Free Motion for Partial Summary Judgment - District Court of Colorado - Colorado

Case 1:04-cv-00725-RPM

Document 41-30

Filed 07/01/2005

Page 1 of 3

DO INTERIM

POLICY AGREEMENT

FUN1MNG

J1
IS THI THIS THI AGREEMENT ENTERED INTO THIS WESTCHESTER FIRE INSURANCE KNOWN
AS

4AY

OF

THE

COMPANY WICHESTER AND THE THE QUIZNO CORPORATION QUIZNOS QUIZNO QUIZNOS OR THE INSURED TOGETHER PARTIES
HAVE THE FOLLOWING PROCEEDING PROCEEDINGS BEEN MADE SEHESTA
V

2002 BY AND BETWEEN QUIZNOS QUIZNO MASTER LLC FORMERLY

WHEREA WHEREAS

OR AGAINST BROUGHTTHE INSURED BY

EDWARD C

AND COURTCITY THE

SCHADENET AL OF A COUNTY DENVERCOLORADOND
RICHARD F

CASE NO

01 CV

6281

DISTRICT

V WILLIAM QUIZNO QUIZNOSCORPORATION FAGANET P1 CASE NO 02 CV 2598 THE LAWSUIT OF DISTRICT TOGETHER LAWSUITS COURT CITYAND COUNTY DENVERCOLORADO

OF FEE TO FROM WESTCHESTER FEES ASSERT QUIZNO ASSERTS THATIT IS ENTITLED RECEIVE QUIZNOS PAYMENT RUDNICK WOLFE RUDNICK LLP FORMERLY KNOWN AS PIPER AND EXPENSE INCURREDBYPIPER MARBURY EXPENSES GORRELLLLP AND HARRISON LLP MOYE GILES OKEEFE VERMEIRE GILE LLP BROBECKPHIEGER LAWSUIT OF LLP DEFENSECOUNSELIN CONNECTION WITH THE LAWSUITSON BEHALF ITSELFAND ITS PURVI PURVIS GRAY PROTECTIONINSURANCE POLICYO DON N AND OFFICERSPURSUANT THE TERMS OF MANAGEMENT OFFICER TO TERM DIRECTOR DIRECTORS 648451 THEPOLICY ISSUED BYWESTCHESTER TO THE QUIZNOS QUIZNO CORPORATION

WHEREA WHEREAS

WHEREA WHEREAS

THE PARTIESHAVE RESERVED AND CONTINUE PARTIE TO

RESERVE

ALLOF THEIR RESPECTIVE RIGHT RIGHTS

TO THE LAWSUITS DEFENSE TO A AT LAWSUIT AND DEFENSESWITH RESPECT THE POLICYND AVAILABLE LAW RELATING

THAT QUIZNO MASTER LLC HAS ASSUMED QUIZNO REPRESENTS THE QUIZNOS QUIZNOS REPRESENT UNDER A THI AND OBLIGATION THE QUIZNOS OF OBLIGATIONS QUIZNO CORPORATION THE POLICYND THIS AGREEMENT

WHEREA WHEREAS

ALL THE RIGHTS RIGHT

WELEREA WELEREAS

WESTCHESTER AND

WHICH HAVE BEEN COVERAGEPOSITIONS POSITION AND THE LAWSUITS TO THE POLICY LAWSUIT AND RESPECT

OF AND ALL RESERVATIONS RIGHTS RESERVATION RIGHT QUIZNO HEREBY QUIZNOS INCORPORATE WITH OR QUIZNOS OR WILL BE ISSUED BYWESTCHESTER QUIZNO RESPECTIVELY

WHEREA WHEREAS
EXPENSE EXPENSES INCURRED

WESTCHESTER IS

TO WILLING MAKE

OF FEE ADVANCEMENT ADVANCEMENTS TO THE INSURED THE FEES AND THE
TO LAWSUIT LAWSUITSSUBJECT

BY THE INSURED IN CONNECTIONWITH AND THI CONDITION OFTHEPOLICY THISAGREEMENT CONDITIONS
NOW THEREFORE
IN CONSIDERATION OF THE

THE TERMS AND TERM

AND COVENANT AND COVENANTS FOREGOING THE FOLLOWING FOLLOW FOLLOWS AND VALUABLE CONSIDERATION PARTIES THE PARTIE HEREBY FOROTHERGOOD AGREEAS
1

WESTCHESTER SHALL ADVANCE TO THE INSURED

SIXTYSEVEN PERCENT 67

OF

FEE FEES LEGAL

ON CHARGEDAND EXPENSES INCURRED DEFENSE COUNSEL BY BY EXPENSE SETTLEMENT AND DEFENSEOF OFFICER OFFICERS IN THE INVESTIGATION NEGOTIATION

AND ITSDIRECTORS DIRECTOR AND BEHALF THE INSURED OF THE LAWSUITS TO THE EXTENT LAWSUIT

WESTCHESTERDETERMINES SUCH FEES AND EXPENSES ARE REASONABLE DETERMINE FEE EXPENSE NECESSARYAND OTHERWISECOVERED THATTHE ADVANCEMENT OF DEFENSE COSTS BY COST UNDER THE POLICY EFENSECOSTS PROVIDEDOWEVER COST H D HEREUNDERWITH RETENTION 250000 OF WESTCHESTERSHALL BE SUBJECT TO REQUIRED ANY PAYMENT THI TO TO TO COST STATEMENT PRIOR THE EXECUTIONOF THIS RESPECT DEFENSE COSTS STATEMENTS PROVIDED WESTCHESTER OF THI AFTER THE EXECUTION THIS AGREEMENT SHALLBE RENDERED WITHIN FORTYFIVE DAYS 45 DAY AGREEMENT
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QWEST00230

