This case was last updated from Santa Clara County Superior Courts on 08/14/2019 at 07:44:12 (UTC).

Hartford Accident & Indemnity Company vs Susan Carter et al

Case Summary

On 09/07/2018 Hartford Accident Indemnity Company filed a Contract - Insurance lawsuit against Susan Carter. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judges overseeing this case are Kuhnle, Thomas, Zayner, Theodore C and Pierce, Mark H. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******4545

  • Filing Date:

    09/07/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Insurance

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judges

Kuhnle, Thomas

Zayner, Theodore C

Pierce, Mark H

 

Party Details

Plaintiff

Hartford Accident & Indemnity Company

Defendants and Cross Defendants

ESTATE OF ROBERT RENZEL

FEDERAL INSURANCE COMPANY

Sebastian, Ann Renzel

NATIONWIDE MUTUAL INSURANCE COMPANY

THE TRAVELERS INDEMNITY COMPANY

GREAT AMERICAN INSURANCE COMPANY

Carter, Susan

SCOTTSDALE INSURANCE COMPANY

Defendant and Cross Plaintiff

GREAT AMERICAN INSURANCE COMPANY

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorney

Ellison, Michael William

Defendant and Cross Defendant Attorneys

Morrison, Linda Bondi

Baron, William Joseph

Defendant and Cross Plaintiff Attorney

Baron, William Joseph

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Order: Deeming Case Not Complex

Order Deeming Case Not Complex and Complex Fee Refunded to Plaintiffs: Comment: Order Deeming Case NOT COMPLEX and Complex Fee Refunded to Plaintiffs - signed/TEK

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

Civil Case Cover Sheet

Civil Case Cover Sheet.pdf:

Summons: Issued/Filed

Summons.pdf:

 

Docket Entries

  • 02/05/2019
  • Conference: Case Management - Judicial Officer: Pierce, Mark H; Hearing Time: 10:00 AM; Cancel Reason: Vacated

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  • 01/31/2019
  • Notice: Settlement - Comment: HRG: 2/5/19 Notice of Settlement of Entire Case

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  • 12/21/2018
  • Conference: Case Management - Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Cancel Reason: Vacated

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  • 12/18/2018
  • Conference: Further Case Management - Judicial Officer: Zayner, Theodore C; Hearing Time: 10:00 AM; Cancel Reason: Vacated; Comment: Case Deemed NOT Complex. Set per order dated 9/28/18 signed by Judge Kuhnle

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  • 12/10/2018
  • Answer (Unlimited) (Fee Applies) - Comment: To Complaint ; Atty Morrison

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  • 12/03/2018
  • Statement: Case Management Conference - Comment: HRG 12/18/18 Case Management Statement

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  • 11/26/2018
  • Proof of Service

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  • 11/26/2018
  • Summons: Issued/Filed - Comment: on Cross Complaint

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  • 11/26/2018
  • Cross-Complaint

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  • 11/26/2018
  • Answer (Unlimited) (Fee Applies) - Comment: Answer to Complaint. Atty Baron

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  • 11/05/2018
  • Proof of Service: Summons DLR (Civil) - Comment: Proof of Service of Summons/Complaint

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  • 10/31/2018
  • Proof of Service: Summons DLR (Civil) - Comment: Proof of Service of Summons/Complaint

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  • 10/31/2018
  • Proof of Service: Summons DLR (Civil) - Comment: Proof of Service of Summons/Complaint

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  • 10/31/2018
  • Proof of Service: Summons DLR (Civil) - Comment: Proof of Service of Summons/Complaint

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  • 09/28/2018
  • View Court Documents
  • Order: Deeming Case Not Complex - Order Deeming Case Not Complex and Complex Fee Refunded to Plaintiffs: Comment: Order Deeming Case NOT COMPLEX and Complex Fee Refunded to Plaintiffs - signed/TEK

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  • 09/07/2018
  • View Court Documents
  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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  • 09/07/2018
  • View Court Documents
  • Civil Case Cover Sheet - Civil Case Cover Sheet.pdf:

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  • 09/07/2018
  • View Court Documents
  • Summons: Issued/Filed - Summons.pdf:

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Complaint Information

E-FILED

9/7/2018 1:07 PM

Michael W. Ellison (SBN 145832) Clerk of Court

Heather P. Condon (SBN 254455) Superior Court of CA, SMITH ¢ ELLISON County of Santa Clara

A Professional Corporation 18CV 334545

éfi?tilggém Karman Avenue Reviewed By: A. Nakamoto

Irvine, California 92612 Telephone: (949) 442-1500 Facsimile: (949) 442-1515 Attorneys for Plaintiff

HARTFORD ACCIDENT & INDEMNITY COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA HARTFORD ACCIDENT & INDEMNITY

COMPANY, a Connecticut corporation

Case No. 18CV334545

Plaintiff,

COMPLAINT OF HARTFORD ACCIDENT & INDEMNITY COMPANY FOR DECLARATORY

RELIEF, EQUITABLE CONTRIBUTION, EQUITABLE INDEMNITY, AND RECOUPMENT

V.

) ) ) ) ) | ESTATE OF ROBERT RENZEL, by and ) through his Successors in Interest, Susan ) Carter and Ann Renzel Sebastian, ROBERT ) E. RENZEL TRUST, by and through its ) Trustees, Susan Carter and Ann Renzel ) Sebastian, SUSAN CARTER, an Individual, ) ANN RENZEL SEBASTIAN, an ) Individual, FEDERAL INSURANCE ) COMPANY, an Indiana Corporation, )

GREAT AMERICAN INSURANCE )

COMPANY, an Ohio Corporation, THE ) TRAVELERS INDEMNITY COMPANY, a) Connecticut Corporation, NATIONWIDE ) MUTUAL INSURANCE COMPANY, an ) Ohio Corporation, and DOES 1 through 40, ) inclusive, )

)

)

)

Defendants.

