OWENS CORNING SALES, LLC Et Al v. LIQUID ASPHALT SYSTEMS, INC. Et Al Complaint

18145468v3
IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
OWENS CORNING SALES, LLC
One Owens Corning Parkway
Toledo, OH 43659

ACE AMERICAN INSURANCE COMPANY
436 Walnut Street
Philadelphia, PA 19105

Plaintiffs,
vs.
LIQUID ASPHALT SYSTEMS, INC.
Serve Registered Agent:
Terry L. Williams
Steven F. Jones
2501 Anaconda Road
Harrisonville, MO 64701

BLACK WOLF LEASING CORPORATION
Serve Registered Agent:
Terry L. Williams
Steven F. Jones
2501 Anaconda Road
Defendants.
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Case No. 4:12-cv-00026

COMPLAINT
In accordance with 28 U.S.C. 2201, Plaintiffs Owens Corning Sales, LLC (Owens
Corning) and Ace American Insurance Company (Ace) (hereinafter collectively referred to as
Plaintiffs), hereby submit their Complaint seeking declaratory relief against Defendants Liquid
Asphalt Systems, Inc. (Liquid Asphalt) and Black Wolf Leasing Corporation (Black Wolf)
(hereinafter collectively referred to as Defendants), and allege as follows:
Case 4:12-cv-00026-SWH Document 1 Filed 01/09/12 Page 1 of 14

18145468v3 -2-
NATURE OF THE ACTION
1. In this declaratory judgment action, Plaintiffs seek declaratory relief pursuant to
28 U.S.C. 2201 and 2202. Plaintiff Owens Corning rented a temporary asphalt tank from
Defendant Liquid Asphalt in order to perform maintenance on its existing permanent asphalt
tank structure. Two of Owens Cornings employees were injured in an accident, which they
claim was the result of a defect in the design of Liquid Asphalts tank. They subsequently filed
product liability lawsuits against Liquid Asphalt. Liquid Asphalt has demanded that Owens
Corning defend and indemnify Liquid Asphalt with respect to these lawsuits, based on an alleged
agreement between Owens Corning and Liquid Asphalt. Plaintiffs seek declaratory relief
establishing that Plaintiffs are not liable to defend and indemnify Liquid Asphalt and resolving
any related disputes among the parties.
PARTIES
2. Owens Corning Sales, LLC is a limited liability company. Owens Corning Sales,
LLCs sole member is Owens Corning. Owens Corning is a Delaware corporation with its
principal place of business in Ohio. Owens Corning Sales, LLC is therefore a citizen of
Delaware and Ohio for purposes of determining diversity jurisdiction.
3. Ace American Insurance Company is a corporation organized under the laws of
Pennsylvania, with its principal place of business in Pennsylvania, and is therefore a citizen of
Pennsylvania for the purposes of determining diversity jurisdiction.
4. Liquid Asphalt Systems, Inc. is a corporation organized under the laws of
Missouri with its principal place of business in Missouri, and is therefore a citizen of Missouri
for purposes of determining diversity jurisdiction. Upon information and belief, Liquid Asphalt
filed a voluntary dissolution effective March 21, 2011.

18145468v3 -3-
5. Black Wolf Leasing Corporation is a corporation organized under the laws of
Missouri with its principal place of business in Missouri, and is therefore a citizen of Missouri
for purposes of determining diversity jurisdiction. Upon information and belief, Black Wolf
filed a voluntary dissolution effective March 21, 2011.
JURISDICTION AND VENUE
6. This Court has diversity jurisdiction pursuant to 28 U.S.C. 1332(a)(1) because
the amount in controversy exceeds $75,000, exclusive of interest and costs, and the suit is
between citizens of different states.
7. This Court has personal jurisdiction over the Defendants because they are citizens
of the State of Missouri.
8. Venue is proper in this Court under 28 U.S.C. 1391(a)(1) because all
Defendants reside in this judicial district.
9. These causes of action for declaratory relief are brought pursuant to 28 U.S.C.
2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure.
10. An actual and justiciable controversy exists between the Plaintiffs and Defendants
within the meaning of 28 U.S.C. 2201 regarding whether Owens Corning is obligated to defend
and indemnify Liquid Asphalt, and the rights and obligations of Plaintiffs and Defendants in
connection therewith, as alleged below.
THE UNDERLYING LAWSUITS
11. Liquid Asphalt has demanded defense and indemnity from Owens Corning and its
primary insurer, Ace, in connection with two lawsuits currently pending in the Circuit Court of
Jackson County, Missouri at Kansas City:

