OWENS CORNING SALES, LLC et al v. LIQUID ASPHALT SYSTEMS, INC. et al Complaint

8/3/2019 OWENS CORNING SALES, LLC et al v. LIQUID ASPHALT SYSTEMS, INC. et al Complaint

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IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

OWENS CORNING SALES, LLCOne Owens Corning ParkwayToledo, OH 43659

ACE AMERICAN INSURANCE COMPANY436 Walnut StreetPhiladelphia, PA 19105

Plaintiffs,

vs.

LIQUID ASPHALT SYSTEMS, INC.

Serve Registered Agent:Terry L. WilliamsSteven F. Jones2501 Anaconda RoadHarrisonville, MO 64701

BLACK WOLF LEASING CORPORATIONServe Registered Agent:

Terry L. WilliamsSteven F. Jones2501 Anaconda RoadHarrisonville, MO 64701

Defendants.

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Case No. 4:12-cv-00026

COMPLAINT

In accordance with 28 U.S.C. § 2201, Plaintiffs Owens Corning Sales, L

Corning”) and Ace American Insurance Company (“Ace”) (hereinafter collectively



NATURE OF THE ACTION

1. In this declaratory judgment action, Plaintiffs seek declaratory relie

28 U.S.C. §§ 2201 and 2202. Plaintiff Owens Corning rented a temporary asph

Defendant Liquid Asphalt in order to perform maintenance on its existing perm

tank structure. Two of Owens Corning’s employees were injured in an acciden

claim was the result of a defect in the design of Liquid Asphalt’s tank. They subs

product liability lawsuits against Liquid Asphalt. Liquid Asphalt has demande

Corning defend and indemnify Liquid Asphalt with respect to these lawsuits, based

agreement between Owens Corning and Liquid Asphalt. Plaintiffs seek decl

establishing that Plaintiffs are not liable to defend and indemnify Liquid Asphalt

any related disputes among the parties.

PARTIES

2. Owens Corning Sales, LLC is a limited liability company. Owens C

LLC’s sole member is Owens Corning. Owens Corning is a Delaware corpor

principal place of business in Ohio. Owens Corning Sales, LLC is therefore

Delaware and Ohio for purposes of determining diversity jurisdiction.

3. Ace American Insurance Company is a corporation organized unde

Pennsylvania, with its principal place of business in Pennsylvania, and is therefor

Pennsylvania for the purposes of determining diversity jurisdiction.

4. Liquid Asphalt Systems, Inc. is a corporation organized under



5. Black Wolf Leasing Corporation is a corporation organized unde

Missouri with its principal place of business in Missouri, and is therefore a citizen

for purposes of determining diversity jurisdiction. Upon information and belief

filed a voluntary dissolution effective March 21, 2011.

JURISDICTION AND VENUE

6. This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(

the amount in controversy exceeds $75,000, exclusive of interest and costs, an

between citizens of different states.

7. This Court has personal jurisdiction over the Defendants because the

of the State of Missouri.

8. Venue is proper in this Court under 28 U.S.C. § 1391(a)(1)

Defendants reside in this judicial district.

9. These causes of action for declaratory relief are brought pursuant to

2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure.

10. An actual and justiciable controversy exists between the Plaintiffs an

within the meaning of 28 U.S.C. § 2201 regarding whether Owens Corning is obliga

and indemnify Liquid Asphalt, and the rights and obligations of Plaintiffs and D

connection therewith, as alleged below.

THE UNDERLYING LAWSUITS

11. Liquid Asphalt has demanded defense and indemnity from Owens C



(a) Anthony Jones, et al. v. Rand Construction Company, et al., No. 10

(the “Jones Lawsuit”) (copy of Jones Amended Petition attach

“Exhibit A”); and

(b) Lester Pruett v. Rand Construction Company, et al., No. 1016-C

“Pruett Lawsuit”) (copy of Pruett Amended Petition attached heret

B”).

