Preview
Filed
09 December 17 A10:11
Amalia Rodriguez-Mendoza
District Clerk
Travis District
CAUSE NO. D-1-GN-09-000432
AMERICAN ZURICH INSURANCE IN THE DISTRICT COURT OF
COMPANY AS SUBROGEE OF
The Varsity Golf Club, LTD d/b/a The
University of Texas Golf Club
Plaintiff,
VS.
TRAVIS COUNTY, TEXAS
BARKER ROOFING, L.P.
LP LP OD LD LP UP LPL LP LP CO? MD LP
Defendant. 419" JUDICIAL DISTRICT:
PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION AND
REQUEST FOR DISCLOSURE
TO THE HONORABLE DISTRICT COURT JUDGE:
Plaintiff, AMERICAN ZURICH INSURANCE COMPANY AS SUBROGEE OF THE VARSITY GOLF
CLus, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB files this its First Amended Original
Petition, complaining of BARKER ROOFING, L.P., ROOFING SUPPLY Group, LLC, CENTRAL
TEXAS ROOFING, LLC, ALFREDO JAIMES, INDIVIDUALLY, CERTAINTEED CORPORATION AND
FIRESTONE BUILDING PRODUCTS ComPANy, LLC (hereinafter collectively referred to as
“Defendants”), and for cause of action would show this Court the following:
I. DISCOVERY PLAN
1.01 Pursuant to Texas Rules of Civil Procedure §190.4, Plaintiff pleads that discovery
is to be conducted under Level 3.
UL. PARTIES
2.01 Plaintiff, AMERICAN ZURICH INSURANCE COMPANY (hereinafter “AMERICAN
ZURICH”, or “Plaintiff’) is an insurance corporation duly authorized to conduct business in the
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 1State of Texas. Plaintiff files this cause as Subrogee of and in the name of THE VARSITY GOLF
CLuB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB. However, the undersigned counsel for
Plaintiff does not represent THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS
GoF CLUB (“UT GoLF CLUB”) and is not authorized to accept service, pleadings or discovery on
its behalf.
2.02 Defendant, BARKER ROOFING, L.P., (“BARKER”), is a domestic limited partnership
doing business in the State of Texas who has filed a responsive pleading in this matter is being
served with a copy of Plaintiff's First Amended Petition by and through its counsel of record:
CHAMBERLAIN'# MCHANEY, 301 CONGRESS, 21°" FLOoR, AUSTIN, TEXAS 78701.
2.03 Defendant, CENTRAL TEXAS ROOFING, LLC (“CENTRAL TEXAS”) is a Domestic
Limited Liability Company (LLC), doing business in the State of Texas and may be served with
a copy of Plaintiff's First Amended Original Petition and Request for Disclosure by serving its
registered agent: MR. ALFREDO JAIMES, 803 GLASS DRIVE, LEANDER, TX 78641.
**SERVICE IS REQUESTED AT THIS TIME**
2.04 Defendant, ALFREDO JAMIES (“JAMIES”) is an individual residing in Texas
and may be served with Plaintiffs First Amended Petition at his place of residence: 803 GLASS
DRIVE, LEANDER, TX 78641.
**SERVICE IS REQUESTED AT THIS TIME**
2.05 Defendant, ROOFING SUPPLY GRouP, LLC (“ROOFING SUPPLY”) is a Foreign
Limited Liability Company doing business in the State of Texas and may be served with a copy
of Plaintiff's First Amended Original Petition and Request for Disclosure by serving its
registered agent: CT CORPORATION SYSTEM, 350 NoRTH ST. PAUL STREET, DALLAS, TEXAS,
75201.
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 2**SERVICE IS REQUESTED AT THIS TIME**
2.06 Defendant, CERTAINTEED CORPORATION (“CERTAINTEED”) is a Foreign
Corporation doing business in the State of Texas and may be served with a copy of Plaintiff's
First Amended Original Petition and Request for Disclosure by serving its registered agent: CT
CORPORATION, 350 N. ST. PAUL STREET, DALLAS, TX 75201.
**SERVICE IS REQUESTED AT THIS TIME**
2.07 Defendant, FIRESTONE BUILDING PRODUCTS COMPANY, LLC (“FIRESTONE”) is a
foreign Limited Liability Company doing business in the State of Texas that does not maintain a
registered service agent in the State of Texas. This Defendant may be served with process under
the Texas Long Arm Statute, Section 17.044 et seq., of the Texas Civil Practice and Remedies
Code by serving the Secretary of State of Texas. The Secretary of State shall then forward a
copy of the service of process and Petition via certified mail, return receipt requested to
Defendant by serving its registered agent: JOHN VASUTA, 250 W. 96™ STREET, INDIANAPOLIS, IN
46260.
**SERVICE IS REQUESTED AT THIS TIME**
I. JURISDICTION
3.01 The Court has jurisdiction over this matter because the amount in controversy is
within the jurisdictional limits of this Court. Venue is proper in Travis County, Texas because
Defendant BARKER ROOFING, L.P. maintains its principle places of business in Travis County,
Texas and the incident giving rise to this cause of action occurred in Travis County, TX.
IV. FACTS
4.01 UT GoLr CLUuB, located at 2200 University Club Drive, Austin, Travis County,
Texas is a private golf club that has been in business and operating since November of 2003.
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 3While continuing in operation, UT GOLF CLUB entered into a contract to build a new Club House
in February of 2007. On or about December 26, 2007, a fire destroyed the Club House. The new
club house was approximately seventy-five percent complete at the time of the fire.
4.02 Defendant, BARKER ROOFING, L.P. was the roofing sub-contractor on the new
Club House Construction project.
4.03 Defendant, CENTRAL TEXAS ROOFING, LLC was a sub-contractor of BARKER
ROOFING, L.P. or, in the alternative, at all times during the construction of the new Club House
Construction project was under the direct supervision and control of BARKER ROOFING, L.P..
4.04 Defendant, CERTAINTEED CORPORATION, was a manufacturer of the torch applied
to the roof membrane and other roof materials which combusted and resulted in the fire at the
new Club House Construction project when applied by BARKER ROOFING, L.P. and/or CENTRAL
TEXAS ROOFING, LLC.
4.05 Defendant, FIRESTONE BUILDING PRODUCTS COMPANY, LLC, was a manufacturer
of the torch applied to the roof membrane and other roof materials which combusted and resulted
in the fire at the new Club House Construction project when applied by BARKER ROOFING, L.P.
and/or CENTRAL TEXAS ROOFING, LLC.
4.06 Defendant, ROOFING SUPPLY GROUP, LLC, was the distributor and provider of all
the material and supplies including the torch and other roofing membrane components purchased
by BARKER ROOFING, L.P. and/or CENTRAL TEXAS ROOFING, LLC for the new Club House
Construction project.
4.07 Plaintiff, AMERICAN ZURICH INSURANCE COMPANY, had issued a policy of
Insurance to their insured, THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS
GOLF CLuB, which provided insurance on the existing golf course buildings and the golf course
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 4but did not provide property insurance on the New Club House. Specifically, AMERICAN ZURICH
INSURANCE COMPANY’S policy provided insurance for business interruption.
V. NEGLIGENCE: BARKER ROOFING, L.P.
5.01 Plaintiff would show that Defendant, BARKER ROOFING, L.P., was negligent in the
manner in which it performed its work and services at the UT GOLF CLUB. Defendant, BARKER
ROOFING, L.P.’s, negligence was a proximate cause and/or the proximate cause of the business
interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF
TEXAS GOLF CLUB and the Plaintiff.
5.02 Plaintiff would show that the Defendant, BARKER ROOFING, L.P., owed a duty to
THe Varsity GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB to exercise
ordinary care and act in a reasonable and prudent manner when conducting work at the UT GOLF
CLUB. Plaintiff would further show that in performing services at and/or in connection with the
construction of the roof for the new Club House, Defendant BARKER ROOFING, L.P. breached its
duties owed to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB in
one or more of the following ways:
a. Failing to safely and properly perform its work-on-the-new-Club-Houses
db. Failing to perform its work in a good and workmanlike manner;
c , Failing to properly install the roof on the new Club House;
d. Failing to discovery any and all problems, deficiencies in construction methods it
used to construct and install the roof on the new Club House;
e Failing to comply with all applicable codes, regulations, guidelines, notices and/or
procedures regarding its work on the new Club House;
£ Failing to properly train, supervise, or instruct its workers, employees, agents, and/or
representatives so as to prevent the fire and business interruption damages suffered
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 5by THE VaRsITy GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB
and Plaintiff; and
g Failing to use due care in performing services.