As a Complaint against Defendants ESTATE OF ROBERT RENZEL, by and through his Successors in Interest, Susan Carter and Ann Renzel Sebastian, ROBERT E. RENZEL TRUST, by and through its Trustees, Susan Carter and Ann Renzel Sebastian, SUSAN CARTER, ANN RENZEL SEBASTIAN, FEDERAL INSURANCE COMPANY, GREAT AMERICAN INSURANCE COMPANY, THE TRAVELERS INDEMNITY COMPANY, NATIONWIDE MUTUAL INSURANCE COMPANY, and DOES 1 through 40, inclusive, (collectively, “Defendants’), Plaintiff HARTFORD ACCIDENT & INDEMNITY COMPANY alleges as follows:

THE PARTIES

1. Hartford Accident & Indemnity Company (“Hartford”) now is, and at all material times herein was, a corporation duly organized and existing under the laws of the State of Connecticut with its principal place of business in Connecticut and has been and 1s authorized to transact the business of insurance within the State of California.

2. Hartford alleges on information and belief that Defendant Estate of Robert Renzel was, at all material times herein, an owner or past owner of certain real property located at 520-526 S. Bascom Avenue, San Jose, California (the “Site”).

3. Hartford alleges on information and belief that Defendant Robert E. Renzel Trust was, at all material times herein, an owner or past owner of the Site.

4. Hartford alleges on information and belief that Defendant Susan Carter was, at all material times herein, an owner or past owner of the Site.

5. Hartford alleges on information and belief that Defendant Ann Renzel Sebastian was, at all material times herein, an owner or past owner of the Site. Defendants Estate of Robert Renzel, Robert E. Renzel Trust, Susan Carter, and Ann Renzel Sebastian shall be collectively referred to herein as “Renzel.”

6. Hartford alleges on information and belief that Defendant Federal Insurance Company (“Federal”) 1s a corporation duly organized and existing under the laws of the State of Indiana with its principal place of business in New Jersey, and was at all relevant times authorized to transact the business of insurance within the State of California.

7. Hartford alleges on information and belief that Defendant Great American Insurance Company (“Great American”) is a corporation duly organized and existing under the laws of the State of Ohio with 1ts principal place of business in Ohio, and was at all relevant times

authorized to transact the business of insurance within the State of California.

complaint.cmp.docx 2. 8. Hartford alleges on information and belief that Defendant The Travelers Indemnity Company (““Travelers”) is a corporation duly organized and existing under the laws of the State of Connecticut with its principal place of business in Connecticut, and was at all relevant times authorized to transact the business of insurance within the State of California.

9. Hartford alleges on information and belief that Defendant Nationwide Mutual Insurance Company (“Nationwide”) is a corporation duly organized and existing under the laws of the State of Ohio with its principal place of business in Ohio, and was at all relevant times authorized to transact the business of insurance within the State of California.

10. The true names and capacities, whether individual, corporate, associate, or otherwise of Defendants Does 1 through 40, are unknown to Hartford at the present time, and Hartford therefore sues said Defendants by such fictitious names pursuant to Section 474 of the California Code of Civil Procedure. When the true names and capacities of the Doe Defendants have been ascertained, Hartford will amend this Complaint accordingly.

11. Hartford alleges on information and belief that each of the Defendants sued herein as Does 1 through 20 issued, is alleged to have 1ssued, or 1s otherwise responsible for the obligations under one or more liability insurance policies issued or allegedly 1ssued to Renzel. Hartford 1s unaware of the policy number, policy period, or other terms and conditions of the liability insurance policies 1ssued or allegedly 1ssued by Does 1 through 20, inclusive, but will amend this Complaint to provide such policy information when, and 1f, any Doe Defendants’ true names and capacities and such information are ascertained. Defendants Federal, Great American, and Does 1 through 20 are referred to collectively herein as the “Renzel Insurers.”

12. Hartford alleges on information and belief that each of the Defendants sued herein as Does 21 through 40 issued, is alleged to have 1ssued, or 1s otherwise responsible for the obligations under one or more liability insurance policies 1ssued or allegedly 1ssued to one or more of the former operators of the dry-cleaning facility located on the Site, individually or d/b/a Ritz Cleaners, on which Renzel was included as an additional insured. Hartford is unaware of the policy number, policy period, or other terms and conditions of the liability insurance policies

issued or allegedly issued by Does 21 through 40, inclusive, but will amend this Complaint to

complaint.cmp.docx 3. provide such policy information when, and if, any Doe Defendants’ true names and capacities and such information are ascertained. Defendants Travelers, Nationwide, and Does 21 through 40 are referred to collectively herein as the “Operator Insurers.”

JURISDICTION

13. This Court has jurisdiction over this action, and each party to this action, including Does 1 through 40, as each party resides in and/or has been doing business in the State of California and/or was an owner or past owner of the Site at-issue herein within the time period relevant to the causes of action stated herein or has transacted business within the State of California.

