On November 21, 2017 a
Answer
was filed
involving a dispute between
Brown, Brian,
Brown, Dorenne,
Brown, Robert,
Brown, Ronald,
and
3M Company,
Alamo Engineering Co.,
Alcatel-Lucent Usa Inc. (Fka Lucent Technologies,,
American Honda Motor Co., Inc.,
Anderson & Christofani Shipyard,
Armstrong International, Inc.,
A.W. Chesterton Company,
Bay Decking Co., Inc.,
Bay Vlave Service Co,
Borgwarner Morse Tec Llc, As Successor-By-Merger,
Carpenter Group, The,
Carpenter Rigging & Supply Company, Inc.,
Cbs Corporation(Fka Viacom Inc.,,
City Builders Supply,
Cleaver-Brooks, Inc.,
Coastside Lumber And Supply, Inc.,
Common'S Auto Parts, Inc.,
Continental Maritime Of San Francisco, Inc.,
Crane Co.,
Crowley Maritime Corporation,
Crown Cork & Seal Company, Inc.,
Csk Auto, Inc., Now Known As O'Reilly Auto,
Dahl-Beck Electric Company,
Dana Companies, Llc (Sued Herein As Dana,
Dco Llc,
Dco Llc, F K A Dana Companies, Llc,
Does 1 Through 800, Inclusive, As Required By,
Fraser'S Boiler Service, Inc.,
Fulton Shipyard, Inc., A Dissolved Corporation,
General Electric Company,
Genuine Parts Company,
Goodman Lumber Co.,
H & H Ship Service Co.,
Hill Brothers Chemical Company,
Honeywell International Inc.,
Honeywell International Inc. F K A Alliedsignal,
Hopeman Brothers, Inc.,
Imo Industries, Inc.,
Ingersoll-Rand Company,
J & H Marine & Industrial Engineering Company,
John Crane Inc.,
Metalclad Insulation Llc,
National Union Fire Insurance Company Of Pittsburg,
Nokia Of America Corporation,
O'Reilly Auto Enterprises, Llc (Fka Csk Auto,,
Pacific Manor Hardware, Incorporated,
Pneumo Abex Llc,
Pneumo Abex Llc, Successor In Interest To Abex,
Robert E. Blake, Inc.,
San Bruno Lumber Co., Inc.,
San Francisco Welding & Fabrication, Inc., A,
Scherba'S Auto Stores, Inc.,
South City Lumber And Supply Co.,
South City Lumber And Supply, Inc.,
Sun Ship, Llc,
Syd Carpenter, Marine Contractor, Inc.,
The Carpenter Group, Inc.,
The Goodyear Tire & Rubber Company,
Tig Insurance Company,
Vic Hubbard Speed And Marine Corporation,
Yamaha Motor Corporation, U.S.A.,
for ASBESTOS
in the District Court of San Francisco County.
Preview
1 Douglas G. Wah, Esq. SBN: 64692
Beth C. Hopwood, Esq. SBN: 161985
2 FOLEY & MANSFIELD, PLLP
ELECTRONICALLY
2185 N. California Blvd., Suite 575
3 Walnut Creek, CA 94596 F I L E D
Superior Court of California,
Telephone (510) 590-9500 County of San Francisco
4 Facsimile (510) 590-9595
Email: bhopwood@foleymansfield.com 08/31/2020
5 Clerk of the Court
BY: BOWMAN LIU
Attorneys for Intervenor Deputy Clerk
6 THE HARTFORD as insurer of suspended corporation
SCHERBA’S AUTO STORES, INC. (Previously sued As Doe 18)
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10
11 DORENNE BROWN, as Successor-in-Interest Case No.: CGC-17-276637
to and as Wrongful Death Heir of RONALD
12 BROWN, Deceased; and ROBERT BROWN, and THE HARTFORD’S ANSWER-IN-
BRIAN BROWN, as Wrongful Death Heirs of INTERVENTION AND REQUEST FOR
13 JURY TRIAL
RONALD BROWN, Deceased,
14
Plaintiffs,
15
vs.
