Handbook for Completing Course Outlines

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Kirk A. Pasich CA SBN 94242
Cassandra C. Shivers CA SBN 174164
Sharon T. Yuen CA SBN 229356
DICKSTEIN SHAPIRO LLP
2049 Century Park East, Suite 700
Los Angeles, CA 90067-3109
Telephone: (310) 772-8300
Facsimile: (310) 772-8301
CONFORMED COpy
OF ORIGINAL FILED
Los Angeles Superior Court
OCT 302009
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Attorneys for Plaintiff
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES
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Fox Entertainment Group, Inc., a corporation,
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CASE NO.:
aC42503?
Plaintiff,
v.
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Fireman's Fund Insurance Company, a corporation;
and DOES 1 through 10,
Defendants.
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COMPLAINT FOR BREACH OF
CONTRACT; TORTIOUS BREACH OF
THE IMPLIED COVENANT OF GOOD
FAITH AND FAIR DEALING; FRAUD
(PROMISE WITHOUT INTENT TO
PERFORM AND
MISREPRESENTATION); AND
DECLARATORY RELIEF
DEMAND FOR JURY TRIAL
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1
COMPLAINT
38600
1
Plaintiff complains of defendants and alleges as follows:
NATURE OF THIS ACTION
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1.
This is an action by Fox Entertainment Group, Inc., against Fireman's Fund Insurance
4 Company ("FFIC"). FFIC sold Fox a motion picture/television producer's portfolio policy that
5 insured certain productions, including the fim Hide and Seek, from, among other things, loss
6 resulting from the ilness of
its stars. However, when De Niro was
Robert De Niro, one of
7 diagnosed with prostate cancer, causing a delay in completion of principal photography of Hide and
8 Seek, FFIC responded by paying Fox's claim and suing De Niro for reimbursement of amounts paid
De Niro's Player
9 to Fox. As FFIC was well aware, Fox was required, pursuant to the terms of
10 Agreement for Hide and Seek, to indemnify and defend De Niro for any claim made by FFIC. Thus,
11 by its conduct, FFIC rendered the coverage that it sold to Fox illusory on this loss and deprived Fox
12 of
the benefits ofthe insurance that it had purchased. Therefore, Fox asked FFIC to reimburse it for
13 the amounts it incurred with respect to De Niro's defense. FFIC unreasonably refused to do so.
14 THE PARTIES
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2.
Fox Entertainment Group, Inc. is a California corporation with its principal place of
16 business in Los Angeles, California.
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3.
Fox is informed and believes, and on that basis alleges, that FFIC is a California
18 corporation licensed to transact and transacting business in the State of California and County of Los
19 Angeles.
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4.
FFIC has represented that it provides its insured with, and has pledged to provide,
21 "Claims and Risk Services professionals (who) are committed to delivering an experience in which
22 you are treated as if
you're our only customer" and advertises that "We started with a promise. We
23 have a promise to keep."
24 http://ww.firemansfund.com!servlet/ dcms?c=about&rkey= 14 28&homepage=our+claims+pledge.
25 In addition, Fox also is informed and believes that FFIC is a member of Allianz Group, which holds
26 itself out as providing "specialized solutions" to provide the "right insurance solution-even for
27 companies with very special requirements."
28 https://ww.allianz.com!en/customer solutions/protecting businesses/index.htmL.
2
COMPLAINT
38600
5. Fox does not currently know the true names and capacities, whether individual,
2 associate, partnership, corporate, or otherwise, of the defendants fictitiously designated as Does 1
3 through 10 and therefore sues those defendants by these fictitious names. Fox wil seek leave of
4 Cour to amend this Complaint when the true names and capacities of these fictitiously named
5 defendants have been ascertained.
6
6.
Fox is informed and believes, and on that basis alleges, that Does 1 through 10, in
7 some way unkown to Fox, have underwitten or provided insurance coverage to Fox, or have
8 paricipated in the decision by FFIC to deny coverage to Fox, or are otherwise responsible for the
9 losses and damages alleged herein, and that Does 1 through 10 are authorized to, and do, transact
10 insurance in the state of California and the county of Los Angeles.
11 THE INSURANCE POLICY
12
7.
FFIC sold Fox motion picture/television producers portfolio insurance policy number
13 MPT 07104173. The policy was in effect from February 1,2002, to February 1,2005. The policy
14 insured certain covered projects. Fox applied for, and was issued, coverage under the policy for the
pursuant to Declaration Number 137. This coverage was in effect
15 production of Hide and Seek
16 through March 16, 2005. The policy provided a limit of liability for each loss insured thereunder of
17 $80,000,000. In addition to other coverages, the policy provided "cast" insurance. A true and
18 correct copy of the relevant portions of the policy is attached hereto as Exhibit A and incorporated
19 herein by reference.
20
8.
Pursuant to the cast insurance coverage provided by the policy, FFIC agreed
21 to pay to (Fox) such loss. . . on anyone production, as (Fox) directly and solely
sustain by reason of any covered person, meaning any person. . . designated for
22 insurance whom you deem necessary to complete the production, in connection with
an insured production, being necessarily prevented by their death, injury or sickness,
23 occurring during the term of the insurance afforded by this Section, from
commencing or continuing or competing their respective duties or performance(s) in
24 an insured production.
25 Policy, § I, Cast, ii I - Insuring Agreement.
The policy defines "loss" as
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9.
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any extra expenditure (Fox) incur(s) in completing principal photography of an
insured production over and above the expenditure which, but for the happening of
anyone or more of the occurrences specified in Paragraph I, would have been
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3
COMPLAINT
38600
1 incurred in completing said principal photography.
2 ¡d., § I, Cast, ii VI.A - Definition of Loss.
3
10.
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All costs, including overhead, chargeable directly to an insured production or series
of productions including any amount of other overhead as may be declared by (Fox)
at the time of declaration of an insured production or series of productions, except
that the following costs shall not be included:
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Story; scenario; music rights; sound rights; royalties; residuals; continuity; premiums
paid for this insurance; interest on loans; and personal and real property taxes.
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¡d., Conditions Applicable to All Sections, ii II.A.
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11.
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(C)overage is provided under this Section for the period commencing one hundred
principal
photography which for the purpose of
this Section is defined as the "Pre-Production"
period of the Cast Coverage.
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¡d., § I, Cast, ii IV.C - Terms of Coverage.
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13.
In September 2003, due to his family medical history and despite normal PSA levels
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On October 13,2003, shortly before principal photography of Hide and Seek was
scheduled to commence, De Niro underwent a medical examination by a doctor on FFIC's physician
panel in connection with Fox's application for coverage for Hide and Seek. During that
examination, De Niro responded to questions read from a FFIC Medical Certificate & Affidavit
based on the information known to him as of that date and signed the completed Medical Certificate
& Affdavit.
15.
On October 15, 2003, De Niro was diagnosed with prostate cancer. Prior to his
diagnosis, De Niro was asymptomatic and displayed no signs of prostate cancer.
16.
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Robert De Niro was one of
2003, De Niro underwent a biopsy.
24
25
the actors starring in Hide and Seek.
12.
and a normal prostate gland, a physician recommended that De Niro have a biopsy. On October 10,
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The policy further provides:
twenty (120) days immediately preceding the commencement of
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The policy defines "Insurable Production Costs" as:
As a result of
De Niro's diagnosis, the Hide and Seek production team and De Niro
agreed that De Niro would immediately undergo surgery. On October 20,2003, Fox timely notified
FFIC of
De Niro's diagnosis and that it was anticipated that De Niro would be unavailable to
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COMPLAINT
38600
1 commence principal photography of Hide and Seek for approximately three months.
2
17.
Fox's claim and by
Upon receiving notification, FFIC began an investigation of
3 November 14,2003, projected Fox's loss at $2,600,000. At that same time, FFIC acknowledged that
4 while a Declaration that would name Hide and Seek as a production insured under the policy had not
5 yet been issued, its underwiting, claim management, and actuarial teams "have been aware of the
6 full exposure from the beginning."
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18.
the anticipated
On December 18,2003, nearly two months after FFIC was notified of
8 production delay, FFIC completed its underwriting process for Hide and Seek and issued a
9 Declaration confirming the terms of coverage for the production, with a "Estimated Period of
10 Principal Photography: Star Date" of October 27, 2003.
11
19.
As of September 2004, Fox advised FFIC that Fox had an obligation to indemnify De
12 Niro for any potential claim against him with respect to Hide and Seek. Fox also provided FFIC
13 with the relevant indemnity provisions of De Niro' s Player Agreement for Hide and Seek, and
14 continually advised FFIC of its indemnity obligation to De Niro.
15
20.
On or about December 7,2004, FFIC sent a letter to De Niro's counsel in which FFIC
16 demanded that De Niro reimburse FFIC for amounts paid to Fox for the cast insurance claim under
17 the policy for Hide and Seek. In that letter, FFIC acknowledged that Fox's loss for Hide and Seek
18 was a covered loss. Indeed, FFIC stated that it was "obligated to pay the claim presented by the
19 named insured, Fox Entertainment Group, Inc."
20
21.
his Player Agreement for Hide and
On January 20,2005, pursuant to the terms of
21 Seek, De Niro made a claim against Fox seeking indemnity and defense for any potential claims by
its claim for costs incurred by Fox in
22 FFIC. On that same date, Fox timely notified FFIC of
23 connection with De Niro' s claim.
24
22.
Pursuant to the terms of
De Niro's Player Agreement for Hide and Seek, on January
25 26,2005, Fox agreed to indemnify and defend De Niro with respect to any potential claim made by
26 FFIC against De Niro.
February 2005, FFIC paid a total of$I,851,375 for Fox's loss.
27
23.
As of
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24.
On March 25, 2005, Fox sent another letter to FFIC, "urg(ingJ FFIC to drop its claim
5
COMPLAINT
38600
1 against Mr. De Niro." In that letter, Fox advised FFIC that it would be required to reimburse Fox for
De Niro's Player Agreement for
2 any costs imposed upon Fox, pursuant to the indemnity provision of
3 Hide and Seek, as a result ofFFIC's claim against De Niro. Fox also advised that "(a)ny costs of
4 defense or indemnity imposed by Fox pursuant to such express indemnity provisions gets passed
5 back to FFIC." Fox further explained why FFIC's claim against De Niro was without merit.
6
25.
Fox's indemnification obligation
On October 11, 2006, despite the fact that it knew of
7 to De Niro, FFIC fied a lawsuit against De Niro, entitled Fireman's Fund Insurance Company v.
8 Robert De Niro, Case Number BC 359977 in the Superior Court for the State of California, County
9 of
Los Angeles. In that lawsuit, FFIC alleged that De Niro intentionally misled FFIC by failing to
10 volunteer that he had undergone a prostate biopsy three days before signing the Medical Certificate
11 & Affidavit.
12
26.
On or about October 19, 2006, De Niro again made a claim for indemnity and defense
13 against Fox for any damages and expenses resulting from the FFIC lawsuit. Fox continued to
all costs incurred by Fox in connection with De Niro's claim
14 request that FFIC pay on Fox's behalf
the FFIC lawsuit.
15 and provided FFIC with legal invoices from De Niro's defense of
16
27.
By letter dated October 30,2007, Fox requested that FFIC "pay on (Fox's) behalf all
17 costs incurred by Fox in connection with De Niro's claim." The letter enclosed copies oflegal
18 invoices and Fox's request that FFIC "remit payment promptly to Fox." Fox renewed its request by
19 letter dated February 29, 2008.
20
28.
the claim, FFIC
On March 7, 2008, more than three years after Fox notified FFIC of
21 formally denied coverage for Fox's claim with respect to De Niro's claim.
22
29.
On March 26,2008, the trial court in FFIC's lawsuit against De Niro granted De
23 Niro's motion for summary judgment and granted
judgment in favor of
De Niro. The court found
24 "there was no evidence submitted that Mr. De Niro knew that he had been diagnosed with or treated
25 for any disorder of the urinary tract of prostate gland at the time that he completed the medical
26 certificate on October 13,2003, neither condition constituted a disorder, and he was not obligated to
27 disclose either condition on the Medical Certificate." FFIC appealed the trial court's decision,
28 causing Fox to incur additional
De Niro.
legal expenses on behalf of
6
COMPLAINT
38600
1
30.
On June 15, 2009, the court of appeal affrmed the grant of De Niro' s motion for
2 summary judgment, agreeing with the trial court that "there was no triable issue of material fact with
3 respect to (De Niro'sJ failure to disclose that he had undergone a prostate biopsy procedure." A true
4 and correct copy of the court of appeal's decision is attached hereto as Exhibit B and incorporated
5 herein by reference. Final Judgment was entered in the FFIC lawsuit on July 17,2009.
6 FIRST CAUSE OF ACTION
7 (Breach of Contract Against FFIC)
8
31.
Fox realleges and incorporates by reference each allegation contained in paragraphs I
9 through 30 above.
10
32.
Fox has performed all of its duties and complied with all terms and conditions in the
11 policy. Fox is entitled to the full benefits of
12
33.
the policy.
Fox's loss in connection with Hide and
FFIC has a duty to pay for the full amount of
De Niro.
13 Seek, including the amounts that Fox incurred pursuant to its indemnification of
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34.
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FFIC has breached its duties under its policy by, among other things
a.
Filing a lawsuit against De Niro seeking reimbursement of amounts it paid to
16 Fox for a claim covered by the policy;
17
b.
Denying coverage and refusing to pay for Fox's loss of approximately
18 $470,000, which Fox paid for De Niro's legal fees and costs;
19
c.
Artificially and narrowly interpreting the policy's provisions;
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d.
Failng to properly and timely communicate its coverage positions and
21 respond to Fox;
22
e.
Asserting grounds for denial of coverage that FFIC knows, or should know,
the policy, the law, and insurance
23 are not supported by, and in fact are contrary to, the terms of
24 industry custom, practice, and standards; and
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26
f.
35.
Acting as otherwise alleged above.
As a direct and proximate result ofFFIC's acts, Fox has been damaged in the amount
27 of approximately $470,000, plus interest.
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7
COMPLAINT
38600
1
SECOND CAUSE OF ACTION
2
(Tortious Breach of the Implied Covenant of
3
Good Faith and Fair Dealing Against FFIC)
4
36.
Fox realleges and incorporates by reference herein each allegation contained in
5 paragraphs 1 through 30 and 32 through 35 above.
37.
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Implied in the policy is a covenant that FFIC would act in good faith and deal fairly
7 with plaintiffs and that FFIC would do nothing to interfere with Fox's rights to receive the benefits
8 of
the FFIC policy. FFIC has breached its duties under its policy and the implied covenant of good
9 faith by, among other things:
a.
Giving greater consideration to its own interests than it gave to Fox's
12
b.
Unreasonably interpreting policy language in its favor;
13
c.
Failing to promptly, timely, and properly respond to Fox's communications or
10
11 interests;
14 explain its coverage position and the bases for that position;
Unreasonably failng and refusing to pay for Fox's loss of approximately
d.
15
the FFIC lawsuit;
16 $470,000, which Fox paid to for De Niro's defense of
17
Unreasonably, and without basis, fiing a lawsuit against De Niro seeking
e.
18 reimbursement of amounts it paid to Fox for a claim covered by the policy despite the fact that it
19 knew that it Fox was required to indemnify De Niro for any such lawsuit;
20
f.
Asserting grounds for denial of coverage that FFIC knows are not supported
21 by, and in fact are contrary to, the terms of
the policy, the law, and insurance industry custom and
22 practice;
23
g.
Pursuing its lawsuit against De Niro even though it knew that it would render
24 coverage ilusory for the loss that Fox suffered in connection with De Niro's ilness and would
25 deprive Fox of
the benefits of
26
h.
27
38.
In breach of
the insurance policy that it had purchased; and
Otherwise acting as alleged above.
the policy's implied covenant of good faith and fair dealing, FFIC did the
28 things and committed the acts alleged above for the purpose of consciously withholding from Fox
8
COMPLAINT
38600
1 the rights and benefits to which it was entitled under the policy and without considering Fox's
2 interests at least to the same extent as it did its own interests.
3
39.
FFIC's acts are inconsistent with Fox's reasonable expectations, are contrary to
the policy,
4 established claims practices and legal requirements, are contrary to the express terms of
5 and constitute bad faith.
6
40.
As a direct and proximate result ofFFIC's acts, Fox has suffered damages in the
7 amount of approximately $470,000, plus interest.
8
41.
Fox also is entitled to recover as damages all attorneys' fees that it reasonably has
9 incurred, and is incurring, in its efforts to obtain the policy benefits that FFIC wrongfully has
10 withheld, and is withholding, in bad faith, plus interest. Fox is entitled to recover these fees as
1 1 damages pursuant to Brandt v. Superior Court, 37 CaL. 3d 813 (1985). The amount of these
12 attorneys' fees and expenses currently is unkown, but is continuing. Fox wil seek leave to amend
13 this Complaint to allege the precise amount of these fees and costs is known.
14
42.
Fox's
FFIC's conduct is despicable and has been done with a conscious disregard of
15 rights, constituting oppression, fraud, and/or malice. FFIC engaged in a series of acts designed to
16 deny the benefits due under the policy.
17
43.
In light of information, facts, insurance industry custom and practice, and law to the
18 contrary, FFI C, by acting as alleged above, consciously disregarded Fox's rights and forced Fox to
19 incur substantial financial losses. FFIC ignored Fox's interests and concerns with the requisite intent
20 to injure within the meaning of California Civil Code section 3294. Therefore, Fox is entitled to
21 recover punitive damages from FFIC in an amount suffcient to punish and to make an example of
22 FFIC to deter similar conduct in the future.
23 THIRD CAUSE OF ACTION
24 (Fraud (Promise Made Without Intent to Perform) Against FFIC)
25
44.
Fox realleges and incorporates by reference the allegations contained in paragraphs 1
26 through 30,32 through 35, and 37 through 43.
27
45.
representations in order to sell
In selling its policy to Fox, FFIC made a number of
28 Fox the policy, including that the FFIC policy pays for Fox's losses sustained by a covered person
9
COMPLAINT
38600
1 due to injury or sickness to complete production of Hide and Seek.
2
46.
Fox is informed and believes, and based thereon alleges, that FFIC made these
3 representations knowing that they were false, that it had no intention of performing them, and that
4 Fox would rely upon them. Fox is informed and believes, and based thereon alleges, that FFIC
5 intended Fox to rely on its representations and expected that Fox would act in reliance on FFIC's
6 representations that its policy would pay for, among other things, losses suffered by Fox relating to
7 its "cast" claim resulting from injury or sickness of a covered person to complete production of Hide
8 and Seek. Fox also is informed and believes, and based thereon alleges, that FFIC also intended Fox
9 to rely on the representations, to purchase the FFIC policy, that FFIC would pay Fox's losses
10 without seeking reimbursement from third paries. Fox is informed and believes, and based thereon
1 I alleges, that FFIC knew that if it did not make the representations that it made in connection with the
its policy, Fox would purchase insurance coverage from another insurer, and made these
12 issuance of
13 representations with the intent to induce Fox to purchase the FFIC policy.
14
47.
At the time that FFIC made these representations, and at the time that Fox took the
15 actions alleged herein, Fox was ignorant of FFI C' s secret intention not to perform. Fox could not, in
reasonable diligence, have discovered FFIC's secret intention. Instead, in reliance on
16 the exercise of
17 FFIC's representations, Fox purchased the FFIC policy, Fox did not seek alternative coverage that
18 was available on the marketplace, and did not otherwise act to protect itself. Had Fox known of
19 FFIC's actual intention, Fox would not have taken such actions. Fox's reliance on FFIC's
20 misrepresentations was reasonable.
21
48.
FFIC failed to abide by its representations and instead has sought to avoid its duties to
22 Fox. Even though FFIC acknowledged that it was "obligated to pay the claim presented by the
the claim from a third
23 named insured, Fox Entertainment Group, Inc," it sought reimbursement of
24 pary.
25
49.
As a direct and proximate result ofFFIC's fraudulent conduct, Fox has been damaged
the premium for the FFIC policy for
26 in an amount of approximately $857,155, including the cost of
27 this fim, plus interest.
28
50.
The actions ofFFIC, as alleged herein, constitute an intentional misrepresentation,
10
COMPLAINT
38600
1 deceit, or concealment of a material fact known to FFI C with the intention on the part of FFI C of
money and the benefits due under the FFIC policy, or otherwise causing
2 thereby depriving Fox of
3 injury. FFIC's acts were undertaken with conscious disregard for Fox's known rights and with the
4 intent to cause harm to Fox so as to constitute fraud. Therefore, Fox is entitled to recover punitive
5 damages from FFIC in an amount suffcient to punish and to make an example of FFIC in or deter
6 similar conduct.
7 FOURTH CAUSE OF ACTION
8 (Fraud (Misrepresentation) Against FFIC)
9
51.
Fox realleges and incorporates by reference the allegations contained in paragraphs 1
10 through 30,32 through 35, and 37 through 43.
11
52.
FFIC falsely and fraudulently represented as alleged above, including its
12 representations that its policy pays for Fox's losses sustained by a covered person due to injury or
13 sickness to complete production of Hide and Seek, without seeking reimbursement from third parties
14 for those losses.
15
53.
FFIC's representations were, in fact, false. Fox is informed and believes, and based
its policy when it sold the policy to
16 thereon alleges, that FFIC did not intend to honor the terms of
17 Fox and that when it issued the Declaration and paid Fox for its loss, FFIC did not intend to pay
18 Fox's loss sustained because of
De Niro's ilness without seeking reimbursement De Niro for those
its policy and its intent and the
19 losses. FFIC misrepresented the true nature and characteristics of
20 nature of its payment.
21
54.
Fox is informed and believes, and based thereon alleges, that when FFIC made these
22 representations, it knew them to be false, and intended to defraud and deceive Fox with the intent to
23 induce Fox to act in the manner alleged herein.
24
55.
At the time FFIC made the misrepresentations, and at the time that Fox took the
25 actions alleged herein, Fox was ignorant of
the falsity ofFFIC's representations and believed them
26 to be true. In reliance on these representations, Fox was induced to, and did, purchase the FFIC
27 policy, pay the premium, and forego the opportunity to purchase other insurance coverage. Had Fox
28 known the actual facts, Fox would not have taken these actions. Fox's reliance on FFIC's
11
COMPLAINT
38600
justified because ofFFIC's superior knowledge and expertise in insurance.
1 representations was
2
56.
As a direct and proximate result ofFFIC's conduct, Fox has been damaged in an
the premium for the FFIC policy for this
3 amount of approximately $ 857,155, including the cost of
4 fim, plus interest.
5
57.
The actions of FFIC, as alleged herein, constitute an intentional misrepresentation,
6 deceit, or concealment of a material fact known to FFI C with the intention on the part of FFI C of
money and the benefits due under the FFIC policy, or otherwise causing
7 thereby depriving Fox of
8 injury. FFIC's acts were undertaken with conscious disregard for Fox's known rights and with the
9 intent to cause harm to Fox so as to constitute fraud. Therefore, Fox is entitled to recover punitive
10 damages from FFIC in an amount sufficient to punish and to make an example ofFFIC in or deter
11 similar conduct.
12 FIFTH CAUSE OF ACTION
13 (Declaratory Relief Against Does 1 through 10)
14
58.
Fox realleges and incorporates by reference herein each allegation contained in
15 paragraphs 1 through 30, 32 through 35,37 through 43,45 through 50, and 52 through 57 above.
16
59.
Fox is informed and believes, and on that basis alleges, that Does 1 through 10
17 dispute that Fox is entitled to receive coverage under the FFIC policy for the amounts it paid for De
18 Niro's defense of
justiciable controversy exists between
the FFIC lawsuit. Therefore, an actual and
19 Fox, on the one hand, and Does 1 through 10, on the other hand, concerning the matters alleged
20 herein.
21
60.
Fox therefore seeks ajudicial declaration as to its rights against Does 1 through 10 in
22 connection with the claim under Fox's insurance policy for the loss it has suffered, including the
23 amount it paid for De Niro's defense of
the FFIC lawsuit, confirming that Fox's contentions, as
24 stated above, are correct. A declaration is necessar at this time in order that the parties' dispute
25 may be resolved and that they may be aware of
their respective rights and duties.
