anselmo et al v. maryland casualty company et al complaint

8/13/2019 ANSELMO et al v. MARYLAND CASUALTY COMPANY et al complaint

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K.GREG PETERSONLAW Qf H tS

Case 2:14-cv-00162-WBS -AC Docume nt 1 Filed 01/21/14 Page 1 of 10

K. Greg P eterson, Esq. (SBN : 118287)LAW OFFICES O F K. GREG PETE RSO N1716 L StreetSacramento, California 95811Telephone: (916)443-3010Facsimile: (916)492-2680Email: [email protected]

Attorneys for Plaintiffs

IN THE UN ITED STATE S DISTRICT CO URT

FOR T HE E ASTERN DISTR ICT O F CALIFORN IA

ELEAN O R J. AN SE LMO , individually, andas Trustee under that certain documententitled Th e Albert A. and Eleanor J.Anselmo 1988 R evocable T rust DatedFebruary 19, 1988, and as S uccessor-in-interest to Albert A. Anselmo , D eceased;RO SALIE A. ANS ELM O , individually and asCo-Trustee under that certain documententitled The E dward A. Anselmo andR osalie A. Anselmo 1992 R evocable T rustDated December 21 , 1992; KAREN L

LILIENTHAL, as Co-Trustee under thatcertain docum ent entitled The Edw ard A.Anselmo and Rosalie A. Anselmo 1992Revocable Trust Dated December 21,1992; DAVE DAVELAAR , individually, andLINDA DAVE LAAR , individually,

Plaintiffs,

vs.

MARYLAND CASUALTY COMPANY, aZurich in North America Company, aMaryland corporation; and CENTURYINDEMNITY COMPANY, as successor-in-interest to CCI Insurance Company, assuccessor-in-interest to InsuranceCompany of N orth America, a P ennsylvaniacorporation,

Defendants.

Case No.:COMPLAINT FOR BREACH OFCONTRACT DAMAGES,DECLARATORY RELIEF ANDACCOUNTING

JURY TRIAL DEMANDED

1

COMPLAINT FOR BREACH OF CON TRACT DAMAGES,

DECLARATORY RELIEF AND ACCOUNTING
mailto:[email protected]:[email protected]


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K.GREG PETERSON

Case 2:14-cv-00162-W BS -AC Docum ent 1 Filed 01/21/14 Page 2 of 10

P laintiffs, ELE AN O R J. AN S E LMO , individually, and as T rustee under that c

document entitled The Albert A. and Eleanor J. Anselmo 1988 Revocable Trust Dated

February 19, 1988, and as Successor-in-interest to Albert A. Anselmo, Deceased;

ROSALIE A. ANSELMO, individually and as Co-Trustee under that certain docume

entitled The E dward A. Anselmo and R osalie A. Anselmo 1992 Re vocable Trust Dated

December 21 , 1992; KAREN L. LILIENTHAL, as Co-Trustee under that certain

document entitled The E dward A. Anselmo and R osalie A. Anselmo 1992 Revocable

T rust Dated December 21 , 1992; DAVE DAVELAAR , individually, and LINDA

DAVELAAR, individually, allege as follows:

NATURE OF ACTION

1. This is an action by P laintiffs to recover insurance benefits owed to them

by Defendants based upon the claims and under the insurance policies described

hereinbelow. Th is is an action for breach of contract, declaratory relief, and an

accounting.

JURISDICTION AND VENUE

2. T his is a civil action between citizens of different states and the amou nt

controversy exceeds $75,00 0, exclusive of costs and interest. Th is court has diversity

jurisdiction under 28 U.S.C. 1332. Add itiona lly, the court has jurisdiction for providin

declaratory relief pursuant to 28 U.S.C. 2201.

3. Venu e is appropriate in this court because a substantial part of the event

allegedly giving rise to this dispute took place in Sacramento County, California.

