Jarrod C. Agustin vs. McMillin Rustic Oaks, LLC/COMPLEX

Complaint Information

PATRICIA A. BLACKWELL, SBN 179942

LAW OFFICES OF WAGNER & ISERT-KOTT

1655 Grant Street, Suite 800-B

Concord, CA 94520

Telephone: (925) 681-3664

Facsimile: (866) 386-1186

patricia.blackwell@aig.com

Attorneys for Cross-Complainant, Intervenor

AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE

CO., an insurer of ATMOS CORPORATION dba MERZON INDUSTRIES,

a suspended corporation

E-FILED

2/27/2018 4:47 PM

FRESNO COUNTY SUPERIOR COURT

By: S. Garcia, Deputy

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO

JARROD C. AGUSTIN, et al.,

Plaintiffs, V.

MCMILLIN RUSTIC OAKS LLC, and DOES 1-500, inclusive,

Defendants.

MCMILLIN RUSTIC OAKS LLC, and DOES 1-500, inclusive,

Cross-Complainants, V.

84 LUMBER COMPANY, a Pennsylvania limited partnership, et al.,

Cross-Defendants.

INTERVENOR AMERICAN INTERNATIONAL SPECIALTY LINES

INSURANCE CO. (AISLIC), an insurer of ATMOS CORPORATION dba MERZON INDUSTRIES,

Cross-Complainant,

INTERVENOR AMERICAN INTERNATIONAL SPECIALTY LINES

INSURANCE COMPANY (AISLIC), an

INSURER OF ATMOS CORPORATION

dba MERZON INDUSTRIES’ CROSS- COMPLAINT FOR:

EQUITABLE INDEMNITY CONTRIBUTION IMPLIED INDEMNITY IMPLIED CONTRACTUAL INDEMNITY BREACH OF WRITTEN

CONTRACT (as to MOES 1 to

POON=

GLASS TECH, INC., and MOES 1-50,

Cross-Defendants. Cross-Complainant, Intervenor AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (“Cross-Complainant’) an insurer of ATMOS

CORPORATION dba MERZON INDUSTRIES, a suspended corporation, alleges as

follows:

GENERAL ALLEGATIONS

1. At all times herein mentioned Cross-Complainant was licensed to do and doing business under the laws of the State of California.

2. Cross-Complainant is informed and believes and thereon alleges that Cross-Defendant GLASS TECH, INC., (“Cross-Defendant”) is a California corporation.

3. Cross-Complainant is informed and believes and thereon alleges that Cross-Defendant GLASS TECH, INC. is doing business under the name of GLASS TECH, INC.

4, Cross-Complainant is informed and believes and thereon alleges that Cross-Defendants MOES 1-50 are and were at all relevant times a business of unknown form authorized to do and doing business under the laws of the State of California.

5. The true names and capacities, whether individual, corporate, associate, government, or otherwise, of the previously named Cross-Defendants, and MOES 1-50, iInclusive, are unknown to Cross-Complainant, who therefore sues said Cross- Defendants by such fictitious names pursuant to Section 474 of the California Code of Civil Procedure. Cross-Complaint prays leave of court to set forth their true names and capacities when the same have been ascertained.

0. At all imes mentioned herein, each Cross-Defendant was the agent, servant and employee of all of the remaining Cross-Defendants and, at all times herein mentioned, was acting within the course and scope of such agency and employment.

0. At all imes mentioned herein, each Cross-Defendant was the agent, servant and employee of all of the remaining Cross-Defendants and, at all times herein mentioned, was acting within the course and scope of such agency and employment. 1. Cross-Complainant is informed and believes, and thereon alleges, that each of the Cross-Defendants, MOES 1 through 50, inclusive, is negligently responsible or liable in some manner for the events and happenings herein alleged, and that such negligence proximately caused the injuries and damages herein set forth. Cross- Complainant is uncertain as to the manner or function of said Cross-Defendants, and Cross-Complainant prays leave to amend this Cross-Complaint when the same has

1. Cross-Complainant is informed and believes, and thereon alleges, that each of the Cross-Defendants, MOES 1 through 50, inclusive, is negligently responsible or liable in some manner for the events and happenings herein alleged, and that such negligence proximately caused the injuries and damages herein set forth. Cross- Complainant is uncertain as to the manner or function of said Cross-Defendants, and Cross-Complainant prays leave to amend this Cross-Complaint when the same has

been ascertained. 8. Plaintiffs, ] ARROD AGUSTIN, et al., and Defendant, MCMILLIN RUSTIC

OAKS, LLC, et al., filed a Complaint and Cross-Complaint, respectively, in the above captioned suit for damages allegedly sustained and said Complaintand Cross-Complaint are hereby referred to for the limited purpose of setting forth the nature of the claims of the Plaintiffs by reference as though set forth in full hereinafter.