16
A.W. CHESTERTON COMPANY, et al.
17
18
Defendants.
Complaint Filed: November 15, 2018
19 Trial Date: January 11, 2021
20
21 THE HARTFORD (“INTERVENOR”) by leave of Court on behalf of their insured,
22 SCHERBA’S AUTO STORES, INC. ( SCHERBA’S), alleges:
23 1. On August 27, 2020, this Court granted INTERVENOR’s motion for leave to
24 intervene in this action.
25 2. INTERVENOR is, and at all times herein alleged, was, a corporation duly authorized
26 to transact the business of insurance in the State of California.
27 3. Hartford Casualty Ins. Co and Hartford Accident and Indemnity Company issued
28 multiple primary liability policies for SCHERBA’S in the 1970s and 1980s, some of which may
1
THE HARTFORD’S ANSWER-IN-INTERVENTION AND REQUEST FOR JURY TRIAL
1 provide coverage for plaintiffs’ damages.
2 4. This action was commenced by plaintiffs against SCHERBA’S AUTO STORES, INC.
3 on November 15, 2018 and seeks damages for decedent’s alleged asbestos-related illness from having
4 been exposed to asbestos-containing products.
5 5. INTERVENOR intervenes in this action because, as the general liability insurer for
6 SCHERBA’S during the period in which plaintiffs allege they incurred damages, INTERVENOR has
7 a substantial interest in the outcome of the case because SCHERBA’S, as a suspended corporation,
8 cannot represent itself.
9 6. INTERVENOR also intervenes in this action to preserve its right to have the liability,
10 if any, of SCHERBA’S determined on the merits and prevent INTERVENOR from being bound by a
11 default judgment in an Insurance Code section 11580 action.
12 7. INTERVENOR’S intervention is limited to contesting SCHERBA’S alleged liability
13 and the amount of damages, if any.
14 8. In defending the case against SCHERBA’S on the merits, INTERVENOR denies
15 each and every, all and singular, generally and specifically, all the allegations and causes of action
16 contained in plaintiffs’ complaint, and further denies that plaintiffs have been damaged in any sum,
17 sums, or at all, and specifically denies:
18 (1) That any asbestos-containing product for which SCHERBA’S was responsible was
19 present at the site at which the alleged asbestos exposure of decedent occurred;
20 (2) That decedent came into contact with any asbestos-containing product for which
21 SCHERBA’S AUTO STORES, INC. was responsible.
22 (3) That any act of omission of SCHERBA’S caused or contributed to the injury
23 purportedly suffered by plaintiffs and decedent; and
24 (4) That any act or omission of SCHERBA’S contributed to any asbestos health hazard.
25 This INTERVENOR herewith pleads and sets forth separately and distinctly the following
26 affirmative defenses to each and every cause of action of plaintiffs’ Complaint as though plead
27 separately to each and every said cause of action, and this answering Intervenor alleges the
28 following affirmative defenses:
2
THE HARTFORD’S ANSWER-IN-INTERVENTION AND REQUEST FOR JURY TRIAL
1 FIRST AFFIRMATIVE DEFENSE
2 (Comparative Negligence)
3 That decedent was careless and negligent in and about all matters alleged in the Complaint,
4 and that said carelessness and negligence on the part of decedent proximately contributed to the
5 happening of the incident and to the injuries, loss and damages Complaint of, if any, sustained by
6 plaintiffs and that plaintiffs’ recovery should therefore be reduced to the extent of decedent’s
7 negligence.
8 SECOND AFFIRMATIVE DEFENSE
9 (Assumption of Risk)
10 That decedent knew, or in the exercise of ordinary care should have known, of the risk and
11 hazards involved in the undertaking in which he was engaged, but nevertheless, and knowing these
12 things, did freely and voluntarily consent and assume the risks and hazards incident to said
13 operations, acts and conduct at the time and place mentioned in said Complaint.
