Preview
Theodore T. Cordery, Esq. (Bar No. 114730)
Email: teordery@itke.com
-l-
211 Stephen E. Carlson, Esq. (Bar No. 104279)
Email: scarlson@itke.com ELECTRONICALLY
3}) IMAL TADLOCK, KEENEY & CORDERY, LLP FILED
100 BUSH STREET, SUITE 1300 Superior Court of California,
4 FAN h oe ea} es 7000, County of San Francisco
clephone: : JUN 13 2014
5 || Facsimile: (415) 675-7008 Clerc-ofthe Court
6 || Attorneys for Intervenors By: JUDITH NUNEZ
HARTFORD FIRE INSURANCE COMPANY, Deputy Clerk
7 || WEST AMERICAN INSURANCE COMPANY,
SAFECO INSURANCE COMPANY OF AMERICA,
8 TRAVELERS INDEMNITY CO., and
9|| 4URICH AMERICAN INSURANCE COMPANY,
successor in interest to Zurich Insurance Company, US Branch
oe 10 || (collectively on behalf of their suspended corporate insured RICH-TEX, INC.)
a
a
Zz il
a 12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
S 2 43 TN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
tzeiS® 14 UNLIMITED JURISDICTION
Ezesoe
z oe 2 45}| KENNETH MOSES, SR, CASE NO.: CGC-13-276180
¥ z 16 Plaintiff, (ASBESTOS)
5 4
5 17 v. COMPLAINT-IN-INTERVENTION OF
é HARTFORD FIRE INSURANCE
= 18 || KAISER GYPSUM COMPANY, INC.; COMPANY, WEST AMERICAN
3 GEORGIA-PACIFIC LLC (FRA GEORGIA- | INSURANCE COMPANY, SAFECO
= 191] PACIFIC CORPORATION): KELLY- INSURANCE COMPANY OF AMERICA,
MOORE PAINT COMPANY, INC.; UNION TRAVELERS INDEMNITY CO, AND
20 |] CARBIDE CORPORATION; AMES ZURICH AMERICAN INSURANCE
DRYWALL PRODUCTS COMPANY; COMPANY, SUCCESSOR IN INTEREST
21 || HAMILTON MATERIALS, INC.; TO ZURICH INSURANCE COMPANY, US
CONSOLIDATED INSULATION, INC.; BRANCH
22 || DOUGLASS INSULATION COMPANY,
INC.; GOLDEN GATE DRYWALL, INC.; Complaint Filed: August 21, 2013
23 || CAHILL CONSTRUCTION CO., INC.; Trial Date: None Set
FDCC CALIFORNIA, INC.; JAMES A
24 || NELSON CO., INC.; MARCONI
PLASTERING COMPANY, INC.; TOM
25 || OAKS DRYWALL; J & R CONSTRUCTION;
and DOES 1 through 800 inclusive,
2
6 Defendants.
27
28
COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
ENSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCHHARTFORD FIRE INSURANCE
COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO
INSURANCE COMPANY OF AMERICA,
TRAVELERS INDEMNITY CO. and
ZURICH AMERICAN INSURANCE
COMPANY, SUCCESSOR IN INTEREST TO
ZURICH INSURANCE COMPANY, US
BRANCH,
A 94104
0
REET
NEY & CORDERY, LLP
ee
nN
LAW OFFICES
SAN F
n
IMAI, TADLOCK,
g
Intervenors,
Vv.
KENNETH MOSES, SR,
Defendant-in-Intervention.
By leave of court, HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS
INDEMNITY CO, and ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN
INTEREST TO ZURICH INSURANCE COMPANY, US BRANCH (collectively on behalf of
their suspended corporation insured RICH-TEX, INC.) (collectively, the “INSURERS”, solely in
their capacity as insurers of RICH-TEX, INC. (“RICH-TEX”), hereby intervene in this action,
and do hereby demand adversely to Injured Party/Underlying Plaintiff (“PLAINTIFF”) as
follows:
1. This action was commenced by PLAINTIFF against RICH-TEX on August 21,
2013 and seeks recovery for various causes of action arising from the alleged manufacture, sale
and distribution of asbestos-containing products.
2. Intervenor INSURERS are informed and believe and thereupon allege that RICH-
TEX is a California Corporation which has been suspended and, pursuant to California law, is
therefore unable to appear in the lawsuit.
3. Intervenor INSURERS claim an interest in the matter in litigation as follows by
reason of which intervention is proper under California Code of Civil Procedure §387(a):
2.
COMPLATNT-IN-INTER VENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO, AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCHa. HARTFORD FIRE INSURANCE COMPANY issued a liability insurance policy
2|| to RICH-TEX, which was in effect from August 26, 1978, to August 26, 1981.
3 b. WEST AMERICAN INSURANCE COMPANY issued a liability insurance policy
41] to RICH TEX, which was in effect from April 13, 1982 to April 13, 1983.
