Point Clear, Alabama sustained wind damage as a result of Hurricane Katrina? a ee YES NO If the answer to question #1 is “NO”, sign the form and inform the Court. If the answer to question #1 is “YES”, proceed to question #2. 2. What is the actual cash value of the Plaintiffs’ loss on the home structure attributable to: 70,000.00 whi Wind Flood 3. Do you find that the Plaintiffs’ property was rendered unfit to live in as the result of damages caused by wind? eines : YES NO 4a If the answer to question #3 is “NO”, sign the form and inform the Court. If the answer to question #3 is “YES”, proceed to question #4. . Do you find that the Plaintiffs are entitled to Additional Living Expenses as set forth in the Lexington policy? eae a YES NO If the answer to question #4 is “NO”, sign the form and inform the Court. If the answer to question #4 is “YES”, proceed to question #5. . What is the amount necessary to compensate the Plaintiffs for their Additional Living Expenses? $ /s/ Timothy Little Timothy Little Foreperson 08/15/07 Date 5a APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Civil Action No. 06-0360-WS-C RICHARD PREIS and VICTORIA PREIS, Plaintiffs, vs. LEXINGTON INSURANCE COMPANY, Defendant. FINAL JUDGMENT In accordance with the verdict entered in the above styled action, it is ORDERED, ADJUDGED and DECREED that a FINAL JUDGMENT be, and the same is entered in favor of the Plaintiffs, Richard and Victoria Preis, and against the Defendant, Lexington Insurance Company, in the amount of $70,000.00. The Plaintiffs are entitled to recover from the Defendant their taxable costs. DONE and ORDERED this 2lst day of August, 2007. /s/ William H. Steele WILLIAM H. STEELE United States District Judge 6a APPENDIX C IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [Filed June 3, 2008] No. 07-14228 D. C. Docket No. 06-00360-CV-WS-C RICHARD PREIS, VICTORIA HEARIN PREIS, Plaintiffs-Appellants, versus LEXINGTON INSURANCE COMPANY, T&B, LTD, d.b.a. THAMES, BATRE’, MATTEI, BEVILLE, and ISON, et al., Defendants-Appellees. Appeal from the United States District Court for the Southern District of Alabama (June 3, 2008) Before DUBINA and BARKETT, Circuit Judges, and SCHLESINGER, District Judge. PER CURIAM: Richard and Victoria Preis’ appeal from an adverse partial summary judgment in favor of Lexington In- Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of Florida, sitting by designation. ' For ease of discussion, we will hereinafter refer to the Appellants in the singular, “Pries.” 7a surance Company, providers of Pries’ homeowner's insurance policy; an adverse summary judgment in favor of Thames, Batre, Mattei, Beville, and Ison (“T&B”), the insurance agency that issued the Lex- ington policy and Allen Ladd, its agent. Pries also appeals from a jury verdict of $70,000, which the jury awarded to Pries at the conclusion of a three-day trial, based on purported evidentiary errors and er- rors in the jury instructions. Pries seeks reversal of the district court’s summary judgment rulings, and a new trial. I. Background Pries’ home on Mobile Bay, in Point Clear, Ala- bama, was severely damaged by Hurricane Katrina. According to Pries, the house had a replacement value in excess of $1,200,000 and the loss on personal prop- erty in the house was in excess of $750,000. Pries had two sets of insurance policies covering the house and its contents. First, he had a home- owner’s policy (“the Lexington policy”), originally purchased in 1995. The Lexington policy was an all- risk policy that insured against any direct loss of per- sonal or structural property of the home at issue, with certain exclusions. One of the exclusions of cov- erage was for loss caused “directly or indirectly” by “water damage”, defined as “flood, surface water, wave, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind ....” The Lexington policy is the only insurance policy at issue in this appeal. The second relevant set of insurance policies cov- ering the property at issue at the time of Hurricane Katrina was for flood damage. Preis had a primary flood policy with Hartford Insurance Company, and an 8a excess flood insurance policy with WNC Insurance Services. Following Hurricane Katrina, Pries submit- ted a claim to both Hartford Insurance and to WNC Insurance Services. Pries received a total of $587,659.71 from these flood insurance providers for the damage incurred as a result of floods caused by the hurricane. This amount constituted the full policy limits of both policies. Pries also notified Lexington of the loss in order to recover for wind damage under the homeowners’ po)l- icy and submitted the same claim of loss to Lexington that had been submitted to the flood insurance carri- ers. Within one week of Preis’ notification of the loss, Lexington retained an independent adjuster, Reid Jones McRorie & Williams, to investigate Pries’ claim. Reid Jones issued a final report several months later, indicating that the majority of the damage to the house was a result of “storm surge”, and that the “[moderate] wind damage was primarily limited to the roof.” Reid Jones estimated that Pries was due a payment in the amount of $72,155.96 for the damage that had not been caused by flood waters. Based on this assessment, Lexington made Pries an uncondi- tional tender for $53,135.97, which reflected Reid Jones’ estimate less the policy’s wind deductible of $19,020.00. Preis rejected Lexington’s tender of $53,135.97 and notified Lexington of his intent to file this lawsuit against Lexington. Lexington then retained the engineering services of Project Time & Cost (““PT&C”) to determine the cause and origin of Preis’ losses. PT&C’s report confirmed that the majority of the house was damaged as a result of storm surge, but that some damage was attributable to wind damage. Based on PT&C’s report, Reid Jones readjusted Pries’ 9a estimated loss, and increased their unconditional tender by $11,031.90 to $64,167.86. Pries again rejected the loss amount, and proceeded to file the instant suit. A three-day jury trial was held in August 2007. At the close of the evidence, and prior to the case being submitted to the jury, the district court granted Lexington’s Rule 50 motion for judgment as a matter of law on Preis’ claim for damage to the contents of the house, finding that Pries had failed to present facts sufficient to allow the trier of fact to segregate the amount of damages to the home’s contents at- tributable to wind from those damages due to water from the storm surge. After deliberating, the jury awarded Pries $70,000 for damages to the structure attributable to wind. II. Discussion Preis challenges several aspects of the trial, as well as two of the district court’s rulings on summary judgment. We address each issue in turn. 1. Evidentiary Rulings’ Preis argues that the district court erred in admit- ting evidence of “the amount of the flood settlement in the amount of $587,659.71,” and contends that evidence of the flood payments is barred under Fed- eral Rule of Evidence 408.° We have held that “[for * We review the district court’s evidentiary rulings under a deferential abuse of discretion standard. United States v. Fra- zier, 387 F.3d 1244, 1258 (11 Cir. 2004) (en banc). * Rule 408 provides in pertinent part: “Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in com- promising or attempting to compromise a claim which was dis- puted as to either validity or amount, is not admissible to prove 10a Rule 408 to apply, there must be an actual dispute, or at least an apparent difference of opinion between the parties, as to the validity of a claim.” Dalilis v. Aetna Life Ins. Co., 768 F.2d 1303, 1307 (11th Cir. 1985). We have specifically rejected the notion that “the payment of a claim by an insurance company, where there is no evidence that the insurance com- pany ever disputed the claim, qualifies as a compro- mise within the meaning of Rule 408:” Id. 1306-07. Since Pries submitted his claim to the flood insurers and received the full policy limits from both of them absent any dispute as to the validity of his claim, the district court did not abuse its discretion in finding that Rule 408 did not bar admissibility of the pay- ments. Pries also argues that the lay testimony of insur- ance adjusters James Gibson and Tracy Clark should not have been admitted into evidence under Federal Rule of Evidence 701 because they did not have per- sonal knowledge of the facts and because their testi- mony was based on “scientific, technical, or other specialized knowledge within the scope of Rule 702,” which governs expert testimony. The testimony of- fered by both Clark and Gibson specifically related to the damage to the home they observed during the in- spections they personally conducted, the reports they each individually prepared regarding their assess- ments of the damage to the Pries’ home, and the pro- cedures they employed to reach their loss estimates. Given the nature of their testimony, the district court liability for or invalidity of the claim or its amount.” Fed. R. Evid. 408. lla did not abuse its discretion in allowing the adjusters to testify as lay witnesses.‘ 2. Burden of Proof: Directed Verdict and Jury Instructions Preis contends that the district court’s application of an erroneous burden of proof resulted in two er- rors: 1) the court erroneously granted Lexington a di- rected verdict on the question of Lexington’s liability for the damage to the contents of the home; and 2) the jury instruction regarding the burden of proof was an erroneous statement of the law. We review the allocation of the burden of proof de novo. Gu.a- jardo v. Texas Dept. of Crim. Justice, 363 F.3d 392, 395 (5th Cir. 2004); see also United States v. DeVeg- ter, 439 F.3d 1299, 1303 (11th Cir. 2003) (“We gener- ally review de novo questions of law.”). The Louisiana Supreme Court has stated that, “[i]n an action under an insurance contract, the insured bears the burden of proving the existence of the pol- icy, and the coverage.” Turnstall v. Stierwald, 809 So.2d 916, 921 (La. 2002). The insured also bears the threshold burden of proving an accidental direct * Moreover, our review of the trial transcript indicates that any opinion testimony offered by Clark or Cibson was in fact solicited by Pries. See Doc. 236, p. 403,11. 9-11 (Clark asked on cross, “Hypothetically, Mr. Clark, if windows blew out in this house, would you consider the contents that would have been damaged?”); Doc. 235, p. 231, II. 22-24 (Gibson asked on cross, “What would have been your loss if you had to assume that the whole thing had to be torn down?” Gibson responded, “You know, I wouldn’t even wing that.”). The admission of inadmissi- ble testimony, “when responding to an inquiry by [appellant’s] counsel, creates ‘invited error’.” United States v. Parikh, 858 F.2d 688, 695 (11th Cir. 1988). “[I]nvited error constitutes nei- ther plain nor reversible error.” /d. 12a physical loss to the insured property, and the amount of the loss. See Pelas v. Amer. Emp. Ins. Co., 299 So.2d 815, 817 (La. App. 1974) (“As in any action on an insurance policy, the burden is upon the plaintiff to prove the loss insured against.”) (Schott, J., dis- senting); Brouillette v. Phoenix Assur. Co., 340 So.2d 667, 672 (La. App. 1977) (“Plaintiff had the burden of proof on the amount of the loss.”). Once an insured has met this initial burden, the burden then shifts to the insurer to prove by a preponderance of the evi- dence that the loss falls within a policy exclusion. Turnstall, 809 So.2d at 921 (“The insurer, however, bears the burden of showing policy limits or exclu- sions?). The segregation or allocation of the causes of the loss is left to the finder of fact once the parties have met their initial burdens. See Broussard v. State Farm Fire & Casualty Co., No. 07-60443, 2008 WL 921699, at *5-6 (5th Cir. Apr. 7, 2008). It is with this appropriate burden of proof in mind that we now turn to Preis’ arguments. A. Directed Verdict We review a district court’s ruling on a judgment as a matter of law under Rule 50 de novo, examining the evidence in the light most favorable to the non- moving party. Optimum Tech. v. Henkel Consumer Adhesives. Inc., 496 F.3d 1231, 1251 (11th Cir. 2007). “Judgment as a matter of law is appropriate when a plaintiff presents no legally sufficient evidentiary ba- sis for a reasonable jury to find for him on a material element of his cause of action.” Proctor v. Flor Enter- prises, Inc., 494 F.3d 1337, 1347 n.5 (11th Cir. 2007). Preis argues that the district court erroneously granted Lexington’s Rule 50 motion with regards to the contents because “the Plaintiffs have not identi- fied any evidence that affords the jury a reasonable 13a basis for separating losses due to wind from losses due to flood.” Preis contends that this placed an in- appropriately high and erroneous burden of proof upon him, arguing that all he needed to do was es- tablish the coverage, the loss and the loss amount, and not the cause of the injury. We agree with Preis regarding his burden, but agree with the district court that this initial burden was not met by Preis in this case. Had Preis simply established that he had the requisite accidental damage coverage and that he had been damaged in a specific amount, he would have met his burden of proof under his all-risk policy. Lexington would then have the burden to prove that the damages claimed were the result of water, which was a cause explicitly excluded by the coverage. Here, however, Preis failed to initially establish a basis from which the jury could have awarded an amount for the personal property in the house that was covered by the Lexington policy. Each of Preis’ witnesses in his case-in-chief conceded that there was water damage and debris on the inside of the home from the flooding, and the parties do not dispute that water damage is not covered under the Lexington policy. None of Preis’ witnesses testified regarding any damage to the contents of the home not caused by water, and Preis conceded that he submitted iden- tical claims for the contents to both his flood insurers and to Lexington. In short, Preis did not present any evidence in his case-in-chief which would support a jury finding that the contents were destroyed by any- thing but water. Given the absolute lack of evidence that the contents of the house were damaged by a covered peril, no reasonable jury could find that Preis had met his burden of proving the amount of covered loss by a preponderance of the evidence. Under these circumstances, we cannot find that the district court l4a erred by granting Lexington’s motion for judgment as a matter of law regarding the contents of the Preis’ home. B. Jury Instructions Regarding Burden of Proof We review the challenged jury instructions under a deferential standard of review. United States uv. Puche, 350 F.3d 1137, 1148 (11th Cir. 2003). We do, however, review them de novo to “determine whether they misstate the law or mislead the jury to the prejudice of the objecting party.” Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir. 2002). Having reviewed the jury instructions delivered by the district court in their entirety, we cannot agree with Preis that the district court misstated the law. The district court accurately recited the burden of proof under Louisiana law. The court instructed the jurors that the initial burden is on the plaintiffs to prove “the existence of the policy sued on, its terms and provisions, that their claim is within its cover- age, and the amount of their covered damage.” The district court also instructed the jury that “it is the insurer who bears the burden of proving the applica- bility of any exclusion from coverage of the policy.” Thus, the district court’s jury instructions regarding the applicable burden of proof was an accurate state- ment of law. 3. Jury Instruction Based on Debris Preis next argues that the district court erred by instructing the jury that “wind driven wood debris was water damage and not covered.” The actual in- struction the court delivered follows: The exclusion for water damage excludes loss re- sulting either directly or indirectly from flood, and loss from debris that strikes covered prop- 15a erty when carried there by flood waters is loss caused indirectly by flood and is thus excluded. We again review the challenged jury instruction under a deferential standard of review. Puche, 350 F.3d at 1148. The instruction given by the court limits the exclu- sion from coverage to debris damage caused by flood waters, and does not implicate “wind driven wood de- bris” as suggested by Preis. Though the word “debris” does not appear in the language of the water damage exclusion, the language of the policy unambiguously excludes damage caused directly or indirectly from flood. Thus, the district court did not err in instruct- ing the jury that damage from debris which strikes the covered property as a result of floods is excluded under the clear language of the water damage exclu- sion. 4. Summary Judgment Rulings* Finally, we have carefully reviewed this record and find no error in the district court’s grant of summary judgment against Preis on his claim that Lexington acted in bad faith or on his claims against T&B and Ladd. AFFIRMED. * We review a district court’s rulings on summary judgment de novo. Mega Life and Health Ins. Co. v. Pieniozek, 516 F.3d 985, 989 (11th Cir. 2008). “Summary judgment is appropriate when the evidence; viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and compels judgment as a matter of law.” Jd.; Fed. R. Civ. P. 56(c). 16a APPENDIX D IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 07-14228-CC Filed August 4, 2008 RICHARD PREIS, VICTORIA HEARIN PREIS, Plaintiffs-Appellants, , LEXINGTON INSURANCE COMPANY, T&B, LTD, d.b.a. Thames, Batre’, Mattel., Beville, and Ison, et al., Defendants-Appellees. On Appeal from the United States District Court for the Southern District of Alabama ON PETITION(S) FOR REHEARING AND PETITION(S) OR REHEARING EN BANC Before: DUBINA and BARKETT, Circuit Judges, and SCHLESINGER, District Judge. PER CURIAM: The Petition(s) for Rehearing are DENIED and no Judge in regular active service on the Court having requested that the Court be polled on rehearing en * Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of Florida, sitting by designation. 17a banc (Rule 35, Federal Rules of Appellate Procedure), the Petition(s) for Rehearing En Banc are DENIED. ENTERED FOR THE COURT: /s/ Rosen Barkett ROSEN BARKETT United States Circuit Judge 18a APPENDIX E IN THE UNITED STATES COURT OF APPEALS - FOR THE ELEVENTH CIRCUIT [Filed June 3, 2008] No. 07-14228 D. C. Docket No. 06-00360-CV-WS-C RICHARD PREIS, VICTORIA HEARIN PREIS, Plaintiffs-Appellants, Vv. LEXINGTON INSURANCE COMPANY, T&B, LTD, d.b.a. THAMES, BATRE’, MATTEI, BEVILLE, and ISON, et al., Defendants-Appellees. Appeal from the United States District Court for the Southern. District of Alabama JUDGMENT It is hereby ordered, adjudged. and decreed that the attached opinion included herein by reference, is entered as the judgment of this Court. Entered: June 3,2008 ~— For the Court: Thomas K. Kahn, Clerk By: Gilman, Nancy Issued As Mandate August 12, 2008. 19a APPENDIX F Title 28 UNITED STATES CODE Rules of Evidence for United States Courts and Magistrates Article VII. Compromise and Offers to Compromise Rule 408. Compromise and Offers to Compromise (a) Prohibited uses.—Evidence of the following is not admissible on behalf of any party, when of- fered to prove liability for, invalidity of, or amount of a claim that was disputed as to va- lidity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to fur- nish—or accepting or offering or promising to accept—a valuable consideration in com- promising or attempting to compromise the claim; and (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the ne- gotiations related to a claim by a public of- fice or agency in the exercise of regulatory, investigative, or enforcement authority. (b) Permitted uses.—This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a wit- ness's bias or prejudice; negating a contention of undue delay; and proving an effort to ob- struct a criminal investigation or prosecution. (Pub.L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1933; Apr. 12, 2006, eff. Dec. 1, 2006.) 20a APPENDIX G Title 28 UNITED STATES CODE Rules of Evidence for United States Courts and Magistrates Article VII. Opinions and Expert Testimony Rule 701 Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or infer- ences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. (Pub.L. 93-595, § 1, Tan. 2, 1975, 88 Stat.1937; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000.) 2la APPENDIX H Title 28 UNITED STATES CODE Rules of Evidence for United States Courts and Magistrates Article VII. Opinions and Expert Testimony Rule 702 Testimony by Experts If scientific, technical, or other specialized knowl- edge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experi- ence, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. (Pub.L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1937; Apr. 17, 2000, eff. Dec. 1, 2000.) 22a APPENDIX I Federal Rules of Civil Procedure Rule 51 United States Code Annotated Federal Rules of Civil Procedure for the United States District Courts Title VI. Trials Rule 51. Instructions to the Jury; Objections; Pre- serving a Claim of Error (a) Requests. (1) Before or at the Close of the Evidence. At the close of the evidence or at any earlier reason- able time that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give. (2) After the Close of the Evidence. After the close of the evidence, a party may: (A) file requests for instructions on issues that could not reasonably have been anticipated by an earlier time that the court set for re- quests; and (B)with the court's permission, file untimely requests for instructions on any issue. (b) Instructions. The court: (1) must inform the parties of its proposed in- ———__structions and proposed action on the requests before instructing the jury and before final jury arguments; (2) must give the parties an opportunity to object on the record and out of the jury's hearing be- 23a fore the instructions and arguments are deliv- ered; and (3) may instruct the jury at any time before the jury is discharged. (c) Objections. (LD) How to Make. A party who objects to an in- struction or the failure to give an instruc- tion must do so on the record, stating dis- tinctly the matter objected to and the grounds for the objection. (2) When to Make. An objection is timely if: (A)before that opportunity to object, and the party objects promptly after learning that the instruction or request will be, or has been, given or refused. (B)a party was not informed of an instruc- tion or action on a request before that opportunity to object, and the party ob- jects promptly after learning that the instruction or request will be, or has been, given or refused (d) Assigning Error; Plain Error. (1) Assigning Error. A party may assign as er- ror: (A)an error in an instruction actually given, if that party properly objected; or (B)failure to give an instruction, if that party properly requested it and—unless the court rejected the request in a de- finitive ruling on the record--also prop- erly objected (2) Plain Error. A court may consider a plain 24a error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights. (Amended March 2, 1987, effective August 1, 1987; March 27, 2003, effective December 1, 2003; April 30, 2007, effective December 1, 2007.) 7 BEST AVAILABLE COPY “TGNGTON INSURANCE COMPANY LENA Zo: HOS HoWEOWMERDEClananows Pate —Subbrter copy - Policy Number: LE DSH632 03 'Hame of insured and Walling Address: = = = =~ ~ —~*| Richard Preis Thames Satre Matte! Bevie & Ison Ge Mogan Co. PO Box 4769 pete nes -* Gulf Shores, AL 36547 Coverage Part 1 - Homeowners Past 2 - Personal Umbrelia ~ Coverage A: $ ep . $ t) - Coverage B: $ 63.400 Self insured Retention $ v) - Coverage C: $ 37900 Part 3- Excess Flood - Coverage D: $ 53,400 - ry 0 cee $ mp0 - Loss Assessment 5 1,000 ~ Contents § 0 Emessol § 190,009 ~ Ordinance or Law. 10% Part 4 ~ Scheduled - Coverage €: $ 50,000 . . - Coverage F: $ —° sp Anivual Premium. $ ~ F3 | Homecwners Deductoles 4 — Al Other Perits: $ 1000 tespection Fee: 3 0.00 Wind and Halt: % Fee: s =e Earthquake: — Surplus Lines Tax: $ 446.82 WA f XIGNAddVv 8% 26a Policy Number LE 0541632 03 Effective Date: 09/22/2004 Date Issued:08/26/2004 SCHEDULE FORMS AND ENDORSEMENTS LEX 04 33 04 02 HO 00 03 04 91 HO 01 01 05 97 HO 04 14 04 91 HO 04 16 0491 HO 04 90 04 91 HO 04 96 04 91 HO 05 80 05 97 LEX 00 04 01 01 LEX 00 14 03 01 LEX 00 30 05 03 LEX 01 09 03 03 LEX 03 140101 LEX 05 80 01 01 LEX 15 31 08 01 Limited Mild Related Coverage Homeowners 3 Special Form Special Provisions — Alabama Special Computer Coverage Premises Alarm or Fire Protection System Personal Property Replacement Cost Home Day Care Exclusion Remediation, Limited Lead & Es- caped Liquid Fuel Liability Cov- erages Lexington Standard Policy Condi- tions Important Flood Insurance Notice Exterior Insulation and Finish System Exclusion Special Provisions Windstorm or Hail Percentage Deductible Advisory Notice to Policyholders — Explanatory Memo Special Personal Property Cover- age 27a POLICY NUMBER: LE 0541632 03 HOMEOWNERS LEX 04 33 04 02 THIS ENDORSEMENT CHANGES THE POL- ICY. PLEASE READ IT CAREFULLY. LIMITED MOLD RELATED COVERAGE (Coverage Part 1- Homeowners Only) SCHEDULE” These limits of liability apply to the total of all loss or costs payable under this endorsement, regardless of the number of “occurrences”, the number of claims made, or the number of locations insured under this endorsement and listed in this Schedule. 1. | Section 1— Property Coverage Limit | $5,000 Of Liability for the Additional Cover- age “Mold Related Items” 2. | Section II — Coverage E Aggregate | $5,000 Sublimit Of Liability for “Mold Related Items’ *Entries may be left blank if shown elsewhere in this policy for this coverage. DEFINITIONS The following definitions are added: 1. “Mold Related Items” include the following defi- nitions for “Fungus(i)”, “Mold(s)”, “Spore(s), but also includes, Wet or Dry Rot, Bacteria, Mildew or Yeast. a. Fungus(i)’ includes, but is not limited to, any of the plants or organisms belonging to the major 28a group Fungi, lacking chlorophyll, and including mids, rusts, mildews, smuts, mushrooms, and any mycotoxins, spores, scents or byproducts produced or released by fungi. b. “Mold(sy includes, but is not limited to, any super- ficial growth produced on damp or decaying or- ganic matter or on living organisms, and fungi c. “Spore(s)” means any dormant or reproductive body produced by or arising or emanating out of any “fungus(i)”, “mold(s), mildew, plants, or- ganisms or microorganisms. SECTION I PROPERTY COVERAGES ADDITIONAL COVERAGES The following Additional Coverage is added: 12. “Mold Related Items” a. The amount shown in the Schedule above is the most we will pay for: (1) The total of all loss payable under Sec- tionl— Property Coverages caused by ‘mold related items”; (2) The cost to remove “mold related items” from properly covered under Section 1 — Property Coverages; (3) The cost to tear out and replace any part of the building or other covered property as needed to gain access to the “mold related items’; and (4) The cost of testing of air or property to con- firm the absence, presence or level of *mold related items’ whether performed prior to, during or after removal, repair, restoration 29a or replacement The cost of such testing will be provided only to the extent that there is a reason to believe that there is the pres- ence of “mold related items”. b. The coverage described in 12.a. only: applies when such loss or costs are a result of a Peril Insured Against that occurs during the policy period and only if all reasonable means were used to save and preserve the property from further damage at and after the time the Peril Insured Against occurred. c. The amount shown in the Schedule for this cov- erage is the most we will pay for the total of all loss or costs payable under this Additional Coverage regardless of the: (1) Number of locations insured under this en- dorsement or (2) Number of claims made. d. If there is covered loss or damage to covered property, not caused, in whole or in part, by “mold related items”, loss payment will not be limited by the terms of this Additional Cover- age, except to the extent that “mold related items” causes an increase in the loss. My such increase in the loss will be subject to the terms of this Endorsement. This coverage does not increase the limit of li- ability applying to the damaged covered prop- erty. (This is Additional Coverage 11. in Form HO 00 06.) SECTION I — PERILS INSURED AGAINST 30a In Form HO 00 03 or HO 00 03, HO 00 04 and HO 00 06 with LEX 15 31: Paragraph 2;043) or 1.b.