Preview
y ASHLEY E. BAUERLE
CSB No. 271119
COZEN O'CONNOR
501 West Broadway, Suite 1610
San Diego, CA 92101
Telephone: 800.782.3366
Facsimile: 619.234.7831
Email: abauerle@cozen.com
Attorney for Plaintiff-in-Intervention
NATIONWIDE MUTUAL INSURANCE
COMPANY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SAN MATEO
11 BRYAN TRUJILLO and CINDY TRUJILLO, Case No.: 18CIV01901
12 Plaintiffs, PROPOSED ORDER GRANTING
MOTION FOR LEAVE TO INTERVENE
13 vs.
14 STEPHEN MAGEE and SAC AERO FLYING DATE: February 1, 2019
CLUB, INC:, AND DOES 1 — 50, TIME: 9:00 a.m.
15 DEPT: Law and Motion
Defendants.
16
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17 NATIONWIDE MUTUAL INSURANCE ---
: 8-0-0180 ~
COMPANY,
18 Proposed Order Received
1591181
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Plaintiff-in-Intervention,
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20 STEPHEN MAGEE ani AC
CLUB, INC., AND DOES 1 - 50,
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Defendants.
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23 IT IS HEREBY ORDERED THAT Nationwide Mutual Insurance Company is granted leave
24 to intervene as a Plaintiff in the action known as Bryan Trujillo and Cindy Trujillo v. Stephen
25 Magee, et al., Case No. 18CIV01901.
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PROPOSED ORDER GRANTING MOTION FOR LEAVE TO INTERVENE
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IT IS HEREBY FURTHER ORDERED THAT the Complaint-in-Intervention attached as
Exhibit “A” to the Proposed Order Granting Motion for Leave to Intervene shall be filed within 15
days of entry of this Order.
DATED: By:
JUDGE OF THE SUPERIOR COURT
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PROPOSED ORDER GRANTING MOTION FOR LEAVE TO INTERVENE
ASHLEY E. BAUERLE
CA Bar No. 271119
COZEN O'CONNOR,
501 West Broadway, Suite 1610
San Diego, CA 92101
Telephone: 800.782.3366
Facsimile: 619.234.7831
Email: abauerle@cozen.com
Attorney for Plaintiff-in-Intervention
NATIONWIDE MUTUAL INSURANCE
COMPANY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
10 BRYAN TRUJILLO and CINDY TRUJILLO, Case No.: 18CIV01901
11 Plaintiffs, COMPLAINT IN INTERVENTION
12 Vv.
13 STEPHEN MAGEE, SAC AERO FLYING
Sz CLUB, INC. AND DOES 1-50,
14
Ree Defendants.
Ba 15
16 NATIONWIDE MUTUAL INSURANCE
COMPANY,
17
Plaintiff-in-Intervention,
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Vv,
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STEPHEN MAGEE; SAC AERO FLYING
20 CLUB, INC.; AND DOES 1-20,
21 Defendants.
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23 Plaintiff-in-Intervention, Nationwide Mutual Insurance Company (hereinafter “Intervenor”
24 or “Nationwide”), alleges as follows:
25 PARTIES
26 1 Intervenor is, and at all times herein mentioned was, a corporation authorized to
27 transact and conduct business in the State of California as an insurance carrier.
28 Mil
1 -
COMPLAINT IN INTERVENTION
2. Upon information and belief, Defendant SAC AERO FLYING CLUB, INC. and
DOES ONE through TWENTY, inclusive, and each of them, were and are the owners of a certain
1979 CESSNA 172N, Registration Number N6610D.
3 At all times relevant herein, said aircraft was piloted by defendant STEPHEN
MAGEE.
4. The true names, involvement, or capacities, whether individual, corporate,
governmental or associate, of the Defendants named herein as a DOE are unknown to Intervenor
who therefore sues said Defendants by such fictitious names. Intervenor prays for leave to amend
the Complaint to show said Defendants’ true names, involvement and capacities when the same
10 finally have been determined.
