ML20034C995
| ML20034C995 | |
| Person / Time | |
|---|---|
| Site: | 07000364, 05000012, 07000135 |
| Issue date: | 05/22/1990 |
| From: | Samuels J MARSH & MCLENNAN, INC. |
| To: | Dinitz I Office of Nuclear Reactor Regulation |
| References | |
| NUDOCS 9006050106 | |
| Download: ML20034C995 (79) | |
Text
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Vit'siilk i
Vqjennan i
Aursh A wlenrun Malur 21215ari lu mto 5treet i
1MO $4 n j aunto hmer Dallas, hwn ?S201 h'lephone 214 979?KO May 22, 1990 Mr. Ira Dinitz Senior Insurance Indemnity Analyst Office of Nuclear Reactor Regulation Mail Stop 12E4 U.
S.
Nuclear Regulatory Commission Washington, D. c.
20555 Re:
McDermott/ Babcock & Wilcox Nuclear Liability Insurance
Dear Mr. Dinitz:
In accordance with Title 10 Section 140.15, enclosed are two certified copies of the following endorsements.
Policy / Certificate Endorsement Number Lynchburg NF-111 132, 133, 134, 135, 136,
& 137 MF-85 68, 69, 70, 71, 72, & 73 Parks Township NF-83 125, 126, 127, 128, 129,
& 130 Parks Township MF-84 56, 57, 58, 59, 60, & 61 Apollo NF-39*
141 l
MF-83 60
- This Certificate is mislabelled; should be NF-39 (not MF-83).
l l
1 9006050106 900522 h
l PDR ADOCK 05000012 1
J PDC 8l
Marsh & Mctennan, Incorporated l
1 Mr. Ira Dinitr.
May 21, 1990 Page 2 These are submitted on behalf of our client, Babcock &
i Wilcox.
Please do not hesitate to call if you have any questions.
j i
- Regards, W
4 4ohn L. Samuels i
Assistant Vice President JLS/pt Enclosure
?
cc:
D. O'Donnell - M&M New Orleans L
1 Nuclear Energy Uability insurance i
)
MUTUAL ATOMIC ENERGY UABluTY UNDERWRITERS WAIVER OF DEFENSES ENDORSEMENT (Extraordinary Nuclear occurrence)
The named insured, acting for himself and every other insured under the policy, and the Insurance Association agree as follows: members of Nuclear Energy Liability 1.
With respect to any extraordinary nuclear occurrence to which the policy applies as proof of financial. protection and which (a) arises out of or results from or occurs in the course of the construction, possession, or operation of the facility, or (b) arises out of or results from or occurs in the course of the transportation of nuclear material to or from the facility.
the insureds and the companies agree to waive (1) any issue or defense as to the conduct of the claimant or the fault of the insureds, including but not limited tot (1) negligence.
(ii) contributory negligence.
(iii) assumption of risk, and (iv) unforeseeable intervening
- causes, whether 5
involving the conduct of a third person, or an act of God.
(2). any issue or defense as to charitable or
. governmental immunity, and (3) any issue or defense based or any statute of limitations if suit is instituted =1 thin three years from the date on which the claimant first knew. or reasonably could h vi., known, of his bodily injury or property damage and the cause thereof.
The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action.
2.
The waivers set forth in paragraph 1. above do not apply to (a) bodily injury.
property damage or environmental damage which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant:
ME-33c(1/1/90)
Page 1 of 3
i (b) bodily injury sustained by any claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefor are either payable required to be provided under any workmen's or compensation or occupational disease lavt (c) any claim for punitive or exemplary
- damages, provided, with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature, this exclusion does not apply to the extent that the claimant has sustained actual damages, measured by the pecuniary injuries resulting from such death but not to exceed the i
maximum amount otherwise recoverable under law.
3.
The waivers set forth in paragraph 1.
above shall be t
effective only with respect to bodily injury.
property damage or environmental damage to which the policy applies under its terra other than this endorsement
- however, that with respect to bodily injury provided, property damage or environmental damage resulting from an extraordinary nuclear occurrence.
the provisions of COVERACES A and C of the policy providing coverage for bodily injury, property damage or environmental damage 1
caused during the policy period by the nuclear energy l
hazard and which is discovered and for which written claim is made against the insured not later than ten (10) years af ter the and of the policy period shall not operate to bar coverage for bodily
- injury, property damage or environmental damage (a) which is caused during the
{
policy period by the nuclear energy hazard and (b) which is discovered and for which written claim is made against the insured not later than twenty (20 years after the date of the extraordinary nuclear occurr)ence.
such waivers shall not apply to, or prejudice the prosecution or defense of any claim or portion of claim which is not within the protection afforded under (a) the. provisions of the policy applicable to the financial protection required of the nsmed insuredt (b) the agreement of indemnification between the named insured and the Nuclear Regulatory Commission made pursuant to Section 170 of the Atomic Energy Act of j
1954 as amended: and (c) the limit of liability provisions of Subsection 170e.
of the Atomic Energy Act of 1954 as amended.
Such waivers shall not preclude a defense bssed upon the failure of the claimant to take reasonable steps to mitigate damages.
ME-33c (1/1/90)
Page 2 of 3 m
m
)
1 4
Subject to all of the limitations stated in this endorsement and in the Atomic Energy Act of 1954, as amended. the waivers set forth in paragraph 1. above shall be judicially enforceable in accordance with their terms against any insured in an action to recover damages because of bodily injury. property damage or environmental damage to which the policy applies as proof of financial protection.
5.
As used herein:
" extraordinary nuclear occurrence" means an event which the Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954 as amended.
" Financial protection" and " nuclear incident" have the meanings given them in the Atomic Energy Act of 1954 as amended.
e
" claimant" means the person or organization actually sustaining the bodily
- injury, property damage er environmental damage and also includes his assignees.
legal representatives and other persons or organizations entitled to bring an action for damages on account of such injury or damage.
This is to ccrtify that this is a true copy of the original Endorsement Leung the ersdorsement numbor and being made part of the NuGar Enciw LbbiFty PoScy (Facihty Form) as des.
ignata hereon. No insurance is afforc' i hereunder.
John L ~> sur de Amer. tan unle.ar Insurms
....uil, Effective Date of this Endorsement January 1, 1990 To form a part of Policy No. MF-84 12 0) A.M.
Starderd t6ae Issued to Babcock & Wilcox Company Date of issue February 16, 1990 For the Subscribing Companies MtifuAL ATOKIC EMEEGY LIABILITY 13EDERVRITERS By S.
y vr s -
Endorsement No.
59 countersigned by ME-33c(1/1/90)
Page 3 of 3 l
t
Nucl0er Energy Uability insurance NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION AMENDATORY END0RSENENT (Facility Fora)
It is agreed that:
1.
INSURING AGREEMENT I is replaced by the followingt X
COVERAGE A - LIABILITY
'To pay on behalf of the insured all suas which the insured shall become legally obligated to pay as covered damages because of bodily injury or property damage, or as covered environmental cleanup costs because of environmental damage.
This coverage applies only to bodily injury.
property damage or environmental damage caused during the policy period by the nuclear energy hazard. and which is discovered and for which written claim is made against the insured, not later than ten (10) years af ter the and of the policy period.
claim or suit against the insured alleging such injury orTh damage. and seeking damages or costs which are payable under the teras of this policy but the companies may make such investigation, negotiation and settlement of the claim or suit as they does expedient.
The companies' duty to defend shall be
- limited, as described in INSURING AGREEMENT IV. if the claim or suit also seeks any of the following, be construed as covered by this policytwhich in no event shall (1) damages for on-site property damages (2) recovery of on-site cleanup costs or any other cleanup costs except covered environmental cleanup costat (3) performance of an insured's environmental protection obligations or on-site cleanup obligationat (4) or any other relief or recovery except payment of covered damages or covered environmental cleanup costs.
The companies' duty to defend c1pias or suits ends when the limit of their liability has been exhausted pursuant to CONDITION 3.
Subject to INSURING AGREEMENT IV.
with respect to any claim or suitthe companies rh.111 pay, incurred in the esferse, including they defend, the costs (1) costs taxed against the insured in any such suit and interest on any judgment thereint (2) premiums on appeal bonds and bonds to release attachments in any such suit, but without obligation to apply for or furnish such bondst 4
__.,_._m
(3) reasonable expenses, other than loss of earnings.
incurred by the insured at the companies' request.
t THE FACILITYC0VERACE g - DAMACE TO FROPERTY OF AN INSU j
With respect period by the nuclear energy hazard to the property of a insured which is away from the facility.
insured those suas which such insured would have been to pay to such legally obligated to pay as covered damages therefor had such property belonged to another.
C0VERACE C - AUgROCATION - 0FFSITE EMPLOYEES With respect to bodily injury caused during the policy L
period by the nuclear energy hazard to any employee of an insured, and which is discovered and for which written claim is made against the insured, not later than ten (10) years af ter the end of the policy period, to pay to the workmen's compensation carrier of such insured as follows:
7 All suas which such carrier would have been entitled recover and retain as damages from another person or to organization. had such person or organization alone been legally responsible for such bodily injury, the rights acquired by subrogation by the payment of theby reason of t
benefits required of workmen's such carrier under the applicable compensation or occupational disease law.
An employer who is a duly qualified self-insurer under such law shall be deemed to be a workmen's compensation carrier within the meaning of this coverage.
This coverage does not apply to bodily injury to any person who is employed at and in connection with the facility: nor shall insurance as required under the laws of any state.it constitute wo 2.
INSURING AGREEMENT II is replaced by the following:
11 DEFINITION OF INSURED The unqualified word " insured" includes (a) the named insured and (b) any other person or organization with respect to his legal responsibility for co/ered damages or covered environmental cleanup costs because of bodily the nuclear energy hazard. injury, property damage or environme Subdivision ' (b) above does not United States of America or any ofinclude as an insured the the Tennessee Valley Authority.
its agencies, except Subject to CONDITION 3 and policy, the the other provisions of this against whom claim is made or suit is brought. insurance a 1
2
,,,,eamimm in i em' 3.
INSURING AGREEMENT III is replaced by the following:
III DEFINITIONS Wherever used in this policy:
" bodily injury" means bodily injury, sickness or disease, including death resulting therefrom, sustained by any person.
" covered damages" means damages because of bodily injury or property damage to which this policy applies:
but covered damages do not include environmental cleanup costs a'
or on-site cleanup costs.
" covered environmental cleanup costs" means only those environmental cleanup costs which are incurred directly for monitoring, testing for, cleaning up, neutralizing or containing environmental damage as the result of an extraordinary nuclear occurrence or a transportation incident but covered environmental cleanup costs do not include on-site cleanup costs.
" disposal site" means any structure. basin, excavation, premises or place prepared as a dump or site for the disposal of waste materials of a general nature, but which may also be used for the disposal of waste materials containing small amounts of nuclear material.
" environment" includes
- land, the atmosphere, and all watercourses, bodies of water and natural resources, whether on, above or below the surface of the ground.
" environmental cleanup costs" include all loss, cost or expense arising out of directive (other than an awardany governmental decree, ordor or of covered w itages in an action at law) requiring or requesting organization to undertake or pay for monitoring, person or for cleaning up. neutralizing or containing contamination testing of the environment. whether the contamination is on, above or below the surface of the ground.
"envirottaental damage" means contamination of the environ-ment by nuclear material.
" environmental protection obligations" include all obligations of any person or organization (1) relating to the protection of the environment from contamination or imminent danger of contamination, and (2) imposed by any governmental
- laws, regulations or ordinances.
" extraordinary nuclear occurrence" means an event which the United States Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as 3
k d0 fin 3d.in th3 At@Bic Energy Act of 1954 amendatory thereof.
or in.any law
" governmental" refers to
- federal, state and local governments and' authorities, and political subdivisions thereof. including courts, agencies
" indemnified nuclear facility" means (1)' "the facility" as defined in any Nuclear Energy Liability Policy (Facility Form) issued by Nuclear Energy Liability Insurance Atomic Energy Liability UnderwritersAssociation or Mutual (2) any other nuclear facility,
, or if financial protection is required pursuant to the Atomic Energy Act of 1954, with thereat.
any activitiesor any law amendatory thereof, respect to or operations conducted
" insured shipment" means a shipment of special' nuclear material, source material.
spent fuel, or wastes produced by the ex waste or tailings uranium or thorium from any traction or con, entration of c
its source material content, herein called "m tprocessed primarily fo ora a erial."
(1) to the facility from any location indemnified nuclear except an transportation of
- facility, but only if the the material is not by predeter-mination to be interrupted by removal of-the mate::ial from a transporting conveyance for any purpose other than the continuation of its transpor-tation. or (2) from the facility to any other location, but only until the material is removed from a conveyance for any purpose other than the transporting continuation of its transportation.
" nuclear energy hazard" explosive means the material, but only if hazardous radioactive.
- toxic, or other properties of nuclear (1) the nuclear material is at discharged or. dispersed the facility or has been therefrom without intent to person or organization. orrelinquish possession or custody (2) the nuclear material is in an insured shi 1
is away from any other nuclear facility and i pment which course of transportation, s in the temporary storage incidental theretoincluding handling (a) - the. territorial limits of
, within and
- America, its territories the United States of Puerto Ricos or or possessions.
(b) international waters or airspace.
or the nuclear material is in the course of provided that transportation between two points locat d e
within 4
the territorial limits described in (a) above and there is no' deviation in the course of the transportation for the purpose of going to any other
- country, going to or returning from astate or nation, except for the purpose ]
as the result of an emergency. port or place of refuge Nuclear 2nergy Liability Policy (Facility Form)" nucI L
l Nuclear Energy Liability issued by Atomic Energy Liability Underwriters. Insurance Association or Mutual facility" also means The term " nuclear (1) any nuclear reactor.
(2) any equipment or device designed or used for (a) separating the isotopes of uranium or plutonium.
(b) processing or utilizing spent fuel, or (c) handling, processing or packaging waste.
(3) any equipment or device used for the processing, 1
fabricating or alloying of special nuclear material if at.any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranius' 233 or any combination thereof. or more than 250 grams of uranium 235, i
(4) any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste.
and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations.
" nuclear material" means source material, material or byproduct material.
special nuclear
" nuclear reactor" means any apparatus designed or used to sustain. nuclear fission or a self-sustaining chain reaction or to contain a critical mass of fissionable material.
"on-site cleanup costs" include all loss, arising out of on-site cleanup obligations. cost or expense "on-site cleanup obligations" include all obligations any person or organization, imposed by common law or of otherwise, to undertake or pay for monitoring, testing by nuclear material at the facility, whether the mat is on. above or oelow the surface of the ground.
"on-site property damage" includes all property damage to 1
any property at the facility, whether the property is on.
~
R above or below the surface of the ground, other - than aircraft, watercraft or vehicles licensed for highwa'y use, 1
5 L -
_ _. _. _ _ ~ _
+.
t provided such aircraf t, watercraft or vehicles are not used in connection with the operation of the facility.
" property damage" means: physical injury to or destruction or radioactive contamination of property, and loss of use of property so injured, destroyed or contaminated,. and loss of use of property while evacuated or withdrawn from use because possibly so contaminated or because of imminent _ danger of contamination.
" source material,"
and i
" byproduct material" have the meanings given them in the Atomic Energy Act of 1954, or in any law amendatory.
thereof.
" spent fuel" means any fuel element or fuel component, solid or liquid, which has. been used or exposed to radiation'in any nuclear reactor.
"the facility" means the facility described in the declarations and includes the location designated in Item 3 of the declarations and all property and operations at i
such location.
" transportation incident" means a discharge or dispersal of nuclear material from an insured shipment cau collision or upset of the transporting conveyance, sed by accident that breaks open, punctures or ruptures the or an shipping containers or containment thereont but only if.
both the discharge or dispersal and the collision, upset or accident take place away from any nuclear facility and L
away from any disposal site, i
and both. occur in the course of the transportation, including handling and temporary L,
storage incidental thereto.
" waste" means any waste material (1) containing byproduct material and (2) resulting from.the operation by any person or-k organization of any nuclear facility included within the definition of nuclear l1 (1) or (2) thereof.
facility under paragraph 4.