5 c. SAFECO INSURANCE COMPANY OF AMERICA issued a liability insurance
6|) policy to RICH TEX, which was in effect from April 13, 1983 to February 4, 1985.
7 d. TRAVELERS INDEMNITY CO. issued a liability insurance policy to RICH
8 TEX, which was in effect from June 13, 1969 to June 13, 1971.
9 e. ZURICH AMERICAN INSURANCE COMPANY, successor in interest to
% 10 || ZURICH INSURANCE COMPANY, US BRANCH, issued a liability insurance policy to RICH
- 111) TEX, which was in effect from May 8, 1988 to May 8, 1989.
4 . 12 £ INSURERS have an interest in the maiter in litigation within the meaning of Code
6 . : ¢ 13 || of Civil Procedure §387(a) because they wish to contest the liability of RICH-TEX for the
: a E & 14 || damages claimed by the PLAINTIFF in this litigation.
a ; é $ 1S 4, INSURERS?’ intervention is limited to contesting RICH-TEX’s alleged liability
g z 16 {| and the amount of damages, if any. Coverage issues exist, but are reserved for a future time.
a 17 5. INSURERS in their sole capacity as insurers of RICH-TEX, assert the following
4 18 || answer to the Complaint filed by PLAINTIFF:
: 19 INSURERS?’ intervention is limited to contesting RICH-TEX’s alleged liability and the
20 || amount of damages, if any. Coverage issues exist, but are reserved for a future time.
21 INSURERS in their sole capacity as insurers of RICH-TEX, assert the following answer
22.4} to the Complaint filed by PLAINTIFF:
23 I.
24 GENERAL DENIAL
25 INSURERS, solely in their capacity as an insurer of RICH-TEX generally deny each and
26 || every allegation contained in the Complaint as permitted by California Code of Civil Procedure
271) §431.30(d).
28
3.
COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCHINSURERS further deny that PLAINTIFF is entitled to relief or damages of any kind or in
any amount.
AFFIRMATIVE DEFENSES
AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the Complaint and each
LAW OFFICES
IMAI, TADLOCK, KEENEY & CORDERY, LLP
SUITE 1300
toe BUSH STREET
cause of action therein, fails to state facts sufficient to constitute a cause of action.
AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF is barred
from recovery by the applicable statute of limitations, including but not limited to California
Code of Civil Procedure Sections 319, 320, 337, 337.1, 337.15, 338, 339, 340(3), 340.2, 343, and
California Commercial Code Sections 2725(1) and 2725(2).
AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the PLAINTIFF was
himself negligent and careless in and about the matters and events alleged in the Complaint, and
said negligence proximately contributed to the alleged damages, if any there were, and as a result
thereof, the principles of equitable comparative negligence must be applied to bar PLAINTIFF’
action.
AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the injuries, loss and/or
damages alleged in said Complaint by PLAINTIFF, if any there were, were caused by the
carelessness and negligence on the part of the remaining Defendants or non-parties in that said
carelessness and negligence on the part of said remaining parties or non-parties proximately
contributed to the happening of the subject event and the injuries, loss or damages alleged by the
PLAINTIFT herein, and that any judgment rendered against RICH-TEX be reduced or nullified to
the extent of such negligence and carelessness on the part of the remaining Defendants or non-
parties as aforesaid.
4.
COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCHbo
AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the PLAINTIFF’s
injuries and damages which may have been sustained as a result of events mentioned in the
Complaint, if any there were, were proximately caused by the carelessness and negligence of
PLAINTIFF and the remaining Defendants, and that the respective negligence of each said party
LAW OFFICES.
. LLP
EY & CORDERY.
Ta
STREET
8U
IMAI, TADLOCK, KE,
(418) 875-7000
CD OD GO BW Din BF w
NY ON MND NR RR RD mea
SB DW A A BY YOY fF Sewn An Bw DH |
to this suit ought to be equitably apportioned among the parties hereto,
AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
INSURERS, solely in their capacity as insurers of RICH-TEX, allege that at the time of the
occurrence of the matters mentioned in the PLAINTIFF’s Complaint, the PLAINTIFF himself
had knowledge of those matters alleged in the Complaint and PLAINTIFF did, with said
knowledge, voluntarily and of their free will and act, placed himself in an unsafe and dangerous
position and by reason thereof, PLAINTIFF did assume the risk and all risks ordinarily incident
thereto.
AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the
products referred to in the Complaint were not used in a safe and normal manner or in the manner
in which they were intended to be used, and that such misuse proximately contributed to the
injuries to PLAINTIFF and the damages and losses resulting therefrom, if any there were, and
bars PLAINTIFF’s recovery herein.
AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
INSURERS, solely in their capacity as insurers of RICH-TEX, allege that prior to and at the time
referred to in PLAINTIFF’s Complaint, the products referred to in the Complaint were abused,
altered, modified, or changed in a manner that was not reasonably foreseeable, that such abuse,
modification, alteration, or change proximately contributed to the injuries to PLAINTIFF and the
damages and losses resulting therefrom, if any there were, and bars Plaintiffs recovery herein.
AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
INSURERS, solely in their capacity as insurers of RICH-TEX, allege that at all times herein
5.
COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCHmentioned, PLAINTIFF was in the course and scope of his employment and that the injuries
sustained by PLAINTIFF, if any there were, were caused or contributed to by the carelessness
and negligence of PLAINTIFF’s employers, entitling RICH-TEX to a set-off in an amount equal
to the extent of payments made by said employers’ workers’ compensation carrier.
AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
LAW OFFICES.
KEENEY & CORDERY, LLP
IMAI, TADLOCK,
‘SUITE
INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the PLAINTIFF’s
employers were negligent and careless in and about the matters alleged in the Complaint and
proximately contributed to the injuries and damages, if any there were, sustained by PLAINTIFF;
that by reason of the premises said employers and their workers' compensation carrier are barred
from recovery of any payments heretofore or hereafter made to PLAINTIFF pursuant to the
workers’ compensation laws of the State of California under the doctrine of Witt v. Jackson, 57
Cal.2d 57.
AS AND FOR AN ELEVENTH, SEPARATE AND.DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF’s Complaint herein is barred by Labor Code §3600, et seq.
AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF’s Complaint herein is barred by the Doctrine of Laches.
AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the
asbestos-containing products of Defendant which are alleged to have caused injury to
PLAINTIFF was manufactured in compliance with and supplied pursuant to mandatory
government specifications which required the use of asbestos. Accordingly, Defendant is
immune from liability for any damages suffered by PLAINTIFF as a consequence of exposure to
asbestos contained in such products.
AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that its
-6-
COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCHwa
compliance with all governmental standards is a complete defense to PLAINTIFF’s action.
AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF failed and neglected to use reasonable care to protect himself and to minimize the
losses and damages complained of, if any there were.
LAW OFFICES:
LLP
“
AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF is barred from asserting any claiti based on breach of Warranty by reason of his
failure to fulfill the conditions of warranties alleged in the Complaint in the event such alleged
watranties are proved at trial.
AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF within a reasonable time failed to give notice to Defendant of the claimed breach of
warranty or defects alleged in the Complaint on file herein in the manner and form prescribed by
law.
AS AND FOR AN EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that there was
no privity or other legal relationship between RICH-TEX and PLAINTIFF herein sufficient to
entitle PLAINTIFF to any legal relief by said Defendant.
AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF’s claim for punitive damages is prohibited because it would deprive Defendant of its
property without due process of law under the 14th Amendment of the United States Constitution
and under the California Constitution. See U.S. Constitution, Amendment XIV, $1; Cal.
Constitution, Art. I, §7(a).
AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
7.
COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY Of AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCHPLAINTIFF’s claim for punitive damages is barred by the Constitutional Prohibition against
excessive fines. See U.S. Constitution, Amendment VI; California Constitution, Art. [, §17.
AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF’s claim for punitive damages is barred by the Constitutional Prohibition against
CA 94i04
ano
®
£
gee
SEE
eye
5
Ba
a
a
*
a
a
%
°
o
&
Ps
a
4
fal?
a
x
at
Qo
Q
2
a
ot
&
=
=
impairing the obligation of contracts. See U.S. Constitution, Art. 1, §X, Ci.1. See California
Constitution, Art. 1, §9.
AS"AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that any claim
for punitive or exemplary damages pursuant to California law herein constitutes a violation of
equal protection prohibited by the United States Constitution and the Constitution of the State of
California and therefore fails to make a claim upon which relief can be granted,
AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the
Complaint on file herein fails to state facts sufficient to constitute a cause of action for punitive
damages.
AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF’s claim for punitive damages must consider the degree of reprehensibility of
Defendant's conduct, the disparity between the compensatory damages and punitive damages and
the difference between punitive damages, the ratio of actual harm suffered by the PLAINTIFF to
the amount of punitive damages and the civil sanctions that could or would be imposed for
comparable conduct. These considerations were outlined by the U.S. Supreme Court in BMW of
North America v. Gore (1996) 517 U.S. 559, and Cooper Industries Inc, v. Leatherman Tool
Group, Inc. (2001) 532 U.S. 424, and State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538
U.S. 408.
-8-
COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCHAS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that, to the
extent PLAINTIFF may be able to prove their allegations concerning liability, injuries and
damages, which are specifically denied, they were the result of intervening acts of superseding
negligence on the part of a person or persons over whom this Defendant had neither control nor
LAW OFFICES
> LLP
~
m
ee
a
%
oo
o
&
>
Zz
a
a
Mm
i
So
°
a
A
<
a
=
5
EE
3B
94104
the right of control.
AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, TNSURERS, solely in their capacity as instirers of RICH-TEX, allege that
PLAINTIFF is barred from asserting any causes of action by the Doctrine of Waiver.
AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF is estopped from asserting any causes of action by his conduct.
AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF has failed to join necessary and indispensable parties.
AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF has improperly joined or misjoined it and other parties to this action.
AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that any claims
that the alleged products are unsafe or defective in any manner are preempted by federal law.
AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that any
injuries and damages, if any there be, alleged by PLAINTIFF in the Complaint, were proximately
caused by an unforeseeable allergic reaction to the product or products and/or one or more of its,
or their, components.
9.
COMPLAINT-IN-INTER VENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCHos
AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the product
in question was used after knowledge of the defect, if any, that existed therein.
AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that if
LAW OFFICES
0
Y & CORDERY, LLP
30:
IMAI, TADLOCK, KE
CA 94104
oD 2 eT KAA BP WwW LP
RP NR NY NR DB NR NN Rw a
eo 3y A HWA Bw NY = SO wm QA A A BRB Bw HH =
PLAINTIFF’s claims were already litigated and resolved in any prior action, PLAINTIFF’s
claims herein are barred based on the primary right and res judicata doctrines which prohibit
splitting a single cause of action into successive suits, and’secking new recovery for injuries for
which the PLAINTIFF was previously compensated by alleged joint tortfeasors.
AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFE’s claims are barred by the primary right doctrine as there is another action pending
between the same parties on the same cause of action.
AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that
PLAINTIFF’s claims are barred by the principles of res judicata.
AND AS FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the
substantive law of PLAINTIFP’s domicile or a jurisdiction other than California, is applicable.
AND AS FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that, at all
times herein pertinent, PLAINTIFF and/or PLAINTIFF’s employer was a sophisticated user of
the subject product and that Defendant had no duty to warn about dangers, risk, or harm of which
the sophisticated user was already aware or of which the sophisticated user should have been
aware.
AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, to the extent the Complaint asserts Defendant’s alleged “market share” liability, or
-10-
COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCH“enterprise liability,” the Complaint fails to state facts sufficient to constitute a cause of action
against Defendant.
AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, PLAINTIFFS failed to exercise due diligence to mitigate their loss, injury or
damages; accordingly, the amount of damages to which PLAINTIFFis entitled, should be reduced
LAW OFFICES
IMAI, TADLOCK, KE.
Sui
& CORDERY, LLP
by the amount of damages which would have otherwise been mitigated.
AS AND FOR A FORTIETH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, PLAINTIFF is barred from recovery in that all prodticts installed, temoved,
distributed, sold and/or supplied by Defendant, if any, were in conformity with the existing state-
of-the-art, and as a result, these products were not defective in any manner.
AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, the Defendant did not and does not have a substantial percentage of the market for the
asbestos-containing products which allegedly caused PLAINTIFF’s injuries. Therefore,
Defendant may not be held liable to PLAINTIFF based on this Defendant’s alleged percentage
share of the applicable market.
AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, PLAINTIFF’s claims are or may be barred in whole or in part by collateral estoppel,
issue preclusion and/or release.
WHEREFORE, INSURERS, solely in their capacity as insurers of RICH-TEX, pray for
judgment as follows:
1. That PLAINTIFF take nothing by way of his Complaint or any cause of action
thereof against RICH-TEX;
2. That the Court award judgment in favor of RICH-TEX;
3. For reasonable attorneys! fees;
4, For costs of suit and disbursements; and
if
-1l-
COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCH1 5. For such other and further relief as the Court may deem proper.
2|| Dated: June 42 , 2014 IMAL, TADLOC Y & CORDERY, LLP
Lf}
4 By: f V ——
Stephén E. CXftlson
5 Attornevs-for-Intervener:
6 HARTFORD FIRE INSURANCE
COMPANY, WEST AMERICAN
7 INSURANCE COMPANY, SAFECO
_ INSURANCE COMPANY OF AMERICA,
8 TRAVELERS INDEMNITY CO. and
9 ZURICH AMERICAN INSURANCE
COMPANY, SUCCESSOR IN INTEREST
. 10 TO ZURICH INSURANCE COMPANY, US
3 BRANCH (collectively on behalf of their
> 11 suspended corporation insured RICH-TEX,
a INC.)
Q
me
°
oO
2
mS
Be
od
¥
Lv
é
a
a 17
-
= 18
=
19
20
21
22
23
24
25
26
27
28 2.
COMPLAINT-ININTERVENTION OF HARTFORD FIRE INSURANCE COMPANY. WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCHPROOF OF SERVICE
2 I, the undersigned, declare:
3 lam a resident of the State of California and over the age of eighteen years, and not a
party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco, CA
4/1 94104. On the date of execution below, | served the within documents:
5 COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY,
WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY
6 OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN
7 INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE
COMPANY, US BRANCH
8 .