(5X(c) (if LEX 15 31 Is at- tached) is deleted and replaced by the following: (3) or (c) Smog, rust or other corrosion; — Paragraph 2.e.(9) or 1.b.(4(c) (if LEX 15 31 is at- tached) is added: (9) or (I) Constant or repeated seepage or leakage of water or the presence or condensation of humidity, moisture or vapor, over a period of weeks, months or years unless such seepage or leakage of water or the presence or condensa- tion of humidity, moisture or vapor and the re- sulting damage is unknown to all insureds” and is hidden within the wails or ceilings or beneath the floors or above the ceilings of a structure. In Form HO 00 06 with HO 17 31: Paragraph 3.d.(3) is deleted and replaced by the following: (3) Smog, rust or other corrosion; Paragraph 34.(9) is added: (9) In Form HO 00 06 with HO 17 32: Paragraph 2.e.(3) is deleted and replaced by the following: (3) Smog, rust or other corrosion; Paragraph 2.e.(9) is added: (9) Constant or repeated seepage or leakage of wa- ter or the presence or condensation of humid- ity, moisture or vapor, over a period 01 weeks, months or years unless such seepage or leak- 3la age of water or the presence or condensation of humidity, moisture or vapor and the resulting damage is unknown to all “insureds” and Is hidden within the walls or ceilings or beneath the floors or above the ceilings of a structure. SECTION I — EXCLUSIONS Exclusion 1.1 is added. I. “Mold Related items” “Mold Related Items” including the presence, growth, proliferation, spread or any activity of “mold related items”. This Exclusion does not apply: (1) When “Mold Related Items’ results from fire or lightning; or (2) To the extent coverage is provided for in the “Mold Related Items” Additional Coverage under Section 1 — Property Coverages with respect to loss caused by a Peril Insured Against other than fire or lightning. Direct loss by a Peril Insured Against resulting from “Mold Related Items” is covered. (This is Exclusion 9. in Form HO 00 04 and HO 00 064 SECTION II — CONDITIONS Condition 1. Limit Of Liability is deleted and re- placed by the following: 1. Limit Of Liability Our total liability under Coverage E For all dam- ages resulting from any one “occurrence” will not . be more than the Coverage E limit of liability 32a shown In the Declarations. This limit is the same regardless of the number of “insureds” claims made or persons injured. All “bodily injury” and “property damage” resulting from any one acci- dent or from continuous or repeated exposure to substantially the same general harmful conditions will be considered to be the result of one “occur- rence”. Our total liability under Coverage F for all medi- cal expense payable for “bodily injury” to one per- son as the result of one accident will not be more than the Coverage F limit of liability cnewn | in the Declarations. However, our total liability under Coverage E for the total of all damages arising directly or indi- rectly, in whole or in part, out of the actual, al- leged or threatened inhalation of, Ingestion of, contact with, exposure to, existence of, or presence of any “Mold Related Items” will not be more than the Section II — Coverage E Aggregate Sublimit Of Liability for “Mold Related items’. That sub- limit is the amount shown in the Schedule. This is the most we will pay regardless of the: a. Number of locations insured under the pol- icy to which this endorsement is attached; b. Number of persons injured; Number of persons whose property is dam- aged; d. Number of “insureds”-, or e. Number of “occurrences” or claims made. This sublimit is within, but does not In- crease, the Coverage E limit of liability. It applies separately to each consecutive an- 33a nual period and to any remaining period of less than 12 months, starting with the be- ginning of the policy period shown in the Declarations. With respect to damages arising out of “Mold Related Items” described in 1. Limit Of Liability of this en- dorsement, Condition 2. Severability Of Insurance is deleted and replaced by the following: 2. Severability Of Insurance This insurance applies separately to each “in- sured” except with respect to the Aggregate Sub- limit of Liability described in this endorsement under Section II — Conditions 1., Limit Of Liabil- ity. This condition will not increase the limit of li- ability for this coverage. SECTION I AND II CONDITIONS Condition 1. Policy Period is deleted and replaced by the following: 1. Policy Period This policy applies only to loss or costs in Section I or “bodily Injury” or “property damage” in Section Ii, which occurs during the policy period. All other provisions of the policy apply. This limited coverage applies to Coverage Part I Homeowners only. No other coverage parts provide this type of coverage. HOMEOWNERS HO 00 03 04 91 HOMEOWNERS 3 SPECIAL FORM AGREEMENT « We will provide the insurance described in this policy in return for the premium and compliance with all applicable provisions of this policy. DEFINITIONS In this policy, “you” and “your” refer to the “named insured” shown in the Declarations and the Spouse if a resident of the seine household. ‘We,’ “us” and “our” refer to the Company providing this insurance. In addition, certain words and phrases are defined as follows: 1. “Bodily injury’ mean’s bodily harm, sickness or disease, including required care, loss of ser- vice’s and death that results. 2. “Business” includes trade, profession or occu- pation. 3. “Insured” means you and residents of your household who are: a. Your relatives; or b. Other persons under the age of 21 and in the care of any person named above, Under Section II, Insured” also means: c. With respect to animals or watercraft to which this policy applies, any person or or- ganization legally responsible for these animals or watercraft which are owned by you or any person in-. eluded In 3.a. or 3.b. 35a above, A person or organization .using or having custody of these animals or water- craft in the course of any “business” or without consent of the owner is not an In- sured”; . With respect to any vehicle to which this policy applies: (1) Persons While ‘engaged in your employ or that of any person Included in 3.a. or 3.b. above; or (2) Other persons using. the vehicle on an “insured location” with your consent. 4. “insured location” means: . The “residence premises”; . The part of other premises, other structures and grounds used by you as a residence and: (1) Which is shown in the Declarations; or (2) Which is acquired by you during the pol- icy period for your use as a residence; . Any premises used by you in connection with a premises in 4.a. and 4.b, above; . Any part of a premises: (1) Not owned by an Insured”; and (2) Where an Insured” is temporarily resid- ing; . Vacant land, other than farm land, owned by or-rented to an Insured”; 36a f. Land owned by or rented to an “insured” en which a one or two family dwelling is being built as a residence for an “insured”; g. Individual or family cemetery plots or bur- ial vaults of an “insured”; or h. Any part of a premises occasionally rented to an “insured” for other than “business” aise. 5. “Occurrence” means an_ accident, including continuous or repeated exposure to substan- tially the same general harmful conditions, which results, during the policy period, in: a. “Bodily injury”; or b. “Property damage.” 6. “Property damage” means physical injury to, destruction of, or loss of use of tangible prop- erty. 7. “Residence employee” means: a. An employee of an “insured” whose duties are related to the maintenance or use of the “residence premises,” including household or domestic services; or b. One who performs similar duties elsewhere not related to the “business” of an insured.” 8. “Residence premises” means: a. The one family dwelling, other structures, and grounds; or b. That part of any other building; where you reside and which is shown as the “residence premises” in the Declarations. 37a “Residence premises” also means a two family dwelling where you reside in at least one of the family units and which is shown as the “resi- dence premises” in the Declarations. SECTION I — PROPERTY COVERAGES COVERAGE A Dwelling We cover: 1. The dwelling on the “residence premises shown in the Declarations, including struc- tures attached to the dwelling: and 2. Materials- and supplies- located on or next, to the “residence premises” used to construct, al- ter or repair the dwelling or other structures on-the “residence premises.” This coverage does not apply to land, including land on which the dwelling is located. COVERAGE B Other Structures We cover other structures on the “residence prem- ises” set apart from the dwelling by clear space. This includes structures connected to the dwelling by only a fence, utility line, or similar connection. This coverage does not apply to land, including land on which the other structures are located, We do not cover other structures: 1. Used in whole or in part for “business”; or 2. Rented or held for rental to any person not a tenant of the dwelling, unless used solely as a private garage. The limit of liability for this coverage will not be more than 10% of the limit of liability for that applies 38a to Coverage A. Use of this coverage does not reduce the Coverage A limit of liability. COVERAGE C — Personal Property We cover personal property owned or used by an “in- sured” while it is anywhere in the world.- At your request, we will cover personal property owned by: 1. Others while the property is on the part of the “residence premises” occupied by an “insured”; 2. A guest or a “residence employee,” while the property is in any residence occupied by an “insured.” Our limit of liability for personal property usually lo- cated at an ‘insured’s” residence, other than the “residence premises,” is 10% of the limit of liability for Coverage C, or $1000, whichever is greater. Per- sonal property in a newly acquired principal resi- dence is not subject to this limitation for the 30 days from the time you begin to move the property there. Special Limits of Liability. These limits do not in- crease the Coverage C limit of liability. The special limit for each numbered category below is the total limit for each loss for all property in that category. 1. $200 on money, bank notes, bullion, gold other than goldware, silver other than silverware, platinum, coins and medals. 2. $1000 on securities, accownts, deeds, evidences of debt, letters of credit, notes other than bank notes, manuscripts, personal records, pass- ports, tickets and stamps. This dollar limit applies to these categories regardless of the medium (such as paper or computer software) on which the material exists. 10. 39a This limit includes the cost to research, replace or restore the information from the lost or damaged material. $1000 on watercraft, including their trailers, furnishings, equipment and outboard motors. $1000 on trailers not used with watercraft. $1000 for loss by theft of jewelry, watches, furs, precious and semi-precious stones. $2000 for loss by theft of firearms $2500 for loss by theft of silverware, silver- plated ware, goldware, gold-plated ware and pewterware. This includes flatware, hollow- ware, tea sets, trays and trophies made of or including silver, gold or pewter. $2500 on property, on the “residence prem- ises,” used at any time or in any manner for any “business” purposes $250 on property, away from the “residence premises,” used at any tme or in aany manner for any “business” purpose. However, this limit does not apply to loss to adaptable elec- tronic apparatus as described in Special Limits 10 and 11 below. $1000 for loss to electronic apparatus, while not in or upon a motor vehicle or other motor- ized land conveyance, if the electronic appara- tus is equipped to be operated by power from the electrical system of the vehicle or convey- ance while retaining its capability of being op- erated by other sources of power. Electronic apparatus includes: a. Accessories and antennas; or 40a b. Tapes: wires, records, discs or other media; for use with any electronic apparatus. 11.$1000 for loss to electronic apparatus, while not in or upon a motor vehicle or other motor- ized land conveyance, if the electronic appara- tus: a. is equipped to be operated by power from the electrical system of the vehicle or con- veyance while retaining its capability of be- ing operated by other sources of power b. is away from the “residence premises”; and is used at any time or in any manner for any “business purpose”. Electronic apparatus includes: a. Accessories and antennas’ or b. Tapes, wires, records, discs or other media; for use with any electronic apparatus. Property Not Covered We do not cover: 1. 2. 