INSURING AGREEMENT IV is replaced by the following and U
INSURING AGREEMENT IV-A added' by the
" Amendment of l1 Coverage Endorsement for Workers claims (Facility Form)"
continues to apply:
IV LIMITED DEFENSE OF PARTIALLY COVERED CLAIMS OR SU
(-
The following partially. covereprovisions apply with -respect to any
..'... aim or suit duty to defend has been limited by INSURING AGREEMENT I:for which
-(1)
The companies will defend the claim or suit unless i
the companies and the first named insured mutually agree on a different dnfense arrangement.
By making i
6 h
5
l.
(. *.
such a defense, the companies shall not be considered as having waived their rights under this policy - to deny payment or reimbursement of the items not covered.
(2)
As soon as practicable, the first named insured, acting on behalf of all insureds, and the companies shall endeavor to reach an equitable arrangement for handling the defense and sharing the costs thereof.
(3)
The companies' share of defense costs shall not exceed the portion of the total defense costs that represents the costs which would be reasonably and necessarily incurred in the defense of the claim or o
suit in.the absence of any claim or-demand for the items not covered.
(4)
The companies shall have a right to contribution.
from the first named insured for all defense costs as-they are incurred in excess of the amount of the companies' share.
including reimbursement. by the first named insured of all such excess costs paid by the companies.
(5)
If, the companies and the first named insured cannot agree on the companies' share of defense costs the dispute shall be submitted, as a condition prec, dent to any right of recovery on this policy.-to arbitra-e tion for a final and binding r6 solution, as provided in Condition 19.
5.
In EXCLUSIONS (d) and (e), and in all endorsements to this policy relating thereto, the words
" bodily injury or property damage" are replaced by " bodily injury, property damage or_ environmental damage."
6.
EXCLUSION (f) is-replaced.by the following exclusion:
[This policy does not apply:)
(f) to on-site property damage 7.
In CONDITION 3 and in all endorsements to this policy modifying the dollar amount of the limit of liability stated in Item 4 of the declarations, the words " bodily injury or property damage" are replaced b property damage or environmental damage."y " bodily-injury, 8.
In CONDITION 4 and in all endorsements to this policy modifying the dollar amount of the total aggregate liability of the companies with respect to a common occurrence:
(a) the words " bodily injury or environmental damage"y injury, property damage" are replaced by "bodil property damage or
- and (b) the words " bodily injury and property damage" are replaced by
" bodily injury, property damage and environmental damage."
7 i
e
~ 9 In CONDITIONS 5 this policy relating thereto,11, 15 and 18. and in all endorsements t the words " bodily property damage" are replaced b o
damage or environmental damage."y " bodily injury injury or property 10.
CONDITION 19. DECLARATIONS. is renumbered CO DITION 20.
11.
The following CONDITION is added to the poli cy:
19' OF INSURING AGREEMENT IVARBITRATION CATION All such disputes subject to AGREEMENT IV shall be submitted to a Board paragraph (5) of INSURING (the " Board") for a final and of Arbitration dispute.
binding _ resolution of the-There shall be two parties to the arbitrati named insured, duly authorized' acting on behalf of all insureds as their on:
the first representative, Liability Insurance Association, and Nuclear acting Energy companies as their duly authorized representativeon behalf of the Except to the extent the parties otherwise, the following principles will apply:
mutually agree (a)
The arbitration will take place in New York, New
- York, and will be governed by the laws of the State of New York.
(b)
Either party may begin the process of arbit giving intention to donotice to the other party in writing of its ration by so and the name of the that it has appointed.
(c) arbitrator The other party shall then appoint in writing an arbitrator and the arbitrators shall appoint in The umpire shall act as chairman of the Bowr (d)
If a party fails to name its a
on.
ard.
thirty (30) days of the other arbitrator within request that it do so.
the party's written appoint an arbitrator for the party in default requesting party may (e)
If the two arbitrators fail to agree on the selection of an umpire within thirty (30) they have both been appointed.
days after name two, each of them choice shall be made by drawing lots.of whom the other sha (f)
The arbitrators The and umpire shall be officers former executive or executive companies officers of insurance licensed to do business in the United States or of organizations designated named insured under a Nuclear Energy Liability P l as the first issued by Nuclear Energy Liability ' Insurance Association o icy or Underwriters Mutual Atomic Energy Liability following shallprovided that the current employees of the without the consent of both parties:
not be eligible for service i
8
}
l 9
' ~ ' ' ^
_ _ _ _ _ ~. _ ~ - - - - ' ' ' " ' ~
'. 5 (1) any party or likely party to the underlying claim or suits (2)
American Nuclear Insurers.
MAERP Reinsurance Association or their members: or (3) any other - insurer or reinsurer which has casualty insurance or reinsurance in force on any of the foregoing which may M materially affected by the Board's decision.
(g)- Within thirty (30) days after the appointment of the umpire.- each party shall submit to the Board.
its case in writing (h)
The Board shall determine'its rules of procedure, and the nature and extent examination. or of any discovery, testimony, cross-examination of witnesses and oral ar members gument permitted.
The decision of any two of the Board shall be final and binding on all parties.
All discovery, submissions of evidence.
hearing of witnesses and argument shall be completed within sixty (60) days of the appointment of the t
thirty (30) days. umpire, provided the Board may grant one exten (1)
The arbitrators and the umpire are not to be bound by any strict rules of legal procedure, evidence or legal precedents.
They shall.
by the terms of this policy an. however, be governed L
d shall have no power L
to add to or change its provisions.
Subject to this admonition, they shall interpret the relevant provisions of this policy as an honorable business agreement, and shall be entitled to decide, in accordance with such provisions together with the other materials submitted to them. what they think is the fair and right thing to be done between the parties from a business point ~ of view, without favoring the interest of-either party.
(j)
The Board shall make its award in writing within thirty (30 days after the close' of the period, including )'any extension granted, described in paragraph (h) above.
(k)
If the Board fails to make an award within the time prescribed by paragraph (j) above, then unless an extension is agreed to #oy the
- parties, a new arbitration shall be commenced and completed in accordance with the procedure set out in paragraphs (a) through (j) - above.
(1)
The award of the Board signed by any two members shall be final, not subject to appeal and binding on all parties, including all insurers policy and all insureds thereunder.
subscribing the be treated as a matter involving interstate.commerceThe award shal and may be filed or confirmed in any court of competent jurisdiction.
state or federal, and judgment thereon entered and enforced.
with the law and practice of the forum. in accordance I
T 9
L
f.,
(m)
Unless the Board decides otherwise, each party shall pay the expenses of the arbitrator appointed by or for it and one half of the other costs of arbitration.
(n) 'If an arbitrator or umpire is unable or unwilling to act. a new arbitrator or umpire, as the case may be.
shall be appointed to act in his or her place. in accordance with the provisions set forth above.
(o)
All materials relevant to the arbitration shall be submitted to the Board in triplicate and the filing party shall send simultaneously-a copy thereof to the opposing party.
12.
This endorsement applies to all claims for damages, costs.
expenses or other relief or recovery for which coverage is sought under this policy, and which are first made in writing against any insured on or after the effective date of this endorsement stated below.
This is to certify that this is a true copy of the original Endors. ment hwing the endorsement numbor and being made part of the Ndear Enaray Liabitty Pohey (F :inty Form) as des.
ignated ercon. No in3u nce is n'for hereunder.
M.
John L. troedd, Vre lhi&nt Unde Amencan Nudear insurers 10 E!fective Date of this Endorsement January 1. 1990 To form a part of Policy No NF,
12:01 A.M. Standard Time Issued to Babcock & Wilcox Compg y m
Date of Issue _
J g g h 1990 _
For the su ribing c~ panies By
~
N d
PRESIDENT Endorsement No 130 countersigned by iE-71 (1/1/90)
ll iiIh lI II "II o.
\\#
Nuclear Energy Uability insurance l
NUCLEAR ENERGY UABILITY INSURANCE ASSOCIATION WAIVER OF DEFENSES ENDORSEMENT (Extraordinary Nuclear occurrence)
Effective August 20, 1988, the named insured, acting for himself and-every other insured under the policy, and the members of Nuclear Energy Liability Insurance Association agree as follows:
1.
With respect to any extraordinary nuclear occurrence to which the policy applies as proof of financial protection and which (a) arises out of or results from or occurs in the course of the construction, possession, or operation of the facility, or (b) arises out of or results from or occurs in the course of the transportation of nuclear material to or from the facility, the insureds and the companies agree to waive (1) any issue or defense as to the conduct of the claimant or the fault of the insureds, including but not limited to:
(i) negligence, (ii) contributory negligence, (iii) assumption of risk, and (iv) unforeseeable intervening _ causes, whether involving the conduct of a third person, or an act of God, (2) any issue-or defense as to charitable or governmental immunity, and (3) any issue or 'dafanse based on any statute of limitations if suit is instituted within three years from the date on which the claimant first knew, or reasonably could have known, of his bodily injury or property damage and the cause thereof.
The waiver of ' any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action.
2.
The waivers set forth in paragraph 1. above do not apply to NE-33b Page 1 of 3 j
f e
(a) bodily injury or property damage which is intentionally i
sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused-by the claimant; (b) bodily injury sustained by any claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefor are either payable or required to be provided under any workmen's compensation or occupational disease law; (c) any clain for punitive or exemplary damages, provided, with respect. to any claim for wrongful death under any State law which provides for damages only punitive.in nature, this exclusion does not apply to the. extent that the claimant has sustained actual
- damages, measured by the pecuniary injuries resulting from such death but not to exceed the maximum amount otherwise recoverable under law.
3.
The waivers set forth in paragraph 1.
above shall be effective only with respect to bodily injury or property I
damage to which the policy applies under its terms other than-this endorsement; provided, however, that with~ respect to bodily injury or property damage resulting from an extraordinary nuclear occurrence, Insuring Agreement IV
" Application of. Policy"e shall noe operate to bar coverage, for bodily injury or property Gmage (a) which is caused i
during the policy period by tL nuclear energy harard and (b) which is discovered and fo.- which written claim is made against the insured not later than twenty-years after-i the date 'of the. extraordinary nuclear occurre(20) nce.
Such waivers shall not apply to, or prejudice the-prosecution or defense of any claim or - portion of claim which is not within the protection afforded under j
(a) the provisions. of the policy applicable to the financial protection required of the named insured; (b) the agreement of indemnification between the named i
insured and the Nuclear Regulatory Commission made pursuant to Section 170 of the Atomic Energy Act of 1954, as amended; and (c)' the limit of liability provisions of subsection 170e.
of the Atomic Energy Act of 1954, as amended.
L Such waivers shall not preclude a defense based upon the failure of the claimant to take reasonable steps to mitigate I
damages.
4.
Subject to all of the limitations stated in this endorsement and in the Atomic Energy Act of
- 1954, as amended, the waivers set forth in paragraph
- 1. above shall be judicially enforceable in accordance with their terms against any insured in an action to recover damages because
(-
l l~
NE-33b Page 2 of 3 i'
r-o f' bodily. injury or property damage to which the policy applies as proof of financial protection.
5.
As'used herein:
" extraordinary nuclear occurrence"' means an event which the Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, as amended.
" Financial protection" and
" nuclear incident" have the-meanings given them in the Atomic Energy Act of 1954, as amended.
" claimant" means the person or organization actually s
sustaining the bodily in or property damage and. also assignees, jury includes his legal representatives and other
. persons or organizations entitled to bring an action for damages on account of such injury or damage.
This is to certify that this is a true copy of the original Eridorocment havin:a the endorsement number and being made part of the Nucicar Encigy Liability PoFcy ( :cihty Form) as des-ignated iercon No inst w" '
- J hereunder.
.M.
John L ( ttrocchi, Vee Prwdent Underwn American Nuclear insurers Effective Date of this Endc ue ent August 20, 1988 To form a part of Policy No. NF-83
-12:01 A.M. Standard itse Issued to Babcock & Wilcox Company Date of issue February 16, 1990 For the cribing panies
=
By
)
\\Pfesident
=
Endorsement No.
125 countersigned by NE-33b Page 3 of 3
l-t L
Nuclear Energy Liability insurance NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION l.
l CMANGES IN SUBSCRillNG COMPANIES AND IN THEIR PROPORTIONATE LIABILITY ENDORSEMENT CALENDAR YEAR 1990 1.
It is agreed that with respect to bodily injury, property damage or environmental l
damage caused, during the effective period of this endorsement, by the nuclear l
energy hazard:
The word " companies" wherever used in the policy means the subscribing a.
j-companies listed below, i
l b.
The policy shall be binding on such companies only, Each such company shall be liable for its proportion of any obligation c.
assumed or expense incurred under the policy because of such bodily injury, i
property damage or environmental damage as designated below.
l' l
2.
It is agreed that the effective period of this endorsement is from the beginning t
of the effective date of this endorsement stated below to the close of December N
31, 1990, or to the time of the termination or cancellation of the policy, if _
sooner.
l tm g -
Aetna Casualty & Surety Co.
12.917337%
I Allianz Insurance Ccapany 1.515634%
l.
" 3 _[.
Allstate insurance Cospany 5.535510%
.go 12 5 American Home Amourance Co.
0.692369%
i m -N5 Continental Casualty Company 5.341750%
'S 3S Continental Irwurance company 10.333870%
t 2 Federal Insurance Company 2.755699%
-0 1
Ceneral Ins. Co. of America 1.722312%
(
r Hanover Insurance Ccapany 0.595059%
?
Hartford Fire Insurance Co.
10.333870%
l
' 8 C h +g g
Highlands.'rsurance Compw1y 0.344462%
~{D eip f. %'q Home Indearilty Company 1.614667%
.2 Ins. Co. of North America 7.750403%
9 8 L
Motors Insurance Corporation 0.430578%
.s ] [d, 8 Chlo Casualty Irsurance Co.
0.172231%
.,c t.; }
Providence WeahinSton Ins. Co.
0.193760%
- f. y:
Rellorce Insurance company 0.516694%
5
. @5
.g Royal Ins. Co. of Amerlee 3.616855%
,M M, o 1p St. Paul Fire & Marine Ins. Co.
5.991922%
~ - ] 2.
State Farm Fire & Casustty Co.
0.861156%
2 ti **
Tokio Marine & Fire Ins. Co.
0.516604%
EfEN
- h j Transamerica insurance Co.
0.861156%
- 8. [; j %
4 Travelers Indonesity Company 12.856195%
- o D y 2 p/ A[t:
)
7.
U. S. Fire Insurance Company 2.325121%
L; g6 m
,.'E U.S. Fidellty & Guaranty Co.
8.611558%
M, B
Jt Uniwesel Underwriters Ins. Co.
0.172231%
M 5!
1-Zurich Insurance Cenpany 1.420o07%
%i
,I Total 100.0000001 NE 90 Effective Date of this' Endorsement January 1. 1990 To form a part of Policy No.
NF-111 12:01 A. M. Standard time Issued to Babcock & Wilcox Company
/"
For the Subsq)ibing C panies, D2te of Issue Aoril 1. 1990 r
By
'1 add h N
President Endorsement No.
139 countersigned by
(
Nuclear Energy Liability Insurance MUTUAL ATOMIC ENERGY LIABILITY UNDERWRITERS a
WAIVER OF DEFENSES ENDORSEMENT (Extraordinary Nuclear occurrence)
Effective August 20,
- 1988, the named
- insured, acting for himself and every other insured under the policy, and the members of Nuclear Energy Liability Insurance Association agree.
as follows:
1.
With respect to any extraordinary nuclear occurrence to which the policy applies as proof of financial protection and which (a) arises out of or results fron or occurs in the course of the construction, possession, or operation of the facility, or (b) arises out of or results from or occurs in the course of the transportation of nuclear material.to or from the facility, the insureds and the companies agree to waive (1) any issue or defense as to the conduct of the claimant or the fault of the insureds, including but not limited to:
(1) negligence, (11) contributory negligence,
.(111) assumption of risk, and (iv) unforeseeable intervening
- causes, whether involving the conduct of a third person, or an act of God, i
F (2) any issue or defense as to charitable or governmental immunity, and (3) any issue or defense based 'on any statute of limitations if suit is instituted within three years from the date on which the claimant first knew, or reasonably could have known, of his bodily injury or property damage and the cause thereof.
i The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise--
be deemed jurisdictional or relating to an element in the cause.of action.
2.
The waivers set forth in paragraph 1. above do not apply to
.ME-33b Page 1 of 3
~
E i.