>) On the date of execution below, I electronically served the document via File &
9 ServeXpress on the recipients designated on the Transaction Receipt located on the
File & ServeXpress Web site.
10
= it I declare under penalty of perjury under the laws of the State of California that the above
= is true and correct. Executed on June (% , 2014, at San Francisco, California.
a 12
x
3
3 13
14 /S/ Samantha Oryall
Samantha Oryall
15
S Moses. Kenneth, Sr., v. Kaiser Gypsum Company. Inc., et al..
g 16 || SAN FRANCISCO SUPERIOR COURT NO. CGC-13-276180
eel
8 17
5
= 18
=
19
20
21
22
23
24
25
26
27
28 “De
COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN
INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY
CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH
INSURANCE COMPANY, US BRANCH
Preview
Theodore T. Cordery, Esq. (Bar No. 114730) Email: teordery@itke.com -l- 211 Stephen E. Carlson, Esq. (Bar No. 104279) Email: scarlson@itke.com ELECTRONICALLY 3}) IMAL TADLOCK, KEENEY & CORDERY, LLP FILED 100 BUSH STREET, SUITE 1300 Superior Court of California, 4 FAN h oe ea} es 7000, County of San Francisco clephone: : JUN 13 2014 5 || Facsimile: (415) 675-7008 Clerc-ofthe Court 6 || Attorneys for Intervenors By: JUDITH NUNEZ HARTFORD FIRE INSURANCE COMPANY, Deputy Clerk 7 || WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, 8 TRAVELERS INDEMNITY CO., and 9|| 4URICH AMERICAN INSURANCE COMPANY, successor in interest to Zurich Insurance Company, US Branch oe 10 || (collectively on behalf of their suspended corporate insured RICH-TEX, INC.) a a Zz il a 12 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA S 2 43 TN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO tzeiS® 14 UNLIMITED JURISDICTION Ezesoe z oe 2 45}| KENNETH MOSES, SR, CASE NO.: CGC-13-276180 ¥ z 16 Plaintiff, (ASBESTOS) 5 4 5 17 v. COMPLAINT-IN-INTERVENTION OF é HARTFORD FIRE INSURANCE = 18 || KAISER GYPSUM COMPANY, INC.; COMPANY, WEST AMERICAN 3 GEORGIA-PACIFIC LLC (FRA GEORGIA- | INSURANCE COMPANY, SAFECO = 191] PACIFIC CORPORATION): KELLY- INSURANCE COMPANY OF AMERICA, MOORE PAINT COMPANY, INC.; UNION TRAVELERS INDEMNITY CO, AND 20 |] CARBIDE CORPORATION; AMES ZURICH AMERICAN INSURANCE DRYWALL PRODUCTS COMPANY; COMPANY, SUCCESSOR IN INTEREST 21 || HAMILTON MATERIALS, INC.; TO ZURICH INSURANCE COMPANY, US CONSOLIDATED INSULATION, INC.; BRANCH 22 || DOUGLASS INSULATION COMPANY, INC.; GOLDEN GATE DRYWALL, INC.; Complaint Filed: August 21, 2013 23 || CAHILL CONSTRUCTION CO., INC.; Trial Date: None Set FDCC CALIFORNIA, INC.; JAMES A 24 || NELSON CO., INC.; MARCONI PLASTERING COMPANY, INC.; TOM 25 || OAKS DRYWALL; J & R CONSTRUCTION; and DOES 1 through 800 inclusive, 2 6 Defendants. 27 28 COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN ENSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCHHARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. and ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCH, A 94104 0 REET NEY & CORDERY, LLP ee nN LAW OFFICES SAN F n IMAI, TADLOCK, g Intervenors, Vv. KENNETH MOSES, SR, Defendant-in-Intervention. By leave of court, HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO, and ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCH (collectively on behalf of their suspended corporation insured RICH-TEX, INC.) (collectively, the “INSURERS”, solely in their capacity as insurers of RICH-TEX, INC. (“RICH-TEX”), hereby intervene in this action, and do hereby demand adversely to Injured Party/Underlying Plaintiff (“PLAINTIFF”) as follows: 1. This action was commenced by PLAINTIFF against RICH-TEX on August 21, 2013 and seeks recovery for various causes of action arising from the alleged manufacture, sale and distribution of asbestos-containing products. 2. Intervenor INSURERS are informed and believe and thereupon allege that RICH- TEX is a California Corporation which has been suspended and, pursuant to California law, is therefore unable to appear in the lawsuit. 3. Intervenor INSURERS claim an interest in the matter in litigation as follows by reason of which intervention is proper under California Code of Civil Procedure §387(a): 2. COMPLATNT-IN-INTER VENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO, AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCHa. HARTFORD FIRE INSURANCE COMPANY issued a liability insurance policy 2|| to RICH-TEX, which was in effect from August 26, 1978, to August 26, 1981. 3 b. WEST AMERICAN INSURANCE COMPANY issued a liability insurance policy 41] to RICH TEX, which was in effect from April 13, 1982 to April 13, 1983. 5 c. SAFECO INSURANCE COMPANY OF AMERICA issued a liability insurance 6|) policy to RICH TEX, which was in effect from April 13, 1983 to February 4, 1985. 7 d. TRAVELERS INDEMNITY CO. issued a liability insurance policy to RICH 8 TEX, which was in effect from June 13, 1969 to June 13, 1971. 9 e. ZURICH AMERICAN INSURANCE COMPANY, successor in interest to % 10 || ZURICH INSURANCE COMPANY, US BRANCH, issued a liability insurance policy to RICH - 111) TEX, which was in effect from May 8, 1988 to May 8, 1989. 4 . 12 £ INSURERS have an interest in the maiter in litigation within the meaning of Code 6 . : ¢ 13 || of Civil Procedure §387(a) because they wish to contest the liability of RICH-TEX for the : a E & 14 || damages claimed by the PLAINTIFF in this litigation. a ; é $ 1S 4, INSURERS?’ intervention is limited to contesting RICH-TEX’s alleged liability g z 16 {| and the amount of damages, if any. Coverage issues exist, but are reserved for a future time. a 17 5. INSURERS in their sole capacity as insurers of RICH-TEX, assert the following 4 18 || answer to the Complaint filed by PLAINTIFF: : 19 INSURERS?’ intervention is limited to contesting RICH-TEX’s alleged liability and the 20 || amount of damages, if any. Coverage issues exist, but are reserved for a future time. 21 INSURERS in their sole capacity as insurers of RICH-TEX, assert the following answer 22.4} to the Complaint filed by PLAINTIFF: 23 I. 24 GENERAL DENIAL 25 INSURERS, solely in their capacity as an insurer of RICH-TEX generally deny each and 26 || every allegation contained in the Complaint as permitted by California Code of Civil Procedure 271) §431.30(d). 28 3. COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCHINSURERS further deny that PLAINTIFF is entitled to relief or damages of any kind or in any amount. AFFIRMATIVE DEFENSES AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the Complaint and each LAW OFFICES IMAI, TADLOCK, KEENEY & CORDERY, LLP SUITE 1300 toe BUSH STREET cause of action therein, fails to state facts sufficient to constitute a cause of action. AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF is barred from recovery by the applicable statute of limitations, including but not limited to California Code of Civil Procedure Sections 319, 320, 337, 337.1, 337.15, 338, 339, 340(3), 340.2, 343, and California Commercial Code Sections 2725(1) and 2725(2). AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the PLAINTIFF was himself negligent and careless in and about the matters and events alleged in the Complaint, and said negligence proximately contributed to the alleged damages, if any there were, and as a result thereof, the principles of equitable comparative negligence must be applied to bar PLAINTIFF’ action. AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the injuries, loss and/or damages alleged in said Complaint by PLAINTIFF, if any there were, were caused by the carelessness and negligence on the part of the remaining Defendants or non-parties in that said carelessness and negligence on the part of said remaining parties or non-parties proximately contributed to the happening of the subject event and the injuries, loss or damages alleged by the PLAINTIFT herein, and that any judgment rendered against RICH-TEX be reduced or nullified to the extent of such negligence and carelessness on the part of the remaining Defendants or non- parties as aforesaid. 4. COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCHbo AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the PLAINTIFF’s injuries and damages which may have been sustained as a result of events mentioned in the Complaint, if any there were, were proximately caused by the carelessness and negligence of PLAINTIFF and the remaining Defendants, and that the respective negligence of each said party LAW OFFICES. . LLP EY & CORDERY. Ta STREET 8U IMAI, TADLOCK, KE, (418) 875-7000 CD OD GO BW Din BF w NY ON MND NR RR RD mea SB DW A A BY YOY fF Sewn An Bw DH | to this suit ought to be equitably apportioned among the parties hereto, AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that at the time of the occurrence of the matters mentioned in the PLAINTIFF’s Complaint, the PLAINTIFF himself had knowledge of those matters alleged in the Complaint and PLAINTIFF did, with said knowledge, voluntarily and of their free will and act, placed himself in an unsafe and dangerous position and by reason thereof, PLAINTIFF did assume the risk and all risks ordinarily incident thereto. AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the products referred to in the Complaint were not used in a safe and normal manner or in the manner in which they were intended to be used, and that such misuse proximately contributed to the injuries to PLAINTIFF and the damages and losses resulting therefrom, if any there were, and bars PLAINTIFF’s recovery herein. AS AND FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that prior to and at the time referred to in PLAINTIFF’s Complaint, the products referred to in the Complaint were abused, altered, modified, or changed in a manner that was not reasonably foreseeable, that such abuse, modification, alteration, or change proximately contributed to the injuries to PLAINTIFF and the damages and losses resulting therefrom, if any there were, and bars Plaintiffs recovery herein. AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that at all times herein 5. COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCHmentioned, PLAINTIFF was in the course and scope of his employment and that the injuries sustained by PLAINTIFF, if any there were, were caused or contributed to by the carelessness and negligence of PLAINTIFF’s employers, entitling RICH-TEX to a set-off in an amount equal to the extent of payments made by said employers’ workers’ compensation carrier. AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, LAW OFFICES. KEENEY & CORDERY, LLP IMAI, TADLOCK, ‘SUITE INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the PLAINTIFF’s employers were negligent and careless in and about the matters alleged in the Complaint and proximately contributed to the injuries and damages, if any there were, sustained by PLAINTIFF; that by reason of the premises said employers and their workers' compensation carrier are barred from recovery of any payments heretofore or hereafter made to PLAINTIFF pursuant to the workers’ compensation laws of the State of California under the doctrine of Witt v. Jackson, 57 Cal.2d 57. AS AND FOR AN ELEVENTH, SEPARATE AND.DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF’s