THOMAS E. MULVIHILL (SBN 129906) TAMIKO A. DUNHAM (SBN 233455) 2 MITOSffl H.

FUJIO-WHITE (SBN 252839) BOORNAZIAN, JENSEN & GARTHE, PC 3 555 12th Street, Suite 1800 Oakland, CA 94607 4 Telephone: (510) 834-4350 Facsimile: (510) 839-1897

6 JULIE RHOADES (SBN 138027) 7 1660 Union Street, Suite 301 8 Telephone: (619) 881-0108 9
Facsimile: (619)881-0096 Attomeys for Plaintiff
Department Assignments Case Management 39 Law and Motion 54 Minors Compromise 22

SUSAN J. GILL (SBN 131890) GILL & RHOADES, LLP San Diego, CA 92101

10 USF INSURANCE COMPANY 11 12 13 14 15 16 17

V.

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO - UNLIMITED CIVIL JURISDICTION USF INSURANCE COMPANY, Plaintiff, Case No.: COMPLAINT FOR: DECLARATORY R E L I E F (DUTY TO DEFEND) AND EQUITABLE CONTRIBUTION

18 COMPANY and DOES 1-50, inclusive, 19 20 21

Defendants.

ILLINOIS UNION INSURANCE

COMES NOW plaintiff USF INSURANCE COMPANY (hereinafter "USFIC") and

22 alleges as follows: 23 24
1. GENERAL ALLEGATIONS USFIC is, and at all times relevant hereto was, an insurance company authorized to

25 do business and write insurance in the State of Califomia. 26

2. USFIC is informed and believes, and on the basis of this information and belief

27 alleges, that defendant ILLINOIS UNION INSURANCE COMPANY (hereinafter, "Illinois

-1Complaint for Declaratory Relief and Equitable Contribution

1 Union") is, and at all times relevant hereto was, an insurance company authorized to do business 2 and write insurance in the State of Califomia. Illinois Union is a non-admitted surplus lines 3 insurer in Califomia. 4 3. The tme names and capacities, whether individual, corporate, associate or otherwise

5 of defendant DOES 1 through 50, inclusive, are currently unknown to USFIC, who therefore sues 6 those defendants by such fictitious names. USFIC is infomted and believes, and on the basis of 7 this information and belief alleges, that each fictitiously named defendant is an insurance earner, 8 or agent or employee of an insurance carrier, responsible for defense obligations relative to tlie 9 underlying action as described herein. USFIC is entitled to the relief sought herein against all 10 these fictitious defendants and, therefore, sues these defendants by such fictitious names. USFIC 11 will insert the true names and capacities of these fictitiously named defendants, together with 12 charging allegations i f not already set forth herein, when obtained. Illinois Union and DOES 1 13 through 50, inclusive, are hereinafter collectively sometimes referred to as "DEFENDANTS." 14 15 4. The Insurance Policies USFIC insured Central Fireplace & Appliance ("CFA") under commercial general

16 liability policy number SHO 11126, effective November 3, 1999 to November 3, 2000 (the 17 "USFIC CFA Policy"); Dennis Blazona Construction, Inc., dba: Blaco, and Dennis Blazona, 18 individually (collectively, "Blazona"), under policies of general liability insurance. Policy No. 19 SHO 10561, effective November 4, 1998 to November 4, 1999, and Policy No. SHO 10561-01, 20 effective November 4, 1999 to November 4, 2000 (the "USFIC Blazona Policies"); MidCal 21 Drywall ("MidCal"), under policies of general liability insurance. Policy No. SHO 10998, 22 effective August 4, 1999 to August 4, 2000, and Policy No. SHO 10998-01, effective August 4, 23 2000 to August 4, 2001 (the "USFIC MidCal Policies"); Odom & Sons Construction & 24 Development ("Odom & Sons"), under policies of general liability insurance, Policy No. SHO 25 10822, effective April 30, 1999 to April 30, 2000, and Policy No. SHO 10822-01, effective April