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(a) Anthony Jones, et al. v. Rand Construction Company, et al., No. 1016-CV37310
(the Jones Lawsuit) (copy of Jones Amended Petition attached hereto as
Exhibit A); and
(b) Lester Pruett v. Rand Construction Company, et al., No. 1016-CV37318 (the
Pruett Lawsuit) (copy of Pruett Amended Petition attached hereto as Exhibit
B).
12. The Jones Lawsuit was filed on December 6, 2010. It alleges, among other
things, that Jones was injured on May 12, 2010 because Defendants Liquid Asphalt and its
affiliate Black Wolf were negligent and/or reckless in designing, constructing, installing, and
supplying the temporary asphalt tank. Exhibit A at 28. The Jones Lawsuit further alleges that
the temporary asphalt tank was in a defective condition and unreasonably dangerous when it left
Defendants Liquid Asphalts and Black Wolfs control. Id. at 34.
13. The Pruett Lawsuit was filed on December 6, 2010. It alleges, among other
things, that Pruett was injured on May 12, 2010 because Defendants Liquid Asphalt and its
affiliate Black Wolf failed to exercise ordinary care and were negligent and/or reckless in
designing, constructing, installing and supplying the temporary asphalt tank. Exhibit B at 27.
The Pruett Lawsuit further alleges that the temporary asphalt tank was in a defective and
unreasonably dangerous condition when it left Defendants Liquid Asphalts and Black Wolfs
control. Id. at 33.
14. Defendants Liquid Asphalt and its affiliate Black Wolf filed answers to the
underlying lawsuits denying any wrongdoing. Upon information and belief, Liquid Asphalt and
its affiliate Black Wolf have liability insurance, which is funding their defense. These

18145468v3 -5-
defendants and their insurer(s) made no demand upon Owens Corning or Ace for approximately
nine months after the underlying lawsuits were filed.
15. On September 13, 2011, counsel for Liquid Asphalt demanded that Owens
Corning and its insurance carrier Ace provide coverage to Liquid Asphalt related to the
underlying lawsuits, and completely defend and indemnify Liquid Asphalt based on the alleged
terms of a purported Liquid Asphalt lease form.
16. Plaintiffs recently learned that the parties to the underlying lawsuits waived their
rights to a jury trial on or about December 12, 2011, and agreed to a one-day bench trial on
January 20, 2012, on the claims against Liquid Asphalt. The cases had previously been set for
jury trial in April and May 2012.
17. Black Wolf is an affiliate of Liquid Asphalt and an additional defendant in the
underlying lawsuits. Black Wolf has not made a demand on Owens Corning or its insurers for
defense or indemnification and to Plaintiffs knowledge, is not asserting any claims against any
Plaintiffs. The underlying lawsuits allege that both Liquid Asphalt and Black Wolf designed,
constructed and supplied the temporary storage tank. Because the respective roles played by
Liquid Asphalt and Black Wolf are not clear, and Black Wolf has filed answers to the underlying
lawsuits and remains a party therein, Black Wolf is joined as a defendant in this action.
THE RELATIONSHIP BETWEEN OWENS CORNING AND LIQUID ASPHALT
18. In or around February 2010, Owens Corning contacted Liquid Asphalt with
regard to leasing a temporary asphalt storage tank that was to be used for a period of time in
order for Owens Corning to complete maintenance of the permanent tank structure located at an
Owens Corning facility in Kansas City, KS.