3. Articles separately described and specifically in- sured in this or other insurance; Animals, birds or fish; Motor vehicles or all other motorized land convey- ances. This includes: a. Their equipment and accessories; or b. Electronic apparatus that is designed to be op- erated solely by use of the power from the elec- trical system of motor vehicles or all other mo- torized land conveyances. Electronic apparatus includes: (1) Accessories or antennas; or 4la (2) Tapes, wires, records, discs or other media; for use with any electronic apparatus. The exclusion of properly described in 3.a. and 3.b. above applies only while the property is In or upon the vehicle or conveyance. We do cover vehicles or conveyances not subject to motor vehicle registration which are: a. Used to service an “insured’s” residence; or b. Designed for assisting the handicapped; . Aircraft and parts. Aircraft means any contriv- ance used or designed for flight, except model or hobby aircraft not used or designed to carry peo- ple or cargo; . Property of roomers, boarders and other tenants, except property of roomers and boarders related to an Insured”; . Property In an apartment regularly rented or held for rental to others by an Insured,” except as pro- vided in Additional Coverages 10.; . Property rented or held for rental to others off the “residence premises”; . “Business” data, including such data stored in: a. Books of account, drawings or other paper re- cords; or b. Electronic data processing tapes, wires, re- cords, discs or other software media; However, we do cover the cost of blank re- cording or storage media, and of pre-recorded computer programs available on the retail market; or 42a 9. Credit cards or fund transfer cards except as pro- vided in Additional Coverages 6. COVERAGE D-—Loss of Use The limit of liability for Coverage D is the total limit for all the coverages that follow. 1. If a loss covered under this Section makes that part of the “residence premises” where you reside not fit to live in, we cover, at your choice, either of the following. However, if the ‘residence premises” is not your principal place of residence, we will not provide the option under paragraph b. below. a. Additional Living Expense, meaning any nec- essary increase in living expenses incurred by you so that your household can maintain its normal standard of living; or b. Fair Rental Value, meaning the fair rental Value of that part of the “residence premises” where you reside lee’s any expenses that do not continue while the premises is not fit to live in. Payment under a, or b: will be for the shortest time required to repair or replace the damage or, if you permanently relocate; the shor:est time required for your household to settle elsewhere. 2. If a loss covered under this Section makes that part of the “residence premises” rented to others or held for rental by you not fit to live in, we cover the: Fair Rental Value, meaning the fair rental value of that part of the “residence premises” rented to others or held for rental by, you less any expenses that do not continue while’ the premises is not fit to live in, 43a Payment will be for the shortest time required to repair or replace that part’ of the premises rented or held for rental. 3. If a civil authority prohibits you from use of the “residence premises” as a result of direct damage to neighboring premises by a Peril Insured Against in this policy, we cover the Additional Living Expense and Fair Rental Value loss as provided under 1. and 2. above for no more than two weeks. The periods of time under 1., 2. and 3. above are not limited by expiration of this policy. We do not cover loss or expense due to cancellation of a lease or agreement. ADDITIONAL COVERAGES 1. Debris Removal. We will pay your reasonable ex- pense for the removal of: a. Debris of covered property if a Peril Insured Against that applies to the damaged property causes the loss; or b. Ash, dust or particles ‘from a volcanic eruption that has caused direct toss to a building or property contained in a building. This expense is included in the limit See ‘) ade Concealment or Fraud is deleted and replaced by the following: Concealment or Fraud- 95a a. Under Section I - Property Coverages, with re- spect to all “insureds” covered. under this pol- icy, we provide no coverage for lose under Sec- tion I Property Coverages if, whether. been before or after a loss, one or more “insureds” have: (1) intentionally concealed or misrepresented any material fact or circumstance: (2) Engaged in fraudulent conduct: or (3) Made false statements; relating to this in- surance. b. Under Section II—Liability coverages, we do not provide coverage to one or more “insureds” who, whether before or after a loss, have: (1) Intentionally concealed or misrepresented any material fact or circumstanced; (2) Engaged in fraudulent conduct; or (3) Made false statements relating to this in- surance. 7 All other provisions of this policy apply. 96a THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. SPECIAL COMPUTER COVERAGE All Forms Except HO 00 03 with HO 00 15 And HO 00 06 with HO 17 31 THIS ENDORSEMENT: (1) DOES NOT IN- CREASE THE LIMIT OF LIABILITY WHICH AP- PLIES TO COVERAGE C, AND (2) DOES NOT MODIFY THE SPECIAL LIMITS OF LIABILITY OR THE PROVISIONS OF PROPERTY NOT COVERED UNDER COVERAGE C. For an additional premium, the Perils Insured Against which apply to Coverage C are deleted arid replaced by the following with respect to “computer equipment”: Perils Insured Against We cover an “insured’s” “computer equipment,” as defined in this endorse- ment, against risk of direet physical loss. We do not insure, however, for loss: a. Excluded under SECTION 1 — EXCLUSIONS. b. Caused by: (1) Freezing of a plumbing, heating, air condi- tioning or automatic fire protective sprin- kler system or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing, This exclusion applies only while the dwelling is vacant, unoccupied or being constructed, unless you have used reason- able care to: (a) Maintain heat in the building; or 97a (b) Shut off the water supply and drain the system arid appliances of water; (2) Theft in or to a dwelling under construc- tion, until the dwelling is finished and oc- cupied; (3) Any of the following: (a) Wear and tear, marring, deterioration; (b) Inherent vice, latent defect, mechanical breakdown; (c) Smog, rust or other corrosion, mold, wet or dry trot (d) Smoke from agricultural smudging or industrial operations; (e) Discharge, dispersal, seepage, migra- tion, release or escape of pollutants unless the discharge, dispersal, seepage, migration, release or escape is itself caused by one or more of the Perils In- sured Against that would apply under Coverage C of the policy form if this en- dorse merit were not attached to the pol- icy form. Pollutants means any solid, liquid, gaseous or thermal Irritant or contaminant, includ- ing smoke, vapor, soot, fumes, acids, alka- lis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed; (f) Settling, shrinking, bulging or expan- sion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings; a 98a (g) Birds, vermin, rodents or insects; or (h) animals owned or kept by an “insured”. If any of these cause water damage not otherwise excluded, from a plumbing, heating, air conditioning or automatic fire protective sprinkler system or house- hold appliance, we cover loss caused by the water. Under items (1) through (3), any ensuing loss not excluded or excepted in this policy is covered. (4) Vandalism and malicious mischief if the dwelling has been vacant for more than 30 consecutive days immediately before the loss. A dwelling being constructed is not considered vacant; (5) Dampness of atmosphere or extremes of temperature unless the direct cause of loss is rain, snow, sleet or hail; (6) Refinishing, renovating or repairing prop- erty; (7) Collision, other than collision with a land vehicle, sinking, swamping or stranding of watercraft, including their trailers, furnish- ings, equipment and outboard engines or motors; (8) Destruction, confiscation or seizure by or- der of any government or public authority; or (9) Acts or decisions, including the failure to act or decide, of any person, group, organi- zation or governmental body. However, any ensuing loss not excluded or excepted in this policy is covered. | 99a DEFINITION With respect to the coverage provided by this en- dorsement, “computer equipment’ means: 1. Electronic data processing hardware and related peripheral equipment, including CRT screens, disc drives, printers and modems; and 2. Discs, tapes, wires, records or other software media used with the equipment in 1. above. All other provisions of this policy apply. 100a HOMEOWNERS HO 04 16 04 91 PREMISES ALARM OR FIRE PROTECTION SYSTEM For a premium credit, we acknowledge the installa- tion of an alarm system or automatic sprinkler sys- tem approved by us on .the “residence premises.” You agree to maintain this system in working order and to let us know promptly of any change made to the system or if it is removed. 10la HOMEOWNERS HO 04 90 04 91- THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CAREFULLY PERSONAL PROPERTY REPLACEMENT COST SECTION I For an additional premium, covered losses to the fol- lowing property are settled at replacemerit cost’ at life tithe alas: a. Coverage 9 — Personal Property; b. If covered in this policy, awnings, carpeting, household appliances, outdoor antennas. and outdoor equipment. whether or not attached to buildings. Personal Property Replacement Cost coverage will apply to following articles or classes of property if they are separately described and specifically in- sured in this policy: a. Jewelry; b. Furs and garments, trimmed with tut Or con- sisting principally of fur; c. Cameras, projection machines, films and re- lated articles of equipment; d. Musical equipment and related ‘articles of equipment; e. Silverware,, silver-plated ware, goldware, gold- plated ware and pewterware, but excluding pens, pencils,. flasks, smoking Implements or jewelry; and 102a f. golfer’s equipment meaning golf clubs, golf clothing and golf equipment. Personal Property Replacement Cost coverage will not apply to other classes of property separately described and specifically insured. 1. PROPERTY NOT ELIGIBLE Property listed below Is not eligible for replace- ment cost settlement. Any foss will -be settled at ac- tual casts value at the -time of loss but not more than the amount required to repair or replace. a. Antiques, fine arts, paintings and similar arti- cles of rarity or antiquity which cannot be re- placed. b. Memorabilia; souvenirs, collectors items and similar articles whose age or -history contrib- ute to their value. c. Articles not- maintained in good--or-workable- a: condition. d. Articles that are outdated or obsolete and are stored or not being used. 2. REPLACEMENT COST The following loss settlement procedure applies to all property insured under this endorsement: a. We will pay no more than the least of -the fol- lowing amounts: (1) Replacement cost at the time of loss with- out deduction for depreciation; (2) The full cost of repair at the time of loss; (3) The limit of liability that applies to Cover- age C. if applicable; 103a (4) Any applicable. special limits of liability stated in this policy; or (5) For loss to any item separately described and specifically insured in this policy the limit of liability that applies to the item. b. When the replacement cost for the entire loss under this endorsement is more than $500, we will pay no more than the actual cash value for the leas or damage until the actual repair or replacement is complete. c. You may make a claim for loss on an actual cash value basis and then make claim within 180 days after the loss for any additional liabil- ity in accordance with this endorsement. All other provisions of this policy apply. & 104a HOMEOWNERS HO 04 96 04 91 NO SECTION II - LIABILITY COVERAGES FOR HOME DAY CARE BUSINESS LIMITED SECTION I - PROPERTY COVERAGES FOR HOME DAY CARE BUSINESS If an “insured” regularly provides home day care services to a person or persons other than “insureds” and receives monetary or other compensation for such services, that enterprise is a “business.” Mutual exchange of home day care services, however, is not considered. compensation. The rendering of home day care services by an Insured” to a relative of an “in- sured” is not considered a “business.” Therefore, with respect to a home day care enter- prise which is considered to be a “business,” this pol- icy: 1. Does not provide Section II — Liability Coverages because a “business” of an “insured” is excluded under exclusion 1.b. of Section IT — Exclusions; 2. Does not provide Section I — Coverage B coverage where other structures are used in whole or in part for “business”; 3. Limits coverage for property used on the ‘resi- dence premises” for the home day care enterprise to $2,500, because Coverage C Special Limits of Liability — item 8. imposes that limit on “busi- ness” property on the “residence premises.’ (Item 8, corresponds to item 5. in Form HO 00 08.); 4. Limits coverage for property used away from the “residence premises” for the home day care enter- prise to $250, because Coverage C Special Limits of Liability — item 9. lmposes that limit on “busi- 105a ness” property away from the “residence prem- ises.” Special Limit of Liability item 9. does not apply to adaptable electronic apparatus as de- scribed in Special Limit of Liability items 10. and 11. (Items 9. 10. and 11. correspond to items 6., 7 and 8. respectively in Form HO 00 08.) THIS ENDORSEMENT DOES NOT CONSTITUTE A REDUCTION OF COVERAGE. 106a POLICY NUMBER: HOMEOWNERS HO 05 80 05 97 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PROPERTY REMEDIATION FOR ESCAPED LIQUID FUEL AND LIMITED LEAD AND ES- SAPED LIQUID FUEL LIABILITY COVERAGES ALL FORMS EXCEPT FORMS HO 00 04 AND HO 00 06 SCHEDULE For the credit given or the premium charged, the cov- erage provided by this endorsement and the applica- ble Limits of Liability shown in this Schedule apply. These limits of liability apply to the total of all loss, damage or expense payable under this endorsement, regardless of the number of locations insured under this endorsement and listed in this Schedule. 1. Aggregate Limited Lead And Es- | $50,000 caped Liquid Fuel Liability Limit Of Liability 2. Property Remediation For Escaped | $10,000 Liquid Fuel Limit Of Liability This Property Remediation For Es- caped Liquid Fuel Limit Of Liability applies to the “residence premises” as defined in Paragraphs a., b. or c. of Definition 8. “Residence premises” In this endorsement and any of the fol- lowing locations as defined in Para- graph d. of Definition 8. “Residence premises”: 107a * Entries may be left blank if shown elsewhere in this policy for this coverage. A. Definitions The definitions applying to the policy form, other than Definition 8. “Residence premises”, apply to this endorsement. Definition 8. ‘Residence prem- ises” is amended and Definitions 9. through 11. are added only with respect to the coverage pro- vided by this endorsement. 