FRANK X. LANE et al. v. TISHMAN CONSTRUCTION CORPORATION OF NEW JERSEY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4258-05T54258-05T5

FRANK X. LANE and LAURA LANE, his wife,

Plaintiffs,

v.

TISHMAN CONSTRUCTION CORPORATION OF

NEW JERSEY, YATES CONSTRUCTION

CORPORATION OF NEW JERSEY, BOYD

ATLANTIC CITY, INC., MAC CORP.,

MARINA DISTRICT DEVELOPMENT COMPANY,

LLC, HARRIS-CAMDEN TERMINAL CO.,

SMI-OWEN STEEL COMPANY, HELMARK

STEEL, INC., and SAFETY AND QUALITY

PLUS, INC., jointly, severally and

in the alternative,

Defendants,

and

TISHMAN CONSTRUCTION CORPORATION OF

NEW JERSEY, YATES CONSTRUCTION

CORPORATION OF NEW JERSEY, BOYD

ATLANTIC CITY, INC., MAC CORP., and

MARINA DISTRICT DEVELOPMENT COMPANY,

LLC,

Third-Party Plaintiffs- Respondents,

v.

TERRA NOVA INSURANCE COMPANY and GENERAL STAR INDEMNITY,

Third-Party Defendants

and

TERRA NOVA INSURANCE COMPANY, n/k/a MARKEL INTERNATIONAL INSURANCE COMPANY,

Fourth-Party Plaintiff- Appellant,

v.

SAFETY AND QUALITY PLUS, INC.

Fourth-Party Defendant- Respondent.

 

Argued March 19, 2007 - Decided April 11, 2007

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Law Division, Camden County,

L-1846-03.

Richard D. Picini argued the cause for appellant (Picillo Caruso O'Toole, attorneys; Mr. Picini, of counsel; Jennifer L. Bocchi, on the brief).

Richard C. Bryan argued the cause for respondents (Martin, Gunn & Martin, attorneys for respondents Tishman Construction Corporation of New Jersey, Yates Construction Corporation of New Jersey, MAC Corp., and Marina District Development Company; McKenna, DuPont, Higgins & Stone, attorneys for respondent Safety and Quality Plus, Inc.; Mr. Bryan, Burchard V. Martin, and Michael DuPont, on the joint brief).

PER CURIAM

This appeal involves an insurance coverage dispute arising out of an accident that occurred in October 2001 during the construction of the Borgata Hotel Casino and Spa (Borgata) in Atlantic City. The underlying action was brought by Frank Lane and his wife for injuries received by Lane while working on the Borgata project. Lane sued the project manager, Yates/Tishman; the owner, Marina District Development Company (MDDC); Safety and Quality Plus, Incorporated (SQP), a safety consultant on the job; as well as several other subcontractors. Third-party and fourth-party declaratory judgment claims were filed seeking declaratory judgment respecting liability insurance coverage.

On September 16, 2005, during the pendency of the underlying claim, summary judgments were entered on the third- and fourth-party complaints, requiring Terra Nova Insurance Company (Terra Nova) to provide a defense and indemnification to its insured, Safety and Quality Plus, Inc., and primary liability coverage to Yates/Tishman and MDDC under its Commercial General Liability (CGL) policy.

Following entry of the summary judgment order and prior to trial, Liberty Mutual Insurance Company, the commercial general liability insurer for Yates/Tishman and MDDC, entered into a settlement and funding agreement with Terra Nova by which each agreed to pay $672,500 to settle the underlying case. Terra Nova reserved its right to appeal from the September 16, 2005, order for summary judgment. On appeal, Terra Nova raises the following points:

POINT I

THERE IS NO COVERAGE FOR SQP UNDER THE CGL POLICY BECAUSE THE CLAIMS AGAINST SQP TRIGGER THE "PROFESSIONAL SERVICES" EXCLUSION.

A. The Trial Court Erroneously Ruled that the "Professional Services" Exclusion Under the CGL Policy is Inapplicable.

B. SQP Maintained a Separate Professional Liability Policy and Therefore did not Reasonably Expect Coverage for Mr. Lane's Claims under the CGL Policy.