18145468v3 -6-
19. Liquid Asphalt sent a proposed lease agreement to Owens Corning that identified
the equipment, and quoted a price for lease of the same on the front page. On the back of the
page were 20 paragraphs, in small print, of purported terms and conditions. (Copy of
purported Liquid Asphalt lease form attached hereto as Exhibit C).
20. On or about March 8, 2010, an Owens Corning employee reviewed the
information on the front page of the purported lease form specifying the equipment to be leased
and the price terms, and signed the form without reading the back of the page, and without
realizing that a purported indemnification provision was buried in the fine print in paragraph 3.d
thereof.
21. The purported Liquid Asphalt lease form stated in paragraph 3.d that Lessee
(Owens Corning) agreed to:
Protect, defend, indemnify, and hold Lessor harmless from and
against 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 by
Lessor or by Lessee, and Lessee agrees to carry and to keep in
force policies insuring Lessor against all such liability, cost and
expense in limits not less than FIVE HUNDRED THOUSAND
DOLLARS ($500,000) for injury to any one person and for any
one accident and not less than ONE HUNDRED THOUSAND
DOLLARS ($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 did not have
actual or apparent authority to bind Owens Corning to this indemnity provision.
23. On March 11, 2010, Owens Corning sent Purchase Order #4503663412 (attached
hereto as Exhibit D) to Liquid Asphalt, setting forth its terms and conditions for the
transaction.

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24. The Purchase Order stated that:
THIS PURCHASE ORDER CONSTITUTES BUYERS OFFER TO
SELLER, AND BECOMES A BINDING CONTRACT ON THE TERMS
PREVIOUSLY PROVIDED TO SELLER, WHEN ACCEPTED BY
SELLER EITHER BY ACKNOWLEDGMENT OR THE
COMMENCEMENT OF PERFORMANCE HEREOF. NO REVISION
OF BUYERS TERMS AND CONDITIONS SHALL BE VALID
UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF BUYER; AND NO CONDITION STATED BY
SELLER IN ACCEPTING OR ACKNOWLEDGING THIS ORDER
SHALL BE BINDING UPON BUYER IF INCONSISTENT WITH OR
IN ADDITION TO THE TERMS HEREIN, UNLESS EXPRESSLY
ACCEPTED IN WRITING BY BUYER. BUYERS PURCHASE
ORDER TERMS AND CONDITIONS ARE ALSO AVAILABLE ON
THE INTERNET AT www.Owenscorning.net/supplier. SELECT THE
TERMS AND CONDITIONS CATEGORY AND SELECT THE
APPROPRIATE TERMS AND CONDITIONS FILE FOR YOUR
COUNTRY.

25. The Purchase Order Terms and Conditions (attached hereto as Exhibit E)
provided that:
ACCEPTANCE. Seller has read and understands this agreement and
agrees that Sellers written acceptance or shipment of goods under this
agreement shall constitute Sellers acceptance of these terms and
conditions. All terms and conditions proposed by Seller which are
different from, or in addition to this agreement, are unacceptable to Owens
Corning (Buyer), are expressly rejected and shall not become a part of
this agreement.
Exhibit E, p. 1.
26. The Purchase Order Terms and Conditions further provided that:
ENTIRE AGREEMENT. This agreement, together with the terms found
on the face of the Purchase Order, attachments, exhibits, or supplements,
specifically referenced in the Purchase Order, constitutes the entire
agreement between Seller and Buyer with respect to the matter contained
herein, and supersedes all prior oral or written representations, proposals,
correspondence, discussions, negotiations and agreements. This
agreement and the Purchase Order may only be modified, amended or
changed by a purchase agreement amendment/alteration issued by Buyer
and signed by both Buyer and Seller.
Id. at p. 6.