14 THIRD AFFIRMATIVE DEFENSE
15 (Employer Negligence/Witt v. Jackson)
16 By way of alleging the doctrine of Witt v. Jackson (1961) 57 Cal.2d 57, Intervenor alleges
17 that at the time and place of the happening of the occurrences alleged in the Complaint, and at all
18 times material herein, decedent was employed by various employers, the names of which are
19 unknown to Intervenor at this time, and working within the course and scope of employment and/or
20 employments, that said employer and/or employers and decedent were subject to the provisions of
21 the Workman's Compensation Act of the State of California; that certain sums have been paid to or
22 on behalf of plaintiffs and/or decedent herein under the applicable provisions of the Labor Code of
23 the State of California; that said employer and/or employers and each of them were negligent and
24 careless and that such negligence and carelessness proximately contributed and caused the injuries
25 of decedent; that by these premises any award made to the plaintiffs, if any award is made at all,
26 must be reduced by any payment to decedent by his employer or employers' compensation carrier
27 under the authority of Witt v. Jackson (1961) 57 Cal.2d 57.
28 ///
3
THE HARTFORD’S ANSWER-IN-INTERVENTION AND REQUEST FOR JURY TRIAL
1 FOURTH AFFIRMATIVE DEFENSE
2 (Employer’s Negligence)
3 Intervenor alleges that decedent’s employers were contributorily negligent and careless in
4 and about the matters alleged in the Complaint, and that such negligence and carelessness was a
5 proximate cause of any injuries and damages suffered by plaintiffs, if any there were.
6 FIFTH AFFIRMATIVE DEFENSE
7 (Employer’s Assumption of the Risk)
8 Intervenor alleges that decedent’s employers voluntarily and knowingly entered into and
9 engaged in the operations, acts and conduct alleged in said Complaint, and voluntarily and
10 knowingly assumed all of the risks incident to said operation, acts and conduct alleged in said
11 complaint, and voluntarily and knowingly assumed all of the risks incident to said operations, acts
12 and conduct at the time and place mentioned in the complaint.
13 SIXTH AFFIRMATIVE DEFENSE
14 (Alteration or Misuse)
15 Intervenor alleges that the product in question was properly designed and manufactured, and
16 was fit for the purpose intended; that said product was improperly maintained and used and was
17 abused by decedent and/or defendants other than SCHERBA’S AUTO STORES, INC., resulting in
18 plaintiffs’ damages, if any there were.
19 SEVENTH AFFIRMATIVE DEFENSE
20 (Statute of Limitations)
21 As a further and separate defense, Intervenor alleges that plaintiffs failed to bring this suit
22 within the applicable limitations period, including, but not limited to, the periods prescribed by
23 California Code of Civil Procedure §§338, 338(d), 339, 340(3), 340.2 and/or 353.
24 EIGHTH AFFIRMATIVE DEFENSE
25 (Laches)
26 As a further separate defense, Intervenor alleges that plaintiffs unreasonably delayed in the
27 bringing of this action without good cause therefore, and thereby has prejudiced this defendant; and
28 as a proximate result thereof, this entire action is barred by laches.
4
THE HARTFORD’S ANSWER-IN-INTERVENTION AND REQUEST FOR JURY TRIAL
1 NINTH AFFIRMATIVE DEFENSE
2 (Lack of Jurisdiction)
3 As a further separate defense, Intervenor alleges that this Court does not have subject matter
4 jurisdiction over this action, or, alternatively, that the Court lacks jurisdiction due to insufficiency of
5 process, or the service thereof, and/or improper venue.
6 TENTH AFFIRMATIVE DEFENSE
7 (Proportionate Fault)
8 As a further separate defense, Intervenor alleges that while at all times denying any liability
9 whatsoever on the part of defendant SCHERBA’S AUTO STORES, INC. to plaintiffs herein,
10 Intervenor alleges that any alleged liability or responsibility of SCHERBA’S AUTO STORES, INC.,
11 and such alleged liability and responsibility being denied, is small in proportion to the alleged
12 liability and responsibility of other persons and entities, including other persons and entities who are
13 defendants herein, and that plaintiffs should be limited to seeking recovery from defendant
14 SCHERBA’S AUTO STORES, INC. for the proportion of alleged injuries and damages for which
15 defendant SCHERBA’S AUTO STORES, INC. is allegedly liable or responsible, all such alleged
16 liability and alleged responsibility being expressly denied.