POINT II

THE TRIAL COURT ERRONEOUSLY RULED THAT THE CGL POLICY'S "OTHER INSURANCE-EXCESS COVERAGE" ENDORSEMENT IS AMBIGUOUS AND THAT THE GENERAL TERMS OF THE CGL POLICY RENDER IT PRIMARY IN NATURE.

We reject Terra Nova's contentions and affirm. The facts are substantially undisputed.

Lane, a union ironworker foreman employed by Falcon Steel, a subcontractor at the construction site, was injured when a load of structural steel shifted on a flatbed-trailer, causing the structural steel to roll off the trailer onto Lane. The trailer, which had been placed at the site earlier, had sunk into the ground, causing it to tilt to one side. Prior to the accident, Dwayne Carter, a safety manager employed by SQP, was consulted on the decision by the ironworkers to attempt to right the load using a crane. Carter responded, "[f]ine, that's what you're going to do" and went into his office. Carter admitted that when the crew notified him of their decision he did not discuss any safety procedures that might be employed. An expert in the underlying suit provided a report that Carter knew that the crew was going to try to pick up the load and, therefore, should have had Falcon prepare a Job Safety Analysis and pre-plan the work as outlined in the Borgata Construction Safety and Health Guidelines.

Yates/Tishman contracted with SQP to provide Yates/Tishman and MDDC with "the knowledge, skills, ideas, experience and abilities" of Carter, as a site safety manager. The agreement provided in pertinent part that Carter would conduct inspections for items required by OSHA, daily inspections for compliance with OSHA regulations, and spot checks. The agreement required SQP to provide insurance during the performance of its services. It also required that Yates/Tishman and MDDC be named as additional insureds for general and automobile liability. The agreement required SQP to "indemnify, defend and hold [Yates/Tishman] and [MDDC] harmless against and from all claims, damages, judgments, fines, penalties and costs (including, but not limited to, counsel fees and expenses) arising out of, or in connection with, the [s]ervices."

Terra Nova issued its CGL policy with $1,000,000/2,000,000 coverage limits to SQP, effective September 13, 2001, for the term ending September 13, 2002. Section I of Terra Nova's policy provided coverage for bodily injury, including contractual liability for "those sums that the insured becomes legally obligated to pay as damages."

We first address the issue raised in Point I of Terra Nova's appellate brief that the judge erred in disregarding the professional services exclusion in Terra Nova's policy. The declaration page issued with the Terra Nova policy indicated "SAFETY ENGINEER COVERED BY RAMPART FOR PROF." It also identified the premium classification as "CONSULTING ENGINEER" and the total advance premium of $1500. The policy also contained an exclusion entitled "PROFESSIONAL SERVICES EXCLUSION," which provided: "This insurance does not apply to claims or any defense costs arising out of the provision of or the failure to provide professional services." It is noteworthy that there was no definition provided in the policy for professional services.

Rampart Insurance Company (Rampart) provided SQP with a professional liability policy. The Rampart policy had coverage limits of $1,000,000 per claim and $2,000,000 in the aggregate. The declaration page indicated that "Assureds' Professional Service Covered By This Policy: independent safety consulting services for a fee." Section I of the policy provided that Rampart would "pay on behalf of the Assureds any loss which the Assureds shall become legally obligated to pay for Claims . . . by reason of any wrongful act solely while in the performance of professional services stated in the Declarations which are rendered by or on behalf of the Assureds."

In deposition testimony, Carter related his experience pertaining to his role as safety manager. Carter graduated from high school in 1982 and then worked as a draftsman for approximately three years. Following three years of service in the Army, Carter began working as an intern at Tishman in 1988 where he was an assistant superintendent at Riverbank State Park in New York. During his internship at Tishman, Carter received on-the-job training as opposed to classroom instruction. After his internship, Carter worked briefly at Radio City and then worked for the New York State Office of General Services as a superintendent and assistant superintendent. Carter worked for New York State for approximately two years, and then began working for private firms as a superintendent of construction. In 1995 or 1996, Carter began working for SQP as a licensed site safety manager.

At the time of the incident, Carter's safety training included a certification in general construction practice by the State of New York, ten hours of OSHA training, forty hours of a licensed safety management course, and Troxler training for soil compaction. The licensed safety management course required Carter to take an exam administered by New York City, as well as "refresher courses" every three years to maintain his safety management license.