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27. On March 11, 2010, Liquid Asphalt issued an invoice to Owens Corning for
Asphalt Tank Rental (the Liquid Asphalt Invoice), which specifically acknowledged and
referenced by number Owens Cornings Purchase Order No. 4503663412. See Liquid Asphalt
Invoice (attached hereto as Exhibit F).
28. Liquid Asphalt thereafter delivered the temporary asphalt tank to Owens
Cornings Kansas City Insulation Plant. The accident and resulting injuries to Pruett and Jones
occurred on May 12, 2010.
THE POLICY
29. Ace issued Policy No. HDO G24934159 to Owens Corning, a Commercial
General Liability policy for the period of November 1, 2009 to November 1, 2010.
30. The Ace policy contains contractual liability coverage provisions for Insured
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 your
business . . . under which you assume the tort liability of another
party to pay for bodily injury or property damage to a third
party or organization. Tort liability means a liability that would be
imposed by law in the absence of any contract or agreement.
An excerpt of the portion of the Ace policy containing these provisions (and the endorsements
referenced in Count III below) is attached hereto as Exhibit G.
COUNT I DECLARATORY JUDGMENT
32. Plaintiffs incorporate by reference the allegations contained in paragraphs 1-31 as
if fully set forth herein.
33. Liquid Asphalt has demanded that Owens Corning and its insurance carrier Ace
defend and indemnify Liquid Asphalt for the underlying lawsuits pursuant to the purported

18145468v3 -9-
indemnification provision contained in paragraph 3.d. of the purported Liquid Asphalt lease
form.
34. The Owens Corning Purchase Order was issued after the purported Liquid
Asphalt lease form, however, and states that the Purchase Order, when accepted either by
acknowledgement or the commencement of performance, constitutes acceptance of the terms of
the Purchase Order. The Purchase Order further states that it is the entire agreement between the
parties and supersedes all prior oral or written agreements, including the purported Liquid
Asphalt lease form.
35. After receiving the Purchase Order, Liquid Asphalt issued an invoice to Owens
Corning that specifically acknowledged and referenced by number the Purchase Order, thereby
evidencing its assent to the Purchase Order Terms and Conditions.
36. For the foregoing reasons, Plaintiffs request a declaration that the terms and
conditions of the agreement governing the contractual relationship between Owens Corning and
Liquid Asphalt are those specified in the Owens Corning Purchase Order attached as Exhibit E,
or alternatively, that the terms and conditions of the agreement do not include the
indemnification provision in paragraph 3.d. of the purported Liquid Asphalt lease form.
COUNT II DECLARATORY JUDGMENT
38. Alternatively, if the Court finds that the indemnification provision in paragraph
3.d. of the Liquid Asphalt lease form is part of the agreement between Owens Corning and
Liquid Asphalt, Plaintiffs request a declaration that such provision is unenforceable and void for
the following reasons.

18145468v3 -10-
39. Mo. Rev. Stat. 434.100 provides that in any contract or agreement for private
construction work, a partys covenant, promise or agreement to indemnify or hold harmless
another person from that persons own negligence or wrongdoing is void as against public policy
and wholly unenforceable. Mo. Rev. Stat. 434.100.1.
40. Under the statute, construction work includes, but is not limited to the
construction, alteration, maintenance or repair of any building [or] structure . . . and shall include
the furnishing of . . . materials or equipment, in connection with such work. Mo. Rev. Stat.
434.100.3.
41. As part of the process to transition from the use of Owens Cornings permanent
storage tank to the temporary asphalt storage tank provided by Liquid Asphalt, Rand
Construction Company, an additional defendant in the underlying lawsuits, designed,
constructed, and installed an asphalt delivery and piping system between the permanent asphalt
storage tank and temporary asphalt storage tank designed, constructed and supplied by
Defendants . . . Liquid Asphalt and Black Wolf. Ex. A (Jones Amended Petition) at 16; Ex. B
(Pruett Amended Petition) at 16.
42. Liquid Asphalts furnishing of materials and/or equipment, namely the temporary
asphalt storage tank, was in connection with the pipe delivery system construction work provided
by Rand Construction Company. This is construction work within the meaning of the statute,
and the tank furnished by Liquid Asphalt is the furnishing of . . . materials or equipment in
connection with such work.
43. Paragraph 3.d. of the Liquid Asphalt lease form provides that Owens Corning
must defend and indemnify Liquid Asphalt for Liquid Asphalts own negligence or wrongdoing.