THE PARTIES

4. Plaintiff ELE AN O R J. AN S EL MO is an individual, residing in Sacram

Coun ty, California, and the T rustee under that certain docum ent entitled The Albert A

and Eleanor J. Anselmo 1988 R evocable T rust Dated February 19, 1988, and as

S uccessor-in-interest to Albert A. Anselmo, Deceased. Eleanor J. Anselmo and Albe

A. Anselm o, who died on or about N ovember 2, 2009, were co-owners of the real

-2-COMPLAINT FOR BREACH OF CONTRACT DAMAGES,



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K.GREG PETERSONLAW OFflCES

Case 2:14-cv-00162-WB S-AC Docume nt 1 Filed 01/21/14 Page 3 of 10

property located at 4301 Power Inn R oad, S acram ento, California (the P roperty ) from

1976 to 1996.

5. Plaintiff RO SALIE A. AN S ELM O is an individual residing in Sacrame

County, California, and the Co-T rustee under that certain document entitled The

Edward A. Anselmo and Rosalie A. Anselmo 1992 Revocable Trust Dated December

21, 1992. Rosalie A. Anselmo and E dward A. Anselmo, who died on or about Janua

2, 2009, were co-owners of the Property from 1976 to 1996.

6. Plaintiff KAR EN L. LILIEN TH AL, as Co-Trustee under that certain

document entitled The E dward A. Anselmo and Rosalie A. Anselmo 1992 Revocable

Trust Dated December 21 , 1992, is a resident of Sacramento County, California.

7. P laintiff DAVE DAVELAAR is an individual residing in Skagit County,

Washington state, and was a co-owner of the Property from 1976 to 1996.

8. P laintiff LIND A DAVELAAR is an individual residing in S kagit County

Washington state, and was a co-owner of the Property from 1976 to 1996.

9. P laintiffs are informed and believe that Defendant MAR YLAN D

CASUALTY COMPANY, a Zurich in North America Company, is a corporation orga

and existing under the laws of the state of Maryland w ith its principal place of busine

in Schaum burg, Illinois. Defendant MARYLAN D CAS UALT Y CO MP AN Y is, and

times relevant was, an insurance company eligible to do business and was doing

business as an insurer in the state of California.

10. Plaintiffs are informed and believe that Defendant CEN TUR Y IN DE MN

CO MP AN Y, as successor-in-interest to CCI Insurance Company, as successor-in-

interest to Insurance Company of North America, is a corporation organized and exist

under the laws of the state of Pennsylvania with its principal place of business in

Philadelphia, Pennsylvania. Defendant CEN TUR Y INDEMN ITY CO MP ANY is, an

all times relevant was, an insurance company eligible to do business and was doing

business as an insurer in the state of California.

COMPLAINT FOR BREACH OF CON TRACT DAMAGES,

DECLARATORY RELIEF AND ACCOUN TING


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K.GREG PETERSONLAW OFFICES

Case 2:14-cv-00162-WB S-AC Documen t 1 Filed 01/21/14 Page 4 of 10

GENERAL ALLEGATIONS

11. Defendant CEN TUR Y INDEM N ITY CO MP ANY issued a commercial

gene ral liability policy - Policy No. AG P DO 399 827-7 (the Century Policy ) insurin

P roperty to Edw ard A. Anselmo, R osalie A. Anselmo, as well as Dave Davelaar and

Linda Davelaar and Albert A. Anselmo and Eleanor J. Anselmo, as per CC1E15 Named

Insured Endo rsemen t (Partnership). T he policy carries a property dam age limit of

$500,000 per occurrence, per policy, with a $500,000 aggregate limit. The C entury

Policy was in effect December 31, 1980 to December 31, 1982.

