Preview
-
2
Lee J.
Richard
Danforth,
S. Baum,
Esq.
Esq.
CODDINGTON, HICKS & DANFORTH
SBN
- SBN
73695
178760 PILES
SP,N MItYeo QOUNTY
A Professional Corporation, Lawyers
555 Twin Dolphin Drive, Suite 300
'8
Redwood California 94065-2133 FEB 2 2UIO
I City,
Tel. (650) 592-5400 gupstnof VQutt
Fax.(650) 592-5027
Ity lt
ATTORNEYS FOR Defendants
6 FARMERS INSURANCE EXCHANGE and
TRUCK INSURANCE EXCHANGE
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
10
Civil Unlimited
12
MICHAELCHANG, an individual, No. CIV 489065
13
Plamtift;
14 ANSWER TO COMPLAINT
vs.
15
FARMERS INSURANCE COMPANY,
16 INC., FARMERS GROUP, INC.,
FARMERS INSURANCE EXCHANGE
17 AND TRUCK INSURANCE EXCHANGE,
reciprocal inter-insurance exchanges; Does I
18 to 99, Inclusive,
19 Defendants.
20
21 COMES NOW defendants Farmers Insurance Exchange ('armers" ) and Truck Insurance
22 Exchange ("Truck"), and in response to the unverified complaint of plaintiff on file herein, herewith
23 denies each and every, all and singular, the allegations therein contained, and in this connection,
24 defendants deny that plaintiffhas been injured or damaged in any of the sums mentioned in the
25 complaint, or in any sum whatsoever or at all, as a result of any act or omission of these answering
26 defendants.
27
28
Answer to Complamt,
CaseNomber CIV 489066
AS A FURTHER, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT
2 ON FILE HEREIN, these answering defendants allege that said complaint, and each cause of action
3 thereof, fails to state facts sufficient to constitute a cause of action against these defendants.
AS A SECOND, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT
5 ON FILE HEREIN, these answering defendants allege that plaintiffs claims for coverage do not
6 involve liability for damages for 'property damage" as defined m defendants'olicies.
AS A THIRD, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINTON
8 FILE HEREIN, these answering defendants allege that plaintiff's claims for coverage do not involve
9 liability for damages for "personal and advertising injury" as defined in defendants'olicies.
10 AS A FOURTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT
11 ON FILE HEREIN, these answering defendants allege that plaintiffwas itself careless and negligent
12 in and about the matters alleged in the complaint; that said carelessness and negligence on said
13 plainti f1's own part proximately contributed to the happening of the incident and to the injuries, loss
14 and damage complained of, ifany there were; that should plaintiffrecover damages, defendants are
15 entitled to have the amount thereof abated, reduced or eliminated to the extent that plaintiffs
16 negligence caused or contributed to its injuries, ifany.
17 AS A FIFTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT,these
18 answering defendants allege that plaintiff's claims seek coverage for property not covered under any
19 of defendants'olicies.
20 AS A SIXTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINTON
21 FILE HEREIN, these answering defendants allege that plaintifffailed subsequent to the occurrence
22 described in the comp 1amt properly to mitigate its damages and thereby is precluded from recovering
23 those damages which could have reasonably been avoided by the exercise of due care on the part
24 of plaintitT.
25 AS A SEVENTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT
26 ON FILE HEREIN, these answering defendants allege that to permit recovery in respect of the
27 matters herein alleged would violate the provisions of California Const. Art. I, (8I I, 7,9, 15 and 16.
28
( 0OOI 2 O I ON, HI CI
S
A OA ~ IOICI H
Answer to Complamt,
NI» OCI CA')A(W
Case Number CIV 489065
(II
(( (I)I()N
AS AN EIGHTH. SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT
2 ON FILE HEREIN, these answering defendants allege that to permit recovery in respect of the
3 matters herein alleged would violate the provisions of United States Const. Art. I, I'110.
AS A NINTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINTON
5 FILE HEREIN, these answering defendants allege that to permit recovery in respect of the matters
6 herein alleged would violate the provisions of United States Const., Amend. V, VII, VIIIand XIV.