11 5 Intervenor is informed and believes, and upon such information and belief alleges
12 that each of the Defendants designated herein as DOES 1 through 20, inclusive, negligently or
ge 13 otherwise are legally responsible in some manner for the events and happenings herein referred to,
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14 and negligently or otherwise caused injury and damages to Intervenor as is. herein alleged.
Bad
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BS 15 6. At all times herein mentioned, each and every Defendant herein was the agent,
16 servant, employee, or partner of each of the other, and each was acting within the course and scope
17 of his agency, service, and employment.
18 7 At all times relevant herein, Intervenor’s insureds, Plaintiffs BRYAN TRUJILLO
19 and CINDY TRUJILLO (hereinafter “Plaintiffs” or “Insureds”), were the residents of the County
20 of San Mateo, State of California and owned real property located at 1065 Park Way, Moss Beach,
21 California (hereinafter “Trujillo Residence”).
22 8 At all times relevant herein, said CESSNA 172N, N6610D, was operated,
23 maintained, leased, rented, and/or otherwise legally controlled by SAC AERO FLYING CLUB,
24 INC., STEPHEN MAGEE, DOES ONE through TWENTY, inclusive, and each of them. ‘
25 9 Atall times relevant herein, Intervenor provided insurance coverage to the Plaintiffs
26 pursuant to the policies of insurance, by which Intervenor insured against a portion of the loss and
27 damage caused by the CESSNA 172N, N6610D when it collided with the Trujillo Residence,
28 MIL
2
COMPLAINT IN INTERVENTION
causing damages including, but not limited to, damage to the Trujillo Residence, damage to
personal property and additional living expenses.
10. Pursuant to said insurance policies, and a claim for benefits made thereunder,
Intervenor paid and is paying to or on behalf of its Insureds a portion of the damages to the Trujillo
Residence, an amount in excess of $280,000, an amount to be proven at trial.
i. Intervenor is subrogated to the rights of its insured in this lawsuit for the amounts
paid to Intervenor’s Insureds, BRYAN AND CINDY TRUJILLO.
FIRST CAUSE OF ACTION FOR NEGLIGENCE
(Against Defendant Stephen Magee and DOES 1 — 10)
10 12. Intervenors incorporate by reference each and all of the allegations contained in
1 paragraphs 1-11 of this complaint in intervention as though alleged in full herein.
12 13. Intervenor’s Insureds, BRYAN AND CINDY TRUJILLO, are individuals who own
Ses
Zee 13 residential property located at 1065 Park Way, Moss Beach, California.
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ZzBas 14 14. On November 18, 2016, defendant STEPHEN MAGEE, and DOES ONE through
Re
15 TEN, inclusive, so negligently, recklessly, carelessly, and unlawfully piloted, controlled, operated,
16 and maintained said Cessna aircraft that it was caused to, and did, crash on to Intervenor’s Insureds’
17 property located at 1065 Park Way, Moss Beach, California, during its approach to Half Moon Bay
18 Airport.
19 15. As a proximate result of the negligence and carelessness of defendants, and each of
20 them, Intervenor’s Insureds were caused to suffer harm to their real property, including but not
21 limited to the spill, leak, releases, emissions, and/or migration of hazardous gases, chemicals,
22 pollutants, and contaminants, including gasoline, toluene, and benzene on the Insureds’ property.
23 16. At all times relevant herein, Intervenor provided insurance coverage to the Plaintiffs
24 pursuant to the policies of insurance, by which Intervenor insured against a portion of the loss and
25 damage caused by the CESSNA 172N, N6610D when it collided with the Trujillo Residence,
26 causing damages including, but not limited to, damage to the Trujillo Residence, damage to
27 personal property and additional living expenses.
28 Mit
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COMPLAINT IN INTERVENTION
17. Pursuant to said insurance policies, and a claim for benefits made thereunder,
Intervenor paid and is paying to or on behalf of its Insureds a portion of the damages to the Trujillo
Residence, an amount in excess of $280,000, an amount to be proven at trial.
