arrow left
arrow right
  • DORENNE BROWN, ET AL VS. A.W. CHESTERTON COMPANY, ET AL ASBESTOS document preview
  • DORENNE BROWN, ET AL VS. A.W. CHESTERTON COMPANY, ET AL ASBESTOS document preview
  • DORENNE BROWN, ET AL VS. A.W. CHESTERTON COMPANY, ET AL ASBESTOS document preview
  • DORENNE BROWN, ET AL VS. A.W. CHESTERTON COMPANY, ET AL ASBESTOS document preview
  • DORENNE BROWN, ET AL VS. A.W. CHESTERTON COMPANY, ET AL ASBESTOS document preview
  • DORENNE BROWN, ET AL VS. A.W. CHESTERTON COMPANY, ET AL ASBESTOS document preview
  • DORENNE BROWN, ET AL VS. A.W. CHESTERTON COMPANY, ET AL ASBESTOS document preview
  • DORENNE BROWN, ET AL VS. A.W. CHESTERTON COMPANY, ET AL ASBESTOS document preview
						
                                

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 20 21 22 23 24 25 26 27 28 1 PROOF OF SERVICE