(a) bodily injury or property damage which is intentionally sustained by the claimant or which
{
results from a nuclear incident intentionally and wrongfully caused by the claimant; i
(b) bodily injury _ sustained by any claimant who_ is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits-therefor are either payable or required to be provided under any workmen's compensation or occupational disease law; 1
(c) any-claim for punitive or exemplary
- damages, provided, with respect to any. claim for wrongful death under any State law which provides for damages only punitive in nature, this exclusion does not apply to the extent that the claimant has sustained-
. actual damages, measured by the pecuniary injuries j
resulting from such death but not to exceed the maximum amount otherwise recoverable under law.
3.
The waiver = set forth in paragraph 1.
above shall be effective only with respect to bodily injury or property damage to which the policy applies under its terms other-than this endorsement;-
provided,- however, that with 1
l respect to bodily injury or property damage resulting from-I extraordinary nuclear. occurrence, Insuring Agreement an IV,
" Application of Policy",
shall not operate to bar coverage for bodily injury or property damage (a) which is caused during the policy period ' by the nuclear energy hazard and (b) which is discovered and for which written claim is made against the insured not later than twenty.
(20) years after the date of the extraordinary nuclear occurrence.
L Such waivers shall not apply to, or prejudice the.
prosecution or defense of any claim or portion of claim which is not within the protection afforded under (a) the provisions of the policy-applicable to the financial protection required of the named insured; (b) the agreement of indemnification between the named insured and the Nuclear Regulatory Commission made pursuant to Section 170 of the Atomic Energy Act of 1954, as-amended; and (c) the limit of liability provisions of Subsection 170e.
of the Atomic Energy Act of 1954, as amended.
Such waivers _shall not preclude a defense based upon the failura of the claimant to take reasonable steps to mitigate damages.
l ME-33b Page 2 of 3
=
h ':
4.
Subject to all of the limitations stated in this endorsement and in the Atomic Energy Act of 1954, Las amended, the waivers set forth in paragraph 1. above shall be judicially enforceable in accordance with their ' terms against any insured in an action to recover damages because of bodily injury or property damage to which the '
policy applies as proof of financial protection.
i 5.
As used herein:
" extraordinary nuclear occurrence" means an event which the Nuclear Regulatory Commission has determined to be'an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, as amended.
" Financial protection" and " nuclear ' incident" have the meanings given them in the Atomic Energy Act of 1954, as amended.
" claimant" means the person or organization actually.
sustaining the bodily injury or property damage and also includes his assignees, legal representatives and other i
persons or organizations entitled to bring an action for j
damages on account of such injury or damage.
i This is to certify that this is a true copy cf the original
-l Enderwment hm ing the ender:.cment number and being made part cf the NucWr Encurf Liabi:ity f%ey (Facky Form) as des-i cnated he con. No insurance is afforu hereunder.
Jahn L t.. rf ie j
Amo m xtw insums 1
l t
Effective'Date of l
this Endorsement
. August 20, 1988 To form a part of Policy No, MF-85 l
12:01 A.M.
stanoaro eine Issued to:
Babcock & Wilcox Company Date of issue February 16, 1990 For the Subscribing Companies MImIAL ATOKIC IDGDtGY LIABIIJTY IMDERVRI By
'A '
k_.,..
y Endorsement No.
68 Countersigned by ME-33b Page 3 of 3 l
1
=
Nuclear Energy-Liability Insurance MUTUAL ATOMIC ENERGY LIABILITY UNDERWRITERS SUPPLEMENTARY ENDORSEMENT WAIVER OF DEFENSES REACTOR CONSTRUCTION AT THE FACILITY Effective August 20, 1988, it is agreed that in construing the application of paragraph 2(b) of the WAIVER OF-DEFENSES ENDORSEMENT ME-33b with respect to an extraordinary nuclear occurrence occurring at the
- facility, a
claimant who is employed at the facility in connection with the construction of nuclear reactor with respect to which no operating license a
has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the extraordinary nuclear occurrence takes place if:
(1) the claimant is employed exclusively in connection with the construction of a nuclear reactor, including all related equipment and installations at the facility, and (2) no operating license has been issued by the Nuclear Regulatory Commission with respect to the nuclear reactor, and (3) the claimant is not employed in connection with the g
possession,
- storage, use or transfer of nuclear y
material at the facility.
Thh is to certily that this is a true copv of the original Endorocment having the endorsement number and being made part of h Nortm Eoc:;v Unbh Pohcy ("acdity Form) as des-igna h :ecn. No Insurance is affor d hereunder.
.T ht otwo, 6:e, wueent-uneen Asuncn ducic.w IMurers 2
Effective Date of this Endorsement August 20. 1988 To form a part of Policy No. MF-85 12:01 A.M.
Standard time Issued to Babcock & Wilcox Company Date of issue February 16, 1990 For the Subscribing companies MirrDAL ATOKIC DERGY LIABILITY UNDER By
@ Al %_ /C Endorsement No.
69 countersigned by
- T ME-39b
1 c
Nuclear Energy Liability insurance MUTUAL ATOMIC ENERGY LIABILITY UNDERWRITERS
\\
Restriction of Companies Oblication to Defend, Investicate, Necotiate or Settle Any Claim or Suit (Section 170 0. of the Atomic Energy Act of 1954, as amended)
Effective August 20, 1988, it is agreed that whenever, pursuant to subsection 170 0.
of the Atomic Energy Act of 1954, as
- amended, an appropriate U.S.
District Court determines that liability from a single nuclear incident may exceed the limit of liability.under the applicable limit of liability under subsection 170 e.(1) (A), (B) and (C) of the Atomic Energy Act of
- 1954, as
- amended, the companies obligations under Insuring Agreement I,
to defend, investigate, negotiate or settle any claim or suit under the policy do not include any obligation that would necessitate or result in the companies incurring legal i
l
- costs, including costs of initiating, prosecuting, investigating, settling, _or defending claims or suits, which are not authorized for payment by a court pursuant to such subsection 170 0.
This is to certify that t:! -
(
Endxwment havina thc\\?, I
- '*D?'(f I'0 m W int $
fcf,_
}l h
Imrt i;
John 1. r.
Ammcon..g g
ucwr %,,,; " * "">mer Effective Date of this Endorsement August 20, 1988 To fors a part of Policy No. MF-85 12:01 A.M. Standard time 1
Issued to Babcock & Wilcox Company Date of issue February 16, 1990 For the Subscribing Cospanies MFFDAL ATCHIC ENERGY LIABILITY WWERURITERS By
'T. O y
ws Endorsement No.
70 countersigned by HE-70
i g-Nuclear Energy Uability insurance MUTUAL ATOMIC ENERGY UA81UTY UNDERWRITERS WAIVER OF DEFENSES ENDORSEMENT (Extraordinary Nuclear occurrence) e The named insured. acting for himself and every other insured under the policy, and the members of Nuclear Energy Liability Insurance Association agtee as follows:
1 l
1.
With respect to any extraordinary nuclear occurrence to f
l which the policy applies as proof of financial protection l
and which I-(a) arises out of or results from or occurs in the course of the construction, possession, or operation of the facility or-(b) arises out of or results from or occurs in the course of the transportation of nuclear material to or from the facility, the insureds and the companies agree to waive (1) any issue or defense as to the conduct of the claimant or the fault of the insureds, including but not limited to (1) negligence.
(11) contributory negligence.
(iii) assumption of risk. and (iv) unforeseeable intervening causes.
whether L
involving the conduct of a third person. or an
~
l act of. God, i
(2) any issue or defense as to charitable or governmental immunity and (3) any issue or defense based on any statute of limitations if suit is instituted within three years from the date on which the claimant first knew. or reasonably could have known, of his bodily injury or
)
i property damage and the cause thereof.
The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise l
be deemed jurisdictional or relating to an element in the cause of action.
i' 2.
The. waivers set forth in paragraph 1. above do not apply to t
(a) bodily
- injury, property damage or environmental damage which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wron3 fully caused by the claimant:
.ME-33c (1/1/90)
Page 1 of 3, 1
1
(b) bodily injury sustained by any claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefor are either payable or required to be provided under any workmen's compensation or occupational disease law:
(c) any claim for punitive or exemplary
- damages,
- provided, with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature, this exclusion does not 1
apply to the extent that the claimant has sustained actual damages.- measured by the pecuniary injuries resulting from such death but not to exceed the maximum amount otherwise recoverable under law.
3~
The waivern set forth in paragraph 1.
above shall be effective only with respect to bodily injury, property damage or environmental damage to which the policy applies under its terms other than this endorsement
- however, that with respect to bodily injury, provided, property damage or environmental damage resulting from an extraordinary nuclear occurrence,- the provisions of COVERAGES - A and. C of the. policy providing coverage for bodily. injury, property damage or environmental damage caused during the policy period by the nuclear energy hazard and which is discovered and for which written claim is.made against the insured not later than ten (10) after the and years of'the policy period shall not operate to bar coverage for bodily injury,- property damage or environmental damage (a) which is caused during the policy period by the nuclear energy hazard and (b) which is discovered and for which written claim is made against=
the insured not later. than twenty years after the date of the extraordinary nuclear occu(20) rrence.
Such waivers shall not apply to, or prejudice; the prosecution or - defense of any claim or portion of claim which is not within the protection afforded under (a) the provisions of the policy - applicable to the financial protection required of the named insured:
(b) the agreement of indemnification between the named-insured and the Nuclear Regulatory Commission made pursuant to Section 170 of the Atomic Energy Act of 1954, as amended: and (c) the limit c! silbility provisions of Subsection 170e, of the Atomic Energy Act of 1954, as amended.
Such waivers shall not preclude a defense based upon the failure of the claimant to take reasonable steps to mitigate damages.
ME-33c. (1/1/90)
Page 2 of 3
c.
4 Subject to all of the limitations stated in this endorsement and in the Atomic Energy Act of 1954, as amended, the waivers set forth in paragraph 1. above shall be-judicially enforceable in accordance with-their terms against any insured in an action to recover damages because of bodily injury. property damage or environmental damage to which the policy applies as proof of financial protection.
5.
As used herein:
" extraordinary nuclear occurrence" means an event ~ which the Nuclear Regulatory Commission-has determined to be an extraordinary nuclear occurrence as defined in'the Atomic Energy Act of 1954 as amended.
" Financial protection" and " nuclear incident" have the meanings given them in the Atomic Energy Act of 1954, as amended.
" claimant" means the person or organization actually sustaining the bodily injury.. property damage or environmental damage and also includes his assignees, legal representatives and other persons or organizations entitled to bring an action for damages on account of such injury or damage.
This is to certify that this in a truc copy of the cri#nal Endorsement having the endorsement nwnber md being made put of the Nudear Energv LMx$ty Pc' icy adii:9 Forn0 as des-ignatc ' berean. Na Ingram., a aHe :d hereunder.
.S. O.<w fd r
Johti L ' tautt(chi, Vke Progkrg Undm, a
AnwtKan Nudtar h18uret1 Effective Date of
'this-Endorsement January 1, 1990 To form-a part of Policy No. MF-85 12:01 A.M. starderd time Issued to Babcock & Wilcox Company Date of issue February 16, 1990 For the Subscribing companies MiffUAL ATOKIC BIBBCT LIABILITT (MDERURITERS By
.N.
Mb y
wm Endorsement No.
71 Countersigned by i
HE-33c (1/1/90)
Page 3 of 3 i
Nuclear Energy Liability insurance MUTUAL ATOMIC ENERGY LIABILITY UNDERWRITERS SUPPLEMENTARY ENDORSEMENT WAIVER OF DEFENSES REACTOR CONSTRUCTION AT THE FACILITY It is agreed that in construing the application of paragraph 2(b) of the WAIVER OF DEFENSES ENDORSEMENT NE-33c with respect to an extraordinary nuclear occurrence occurring at the facility.
a claimant who is employed at the facility in connection with the construction of a nuclear reactor with respect to which no operating license has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the extraordinary nuclear occurrence takes place if:
(1) the claimant is employed exclusively in connection with the construction of a nuclear reactor including all related equipment and installations at the facility, and (2) no operating license has been issued by the Nuclear Regulatory Commission with respect to the nuclear reactor, and (3) the claimant is not employed in connection with the possession,
- storage, use or transfer of nuclear material at the facility.
This is to cert:lv that thh is a true copy of the cdginal Endotscm:nt hwire the endarzmant number and being made part of the Nuear Enarev Legg Nej rnc;iity Form) as des-i hereon. No incu:ance is afYor d hereunder.
m2 J@nt i an' A
fd h
/wwrkan luckvr Irsurers Effective Date of this Endorsement January 1,1990 To form a part of Policy No. MF-85 12:01 A.M.
Standero time Issued to Babcock & Wilcox Company
.Date of issue February 16, 1990 For the Subscribing Companies NUTUAL ATOMIC EISBCT LIABILITY UNDER.
By T-N
. Endorsement No.
72 Countersigned by ME-39c (1/1/90)
- 0 Nuclear Energy Liability insurance MUTUAL ATOMIC ENERGY LIABILITY UNDERWRITERS AMENDATORY ENDORSEMENT It is agreed that:
1.
INSURING AGREEMENT I is replaced by the following:
I COVERAGE A - LIABILITY To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as covered damages because of bodily injury or property damage, or as covered environmental cicanup costs because of environmental damage.
This Coverage applies only to bodily injury, property damage or environmental damage caused during the policy period by the nuclear energy hazard,. and which is discovered and for which written claim is made against the insured, not later than ten (10) years after the and of-the policy period.
The companies shall have the right and duty to defend any claim or suit against the insured alleging such injury or damage, and seeking damages or costs which are payable under the terms of this policy: but the companies may make such investigation, negotiation and settlement of the claim or suit.as they deem expedient..
i The companies' duty to defend shall be limited, as described in INSURING AGREEMENT IV, if the claim or suit also seeks any of the following, be construed as covered by this policy:which in no event shall i
(1) damages for on-site property damages (2) recovery of on-site cleanup ' costs or any other cleanup costs except covered environmental cleanup I-costs:
(3) performance of an insured's environmental-obligations or on-site cleanup obligations protection (4) or.
any other relief or recovery except. payment of covered damages or covered environmental cleanup Costs.
The companies' the limit duty to defend claims or suits ends when to CONDITION 3.of their liability has been exhausted pursuant
~ Subject to INSURING AGREEMENT IV, the companies shall pay.
with respect to any claim or suit they defend, the costs incurred in the defense, including I
(1) costs taxed against the insured in any such suit and-interest on any judgment therein:
L (2) premiums on appeal bonds and bonds to release attachments in any such suit, to apply for or furnish such bondsbut without obligation s
w g
-c
.r
.-4
I
.1 (3) reasonable expenses, other than loss of earnings, incurred by the insured at the companies' request.
C0VERACE B DAMAGE TO PROPERTY OF AN INSURED AWAY FROM THE FACILITY i
l With respect to property damage caused - during the policy L
period by the nuclear energy hazard to the property of an insured which -is away from the facility, to pay to such insured those sums which such insured would have been legally obligated to pay as covered damages therefor, had-such property belonged to another.
COVERAGE C - SUBROGATION - 0FFSITE EMPLOYEES With respect to bodily injury caused during the period by the nuclear energy hazard to any employee of anpolicy insured, and which is discovered and for which written claim is made against the insured, not later than ten (10) years after the and of the policy period, to pay to the workmen's compensation carrier of such insured as follows:
All sums which such carrier would have been entitled to recover and retain as damages from another person or organization, had such person or organization alone been legally responsible for such bodily injury, by reason of the rights acquired by subrogation by the payment of the benefits required - of such carrier under the applicable-workmen's compensation or occupational. disease law.
An employer who is a duly qualified self-insurer under such law shall be deemed to be a workmen's compensation carrier within the meaning of this Covarage.
This coverage does not apply to bodily injury to any person who is employed at and in connection with the facilityt nor shall it constitute workmen's compensation insurance as required under the laws of any state.
2.
INSURING AGREEMENT II is replaced by the'following:
II DEFINITION OF INSURED The unqualified word " insured" includes (a) the named insured and (b) any other person or organization with respect to his legal responsibility for covered damages or covered environmental cleanup costs because of bodily injury, property damage or environmental damage caused by the nuclear energy hazard.
Subdivision (b) above does not include as an insured the United States of America or any of its agencies, except the Tennessee Valley Authority.
Subject to CONDITION 3 and the other provisions of this policy, the insurance applies separately to each insured against whom claim is made or suit is brought.