26 30, 2000 to April 30, 2001 (the "USFIC Odom & Sons Policies"); Remington Builders, Inc. 27 ("Remington"), under policies of general liability insurance, Policy No. SHO 10293, effective June

Complaint for Declaratory Relief and Equitable Contribution

1 14, 1998 to June 14, 1999, Policy No. SHO 10293-01, effective June 14, 1999 to June 14, 2000, 2 and Policy No. SHO 10293-02, effective June 14, 2000 to June 14, 2001 (the "USFIC Remington 3 Policies"); Shorey Construction ("Shorey"), under a policy of general liability insurance. Policy 4 No. SHO 11565, effective August 19, 2000 to August 19, 2001 (hereinafter "USFIC Shorey 5 Policy") and Rogers Grading under a policies of general liability insurance, Policy SHO 10929, 6 effective June22, 1999 to June 22, 2000, and Policy No. SHO 10929-01, effective June. 22, 2000 to 7 June 22, 2001 (hereinafter the "USFIC Rogers Grading Policies"). The USFIC CFA Policy, 8 USFIC Blazona Policies, USFIC MidCal Policies, USFIC Odom & Sons Policies, USFIC 9 Remington Policies, USFIC Shorey Policy and USFIC Rogers Grading Policies provide, in
10 relevant part, that USFIC will pay those sums that the insured becomes legally obligated to pay as 11 damages because of property damage to which the USFIC CFA Policy, USFIC Blazona Policies, 12 USFIC MidCal Policies, USFIC Odom & Sons Policies, USFIC Remington Policies, USFIC 13 Shorey Policy and USFIC Rogers Grading Policies apply, and that USFIC will have the duty to 14 defend any suit seeking such damages. 15
5. USFIC is infomied and believes and thereupon alleges that Illinois Union insured

16 CFA under general liability insurance, Policy No. OGL 041129, effective November 3, 2000 to 17 November 3, 2001 (the "Illinois Union CFA Policy"); Blazona under a policy of general liability 18 insurance. Policy No. OGL 041125, effective November 4, 2000 to November-4, 2001 (the 19 "Illinois Union Blazona Policy"); MidCal under a policy of general liability insurance, Policy No. 20 OGL 065283, effective August 4, 2001 to August 4, 2002 (the "Illinois Union MidCal Policy"); 21 Odom & Sons under a policy of general liability insurance. Policy No. OGL 051002, effective 22 April 30, 2001 to April 30, 2002 (the "Ilhnois Union Odom & Sons Policy"); Remington.under a 23 policy of general liability insurance. Policy No. OGL 065188, effective June 14, 2001 to July 14, 24 2002 (the "Illinois Union Remington Policy"); Shorey under a policy of general liability insurance, 25 Policy No. OGL 065318, effective August 19, 2001 to March 29, 2002 (hereinafter "Illinois Union 26 Shorey Policy"); and Rogers Grading under a policy of general liability. Policy No. OGL 065217, 27 effective June 22, 2001 to June 22, 2002 (hereinafter "Illinois Union Rogers Grading Policy").
-3Complaint for Declaratory Relief and Equitable Contribution

1 USFIC is informed and believes and thereupon alleges that the Illinois Union CFA Policy, Illinois 2 Union Blazona Policy, Illinois Union MidCal Policy, Illinois Union Odom & Sons Policy, Illinois 3 Union Remington Policy, Illinois Union Shorey Policy, and Illinois Union Rogers Grading Policy 4 provide, in relevant part, that Illinois Union will pay those sums that the insured becomes legally 5 obligated to pay as damages because of property damage to which the Illinois Union CFA Policy, 6 Illinois Union Blazona Policy, Illinois Union MidCal Policy, Illinois Union Odom & Sons Policy, 7 Illinois Union Remington Policy, Illinois Union Shorey Policy and Illinois Union Rogers Grading 8 Policy apply, and that Illinois Union will have the duty to defend any suit seeking such damages. 9
10
6. The Underlying Actions This action for declaratory relief and equitable contribution arises out of numerous