The judge found that Terra Nova's CGL policy provided coverage to SQP because Carter was not performing professional services at the time of the accident. He further found that the policy's professional exclusion was ambiguous. In reaching his finding that Carter was not providing a professional service, the judge commented:

He's not using -- there's no special learning, there's no intellectual skill. There's no labor that's predominantly mental or intellectual. He's basically just a construction worker that had some additional OSHA training, this is not what's contemplated by a doctor or an engineer or they can build a bridge that doesn't fall down.

The term professional services, in the context of the public bidding statutes, was addressed in N.E.R.I. Corp. v. N.J. Highway Auth., 147 N.J. 223, 237-38 (1996). The Court in N.E.R.I. held that an automobile towing service provided to the New Jersey Highway Authority did not fall within the ambit of "professional services" so as to be exempt from bidding requirements. The Court relied on the following definition of professional services in N.J.S.A. 40A:11-2(6):

"Professional services" means services rendered or performed by a person authorized by law to practice a recognized profession, whose practice is regulated by law, and the performance of which services requires knowledge of an advanced type in a field of learning acquired by a prolonged formal course of specialized instruction and study as distinguished from general academic instruction or apprenticeship and training. Professional services may also mean services rendered in the provision or performance of goods or services that are original and creative in character in a recognized field of artistic endeavor.

The Court went on to note that the above "definition is helpful because it is consistently used by the New Jersey Legislature when defining 'professional services' in other statutes. See, e.g., N.J.S.A. 17:16C-1(u) (Retail Installment Sales Act); N.J.S.A. 18A:18A-2h (Public Schools Contracts Law)." N.E.R.I., supra, 147 N.J. at 237. It further noted:

The word "profession" is defined as "[a] vocation or occupation requiring special, usually advanced, education, knowledge, and skill. . . ." Black's Law Dictionary 1210 (6th ed. 1990). "The essence of a professional service is that it involves 'specialized knowledge, labor or skills and the labor or skill is predominately mental or intellectual, rather than physical or manual.'" Baylinson v. Board of Comm'rs., 282 N.J. Super. 132, 135, 659 A.2d 537 (Law Div. 1995) (citation omitted); see also N.J.S.A. 2A:44A-2 (defining professional services as "performed by a licensed architect, engineer or land surveyor . . . who is not a salaried employee of the contractor"); N.J.S.A. 19:44A-3(f) (illustrating professional services as "public relations, research, legal, canvassing, telephone, speech writing"); N.J.S.A. 34:1B-7.22 (stating professional services include services of an engineer, inspector, planner, lawyer, financial advisor, bond registrar, or authenticating agent); N.J.S.A. 17:16C-1(u) (defining professional services as services rendered by a professional person legally authorized to practice a recognized profession); N.J.S.A. 18A:18A-2(h) (same as above).

[Id. at 237-38.]

Carter did not hold a degree in engineering or architecture nor did he engage in any prolonged formal course of training. Contrary to Terra Nova's contention, Carter was neither "a person authorized by law to practice a recognized profession" which is "regulated by law," nor did the services provided involve "knowledge of an advanced type in a field of learning acquired by a prolonged formal course of specialized instruction." Carter's training was more akin to general academic instruction, training, and apprenticeship as a construction supervisor or foreman rather than a professional who is paid a fee for his specialized service.

Terra Nova argues that because the services performed by Carter were oriented more toward intellectual or mental pursuits rather than manual endeavors, they were professional in nature. Although it is true that intellect versus manual labor is a factor to be considered, there are few, if any, jobs in this day and age where intellect is not used in some form. We agree with the judge's finding that Carter's job description and the services he provided did not rise to the level of professional services, triggering the exclusion.

We move on to discuss the policy's professional service exclusion and other insurance provisions and whether they effectively limited coverage. The general principles are well settled. Interpretation of an insurance contract is a question of law and, therefore, properly the subject matter for summary judgment. Adron, Inc. v. Home Ins. Co., 292 N.J. Super. 463, 473 (App. Div. 1996). "When the terms of the contract are clear and unambiguous, [we] must enforce the contract as it is written; the court cannot make a better contract for parties than the one that they themselves agreed to." Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 428 (App. Div. 2004); see also Flynn v. Hartford Fire Ins. Co., 146 N.J. Super. 484, 488 (App. Div.), certif. denied, 75 N.J. 5 (1977).