12. The Jones Lawsuit was filed on December 6, 2010. It alleges,

things, that Jones was injured on May 12, 2010 because Defendants Liquid As

affiliate Black Wolf were negligent and/or reckless in designing, constructing, in

supplying the temporary asphalt tank. Exhibit A at ¶ 28. The Jones Lawsuit furth

the temporary asphalt tank was in a defective condition and unreasonably dangerou

Defendants Liquid Asphalt’s and Black Wolf’s control. Id . at ¶ 34.

13. The Pruett Lawsuit was filed on December 6, 2010. It alleges,

things, that Pruett was injured on May 12, 2010 because Defendants Liquid As

affiliate Black Wolf failed to exercise ordinary care and were negligent and/o

designing, constructing, installing and supplying the temporary asphalt tank. Exhi

The Pruett Lawsuit further alleges that the temporary asphalt tank was in a d

unreasonably dangerous condition when it left Defendants Liquid Asphalt’s and

control. Id . at ¶ 33.

14. Defendants Liquid Asphalt and its affiliate Black Wolf filed an



defendants and their insurer(s) made no demand upon Owens Corning or Ace for a

nine months after the underlying lawsuits were filed.

15. On September 13, 2011, counsel for Liquid Asphalt demanded

Corning and its insurance carrier Ace provide coverage to Liquid Asphalt r

underlying lawsuits, and completely defend and indemnify Liquid Asphalt based o

terms of a purported Liquid Asphalt lease form.

16. Plaintiffs recently learned that the parties to the underlying lawsuits

rights to a jury trial on or about December 12, 2011, and agreed to a one-day b

January 20, 2012, on the claims against Liquid Asphalt. The cases had previousl

jury trial in April and May 2012.

17. Black Wolf is an affiliate of Liquid Asphalt and an additional def

underlying lawsuits. Black Wolf has not made a demand on Owens Corning or i

defense or indemnification and to Plaintiffs’ knowledge, is not asserting any claim

Plaintiffs. The underlying lawsuits allege that both Liquid Asphalt and Black W

constructed and supplied the temporary storage tank. Because the respective ro

Liquid Asphalt and Black Wolf are not clear, and Black Wolf has filed answers to th

lawsuits and remains a party therein, Black Wolf is joined as a defendant in this acti

THE RELATIONSHIP BETWEEN OWENS CORNING AND LIQUID AS

18. In or around February 2010, Owens Corning contacted Liquid

regard to leasing a temporary asphalt storage tank that was to be used for a peri



19. Liquid Asphalt sent a proposed lease agreement to Owens Corning t

the equipment, and quoted a price for lease of the same on the front page. On th

page were 20 paragraphs, in small print, of purported “terms and conditions

purported Liquid Asphalt lease form attached hereto as “Exhibit C”).

20. On or about March 8, 2010, an Owens Corning employee

information on the front page of the purported lease form specifying the equipmen

and the price terms, and signed the form without reading the back of the page,

realizing that a purported indemnification provision was buried in the fine print in p

thereof.

21. The purported Liquid Asphalt lease form stated in paragraph 3.d

(Owens Corning) agreed to:

Protect, defend, indemnify, and hold Lessor harmless from andagainst any and all claims, loss, cost, liability, personal injury,damage or expense in any manner connected with or arising out of the maintenance, use, storage, operation, transportation or repair of the equipment, howsoever arising and by whomsoever incurred,including Lessee, and including personal injury to the operator of Equipment, irrespective of whether the operator was furnished byLessor or by Lessee, and Lessee agrees to carry and to keep inforce policies insuring Lessor against all such liability, cost andexpense in limits not less than FIVE HUNDRED THOUSANDDOLLARS ($500,000) for injury to any one person and for any

one accident and not less than ONE HUNDRED THOUSANDDOLLARS ($100,000) for damage or destruction to property.

See Exhibit C at ¶ 3.d.