AS A TENTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINTON
8 FILE HEREIN, these answering defendants allege that plaintiffand/or its attorneys were themselves
9 guilty of Obad faith" in and about the matters alleged in the complaint; that said Obad faith" on said
10 plaintiffs and/or its attorneys'wn part proximately contributed to the happening ofthe incident and
11 to the injuries, loss and damage complained of, if any there were; that should plaintiff recover
12 damages, defendants are entitled to have the amount thereof abated, reduced or eliminated to the
13 extent that plaintiffs and/or its attorneys'bad faith" caused or contributed to its in3uries, ifany.
14 AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
15 COMPLAINT ON FILE HEREIN, these answering defendants allege that there is no coverage
16 under the defendants'olicies for the claims asserted as a result of the policies'rovisions,
17 limitations. conditions or endorsements contained in or incorporated by reference, expressly or
18 impliedly, in such policies.
19 AS A TWELFTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT,
20 these answering defendants allege that even if the claims plaintiff has asserted were within the
21 insuring agreements of the subject policies (which defendants deny), there is no coverage under the
22 subject policies for the claims asserted as a result of exclusions contained in or incorporated by
23 reference, expressly or impliedly, in such policies, including but not limited to, the policies'4
exclusion tor damages caused by pollution and pollutants, water damage and/or negligent work.
25 AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
26 COMPLAINT, these answering defendants allege that plaintiffs claims for relief are barred by the
27 doctrines of waiver and/or estoppel.
28
COOOIAOTOTul( KA
A OA ~ FekTII Answer to Compla(nt,
kd d C
I CA '14()66
Case Number CIV 489065
2. 46(l
(6 dt
AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
2 COMPLAINT, these answering defendants have insufficient knowledge or information on which
3 to form a belief as to whether additional affirmative defenses are available. Defendants reserve the
4 right to assert additional affirmative defenses as appropriate.
AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
6 COMPLAINT, these answering defendants allege that plaintiff has not performed all terms,
7 conditions and covenants of the subject insurance policy and therefore no cause of action based upon
8 the policy will lie against these defendants.
AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
10 COMPLAINT, these answering defendants allege that defendants'uties to perform, ifany, were
11 discharged and/or excused and the complaint is barred because plaintiffmaterially failed to perform
12 his promises and/or conditions precedent to any duty of defendants.
13 AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
14 COMPLAINT, these answering defendants allege that plaintiffwill be unjustly enriched if he is
15 awarded the equitable relief requested in the complaint.
16 AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO TI-IE
17 COMPLAINT, these answering defendants allege plaintiff's complaint, and each cause of action
18 thereof, isbarred by the applicable period of limitations including, but not limited to, limitations
19 codified in Code of Civil Procedure () 337, 338, 339 and 343.
20 WHEREFORE, defendants pray that plaintifftake nothing against said defendants by his
21 said complaint; that defendants have judgment for their costs of suit herein incurred, together with
22 such other and further relief as may be just and proper.
23
24 Dated: February 22, 2010 CODDINGTON, HICK & DANFORTH
25
By:
26 Richard S. Baum
Attorneys for Defendants
27 FARMERS INSURANCE EXCHANGE and
TRUCK INSURANCE EXCHANGE
28
(oeoleelow Hicks
e oe ~ res lli Answer to Complaint,
Case Number CIV 489066
e Oiii
PROOF OF SERVICE
(C.C P 1011,
fair) 1013, 1013a, 2015.5)
3 I, the undersigned, declare that I am employed in the County of San Mateo, State of
4 Califorma. I am over the age of eighteen (18) years and not a party to the within action. My business
5 address is 555 Twm Dolphin Drive, Suite 300, Redwood City, California 94065.
6 I am readily familiar with my employer's business practice for collection and processing of
7 correspondence and documents for mailing with the United States Postal Service, mailing via
8 overnight delivery, transmission by facsimile machine, and delivery by hand.
9 On February 22, 2010, I served a copy of each of the documents listed below by placing said
10 copies for processing as indicated herein.
Defendant Farmers Insurance Exchange
and
12 Defendant Truck Insurance Exchange
Answer to Complaint
13
X II.S. MAIL:Thecorrespondence or documents were placed in sealed, labeled envelopes with
14 postage thereon fully prepaid on the above date placed for collection and mailing at my place
of business to be deposited with the U.S. Postal Service at Redwood City, California on this
15 same date in the ordinary course ofbusmess.