18. Intervenor is subrogated to the rights of its insureds in this lawsuit for the amounts
paid to Intervenor’s Insureds, BRYAN AND. CINDY TRUJILLO.
SECOND CAUSE OF ACTION FOR TRESPASS
(Against Defendant Stephen Magee)
19, Intervenor incorporates by reference each and all of the allegations contained in
paragraphs 1 8 of this complaint in intervention as though alleged in full herein.
10 20. In the piloting, control, operation and maintenance of the said Cessna aircraft,
il defendant STEPHEN MAGEE intentionally, willfully, and/or negligently caused the said Cessna
12 aircraft to enter the property of Intervenor’s Insureds.
13 21, In the piloting, control, operation and maintenance of the said Cessna aircraft,
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14 defendant intentionally, recklessly, willfully, and/or negligently caused dangerous levels of noxious
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og 15 odors, hazardous gases, chemicals pollutants, and contaminants to‘enter the Insured’s property by
16 spills, leaks, releases, emissions, and/or migration from the aircraft, which was crashed onto their
17 property.
18 22. Intervenor’s Insureds did not give permission for this entry.
19 23. Intervenor’s Insureds suffered harm from defendant’s conduct, including, but not
20 limited to, polluted land and air in and on the Insured’s property.
21 24. Defendant’s actions were a substantial factor in causing the harm to the Insureds as
22 there were no other independent causes of trespass onto the Insured’s property.
23 25. Defendant’s actions resulted in the pollution of air and deprived Insureds of their
24 ability to live in the home free of health risks. The Intervenor’s Insureds have suffered and continue
25 to suffer the loss of the quiet use and enjoyment of their property in addition to all of their general
26 damages in an amount to set forth according to proof at trial.
27 26. At all times relevant herein, Intervenor provided insurance coverage to the Plaintiffs
28 pursuant to the policies of insurance, by which Intervenor insured against a portion of the loss and
4
COMPLAINT IN INTERVENTION
damage caused by the CESSNA 172N, N6610D when it collided with the Trujillo Residence,
causing damages including, but not limited to, damage to the Trujillo Residence, damage to
personal property and additional living expenses.
27. Pursuant to said insurance policies, and a claim for benefits made thereunder,
Intervenor paid and is paying to or on behalf of its Insureds a portion of the damages to the Trujillo
Residence, an amount in excess of $280,000, an amount to be proven at trial.
28. Intervenor is subrogated to the rights of its insured in this lawsuit for the amounts
paid to Intervenor’s Insureds, BRYAN AND CINDY TRUJILLO.
THIRD CAUSE OF ACTION FOR PRIVATE NUISANCE
10 (Against Defendant STEPHEN MAGEE)
11 / 29. Intervenor incorporates by reference each and all of the allegations contained in
12 paragraphs 1-28 of this complaint in intervention as though alleged in full herein.
Es 13 30. Defendant STEPHEN MAGEE failed to exercise reasonable care in the piloting,
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14 control, operation, and maintenance of the said Cessna aircraft and crashed the aircraft onto the
B4 15 Insureds’ property, which resulted in the spill, leak, release, and/or migration of hazardous gases,
16 chemicals, pollutants, and contaminants on the Insureds’ property which was harmful to health,
17 offensive to the senses and obstructed the Insureds’ free use of their property.
18 31, The spill, leak, emissions, and/or migration of hazardous gases, chemicals,
19 pollutants, and contaminants substantially interfered with the Insureds’ comfortable enjoyment of,
20 their life and property.
21 32. Intervenor’s Insureds did not consent to the defendant’s conduct.
22 33. An ordinary person of: reasonable sensibility would reasonably be annoyed and/or
23 disturbed by the conditions created by defendant.
24 34. Defendant’s conduct resulting in the crash of the aircraft, and the spill, leak,
25 emissions and/or migration of hazardous gases, chemicals, pollutants, and contaminants was a
26 substantial factor in causing the Insureds harm.
