Order: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                351264.1.1210,40020

Mark A. Love (SBN CA 162028) ELECTRONICALLY

mlove@selmanlaw.com

Richard M. Lee (SBN CA 187694) eee
rlee@selmanlaw.com County of San montino
Kyle Clawson (SBN CA 303682) 10/06/2016
kclawson@selmanlaw.com Glerk of the Court
SELMAN BREITMAN LLP. BY:BOWMAN LIU.

33 New Montgomery, Sixth Floor Deputy Clerk
San Francisco, CA 94105-4537

Telephone: 415.979.0400

Facsimile: 415.979.2099

Attorneys for Intervenor FIREMAN'S FUND INSURANCE

COMPANY, the insurer of Defendant ASSOCIATED

INSULATION OF CALIFORNIA, INC.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731

Plaintiff, DECLARATION OF KYLE J.
CLAWSON IN SUPPORT OF

v. INTERVENOR FIREMAN'S FUND
INSURANCE COMPANY, THE
C.C. MOORE & CO. ENGINEERS, et al., INSURER OF DEFENDANT
ASSOCIATED INSULATION OF
Defendant. CALIFORNIA, INC.'S EX PARTE
APPLICATION FOR AN ORDER
GRANTING LEAVE TO FILE A
COMPLAINT IN INTERVENTION

Date: October 11, 2016
Time: 11:00 a.m.

Judge: Hon. Garrett L. Wong
Dept.: 503

I, Kyle Clawson, hereby declare:

1. I am an attorney licensed to practice law before all courts in the State of
California. I am an attorney of the law firm of Selman Breitman LLP, attorneys for
FIREMAN'S FUND INSURANCE COMPANY ("INTERVENOR"), the insurer of
Defendant ASSOCIATED INSULATION OF CALIFORNIA, INC. ("ASSOCIATED

1

DECLARATION OF KYLE J. CLAWSON IN SUPPORT OF EX PARTE APPLICATION RE: COMPLAINT IN
INTERVENTIONoo me ND HW FB WN

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391264.1 1210.40020

INSULATION") in this action. I make this declaration based upon my personal
knowledge and if called upon as a witness, I could and would testify competently to the
matters stated herein.

2. I am informed and believe that INTERVENOR issued liability insurance
policy(ies) to ASSOCIATED INSULATION. That policy may provide ASSOCIATED
INSULATION with insurance for the asbestos claims filed against ASSOCIATED
INSULATION in this case.

3. Based upon information and belief, ASSOCIATED INSULATION's
corporate status has been suspended by the California Secretary of State and the
California Franchise Tax Board. Attached as Exhibit A hereto is a true and correct copy
of a printout from the California Secretary of State website dated March 6, 2016, stating
that ASSOCIATED INSULATION 's corporate status has been suspended.

4. Attached as Exhibit B hereto is a true and correct copy of a printout from
the California Franchise Tax Board, dated March 6, 2016, stating that it does not even
have any record of ASSOCIATED INSULATION.

5. INTERVENOR now secks leave of this court to file its complaint in
intervention in this case on behalf of its suspended insured, ASSOCIATED
INSULATION. Attached as Exhibit C hereto is a true and correct copy of
INTERVENOR's Complaint in Intervention, which will be filed subsequent to this
Court's granting of INTERVENOR's ex parte application.

6. INTERVENOR will be severely prejudiced if this ex-parte application is
not granted because ASSOCIATED INSULATION is currently a suspended corporation.
Pursuant to Revenue & Taxation Code, section 23301, a suspended corporation such as
ASSOCIATED INSULATION lacks the capacity to defend itself in this lawsuit.
INTERVENOR now seeks leave of court to file a complaint in intervention in this case in
order to specifically name FIREMAN'S FUND INSURANCE COMPANY as Intervenor
FIREMAN's FUND INSURANCE COMPANY, the insurer of Defendant ASSOCIATED

2

DECLARATION OF KYLE J. CLAWSON IN SUPPORT OF EX PARTE APPLICATION RE: COMPLAINT IN
INTERVENTION351264.1 1210.40020

INSULATION OF CALIFORNIA, INC., solely in its capacity as an insurer of
ASSOCIATED INSULATION. The purpose of the INTERVENOR's intervention is to
contest ASSOCIATED INSULATION's alleged liability and the amount of damages, if
any, alleged by plaintiffs.

