On August 31, 2006 a
Complaint,Petition
was filed
involving a dispute between
Caire Medical Systems, Inc.,
Psm Magna Carta Insurance Companies,
and
Apria Healthcare, Inc.,
Caire Medical Systems, Inc.,
for Unlimited Civil
in the District Court of Alameda County.
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* ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address): FOR Coun
R
|William Westover (Bar # 95575)
WESTOVER LAW OFFICES, P.C.
3140 FOURTH AVENUE
SAN DIEGO, CA 92103
TetePHONE NO: (800) 274-1910 — FAKNo. (Optionay: (619) 241-7791
E-MAIL ADDRESS (Optiona): bill westover@westoverlaw.com F [
ATTORNEY FOR (Name):
NAME OF COURT: SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
STREET ADDRESS: 1225 Fallon Street ALAMEDA COUN TY
MAILING ADDRESS:
city AND zip CODE: Oakland 94612 AUG 3 1 2006
BRANCH NAME: Central CLERK OF THE SUPERIOR COURT
PLAINTIFF: PSM/MAGNA CARTA INSURANCE COMPANIES _|8y
Deputy
DEFENDANT: APRIA HEALTHCARE and CAIRE MEDICAL aLe
[_] Does 1 To 10
COMPLAINT—Personal Injury, Property Damage, Wrongful Death
[~~] AMENDED (Number):
Type (check all that apply):
[_]moTorvenicLte [_] OTHER (specify):
PropertyDamage [|__| Wrongful Death
[| Personal Injury [___] Other Damages (specify):
Jurisdiction (check all that apply):
[__] ACTION IS A LIMITED CIVIL CASE CASE NUMBER:
Amountdemanded [_] does not exceed $10,000
[| exceeds $10,000, but does not exceed $25,000 TT a
x_| ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) “ : : :
ACTION IS RECLASSIFIED by this amended complaint REO62868 290
[__] from limited to unlimited
[| from unlimited to limited
1. PLAINTIFF (name): PSM/MAGNA CARTA INSURANCE COMPANIES
alleaes causes of action against DEFENDANT (name): APRTA HEALTHCARE and CAIRE MEDICAL
2. This pleading, including attachments and exhibits, consists of the following number of pages:
3. Each plaintiff named above is a competent adult
a. except plaintiff (name):
(1) a corporation qualified to do business in California
(2)_] an unincorporated entity (describe):
(3) _] a public entity (describe):
(4)[-_] aminor [[_] an adult
(a)[__] for whom a guardian or conservator of the estate or a guardian ad litem has been appointed
(b)[-_] other (specify):
(5) [-_] other (specify):
b. [__] except plaintiff (name):
(1)[-_] a corporation qualified to do business in California
(2)[__] an unincorporated entity (describe):
(3)[__] a public entity (describe):
(4)[__| aminor [[_] anadutt
(a) _] for whom a guardian or conservator of the estate or a guardian ad litem has been appointed
(b)[_] other (specify):
(5) [_] other (specify):
[1] Information about additional plaintiffs who are not competent adults is shown in Complaint—Attachment 3.
Page 1 of 3
Form aidApproved for Optional U __. ; 7
Gonchar itera COMPLAINT—Personal Injury, Property Code of Civil Procedure, § 425.12
982.1(1) [Rev. July 1, 2002] Damage, Wrongful Death LexisNexis Automated California Judicial Council Forms
nic }
~~
* SHORT TITLE: CASE NUMBER:
| PSM V. APRIA HEALTHCARE
4. [_] Plaintiff (name):
is doing business under the fictitious name (specify):
ana has complied with the fictitious business name laws.