26 ON THE FIRST CAUSE OF ACTION
27
1.
For damages, plus interest;
28
12
COMPLAINT
38600
ON THE SECOND CAUSE OF ACTION
1
2
2.
For damages, plus interest;
3
3.
For reasonable attorneys' fees and expenses incurred in obtaining the benefits due
4 under the policies, plus interest;
5
4.
ON THE THIRD AND FOURTH CAUSES OF ACTION
6
7
5.
For damages, plus interest;
8
6.
For punitive damages in an amount to be determined at the time of
trial;
ON THE FIFTH CAUSE OF ACTION
9
10
trial;
For punitive damages in an amount to be determined at the time of
7.
For a declaration in accord with Fox's contentions stated above,
ON ALL CAUSES OF ACTION
11
12
8.
For costs of suit incurred herein; and
13
9.
For such other, further, and/or different relief as may be just and proper.
14
15
DA TED: October W, 2009
\L£~
DICKSTEIN SHAPIRO LLP
16
17
By:
Kirk A. Pasich
18
Attorneys for Plaintiff
Fox Entertainment, Inc.
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13
COMPLAINT
38600
1 DEMAND FOR JURY TRIAL
2 Plaintiff hereby demands a trial by jury in this action.
3
4
5 DATED: October 3\J , 2009
DICKSTEIN SHAPIRO LLP
6
7
8
By:
)L~~-P~
Kirk A. Pasich
Attorneys for Plaintiff
Fox Entertainment, Inc.
9
10
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14
COMPLAINT
38600
EXHIBIT A
, '¥:~
.~;i
'1-~:
MOTION PICTLEVISION
PRODUCERS PORTFOLIO POLICY
For
FOX ENTRTAINNT GROUP, INC.
10301 PICO BLVD., ROOM 120
LOS ANGELES, CA 90064
ARGED BY:
MAH ENTERTAIMENT GROUP
777 S. FIGUEROA STRET
LOS ANGELES, CA 90017-5822
POLICY NUER:
POLICY PEROD:
MP 07104173
FEBRUARY 1,2002
To
FEBRUARY i, 2005
Broke: Ma Enteen Gr
Prir Poli New
Poll Numer: MP 0710 4173
777 S. Figer Str
Lo Anles, CA 90017-5822
MOTION PICTEVlION
Fima's Fud Inur~ Company
A Stoc Company
PRODUCERS PORTFLIO DECTIONS
Herem caned the Company
i. NAM INSUR and MAING ADDRES:
Fox Entent Grup, Inc.
10301 Pico Blvd., Room 120
Los Anles, CA 90064
2. POLICY PERIOD: Febru 1,2002 to Febru I, 2005
From 12:01 A.. Standd Time at the addres of the NAM INSURD as stated above
3. INSU PRODUCTON(S):
4.
COVERAGE:
Sectin
A.
B.
EaçhLo
Deductile
Each
$
*
S
*
*
$ 80,00,000
$ 80,000,00
S 80,000,00
$
PROPS, SETS & WARROBE
S 5,000,000
EXT EXENSE
S
$ 5,000,000
$
$ 5,000,00
$ 5,000,00
S
NEGATI FIM
FAULTY STOC
Loss
SUPLEMEAL
m.
A.
B.
C.
D.
.
Lft of Liabilty
Coyeau
CA.T
L
. n.
S.
Al cover projects (as meets al cn her)
TH PARTY PROPERTY DAMGE
MICEUS EQUINT
$
*
*
*
..
Per RATIG SCHUL, Parh VI.
PRE:
See Rati Schede
DEPOIT PREMI
See Rati Schee
Sia Asesment inluded in Desit Prum $ Not Aplicable
COUNRSIGNATU DATE:
COUNRSIGNATU OF AUIORID AGE:
DEClATINS
FOX.MPtr . 2102
Page I of4S
FOX ENTRTAI GROUP.
INC.
Policy Number: MPT 07104173
6. Iice is provided agat thse pe an for thos Coveges uner those Setions for whch a specifc
amount or Limt ofUabilty is shown on the previous page or in schedules incorpora hein subjec to al te
of
the policy an al form and endorsments mae a par herf
7. Wh a det pr ha be cb th actu pæ wi be dete acrdg to th te of th
deton of preum claes or th ra sches conted in th policy.
8. FORMS AN ENRSEMENT ATTACHD AT INCEON:
IL021 · I l/85R, IL270 · 3/00, FOX MPrr. 2/02
9. DATE ISSUD:
Febru 1, 2002 at Uii Ci1, CA.
DECLATINS
FOX.MPrr . 21
Pasc
2
of45
FOX ENTAINT GROUP, INC.
Policy Number: MPT 07104173
RATIG SCHEDUL
TH PRE RATE AR BASED ON THE FOLLOWIG TERMS AN CONDmONS.
I. EXSURS
The bae raes contelate Inurle Prodcton Costs or Gross Production Costs (se below for defitions) up to
one hun mion dolla ($100,000,000) as repets Fea an Ante Fea (se below for defitions)
or up to $2,000,000 per episode as reects Episodic Seres or $5,000,000 as respets Pilots an Special, Any
projects in excess of the abve staed amounts ar subject to separte negotition.
The base rates contemplate averge expsW'es in the USA, Can Wes Europe (defi as Autr De
Norwy, Finan Sweden, United Kigdøm,' Frace, Gey, Irla Spai and Switzrlan), Aus or New
Zed. Hazdous and other foreign exposus may be subject to differt tenu to be negotied at th tie of
delartion. You wil give us prior notice of any activities, conditions or ha,which may matealy incree
yoW' expos to loss, and we have th righ to aply te, conditions or chage. the preum to reflect the
incre expsur.
n. BASIC RATES
A.
1.
As repects Motion Pictu ìicludig Featu for Theaca Releae, Fea fo Television
Broadcast, and Min~Series (collecvely, ''Fea''), the ra per delartion is $1.00 pe $100
of Inurle Production Cost ("IPC") as defied in CONDmONS APPLICABLE TO AL
SECTIONS, Section IT SPECI CONDmONS, sub-parh A.
2. As respects Anated Feaes, the rate per delaron is $ .60 per $100 of Grss Producton
Cost ("GPC") as defied in CONDmONS APPLICABLE TO ALL SECTONS, Secon n.
SPECI CONDITIONS, su-piih A.2.
B. As respets Televiion Pilots, Episodic Seres and Special (collectively, "Television"), the ra is as
follows:
i. Episoc Series (ai one episode pe week an not inludg reiy-based shows)
2.
a. 30 Miutes
$ i ,000 flt premum pe episode
b. 60 Minute
$ 1,500 flat preum pe episode
Pilots and Speia
$1,500 fl preum per Pilot or Speial
3. Strp, Game, Tal Shows and Shows with tw or more episodes ai per week
4.
a. 30 Miute
$1,00 flat prenuum pe wek
b. 60 Minutes
$1,500 fl preum pe wek
Reaity Basd
Prmium to be separly negotiate
C. As reec Docuentaes, Indutral Film, Commerial, an Educationa Projects, Music Videos, CD
Rom projects (collectively, "DICE"), th tate is $TO BE DETERMED per $100 of
Costs ("GPC").
RATIG SCHEDUL
FOX-MPrr . 2/02
Page
3 of45
Gross Producton
FOX ENTAINT GROUP, INC.
PoUcy Number: MPT 07104173
D. Al oth prouctions not included above sha be separtely negoti (collectively, 'fal other').
m PREMIPAYMNT&AUDIT
A. Prem payment
1. Except for DICE produtions, prior to commcement of pricipal photogrhy for eah in
prodution, you wil fod
to us a completed aplication.
2. Fea an Ante Featu
a. Th depsit prenuum for al inured. prouction wiU be deteed using the ras
stated hein or otherse negotiate and applied to the IPC or OPC, as aplicale.
b. Premium for al in productions win be biled as they are declad to us.
c. Prmium for fi audt adjustments wil be biled upon completion of
the fi audits.
3. Televsion and al other prouctions
a. The preum are flt non-adjusle for each anua period
b. Th desit premium for television inured herde wil be biled as they ar
delar to us.
4. DICE
a. The deposit preum for eah an policy perod will be baed on the' rate state
above aplied to the anua estite OPC and biled in advace at the intion of
each anl peod.
b. Any premium adjustments wi be biled upn completion of the fi audit
c. Any special preum adjustments wi be biled as negotiate
B. Preum Audit
The preum wi be suject to a physica audit of the IPC or GPe, as applicable, in accordace with the
ra(s) and term shown her
We may, at our option, forego a physical audit and reuest only a "Volunta Audt".
.'V oluta Audit" me tht you will acurtely submit to us:
1.
with a reonable period of ti afer completion of principal photogrhy, an itemi
acounti in th fonn of a Production Cost Rep (as commnly used in the Enteent
Industr) of
2.
th tota IPC for eah production inur hereuder; or
with 30 days afr completion of eah anua policy perod, an ite accountig of
OPC for al prodctions inured hereuder for the preeding twlve month.
RATIG sqlEDUL
FQX-MPrr . 2102
Page
4 of
45
th tota
FOX ENTAI GROUP, INC.
Polley Numer: MPT 07104173
IV. COVERED ARTISTS
cover
A. We
up
to:
1. is declared arts (pons or iis) for Featues and Television, each proction;
2. 0 (zero) declar arts (perons) for Ante Featus.
B. Each additional art will be chage $.035 per $100 of.IC.
V. TERM
The basic rate contelate:
A. Featues
Pricipal Photogrhy;
1. 20 weeks of
2. 12 month from the end date ofPnnipaI Photogrhy for Section II. Coverge A. Negative Fil
Coverge an Section II. Covere B. Fauty Stock;
3. Addtiona Time:
a. The followig rate apply for 10 weeks beyond the 20 weks included in the baic rate,
fo a maimum of 30 weeks. Additiona weeks beyond :30 weks to be separtely
negotiate.
(i.) Cat
$ .02 per $100 oripc per
week
or
par thereof
(ü.) Suplementas
$ .015 pe $100 ofIPC pe
week or
par theref
b. Negvelaulty Stock
$ .025 per $100 ofIPC pe month or par thf for additiona month of exosu
beyo 12 mont beyond the Completion Date of
pricipal photogrhy.
B. Anted Featues
Notwthtadig the Term of Coverage provide with each Coverage Section, th Coverge term is 24
month for al Coverges from the Sta Date delar to us unti the Completion Date delar to us, not
to exce 24 month.
C. Televsion
As declar per seaon begìg with eah anua policy peod.
RATING SCHEDULE
FOX.MPrr . 212
PageS Qf4S
FOX ENTTAINT GROUP, INC.
Polley Number: MP 07104173
D. DICE
AJ state in Item 2. of th Motion Pictueleviion Proer Portolio Declartion or eah an
policy peod.
E. Al Oter Prodctions
Al other productions not included above sha be separly negotiate.
VI. DEDUCTlLES
Th DEDUCTLES foun within any coverage par oftls policy supered the Deductibles state below.
FEATU
DEDUCTmLES
TELEVIION
DEDUCTlLES
PROJE DEDUCTLES
Up to $30,000,000 IP
$100,000
$ Not Aplicable
$250,000
Not Applicale
Ovr $30,000,000 IPC
$500,00
Not Aplicale
$100,000
$100,000
Not Applicable
$ 25,000
Per Enrsemt
$ SO 000
$ 50,000
$ 25000
$ 15,00
Per Endorsement
COVERAGE
i. Cast
Castlxtened PreProtion
n.A. Neimve
n.B. Fauty Sto
.A. Props. Set & Wardrbe
.B. Ex Exene
.C Thd Par Propert Damge
.D. MiceU8us Ecornent
Offce Contets
Vehicle Physical Dage
(Per Vehicle)
Money & CuCy
D.I.C.E. AN AL OTHER
Per Endors
$ 50000
$ 25,000
Per Endorsen
$ 50,000
$ 10,000
$ 50,00
$ 2500
$
$
5.000
5,000
$
$
5000
Per Endorsment
Per Endoement
Per Endorsemnt
5,000
Per Endorsent
$
5,000
$
5,000
Per Endorsement
vn BONUS
A. At the en of eah anua anverai policy penod, we wi pay you a bonus if the premium and loss
experence uner ths policy prouce an underwtig profit for us as detein by th loss ratio.
B. The loss ratio wil be cacula as follows:
The sum of al
losses and allocate cla expns pad by us wi be divide by th Net Eared Pre
(defied as gross Eared Preum less commsions) for each anua anverar policy penod as beow.
The loss rao wi be rounded to the neat whole numr.
C. A bonu wi be payale only if
the loss ratio is below 40%.
For eah two peent below 40%, you wi be entitled to recup i % of th Net Ear Prem not to
exce 10% of
RATIG SCHEDU
FOX.MPfI . 2/02
the NetEaed Pr
Page
6
of4S
FOX ENTTAI GROUP, INC.
Policy Numer: MP 07104113
D. Bon canellaton proviions:
1. E pror to the expirtion date, we canl or non-renew th policy, the bonus calcution wil be
mae for the declartion mae betee th intion date of th policy unti the canellation
date or non-r
2. If prior to the expiron date, you cancel or non-renew th policy, there wi be no bonu
payale.
E. Bonus payment provisions:
reoncilation. .
1. The bonus caculation wi be mae af settement of all cla.
2. Payment of any bonus to you wi be mae no late th nity (90) days followi the fi
vm. ANARY REW
The Policy Period. staed OD the Declartions Page is comprised of the anual anversar policy periods as
follovi:
Febru 1, 2002 to Febru I, 2003
Febru 1, 2003 to Febru I, 2004
Febmax 1, 2004 to Febru t, 200S
Notwdig th Policy Perod st on the Declartions Page, th policy is subject to an review of al
term and conditions. We ree the right at anverar to amend policy term an coditions.
IX. Al other term and conditions other th those state in the Declartions Page or 'Wth ths Rati Schedule ar
to be separly negotited and endorsed heren.
RATIG SCHEDULE
fOX.MPtr . 212
Page
7 of45
FOX ENRTAINT GROUP,INC.
Poli Numer: MP 07104173
CONDmONS APPLICABLE TO AL SECTONS
I. GEN CONDmONS
Thughout th policy, "you" an "your" refe to 1h Named In shown in the Delaons. The words "we", "us"
and "our" refer to the Company providig th ince.
A. TERRORY
Th policy aplies anyw in th world
B. MIPRESENTATION AN FRUD
Th policy is void if you knowily. coceed or .mirerete any ma fit or cir
conc th i:, or in th caof my frd or fàe sweg by you,wb befor or af a los.
If you ma any fà or frudent cla as to amount or oth, di policy is void as to 11t spifc
clai and we have the right to termte th policy at tht ti an any subsent cla by yo ar
forfei
C. ASSIGN
Th policy may not be assign or 1rrr withou our wrtt cons
D. ACTON AGAIST US
No action agat us may be brght uness you have oomplied with al of th proviions of th policy and
th acon is sta with one (1) ye af th occ causin the loss or dage.
Noth in th policy give an peon or orgation any right to join us as a coefenda in any action
agat you to dete your liabilty. .
E. ACCES TO RECORDS AN EXATION UNER OAm
. We or ou nomi, at al ties dmg th policy per or wbe a cla is pe, at su rele
ti and pla as may be deigned by us or our rereentives, wil. have acs to aU of your acunts,
bok of acounts, contrts, invoice and re, or certed copies of suh if th origi ar lost, rela
to al in aption and pro.
¥ou wi submit as oft as may be rely re an SO få as with yo power, cae aU oth
pe and their emloYe inte in such operations and pr to su to exaon un oa
by a peon naed by us relave to any and al matt in conntion with a clai at suh reonale ties
an pla as may be design by us or ou reretaves. You agr to do ever with ren to
comply with the foreoing.
No suh examon under oat or extion of boks or doents, nor any other act by us or any of our
emloye or rereentatives in connection wi th invesgation: of any loss or clai heer, wil be
de a waver of an defe whch we might othse have with ret to any loss or cla but aU
such extions an acts wi be deeed to have be mae or done without preudce to our liabilty.
CONDITNS
FOX-MPIT . 2/02
Pag 8 of45
FOX ENRTAINT GROUP,INC.
Policy Number:' MP 07104113
F. OTHR. INSu:CE
If at the ti of loss or dage any oth vad in is avaable wbch would aply to th loss or
da in th.
absece oftb policy, the inurce provided by th policy wil aply
as pri to any
oth
policy held by you but eltce with repet to an other policy or coverge held or provide by any oth
par, uness agr othere by you.
G. SUBR.OGATION
In th event of loss whch we believe may be collectiòle frm oth, we may pay in th fo of a loa to be
reaid out of any reveries frm oth. You will execute al paper reui and cooper in ever way
possible to assist in such reve frm oth and we wi at ou exp, ta over yoW' rights agat .
oth to th exte of our paym,
H. LOSS PROCEUR
In case of a loss to whch th ince may
apply, you wi se tht th followig duties ar perfor:
i. Protetion of Proper - Protet the prpe from fuer loss an ta al st possible to
mi th loss. If exes ar inur in doing so, they wi be boe by you an us
proportona to our reecve intets, constet with your us of du dience.
2. Notice of Lo . Reprt imedly to our authri rereenve or us any los or da,
whch may beme a cla unde th policy.
3 Prof of Loss - Fil with us, or our authori rerelave, a deed prof of loss sign an
swrn to by you sett fort to the bet of your knowledge an belief the futs of th loss an th
amount therf with one hudr eighty (i 80) days af discveiy of th loss.
I. CANCETION OR NON-RENEWAL
1. Either pa may canl the policy by givig th other par ni (90) days prior wrtt notice
except in the evt of non-paymt of prum
2. Ifwe ca we wi se wrtten notice by regite ma to:
Fox Enteent Grup, In.
10301 Pico Blvd, Room 120
Lo Angeles, CA 900
We wil se a coy to:
Ma Entet Grup
777 S. Figuer Strt
Lo Anle, CA 90017.5822
The cacellaon wil be effective as of the da shown on th Cancelltion Notice bu not les th
nity' (90) days af ma to the abve addr. Th mag of notice is suffcient prf of
notice of callon. Delive of notice wi be eqvaent to n:g.
3.
If we cal for nonpymen of preum cacellon wi be effec te (10) days frm the da
of the wrtt notice. Canellaton wi only apply to th spifc decIaon(s) for whch preum
wa not paid and wi not aft coverage for any
CONDITNS
FOX-MPfl . 212
Page90f4S
other declaron(s).
FOX ENTRTAI GROUP, INC.
Pollcy Number: MP 07104173
4. Cove for any pron decla prior to the efftie da of cancellon or non-re wi
conti purt to Parh IV. TERM OF COVERAGE uner al Cover SeconS. suject
to al other ter and condition of
th policy.
5. Should th policy be canelled prior to the expiron of an an te th ea preum wi
be deter as out in the Rati Schedle.
6. Preum adjuslmen wi be made as soon as praticale af caellon, but if preum refu
ar not ten at the tie note of calltion is give th vadity of such notice is not afec
J. ABANONMNT
The ca be no abandonment of an pro to us withut ou wrtt consent,
K. STOP DATE LOSS
If as a ret of delay in comple th origi shooti schee of an in proucti you inur a loss
in ord to honr th teon date contaed in a pedormce cotrt betw you an any other pen
or orgaon, suh loss (hiI refer to as stop date toss) woul oot be cove by di proviio
of th policy, but th policy wi nonetheles, pacipat in a sto da los to th exten th th nee to
incu such loss is ditl relate to a loss in under the te of th policy. The exte of our
pacipon in a sto da loss wi be govered by th prop codeon of th followi fa:
1. If
the ne to incu the sto da los is solely and ditl th reult of an in loss, th stp da
loss wi be reverle in fu.
2. If th nee to inur th sto date loss ar in pa by ren of an in loss an also ar in
par by reon of an un oce so th it ca rely be said tht eah contiibut to
th inciden of th sto da loss, th th exte tht eah so contbute wi be de and
an aprtonm of th sto date loss wi be ma.
3. If
th nee to incu th sto da loss is in no way coecte with an in loss, no pa of
dae loss wil be reverle. .
th sto
4. Covege afor by th parh is suject to th provio th the pedomi contr te
wa suciently longer th ;your ori scheed ti for coleton of the in pron
so as to allow a reonle ni of sa to cover possible delay in completi th inur
producton.
L. APPRAAL
If yo and we fil to ag. on the amoun of los, either on ca ded tht the amount of loss be se by
aprasa. Eah pa wi select a cot, inden ap and notifY the oth of the aps
idtity with Mety (20) days of rept of th wrtt de. Th tw appra wi th select a
comp ii umir. If th tw aper ar unle to ag upn an um with fi (IS)
days, you or we ca as a juge of a oour of rerd in th st of yo reide to select an um. Th
apraer will then submit a wrtt reort of an agren to us an th amount ag upn wi be th
amount of the loss. If theapra fi to agr with a renale ti, th wi su thir di to
th umir. Writt agment sign by any tw of the th wi set th amount of the los. Th pa
selecg th apra wi pay eah aper. Ot exes of the aper and the cotion of
the umir wi be pad eay by you and us.
CONDmONS
FOX.MPrr . 2/02
Page 1Oof45
.. FOX ENTTAI GROUP, INC.
Polley Number: MP 07104173
M. POLLCY CHAGES
No cha may be ma in tW policy excet by us in .wrti.
N. CONFORM
TO
STATE
LAW
When any policy provin is in confct with th aplicable law ofdi State in whch th policy is is th
Jaw of
the State wil aply.
O. DUE DILGENCE CLAUSE
You sha us due digene and do and concu in doing al thgs reonaly prcticale to avoid or dih
any loss or any cirta lily to give ri to a loss or'Cai in unde tb pollcy. Th poli wi
innifY you for yOW ased net loss of adtion incur expes and/or incr cots nesay
incu by yo to avoid or dih any suh loss or cla subject to any deuctble proviion st in the
Declations page; provided howe, th in no ciI wi our maimum liabilty un th poli
be grte th th su in as dela or th whch wod have bee in ha you not in
said ined cots anor adtiona out-of-poke expens, or in an eve exce th lits of
liil of
th policy.
P. INADVERTENT ERROR CLUSE
J
You wi not be prece by an untetiona or invert omision er or inrrt decrition of the
pr in he, provide notice be given to us an corrtions be ma as soon as prtile
af dicover of an such err or omision by you.
Q. INSPECON
Afer pnor noticaon to your Ri Maement Depàrt, we 'W be pett bu not obliga to
int your prpe and opons at any tie. Neitr our right to ma Ù1petion nor th in
theæf nor any rert thern constitute an under on beha of or for th befit of you or other an
sa 'W not comm or obligate us in any maer whoev.
R. INSURCE NOT TO BENEFI OTHERS
in.
No peon or orgtion havi custoy of th prope and to be paid for serce wi beefit ft th
S. WSS PAYMNT
Lo, if an, wi be payle to yo or your loss paye.
We agr th any holde of a Cecate of In issu by US or on OW beha wi be conside a
Loss Paye, subjec to your lega1iilty.
Unles a clai ba be pa by other, al adjus clai wi be pad or mae go to yo with th
(30) days af prentation an ac~ of sasfàtoiyprof of int and loss to our offce, or af we
reh agrt with you or af entr of a fi judgment, or af th fi of an apra awa with us.
No los wi be pad or be ma goo if you hae collecte th sa frm oth.
CONDmONS
fOX.MPff . 212
Page 11 of45
FOX ENTRTAIEN GROUP, INC.
Policy Number: MPT 07104173
, ,
T. PREMIES PROTETION
It is a condtion of th inurce th you wil mata suh proteve saegu as we re by
you to be in effect at the ti of the athmnt of th ii. Faiur to mata or en suh
protetie safeg wi void th co~erae to th ext of any Joss reti frm or contribut to by th
lack of such protetive saegds.
U. PROPERTY OF OTHERS
of the cover prope.
We may adjust any clai ditl with th owner
v. LmERlZTION CLUSE
policy without adtion preum
If we adt any reviion th would broad th coverae unde this
with ni (90) days pnor to or dug.the policypenod th br
coverge wi imly
apply
to th policy.