27 35. The seriousness of the harms resulting from defendant’s conduct outweighs the
28 public benefit, if any, of defendant’s flying activities because the spill, leak, emissions, and/or
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COMPLAINT IN INTERVENTION
migrations of hazardous gases, “chemicals, pollutants, and contaminants seriously deprive the
Insureds of peaceful enjoyment of their home and potentially pollutes the air and water of the
surrounding properties and neighborhoods.
36. At all times relevant herein, Intervenor provided insurance coverage to the Plaintiffs
pursuant to the policies of insurance, by which Intervenor insured against a portion of the loss and
damage caused by the CESSNA 172N, N6610D when it collided with the Trujillo Residence,
causing damages including, but not limited to, damage to the Trujillo Residence, damage to
personal property and additional living expenses.
37. Pursuant to said insurance policies, and a claim for benefits made thereunder,
10 Intervenor paid and is paying to or on behalf of its Insureds a portion of the damages to the Trujillo
11 Residence, an amount in excess of $280,000, an amount to be proven at trial.
12 38. Intervenor is subrogated to the rights of its insured in this lawsuit for the amounts
gee 13 paid to Intervenor’s Insureds, BRYAN AND CINDY TRUJILLO.
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14 FOURTH CAUSE OF ACTION FOR OWNER LIABILITY FOR PERMISSIVE USE
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15 (Against defendant SAC AERO FLYING CLUB, INC. and DOES 11 through 20)
16 39. Intervenors incorporate by this reference each and all of the allegations contained in
17 paragraphs 1- 38 of this complaint in intervention as though alleged in full herein.
18 40. On November 18, 2016, defendant STEPHEN MAGEE and DOES 1 through 10,
19 and each of them, so carelessly and negligently piloted, controlled, operated, and maintained the
20 said Cessna aircraft so as to cause the Insureds harm and damages as herein set forth.
21 41. Intervenors are informed and believe and based on such information and belief!
22 allege that defendant SAC AERO FLYING CLUB, INC. and DOES 11 through 20 owned the
23 certain 1979 Cessna 172N, N6610D operated by defendant STEPHEN MAGEE.
24 42. Plaintiffs are informed and believe and based on such information and belief allege
25 that defendant SAC AERO FLYING CLUB, INC. and DOES 11 through 20 gave permission to
26 defendant STEPHEN MAGEE to use the certain Cessna aircraft.
27 43. As a proximate result of the negligence and carelessness of defendants, and each of
28 them, the Insureds were caused to suffer harm to their real property, including but not limited to
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COMPLAINT IN INTERVENTION
the spill, leak, releases, emissions and/or migration ofhazardous gases, chemicals, pollutants, and
contaminants, including gasoline, toluene, and benzene on the Insureds’ property.
44, Atall times relevant herein, Intervenor provided insurance coverage to the Plaintiffs
pursuant to the policies of insurance, by which Intervenor insured against a portion of the-loss and
damage caused by the CESSNA 172N, N6610D when it collided with the Trujillo Residence,
causing damages including, but not limited to, damage to the Trujillo Residence, damage to
personal property and additional living expenses.
45. Pursuant to said insurance policies, and a claim for benefits made thereunder,
Intervenor paid and is paying to or on behalf of its Insureds a portion of the damages to the Trujillo
10 Residence, an amount in excess of $280,000, an amount to be proven at trial.
11 46. Intervenor is subrogated to the rights of its insured in this lawsuit for the amounts
12 paid to Intervenor’s Insureds, BRYAN AND CINDY TRUJILLO.
2s 13 WHEREFORE, Intervenor prays for judgment as follows:
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14 1 General damages according to proof;
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Ba 15 2. Special camages according to proof;
16 3 Interest on the principal amount of its damages as permitted by law; and
17 4 For such other and further relief as the Court may deem just.