2
3 t
3.
INSURING AGREEMENT III is replaced by the followi ng:
III DEFINITIONS Wherever used in this policy:
" bodily injury" means bodily injury. sickness or di including death resulting therefrom, sustained by any
- sease, person.
" covered ' damages" means damages because of b or property damage to which this policy appliest but n ury or on-site cleanup costs. covered damages do not include costs s
" covered environmental cleanup costs" means only t environmental cleanup costs which are incurred dire for monitoring. testing for. cleaning up containing environmental damage as the result of an
. neutralizing or extraordinary nuclear incident occurrence or a include on-site cleanup costs.but covered environmental transportation cleanup costs do not
" disposal site" means any structure, basin, excavation.
premises or place prepared as a dump or site for the disposal of waste materials of a general natur may also be used for the disposal of waste materials e
but which containing small amounts of nuclear material
" environment"- includes land, the watercourses bodies of water and natural atmosphere.
and all-whether on, a,bove or below the surface of the ground resources.
" environmental cleanup costs" include all loss cost or expense arising out of an directive -(other than an y governmental decree,. order or action organization to undertakerequiringaward of covered damages at law) in an or requesting a person or for. cleaning up or-pay for monitoring, of the environmen neutralizing or containing contaminationtesting
- t. -whether the contamination is on. above or below the surface of the ground.
ment by nuclear material." environmental damage" means e environ-
" environmental protection obligations" include all obligations of any person or organization p
(1) relating to the contamination protection of the environment from or imminent danger of and contamination, (2) imposed by any governmental laws.
regulations ordinances.
or
" extraordinary nuclear the occurrence" United States Nuclear means an event which determined to be an extraordinaryRegulatory Commission has nuclear occurrence as 3
+
..i 1
- ~.. - - - -. - - -.
y
~
i defined - in the - Atomic Energy Act of 1954 or in any law
= amendatory thersof.
" governmental" refers to
- federal, state and local governments and authorities, including courts, agencies and political subdivisions thereof.
"indemnitled nuclear facility" means (1)'
"the facility" as defined in any Nuclear Energy
-Liability Policy (Facility Form)_ issued by Nuclear Energy Liability Insurance Association or Mutual Atomic Energy Liability Underwriters, or (2) any other nuclear facility, if financial protection is required pursuant to the Atomic-Energy Act of 1954, or any law amendatory thereof, with respect to any activities or operations conducted thereat.
" insured shipment" means a shipment of source material, special nuclear material. spent fuel, waste, or tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed' primarily for its source material content, herein called " material."
(1) to the facility from any location except an indemnified nuclear
- facility, but only.if the transportation of the material is-not by predeter-mination to be interrupted by removal of-the 3 -
material from a transporting-conveyance for any purpose other than the continuation of its transpor-tation, or (2) from the facility to any other location, but only until the material is removed from a transporting conveyance for any purpose other than the o
L continuation of its transportation.
" nuclear energy hazard" means -the radioactive.
- toxic, explosive or other hazardous properties of nuclear material, but only if (1) the nuclear material is at the facility or has been discharged or dispersed therefrom without intent to relinquish possession or custody thereof to any other person or organization, or (2) the nuclear material is in an insured shipment which is away from any other nuclear facility and is in the course of transportation, including hand 1 '.ng and temporary storage incidental thereto, within (a) the territorial limits of the United States of
- America, its territories or possessions.
or Puerto Rico or (b) international waters or airspace, provided that the nuclear material is in the course of 4
transportation between two points located within.
t 4
1 L
the territorial limits - described in (a) above and there is no deviation in the course of the transportation for the purpose of going to any other country, state or nation, except' for the purpose of going to or returning from a as the result of an emergency. port or place of refuge
" nuclear facility" means "the facility" as defined in any Nuclear Energy Liability Policy (Facility Form) issued by Nuclear ' Energy Liability Insurance Association or Mutual Atomic Energy Liability Underwriters.
The term " nuclear facility" also means (1) any nuclear reactor, (2) any equipment or device designed or used for (a) separating the isotopes of uranium or plutonium, (b) processing or utilizing spent fuel, or (c) handling, processing or packaging wasta.
(3) any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than - 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235, L
(4) any structure, basin, excavation, premises or place prepared or used for the storage or disposal-of'
- waste, g
i and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such. operations.
" nuclear material" means source material, special nuclear material or byproduct material.
" nuclear reactor" means any apparatus designed or used to sustain nuclear fission or a self-sustaining chain reaction or to contain a critical mass of fissionable material.
"on-site cleanup costs" include all loss, arising out of on-site cleanup obligations. cost or expense "on-site cleanup obligations" include all obligations of i
any person or organization, im undertake or ; pay posed by common law or L
otherwise, to for monitoring, testing
.for, cleaning up, neutralizing or containing contamination by nuclear material at the facility. whether the material is on above or below the surface of the ground.
"on-site property damage" any property at the facility, includes all property damage to whether the property is on, above or below the surface of the ground, other than aircraft, watercraft or vehicles licensed for highway use, 5
l
4
- o-
. /,.
provided such, aircraf t. watercraft or vehicles are not used in connection with the operation.of the facility.
" property damage" means physical injury to or destruction or radioactive contamination of property, and loss of use of property so injured. destroyed or contaminated. and loss of use of property while evacuated or withdrawn from use because possibly so contaminated or because of imminent danger of contamination.
" source material."
and
" byproduct material" have the meanings given them in. the Atomic Energy Act of 1954 or in any law amendatory thereof.
" spent fuel" means any fuel element - or fuel component.
solid or liquid, which has been used or exposed to radiation in any' nuclear reactor.
"the facility" means the facility described in the declarations and includes the location designated in-Item 3 of the declarations and all such location.
property and operations at
" transportation incident" means a discharge or dispersal of nuclear material from an insured shipment caused by collision or upset of the transporting conveyance.. or an accident that breaks
- open, punctures or ruptures the shipping containers or containment thereons but only if both the discharge or dispersal and the collision, upset or accident take place away from any nuclear facility and away from any disposal site, and both occur in.the course of the transportation, including handling and temporary storage incidental ~thereto.
" waste" means any waste material (1) containing byproduct material and (2) resulting from the operation by any. person or organization.of any nuclear facility included within-
'the definition of nuclear facility under paragraph (1) or (2) thereof.
4.
INSURING AGREEMENT IV is replaced by the following and INSURING AGREEMENT IV-A added by the
" Amendment of coverage Endorsement for Workers Claims (Facility Form)"
continues to apply:
IV LIMITED DEFENSE OF PARTIALLY COVERED CLAIMS OR SUITS The following provisions apply with respect to any partially covered; claim or suit for which the companies' duty to defend has been limited by INSURING AGREEMENT I:
(1)
The companies will defend the claim or suit unless the companies and the first named insured mutually agree on a different defense arrangement.
By making 6
l 1
.m cuch a defense, the companies shall not be considered
-as having waived their - rights under this policy to deny payment or reimbursement of the items not covered.
(2)
As soon as practicable, the first named insured, acting on behalf of all insureds and the companies shall endeavor to reach an equitable arrangement for handling the defense and sharing the costs thereof.
(3)
The t
companies '. shara of defense costs shall not exceed the portion of the total defense corts that represents the costs which would be reasonably and necessarily incurred in the defense of the claim or suit in the absence of any claim or demand for the items not covered.
(4)
The companies shall have a,right to contribution from the first named insured for all defense costs as they are incurred in excess of the amount of the companies' - share, including reimbursement by the first named insured of all such excess costs paid by the' companies.
(5)
If the companies and the first named insured canent agree on the companies' dispute shall be submitted, share of defense costs,
+^
as a condition precedem to any.right of recovery.on this policy, to arbitra-tion for a final and binding resolution, as provided in Condition 19.
5.
'In EXCLUSIONS (d) and (e), and in all endorsements to this policy. relating thereto, the.words " bodily injury or damage or environmental damage." property damage" are replaced 6.
EXCLUSION (f) is replaced by the following exclusion:
.[This policy does not apply:]
i (f) to on-site property damaget l
l 7.
In CONDITION 3 and in all endorsements to this policy modifying the dollar amount of the limit of liability stated' in Item 4 of the declarations, the words
-injury or property damage" are replaced by " bodily injury," bodily property damage or environmental damage."-
8.
In CONDITION 4 and in all endorsements to this policy modifying the dollar amount of the total aggregate liability of the companies with respect to a common occurrence:
(a) the words
" bodily injury or replaced by
" bodily injury, property damage" are property damage or environmental damage"; and (b) the words " bodily injury and property damage" are replaced by
" bodily injury, property damage and environmental damage."
7 4
w
[
b 9.
In CONDIT NHS 5. 11 15 and 18. and in all endorsements to this policy relating thereto. the words " bodily injury or damage or environmental damage." property damage" are replaced by " b 10.
CONDITION 19 DECfARATIONS.
and CONDITION 20 MUTUAL POLICY CONDITION. Ce renumbered CONDITIONS 20 and 21.
11.
The following CONDITION is added to the policy:
19 ARBITRATION OF DISPUTES RELATING To THE APPLICATION OF INSURING AGREEMENT IV All such disputes subject to paragraph (5) of INSURING AGREEMENT IV shall be submitted to a Board of Arbitration (the " board") for a dispute.
final and binding resolution of the There shall be two parties to the arbitration:
the first named insured, acting on behalf of all insureds as their duly authorized representative, and Nuclear Energy Liability Insurance Association, acting on behalf of the companies as their duly authorized representative.
Except to the extent the parties otherwise. the following principles will mutually agree apply (a)
The arbitration will take place in New York. New York and will be governed by the laws of the State of New York.
(b)
Either party may begin the process of arbitration by giving notice to the other party in writing of its intention to do so and the name of the arbitrator that it'has appointed.
(c)
The other party shall then appoint in writing an arbitrator, and the arbitrators shall appoint in writing an umpire before they begin the arbitration.
The umpire shall act as chairman of the Board.
(d)
If a. party fails to namo its arbitrator within thirty (30) days of the other party's written request that it do so, the requesting appoint an arbitrator for the party in default. party may (e)
If the two arbitrators fail to agree on the selection of an umpire within thirty (30) days after they have both been appointed, each of them shall name two, of whom the other shall decline one.
choice shall be made by drawing lots.
The (f)
The arbitrators and umpire shall be executive officers or former executive officers of insurance companies licensed to do business in the United States or tf, crganizations designated as the first named insured under a Nuclear Energy Liability Policy issued by Nuclear Energy Liability Insurance Acsociation or Mutual Atomic Energy Liability Underwriterst provided that the current employees of the following shall not be eligible for service 8
lk
n i
(
I fny party or ike y P rt to the underlyi.ng s
i (2)
Amar can clear Insurers.
MAERP Reinsurance Association or their members cr (3) any other insurer or reinsurer which has
[n*y of the foregoing which y be ma er a affected by the Board's decision.
(g)
Within thirty (30) days after the appointment of the i
umpire, each party shall submit its case in writing to the Board.
(h)
The Board shall determine its rules of procedure. and the nature and extent of any discovery, testimony.
'i examination or cross-examination of witnesses and oral argument permitted.
The decision of any two members of the Board shall be final and binding on all parties.
All discovery, submissions of evidence, hearing of witnesses and argument shall be completed within sixty (60) days of the appointment of the umpire, provided the Board may grant one extension of 4
thirty (30) days.
(i)
The arbitrators and the umpire are not to be bound by at' f strict rules of legal procedure, evidence or legal precedents.
They shall. however, be governed by the terms of this policy, and shall have no power to add to or change its provisions.
Subject to this admonition, they shall interpret the relevant provisions of this policy as an honorable business agreement, and shall be entitled to decide, in accordance with such provisions together with the other materials submitted to them, what they think is the fair and right thing to be done between the parties from a business point of view, without favoring the interest of either party.
(j)
The Board ahall make its award in writing within thirty (30 days after the close of the period, including )any extension
- granted, described in paragraph (h) above.
(k)
If the Board fails to make an award within the time prescribed by paragraph (j) above, then unless an extension is agreed to by the parties, a
new arbitration shall be commenced and completed in accordance with-the procedure set out in paragraphs (a) through (j) above.
(1)
The award of the Board signed by any two members shall be final, not subject to appeal and binding on all parties, including all insurers policy and all insureds thereunder.
subscribing the The award shall be treated as a matter involving interstate commerce, and may be flied or confirmed in any court of competent jurisdiction, state or federal.
and judgment thereon entered and anforced, with the law and practice of the forum. in accordance t
9
r-Nuclear Energy Liability insurance NUCLEAR ENERGY UABluTY INSURANCE ASSOCIATION WAIVER OF DEFENSES ENDORSEMENT (Extraordinary Nuclear Occurrence)
Effective August 20, 1988, the named insured, acting for himself and every other insured under the policy, and the members of Nuclear Energy Liability Insurance Association agree as follows:
1.
With respect to any extraordinary nuclear occurrence to yhich the policy applies as proof of financial protection and which (a) arises out of or results from or occurs in the course of the construction, possession, or operation of the facility, or (b) arises out of or results from or occurs in the course of the transportation of nuclear Eaterial to or from 1
the facility, the insureds and the companies agree to waive (1) any issue or defense as to the conduct of the claimant or the fault of the insureds, including but not limited to:
(1) negligence, (ii) contributory negligence, (iii) assumption of risk, and (iv) unforeseeable intervening
- causes, whether involving the conduct of a third person, or an act of God, (2) any issue or defense as to charitable or governmental immunity, and (3) any issue or defense based on any statute of limitations if suit is instituted within three years from the date on which the claimant first knew, or reasonably could have known, of his bodily injury or property damage and the cause thereof.
The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action.
2.
The waivers set forth in paragraph 1. above do not apply to f
i NE-33b Page 1 of 3
-.. -.. _. -.. -. ~. - -. -.
l (a) bodily injury or property damage which is intentionally sustained by the claimant or which results from a
-nuclear incident intentionally and wrongfully caused by the claimant; (b) bodily injury sustained by any claimant who is employed at the site of and in annection with the activity where the extraordinary w: clear occurrence takes place if benefits therefor are either payable or required to be provided under an workmen's compensation or occupational disease law;y (c) any claim for punitive or examplary dsmages, provided, with respect to any claim for wrongful death under any state law which provides for damages only punitive in nature, this exclusion does not apply to the extent that the claimant has sustained actual
- damages, measured by the pecuniary injuries resulting from such i
death but not to : exceed the maximum amount otherwise recovsrable under law.
3.
The waivers set forth in paragraph 1.
above shall be effective only with respect to bodily injury or property damage to which the policy applies under its torms other l
than this endorsementi provided, however, that with respect to bodily injury or property damage resulting from an extraordinary nuclear occurrence, Insuring Agreement IV,
" Application of Policy", shall not operate to bar coverage for bodily injury or property damage (a) which is caused during the policy period by the nuclear energy hazard and (b) which is discovered and for which written claim is made j
agair:st the insured not later than twenty (20) the date of the extraordinary nuclear occurrence. years after Such waivers shall not apply to, or prejudice the prosecution or defense of any claim or portion of claim which is not within the protection afforded under (a) the provisions of the policy applicable to the financial protection required of the named insured;
(
(b) the agreement of indemnification between the named-L insured and the Nuclear Regulatory Commission made 1
pursuant to Section 170 of the Atomjc Energy Act of 1954, as amended; and 1
(c) the limit of liability provisions of subsection 170s.
L of the Atomic Energy Act of 1954, as amended.
Such waivers shall not preclude a defense based u'on the l -
failure of the claimant to take reasonable steps to mitigate l
damages.
4.
Subject to all of the limitations stated in this endorsement and in the Atomic Energy Act of
- 1954, as amended, the waivers set forth in paragraph 1.
above shall be judicially enforceable in accordance with their terms against any insured in an action to recover damages because NE-33b Page 2 of 3 L
.~
1 W
I
/
of bodily injury or property damage to which the policy applies as proof of financial protection.
i l
S.
As used herein:
" extraordinary nuclear occurrence" means an event which the Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, as amended.
" Financial protection" and
" nuclear incident" have the meanings given them in the Atomic Energy Act of 1954, as I
amended.
" claimant" means the person or organization actually sustaining the bodily injury or property damage and also includes his assignees, legal representatives and other persons. or organizations entitled to bring an action for damages on account of such injury or damage.