W. MOBIL EQUI
Mea any of the followi tyes of lad vehicles, includ an athed mahi or eqment:
i. budozers, fà mahiery, fork and oth vehicles deigned for use pricipaly off public
road;
2. vehicles tht trvel on crawler trs;
3. vecles, wheter self-prpelled or not, mataed priy to provide mobilty to peeny
mounte equiment, or mataed priy for pu oth th th trporton Of-persOIl or
cao.
X. EXCHGE RATE
In the evt tht an excha rate is not decla at th tie of declation, th rate of exchae applied to al
losses wi be the ra as shown in the Wal Str Jou as of
the da oflos.
We reerve th nght, for cla th we'sette ditl'with th pares to th policy, to adjus the cla at
the prg exchage mte or the exchage ra us to actuy pue the foreign fi.
n. SPECIA CONDITIONS
A. DEFION OF INSULE PRODUCTON COST
1h te "Inle Pruction Cost" (l as us in th Policy mea al oo, inclug ove
chale ditl to an in prctn or sees ofprtioll includ any
amunt of oth overhe
as may be decla by you at th tie of delaon of an in prducton or sees of prction, ext
th th followi costs ar not includ:
stry; sceno; muic nghts; sound nghts; royaties; reidua; contiuity prum pad for th
ine; int on loan; an persona an re pr taes.
Howeve, you may, if you so elect at th ti of declaon, spifcaly delar and therby inlud any of
these costs win solely an dirtly as a ret of an in loss, and in th event the cost of the ite wi
be included in the IPC.
CONDmONS
FOX.MPtl . 2102
Page 12 of45
FOX ENRTAINT GROUP, INC.
Policy Number: MP 07104173
In the evet of a loss paid un th policy the amunt of th loss wod be included in th deton of
the lPC. Ths do not aply wh prum is bas on an episo ohage.
B. . DEFION OF GROSS PRODUcrON COSTS
"Grss Proction Costs" ("GPC'') sha me
1. as rets Ante Fea, GPC mea al cots inlude in IPC unti th inur prtin is
complete or th declaon exir, whchever ocur fit;
2. as repects Broadcast Comm Producon (as endorsed, GPC mea al cost incu by you
relate to a protion.
dur the Policy Perod excet those adtive cots not ditly
C. DETRMATION OF PREMI
1. The premi wi be deteed in acord with the ra schede(s) athe to an ma a
par of th policy.
2. You wi advi us as son as pracale of the exct da of terition of pricip photogrhy
of ~ in preton with seven days of th teon da.
. 3. The actu preumeaed by th policy wi be calcute by apply the ra se fort in th
ratig schee to th fiIPC.
4. . You may, at you sole dicron supend or abandon an in prction at any tie up
wrtt notice to us.
a) In th even suson of pral photogrhy is spifed th the ince aford
by th policy wi re in eft and piiip photogrhy of th in pron
wi be de to be coui for th puiose of dete th amunt of preum
du. Prcial photogrhy wi onl be de complet ü yo have notied us with
seven (7) days of the da th prcipal photogrhy wa dicontued
b) Persion is grte to you to abon th prtin dur the suion peod We
ag to ine.th policylits on the .aplicale covere by the amt actu
in for al own otliceed righ,. titles
an in.i al dots, 'unlyi
work, copyrghts and al rela mari of th inur prtion A3 coideon for
the incred limts, a pr chae may be assesse at our dicron bas on th ra
chaged for th ori policy ag di vaue of th rights obtaed
c) Covere wi cee 30 days frm the abandonmt da dela to us or th expiron
dae of
s.
th policy, whchev is fit
Úl the eve tht prcipa photogrhy ha not be complete by the estite completion da
stte . on th Delations pag for eah inur production, the inur afor un th
Policy wil autcay be exteded unti completion of pricipal photohy, or un th
delation exir, whohever oc fi suject to th paym of preum as se fort in the
RATIG SCHDUL atthed to and ma a pa of th Policy. Eah delaon exir
eighte (18) month af th sta da delar to WI Uless othse negoti or ealier as
defi in eah Covere par.
CONDITNS
FOX.MPrr . 2/02
Page 13 of4S
FOX ENRTAI GROUP, INC.
Polley Numer: MPT 07104173
C. ABANNMNT
1. Should a covered loss ret in an abannment, dug th te of cover, un an Section of
th policy, we have th right to re tht you suder al own or lice rights, titles an
in in al doents, unyi work, coyrgh and al rela mateal of th in
protion, except as rela to any seq~ prel an atdat merhadiin ri. Your
agrent to surnder thes righ cat be uionaly witheld.
2. We agr to incre the policy lits on the applicale cover by th amount actuy incu
for al own or licens rights, titles an intets in al'dots, undelyig work, coyrgh
an al rela mate of th in prouction. As considetion for the incre lits, a
preum chage ma be asse at ou dison ba on th ra chaed for th origi policy
aga th vaue
of the righ obtaed.
D. DUT TO DEC
Pror to the COl1em of fi or tain of fetu an televion you sha decla to us eah
prtion with a sta da with th anverai policy perod includg any incre in th num of
episod of a series of televion protions over and abve the nuber orgiy decla th you
une and for whch yo have ince reponsibilty durg the te of th policy. Fea and
televion protion no dela to us ar not covere.
E. HITUS COVEGE
1. With ret to episic televiion, covee is contious betw season for co
televion seres in herde, he rerr to as Hia Covemge, subject to al oth
te an coditions of th policy.
2. Hiat Covera me the perod of tie from th end of coverge for an epc televiion
sen unti th ret of covege for th subseqt sen.
3. The lits of liilty, decu'bles and te th we in effect for the prg seaon wi aply
dug the hi peod.
4. Hiatu Covege wi abate upon commencemt of preprucon for the subequent sean.
5. Hia Coveeap1i solely
to Secûon m. Covee A.
D. Millaneous Eqmet.
Pros, Set and Warobe an Covere
m. EXCLUSIONS
Th policy do not in agt los or dae ca ditly or in by:
A. seiz or decton un qutie or Cutoms Reguatons, confcation by ord of any govet or
public: authrity, or riks of contran or ilega trrttion oftrc;
B. hostie or wae action in ti of pe or wa, inludg action in hide combatig or defedig
agt an actu, imdig or expecte atk by:
1.
any govei or soveign powe (de jur or de fato), or by an authnty ing or using
miita, nava or ai forc;
2.
milita, nava or ai forc;
CONDmONS
FOX.MPrr . 2/02
Page 14 of45
FOX ENTTAINT GROUP, INC.
PoUey Number: MP 07104173
3. an agent of any suh goverent, powe, authority or forc.
. C. an wean of wa emloyi atmic fission or raoative forc wher in tie ofpe or wa
D.. intion, rebellon, reolution, civi wa, us powe, or action ta by goverta aurity in
hi, comba or defendig aga suh an occej
E. nuclea retion or nulea raon or raoactive contation, al whedi controlled or uncontlled and
wher such loss be dit or int, proxite or rete, or be in whle or in par caued by, cotrut
to, or agvate by the peri or pe inur in th policy howeve, subject to th foroin an al
proviions of th policy, di loss by fi retig fr nulea reon or nuclea raon or raoacti
contmination is cover
F. dinet acts by yo or your emloye or agents,. wh or not oc du the hour of emloymt;
G. any un evt oc before, concutly with or af th hag of an in evt, whch
diy or intly caus or in any way contrbu to ca Of inre a loss uner tb policy bu only
with reect to th porton of any suh loss ca by
CONomONS
FOX.MPnv . 2/02 Pagc i S of 45
or contiibute to by the uned event.
FOX ENTRTAI GROUP, INC.
Pollcy Number: MP 07104173
SECON L CAST
L INSURG AGREMENT
We agee to pay to you suh loss (as defi in Parh VI. DEPION OF LOSS), on an one prcton as
you ditly and solely su by reon of any cove peon, meg any peron or an deignted for
inurce whom you dee necsa to complet th prodution, in connon with an in proon, bein
the te of th in aforde by th
Secon frm comiìn or contiuig or coleti th reece dUties or perone(s) in an in
ney prvente by their dea iJ or sicmess, oc du
protin.
.Covegeis exnde to inlude
loss (as defi in Parh VI. DEFION OF LOSS), dily re frm
the unvaabilty of a cover peon due to:
A. . the dea'.of an immedat fay me (as defi) du th te of thcovege, her caed
"Inedia Famy Cove",
"Iiedia faly meber" is defied as one who is uner seventy (70) ye of ag an is a cove
pen's mother, mother-in-law, 1à, Jinher-in-law, steth, stefàer, siste, iisiste, brth,
stebrotler, spoue, chi stehidr grchidr grarts or domtic parer (deti as a
persn unlat by bloo to the cove per wh is the cove peon's sole pa in a commtt
exclue domesc parerhi in whch eah paer is reible for eah oth's ficial an emtiona
wellbein).
:po th kidnpin of a cover pen. Kidning mea the involimta ta an holdig of a cove
peon.
C. a covere peon's pregncy, notwthdig Pargriih vn. Excluion, subopagrh C., tht wa
unown to either the cover pern or you at any tie prior to the loss, heein rerr to as
"Unkown Prgncy" Coverage.
R LIMS OF LIAILIT
A. Ou lit of liabilty with repect to anyone 10s8, anyone procton, (as defied in Pargrh VI.,
DEFION OF . LOSS) wi not exce the lit of liilty sta on the Delaon pag for Ca
Covege.
B. The ma payale under the Imede Famy Mem Covee wil not exce one miio dollar
($1,00,00), anyone pruction.
C. The niun payale unde th Unkwn Prgny Covere wi no exce one mion doll
($ I ,000,00), anyone proction
m DEDUCTILE
Th su sta on the Declations Page as the dedctible for Cast Coverae will be dedcte fr eah adjute
clai heder.
SEmON I - CAT
FOX.MPfl . 212
Page 16 of4S
FOX ENRTAINT GROUP, INC.
Policy Number: MPT 07104173
IV. TERM OF COVERAGE
A. Coverage commences on the effectve date as shown on th Declarations Page of
the inur producton, and
contiues for the period of pricipal photogrhy or videotaing which is defied as the contiuing period of
time' from the st date to the completion date you actually require to photograph or tape an insW'ed
the declartion for the declared prodcton, whichever occur fi.
prodction, or the expirtion date of
B. Penission is gred to you to declar a stag date of pricipal photogrphy at any tie witin the tenn of
the policy, provided we are given notice.
C. Notwding A. or B. above and subjec to Pargrph V. below, coverae is provided under th Secon
for the penod commencig one hundred twenty (120) days imediatly preedin the commencement of
the
this Section is defined as the "Pre-Prodction" period of
prcipal photography which for the purose of
Cast Coverage. However, the Pre.Production period for guest arist (as defied) appea in or contrted
to appea in episodic television will be twenty-one (2 I) days or less prior to the ac tihning or taing of
such guest arst's fi episode of
work of
the covered producton.
D. Extnded Pre-Production
1. At no chage to you, a maxum of fou (4) weeks of Ca Coverae is provided prior to the Pr
Producton period of Cast Covera, subject to yoW' notice to us and our approval, hereinaf
referrd to as Extnded Pre.Production Coverge.
Our maximum Limit of Liabilty for Extended Pre-Producton Coverage is one millon dollars
($1,000,000)
per covered person.
2. Additional limit in exces of one milion dollar ($1,00,000) up to five millon dollars
($5,000,000), or additional time beyond the four (4) weeks included in Pargraph IV., D.l
above, are available at the following rates per $100 applied against the limt of liabilty
requested for each covered person:
(Rates apply per month or part thereof)
2
Months
3
4
6
9
12
Month
Month
Months
Months
Months
Months
54 & under
.16
.20
.24
.28
.35
046
.51
55.70
.19
.25
.32
.38
.SI
.71
.901
Age of Arist
I
Over 70 - to be negotiate.
V. MEDICAL EXAMINATION
A. The covered person(s), listed on the declarg endorsment issued in connection with an inur producton,
mus be examined not more than ninety (90) days pnor to the sta dae of pricipal photogrhy by a duly
qualified physician (veteriarian wit respect to animals), designed or approved by us, who shall submit to
us a MEDICAL CERTIICATE AN AFIDAVIT signed by the examine (not applicale to animals).
SECTON i - CAST
FOX.MPrr . 2102 Page 17 of 45
FOX ENTERTAINT GROUP, INC.
Polky Number: MPT 07104173
B. Cover sh commence on the da the meca exaon ba be ma an is suject to our rept
and aprova of a MEICAL CETICATE AN AFAVI with a reonale peod of ti
(defied as the gr offort-eght (48) ho or tw (2) busin days). It is under di our right of
aprova
th pen(s) ex. Should we
sha be ba on th medca exaon an cae hiiy of
fo any reon ma any reeition excetion or retrcton wi re to th inurilty of th cove
Parh 1. ar inlicale to th extt th th coons) reer to in th
reeron, excetion or retrtion ditl or iny rets in a loss.
peion(s), th proviiotl of
C. We ag th you have th righ to us an regite meca doto (other th the coverepen's
peona physician) if th docto lite on the panl of doctors provide by us ar unvale
completion of a medca extion. .
to you for
D. Gut Arts
re a STATB OF HETI & AFIDAVI for
gu arts. Gu art, as us in tb Section mea any hu'peorer or dir cote
1. AJ repets episc teleVion, we
for no mo th th (3) episod of a sees of
prons.
2. You mut notify us whe a guest art is contrte for more th th (3) episods of a seres
of proctions, in whch case th covered person mut be examed wi five (5) caend days
subject to th te an condition of sub-pargrhs (A), (B.) and (C.) under ths Pargrh.
3. Covege sha commence on th da th cove peon ba si the STATEME OF
HETH & AFAVI, whch is subject to ou ret
an apva with a renale period
ti (defi as the grte offort-eigb (48) hour or tw f2l busines days). It is uner
th our right of aprova sha be based on th STATE OF HEALTH & AFAVI and
. ca hitory of th pen(s) exa. Should we for any reon ma an reon, exceon
or retrction with ret to the inilty of the cove peon(s), the prviions of Parh L
. of
ar inlicable to the exte th the condtion(s) referr to in the reervtion, excetion, or
restrction diy or indiy relts in a loss.
4. Faiure to comply with your duties specified under Pargrh V. shall relieve us frm all
obligaons unde ths Covee.
E. Ou faure to red to ou reipt ora MEDICAL CETICATE AN AFAVI or STATE
OF REAL TI & AFAVI with '8 reonle perod of ti (as defied) wi reult in ñi covege.
F. Pilots
We do not re MEDICAL CETICATES AN AFAVIS for cover peron in connection wi
pilots th ar picke up for sees with niet (90) da fr th sta of priipa photogrhy of th pilot
if we have prviouly acte a cove peon's MEICAL CETICATE AN AFAVI fo th
pilot withut retrction, suject to:
i. no prior Cat cla on the cove peon dug the pilot or any oth prouction sin the pilot
an
2. rept an apprva by us (sujec to Parh D. above) of a STATEME OF REALTI &
AFA Vl whch ba be complete and sign by th cove peon.
Coverge for th sees sh commce on the date the cover peon ha signed the STATEMENT OF
HEALTH & AFAVI, which is subject to our rect an aprova with a reonale peod of tie
SEClON 1- CAST
FOX.MPfI . 212
Page 18 of45
FOX ENTAINT GROUP, INC.
Polley Number: MP 07104173
(defi as th grter offurt--igh (48) hour or tw (2) buin days). It is undetoo th our right of
apva sh be baed on the STATE OF HEALTH & AFAVI an ca hiry of th
peron(s) exed. Should we fo any reon mae any reon, excetion or retrctn with re to
th inilty of the cover person(s), the prvions of
Parh L ar inlicale to the extet th th
condon(s) refer to in th reeron, exceon, or restrction.dy or indiy rets in a loss.
Ca Coverge for any cove per wi not exted beyond the lesse of the epis seaon dela to us
th cove peron for th pilot
or twlve (12) month from th extion date of
G. Iner, Pick-ups or Rets
i. With ret to iner, pick-up or rets or an other rela prction budge imde
$1,000,00 of IP, we ag to use exiti MEICAL CERTICATES & AFAVI for
rehoots on th sa prucon whch ocur with niety (90) da followi colen of th
origi perod of
prci photogrhy.
Any spia tem apli on cove pens du prcipa photogrhy wi aply fur inrt,
pick-u an rehots.
2. With re to iner, pick-u or reots or any ot rela prcti budte un
$1,000,00 of IPC th oc af niety (90) days af coleton of th ongU peod of
pricipal photogrhy, we reir th a cove peon sut fo our aprova a Staen of
Heath & Afdavit
Reitateent of Cove sh comice on th date th cover peon ba signed th
STATEME OF HEALTH & AFAVI, whch is suject to our re and aprova with
a æaonle peod of ti (detied as the gr of fort--ight (48) hour or two(2J buiness
days). It is imderto th our right of apva shal be bas on the STATEM OF
HEALTH & AFIDAVI and ca hiry of
the pen(s) exa ShQuld we for any re
ii any reeron, excetion or retrction with re to th inilty of the cover
pen(s), th proviion of
Pargrh I. ar bilicale to th exte th th cotion(s) refe
to in the.reertion, excetion, or retrtion diy or intl relts in a loss.
VL DEFlON OF LOS
A. Lo, as us in th Section, me.any extr exenditu (as defi in Inle Proti Cost) you
inur in completi prcial photogrhy of an in .protion ov an above th exditu whh,
bu for the ha of anyone or more of th occces spì.ed in Parh I. would have be
in in coleti said pricipal photogry.
B. In the event tht the ha of one or more of th ocur sped in Panh I. renaly,
prati~y an necary prvets th coleton of pripal photogrhy of an ìi prn
irtive of any completon or deti\liy.da re, you wi ha th right to abando pricip
photogrhy and cla un th Secon fur such actu exptu you incur in an inur proction as
have be rede entily vaeles solely an diy by reon of the ha of one or more of the
oc spifed in Pargrh I., suject to th SPECI CONDmONS of
th policy.
vn. EXCLUSIONS
Ths covee do not in agat loss caed by or reti frm:
A. Any pen(s) acted for ince imde th Section tag par in flyi other di as a paener
SECTN 1- CAST
FOX.MPrr . 2/02 Pag J 9 of 45
FOX ENTTAI GROUP, INC.
Policy Numr: MP 07104113
B. Any peon(s) tag par in an haus sts) without our approva
C. Th inilty of any fee to cotiue he peonnce bee of prey or condtions pe
ther;
D. Any peron(s) wh is seventy-thee (13) ye or older or under age five (5) ye of ag uness such
pen(s) is specifcaly mued by endorst hern;
E. Any person(s) under seven (7) ye of age for loss (as defi in Pargrh VL) eith ditly or indìy
contrbut to or ca by th followi contion or seqellae:
i . tonsil, scalet fever
2. mums, chicke pox, meales, rubell whoopin cough or dither unes th cover peon,
prior to the de itur or sickn, wa vainte fo the condtion retig in th clai.
F. With ret to an:
1. any acvity oth th those peorm in conntion with film or taing of an ìi
prodution;
2. an stt or lius activity wiout our apva;
3. any cosmetic alteon tht ha not be approve by
a qufied ve;
4. wilf micoct or mie;
5. quartie or ínona slaghte, either volunta or act of or at the dition of any local
authrity uness as a ret of a pel not othse exclued.
vi SPECI LOSS PROCEDUR
With reect to an, a vetenn ceficate must substatiate loss caused by illness, injur or death.
A. You wi not us imedatly af 'you ar ma awa of th fat of any cove peon bein unle to
commence, cont or complet his;or her -reective' dues or peonnce u a ret of whch a clai
could are.
B. You wi pro an imedately forwd to us as soon as praticale the cefica of a duly qued
physcian whh dels fuy th cirta in whh th inity ares, and en and pre ou
contiui right of ac to any cover peon's meca rerd.
c. You wil use your be efrt to en and prese our contig right to have our own appointe medca
docto exame an cover pen.
D. Your 1àur to coly with any of th condtions set fort he wi prudice us an your fa to coly
wil relea us frm an spifed clai in conntion with whch you have so faed to comply with any of
sad condtions.
SECTN i - CAST
FOX-MP/l
. 212 Page 20 of 4S
FOX ENTRTAI GROUP, INC.
Poli Number: MP 07104173
SECTION n. COVERAGE A. NEGATI Fl
L INSUG AGREMNT
We ag to pay to you such los (defi in Parh VI.) as you ditl and solely suta as a ret of loss ot:
da to or destron of videotae stok, raw fi stock, rerde videota, expsed motion pictu ti
(develop or unevèlop), inteositives, positives, worl prits, cu copies, fie gr prits, soud tr,
ta, tiparencies, eels, ar work (us to cr anon im), soft and rela mate used to ge
compute imes, us in conntion therth ca by an in pe (de in Parh V.) when suh
prper is your pro or the proper of oth for whch you ar legay liable, wl such prope is us or to
be used in connecon with an in protion.
ß. LIMS OF LIAILIT
not excee the amoun stte on th Delations page
Ou lit of liilty with ret to anyone ocuice wi
for Negave Fil Coverge.
m. DEDUCTILE
The su sta on th Declaron pag as th dedtible for Nege Fil Cove wi be decte frm eah
adjus cla heder. ..
IV. TE OF COVERAGE
Th ÎDW' aforde under ths Coverage commenc one hu twty (120) days prior to th sta of
prip
photogrhy st in Ite 4. of the Declaon Enrsemt and cotiues for up to twelve (12) month af th en
of pricipa photogrhy, or unti th date on whch a protetion pr or dulicate ta of an inUT protin ha
bee complete an phyicay reove frm the pre wher th origi negatie or ta is loc or unti
coverge on an in prodution is tete by you or until the Delaon Endrsent exp, whcheve fit
occW'.
V. PERIS INSURD
Th Cove inur agt al riks of dit physica
cau, except as her exclued.
los or dage to th pro cove fr any ex
VL PROPERTY EXCLUDED
'T Coverge doe not in cut-outs, un footage or libra stock
VB. DEFION OF ross
A. Loss, excep for los to vita stok, raw film stok or bla mea, me only such extr expetu
you in to rehotogrh, reta, rete or rerogr in sutial th sam ma only tht poron
of an inW' protion whch is the subject of a loss claed unde th te of th Covege, ove an
abve the expentu, whch, but for th hape of an on or mo of th ooui speifed in
Par I., would have bee incUl in completg th porton of sad pruction. Howe, loss arin
fr delay in completion of any in protion(s) is not revele un th te of
th Covege
excet such loss arin frm delay th is both unvoidale and whch occ dmig th peod of tie
ne to rephotogrh, retae, rerete or rerogr in substtiy th sae ma tht porton of
the fi or ta or soft whch is the sujec of a loss cla uner th te of ths Coverge. Extr
SECN JI- NEA'IE FI
fOX.MPrr . 2/\12
Pagc2lof45
FOX ENTRTAINT GROUP, INC.
Policy Number: MP 07104i73
expetw refer to the cost defi in n. SPECI CONDmONS, A., Defition of Inle
Protion Cost. .
B. Los8 to videta stock: raw fi stoc or bla meda aplies only to the actu cost to rela th lost or
daged videta stock, raw fi stok or blan mea with stk of
lie ki and quty.
C. In th ev th the hanig of one or more of the occll sped in Parh i. reonaly,
prticaly an neesar prets th completon of an in protion irective of any comleton
or delivedate reui, yo have the right to abandon prucon an cla under th Covege for
have be rede entily vaueles solely
such actu exentu you in in an in prodtion as
an ditl by ren of th hag of one or mo of the occe spifed in Pargr 1., subject
to th SPECIA CONDmONS of
ths policy.
vm EXCLUSIONS
Th Coer do not in agait loss ca by or retig frm:
A. the us of faty maeral, fàlty eqent, faty edti, faty deelopin or faty proin whch
would normy be cover uner Section II. Covere B. Faul Stock of
th policy
B. ex to light, deteoraon, atiospheric dapnes or cha in te;
C. faty inulon or judgement of th caer operr or assistats or eir(s) of judgemnt in exsu,
lighti or sod reg;
D. th use of incorrt raw fi sto or videota or mesoft;
E. er in mahi prgrg or intrctons to the mahie;
F. unexla or myterious diapeace, or short found up ta of inventory
G. consequen
loss, if any, du to loss of or dam to videtae stk, raw fi stk, or blan meda
IX WAR
You wi th arrl drwigs, soft an relate ma (her reer to 88 "so ma") us to
gente co im an anon cels~wi be retaed unti your .legal liilty
prt ha be complet
or expirtion of
is exhte or a protetion
th coverage, whchever comes fit.