14. Venue in this Court 1s proper pursuant to California Code of Civil Procedure section 395 et seq.

GENERAL ALLEGATIONS

The Underlying Lawsuit and the Underlying Counterclaims

15. Hartford 1s informed and believes and thereon alleges that Renzel owned the Site from approximately 1941 to 2013.

16. Hartford 1s further informed and believes and thereon alleges that during that time, Renzel leased a portion of the Site to certain dry-cleaning operators, who conducted business as “Ritz Cleaners™ (the “Operators”).

17. Hartford 1s further informed and believes and thereon alleges that at least as of 2012, the Site has been the subject of environmental investigation and remedial action.

18. Hartford 1s further informed and believes and thereon alleges that in connection with the potential sale of the Site, Terrax Environmental, Inc. (“Terrax”) was retained to undertake a soil vapor investigation to assess the magnitude of historic chlorinated solvent release and to determine the need for remedial action at or around the Site. As a result of that investigation, Terrax i1ssued a Soil Vapor Investigation Report dated February 13, 2013 (the “Terrax Report”) that reported, inter alia, the discovery of soil exceedances of tetrachloroethylene

(“PCE”), a dry-cleaning contaminant, at the Site.

complaint.cmp.docx 4. 19. Hartford is informed and believes and thereon alleges that the Terrax Report was provided to the County of Santa Clara’s Department of Environmental Health (the “County”).

20. Hartford is further informed and believes and thereon alleges that since the issuance of the Terrax Report and the provision of that Report to the County, the County has requested that Renzel investigate and remediate the alleged contamination at and around the Site.

21. On or about April 10, 2015, Renzel initiated a lawsuit against numerous former Operators in the United States District Court for the Northern District of California, styled Estate of Robert Renzel, et al. v. Lupe Ventura, et al., Case No. 4:15-cv-01648-HSG, primarily seeking Cost Recovery under CERCLA section 107(a), relating to the environmental contamination discovered at or around the Site (the “Underlying Lawsuit™).

22. Renzel filed a First Amended Complaint in the Underlying Lawsuit on October 16, 2015, and a Second Amended Complaint on December 18, 20135.

23. The Second Amended Complaint is the operative complaint in the Underlying Lawsuit and asserts claims against numerous Operators, individually and d/b/a Ritz Cleaners, for Cost Recovery under CERCLA section 107(a), Abatement of a Public Nuisance, Abatement of a Private Nuisance, Negligence, Continuing Trespass, Breach of Contract, Express Indemnity, Equitable Indemnity, Contribution, Waste, Ultrahazardous Activity, Cost Recovery under HSAA, and Declaratory Relief.

24. Inresponse to the claims asserted by Renzel in the Underlying Lawsuit, certain of the Operators, including Alfredo Torres, Carmen Torres, Hyang Bae Whang, Seon Geun Whang, Kyu Chuk Whang, Thu Huynh, and Ngoc T.B. Tran (collectively, the “Counterclaimant Operators”™), filed Counterclaims and Cross-Claims against Renzel and certain other of the former Operators primarily for Contribution under CERCLA section 113(f) and 42 U.S.C. section 9613(f), Declaratory Relief, and Equitable Indemnity (the “Underlying Counterclaims”).

/1] /1] /1]

complaint.cmp.docx 5. Defense of Renzel Against the Underlying Counterclaims Hartford

25. Hartford issued or 1s alleged to have 1ssued certain liability insurance policies to Renzel, under which Hartford has been alleged to have a duty to defend and/or indemnify Renzel with respect to the Underlying Counterclaims. Hartford has agreed to defend Robert E. Renzel Trust, Susan Carter, and Ann Renzel Sebastian under Hartford Policy Nos. 57 OLT WY1268 (06/01/1984-06/01/1985) and 57 UEC PD2203 (06/01/1985-06/01/1986) and the Estate of Robert Renzel under Hartford Policy No. 57 OLT WY 1268 (06/01/1984-06/01/1985) (collectively, the “Hartford Policies”) against the Underlying Counterclaims, subject to a full reservation of rights. As part of its defense, Hartford has likewise agreed to participate in the provision of, and has participated in the provision of, independent (Cumis) counsel to defend Renzel against the Underlying Counterclaims, again subject to a full reservation of rights.

Renzel Insurers

26. Hartford is informed and believes and thereon alleges that Federal issued or 1s alleged to have issued certain liability insurance policies to Renzel, under which Federal has been alleged to have a duty to defend and/or indemnify Renzel with respect to the Underlying Counterclaims. Hartford 1s further informed and believes and thereon alleges that Federal has agreed to defend some or all of the people and entities included in the definition of “Renzel” against the Underlying Counterclaims under at least Federal Policy No. 3516 81 99 (01/07/1981- 01/07/1982) (the “Federal Policy”), subject to a full reservation of rights. As part of its defense, Hartford 1s informed and believes and thereon alleges that Federal has likewise agreed to participate in the provision of, and has participated in the provision of, independent (Cumis) counsel to defend Renzel against the Underlying Counterclaims, subject to a reservation of rights.