FIRST CAUSE OF ACTION

(Equitable Indemnity)

Q. Cross-Complainant incorporates herein by reference the allegations contained in paragraphs 1 through 8, inclusive, of the General Allegations as if the same were set forth completely herein.

10. Cross-Complainant herein denies thatresponsible for the events or happenings or damages mentioned in the Complaint of the Plaintiffs in this action. However, if Cross-Complainant is held responsible to any party in this action for any of the matters alleged in the Complaint, then Cross-Complainant is entitled to iIndemnity from Cross-Defendants, and each of them, for any loss it may sustain in this matter, including all costs, attorney’s fees and/or judgments which might be rendered against Cross-Complainant, because Cross-Complainant’s liability, if any, would be based either on its passive or secondary negligent conduct, and would arise as a proximate result of the negligence of the Cross-Defendants herein, and each of them.

SECOND CAUSE OF ACTION

(Contribution)

14. Cross-Complainant incorporates herein by reference paragraphs 1 through 13 above as if the same were set forth completely herein.

15. If it should be determined that Cross-Complainant is liable to the Plaintiffs for the claims set forth in the Complaint on file herein, such liability will be partially due to the negligence and fault of the Cross-Defendants, and each of them, in that their actions

caused the events leading to the damages of the Plaintiffs and Cross-Defendants will

THIRD CAUSE OF ACTION

(Implied Indemnity)

16. Cross-Complainant incorporates herein by reference paragraphs 1 through 15 above as if the same were set forth completely herein.

17. Based upon the relationship between Cross-Complainant and the Cross- Defendants, and each of them, the Cross-Defendants impliedly agreed to defend and iIndemnify Cross-Complainant. Such Cross-Defendants have failed to defend and iIndemnify Cross-Complainantin violation of such agreement.

FOURTH CAUSE OF ACTION

(Implied Contractual Indemnity as to All Cross-Defendants)

18. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) refers and incorporates by reference paragraphs 1 through 17 above as though fully set forth herein.

19. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) has denied the allegations of Plaintiffs' Complaint, and, without admitting the allegations contained therein, if it is found that A | SPECIALTY LINES INSURANCE COMPANY is liable for any such damage to Plaintiffs, then AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) is informed, and believes, and based thereon alleges that such damage is primarily and ultimately caused by the acts, breaches and/or omissions of Cross-Defendants, and each of them, where as AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY’S (AISLIC) acts, if any, were secondary, passive or derivative in nature.

FIFTH CAUSE OF ACTION

(For Breach of Written Contract against MOES 1 to 50)

24. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) refers to and incorporates by reference paragraphs 1 through 23 above as though fully set forth herein.

25. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) is informed and believes and, based thereon, alleges that on various dates, Cross-Defendants MOES 1 to 50, and each of them, entered into certain written contracts (the "Contract") with ATMOS CORPORATION dba MERZON INDUSTRIES regarding certain work to be preformed at the Subject Properties. Plaintiffs have alleged in this action that work performed by ATMOS CORPORATION dba MERZON INDUSTRIES on the Subject Properties was inadequate and defective.

26. ATMOS CORPORATION dba MERZON INDUSTRIES has, at all material times hereto, performed all conditions, covenants and Promises required by it in accordance with the terms and conditions of the Contract.

27. Without peril to AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY'’s (AISLIC) denial of the allegations of the operative Complaint and Cross-Complaints, AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) is informed and believes and, based thereon, alleges that Cross- Defendants MOES 1 to 50, and each of them, have breached the Contract by failing to perform their services required under the Contractin a good and workmanlike manner. I I I

SIXTH CAUSE OF ACTION

(For Breach of Oral Contract against MOES 1 to 50)

29. AMERICAN INTERNATIONAL SPECIALTY LINES [INSURANCE COMPANY (AISLIC) refers to and incorporates by reference paragraphs 1 through 28 above as though fully set forth herein.

30. AMERICAN INTERNATIONAL SPECIALTY LINES [INSURANCE COMPANY (AISLIC) is informed and believes and, based thereon, alleges that on various dates Cross-Defendants, MOES 1 to 50, and each of them, entered into certain oral contracts (the 'Contract') with ATMOS CORPORATION dba MERZON INDUSTRIES regarding certain work to be performed at the Subject Properties. P laintiff has alleged in this action that work performed by ATMOS CORPORATION dba MERZON INDUSTRIES on the Subject Properties was inadequate and defective.