18145468v3 -11-
Owens Corning therefore requests a declaration that this indemnity provision is void as against
public policy and wholly unenforceable under Mo. Rev. Stat. 434.100.1.
44. In addition, Liquid Asphalt and/or its affiliate Black Wolf also owed a non-
delegable duty to design and manufacture a safe product. Further, the purported Liquid Asphalt
lease form provided that Owens Corning was required to return the storage tank at the end of the
lease in the same condition as received. Therefore, Owens Corning was not authorized, much
less obligated, to make any changes to the design of the tank in order to cure any flaws or defects
therein.
45. Accordingly, Plaintiffs alternatively request a declaration that the indemnity
provision in the Liquid Asphalt lease form is void against public policy, in that the seller of a
product owes a non-delegable duty to design and manufacture a safe product, or that such
indemnity provision should be construed consistent with such public policy in a manner that does
not require Owens Corning to defend or indemnify Liquid Asphalt against the allegations made
in the underlying lawsuits.
COUNT III DECLARATORY JUDGMENT
47. In the event that Liquid Asphalt is asserting a claim as an additional insured under
the Ace policy, Ace requests a declaration that the additional insured endorsements of the policy
(endorsements 19 and 22 attached as Exhibit G) do not afford coverage to Liquid Asphalt,
because the bodily injury liability claims asserted in the underlying lawsuits against Liquid
Asphalt are predicated solely upon product liability claims arising from Liquid Asphalts own

18145468v3 -12-
negligence and/or defective conditions in its products, as opposed to any alleged acts or
omissions of Owens Corning.
COUNT IV DECLARATORY JUDGMENT
49. Liquid Asphalt did not make any demand upon Owens Corning or Ace for
defense and indemnification until September 13, 2011, over nine months after the underlying
lawsuits were filed.
50. Liquid Asphalts delay in making such demand is unexplained and unreasonable,
and has prejudiced the ability of Owens Corning and Ace to defend against the allegations
asserted in the underlying lawsuits and to protect their interest as alleged indemnitors.
51. Plaintiffs request a declaration that Liquid Asphalts delay in making its demand
for defense and indemnification has discharged any obligations that any of the Plaintiffs might
otherwise have had for defense or indemnification of Liquid Asphalt. Alternatively, in the event
the Court determines that any defense obligations are owed, such obligations should be limited to
defense expenses incurred after September 13, 2011, and should be further allocated to those
defense expenses attributable solely to the defense of Liquid Asphalt (as opposed to the defense
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 Corning and Liquid
Asphalt are governed by the terms and conditions of the Owens Corning Purchase Order and that
Owens Corning does not have a duty to defend or indemnify Liquid Asphalt with respect to the
underlying lawsuits; or alternatively, declaring that the terms and conditions of the agreement

18145468v3 -13-
between Owens Corning and Liquid Asphalt do not include the indemnification provision in
paragraph 3.d. of the purported Liquid Asphalt lease form;
(2) Declaring under Count II that, should the terms and conditions of the purported
Liquid Asphalt lease form govern the rights and duties between Owens Corning and Liquid
Asphalt in any manner whatsoever, paragraph 3.d. of the Liquid Asphalt lease form requiring
defense and indemnity is void and unenforceable as violating Mo. Rev. Stat. 434.100 and/or as
violating the public policy that a product seller owes a non-delegable duty to design and
manufacture a safe product; or alternatively, construing such indemnity provision consistent with
such public policy in a manner that does not require Owens Corning to defend or indemnify
Liquid Asphalt against the allegations made in the underlying lawsuits;
(3) Declaring under Count III that Liquid Asphalt has no direct rights of defense or
indemnification against Ace as an additional insured under the Ace policy with respect to the
allegations made in the underlying lawsuits;
(4) Declaring under Count IV that any rights that Liquid Asphalt might otherwise
have had for defense and indemnification, if any, were lost as a result of Liquid Asphalts delay
in requesting defense and indemnification; or alternatively, if any defense obligation is
determined to be owed, that such obligation is limited to post-tender defense expenses of Liquid
Asphalt only; and
(5) Granting such other and further relief as the Court deems just and proper under
the circumstances.