22. The employee who signed the purported Liquid Asphalt lease form



24. The Purchase Order stated that:

THIS PURCHASE ORDER CONSTITUTES BUYER’S OFFERSELLER, AND BECOMES A BINDING CONTRACT ON THE TEPREVIOUSLY PROVIDED TO SELLER, WHEN ACCEPTEDSELLER EITHER BY ACKNOWLEDGMENT OR COMMENCEMENT OF PERFORMANCE HEREOF. NO REVIOF BUYER’S TERMS AND CONDITIONS SHALL BE VUNLESS IN WRITING AND SIGNED BY AN AUTHORREPRESENTATIVE OF BUYER; AND NO CONDITION STATE

SELLER IN ACCEPTING OR ACKNOWLEDGING THIS ORSHALL BE BINDING UPON BUYER IF INCONSISTENT WITIN ADDITION TO THE TERMS HEREIN, UNLESS EXPREACCEPTED IN WRITING BY BUYER. BUYER’S PURCHORDER TERMS AND CONDITIONS ARE ALSO AVAILABLTHE INTERNET AT www.Owenscorning.net/supplier. SELECTTERMS AND CONDITIONS CATEGORY AND SELECT APPROPRIATE TERMS AND CONDITIONS FILE FOR Y

COUNTRY.

25. The Purchase Order Terms and Conditions (attached hereto as

provided that:

ACCEPTANCE. Seller has read and understands this agreemenagrees that Seller’s written acceptance or shipment of goods undeagreement shall constitute Seller’s acceptance of these termconditions. All terms and conditions proposed by Seller whicdifferent from, or in addition to this agreement, are unacceptable to OCorning (“Buyer”), are expressly rejected and shall not become a pthis agreement.

Exhibit E, p. 1.

26. The Purchase Order Terms and Conditions further provided that:

ENTIRE AGREEMENT. This agreement, together with the termson the face of the Purchase Order, attachments, exhibits, or supplemspecifically referenced in the Purchase Order, constitutes the

b S ll d B i h h



27. On March 11, 2010, Liquid Asphalt issued an invoice to Owens

“Asphalt Tank Rental” (the “Liquid Asphalt Invoice”), which specifically ackno

referenced by number Owens Corning’s Purchase Order No. 4503663412. See L

Invoice (attached hereto as “Exhibit F”).

28. Liquid Asphalt thereafter delivered the temporary asphalt tan

Corning’s Kansas City Insulation Plant. The accident and resulting injuries to Pru

occurred on May 12, 2010.

THE POLICY

29. Ace issued Policy No. HDO G24934159 to Owens Corning, a

General Liability policy for the period of November 1, 2009 to November 1, 2010.

30. The Ace policy contains “contractual liability” coverage provisions

Contracts” in accordance with the terms and conditions specified therein.

31. The Ace Policy defines an “Insured Contract” (in pertinent part) as:

That part of any other contract or agreement pertaining to yourbusiness . . . under which you assume the tort liability of anotherparty to pay for “bodily injury” or “property damage” to a thirdparty or organization. Tort liability means a liability that would beimposed by law in the absence of any contract or agreement.

An excerpt of the portion of the Ace policy containing these provisions (and the

referenced in Count III below) is attached hereto as “Exhibit G.”

COUNT I – DECLARATORY JUDGMENT

32. Plaintiffs incorporate by reference the allegations contained in parag



indemnification provision contained in paragraph 3.d. of the purported Liquid

form.

34. The Owens Corning Purchase Order was issued after the purp

Asphalt lease form, however, and states that the Purchase Order, when accept

acknowledgement or the commencement of performance,” constitutes acceptance o

the Purchase Order. The Purchase Order further states that it is the entire agreemen

parties and supersedes all prior oral or written agreements, including the purp

Asphalt lease form.

35. After receiving the Purchase Order, Liquid Asphalt issued an invo

Corning that specifically acknowledged and referenced by number the Purchase O

evidencing its assent to the Purchase Order Terms and Conditions.