§. Each defendant named above is a natural person
a. except defendant (name): APRIA HEALTHCAREc. except defendant (name): CAIRE MEDICAL
(1) [-"] abusiness organization, form unknown (1) [-] abusiness organization, form unknown
(2) a corporation (2) a corporation
(3) [_] an unincorporated entity (describe): (3) [_] an unincorporated entity (describe):
(4) [ja public entity (describe): (4) [__] a public entity (describe):
(5)__] other (specify): (5) [_] other (specify):
b. LJ except defendant (name): d. C_] except defendant (name):
(1) [| abusiness organization, form unknown (1) [___] abusiness organization, form unknown
(2)[[_] acorporation (2)[-_] acorporation
(3)[__] an unincorporated entity (describe): (3) [1 an unincorporated entity (describe):
(4) Ca public entity (describe): (4)[[_] a public entity (describe):
(5) _] other (specify): (5)__] other (specify):
[_-] Information about additional defendants who are not natural persons is contained in Complaint—Attachment 5.
6. The true names and capacities of defendants sued as Does are unknown to plaintiff.
7. [_] Defendants who are joined pursuant to Cade of Civil Procedure section 382 are (names):
8. This court is the proper court because
a. at least one defendant now resides in its jurisdictional area.
b. [__] the principal place of business of a defendant corporation or unincorporated association is in its jurisdictional area.
C. injury to person or damage to personal property occurred in its jurisdictional area.
d. [__] other (specify):
9. [_] Plaintiff is required to comply with a claims statute, and
a. C_] plaintiff has complied with applicable claims statutes, or
b. L__1 plaintiff is excused from complying because (specify):
982.1(1) [Rev. July 1, 2002] COMPLAINT—Personal Injury, Property Damage, Wrongful Death Page 203
LexisNexis” Automated California Judicial Council Forms
MF ’
~~
SHORT TITLE: CASE NUMBER:
|PSM V. APRIA HEALTHCARE
10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more
causes of action attached):
. ] Motor Vehicle
oD
. General Negligence
. (J Intentional Tort
. Products Liability
oan
[_] Premises Liability
f. [_] Other (specify):
11. Plaintiffhas suffered
a. L_] wage loss
b. [__] toss of use of property
C. hospital and medical expenses
d. general damage
e. property damage
F loss of earning capacity
g. [1] other damage (specify):
12. [__] The damages claimed for wrongful death and the relationships of plaintiff to the deceased are
a. L__] listed in Complaint—Attachment 12.
b. [~] as follows:
13. The relief sought in this complaint is within the jurisdiction of this court.
14. PLAINTIFF PRAYS for judgment for costs of suit; for such relief as is fair, just, and equitable; and for
a. (1) compensatory damages
(2) [__] punitive damages
b. The amount of damages is (you must check (1) in cases for personal injury or wrongful death):
(1) according to proof
(2) [__] in the amount of: $
15. C_] The paragraphs of this complaint alleged on information and belief are as follows (specify paragraph numbers):
Date: August 4, 2006
William Westover >
(TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY)
982.1(1) fRev. July 4, 2002] COMPLAINT—Personal Injury, Property Damage, Wrongful Death Page
3 of 3
LexisNexis“ Automated California Judicial Council Forms
ro ' y
SHORTTITLE: : CASE NUMBER:
PSM _V. APRIA HEALTHCARE
il
(number)
CAUSE OF ACTION-—General Negligence Page
4
ATTACHMENTTO [xIComplaint ((_]Cross-Gomplaint
, wed a separaie Cause OF acuon rorm for eacn Cause OF action.)
Does 1 to__10
was the legal (proximate) cause of damages to piaintin. by tne tonowing acIs or omissions to aci, Geiendan
negligently caused the damage to plaintiff
on (date): February 11. 2005
at (place): 2257 Pacific Avenue, Alameda, CA
(description of reasons for liability).
negligently designed, manufactured, sold, leased, maintained and serviced an oxygen cylinder so as to
cause a fire
Form Approved by the |
Judicial Council of California
Sree B28) CAUSE OF ACTION — General Negligence COP 425.12
Judicial Council Forms for HotDocs ™
Optional Form
moron t
! SHORT TITLE: | CASE HUMBER,
PSM V.APRLA HEALTHCARE
5 a mm - ar £
= oe RES tee we ow nee a De SSO WRU E EEL
RECURS rayy ZY
ATTAAUMONTTS PE] tee (Op tee ete
_:3 28488 OF action form Tor eacn cause or acuon.)