27. Hartford is informed and believes and thereon alleges that Great American issued or 1s alleged to have 1ssued certain liability insurance policies to Renzel, under which Great American has been alleged to have a duty to defend and/or indemnify Renzel with respect to the Underlying Counterclaims. Hartford is further informed and believes and thereon alleges

that Great American has agreed to defend some or all of the people and entities included in the

complaint.cmp.docx 6. definition of Renzel against the Underlying Counterclaims under at least Great American Policy No. BP 1205425 (10/01/1977-10/01/1980) (the “Great American Policy™), subject to a reservation of rights. Hartford is informed and believes and thereon alleges that unlike Hartford and Federal, however, Great American has refused to participate in the provision of independent (Cumis) counsel to defend Renzel against the Underlying Counterclaims. Hartford is further informed and believes and thereon alleges that Great American contends that it is not obligated to participate in the provision of independent (Cumis) counsel to defend Renzel against the Underlying Counterclaims because 1t expressly limited its reservation of rights by reserving its right to deny coverage under the Pollution Exclusion included in the Great American Policy solely on the grounds that the alleged release or releases of contaminants at issue were not “sudden,” and not on the grounds that the alleged release or releases of contaminants at issue (and resulting property damage) were not “accidental,” or otherwise subjectively expected or intended by Renzel. Hartford 1s further informed that Renzel maintains that Great American 1s obligated to provide independent (Cumis) counsel to defend Renzel against the Underlying Counterclaims. Operator Insurers 28. In addition to the insurance policies issued or alleged to have been issued by Hartford and the Renzel Insurers to Renzel, Hartford is informed and believes and thereon alleges that certain Operator Insurers, including Travelers and Nationwide, 1ssued or are alleged to have issued certain liability insurance policies to certain Operators that did add or may have added Renzel as an additional insured, under which these Operator Insurers have been alleged to have a duty to defend and/or indemnify Renzel with respect to the Underlying Counterclaims. Hartford is further informed and believes and thereon alleges that the Operator Insurers, including Travelers and Nationwide, have refused to participate in the defense of Renzel with respect to the Underlying Counterclaims. Payment of Alleged Defense Costs 29. Hartford has paid a portion of Renzel’s alleged defense costs related to the Underlying Counterclaims, and as indicated above, has agreed to provide and, with Federal, has

provided independent (Cumis) counsel to undertake that defense and likewise has contributed and

complaint.cmp.docx 7. continues to contribute to the alleged defense fees and costs incurred by independent (C umis) counsel. In that process, Hartford has also paid amounts that it contends were not reasonable and necessary costs of defense of the Underlying Counterclaims, in an abundance of caution and subject to a reservation of rights.

30. Hartford is informed and believes and thereon alleges that Federal has also paid a portion of Renzel’s alleged defense costs related to the Underlying Counterclaims, and as indicated above, has agreed to provide and, with Hartford, has provided independent (C umis) counsel to defend Renzel against the Underlying Counterclaims and likewise has contributed and continues to contribute to the alleged defense fees and costs incurred by independent (C umis) counsel.

31. Hartford 1s informed and believes and thereon alleges that as indicated above, Great American has refused to provide independent (Cumis) counsel to defend Renzel against the Underlying Counterclaims and likewise has refused to contribute towards the amounts that Hartford and Federal have incurred and continue to incur, and have paid and continue to pay, for independent (Cumis) counsel to defend Renzel against the Underlying Counterclaims.

32. As indicated above, Hartford 1s further informed and believes and thereon alleges that the Operator Insurers, including Travelers and Nationwide, have refused to participate in the defense of Renzel against the Underlying Counterclaims and likewise have refused to contribute to Renzel’s alleged defense costs related to the Underlying Counterclaims or towards the amounts that Hartford and Federal have incurred and continue to incur, and have paid and continue to pay, for independent (Cumis) counsel to defend Renzel against the Underlying Counterclaims.

FIRST CAUSE OF ACTION

(Against All Defendants F or Declaratory Relief - No Duty To Defend - Alleged Costs Are Not Costs of Defense of a Claim Seeking Damages)

33. Hartford realleges and incorporates herein by reference each and every

allegation contained in Paragraphs 1 through 32, inclusive, as set forth above.

complaint.cmp.docx 8. 34. While Hartford agreed to defend Renzel against the Underlying Counterclaims, it did so pursuant to a full reservation of rights including the right to maintain that it 1s not obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims because they are not claims seeking damages.

35. Hartford maintains that some or all of the claims asserted in the Underlying Counterclaims are not claims seeking damages, because, inter alia, they do not seek damages from Renzel, rather they are defensive claims asserted by Counterclaimant Operators seeking merely to establish that Counterclaimant Operators owe less to Renzel than the amount Renzel contends Counterclaimant Operators owe to Renzel.

36. Hartford 1s informed and believes and thereon alleges that Renzel maintains that the claims asserted in the Underlying Counterclaims are claims seeking damages, and thus that Hartford has a duty to defend Renzel against the Underlying Counterclaims.

37. A dispute has arisen and an actual controversy exists concerning whether and to what extent the claims asserted in the Underlying Counterclaims are claims seeking damages, and thus whether Hartford 1s not obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims for this reason.

38. Pursuant to California Code of Civil Procedure section 1060, Hartford seeks a judicial declaration that some or all of the claims asserted in the Underlying Counterclaims are not claims seeking damages and thus Hartford 1s not obligated to defend some or all of the claims asserted in the Underlying Counterclaims.

SECOND CAUSE OF ACTION

(Against All Defendants F or Declaratory Relief - Re No Duty To Defend)

39. Hartford realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 38, inclusive, as set forth above.

40. While Hartford agreed to defend Renzel against the Underlying Counterclaims,

it did so pursuant to a full reservation of rights including the right to maintain that it 1s not

complaint.cmp.docx 0. obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims.

41. Hartford maintains that it 1s not obligated to defend some or all of the claims asserted in the Underlying Counterclaims.

42. Hartford 1s informed and believes and thereon alleges that Renzel maintains that Hartford 1s obligated to defend Renzel against the claims asserted in the Underlying Counterclaims.