7. On October 6, 2016, I caused to be sent a letter to Plaintiffs' counsel, via
facsimile, advising them that my office would appear before the Honorable Judge Garrett
L. Wong in Department 503 of the San Francisco County Superior Court at 11:00 a.m. to
seek an ex parte order granting INTERVENOR' leave to file a complaint in intervention
in this case and reopening discovery as to INTERVENOR. A true and correct copy of
my October 6, 2016 letter is attached hereto as Exhibit D.

I declare that the foregoing is true and correct under penalty of perjury under the
laws of the State of California.

Executed on this 64 day of October, 2016, in San Francisco, California.

KYLE CLAWSON

3

DECLARATION OF KYLE J. CLAWSON IN SUPPORT OF EX PARTE APPLICATION RE: COMPLAINT IN
INTERVENTIONEXHIBIT Aoroi2018

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skasy Metoaas ‘ASSOCIATED INSULATION OF CALIFORNIA
Lacey Pestualien, 60474929

Haken 07/09/3964

staan FTO SUSPENDED .
aur iti tinny CALIFORNIA

Hnuey Adewagns — BOS 4TH ST STE 900

sitiny Cty, Peat,

vn OAKLAND CA 94612,

a\woivttor Aeryiny CORPORATION SERVICE COMPANY WHICH WILL 00 BUSINESS IN CALIFORNIA
af fences AS CSC + LAWYERS INCORPORATING SERVICE

seinnt avicbstmi: 2110 GATEWAY QAKS OF STE 150N

SACRAMENTO CA 98033

* Indicates tha Information Ig not contained In the Collfornts Secretory of State's database, *

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AQSOCLATROD INSULALEON OF CALIFORNIA
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OAKLAND CA 94612

fev Serwicw CORPORATION GBRVICE COMPANY WHICH WILL DO BUSTNESS I
WeGuirkat CALIFORNIA AS CSC ~ LAWYERS INCORPORATING SERVICE
Ko ngheb diy 2740 GATEWAY OAKS OR STE 1SON

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hy SACRAMENTO GA 956)

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Copyright © 2016 Cali fornha Saoratary of Stote
a
lipitkeplor.soa,o0.pov! iEXHIBIT BSTATE OF CALIFORNIA
SN) FRANCHISE TAX BOARD
}} 8O BOX 942667
SACRAMENTO CA 04257-0540

Entity Status Lotter

Date; 9/6/2016,
“BSL 1D; 3743765949

According to our rocords, the following entity Information {s true and accurate as of the date of this fetter,
Entity 1D:

Entity Name; ASSOCIATED INSULATION OF CALIFORNIA.

0 1. The ently ts In good standing with the Franchise Tax Board,

wad 2, The entity Is not In good standing with the Franchise Tax Board,

[1 5. The entity is currently exempt from tax under Revenue and Taxation Code (R&TC) Seotloh 23701,

EX] 4. We donot have current Information about the entity,

The above Information does not nacessarily reflect: .
+ The eniity’s status wilh any other agency of the State of Californta, or other government agenoy,
+ — Ifthe ontity's powers, rights, and privileges were suspended or forfeited at any time In the past, or tho ently
. did business in California at a time whon It was not qualified or nal raglelered to do business in California:
0 The stalus or voldabillty of any contracts made In Californta by the entity at a time when the entity was
suspended or forfalted (RATC Sections 23304,1, 23304,6, 23305a, 23308,1), 7
o For entltlas revived under R&TC Soctlon 23305», any time limitations on tho revivor or limitation of the
functions that can bo porformed by the ently, :