When the language of a policy is ambiguous such that it suggests two reasonable meanings, "one favorable to the insurer and one favorable to the insured, the interpretation supporting coverage will be applied." Simonetti, supra, 372 N.J. Super. at 428; see also President v. Jenkins, 180 N.J. 550, 563 (2004) (citing Doto v. Russo, 140 N.J. 544, 556 (1995); 495 Corp. v. N.J. Ins. Underwriting Ass'n, 86 N.J. 159, 164 (1981)); Martusus v. Tartamosa, 150 N.J. 148, 159 (1997); Ellmex Constr. Co. v. Republic Ins. Co., 202 N.J. Super. 195, 204 (App. Div. 1985), certif. denied, 103 N.J. 453 (1986); Corcoran v. Hartford Fire Ins. Co., 132 N.J. Super. 234, 243 (App. Div. 1975). An insurance contract is only considered ambiguous "where the phrasing of the policy is so confusing that the average policyholder cannot make out the boundaries of coverage." Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979); Lee v. Gen. Accident Ins. Co., 337 N.J. Super. 509, 513 (App. Div. 2001).

Where an insurer claims the matter in dispute comes within exclusionary provisions of the policy, it bears the burden of establishing that claim. Hartford Accident & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 26 (1984). Coverage clauses are interpreted liberally, whereas exclusions are strictly construed. Butler v. Bonner & Barnewall, Inc., 56 N.J. 567, 576 (1970); Simonetti, supra, 372 N.J. Super. at 429; Ellmex Constr. Co., supra, 202 N.J. Super. at 205. Like any contract, construing insurance policies requires a broad search "for the probable common intent of the parties in an effort to find a reasonable meaning in keeping with the express general purposes of the policies." Royal Ins. Co. v. Rutgers Cas. Ins. Co., 271 N.J. Super. 409, 416 (App. Div. 1994). Insurance contracts are to be interpreted so as to effectuate the reasonable expectations of the insured. Zuckerman v. Nat'l Union Fire Ins. Co., 100 N.J. 304, 320-21 (1985).

The Terra Nova exclusion failed to define professional services. The declaration page indicated that "SAFETY ENGINEER COVERED BY RAMPART FOR PROF." It also indicated the premium classification was "CONSULTING ENGINEER." Lacking a clear definition of professional services, it would appear from the declaration page that the intent of the parties was for the exclusion to cover only safety engineers. Carter was not an engineer. His title was that of safety manager.

In another lawsuit, instituted in New Jersey arising out of a slip and fall accident occurring on a stairway at the Borgata Hotel in July 2002, the plaintiff, James Cotton, filed a complaint naming SQP and MDDC as defendants. Terra Nova filed a declaratory judgment complaint in the Supreme Court of New York, seeking to avoid coverage to SQP in the Cotton suit. In paragraph 85 of its complaint, Terra Nova asserted:

Since the Complaint alleges that the Policyholder is responsible for Mr. Cotton's accident because it was negligent in its role as a contractor at the Borgata Hotel, there is no coverage under the Policy for the claims against the Policyholder in the Cotton Lawsuit because the Policy only covers the Policyholder as a safety engineer or consulting engineer, but not as a contractor.

The position taken by Terra Nova in the New York action is inconsistent with the position taken here and would render its CGL policy illusory. It also illustrates the ambiguity in the "professional services" exclusion. Absent a definition for professional services in the policy, an insured viewing the declaration page would conclude that engineers, not non-degree managers, would be covered by the Rampart professional liability policy. Under those circumstances, the reasonable expectation of the insured was that Carter's services as a safety manager would be covered. Construing the exclusion clause narrowly, as we must do, we conclude that SQP was covered under Terra Nova's CGL policy for Carter's alleged negligent failure to act appropriately as a safety manager. Accordingly, even if we believed that Carter functioned as a professional in his job as a safety manager, which we do not, the Terra Nova CGL policy nevertheless provided coverage.