16 ***SEE ATTACHED SERVICE LIST***
17
OVERNIGHT DELIVERY:The correspondence or documents were placed in sealed, labeled
18 packaging for overnight delivery with 0 FEDERAL EXPRESS, with all charges to be paid
by my employer on the above date for collection and mailing at my place of business to be
19 deposited in a facility regularly maintained by FedEx, the overnight delivery carrier, or
delivered to a courier or driver authorized by FedEx, the overnight delivery carrier, to receive
20 such packages, on this date in the ordinary course of business.
21
HAND DELIVERY The correspondence or documents were placed in sealed, labeled
22 envelopes and served by personal delivery to the party or attorney indicated herein, or ifupon
attorney, by leaving the labeled envelopes with a receptionist or other person having charge
23 of the attorney's office I, Rebecca C. Valdivia, caused One Legal, LLC to "hand deliver" the
above-referenced document(s) to counsel as listed on our Service List.
24
FACSIMILETRANSMISSION: The correspondence or documents were placed for transmis-
25 sion from (650) 592-5027 at Redwood City, California, and were transmitted to a facsimile
machine maintained by the party or attorney to be served at the facsimile machine telephone
26 number provided by said party or attorney, on this same date in the ordinary course of busi-
ness. The transmission was reported as complete and without error, and a record of the
27 transmission was properly issued by the transmitting facsimile machine.
28
I PERSONS OR PARTIES SERVED:
Gregg S. Garrison, Esq Attorney for Plaintiff
Garrison Law Corporation
1525 State Street, Suite 100
Santa Barbara, CA 93101
Telephone (805)957-1700
Herman I.Kali'en, Esq. Attorney for Plaintiff
Kalfen Law Corporation
I Embarcadero Center
Suite 500
San Francisco, CA 94111
Telephone (415)315-1710
Facsimile (415) 433-5994
11
12
13
I certify (or declare) under penalty of perjury under the laws of the State of California that the
14
foregoing is true and correct and that this declaration was executed on February 22, 2010.
15
16
17
Rebecca C. Valdtvia
18
Court San Mateo County Superior Court
Action No Cl V 489065
Case Name Chang, Michael v Farmers
21
22
23
24
25
26
27
28
Preview
- 2 Lee J. Richard Danforth, S. Baum, Esq. Esq. CODDINGTON, HICKS & DANFORTH SBN - SBN 73695 178760 PILES SP,N MItYeo QOUNTY A Professional Corporation, Lawyers 555 Twin Dolphin Drive, Suite 300 '8 Redwood California 94065-2133 FEB 2 2UIO I City, Tel. (650) 592-5400 gupstnof VQutt Fax.(650) 592-5027 Ity lt ATTORNEYS FOR Defendants 6 FARMERS INSURANCE EXCHANGE and TRUCK INSURANCE EXCHANGE IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO 10 Civil Unlimited 12 MICHAELCHANG, an individual, No. CIV 489065 13 Plamtift; 14 ANSWER TO COMPLAINT vs. 15 FARMERS INSURANCE COMPANY, 16 INC., FARMERS GROUP, INC., FARMERS INSURANCE EXCHANGE 17 AND TRUCK INSURANCE EXCHANGE, reciprocal inter-insurance exchanges; Does I 18 to 99, Inclusive, 19 Defendants. 20 21 COMES NOW defendants Farmers Insurance Exchange ('armers" ) and Truck Insurance 22 Exchange ("Truck"), and in response to the unverified complaint of plaintiff on file herein, herewith 23 denies each and every, all and singular, the allegations therein contained, and in this connection, 24 defendants deny that plaintiffhas been injured or damaged in any of the sums mentioned in the 25 complaint, or in any sum whatsoever or at all, as a result of any act or omission of these answering 26 defendants. 27 28 Answer to Complamt, CaseNomber CIV 489066 AS A FURTHER, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT 2 ON FILE HEREIN, these answering defendants allege that said complaint, and each cause of action 3 thereof, fails to state facts sufficient to constitute a cause of action against these defendants. AS A SECOND, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT 5 ON FILE HEREIN, these answering defendants allege that plaintiffs claims for coverage do not 6 involve liability for damages for 'property damage" as defined m defendants'olicies. AS A THIRD, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINTON 8 FILE HEREIN, these answering defendants allege that plaintiff's claims for coverage do not involve 9 liability for damages for "personal and advertising injury" as defined in defendants'olicies. 