11 construction defect lawsuits filed in various Califomia Superior Courts as follows (hereinafter, 12 collectively, "Underlying Actions"): 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
a. Noel Bagan, et al v. U.S Home Corp., et a l . Case No. 34-2009-00067529 filed on or about December 31, 2009 in Sacramento County Superior Court (hereinafter '''Bagan Action"); b. Natalie Bay, et al v. ToMme Ranch Assoc., et a l . Case No. 34-2009-00067529 filed on or about October 6, 2009 in San Joaquin County Superior Court (hereinafter "Bay Action"); c. Bill Garvey, et al v. Centex Homes, Inc, Case No. 34-2010-00073233 filed on or about March 18, 2010 in Sacramento County Superior Court (hereinafter "Gar\>ey Action"); d. Jess J. Soria v. Merilage Homes of Northern California, Inc., et al.. Case No. SCV27064 filed on or about April 28, 2010 in Placer County Superior Court (hereinafter "Soria Action"); e. Octavio Romero, et al v. Morrison Homes, Inc, Case No. 34-2010-00083790 filed on or about July 29, 2010 in Sacramento County Superior Court (hereinafter "Romero Action");

Complaint for Declaratory Relief and Equitable Contribution

1 2 3 4 5 6 7 8 9 10 11 12 13 14 7.

David Appel, et al. v. Atherlon Homes, LLC, et a l . Case No. 39-200800185411-CU-C.D-STK filed on or about May 30, 2008 in San Joaquin County Superior Court (hereinafter "Appel Action"); and

g. Eric & Evelyn Drumm, et al v. Greystone Homes, Inc., Case No. FGl 1570053 filed on or about April 8, 2011 in Alameda County Superior Court (hereinafter "Dnimm Action"); h. Elizabeth Ortiz, et al. v. Bright Development, Case No. 850399 filed on or about February 8, 2010 in Stanislaus County Superior Court (hereinafter "Ortiz Action"); and i. Li, et a l v. Richmond American, Case No. 30-2010-00419421-CU-CD-CXC filed on or about November 20, 2010 in Orange County Superior Court (hereinafter "Li Action"). The Basan Action USFIC is informed and believes, and on the basis of this information and belief

15 alleges, that the Bagan Action alleged, in relevant part, that U.S. Home Corp., Lennar Sales Corp. 16 and Lennar Homes of Califomia, Inc. (collectively "U.S. Home") acted as developers and/or 17 general contractors for the construction of multiple single family homes; that these single family 18 homes suffered from numerous and diverse construction defects and deficiencies; that these 19 defects and deficiencies caused or contributed to continuous and progressive damage to plaintiffs' 20 real and personal property; and that U.S. Home was liable to plaintiffs for the aforementioned 21 damages under theories of, inter alia, strict liability and negligence. 22 8. USFIC is informed and believes, and on the basis of this infomiation and belief

23 alleges, that U.S. Home filed a cross-complaint in the Bagan Action for, inter alia, equitable 24 indenmity and breach of contract against various subcontractors involved in the construction of the 25 subject properties, including CFA. USFIC is informed and believes, and upon such information 26 and belief alleges, that the cross-complaint averred, in relevant part, that the work of the cross27 defendants, including CFA, caused or contributed, in whole or in part, to the damage to real and
-5Complaint for Declaratory Relief and Equitable Contribution

1 personal property alleged in the Bagan Action. 2

9. USFIC is infomied and believes, and upon such infonnation and belief alleges, that

3 CFA worked as a fireplace subcontractor in connection with the construction of certain single 4 family homes at issue in the Bagan Action. 5
10. USFIC received notice of the Bagan Action. USFIC is defending CFA tinder the

6 USFIC CFA Policy under a reservation ofrightsand retained counsel to defend CFA in the Bagan 7 Action. 8
11. USFIC is informed and believes, and upon such information and belief alleges, that