5.03 Plaintiff would show that each of the foregoing acts of Defendant BARKER ROOFING,
L.P. was a proximate cause and/or the proximate cause of the business interruption damages suffered
by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the
Plaintiff, AMERICAN ZURICH INSURANCE COMPANY.
VI. NEGLIGENCE: CENTRAL TEXAS ROOFING, LLC
6.01 Plaintiff would show that Defendant, CENTRAL TEXAS ROOFING, LLC, was
negligent in the manner in which it performed its work and services at the UT GOLF CLUB.
Defendant, CENTRAL TEXAS ROOFING, LLC’s, negligence was a proximate cause and/or the
proximate cause of the business interruption damages suffered by THE VARSITY GOLF CLUB, LTD.
D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff.
6.02 Plaintiff would show that the Defendant, CENTRAL TEXAS ROOFING, LLC, owed a
duty to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB to exercise
ordinary care and act in a reasonable and prudent manner when conducting work at the UT GOLF
Cus. Plaintiff would farther show that in performing services at and/or in connection with the
construction of the roof for the new Club House, Defendant, CENTRAL TEXAS ROOFING, LLC
breached its duties owed to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS
GOLF CLUB in one or more of the following ways:
a Failing to safely and properly perform its work on the new Club House;
b. Failing to perform its work in a good and workmanlike manner;
c Failing to properly install the roof on the new Club House;
Zur/UT GOLF /Plaintiff’s First Amended Original Petition 6d. Failing to discovery any and all problems, deficiencies in construction methods it
used to construct and install the roof on the new Club House;
e. Failing to comply with all applicable codes, regulations, guidelines, notices and/or
procedures regarding its work on the new Club House;
f£. Failing to properly train, supervise, or instruct its workers, employees, agents, and/or
representatives so as to prevent the fire and business interruption damages suffered
by THE VARSITY GOLF CLuB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB
and Plaintiff; and
g Failing to use due care in performing services.
6.03 Plaintiff would show that each of the foregoing acts of Defendant CENTRAL TEXAS
ROOFING, LLC was a proximate cause and/or the proximate cause of the ‘business interruption
damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF
CLUB and the Plaintiff, AMERICAN ZURICH INSURANCE COMPANY.
VIL NEGLIGENCE: ALFREDO JAIMES, INDIVIDUALLY
7.01 Plaintiff would show that Defendant, JAMIES, was negligent in the manner in which
he performed his work and services at the UT Golf Club. Defendant, JAMIES’s, negligence was a
proximate cause or the proximate cause of the business interruption damages suffered by The Varsity
Golf Club, LTD d/b/a The University of Texas Golf Club and the Plaintiff.
7.02 Plaintiff would show that Defendant, ALFREDO JAIMES, INDIVIDUALLY, owed a duty
to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB to exercise
ordinary care and act in a reasonable and prudent manner when conducting his work at the UT GOLF
CLUB. Plaintiff would further show that in performing services at and/or in connection with the
construction of the roof for the new Club House, Defendant ALFREDO JAIMES, INDIVIDUALLY
breached his duties owed to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS
GOLF CLUB in one or more of the following ways:
a Failing to safely and properly perform his work on the new Club House;
Zur/UT GOLF /Plaintiff’s First Amended Original Petition 7b. Failing to perform his work in a good and workmanlike manner;
c Failing to properly install the roof on the new Club House;
d. Failing to discover any and all problems, deficiencies in construction methods he or
others used to construct and install the roof on the new Club House;
e. Failing to comply with all applicable codes, regulations, guidelines, notices and/or
procedures regarding its work on the new Club House;
f. Failing to properly train, supervise, or instruct his workers, employees, agents, and/or
representatives so as to prevent the fire and business interruption damages suffered
by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB
and Plaintiff;
2 Failing to use due care in performing services; and
h. Failing to follow and adhere to all safety policies set forth in conditions by BARKER
ROOFING, L.P.
7.03 Plaintiff would show that each of the foregoing acts of Defendant ALFREDO JAIMES,
INDIVIDUALLY was a proximate cause and/or the proximate cause of the business interruption
damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF
CLUB and the Plaintiff, AMERICAN ZURICH INSURANCE COMPANY.
VIII. NEGLIGENCE: ROOFING SUPPLY GROUP, LLC
8.01 Plaintiff would show that Defendant, ROOFING SUPPLY Group, LLC, was negligent
in the manner in which it provided materials and supplies for use and incorporation at the UT GOLF
CLUB. ROOFING SUPPLY GROUP, LLC is strictly liable in products liability or tort by the sale and
distribution of torch applied roof membrane and other roof materials which combusted and
resulted in the fire at the new Club House Construction project when applied by BARKER
ROOFING, L.P. and/or CENTRAL TEXAS ROOFING, LLC. Further, ROOFING SUPPLY Group, LLC is
strictly liable for misrepresentation and breach of the implied warranty of merchantability of the
torch applied roof membrane and other roof materials which combusted and resulted in the fire at
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 8the new Club House Construction project. Moreover, Defendant ROOFING SUPPLY Group, LLC
is liable for failure to provide adequate warnings regarding the use and characteristics of torch
applied roof membranes resulting in the fire at the new Club House Construction project.
Defendant, ROOFING SUPPLY GRouP, LLC’S, negligence, strict liability, sounded in tort or products
liability, misrepresentation, breach of implied or express warranties and/or lack of warning, or any
combination of the afore mentioned, was a proximate cause or the proximate cause of the business
interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF
TEXAS GOLF CLUB and the Plaintiff.
8.02 Plaintiff would show that the Defendant, ROOFING SUPPLY Group, LLC, owed a
duty to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB to exercise
ordinary care and act in a reasonable and prudent manner when conducting work at the UT GOLF
CLuB. Plaintiff would further show that in performing services at and/or in connection with the
construction of the roof for the new Club House, Defendant ROOFING SUPPLY GRouP, LLC
breached its duties owed to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS
GOLF CLUB in one or more of the following ways:
a Failing to safely and properly investigate torch applied roof membranes related to
combustion propensity prior to placing or distributing such products and related
components into the stream of commerce; «.
b. Failing to assure that the company, employees or subcontracts were competent to use
the products and understood the risk, dangers and propensity of combustion while
using torches;
c Failing to provide information, instruction and warnings regarding the risk, dangers
and propensity of combustion while using torches;
d. Placing or distributing into the stream of commerce defective or dangerous products,
such as torch applied roof membranes or other dangerous roof products for
commercial purposes breaching implied warranty of merchantability and express
warranties;
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 9e. Placing or distributing into the stream of commerce defective or dangerous products,
such as torch applied roof membranes or other dangerous roof products for
commercial purposes imposing strict liability based on products liability or tort; and
f. Placing or distributing into the stream of commerce defective or dangerous products,
such as torch applied roof membranes or other dangerous roof products for
commercial purposes based upon misrepresentations that were relied upon Plaintiff,
Contractor, Subcontractor and Sub-subcontractors to their detriment.
8.03 Plaintiff would show that each of the foregoing acts of Defendant ROOFING SUPPLY
Group, LLC was a proximate cause and/or the proximate cause of the business interruption damages
suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the
Plaintiff, AMERICAN ZURICH INSURANCE COMPANY.
IX. NEGLIGENCE: CERTAINTEED CORPORATION
9.01 Plaintiff would show that Defendant, CERTAINTEED CORPORATION, was strictly
liable due to placing or distributing into the stream of commerce defective torch applied membranes
and roofing materials. Moreover, CERTAINTEED CORPORATION failed to provide adequate warnings /
regarding the safe use and application of the membrane with a torch or torches. CERTAINTEED
CORPORATION breached the implied warranty of merchantability for fitness of purpose and provided
no express warranties. Defendant, CERTAINTEED CORPORATION’S, strict liability, breach of
implied warranty, failure to provide adequate warning and misrepresentations, or any combination of
the afore mentioned, was a proximate cause or the proximate cause of the business interruption
damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF
CLUB and the Plaintiff.