18145468v3 -14-
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)
mrhodes@lathropgage.com
J. Alison Auxter (59079)
aauxter@lathropgage.com
2345 Grand Boulevard, Suite 2200
Kansas City, Missouri 64108-2618
Telephone: (816) 292-2000
Telecopier: (816) 292-2001
ATTORNEYS FOR PLAINTIFF

Dated: January 9, 2012

WALLACE, SAUNDERS, AUSTIN, BROWN
& ENOCHS, CHARTERED
By: /s/ Brian G. Boos
Kevin D. Weakley (53455)
kweakley@wallacesaunders.com
Brian G. Boos (46131)
bboos@wallacesaunders.com
2300 Main Street, Suite 900
Kansas City, Missouri 64108
Telephone: (816) 448-3154
Telecopier: (913) 888-1065
ATTORNEYS FOR PLAINTIFF
ACE AMERICAN INSURANCE CO.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
Civil Cover Sheet
This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in
September 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The
information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required
by 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 attachment to the
Complaint or Notice of Removal.
Plaintiff
(s):
Owens Corning Sales, LLC ; Ace
American Insurance Company
Defendant
(s):
Liquid Asphalt Systems, Inc. ; Black
Wolf Leasing Corporation
County of Residence: Outside State of Missouri County of Residence: Cass
County Where Claim For Relief Arose: Outside
State of Missouri

Plaintiff's Atty(s): Defendant's Atty(s):
Michael W. Rhodes ( Owens Corning Sales,
LLC )
Lathrop & Gage LLP
2345 Grand Blvd., Suite 2200
816-292-2000
Russell F. Watters ( Liquid Asphalt Systems, Inc.
; Black Wolf Leasing Corporation )
Brown & James, P.C.
1010 Market Street, 20th Floor
St. Louis, Missouri 63101
314-421-3400

J. Alison Auxter ( Owens Corning Sales, LLC )
Lathrop & Gage LLP
2345 Grand Blvd., Suite 2200
816-292-2000
Dave R. Buchanan ( Liquid Asphalt Systems, Inc.
; Black Wolf Leasing Corporation )
Brown & James, P.C.
314-421-3400

Kevin D. Weakley ( Ace American Insurance
Company )
Wallace Saunders Austin Brown & Enochs,
Chtd.
816-448-3154
Bradley R. Hansmann ( Liquid Asphalt Systems,
Inc. ; Black Wolf Leasing Corporation )
Brown & James, P.C.
314-421-3400

Brian G. Boos ( Ace American Insurance
Company )
Wallace Saunders Austin Brown & Enochs,
Jackie M. Kinder ( Liquid Asphalt Systems, Inc. ;
Black Wolf Leasing Corporation )
Brown & James, P.C.
Page 1 of 2 Civil Cover Sheet
1/9/2012 http://www.mow.uscourts.gov/cgi-bin/generate_civil_js44.pl
Case 4:12-cv-00026-SWH Document 1-1 Filed 01/09/12 Page 1 of 2
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 browser and
change it. Once correct, print this form, sign and date it and submit it with your new civil action. Note: You may need to adjust
the font size in your browser display to make the form print properly. Revised: 05/09/06
Chtd.
816-448-3154
314-421-3400

II. Basis of Jurisdiction:

4. Diversity (complete item III)
III. Citizenship of Principal
Parties (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
Page 2 of 2 Civil Cover Sheet
1/9/2012 http://www.mow.uscourts.gov/cgi-bin/generate_civil_js44.pl