If th so ni have be photogrhe or us as in in the protion pro, then dage to the
sae sou ma wi not be consídere a loss herer, except to the extet tht th proer cove in
Parh i. is daed and you have colied wi the abve.
Faiur to fu th waty releaes us frm al obligaons un the policy to 1h extet tht a lOBS is suer or
in by th fa.
X. DEFIONS
A. COMPUTR PROGRAS me da us to dir the computer equípmen includi diagn or oth
re whch can be used to reuce progr.
SEC0N n.A.- NEGTI Fn.
FOX.MPrr . 2/02
Page
22
of4S
INC.
FOX ENTRTAINT GROUP,
Policy Number: MPT 07104173
B. DATA mea fà, concts or inctons whch ar conve to a for usle in your data prin
opons, inlug comput progr.
C, MEIA me ni on whch Dat ar recrd or store.
D. SOFTAR me any combinon of
DATA, MEDIA or COMPUTR PROGRA.
SOCON n.A.- NEGATI FI
FOX.MPfT . 2102
Page
23 of
45
FOX ENTRTAINT GROUP, INC.
Policy Number: MPT 07104173
SECON n. COVEGE B. FAULTY STO
L INSURG AGREEME
A. We ag to ma go to you such loss (defied in Pargrh VI.) as you ditly
and solely suta as a
reult of loss of, dage to or detnon of videta stok, raw fi stok, rerde videta, expse
motion pict fi (develope or undevloped), intesities, poities, work pr, cu copies fie
. gr prits,
sound trks, ta, trarcies, eels, ar work (used to cr ann imges), soft
and relate mari used to gene compute imges, used in conntion thth caed by fa
mari, fàty eqment, faty ed, fa developing or faty prosin 'when such pro is your
proer or the prop of oth for whch you ar legay lible, whle suh prope is used or to be us in
connecon with an in prdution.
B. We ag to inlud clai arin out of opr elTr, meag fiu1ty maulon or faulty operon of
ca ligh, soun elecca, edti or an oth eqpment, or tehncian '8 eir(s) of jugment
n. LIMIT OF LIAILIT
A. Ou lit of liilty with ret to anyone loss, anyone producton win not exCe th amunt stte on .
th Declations page for Fauty Stok Coverge.
B. Ou lit of liilty with re to clai arin out of oper err wil not exce $500,00 ea
ocnc.
m. DEDucrmLE
adjuste cla herde. .
Th su staed on the Declations page as th dectible for Fauty Stock Cover wil be dect frm eah
lV. TERM OF COVEGE
pricipal
the Declaon Endorsem an contiue for up to twelve (12) month af th en
Th ine aforded uner th Covere commence one hu tw (120) da)' prior to the st of
photogrhy sta in Ite 4. of
ofprip photogrhy (subjec to the Addtion Time chaes if applicale), or unti th da on whch a proon
pr or dulicate ta of an in prouction ha be,colet an physicy reoved fr th pre wh
on an inur proction is te by yo or unti th
the orgi negae or ta is locate or unti. coverge
Delaon Endort exir, whcheve fit OCU1:
V. PROPERTY EXCLUDED
Th Coverge does not in out-outs, un footage or libr stok.
VI. DEFION OF LOSS
A. Loss, as us in th Covera, mea only such extt extu you incu to rephotogrh, reta,
re or rerogr in sustatìy the same maer only tht porton of an ii proction, whch is
th sujec of a loss cla unde the te of th Cover, over and abve the extu, whch, but for
the ii of an one or more of th ocurce spifed in Parh I., woul have be inur in .
completi th porton of sad production. Howeve, loss arin frm delay in competion of any in
prodtion(s) is not revele un the term ofth Coverge excet suh loss arin frm delay th is
both unvoidale an whch ocur durg the peod of ti nesai to rephotogrh, retae, re or
SEcnON n.B.. - FAULTY STK
FOX.MPrr . 2102
Pa
24 0(45
FOX ENTTAINT GROUP, INC.
Polley Number: MPT 07104173
rerogr in sustati th sae ma tht poon of the fi or ta or soft whch is th suect of
a kiss cla un th te of lh Cover. Ext exptu refe to th costs defied in n. SPECI
CONDmONS, A., Defition of
Inle Proon Cost
B. In th even 1ht th ha of one or more of th ocurce spifed in Pargrh I. rely,
praticaly an necesly preven th comletion of an inur prtion irtie of any comletn
or deliei date reuients, yo wi have the rit to abanon prodction an ela 'unde th Covere
for such actu exndtu you incur in an in production as have bee reder enly vaueless
solely an ditly by reon of th hapeg oron or more of the oc spifed in Piuh I.,
subject to the Special Condtion of th policy.
vn EXCLUSIONS
by or reulti frm th use of fi videta, cara, lenes or
Th Covere do not ine agat loss caused
photogrhic ta or sound eqment th ha not be fu
tete
by you or on your beha and foun to be in
soun opg condition pror to the coenceen of th fig or tain of an in production or seres of
protions.
vm WAR
You wat th arrk drwigs, soft an relat mari (her refe to as "sour ma") used to
geer cout im an antion eels Wi be retaed unti your lega liabilty is exhte or II prteon
pri ha be comlete or exirtion of
th covere, whchever comes fit.
If the SO marials have been photogrhed or us as inded in the produon pro, then dae to th
sa source inal wi notbe conside a loss he, except to the ex tht th proper cover is da
and you have complied with the abve.
Failur to full th waty releas us frm all obligaons under th policy to the extent that a loss is suer or
inreed by tht faur.
IX DEFIONS
A. COMPUT PROGRAS mea da us to dirt the 'comput eqpment, includig diag or oth
rerd whh ca be us to reduce prgi.
B. DATA mea fats, concets or intìons th ar conveed to a fonn Usle in your da proin
opons, ìnludl comuter progi.
C. MElA mean maeral on whch Data ar rerded or store.
D. SOFTAR me any cobintion of
DATA, MEDIA or COMPUTER PROGRAS.
SEmON fi,B.. - FAULTY STOK
FQX.MPIl . 212
Pag2S of4S
FOX ENRTAINT GROUP, INC.
Polley Number: MP 07104173
SECl0N m. COVERAGE A. PROPS, SET & WARROBE
I. INSURG AGRME
We agee to pay to you or on your beha th vae of scenei, cotu and theatica pr and rela eqmet,
inludi loss of
us, owned by you or whch is th prope of other used by you an for whch you ar leg liable
and whch is lost, daged or desoyed caued by 1he Perils 1n agat, whe such prer is us by you in
. conntion with an in producton.
n. LIMS oir LID.ll
Ou lit of liilty wi1h reect to anyone loss wi not excee the limt of liabilty sta on the Declarons page
for Prps, Sets & Warbe Covere; howeve, with reec to antiques, objects of ariù, wahe, pe, preious
and semreious stones, gold, silve, pla and oth prious me or aloys, inlud jewlr conta an
such ite, we wi not be liable for more th two hu fift thousand doUar ($250,000) with ret to anyone
loss.
m. DEDUCTILE
The su state on the Declations page as the dedtible for Prps, Sets & Wardrbe Cover wi be deuc
frm eah adjuste clai heder.
IV. TERM OF COVEGE
The ince afrde un th Cover comn one hudred twenty (120) days pnor to th sta of pricial
th Delaon Endorsemt an contiue for up to twlve (12) month'af the en
of priipal photogrhy, or un th date on whch a pron pnn or duplicate ta ot an ìn proction. ba
phogrhy stà in Ite 4. of
. be complete and physicaly reove frm th pre where the origi negave or ta is loc or un
coverage on an ined producton is te by you or unti the Delaron Endorsmen expir, whcheve fit
oc.
V. PERIS INSURD
Th Cove in agait al risks of dit physica loss or dage to 1he prope cove fr an exte
cause, excet as herin excluded
VL PER NOT JNSU
Ths Coverge do not in agt loss or dae caued by or reulti frm:
A. we an te any quty in the prope th caes it to damge or destry itslf hiddn or lat detè
gr deteoraon deaton; inects; ver or ro; coirsion ru das, cold or hea
B. any wo pros, expon, te, re, retion coveion or par converson,
reuchi, patig, cle or any
oth form of
process peonn or unde by you or on yo be
or at yo dition, uness acickta fi Or explosion enues and th omy for the loss or dae ca by
such en fi or explosion;
C. unplaed or mysterious diea, or shortge foi.d upn ta of inventory;
D. ra sleet, snow or ba, whether dren by wid or not to propert stre in 1he op;
SEClON ULA. - PROPS, SET &. WARDROBE
FOX.MPrr . U02
Page
26 of
45
FOX ENTRTAINT GROUP, INC.
Policy Number: MP 01104173
E. any electrcal injur or ditu to electrca apliance, dece fitu or wig caed by elec
cuts arciy gener with th pro or :Ities you use in cotion with produon. unes
fi en an then our liilty wi be li to th porton of the loss caed by such en fi;
F. dae to or detion of prope caed intetiona by you or at your dion;
G. loss, destrtion or dae caed by or reg frm delay, loss of maet, interrtion of buin or
loss or dage;
oth cotia110ss extedin beond di physica
H. mechaca bredown or deent uness caused by a pe not otheise exclud
VB PROPERTY EXCLUDED
Th Covege doe not inur:
¡mlicy .
A. perna pr whch would nonny be cove uner Covere D. MilleoUs Equen of th
B. an, UIes endorsed he
c. grwi plats, uness used as par ofa theatrca set
D. acunts; bil; CUey, nuismatc prop or money; note: seurties; sts; de; evde of
det; lett of cret; crt ca: paspo; raad aili or oter tikets;
E. buidigs includg, but not lited to imroveents and bettrm;
F. fìtu and fitu whch ar not used or inteded to be used as pa of a theaca set;
G. ai used for any pur .other th as pa of a theatrca set in wlh it is used strctly as a nonfictiona cra ie. movig uner its own power, at any tie du fig or taing,
H. wa va ove fi thousand doUar ($50,000) whe warne unes moore to a pier, dok,
wh or sim fied stn an us or ined to be us as par of a theatrca set;
I. motorcles, motor vehcles, or othr'conya excet wh used as par of a thcal se an not being
self-proeled dug fig or taing;
J. film ta, rerdi or reordig stora medum of any tye uness used as a prp on a thca se
vm. VALUATION
The basis of det the vae of the proert in herde, excet with ret to vehicles, wi be as
follows:
A. You prope wi be vaue at th fu cost of reai or relace wiout dection for dereiaton or
bett, if reai or relac with du digenc and diatch, and in no event, uness re or
relaent is complete with one ye frm th da of loss. If not reai or rela th prope wi
loss.
be vaue at it ac cash vae at the tie and th plac of
B. Prpe of others for whch you ar legly liable, eith by contrct or mut agment, wi be vaued at
common maet vae, in acrd wi contr conditions or as you are obliga to pay by common law.
SECTN lRA. - PRQPS, SET & WARDROBE
FOX.MP/l . 2/02 .
Page
27 of45
FOX ENTERTAI GROUP,JNC.
Polley Number: MP 07104173
th da an locon ofloss.
C. Vehicles wi be vaue at iitu cah vaue as of
lX. AN COVERAGE
A. We ag to pay to you or on your beha th vaue of an for whch you ar legay liable, includ an
loss of use to thd pares, in the ev of the deth or suh an us in conntion with an in
prction.
B. Ou lit of liailty will not exce fi thus doll ($50,00) pe an and, tw hundr fi
thusand doll ($250,000) pe ocuie.
C. The dedetòle amunt of te thousd doll ($ 10,00) wi11be dedcte from eah adjute cla
herde.
D. Th Coverge do not in agatlos caed by or reti frm:
i. any iitity other th those peomied in conntion with fi or tain of an inur
protion;
2. an stut or haou acty withut our apva
3. an cosmetic alten th ha not bee apved by a docr ofvet medcin;
4. wi miconduct or mie;
5. cocaton or natioiion fu any reon whoever;
6. quti or intentiona slau, either volun or by ac of or at
auonty uness as a relt of a pe not othere exclude.
th dition of an loc
E. Speial Loss Prced:
A veer cecate mut substtiat the de of any an(s).
Al coverage above combined will not exce an agggat lit of$2S0,OOO each occurnce.
SECON mA.-PROPS, SET
FOX.MPrr . 2/02
&
WARDROBE
Page
28of4S
FOX ENERTAI GROUPJ INC.
Polley Numer: MP 07104173
SECTION Il COVEGE B. EXT EXPENSE
I. INSUG AGREMENT
We agr to pay to you suh loss (defied in Parh vn.), not inlu loss of eas or profit, as you su by
reon of suh ext expen as you necy inur in the event of th inteon, postoneent or cacenaton of
an inur prodution as a diect reult of dage to or detntion of propert or failties caused by th pe in
agat, used by yo in conntion with an in production and ocg dug th te of coverge (as defied in
Pargraph IV.).
U. LIMIT OF LIAILIT
Parhs V. Pers In su
A. Ou lit of liabilty with respet to anyone OC\las rets
pargrhs A., B. an C. wi not exce th lit
of
liilty st oD'thDelartions page for Ex
Expe Coverage.
B. Ou lit of liilty with ret to anyone OCCen as rets Parhs V. Per In subpargr D., E. and F. wi not exce the sub-li sta therin
m DEDUCTLE
Th sum state on the Declaron pag as the dectible for Exir Exp Covera wi be dedte frm eah
aduste clai heer.
IV. TERM OF COVEGE
The in aforded uner th Coverge commce one hundr twty (120) days pr to the sta of
priip
the Delaon Endorsemnt an cont for up to twve (I2) month af th end
photogrhy state in Ite 4. of
of pripal photogrhy, or un the da on whch a prtetion pr or duplicate ta of an in proon ha
be complete and phyicay teve fr the prees wh the origi negati or ta is loc or unl
covee on an in productin is te by you or until the Declaon Endorst exir, whche fit
ocur.
V. PERI JNSURD
Th Covee in agat:
A. al riks of dit physical los or dage to the prope covered from any exte cae, exce as
herin exclud.
B. veable breow or maction of geeror, caer, compute us to genere imges or col
ca an other equipmt, lighti, sound, electrca grp or any other eqmet, excet vehicles or
mobile eqmet, used in connecon with an in pructon
prgr). .
'We wi not, howeer, pay for delays resutig frm erors ui mahie progrg or intrtions to th
mahie th reult in a brwn or inil to int or åcce da (da me fits, concets or
intntions whch ar convrt to a ronn usable in your da proing opon, inlu comput
C. intetion of
powe (electrca ste ga) or any other power source re to conti or complete an
in production;
SECON m.B. - EX EXPENSE
FOX.MPfl . 2/02
Pae
29 of45
FOX ENTAI GROUP. JNC.
Polley Numer: MPT 07104173
D. str by any par, unon, guld or labor grup for whch you ar not a signry or dirtly involved in
negotiations, subject to a sub-lint of one millon dollar ($ 1.000,00) eah occurce;
E. intetion, postpnem or cacellaton of an inur production as a dir reult of th action of a
Civi Autrity acing with the Unite State of America (includg its tetori and possion),
Puer Rico, Canda Austria, and New Ze tht revokes your permion to use or prohibit. acs
to prpert or failties with your car, cuto or control used or to be used in conntion with an
ind production and ocurg dur the tenn of coverage. subject to a sub-lit each occnce of
proction.
one milion dollar ($1,000,00) per
However, we will not pay for any loss incu due to:
1. your falure or inilty to obta a permt;
2. . your failur to prrly comply with or the violaton of, any reuient or any proceur
or authoron;
necessar for the issuce and 'contice of any pet.
applications or reui docents;
3. your faur to properly proess or complete any
4. the refual or revocation of an permt or authoron due to a violation of any exiti civl or
ci codes;
5. wether or weathr relate conditions, regas üyour permt is revoked before, dug or af
the wether relate conditions;
6. trvel or trporttion delays resulting frm the action of a Civi Authority;
F. "iient per", defied as ce inedat and impendig dager of such probabty and severty to
persons or proert tht it woud be unonale or unconscionale to ignre, subject to a sublit eah
OCCUlence of one milion dollar ($1,000,000) per production:
1. Any expes inOUled to avoid a loss resulti from iit pe ar covere to the extet
th they sere to avoid a loss othse cover imde th extension of coverge.
2. Except as provided above, th extension does not negte
the aplicabilty of
the baic te and
conditions of.
a. the Extr Expen Coverge in the event th an imint peri relts in dage to or
detrcton of propert or facilties payale uner th pollcy; or \
b. th Cas Coverage in the event tht an imen per reults úi death injur or sickness
of a covere peron,
in which case a septe cla will result frm the consequential
loss as deribed abve.
VI. PERß NOT INSUD
Ths Coverge do not in agat loss or dage caused by or resutig fr
A. we and te any quty in the prope th Caes it to da or detroy itself hidd or latet defect;
gr deteoron; deian; inli brdown in; vemu or rots; corrsion, rut,
daness, cold or heat;
SECTON m.B. - EX EXENSE
FOX-MP/l.2I2
Page
30 of4S
FOX ENTRTAI GROUP, INC.
Polley Numr: MP 07104173
B. any wolk pro, exrientaon, tets, re, retoration, conveion, or paral converion,
retohi, pai clea or an oth fQ1 of pro peoned or uneren by you or on yo beha
or at your dition, unes acideta fi or explosion enes and th only for th loss or dae caed by
such eng fi or exlosion;
C. unxpla or mysriou disap, or sho foun upn ta of invenry
D. ra slee snw or ha Wheter drven by wid or not, to proert store in the open
Eo an electrca inju or dituce to electral applice, devi, fitu or wi cau by electrca
curts ariay geera, with th pr or mcilties you us in conntion with a Prctn, unes
fi enes and then our liilty wil be lìte to th porton of
F. dae to or desction of
property
caed
the loss caed by such ensuig fi
intetionaly by you or on yo beha or at your dition;
G. los, detntion or dage ca by or reulg frm delay, loss of iitor use, inteption of
business
or oth consuenti loss extedi beyond dit physical loss or da;
H. mechaca bredovv or deremt unes caused by a peri not othe exclu (excet as provide
in Parh V. .B., PER INSURD);
L loss of us of an includi but not lite to inui, sickness or deth of ans uness endorsed
her
J. loss of or dae to exposed fi (develope or unevelope), tae or rerd or reordi storage
medum of any ty;
K. any dit or indit pro dage los includig expitu in in the pure, cotron,
any physica prpe inlug an.
reai or relacet of
vn DEFION OF WSS
Loss, as used in tl Covere, me any extr extu incu by yo in coleti prcipal photogrhy of
an in proon, over and abve the expetue, whch, but for th hapeg of anyone or more of th
ocuincsped in Pargrh I., would have ben in in completig sad pripal photogry. or suh
actu expenditu in by yo in an inur proction as wi be
rede entily
abrt and vale solely
an diy by ten of
th ha of an oçcur or occeassped in
Rargrh I. Ext expendtu
refer to the sam costs defied in II. SPECI CONDmONS, A, Defition of Inle Proction Cost.
SECTN m.B.- £X1 EXPENSE
FOX.MP/T . 2/02
Page 31 of4S
FOX ENTTAI GROUP, INC.
Policy Number: MP 07104173
SECON m. COVEGE C. TH PARTY PROPERTY DAMGE
L INSURG AGREEME
on your beha al sum whch you becme lega obliga to pay as dage beause of iiui to
We ag to pay
or dection of proper of oth, includig loss of use theref, occ du the term of cove (defi in
Parh IV.) whe su proprt is in your ca, cusy or control and is used or to be used in conntin with an
in proucon.
U. LIMS OF LIAILIT
Ou lit of
liabilty with ret to anyone loss wi
not excee th. limt of liilty
for Thd Par Pr Dame Covere.
sta on the Declarons page
m. DEDUCTILE
The su stte on th Delaons pa as the dect"ble for Thd Par Prer Dame Covee wi be
dete frm eah ocurence cla hereude an include any judgmt, seement, cost, fee or ex in
conection wi eah oc claied hereuner.
IV. TERM OF COVERAGE
Th in aford uner th Covera coence one hun twty (120) days prior to th st of
photogrhy state in Ite 4.
of
prcial
the Delaon Enent and contiue for up to twlve (12) montb af the en
of pricipal photogrhy, or unti the date on whch a proteon pr or dulica ta of an in proon ha
be complet and physicaly reve fr the prees wh the origi negave or ta is loat or un
covege on an ined proon is te by you or unti the Declaon Endrsement exir whchev fit
oc.
V. EXCLUSIONS
Ths Covere do not aply to liilty for:
A. injwy to or destron of prope caed inonay by you or at your dition;
B. physica da to motor vehicles, trers; aicr or wara excet for Jo of use of suh prope not
èxclud under Setion n. Coveige A. Pros, Sets & Warbe or Section II. Covee D. Millus
Eqpmet;
C. injui to or detition of peon pro, used or to be used du or in conntion with an in
protion, whch pr is rete ro of lea by you except for loss ofus of suh pr;
D. da to or destrtion of prpe reultig frm your få to prvide renale an proer ca of
proer you us;
E. injur to or detrction of prees (includi budi) rente to or lea by yo tht ar used for any
. purose other th filmg or tain in conntion wi an inur prtion.
SECN m.e. - TH
FOX-MPrr . 2/02
PARTY PROPERTY DAMGE
Pae32of4S
FOX ENRTAINT GROUP, INC.
PoUeyNumber: MPT07104173
VI DEFION OF INSURD
Th word "In" mea:
emloye (or olh pern un ti Nam Ins
The Named In as state on th Declaon page and any
dit cotrl), parer, offce, or dìtor thf (refer to as "you" or "yoW'''), bu only with reect to any act or
faUr to ac on the par of such pares whe actig with th scope of thir duties as such.
VB. DEFENSE, SUPPLENTARY PAYM
With ret to such in as is aforded by th Coverae, we will:
A. defen any sut ag you allegg
eve if any of th alegations of
suh dae(s) whch are payale un th temi of tl Covege,
ti sut ar gress,fie or ftulent;
B. pay in adtion to the aplicale lit oflíilty
1. al exes incu by us, al co taed ag you in any suh su an al in on th enti
amt of any ìu8ten ther whch acrues af en of th judgmen an before we havé pai or
tedere or depsite in cour th pa of th judgmt whch do not exce th lit of oW' liilty
thern;
2. pre on ap bond re in suh su prum on bonds to relea atbmts for th
amount not in exces of th aplicale lit of liabilty of ths Covee, bu without any obligaon to
apply for or fuh any such bonds; .
3. al reonale expns, óther th loss of eags, you inur at our reest
SECON m.C. - TH PARlY PROPERlY DAMQE
FOX.MPIT . 2102
Pag
33 of45
FOX ENTAI GROUP, INC.
PollcyNumber: MPT07104173
SECON m. COVERAGE D. MICELLANOUS EQUIME
I. INSURG AGREME
We agee to pay to you or on your beha the vae of
pers prope, inludi but not lite to ca, caera
eqpm sound an lightig eqt, portle electrca eqmen mehaCl effts eqpm gr
eqpmen mobile eqment, offce contents (includg offce eqment, fugs, fitu, leaehold
..imrovets and betten) inludin loss of us, own by you or whch is th prope of other for wb you
ar legly lile and whch is lost dage or detryed durg the te of cove, ca by the Per In
ag whe su pr is us or to be us by you in coection wi an inur protin.
ß. LIM OF LIAn.rr
Ou lit of liilty with ret to anyone OCwi not exce the amout sla on th Del.ons page fu
Micellus Eqme Covege.
m. DEDUCTILE
Th su state on th Declaoll pagè as the deductible for Miscellaneous Equiment Coverge wil be dete
from eah adjuste cla her.