36. For the foregoing reasons, Plaintiffs request a declaration that t

conditions of the agreement governing the contractual relationship between Owens

Liquid Asphalt are those specified in the Owens Corning Purchase Order attached

or alternatively, that the terms and conditions of the agreement do not

indemnification provision in paragraph 3.d. of the purported Liquid Asphalt lease fo

COUNT II – DECLARATORY JUDGMENT


if fully set forth herein.

38. Alternatively, if the Court finds that the indemnification provision



39. Mo. Rev. Stat. § 434.100 provides that “in any contract or agreeme

construction work, a party’s covenant, promise or agreement to indemnify or h

another person from that person’s own negligence or wrongdoing is void as against

and wholly unenforceable.” Mo. Rev. Stat. § 434.100.1.

40. Under the statute, “construction work” includes, but is not lim

construction, alteration, maintenance or repair of any building [or] structure . . . and

the furnishing of . . . materials or equipment, in connection with such work.” Mo

434.100.3.

41. As part of the process to transition from the use of Owens Corning

storage tank to the temporary asphalt storage tank provided by Liquid A

Construction Company, an additional defendant in the underlying lawsuits

constructed, and installed an asphalt delivery and piping system between the perm

storage tank and temporary asphalt storage tank designed, constructed and

Defendants . . . Liquid Asphalt and Black Wolf.” Ex. A (Jones Amended Petition)

(Pruett Amended Petition) at ¶ 16.

42. Liquid Asphalt’s furnishing of materials and/or equipment, namely t

asphalt storage tank, was in connection with the pipe delivery system construction w

by Rand Construction Company. This is “construction work” within the meaning

and the tank furnished by Liquid Asphalt is “the furnishing of . . . materials or

connection with such work.”



Owens Corning therefore requests a declaration that this indemnity provision is “v

public policy and wholly unenforceable” under Mo. Rev. Stat. § 434.100.1.

44. In addition, Liquid Asphalt and/or its affiliate Black Wolf also

delegable duty to design and manufacture a safe product. Further, the purported L

lease form provided that Owens Corning was required to return the storage tank at t

lease in the same condition as received. Therefore, Owens Corning was not auth

less obligated, to make any changes to the design of the tank in order to cure any fla

therein.

45. Accordingly, Plaintiffs alternatively request a declaration that t

provision in the Liquid Asphalt lease form is void against public policy, in that t

product owes a non-delegable duty to design and manufacture a safe product,

indemnity provision should be construed consistent with such public policy in a man

not require Owens Corning to defend or indemnify Liquid Asphalt against the alle

in the underlying lawsuits.

COUNT III – DECLARATORY JUDGMENT



47. In the event that Liquid Asphalt is asserting a claim as an additional

the Ace policy, Ace requests a declaration that the additional insured endorsements

(endorsements 19 and 22 attached as Exhibit G) do not afford coverage to Liq



negligence and/or defective conditions in its products, as opposed to any all

omissions of Owens Corning.

COUNT IV – DECLARATORY JUDGMENT



49. Liquid Asphalt did not make any demand upon Owens Corning

defense and indemnification until September 13, 2011, over nine months after th

lawsuits were filed.

50. Liquid Asphalt’s delay in making such demand is unexplained and

and has prejudiced the ability of Owens Corning and Ace to defend against th

asserted in the underlying lawsuits and to protect their interest as alleged indemnitor

51. Plaintiffs request a declaration that Liquid Asphalt’s delay in makin

for defense and indemnification has discharged any obligations that any of the Pla

otherwise have had for defense or indemnification of Liquid Asphalt. Alternatively

the Court determines that any defense obligations are owed, such obligations should

defense expenses incurred after September 13, 2011, and should be further alloc

defense expenses attributable solely to the defense of Liquid Asphalt (as opposed t

by the same law firm of its affiliate, Black Wolf).