We move on to consider the arguments raised in the second point of Terra Nova's appellate brief that the judge erred in failing to enforce the other insurance endorsement in its policy. The Terra Nova policy contained the following other insurance provision in the body of the policy:

If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows:

a. Primary Insurance

This insurance is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in c. below.

b. Excess Insurance

This insurance is excess over any of the other insurance, whether primary, excess, contingent, or on any other basis:

(1) That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work";

(2) That is Fire insurance for premises rented to you or temporarily occupied by you with permission of the owner; or

(3) If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of Coverage A (Section I).

Attached as one of twenty-six endorsements was the following provision entitled "Other Insurance-Excess Coverage":

If other valid and collectable insurance is available to the insured for a loss covered under coverages A or B of the Commercial General Liability coverage part, our obligations are limited as follows:

1) Primary Insurance This insurance is primary except when 2) below applies

2) Excess Insurance This insurance is excess over any other insurance, whether primary, excess, contingent or on any other basis. . . .

Under sub-paragraph B "CHANGES" in the section entitled "COMMON POLICY CONDITIONS," found in the body of the Terra Nova policy, was the following provision:

This policy contains all the agreements between you and us concerning the insurance afforded. The first Named Insured shown in the Declarations is authorized to make changes in the terms of this policy with our consent. This policy's terms can be amended or waived only by endorsement issued by us and made a part of this policy. (emphasis added)

Twenty-one of the twenty-six endorsements and exclusions contained amendatory language or warnings. The warnings

included one of the following introductory phases: (1) "[n]otwithstanding anything contained in this policy to the contrary"; (2) "[t]his endorsement modifies insurance provided under [section]"; (3) "[t]he following provision changes coverage afforded by the [p]olicy"; or (4) "THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY." Significantly, the "Other Insurance-Excess Coverage" endorsement did not contain any amendatory language.

The other insurance provision found in the Liberty Mutual CGL policy covering MDDC and Yates/Tishman provided that "[t]his insurance is excess over . . . [a]ny other primary insurance available to you covering liability for damages arising out of the premises or operations for which you have been added as an additional insured by attachment of any endorsement." Both the Liberty Mutual policy and the Terra Nova policy contained the same "Method of Sharing" provision, stating:

If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first.

If the Terra Nova other insurance endorsement is given full effect, the Liberty Mutual policy with its $2,000,000 limit for each occurrence would be considered primary and Terra Nova's policy excess. Terra Nova would avoid contribution to the $1,345,000 settlement. If, on the other hand, the endorsement does not apply, the Terra Nova policy would be considered primary and would contribute its coverage limit of $1,000,000 to the settlement.

Focusing on the absence of any modifying or amendatory language in the endorsement itself, the motion judge found that the endorsement was ambiguous because it was in conflict with the other insurance language in the body of the policy. On appeal, Terra Nova asserts that the policy must be read as a whole, that the endorsement does not exclude coverage but merely changes the nature of the coverage from primary to excess when there is other valid and collectable insurance available. It argues that the language of the endorsement is not itself ambiguous and, thus, does not rise to the level of genuine ambiguity that should render it ineffective. Respondents counter, arguing that the conflicting portions of the Terra Nova policy create an ambiguity which should be resolved against the insurer.

First and foremost, under the Common Policy Conditions, the Terra Nova policy provided that the "policy's terms can be amended or waived only by endorsement." The only clear indication that the endorsement did, in fact, amend the policy was found in the endorsement itself. Thus, it was the language in the endorsement that amended the policy rather than the common policy conditions section.

Moreover, the other insurance excess coverage endorsement represented the only added provision that was in conflict with the language in the body of the policy that did not have a modification or amendatory warning. The Classification Limitation endorsement simply related that the insurance applied to the locations and operations described in the declaration page. The Independent Employee exclusion excluded injury to persons working for the insured if the insured rejected worker's compensation insurance. The Professional Service endorsement excluded claims arising from the providing of professional services, which, as we have already seen, was referenced in the declaration page by the language that indicated the safety engineer was to be covered by Rampart.