10 AS A FOURTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT 11 ON FILE HEREIN, these answering defendants allege that plaintiffwas itself careless and negligent 12 in and about the matters alleged in the complaint; that said carelessness and negligence on said 13 plainti f1's own part proximately contributed to the happening of the incident and to the injuries, loss 14 and damage complained of, ifany there were; that should plaintiffrecover damages, defendants are 15 entitled to have the amount thereof abated, reduced or eliminated to the extent that plaintiffs 16 negligence caused or contributed to its injuries, ifany. 17 AS A FIFTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT,these 18 answering defendants allege that plaintiff's claims seek coverage for property not covered under any 19 of defendants'olicies. 20 AS A SIXTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINTON 21 FILE HEREIN, these answering defendants allege that plaintifffailed subsequent to the occurrence 22 described in the comp 1amt properly to mitigate its damages and thereby is precluded from recovering 23 those damages which could have reasonably been avoided by the exercise of due care on the part 24 of plaintitT. 25 AS A SEVENTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT 26 ON FILE HEREIN, these answering defendants allege that to permit recovery in respect of the 27 matters herein alleged would violate the provisions of California Const. Art. I, (8I I, 7,9, 15 and 16. 28 ( 0OOI 2 O I ON, HI CI S A OA ~ IOICI H Answer to Complamt, NI» OCI CA')A(W Case Number CIV 489065 (II (( (I)I()N AS AN EIGHTH. SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT 2 ON FILE HEREIN, these answering defendants allege that to permit recovery in respect of the 3 matters herein alleged would violate the provisions of United States Const. Art. I, I'110. AS A NINTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINTON 5 FILE HEREIN, these answering defendants allege that to permit recovery in respect of the matters 6 herein alleged would violate the provisions of United States Const., Amend. V, VII, VIIIand XIV. AS A TENTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINTON 8 FILE HEREIN, these answering defendants allege that plaintiffand/or its attorneys were themselves 9 guilty of Obad faith" in and about the matters alleged in the complaint; that said Obad faith" on said 10 plaintiffs and/or its attorneys'wn part proximately contributed to the happening ofthe incident and 11 to the injuries, loss and damage complained of, if any there were; that should plaintiff recover 12 damages, defendants are entitled to have the amount thereof abated, reduced or eliminated to the 13 extent that plaintiffs and/or its attorneys'bad faith" caused or contributed to its in3uries, ifany. 14 AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 15 COMPLAINT ON FILE HEREIN, these answering defendants allege that there is no coverage 16 under the defendants'olicies for the claims asserted as a result of the policies'rovisions, 17 limitations. conditions or endorsements contained in or incorporated by reference, expressly or 18 impliedly, in such policies. 19 AS A TWELFTH, SEPARATE AND AFFIRMATIVEDEFENSE TO THE COMPLAINT, 20 these answering defendants allege that even if the claims plaintiff has asserted were within the 21 insuring agreements of the subject policies (which defendants deny), there is no coverage under the 22 subject policies for the claims asserted as a result of exclusions contained in or incorporated by 23 reference, expressly or impliedly, in such policies, including but not limited to, the policies'4 exclusion tor damages caused by pollution and pollutants, water damage and/or negligent work. 25 AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 26 COMPLAINT, these answering defendants allege that plaintiffs claims for relief are barred by the 27 doctrines of waiver and/or estoppel. 28 COOOIAOTOTul( KA A OA ~ FekTII Answer to Compla(nt, kd d C I CA '14()66 Case Number CIV 489065 2. 46(l (6 dt AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 2 COMPLAINT, these answering defendants have insufficient knowledge or information on which 3 to form a belief as to whether additional affirmative defenses are available. Defendants reserve the 4 right to assert additional affirmative defenses as appropriate. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 6 COMPLAINT, these answering defendants allege that plaintiff has not performed all terms, 7 conditions and covenants of the subject insurance policy and therefore no cause of action based upon 8 the policy will lie against these defendants. AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 10 COMPLAINT, these answering defendants allege that defendants'uties to perform, ifany, were 11 discharged and/or excused and the complaint is barred because plaintiffmaterially failed to perform 12 his promises and/or conditions precedent to any duty of defendants. 