9.02 Plaintiff would show that Defendant, CERTAINTEED CORPORATION, owed a duty to
THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB to exercise
ordinary care and act in a reasonable and prudent manner in providing adequate warnings for the roof
components it sold to BARKER ROOFING, L.P., including, but not limited to, flammable roof
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 10membrane. Plaintiff would further show that in supplying roofing materials for the construction of
the roof for the new Club House and/or in connection with the construction of the roof for the new
Club House, Defendant CERTAINTEED CORPORATION breached its duty owed to THE VARSITY
GoLF CLuB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB in one or more of the following
ways:
Failing to provide adequate safety warnings regarding the flammability of the roof
membrane and other roof materials it placed into the stream of commerce or sold to
BARKER ROOFING, L.P., CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY
Group, LLC or others to construct and install the roof on the new Club House;
Failing to discover any and all problems, risk or dangers and deficiencies in
construction methods using membranes or other roof components sold to BARKER
ROOFING, L.P., CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY GROUP, LLC
or others to construct and install the roof on the new Club House;
Failing to discover any and all problems combustibility, fire risk or fire dangers in the
roof membranes or other roof components sold to BARKER ROOFING, L.P.,
CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY Group, LLC despite the
products were not substantially changed or altered after CERTAINTEED
CORPORATION shipped them from Pennsylvania;
Failing to undertake reasonable efforts to investigate the design, manufacture,
foreseeable use and misuse and product characteristics of the roofing materials
and membranes before placing such membranes and roof components into the
stream of commerce when safer products and components were available;
Failing to provide proper warnings regarding the flammability of the membranes and
roof components that CERTAINTEED CORPORATION placed into the stream of
commerce;
Failing to provide proper warnings regarding the flammability of the membranes and
roof components that CERTAINTEED CORPORATION distributed for commercial
purposes to be used in the construction of the new Club House;
Failing to use ordinary care in the sale and distribution of defective roofing
products resulting in the loss of business income caused by said products based in
strict tort liability, strict products liability, negligence, misrepresentation, breach
of express or implied warranty, or any other theory or combination of theories.
Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2) (Vernon 2005);
Zur/UT GOLF/Plaintiff’s First Amended Original Petition Ilh. Failing to use ordinary care while "engaged in the business of distributing or
otherwise placing" a product in the stream of commerce;
i. Failing to properly train, supervise, or instruct its workers, employees, agents, and/or
representatives to warn and provide instruction of safe use so as to prevent the fire
and business interruption damages suffered by THE VARSITY GOLF CLUB, LTD.
D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and Plaintiff,
j Failing to undertake reasonable efforts to investigate the design, manufacture and
product characteristics of the roofing materials and membranes before placing
such membranes and roof components into the stream of commerce;
k. Failing to use ordinary care while engaged in the business of distributing roofing
membranes and component parts or otherwise placing, for any commercial
purpose, in the stream of commerce for use or consumption a roof product or any
component part thereof;
1 Breach of implied warranty and strict products liability regarding the performance,
safety, application characteristics and flammability of the roof membrane and related
roof components;
m. Breach of strict products liability in that CERTAINTEED CORPORATION sold a roof
membrane product in a defective condition unreasonably dangerous to the user or
consumer or to his property whereby CERTAINTEED CORPORATION is subject to
liability for physical harm thereby caused to the ultimate user or consumer, or to
his property, in that, CERTAINTEED CORPORATION is in business of selling such a
product, and it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold;
n. CERTAINTEED CORPORATION misrepresented the characteristics, qualities,
performance nature and susceptibility to combustion of the roof membrane and
roof components;
0. CERTAINTEED CORPORATION breached the implied warranty of merchantability
with respect to the characteristics, qualities, performance nature and susceptibility
to combustion of the roof membrane and roof components;
p. CERTAINTEED CORPORATION breached by failing to instigate appropriate design
modifications and marketing procedures in light of recognized product
characteristics, qualities, performance nature and susceptibility to combustion of
the roof membrane and roof components; and
q. CERTAINTEED CORPORATION failed to use ordinary care whereby due to the
danger of the roof membrane application and propensity to combustion said
negligence gives rise to strict liability in tort.
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 129.03 Plaintiff would show that each of the foregoing acts of Defendant CERTAINTEED
CORPORATION was a proximate cause and/or the proximate cause of the business interruption
damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF
CLUB and the Plaintiff, AMERICAN ZURICH INSURANCE COMPANY AS SUBROGEE OF THE VARSITY
GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB.
X. NEGLIGENCE: FIRESTONE BUILDING PRODUCTS COMPANY, LLC
10.01 Plaintiff would show that Defendant, FIRESTONE BUILDING PRODUCTS COMPANY,
LLC, was strictly liable due to placing or distributing into the stream of commerce defective torch
applied membranes and roofing materials. Moreover, FIRESTONE BUILDING PRODUCTS COMPANY,
LLC failed to provide adequate warnings regarding the safe use and application of the membrane
with a torch or torches. FIRESTONE breached the implied warranty of merchantability for fitness of
purpose and provided no express warranties. Defendant, FIRESTONE BUILDING PRODUCTS
Company, LLC’S, strict liability, breach of implied warranty, failure to provide adequate warning
and misrepresentations, or any combination of the afore mentioned, was a proximate cause or the
proximate cause of the business interruption damages suffered by THE VARSITY GOLF CLUB, LTD.
D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff.
10.02 Plaintiff would show that Defendant, FIRESTONE BUILDING PRODUCTS: COMPANY,
LLC, owed a duty to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF
CLUB to exercise ordinary care and act in a reasonable and prudent manner in providing adequate
warnings for the roof components it sold to BARKER ROOFING, L.P., including, but not limited to,
flammable roof membrane. Plaintiff would further show that in supplying roofing materials for the
construction of the roof for the new Club House and/or in connection with the construction of the
roof for the new Club House, Defendant FIRESTONE BUILDING PRODUCTS COMPANY, LLC
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 13breached its duty owed to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF
CLUB in one or more of the following ways:
a.
Failing to provide adequate safety warnings regarding the flammability of the roof
membrane and other roof materials it placed into the stream of commerce or sold to
BARKER ROOFING, L.P., CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY
Group, LLC or others to construct and install the roof on the new Club House;
Failing to discover any and all problems, risk or dangers and deficiencies in
construction methods using membranes or other roof components sold to BARKER
ROOFING, L.P., CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY GRouP, LLC
or others to construct and install the roof on the new Club House;
Failing to discover any and all problems combustibility, fire risk or fire dangers in the
roof membranes or other roof components sold'to BARKER ROOFING, 'L.P:,°
CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY GROUP, LLC despite the
products were not substantially changed or altered after ROOFING SUPPLY GROUP,
LLC shipped them from Pennsylvania;
Failing to undertake reasonable efforts to investigate the design, manufacture,
foreseeable use and misuse and product characteristics of the roofing materials
and membranes before placing such membranes and roof components into the
stream of commerce when safer products and components were available;
Failing to provide proper warnings regarding the flammability of the membranes and
roof components that FIRESTONE BUILDING PRODUCTS COMPANY, LLC placed into
the stream of commerce;
Failing to provide proper warnings regarding the flammability of the membranes and
roof components that FIRESTONE BUILDING PRODUCTS CoMPANY, LLC distributed
for commercial purposes to be used in the construction of the new Club House;
Failing to use ordinary care in the sale and distribution of defective roofing
products resulting in the loss of business income caused by said products based in
strict tort liability, strict products liability, negligence, misrepresentation, breach
of express or implied warranty, or any other theory or combination of theories.
Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2) (Vernon 2005);
Failing to use ordinary care while "engaged in the business of distributing or
otherwise placing" a product in the stream of commerce;
Failing to properly train, supervise, or instruct its workers, employees, agents, and/or
representatives to warn and provide instruction of safe use so as to prevent the fire
Zur/UT GOLF /Plaintiff’s First Amended Original Petition 14and business interruption damages suffered by The Varsity Golf Club, LTD d/b/a
The University of Texas Golf Club and Plaintiff;
j. Failing to undertake reasonable efforts to investigate the design, manufacture and
product characteristics of the roofing materials and membranes before placing
such membranes and roof components into the stream of commerce;
k. Failing to use ordinary care while engaged in the business of distributing roofing
membranes and component parts or otherwise placing, for any commercial
purpose, in the stream of commerce for use or consumption a roof product or any
component part thereof;
1. Breach of implied warranty and strict products liability regarding the performance,
safety, application characteristics and flammability of the roof membrane and related
roof components;
m. Breach of strict products liability in that FIRESTONE BUILDING PRODUCTS
Company, LLC sold a roof membrane product in a defective condition
unreasonably dangerous to the user or consumer or to his property whereby
FIRESTONE BUILDING PRODUCTS COMPANY, LLC is subject to liability for
physical harm thereby caused to the ultimate user or consumer, or to his property,
in that, FIRESTONE BUILDING PRODUCTS COMPANY, LLC is in business of selling
such a product, and it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold;
n. FIRESTONE BUILDING PRODUCTS COMPANY, LLC misrepresented the
characteristics, qualities, performance nature and susceptibility to combustion of
the roof membrane and roof components;
0. FIRESTONE BUILDING PRODUCTS COMPANY, LLC breached the implied warranty
of merchantability with respect to the characteristics, qualities, performance
nature and susceptibility to combustion of the roof membrane and roof
components; x
p. FIRESTONE BUILDING PRODUCTS COMPANY, LLC breached by failing to instigate
appropriate design modifications and marketing procedures in light of recognized
product characteristics, qualities, performance nature and susceptibility to
combustion of the roof membrane and roof components; and
q. FIRESTONE BUILDING PRODUCTS COMPANY, LLC failed to use ordinary care
whereby due to the danger of the roof membrane application and propensity to
combustion said negligence gives rise to strict liability in tort.
10.03 Plaintiff would show that each of the foregoing acts of Defendant FIRESTONE
BUILDING PRODUCTS COMPANY, LLC was a proximate cause and/or the proximate cause of the
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 15business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY
OF TEXAS GOLF CLUB and the Plaintiff, AMERICAN ZURICH INSURANCE COMPANY.
XI. DAMAGES
11.01 Upon the trial of this cause, it will be shown that as a proximate result of the
Defendants, BARKER ROOFING, L.P.’s, CENTRAL TEXAS ROOFING, LLC’s, ROOFING SUPPLY
Group, LLC’s, ALFREDO JAIMES, INDIVIDUALLY’S, CERTAINTEED CORPORATION’S and
FIRESTONE BUILDING PRODUCTS COMPANY, LLC’s acts and/or omissions, WHETHER
SINGULAR OR IN COMBINATION, as described herein, THE VARSITY GOLF CLuB, LTD.
D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB was caused to sustain business interruption
damages in excess of the minimum jurisdictional requirements of this Court.
11.02 At all times material herein, THE VARSITY GOLF CLUB, LTD. D/B/A THE
UNIVERSITY OF TEXAS GOLF CLUB was covered by a policy of insurance with Plaintiff, AMERICAN
ZURICH INSURANCE COMPANY, that covered business interruption damages. Pursuant to the terms
of the policy, AMERICAN ZURICH INSURANCE COMPANY has paid business interruption damages to
Tue VaRsiry GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB totaling FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00). The policy provided that upon AMERICAN
ZURICH INSURANCE COMPANY’S payment of such damages, AMERICAN ZURICH INSURANCE
COMPANY would become subrogated to any claim which THE VARSITY GOLF CLUB, LTD. D/B/A
THE UNIVERSITY OF TEXAS GOLF CLUB may have against any third-party as the result of the third-
party’s legal liability. As such, pursuant to the provision of the policy of insurance and/or Plaintiff's
equitable subrogation rights, which, arose when Plaintiff paid THE VARSITY GOLF CLuB, LTD.
D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB’S claim. AMERICAN ZURICH INSURANCE COMPANY
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 16is the real party at interest and has become subrogated to the claim of THE VARSITY GOLF CLUB,
LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB for business interruption damages against
Defendants herein, which arose out of the aforesaid incident, and is entitled to recover from
Defendants the full amount of business interruption damages caused by Defendants plus any
deductible paid by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB,
for which Plaintiff pleads. Furthermore, THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY
OF TEXAS GOLF CLUB’S claim for business interruption damages against the Plaintiff remains open
and Plaintiff will be subrogated for the amount of additional business interruption damages should
additional business interruption damages be paid by Plaintiff to THE VARSITY GOLF CLUB, LTD.
D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB.
11.03 Plaintiff would show that Plaintiff's damages consist of business interruption
damages, plus prejudgment and post-judgment interest, and court costs.
XII. REQUEST FOR DISCLOSURE
12.01 Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendants,
CENTRAL TEXAS ROOFING, LLC, ALFREDO JAIMES, INDIVIDUALLY, ROOFING SUPPLY GROUP,
LLC, CERTAINTEED CORPORATION and FIRESTONE BUILDING PRODUCTS COMPANY, LLC, are
required to disclose, within fifty (50) days of service of this Request, the information or materials
described in Rule 194.2(a) through (1) of the Texas Rules of Civil Procedure.
XU. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff, AMERICAN ZURICH INSURANCE
COMPANY AS SUBROGEE OF THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS
GOLF CLUB prays that the Defendants be cited to appear and answer herein and that upon trial of
this cause, Plaintiff be awarded judgment against Defendants in an amount in excess of the
Zur/UT GOLF/Plaintiff’s First Amended Original Petition 17minimal jurisdictional limits of this Court, pre-judgment interest on those elements of damages
as allowed by law, post-judgment interest on the remaining damages from the date of the
judgment until paid, that Plaintiff recover its costs of court expended; and that Plaintiff have all
other and further relief, both general and special, at law or in equity, to which Plaintiff may be
justly entitled.
Respectfully submitted,
KELLY, SMITH & MURRAH, P.C.
a7 7
Charles T. Kelly
State Bar No. 11216840
4305 Yoakum Blvd.
Houston, Texas 77006
713/861-9900 Telephone
713/861-7100 Facsimile
ATTORNEYS FOR PLAINTIFF, AMERICAN
ZuRIcH INSURANCE COMPANY AS
SUBROGEE OF THE VARSITY GOLF CLUB,
LTD. D/B/A THE UNIVERSITY OF TEXAS
GOLF CLUB
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Plaintiff, American Zurich
Insurance Company as Subrogee of The Varsity Golf Club, LTD d/b/a The University of Texas
Golf Club’s First Amended Original Petition has been duly served on all counsel of record, in
accordance with Rules 21 and 21(a) of the Texas Rules of Civil Procedure, on this, the
day of December, 2009, as follows:
Via Facsimile No: 512-474-8582
David E. Chamberlain
Chamberlain * McHaney
301 Congress Avenue, 21% Floor,
Austin, Texas 78701.
Attorney for Defendant, Barker Roofing, LP
coer
Charles T. Kelly
Zur/UT GOLF /Plaintiff’s First Amended Original Petition I8KELLY, SMITH & MURRAH, P.C.
ATTORNEYS AT LAW
4305 Yoakum Blvd.
Houston, Texas 77006
Telephone: (713) 861-9900
Facsimile: (713) 861-7100
December 17, 2009
Via E-Filing
Ms. Amalia Rodriguez-Mendoza
Travis County District Clerk
1000 Guadalupe Street
Austin, Texas 78701
RE: Cause Number D-1-GN-09-000432; American Zurich Insurance Company as
Subrogee of The Varsity Golf Club, LTD d/b/a The University of Texas Golf Club
y. Barker Roofing, L.P., In the 419" Judicial District Court of Travis County,
Texas
Dear Ms. Rodriguez-Mendoza:
Attached for filing in your usual and customary manner please find the Plaintiff’s First
Amended Original Petition and Request for Disclosure. Please issue a Citation to each of the
Defendants as follows:
1. Central Texas Roofing, LLC
By serving its Registered Agent:
Alfredo Jaimes
803 Glass Drive
Leander, Texas 78641
2. Alfredo Jaimes
803 Glass Drive
Leander, Texas 78641
3. Roofing Supply Group, LLC
By serving its Registered Agent:
CT Corporation System
350 North St. Paul Street
Dallas, Texas 75201
4. CertainTeed Corporation
By serving its Registered Agent:
CT Corporation System
350 North St. Paul Street
Dallas, Texas 75201
Zur-UT Golf/Clerk.First Amended POP.121709Ms. Amalia Rodriguez-Mendoza
December 17, 2009
Page 2
5. Firestone Building Products Company, LLC
By serving the Secretary of State
For forwarding to the Registered Agent:
John Vasuta
250 W. 96" Street
Indianapolis, Indiana 46260
Please contact James Slack with ProActive Legal Solutions at 832-209-7760 when the
citations are available for pickup. Thank you for your usual courtesies in this matter. If you
should have any questions, please do not hesitate to contact me at your convenience.