1 i
l l --
Thm is to ceruy that this i:s a true copy of the original Endor>cment hwing the endorsement numtwr and ticing made part of the luclem Enauy libil;ty Policy (gf cility Fonn) as des-1
{'
mMed 5 creon. No insi inco k n%//a hereunder,
~
3, aa o m rum vu na+m nwru i s
Of)disfl Ni ' at ! wa: era L
l Effective Date of this Endorsement August 20, 1988 To form a part of Policy No. NF-111 12:01 A.M.
Stanaard time i
Issued to Babcock & Wilcox Company I-Date of issue February 16, 1990 For the cribing panies By
\\Plesident Endorseu nt No.
132 Countersigned by NE.33b Page 3 of 3
Nucleu Energy Liability Insurance NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION i
SUPPLEMENTARY ENDORSEMENT i
WAIVER OF DEFENSES I
REACTOR CONSTRUCTION AT THF FACILITY Effective August 20, 1988, it is agreed that in construing the application of paragraph 2(b) of the WAIVER OF DEFENSES ENDORSEMENT NE-33b with respect to an extraordinary nuclear i
occurrence occurring at the
- facility, a
claimant who is employed at the facility in connection with the construction of i
a nuclear reactor with respect to which no operating license has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the extraordinary nuclear occurrence takes place its (1) the claimant is employed exclusively in connection 1
with the construction of a nuclear reactor, including all related equipment and installations at the facility, and (2) no operating license has been issued by the Nuclear Regulatory Commission with respect to the nuclear reactor, and (3) the claimant is not employed in connection with the possession,
- storage, use or transfer of nuclear material at the facility.
The is to cernly that tius is a tiue copy of tim ocarnal Endort.cment having the endorscment numbnr and being made part of the Nacicar Energy Liabihty Pohey (f cility form) as des-ignated Screon. No inst ance is afford hereunder.
John L
'trucchi, Vxe I aident Undenvr Anwrnan buclear Inuers Effective Date of this Endorsesent August 20, 1988 To fors a part of Policy No. _NF-111 12:01 A. M. Standard time i
Issued to Babcock & Wilcox Company 1
Date of Issue February 16, 1990 i
- For the ribing
- panies, dy I AM
\\ipresident Endorsement No.
133 Countersigned by NE-39b l
L l
i
Nuclear Energy Liability insurance NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION l
Restriction of Companies Oblication to Defend.
Investicate. Necotiate or Settle Any Claim or Suit
{
(Section 170 0. of the Atomic Energy Act of 1954, as amended)
Effective August 20, 1988, it is agreed that whenever, pursuant to subsection 170 0.
of the Atomic Energy Act of 1954, as l
- amended, an appropriate U.S.
District Court determines that l~
liability from a single nuclear incident may exceed the limit of liability under the applicable limit of liability under i
subsection 170 e. (1) (A), (B) and (C) of the Atomic Energy Act of
- 1954, as
- amended, the companies obligations under Insuring Agreement I,
to defend, investigate, negotiate or settle any claim or suit under the policy do not include any obligation that t
would necessitate or result in the companies incurring legal
- costs, including costs of initiating, prosecuting, investigating, settling, or defending claims or suits, which are not authorized for payment by a court pursuant to such subsection i
170 0.
l l
L l
l
' i5 to certify th3g gp h ing ihe b ogj91nal gg n
I IN'%' Pohey "d kins made isnate; hereon. (([DX~ " ^m,[p"E * "
ac
^"" n R.
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m Nuda,6,;*,N **b %
Effective Date of this Endorsesent August 20. 1988 To fors a part of Policy Nc. NF-111 l
12:01 A.M. Standard time Issued to Babcock & Wilcox Company Date of issue February 16. 1990 For the su ibing Co antes By N
FR1SID MT Endorsesent No.
134 Countersigned by NE-70
Nuclear Energy Umbility insurance 7
NUCLEAR ENERGY UA8luTY INSURANCE ASSOCIATION i
WAIVER OF DEFENSES ENDORSEMENT (Extraordinary Nuclear Occurrence)
The named insured, acting for himself and every other insured under the policy. and the members of Nuclear Energy Liability Insurance Association agree as follows:
1.
With respect to any extraordinary nuclear occurrence to which the policy applies as proof of financial protection and which (a) arises out of or results from or occurs in the course of the construction, possession, or operation of the i
facility, or (b) arises out of or results from or occurs in the course of the transportation of nuclear material to or from the facility.
the insureds and the companies agree to waive (1) any issue or defense as to the conduct of the claimant or the fault of the insureds, including but not limited tot (i) negligence.
(ii) contributory negligence.
(iii) assumption of risk, and (iv)' unforeseeable intervening
- causes, whether involving the conduct-of a third person, or an act of God.
(2) any issue or defense as to charitable or governmental immunity, and (3) any issue or defense based on any statute of limitations if suit is instituted within three years from the date on which the claimant first knew. or reasonably.could have known. of his bodily injury or property damage and the cause thereof.
The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise l
l be deemed jurisdicticnal or relating to an element in the cause of action.
2.
The waivers set forth in paragraph 1. above do not apply te (a) bodily
- injury, property damage or environmental damage which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant:
NE-33c(1/1/90)
Page 1 of 3
d I
(b) bodily injury sustained by any claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefor are either payable or required to be provided under any workmen's compensation or occupational disease laws (c) any claim for punitive or exemplary
- damages, provided.
with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature, this exclusion does not apply to the extent that the claimant has sustained actual damages, measured by the pecuniary. injuries resulting from such death tut not to exceed the maximum amount otherwise recoverable under law.
3.
The waivers set forth in paragraph 1.
above shall be effective only with respect to bodily injury, property damage or environmental damage to which the policy applies under its terms other than this endorsements
- however, that with respect to bodily injury. provided, damage or environmental damage resulting from an property extraordinary nuclear occurrence, the previsions of COVERACES A and C of the policy providing coverage for bodily injury, property damage or environmental damage caused during the policy period by the nuclear energy hazard and which is discovered and for which written claim is made against the insured not later than ten (10) after the end of the policy period shall not operate to years bar coverage for bodily
- injury, property damage or environmental damage (a) which is caused policy perf a\\ by the nuclear energy hazard andduring the (b) which is discover.w and for which written claim is made against o
I the insured not later than twenty years after the date of the extraordinary nuclear occu(20) rrence.
Such waivers shall not apply to, or prejudice the prosecution or defense of any claim or portion of claim which is not within the protection afforded under (a) the provisions of the policy applicable to the financial protection required of the named insured (b)
.the agreement of indemnification between the named insured and the Nuclear Regulatory Commission made pursuant to Section 170 of the Atomic Energy Act of 1954, as amended: and (c) the limit of liability provisions of subsection 170e.
of the Atomic Energy Act of 1954, as amended.
Such waivers shall not preclude a defense based upon the failure of the claimant to take reasonable steps to mitigate damages.
NE-33c (1/1/90)
Page'2 of 3
\\
)
4 Subject to all of the limitations stated in this endorsement and in the Atomic Energy Act of
- 1954, as amended, the waivers set forth in paragraph 1. above shall i
be judicially enforceable in accordance with their terms against any insured in an action to recover damages because of bodily injury, property damage or environmental damage to which the policy applies as proof of financial protection.
5.
As used herein:
" extraordinary nuclear occurrence" means an event which the Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, as amended.
" Financial protection" and " nuclear incident" have the
)
meanings given them in the Atomic Energy Act of 1954, as amended.
" claimant" means the persen or organization actually i
sustaining the bodily
- injury, property damage or environmental damage and also includes his assignees.
legal representatives and other persons or organizations entitled to bring an action for damages on account of such injury or damage.
1 l
i This is to certdy that this is a true conv <;f the ordinal Endorsement having the endon>cment number and b,dng nude pa i
of the Nuclear Enercy Liabildy Pohey (Fg/ h ibty Form) as des.
j ignoted creon No Inr.u nee k Mfn d/ ereunder.
.T.
j aonn L t. w a. v u P aw.ura m a
.- e A. enun ha% In<e Effective Date of this Endorsement January 1.1990 To fors a part of Policy No. NF-ll!
{
12:01 A. M. Stanoard time Issued to Babcock & Wilcox Company Date of Issue February 16, 1990 For the s ribing C panies, By
-.A
--- A-(fitW(ilbEF
'* ~
Endorsement No.
135 countersigned by NE-33c (1/1/90)
Page 3 of 3
i Nuclear Energy Liability Insurance NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION SUPPLEMENTARY ENDORSEMENT WAIVER OF DEFENSES REACTOR CONSTRUCTION AT THE FACILITY I ?. is agreed that in construing the application of paragraph
\\
2(b) of the WAIVER OF DEFENSES ENDORSEMENT NE-33c with respect to an extraordinary nuclear occurrence occurring at the
- facility, a
claimant who is employed at the facility in connection with the construction of a
nuclear reactor with respect to which no operating license has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the extraordinary nuclear occurrence takes place if:
1
,(1) the claimant is employed exclusively in connection with the construction of a nuclear reactor,inclading 1
all related equipment and installations at the facility, and (2) no operating license has been issued by the Nuclear l
Regulatory Commission with respect to the nuclear reactor, and l
i (3) the claimant is not employed in connection with the possession,
- storage, use or transfer of nuclear material at the facility.
j This o to certify that thi is a true copy of the ongmJ a
Endorr.ement having the endorsement numboc end being made c.t of the Nuclear Enctny Liability Policy !gcility Form) as des-ianater. hereon. No Ins nce k nffon#J hereunder.
2.
{XI John L 1 atroani, W e nJenbUrricrwr, g Anirkon twdcar Imuten.
]
Effective Date of this Endorsement January 1, 1990 To form a part of Policy No, NF-111 ino) A. n. stenera tu=
Issued to Babcock & Wilcov Company Date of Issue February 16, 1990 va the Sub ibing Co antes, By (rfihWW h Endorsement No.
136 Countersigned by l
NE 39c (1/1/90)
W '
Nucioar Energy Liability insurance j
NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION ANENDATORY ENDORSENENT (Facility Form)
It is agreed that:
1.
INSURING AGREEMENT I is replaced by the following:
I COVERAGE A - LIABILITY To pay on behalf of the insured all suas which the insured shall become legally obligated to pay as covered damages because of bodily injury or property damagei or as covered environmental cleanup costs because or environmental damage.
This Coverage applies only to bodily injury, ptoperty damage or environmental damage caused during the polf cy period by the nuclear energy hazard, and which is disctivered and for which written claim is made against the insured, not later than ten (10) years af ter the and of the policy period.
The companies shall have the right and duty to defend any clain-or suit against the insured alleging such injury or damage.. and seeking damages or costs which are payable under the terms of this policy: but the companies may make such investigation, negotiation and settlement of the claim or suit as they deem expedient.
The companies' duty to defend shall be
- limited, as described in INSURING AGREEMENT IV, if the claim or suit also seeks any of the following, which in no event shall be construed as covered by this policy:
(1) damages for on-site property damages (2) recovery of on-site cleanup costo or any other cleanup costs except covered environmental cleanup costs:
(3) performance of an insured's environmental protution obligations or on-site cleanup obligations or (4) any other relief or recovery except paywat of covered damages or covered environmental cleanup Cost!4,
The companies' duty - to defend claims or suits ends when the limit of their liability has been exhausted pursuant to CONDITION 3.
Subject to INSURING AGREEMENT IV.
with respect-to any claim or suit they defend,the companies shall pay, the costs incurred in the ejefe.nse, including (1) costs taxed against the insured in any such suit and interest on any judgment therein (2) premiums on appeal bonds and bonds to release attachments in any such suit, but without obligation to apply for or furnish such bonds:
1 i
t t
(3) reasonable expenses, other than loss of earnings.
incurred by the insured at the companies' request.
C0VERACE B - DAMAGE TO PROPERTY OF AN INSURED AWAY FRON THE FACILITY With respect to property damage caused during the policy period by the nuclear energy hazard to the property of an insured which is away from the facility. to pay to such insured those sums which such insured would have been legally obligated to pay as covered damages therefor. had such property belonged to another.
COVERAGE C - SUBkOOATION - OFFSITE EMPLOYEES With respect to bodily injury caused during the policy period by the nuclear energy hazard to any employa3 7f an insured, and which is discovered and for which written claim is made against the insured, not later than ten (10) years after the end of the policy period, to. pay to the l,
workmen's compensation carrier of such insured as follows:
l All sums which such carrier would have been entitled to
)
l recover and retain as damages from another person or organization. had tuch person or organization alone been legally responsible for such bodi2y injury, by reason of the rights acquired by subrogation by the payment of the benefits required of such carrier under the applicable workmen's compensation or occupational disease law.
An employer who is a duly qualified self-insurer under such law shall be deemed to be a workmen's compensation carrier within the-meaning of this Coverage.
This coverage does not apply to bodily injury to any person who is employed at and in connection with the facility: nor shall it constitute workmen's compensation insurance as required under the laws of any state.
2.
INSURING AGREEMENT II is replaced by the following:
II DEFINITION OF INSURED i
The unqualified word " insured" includes (a) the named-insured and (b) any other person or organization with respect to his legal responsibility for covered damages or covered environmental cleanup costs because of bodily injury property damage or environmental darage caused by the-nuclear energy hazard.
Subdivision (b) above does not include as an insured the United States of America or any of its agencies, except the Tennessee Valley Authority.
~,
Subject to CONDITION 3 and _ the other provisions of this policy, the insurance applies separately to each insured against whom claim is made or suit is brought.
2 y
~. - - - -
~~
~"~"
. - ~
i 3.
INSURING AGREEMENT III is replaced by the following:
III DEFINITIONS Wherever used in this policy:
" bodily injury" means bodily injury, sickness or disease.
including death resulting therefrom, sustained by any person.
" covered damages" means damages because of bodily injury or property damage to which this policy appliest but covered damages do not include environmental cleanup costs or on-site cleanup costs.
" covered environmental cleanup costs" means only those environmental cleanup costs which are incurred directly for monitoring, testing for, cleaning up, neutralizing or containing environmental damage as the result of an extraordinary nuclear occurrence or a transportation incidents but covered environmental cleanup costs do not include on-site cleanup costs.
t
" dispos:n1 site" means any structure, basin, excavation.
l' premissa or place prepared as a dump or site for the disponal of waste materials of a general nature, but which also be used for the disposal of waste materials may containing small amounts of nuclear material.
" environment" includes
- land, the atmosphere, and all t
watercoursen, bodies of water and natural resources, i
whether on, above or below the surface of the ground.
4
" environmental cleanup costs" include all 1cus, cost or i
expense. arising out of any governmental decree, ordor or directive (other than an award of covered damages in an action at law) requiring or requesting a person or i
organization to undertake or pay for monitoring, testing for, cleaning up, neutralizing or containing contamination l
of the environment, whether the contamination is on, above or below the surface of the ground.
" environmental damage" aseans contamination of the environ-ment by nuclear material.
" environmental protection obligations" include all obligations of any person or organization 1
(1) relating to the protection of the environnect from contamination or imminent danger of contamination.
L and (2) imposed by any governmental
- laws, rsaulations or ordinances.
" extraordinary nuclear occurrence" means an event which the United States Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as 3
.~. _ _ _ _ _ _ _____ _.
defined in th) omendatory thereof.Atccic Energy Act cf 1954, or in any law
" governmental" refers to
- federal, state and local governments and authorities.
and political subdivisions thereof. including csurts, agencies "indemnitled nuclear facility" means (1)
"the facility" as defined in any Nuclear Energy Liability Policy (Facility Form) issued by Nuclear Energy Liability Insurance Association or Mutual Atomic Energy Liability Underwriters, or (2) any other nuclear facility.