WHEREFORE, Plaintiffs request that the Court enter judgment:

(1) Declaring under Count I that the rights and duties of Owens Cornin



between Owens Corning and Liquid Asphalt do not include the indemnification

paragraph 3.d. of the purported Liquid Asphalt lease form;

(2) Declaring under Count II that, should the terms and conditions of

Liquid Asphalt lease form govern the rights and duties between Owens Cornin

Asphalt in any manner whatsoever, paragraph 3.d. of the Liquid Asphalt lease fo

defense and indemnity is void and unenforceable as violating Mo. Rev. Stat. § 434.

violating the public policy that a product seller owes a non-delegable duty t

manufacture a safe product; or alternatively, construing such indemnity provision co

such public policy in a manner that does not require Owens Corning to defend

Liquid Asphalt against the allegations made in the underlying lawsuits;

(3) Declaring under Count III that Liquid Asphalt has no direct rights

indemnification against Ace as an additional insured under the Ace policy with

allegations made in the underlying lawsuits;

(4) Declaring under Count IV that any rights that Liquid Asphalt mi

have had for defense and indemnification, if any, were lost as a result of Liquid As

in requesting defense and indemnification; or alternatively, if any defense

determined to be owed, that such obligation is limited to post-tender defense expen

Asphalt only; and

(5) Granting such other and further relief as the Court deems just and

the circumstances.



DEMAND FOR JURY TRIAL

Plaintiffs demand a jury trial on all issues contained within this Complaint.

DESIGNATION OF PLACE OF TRIAL

Plaintiffs hereby designate Kansas City, Missouri as the place of trial.

Dated: January 9, 2012 LATHROP & GAGE LLP

By: /s/ Michael W. Rhodes

Michael W. Rhodes (27313)[email protected] J. Alison Auxter (59079)[email protected]

2345 Grand Boulevard, Suite 22Kansas City, Missouri 64108-26Telephone: (816) 292-2000Telecopier: (816) 292-2001

ATTORNEYS FOR PLAINTI

OWENS CORNING SALES, L

Dated: January 9, 2012 WALLACE, SAUNDERS, AUSTIN, B& ENOCHS, CHARTERED

By: /s/ Brian G. Boos

Kevin D. Weakley (53455)[email protected] G. Boos (46131)

[email protected] 2300 Main Street, Suite 900Kansas City, Missouri 64108Telephone: (816) 448-3154Telecopier: (913) 888-1065

Civil Cover Sheet



UNITED STATES DISTRICT COURTWESTERN DISTRICT OF MISSOURI

Civil Cover Sheet This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of thSeptember 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civinformation contained herein neither replaces nor supplements the filing and service of pleadings or otheby law. This form is authorized for use only in the Western District of Missouri.

The completed cover sheet must be saved as a pdf document and filed as an atta

Complaint or Notice of Removal.

Plaintiff (s):

Owens Corning Sales, LLC ; AceAmerican Insurance Company

Defendant(s):

Liquid Asphalt SysteWolf Leasing Corpor

County of Residence: Outside State of Missouri County of Residence: Cass

County Where Claim For Relief Arose: OutsideState of Missouri

Plaintiff's Atty(s): Defendant's Atty(s):

Michael W. Rhodes ( Owens Corning Sales,LLC )Lathrop & Gage LLP2345 Grand Blvd., Suite 2200Kansas City, Missouri 64108

816-292-2000

Russell F. Watters ( Liquid Asph; Black Wolf Leasing CorporationBrown & James, P.C.1010 Market Street, 20th FloorSt. Louis, Missouri 63101

314-421-3400

J. Alison Auxter ( Owens Corning Sales, LLC )Lathrop & Gage LLP2345 Grand Blvd., Suite 2200Kansas City, Missouri 64108816-292-2000

Dave R. Buchanan ( Liquid Asph; Black Wolf Leasing CorporationBrown & James, P.C.1010 Market Street, 20th FloorSt. Louis, Missouri 63101

314-421-3400

Kevin D. Weakley ( Ace American InsuranceCompany )Wallace Saunders Austin Brown & Enochs,Chtd