Very truly yours,
KELLY, SMITH & MURRAK, P.C.
-_
oe 7 eA
Charles T. Kelly
CTK/to
Enclosures — as stated
Zur-UT GolfClerk.First Amended POP.121709
Preview
Filed 09 December 17 A10:11 Amalia Rodriguez-Mendoza District Clerk Travis District CAUSE NO. D-1-GN-09-000432 AMERICAN ZURICH INSURANCE IN THE DISTRICT COURT OF COMPANY AS SUBROGEE OF The Varsity Golf Club, LTD d/b/a The University of Texas Golf Club Plaintiff, VS. TRAVIS COUNTY, TEXAS BARKER ROOFING, L.P. LP LP OD LD LP UP LPL LP LP CO? MD LP Defendant. 419" JUDICIAL DISTRICT: PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION AND REQUEST FOR DISCLOSURE TO THE HONORABLE DISTRICT COURT JUDGE: Plaintiff, AMERICAN ZURICH INSURANCE COMPANY AS SUBROGEE OF THE VARSITY GOLF CLus, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB files this its First Amended Original Petition, complaining of BARKER ROOFING, L.P., ROOFING SUPPLY Group, LLC, CENTRAL TEXAS ROOFING, LLC, ALFREDO JAIMES, INDIVIDUALLY, CERTAINTEED CORPORATION AND FIRESTONE BUILDING PRODUCTS ComPANy, LLC (hereinafter collectively referred to as “Defendants”), and for cause of action would show this Court the following: I. DISCOVERY PLAN 1.01 Pursuant to Texas Rules of Civil Procedure §190.4, Plaintiff pleads that discovery is to be conducted under Level 3. UL. PARTIES 2.01 Plaintiff, AMERICAN ZURICH INSURANCE COMPANY (hereinafter “AMERICAN ZURICH”, or “Plaintiff’) is an insurance corporation duly authorized to conduct business in the Zur/UT GOLF/Plaintiff’s First Amended Original Petition 1State of Texas. Plaintiff files this cause as Subrogee of and in the name of THE VARSITY GOLF CLuB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB. However, the undersigned counsel for Plaintiff does not represent THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GoF CLUB (“UT GoLF CLUB”) and is not authorized to accept service, pleadings or discovery on its behalf. 2.02 Defendant, BARKER ROOFING, L.P., (“BARKER”), is a domestic limited partnership doing business in the State of Texas who has filed a responsive pleading in this matter is being served with a copy of Plaintiff's First Amended Petition by and through its counsel of record: CHAMBERLAIN'# MCHANEY, 301 CONGRESS, 21°" FLOoR, AUSTIN, TEXAS 78701. 2.03 Defendant, CENTRAL TEXAS ROOFING, LLC (“CENTRAL TEXAS”) is a Domestic Limited Liability Company (LLC), doing business in the State of Texas and may be served with a copy of Plaintiff's First Amended Original Petition and Request for Disclosure by serving its registered agent: MR. ALFREDO JAIMES, 803 GLASS DRIVE, LEANDER, TX 78641. **SERVICE IS REQUESTED AT THIS TIME** 2.04 Defendant, ALFREDO JAMIES (“JAMIES”) is an individual residing in Texas and may be served with Plaintiffs First Amended Petition at his place of residence: 803 GLASS DRIVE, LEANDER, TX 78641. **SERVICE IS REQUESTED AT THIS TIME** 2.05 Defendant, ROOFING SUPPLY GRouP, LLC (“ROOFING SUPPLY”) is a Foreign Limited Liability Company doing business in the State of Texas and may be served with a copy of Plaintiff's First Amended Original Petition and Request for Disclosure by serving its registered agent: CT CORPORATION SYSTEM, 350 NoRTH ST. PAUL STREET, DALLAS, TEXAS, 75201. Zur/UT GOLF/Plaintiff’s First Amended Original Petition 2**SERVICE IS REQUESTED AT THIS TIME** 2.06 Defendant, CERTAINTEED CORPORATION (“CERTAINTEED”) is a Foreign Corporation doing business in the State of Texas and may be served with a copy of Plaintiff's First Amended Original Petition and Request for Disclosure by serving its registered agent: CT CORPORATION, 350 N. ST. PAUL STREET, DALLAS, TX 75201. **SERVICE IS REQUESTED AT THIS TIME** 2.07 Defendant, FIRESTONE BUILDING PRODUCTS COMPANY, LLC (“FIRESTONE”) is a foreign Limited Liability Company doing business in the State of Texas that does not maintain a registered service agent in the State of Texas. This Defendant may be served with process under the Texas Long Arm Statute, Section 17.044 et seq., of the Texas Civil Practice and Remedies Code by serving the Secretary of State of Texas. The Secretary of State shall then forward a copy of the service of process and Petition via certified mail, return receipt requested to Defendant by serving its registered agent: JOHN VASUTA, 250 W. 96™ STREET, INDIANAPOLIS, IN 46260. **SERVICE IS REQUESTED AT THIS TIME** I. JURISDICTION 3.01 The Court has jurisdiction over this matter because the amount in controversy is within the jurisdictional limits of this Court. Venue is proper in Travis County, Texas because Defendant BARKER ROOFING, L.P. maintains its principle places of business in Travis County, Texas and the incident giving rise to this cause of action occurred in Travis County, TX. IV. FACTS 4.01 UT GoLr CLUuB, located at 2200 University Club Drive, Austin, Travis County, Texas is a private golf club that has been in business and operating since November of 2003. Zur/UT GOLF/Plaintiff’s First Amended Original Petition 3While continuing in operation, UT GOLF CLUB entered into a contract to build a new Club House in February of 2007. On or about December 26, 2007, a fire destroyed the Club House. The new club house was approximately seventy-five percent complete at the time of the fire. 4.02 Defendant, BARKER ROOFING, L.P. was the roofing sub-contractor on the new Club House Construction project. 4.03 Defendant, CENTRAL TEXAS ROOFING, LLC was a sub-contractor of BARKER ROOFING, L.P. or, in the alternative, at all times during the construction of the new Club House Construction project was under the direct supervision and control of BARKER ROOFING, L.P.. 4.04 Defendant, CERTAINTEED CORPORATION, was a manufacturer of the torch applied to the roof membrane and other roof materials which combusted and resulted in the fire at the new Club House Construction project when applied by BARKER ROOFING, L.P. and/or CENTRAL TEXAS ROOFING, LLC. 4.05 Defendant, FIRESTONE BUILDING PRODUCTS COMPANY, LLC, was a manufacturer of the torch applied to the roof membrane and other roof materials which combusted and resulted in the fire at the new Club House Construction project when applied by BARKER ROOFING, L.P. and/or CENTRAL TEXAS ROOFING, LLC. 4.06 Defendant, ROOFING SUPPLY GROUP, LLC, was the distributor and provider of all the material and supplies including the torch and other roofing membrane components purchased by BARKER ROOFING, L.P. and/or CENTRAL TEXAS ROOFING, LLC for the new Club House Construction project. 4.07 Plaintiff, AMERICAN ZURICH INSURANCE COMPANY, had issued a policy of Insurance to their insured, THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLuB, which provided insurance on the existing golf course buildings and the golf course Zur/UT GOLF/Plaintiff’s First Amended Original Petition 4but did not provide property insurance on the New Club House. Specifically, AMERICAN ZURICH INSURANCE COMPANY’S policy provided insurance for business interruption. V. NEGLIGENCE: BARKER ROOFING, L.P. 5.01 Plaintiff would show that Defendant, BARKER ROOFING, L.P., was negligent in the manner in which it performed its work and services at the UT GOLF CLUB. Defendant, BARKER ROOFING, L.P.’s, negligence was a proximate cause and/or the proximate cause of the business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff. 5.02 Plaintiff would show that the Defendant, BARKER ROOFING, L.P., owed a duty to THe Varsity GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB to exercise ordinary care and act in a reasonable and prudent manner when conducting work at the UT GOLF CLUB. Plaintiff would further show that in performing services at and/or in connection with the construction of the roof for the new Club House, Defendant BARKER ROOFING, L.P. breached its duties owed to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB in one or more of the following ways: a. Failing to safely and properly perform its work-on-the-new-Club-Houses db. Failing to perform its work in a good and workmanlike manner; c , Failing to properly install the roof on the new Club House; d. Failing to discovery any and all problems, deficiencies in construction methods it used to construct and install the roof on the new Club House; e Failing to comply with all applicable codes, regulations, guidelines, notices and/or procedures regarding its work on the new Club House; £ Failing to properly train, supervise, or instruct its workers, employees, agents, and/or representatives so as to prevent the fire and business interruption damages suffered Zur/UT GOLF/Plaintiff’s First Amended Original Petition 5by THE VaRsITy GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and Plaintiff; and g Failing to use due care in performing services. 