1 if financial protection is required pursuant to the Atomic Energy Act of 1954 with respect to any activitiesor any law amendatory thereof, thereat.
or operations conducted
" insured shipment" means a shipment of source material, special nuclear material.
spent fuel, waste i
or wastes produced by the extraction or conc. or tailings uranium or thorium from any ore processed primari*iy for entration of its source material content. herein called " material "
(1) to the facility from any location except an indemnified nuclear facility.
but only if the transportation of the material is not by predeter-mination to be interrupted by removal of the material from a transporting conveyance for any purpose other than the continuation of its transpor-tation. or (2) from the facility to any other location, but only until the material is removed from a conveyance for any purpose transporting continuation of its transportation. other than the
" nuclear energy hazard" means the radioactive,
- toxic, explosive or other hazardous properties of nuclear' material. but only if (1) discharged or dispersedthe nuclear material is at the facility o therefrom without intent to person or organization, orrelinquish possession or custody t (2) the nuclear material is in an insured shipment which is away from any other nuclear facility and is in the course of transportation, including temporary storage incidental thereto, withinhandling and (a) the territorial limits of
- America, its territories the United States of Puerto Ricos or or possessions.
or (b) international waters or airspace provided that the nuclear material is in the course of transportation between two points located within 4
...-,m-
. -. -., - - - -,,.. - -,. ~ - -,,, - -,
{
the territorial limits described in (a) above and i
there is no deviation in the course of the i
transportation for the purpose of going to any other country, state or nation. Sxcept for the purpose of going to or returning from a port or place of refuge i
ei the result of an emergency.
" nuclear facility" means "the facility" as defined in any i
Nuclear Energy Lidility Policy (Facility Torm) issued by Nuclear Energy Liability Insurance Association or Mutual Atomic Energy Liability Underwriters.
The term " nuclear facility" also means i
(1) any nuclear reactor, t
(2) any equipment or device designed or used for (a) separating the isotopes of uranium or plutonium.
(b) processing or utilizing spent fuel, or (c) handling, processing or packaging waste.
(3) any equipment or device used for the processing, fabricating or alloying of special nuclear material i
if at any time the total amount of such material in i
the custody of the insured at the premises where
.euch equipment 6r device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof.
or more than 250 grams of uranium 235 (4) any structure, basin, excavation, premises or place i
prepared or used for the storage or disposal of l
wagte.
and includes the site on which any of the foregoing is located, all operations conducted on such site and all i
premises used for such operations.
l l
" nuclear material" means source material, special nuclear material or byproduct material.
" nuclear reactor" means any apparatus designed or used to l
sustain nuclear fission or a self-sustaining chain l
reaction or to contain a critical mass of fissionable material.
"on-site cleanup costs" include all loss, cost or expense arising out of on-site cleanup obligations.
"on-site cleanup obligations" include all obligations of l
any person er organization, imposed by common law or otherwise, to undertake or pay for monitoring, testing I
for, cleaning up, neutralizing or containing contamination l
by nuclear material at the facility. whether the material is on, above or below the surface of the ground.
t "on-site property damage" includes all property damage to any property at the facility, whether the property :is on.
above or below the surface of the ground, other than L
l aircraft, watercraft or vehicles licensed for highway use.
5 l
l t
l
l provided such aircraft, watercraft or vehicles are not used in connection with the operation of the facility.
" property damage" means physical injury to or destruction or radioactive contamination of property, and loss of use of property so injured, destroyed or contaminated, and loss of use of property while evacuated or withdrawn from use Sacause possibly so contaminated or because of immi %tn tanger of contamination.
" source material."
and
" byproduct material" have the meanings given them in the Atomic Energy Act of 1954 or in any law amendatory thereof.
" spent fuel" means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in any nuclear reactor.
"the facility" means the facility cascribed in the declarations and includes the location designated in Item 3 of the declarations and all property and operations at such location.
" transportation incident" means a discharge or dispersal of nuclear material frona an insured shipment caused by collision or upset of the transporting conveyance, or an accident that breaks open.
punctures or ruptures the shipping containers or containment thereon but only if both the discharge or dispersal and the collision, upset or accident take place away from any nuclear facility and away from any disposal site, and both occur in the course of the transportation, including handling and temporary storage incidental thereto.
" waste" means any waste material (1) containing byproduct materia) and (2) resulting from the operation by any person or organization of any nuclear facility included within the definition of nuclear facility under paragraph (1) or (2) thereof.
4 INSURING AGREEMENT IV is replaced by the following and INSURING AGREEMENT IV-A added by the
" Amendment of Coverage Endorsement for Workers Claims (Facility Form)"
continues to apply:
IV LIMITED DEFENSE OF PARTTALLY COVERED CLAIMS OR SUITS The following provisions apply with respect to any partially covered c3 aim or suit for which the companies' duty to defend has been limited by INSURING AGREEMENT It (1)
The companies will defend the claim or suit unlass the companies and the first named insured autually agree on a different defense arrangement.
By making 6
l 4
s
.E..
l such a defense, the companies shall not be considered as having waived their rights under this policy to deny payment or reimbursement of the items not covered.
(2)
As soon as practicable.
the first named insured, l
acting on behalf of all insureds, and the companies i
shall endeavor to reach an equitable arrangement for handling the defense and sharing the costs thereof.
p (3)
The companies' share of defense costs shall not exceed the portion of the total defense costs that represents the costs which would be reasonably and necessarily incurred in the defense of the claim or 4
suit in the absence of any claim or demand for the items not covered.
(4)
The companies shall have a right to contribution from the first named insured for all defense costs as they are incurred in excess of the amount of the
-companies'
- share, including reimbursement by the first named insured of all such excess costs paid by the companies.
i (5)
If the companies and the first named insured cannot agree on the companies' share of defense costs. the dispute shall be submitted, as a condition precedent t
l to any right of recovery on this policy. to arbitra-tion for a final and binding resolution, as provided l
in Condition 19.
5.
In EXCLUSIONS (d) and (e), and in all endorsements to this l
policy relating
- thereto, the words
" bodily injury or property damage" are replaced by " bodily injury, property damage or environmental damage."
6.
EXCLUSION (f) is replaced by the following exclusion:
(This policy does not apply:)
i (f) to on-site property damage 7.
In CONDITION 3 and in all endorsements to this policy
(
mcdifying the dollar amount of the. limit of liability l
stated in Item 4 of the declarations, the words " bodily l
injury or property damage" are replaced by " bodily injury, property damage or environmental damage."
8.
In CONDITION 4 and in all endorsements to this policy modifying the dollar amount of the total aggregate liability of the companies with respect to a common occurrence:
(a) the words
" bodily injury or I
replaced by
" bodily injury, property damage" are property damage or j
snvironmental damage": and (b) the words " bodily injury and property damage" are replaced by
" bodily injury, property damage and environmental damage."
l l-7 L
9.
this policy relating thereto. the words " bodi o
property damage" are replaced b or damage or environmental damage."y " bodily injury. property 10.
CONDITION 19. DECIARATIONS is renumbered CONDITION 20 1
11.
The following CONDITION is added to the policy:
ARSITRATION OF DISPUTES RELATING TO
{
19 OF INSURING AGREEMENT IV THE APPLICATION All such disputes subject to paragraph (5) of INSURING ACREEMENT IV shall be submitted to a Board of A (the " Board") for a final and binding resolution of the on dispute.
There shall be two parties to the arbitration:
s named insured.
the first acting on behalf of all insureds as their duly authorized representative, and Nuclear Energy Liability Insurance Association, acting companies as their duly authorized representative.on behalf of the Except to the extent the parties mutually agree j
otherwise, the following principles will apply:
I (L)
The arbitration will take place in New York. New York, and will be governed by the laws of the State of New York.
(b)
Either party may begin the process of arbitration by giving notice to the other party in writing of intention to do its so and the name of the arbitrator that it has appointed.
(c)
The other arbitrator, party shall then appoint in writing an and the arbitrators shall appoint in The umpire shall act as chairman of the Boardw (d)
If a party fails to name its arbitrator within l
thirty (30) days of the other party's written request that it do so.
the appoint an arbitrator for the party in default.
requesting party may (e)
If the two arbitrators fail to agree on the selection of an umpire within thirty (30) they have both been appointed. each of them days after name two.
choice shall be made by drawing lots.of whom the other sh The (f)
The arbitrators and umpire shall be executive officers or formar executive officers. of insurance companies licensed to do business in the United States or of organizations designated named insured under a Nuclear Energy Liability Policy as the first issued by Nuclear Energy Liability Insurance Association or Mutual Atonio Energy Liability Underwriters: provided that the current employees of the following a
shall not be without the consent of both p uties: eligible for service 8
~w
w-
i (1) any party or likely party to the underlying j
claim or suitt (2)
American Nuclear Insurers.
MAERP Reinsurance Association or their members: or i
(3) any other insurer or reinsurer which has casualty insurance or reinsurance in force on any of the foregoing which may be materially affected by the Board's decision.
(g)
Within thirty (30) days after the appointment of the i
umpire. each party shall submit its case in writing to the Board.
(h)
The Board shall determine its rules of procedure, and the nature and extent of any discovery. testimony.
examination or cross-examination of witnesses and oral argument permitted.
The decision of any two l
members of the Board shall be final and binding on all parties.
All discovery, submissions of evidence.
hearing of witnesses and argument shall be completed within sixty (60) days of the appointment of the umpire, provided the Board may grant one extension of j
thirty (30) days.
(1)
The arbitrators and the umpire are not to be bound by any strict rules of legal procedure, evidence or legal precedents.
They shall. however, be governed by the terms of this policy, and shall have no power to add to or change its provisions.
Subject to this admonition.
they shall interpret the relevant provisions of this policy as an honorable business i
agreement, and shall be entitled to decide, in accordance with such provisions together - with the other materials submitted to them, what they think is the fair and right thing to be done between the parties from a business point of view, without favoring the interest of either parpy.
(j)
The Board shall make its award H writing within thirty (30) days after the clou of the period.
including any extension granted, described in paragraph (h) above.
(k)
If the Board fails to make an award within the time prescribed by paragraph (j) above, then unless an extension is agreed to by the parties.
a new arbitration shall be commenced and completed in accordance with the procedure set out in. paragraphs (a) through (j) above.
(1)
The award of the Board signed by any two members shall be final, not subject to sppeal and binding on all parties, including all insurers subscribing the policy and all insureds thereunder.
The award shall be treated as a matter involving interstate commerce, and may be filed or confirmed in any court of competent jurisdiction, state or
- federal, and judgment thereon entered and enforced, in accordance with the law and practice of the forum.
9
(m)
Unless the Board decides otherwise, pay the each party shall expenses of the arbitrator appointed for it and one half of the other costs of by or arbitration.
(n)
If an arbitrator or umpire is unable or unwilling t
- act, a new arbitrator or umpire. as the case may be.o shall be appointed to act in his accordance with the provisions set forth above.or her place. in (o)
All materials relevant to the arbitration shall be submitted to the Board in triplicate and the filing opposing party. party shall send simultaneously a copy thereo 12.
This endorsement applies to all claims for damages expenses or other relief or recovery for which coverage is
. costs, sought under this policy. and which are first made in of this endorsement stated below. writing against any in L
Endersement having the endmsema 2
of the Nuclear Encrev Liabihty Policy (T g mado parf ignawd lereon. Nu Insu nee k afhd/p/ hereunderility Fo
.T.
John L Arianen h dear IrsurerstroccN. Vice P
- t Undermt 10 Effective Date of i
this Endorsement __
Janperv 1, 1990 12:01 A.M. Standard 11tw
,To form a part of Policy No_ NF-111 Issued to Babcock & Wilcox Company Date of 1: sue _
February 16, 1990 For the su ribing c panies By
~
~
i N
PRESIDENT Endorsement No_
137 Countersigned by_
iG-71 (1/1/90)
E i
Nuclear Energy Wability insurance MUTUAL ATOMIC ENERGY UABluTY UNDERWRITERS WAIVER OF DEFENSES ENDORSEMENT (Extraordinary Nuclear Occurrence)
The named insured, acting for himself and every other insured under the policy, Insurance Association agree as follows:and the members of Nuclear Energy Liab 1.
With respect to any extraordinary nuclear occurrence to which the policy applies as proof of financial protection and which (a) arises out of or results from or occurs in the course of the construction, possession, or operation of the facility, or (b) arises out of or results from or occurs in the course of the transportation of nuclear material to or from the facility, the insureds and the companies agree to waive (1) any issue or defense as to the conduct of the claimant or the fault of the insureds, including but s
not limited tot (1) negligence.
(ii) contributory negligence.
(iii) assumption of risk, and (iv) unforeseeable intervening
- causes, whether l
l involving the conduct of a third person. or an act of God.
(2) any issue or defense as to charitable or governmental immunity, and (3) any issue or defense based on any statute of limitations if suit is instituted within three years from the data on which the claimant first knew, or reasonably could have known of his bodily injury or property damage and the cause thereof.
The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action.
2.
The waivers set forth in paragraph 1. above do not apply to (a) bodily
- injury, property damage or environmental damage which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant:
ME-33c(1/1/90)
Page 1 of 3
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l (b) bodily injury sustained by any claimant who is i
employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefor are either payable i
or required to be provided under any workmen's i
compensation or occupational disease law:
(c) any claim for punitive or exemplary
- damages, provided, with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature.
this exclusion does not apply to the extent that the claimant has sustained actual damages, measured by the pecuniary injuries resulting from such death but not to exceed the maximum amount otherwise recoverable under law.
3.
The waivers set forth in paragraph 1.
above shall be effective cnly with respect to bodily injury, property damage or environmental damage to which the policy applies under its terms other than this endorsementt
- however, that with respect to bodily injury, provided, property damage or environmental damage resulting from an extraordinary nuclear occurrence, the provisions of COVER.AGg5 A and C of the policy providing coverage for bodily injury, property damage or environmental damage caused during the policy period by the nuclear energy hazard and which is discovered and for which written claim is made against the insured not later than ten (10) years after the and of the policy period shall not operate to bar coverage for bodily
- injury, property damage or environmental damage (a) which is caused during the policy period by the. nuclear energy hazard and (b) which is discovered and for which written claim is made against the insured not later than twenty (20 years after the date of the extraordinary nuclear occurr)ence.
such waivers shall not apply to, or prejudice the i
prosecution or defense of any claim or portion of claim which is not within the protection afforded under (a) the. provisions of the policy applicable to the financial protection required of the named insured (b) the agreement of indemnification between the named insured and the Nuclear Regulatory Commission made pursuant to Section 170 of the Atomic Energy Act of 1954 as amended: and (c) the limit of liability provisions of Subsection 170e.
of the Atomic Energy Act of 1954, as amended.
Such waivers shall not preclude a defense based upon the failure of the claimant to take reasonable steps to mitigate damages.
ME-33c (1/1/90)
Page 2 of 3
- ~..
c i
4 Subject to all of the limitations stated in this endorsement and in the Atomic Energy Act of 1954, as amended, the waivers set forth in paragraph 1. above shall be judicially enforceable in accordance with their terms against any insured in an action to recover damages i
because of bodily injury, property damage or environmental damage to which the policy applies as proof i
of financial protection.
t 5.
As used herein:
s
" extraordinary nuclear occurrence" means an event which a
the Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, as amended.
" Financial protection" and
" nuclear incident" have the meanings given them in the Atomic Energy Act of 1954, amended.
as
" claimant" means the person or organization actually sustaining the bodily
- injury, property damage or environmental damage and also includes his assignees.
legal representatives and other persons or organizations entitled to bring an action for damages on account of such injury or damage.
This is to certify that this is a true copy of the ori<rnal Endorsement having the endorsernent numbm and being made part of the Nuc!mr Energe Lmbility Potcy (T/cility form) as des-ignated ercon. Na insu nc" ' hw hereundet.
M.nLk rui,i, N Pment Undemy Anerran Nelear insoms Effective Date of this Endorsement January 1. 1990 To fors a part of Policy No. MF-84 12:01 A.M.
(tandard time Issued to Babcock & Wilcox Company Date of issue February 16. 1990 For the Subscribing Companies MtfruaL ATOKIC ENERGY LIABILITT IMDERVILITBtS By T.
y vr s Endorsement No.
59 Countersigned by
-ME-33c (1/1/90)
Page 3 of 3
i i
i Nuclear Energy Uability insurance i
l MUTUAL ATOMIC ENERGY UABluTY UNDERWRITERS i
AMENDATORY ENDORSEMENT (Facility Form)
It is agreed that:
1.
INSURING AGREEMENT I is replaced by the following:
2 I
C0VERACE A - LIABILITY 1
To pay on behalf of the insured all suas which the insured shall become legally obligated to pay as covered damages because of bodily injury or property damage, or as covered i
environmental cleanup costs because of environmental damage.
This coverage applies only to bodily injury, policy period by the nuclear energy hazard, property damage and which is discovered and for which written claim is made against the insured, not later than ten (10) years after the end of the policy period.
claim or suit against the insured alleging such injury o damage, and seeking damages or costs which are payable under the terms of this policy but the companies may make such investigation, negotiation and settlement of the claim or suit as they does expedient.