Internet and Talephone Assistanog

Website: — {th,ca,gov
Telophane: 600,852.57 14 from within the United States
916,848,6500 from auiside the United States
TTY/TDD: 800.822.6268 for parsons with hearing or speach Impairments

TB 269A WED (NEW 02-2012)EXHIBIT CoOo mR DOH RB DW DH

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350856.1 1210.40020

Mark A. Love (SBN CA 162028)
mlove@selmanlaw.com

Richard M. Lee (SBN CA 187694)
rlee@selmanlaw.com

Kyle Clawson (SBN CA 303682)
kclawson@selmanlaw.com
SELMAN BREITMAN LLP

33 New Montgomery, Sixth Floor
San Francisco, CA 94105-4537
Telephone: 415.979.0400
Facsimile: 415.979.2099

Attorneys for Intervenor FIREMAN'S FUND INSURANCE
COMPANY, the insurer of Defendant ASSOCIATED
INSULATION OF CALIFORNIA, INC.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO
ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731
Plaintiff, COMPLAINT IN INTERVENTION

v.
C.C. MOORE & CO. ENGINEERS, et al.,

Defendant.

FIREMAN'S FUND INSURANCE
COMPANY, the insurer of Defendant
ASSOCIATED INSULATION OF
CALIFORNIA, INC. ,
Intervenor,
ve

ROBERT ROSS and JEAN ROSS,

Plaintiffs-In-Intervention.

By leave of the Court, FIREMAN'S FUND INSURANCE COMPANY
("INTERVENOR"), pursuant to the terms of its insurance policy and solely in its capacity as an
insurer of defendant ASSOCIATED INSULATION OF CALIFORNIA, INC. ("ASSOCIATED

1

COMPLAINT IN INTERVENTION350856.1. 1210.40020

INSULATION "), intervenes in this action and files this Complaint in Intervention and asserts all
defenses maintained by INTERVENOR'S insured ASSOCIATED INSULATION.

This Court granted INTERVENOR leave to intervene in this action on behalf of
ASSOCIATED INSULATION and to file this Complaint in Intervention.

INTERVENOR is, and at all times herein mentioned, a corporation and an eligible
insurer in the State of California,

INTERVENOR has issued a general liability insurance policy to ASSOCIATED
INSULATION.

INTERVENOR intervenes in this action pursuant to California Code of Civil Procedure
§387 on the grounds that INTERVENOR has a direct and immediate interest in the litigation of
this matter because INTERVENOR is ASSOCIATED INSULATION 's liability insurer,

ASSOCIATED INSULATION is no longer in business under the laws of the State of
California and is currently: suspended by both the California Franchise Tax Board and the
Secretary of State. Pursuant to Revenue and Taxation Code §23301, ASSOCIATED
INSULATION lacks capacity to defend itself in this lawsuit.

Under current law, Revenue and Taxation Code §19719 and the California Court of
Appeals case Kaufman & Broad Communities v. Performance Plastering (2006) 133
Cal.App.4th 212, an INTERVENOR may defend its insured, ASSOCIATED INSULATION, but
it has no means other than intervention to litigate liability or damages issues as to
ASSOCIATED INSULATION. Therefore, INTERVENOR files this Complaint in Intervention
to protect its interests and those of ASSOCIATED INSULATION.

INTERVENOR intervenes pursuant to the terms of its insurance policy and solely in its
capacity as insurer of defendant ASSOCIATED INSULATION and applicable California law,
including without limitation, California Code of Civil Procedure §387(a); Revenue and Taxation
Code §§ 19717 and 19719; Bame v, City of Del Mar (2001) 86 Cal.App.4th 1346; Reliance Ins.
Co. v. Superior Court (2000) 84 Cal.App.4th 385; and Kaufman & Broad Communities, Inc. v.
Performance Plastering, Inc., (2006) 133 Cal. App.4th 212.

At trial, INTERVENOR will appear under the name of its insured, ASSOCIATED
2

COMPLAINT IN INTERVENTION350836,1 1210.40020

INSULATION, in order to comply with California Evidence Code $1155.