18 Dated: January 10, 2019 COZEN O'CONNOR
19
20 By:
ASHLEY #. SAUERLE
21 Attorneys for Plaintiff-in-Intervention
NATIONWIDE MUTUAL INSURANCE
22 COMPANY
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COMPLAINT IN INTERVENTION
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y ASHLEY E. BAUERLE CSB No. 271119 COZEN O'CONNOR 501 West Broadway, Suite 1610 San Diego, CA 92101 Telephone: 800.782.3366 Facsimile: 619.234.7831 Email: abauerle@cozen.com Attorney for Plaintiff-in-Intervention NATIONWIDE MUTUAL INSURANCE COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SAN MATEO 11 BRYAN TRUJILLO and CINDY TRUJILLO, Case No.: 18CIV01901 12 Plaintiffs, PROPOSED ORDER GRANTING MOTION FOR LEAVE TO INTERVENE 13 vs. 14 STEPHEN MAGEE and SAC AERO FLYING DATE: February 1, 2019 CLUB, INC:, AND DOES 1 — 50, TIME: 9:00 a.m. 15 DEPT: Law and Motion Defendants. 16 —— 17 NATIONWIDE MUTUAL INSURANCE --- : 8-0-0180 ~ COMPANY, 18 Proposed Order Received 1591181 I Plaintiff-in-Intervention, 19 20 STEPHEN MAGEE ani AC CLUB, INC., AND DOES 1 - 50, 21 Defendants. 22 23 IT IS HEREBY ORDERED THAT Nationwide Mutual Insurance Company is granted leave 24 to intervene as a Plaintiff in the action known as Bryan Trujillo and Cindy Trujillo v. Stephen 25 Magee, et al., Case No. 18CIV01901. 26 Mt 27 Mt 28 Ml 1 PROPOSED ORDER GRANTING MOTION FOR LEAVE TO INTERVENE gE 2, 8 O %,7 % IT IS HEREBY FURTHER ORDERED THAT the Complaint-in-Intervention attached as Exhibit “A” to the Proposed Order Granting Motion for Leave to Intervene shall be filed within 15 days of entry of this Order. DATED: By: JUDGE OF THE SUPERIOR COURT LEGAL\39582937\1 10 11 12 13 14 15 16 M7 18 19 20 21 22 23 24 25 26 27 28 2 PROPOSED ORDER GRANTING MOTION FOR LEAVE TO INTERVENE ASHLEY E. BAUERLE CA Bar No. 271119 COZEN O'CONNOR, 501 West Broadway, Suite 1610 San Diego, CA 92101 Telephone: 800.782.3366 Facsimile: 619.234.7831 Email: abauerle@cozen.com Attorney for Plaintiff-in-Intervention NATIONWIDE MUTUAL INSURANCE COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO 10 BRYAN TRUJILLO and CINDY TRUJILLO, Case No.: 18CIV01901 11 Plaintiffs, COMPLAINT IN INTERVENTION 12 Vv. 13 STEPHEN MAGEE, SAC AERO FLYING Sz CLUB, INC. AND DOES 1-50, 14 Ree Defendants. Ba 15 16 NATIONWIDE MUTUAL INSURANCE COMPANY, 17 Plaintiff-in-Intervention, 18 Vv, 19 STEPHEN MAGEE; SAC AERO FLYING 20 CLUB, INC.; AND DOES 1-20, 21 Defendants. 22 23 Plaintiff-in-Intervention, Nationwide Mutual Insurance Company (hereinafter “Intervenor” 24 or “Nationwide”), alleges as follows: 25 PARTIES 26 1 Intervenor is, and at all times herein mentioned was, a corporation authorized to 27 transact and conduct business in the State of California as an insurance carrier. 28 Mil 1 - COMPLAINT IN INTERVENTION 2. Upon information and belief, Defendant SAC AERO FLYING CLUB, INC. and DOES ONE through TWENTY, inclusive, and each of them, were and are the owners of a certain 1979 CESSNA 172N, Registration Number N6610D. 3 At all times relevant herein, said aircraft was piloted by defendant STEPHEN MAGEE. 4. The true names, involvement, or capacities, whether individual, corporate, governmental or associate, of the Defendants named herein as a DOE are unknown to Intervenor who therefore sues said Defendants by such fictitious names. Intervenor prays for leave to amend the Complaint to show said Defendants’ true names, involvement and capacities when the same 10 finally have been determined. 11 5 Intervenor is informed and believes, and upon such information and belief alleges 12 that each of the Defendants designated herein as DOES 1 through 20, inclusive, negligently or ge 13 otherwise are legally responsible in some manner for the events and happenings herein referred to, Za8 Sy 14 and negligently or otherwise caused injury and damages to Intervenor as is. herein alleged. Bad ge BS 15 6. At all times herein mentioned, each and every Defendant herein was the agent, 16 servant, employee, or partner of each of the other, and each was acting within the course and scope 17 of his agency, service, and employment. 