12. Defendant MARYLAN D CASUALT Y CO MP ANY issued a commercia

general liability policy - Policy No. SM 67026921 (MP 0093 ed. 7/22, MP 0090 ed. 7

(the Maryland Ca sualty P olicy ), insuring the Prope rty to Edw ard A. Ans elmo , Ros

A. Anselmo, Dave Davelaar and Linda Davelaar and Albert A. Anselmo and Eleanor

Anselm o, as their interests may appear, as per N amed Insured Endorsement attached

The policies carry a property damage limit of $500,000 per occurrence, per policy, wi

$1,000 ,000 ge neral liability aggregate limit per policy. The Ma ryland Ca sualty P olicy

was in effect during January 13, 1982 to January 13, 1984.

13. O n or about July 15, 2002, James Kotrous filed an action in the U. S.

District Court, Eastern District of California, Case No. 2:02-cv-01520 (the Kotrous

Lawsuit ), naming as defendants Edward A. Anselmo, a former property owner, of th

Property Goss-Jewett, the former operator of a dry cleaning supply business located o

the Property, a manufacturer of perchloroethylene ( PCE ), and various remediation

consultants. T he action sought recovery of Mr. Kotrous's response costs and other

damages under the Com prehensive Environmental R esponse, Compensation and

Liability Act, 42 U.S.C. 9601 e t seq. , the California Carpenter-Presley-Tanner

Hazardous Substances Act and various common law theories incurred in the

investigation and remediation of PCE contamination in the soil and groundwater bene

and emanating from the Property.

-4-COMPLAINT FOR BREACH OF CONT RACT DAMAGES,



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.GREG PETERSONLAW CFflCSS

Case 2:14-cv-00162-WB S-AC Docum ent 1 Filed 01/21/14 Page 5 of 10

14. Edward A. Anselmo died during the pendency of the action and was

succeeded by Plaintiffs R O SALIE A. AN SE LMO and KARE N L. LILIEN THAL, a

Trustees of the Edward A. and Rosalie A. Anselmo 1992 R evocable T rust.

15. P laintiffs were eventually all name d as defendan ts, counter-defendants

and/or cross-defendants in the Kotrous Lawsuit.

16. Under the terms of the Maryland Casualty Policy, P laintiffs first tendere

their defense of the Kotrous Lawsuit to Defendant MARYLAND CASUALTY COM

on or about March 4, 2003.

17. O n or about May 8, 2003, Defendant MAR YLAND CASUALTY COM

agreed to defend Plaintiffs, subject to a reservation of rights.

18. Under the terms of the Century Indemnity Policy, P laintiffs first tendered

their defense of the Kotrous Lawsuit to Defendant CENTURY INDEMNITY COMP

on or about August 5, 2005.

19. O n or about O ctober 10, 2006, Defendant CEN TUR Y INDE MN ITY

COMPANY agreed to defend Plaintiffs in the Kotrous Lawsuit, subject to a reservatio

rights.

20 . T he Ko trous Lawsuit was ultimately resolved by settlement in connectiowith which the other parties to the Kotrous Lawsuit agreed to pay Plaintiffs and into a

court fund the sum of $670,000. A written settlement a greeme nt was entered into

between the parties to the Kotrous Lawsuit on March 7, 2011, and a motion for

determination of good faith settlement was heard and decided on April 26, 2011, which

finalized the settlemen t. R emediation of the P roperty is on-going and paym ents are s

being made from the court fund towards further site investigation, testing, reporting a

remediation.

21. P laintiffs incurred defense costs in the Kotrous Lawsuit in the form of

attorney's fees and costs, consultant and expe rt witness fees and other investigation

expenses, which were not reimbursed and are due and owing to them from Defendant

-5 -COMPLAINT FOR BREACH OF CONTRACT DAMAGES,



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K.GREG PETERSONLAW Off CES

Case 2:14-cv-00162-WBS -AC Document 1 Filed 01/21/14 Page 6 of 10

22 . P laintiffs have forwarded to Defendants invoices for payment of the abo

referenced unpaid defense costs, which Defendants have failed and refused to pay. T

unreimbursed defense costs owed to Plaintiffs by Defendants are substantially in exce

of $500,000.