17 ELEVENTH AFFIRMATIVE DEFENSE
18
19 (Modification of Product)
20 As a further separate defense, INTERVENOR is informed and believe, and based upon said
21 information and belief alleges, that the plaintiffs are barred from recovery herein because of
22 modification, alteration or change in some other matter, of the products alleged in plaintiffs’
23 Complaint.
24 TWELFTH AFFIRMATIVE DEFENSE
25
26 (Failure to State Cause of Action)
27 As a further separate defense, Intervenor alleges that plaintiffs’ Complaint does not state facts
28 sufficient to constitute a cause of action against defendant SCHERBA’S AUTO STORES, INC.
5
THE HARTFORD’S ANSWER-IN-INTERVENTION AND REQUEST FOR JURY TRIAL
1 ///
2 ///
3 THIRTEENTH AFFIRMATIVE DEFENSE
4
5 (Waiver)
6 As a further separate defense, Intervenor alleges that decedent acknowledged, ratified,
7 consented to and acquiesced in the alleged acts or omissions, if any, of defendant SCHERBA’S
8 AUTO STORES, INC., thus barring plaintiffs from any relief as prayed herein.
9 FOURTEENTH AFFIRMATIVE DEFENSE
10
11 (No Identification of Product)
12 As a further separate defense, INTERVENOR is informed and believes, and thereon alleges,
13 that plaintiffs are unable to identify the actual supplier(s) of the asbestos products which allegedly
14 caused the injury which forms the basis of the Complaint herein, and that said supplier(s) were
15 entities other than SCHERBA’S AUTO STORES, INC.. Therefore, SCHERBA’S AUTO STORES,
16 INC. may not be held liable for the injury of the plaintiffs.
17 FIFTEENTH AFFIRMATIVE DEFENSE
18 (Fair Responsibility Act)
19 As a further separate defense, Intervenor alleges that said Complaint, and each of said alleged
20 causes of action thereof, is subject to the provisions of the Fair Responsibility Act of 1986, Civil
21 Code Sections 1431.1 through 1431.5. Liability of defendant SCHERBA’S AUTO STORES, INC. to
22 plaintiffs, if any, for non-economic damages, if any, as defined in Civil Code Section 1431.2(b)(2)
23 shall be several only and shall not be joint with each or any co-defendant named in said Complaint.
24 Defendant SCHERBA’S AUTO STORES, INC. shall be liable only for the non-economic damages,
25 if any, allocated to defendant SCHERBA’S AUTO STORES, INC. in direct proportion to this
26 defendant SCHERBA’S AUTO STORES, INC.’s percentage of fault, if any.
27 SIXTEENTH AFFIRMATIVE DEFENSE
28 (Failure to Mitigate Damages)
6
THE HARTFORD’S ANSWER-IN-INTERVENTION AND REQUEST FOR JURY TRIAL
1 As a further separate defense, Intervenor alleges that Plaintiffs and/or Decedent failed to
2 mitigate their alleged damages, if any there were.
3
4 SEVENTEENTH AFFIRMATIVE DEFENSE
5 (Sophisticated User)
6 As a further separate defense, Intervenor alleges that at all times relevant to the matters
7 alleged in plaintiffs’ Complaint, decedent knew or should have known about the hazards of asbestos-
8 containing products, and, therefore, decedent was a sophisticated user of asbestos-containing products
9 within the meaning of Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.
10 EIGHTEENTH AFFIRMATIVE DEFENSE
11 (Compliance with Regulations)
12 As a further separate defense, Intervenor alleges that any product or products alleged by
13 Plaintiffs to have caused Decedent’s injuries were manufactured, installed, used and/or distributed in
14 compliance with specifications provided by third parties to Defendant and/or in compliance with all
15 applicable health and safety statutes and regulations.