The conpanies' duty to defend shall be
- limited, as described in INSURING AGREEMENT IV. if the claim or suit, also seeks any of the following, be construed as covered by this policywhich in no event shall (1) damages for on-site property damage (2) recovery of on-site cleanup costs or any other cleanup costs except covered environmental cleanup costs:
(3) performance of an insured's environmental protection obligations or on-site cleanup obligations (4) or other relief or recovery except payment of any covered damages or covered environmental cleanup l
costs.
The companies' duty to defend claims or suits ends when the limit of their liability has been exhausted pursuant to CONDITION 3.
-Subject to INSURING AGREEMENT IV. the companies shall pay.
with respect to any claim or suit they defend.
incurred in the defense, including the costs (1) costs taxed against the insured in any such suit and interest on any judgment thereint (2) premiums on appeal bonds and bonds to release attachments in any such suit, to apply for or furnish such bondstbut without obligation L
_____________________.______________r.~- - ~, - - -
i t
(3) reasonable expenses, other than loss of earnings.
f incurred by the insured at the companies' request.
j COVERACE g - DAMAGE TO PROPERTY OF AN INSURED AWAY FROM THE FACILITY With respect to property damage caused during the policy i
period by the nuclear energy hazard to the property of an insured which is away from the f acility, to pay to such insured those suas which such insured would have been legally obligated to pay as covered damages therefor. had such property belonged to another.
COVERAGE C - BUBROCATION - 0FFSITE EMPLOYEES With respect to bodily injury caused during the policy period by the nuclear energy hazard to any employee of an insured, and which is discovsred and for which written claim is made against the insured, not later than ten (10) years after the and of the policy period, to pay to the workmen's compensation carrier of such insured as follows:
All suas which such carrier would have been entitled to recover and retain as damages from another person or organization, had such person or organization alone been l
1egally responsible for such bodily injury..by reason of the rights acquired by subrogation by the payment of the benetits required of such carrier under the applicable workmen's compensation or occupational disease law.
An employer who is a duly qualified self-insurer under such law shall be deemed to be a workmen's compensation carrier within the meaning of this Coverage.
This coverage does not apply to bodily injury to any person who is employed at and in connection with the facilityi nor shall it constitute workmen's compensation insurance as required under the laws of s,ny state.
2.
INSURING AGREEMENT II is replaced by the following:
II DEFINITION OF INSURED The unqualified word " insured" includes (a) the named insured and (b) any.ather person or organization with respect to his legal responsibility for covered damages or covered environmental cleanup costs because of bodily l
injury, property damage or environmental damage caused by the nuclear energy hazard.
Subdivision (b) above does not include as an insured the United States of America or any of its agencies, except the Tennessee Valley Authority.
Subject to CONDITIOM 3 and the other provisions of this policy, the insurance applies separately to each insured against whom claim is made or suit is brought.
2
3.
INSURING AGREEMENT III is replaced by the followingt III DEFINITIONS Wherever used in this policy:
" bodily injury" means bodily injury, sickness or disease includin person. g death resulting therefrom, sustained by any
" covered damages" means damages because of bodily injury or property damage to which this policy applies:
but or on-site cleanup costs. covered damages do not include en
" covered environmental cleanup costs" means only thos environmental cleanup costs which are i for monitoring. testing for. cleaning up, ncurred directly containing environmental damage as the result of an neutralizing or extraordinary nuclear occurrence or a incident include on-site cleanup costs.but covered environmental cleanup
" disposal site" means any structure, basin, excavation.
premises or place prepared as a dump or site for the disposal of waste materials of a general nature may also be used for the disposal of waste materials
, but which containing small amounts of nuclear material.
" environment" includes
- land, the watercourse atmosphere.
and all whether on, s, bodies of water and natural above or below the surface of the ground.
t resources,
" environmental cleanup costs" include all loss cost or expense arising out of any governmental decree, order directive (other than an award actiots or of covered damages in an at law) requiring or for, cleaning uporganization to undertake or pay for monitoring requesting' a person or of the environmen neutralizing or containing contaminationtesting t, whether the contamination is on, above or below the surface of the ground.
ment by nuclear material." environmental damage" means c environ-
" environmental protaction obligations of any person or organizationobligations" include all (1) relating to the contamination protection of the environment from or imminent danger of and contamination.
(2) imposed by any governmental laws.
regulations or ordinances.
" extraordinary nuclear occurrence" the United States Nuclear means an event which determined to be an extraordinaryRegulatory Commission has nuclear occurrence as 3
1 defined in the Atomic Energy Act of amendatory thereof.
1954 or in any law
" governmental" refers to federal.
state and local governments and authorities, including courts, agencies and political subdivisions thereof.
"indemnitled nuclear facility" means (1)
"the facility" as defined in any Nuclear Energy i
Liability Policy (Facility Form) issued by Nuclear i
Energy Liability Insurance Association or Mutual
)
Atomic Energy Liability Underwriters, or (2) any other nuclear facility.
j if financial protection is required pursuant to the I
Atomic Energy Act of 1954 or any law amendatory thereof, with respect to any activities or operations conducted thereat.
" insured shipment" means a shipment of source material, special nuclear material, spent fuel, waste or wastes produced by.the extraction or conc, entration ofor tailings uranium or thorium from any ore processed primarily for its source material content, herein called " material."
l (1) to the facility from any location except an indemnified nuclear
- facility, but only if the transportation of the material is not by predeter-i aination to be interrupted by removal of the material from a transporting conveyance for any purpose other than the continuation of its transpor-tation. or (2) from the facility to any other location, but only until the material is removed from a transporting conveyance for any purpose other than the continuation of its. transportation.
" nuclear energy hazard". means the radioactive, toxic.
exolosive or other hazardous properties of nuclear marerial, but only if (1) the nudlear material is at the facility or has been discharged or dispersed therefrom without intent to relinquish possession or custody thereof to any other person or organization, or (2) the nuclear material is in.an insured shipment which 4
is away from any other nuclear facility and is in the course of transportation.
including temporary storage. incidental thereto withinhandling and I
(a) the territorial limits of the United States of
- America, its territories or possessions.
or Puerto Ricos or (b) international waters or airspace, provided that the nuclear material is in the course of transportation between two points located within 4
ev~v 4
c the territorial limits described in ta) above and there is no deviation in the course of the
-transportation for the purpose of going to any other country,. state or nation, except for the purpose of going to or returning from a as the result of an emergency. port or, place of refuge
" nuclear facility" means "the facility" as defined in any Nuclear Energy -Liability Policy (Facility Fora)- issued by Nuclear Energy Liability Insurance Association or Mutual Atomic Energy Liability Underwriters.
The term " nuclear facility" also means (1) any nuclear reactor, (2) any equipment or device designed or used for (a)- separating the isotopes of uraniua or plutonium.
(b) processing or utilizing spent fuel, or (c) handling, precessing or packaging waata.
7 (3) any equipment or device used for the processing,.
fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of ~ or conuains more than 25 grams of plutonium or uranium
=
233 or any combination thereof, or more than 250 grams of uranium 235 (4) any structure, basin, excavation, promises or place prepared or used for the storage or disposal of
- waste, and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations.
" nuclear material".means source material, special nuclear material or byproduct material.
=
" nuclear reactor" means any apparatus designed or used to sustain nuclear fission or a
self-sustaining - chain reaction or to contain a critical mass of fissionable material.
"on-site cleanup costs" includa all loss, cost or expense arising out of on-site cleanup obligations.
"on-site cleanup obligations" include all obligations of any person or organization, imposed by common law or otherwise, to undertake or pay for monitoring, testing for, cleaning up. neutralizing or containing contamination by nuclear material at the facility whether the material is on, above or below the surface of the ground.
"on-site property damage" includes-all property damage to-any property at the facility, whether the property is on.
above or below the s.urface of the ground, other than aircraft, watercraft or vehicles licensed for highway use.
N
- ~ - - -
provided such aircraft. watacraft or vehicles' are - not L
used in connection with the operation of the facility.
{
" property' damage" means physical injury to-or-destruction or radioactive contamination of property, and loss - of use of property so injured, destroyed or contaminated, and s
L l
loss of-use of property while evacuated or withdrawn from use b,tcause possibly so contaminated or because of lc imminent danger of contamination.
" source material,"
"special nuclear materikl,"
and i
" byproduct material" have the meanings given them^in the I
Atomic Energy ' Act of 1954, or in any law amendatory I
thereof.
L' i
p
" spent fuel" means any fuel element or fuel component, l
solid or liquid, which has been used or exposed to u
l-radiation in any nuclear reactor, i
"the facility" means the facility described in the j
declarations and includes the location designated in Item 3 of the declarations and all property 1and operations _ at such location.
i
" transportation incident" means ; a discharge G dispersal of ' nuclear material from an insured shipment caused by collision or upset of the transporting conveyance,
-accident that breaks open, punctures or ruptures the j
or an-shipping containers or containment thereon: but only if both the discharge or dispersal and the collision, upset.
l or accident take place-away from any nuclear facility.and j
away from any disposal site, and both occur'in the course of the, transportation, including handling and temporary j
storage incidental thereto.
" waste"'means any waste-material (1) containing. byproduct material-and (2) resulting from the operation by any person or j
organization of any nuclear facility included within the definition. of nuclear facility under paragraph i
(1) or (2) thereof.
4.
INSURING AGREEMENT IV ' is replaced by - the following _ and
-INSURING AGREEMENT IV-A added by the
" Amendment of Coverage Endorsement for Workers continues to apply:
Claims '(Facility Form)"
IV LIMITED DEFENSE OF PARTIALLY COVERED CLAIMS OR SUITS The following provisions apply with respect to any 1
)
partially covered claim or suit for which the companies'
}
duty to defand has been limited by INSURING AGREEMENT I:
(1)
The companies will defend the claim or suit unissa the companies and the _ first natr.ed insured mutually agrue on a different defensa arrangement.
By making i
g 6
l
-. - - - - ~ -.
i m
(
.,1 t-l such a defense. the companies shall not be considered i
as having' waived their rights. under this policy to o
deny payment or reimbursement of the items not L
covered.
(2). As soon as practicable.
the first named insured, acting on behalf of all insureds, and the companies shall endeavor to reach an-equitable arrangement for handling the defense and sharing the costs thereof.
(3)
The companies' share of defense costs shall not exceed the portion of the total defense costs that represents the costs which would be reasonably and-necessarily incurred in the defense of the claim or t
suit in the absence-of, any claim or demand for the items not covered.
(4)
The companies shall have a right to contribution 1
from the first named insured for all defense costs as they are incurred in excess of the amount of the companics' share.
including reimbursement. by the first named insured of all such excess costs paid by i-the apanies.
j; (5)
If.the companies and the first named insured cannot L
agree on the companies' share of defense costs, the dispute shall be submitted, as a condition precedent to.any right of recovery on this policy, to arbitra-tion for a final and binding resolution, as provided in Condition 19.
5.
In EXCLUSIONS (d) and (e), and in all endorsements to this policy relating
- thereto, the words
" bodily injury or damage or environmental damage." property damage" are replaced
,a 6.
EXCLUSION (f) is replaced by the following exclusion:
n (This policy does not apply:)
(f) to on-site property dauage:
7.
'In CONDITION 3 and in all endersaments to this policy.
modifying the dollar amount of the limit of liability.
stated in Item 4 of the declarations.
injury or property damage" are replaced bthe words - " bodily property. damage or environmental damage."y " bodily injury, 8.
In CONDITION 4 and in all endorsements to this policy modifying the dollar amount of the total aggregate liability of the companies with respect to a common.
occurrence:
(a) the words
" bodily injury or replaced by
" bodily injury, property damage" are property damage or environmental damage *: and (b) the words " bodily injury and property damage" are replaced by
" bodily ir. jury, property damage and environmental damage."
7
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9.
In~ CONDITIONS 5, 11, 15 and 18, and in all endorsements to
~
this policy relating thereto, the words " bodily injury or property damage" are replaced by " bodily injury, property-damage or environmental damage."
10.
CONDITION. 19 DECLARATIONS, and CONDITION 20 MUTUAL POLICY CONDITION. are renumbered CONDITIONS 20 and 21.
11.
The following CONDITION is added to the policy:
19 ARBITRATION OF DISPUTES RELATING TO THE APPLICATION 0F INSURING AGREEMENT IV g
All such disputes subject to paragraph (5) cf INSURING AGREEMENT IV shall be submitted to a Board of Arbitration (the " Board") for a final and binding resolution of the dispute.
There shall be two parties to the arbitrationt J
the first named insured, acting on behalf of all insureds as their duly authorized representative, and Nuclear Energy Liability Insurance Association, acting on behalf of. the companies as their duly. authorized representative.
Except to the extent the parties mutually agree otherwise, the following principles will apply (a)
The arbitration will take place in New York, New York, and will be governed by the laws of the state of New York.
(b)
Either party may begin the process of arbitration by giving notice to the other party in writing of its intention to do so and the name of the arbitrator =
that'. it hast appointed.
(c). The other party shall then appoint in writing an arbitrator, and the arbitrators. shall appoint in writing an umpire bofore ' they begin the arbitration.
The umpire shall act as chairman of the Board.
(d)
If a party fails to name' its arbitrator within thirty (30) days of the other party's written request that it do no, the requesting party may t
appoint an arbitrator for-the party in default.
(e)
If the two arbitrators fail to agree on the selection of an umpire within thirty (30) days after they have both been appointed, each of them shall name-two, of whom the other shall decline one.
The choice shall be made by drawing lots.
(f)
The arbitrators and umpire shall be executive officers or former executive officers of insurance companies licensed to do business in the United States or of organizations designated as thm first named insured under a Nuclear Energy Liabili;y Policy issued by Nuclear Energy Liability Insurance Association or Mutual Atomic Energy Liability l
Underwriterst provided that the current employees of the following shall not be eligible for service L
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without the consent of both partiest (1) any party or likely party to the underlying claim or suit (2)
American - Nuclear Insurers, MAERP Reinsurance Association or their members or 1
(3) any other insurer or. reinsurer which has
.=
casualty insurance or reinsurance in force on any of the foregoing which may be materially affected-by the Board's decision.'
(g)
Within thirty (30) days after the appointment of the umpire, each party shall submit its case in writing to the Board.
[
(h)
The Board shall determine its rules of procedure, and the nature and extent of any discovery, testimony.
examination or cross-examination of witnesses and
=
oral argument. permitted.
The decision of - any two members of the Board shall be final and binding on all parties.
All discovery, submissions of evidence, hearing of. witnesses and argument shall be completed
{*
within sixty (60) days of the appointment of the umpire, provided the Board may grant one extension of thirty (30) days.
(1)
The arbitrators and the umpire are nc,4, to be bound by g
any strict rules of legal procedure, evidence or legal precedents.
They shall, however, be s urned by the terms of this policy, and shall have no power to add to or change its provisions.
Subject 6 this admonition, they shall interpret the celwant provisions of this policy as an honorable Meiness agreement, and shall-be entitled to decide, in accordance with such provisions together with the other materials-submitted to them, what they think is the fair and right thing to be done between the parties from a business point of view, without
-favoring the interest of either party.-
(j)
The Board shall make its award in writing within thirty (30 days after the close of the period, including :)any extension
- granted, described in paragraph (h) above.
(k)
If the Board fails to make an award within the time prescribed by paragraph (j) above then unless an extension is agreed to.by the parties, a -new arbitration shall be commenced and completed in accordance with the procedure sat out in paragraphs (a) through (j) above.
(1)
The award of the Board signed by any two members shall be final, not subject to appeal and binding on all parties, including all policy and all insureds thereunder. insurers subscribing the The award shall be treated as a matter involving interstate commerce, e
and may be filed or confirmed in any court of competent jurisdiction.
state or
- federal, and judgment thereon entered and enforced, in accordance with the law and practice of the forum.
9 I
i l
- 8, (m)
Unless the Board decides otherwise, each party shall
+:
pay the expenses of the arbitrator appointed by or for it and one half of the other costs of arbitration.
(n)
If an arbitrator or umpire is unable or unwilling to act, a new arbitrator or umpire, as the case may be, shall be appointed to act in his or her place, in accordance with the provisions set forth above.
(o)
All materials relevant to the arbitration shall be submitted to the Board in triplicate and the filing party shall send simultaneously a copy thereof to the opposing party.