INTERVENOR hereby answers plaintiff's Complaint (hereinafter "Complaint") as
alleged against ASSOCIATED INSULATION and each and every cause of action set forth
therein as follows: Pursuant to California Code of Civil Procedure section 431.30(d),
ASSOCIATED INSULATION denies generally each and every allegation of the Complaint.

The terms "plaintiff or "plaintiffs" as used herein also include the decedent in a wrongful
death action.

The terms "plaintiff or "plaintiffs" embrace each plaintiff individually and/or all
plaintiffs collectively as appropriate in the context.

FIRST AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged by plaintiff therein states

facts sufficient to constitute a cause of action against ASSOCIATED INSULATION.
SECOND AFFIRMATIVE DEFENSE

To the extent the Complaint asserts ASSOCIATED INSULATION's alleged "market
share" liability, or "enterprise liability," the Complaint fails to state facts sufficient to constitute a
cause of action against ASSOCIATED INSULATION.

THIRD AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION alleges that plaintiff's claims, or some of them, are barred

by the provisions of California Code of Civil Procedure §361.
FOURTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION had no property interest, ownership or control of any
premises at any time during which plaintiff alleges exposure, injury or damages due to asbestos
dust inhalation.

FIFTH AFFIRMATIVE DEFENSE

The Complaint fails to state facts sufficient to constitute a cause of action for "Premises
Owner/Contractor Liability" against this ASSOCIATED INSULATION pursuant to the ruling of
the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689; the ruling of

the California Court of Appeal in Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77; the ruling of
3

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350856.1. 1210.40020

the California Court of Appeal in Grahn v. Tosco Corporation (1997) 58 Cal.App.4th 1373; the
ruling of the California Supreme Court in Toland v, Sunland Housing Group, Inc. (1998) 18
Cal.4th 253; and the ruling of the California Supreme Court in Kinsman v. Unocal Corporation
(2006) 37 Cal.4th 659, et al.
SIXTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION alleges that at the time of the injuries alleged in the
Complaint, plaintiff was employed and was entitled to receive Workers' Compensation benefits
from his employer's workers' compensation insurance carrier; that ASSOCIATED
INSULATION did not control plaintiff's work activities at his worksites; that all of plaintiff's
employers, other than ASSOCIATED INSULATION, were negligent in and about the matters
referred to in said Complaint, that other parties over whom ASSOCIATED INSULATION had
no control were negligent in and about the matters referred to in said Complaint, and that such
negligence on the part of said employers and other parties proximately and concurrently
contributed to the happening of the accident and to the loss or damage complained of by
plaintiff, if any there were; and as a result thereof, ASSOCIATED INSULATION bears no
liability for plaintiff's alleged damages.

SEVENTH AFFIRMATIVE DEFENSE

Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of
limitations, including but not limited to California Code of Civil Procedure, sections 335.1,
338.1, 339, 340.2 (including subsections (a)(1), (a)(2), (c)(1), (c)(2)), 340.8, 343, 583.310
and 583.410 and California Commercial Code, section 2725.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiff unreasonably delayed in bringing this action, without good cause therefore and
thereby has prejudiced ASSOCIATED INSULATION as a direct and proximate result of such
delay; accordingly, his/her action is barred by laches and by section 583.310, et. seq. of the Code
of Civil Procedure.

NINTH AFFIRMATIVE DEFENSE

Plaintiff was negligent in and about the matters alleged in the Complaint and in each
4

COMPLAINT IN INTERVENTION350856.1 1210.40020

alleged cause of action; this negligence proximately caused, in whole or in part, the damages
alleged in the Complaint. In the event plaintiff is entitled to any damages, the amount of these
damages should be reduced by the comparative fault of plaintiff and any person whose negligent
acts or omissions are imputed to plaintiff.
TENTH AFFIRMATIVE DEFENSE

Plaintiff knowingly, voluntarily and unreasonably undertook to encounter each of the
risks and hazards, if any, referred to in the Complaint and each alleged cause of action, and this
undertaking proximately caused and contributed to any loss, injury or damages incurred by
plaintiff.

ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by plaintiff were proximately caused by the
negligent or willful acts or omissions of parties whom ASSOCIATED INSULATION neither
controlled nor had the right to control, and was not proximately caused by any acts, omissions or
other conduct of ASSOCIATED INSULATION.

TWELFTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by plaintiff or
by others; the misuse, abuse or alteration was not reasonably foreseeable to ASSOCIATED
INSULATION, and proximately caused any loss, injury or damages incurred by plaintiff.

THIRTEENTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION alleges that the products it installed, removed and/or
disturbed at plaintiff's jobsites, if any, were manufactured, produced, supplied, sold and
distributed in mandatory conformity with specifications promulgated by the United States

Government under its war powers, as set forth in the United States Constitution, and that any

recovery by plaintiff on the Complaint on file herein is barred in consequence of the exercise of
those sovereign powers.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff failed to exercise due diligence to mitigate their losses, injuries and/or damages;

accordingly, the amount of damages to which plaintiff is entitled, if any, should be reduced by
5

COMPLAINT IN INTERVENTIONCwm nN a

350856.1 1210.40020

the amount of damages which would have otherwise been mitigated.
FIFTEENTH AFFIRMATIVE DEFENSE

The Court lacks subject matter jurisdiction over the matters alleged in the Complaint
because the Complaint and each alleged cause of action against ASSOCIATED INSULATION
are barred by the provisions of California Labor Code, section 3600, et seq.

SIXTEENTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION alleges that at the time of the injuries alleged in the
Complaint, plaintiff was employed and was entitled to receive Workers’ Compensation benefits
from his employer's workers' compensation insurance carrier; that all of plaintiff's employers,
other than ASSOCIATED INSULATION, were negligent in and about the matters referred to in
said Complaint, and that such negligence on the part of said employers proximately and
concurrently contributed to the happening of the accident and to the loss or damage complained
of by plaintiff, if any there were; and that by reason thereof ASSOCIATED INSULATION is
entitled to set off and/or reduce any such workers' compensation benefits received or to be
received by plaintiff against any judgment which may be rendered in favor of plaintiff. (Witt v.
Jackson, 57 Cal.2d 57, 366 P.2d 641).

SEVENTEENTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION alleges that at the time of the injuries alleged in the
Complaint, plaintiff's employers were negligent in and about the matters referred to in said
Complaint, and that such negligence on the part of said employers proximately and concurrently
contributed to any loss or damage, including non-economic damages, complained of by plaintiff,
if any there were; and that ASSOCIATED INSULATION is not liable for said employers!
proportionate share of non-economic damages.

EIGHTEENTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION alleges that at the time of the injuries alleged in the
Complaint, parties other than this ASSOCIATED INSULATION were negligent in and about the
matters referred to in said Complaint, and that such negligence on the part of said parties

proximately and concurrently contributed to any loss or damage, including non-economic
6

COMPLAINT IN INTERVENTION350856.1 1210.40020

damages, complained of by plaintiff, if any there were; and that ASSOCIATED INSULATION
herein shall not be liable for said parties' proportionate share of non-economic damages.
NINETEENTH AFFIRMATIVE DEFENSE
ASSOCIATED INSULATION alleges that at all times relative to matters alleged in the
Complaint, all of plaintiffs employers, other than ASSOCIATED INSULATION, were
sophisticated users of asbestos-containing products and said employers’ negligence in providing
the product to its employees in a negligent, careless and reckless manner was a superseding
cause of plaintiff's injuries, if any.
TWENTIETH AFFIRMATIVE DEFENSE
If plaintiff has received, or in the future may receive, Workers' Compensation benefits
from ASSOCIATED INSULATION under the Labor Code of the State of California as a
consequence of the alleged industrial injury referred to in the Complaint, and in the event
plaintiff is awarded damages against ASSOCIATED INSULATION, ASSOCIATED
INSULATION claims a credit against this award to the extent that ASSOCIATED
INSULATION is barred from enforcing his rights to reimbursement for Workers' Compensation
benefits that plaintiff has received or may in the future receive.
TWENTY-FIRST AFFIRMATIVE DEFENSE
If plaintiff has received, or in the future may receive Workers' Compensation benefits
from ASSOCIATED INSULATION under the: Labor Code of the State of California as a