8. “Residence premises” means: a. The one family dwelling, other structures, and grounds where you reside; b. That part of any other building where you reside; or c. A two family dwelling where you reside in at least one of the family units; and which is shown as the “residence premises” in the Declarations; and d. Any location shown in the Schedule of this endorsement. 9. “Covered real property’. The following applies only to the Section I — Additional Coverage — . Property Remediation For Escaped Liquid Fuel: a. “Covered real property” means: (1) Property owned by an Insured” and cov- ered under Coverage A — Dwelling of this policy; (2) Any other one, two, three or four family dwelling building owned by an “insured” 108a and shown in the Schedule under item et (3) Materials and supplies located on or next to the “residence premises”, used to construct, alter or repair the dwelling or other structures on the “residence prem- ises”; (4) Property owned by an “insured” and covered under Coverage B — Other Structures of this policy, provided such property is located on the “residence premises”; and (5) Land, other than farm land: (a) Which is within the “residence premises”; (b) Which is owned by an Insured”; and (c) On which a building or structures described in Paragraphs 9.a.(1), (2), (3) or (4) is located. b. “Covered real property” does not include: (1) Water; (2) Other structures that are part of the “fuel system”; or (3) Trees, shrubs, plants or lawns, except to the extent permitted by Paragraph 8.3.c. of this endorsement. 10.“Covered personal property”. The following ap- plies only to the Section 1 — Additional Cover- age — Property Remediation For Escaped Liq- uid Fuel: 109a a. “Covered personal property” means personal property: (1) Owned or used by an “insured” and cov- ered under Coverage C Personal Prop- erty of this policy, and (2) Located on the “residence premises”, b. Loss or damage to such property shall be subject to those Coverage C Special Limits of Liability that apply. 11. “Fuel System” means: a. One or more containers, tanks or vessels which have a total combined storage capac- ity of 100 or more U.S. gallons of liquid fuel; and: (1) Are, or were, used to hold liquid fuel that is intended to be used solely for one or more of the following: (a) To heat or cool a building; (b) To heat water; (c) To cook food; or (d) To power motor vehicles, other mo- torized land conveyances or water- craft owned by an Insured” and not used at any time or in any manner for “business”; and (2) Are, or were, located on: (a) “Covered real property”; or (b) An “insured location”; (c) Any pumping apparatus, which in- cludes the motor, gauge, nozzle, hose 110a or pipes that are, or were, connected to one or more containers, tanks or vessels described in Paragraph 11.a.; c. Filler pipes and flues connected to one or more containers, tanks or vessels described in Paragraph 11.a.; d. A boiler, furnace or a water heater, the liq- uid fuel for which Is stored in a container, tank or vessel described in Paragraph 11.a., and which is located on: (1) “Covered real property”; or (2) An insured location”; e. Fittings and pipes connecting the boiler, furnace or water heater to one or more con- tainers, tanks or vessels described in Para- graph 11.a.; or f. A structure that is specifically designed and built to hold the liquid fuel that escapes from one or more contairiers, tanks or ves- sels described in Paragraph 11.a. B. Section 1— Additional Coverages The following Additional Coverage Is added: PROPERTY REMEDIATION FOR ESCAPED LIQUID FUEL 1. With respect to the total of all escapes of liquid fuel from a “fuel system” which an “insured” first discovers or learns of during the policy pe- riod, we will pay up to the Limit of Liability shown in the Schedule for loss, damage or ex- pense described in Paragraph B.3. oS llla 2. The Limit shown in the Schedule for this cov- erage is the most we will pay for the total of all loss, damage or expense payable under Para- graph B.3. regardless of the: a. b. c. Number of locations insured under this en- dorsement; Number of escapes of liquid fuel from a “fuel system” an Insured” first discovers or learns of during the policy period; or Number of claims made. 3. Loss, Damage Or Expense Covered This Cover- age pays for: a. Loss or damage to: 1. “Covered real property”; or 2. Covered personal property; caused directly or indirectly by the escape of such fuel from a “fuel system”; The reasonable expense you incur to: (1) Take temporary measures to stop the further escape of liquid fuel from any part of the “fuel system”; (2) Retard or stop the spread of escaped liq- uid fuel; (3) Clean up, remove or treat loss or dam- age to: (a) “Covered real property”; or (b) “Covered personal property”; or (4) Test, monitor or assess the effects of the escape of liquid fuel on or away from “covered real property”: “ss 112a (a) As required by law; or (b) In response to a request, demand or order by a governmental authority or court of law. We will pay for such expense only if it results from the same escape that is payable under Paragraph 8.3.a., or b.; Loss or damage to trees, shrubs, plants or fawns, located on the “residence premises”, but only if there is loss, damage or expense caused by the same escape that is payable under Paragraph 8.3.a. or b. However, we will not pay more than an amount equal to 5% of the Limit of Liability shown in the Schedule for the total of all loss or damage to trees, shrubs, plants or lawns. No more than $500 of this amount will be payable for any lawn or any one tree, shrub, or plant We do not cover property grown for “business’. Under Form HO 00 08, no more than $250 of the amount of insurance available under this coverage will be payable for lawns or any one tree, shrub or plant; and . Additional Living Expense (1) Additional Living Expense means any necessary increase in living expenses you incur, so that your household can maintain its normal standard of living, if the escape of liquid fuel: (a) Results in loss, damage or expense payable under Paragraph B.3.a. or b.; and 113a (b) Makes that part of the “residence premises” where you reside not fit to live in. (2) Payment for Additional Living Expense will be for the shortest time required: (a) To make that part of the “residence premises” where you reside fit to live in; or (b) For your household to settle else- where, if you permanently relocate. This period of time applies even if it ex- tends past the expiration date of this policy. We do not cover loss or expense due to cancellation of a lease or agreement. (3) This coverage does not increase the Limit of Liability shown in the Schedule. (4) Section I — Property Coverages, Cover- age D — Loss Of Use in the policy form does not apply to this endorsement. 4. Deductible The deductible amount, equal to that which applies to the peril of Fire, applies to loss, damage or expense covered under this addi- tional coverage. We will pay only that part of the total of all loss, damage or expense. payable under Paragraph 8.3. that exceeds that de- ductible amount. 5. Loss, Damage Or Expense Not Covered We will not pay: ll4a a. For any diminution or reduction in the mar- ket value of any: (1) “Covered real property”; or (2) “Covered personal property”; b. For any damage resulting from the loss of or reduction in value of a pending sale of: (1) “Covered real property”; or (2) “Covered personal property”; c. To replace any fuel; d. For any expense to: (1) Demolish or remove; or (2) Repair, replace, rebuild or restore; any part of a “fuel system”, other than those expenses provided for in Paragraph B.3.a. or b.; or e. For any damage that results from an escape from: (1) One or more containers, tanks or ves- sels, that are, or were, used to hold iiq- uid fuel and are a part of a motor vehi- cle, motorized land conveyance or watercraft; or (2) Related lines or parts, that are, or were, connected to a motor vehicle, motorized land conveyance or watercraft. . For Form HO 00 03, under Section 1— Perils Insured Against, Paragraph 2.e.(5) does not apply to this Property Remediation For Es- caped Liquid Fuel Coverage. 115a 7. When Special Computer Coverage Endorse- ment is attached, Paragraph B.(3)(e) in that endorsement, under Perils insured Against, does not apply to this Property Rernediation For Escaped Liquid Fuel Coverage. 8. For Form HO 00 03 when the Special Personal Property Coverage Endorsement is attached, Paragraph 1.b.(4)(e) in that endorsement, does not apply to this Property Remediation For Es- caped Liquid Fuel Coverage. 9. The Section I — Exclusions and Section 1 — Additional Coverages apply to this Property Remediation For Escaped Liquid Fuel Cov- erage. 10.The Section 1— Conditions apply to this Prop- erty Remediation For Escaped Liquid Fuel Coverage except as provided in Paragraph C. Section I — Conditions below. 11.This Property Remediation For Escaped Liquid Fuel Coverage does not apply to any “residence premises” at which the containers, tanks or vessels, described in Paragraph A.11.a., have a total combined storage capacity of less than 100 U.S. gallons of liquid fuel. Coverage, if any, for escape of liquid fuel from such containers, tanks or vessels is subject to those; a. Exclusions: b Conditions; c. Other provisions; and d Limits of Liability; 116a that apply to real and personal property under the policy to which this endorsement is at- tached. C. Section 1 — Conditions — Property Remediation For Escaped Fuel With respect to loss, damage or expense described in Paragraph B. Section I — Additional Cover- ages, Section 1 Condition 7. Other Insurance, is deleted and replaced by the following: 7. Other Insurance And Service Agreement a. OtherInsurance _ If loss, damage or expense covered in pre- ceding Paragraph B. is also covered by other insurance, we will pay only the pro- portion of the foss, damage or expense that the limit of liability that applies under this endorsement bears to the total amount of insurance covering the loss, damage or ex- pense. b. Service Agreement If loss, damage or expense covered in pre- ceding Paragraph B. is also covered by a service agreement, then this Property Remediation for Escaped Liquid Fuel Cov- erage is excess over any amounts payable under any such agreement. Service Agree- ment means a “fuel system” service plan, property restoration protection plan, or similar service or warranty agreement, even if it is characterized as insurance. D. Section II — Liability Coverages 117a LIMITED LEAD AND ESCAPED LIQUID FUEL LIABILITY COVERAGE 1. With respect to “bodily injury” or “property damage” described In Paragraph D.2,, the cov- erages provided by Section 0 — Liability Cov- erages, Coverage E — Personal Liability and Coverage F — Medical Payments To Others in the policy form, and the Limits of Liability stated on the Declarations page do not apply. 2. This coverage applies if a claim is made or a suit is brought against an “insured” for dam- ages because of: a. “Bodily injury’ or “property damage” caused by an “occurrence” involving the escape of fuel from a “fuel system”. However, this limited coverage does not apply to an “oc- currence” of fire or explosion that results from such escaped fuel. Damages resulting from such an “occurrence” of fire or explo- sion are subject to the Coverage E — Per- sonal Liability limit of liability of the policy to which this endorsement is attached; b. “Bodily injury” caused by an *occurrence” involving the absorption, ingestion or inha- lation of lead which is in or on an Insured location”; or c. “Property damage” caused by an “occur- rence” of lead contamination, but only if, immediately prior to the ‘occurrence”, the lead was located at an Insured location”. NO OTHER LEAD OR ESCAPED LIQUID FUEL LIABILITY COVERAGE APPLIES 118a UNDER THIS POLICY EXCEPT AS PRO- VIDED IN THIS PARAGRAPH. . If coverage applies as stated in Paragraph D.2., we will: a. Pay up to the Aggregate Limit of Liability stated in the Schedule for damages for which an insured” is legally liable. Dam- ages include prejudgment Interest awarded against en “insured”; and b. Provide a defense at our expense by counsel of our choice even if the suit is groundless, false or fraudulent. We may investigate and settle any claim or stilt that we decide is appropriate. Our duty to settle or defend ends when the amount we pay for damages resulting from “bodily injury” or “property damage” described in Paragraph D.2. ex- hausts the Aggregate Limit of Liability stated in the Schedule. . With respect only to applying the provisions of this coverage as described in Paragraph 1)2., “bodily injury” or “property damage” caused in whole or in part by an “occurrence” described in Paragraph D.2. shall be deemed to have been caused solely by such an “occurrence” re- gardless of any other covered cause or event contributing to the “bodily injury” or “property damage”. . The Section II — Additional Coverages in the policy form apply with respect to this coverage as described in Paragraph D. except as pro- vided in Paragraph E. Section II — Additional Coverages. 119a 6. The Section 11— Conditions in the policy form apply with respect to this coverage as de- scribed in Paragraph D. except as provided in Paragraph F. Section 1I — Liability Con4i- tions. 