IV. TE OF COVERAGE
Th ince aford uner th Covere COttll one hun twty (120) da pnor to th sta ofpnn
photohy sta in Ite 4. oftle Delaron Endort an conties for up to twlve (12) month af th en
of pricial photogrhy, or un the da on whch a protetion pri or duplicat tae of an in produon ba
be completed an physicay reved ft th pres wher th ongì negative or ta is loc or unti
covege on an ined prodution is te by you or un th Declaon Endrst exes, whchever fi
oc.
V. PERI INSURD
Th Cove in agt al ri of dit physica loss or dae to th prert cover frm any exte
ca, excet as heit excluded.
VI PERI NOT INSUD
Th Covere does not in agt loss or dage caed by or reultig frm:
A. we an te; an quty in th pr th caes it to dage or dey itself hidden or lat defec
grua deteroration; dereiation inects; vem or roen; coirsion, lU da, cold or hea
B. an work, pro, expetaon, tets, re retoraon, coversion or paal converion,
reouchig, patig, c1eg or any oth fo of prs perorm or uneren by you or on your bef
or at your dition, unes acidenta fi or exlosion enes and then onl for the loss or dae ca by
such en fi or explosion;
C. unxplaied or myou dice, or short fod upn ta of inventory
D. ra sleet, snow or bat, whether drven by wi or not, to pr sto in the op
NUCLE
FOX.MPrr . 212 Page 34 of 45
FOX ENTERTAINT GROUP, INC.
E. any
Potley Number: MP 07104113
elecca inur or dian to electrcal aplies, device, fitu or wi caed by electrca
cu. arcia ge with the prpe or 1àties you us in connection with protion, unes
. fi en an th OU liabil wi be li to tht porton of the loss caed by suh en fi;
F. dae to or detiction of pro caused intetionay by you or at your dition
G. loss, detion or dae caued by or retig frm delay, loss of mat, inrrtion of busines or
other conseque Loss extendig beyond dit physica loss or dae;
H. mechaca breaown or degeent uness caed by a peri not otherwe exclud.
vn. PROPERTY EXCLUDED
Th Cove does not inur:
A. pena prper whch wod noy be
of1b policy;
cover un Section n. Covee A Pros, Sets & Warbe
B. an;
C. grwig plants;
D. acun; bil; cucy, numsmac prpees or money (except as provided by Pargrh IX. MONE
AN CUCY below); notes; seurties; sta; de; evidence of debt; letrs of credt; crt cads;
pasprt; ralrad ailie or other tickets, unes endorsed heren;
E. buidings;
F. aì
G. watera value in excess of $5Q,OOO;
H. dage to vehcles whe involved in raing, chae scees, preiSion drvig or stuts;
1 vehicles you own whch ar not used or to be us as protion vehicles for inur productions;
J. fi or ta, or rerdg or rerdg storage medum of any tye.
vm VALUATION
The basis of detg the vaue of the proert in herer, except with ret to vehicles, win be as
follows:
A. Your prope wi be vaued at the fu cost of reai or relacment, withut dedction for deiaon or
bett if re or relaced with du diigence and ditch, and in no evt, uness reai or
re1aent is complete with one ye fr th da of loss. If not reai or relac the prope wil
be vaued at its actu cah vaue at th tie an the pla of loss.
B. Prpe of other for whch yo ar legay lile, either by contrct or mu agt, wi be va at
commn maket vae, in aoord with contrtu conditions or as you ar obliga to pay by common Jaw.
c. Vehcles wil be vaued at ac cash vae as of the da and locon ofloss.
NUCLER
FOX.MPm . 21 Page 35 of 45
FOX ENTRTAINT GROUP, INC.
Policy Number: MP 07104173.
IX MONEY & CURNCY
A. Covere is extended for loss or destrtion ofmon and cury arsing out of:
1. fie;
2. burglar (defied as a loss which results frm forcible enti to or exit frni premses. saes or locked
propert);
3. ared robbe (defied as the forcble tag of money at gupoint or by sim that);
4. No coverge attches herunder in any circutaes other th as noted above.
B. Coverge is provided at th foIlowig loctions whe:
1. in locke safes an vats secur on your prees. and/or locations us as tepora prouction
offces anor in hotel saf;
2. in th cuody of your approved agents in the coure of an whe peronng their duties as agents;
3. on your busines prees durg the norm hou of business.
C. You wat tht your agnts wil ma evei effort to sec money an curncy overnght in safes
wheneve avalale at loctions other th your buiness premies. Failue to fufill ths waty wil
relieve us from all obligations under ths covege to the extent tht a loss is sufere or increed by tht
fa~.
D. No loss atthes hereuder for loss of money and curncy aring out of mysterous or unexplaied
diapearce, or for shortge diclosed upn tag of invenory.
E. ll extension of covemge is suject to a Limt of Liabilty of $50,00 excet for losses occurg in th
United States of Amerca the Unite Kidom, Canda, Gemy, Frace, Austria or New Zealand in .
whch cae the li ofliabiüty is $100,000. .
FOX-Mrr . 212 Pa 36 of 45
NUCLEAR
FOX ENRT.A GROUP, INC.
Polk Number: MPT 07104173
NUCLEA ENGY LIIL EXCLUSION ENDORSME (BROAD FORM
. Th enrsemt moes ince provide unde th Geer Liailty and Autoobile Covees.
i. The iDce doe not apply:
A. Unde any Liailty Covere, to bodDy injur or property damage:
1. With re to whch an insured unde the policy is alo an inur unde a nuclea engy liilty
policy ised by Nuclea Enegy Liail In ABtion Mut Atoc Ene Liabilty
Undete or Nuclea Inurce Assoiaon of Cada or would be an in un any suh
policy bu for its tetion upon extion of its li of
liabilty
or
2. Resti fr the hazous propees ofnuclear'materi and'wi respt to whch (a) any
person or orgon is re.to mata fiia'protetion '.purt to th Atomic Energ
Act of 1954, or any law amtory lh or (b) the inured is, or ha lh policy not be isue
wod be, entitled to indemty fr th Unite State of Ama, or any agey therf, unde an
agent ente ino by th Unite State of Amerca or an agen therf, with any peon or
orgation.
B. Und any Medica Pay covera, to exes inou wi ret to bodil Inur reti fr th
hazardous properti of nuclear materi and aring out of th opeon of a nuclear facilty by any
pen or oion.
C. Und any Liabty Covege, to bod. injur or prope dame retig frm the hazrdous
properes of
nuclr materiL, if.
1. The nuclear material (a) is at an nuclear facilty own by, or op by
insured or (b) ba bee dihage or disped therm;
or on beha of, an
2. Th nuclear mateal is contaed in spent fuel or waste at any tie possessed, hadled used
prose store trport or dised ofhy or on beh of an inur or
3. Th bo injur or propert .
damage ares ou of th fuhigs by an inured of sence,
ma, par or eqpmen in connon wi th plag,cotntion, in, opon
or us of any nuclear faclty, hut if sutìilty is loca with th Unite Sta of Amca it
tetories or possessions or Can th exclusion 3. applies only to property damae to suh
nuclear faci an any prope thert.
2. As us in th endorsement:
Bazrdous propertes iilude raoactive, toxic or explosive pr;
Nuclear materi mea soure material speia nuclear materil or byproduct material;
Source mater special nuclear materia and byproduct material have the mea given them in th Atomic
Energy Act of 1954 or in any law amentory therf;
NULEAR
FOX-MPfI . 212
Page37of4S
FOX ENTAI GROUP, INC.
PoUey Number: MP 07104173
Spent fuel me any fuel element or ful compnent, solid or liqud, whch ba be us or exped to raaton in a
nuclea rector;
Waste me any wa ma (a) contag byproct materi oth th the ta or wa prod by th
extion or coceon of ur or thorium fr any ore prse pri for its sour materi cote
an (b) re from th opon by any peon or orgation of any nueleafacDi include unr the fi tw
pagrhs of
the defition of
nuclea facIty.
Nuclear facilty mea:
(a) Any nuclear reactor:
(b) Any
equiment or device deigned
or us for (I.) separg thdsoto of un or plutonium (2.)
procing or.utlizg spent fuel, orO.) ha, procein orpaclæ waste:
at
(c) Any equpmen or device used for the.proCCing,fucati or aloyi ofspela nuclea materia if
any tie th tota amimt of suh inal in the cuody of th msur at the pi:es wh suh
eqipment or devce is locte COÌ8ts of or conta more th 25 gr of plutonium or ur 233 or
any combinn thf, or more th 250 gr ofur 235;
wast:
(d) Any sttu basin excavaon, prees or plae prear or us for the stoge or disal of
an includ the site on whch any of th foreoing is loca al opetions condute on such site an aU
prees us fur such opons:
apartu designed or used to su nuclea fision in a self~supo ch
recton or to cont a critical ma of fiionale ma;
Nuclear reactor mea any
Propert damge inludg al form of
raoactive conton of
prer.
Th Form must be atthed to Chae Endorsemen when issued af the policy is wrtt
ONE OF TI FIMA'S FU INSUCE
COMPAN AS NAM IN 1l POllCY
NUCLR
FOX.MPrr . 212
Pagc380f4S
FOX ENRTAI GROUP, INC.
Polley Number: MP 07104173
CALIFORN CHAGES -CANCELLATION AN NONRNE AL
Th enrsemt modies ince ptovide unde th followi: AUlO, CR, GENE UAIU, IN
MA, and PROPERTY COVERAGES.
A. The foUowig is added to the CANCELATION Common Po1ìy Condition:
POLICIES'IN EFCT FOR MORE mA 60 DAYS
1. If
th policy ba ben in efect for more th 60 days, or is a renewa ofa policy we isue we may cal
th policy only upon the occe, afr the effective date of th policy, of one or more of the followi:
premium :includig paymt du on a pror policy we ised and du dug the
(a) Nonpyment of
cut policy te cowrig th sa ri.
(b) Discver offr or ma miretation by:
1. Any inur or hi or her rereentative in obta th in; or
2. You or your reretae in puuig a cla unde th' policy.
(c) A judgment by a cour or an adtrve trbu th you haw viola a Caor or Fed
law, havi as one of its nesa elet an act whch may inrees an of the riks
inured agat
(d) Discovery of wii or grsly neget acts or omisioll, or of any vilaons of sta laws or
reons esblihi saety stada, by you or your retative, whch may incr
any of the riks inur ag.
(e) Failw- by you or your rereentive to imlemnt reonale loss contrl reents, agr to
by you as a condtion of policy isuace, or whch wee condtioii preent to our use of a
parcuar ni or ra plan üth fiur matealy incre any of
th ri in agt
(f) A deon by the Conmioner ofInsur th the:
1. Loss ot: or cli.in ou rein. covergal or pa of th rik would thte oW'
fiial integrty or solve or
2. Contiuation of th policy Covera would:
(i) Place us in violaon of Caorna or th laws of th sta wher we ar domicied or
(ü) Th our solveny.
(g) A chae by you or your rereenve in the activities or prope of th coci or indu
enterpnse, whch rets in a maerally adde, incr or chaed ri uns th ad
increa or chaged ri is includ in th policy.
callaton, sttig th ren for caellon, to th fit
2. We will ma or deliver advace wrtt notice of
Named In and to the produ of rerd at leat
(a)
10 days before the effective date of calltion if we cacel for a ren lite in pargrh A. i (8)
CACHANOES
FOX-MPtr . 2102
Page
39
of4S
FOX ENTTAlNT GROUP, INC.
Poli~ Numer: MP 07104173
or (b).
(b) 30 days bere th efftive da of calltion if we cacel for any other reason lite in pargr
A.i.
B. The followin is added and supees any proviions to the contrary:
NONRNEAL
i. If
we deide not to rew th policy, we wi ma or deliver wrtt notice sta th ren for nonewa
to the fi Named Ii shown in the Declarons an to th proce of rerd at leat:
th aggrga
(a) 45 clys, but not more th 120 clys, befor.th exiron'or anvear date, if
policy preum is more th $ 10,000; or
th aggr
(b) 60 days, bu not more th.i20 days,.beforthexpirtion or anve da, if
. policy pre is $10,00 or less.
2. We wi ma or deüve our notice to the fi Named Inuæ an to th proce of
ads shown in the policy.
rerd, at th ma
3. We are not re to sed notice of nonrewa in the fonowi situtions:
(a) If the trfer or reewa of a policy, without any chage in te, conditions, or rate, is ben
us an a membe of our ince grup.
(b) If die policy ha bee exteded for 90 days or less, provide tht notice ha bee given in
acrdce with parh B. i.
(c) . If you have obtaed relat coverage, or if th fit Named In ba àg in wrtig,
wi 60 clys of
th policy, to obta th covemge.
the teon of
(d) If th potiy is for a period of no mor th 60 days and you ar notied at the tie of isUl tht
it wi not be re.
(e) If th fit Named In rees.a chage in the tem or condtions .or risks cover by the policy
with 60 days of th en of th policy peod
(f) If we have ma a wrtt offer to the fi Named In in iiorde with the ti fres
shwn in pah B. 1. to rew the policy under chaged te or cotions or at an inre
pre ra, when th incree excee 25%.
Th Form mu be athe to Chge Endorsent wh issue af the poücy is wrtt
ONE OF TH FJRig FU INSURCE COMPAN AS NAMD IN mE POLICY
CACHANGES
FOX.MPrr . 2/02
Page40
of4S
FOX ENTTAI GROUP, INC.
Policy Number: MPT 07104173
EXCLUSION OF WAR MlITARY ACTION AN TERRORIM ENRSEM
With ret to Exclusions foun with CONDmONS APPLICABLE TO ALL SECTONS, th endorsement modies
inW'ce provide under the followi:
FOX E;NRT AlEN GROUP, INC. MOTION PICTULEVIION PRODUCERS PORTFOLio
POLlCY
A. The War An
Milta Action Exclusion is relac by the followig Exclusion. With reect to any Coverage
Form to which the War And Miita Action Excluson does not apply, tht Exclusion is herby ad as follows.
WAR AN MlITARY ACTON EXCLUSION
We will not pay for loss or da caued diretly or indirtly by the followig. Such loss or da is exclud
regaress of any other caue or event tht contnbute concutly or in any seuence to the 108s,
1. War, includg undeclard orcivì wa; or
2. Warlie action by a miita force, includig action in hierig or defein agt an actu or
expecte attk, by any goveent, soveign or other authority usin miita personnel or other agents;
or
3. Inction, rebellon, revolution, used powe, or action taen by governenta authority in hideri
or defendig agat any of the.
With reect to any action tht coes with the te of th exclusion and involves nuclea retion or raon,
or raoactive contaon, ths War And Mita Acton Exclusion supees the Nuclea Hazd Exclusion.
B. Regarles of the amount of dae and losse, the Terrim Exclusion aplies to any inciden of terim:
nuclea maal,.or that ditly or inditly reults in nuclea
i. Tht inlves the use, releae or esca of
rection or radiation or raioactive contation; or
i. That is caed out by mea of the dispersal or aplication of pathgenc or poisonous biological or
checal mate; or
3. In whch pathogenc or poisonous biological or chemcal marials ar relead, an it appea th one
purse of the terrnsm wa to release such materal.
Excet as provided in B.l., B.i. or B.3. abve, the Terrrim Exclusion wi only apply to an incident of terim
in whch the tota of inur dae to al tyes of propert worldwide excee $25,000,000. In detg
whether th $25,000,000 thold is exce, we wi inlud al ined dage sustaed by prop of al
perons and entities afecte by the teorism and busines intenuption losse sustaed by owner or occupants of
th daged prope. For th pue of th proviion, inW' dage me dage tht is covered by
any
ince plus dage tht would be covered by an ince but for the application of any terrrim exclusions.
Multiple incidents of terrorism, which occu wi a 72-hour period and appear to be caed out in conce or to
have a relate purose or common leaershi, wi be deeed to be one incident.
WARRlK
n. 0270 . 03/00
Page
41 of4S
FOX ENTAINT GROUP. INC.
Policy Numer: MP 07104173
The precg pargrh decribe the thhold used to meaur the magne òf an incidet of terrrism and the
~irumtace in whh the thhold wi aply, for the purse of determ wheth th Terrism Exclusion
wi aply to tht inident. When th Terrri Exclusion aplies to an incident oftelTorim, there is no coverae
unde the inurce idented in th endorst
II. the evnt of any incide of teirrism tht is not. subject to the Teirrim Excluion, coverge does not apply to
any element of loss or dage tht is otherse excluded under the ince identied in ths endorsement.
TERRORIM EXCLUSION
We will not pay for toss or damge caused diectly or indiectly by teirrism includi action in hiderg or deendig
agait an. acti or expecte incident of terorism. Such
loss or. damge
,is
excluded regadless of any other caus or event
tht contrbute concureny or in any sequence to the 1088.
TelTorim mea actvies agat perons, orgaons or prope of any natu:
1. th involve the followig or preartion for th followig:
a. Use or th of forc or violence; or
b. Comnsion or th of a dagerous ac or
c. Comssion or tht of an act th inteer with or disrts an electronic, communcation, inormon,
or mehaca syste; and
Z. when one or bo of the followig applies:
a. The effect is to intidate or coece a goverent or the civilian popultion or any segmen thref, or to
disrut any segment of
the economy or
b. It appe tht the intet is to intidate orcooe a goverent, or to fuer politica, ideologica,
religious, soia or ecomic objectives or to.express (or expres oposition
to ) a .philosophy or idelogy.
But with repect to any such activity tht iiso comes with th term of the War And Milta Acton Exclusion, tht
exclusion superedes th Terrrism. Exclusion.
In the evet of an incident of terism th involves nuclea reaction or raation, or raoactive contation, th
Teirri Exclusion supees the Nuclea Haz Exclusion. .
All other te and coditions re unchaged.
WAR
RISK
1L0270.03/O
Page
42 of45
FOX ENTAI GROUP, INC.
Policy Number: MPT 07104173
UNECLARD PROJECTS, WR-AROUNS, AN COSTU TOUR
On an anual basis, Coverage is amed to include Undlar Projects and WraArounds widi !PC of
$40,000 or less,
and Costue Tour, with Coverages, Limts of Liability and Deductibles ar as follows:
SECTION
COVERAGE
LIM OF LIAll
EACH
I.
Cat
NOT
ll.A
Nermve Fil
Faulty Stock
NOT
NOT
II.B.
m.A.
m.B;
m.e.
m.D.
Prps Set & Wardrbe
Extr Expee'
Thd Par Prope Damge
Miscellaneous Eqipment
LOSS
COVERED
DEDUcrLE
EACH
COVERED
COVERED
NOT
COVED
COVED
NOT
$250.000
NOT
LOSS
NOT
COVED
$1,000.000
$500.000
COVED
$5.000
NOT
COVED
$5,000
$10,000
Th flat non-adjustale anua prum for the fit anua penod is $20,000 and is payable iuuay in adva.
The date of loss detennes in whch anua policy penod the project fa.
All other term and conditions rema unchaged.
UNDECLARED PROJEC
n.001
Pagc430f45
FOX ENRTAIT GROUPJ INC.
Polley Number: MPT 07104173
BLUE SKY STUioS COMMCI PRODUCTON
On an anua basis, Coverge is amnded to include Televiion Commeria Productions pro by Blue Sky Stuos
with budgets up to $1,000,000 per project.
SECTON
COVERAGE
LIM OF LIILIT
EACH
1.
Cat
n.A.
n.B.
Ne~tive Fil
NOT
LOSS
COVERED
mA
Faultv Stock
Prns. Sets & Wardrbe
m.B.
Extr Exncns
m.e.
$1.000000
$1,000000
$1.000000
$1,000000
Thd Par-Pron Damir
Micellaneous -ECliment
$1,000.000
$1,000,000
m.D.
DEDUCTLE
EACH
NOT
LOSS
COVERED
$10000
$10000
$5.000
$10,000
$5.000
$10,00
The flat non-adjustale anua premi for th fit anua period is $15,000 and is payale anuay in advace.
The date of loss detemes in whch anua policy perod the project fas.
Al oth term and conditions rei unhaged.
BWESKY
n.OO21
Page44of45
FOX ENTAINT GROUP, INC.
Policy Numer: MP 07104173
NATIONAL GEOGIDC PRODUCTIONS
On an an basis, Coverae is amended to inlude Nationa Geogrhic Productions with budgets up to $50,000 per
project.
SECTION
COVERAGE
LIT OF LIILIT
EACH
i.
Cat
n.A
IDA
Nentve Fil
Faulty Stock
Proos. Sets & Wardrobe
m.B.
Extr Exoene
m.c.
Th Par Proo Daml!e
Miscelleous Eanment
n.B.
m.D.
NOT
LOSS
COVERED
$50,000
$50000
$25000
$25000
$1,000,000
$150,000
DEDUCTILE
EACH
NOT
LOSS
COVERE
$5,000
$5,000
.$2500
$7.500
$5,000.
$7,500
The flat non-adjustable anua prem for the fit an period is $6,000 and is payale anuay in advance.
Th date of loss detees in whch anual policy perod the project fals.
Al other term and conditions remin unchaged,
NAUOEO
n.ooii
Page
45 of45
Named ID
PoUq No. MPT 0710 4173
FOX ENnRTAlNT GROUP'
Effedve: 02/0112003
RATIG SCHDULE
ENDT#l
THE PREMIM RATES AR BASED ON T. FOihOWIG TERMS AN CONDITIONS.
. .. I'" .
L EXPOSURS
The bas rates contmplate Inle Prodction Cost or Gross Production Costs (se below for
definitions) up to one hun milion dollas ($100,000,000) as rets Featues and Ante
Fea (see below for defitions) or up to $2,00,000 per epise as re Epic Series or
$5,000,00 as rets Pilots and Speials. Any projects in exce of the abve stted amunts are
subjec to sepate negotiation.
The base rates contemplate average expur in the USA, Ca Western Europe (defned as
Aus Denm Norway, Fiiand, Sweden, Unite Kidom, Frace, Gemiy, Irlan Spa and
Switzrlad), Ausia or' New Zeand. Hadous and other foregn expsues may be suject to
dierent tenn to be negotted at the time of declaron. You will give us prior notice of any
acvities, condions or ha, wluch may materially incree your exp to loss, and we have the
right to apply term, conditions or chage the preiium to reflec the increased exsu.
n. BASIC RATES
A.
1.
As repe Moton Pictues, includig Featues for Theatrca Releae, Featues for
Television Broadca and Mù-Series (collecvely, "Featu"), the rate pe
declation is S1.08 per $100 of Insle Producton Cost ('''IPC") as defied in
CONDmONS APPLICABLE TO ALL SECONS, Secon n. SPECIA
CONDmONS, supagrph A.
2. As rets An Featues, the rae per declartion is $ .66 pe $100 of Grss
Producton Cost ("OPC") as defined in CONDmONS APPLICABLE TO ALL
SECTIONS, Secon II. SPECIAL CONDmONS, sub-pargrh A.2.
B. As re Televon Piots, Episodc Series and Speials (collecvely, "Television"'), the
rate is as follows:
i. Episoic Series (ai one episode per wee and not includg reity-bas shws)
a. 30 Mies
$1,050 fl premium pe
episode
b. 60 Mites
2.
$1,575 flat preßÙum pe
epis
Pilots and Speial
$1,575 flat premium pe
Pilot or Speal
3. Strp, Gae, Tal Shows and Shows with two or more episodes aig pe wek
a 30 Mi
$1,050 flat preßÙum pe
wee
b. 60 Mies
$1,575 flat premium per
wee
4.
Reaty Bas
Pretnwn to be setely
negotiated
Page lof4
Named Inre
Policy No. MPT 0710 4173
FOX ENTERTAINT GROuP
Effecve: 02101/2003
C. As re Docentaes, Indus Fil, Commerials, an Educationa Prjec, Music
Vides, CD Rom prjec (collecvely, "DICE"), th rate is $TO BE DETERMD pe
$ 100 of Gr Producton Co ("OPC").
D. Al other productons not included aboe shaH be seartely negotited (collecvely, "all
otet').
m PREMI PAYMNT & AUDIT
A. Premium payment
1. Except for DICE productons, prior to commencment of principa photogrphy for
each in proucton, you will forwd to us a completed aplicaon
2. Featus and Aned Featues
a. The depsit premium for al ined productions will be detenned usg
th raes st herein or othei negotiat and applied to the IPC or
OPe, as applicale.
b. Premium for all ined productons wi be biled as th ar declar to
us.