FIRST CAUSE OF ACTION BREACH OF CONTRACT AGAINSTDEFENDANTS MARYLAND CASUALTY COMPANY AND

CENTURY INDEMNITY COMPANY

23. P laintiffs incorporate by reference as though fully set forth herein, the

allegations of paragraphs 1 through 22 of this Com plaint.

24 . Under the terms of the Maryland Casualty Policy and the Century Policy

and pursuant to their agreements to defend Plaintiffs in the Kotrous Lawsuit, Defendaowed a duty to defend P laintiffs and to pay P laintiffs their defense costs incurred in

connection with investigating and defending against the Kotrous Lawsuit, including

Plaintiffs' attorney's fees and costs, consultant and expert witness fees and other

investigation expenses.

25 . Defendants breached the above-referenced duties by failing to pay

P laintiffs' defense costs in connection with the K otrous Lawsuit.

26 . P laintiffs we re not aware of Defenda nts' breaches and failures to

reimburse all of their defense costs until approximately August 14, 2013, and after

engaging the services of a consultant to review and analyze all of the invoices for

Plaintiffs' attorney's fees and costs, consultant and expert witness fees and other

investigation expenses, and comparing those against records of the checks paid by

P laintiffs' insurance carriers (including Defenda nts), in connection with the defense of

the Kotrous Lawsuit.27 . As a result of said consultant's engagem ent, P laintiffs are informed and

believe that a total of 3,582,811.22 of defense costs were incurred in connection with

defense of the K otrous Law suit, and that a total of only 2,271,537.41 in payments were

-6-COMPLAINT FOR BREACH O F CON TRACT DAMAGES,



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K.GREG PETERSONLAW QFFlCtS

Case 2:14-cv-00162-WB S -AC Docum ent 1 Filed 01/21/14 P age 7 of 10

made by Plaintiffs' insurance carriers, which figure includes payments made by

Defendants and a third insurance carrier (Hartford) which is not a party to this action.

28. P laintiffs have dem anded that Defendants pay their unreimbursed defen se

costs and that Defendants p rovide them with detailed information co ncerning their

payment of the Plaintiffs' defense costs, including amounts and dates of payments

made, check information, and, for payments denied, information related to the amounts

of payments denied and the reasons for said denial.

29. Defendants have not responded to P laintiffs' dema nds for payment and

have failed to supply Plaintiffs with detailed information showing Defendants' paymen

or supporting their reasons for non-payment.

30. As a result of Defendan ts' failure to pay P laintiffs' defense costs in the

Kotrous Lawsuit, P laintiffs' have be en dam aged in an amount subject to proof, of not

less than $500,000.

WH ER EF O R E, P laintiffs pray for judgment as set forth below.

SECOND CAUSE OF ACTION DECLARATORY RELIEF ANDACCOUNTING AGAINST DEFENDANTS MARYLAND CASUALTY

COMPANY AND CENTURY INDEMNITY COMPANY

31. P laintiffs incorporate by reference as though fully set forth herein, the

allegations of paragraphs 1 through 30 of this Complaint.

32. A dispute exists between P laintiffs and Defendants involving significant

rights and obligations of the parties under the above-referenced insurance policies and

in connection with the defense of the Ko trous Law suit.

33. P laintiffs contend that Defendants have failed to pay defense costs owed

to Plaintiffs in connection with their defense of the Kotrous Lawsuit, and that Plaintiffsare owed unreimbursed defense costs under the terms of their policies in excess of

$500,000 in relation to the Kotrous Lawsuit which should have been paid to them by

Defendants.

-7-COMPLAINT FOR BREACH OF CONTRACT DAMAGES,



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K.GREG PETERSONLAW OFFICES

Case 2:14-cv-00162-WB S-AC Docume nt 1 Filed 01/21/14 Page 8 of 10

34. P laintiffs are informed and believe that Defendants contend they do not

owe Plaintiffs any further unreimbursed defense costs either because those defense

costs have already been paid or because certain defense costs were not paid because

they are not covered under the above-referenced insurance policies, or, in the

alternative, that if Plaintiffs are ow ed a nything, it is an am ount sub stantially less than

$500,000.