18 7 At all times relevant herein, Intervenor’s insureds, Plaintiffs BRYAN TRUJILLO 19 and CINDY TRUJILLO (hereinafter “Plaintiffs” or “Insureds”), were the residents of the County 20 of San Mateo, State of California and owned real property located at 1065 Park Way, Moss Beach, 21 California (hereinafter “Trujillo Residence”). 22 8 At all times relevant herein, said CESSNA 172N, N6610D, was operated, 23 maintained, leased, rented, and/or otherwise legally controlled by SAC AERO FLYING CLUB, 24 INC., STEPHEN MAGEE, DOES ONE through TWENTY, inclusive, and each of them. ‘ 25 9 Atall times relevant herein, Intervenor provided insurance coverage to the Plaintiffs 26 pursuant to the policies of insurance, by which Intervenor insured against a portion of the loss and 27 damage caused by the CESSNA 172N, N6610D when it collided with the Trujillo Residence, 28 MIL 2 COMPLAINT IN INTERVENTION causing damages including, but not limited to, damage to the Trujillo Residence, damage to personal property and additional living expenses. 10. Pursuant to said insurance policies, and a claim for benefits made thereunder, Intervenor paid and is paying to or on behalf of its Insureds a portion of the damages to the Trujillo Residence, an amount in excess of $280,000, an amount to be proven at trial. i. Intervenor is subrogated to the rights of its insured in this lawsuit for the amounts paid to Intervenor’s Insureds, BRYAN AND CINDY TRUJILLO. FIRST CAUSE OF ACTION FOR NEGLIGENCE (Against Defendant Stephen Magee and DOES 1 — 10) 10 12. Intervenors incorporate by reference each and all of the allegations contained in 1 paragraphs 1-11 of this complaint in intervention as though alleged in full herein. 12 13. Intervenor’s Insureds, BRYAN AND CINDY TRUJILLO, are individuals who own Ses Zee 13 residential property located at 1065 Park Way, Moss Beach, California. Se ZzBas 14 14. On November 18, 2016, defendant STEPHEN MAGEE, and DOES ONE through Re 15 TEN, inclusive, so negligently, recklessly, carelessly, and unlawfully piloted, controlled, operated, 16 and maintained said Cessna aircraft that it was caused to, and did, crash on to Intervenor’s Insureds’ 17 property located at 1065 Park Way, Moss Beach, California, during its approach to Half Moon Bay 18 Airport. 19 15. As a proximate result of the negligence and carelessness of defendants, and each of 20 them, Intervenor’s Insureds were caused to suffer harm to their real property, including but not 21 limited to the spill, leak, releases, emissions, and/or migration of hazardous gases, chemicals, 22 pollutants, and contaminants, including gasoline, toluene, and benzene on the Insureds’ property. 23 16. At all times relevant herein, Intervenor provided insurance coverage to the Plaintiffs 24 pursuant to the policies of insurance, by which Intervenor insured against a portion of the loss and 25 damage caused by the CESSNA 172N, N6610D when it collided with the Trujillo Residence, 26 causing damages including, but not limited to, damage to the Trujillo Residence, damage to 27 personal property and additional living expenses. 28 Mit 3 COMPLAINT IN INTERVENTION 17. Pursuant to said insurance policies, and a claim for benefits made thereunder, Intervenor paid and is paying to or on behalf of its Insureds a portion of the damages to the Trujillo Residence, an amount in excess of $280,000, an amount to be proven at trial. 18. Intervenor is subrogated to the rights of its insureds in this lawsuit for the amounts paid to Intervenor’s Insureds, BRYAN AND. CINDY TRUJILLO. SECOND CAUSE OF ACTION FOR TRESPASS (Against Defendant Stephen Magee) 19, Intervenor incorporates by reference each and all of the allegations contained in paragraphs 1 8 of this complaint in intervention as though alleged in full herein. 