C. Premium for fi audit adjustments will be biled upon completion of the
fina audits.
3. Televion and al other productons
a. The premiums ar fiat non-ajustable for each anua peod.
b. The deposit premiwn for televsion in hereunder wi be billed as they
ar declar to us.
4. DICE
a. The depsit preum for each an policy period wi be bas on the
rates st aboe applied to the anua estte GPC and biled in
advan at the inception of each an period.
b. Any premium adjents wi be billed upon completion of
the :f audit
c. Any spial prenuum adjusts wi be biled as negotited.
B. Prmium Audit
The premium wi be sujec to a physica aut of the IPC or ope, as applicable, in
accrdace with the rae(s) an tenn shown hein.
Wè may, at our option, forego a physca audit and reue only a "Volunta Audit".
"Volunta Audit" me tht you wil accrately submit to us:
1. with a renale period of time afer completion of pricipa photogrhy, an
itemi accuntig in the form of a Producton Cost Rert (as commoruy us in
the Entertent Indus) of the tot IPC for each prouction inured hereunder;
or
2. with 30 days afr completon of each an policy period, an itemiz acctig
Page2of4
Named Insure
Policy No. MPT 0710 4173
FOX ENTERTAIENT GROUP
Effecve: 02~1/2003
of the tota OPC for all pructions in hereunder for the precg twelve
month.
IV. COVERED ARTITS
A. We cover up to:
1. 18 declar ars (prsons or ans) for Featu and Televsion, eah pructon;
2. 0 (zero) declar arsts (prsons) for Anted Featu.
B. Each addtion ar will be chaged $.035 per $100 ofIPC.
V. TERM
Th basic rae contemplat:
A. Featus
Pricipal Photogrphy;
1. 20 weeks of
2. 12 month frm the end date of Pricipa Photogrhy for Secon n. Coerge A.
Negatie Fil Corage and Secon n. Coge B. Faulty Stoc;
3. Additiona Time:
a. The followig rates apply for 10 weeks beyond the 20 we included in the
basic rate, for a mamwn of 30 weeks. Additiona weeks beond 30 weeks
to be separtely negotited.
(i.) Ca
$ .02 pe $100 ofIPC per week or par therf
(ü.) Supplementas
$ .015 per $100 of IPC pe wee or par thereof
b. Negatie/aulty Stock
$ .025 per $100 of IPC pe month or pa thereffor additiona month of
expsu beyond 12 month beyond the Completion Date of pripa
photogrhy.
B. Anmated Featu
Notwthg the Tenn of Coverage provided with each Coverage Seon, the
Coverage tenn is 24 month for all Coverages from the Sta Date declar to us unti th
Completion Date declaed to us, not to exce 24 month,
C. Televsion
As declar. per seon begi with each an policy period.
Page 3 of4
..
AaDeG inSUreG . . .
PoUe)' No. MPT 0710 4173
FOX ENTRTAINT GROUP
Effecve: 02/0112003
D. DICE
As stted in Item 2. of the Motion Pietelevsion Prucers Portlio Declaron or each
anua policy period.
E. All Oter Productons
Al other proons not included aboe shal be separtely negotiat.
VI DEDUCTILES
The DEDUCTLES found with any coverage pa of ths policy superse the Deductibles stted
below.
COVERAGE
FETURE
TELEVIION
DEnUCTlLES DEDUCTJLE
1. Ca
Up to $15,000,000 IPC
$15,OO,00()$30,OO,OO IPC
Over $30,000,000 IPC
Clxtnded PrPructon
$100,00
$150,000
$250,000
$50,000
Not Applicale
Not Applicale
Not Aolicable
.A PrODS, Se & Warob
.B. Ex Exonse
.C Th Par Prnert Damge
IT.B. Faultv Stock
.D. Mieleous Eauimnent
Ofce Contents
Vehicle Physca Damge
(Per Vehcle)
MoneY & Currcv
S Not Aplicale
Not Applicable
$100,000
$100.000
$100.000
IT.A NeJrti
D.LC.E. AN ALL OTHER
PROJECTS DEDUCTILES
$ 25.000
Per Endorsement
$ 25,000
Per Endrsement
$ 50.00
$ 15,000
$ 25.00
Per Enorsent
$ 50.000
$ 50.00
$ 10.00
Per Endorsment
Per Enorsment
$.25000
Per Enorsement
$
$
5,000
5,000
$
5,000
Per Endorsement
$
5,00
Per Endorsment
$
5,00
$
5,000
Per Endorsment
$ 50,000
vn ANIVARY REVIW
The Policy Period stated on the Declartions Page is comprised of th anua anversai policy
periods as follows:
Febru 1, 2002 to Febru 1, 2003
Febru 1,2003 to Febru 1,2004
Febru 1, 2004 to Febru 1, 2005
Notwithang the Policy Perod stated on the Declartions Page, tls policy is subject to anua
revew of all tenn and conditions. We reserve the right at anivers to amend policy terms and
conditions.
vm Al other temi and conditions other th those stted in the Declarons Page or with ths Ratig
Scheule are to be separtely negotiated and endorse heren.
Page 4 of4
.,
Named Inre
Policy No. MPT 0710 4173
FOX ENTRTAINT GROUP
Effecve: 02/01/203
ENDT#2
AMENDMENT ENDORSEMENT
Secion i. CAST, Parh V. MEDICAL EXAATION, sub-paraph F. Pilot is replaced
by the following:
We do not require MEDICAL CERTIICATE.AN AFFIAVIS for coered persons in
connection with pilot tht are picked up for series wìn ninet (90) days from the st of
pricipal photography of
the pilot if all of
the followig conditions have been met:
1. we have previously accpted a covered person's MEDICAL CERTIICATE AN
AFFIDAVI for the pilot of
the sae producton without restcton;
2. there were no incident or ocences tht
a. could or did gie rise to a Ca clai on the covered person duri the pilot;
b. could or did give rise to a Cas claim on any other prodcton since the pilot,
the
c. there wa no chae in the covere person's medica sts since the time of
covered person's MEDICAL CERTICATE AN AFFIDA vr for the pilot.
Coverage for
the covered persn wi commence on the da the covere persn is declaed to us.
In the event tht the thee conditions above have been met and full coverae wa provided for the
pilot contigen on a restriction(s) to apply if
OF HEALTH & AFFIAVIT will be required. All oter
the pilot wa picked-up for series, a STATE
terms of
Parph V. will apply.
In the event th the thee conditions above have been met and rescted coverae wa provided,
coverae wil continue with the previous restction uness we decide oterse. All other tenn
of
Pam
grh V. wil apply.
In the event tht the thee conditions above have not been met, fuIl coverae will be contigent on
our receipt and review of the covered person's new MEDICAL CERTIFICATE AND
AFIDAVI subjec to all other term an conditions related to Parph V.
Ca Coverage for any covered person will not extend beyond the lesser of the episodic seaon
declared to us or twelve (12) month from the exation date of the cover~ person for the
pilot.
Ths endorsement attches to and becomes a par of
Policy No. MPT 0710 4173.
Named Insured
Policy No. MPT 0710 4173
Effecive: OirOi/203
FOX ENTRTAINT GROUP
ENDT#3
AMENDMENT ENDORSEMENT
The amended rates are as follows:
Coverage
Secton i. Cast iv. Term of
D. Extended Pre-Production
2. Additiona11imits in excess of one millon dollars ($1,000,000)
up to five milion dollars ($5,000,000), or additional time
beyond the four (4) weeks included in Paragraph lY.D.1
above, are available at the following rates per $100.00
applied against the limit of liabilty requested for each
covered person:
(Rtes apply per month or par thereof)
of
Age
I Month
2 Month
3 Month
4
Month
6
Month
9
Month
Arist
54
&
oc
55 to 70
Over
12
Month
70
.16
.19
Refer
.20
.25
to
companv
.24
.32
.28
.38
.35
.46
.51
.71
.51
.901
Named Insured
FOX ENTERTAINT GROUP
, ... ,
PoUcy No. MPT 0710 .. i 73
Etrecve: 02101/2003
ENDT#4
AMENDMENT ENDORSEMENT
Section i. Cast. V. Medical Examination D. I. is replaced by the following:
D 1. As respects episodic television, we do not require a STATEMENT OF HEALTH
for guest arists. Guest arists, as used in the Section, means any human
performer or director contracted for no more than three (3) episodes of a series of
productions.
:.- .
.. .. .
Named Inre
FOX ENTRTAJNT GROUP
PoUc: No. MPT 0710 4173
~ecve: Oi/oitiOo3
ENDTfl
AMENDMENT ENORSEMENT
Section i. Cast V. A. Medical Examination is replace by the following:
AI. Cast Coverage for injur to any covered person is provided for 48 hours from the
date that the covered person is contracted by you or on your behalf to provide
servces, There is no coverage beyond the forty-eight hour period referred to
herein unless the person to be covered is designated to us for consideration of
coverage in which case all terms of
Paragraph V.A.2., V.B. YC., YD., and V.E.
below apply. With respect to this subparagraph, we resere the right to
retroactively restict coverage based on informtion that is known to us or is so
widely known to the general population tht a reasonable underwiter would have
restricted coverage, The onus is on us to prove that a restrcton should apply.
A.2. The covered person(s), listed on the declaring endorsement issued in connection
with an insured producton, must be examined not more tht ninety (90) days
prior to the star date of
principal photography by a duly qualified physician
(vetennaran with respect to anmals), designated or approved by us, who shall
submit to us a MEDICAL CERTIFICATE AN AFFIAVIT signed by the
examinee (not applicable to animals).
. ~ ..
Named Insured
Policy No. MPT 0710 4173
FOX ENTRTAINT GROUP
Effecve: 0210112003
ENT#6
AMENDMENT ENDORSEMNT
Conditions Applicable To All Secions. Section n Special Conditions C.2. Determination
Premium is replaced by the following:
of
C.2. You will advise us as soon as practicable oftbe exact date of
principal photography of an insured production.
termnation of
Policy Number:
Broker:
MARSH RISK & INS. SERVICES
Named Insured:
MPT Q710 41 73
Effective Date:
FOX ENTERTAINMENT GROUP, INC.
2/01/2003
ENDT #..
ADDITIONAL ENDORSEMENT - AP
In consideration of an additional premium of $ NIL (State Assessment of $ NIL
included), the following form(s) is attached to and becomes a part of this policy:
CERTIFIED ACTS OF TERRORISM EXCLUSION. 1/03 .
COUNTERSIGNATURE DATE:
May 13, 2003
ADD-END AP. 2/92
COUNTERSIGNATURE OF AUTHORIZED AGENT:
Certified Acts of Terrorism Exclusion. 145913 01 03
Policy Amendment(s) IJropel1y Coventge
l11is endorsement modifes insurance provided under fhe following:
Ccillinercial Crime Coverage Partes)
Coiiiicrciallnland Mi\rÌlie Con'rage Partes)
Commercial Proi,erty CO\'erage Partes)
rarm Coyerage Part(s)
Standard PrOllerty Polic)'
American Uuslncs Coi'crage Policy - Section I
I. Certifed Acts of Tcrrorism Exclusion
insurance under the following covcrage
parts:
We wil not pay for loss, damage, or any liabilLy
caused diredl)' or indirctly by a cL'Tlll~ act uf
terrorism. Such loss or damage is ex.luded reo
Commercial Property Cov~rage i1ar\(s)
gardless of any other caUse or event that contrib.
Standad Property Policy
utes concurrntly or in any sequence to the loss.
American Business Coverage Policy -
Fann Coverage Partes)
Section i
II. Covcrage for Certain rire tosses
n. If a \.'\rUß\.-d act ur tcrruri!Sm r~lSull:¡ in fil'~,
or Propel1y Insured is withi a jurisdic.
we wil pay for the loss or damagc caused by
that flfe. Such coverage for fife applies onl)'
tion that has a Standard Fir Policy law
to dirct loss or damage by fire to Covered
A. I. If the location of your Covered Property
Property or Property Insured. Tht.refore, for
that does not exempt Commercial Inland
Marie, item 11.8. (btiow) further modifies insurance under the following cover.
example, the coverage docs not apply to insurance provided unùer Business Income
age pal1s:
and/or Extra Expense coverage rormii or en-
Conunercial Inland Mare. Coveragc
the Legal Liabilty Coverage Pomi, or the
pares)
Leasehold Interest Covenige Ponn, or the NeL
Leaiiehold Coverctge Ponn,
dorsements wluch apply to those rOmiS. or to
Commercial Property Coverage Par(8)
ran Coverage pares)
Standad Property lloliey
III. Application of Othcr Exclusions
America Business Coverage Poliey -
The terms and litations of any terrorism exclu-
Section i
sion, or the inapplicabilty or omission of a terrorism exduiiion, do not serve to create coverdge
2. If the location of your Covered Property
for any loss which would oLherwise be excluded
or Property Insured is within a jurisdic-
under this Coverdge l'art, Coverdge Si:tion. or
tion that has a Standard Fir Policy law
Policy, such as losses excluded by the Nuclear
Hazanl Exc1uiiion or the War And Military Action
Exclusion,
that exempts Commercìa1lnland Marine,
item lI.n, (below) further modifes
This Form must Ix attached to Chane ßndorsement when issued alr the policy is written.
One of the I:¡remaii.slluiid Insuranc Coiupaiiics as named in the policy
ids~
~4/
.' ':
ß:'f
President
145913 1.03
Inludei cup)'iid muienul of Irmriiiwe Sc:~,,* Offce. Inc.. wiUi iii pcrSl;oi.
Page 1 of 2
..
IV. Defitions
The followig defintion is added with respe to
the provisions of th endorsement:
Cerifed act of terorism means an act that is certifed by the Sectar of the Treasury, in concurrence with the Secrta of State and the Attorney
B. The act is a violent act or an act that is dagerous to human lie, propey or inastruc-
ture and is commtted by an individual or
individuas acting on beha of any foreign
person or foreign interet, as par of an effort
to coerce the civilan population of the Uiuted
General of the United States, to be an act of terrorism pursuat to the federal Terrorism Rik In-
States or to inuence the policy or afect the
conduct of the Uiuted States Goverent by
surance Act of 2002. The crteria contaied in that
coercion.
Act for a certifed act of terorism include the fol-
lowig:
A. The act resulted in agggate losses in excess
of SS mion¡ and
V. lls endorsement is otherwse subject to al terms,
conditions, proviions and stipulations of the pol.
ier to which it is attached.
14593 ¡-o3
li copyr¡l maierial or lii" SCM"' om", lii., wllh l~ peOl
Page 2 of2
..
Broker:
MARSH RISK & INS. SERVICES
Named Insured:
FOX ENTERTAINMENT GROUP. INC.
Policy Number:
MPT 0710 41 73
Effective Date:
2/01/2003
ENDT #..
ADDITIONAL ENDORSEMENT ~ AP
In consideration of an additional premium of $ NIL (State Assessment of $ NIL
included), the following form(s) is attached to and becomes a part of this policy:
AMEND ENOT. 7/91 .
COUNTERSIGNATURE DATE:
May 13, 2003
ADD-END AP. 2/92
COUNTERSIGNATURE OF AUTHORIZED AGENT:
.I
Insured:
Policy Number:
FOX ENTERTAINMENT GROUP, INC.
MPT07104173
ENDT #..
AMENDMENT ENDORSEMENT
It is agreed that Coverage for BLUE SKY STUDIOS COMMERCIAL PRODUCTION is
deleted in its entirety.
This endorsement becomes a part of the policy to which it is attached.
AMEND ENDT. 7/91
Broker:
MARSH RISK & INS. SERVICES
Named -Insured:
FOX ENTERTAINMENT GROUP, INC.
Policy Number:
MPT 0710 41 73
Effective Date:
2/01/2003
ENOT # Jl
ADDITIONAL ENDORSEMENT. AP
In consideration of an additional premium of $ 26,000.00 (State Assessment of $
Nil included)¡ the following form(s) is attached to and becomes a part of this policy:
AMEND ENOT. 7/91 !
COUNTERSIGNATURE DATE:
May 13, 2003
ADD-END AP. 2/92
COUNTERSIGNATURE OF AUTHORIZED AGENT:
,~Il
Insured:
Policy Number:
FQX ENTERTAINMENT GROUP, INC.
MPT 0710 41 73
ENDT # i
AMENDMENT ENDORSEMENT
In consideration of the Flat Annual Premium charge of $26,000., it is agreed that the
following Productions are declared to the policy:
"UNDECLARED/WRAPAROUNDS/COSTUME TOURS"
"NATIONAL GEOGRAPHIC PRODUCTIONS"
This endorsement becomes a part of the policy to which it is attached.
AMEND ENDT. 7/91
Broker:
MARSH RISK & INS. SERVICES
Named Insured:
FOX ENTERTAINMENT GROUP, INC.
Policy Number:
MPT 0710 41 73
Effective Date:
2/02/2003.2004
ENDT #..
ADDITIONAL ENDORSEMENT. AP
In consideration of an additional premium of $ NIL (State Assessment of $ NIL
included), the following formes) is attached to and becomes a part of this policy:
AMEND ENDT. 7/91 .
COUNTERSIGNATURE DATE:
May 15,2003
ADD~END Ap. 2/92
COUNTERSIGNATURE OF AUTHORIZED AGENT:
Insured:
Policy Number:
FQX ENTERTAINMENT GROUP, INC.
MPT 071041 73
ENDT # ..
AMENDMENT ENDORSEMENT
It is agreed that the following Coverages for UNDECLARED PROJECTS, WRAPAROUNDS, AND COSTUME TOURS Limits and Deductibles are amended to read as
follows:
UNDECLARED SERIES AND WRAP AROUNDS:
Coverages
Limits
Deductible
EXTRA EXPENSE
$250,000
$5,000
Limits
Deductible
$500,000
$10,000
COSTUME TOURS ONLY:
Coverages
PROPS, SETS, WARDROBE
"
This endorsement becomes a part of the policy to which it is attached.
AMEND ENDT. 7/91
Broker:
MARSH RISK & INS. SERVICES
Policy Number:
MPT 0710 41 73
Effective Date:
Named Insured: .
FOX ENTERTAINMENT GROUP, INC.
2/02/2003
ENDT #.1
ADDITIONAL ENDORSEMENT - AP
In consideration of an additional premium of $ NIL (State Assessment of $ NIL
included)! the following form(s) is attached to and becomes a part of this policy:
CERTIFIED ACTS OF TERRORISM EXCLUSION - 145913 . 1/03.
......
COUNTERSIGNATURE DATE:
May 15, 2003
ADD-END AP. 2/92
COUNTERSIGNATURE OF AUTHORIZED AGENT:
Certified Acts of Terrorism Exclusion - 14591J 01 03
Policy Amendment(s) Property Coverage
This endorsement modifes insuraiice provided under the following:
Commercial Crime Coverage Partes)
Commercial Inland Marine CO'n~rage Part(s)
Commercial Proliety Coverage Partes)
.~arm Coverage Partes)
Standard ProllCrty Policy
America.. Busines Coverage Policy -' Sectioii I
I. Certiled Acts of Terronsii Exclusion
insurancc undcr thc following covcrag~
pars:
We wil not pay for loss, damage, or any liabilty
Commercial Property Coverage PaI1(s)
Faroi Coverage Partes)
caused dirctly or indirectly by a certifed ad of
terrurism. Such loss or damage is excluded re-
Standard Property Policy
ganltess or any other caUse or event that contnb-
American Business Coverage Policy -
. utes concurrntly or in any sequence to the loss.
Section J
II. Coverage tor Certain Fire Losses
B. If a (o'ertiled nct uf terrurism results in lire,
A. L. If the location of your Covered Property
or Property Insured is with a junsdiction that has a Standar fire Policy liIW
that does not eitempt Commercial
Inld
Marie, item Il.B. (below) further modi-.
fies insurance under the following coverage parts:
Commercial IlÙand Mare Coverage
Partes)
Commercial Property Coverage Pai(s)
Par Coverage Part(s)
Standad Property Policy
we wil pay tor the loss or damage causcd by
that fir. Such covenlb't for fire applies only
to dirt loss or damage by fi to Covered
Property or Property Insured. Therefore, for
example, thc coverage docs not apply 10 insur-mce provided under Business Income
and/or Extra Expense coverage forms or en-
doriiements wWch apply to those forms, or to
the Legal Liabilty Covemge Form, or the
leasehold Interest Coverage Porm, or the Net
Leasehold Coverage Fonn.
II. Application of Othcr Exclusions
A1nencan Business Coverage Policy -
The terms and litalions of any terronsm exclu-
Section I
ision, or the inapplicabilty or oßUssion of a ttirronsm exclusion, do not iierve to create coverage
for any loss wWch woultl otherwiiie be excluded
under tWs Coverage Par, Coverage Section, or
IJolicy, such as losses excluded by the Nuclear
Ilaiarc. Exclusion or the War And Miltary Action
Exclusion.
2. If the location of your Covered Property
or Property Insured is witlun a jurisdiction that has a Standard Firè Policy law
that exempts COnîercial Inland Mare,
item II.B. (below) further' moduies
This Form must be L\\acmd \0 Chlle Bnorscmcn\ when issued after the policy Is wrlnen.
One of the I"iWllJII'S lluiu. InsriiiiRl Cumpaiiii: liS named in the policy
stas~
/.T'
4fd1'
.'. ::
President
14;;913 1-03
Includc; I,'tpyr¡¡ in81~..riat of lrurii\."C Servces Offce. Inc., with its pirns~ion.
Page 1 of 2
IV. Defintions
The fonowig definûon is added with respe to
the provisions of th endorsement:
B. The ac is a violent act or an act that is da.
gerous to human lie, property 'or instrc-
rorism pursuat to the feder Terrorism Risk In-
ture and is commtted by an individua or
individuas acting on behal of any foreign
person or foreign interest, as par of an effort
to coerce the civilan population of the United
States or to inuence the pollcy or afect the
conduct of the United States Governent by
surance Act of 2002. The cntena contaied in that
coercion.
Certifed act of terorism mean an act that is cetifed by the Secrtai of the Treasury, in concur~
rence with the Secetar of State and the Attorney
General of the United States, to be an act of terAct for a ceified act of terrorim include the fol.
lowig:
A. The act reulted in agggate tosses in excess
of $S mion¡ and
14ßIS 1-43
liudCf copyriJte malc or liaiee Senicc Offce Inc., wilb Its pol'òt
V. TI endorsment is otherwise subjec to al ters,
conditions, proviions and stipulations of the pol.
iey to which it is attached.
Page 20£2
Policy Number:
Broker:
MP 0710 41 73
MA RI & INS. SERVICES
Effective Date:
Named Insed:
FOX ENTAI GROUP, INC.
0430/03
ENDT#R
MAG ADDRESS - AM FORM
The MAING ADDRESS in Item 1 of the Declarations Page is amended to read:
1211 AVENUE OF THE AMERICAS
NEW YO~ NY 10036
Ths endorsement becomes a par of the policy to which it is attached.
COUNTERSIGNATURE DATE:
June 18, 2003
MAL ADDR - CHG. 1/92
COUNTERSIGNATURE OF AUTHORIZED AGENT:
EXHIBIT B
Page 2 of 14
Wéstlaw
Page I
Not Reported in CaI.Rptr.3d, 2009 WL 1652971 (CaI.App. 2 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1l05 and 8.1l 10,8.1 1l5)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
~
Only the Westlaw citation is currently available.
California Rules of Court, rule 8. I I 15, restricts
unpublished opinions in California courts.
citation of
purports to appeal from a March 26, 2008 summary
judgment in favor of defendant and a May 23, 2008
minute order denying its motions for a new trial and
for leave to fie a first amended complaint. We constre the appeal as from the July 10, 2008 amended
judgment, which includes an award of costs to defendant. (CaL. Rules of Court, rule 8.104(e); Hol-
Court of Appeal, Second District, Division 5, California.
FIREMAN'S FUND INSURANCE COMPANY,
Plaintiff and Appellant,
v.
Robert DE NIRO, Defendant and Respondent.
No. B208336.
(Los Angeles County Super. Ct. No. BC359977).
lister Convalescent Hosp., Inc. v. Rico (1975) 15
Ca1.d 660, 669; In re Social Services Payment
Cases (2008) 166 Cal.App.4th 1249, 1262, fn. 4.)