7. This coverage does not apply to an “insured lo- cation” at which the containers, tanks or ves- sels described in Paragraph Alta. have a total combined storage capacity of less than 100 U.S. gallons of liquid fuel. Coverage, if any, for an “occurrence” involving the escape of liquid fuel from such containers, tanks or vessels is subject to those: a. Exclusions; b. Conditions; c. Other provisions; and d. Limits of Liability; that apply to Personal Liability and Medical Payments To Others coverage in the policy to which this endorsement is attached. E. Section II — Additional Coverages With respect to coverage described in Paragraph D. Section II — liability Coverages, Additional Coverage 4. Loss Assessment is deleted and re- placed by the following: 4. Loss Assessment a. We will pay up to the Aggregate Limit of Li- ability stated in the Schedule for your share of loss assessment charged during the policy pe- riod against you by a corporation or association 120a of property owners, when the assessment is made as a result of: (1) An “occurrence” involving the escape of fuel from a “fuel system”; (2) Sections I and II Conditions, Item 1. Policy Period in this endorsement and in the pol- icy form to which this endorsement is at- tached. F. Section 11- Liability Conditions With respect to coverage described in Paragraph D. Section U- Liability Coverages: 1. Conditions 4. - Duties Of An injured Person Coverage F Medical Payments To Others and 5. - Payment Of Claim - Coverage F -Medical Payments To Others are deleted; and 2. Conditions 1. - Limit Of Liability and 2. - Sev- erability Of insurance in the policy form are deleted and replaced by the following: 1. Aggregate Limit of Liability Our total liability in any one policy period for all damages resulting from the total of all “bod- ily injury” or “property damage” during the policy period will not be more than the Limited Lead and Escaped Liquid Fuel Liability Cover- age Aggregate Limit of Liability stated in the Schedule. This is the most we will pay regard- less of the: 2. Number of locations insured under the policy to which this endorsement is at- tached; b. Number of persons injured; 12la c. Number of persons whose property is damaged; d. Number of “insureds”; or e. Number of claims made. The “occurrence” limit of liability does not apply to this coverage. 2. Severability Of Insurance This insurance applies separately to each “in- sured” except with respect to the Aggregate Limit of Liability described in Paragraph F.2.1. This condition will not increase the Limit for this coverage. G. Sections I and II - Conditions Sections I and II - Conditions, item 1. Policy Pe- riod is deleted with respect to the provisions of this endorsement and replaced by the following: 1. Policy Period - Section II - Liability This endorsement applies to “bodily injury” or “property damage” described in Paragraph D.2. All other provisions of the policy not specifically modified by this endorsement apply. LEXINGTON INSURANCE COMPANY STANDARD POLICY CONDITIONS THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CAREFULLY MINIMUM EARNED PREMIUM CLAUSE In the event of cancellation of this policy by you, the minimum premium listed on the Declaration page shall become fully earned, any provision of the policy to the contrary notwithstanding. 122a Your failure to make timely payment of premium shall be considered a request by you for us to cancel on your behalf In the event of such cancellation for non-payment of premium, the minimum. earned premium shall be due and payable; provided, how- ever, such cancellation shall be rescinded if you remit and we receive the full policy premium within 10 days after the date of issuance of the cancellation no- tice. Such remittance and acceptance by us shall not alfect the minimum earned provision of this en- dorsement. In the event of any other cancellation by us, the earned premium shall be computed pro-rata, not subject to the minimum earned premium. SERVICE OF SUIT CLAUSE Service of Suit - In the event of our failure to pay any amount clammed to be due hereunder, we, at your request, will submit to the jurisdiction of a court of competent jurisdiction within the United States. Nothing in this condition constitutes or should be understood to constitute a waiver of our rights to commence an action in any court of competent juris- diction in the United States to remove an action to a United States District Court or to seek a transfer of a case to another court as permitted by the laws of the United States or of any state in the United States, It is further agreed that service of process in such suit may be made upon Counsel, Legal Department, Lex- ington Insurance Company, 200 State Street, Boston, Massachusetts, 02109 or his or her representative, and that in any suit instituted against us upon this policy, we will abide by the final decision of such court or of any appellate court in the event of an ap- peal. Further, pursuant to any statute of any state, terri- tory, or district of the United States which makes 123a provision therefor, we hereby designate the Superin- tendent, Commissioner or Director of Insurance, or other officer specified for that purpose in the statute, or his or her successors in office as our true and law- ful attorney upon whom may be served any lawful process in any action, suit, or proceeding instituted by you or on your behalf or any beneficiary hereunder arising out of this policy of insurance and hereby des- ignate the above named Counsel as the person to whom the said officer is authorized to mail such proc- ess or a true copy thereof. AUTHORIZATION CLAUSE IN WITNESS WHEREOF, we have caused this pol- icy to be executed and attested, but this policy shall not be valid unless signed on the Declaration page by our duly authorized representative. /s/ Elizabeth M. Tuck /s/ Ilegible SECRETARY CHAIRMAN AND CEO 124a [Logo] IMPORTANT FLOOD INSURANCE NOTICE Your homeowners or dwelling policy does NOT provide coverage for loss caused by flood or mudslide, which is defined, in part, by the National Flood In- surance Program as: A general and temporary condition of partial or complete inundation of normally dry land areas from overflow of inland or tidal waters or from the unusual and rapid accumulation or runoff of surface waters ‘from any source. If you are required by your mortgage lender to have flood insurance on your property, or if you feel that your property is susceptible to flood damage, in- surance covering damage from flood is available on most buildings and contents in participating commu- nities through the National Flood Insurance Pro- gram. Information about flood insurance and whether your community participates in the program can be obtained from your insurance company from your in- surance agent/broker, or directly from the National *lood Insurance Program by calling 1-800-638-6620. If you purchase the maximum limits available through the National Flood Insurance Program, and require additional limits, contact your agent/broker for information regarding the Lexington Insurance Company’s Excess Flood Program. 125a THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CAREFULLY. EXTERIOR INSULATION AND FINISH SYSTEM EXCLUSION THIS ENDORSEMENT IS ADDED TO YOUR HOMEOWNERS POLICY AND APPLIES TO ALL COVERAGES AND COVERAGE PARTS THAT FORM PART OF THIS POLICY. This coverage does not apply to any of the follow- ing, regardless of any other cause or event that con- tributes thereto, concurrently or in any sequence: . 1. “Bodily injury”, “property damage”, or any other loss including but not limited to seepage, &lamination, detachment, cracking, insect dam- age, collapse or imminent collapse, caused directly or indirectly, in whole or in part, by the design, manufacture, construction, fabrication, prepara- tion, installation, application, maintenance or re- pair, including remodeling, service, correction, or replacement, of an “exterior insulation and finish system” or any part thereof, or any -substantially similar system or any part thereof, including the application or use of conditioners, primers, acces- sories, flashings, coatings, caulking or sealant in connection with such a system; or 2. Any moisture-related or dry rot-related. “property damage” to an “inured location” or other building to which an “exterior insulation and finish sys- tem” has been applied, if that “property damage” is caused directly or indirectly, in whole or in part, by the “exterior insulation and finish system”; For the purpose of this endorsement, an “exterior insulation and finish system” means an exterior 126a cladding or finish system applied to an “insured loca- tion” or other building, and consisting of: a) A rigid or semi-rigid insulation board made of expanded polystyrene or other material; and b) The adhesive and/or mechanical fasteners used to attach the insulation board to the substrate; and c) A reinforcing mesh that is embedded in a base coat applied to the insulation board; and a) A finish coat providing surface texture and Color. | However, an “exterior insulation and finish sys- tem” does not include a cement-based, enhanced stucco cladding system which; a) Incorporates a weather resistive building wrap; and b) Incorporates ribbed insulation board to provide drainage. Nothing in this exclusion is deemed to supersede coverage provided by the Limited Mold Coverage Re- lated endorsement (LEX 04 33 04 02); (LEX 00 25 11 01); (LEXELITE 00 25 02 03); (LEXELITE 00 25 04 02); (LEX DP 04 33 05 03). All other terms, conditions and exclusions of the policy remain unchanged. 127a [Logo] HOMEOWNERS LEX 01 09 03 G3 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY SPECIAL PROVISIONS SECTION 1-- PROPERTY COVERAGES COVERAGE B —Other Structures. The last para- graph is deleted and replaced by the following: The limit of liability for this coverage shall not exceed the amount shown in the Declarations. DEDUCTIBLE CLAUSE — is added as follows: Unless otherwise noted in this policy, the fol- lowing deductible provision applies: Subject to the policy limits that apply, we will pay only that part of the total of all losses pay- able under Section I Property Coverages that exceed the applicable deductible amount shown in the Declarations, under no circum- stance shall the applicable deductible be Tess than the All Other Peril (AOP) deductible listed on the Declarations. SECTION I ADDITIONAL COVERAGES 11. Ordinance or Law is deleted and replaced on Homeowners 4 — Contents Broad Form (HO 00 04 04 91) or Homeowners 8— Unit-Owners Form (HO 00 06 04 91) as follows: 11. Ordinance or Law does not apply and no coverage is provided. 128a SECTION I PERILS INSURED AGAINST COVERAGE A — DWELLING and COVERAGE B — OTHER STRUCTURES 2.a. is deleted and replaced by. the following: a. Freezing of a plumbing, heating, air condi- tioning or automatic fire protective sprin- kler system or of a household appliance, or by discharge, leakage or overflow from within the system or appliance caused by freezing. This provision does not apply if you have used reasonable care to: (1) Maintain heat In the building; or (2) Shutoff the water supply and drain all systems and appliances of water, However, if the building is protected by, an automatic fire protective sprinkler system, you must use reasonable care to continue the water supply and maintain heat in the building for coverage to apply. SECTION 1— EXCLUSIONS Paragraph 1.i. Act of Terrorism. is added; i. Act of Terrorism. meaning an act, including but not limited to the use of force or violence and/or the threat thereof, of any person or group(s)-of persons, whether acting alone or on behalf of or in connection with any organization(s) or government(s), committed for political, reli- gious, ideological or similar purposes including the Intention to influence any government and/or to put the public, or any section of the public, in fear. 129a It is hereby understood and agreed, that notwith- standing any provision to the contrary, it is agreed that this policy. excludes, damage, cost or expense of whatsoever nature directly or indi- rectly caused by, resulting from or in connection with biological, chemical, or nuclear pollution or contamination arising out of any act of terrorism regardless of any other cause or event contribut- ing concurrently or in any other sequence to the loss. The policy else excludes damage, cost or expense o whatsoever nature directly or indirectly caused by, resulting from or in connection with any action taken in controlling, preventing, or suppressing or in any way relating to any biological, chemical, or nuclear pollution or contamination arising out of an act of terrorism. Nothing in this exclusion shall be construed to ex- clude loss, damage or cost or expense of whatso- ever nature arising out of fire following any nu- clear incident. SECTION I - CONDITIONS 3.b. Loss Settlement- the following is added: (6) if, at the time of loss, the building(s) under Coverage A or B are being repaired, reno- vated, rebuilt or under construction, the amount of insurance be the proportion of the value of the building that the actual cash value of the building, on that date, bears to the value when completed. You and we agree that, for insurance purposes only, the value-of the building is the amount shown on the Declarations. 130a SECTION II -EXCLUSIONS Coverage E — Personal Liability and Coverage F Medical Payments To Others Paragraph 1.a is deleted and replaced by the fol- lowing a. Which is expected or which may reasona- bly, be from the intentional acts or omis- sions or criminal acts or omissions of one or more “insured” persons. This exclusion ap- plies even if the resulting “bodily injury” or “property damage” (1) is committed by an “insured” person(s) lacking the mental capacity to govern their own conduct; (2) Is of a different kind, quality or degree than initially expected or intended; (3) Is sustained by, a different person, en- tity, real or personal property, than ini- tially expected or intended. This provision applies regardless of an in- sured” person(s) actually being charged with, or convicted of a crime. Paragraph 1.j. is deleted and replaced by the fol- lowing: j. Which arises out of the transmission of a communicable disease by one or more “in- sured”person(s) or by any other person for whom the “insured” is legally responsible. In addition, ‘We’ shall have no duty to de- fend any claim or stilt seeking “bodily in- jury’ or “properly damage” Paragraph 1.m. is added: —_.. 