consequence of the alleged industrial injury referred to in the Complaint, ASSOCIATED

INSULATION demands repayment of any such Workers' Compensation benefits in the event
that plaintiff recovers tort damages as a result of the industrial injury allegedly involved here.
Although ASSOCIATED INSULATION denies the validity of plaintiffs claims in this action, in
the event those claims are held valid and not barred by the statute of limitations or otherwise,
ASSOCIATED INSULATION asserts that cross-demands for money have existed between
plaintiff and ASSOCIATED INSULATION and the demands are compensated, so far as they
equal each other, pursuant to California Code of Civil Procedure section 431.70.

M1

COMPLAINT IN INTERVENTION350856.1. 1210.40020

TWENTY-SECOND AFFIRMATIVE DEFENSE

At all times and places in the Complaint, plaintiff was not in privity of contract with
ASSOCIATED INSULATION and said lack of privity bars plaintiff's recovery herein upon any
theory of warranty.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Plaintiff is barred from recovery in that all products installed, removed, distributed and/or
supplied by ASSOCIATED INSULATION, if any, were in conformity with the existing state-of-
the-art, and as a result, these products were not defective in any manner.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION did not and does not have a substantial percentage of the
market for the asbestos-containing products which allegedly caused plaintiff's injuries.
Therefore, ASSOCIATED INSULATION may not be held liable to plaintiff based on this
ASSOCIATED INSULATION 's alleged percentage share of the applicable market.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION denies any and all liability to the extent that plaintiff
asserts ASSOCIATED INSULATION's alleged liability as a successor, successor in business,
successor in product line or a portion thereof, assign, predecessor, predecessor in business,
predecessor in product line or a portion thereof, parent, alter-ego, subsidiary, wholly or partially
owned by, or the whole or partial owner of or member in an entity researching, studying,
manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying,
offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing,
marketing, warranting, rebranding, manufacturing for others, packaging and advertising a certain
substance, the generic name of which is asbestos. ASSOCIATED INSULATION specifically
denies that it is the alternative entity of Oscar E. Ericson, Inc, or any other entity.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION alleges that plaintiffs claims are or may be barred in

whole or in part by res judicata, collateral estoppel, issue preclusion and/or release.

Mf

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350856.1. 1210.40020

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION alleges that it is immune from liability for any alleged
failure to warn plaintiff of material risks associated with ASSOCIATED INSULATION's
products, if any, because such risks were or should have been obvious to a reasonably prudent
product user in plaintiff's position, or were otherwise a matter of common knowledge to persons
in the same or similar position to plaintiff.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

This court lacks subject matter jurisdiction over the causes of action alleged in the
Complaint.
TWENTY-NINTH AFFIRMATIVE DEFENSE
As a result of plaintiff's unreasonable delay in bringing this action, without good cause
therefore, in addition to his other unreasonable acts and omissions, plaintiff has waived each or
some of the claims stated or purportedly stated in the Complaint.

THIRTIETH AFFIRMATIVE DEFENSE

The activity alleged in the Complaint, to the extent that it was engaged in by
ASSOCIATED INSULATION, if at all, was not ultrahazardous under California law.
THIRTY-FIRST AFFIRMATIVE DEFENSE

California Civil Code sections 1431.1 through 1431.5, known as the Fair Responsibility
Act of 1986, is applicable at least in part to the present action and to certain claims therein, and
based upon the principle of comparative fault, the liability, if any, of ASSOCIATED
INSULATION, if liable at all, shall be several only and shall not be joint. ASSOCIATED
INSULATION, if liable at all, shall be liable as to certain claims only for the amount of non-
economic damages allocated to ASSOCIATED INSULATION in direct proportion to
ASSOCIATED INSULATION's percentage of fault, if any, and a separate and several judgment
shall be rendered against ASSOCIATED INSULATION for non-economic damages, if any.