We conclude there was no triable issue of material
fact with respect to defendant's failure to disclose
that he had undergone a prostate biopsy procedure
and plaintiff has not shown the trial
court abused its
discretion in denying its motion to fie a first
amended complaint. Accordingly, we affrm the
June 15,2009.
judgment.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Rolf M. Treu, Judge. Af-
II. BACKGROUND
firmed.
Nelsen Thompson Pegue & Thornton, Jaymeson
Pegue and Philip H. Thompson for Plaintiff and
A. Defendant's Medical History
Appellant.
Caldwell Leslie & Proctor, Christopher G.
Defendant had always been vigilant about monitor-
Caldwell, David C.Codell, Robyn C. Crowther and
Jeanne A. Fugate for Defendant and Respondent.
ing and maintaining his health. He first saw Dr. Michael Brodherson, a New York urologist, on Janu-
TURNER, P.J.
ar 29, 1980. Defendant was then 36 years old. It
was a normal part of Dr. Brodherson's procedure to
examine the prostate of a 36-year-old man. Dr.
Brodherson testified at his deposition, "(Defendant)
1. INTRODUCTION
complain
(ed) that he had diffculty voiding after
sexual activity, but I also recall, I think, that he at
*1 Plaintiff, Fireman's Fund Insurance Company,
the time had microscopic hematuria." Microscopic
sought to recover from defendant, Robert De Niro,
hematuria means red cells in the urine. Dr. Brodh-
for covered losses attibutable to defendant's inabil-
erson placed defendant on Bactrim and Cystospaz.
ity, for medical reasons, to commence fiming a
Further, because of the red cells, Dr. Brodherson
movie, Hide and Seek (Twentieth Century Fox
2005). Plaintiff alleged otherwise applicable insur-
recommended that defendant undergo a cystoscopy,
ance was rescinded because defendant made materi-
urethra, and prostate. Dr. Brodherson recorded the
results of that test, received in February 1980, as
al misrepresentations in connection with the applic-
ation for insurance; specifically, he failed to disclose he had undergone a prostate biopsy. Plaintiff
which is a telescopic examination of the bladder,
"prostatitis, urethritis." Prostatitis is an inflamma-
tion of the prostate. The cause of prostatitis is not
generally known but it could be from infection, ir-
(Q 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
http://web2.westlaw.com/print/printstream.aspx?rs=WL W9.1 O&destination=atp&prft=H... 10/23/2009
Page 3 of 14
Page
2
Not Reported in CaI.Rptr.3d, 2009 WL 1652971 (CaI.App. 2 Dist.)
NonpublishedlNoncitable (CaL. Rules or
Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
ritation, or sexual activity. Dr. Brodherson did not
recommend any course of treatment-in addition to
the previously prescribed medications-at that time.
In i 983, defendant's father, Robert De Niro, Sr.,
(Mr. De Niro) was diagnosed with prostate cancer.
Mr. De Niro later died as a result of that disease.
Defendant was 40 years old at the time Mr. De Niro
was diagnosed with prostate cancel'. Defendant un-
derstood that genetics played a role in prostate cancer. Defendant's risk was higher than that of a per-
son whose father did not have prostate cancer.
Shortly after learning of Mr. De Niro's diagnosis,
on December 30, i 983, defendant consulted with
Dr. Brodherson. Defendant desired to know the
prostateenlargement/# common)-) For purposes of
clarity, we refer to this condition as benign prostatic hyperplasia. Dr. Brodherson testified: "I may not
have ever used the words 'BPH,' but ... it's a known
fact that men as they age develop (benign prostatic
hyperplasia). I would speak to (defendant) and say,
the prostate grows, mine gro(w)s, your(s) gro(w)s,
and that would be the tone of the conversation. I
didn't say, 'You have BPH.' " Defendant's testimony was consistent. He was not familiar with the
term" 'benign prostatic hyperplasia' " and he did
not think he had heard that term. He did not remember hearing the term "BPH." Defendant also did not
think he really understood what prostatitis was; he
was not told, " 'You have prostatitis.' "
steps he should take to monitor and maintain his
own prostate health. Defendant said he wanted to
come in three to four times a year for examinations.
These regular examinations were to include a blood
screen to check his prostate specific antigens. De-
fendant subsequently adhered more or less to that
schedule. Dr. Brodherson told defendant a prostate
specific antigen below four was normaL. Defendant
wanted to be very clear about making sure he was
healthy. An entr in Dr. Brodherson's records for
December 30, 1983, stated: " 'I told the patient if
he is that worried about cancer when he reaches 50
Dr. Brodherson's August 2, i 995 notes reflect that
defendant had noctUl;a. In other words, defendant
was getting up at night to urinate. In response to deposition questions, Dr. Brodherson agreed that this
could be a symptom of: prostatitis; benign prostatic
hyperplasia; or prostate cancer. Dr. Brodherson did
not prescribe any medication for the nocturia. Dr.
Brodherson did not order any specific tests as a result of defendant's nocturia. Dr. Brodherson had no
independent recollection of having discussed the
diagnosis with defendant. But Dr. Brodherson as-
we can even do a biopsy periodically. He said that
sumed he had such a discussion. Defendant testified
might be a good idea.' " But Dr. Brodherson had no
that at the time, "I was urinating maybe two, three
independent recollection of having that discussion
with defendant. And defendant did not recall the
times at night and it was ... interrpting my
sleep...." Defendant did not understand that fre-
conversation either.
quent urinating at night could be a symptom of pro-
*2 On July 20, 1993, Dr. Brodherson recorded that
defendant had dysuria, that is, mild burning on urination. Dr. Brodherson prescribed an antibiotic.
statitis. Defendant did not know what prostatitis
was. He did not understand that frequent urination
at night could be a sign of an enlarged prostate. No
one told defendant, " '(Y)ou have prostatitis," and
Dr. Brodherson had no reason to believe the condi-
he did not really understand what the condition en-
tion was not resolved after that visit. In response to
tailed. Defendant just knew that, "I had a prostate
questions asked at his deposition, Dr. Brodherson
that was causing me to have to go to the bathroom
more often." At some later point in time, Dr. Brod-
agreed that this condition, dysuria, might be a
symptom of prostatitis, of benign prostatic hyperplasia (an enlarged prostate), or of prostate cancer.
"Benign prostatic hyperplasia" is also known as
"benign prostatic hypertrophy" or BPH.
( -Chttp://kidney . n iddk.nih.gov /kudiseases/pubs/8
herson's notes reflect that defendant had "mild hesitancy" meaning the urine stream was not what it
once was. Dr. Brodherson agreed in response to
questioning that this could be a symptom of: prostatitis; benign prostatic hyperplasia; or prostate
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NonpublishedlNoncitable (CaL. Rules of
Court, Rules 8.1105 and 8.1110,8.1115)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
better. (ir) ... (ir) ... Perhaps less frequently at night,
cancer.
with a stronger stream. It would just hopefully
Defendant also had annual physical examinations,
Dr. Gitnick testified: "It is my policy, at the time of
make his quality of life a little better." Dr. Reiter
doubted he would have used a term like "nocturia"
with a patient; he would probably have used words
an annual physical, to have my patients seen, first
to the effect of getting up at night in order to urin-
usually with Dr. Gary Lee Gitnick, in Los Angeles.
by me, then by a urologist, a cardiologist, and a
ate. Dr. Reiter had no recollection of discussing ac-
dermatologist all of whom come to my suite. (iii
tual prostate specific antigen test results with de-
Then we do testing, which generally we have a
series of routine tests, plus any additional tests that
he had mild to moderate benign prostatic hyper-
might be required because of specific complaints."
plasia or an enlarged prostate. Dr. Reiter prescribed
fendant. Also, defendant testified he was never told
Those annual physicals included examination by an
Flomax; defendant explained, "It helps you when
urologist, prostate specific antigen tests, and rectal
you go to the bathroom at night." But defendant
exams. In February i 999, Dr. Gitnick told defendant, "Basically that things are okay other than a few
was "wary" of taking it. As Flomax was prescribed
only as an optional treatment, defendant never took
discomforts and things that (defendant) had." Dr.
the medication.
Gitnick prescribed Flomax for use at defendant's
option. Defendant testified the frequent urinating at
night was an inconvenience, but he never used Flo-
max.
As noted above, Dr. Brodherson had told defendant
a prostate specific antigen result below 4.0 was normaL. Between i 983 and 2002, defendant's prostate
specific antigen results fluctuated between 0.9 and
*3 On February 25, i 999, defendant saw Dr. Robert
Evan Reiter, an urologist, on Dr. Gitnick's recom-
2.0. But on March 8, 2001, defendant's prostate
mendation-for a general urological examination.
his rectal examinations were normaL. Defendant
This was the first time Dr. Reiter saw defendant as
was never told that the prostate specific antigen results were any reason for concern. In 2002, defendant's prostate specific antigen result was over 2.0.
Subsequent test results ranged from 2.0 to 3.3. At
his deposition, Dr. Brodherson was asked whether
a patient. Dr. Reiter saw defendant in Dr. Gitnick's
offce. Defendant testified, "I saw (Dr. Reiter) as a
matter of routine checkup." Defendant told Dr. Reiter he was getting up to urinate two to three times a
night. Dr. Reiter's first diagnosis was, " '(M)ild to
moderate benign prostatic hyperplasia, with mild to
moderate lower urinary tract symptoms.' " Dr. Reiter discussed the results of the examination with de-
specific antigen was 2.7. He was told the results of
the increase in prostate specific antigen between
January 18, 2000 and May 3 i, 2003, from 2.1 to
3.7, was a concern to him. Dr. Brodherson respon-
ded in the negative. Dr. Brodherson testified, "It
fendant. Due to the passage of time, Dr. Reiter
was commensurate with aging and commensurate
could not recall their exact discussions. Dr. Reiter's
in keeping with benign prostatic hyperplasia, which
we know (defendant) had, and is consistent with a
recollections were based on the medical records he
prepared. Dr. Reiter thought he probably would
have used the diagnosis" 'benign prostatic hyper-
plasia' " during their discussion. Dr. Reiter testified
"disorder" was probably a reasonable word to use
in relation to defendant's prostate condition. But Dr.
normal reading of under 4." Dr. Brodherson concluded that at no time did defendant have any
symptoms of benign prostatic hyperplasia that warranted any treatment.
Reiter had no actual recollection of using those
*4 On March 6, 2003, defendant was again ex-
terms. Dr. Reiter testified defendant's case was
amined by Dr. Reiter. This was part of defendant's
mild. Dr. Reiter talked to defendant about Flomax:
"I'm sure that I told him it's to enable him to urinate
annual physical examination. Defendant's nocturia
had continued. Dr. Reiter again discussed Flomax
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Not Reported in CaI.Rptr.3d, 2009 WL 1652971 (CaI.App. 2 Dist.)
NonpublishedlNoncitable (Cal. Rules of
Court, Rules 8.
1l
05 and S.11l0, S.1l15)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
with defendant. Defendant had not taken Flomax
result."
when Dr. Reiter earlier prescribed it. Dr. Reiter
testified he communicated a diagnosis of benign
By the summer of 2003, defendant decided he
prostatic hyperplasia and explained that the Flomax
wanted a second opinion about his prostate health.
was being prescribed to deal with urinary issues re-
He had been told repeatedly not to worr, but he
felt that getting a second opinion was the smart
lated to benign prostatic hyperplasia. Dr. Reiter believed defendant understood that the urinary prob-
thing to do. In support of his summary judgment
lems were related to the benign prostatic hyper-
motion, defendant declared, "In the summer of
plasia condition. Dr. Reiter did not find that defend-
ant's prostate had increased in size. Defendant's
2003, having watched Joe Torre, Rudy Giuliani and
John Kerr fight public battles with prostate cancer,
prostate specific antigen level was 3.3 or 3.4. Dr.
I decided to be even more proactive about monitor-
Reiter's notes of that date reflect, "I explained to
ing my prostate health." In deposition testimony defendant explained: "I was concerned. I thought, let
me just-I'm seeing John Kerr, Joe Torre, Rudy Gi-
(defendant) that I would not be concerned about
any change that is less than 0.8 per year, and I
think, given the very slow rate of change, this is
more likely secondary to benign prostatic hyperplasia a nd not indicative of cancer." In deposition
testimony, Dr. Reiter said he "assume(d)" he again
communicated the benign prostatic hyperplasia diagnosis during the March 6, 2003 examination. Dr.
Reiter discussed with defendant that Flomax was
prescribed to deal with urinary issues related to benign prostatic hyperplasia. Defendant said he had
uliani, these guys are my age and have this problem, let me go be more proactive." Defendant fur-
ther explained: "I was concerned because of my
age, and because (my prostate specific antigen) was
rising a bit. Although everybody was tellng me
there's no problem, I stil was concerned because
my father had died from it and I just wanted to be a
little more proactive."
not taken the Flomax. Dr. Reiter thought he prob-
*5 Defendant saw Dr. Brodherson again on
ably said "benign prostatic hyperplasia"; but he had
September 29, 2003. Defendant's prostate specific
no recollection of describing it as a disorder. Dr.
antigen was 3. i and his rectal examination was normaL. Dr. Brodherson said the results were, "(S)til
okay." Defendant further declared: "Even so, Dr.
Reiter further testified he would not have said the
condition was something defendant needed to be
concerned about. Dr. Reiter explained, "Because
Brodherson agreed that it would not be a bad idea
it's a very common problem, disorder, and his case
was mild, and I'm sure I told him it was simply an
issue of his quality of life." According to defendant,
Dr. Reiter said he was not concerned by the result
because: defendant's rectal examination was nor-
to have additional tests to confirm my prostate
health. I then consulted with (Jerome P. Richie,
M.D.) who was the Chief of Urology at Brigham &
Women's Hospital in Boston." It was Dr. Brodherson who recommended Dr. Richie.
mal; his prostate specific antigen levels were increasing slowly; and a result under 4.0 was normaL.
With respect to the September 29, 2003 examina-
Defendant testified, "All I know is that he told me
tion, Dr. Brodherson testified he never recommen-
to take Flomax."
ded that a biopsy be taken. It was not Dr. Brodher-
In May 2003, Dr. Brodherson examined defendant.
have a biopsy. Dr. Brodherson never recommended
At that time, defendant's prostate specific antigen
a biopsy until defendant brought it up. But when
son's independent opinion that defendant should
level was 3.7. Defendant declared, "Dr. Brodherson
defendant said a friend had suggested getting a
did not tell me that time that I should have a prostate biopsy or take any other action with respect to
my prostate health, and I was not alarmed by the
biopsy, Dr. Brodherson said, "(S)ure, get a biopsy."
Dr. Brodherson agreed, in light of defendant's desire to be more proactive, that it would not be a bad
idea to have additional tests. At his deposition, Dr.
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NonpublishedlNoncitable (CaL. Rules of
Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
Brodherson testified that most people assume that
when a biopsy is done it is to look for cancer. But
in defendant's case, a specific fear of cancer was
not the issue. Dr. Brodherson explained, "That was
They discussed defendant's prostate specific antigen level and family history. Dr. Richie testified, "I
told him that (his father's history) increases his potential risk, because there can be some genetic
not the atmosphere at the time at all" and characterized the decision to pursue a biopsy as a "fishing
expedition."
history alone increases a chance of prostate cancer
On September 30, 2003, defendant saw Dr. Richie.
Dr. Richie replied, "No, i did not." Dr. Richie said
foundation for prostate cancer." Dr. Richie was
asked, "Did you tell (defendant) how much family
if it is your father who does have prostate cancer?"
Dr. Richie told defendant: his prostate specific antigen levels were in the nonnal range and his rectal
that technically, defendant's prostate specific anti-
examination was nonnal; but because defendant's
father had died of prostate cancer and given other
Ritchie stated he was concerned about the trend.
Dr. Richie further testified: "I told (defendant) that
gen readings were in the nonnal range. But Dr.
factors such as defendant's age, Dr. Ritchie strongly
the trend (in his prostate specific antigen readings)
recommended defendant undergo a biopsy. Dr.
Richie was concerned about defendant's prostate
was increasing, although the most recent (prostate
specific antigen) had gone down and that there was
specific antigens and family history. Dr. Richie also
discussed with defendant that there were a number
that the standard was a (prostate specific antigen) of
of studies concerning prostate specific antigen
4 or above was abnonnal, but ... a number of stud-
levels. There was no specific discussion of the studies. Defendant did not remember Dr. Richie saying
that the recommended range for getting a biopsy
was 2.5 to 4.0. Defendant was asked at his depos-
ition, "Did Dr. Richie tell you during any of your
visits with him that it was his opinion that you had
controversy about (prostate specific antigen) levels,
ies suggested that (prostate specific antigens)
between 2.5 and 4 could be in a relative risk range."
Dr. Richie said, "I would have told (defendant) that
the only way to diagnose prostate cancer is with a
biopsy."
a 40 percent chance of having cancer?" Defendant
replied, "He mentioned that." In connection with
his summary judgment motion defendant declared:
"(Dr. Richie) did not tell me that he believed I had
any disorder or problem with my prostate or that I
required any treatment. I understood that the biopsy
was another test and believed it would con
finn all
of the other infonnation indicating that I did not
have prostate cancer. I scheduled an appointment
with Dr. Richie on a non-urgent basis for the biopsy
and it was perfonned (o)n October 10, 2003." Defendant was "shocked" when he learned, on Octo-
ber 15, 2003, that the biopsy was positive for cancer.
Dr. Richie discussed the reason defendant was re-
ferred to him, "(T)he referral was relative to
B. The Cast Insurance Policy
*6 Plaintiff issued a Motion Picture Television Producers Portfolio Policy to Fox Entertainment
Group, Inc. This was a "blanket" policy. Such
policies are issued to movie studios that produce
more than three or four movies a year. The insur.
ance policy covered Fox Entertainment Group, Inc.
productions undertaken during the policy period.
The insurance extended to cast members provided
they completed a Medical Certificate and Affdavit
(medical certificate) and passed a physical exam.
The policy covered losses resulting when particular
cast members were unavailable, due to injury or ilness, during a production period. Defendant understood this was the purpose of
the cast insurance.
(defendant's) (prostate specific antigen) leveL." It
appeared to Dr. Richie that defendant did not spe-
cifically understand the reason for the referraL.
It was undisputed that: on October 10, 2003, defendant underwent a prostate biopsy procedure; on
October 13, 2003, plaintiff submitted to a cast med-
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Page 6
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Nonpublished/Noncitable (CaL. Rules of
Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
ical examination and executed a medical certificate
examination took place in the late afternoon or
in connection with the insurance coverage at issue
evening in some type of retail shop. Dr. Katz de-
here; and on October 15, 2003, defendant was dia-
scribed the beginning of defendant's examination,
gnosed with prostate cancer. In deposition testimony, defendant said he understood that the reason
for the physical examination and the medical certificate was to assist in the process by which a production company obtains insurance to protect itself
against losses ifperfonners cannot work.
early October 2003, I was told that I had to undergo
"... I greeted him, asked him how he was, was there
anything in particular that had occurred since our
last examination, I think it was six months earlier,
what medications he was on...." Dr. Katz described
his memory of the examination as only fair. Dr.
Katz thought the last examination had occurred six
months earlier. Dr. Katz said it was his routine to
ask whether anything had transpired medically
since their last meeting. Dr. Katz further testified,
"I was aware of the fact that his father had prostate
a cast medical exam for Hide and Seek. It was
cancer."
scheduled for October 13, 2003 and it took place in
a retail store where I was being fitted for costumes
someone who identified himself as Dr. Katz, who
*7 Defendant executed the medical certificate. The
medical certificate included the following question
A5: "Please advise if you, to the best of your knowledge and belief have ever been diagnosed with or
has conducted cast exams for other movies I have
treated for anything related to the following condi-
done. Dr. Katz asked me a series of 'yes' or 'no'
tions. Please answer 'yes or no' to each question
questions about my health and then some questions
below and provide full details of any 'yes' answers
Defendant described the medical examination he
underwent for insurance purposes as follows: "In
for Hide and Seek. The exam was conducted by
about when my last medical exam took place, who
on page 3 .... (~) ... (~) 5. disorders of the urinary
conducted it. He collected some infonnation such
track including but not limited to sugar, albumin,
as my blood pressure and weight and then he gave
me a fonn to sign." (Italics omitted.) Defendant
blood or pus in urine, kidney stones, or any other
read the medical certificate "perfunctorily," as this
was a routine matter.
disorder to the bladder, kidney, or disorders of the
genito-urinary system, including but not limited to
the reproductive organs or prostate glands." De-
fendant answered "No." In addition, just above defendant's signature, the "Affdavit and Authoriza-
Dr. Louis Katz conducted defendant's October 13,
2003 medical examination. Dr. Katz described his
tion" section of the medical certificate stated in
routine when conducting a cast medical examina-
part: "I DECLARE AND AFFIRM ... that the state-
tion: "The cast exam obviously is like any history
ments made hereon are tre, correct and complete,
and that I have withheld no infonnation known to
and physical where you review the patient's history.
(~) I also use my own history and physical ques-
tionnaire, in addition to any of the cast medical certificates we use. (~) The patient completes them. (~)
I review particular symptoms that the patient may
me which might alter or otherwise conflct with the
statements made by me." In support of his summary
judgment motion, defendant declared that on Octo-
remark about. (~) First I go through a family history, medications, allergies; medications, of course,
ber 13, 2003, when he executed the medical certificate, he did not believe that he suffered from prostate cancer or any other prostate condition, and,
that are prescribed by physicians or over-
based on what he knew at that time, he trthfully
the-counter products. (~) I go into the indications
answered the questions asked, including questions
for these products. (~) I usually wil ask for the doctor, the personal physician of the individuaL. (~)
And then I usually progress to ... my physical of the
about his prostate health.
patient." Dr. Katz recalled that defendant's medical
The parties agreed the following fact was undisputed, "On October 20, 2003, Fox (Entertainment
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7
Not Reported in Cal.Rptr.3d, 2009 WL 1652971 (Cal.App. 2 Dist.)
NonpublishedlNoncitable (CaL. Rules of
Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2009 WL 1652971 (Cal.App. 2 Dist.))
Group) informed (plaintiff) through its insurance
*8 Defendant fied a summary judgment motion.
broker, of (defendant's) diagnosis and that it was
Defendant asserted: he neither knew nor had reason
anticipated that (defendant) would be unavailable
to suspect, prior to October 15, 2003, that he had
for medical reasons for approximately three
prostate cancer; he trthfully answered the ques-
months." Defen dant's treatment delayed production
of Hide and Seek for nearly three months, from October 27, 2003, until January 19, 2004. Plaintiff
tions on the medical certificate; and he promptly
notified plaintiff of his diagnosis. Plaintiff opposed
the summary judgment motion. Plaintiff presented
covered the loss and paid Fox Entertainment Group,
evidence: there had been an upward trend in de-
Inc., the insured, nearly $2 milion as a result of the
delay. If plaintiff had known defendant had undergone a prostate biopsy it would only have accepted
him for coverage subject to an exception for dis-
fendant's prostate specific antigen levels; there was
orders of
a family history of prostate cancer; defendant was
advised he had a 40 percent chance of developing
prostate cancer; and defendant had experienced ur-
inary symptoms over many years that were consist-
the prostate.
ent with but not necessarily indicative of prostate
disorders including cancer. Plaintiff also presented
C. The Complaint
evidence defendant had been diagnosed with prostatitis and benign prostatic hyperplasia.