9 a tender for the defense of the claims against CFA in the Bagan Action was made to Illinois Union
10 under the Illinois Union CFA Policy. USFIC is informed and believes, and upon such information 11 and belief alleges, that Illinois Union has not retained counsel to defend CFA or agreed to 12 participate in the defense of CFA though counsel retained by USFIC. 13
12. USFIC is incurring an increasing amount in the defense of CFA in the Bagan

14 Action. USFIC requested contribution from Illinois Union for an equitable share of the cost of 15 defense. Illinois Union refused, and continues to refuse, to reimburse USFIC for an equitable 16 share of fees and costs being incurred in the defense of CFA in the Bagan Action. 17 18
13. The Bay Action USFIC is informed and believes, and on the basis of this informafion and belief

19 alleges, that the Bay Action alleged, in relevant part, that Towne Ranch Associates and Bennett 20 Development, Inc. (collectively "Towne Ranch") acted as developers and/or general contractors 21 for the construction of multiple single farnily homes; that these single family homes suffered from 22 nunierous and diverse constmction defects and deficiencies; that these defects and deficiencies 23 caused or contributed to continuous and progressive damage to plaintiffs' real and personal 24 property; and that Towne' Ranch was liable to plaintiffs for the aforementioned damages under 25 theories of, inter alia, strict liability and negligence. 26
14. USFIC is infonned and believes, and on the basis of this informafion and belief

27 alleges, that Towne Ranch filed a cross-complaint in the Bay Action for, inter alia, implied
-6Complaint for Declaratory Relief and Equitable Contribution

1 indemnity and breach of contract against various subcontractors involved in the construction of the 2 subject properties, including CFA. USFIC is informed and believes, and upon such information 3 and belief alleges, that the cross-complaint averred, in relevant part, that the work of the cross4 defendants, including CFA, caused or contributed, in whole or in part, to the damage to real and 5 personal property alleged in the Bay Action. 6 15. USFIC is informed and believes, and upon such information and belief alleges, that

7 CFA worked as a fireplace subcontractor in connection with the construction of certain single 8 family homes at issue in the Bay Action. 9 16. USFIC received nofice of the Bay Action. USFIC is defending CFA under the

10 USFIC CFA Policy under a reservation of rights and retained counsel to defend CFA in the Bay 11 Action. 12 17. USFIC is informed and believes, and upon such infomiation and belief alleges, that

13 a tender for the defense of the claims against CFA in the Bay Acfion was made to Illinois Union 14 under the Illinois Union CFA Policy. USFIC is informed and believes, and upon such information 15 and belief alleges, that Illinois Union has not retained counsel to defend CFA or agreed to 16 participate in the defense of CFA though counsel retained by USFIC. 17 18. USFIC is incurring an increasing amount in the defense of CFA in the Bay Action.

18 USFIC requested contribution from Illinois Union for an equitable share of the cost of defense. 19 Illinois Union refused, and continues to refiise, to reimburse USFIC for an equitable share of fees 20 and costs being incurred in the defense of CFA in the Bay Action. 21 22 19. The Garvey Action USFIC is informed and believes, and on the basis of this information and belief

23 alleges, that the Garvey Action alleged, in relevant part, that Centex Homes, Inc. developed, 24 constructed, improved, converted and/or sold multiple single family homes; that these single 25 family homes suffered from numerous and diverse constmction defects and deficiencies; that these 26 defects and deficiencies caused or contributed to continuous and progressive damage to plaintiffs' 27 real and personal property; and that Centex Homes, Inc. was liable to plaintiffs for the

Complaint for Declaratory Relief and Equitable Contribution

1 aforementioned damages under theories of, inter alia, strict liability and neghgence. 2 20. . USFIC is informed and believes, and on the basis of this infomiation and belief

3 alleges, that Centex Homes filed a cross-complaint in the Garvey Action for, inter alia, equitable 4 indemnity and breach of contract against various subcontractors involved in the construction ofthe 5 subject properties, including Blazona. USFIC is infonned and believes, and upon such