16 NINETEENTH AFFIRMATIVE DEFENSE
17 As a further separate defense, Intervenor alleges that if Decedent suffered any damages,
18 which is denied, the risk of any such damages was not foreseeable to Defendant. Defendant at all
19 times material hereto acted in accordance with the industry custom and practice and the state of
20 scientific knowledge available to manufacturers, installers and/or users of asbestos-containing
21 products.
22 TWENTIETH AFFIRMATIVE DEFENSE
23 As a further separate defense, Intervenor alleges that all products and materials researched,
24 tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested,
25 labeled, assembled, distributed, leased, bought, offered for sale, sold, inspected, serviced, installed,
26 contracted for installation, repaired, marketed, warranted, arranged, rebranded, manufactured for
27 others, packaged, advertised and/or which contained or lacked warnings by Defendant, which
28
7
THE HARTFORD’S ANSWER-IN-INTERVENTION AND REQUEST FOR JURY TRIAL
1 allegations are expressly denied, were not defective in any manner, as said products and materials
2 conformed with the state-of-the-art in existence at all times mentioned in the complaint.
3 TWENTY-FIRST AFFIRMATIVE DEFENSE
4 (Leave of Court to Assert Additional Affirmative Defenses)
5 INTERVENOR reserves the right to seek leave of court and assert additional affirmative
6 defenses pending the outcome of discovery and investigation in this matter.
7 WHEREFORE, INTERVENOR prays for judgment as follows:
8 1. That the liability, if any, of SCHERBA’S AUTO STORES, INC. be decided on its
9 merits;
10 2. That INTERVENOR will not be bound by a default judgment under an Insurance
11 Code section 11580 action;
12 3. That plaintiffs take nothing by way of their complaint against SCHERBA’S AUTO
13 STORES, INC.;
14 4. For costs of suit;
15 5. For reasonable attorneys’ fees; and
16 6. For such other and further relief as the Court deems just and proper.
17
18 NOTICE OF REQUEST FOR JURY TRIAL
19 Pursuant to CCP §631, INTERVENOR hereby gives Notice of its Request for Trial by Jury.
20
21 DATE: August 31, 2020 FOLEY & MANSFIELD, PLLP
22
23 By: ______________________________
Douglas G. Wah, Esq.
24 Beth C. Hopwood, Esq.
25 Attorneys for Intervenor
THE HARTFORD as insurer of suspended corporation
26 SCHERBA’S AUTO STORES, INC.
(Previously sued As Doe 18)
27
28
8
THE HARTFORD’S ANSWER-IN-INTERVENTION AND REQUEST FOR JURY TRIAL
1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
DORENNE BROWN, et al. vs. A.W. CHESTERTON COMPANY, et al.
2 San Francisco County Superior Court No.: CGC-17-276637
Our File No.: 20305-0001
3
4 I, the undersigned, declare as follows: I am employed in the County of Contra Costa,
5 California, and I am over the age of 18 years and not a party to the within action. My business
6 address is 2185 N. California Blvd., Suite 575, Walnut Creek, CA 94596
7 On the date executed below, I electronically served the following document(s)
8 THE HARTFORD’S ANSWER-IN-INTERVENTION AND REQUEST FOR JURY TRIAL
9
X BY ELECTRONIC TRANSMISSION: Pursuant to San Francisco Court General Order No.
10 158, CCP 1010.6 and CRC 2.251, or pursuant to the Stipulation and Order Authorizing
Electronic Service, or by an agreement of the parties, at approximately 2:53 PM. I
11 electronically eserved through File & ServeXpress and caused the document(s) to be sent
to the person(s) at the email addresses designated on the Transaction Receipt located on
12 the File & ServeXpress website. To the best of my knowledge, at the time of the
transmission, the transmission was reported as complete and without error.
13
14 I declare under penalty of perjury under the laws of the State of California that the foregoing
15 is true and correct and that this declaration was executed on August 31, 2020 at Walnut Creek,
16 California.
17
18 ________________________
Rondi L. Taylor
19
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1
PROOF OF SERVICE