Complaint herein is barred by Labor Code §3600, et seq. AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF’s Complaint herein is barred by the Doctrine of Laches. AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the asbestos-containing products of Defendant which are alleged to have caused injury to PLAINTIFF was manufactured in compliance with and supplied pursuant to mandatory government specifications which required the use of asbestos. Accordingly, Defendant is immune from liability for any damages suffered by PLAINTIFF as a consequence of exposure to asbestos contained in such products. AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that its -6- COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCHwa compliance with all governmental standards is a complete defense to PLAINTIFF’s action. AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF failed and neglected to use reasonable care to protect himself and to minimize the losses and damages complained of, if any there were. LAW OFFICES: LLP “ AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF is barred from asserting any claiti based on breach of Warranty by reason of his failure to fulfill the conditions of warranties alleged in the Complaint in the event such alleged watranties are proved at trial. AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF within a reasonable time failed to give notice to Defendant of the claimed breach of warranty or defects alleged in the Complaint on file herein in the manner and form prescribed by law. AS AND FOR AN EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that there was no privity or other legal relationship between RICH-TEX and PLAINTIFF herein sufficient to entitle PLAINTIFF to any legal relief by said Defendant. AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF’s claim for punitive damages is prohibited because it would deprive Defendant of its property without due process of law under the 14th Amendment of the United States Constitution and under the California Constitution. See U.S. Constitution, Amendment XIV, $1; Cal. Constitution, Art. I, §7(a). AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that 7. COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY Of AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCHPLAINTIFF’s claim for punitive damages is barred by the Constitutional Prohibition against excessive fines. See U.S. Constitution, Amendment VI; California Constitution, Art. [, §17. AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF’s claim for punitive damages is barred by the Constitutional Prohibition against CA 94i04 ano ® £ gee SEE eye 5 Ba a a * a a % ° o & Ps a 4 fal? a x at Qo Q 2 a ot & = = impairing the obligation of contracts. See U.S. Constitution, Art. 1, §X, Ci.1. See California Constitution, Art. 1, §9. AS"AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that any claim for punitive or exemplary damages pursuant to California law herein constitutes a violation of equal protection prohibited by the United States Constitution and the Constitution of the State of California and therefore fails to make a claim upon which relief can be granted, AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the Complaint on file herein fails to state facts sufficient to constitute a cause of action for punitive damages. AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF’s claim for punitive damages must consider the degree of reprehensibility of Defendant's conduct, the disparity between the compensatory damages and punitive damages and the difference between punitive damages, the ratio of actual harm suffered by the PLAINTIFF to the amount of punitive damages and the civil sanctions that could or would be imposed for comparable conduct. These considerations were outlined by the U.S. Supreme Court in BMW of North America v. Gore (1996) 517 U.S. 559, and Cooper Industries Inc, v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, and State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408. -8- COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCHAS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that, to the extent PLAINTIFF may be able to prove their allegations concerning liability, injuries and damages, which are specifically denied, they were the result of intervening acts of superseding negligence on the part of a person or persons over whom this Defendant had neither control nor LAW OFFICES > LLP ~ m ee a % oo o & > Zz a a Mm i So ° a A < a = 5 EE 3B 94104 the right of control. AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, TNSURERS, solely in their capacity as instirers of RICH-TEX, allege that PLAINTIFF is barred from asserting any causes of action by the Doctrine of Waiver. AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF is estopped from asserting any causes of action by his conduct. AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF has failed to join necessary and indispensable parties. AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF has improperly joined or misjoined it and other parties to this action. AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that any claims that the alleged products are unsafe or defective in any manner are preempted by federal law. AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that any injuries and damages, if any there be, alleged by PLAINTIFF in the Complaint, were proximately caused by an unforeseeable allergic reaction to the product or products and/or one or more of its, or their, components. 