43. A dispute has arisen and an actual controversy exists concerning whether and to what extent Hartford is obligated to defend Renzel against the Underlying Counterclaims.

44. Pursuant to California Code of Civil Procedure section 1060, Hartford seeks a judicial declaration that it 1s not obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims.

THIRD CAUSE OF ACTION

(Against All Defendants F or Declaratory Relief - Re No Duty To Indemnify)

45. Hartford realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 44, inclusive, as set forth above.

46. While Hartford agreed to defend Renzel against the Underlying Counterclaims, it did so pursuant to a full reservation of rights including the right to maintain that it 1s not obligated to defend or indemnify Renzel with respect to some or all of the claims asserted in the Underlying Counterclaims.

47. Hartford maintains that it 1s not obligated to indemnify Renzel with respect to some or all of the claims asserted in the Underlying Counterclaims.

48. Hartford 1s informed and believes and thereon alleges that Renzel maintains that Hartford is obligated to indemnify Renzel with respect to some or all claims asserted in the

Underlying Counterclaims.

complaint.cmp.docx 10. 49. A dispute has arisen and an actual controversy exists concerning whether and to what extent Hartford 1s obligated to indemnify Renzel with respect to the claims asserted in the Underlying Counterclaims.

50. Pursuant to California Code of Civil Procedure section 1060, Hartford seeks a judicial declaration that it is not obligated to indemnify Renzel against some or all of the claims asserted in the Underlying Counterclaims.

FOURTH CAUSE OF ACTION

(Against All Defendants F or Declaratory Relief - Re Great American’s Duty To Defend/F ailure To Provide Independent C ounsel)

51. Hartford realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 50, inclusive, as set forth above.

52. Hartford 1s informed and believes and thereon alleges that Great American has agreed to defend Renzel against the Underlying Counterclaims subject to a reservation of rights but maintains that it is not obligated to provide independent (Cumis) counsel to fulfill its duty to defend.

53. Hartford 1s informed and believes and thereon alleges that Great American maintains that if 1t has a duty to defend Renzel against the Underlying Counterclaims, it is not obligated to provide independent (Cumis) counsel to fulfill its duty to defend Renzel because, while it has reserved its right to deny coverage under the Pollution Exclusion included in the Great American Policy, 1t has done so only on the grounds that the alleged release or releases of contaminants at issue were not “sudden,” and not on the grounds that the alleged release or releases of contaminants at issue (and resulting property damage) were not “accidental,” or otherwise subjectively expected or intended by Renzel.

54. As indicated above, because Great American maintains that it is not obligated to provide independent Cumis counsel to fulfill its duty to defend, it has refused to contribute towards the amounts Hartford and Federal are paying for independent (Cumis) counsel to defend

Renzel against the Underlying Counterclaims.

complaint.cmp.docx 11. 55. Hartford 1s informed and believes and thereon alleges that Renzel maintains that Great American has a duty to defend Renzel against the Underlying Counterclaims and is obligated to provide independent (Cumis) counsel to fulfill its duty to defend Renzel against the Underlying Counterclaims.

56. A dispute has arisen and an actual controversy exists concerning whether and to what extent Great American is obligated to defend Renzel against the Underlying Counterclaims and to provide independent (Cumis) counsel to fulfill its duty to defend Renzel against the Underlying Counterclaims.

57. Pursuant to California Code of Civil Procedure section 1060, Hartford seeks a judicial declaration that Great American is obligated to defend Renzel against the Underlying Counterclaims and that obligation includes the obligation to provide independent (C umis) counsel to fulfill 1ts duty to defend Renzel against the Underlying Counterclaims.

FIFTH CAUSE OF ACTION

(Against All Defendants F or Declaratory Relief - No Duty To Defend or Indemnify -

Certain Alleged D efense Costs Are Not Reasonable And/Or Necessary)

58. Hartford realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 57, inclusive, as set forth above.

59. Hartford contends that it is not obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims, however, to the extent that that the Court finds that Hartford is obligated to defend Renzel or reimburse Renzel for defense costs incurred with respect to the some or all of the claims asserted in the Underlying Counterclaims, it would only be obligated to pay or reimburse Renzel for defense costs that are reasonable and necessary to the defense of such claims. Hartford further contends that certain alleged defense costs submitted or to be submitted by Renzel are not and will not be reasonable and/or necessary to the defense of the Underlying Counterclaims.

60. Hartford 1s informed and believes and thereon alleges that Renzel contends that

all of the defense costs it has submitted and will submit with respect to the defense of the

complaint.cmp.docx 12. Underlying Counterclaims are reasonable and necessary to the defense of the Underlying Counterclaims.

61. A dispute has arisen and an actual controversy exists concerning whether and to what extent the alleged defense costs submitted and to be submitted by Renzel are reasonable and necessary to the defense of the Underlying Counterclaims.

62. Pursuant to California Code of Civil Procedure section 1060, Hartford seeks a judicial declaration of the parties’ respective rights and obligations under the Hartford Policies with respect to the defense of the Underlying Counterclaims and, in particular, a judicial declaration that Hartford 1s not obligated to pay or reimburse Renzel for alleged defense costs, including consultants’ fees, that are not reasonable and/or necessary to the defense of the Underlying Counterclaims. Hartford also seeks a declaration regarding the specific defense costs and consultants’ fees that are not reasonable and/or necessary to the defense of the claims, if any, that Hartford 1s obligated to defend.