THIRTY-SECOND AFFIRMATIVE DEFENSE

Plaintiff cannot prove any facts showing that the conduct of ASSOCIATED

INSULATION was the cause in fact of any alleged injuries or damages suffered by plaintiff as
9

COMPLAINT IN INTERVENTION350856.1 1210.40020

alleged in the Complaint.

THIRTY-THIRD AFFIRMATIVE DEFENSE

Plaintiff cannot prove any facts showing that the conduct of ASSOCIATED
INSULATION was the proximate cause of any alleged injuries or damages suffered by plaintiff’
as alleged in the Complaint.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

If plaintiff was injured as alleged in the Complaint, those injuries were proximately
caused by allergies, sensitivities and idiosyncrasies particular to plaintiff, not found in the
general public and unknown and unknowable to ASSOCIATED INSULATION. Such injuries,
if any, were not reasonably foreseeable to ASSOCIATED INSULATION.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

At all times relevant, ASSOCIATED INSULATION's acts and omissions were in
conformity with all government statutes and regulations and all industry standards based upon
the state of knowledge existing at the time of the acts or omissions.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

Plaintiff has failed to join all parties necessary for full and just adjudication of the

purported causes of action asserted in the Complaint.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION alleges that plaintiff has directed, ordered, approved
and/or ratified ASSOCIATED INSULATION's conduct and plaintiff is therefore estopped from
asserting his claims alleged in the Complaint as a result of his own acts, conduct or omissions.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION refers to and incorporates herein each and every
affirmative defense pleaded by the other parties herein to the extent that such defenses are not
inconsistent with the matters stated herein.

THIRTY-NINTH AFFIRMATIVE DEFENSE

ASSOCIATED INSULATION alleges that it presently has insufficient knowledge or

information on which to form a belief as to whether it may have additional, as yet unasserted
10

COMPLAINT IN INTERVENTION1 || defenses available. ASSOCIATED INSULATION reserves herein the right to assert additional
2 || defenses in the event discovery indicates that they would be appropriate.
3 WHEREFORE, ASSOCIATED INSULATION prays:
4 1, That plaintiff take nothing by this Complaint;
5 2. That Judgment be entered in favor of ASSOCIATED INSULATION and against
6 plaintiff;
7 3 For recovery of ASSOCIATED INSULATION 's costs of suit;
8 4, For appropriate credits and set-offs arising out of any payment of Workers!
9 Compensation benefits, or otherwise, as alleged above; and
10 For such other and further relief as the Court deems just and proper.
ll
12||DATED: October ___, 2016 SELMAN BREITMAN LLP
13
14
By:
15 MARK A. LOVE
RICHARD M. LEE
16 KYLE CLAWSON
Attorneys for Intervenor FIREMAN'S
M7 FUND INSURANCE COMPANY, the
insurer of Defendant ASSOCIATED
18 INSULATION OF CALIFORNIA, INC.
19
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22
23
24
25
26
27
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11
COMPLAINT IN INTERVENTION
350856.1 1210.40020EXHIBIT D10/06/2018 11:45 FAX 415 979 2009 SELMAN BREITMAN SF oot

KARR RA KARR RRR RR ERR RR
eek TX REPORT = #44
RRRRRRRR ERA RE EERE ERR

TRANSMISSION OK

TX/RX NO 39685
RECIPIENT ADDRESS 14158981247
DESTINATION ID
ST. TIME 10/08 11:45
TIME USE 00°18
PAGES SENT 1
RESULT OK

Kyle Clawson

415.979,2068

kclawaon@selmanlaw.com

October 6, 2016
NOTICE OF HEARING ON EX PARTE APPLICATION ON OCTOBER 11, 2016°

Our Client: Fireman's Fund Insurance Company, the insurer of Defendant Associated
Insulation of California, Inc.