9. COMPLAINT-IN-INTER VENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCHos AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the product in question was used after knowledge of the defect, if any, that existed therein. AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that if LAW OFFICES 0 Y & CORDERY, LLP 30: IMAI, TADLOCK, KE CA 94104 oD 2 eT KAA BP WwW LP RP NR NY NR DB NR NN Rw a eo 3y A HWA Bw NY = SO wm QA A A BRB Bw HH = PLAINTIFF’s claims were already litigated and resolved in any prior action, PLAINTIFF’s claims herein are barred based on the primary right and res judicata doctrines which prohibit splitting a single cause of action into successive suits, and’secking new recovery for injuries for which the PLAINTIFF was previously compensated by alleged joint tortfeasors. AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFE’s claims are barred by the primary right doctrine as there is another action pending between the same parties on the same cause of action. AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that PLAINTIFF’s claims are barred by the principles of res judicata. AND AS FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that the substantive law of PLAINTIFP’s domicile or a jurisdiction other than California, is applicable. AND AS FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, INSURERS, solely in their capacity as insurers of RICH-TEX, allege that, at all times herein pertinent, PLAINTIFF and/or PLAINTIFF’s employer was a sophisticated user of the subject product and that Defendant had no duty to warn about dangers, risk, or harm of which the sophisticated user was already aware or of which the sophisticated user should have been aware. AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, to the extent the Complaint asserts Defendant’s alleged “market share” liability, or -10- COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCH“enterprise liability,” the Complaint fails to state facts sufficient to constitute a cause of action against Defendant. AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, PLAINTIFFS failed to exercise due diligence to mitigate their loss, injury or damages; accordingly, the amount of damages to which PLAINTIFFis entitled, should be reduced LAW OFFICES IMAI, TADLOCK, KE. Sui & CORDERY, LLP by the amount of damages which would have otherwise been mitigated. AS AND FOR A FORTIETH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, PLAINTIFF is barred from recovery in that all prodticts installed, temoved, distributed, sold and/or supplied by Defendant, if any, were in conformity with the existing state- of-the-art, and as a result, these products were not defective in any manner. AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, the Defendant did not and does not have a substantial percentage of the market for the asbestos-containing products which allegedly caused PLAINTIFF’s injuries. Therefore, Defendant may not be held liable to PLAINTIFF based on this Defendant’s alleged percentage share of the applicable market. AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, PLAINTIFF’s claims are or may be barred in whole or in part by collateral estoppel, issue preclusion and/or release. WHEREFORE, INSURERS, solely in their capacity as insurers of RICH-TEX, pray for judgment as follows: 1. That PLAINTIFF take nothing by way of his Complaint or any cause of action thereof against RICH-TEX; 2. That the Court award judgment in favor of RICH-TEX; 3. For reasonable attorneys! fees; 4, For costs of suit and disbursements; and if -1l- COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCH1 5. For such other and further relief as the Court may deem proper. 2|| Dated: June 42 , 2014 IMAL, TADLOC Y & CORDERY, LLP Lf} 4 By: f V —— Stephén E. CXftlson 5 Attornevs-for-Intervener: 6 HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN 7 INSURANCE COMPANY, SAFECO _ INSURANCE COMPANY OF AMERICA, 8 TRAVELERS INDEMNITY CO. and 9 ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST . 10 TO ZURICH INSURANCE COMPANY, US 3 BRANCH (collectively on behalf of their > 11 suspended corporation insured RICH-TEX, a INC.) Q me ° oO 2 mS Be od ¥ Lv é a a 17 - = 18 = 19 20 21 22 23 24 25 26 27 28 2. COMPLAINT-ININTERVENTION OF HARTFORD FIRE INSURANCE COMPANY. WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCHPROOF OF SERVICE 2 I, the undersigned, declare: 3 lam a resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco, CA 4/1 94104. On the date of execution below, | served the within documents: 5 COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY 6 OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN 7 INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCH 8 . >) On the date of execution below, I electronically served the document via File & 9 ServeXpress on the recipients designated on the Transaction Receipt located on the File & ServeXpress Web site. 10 = it I declare under penalty of perjury under the laws of the State of California that the above = is true and correct. Executed on June (% , 2014, at San Francisco, California. a 12 x 3 3 13 14 /S/ Samantha Oryall Samantha Oryall 15 S Moses. Kenneth, Sr., v. Kaiser Gypsum Company. Inc., et al.. g 16 || SAN FRANCISCO SUPERIOR COURT NO. CGC-13-276180 eel 8 17 5 = 18 = 19 20 21 22 23 24 25 26 27 28 “De COMPLAINT-IN-INTERVENTION OF HARTFORD FIRE INSURANCE COMPANY, WEST AMERICAN INSURANCE COMPANY, SAFECO INSURANCE COMPANY OF AMERICA, TRAVELERS INDEMNITY CO. AND ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO ZURICH INSURANCE COMPANY, US BRANCH