Pet es ater es CAR TL Pikeee PREM E SES
ED COTIVER f& PME
Prod.L-i. On or about (date): February 11, 2005 plaintiff was inured py the tollowine oroducy
Prad.L-2. Each of the defendants knew the product would be purchased and used without inspection for defects.
Mee ent cee ARFerthis uchan
fines ft left tha emmtral af aschkh 3 defendent
Shah. The
ine nrocuect
BYOCuUe: at
St the
iis time
toa of inturs
OF IY
Wes nema
used in the manner intended hy the defendants.
Used In a Mannie at Was (eaScnably torSsccavic Fy GSISiidarils ad Wivdiviy @ oUVelcal Ua
readily apparent. Adequate warnings of the danger were not given.
Prad.L-3. Plaintiffwas a
[_} surchaser of the product. [X] user of the product.
[_] bystander to the use of the product. [7] other (specify):
PLAINTIFF'S INJURY WAS THE LEGAL (PROXIMATE) RESULT OF THE FOLLOWING:
Prod.L-4. Count One—Strict liability of the following defendants who ;
a. manufactured or assembled the product (names): APRIA HEALTHCARE
{tees to
b. desianed and manufactured component parts supplied to the manufacturer (names):
APRIA HEALTHCARE
{] Does to
c. sold the product to the public (names): APRIA HEALTHCARE and CAIRE MEDICAL.
[_] Does to
Prod.L-5. [X] CountTwo—Nealigence of the following defendants who owed a duty to plaintiff (names):
APRIA HEALTHCARE and CAIRE MEDICAL
[1 Does to
Prod.L-6. Count Three—Breach of warranty by the following defendants (names): APRIA HEALTHCARE and
CAIRE MEDICAL
(1 Does to
a. [X1 who breached an implied warranty
b. [] who breached an express warranty which was
[-] written [_Joral
Prod.L-7. [[_] The defendants who are liable to plaintiffs for other reasons and the reasons for the liability are
[-1] listedin Attachment—Prod.L-7 [7] as follows:
Form Approved by the
Judiciat Council of Califomia
sxectve January 7, 1982 ao neces.
eerie 982.106) ™ CAUSE OF ACTION—Products Liability CCP 425.12
Judicial Council Farms for HotDocs
Qotional Form
Document Filed Date
August 31, 2006
Case Filing Date
August 31, 2006
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i, oo SS S o TA*5049566 aan ~ * ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address): FOR Coun R |William Westover (Bar # 95575) WESTOVER LAW OFFICES, P.C. 3140 FOURTH AVENUE SAN DIEGO, CA 92103 TetePHONE NO: (800) 274-1910 — FAKNo. (Optionay: (619) 241-7791 E-MAIL ADDRESS (Optiona): bill westover@westoverlaw.com F [ ATTORNEY FOR (Name): NAME OF COURT: SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA STREET ADDRESS: 1225 Fallon Street ALAMEDA COUN TY MAILING ADDRESS: city AND zip CODE: Oakland 94612 AUG 3 1 2006 BRANCH NAME: Central CLERK OF THE SUPERIOR COURT PLAINTIFF: PSM/MAGNA CARTA INSURANCE COMPANIES _|8y Deputy DEFENDANT: APRIA HEALTHCARE and CAIRE MEDICAL aLe [_] Does 1 To 10 COMPLAINT—Personal Injury, Property Damage, Wrongful Death [~~] AMENDED (Number): Type (check all that apply): [_]moTorvenicLte [_] OTHER (specify): PropertyDamage [|__| Wrongful Death [| Personal Injury [___] Other Damages (specify): Jurisdiction (check all that apply): [__] ACTION IS A LIMITED CIVIL CASE CASE NUMBER: Amountdemanded [_] does not exceed $10,000 [| exceeds $10,000, but does not exceed $25,000 TT a x_| ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) “ : : : ACTION IS RECLASSIFIED by this amended complaint REO62868 290 [__] from limited to unlimited [| from unlimited to limited 1. PLAINTIFF (name): PSM/MAGNA CARTA INSURANCE COMPANIES alleaes causes of action against DEFENDANT (name): APRTA HEALTHCARE and CAIRE MEDICAL 2. This pleading, including attachments and exhibits, consists of the following number of pages: 3. Each plaintiff named above is a competent adult a. except plaintiff (name): (1) a corporation qualified to do business in California (2)_] an unincorporated entity (describe): (3) _] a public entity (describe): (4)[-_] aminor [[_] an adult (a)[__] for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b)[-_] other (specify): (5) [-_] other (specify): b. [__] except plaintiff (name): (1)[-_] a corporation qualified to do business in California (2)[__] an unincorporated entity (describe): (3)[__] a public entity (describe): (4)[__| aminor [[_] anadutt (a) _] for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b)[_] other (specify): (5) [_] other (specify): [1] Information about additional plaintiffs who are not competent adults is shown in Complaint—Attachment 3. Page 1 of 3 Form aidApproved for Optional U __. ; 7 Gonchar itera COMPLAINT—Personal Injury, Property Code of Civil Procedure, § 425.12 982.1(1) [Rev. July 1, 2002] Damage, Wrongful Death LexisNexis Automated California Judicial Council Forms nic } ~~ * SHORT TITLE: CASE NUMBER: | PSM V. APRIA HEALTHCARE 4. [_] Plaintiff (name): is doing business under the fictitious name (specify): ana has complied with the fictitious business name laws. §. Each defendant named above is a natural person a. except defendant (name): APRIA HEALTHCAREc. except defendant (name): CAIRE MEDICAL (1) [-"] abusiness organization, form unknown (1) [-] abusiness organization, form unknown (2) a corporation (2) a corporation (3) [_] an unincorporated entity (describe): (3) [_] an unincorporated entity (describe): (4) [ja public entity (describe): (4) [__] a public entity (describe): (5)__] other (specify): (5) [_] other (specify): b. LJ except defendant (name): d. C_] except defendant (name): (1) [| abusiness organization, form unknown (1) [___] abusiness organization, form unknown (2)[[_] acorporation (2)[-_] acorporation (3)[__] an unincorporated entity (describe): (3) [1 an unincorporated entity (describe): (4) Ca public entity (describe): (4)[[_] a public entity (describe): (5) _] other (specify): (5)__] other (specify): [_-] Information about additional defendants who are not natural persons is contained in Complaint—Attachment 5. 6. The true names and capacities of defendants sued as Does are unknown to plaintiff. 7. [_] Defendants who are joined pursuant to Cade of Civil Procedure section 382 are (names): 8. This court is the proper court because a. at least one defendant now resides in its jurisdictional area. b. [__] the principal place of business of a defendant corporation or unincorporated association is in its jurisdictional area. C. injury to person or damage to personal property occurred in its jurisdictional area. d. [__] other (specify): 9. [_] Plaintiff is required to comply with a claims statute, and a. C_] plaintiff has complied with applicable claims statutes, or b. L__1 plaintiff is excused from complying because (specify): 982.1(1) [Rev. July 1, 2002] COMPLAINT—Personal Injury, Property Damage, Wrongful Death Page 203 LexisNexis” Automated California Judicial Council Forms MF ’ ~~ SHORT TITLE: CASE NUMBER: |PSM V. APRIA HEALTHCARE 10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached): . ] Motor Vehicle oD . General Negligence . (J Intentional Tort . Products Liability oan [_] Premises Liability f. [_] Other (specify): 11. Plaintiffhas suffered a. L_] wage loss b. [__] toss of use of property C. hospital and medical expenses d. general damage e. property damage F loss of earning capacity g. [1] other damage (specify): 12. [__] The damages claimed for wrongful death and the relationships of plaintiff to the deceased are a. L__] listed in Complaint—Attachment 12. b. [~] as follows: 13. The relief sought in this complaint is within the jurisdiction of this court. 