SIXTH CAUSE OF ACTION

(A gainst All Defendants F or Declaratory Relief - No Duty To Defend or Indemnify - Sudden and A ccidental Pollution E xclusion)

63. Hartford realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 62, inclusive, as set forth above.

64. Among other terms, the Hartford Policies exclude coverage for property damage resulting from contamination that is not the result of a sudden and accidental event.

65. Hartford contends that some or all of the property damage at issue in the Underlying Counterclaims was the result of contamination not resulting from an event that was sudden and accidental.

66. Hartford is informed and believes and thereon alleges that Renzel contends that some or all of the property damage at 1ssue in the Underlying Counterclaims was the result of contamination resulting from an event that was sudden and accidental.

67. A dispute has arisen and an actual controversy exists concerning whether and

to what extent Hartford is obligated to defend or indemnify Renzel with respect to the

complaint.cmp.docx 13. Underlying Counterclaims including, but not limited to, whether and to what extent any of the property damage at issue in the Underlying Counterclaims was the result of a sudden and accidental event.

68. Hartford recognizes that Renzel may request that the Court stay some or all litigation, including discovery, related to issues of indemnity with respect to the Underlying Counterclaims as allegedly premature or prejudicial to Renzel to the extent it would hinge on facts to be addressed in the Underlying Counterclaims. Hartford does not seek to prejudice Renzel in any way in connection with the Underlying Counterclaims, and will consider (1) how to avoid litigation on specific factual issues that overlap with issues in the Underlying Counterclaims 1n such a manner as to create a potential for prejudice to Renzel from such litigation, and (2) means reasonably necessary to avoid any prejudice to Renzel from any discovery on any issues that overlap with issues in the Underlying Counterclaims in such a manner as to create a potential for prejudice from any such specific discovery. Hartford maintains, however, that there is no reason litigation and discovery cannot proceed on issues as to which there 1s no such overlap and/or as to which any potential prejudice can be avoided through appropriate orders.

69. Pursuant to California Code of Civil Procedure section 1060, Hartford seeks a judicial declaration that it is not obligated to defend or indemnify Renzel with respect to some or all of the claims asserted in the Underlying Counterclaims.

SEVENTH CAUSE OF ACTION

(Against All Defendants F or Declaratory Relief - Re Duty To Defend of the Operator Insurers)

70. Hartford realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 69, inclusive, as set forth above.

71. Hartford 1s informed and believes and thereon alleges that the Operator Insurers, including Travelers and Nationwide, 1ssued or allegedly 1ssued insurance policies to the

Operators that did add or may have added Renzel as an additional insured. 72. While Hartford, Federal, and Great American agreed to defend Renzel against the Underlying Counterclaims, pursuant to reservations of rights, Hartford 1s informed and believes and thereon alleges that the Operator Insurers have refused to participate in the defense of Renzel or to contribute to the alleged costs of defense against the Underlying Counterclaims that have been incurred and are being incurred by Hartford.

73. While Hartford maintains that it 1s not obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims, if the Court finds that Hartford 1s obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims, then Hartford maintains that one or more of the Operator Insurers would also be obligated to defend some or all of the claims asserted against Renzel in the Underlying Counterclaims.

74. Hartford is informed and believes and thereon alleges that the Operator Insurers maintain that they are not obligated to defend Renzel against any of the claims asserted in the Underlying Counterclaims.

75. A dispute has arisen and an actual controversy exists concerning whether and to what extent the Operator Insurers are obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims.

76. Pursuant to California Code of Civil Procedure section 1060, if the Court finds that Hartford 1s obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims, then Hartford seeks a judicial declaration that the Operator Insurers are and have been obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims.

EIGHTH CAUSE OF ACTION

(Against All Defendants F or Declaratory Relief - Re E quitable Contribution) 77. Hartford realleges and incorporates herein by reference each and every

allegation contained in Paragraphs 1 through 76, inclusive, as set forth above.

complaint.cmp.docx 15. 78. Hartford contends that it 1s not obligated to defend or indemnify Renzel with respect to the Underlying Counterclaims. If, however, it 1s adjudicated that Hartford 1s obligated to defend and/or indemnify Renzel for any costs, expenses, damages, settlements, or judgments with respect to any of the claims asserted in the Underlying Counterclaims, then, based upon the principle of equitable contribution, some or all of the Renzel Insurers and the Operator Insurers should be required to contribute or reimburse an appropriate portion of the total amount paid and/or to be paid to or on behalf of Renzel.

79. A dispute has arisen and an actual controversy exists concerning whether and to what extent the Renzel Insurers and the Operator Insurers would be obligated to contribute to Hartford for any amounts it 1s found liable to pay related to the Underlying Counterclaims.

80. Pursuant to California Code of Civil Procedure section 1060, 1f the Court finds that Hartford 1s obligated to defend and/or indemnify Renzel with respect to some or all of the claims asserted in the Underlying Counterclaims, then Hartford seeks a judicial declaration of the rights of Hartford to contribution related to the Underlying Counterclaims from each of the Renzel Insurers and the Operator Insurers, and 1n particular, if it 1s adjudicated that Hartford 1s obligated to defend and/or indemnify Renzel for any costs, expenses, damages, settlements, or judgments with respect to any of the claims asserted in the Underlying Counterclaims, that some or all of the Renzel Insurers and the Operator Insurers are liable to Hartford for their appropriate share of the amounts incurred and/or to be incurred.