13la m. Arising out of any claim of or indemnifica- tion for punitive or exemplary damages. We shall not have an obligation to pay for any costs, interests or damages attributable to punitive or exemplary dam ages. SECTION I and II — CONDITIONS 2. Concealment or Fraud’s deleted and replaced b the following: 2. We do not provide any coverage to one or more “insureds” who, whether before or af- ter a loss has: (1) Intentionally concealed or misrepre- sented real material fact or circum- stance; (2) Engaged in fraudulent conduct; or (3) Made false statements relating to coverage, we at our option may choose to void the entire policy. * *k * 5. Cancellation and 6. the following is added: Regardless of another special provision and or clauses to the contrary, these two sec- tions are not modified by any other forms or endorsements attached to this policy. This policy is subject to the contract terms speci- fied in Section 1 and II-Conditions, 5. Can- cellation and 6. Nonrenewal. of the stan- dard unendorsed Homeowners’ Form, unless prohibited by applicable slate law. If any provision of this endorsement is expressly pro- hibited by applicable state law or applicable insur- ance department regulation, that provision does not, apply. 132a [Logo] THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CAREFULLY. WINDSTORM OR HAIL PERCENTAGE DEDUCTI- BLE ALL FORMS EXCEPT HO 00 04 and HO 00 06 For the premium charged, we will pay only that part of the total of the loss for all Section 1 Property Coverages that exceeds the windstorm or hail per- centage deductible stated in this endorsement. This deductible applies in the event of direct physical loss to property covered under this policy caused directly or indirectly by windstorm or hail Such deductible applies regardless of any other cause or event con- tributing concurrently or in any sequence to the loss. No other deductible provision in the policy applies to direct physical loss caused by windstorm or hail. In determining the amount, if any, that we wilt pay for loss or damage, we will deduct an amount equal to ___%* of the limit of liability that applies to Coverage A — Dwelling, in the policy to which this endorse- rnent is attached, subject to a minimum $1,000 wind- storm or hail deductible. *Entries may be left blank if shown elsewhere in this policy for this coverage. All other provisions of this policy apply. All other provisions of this policy apply. 133a [Logo] HOMEOWNERS PROPERTY REMEDIATION FOR ESCAPED LIQUID FUEL AND LIMITED LEAD AND ESCAPED LIQUID FUEL LIABILITY COV- ERAGES ADVISORY NOTICE TO POLICYHOLDERS This notice does not provide coverage nor does this notice replace any provisions of your policy you should read your policy and review your declarations page for complete information on the coverages you are provided with. If there is any conflict between the policy and this notice, the provisions of the policy shall prevail. The policy you have just applied for or received has: added coverage for damage to your property caused by the escape of certain petroleum prod- ucts that may be found in or on your home, your residential unit in an apartment, condominium or cooperative building, your household or per- sonal property, other real property you own that is covered in this policy and land on which your home or unit or covered personal property is lo- cated; and reduced liability coverage for injury to another person, or damage to the property of others, that is caused by the escape of certain petroleum products or by lead on or emanating from an in- sured location such as your house, any other premises where you are living but which you do not own, or vacant land that you own. ESCAPED FUEL REMEDIATION If liquid fuel escapes flora a fuel storage system on your property, kiss or damage caused by the escaped 134a fuel to your home, personal property, any other one, two, three or four family dwelling building you own and insure for remediation coverage will be covered. Additionally, your land on which the house, other structures or other dwelling building you own are situated will be covered for loss or damage. Coverage will apply when the fuel storage tanks, vessels and/or containers on your property have a total combined storage capacity of 100 or more U:S. gallons of liquid fuel. Coverage will also be provided for: 1. 4. The cost of making temporary repairs to stop the further escape of liquid fuel, or to retard or stop the spread of escaped liquid fuel. Reasonable expenses to test, monitor or assess the effects of escaped liquid fuel required by law, or when a governmental agency or a court of law requests, orders or demands that you do so. Loss or damage to your trees, shrubs and plants that are not grown for business; and Additional living expenses you incur to main- tain your normal standard of living. However, there will be no coverage: 3. For a reduction in the market value of your house and any other dwelling building you own, including the land on which they are situated, or your personal property, whether or not such property has been damaged; For damages resulting from the loss of a pend- ing sale of your house and, if covered under this policy, other dwelling buildings, other structures and your personal property; 3. Toreplace any of the escaped fuel; 135a 4. For any expense you incur to demolish, repair or replace any part of your fuel system; and 5. For any damages resulting from an escape of liquid fuel from one or more containers, tanks or vessels or related lines or parts that are connected to or a part of a motor vehicle, mo- torized land conveyance or watercraft. Our limit of liability We will provide up to $10,000 of coverage. The limit is the most we will pay for the total of all loss, dam- age or expense caused by the eecape of liquid fuel from your fuel system during the policy period re- gardless of the number of locations insured under your policy, the number of escapes of liquid fuel you discover or team of during the policy period or the number of claims made. Your Deductible We will apply the AOP (all other perils) deductible shown on the declaration page to any loss. LEAD AND ESCAPED FUEL LIABILITY COVER- AGE 1. We have limited your coverage when a claim is made or a suit is brought against you by an- other person alleging damages because of: a. bodily injury arising out of the absorption, ingestion or inhalation of lead that is in or on your home or your residential unit, any other structures you may own, your per- sonal property, and soil on any insured lo- cation; 136a b. property damage arising out of lead con- tamination, but only if the lead originates at an insured location; or c. bodily injury or property damage arising out of the escape of liquid fuel from your fuel storage system when the fuel storage ' tanks, vessels and/or containers have a to- tal combined storage capacity of 100 or more U.S. gallons of liquid fuel and the fuel is used to heat or cool your dwelling, heat water, cook food, or power your motor vehi- cle, recreational vehicle or boat not used in any business. 2. The limit of liability is provided on an aggre- gate basis. This means that the limit for liabil- ity coverage is the most we will pay for all damages resulting from the total of all bodily injury or property damage, occurring during the entire policy period, that is caused by the escape of liquid fuel from your fuel system or the exposure to lead. This aggregate limit is the most we will pay regardless of the number of locations insured under the policy, number of insureds, number of persons injured by the lead or escaped fuel, number of persons whose property is damaged by the lead or escaped fuel or the number of claims made against you. We will provide up to $50,000 of coverage. 137a LEX 15 31 08 01 THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CAREFULLY SPECIAL PERSONAL PROPERTY COVERAGE AGREEMENT We agree to provide the special personal property coverage in this endorsement with the understanding that: 1. You occupy the ‘residence premises” which con- tains the covered property; and 2. Such residence is not rented or sublet to another, without our prior knowledge and acceptance. The Perils insured Against under homeowners form: HO 00 03 Coverages A, B and C or, HO 00 04 and HO 00 06 Coverage C only are de- leted and replaced by the following: SECTION 1— PROPERTY COVERAGES A. Coverage C — Personal Property The Special Limits of Liability, items 5., 6,. and 7., are deleted replaced by the following 5. $1,000 for foss by theft, misplacing or losing of jewelry, watches, furs, precious and semipre- cious stones. 6. $2,000 for loss by theft, misplacing or losing of firearms. 7. $2,500 for loss by theft, misplacing or losing of silverware, silver-plated ware goldware, gold- plated ware; platinumware and platinum- platedware and pewterware, This includes flatware, hollowware, tea sets: trays and tro- 138a phies. made of or including silver, gold or pew- ter. B. ADDITIONAL COVERAGES 8. Collapse Paragraph a: is deleted and replaced by the fol- lowing: a. Perils Insured Against in Coverages A and B. The following paragraph is also added: This additional coverage does not apply to Coverage C Personal Property. SECTION 1 — PERILS INSURED AGAINST We Insure against risk of direct physical loss to prop- erty described in Coverages A, B and C for form HO 00 03 and for Coverage C only for form HO 00 04 and HO 0005. We do not insure, however, for loss: 1. Under Coverages C: a. Excluded under SECTION 1— EXCLUSIONS; b. Caused by: (1) Freezing of a plumbing, heating, air conditioning or automatic fire protective sprinkler system or of a household ap- pliance, or by discharge, leakage or overflow from within the system or ap- pliance caused by freezing. This provi- sion does not apply if you have used rea- sonable care to: (a) Maintain heat in the building; or 139a (b) Shut off the water supply and drain all systems and appliances of water However, if the building is protected by an automatic tire protective sprinkler system, you must use reasonable care to continue the water supply or maintain heat in the building for coverage to apply. For purposes of this provision a plumbing system or household appliance does not include a sump, sump pump or related equipment’ or a roof drain, gutter, down spout or similar fixtures or equipment. (2) Freezing, thawing, pressure or weight of water or ice, whether driven by wind or not, to a; (a) Fence, pavement, patio or swimming (b) Footing, foundation, bulkhead, wall, or any other structure or device, that supports all cued of a building or other structure; (c) Retaining wall or bulkhead that does not support all. or part of a building_ or other structures; or (d) Pier, wharf or dock; (3) Theft in or to a dwelling under construc- tion, or of materials and supplies for use in the construction until the dwelling is finished and occupied; (4) Mold, fungus or wet rot. However, we do Insure for loss caused by mold, fungus or wet rot that is hidden within the walls or ceilings or beneath the floors or 140a above the ceilings of a structure if such loss results from the accidental dis- charge or overflow of water or steam from within: (a)A plumbing heating, air condition- ing or automatic fire protective sprinkler system, or a household ap- pliance, on the “ residence premises”- or (b) A storm drain, or water, steam or sewer pipes, off the “residence prem- ises” For the purpose of this provision, a. plumb- ing system or household appliance does not include a sump, sump pump or related equipment or a roof drain. gutter, down- spout or similar fixtures or equip-merit; (5) Any of the following: (a) Wear and tear, marring, deteriora- tion (b) Mechanical breakdown, latent defect, inherent vice, or any in property that causes it to damage or destroy itself; (c) Smog, rust or other corrosion, mold, wet or dry rot; (d) Smoke from agricultural smudging or industrial operations; (e) Discharge, dispersal, seepage, migra- tion, release or escape of pollutants unless the _ ,discharge, dispersal, seepage, migration, release or escape is itself caused by one or more of the l4la Perils Insured Against that would apply under Coverage C of the policy form if this endorsement were not at- tached to the policy form. Pollutants means any solid. liquid, gaseous or thermal Irritant or contami- nant Including smoke, vapor, _ soot, fumes, acids; alkalis, chemicals and waste. Waste includes materials to be recycled. reconditioned or ,reclaimed; (f) Settling, shrinking, bulging or ex- pansion, including resultant crack- ing, of pavements, patios, founda- tions, walls, floors, roofs or ceilings; (g) Birds, vermin, rodents, or insects; or (h) Animals owned or kept by an In- sured.” If any of these cause water damage not otherwise exciuded, from a plumbing, heating, air conditioning or automatic fire protective sprinkler system or household appliance on the “residence premises”, we cover loss caused by the water including the cost of tearing out and replacing any part of a building necessary to repair the system or appli- ance. We do not cover loss to the system or appliance from which this water es- caped. Under items (1) through (5), any ensu- ing loss to property described in Cover- 142a ages A, 8 and C not excluded or, ex- cepted in this policy is covered . Under Coverages A and B: a. Caused by vandalism and malicious mischief if the dwelling has been va- cant for more than 30 consecutive days immediately before the loss. A dwelling being constructed is not considered vacant. b. Involving collapse, other than as pro- vided in Additional Coverages — 8, Collapse: However. any ensuing loss to property described in Coverages A and 13 net excluded or excepted in this policy is covered. 3. Under Coverage C caused by: a. Breakage of: (1) Eyeglasses, glassware, statuary, marble; (2) Bric-a-brac, porcelains and similar fragile articles other than jewelry, watches, bronzes, cameras and pho- tographic lenses. There is coverage for breakage of the property by or resulting from: (1) Fire, lightning, windstorm, hail; (2) Smoke, other than smoke from agri- cultural smudging or industrial op- erations; (3) Explosion, riot, civil commotion 143a (4) Aircraft, vehicles, vandalism and ma- licious mischief; (5) Collapse of a building or any part of a building; (6) Water not otherwise excluded; (7) Theft or attempted theft; or (8) Sudden and accidental tearing apart, cracking, burning or bulging of: (a) A steam or hot water heating sys- tem; (b) An air conditioning or automatic fire protective sprinkler system; or (c) An appliance for heating water; . Dampness of atmosphere or extremes of temperature unless the direct cause of loss is rain, snow, sleet or hail; Refinishing, renovating or repairing property other than watches, jewelry and furs; . Collision. other than collision with a land vehicle, sinking, swamping or stranding of watercraft, includig® their trailers, furnishings, equipment and outboard engines or Motors; . Acts or decisions, including the failure to act or decide, of any ‘person, group, or- ganization or governmental body How- ever, an ensuing loss to property de- scribed in Coverage C not excluded or excepted in this policy is covered. 