5.03 Plaintiff would show that each of the foregoing acts of Defendant BARKER ROOFING, L.P. was a proximate cause and/or the proximate cause of the business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff, AMERICAN ZURICH INSURANCE COMPANY. VI. NEGLIGENCE: CENTRAL TEXAS ROOFING, LLC 6.01 Plaintiff would show that Defendant, CENTRAL TEXAS ROOFING, LLC, was negligent in the manner in which it performed its work and services at the UT GOLF CLUB. Defendant, CENTRAL TEXAS ROOFING, LLC’s, negligence was a proximate cause and/or the proximate cause of the business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff. 6.02 Plaintiff would show that the Defendant, CENTRAL TEXAS ROOFING, LLC, owed a duty to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB to exercise ordinary care and act in a reasonable and prudent manner when conducting work at the UT GOLF Cus. Plaintiff would farther show that in performing services at and/or in connection with the construction of the roof for the new Club House, Defendant, CENTRAL TEXAS ROOFING, LLC breached its duties owed to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB in one or more of the following ways: a Failing to safely and properly perform its work on the new Club House; b. Failing to perform its work in a good and workmanlike manner; c Failing to properly install the roof on the new Club House; Zur/UT GOLF /Plaintiff’s First Amended Original Petition 6d. Failing to discovery any and all problems, deficiencies in construction methods it used to construct and install the roof on the new Club House; e. Failing to comply with all applicable codes, regulations, guidelines, notices and/or procedures regarding its work on the new Club House; f£. Failing to properly train, supervise, or instruct its workers, employees, agents, and/or representatives so as to prevent the fire and business interruption damages suffered by THE VARSITY GOLF CLuB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and Plaintiff; and g Failing to use due care in performing services. 6.03 Plaintiff would show that each of the foregoing acts of Defendant CENTRAL TEXAS ROOFING, LLC was a proximate cause and/or the proximate cause of the ‘business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff, AMERICAN ZURICH INSURANCE COMPANY. VIL NEGLIGENCE: ALFREDO JAIMES, INDIVIDUALLY 7.01 Plaintiff would show that Defendant, JAMIES, was negligent in the manner in which he performed his work and services at the UT Golf Club. Defendant, JAMIES’s, negligence was a proximate cause or the proximate cause of the business interruption damages suffered by The Varsity Golf Club, LTD d/b/a The University of Texas Golf Club and the Plaintiff. 7.02 Plaintiff would show that Defendant, ALFREDO JAIMES, INDIVIDUALLY, owed a duty to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB to exercise ordinary care and act in a reasonable and prudent manner when conducting his work at the UT GOLF CLUB. Plaintiff would further show that in performing services at and/or in connection with the construction of the roof for the new Club House, Defendant ALFREDO JAIMES, INDIVIDUALLY breached his duties owed to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB in one or more of the following ways: a Failing to safely and properly perform his work on the new Club House; Zur/UT GOLF /Plaintiff’s First Amended Original Petition 7b. Failing to perform his work in a good and workmanlike manner; c Failing to properly install the roof on the new Club House; d. Failing to discover any and all problems, deficiencies in construction methods he or others used to construct and install the roof on the new Club House; e. Failing to comply with all applicable codes, regulations, guidelines, notices and/or procedures regarding its work on the new Club House; f. Failing to properly train, supervise, or instruct his workers, employees, agents, and/or representatives so as to prevent the fire and business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and Plaintiff; 2 Failing to use due care in performing services; and h. Failing to follow and adhere to all safety policies set forth in conditions by BARKER ROOFING, L.P. 7.03 Plaintiff would show that each of the foregoing acts of Defendant ALFREDO JAIMES, INDIVIDUALLY was a proximate cause and/or the proximate cause of the business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff, AMERICAN ZURICH INSURANCE COMPANY. VIII. NEGLIGENCE: ROOFING SUPPLY GROUP, LLC 8.01 Plaintiff would show that Defendant, ROOFING SUPPLY Group, LLC, was negligent in the manner in which it provided materials and supplies for use and incorporation at the UT GOLF CLUB. ROOFING SUPPLY GROUP, LLC is strictly liable in products liability or tort by the sale and distribution of torch applied roof membrane and other roof materials which combusted and resulted in the fire at the new Club House Construction project when applied by BARKER ROOFING, L.P. and/or CENTRAL TEXAS ROOFING, LLC. Further, ROOFING SUPPLY Group, LLC is strictly liable for misrepresentation and breach of the implied warranty of merchantability of the torch applied roof membrane and other roof materials which combusted and resulted in the fire at Zur/UT GOLF/Plaintiff’s First Amended Original Petition 8the new Club House Construction project. Moreover, Defendant ROOFING SUPPLY Group, LLC is liable for failure to provide adequate warnings regarding the use and characteristics of torch applied roof membranes resulting in the fire at the new Club House Construction project. Defendant, ROOFING SUPPLY GRouP, LLC’S, negligence, strict liability, sounded in tort or products liability, misrepresentation, breach of implied or express warranties and/or lack of warning, or any combination of the afore mentioned, was a proximate cause or the proximate cause of the business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff. 8.02 Plaintiff would show that the Defendant, ROOFING SUPPLY Group, LLC, owed a duty to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB to exercise ordinary care and act in a reasonable and prudent manner when conducting work at the UT GOLF CLuB. Plaintiff would further show that in performing services at and/or in connection with the construction of the roof for the new Club House, Defendant ROOFING SUPPLY GRouP, LLC breached its duties owed to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB in one or more of the following ways: a Failing to safely and properly investigate torch applied roof membranes related to combustion propensity prior to placing or distributing such products and related components into the stream of commerce; «. b. Failing to assure that the company, employees or subcontracts were competent to use the products and understood the risk, dangers and propensity of combustion while using torches; c Failing to provide information, instruction and warnings regarding the risk, dangers and propensity of combustion while using torches; d. Placing or distributing into the stream of commerce defective or dangerous products, such as torch applied roof membranes or other dangerous roof products for commercial purposes breaching implied warranty of merchantability and express warranties; Zur/UT GOLF/Plaintiff’s First Amended Original Petition 9e. Placing or distributing into the stream of commerce defective or dangerous products, such as torch applied roof membranes or other dangerous roof products for commercial purposes imposing strict liability based on products liability or tort; and f. Placing or distributing into the stream of commerce defective or dangerous products, such as torch applied roof membranes or other dangerous roof products for commercial purposes based upon misrepresentations that were relied upon Plaintiff, Contractor, Subcontractor and Sub-subcontractors to their detriment. 8.03 Plaintiff would show that each of the foregoing acts of Defendant ROOFING SUPPLY Group, LLC was a proximate cause and/or the proximate cause of the business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff, AMERICAN ZURICH INSURANCE COMPANY. IX. NEGLIGENCE: CERTAINTEED CORPORATION 9.01 Plaintiff would show that Defendant, CERTAINTEED CORPORATION, was strictly liable due to placing or distributing into the stream of commerce defective torch applied membranes and roofing materials. Moreover, CERTAINTEED CORPORATION failed to provide adequate warnings / regarding the safe use and application of the membrane with a torch or torches. CERTAINTEED CORPORATION breached the implied warranty of merchantability for fitness of purpose and provided no express warranties. Defendant, CERTAINTEED CORPORATION’S, strict liability, breach of implied warranty, failure to provide adequate warning and misrepresentations, or any combination of the afore mentioned, was a proximate cause or the proximate cause of the business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff. 9.02 Plaintiff would show that Defendant, CERTAINTEED CORPORATION, owed a duty to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB to exercise ordinary care and act in a reasonable and prudent manner in providing adequate warnings for the roof components it sold to BARKER ROOFING, L.P., including, but not limited to, flammable roof Zur/UT GOLF/Plaintiff’s First Amended Original Petition 10membrane. Plaintiff would further show that in supplying roofing materials for the construction of the roof for the new Club House and/or in