NINTH CAUSE OF ACTION

(Against All Defendants F or E quitable Contribution)

81. Hartford realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 80, inclusive, as set forth above.

82. While Hartford contends that it is not obligated to defend or indemnify Renzel with respect to the Underlying Counterclaims, if it is adjudicated that Hartford is obligated to defend and/or indemnify Renzel for any costs, expenses, damages, settlements, or judgments with respect to any of the claims asserted in the Underlying Counterclaims, then,

based upon the principle of equitable contribution, some or all of the Renzel Insurers and the

complaint.cmp.docx 16. Operator Insurers should be required to contribute or reimburse an appropriate portion of the total amount paid and/or to be paid to or on behalf of Renzel.

TENTH CAUSE OF ACTION

(Against All Defendants F or Declaratory Relief - Re E quitable Indemnity)

83. Hartford realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 82, inclusive, as set forth above.

84. Hartford contends that it is not obligated to defend or indemnify Renzel with respect to the Underlying Counterclaims. If, however, it 1s adjudicated that Hartford 1s obligated to defend and/or indemnify Renzel for any costs, expenses, damages, settlements, or judgments with respect to any of the claims asserted in the Underlying Counterclaims, then, based upon the principle of equitable indemnification, some or all of the Renzel Insurers and the Operator Insurers should be required to indemnify Hartford for or reimburse an appropriate portion of the total amount paid and/or to be paid to or on behalf of Renzel.

85. A dispute has arisen and an actual controversy exists concerning whether and to what extent the Renzel Insurers and the Operator Insurers would be obligated to indemnify Hartford for any amounts it is found liable to pay related to the Underlying Counterclaims.

86. Pursuant to California Code of Civil Procedure section 1060, if the Court finds that Hartford 1s obligated to defend and/or indemnify Renzel against or with respect to some or all of the claims asserted in the Underlying Counterclaims, then Hartford seeks a judicial declaration of the rights of Hartford to indemnity related to the Underlying Counterclaims from each of the Renzel Insurers and the Operator Insurers, and in particular, if it 1s adjudicated that Hartford 1s obligated to defend and/or indemnify Renzel for any costs, expenses, damages, settlements, or judgments with respect to any of the claims asserted in the Underlying Counterclaims, that some or all of the Renzel Insurers and the Operator Insurers are liable to

Hartford for their appropriate share of the amounts incurred and/or to be incurred.

ELEVENTH CAUSE OF ACTION

(A gainst All Defendants F or E quitable Indemnity)

87. Hartford realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 86, inclusive, as set forth above.

88. While Hartford contends that it is not obligated to defend or indemnify Renzel with respect to the Underlying Counterclaims, if 1t 1s adjudicated that Hartford is obligated to defend and/or indemnify Renzel for any costs, expenses, damages, settlements, or judgments with respect to any of the claims asserted in the Underlying Counterclaims, then, based upon the principle of equitable indemnification, some or all of the Renzel Insurers and the Operator Insurers should be required to indemnify Hartford for or reimburse an appropriate portion of the total amount paid and/or to be paid to or on behalf of Renzel.

TWELFTH CAUSE OF ACTION

(Against All Defendants F or Declaratory Relief - Allocation of Alleged D efense C osts)

89. Hartford realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 88, inclusive, as set forth above.

90. Hartford contends that if the Court finds that Hartford 1s obligated to defend some or all of the claims asserted in the Underlying Counterclaims, then some or all of the Renzel Insurers and the Operator Insurers are also obligated to defend some or all of the claims asserted in the Underlying Counterclaims and/or to contribute to the costs of defense incurred by Hartford and/or Renzel.

91. Hartford 1s informed and believes and thereon alleges that the Renzel Insurers and the Operator Insurers contend that they are not obligated to defend some or all of the claims asserted in the Underlying Counterclaims and/or to contribute to the costs of defense incurred or to be incurred.

92. A dispute has arisen and an actual controversy exists concerning whether and to

what extent the Renzel Insurers and the Operator Insurers are obligated to defend some or all of

complaint.cmp.docx 18. the claims asserted in the Underlying Counterclaims and/or to contribute to the costs of defense incurred or to be incurred.

93. Pursuant to California Code of Civil Procedure section 1060, Hartford seeks a judicial declaration of the parties’ respective rights and obligations under the insurance policies actually or allegedly i1ssued by Hartford, the Renzel Insurers, and the Operator Insurers. In particular, Hartford seeks a declaration that, if 1t is required to defend Renzel with respect to some or all of the claims asserted in the Underlying Counterclaims, then one or more of the Renzel Insurers and the Operator Insurers are required to contribute a fair and equitable proportion of the total amount of costs, including attorneys’ fees, paid and/or to be paid by Hartford to or on behalf of Renzel in defending those claims, and a declaration of the amounts and/or percentages to be paid by each of the Renzel Insurers and the Operator Insurers.

THIRTEENTH CAUSE OF ACTION

(A gainst Renzel F or Recoupment)

94. Hartford realleges and incorporates herein by reference each and every allegation contained in Paragraphs 1 through 93, inclusive, as set forth above.

95. While Hartford agreed to participate in the defense of Renzel against the Underlying Counterclaims, it did so pursuant to a full reservation of rights including the right to seek reimbursement from Renzel of all amounts it paid or pays in defense of the claims asserted in the Underlying Counterclaims thatobligated to pay.

96. Hartford has paid for alleged costs of defense of the Underlying Counterclaims, notwithstanding that Hartford maintains that 1t has never had an obligation to defend Renzel against the Underlying Counterclaims and notwithstanding that certain alleged defense costs submitted and to be submitted with respect to the defense of the Underlying Counterclaims are not reasonable and/or necessary.