10 20. In the piloting, control, operation and maintenance of the said Cessna aircraft, il defendant STEPHEN MAGEE intentionally, willfully, and/or negligently caused the said Cessna 12 aircraft to enter the property of Intervenor’s Insureds. 13 21, In the piloting, control, operation and maintenance of the said Cessna aircraft, Bz 14 defendant intentionally, recklessly, willfully, and/or negligently caused dangerous levels of noxious fas og 15 odors, hazardous gases, chemicals pollutants, and contaminants to‘enter the Insured’s property by 16 spills, leaks, releases, emissions, and/or migration from the aircraft, which was crashed onto their 17 property. 18 22. Intervenor’s Insureds did not give permission for this entry. 19 23. Intervenor’s Insureds suffered harm from defendant’s conduct, including, but not 20 limited to, polluted land and air in and on the Insured’s property. 21 24. Defendant’s actions were a substantial factor in causing the harm to the Insureds as 22 there were no other independent causes of trespass onto the Insured’s property. 23 25. Defendant’s actions resulted in the pollution of air and deprived Insureds of their 24 ability to live in the home free of health risks. The Intervenor’s Insureds have suffered and continue 25 to suffer the loss of the quiet use and enjoyment of their property in addition to all of their general 26 damages in an amount to set forth according to proof at trial. 27 26. At all times relevant herein, Intervenor provided insurance coverage to the Plaintiffs 28 pursuant to the policies of insurance, by which Intervenor insured against a portion of the loss and 4 COMPLAINT IN INTERVENTION damage caused by the CESSNA 172N, N6610D when it collided with the Trujillo Residence, causing damages including, but not limited to, damage to the Trujillo Residence, damage to personal property and additional living expenses. 27. Pursuant to said insurance policies, and a claim for benefits made thereunder, Intervenor paid and is paying to or on behalf of its Insureds a portion of the damages to the Trujillo Residence, an amount in excess of $280,000, an amount to be proven at trial. 28. Intervenor is subrogated to the rights of its insured in this lawsuit for the amounts paid to Intervenor’s Insureds, BRYAN AND CINDY TRUJILLO. THIRD CAUSE OF ACTION FOR PRIVATE NUISANCE 10 (Against Defendant STEPHEN MAGEE) 11 / 29. Intervenor incorporates by reference each and all of the allegations contained in 12 paragraphs 1-28 of this complaint in intervention as though alleged in full herein. Es 13 30. Defendant STEPHEN MAGEE failed to exercise reasonable care in the piloting, a8 14 control, operation, and maintenance of the said Cessna aircraft and crashed the aircraft onto the B4 15 Insureds’ property, which resulted in the spill, leak, release, and/or migration of hazardous gases, 16 chemicals, pollutants, and contaminants on the Insureds’ property which was harmful to health, 17 offensive to the senses and obstructed the Insureds’ free use of their property. 18 31, The spill, leak, emissions, and/or migration of hazardous gases, chemicals, 19 pollutants, and contaminants substantially interfered with the Insureds’ comfortable enjoyment of, 20 their life and property. 21 32. Intervenor’s Insureds did not consent to the defendant’s conduct. 22 33. An ordinary person of: reasonable sensibility would reasonably be annoyed and/or 23 disturbed by the conditions created by defendant. 24 34. Defendant’s conduct resulting in the crash of the aircraft, and the spill, leak, 25 emissions and/or migration of hazardous gases, chemicals, pollutants, and contaminants was a 26 substantial factor in causing the Insureds harm. 27 35. The seriousness of the harms resulting from defendant’s conduct outweighs the 28 public benefit, if any, of defendant’s flying activities because the spill, leak, emissions, and/or 5 COMPLAINT IN INTERVENTION migrations of hazardous gases, “chemicals, pollutants, and contaminants seriously deprive the Insureds of peaceful enjoyment of their home and potentially pollutes the air and water of the surrounding properties and neighborhoods. 