The contract between SQP and Yates/Tishman required SQP to provide general liability insurance for the benefit of MDDC and Yates/Tishman. The certificate of insurance named both MDDC and Yates/Tishman as insurance certificate holders of general liability coverage afforded by Terra Nova. The language in the body of the Terra Nova policy provided that it afforded primary coverage. The expectation on the part of MDDC and Yates/Tishman was that Terra Nova would respond as a primary carrier along with the insurance Yates/Tishman obtained from Liberty Mutual. The endorsement changing the policy to "excess over any other insurance" effectively eliminated Terra Nova's obligation as a primary insurer to Yates/Tishman and MDDC. It represented an attempt on the part of Terra Nova to reduce its obligation to respond as a primary carrier without a clear indication that it modified the policy.

Terra Nova's contention that the endorsement should be given full effect because the language of the endorsement itself was unambiguous is misplaced. The confusion grew out of the fact that the general policy language indicated that an endorsement "can amend or modify," not that it did, together with the existence of other amending endorsements that specifically warned that the endorsement modified, amended, or changed the policy provisions. The judge properly identified the ambiguity as failure to have modifying language. It is the lack of the amendatory language in the other insurance-excess coverage endorsement that prevented the assured from viewing the endorsement as a change in coverage. Simply put, under these circumstances, the insureds' reasonable expectation was that they would receive primary coverage from Terra Nova. Accordingly, the judge correctly found the other-insurance excess coverage endorsement to be ambiguous and in conflict with the policy provision and resolved the conflict in favor of the insureds.

Affirmed.

 

The parties include Boyd Atlantic City, Inc. as a respondent in the caption. Boyd Atlantic City was a third-party plaintiff, however, respondents do not identify Boyd as a respondent in their brief to this court.

Schedule A of the agreement set forth the services SQP would provide at the Borgata site, including: (1) "conduct inspections for items required by OSHA 1926 & local regulations and site specific safety plan and program"; (2) "identify deficiencies and report said deficiency as notices as required, complete inspection checklist as required as well as coordinate and review any other required paperwork"; (3) "conduct scheduled safety meetings, complete minutes and conduct follow up as required"; (4) "act as liaison to all government and third party representatives as required"; (5) "conduct daily inspections for compliance with OSHA CFR 1926.1 regulations"; (6) "serve as coordinator to identify and record sub-contractor competent person for operations required under [C]FR 1926 and subcontractor operational compliance"; (7) "spot check and attend sub-contractor safety meetings and coordinate obtainment of required paperwork"; and (8) "develop and provide safety training as required."

The Rampart policy was a claims made policy and was not in effect at the time the Lane complaint was filed. As a result, Rampart was not named as a party in the third- and fourth-party declaratory judgment actions.

Carter indicated that the Office of General Services is responsible for construction and rehabilitation of New York State office buildings.

The Classification Limitation Endorsement, Other Insurance-Excess Coverage Endorsement, Professional Service Endorsement, Independent Employees Exclusion, and Participants Exclusion did not contain amendatory language. The following endorsements or exclusions contained headings, amendatory language, or warnings indicating that the policy is being altered by the endorsement: (1) the Nuclear Energy Liability Exclusion Endorsement; (2) the Deductible Liability Insurance Endorsement; (3) the Total "Mold" Exclusion; (4) the Athletics or Sports Participants Exclusion; (5) the Coverage C - Medical Payments Exclusion; (6) the New Entities Exclusion; (7) the Contractual Liability Limitation Endorsement; (8) the Abuse or Molestation Exclusion; (9) the Employment Related Practices Exclusion; (10) the Total Pollution Exclusion; (11) the Assault and/or Battery Exclusion; (12) the Communicable Diseases Exclusion; (13) the Total Liquor Liability Exclusion; (14) the Volunteer Labor Exclusion; (15) the Year 2000 Exclusion; (16) the Punitive/Exemplary Damages Exclusion; (17) the Asbestos Exclusion; (18) the Electromagnetic Fields Exclusion; (19) the Lead Contamination Exclusion; (20) the Radon Gas Exclusion; and (21) the Limitations-Other Insurance endorsement.

(continued)

(continued)

22

A-4258-05T5

April 11, 2007