Plaintiff fied an October 12, 2006 complaint
against defendant for fraud and negligent misrep-
The trial court overrled the parties' evidentiary ob-
resentation. In its first cause of action for fraud,
jections and granted defendant's summary judgment
plaintiff alleged: "The representations made by defendant ... in the Medical Certificate dated October
13, 2003, were false representations of fact"; the
false representations were made with the intent to
motion. The trial court ruled that because defendant
keep plaintiff "in the dark about the outstanding
biopsy procedure"; defendant knew when he
was not diagnosed with prostate cancer until October 15, 2003, two days after he signed the medical
certificate, he did not make any false statements on
that document. The trial court noted: "Plaintiffs
Medical Certificate did not ask Defendant whether
answered question A5 in the negative that he was
awaiting the results of the prostate biopsy; and defendant knew those results might alter or conflct
with his negative response to question A5. In its
second cause of action for negligent misrepresentation plaintiff alleged: "Defendant ... was negligent
in making the October 13, 2003 representations of
tests. Rather, the Medical Certificate asked whether
Defendant had been 'diagnosed with or treated for
fact in response to question A5 of the Medical Cer-
anything related to ... disorders of the ... prostate
tificate and in the execution of the affrmation inas-
glands.' Defendant's (Prostate Specific Antigen)
much as he knew, or reasonable should have
known, that the results of the biopsy procedure he
had undergone just three days earlier might alter his
negative answer." The gravamen of the complaint is
that on October 13, defendant failed to reveal that
on October 10, 2003, he underwent the biopsy procedure.
he had reason to suspect he had certain disorders,
whether he had been told he needed diagnostic tests
to determine if he had certain disorders, whether he
had undergone any diagnostic tests, or what he had
been told relative to his need for any diagnostic
levels, his risk of having prostate cancer, his noncancer specific symptoms, and his prostate biopsy
procedure were not encompassed within Plaintiffs
question, and are not relevant to the allegations of
the complaint." As to evidence defendant had been
diagnosed with prostatitis and benign prostatic hyperplasia, the trial court concluded: "This evidence
is irrelevant because (it was) raised for the first
time in opposition to summary judgment. Plaintiffs
D. The Summary Judgment Motion
Complaint does not allege that Defendant commit-
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Page 8
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NonpublishedlNoncitable (CaL. Rules of
Court, Rules 8.1105 and 8.1110,8.1115)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
ted fraud or negligent misrepresentation by failng
to disclose his prostatitis and (benign prostatic hyperplasia). As a result, the issue of Defendant's pro-
statitis and (benign prostatic hyperplasia) is not before the Court. (in Even if the Court considered the
issues of prostatitis or (benign prostatic
showing of the nonexistence of any triable issue of
material fact; if he carries his burden of production,
he causes a shift, and the opposing part is then
subjected to a burden of production of his own to
make a prima facie showing of the existence of a
triable issue of material fact... A prima facie show-
hyperplasia), there was no evidence submitted that
(defendant) knew that he had been diagnosed with
or treated for any disorder of the urinary tract (or)
of the part in question. (Citation.)" (Fns. omitted,
prostate gland at the time that he completed the
Cal.App.4th 870, 878.) As we wil discuss in some
ing is one that is suffcient to support the position
see Kids' Universe v. In2Labs (2002) 95
medical certificate on October 13, 2003. Defendant
detail later, the issues to be resolved are limited by
submitted evidence indicating that (defendant's)
those raised in the operative pleadings.
doctors had told him that neither of these conditions
was cause for concern.... Thus the only evidence indicates that, to the best of (defendant's) knowledge
We review the trial court's decision to grant the
summary judgment motion de novo. ( Johnson v.
as of October 13, 2003, (that) neither condition
City of Loma Linda (2000) 24 Cal.4th 61, 65,
constituted a disorder, and he was not obligated to
67-68; Sharon P. v. Arman, Ltd. (1999) 21 Cal .4th
disclose either condition on the Medical Certificate."
Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th
i i 8 i, i 188, disapproved on another point in
at p. 853, fu. 19.) The Supreme Court has held:
"Because (the appeal is) from the trial court's grant
III. DISCUSSION
of summary judgment against (a part), we must
A. Summary Judgment
termine whether triable issues of fact exist to reinstate the action.' ( Wiener v. Southcoast Childcare
i. Standard of Review
Centers, Inc. (2004) 32 Cal.4th 1138, 1142; see
also Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 767.) 'In performing our de novo re-
'independently examine the record in order to de-
view, we view the evidence in the light most favorable to (the appellant)' ( Wiener (v. Southcoast
*9 In Aguilar v. Atlantic Richfield Co. (200 I) 25
Cal.4th 826, 850-851, our Supreme Court described
Childcare Centers, Inc.) ,supra, (32 Cal.4th) at p.
a part's burdens on summary judgment motions as
evidence and 'strictly scrutinize' that of (the re-
follows: "(F)rom commencement to conclusion, the
part moving for summary judgment bears the burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a
i 142), and we 'liberally constre' (the appellant's)
spondent) 'in order to resolve any evidentiary
doubts or ambiguities in (the appellant's) favor'
(ibid.)." ( Q'Riordan v. Federal Kemper Life Assur-
ance Co. (2005) 36 Cal.4th 281, 284; accord,
matter of law. That is because of the general prin-
Jessen v. Mentor Corp. (2008) 158 Cal.App.4th
ciple that a part who seeks a court's action in his
1480,1484-1485.)
favor bears the burden of persuasion thereon.
(Citation.) There is a triable issue of material fact
if, and only if, the evidence would allow a reason-
able trier of fact to find the underlying fact in favor
2. Defendant's Summary Judgment Motion Was
Properly Granted
of the part opposing the motion in accordance
with the applicable standard of proof... (if)(T)he
part moving for summary judgment bears an ini-
a. The law governing misrepresentation in procur-
tial burden of production to make a prima facie
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9
Not Reported in CaI.Rptr.3d, 2009 WL 1652971 (CaI.App. 2 Dist.)
NonpublishedlNoncitable (CaL. Rules or
Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
ing insurance
have had upon the insurer. (Ins.
Code, § 334;
Thompson v. Occidental Life ins. Co., supra, 9
CaI.d at p. 916.) The fact that the insurer has deAs noted above, plaintiff asserted two causes of ac-
manded answers to specific questions in an applica-
tion against defendant-fraud and negligent misrep-
tion for insurance is itself usually adequate to es-
resentation. The elements of a cause of action for
tablish materiality as a matter of law. ( Thompson v.
fraud are: misrepresentation, including nondisclos-
Occidental Life Ins. Co., supra, 9 CaI.3d at p. 916;
ure; knowledge of falsity; intent to induce reliance;
Cohen v. Penn Mut. Life Ins. Co., supra, 48 Cal.2d
justifiable reliance; and resulting damage. ( Robin-
at p. 726.) But if an insurance applicant had no
son Helicopter Co., inc. v. Dana Corp. (2004) 34
Cal.4th 979, 990; Small v. Fritz Companies, inc.
present knowledge of the facts sought, or failed to
appreciate the significance of information related to
(2003) 30 Cal.4th 167, 173.) The elements of a neg-
him or her, incorrect or incomplete responses do
ligent misrepresentation claim are, as described by
the Court of Appeal: "(1) the misrepresentation of a
not constitute grounds for rescission. ( Cohen v.
past or existing material fact, (2) without reason-
Ransom v. Penn Mutual Life ins. Co. (1954) 43
able ground for believing it to be true, (3) with in-
CaI.2d 420, 426; see Ins.Code, §§ 332, 333.)
tent to induce another's reliance on the fact misrep-
Moreover, our Supreme Court has held,
resented, (4) justifiable reliance on the misrepres-
"(Q)uestions concerning ilness or disease do not
entation, and (5) resulting damage. ( Shamsian v.
Atlantic Richfield Co. (2003) 107 Cal.App.4th 967,
relate to minor indispositions but are to be con-
983 (Shamsian.) In contrast to fraud, negligent mis-
mine the general health." ( Ransom v. Penn Mutual
representation does not require knowledge of fals-
Life Ins. Co., supra, 43 Cal.2d at p. 427; accord,
Penn Mut. Life ins. Co., supra, 48 CaI.2d at p. 726;
stred as referring to serious ailments which under-
ity. A defendant who makes false statements '
Thompson v. Occidental Life ins. Co., supra, 9
"honestly believing that they are true, but without
CaI.d at p. 916.) As the Supreme Court explained
reasonable ground for such belief, ... may be liable
for negligent misrepresentation...." (Citations.)' (
Bily v. Arthur Young & Co. (1992) 3 CaI.4th 370,
407-408.)" ( Apollo Capital Fund LLC v. Roth Cap-
in Cohen v. Penn Mut. Life ins. Co., supra, 48
Cal.2d at page 725, the failure to mention a minor
indisposition wil not revoke the policy: "Where an
applicant for insurance is asked generally whether
ital Partners, LLC (2007) 158 CaI.App.4th 226, 243.)
he has had or been treated for any disease or ailment, the failure to mention minor or temporary in-
*10 The present case arises in the specific context
of representations made in the course of acquiring
dispositions is not material to the risk and wil not
avoid the policy. (Citations.) But the rule is otherwise when the applicant is asked specific questions
insurance coverage. An insurer has a right to learn
all that the insurance applicant knows regarding the
state of her or his health and medical history. ( Co-
as to his medical history, and false answers thereto
wil vitiate the contract. (Citations.)" (See
hen v. Penn Mut. Life ins. Co. (1957) 48 CaI.2d
Thompson v. Occidental Life ins, Co., supra, 9
720, 727; Burns v. Prudential ins. Co. (1962) 20 i
CaI.d at p. 916.)
CaI.App.2d 868, 869-870.) The material misrepresentation or concealment of facts concerning the applicant's health and medical history are grounds for
rescission of the policy. ( Thompson v. Occidental
Life Ins. Co. (1973) 9 CaI.3d 904, 916; Cohen v.
Penn Mut. Life ins. Co., supra, 48 Cal.2d at p. 725.)
Materiality is determined solely by the probable
and reasonable effect which trthful answers would
More recently, the Supreme Court discussed the insured's obligation to communicate information in
O'Riordan v. Federal Kemper Life Assurance Co.,
supra, 36 Cal.4th at pages 286-287: "Under California law, every part to an insurance contract
must 'communicate to the other, in good faith, all
facts within his knowledge, which are ... material to
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NonpublishedlNoncitable (CaL. Rules or
Court, Rules 8.1105 and 8.1110,8.1115)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
the contract ... and which the other has not the
means of ascertaining.' (Ins.
Code, § 332.)
'Materiality' is determined by 'the probable and
shortess of breath).) In Cohen, our Supreme Court
upheld a jury verdict in the insurer's favor conclud-
ing the insured's misrepresentations were materiaL.
reasonable influence of the facts upon the part to
whom the communication is due....' (§ 334.)('r)
When an insured has engaged in 'concealment,'
which is defined by statute as the '(n)eglect to communicate that which a part knows, and ought to
communicate' ( (Ins.
Code,) § 330), the insurer may
In contrast, McAulife v. John Hancock Mutual Life
Ins. Co. (1966) 245 Cal.App.2d 855, 856-858, in-
volved only an undisclosed temporary indisposition. The insured successfully applied to reinstate a
lapsed policy. The insured represented that he had
rescind the policy, even if the act of concealment
no injury, ailment, ilness or disease or symptom
was unintentional ( (Ins.Code,) § 33 I). Similarly, a
thereof and had not consulted nor been treated by a
physician during the period his life insurance policy
materially false representation at the time of, or be-
fore, issuance of a policy may result in rescission of
the policy. ( (Ins.Code,) § 359.) Thus, when an applicant for life insurance misrepresents his or her
history as a smoker in order to obtain a nonsmoker
rate, the insurer may rescind the policy. ( Old Line
Life Ins. Co. v. Superior Court (1991) 229
Cal.App.3d 1600, 1603- I 606.)" (Fn.omitted.)
*11 In Cohen v. Penn Mut. Life Ins. Co., supra, 48
was lapsed. It later developed that the insured, dur-
ing the relevant time period, had in fact consulted a
doctor because of a hangover. According to the
Court of Appeal, "The doctor stated that the insured
'has bronchitis, nervous, admits drinking, liver enlarged, had tremor of the hand, blood pressure 130
over 80, pulse I 10, has wheezing with the lungs.' "
(ld. at p. 857.) But there was no evidence the doctor
had communicated those conclusions to the insured.
Cal.2d at pages 723-727, for example, a life insur-
A jury impliedly found the insured's consultation
ance policy was rescinded because the insured, a
medical doctor, failed to disclose a serious heart
problem. The insured specifically represented: he
with the doctor was for a temporary indisposition
had not consulted a physician nor received any
judgment for the insured's beneficiary. The Court of
treatment for his health for 10 years; he was in
Appeal concluded the evidence fully supported the
jury's implied finding. (Id. at pp. 857-858; see also
good health; he had never had a special heart study
or an electrocardiogram; and there had never been
any suspicion of, nor had he been treated for, any
disease of the heart or blood vessels or high blood
pressure. (Id. at p. 723.) The tre facts were that the
insured, who died of a heart attack, had undergone
a special heart study and an electrocardiogram, with
abnormal results, and had been discharged from the
Army because of high blood pressure. (Id. at pp.
only and the insured had not misrepresented any
material fact. The Court of Appeal affrmed the
Ransom v. Penn Mut. Life Ins. Co., supra, 43
Cal.2d at pp. 426-427; Jefferson Standard Life Ins.
Co. v. Anderson (1965) 236 Cal.App.2d 905,
910-9 I I; Pierre v. Metropolitan Life Ins. Co.
(1937) 22 Cal.App.2d 346, 349-350.)
b. Application to the present case
723-725; see also Telford v. New York Life Ins. Co.
(1937) 9 Cal.2d 103, 104-107 (insured represented
she had never been under observation or treatment
Plaintiff argues defendant did not meet his summary judgment burden or, if he did, then a triable
alization during which her left breast was re-
issue of material fact remains in that he was required to disclose that: he had undergone a prostate
moved); San Francisco Lathing Co., Inc. v. Penn
biopsy; he had been told he had a 40 percent chance
in any hospital, and failed to reveal a 10-day hospit-
Mut. Life Ins. Co. (1956) 144 Cal.App.2d 181,
182- I 87 (insured specifically misrepresented he
had never been treated for spitting of blood or
of developing prostate cancer; and he had been
treated "for other prostate disorders," that is, prostatitis and benign prostatic hyperplasia. Plaintiff
does not limit its argument to the matters alleged in
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Page I I
Not Reported in CaI.Rptr.3d, 2009 WL 1652971 (CaI.App. 2 Dist.)
Nonpublished/Noncitable (CaL. Rules of
Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
the complaint-that defendant made false representa-
to be resolved at summary judgment.' (Citations)."
tions in connection with his response to question
A5 insofar as he failed to disclose the prostate
( Conroy v. Regents of University of Cal., supra, 45
Cal.4th at p. 1250, citing Oakland Raiders v. Na-
biopsy. Instead, plaintiff contends: "(Defendant)
tional Football League (2005) 13 i Cal.AppAth
had the burden of presenting evidence showing that
62 i, 648.) The present complaint alleges defendant
fraudulently or negligently failed to disclose in connection with question A5 of the medical certification that he had undergone a prostate biopsy. The
complaint makes no allegations with respect to defendant's interactions with Dr. Katz or defendant's
medical history with respect to prostatitis or benign
during the (medical) exam he disclosed everyhing
he knew regarding the state of his health and medical history that could have had an effect on
(plaintiffs) coverage decision, and disclosed all
facts that materially qualified the facts disclosed."
Plaintiff argues defendant made five positive misrepresentations of fact "during the exam and in the
(medical certificate)": "i. He was in sound health,
free from disease, and in a fit condition. (in 2. He
had never been diagnosed with a disorder of the
prostatic hyperplasia. Therefore, in moving for
summary judgment, defendant had no burden of
persuasion beyond the alleged failure to disclose
that he had undergone a prostate biopsy procedure.
prostate. (in 3. He had never been treated for a disorder of the prostate. (in 4. Statements i, 2, and 3
We agree with the trial court there was no triable is-
were tre, correct, and complete. (if)(and) 5. He
sue of material fact with respect to defendant's fail-
withheld no information known to him that might
altar or otherwise conflict with Statements 1, 2, and
3."
ure to disclose that he had undergone a prostate
biopsy procedure. As noted above, question A5
asked, "Please advise if you, to the best of your
knowledge and beliefI,) have ever been diagnosed
*12 We limit our discussion to the issues raised by
with or treated for anything related to the following
the operative pleadings. A summary judgment mo-
conditions. Please answer 'yes or no' to each ques-
tion is directed to the issues framed by the pleadings. ( Conroy v. Regents of University of CaL.
tion below and provide full details of any 'yes' answers ... disorders of the urinary track ... or any oth-
(2009) 45 CalAth 1244, 1250; Turner v. Anheuser-
er disorder to the ... genito-urinary system, includ-
Busch, Inc. (1994) 7 Cal.4th 1238, 1252; Ann M v.
ing but not limited to the ... prostate glands." The
Pacifc Plaza Shopping Center (1993) 6 Cal.4th
666, 673, superseded by statute on a different point
as stated in Saelzler v. Advanced Group 400, supra,
25 Cal.4th at pp. 767-768.) Those are the only issues a motion for summary judgment must address.
undisputed facts were that defendant had been consistently and repeatedly told over an extended peri-
(Ibid.; Goehring v. Chapman University (2004) 12 i
he got up two or three times a night to urinate. He
did not take any medication to relieve this problem.
He was offered but did not take Flomax to relieve
his symptoms. He was told this was simply a qual-
Cal.AppAth 353, 364.) In a summary judgment
proceeding, the pleadings delimit the scope of the
issues. ( Conroy v, Regents of University of Cal.,
supra, 45 Cal.4th at p. 1250; Teselle v. McLoughlin
(2009) 173 Cal.AppAth 156, 161; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d
367, 381; Orange County Air Pollution Control
Dist. v. Superior Court (1972) 27 Cal.App.3d 109,
od of time that he had no reason to be concerned
about the current state of his prostate health. He had
experienced only a minor indisposition insofar as
ity of life issue. All of his test results-prostate spe-
cific antigen and rectal examination-had been normaL. Contrary to plaintiffs repeated assertion at oral argument, there was no evidence Dr. Richie spe-
cifically told defendant, prior to the biopsy, that
1 i 3.) Our Supreme Court has held, "The materiality
there was a 40 percent probabilty he already had
of a disputed fact is measured by the pleadings
prostate cancer. Dr. Brodherson did not think de-
(citations), which 'set the boundaries of the issues
fendant needed a prostate biopsy. In defendant's
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Not Reported in CaI.Rptr.3d, 2009 WL 1652971 (CaI.App. 2 Dist.)
NonpublishedlNoncitable (CaL. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
view, the biopsy was just another routine test that
he expected would confirm he did not have prostate
velopment, Inc. v. Nakashima, supra, 23 i
cancer. In these circumstances, defendant did not
Cal.App.3d at p. 38 I; Orange County Air Pollution
commit fraud and did not negligently misrepresent
the facts when failed to reveal he had undergone a
Control Dist. v. Superior Court, supra, 27
prostate biopsy procedure in response to question A5.
its allegations, leave to amend its pleading should
be sought before the hearing on a summary judgment motion. ( Law Offces of Dixon R. Howell v.
Valley (2005) 129 Cal.App.4th 1076, 1104, fn. 22;
B. Leave To Amend
pleadings delimit the scope of the issues. ( FPI De-
Cal.App.3d at p. 113.) If a plaintiff wants to change
Distefano v. Forester (2001) 85 Cal.App.4th 1249,
*13 Plaintiff contends the trial court abused its dis-
1264-1265; Leibert v. Transworld Systems, Inc.
cretion in denying it leave to amend its complaint.
(1995) 32 Cal.App .4th 1693, 1699; Weil & Brown,
We reject that argument for two reasons. First,
plaintiff argues-but has not shown-that it
"requested" leave to amend its complaint at the
hearing on the summary judgment motion. Plaintiff
asserts: "At the hearing, (plaintiff) requested leave
to amend its complaint... The Court did not grant
CaL. Practice Guide: Civil Procedure Before Trial
(The Rutter Group 2008) ,r 10:257, pp. 10-97-10-98
(rev.# i, 2008); see 580 Folsom Associates v. Pro-
metheus Development Co. (1990) 223 Cal.App.3d
i, 18; City of Hope Nat. Medical Center v. Superior
Court (1992) 8 Cal.App.4th 633, 639.) The Court of
that request." (Italics added.) Plaintiff cites the entire reporter's transcript of the summary judgment
hearing in support of its assertion. But our review
of the transcript reveals no such request. Rather, in
the course of that hearing, plaintiffs counsel stated,
"If there's any question that the issue (extends bey-
(Citation.)" ( Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn.
ond the alleged failure to disclose the biopsy),
4; accord, Laabs v. City of Victorvile (2008) 163
(defendant) made two misrepresentations and we
Cal.App.4th 1242, 1253.) Absent a timely request
should have been disclosed which wasn't, then
for leave to amend, a part forfeits the right to raise
new issues in response to a summary judgment mo-
(plaintiff) has every right to amend to conform to
proof, whether it's now or at the time of trial after
tion. ( County of Santa Clara v. Atlantic Riclield
the evidence comes in." Hence, there was no request for the trial court to deny. (See Lee v. Bank oj
America (1994) 27 Cal.App.4th 197,2 17 & fn. 15.)
Bostrom v. County of San Bernardino (1995) 35
have now learned a full array of information which
Moreover, it is well settled that defendant could not
raise unplead issues in opposition to plaintiffs summary judgment motion. As discussed above, a sum-
Appeal has held, "A defendant moving for sum-
mary judgment need address only the issues raised
by the complaint; the plaintiff cannot bring up new,
unpleaded issues in his or her opposing papers.
Co. (2006) 137 Cal .App.4th 292, 332-333;
Cal.App.4th 1654, 1663-1664.) Plaintiff did not
seek to amend its complaint prior to the hearing on
the summary judgment motion. The trial court did
not abuse its discretion.
mary judgment motion is directed to the issues
*14 Plaintiff further asserts: "With its Motion for
New Trial, (plaintiff) formally requested leave to
framed by the pleadings. ( Turner v. Anheuser-
fie a First Amended Complaint... The trial (c)ourt
4th at p. 1252; Ann M. v.
refused to hear the motion. A trial court has wide
Busch, Inc., supra, 7 CaL.
Pacifc Plaza Shopping Center, supra, 6 Cal.4th at
discretion to grant leave to amend a complaint. (
p. 673.) Those are the only issues a summary judg-
Atkinson v. Elk Corp. 39 (2003) 109 Cal.App.4th
ment motion must address. (Ibid; Goehring v.
Chapman University, supra, 12 i Cal.App.4th at p.
739, 761.) Absent prejudice, however, a court abuses that discretion if it refuses to grant leave to
364.) In a summary judgment proceeding, the
amend. (Id) (Defendant) did not make a showing
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Not Reported in CaI.Rptr.3d, 2009 WL 1652971 (CaI.App. 2 Dist.)
NonpublishedlNoncitable (CaL. Rules of
Court, Rules 8.1105 and 8.1110,8.1115)
(Cite as: 2009 WL 1652971 (CaI.App. 2 Dist.))
that he would have suffered prejudice if the com-
plaint had been amended. Therefore, the trial court
abused its discretion in refusing to grant (plaintiff)
leave to amend its complaint." On April 28, 2008,
more than a month after the summary judgment was
entered, plaintiff fied a motion for leave to fie a
first amended complaint. Defendant objected to and
moved to strike plaintiffs motion. The trial court
denied the motion for leave to fie an amended
complaint. We review the trial court's order denying the belated motion to amend the complaint for
an abuse of discretion. ( Emerald Bay Community
Assn. v. Golden Eagle Ins. Corp. (2005) 130
Cal.App.4th 1078, 1097; Leader v. Health Indus-
tries of America, Inc. (2001) 89 Cal.App.4th 603,
612.) The burden was on plaintiff to make a strong
showing that the failure to seek to amend earlier
was excused. ( Barnes v. Berendes (1903) 139 CaL.
32, 35; Hulfv. Wilkins (2006) 138 Cal.App.4th 732,
746; Davies v. Symmes (1942) 49 Cal.App.2d 433,
444.) Neither in the trial court nor on appeal has
plaintiff made any showing its failure to seek leave
to amend prior to entry of the judgment was excusable. We find no abuse of discretion.
iV. DISPOSITION
The judgment is affrmed. Defendant, Robert De
Niro, is to recover his costs on appeal from
plaintiff, Fireman's Fund Insurance Company.
We concur: MOSK and KRIEGLER, JJ.
Cal.App. 2 Dist.,2009.
Fireman's Fund Ins. Co. v. De Niro
Not Reported in CaI.Rptr.3d, 2009 WL 1652971
(CaI.App. 2 Dist.)
END OF DOCUMENT
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