EXHIBIT A

EXHIBIT B

EXHIBIT C
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Liquid Asphalt Systems
2501 Anaconda Rd
816-884-2121 FAX 816-884-1010
EQUIPMENT LEASE
t--!JK j.? I /U
LJ/2-1 /1 D
1. CUSTOMER IS RESPONSIBLE FOR ALL INSURANCE COVERAGE ON THIS EQUIPMENT FOR THE INSURABLE VALUE
NOTED BELOW AND ALSO FOR THOSE INSURANCE COVERAGES REQUIRED BY THE TERMS AND CONDITIONS ON
THE 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 'll!E DISCLAIMER OF MERCHANTABiliTY AND FITNESS FOR A PARTICULAR PURPOSE.
Owens Coming Sal&s, LLC
P.O. Box 69057
Charleston, WV :25334
s
'H
I
p
T
NOTICE TO OWNER
Owens Coming Sal&s
300 Sunshine Road
Kansas City, KS 66116
USA
FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS
CONTRACT CAN RESULT IN THE FILING OF A MECHANIC'S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS
CONTRACT PURUANT TO CHAPTER 429, RSMo. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR "LIEN
WAIVERS" FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN 'll!IS CONTRACT.
FAILURE TO SECURE UEN WAJVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.
RENTALS PAYABLE IN ADVANCE
NORMAL 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 OntHallon
of tho leased for no morn than (B) 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,
All terms and conditions, including those on the reverse side hereof, are '"''""'"'t'n
the undersign&d Is authorized to bind the named Lessee to the terms and
to and
TERMS AND CONOITONS
prop6rty;
l-or \lf\dM lis aU!holily In 01\ or l!fOlll\d tho Equipment
:c fully, ill alll'1!opocts, and to tho mulmum provided ror In ""ld Jaw,
..
rollin tho Equlpmon! at 11!<1 termlr.allan ol 11111 at good eo111ll!lon as when reeellffl<l, or<il!mly - and tear ex""'>!all, and Ln- shaH pltl!Tlptly pet!orm any service
work to put !l1o Equipmonl in tile <XU\dlilan 1'1!qll!rod h8l'tll>y 11!1<1 W L.- falls to perform socll Lfi8Cf &!Ill option may perform >udl worl< and LH>ee &!\all pay L_,..
tile -lllel'1!ol wllll!n ten {10) day e ll'.elor
g. pay expe""""- r4asonable -mY -!hal rpey !>e lrrouNed or paid by Les#or In enf!ltdllg tile "'""'"anti In !his Equlpmanl LM;
h. p-r l'1!nlal to $p&emad rate for thtlt period of 11me fron111l& dtlte ol ralurn ol the Equipment to L......- untu the Equipmanl na. -n place<! In tho oondll!on requlroo
by su!>P<Iflllll"!!ll (I) harecl: .
keep and maintain lubtlca!loll l'1!00rd. repalr aloctuat hours ar'ICI dayt ilf opet'tllion In U\<1 rorm p1'1!$CII!>all by Lestor;
kaap l!!o Equipment cont!eney at LM....,' oollt, In the amount of tho value al tho Equipment, 1111 shown on IIlli 1'1!'1BIH - -. &gall\$\ damage due to c:ol!leton,
vandaBsm, <Werturn, 1!ood, theft. fire, water, windetonm, exploelon or arry olhor oauaay lnclu:!lng, but ool Hrr.ltad to, an act at GOO, In and by a policy providing thl!l all proceed$
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 cancaad unless La.- Is notlfied th<ifeol by the raspecl!Vo
Insurer aii4Mllhlrty {30) days In a<lvanoe.
5. Leone fuMar =- and agrees !hal H wll! 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 LeS!Jfs wrl!!..n constn!;
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 may ern:umber, lrnpm or cloud
Lassor' 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 quallfu>d operators Mnployad by
or f<l(llOVe the some or any part lhel'1!ol from the )obs!bllocation deSignated on th4 rav"'se <ide - wHI'laut the expr.,.. prior wri1tan l"'fmlsslor1 of Leuor;
e. use Of' or allOW IIlli Equipment or My part or par!!l to 1><1 US8d In vlolatlor1 al fill'/ law or other Madmen!, rule, or regula!lon ol the UnHad Stl!lM or arry state or
other governmantaJ body or a<.'lholity having jurlsdlolloo.
S. Lsssor shaH have the right at all ttla$0nable IImas to enter any pramlset on which tho Eqolprnent m-r !>e l<lce!ed and Lesa44 hel'1!!>y g<Ul111n"""' L4SS lrae access th<ltl!lo, rot file
purpose or lf1liP"olloo. If arry lnspedlon, whether durng th4 oontll'!uedoo or thiS leaoe or alter the Equipment has boon returned to Lessor, shall disclo.,. any loss or d"""'!J" to the
Equipment lossaa shall pay tile amount of oooh ton or damage toLe.- wllllin ten (10) day tillar nollllc&lton by Lessor of too amount thereat.
7. The E'qulprnenl heralby 1....a lihllll rarnetn parsooo! property, and title tl\<ltl!lO and ownerahlp moreor at !ill tlm"" shill! 1><1 and l'tl<'naln Int....-. notwithStandlnQ po .. aseton and u"
thereof. A1111<! requetl of Lessor, Lassee will _,ts any and alltlna!idng alatamanll or otl'lilr {lnclud!nQ any pursuant to the Uniform Comrnarelal of any state) wihldl
Laasor do!re executed by Lessaa to protact or L4Dor'l' title to the Equipment No!111ng wihidll!le parties hsre!o may het'etofors have dooe or may hereall<!r do,
notllmlled to IIlli d&H<*V of purdl"'"' lrnrolces for t11e Equipment, shaH bs d<!emad o pass U!le to lh4 Les&44 until and Uflle .. formt!lly passed by tho axectJttoo and dsilvtlfY of
Lesorto Le,..... allor fufi paytn<lrlt of an agr..OO purohalle prlce, No Opllon to purctlaae or olhar agraemenL 111\d no execution ot any dOCI.lmenl pU111uenl to the Uniform
!&aft agreernanlhall be oonSir'Ued n a conditlonai sales conlJ'll(;t, and L-ee expressly walvas arry rtghls undsr th4 law ,.. to oondltlonsl wles.
!n the ewnt any Equlpmenl is levied upon, or from any causs 1>ecomes liable to setwre, or of tmy othor even! or lnclnt whldl
a. rent dua t>eraundar or to perform or obser'm In oooordar.ce willl the pr<Mstoos any covenant or il'ICW1L'611! oo n h<lreundM, or
lnYoMng or a/feeling IIlli Equlprnl!nl or !il!e tl\<lfSto, or If Lon"" b400rn8 t>anl<rupl or or ..,.k or s..tler appolllln1<!nt
Lessor at II$ option may termlnatslhlo le- Wl!!1oUl any - to Le-e, and mall have th rtgh! to:
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 nd
th11 time Md take possosston of wilt! or -
and all darrtagea or of dsmag""
attorooys' fe&, Lessor then>lrom and
ofand"""""8the