Case 1:04-cv-00725-RPM

Document 41-30

Filed 07/01/2005

Page 2 of 3

2

WESTCHESTER SHALL ADVANCE DEFENSE COSTS COST OF

AMOUNT AGGREGATE

300000

IN

EXCES EXCESS

OF

TO THI PURSUANT THIS AGREEMENT TO AN UP WHEN 250000 RETENTION ROVIDED HOWEVER P

WESTCHESTERHAS ADVANCED FUNDS FUND

TOTALING 300000

THE PARTIESSHALL HAVE THE PARTIE

T OR RIGHTO CHANGE

THE ALLOCATIONOF ANY ADDITIONAL DEFENSECOSTS RENEGOTIATE COST BASED ON 3 THE INSURED
OR

THE FACTSTHEN KNOWN FACT

DEFENSECOUNSELSHALL SUBMIT TO WESTCHESTERN O BASI BASIS QUARTERLY ITEMIZED DEFENSECOST STATEMENTS COSTS STATEMENT SETTING THE NATURE OF THE INDIVIDUAL SERVICES FORTH SERVICE RENDERED THE
OF THE SERVICETHE IDENTITY THE INDIVIDUAL ATTORNEY TO SERVICE PROVIDING SERVICES TIME ALLOCATED THE SPECIFIC AND OF ALL COST RATE RATES DESCRIPTION DISBURSEMENTSDEFENSECOSTS SHALLBE CALCULATEDAT HOURLY NO HIGHER THAN THE RATES PREAPPROVEDWESTCHESTER FOREACH ATTORNEY RATE SERVICE IN SERVICES CONNECTION BY PERFORMING WITH THE LAWSUITS FEE AND EXPENSE STATEMENTS STATEMENT WESTCHESTERSHALL ADVANCE TO THE INSURED THE DEFENSE COST ITEMIZED THEREIN WHICH COSTS 4

WITHIN

OF ITEMIZED FORTYFIVE DAYS RECEIPT SUCH QUARTERLY 45 DAY OF

WESTCHESTER DETERMINE TO DETERMINES BE REASONABLE UNDER THEPOLICY PRELIMINARILY NECESSARYAND COVERED
5

ALL DEFENSE COSTSSTATEMENTS AND OTHER COST STATEMENT COMMUNICATION UNDER THIS AGREEMENT COMMUNICATIONS THI TO

WESTCHESTERSHALLBE ADDRESSED TO KENNETH D

MILBAUER ESQ

VICE PRESIDENT PROFESSIONAL RISK
ACE 140 NEW USA 40TH BROADWAY FLOOR

YORK NY

10005

6

WESTCHESTER SHALL SEND ALL

PAYMENT AND PAYMENTS

OTHER COMMUNICATIONS UNDER COMMUNICATION

OR

WITH

TO THI TO RESPECT THISAGREEMENT

PATRICK MEYERSESQ E MEYER VICE PRESIDENTGENERAL COUNSEL
THE

QUIZNO MASTER LLC QUIZNOS

1415 LARIMER STREET

DENVERCOLORADO80202
IN THE EVENT THEREIS ANY DISAGREEMENT BETWEEN WESTCHESTERND THE INSURED ANDOR A DEFENSE COUNSEL CONCERNING FORMOF ANY DEFENSE COSTSSTATEMENT OR WHETHERANY FEES OR THE COST FEE COST EXPENSE EXPENSES SET FORTHIN ANY DEFENSE COSTS STATEMENT ARE REASONABLE NECESSARY AND COVERED UNDER THE WESTCHESTER SHALLCONFERWITH THEINSURED ANDOR DEFENSE COUNSELIN AN ATTEMPT RESOLVE POLICY TO THE DIFFERENCES NEGOTIATIONSUCH DISAGREEMENT RESOLVED BY NEGOTIATION DIFFERENCEBY IF IS NOT WESTCHESTER SHALL HAVE NO OBLIGATIONADVANCETHE DISPUTED TO AMOUNT UNTIL SUCH DISPUTE RESOLVED THROUGH IS 7

ARBITRATION LITIGATION NEGOTIATION MEDIATION OR
8 THE INSURED THAT THI ACKNOWLEDGE ACKNOWLEDGES ALL PAYMENTS PAYMENT MADE UNDER THIS AGREEMENT BY TO AND SHALL THE LIMIT OF LIABILITY UNDER THE POLICYNLESS AND UNLES U APPLIED DEPLETE

WESTCHESTER SHALL BE

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QWEST0023

Case 1:04-cv-00725-RPM

Document 41-30

Filed 07/01/2005

Page 3 of 3

15

THI THIS

EACH AGREEMENT BE EXECUTED IN COUNTERPARTS OF WHICH MAY COUNTERPART INSTRUMENT THE PARTIES HAVE SET THEIR PARTIE HAND HANDS

SHALLBE DEEMED TO

CONSTITUTE ONE AND THE SAME IN WITNESS WITNES

THEREOF

AS

OF THE DATE SET FORTH ABOVE

WESTCHESTER COMPANY

FIRE

INSURANCE

BY
NNETH D ITS

MILBAUER

VICE PRESIDENT PROFESSIONAL RISK

QUIZNO QUIZNOS MASTERIJC KNOWN AQ3FL2NOS FORMERLY AQ3FL2NO
THE

ICK
ITS

E

MEYER MEYERS

VICE PRESIDENT AND GENERAL COUNSEL

COL 2912911 7057716158

4

QWEST00232