144a SECTION 1— EXCLUSIONS 1.c.Water Damage: The following paragraphs are added: Water damage to property described in Coverage C away from a premises or location owned, rented, occupied or controlled by an “insured” is covered. Water damage to property described in Coverage C on a premises or location owned, rented, occu- pied or controlled by an “insured” is excluded even if weather conditions contribute in anyway to pro- duce the loss. All other provisions of this policy apply. BEST AVAILABLE COPY “19 08 92399 «Sto ey H. 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Of @us aroun, $1,200,900 of the ings retates in the premisac tad $500,090 of the bess relates $1,700,080 (-Total Low”) to the persoml Tie id aoe: tn ep om Td ance cml ney pre RP00001 38 Exaipit “8” egrl 147a APPENDIX L UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION Civil Action No. 06-0360-WS-C RICHARD PREIS AND VICTORIA HEARIN PREIS versus LEXINGTON INSURANCE COMPANY, T & B, LTD. D/B/A THAMES, BATRE, MATTEL BEVILLE and ISON, and ALLEN LADD PLAINTIFFS’ MOTION IN LIMINE Now into court, through undersigned counsel, come Plaintiffs, RICHARD PREIS AND VICTORIA HEARIN PREIS (“Plaintiffs”), who move this Honor- able Court to order that Defendant, Lexington insur- ance Company, is barred from offering, filing, intro- ducing, or admitting certain testimony or exhibits at trial. On or about August 29, 2005, the Plaintiffs’ home on Mobile Bay was totally destroyed by Hurricane Katrina. The house has a replacement value in excess of $1,200,000. In addition, Plaintiffs suffered a loss in excess of $750,000.00 in personal property. Lexington issued the insurance policy (“Policy”) to Plaintiffs, which provides coverages to Plaintiffs for loss or damage to the their dwelling, personal property, and otter policies related to their property located at 148a 15049 Scenic Highway 98, Point Clear, Alabama. The Policy has limits of $634,000 under Coverages A & B for loss of dwelling and other structures and $317,000 under Coverage C for dwelling contents, as well as other coverages, including, additional living expenses and ordinance and law coverages The parties agree that the winds of Hurricane Katrina damaged the Preis’ home. The parties also agree that Defendant, Lexington:, has a Program Administer Agreement with T & B, Ltd. d/b/a Thames, Batré, Mattel, Be- ville, and Ison, and Allen Ladd to sell policies in Ala- bama. The Plaintiffs claim that the winds caused two major walls in their house to fail resulting in a total loss and demolition of the house and further, that Lexington has attempted to minimize the damage caused by winds to the house by only offering to pay approximately $53,135 to fund the construction of a new house and contents, with a replacement value approaching $1.8 million, even though the amount of the coverage for the dwelling was $634,000 and $317,000 for the personal contents and therefore, breaching their contract with the Plaintiffs. Based upon these assertions and the matters to be tried at the upcoming jury trial set to begin on Au- gust 13, 2007 before this Honorable Court, Plaintiffs hereby object to the following trial exhibits proposed by Lexington and potential testimony relating to cer- tain topics for the reasons more fully explained the accompanying Memorandum in Support of Motion in Limine: 149a 1. Overall request for limitation of the introduction of the Plaintiffs settlement with other insurers that provided coverage for flood to their home Plaintiffs move this Honorable Court to limit the introduction of any evidence, exhibits, and potential testimony which may relate to any amount received in settlement by them from other insurers relating to the flooding of their Point Clear home during Hurri- cane Katrina. Plaintiffs also move this Court to ex- clude all policy provisions or correspondence stating that the subject homeowners policy does not cover flood damage. This fact is undisputed. This evidence is irrelevant, serves little or no probative value, and is overly prejudicial. Although Plaintiffs admit they received insurance proceeds from their separate flood policies, the Plain- tiffs also contend their home was damaged in excess of those payments by wind. The issue in this case is how much damage was caused by wind, which con- tributed to the Plaintiffs’ total loss of approximately $1,800,000.00. More specifically, can the defendant prove by a preponderance of the evidence what, if any, amount of damage was caused by an excluded peril. The coverage afforded Plaintiffs under their homeowners policy with Lexington is a separate and independent question of breach of contract. Louisiana Civil Code article 2323 provides that in an action for damages where a person suffers an in- jury, the degree or percentage of fault of all persons causing or contributing to the injury shall be deter- mined. The amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury. La. C. C. art. 2323. In this case, the jury will be asked to determine the amount of the loss attrib- 150a utable to wind. Comparative fault must be pleaded as an affirmative defense, and the party asserting the defense bears the burden of proving, by a preponder- ance of the evidence, that the negligence of the other party was a cause in fact of the accident. Trahan v. Savage Industries, Inc., 96-1239 (La. App. 3 Cir. 3/5/97), 692 So.2d 490; Otillio v. Entergy Louisiana, Inc., 836 So.2d 293,295 (La. App. 5th Cir. 2002). Un- der Louisiana law, the burden of proving at trial the liability of a settling defendant falls on the remaining defendants. Raley v. Carter, 412 So.2d 1045, 1047 (La.1982); Norfleet v. Lifeguard Transp. Service, Inc., 2005-0501 (La. App. 4 Cir. 5/17/06); 934 So.2d 846, 852; Hoerner v. ANCO Insulations Inc, 2000-2333 (La. App. 4 Cir. 1/23/02), 812 So.2d 45, 66. The Eleventh Circuit Court of Appeal has ex- plained that a federal district court applies the Fed- eral Rules of Evidence because these rules are con- sidered procedural, regardless of the source of the law that governs the substantive decision. Cf. Farns- worth on Contracts § 7.2 at 196 & n. 16 (citing cases). MCC-Marble Ceramic Center, Inc., v. Ceramic Nuova d’Agostino, S.p.A. 144 F.3d 1384, 1389 (CA.11 (Fla.) 1998). Further, these documents were prepared as settlement documents and are not admissible in accordance with Rule 408 of the Federal Rules of Evidence, which provides in pertinent part: “Evi- dence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was dilis- puted as to either validity or amount, is not admissi- ble to prove liability for or invalidity of the claim or its amount Evidence of conduct or statements made in compromise negotiations is likewise not admissi- ble. . .” Fed. R. Evid. 408. 15la This Honorable Court in Armstrong v. HRB Roy- alty, Inc., 392 F.Supp.2d 1302 (S.D. Ala. 2005), explained that Rule 408 of the Federal Rules of Civil Procedure preclude the admission of settlement evi- dence by writing: By its terms, Rule 408 precludes the admission of evidence concerning an offer to compromise “a claim” for the purpose of proving (or disproving) the fact or amount of “the claim.” Gauged either by standard usage of the English language or by accepted rules of statutory construction, the definite article “the” limits “the claim” as to which evidence may not be admitted to the claim previously referenced, i.e., the claim which was the subject of a settlement offer.‘ Thus, “Rule 408 excludes evidence of settlement offers only if such evidence is offered to prove liability for or invalidity [or amount] of the claim under nego- tiation.” Vulcan Hart Corp. V. National Labor * See, e.g., Merriam-Webster’s Collegiate Dictionary 1221 (10th ed.1994)(“the” is “used as a function word to indicate that a following noun or noun equivalent is definite or has been previously specified by context or by circumstance”); American Bus Association v. Slater, 231 F.3d 1, 4-5 (D.C.Cir.2000)“It is ‘a rule of law well established that the definite article ‘the’ particularizes the subject which it precedes. It is a word of limitation as opposed to the indefinite or generalizing force of ‘a’ or ‘an.’ “internal quotes omitted); In re: Top Grade Sausage, Inc., 227 F.3d 123, 129 (3rd Cir.2000)use of “the trustee” in 11 U.S.C. § 330(a)1)A) referred back to “a trustee” as used in the preceding subsection); Miller’s Apple Valley Chevrolet Olds-Geo, Inc. v. Goodwin, 177 F.3d 232, 234 (4th Cir. 1999)where the first sentence of 49 U.S.C. § 32710(b) authorized [a] person” to bring suit while the second sentence authorized a court to award attorney’s fees to “the person,” “[t]he definite article defines ‘person’ to be a particular person and not any person [, and] Mile only antecedent possible is the ‘person’ described in the first sentence... .”). 152a Relations Board. 718 F.2d 269, 277 (8th Cir.1983) (emphasis added).? The Court concludes that Rule 408 unambiguously* 1305 requires that the claim as to which a settlement offer was made and the claim at issue in the litigation in which the offer is proffered as evidence must be the same claim. Armstrong v. HRB Royalty, Inc., 392 F.Supp.2d 1302, 1304 -1305 (S.D. Ala. 2005). 2. Objection to Defendant’s Exhibits 6, 8, 12, 13, 14, 16, 18 relating to flood insurance claims: Plaintiffs object to defense exhibits relating to flood insurance claims and/or adjuster reports or informa- * Accord Uforma/Shelby Business Forms, Inc. v. National Labor Relations Board, 111 F.3d 1284, 1293-94 (6th. Cir.1997)(“ ‘Rule 403 only bars the use of compromise evidence to prove the validity or invalidity of the claim that was the subject of the compromise, not some other claim.”) (quoting 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Pro- cedure: Evidence § 5314 (1st ed.1980)); Broadcort Capital Corp. v. Summa Medical Corp., 972 F.2d 1183, 1194 (10th Cir. I 992)(Rule 408 does not apply when the settlement discussions “involved a different claim than the one at issue in the current trial”); Bradbury v. Phillips Petroleum Co., 815 F.2d 1356, 1363 (10th Cir.1987)(“Read literally, the rule does not appear to cover compromises and compromise offers that do not involve the dispute that is the subject of the suit, even if one of the parties to the suit was also a party to the compromise.”); see also Zurich American Insurance Co. v. Watts Industries, Inc., 417 F.3d 682, 689 (7th Cir.2005)(“The balance is especially likely to tip in favor of admitting evidence when the settlement commu- nications at issue arise out of a dispute distinct from the one for which the evidence is being offered,”); Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652, 655 (4th Cir.1988) (appearing to recognize that “offering an item of evidence is not in terms barred by Rule 408” if it is not offered “to show the validity or invalidity of the compromised claim”). 153a tion. The Court should exclude the introduction of these exhibits. The Plaintiffs do not dispute they re- ceive flood insurance policy proceeds from flood poli- cies. The amounts received are not in dispute. The — admission of these exhibits would serve no probative value and only serve to prejudice the jury. The issue before the jury is how much of the Plaintiffs’ total loss can the defendant prove was caused by an ex- cluded peril. Further, National Flood Insurance Program and Excess Flood insurance documents, policies and esti- mates are inadmissable because they are irrelevant as to the issue of causation of the Plaintiffs’ loss. The flood policies were separate policies from the policy at question in this case and they and the amount of payments made are irrelevant as to coverage under the Lexington policy in this matter. Specifically, Plaintiffs object to Defendant’s Exhibits 6, 8, 12, 13, 14, 16, 18 and/or other documents related to this is- sue and not specifically listed by Defendants. Addi- tionally, Plaintiffs object to each of these exhibits as there are not relevant to the issue of causation, which is before the Court. 3. Objection to Defendant’s Exhibits 2, 3, 4,5, 8, and 18 relating to Defendant’s use to show causation of damages to Plaintiffs’ house Plaintiffs object to Defendant’s Exhibits 2, 3, 4, 5, 8, and 18 to the extent that the documents and/or estimates are to be used to determine the causation of damage to the Preis’ house. These estimates and evaluations were not made by an expert, engineer, or anyone with qualifications to deem causation of the damage to the Preis’ house and/or other documents related to this issue and not specifically listed by Defendant. 154a 4. Objection to Testimony Regarding Plaintiffs’ flood insurance claims and/or adjuster reports or infor- mation regarding settlement with other insurers that provided flood insurances to Preis. Plaintiffs object to any reports or statements made by Tracy Clark, Fred Frost, James Gibson, and Dar- rell Edwards regarding the flood insurance claims and/or adjuster reports, or information regarding set- tlement with other insurers that provided flood in- surance, or their opinions and testimony. Said state- ments and reports are hearsay. They are out of court statements offered for the truth of the matter as- serted. Also, these persons have not been admitted as experts and cannot offer opinion testimony. 5. Objection to Defendant’s Exhibits 21 through 44: Plaintiffs object to Defendant’s Exhibits 21 through 44 based upon the relevance as these documents are not relevant to the issue of causation and damages to Plaintiffs’ house. Further, there is no question that the Lexington Insurance Company policy [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0373%3A2. Public record. Not legal advice.