12.
This endorsement applies to all claims-for damages, costs, expenses or other relief or recovery for which. coverage is sought under this policy, and which are first made in writing against any insured on_or after the effective date
'of this endorsement stated below.
h riginal This is to certify that this is a true copy of t e od Endorsement having the endorsement nymbor h
of the Nudcar Energy Liability Po ey hereunder.
oI ignated here John L (..attrocds.Vrc Pre &nt-Underwrdag
..w:ui;HiOl$lllb Amerwan Naiw Insurers 10 El'tecttve Date of this Endorsement _
January 1, 1990 To form a part of Policy No.
MF-84 12:01 A.M. Standard Time issued to - Babcock & WilCOX Company Date of Issue February 16. 1990 Far *he Subscribing Companies MUTUAL ATOMIC ENERCT LIABILITT UND WRITERS
.By,
Endorsement No.
61 Countersigned by_
.ME-71 -- (1/1/90)
^""
"P'*"""'
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4 Nuclear-Energy Liability Insurance MUTUAL ATOMIC ENERGY LIABILITY UNDERWRITERS SUPPLEMENTARY ENDORSEMENT WAIVER OF DEFENSES REACTOR CONSTRUCTION AT THE FACILITY Effective August 20, 1988, it is agreed that in construing the application of paragraph 2(b) of the WAIVER OF DEFENSES ENDORSEMENT ME-33b with respcet to an e::traordinary nuclear.
occurrence occurring at the
- facility, a
claimant who is employed at the facility in connection with the construction'of a nuclear reactor with respect to which no operating license has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the' extraordinary nuclear occurrence takes place if:
(1) the claimant is employed exclusively in connection with the construction of a nuclcar reactor, including all related equipment and installations at the facility, and (2) no operating license has been issued by the Nuclear Regulatory Commission with respect to the nuclear reactor, and (3) the claimant is not employed in connection with the possession,
- storage, use or transfer of nuclear material at the facility.
Thir, is to certify that this is a true copy of the original Endorsement having the endorsement numbor and being made part of the Nadear Energy IJabitity Pjpe;(Facility Form) as dcs.
nated hereon. No Insurance i/pfforded hereunder.
. L*
r&c itag A.
rican Mudear insurers Effective Date of this Endorsement August 20, 1988 To fors a part of Policy No. MF-84 12:01 A.M. standard time Issued to Babcock & Wilcox Company Date of issue February 16, 1990 For the subscribing companies
.J * (TOKIC EIGRGY LIABILITY INIDER 8y
@ Al M th ~
E w.
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Endorsement No.
57 countersigned by g;
=>
-ME-39b
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Nuclear Energy Liability Insurance MUTUAL ATOMIC ENERGY LIABILITY UNDERWRITERS SUPPLEMENTARY ENDORSEMENT WAIVER OF DEFENSES REACTOR CONSTRUCTION AT THE FACILITY It is agrend that in construing the application of paragraph 2(b) of the WAIVER OF DEFENSES ENDORSEMENT NE-33c with respect to an extraordinary nuclear occutrence occurring at the
- facility, a
claimant who is employed at the facility in connection with the construction of a
nuclear reactor with respect to which nc operating licanse has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the nuclear occurrence takes place if:
extraordinary (1) the claimant is employed exclusively in connection with the construction of a nuclear reactor, including all related equipment and installations at the facility, and (2) no operating license has been issued by the Nuclear Regulatory Commission with respect to the nuclear reactor, and (3) the claimant is not employed in connection with the possession,
- storage, use or transfer of nuclear material at the facility.
7 of the orbrnal
',.[ bmbw and bmg made part T.
\\,.
, [. 9 P&y 4 Form) as des-hereunder m a., m erw*ntO*
3,,
fe, w r Nuuear kWM Effective Date of this Endorsement January 1, 1990 To form a part of Policy No. MF-84 12:01 A.M.
Standard t inie Issued to Babcock & Wilcox Company Date of issa Feb*uary 16, 1990 For the Subscribing Companies MIFFDAL ATOKIC IDIERGY LIABILITY (BIDER
[
By
.T.
L N
Endorsement No.
60 countersigned by ME-39c (1/1/90)
.s
.1
Nuclear Energy Liability insurance MUTUAL ATOMIC ENERGY LIABILITY UNDERWRITERS l
Restriction of Companies Oblication to Defend, Investicate, Necotiate or Settle Any Claim or Suit (Section 170 0. of the Atomic Energy i
l Act of 1954, as amended) 1 1
l Effective August 20, 1988, it is agreed that whenever, pursuant to subsection 170 0.
of the Atomic Energy Act of 1954, as I
- amended, an appropriate U.S.
District Court determines that i
liability from a single nuclear incident may exceed-the limit of liability under the applicable limit of liability under
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u subsection 170 e.(1) (A), (B) and (C) of the Atomic Energy Act of
- 1954, as
- amended, the companies obligations under Insuring Agreement I,
to defend, investigate, negotiate or settle any claim or suit under the policy do not include any obligation that would necessitate or result in the companies incurring legal
- costs, including costs of initiating, prosecuting, investigating, settling, or defending claims or suits, which are not authorized for payment by a court pursuant to such subsection.
170 0.
This is to certify that this is a true copy of the original Endorsement having the endorsement number and being made part of the ludear Encray Liabihty Policy (F cility Form) as des.
ignated ',ercon No T. inst. anco - - fforc. hereunder.
e John L Q urocchi, Vice President Underwru.
Arrencan Nuclear insurers Effective Date of this Endorsement August 20, 1988 To fors a part of Policy ':o. MF-84 12:01 A.M.
Standard time Issued to Babcock & Wilcox Company Date of issue February 16, 1990 For the Subscribing companies o
MUTUAL ATCHIC ENERGY LTMILITY IMMERITERS By
- T.
C y
L Endorsement'No.
58 Countersigned by 1
ME-70
Nuclear Energy Liability Insurance NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION SUPPLEMENTARY ENDORSEMENT WAIVER OF DEFENSES REACTOR CONSTRUCTION AT THE FACILITY It is agreed that in construing the application of paragraph-2(b) of the WAIVER OF DEFENSES ENDORSEMENT NE-33c with respect to an extraordinary nuclear occurrence occurring at the
- facility, a
claimant who is employed at the facility in connection with the construction of a nuclear reactor with respect to which no operating license has besn issued-by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the extraordinary nuclear occurrence takes place if:
(1) the claimant is employed exclusively in connection with the construction of a nuclear reactor including all related equipment and installations at the facility, and (2) no operating license has been issued by the Nuclear Regulatory Commission with respect to the nuclear reactor, and (3) the claimant is not employed in connection with the possession,
- storage, use or transfer of. nuclear material at the facility.
This is to certify that this is a true copy of the original o the inclear Ent'.Tv Liability Po! icy IT ci!ity isnated screon No inst rance is afford hereunder S.
John L.
Amerson Nuclear Imumsnrwa, h hes*nt Urderwr
.s.
s or e en January 1,1990 To form a part of Policy No.
NF-83 12:01 A. M. Standard time Issued to Babcock & Wilcox Company
'Date -of Issue. February 16, 1990 For the Sub ibang Co anies, Eh r
Endorsement No.
129 Countersigned by NE-39c(O1/90)
>1
-Nuclear' Energy Uabilig insurance NUCLEAR ENERGY UA81UTY INSURANCE ASSOCIA t
WAIVER OF DEFENSES ENDORSEMENT (Extraord'. nary Nuclear occurrence) 1-The named insured, acting for himself and every other insured o
under the policy, and the members L
Insurance Association agree as follows:of Nuclear Energy Liability t
1.
With respect to any extraordinary nuclear occurrence to' 4
which the policy applies as-proof of financial protection p
and which L
(a)
L arises out of or results from or occurs in the course of the construction, possession, or operation of the facility, or (b) arises out of or results from or occurs in the course of the transportation of nuclear material to ce from the facility, the insureds and the companies agree to waive (1) any issue' or defense as to the conduct of the claimant or the faulc of the insureds, including but not limited to:
3 (1) negligence.
l (ii) contributory negligence.
(iii) assumption of risk, and L
(iv) unforeseeable intervening causes.
whether i
l involving the conduct act of God.
of a third - person, or-an (2) any issue or defense as to charitable or governmental immunity, and (3) any issue or defense based on any statute of limitations.if suit from the date on which theis instituted.within three years claimant first " knew, or reasonably could have known. of his bodily injury or property damage and the cause thereof.
l The waiver of any such issue or defense shall be effective be deemed jurisdictional or relating to an elementregard h
cause of action.
in the 2.
The waivers set forth in paragraph 1. above do not apply l-(a) bodily injury.
proporcy damage or environmental 1
damage which is intentionally sustained by the L
claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant:
NE-33c(1/1/90)
Page 1 of 3 L
m
l l
ll r..
i t,,
L I
(b) bodily injury sustained by any claimant who is s
employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefor are either payable or required to be provided under any workmen's compensation or occupational disease law:
(c) any claim for punitive or exemplary
- damages, provided, with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature, this exclusion does not apply to the extent that the claimant has sustained actual damages, measured by the pecuniary injuries resulting from such death but not -to exceed the maximum amount otherwise recoverable under law.
3.
The waivers set forth in paragraph 1,
above shall be effective only with respect to bodily injury, property damage or environmental damage to which the policy applies
.under its terms other than this endorsement:
- however, that. with respect to bodily injury, provided, damage or environmental. damage resulting from an property extraordinary nuclear occurrence, the provisions of COVERACg8 A and C of the policy providing coverage for bodily injury, property damage or environmental damage caused during. the policy period by the nuclear energy hazard and which is discovered and for which written claim-is made against the insured not later than ten (10) after the and of the policy period shall not.
years bar coverage for bodily - injury, property damage or operate to environmental-damage (a). which is caused during the policy period by the ouclear energy-hazard and is discovered and for which written claim is made against (b) which the insured not later than twenty date of the extraordinary nuclear occu(20) years after the
- rrence, f
such waivers shall not apply to, or r.eje
- ne prosecution or defense of any claim or portien :#.:laim which is not within the protection afferdad under (a) the provisions of the financial protection requ. policy applicable to the ired of the named insured:
(b) the agreement of indemnification between the named insured and the Nuclear Regulatory Commission made pursuant to Section 170 of the Atomic Energy Act 1954, as amended: and of (c) the limit of liability provisions of Subsection 170s.
of the Atomic Energy Act of 1954, as amended.
Such waivers shall not preclude a defense based upon the failure of the claimant to take reasonable steps to mitigate damages.
NE-33c (1/1/90)
Page'2 of 3 1
y L
l l
~ 4.
Subject to all of the limitations stated in this-I endorsement and in the Atomic Eneqy Act of 1954 as amended, the waivers set forth in paragraph 1. above shall be judicially enforceable in accordance with-their terms against any insured in _ an action to recover damages because of bodily injury, property damage or_ environmental damage to which the policy applies as proof of financial protection.
5.-
As used herein:
" extraordinary nuclear occurrence" means an event which the Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as defined in the u omic y
Energy Act of 1954, as amended.
" Financial protection" and " nuclear incident" have the meanings given them in the Atomic Energy Act of 1954 as amended.
" claimant" means the person or organization actually sustaining the bodily
- injury, property damage or environmental damage and also includes his assignees,
=
legal representatives and other persons or organizations entitled to bring an action for damages on account of such injury or damage.
"his is to certify IFat this is a true copy of the original Erdersement tw. ins the endorsement mbor and being made part of the Nuclear Energy Liability Pohey acibty Form) as ' des-b3natec hetep oI wicunder.
John L ttrocchi, We Presdent Underwr:tav)
Arnencan Nudear insurers
.., is Effective Date of this Endorsement January 1, 1990 To fors a part of Policy No.
NF-83 12:01 A. M. Standard time Issued.to Babcock & Wilcox Company 6 ate of' Issue February i6, 199')
For the S ribing C panies, By I f_ _ e A_
gjewimar ' ~
Endorsement No.
128 Countersigned by
\\
NE-33c (1/1/90)
Page 3 of 3
y t
x Nuclear Energy Liability insurance NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION Restriction of Companies Oblication to Defend.
Investicate, Necotiate oI.,, Settle Any Claim or Suit (Section 170 0.
of the Atomic Energy.
Act of 1954, as amended)
Ef fective August 20, 1988, it is agreed that whenever, pursuant to subsection 170 0.
of the Atomic, Energy Act of 1954,- as
- amended, an appropriate U.S.
District Court determines that liability from a single nuclear incident may exceed the limit of liability under the applicable limit of liability-'under subsection 170 e.(1) (A), (B) and (C) of the Atomic Energy Act of
- 1954, as
- amended, the companies obligations under Insuring Agreement.
I, to defend, investigate, negotiate or settle any claim or suit under the policy do not include any obligation that' would necessitate' or result in the companies incurring legal
- costs, including costs of initiating, prosecuting, investigating, settling, or defending claims or suits, which are not authorized for payment by a court pursuant to such subsection 170 0.
s f h original This is to certify that this is a true copy o t e d being trede part EndorecAent having the endorsement igmtw anE wrcunder.
of the Nach ob ianatec hae M
g John L Q simxchi, %ce Presuknt VMeswntzi. ;nulih Anwncan h!re insurm Effective.Date of this Endorsement August 20, 1988 To form a part of Policy llo. NF-83 12:01 4.o standard ti.e Issued to Babcock & Wilcox Company Date of issue February 16, 1990 For the su ibing Co anies By PahT""f Endorsement No. _ 12 Countersigned by i-j NK-70 l
j
Nuclear Energy Liability Insurance NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION p
SUPPLEMENTARY ENDORSEMEt:f WAIVER OF DEFENSES U
REACTOR CONSTRUCTION AT THE FACILITY Effective August 20, 1988, it is agreed that in construing the
]
application of paragraph 2(b) of the WAIVER OF DEFENSES ENDORSEMENT NE-33b with respect to an extraordinary nuclear occurrence occurring at the
- facility, a-claimant who is.-
employed at the facility in connection with the construction of a nuclear reactor with respect to which no operating license has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the extraordinary. nuclear occurrence takes place if:
(1) the claimant is employed exclusively in connection with the construction of a nuclear reactor, including all related equipment and installations at the facility, and (2) no operating license has been issued by the Nuclear Regulatory Commission with respect to the nuclear reactor, and (3) the claimant is not employed in connection with the possession,
- storage, use or transfer of nuclear material at the facility.
This is to ecrtify that this is a true copy of the original Endorsement haning the endorsement numbor and being made part.
of the
'uclear Energy Liai.fity Po! icy (. cili'y Form) as des-ignated mrcon No Inst w'
~< J hereunder. '
T.
John L ( trnahi, VKe President Underwn i j Anwron Nu&ar Insurers Effective Date of this Endorsement August 20, 1988 To form a part of Policy No.
NF-83 12:01 A. M.- Standard time e
Issued to Babcock & Wilcox Company
-Date of Issue February 16, 1990 For the s ribing
- panies, by lMW
\\lpresident I Endorsement No.
126 Countersigned by NE-39b 1
.(__
1 (m)
Unless the Board decides otherwise, each. party shall l~
pay the expenses of the arbitrator appointed by or for. it and one half of the other costs of.
arbitration.
(n)- If an arbitrator or umpire is unable or unwilling to
.act, a new arbitrator or umpire, as the case may be, shall be appointed to act in his ot her place, in k
accordance with the provisions set forth above.
(o)
All naterials relevant to the arbitration shall be submitted to the Board in triplicate and the filing party shall send simultaneously a copy.thereof to the opposing party.
4 12.
This. endorsement applies to all claims for damages,' costs, R^
expenses ort other relief or recovery for which' coverage is sought' under _ this policy, and which are first made in.
writing against any insured on or after the effective'date of this endorsement stated below.
.(
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iu a-i.w
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i
,g 10 Ef fective Date of this Endorsement January 1. 1990 l
12:01 A.H. Standard Time To form a part of Policy No.
MF-85 L
lasued to Babcock & Wilcox Company
'Date'of Issue February 16. D90 a
For the Subscribing Companies.
t MUTUAL ATOMIC ENERef LIABILITT ITNDE.RVRITERS e
By
- C*
d_
~
Endorsemen't No.
73-lL countersigned by_
. ME-71-(1/1/90)
Authorized Representattve 1
11 I
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