35. It is accordingly necessary that the Court declare the rights and duties of

the parties with respect to the amount of unreimbursed defense costs owed to Plaintif

by Defendants under the above -referenced insurance policies. However, the accounti

of the invoices and payments made is complicated because of the number of invoices

and payments made over many years and the fact that much of the information needeto prepare such an accounting and to properly declare the rights and obligations of the

parties is within the control of Defendan ts and not available to Plaintiffs. Acco rdingly

P laintiffs request that the Court order a court supervised accounting as part of the

Cou rt's equitable and declaratory relief, insofar as a declaration fixing the sum s owed

P laintiffs or not owed would o therwise be difficult and impractical to ascertain.

PRAYER

WHEREFORE, Plaintiffs pray for a judgment against Defendants MARYLAN

CASUALTY CO MPANY and CEN TURY INDE MNITY CO MPANY as follows:

As to the First Cause of Action:

1. For an award of dam ages against Defendants in the amou nt of P laintiffs'

un-reimbursed defense costs in the Ko trous Lawsuit, subject to proof;

As to the S econd Cause of Action:1. O rdering that an accoun ting be prepared of all defense costs incurred by

Plaintiffs in defense of the Kotrous Lawsuit and determining those amounts which

Defendants have wrongfully failed to pay;

-8-COMPLAINT FOR BREACH OF CONT RACT DAMAGES,

DECLARATOR Y RELIEF AND ACCOUNTING


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K.GREG PETERSONLAW Of HCtS

Case 2:14-cv-00162-WB S-AC Document 1 Filed 01/21/14 Page 9 of 10

2. O rdering that, in conjunction with said accou nting, Defendants be order

to produce detailed information concerning their payment of the Plaintiffs' defense co

in the Kotrous Lawsuit, including the amounts and dates of payments made, check

information, and, for payments denied, information related to the amounts of paymen

denied and reasons for said denial;

3. O rdering Defendants to immediately pay P laintiffs' all of their un

reimbursed defense costs;

As to all Causes of Action :

1. For an award of pre-judgme nt interest;

2. For an award of P laintiffs' costs of suit herein incurre d; and

3. For such other and further relief in the form of dam ages or equity, as thiscourt shall deem appropriate.

Dated: January 21 , 2104 LAW OFFICES OF K. GREG PETER SO N

By:K. Greg Peterson, Esq., attorney forPlaintiffs

COMPLAINT FOR BREACH OF CONTRACT DAMAGES,DECLARATORY RELIEF AND ACCOUNTING


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K.GREG PETERSON

Case 2:14-cv-00162-WBS -AC Docum ent 1 Filed 01/21/14 Page 10 of 10

DEMAND FOR JURY TRIAL.

Plaintiffs E LEAN O R J. AN S EL MO , individually, and as Trustee under that ce

docum ent entitled The Albert A. and Eleanor J. Anselm o 1988 R evocable Trust Dated

February 19, 1988, and as Successor-in-interest to Albert A. Anselmo, Deceased;

RO SALIE A. AN S E LMO , individually and as Co-Trustee under that certain docume

entitled The E dward A. Anselmo and R osalie A. Anselmo 1992 R evocable Trust Dated

December 21 , 1992; KAREN L. LILIENTHAL, as Co-Trustee under that certain

document entitled The E dward A. Anselmo and Rosalie A. Anselm o 1992 Revocable

Trust Dated December 21, 1992; DAVE DAVELAAR , individually, and LINDA

DAVE LAAR , individually, dem and a trial by jury in this action.

Dated: January 21 , 2104 LAW OFFICES OF K. GREG PETERSON

K. Greg Peterson, Esq., attorney forPlaintiffs

1

COMPLAINT FOR BREACH OF CONTRACT DAMAGES,DECLARATORY RELIEF AND ACCOUNTING

anselmo et al v. maryland casualty company et al complaint

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