14. PLAINTIFF PRAYS for judgment for costs of suit; for such relief as is fair, just, and equitable; and for a. (1) compensatory damages (2) [__] punitive damages b. The amount of damages is (you must check (1) in cases for personal injury or wrongful death): (1) according to proof (2) [__] in the amount of: $ 15. C_] The paragraphs of this complaint alleged on information and belief are as follows (specify paragraph numbers): Date: August 4, 2006 William Westover > (TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY) 982.1(1) fRev. July 4, 2002] COMPLAINT—Personal Injury, Property Damage, Wrongful Death Page 3 of 3 LexisNexis“ Automated California Judicial Council Forms ro ' y SHORTTITLE: : CASE NUMBER: PSM _V. APRIA HEALTHCARE il (number) CAUSE OF ACTION-—General Negligence Page 4 ATTACHMENTTO [xIComplaint ((_]Cross-Gomplaint , wed a separaie Cause OF acuon rorm for eacn Cause OF action.) Does 1 to__10 was the legal (proximate) cause of damages to piaintin. by tne tonowing acIs or omissions to aci, Geiendan negligently caused the damage to plaintiff on (date): February 11. 2005 at (place): 2257 Pacific Avenue, Alameda, CA (description of reasons for liability). negligently designed, manufactured, sold, leased, maintained and serviced an oxygen cylinder so as to cause a fire Form Approved by the | Judicial Council of California Sree B28) CAUSE OF ACTION — General Negligence COP 425.12 Judicial Council Forms for HotDocs ™ Optional Form moron t ! SHORT TITLE: | CASE HUMBER, PSM V.APRLA HEALTHCARE 5 a mm - ar £ = oe RES tee we ow nee a De SSO WRU E EEL RECURS rayy ZY ATTAAUMONTTS PE] tee (Op tee ete _:3 28488 OF action form Tor eacn cause or acuon.) Pet es ater es CAR TL Pikeee PREM E SES ED COTIVER f& PME Prod.L-i. On or about (date): February 11, 2005 plaintiff was inured py the tollowine oroducy Prad.L-2. Each of the defendants knew the product would be purchased and used without inspection for defects. Mee ent cee ARFerthis uchan fines ft left tha emmtral af aschkh 3 defendent Shah. The ine nrocuect BYOCuUe: at St the iis time toa of inturs OF IY Wes nema used in the manner intended hy the defendants. Used In a Mannie at Was (eaScnably torSsccavic Fy GSISiidarils ad Wivdiviy @ oUVelcal Ua readily apparent. Adequate warnings of the danger were not given. Prad.L-3. Plaintiffwas a [_} surchaser of the product. [X] user of the product. [_] bystander to the use of the product. [7] other (specify): PLAINTIFF'S INJURY WAS THE LEGAL (PROXIMATE) RESULT OF THE FOLLOWING: Prod.L-4. Count One—Strict liability of the following defendants who ; a. manufactured or assembled the product (names): APRIA HEALTHCARE {tees to b. desianed and manufactured component parts supplied to the manufacturer (names): APRIA HEALTHCARE {] Does to c. sold the product to the public (names): APRIA HEALTHCARE and CAIRE MEDICAL. [_] Does to Prod.L-5. [X] CountTwo—Nealigence of the following defendants who owed a duty to plaintiff (names): APRIA HEALTHCARE and CAIRE MEDICAL [1 Does to Prod.L-6. Count Three—Breach of warranty by the following defendants (names): APRIA HEALTHCARE and CAIRE MEDICAL (1 Does to a. [X1 who breached an implied warranty b. [] who breached an express warranty which was [-] written [_Joral Prod.L-7. [[_] The defendants who are liable to plaintiffs for other reasons and the reasons for the liability are [-1] listedin Attachment—Prod.L-7 [7] as follows: Form Approved by the Judiciat Council of Califomia sxectve January 7, 1982 ao neces. eerie 982.106) ™ CAUSE OF ACTION—Products Liability CCP 425.12 Judicial Council Farms for HotDocs Qotional Form