EXHIBIT D
PURCHASE ORDER #4503663412
{Please use tha purchase: order ru;;mber In all correspondence)
Send Invoice to: Vendor number: 293625
LIQUID ASPHALT SYSTEMS INC
2501 ANACONDA RD
HARRISONVILlE MO 64701
USA
Owens Corning Sales, LLC
P.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 2010
22 Mar 2010
Deb Strahm
913-281-9431
Per
250.00
THIS ITEM IS NOT TO BE TAXED ON SUPPLffiR'S INVOICE
1
Amount
4,200.00
250.00
Item
Codo
Material
for Comlr\g
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 Per Amount
4,450.00
COfiSTITUTES BUYER'S OffER TO SElLER. Al\10 TO SELLER, WHEN
CONDITION STATED !lY SELLER ACCEPTING
BUYE!l IF INCONSISTENT WITH OR IN ADDITION TO THE HEI!El!\1, UNlESS EXP!lESSl Y ACCEPTED lN
AND THE INTERNET AT SELECT THE
FllE FOR YOUR COUNr!W.
llC
11Js is tfte end of the purcluue order.
1

EXHIBIT E

EXHIBIT F

EXHIBIT G

OWENS CORNING SALES, LLC Et Al v. LIQUID ASPHALT SYSTEMS, INC. Et Al Complaint

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OWENS CORNING SALES, LLC Et Al v. LIQUID ASPHALT SYSTEMS, INC. Et Al Complaint

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18145468v3

IN THE UNITED STATES DISTRICT COURT FOR THE

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