13 AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 14 COMPLAINT, these answering defendants allege that plaintiffwill be unjustly enriched if he is 15 awarded the equitable relief requested in the complaint. 16 AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO TI-IE 17 COMPLAINT, these answering defendants allege plaintiff's complaint, and each cause of action 18 thereof, isbarred by the applicable period of limitations including, but not limited to, limitations 19 codified in Code of Civil Procedure () 337, 338, 339 and 343. 20 WHEREFORE, defendants pray that plaintifftake nothing against said defendants by his 21 said complaint; that defendants have judgment for their costs of suit herein incurred, together with 22 such other and further relief as may be just and proper. 23 24 Dated: February 22, 2010 CODDINGTON, HICK & DANFORTH 25 By: 26 Richard S. Baum Attorneys for Defendants 27 FARMERS INSURANCE EXCHANGE and TRUCK INSURANCE EXCHANGE 28 (oeoleelow Hicks e oe ~ res lli Answer to Complaint, Case Number CIV 489066 e Oiii PROOF OF SERVICE (C.C P 1011, fair) 1013, 1013a, 2015.5) 3 I, the undersigned, declare that I am employed in the County of San Mateo, State of 4 Califorma. I am over the age of eighteen (18) years and not a party to the within action. My business 5 address is 555 Twm Dolphin Drive, Suite 300, Redwood City, California 94065. 6 I am readily familiar with my employer's business practice for collection and processing of 7 correspondence and documents for mailing with the United States Postal Service, mailing via 8 overnight delivery, transmission by facsimile machine, and delivery by hand. 9 On February 22, 2010, I served a copy of each of the documents listed below by placing said 10 copies for processing as indicated herein. Defendant Farmers Insurance Exchange and 12 Defendant Truck Insurance Exchange Answer to Complaint 13 X II.S. MAIL:Thecorrespondence or documents were placed in sealed, labeled envelopes with 14 postage thereon fully prepaid on the above date placed for collection and mailing at my place of business to be deposited with the U.S. Postal Service at Redwood City, California on this 15 same date in the ordinary course ofbusmess. 16 ***SEE ATTACHED SERVICE LIST*** 17 OVERNIGHT DELIVERY:The correspondence or documents were placed in sealed, labeled 18 packaging for overnight delivery with 0 FEDERAL EXPRESS, with all charges to be paid by my employer on the above date for collection and mailing at my place of business to be 19 deposited in a facility regularly maintained by FedEx, the overnight delivery carrier, or delivered to a courier or driver authorized by FedEx, the overnight delivery carrier, to receive 20 such packages, on this date in the ordinary course of business. 21 HAND DELIVERY The correspondence or documents were placed in sealed, labeled 22 envelopes and served by personal delivery to the party or attorney indicated herein, or ifupon attorney, by leaving the labeled envelopes with a receptionist or other person having charge 23 of the attorney's office I, Rebecca C. Valdivia, caused One Legal, LLC to "hand deliver" the above-referenced document(s) to counsel as listed on our Service List. 24 FACSIMILETRANSMISSION: The correspondence or documents were placed for transmis- 25 sion from (650) 592-5027 at Redwood City, California, and were transmitted to a facsimile machine maintained by the party or attorney to be served at the facsimile machine telephone 26 number provided by said party or attorney, on this same date in the ordinary course of busi- ness. The transmission was reported as complete and without error, and a record of the 27 transmission was properly issued by the transmitting facsimile machine. 28 I PERSONS OR PARTIES SERVED: Gregg S. Garrison, Esq Attorney for Plaintiff Garrison Law Corporation 1525 State Street, Suite 100 Santa Barbara, CA 93101 Telephone (805)957-1700 Herman I.Kali'en, Esq. Attorney for Plaintiff Kalfen Law Corporation I Embarcadero Center Suite 500 San Francisco, CA 94111 Telephone (415)315-1710 Facsimile (415) 433-5994 11 12 13 I certify (or declare) under penalty of perjury under the laws of the State of California that the 14 foregoing is true and correct and that this declaration was executed on February 22, 2010. 15 16 17 Rebecca C. Valdtvia 18 Court San Mateo County Superior Court Action No Cl V 489065 Case Name Chang, Michael v Farmers 21 22 23 24 25 26 27 28