36. At all times relevant herein, Intervenor provided insurance coverage to the Plaintiffs pursuant to the policies of insurance, by which Intervenor insured against a portion of the loss and damage caused by the CESSNA 172N, N6610D when it collided with the Trujillo Residence, causing damages including, but not limited to, damage to the Trujillo Residence, damage to personal property and additional living expenses. 37. Pursuant to said insurance policies, and a claim for benefits made thereunder, 10 Intervenor paid and is paying to or on behalf of its Insureds a portion of the damages to the Trujillo 11 Residence, an amount in excess of $280,000, an amount to be proven at trial. 12 38. Intervenor is subrogated to the rights of its insured in this lawsuit for the amounts gee 13 paid to Intervenor’s Insureds, BRYAN AND CINDY TRUJILLO. Za8 oe 14 FOURTH CAUSE OF ACTION FOR OWNER LIABILITY FOR PERMISSIVE USE 8a eg Ba 15 (Against defendant SAC AERO FLYING CLUB, INC. and DOES 11 through 20) 16 39. Intervenors incorporate by this reference each and all of the allegations contained in 17 paragraphs 1- 38 of this complaint in intervention as though alleged in full herein. 18 40. On November 18, 2016, defendant STEPHEN MAGEE and DOES 1 through 10, 19 and each of them, so carelessly and negligently piloted, controlled, operated, and maintained the 20 said Cessna aircraft so as to cause the Insureds harm and damages as herein set forth. 21 41. Intervenors are informed and believe and based on such information and belief! 22 allege that defendant SAC AERO FLYING CLUB, INC. and DOES 11 through 20 owned the 23 certain 1979 Cessna 172N, N6610D operated by defendant STEPHEN MAGEE. 24 42. Plaintiffs are informed and believe and based on such information and belief allege 25 that defendant SAC AERO FLYING CLUB, INC. and DOES 11 through 20 gave permission to 26 defendant STEPHEN MAGEE to use the certain Cessna aircraft. 27 43. As a proximate result of the negligence and carelessness of defendants, and each of 28 them, the Insureds were caused to suffer harm to their real property, including but not limited to 6 COMPLAINT IN INTERVENTION the spill, leak, releases, emissions and/or migration ofhazardous gases, chemicals, pollutants, and contaminants, including gasoline, toluene, and benzene on the Insureds’ property. 44, Atall times relevant herein, Intervenor provided insurance coverage to the Plaintiffs pursuant to the policies of insurance, by which Intervenor insured against a portion of the-loss and damage caused by the CESSNA 172N, N6610D when it collided with the Trujillo Residence, causing damages including, but not limited to, damage to the Trujillo Residence, damage to personal property and additional living expenses. 45. Pursuant to said insurance policies, and a claim for benefits made thereunder, Intervenor paid and is paying to or on behalf of its Insureds a portion of the damages to the Trujillo 10 Residence, an amount in excess of $280,000, an amount to be proven at trial. 11 46. Intervenor is subrogated to the rights of its insured in this lawsuit for the amounts 12 paid to Intervenor’s Insureds, BRYAN AND CINDY TRUJILLO. 2s 13 WHEREFORE, Intervenor prays for judgment as follows: 288 ay 14 1 General damages according to proof; ge Ba 15 2. Special camages according to proof; 16 3 Interest on the principal amount of its damages as permitted by law; and 17 4 For such other and further relief as the Court may deem just. 18 Dated: January 10, 2019 COZEN O'CONNOR 19 20 By: ASHLEY #. SAUERLE 21 Attorneys for Plaintiff-in-Intervention NATIONWIDE MUTUAL INSURANCE 22 COMPANY 23 LEGAL\39556858\1 24 25 26 27 28 7 COMPLAINT IN INTERVENTION