Bradley R. Hansmann ( Liquid AInc. ; Black Wolf Leasing CorporaBrown & James, P.C.1010 M k t St t 20th Fl

Civil Cover Sheet



Signature: /s/ Michael W. Rhodes

Date: 01/09/2012

If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button in your b

change it. Once correct, print this form, sign and date it and submit it with your new civil action. Note: You may nethe font size in your browser display to make the form print properly. Rev

Chtd.2300 Main Street, Suite 900Kansas City, Missouri 64108816-448-3154

1010 Market Street, 20th FloorSt. Louis, Missouri 63101314-421-3400

II. Basis of Jurisdiction: 4. Diversity (complete item III)

III. Citizenship of PrincipalParties (Diversity Cases Only)

Plaintiff:-2 Citizen of Another State

Defendant:-4 MO corp or Principal place of Bus. in MO

IV. Origin : 1. Original Proceeding

V. Nature of Suit: 890 Other Statutory Actions

VI.Cause of Action: 28 U.S.C. § 2201 and 28 U.S.C. § 1332(a)(1)

VII. Requested in Complaint

Class Action:

Dollar Demand:>$75,000

Jury Demand:Yes



EXHIBIT A



EXHIBIT B



Case 4:12-cv-00026-SWH Document 1-3 Filed 01/09/12 Page 2 of 13



EXHIBIT C



s0L

D

T

Liquid Asphalt Systems2501 Anaconda Rd

Harrisonville, MO 64701816-884-2121 FAX 816-884-1010

EQUIPMENT LEASE

t--!JK

LJ

1. CUSTOMER IS RESPONSIBLE FOR ALL INSURANCE COVERAGE ON THIS EQUIPMENT FOR THE INSURABL E VANOTED BELOW AND AL SO FOR THOSE INSURANCE COVERAGES REQUIRED BY THE TERMS AND CONDITIONSTHE REVERSE SIDE HEREOF.

2. PROPER HITCHING AND TOWING SPEED IS CUSTOMER'S RESPONSIBILITY.

3. THIS LEASE IS SUBJECT TO THE TERMS AND CONDlT10NS ON THE REVERSE HEREOF, INCLUDING BUT NOT

LIMITED TO ' l l!E DISCLAIMER OF MERCHANTABiliTY AND FITNESS FOR A PARTICULAR PURPOSE.

Owens Coming Sal&s, LLCP.O. Box 69057Charleston, WV :25334

s'H

Ip

T

NOTICE TO OWNER

Owens Coming Sal&s300 Sunshine Road

Kansas City, KS 66116

USA

FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE CONTRACT CAN RESULT IN THE FILING OF A MECHANIC'S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF CONTRACT PURUANT TO CHAPTER 429, RSMo. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR "WAIVERS" FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN ' ll!IS CONTRFAILURE TO SECURE UEN WAJVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.

RENTALS PAYABLE IN ADVANCENORMAL MAINTENANCE TO KEEP MACHINERY lN OPERATING CONOIT10N

IS RESPONSIBILITY OF LESSEE.

Le!il!>ee agrees that the rental rates provided for In this lease and any extension hereof are based upon the straight time OntHaof tho leased fo r no morn than (B) h o u r s ~ day, forty (40) hours per week and one hundllMi seventy-six

day consecutlve

to LHsor any such overtime and to pay to lessor for wch overtime operation at the

same payments for straight time due,

to



TERMS AND CONOITONS

prop6rty;

I I : : : , : : ~ ~ : ~ : l- or \lf\dM lis aU!holily In 01\ or l

:c fully, ill alll'1!opocts, and to tho mulmum

..