connection with the construction of the roof for the new Club House, Defendant CERTAINTEED CORPORATION breached its duty owed to THE VARSITY GoLF CLuB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB in one or more of the following ways: Failing to provide adequate safety warnings regarding the flammability of the roof membrane and other roof materials it placed into the stream of commerce or sold to BARKER ROOFING, L.P., CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY Group, LLC or others to construct and install the roof on the new Club House; Failing to discover any and all problems, risk or dangers and deficiencies in construction methods using membranes or other roof components sold to BARKER ROOFING, L.P., CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY GROUP, LLC or others to construct and install the roof on the new Club House; Failing to discover any and all problems combustibility, fire risk or fire dangers in the roof membranes or other roof components sold to BARKER ROOFING, L.P., CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY Group, LLC despite the products were not substantially changed or altered after CERTAINTEED CORPORATION shipped them from Pennsylvania; Failing to undertake reasonable efforts to investigate the design, manufacture, foreseeable use and misuse and product characteristics of the roofing materials and membranes before placing such membranes and roof components into the stream of commerce when safer products and components were available; Failing to provide proper warnings regarding the flammability of the membranes and roof components that CERTAINTEED CORPORATION placed into the stream of commerce; Failing to provide proper warnings regarding the flammability of the membranes and roof components that CERTAINTEED CORPORATION distributed for commercial purposes to be used in the construction of the new Club House; Failing to use ordinary care in the sale and distribution of defective roofing products resulting in the loss of business income caused by said products based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories. Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2) (Vernon 2005); Zur/UT GOLF/Plaintiff’s First Amended Original Petition Ilh. Failing to use ordinary care while "engaged in the business of distributing or otherwise placing" a product in the stream of commerce; i. Failing to properly train, supervise, or instruct its workers, employees, agents, and/or representatives to warn and provide instruction of safe use so as to prevent the fire and business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and Plaintiff, j Failing to undertake reasonable efforts to investigate the design, manufacture and product characteristics of the roofing materials and membranes before placing such membranes and roof components into the stream of commerce; k. Failing to use ordinary care while engaged in the business of distributing roofing membranes and component parts or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a roof product or any component part thereof; 1 Breach of implied warranty and strict products liability regarding the performance, safety, application characteristics and flammability of the roof membrane and related roof components; m. Breach of strict products liability in that CERTAINTEED CORPORATION sold a roof membrane product in a defective condition unreasonably dangerous to the user or consumer or to his property whereby CERTAINTEED CORPORATION is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, in that, CERTAINTEED CORPORATION is in business of selling such a product, and it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold; n. CERTAINTEED CORPORATION misrepresented the characteristics, qualities, performance nature and susceptibility to combustion of the roof membrane and roof components; 0. CERTAINTEED CORPORATION breached the implied warranty of merchantability with respect to the characteristics, qualities, performance nature and susceptibility to combustion of the roof membrane and roof components; p. CERTAINTEED CORPORATION breached by failing to instigate appropriate design modifications and marketing procedures in light of recognized product characteristics, qualities, performance nature and susceptibility to combustion of the roof membrane and roof components; and q. CERTAINTEED CORPORATION failed to use ordinary care whereby due to the danger of the roof membrane application and propensity to combustion said negligence gives rise to strict liability in tort. Zur/UT GOLF/Plaintiff’s First Amended Original Petition 129.03 Plaintiff would show that each of the foregoing acts of Defendant CERTAINTEED CORPORATION was a proximate cause and/or the proximate cause of the business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff, AMERICAN ZURICH INSURANCE COMPANY AS SUBROGEE OF THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB. X. NEGLIGENCE: FIRESTONE BUILDING PRODUCTS COMPANY, LLC 10.01 Plaintiff would show that Defendant, FIRESTONE BUILDING PRODUCTS COMPANY, LLC, was strictly liable due to placing or distributing into the stream of commerce defective torch applied membranes and roofing materials. Moreover, FIRESTONE BUILDING PRODUCTS COMPANY, LLC failed to provide adequate warnings regarding the safe use and application of the membrane with a torch or torches. FIRESTONE breached the implied warranty of merchantability for fitness of purpose and provided no express warranties. Defendant, FIRESTONE BUILDING PRODUCTS Company, LLC’S, strict liability, breach of implied warranty, failure to provide adequate warning and misrepresentations, or any combination of the afore mentioned, was a proximate cause or the proximate cause of the business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff. 10.02 Plaintiff would show that Defendant, FIRESTONE BUILDING PRODUCTS: COMPANY, LLC, owed a duty to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB to exercise ordinary care and act in a reasonable and prudent manner in providing adequate warnings for the roof components it sold to BARKER ROOFING, L.P., including, but not limited to, flammable roof membrane. Plaintiff would further show that in supplying roofing materials for the construction of the roof for the new Club House and/or in connection with the construction of the roof for the new Club House, Defendant FIRESTONE BUILDING PRODUCTS COMPANY, LLC Zur/UT GOLF/Plaintiff’s First Amended Original Petition 13breached its duty owed to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB in one or more of the following ways: a. Failing to provide adequate safety warnings regarding the flammability of the roof membrane and other roof materials it placed into the stream of commerce or sold to BARKER ROOFING, L.P., CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY Group, LLC or others to construct and install the roof on the new Club House; Failing to discover any and all problems, risk or dangers and deficiencies in construction methods using membranes or other roof components sold to BARKER ROOFING, L.P., CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY GRouP, LLC or others to construct and install the roof on the new Club House; Failing to discover any and all problems combustibility, fire risk or fire dangers in the roof membranes or other roof components sold'to BARKER ROOFING, 'L.P:,° CENTRAL TEXAS ROOFING, LLC or ROOFING SUPPLY GROUP, LLC despite the products were not substantially changed or altered after ROOFING SUPPLY GROUP, LLC shipped them from Pennsylvania; Failing to undertake reasonable efforts to investigate the design, manufacture, foreseeable use and misuse and product characteristics of the roofing materials and membranes before placing such membranes and roof components into the stream of commerce when safer products and components were available; Failing to provide proper warnings regarding the flammability of the membranes and roof components that FIRESTONE BUILDING PRODUCTS COMPANY, LLC placed into the stream of commerce; Failing to provide proper warnings regarding the flammability of the membranes and roof components that FIRESTONE BUILDING PRODUCTS CoMPANY, LLC distributed for commercial purposes to be used in the construction of the new Club House; Failing to use ordinary care in the sale and distribution of defective roofing products resulting in the loss of business income caused by said products based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories. Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2) (Vernon 2005); Failing to use ordinary care while "engaged in the business of distributing or otherwise placing" a product in the stream of commerce; Failing to properly train, supervise, or instruct its workers, employees, agents, and/or representatives to warn and provide instruction of safe use so as to prevent the fire Zur/UT GOLF /Plaintiff’s First Amended Original Petition 14and business interruption damages suffered by The Varsity Golf Club, LTD d/b/a The University of Texas Golf Club and Plaintiff; j. Failing to undertake reasonable efforts to investigate the design, manufacture and product characteristics of the roofing materials and membranes before placing such membranes and roof components into the stream of commerce; k. Failing to use ordinary care while engaged in the business of distributing roofing membranes and component parts or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a roof product or any component part thereof; 1. Breach of implied warranty and strict products liability regarding the performance, safety, application characteristics and flammability of the roof membrane and related roof components; m. Breach of strict products liability in that FIRESTONE BUILDING PRODUCTS Company, LLC sold a roof membrane product in a defective condition unreasonably dangerous to the user or consumer or to his property whereby FIRESTONE BUILDING PRODUCTS COMPANY, LLC is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, in that, FIRESTONE BUILDING PRODUCTS COMPANY, LLC is in business of selling such a product, and it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold; n. FIRESTONE BUILDING PRODUCTS COMPANY, LLC misrepresented the characteristics, qualities, performance nature and susceptibility to combustion of the roof membrane and roof components; 0. FIRESTONE BUILDING PRODUCTS COMPANY, LLC breached the implied warranty of merchantability with respect to the characteristics, qualities, performance nature and susceptibility to combustion of the roof membrane and roof components; x p. FIRESTONE BUILDING PRODUCTS COMPANY, LLC breached by failing to instigate appropriate design modifications and marketing procedures in light of recognized product characteristics, qualities, performance nature and susceptibility to combustion of the roof membrane and roof components; and q. FIRESTONE BUILDING PRODUCTS COMPANY, LLC failed to use ordinary care whereby due to the danger of the roof membrane application and propensity to combustion said negligence gives rise to strict liability in tort. 10.03 Plaintiff would show that each of the foregoing acts of Defendant FIRESTONE BUILDING PRODUCTS COMPANY, LLC was a proximate cause and/or the proximate cause of the Zur/UT GOLF/Plaintiff’s First Amended Original Petition 15business interruption damages suffered by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB and the Plaintiff, AMERICAN ZURICH INSURANCE COMPANY. XI. DAMAGES 11.01 Upon the trial of this cause, it will be shown that as a proximate result of the Defendants, BARKER ROOFING, L.P.’s, CENTRAL TEXAS ROOFING, LLC’s, ROOFING SUPPLY Group, LLC’s, ALFREDO JAIMES, INDIVIDUALLY’S, CERTAINTEED CORPORATION’S and FIRESTONE BUILDING PRODUCTS COMPANY, LLC’s acts and/or omissions, WHETHER SINGULAR OR IN COMBINATION, as described herein, THE VARSITY GOLF CLuB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB was caused to sustain business interruption damages in excess of the minimum jurisdictional requirements of this Court. 11.02 At all times material herein, THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB was covered by a policy of insurance with Plaintiff, AMERICAN ZURICH INSURANCE COMPANY, that covered business interruption damages. Pursuant to the terms of the policy, AMERICAN ZURICH INSURANCE COMPANY has paid business interruption damages to Tue VaRsiry GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB totaling FIVE HUNDRED THOUSAND DOLLARS ($500,000.00). The policy provided that upon AMERICAN ZURICH INSURANCE COMPANY’S payment of such damages, AMERICAN ZURICH INSURANCE COMPANY would become subrogated to any claim which THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB may have against any third-party as the result of the third- party’s legal liability. As such, pursuant to the provision of the policy of insurance and/or Plaintiff's equitable subrogation rights, which, arose when Plaintiff paid THE VARSITY GOLF CLuB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB’S claim. AMERICAN ZURICH INSURANCE COMPANY Zur/UT GOLF/Plaintiff’s First Amended Original Petition 16is the real party at interest and has become subrogated to the claim of THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB for business interruption damages against Defendants herein, which arose out of the aforesaid incident, and is entitled to recover from Defendants the full amount of business interruption damages caused by Defendants plus any deductible paid by THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB, for which Plaintiff pleads. Furthermore, THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB’S claim for business interruption damages against the Plaintiff remains open and Plaintiff will be subrogated for the amount of additional business interruption damages should additional business interruption damages be paid by Plaintiff to THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB. 11.03 Plaintiff would show that Plaintiff's damages consist of business interruption damages, plus prejudgment and post-judgment interest, and court costs. XII. REQUEST FOR DISCLOSURE 12.01 Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Defendants, CENTRAL TEXAS ROOFING, LLC, ALFREDO JAIMES, INDIVIDUALLY, ROOFING SUPPLY GROUP, LLC, CERTAINTEED CORPORATION and FIRESTONE BUILDING PRODUCTS COMPANY, LLC, are required to disclose, within fifty (50) days of service of this Request, the information or materials described in Rule 194.2(a) through (1) of the Texas Rules of Civil Procedure. XU. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff, AMERICAN ZURICH INSURANCE COMPANY AS SUBROGEE OF THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB prays that the Defendants be cited to appear and answer herein and that upon trial of this cause, Plaintiff be awarded judgment against Defendants in an amount in excess of the Zur/UT GOLF/Plaintiff’s First Amended Original Petition 17minimal jurisdictional limits of this Court, pre-judgment interest on those elements of damages as allowed by law, post-judgment interest on the remaining damages from the date of the judgment until paid, that Plaintiff recover its costs of court expended; and that Plaintiff have all other and further relief, both general and special, at law or in equity, to which Plaintiff may be justly entitled. Respectfully submitted, KELLY, SMITH & MURRAH, P.C. a7 7 Charles T. Kelly State Bar No. 11216840 4305 Yoakum Blvd. Houston, Texas 77006 713/861-9900 Telephone 713/861-7100 Facsimile ATTORNEYS FOR PLAINTIFF, AMERICAN ZuRIcH INSURANCE COMPANY AS SUBROGEE OF THE VARSITY GOLF CLUB, LTD. D/B/A THE UNIVERSITY OF TEXAS GOLF CLUB CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiff, American Zurich Insurance Company as Subrogee of The Varsity Golf Club, LTD d/b/a The University of Texas Golf Club’s First Amended Original Petition has been duly served on all counsel of record, in accordance with Rules 21 and 21(a) of the Texas Rules of Civil Procedure, on this, the day of December, 2009, as follows: Via Facsimile No: 512-474-8582 David E. Chamberlain Chamberlain * McHaney 301 Congress Avenue, 21% Floor, Austin, Texas 78701. Attorney for Defendant, Barker Roofing, LP coer Charles T. Kelly Zur/UT GOLF /Plaintiff’s First Amended Original Petition I8KELLY, SMITH & MURRAH, P.C. ATTORNEYS AT LAW 4305 Yoakum Blvd. Houston, Texas 77006 Telephone: (713) 861-9900 Facsimile: (713) 861-7100 December 17, 2009 Via E-Filing Ms. Amalia Rodriguez-Mendoza Travis County District Clerk 1000 Guadalupe Street Austin, Texas 78701 RE: Cause Number D-1-GN-09-000432; American Zurich Insurance Company as Subrogee of The Varsity Golf Club, LTD d/b/a The University of Texas Golf Club y. Barker Roofing, L.P., In the 419" Judicial District Court of Travis County, Texas Dear Ms. Rodriguez-Mendoza: Attached for filing in your usual and customary manner please find the Plaintiff’s First Amended Original Petition and Request for Disclosure. Please issue a Citation to each of the Defendants as follows: 1. Central Texas Roofing, LLC By serving its Registered Agent: Alfredo Jaimes 803 Glass Drive Leander, Texas 78641 2. Alfredo Jaimes 803 Glass Drive Leander, Texas 78641 3. Roofing Supply Group, LLC By serving its Registered Agent: CT Corporation System 350 North St. Paul Street Dallas, Texas 75201 4. CertainTeed Corporation By serving its Registered Agent: CT Corporation System 350 North St. Paul Street Dallas, Texas 75201 Zur-UT Golf/Clerk.First Amended POP.121709Ms. Amalia Rodriguez-Mendoza December 17, 2009 Page 2 5. Firestone Building Products Company, LLC By serving the Secretary of State For forwarding to the Registered Agent: John Vasuta 250 W. 96" Street Indianapolis, Indiana 46260 Please contact James Slack with ProActive Legal Solutions at 832-209-7760 when the citations are available for pickup. Thank you for your usual courtesies in this matter. If you should have any questions, please do not hesitate to contact me at your convenience. Very truly yours, KELLY, SMITH & MURRAK, P.C. -_ oe 7 eA Charles T. Kelly CTK/to Enclosures — as stated Zur-UT GolfClerk.First Amended POP.121709