31. ATMOS CORPORATION dba MERZON INDUSTRIES has at all material times hereto, performed all conditions, covenants and promises required by it in accordance with the terms and conditions of the Contract.

32. Without peril to AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY’s (AISLIC) denial of the allegations of the operative Complaint and Cross-Complaints, AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY’s (AISLIC) is informed and believes and based thereon, alleges that Cross- Defendants, MOES 1 to 50, and each of them, have breached the Contract by failing to perform their services required under the Contractin a good and workmanlike manner.

33. As a result of the above breaches by Cross-Defendants, MOES 1 to 50, and each of them, AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE

33. As a result of the above breaches by Cross-Defendants, MOES 1 to 50, and each of them, AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) has been damaged in an amount according to proof at the time of trial.

COMPANY (AISLIC) has been damaged in an amount according to proof at the time of trial.

SEVENTH CAUSE OF ACTION

(Express Indemnity as to MOES 1 through 50)

34. AMERICAN INTERNATIONAL SPECIALTY LINES [INSURANCE COMPANY (AISLIC) refers to and incorporates by reference paragraphs 1 through 33 above as though fully set forth herein.

35. AMERICAN INTERNATIONAL SPECIALTY LINES [INSURANCE COMPANY (AISLIC) is informed and believes and on that basis alleges that the Cross- Defendants, MOES 1 to 50, and each of them, were in some manner negligently or otherwise tortuously responsible for the events and happenings herein alleged, and the damages resulting there from.

36. The contracts between ATMOS CORPORATION dba MERZON INDUSTRIES and Cross-Defendants, MOES 1 to 50, and each of them, contain provisions which require the Cross-Defendants to indemnify and defend AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) an insurer of its insured ATMOS CORPORATION dba MERZON INDUSTRIES from and against any and all claims, costs, losses, and liabilities arising out of or occurring in conjunction with the work performed by the Cross-Defendants, their agents and employees, and any others under the control of the Cross-Defendants.

37. AMERICAN INTERNATIONAL SPECIALTY LINES [INSURANCE COMPANY (AISLIC) is informed and believes and based thereon alleges that Cross- Defendants, MOES 1 to 50, and each of them, were negligent in their rendition of construction services, labor and use of materials so as to cause the damage to the subject property, if any, as alleged by plaintiffs. Said negligent conduct by cross- defendants was the proximate cause and/or contribute to the damages, if any, to the

subject property. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE

. Q.-

. Q.- COMPANY (AISLIC) was not aware of, did not participate in, and did not acquiesce to said negligence of cross-defendants, and each of them. In spite of ATMOS CORPORATION dba MERZON INDUSTRIES’ lack of negligence or other injury- producing conduct, AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) has been exposed to liability for all defects on the subject property, and other related damages, and has paid, or may be called upon to pay, the plaintiffs for said damages. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) has further incurred and continues to incur costs and expenses, including, but not limited to, litigation costs, contractors' fees, attorneys' fees and consultants' fees to defend itself in the plaintiffs’ action and to pursue the herein action.

COMPANY (AISLIC) was not aware of, did not participate in, and did not acquiesce to said negligence of cross-defendants, and each of them. In spite of ATMOS CORPORATION dba MERZON INDUSTRIES’ lack of negligence or other injury- producing conduct, AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) has been exposed to liability for all defects on the subject property, and other related damages, and has paid, or may be called upon to pay, the plaintiffs for said damages. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) has further incurred and continues to incur costs and expenses, including, but not limited to, litigation costs, contractors' fees, attorneys' fees and consultants' fees to defend itself in the plaintiffs’ action and to pursue the herein action.

38. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY’s (AISLIC) liability to the plaintiffs is solely due to the conduct of Cross- Defendants, MOES 1 to 50, and each of them. Therefore, AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) is contractually entitled to be indemnified by Cross-Defendants, MOES 1 to 50, and each of them.

39. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) has and hereby does demand that said Cross-Defendants, MOES 1 to 50, and each of them, defend and hold AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) harmless from and against the claims raised by the plaintiffs and in the herein action, and demands that Cross-Defendants, MOES 1 to 50, and each of them, indemnify AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) for all sums incurred by AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) in resolving the underlying claims and demands made by plaintiffs.

40. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY (AISLIC) is informed and believes and thereon alleges that Cross-