rollin tho Equlpmon! at 11!<1 termlr.allan ol 11111 U G ~ I n at good eo111ll!lon as when reeellffl<l, or<il!mly - and tear ex""'>!all, and Ln- shaHwork to put !l1o Equipmonl in tile <XU\dlilan 1'1!qll!rod h8l'tll>y 11!1<1 WL .- falls to perform socll Lfi8Cf &!Ill option may perform >udl worl<

tile -l l lel '1!ol wllll!n ten {10) day• o f ~ e s t l l t e m < ~ o t ll'.«elor«g. pay a l l ~ . expe""""- r4asonable -mY• - ! h a l pey !>e lrrouNed or paid by Les#or In enf!ltdllg tile "'""'"anti a n d ~ In !his Eh. p-r '1!nlal to l e ~ < - l l l l l l l ! $p&emad rate for thtlt period of11me fron111l& dtlte ol ralurn ol he Equipment to L......- untu the Equipmanl na. -n la

by su!>P<Iflllll"!!ll(I) harecl: .keep and maintain a o c u t a ~ e lubtlca!loll l'1!00rd•. repalr r ~ s a n d ~ aloctuat hours arICI dayt il f opet'tllion In U\<1 rorm p1'1!$CII!>all by Lestor;kaap l!!o Equipment cont!eney ~ n e u r a l ~ , at LM....,'• oollt, In the amount of tho value al tho Equipment, 1111 shown on IIlli 1'1!'1BIH - - . gavandaBsm, <Werturn, 1!ood, theft. fire, water, windetonm, exploelon or arry olhor oa•uaay lnclu:!lng, but ool Hrr.ltad to, an act at GOO, In and by a polic

or lnaumnoe on Equiprr.ant shall !>e - payable o La...,.4. Lasoe •hall furnim Laasor Cfl!li!!Oatas oo ea<:t< poficy of lniU!ance providing tl'lilt tho policy ral8trad to th<lfe!n may not 1><1 canca»ad unless La . - Is notlfi

Insurer aii4Mllhlrty {30) days In a<lvanoe.

5. Leone fuMar= -• nd agrees !hal Hwll! ool:a. us• th • EqUlprnentllejl<>nd Us eapaclly, or In ilflY otl'lilr manner abuse or Improperly use the •am•;b. remoV& file nwnll<Wing, lellerlnQ or lnalgnia ol Le"l!Ol' fmm the Equipment all<!r the some, or aff!J( attachments thereto, wi1h0Ulllnlt having obtslnod

c. suttst or permft lha EqUipment to oo llelzoo or affected by altadlrnonl, mortgaga, !len or legal i'f'OC"U, or do or permH any1l1lng elsa wnlcn mayLassor' • tnl<! lo th4 EqtJlplllM!;a. rights granted hervln, further sublet tho Equlpmont or • """" or perml! It to oo usad by others or by anyona otl\<lt than duly quall

or f<l(llOVe the some or any part lhel'1!ol from the )obs!blloca tion deSignated on th4 rav"'se <ide - wHI'laut the expr.,.. prior wri1tan l"'fme. use Of' p e m ~ l t or allOW IIlli Equipment or My part or par!!l L ~ a r a a l to 1><1 US8d In vlolatlor1 al fill'/ law or other Madmen!, rule, or regula!lon ol the U

other governmantaJ body or a<.'lholity having jurlsdlolloo.S. Lsssor shaH have the right at all ttla$0nable IImas to enter any pramlset on which tho Eqolprnent m- r !>e l<lce!ed and Lesa44 hel'1!!>y g<Ul111n"""' L4SS«

purpose or lf1liP"olloo. If arry lnspedlon, whether durng th4 oontll'!uedoo or thiS leaoe or alter the Equipment has boon returned to Lessor, shall disclo.,.Equipment lossaa shall pay tile amount of oooh ton or damage toLe . - wllllin ten (10) day• t illar nollllc&lton by Lessor of too amount thereat.