97. Hartford further contends that some of the costs paid as defense costs do not actually constitute costs of defense.

98. Hartford hereby seeks recoupment of all alleged defense costs paid or to be paid

or reimbursed or to be reimbursed for the defense of the claims asserted in the Underlying

complaint.cmp.docx 19. Counterclaims that Hartford was not and/or is not obligated to pay, including, but not limited to, any alleged defense costs that were not reasonable and necessary.

PRAYER FOR RELIEF

WHEREFORE, Hartford prays for judgment as follows:

1. On the First Cause of Action, Hartford seeks a judicial declaration of the parties’ respective rights and obligations under the Hartford Policies and, in particular, that some or all of the claims asserted in the Underlying Counterclaims are not claims seeking damages and thus Hartford is not obligated to defend some or all of the claims asserted in the Underlying Counterclaims, and which of the claims, 1f any, Hartford is obligated to defend;

2. On the Second Cause of Action, Hartford seeks a judicial declaration of the parties’ respective rights and obligations under the Hartford Policies and, in particular, that it is not obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims, and which of the claims, 1f any, Hartford is obligated to defend;

3. On the Third Cause of Action, Hartford seeks a judicial declaration of the parties’ respective rights and obligations under the Hartford Policies and, in particular, that it 1s not obligated to indemnify Renzel against some or all of the claims asserted in the Underlying Counterclaims, and as to which of the claims, if any, Hartford 1s obligated to indemnify;

4. On the Fourth Cause of Action, Hartford seeks a judicial declaration of the parties’ respective rights and obligations and, in particular, that Great American 1s obligated to defend Renzel against the Underlying Counterclaims and that obligation includes the obligation to provide independent (Cumis) counsel to fulfill its duty to defend Renzel against the Underlying Counterclaims;

5. On the Fifth Cause of Action, Hartford seeks a judicial declaration of the parties’ respective rights and obligations under the Hartford Policies and, in particular, that Hartford 1s not obligated to pay or reimburse Renzel for alleged defense costs, including consultants’ fees, that are not reasonable and/or necessary to the defense of the Underlying

Counterclaims, and a declaration regarding the specific alleged defense costs and consultants’ fees that are not reasonable and/or necessary to the defense of the claims, 1f any, that Hartford 1s obligated to defend;

6. On the Sixth Cause of Action, Hartford seeks a judicial declaration of the parties’ respective rights and obligations under the Hartford Policies and, in particular, that it 1s not obligated to defend or indemnify Renzel with respect to some or all of the claims asserted in the Underlying Counterclaims;

7. On the Seventh Cause of Action, Hartford seeks a judicial declaration of the parties’ respective rights and obligations and, in particular, that the Operator Insurers are and have been obligated to defend Renzel against some or all of the claims asserted in the Underlying Counterclaims;

8. On the Eighth Cause of Action, Hartford seeks a judicial declaration of the parties’ respective rights and obligations and, in particular for a judicial declaration of the rights of Hartford to contribution related to the Underlying Counterclaims from each of the Renzel Insurers and the Operator Insurers, specifically if the Court finds that Hartford 1s obligated to defend and/or indemnify Renzel for or with respect to any costs, expenses, damages, settlements, or judgments with respect to any of the claims asserted in the Underlying Counterclaims, that some or all of the Renzel Insurers and the Operator Insurers are liable to Hartford for their appropriate share of the amounts incurred and/or to be incurred;

9. On the Ninth Cause of Action, for contribution in an amount to be proven at trial;

10. On the Tenth Cause of Action, Hartford seeks a judicial declaration of the parties’ respective rights and obligations and, in particular for a judicial declaration of the rights of Hartford to indemnity related to the Underlying Counterclaims from each of the Renzel Insurers and the Operator Insurers, specifically if the Court finds that Hartford 1s obligated to defend and/or indemnify Renzel for or with respect to any costs, expenses, damages, settlements, or judgments with respect to any of the claims asserted in the Underlying Counterclaims, that some or all of the Renzel Insurers and the Operator Insurers are liable to Hartford for their

appropriate share of the amounts incurred and/or to be incurred;

complaint.cmp.docx 21. 11. On the Eleventh Cause of Action, for indemnity in an amount to be proven at trial;

12. Onthe Twelfth Cause of Action, Hartford seeks a judicial declaration of the parties’ respective rights and obligations under the insurance policies actually or allegedly issued by Hartford, the Renzel Insurers, and the Operator Insurers. In particular, Hartford seeks a declaration that, if it is required to defend Renzel with respect to some or all of the claims asserted in the Underlying Counterclaims, then one or more of the Renzel Insurers and the Operator Insurers are required to contribute a fair and equitable proportion of the total amount of costs, including attorneys’ fees, paid and/or to be paid by Hartford to or on behélf of Renzel in | defending those claims, and a declaration of the amounts and/or percentages to be paid by each of the Renzel Insurers and the Operator Insurers;

13. On the Thirteenth Cause of Action, for reimbursement/recoupment in an amount to be proven at trial; |

14. On each Cause of Action, for attor;leys’ fees and cost's, and prejudgment interest, to the extent provided by law; and, |

15. On each Cause of Action, for such other and further relief as the Court deems just and proper.

DATED: September 7, 2018 Michael W. Ellison

Heather P. Condon

SMITH ¢ ELLISON

Michael W. Ellison Attorneys for Plaintiff HARTFORD

ACCIDENT & INDEMNITY COMPANY