Via Facsimile Only (415) 898-1247

Re: | ROBERT ROSS and JEAN ROSS v. C.C, MOORE & CO, ENGINEERS
San Francisco County Superior Court, Case No, CGC-10-275731

Dear Counsel,

PLEASE TAKE NOTICE that on Tuesday, October 11, 2016, at 11:00 a.m. before the

Honorable Judge Garrett L. Wong, in Department 503 of the San Francisco County Superior
Court, located at 400 McAllister Street, San Francisco, CA 94102, FIREMAN's FUND

INSURANCE COMPANY, the insurer of Defendant ASSOCIATED INSULATION OF
CALIFORNIA, INC, (‘Fireman's Fund"), will appear for a hearing on its Ex Parte application
for an order granting leave to file a complaint in intervention on behalf of its suspended insured,
Associated Insulation, in the above-captioned case.

In accordance with California Rules of Court, rule 3.1204, subdivision (¢), please inform us
immediately if you intend to oppose these ex parte applications.

Sincerely,

, oeKyle Clawson
415.979.2068
kclawson@selmaniaw.com

October 6, 2016
NOTICE OF HEARING ON EX PARTE APPLICATION ON OCTOBER 11, 2016

Our Client: Fireman's Fund Insurance Company, the insurer of Defendant Associated
Insulation of California, Inc.

Via Facsimile Only (415) 898-1247
Re: | ROBERT ROSS and JEAN ROSS v. C.C. MOORE & CO. ENGINEERS

San Francisco County Superior Court, Case No. CGC-10-275731
Dear Counsel,
PLEASE TAKE NOTICE that on Tuesday, October 11, 2016, at 11:00 a.m., before the
Honorable Judge Garrett L. Wong, in Department 503 of the San Francisco County Superior
Court, located at 400 McAllister Street, San Francisco, CA 94102, FIREMAN's FUND
INSURANCE COMPANY, the insurer of Defendant ASSOCIATED INSULATION OF
CALIFORNIA, INC. ("Fireman's Fund"), will appear for a hearing on its Ex Parte application
for an order granting leave to file a complaint in intervention on behalf of its suspended insured,

Associated Insulation, in the above-captioned case.

In accordance with California Rules of Court, rule 3.1204, subdivision (c), please inform us
immediately if you intend to oppose these ex parte applications.

Sincerely,

KYLE CLAWSON

KIC:

351270.1 1210.40020Selman Breitman LLP
ATTORNEYS AT LAW
~ an wn R Ww nN

Co O0U wm NAD AW RB WN

28

351148.

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

Robert Ross and Jean Ross v. C. C. Moore & Co. Engineers, et al.
San Francisco Superior Court Case No. CGC-10-275731

Defendant: Intervenor Fireman's Fund Insurance Company, the insurer of Defendant
Associated Insulation of California, Inc.

I am employed in the County of San Francisco, State of California. I am over the age
of 18 years and am not a party to the within action; my business address is 33 New
Montgomery, Sixth Floor, San Francisco, CA, 94105.

On October 6, 2016, I electronically served the document(s) via File & ServeXpress
described as: DECLARATION OF KYLE J. CLAWSON IN SUPPORT OF
INTERVENOR FIREMAN'S FUND INSURANCE COMPANY, THE INSURER OF
DEFENDANT ASSOCIATED INSULATION OF CALIFORNIA, INC.'S EX PARTE
APPLICATION FOR AN ORDER GRANTING LEAVE TO FILE A COMPLAINT IN
INTERVENTION on the recipients designated on the Transaction Receipt located on the File
& ServeXpress website.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed on October 6, 2016, at San Francisco, California.

LA DLCCe LUG eee

~ Rebecca Martin

1

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
1210,40020