7. The E'qulprnenl heralby 1... .a lihllll rarnetn parsooo! property, and title tl\<ltl!lO and ownerahlp moreor at !ill tlm"" shill! 1><1 and l'tl<'naln Int . . . . - . notwithStathereof. A1111<! requetl of Lessor, Lassee will _,ts any and alltlna!idng alatamanll or otl'lilr d o o t m ~ C l l t s {lnclud!nQ any pursuant to the Uniform ComrnarelLaasor do•! re executed by Lessaa to protact or d e m o ~ \ $ \ ~ ' 1 ! ! & L4Dor'l' title to the Equipment No!111ng wihidll!le parties hsre!o may het'etofors have

notllmlled to IIlli d&H<*V of purdl"'"' lrnrolces for t11e Equipment, shaH bs d<!emad o pass U!le to lh4 Les&44 until and Uflle.. ormt!lly passed by thLe•sorto Le,..... allor fufi paytn<lrlt of an agr..OO purohalle prlce, No Opllon to purctlaae or olhar agraemenL 111\d no execution ot any dOCI.lm

!&aft agreernanl•hall be oonSir'Ued n a conditlonai sales conlJ'll(;t, and L -ee expressly walvas arry rtghls undsr th4l m r n a o l t ~ t e n o d e < ~ !n the ewnt any Equlpmenl is levied upon, or from any causs 1>ecomes liable to setwre, or of tmy oth

a. rent dua t>eraundar or to perform or obser'm In oooordar.ce willl the pr<Mstoos~ - .

any covenant or il'ICW1L'61lnYoMng or a/feeling IIlli Equlprnl!nl or !il!e tl\<lfSto, or If Lon"" b400rn8 t>anl<rupl or or ..,.kLessor at II$ option may termlnatslhlo le - Wl!!1oUl any - to Le-e , and mall have th• rtgh!wms due and to bec<lme dua L_, . . from La- until tho end of the lea.., t<>rrn, and ma arnoont or

In OO!IO"""n!''I<J Md retumlng ll 'le Equipment to L&$Sor'l yanf •ndth11 time Md take possosston of wilt! or -

and all darrtagea or of dsmag""attorooys' fe&, Lessor then>lrom andofand"""""8the



EXHIBIT D

OWENS CORNING SALES, LLC



PURCHASE ORDER #4503663412

{Please use tha purchase: order ru;;mber In all correspondence)

Send Invoice to:endor number: 293625

LIQUID ASPHALT SYSTEMS INC2501 ANACONDA RD

HARRISONVILlE MO 64701

USA

Owens Corning Sales, LLCP.O. BOX 280507

Deliver to:Kansas City Insulation Plant

300 Sunshine Road

KANSAS CITY KS 66115-1393

USA

You have been set up with advance payment. Please immediately

Invoice us at the address indicated on the face of the PO so that

we can get you here as soon as posslb!e ...no later than 3/22.

If you hove any questions, please contact Deb Strahm at 913-281-9431.

Your project confect is Nathan Jones at 913-281-9523.

Item Material

Code

00010

Description Dallvory

Date

19 Mar 2010

Asphalt Tank Rental. ..

Agreed Upon Freight Cost

Freight Cost Arrangement

Terms

1113-2519

Order

Qty

4,200.000

Prepaid and Bill

East Hartford CT 06128

Document date

Last changed

Contact name

Phone number

Payment terms

Cash in advance

Currency uso

UoM Net Price

EA 1.00

11 Mar 20

22 Mar 20

Deb Strahm

913-281-94

250

THIS ITEM IS NOT TO BE TAXED ON SUPPLffiR'S INVOICE

OWENS CORNING SALES, LLC



Item

Codo

Material Description

PURCHASE ORDER #4503663412

(Please use tho purchase order number In all correspondence)

Delivery

Date

Order

Qty

Total net value excluding tax

UOM Net Price



EXHIBIT E



EXHIBIT F



EXHIBIT G

OWENS CORNING SALES, LLC et al v. LIQUID ASPHALT SYSTEMS, INC. et al Complaint

Documents

Transcript of OWENS CORNING SALES, LLC et al v. LIQUID ASPHALT SYSTEMS, INC. et al Complaint