6 infonnation and belief alleges, that the cross-complaint averred, in relevant part, that the work of 7 the cross-defendants, including Blazona, caused or contributed, in whole or in part, to the damage 8 to real and personal property alleged in the Garvey Action. 9 21. USFIC is informed and believes, and upon such infomiation and belief aUeges, that

10 Blazona worked as a concrete subcontractor in connection with the construction of certain single 11 family homes at issue in the Garvey Action. 12 22. USFIC received notice of the Garvey Action. USFIC is defending Blazona under

13 the USFIC Policy No. SHO 10561-01 under a reservation of rights and retained counsel to defend 14 Blazona in the Garvey Action. 15 23. USFIC is informed and believes, and upon such infonnation and belief alleges, that

16 a tender for the defense of the claims against Blazona in the Garvey Action was made to Illinois 17 Union under the Illinois Union Blazona Policy. USFIC is informed and believes, and upon such 18 infonnation and belief alleges, that Illinois Union has not retained counsel to defend Blazona or 19 agreed to participate in the defense of Blazona though counsel retained by USFIC. 20 24. USFIC is incurring an increasing amount in the defense of Blazona in the Garvey

21 Action. USFIC requested contribution from Illinois Union for an equitable share of the cost of 22 defense. Illinois Union refused, and continues to refuse, to reimburse USFIC for an equitable 23 share of fees and costs being incurred in the defense of Blazona in the Garvey Action. 24 25 25. The Soria Action USFIC is informed and beUeves, and on the basis of this information and belief

26 alleges, that the Soria Action alleged, in relevant part, that Meritage Homes of Northem 27 Califomia, Inc. and Meritage Homes of CaUfomia, Inc. (collectively "Meritage Homes")
-8-

Complaint for Declaratory Relief and Equitable Contribution

1 developed a single family home; that this single family home suffered from numerous and diverse 2 constmction defects and deficiencies; that these defects and deficiencies caused or contiibuted to 3 continuous and progressive damage to plaintiffs real and personal property; and tiiat Meritage 4 Homes was liable to plaintiff for the aforementioned damages under theories of, inter alia, strict 5 liability and negligence. 6 26. USFIC is informed and believes, and on the basis of this information and belief

7 alleges, that Meritage Homes filed a cross-complaint in the Soria Action for, inter alia, equitable 8 indemnity and breach of contract against various Roe subcontractors involved in the construction 9 of the subject property, including Blazona as Roe 3. USFIC is informed and believes, and upon 10 such information and belief alleges, that the cross-complaint averred, in relevant part, that the 11 work of the cross-defendants, including Blazona, caused or contributed, in whole or in part, to the 12 damage to real and personal property alleged in the Soria Action. 13 27. USFIC is informed and believes, and upon such information and belief alleges, that

14 Blazona worked as a concrete subcontractor in connection with the construction of the single 15 family home at issue in the Soria Action. 16 28. USFIC received notice of the Soria Action. USFIC is defending Blazona under the

17 USFIC Policy No. SHO 10561-01 under a reservation of rights and retained counsel to defend 18 Blazona in the Soria Action. 19 29. USFIC is informed and believes, and upon such information and belief alleges, that

20 a tender for the defense of the claims against Blazona in the Soria Action was made to Illinois 21 Union under the Illinois Union Blazona Policy. USFIC is informed and believes, and upon such 22 information and belief alleges, that UUnois Union has not retained counsel to defend Blazona pr 23 agreed to participate in the defense of Blazona though counsel retained by USFIC. 24 30. USFIC is incurring an increasing amount in the defense of Blazona in the Soria

25 Action. USFIC requested contribution firom Illinois Union for an equitable share of the cost of 26 defense. Illinois Union refused, and continues to refuse, to reimburse USFIC for an equitable 27 share of fees and costs being incurred in the defense of Blazona in the Soria Action.
-9Complaint for Declaratory Relief and Equitable Contribution

1 2
31.

The Romero Action USFIC is infonned and believes, and on the basis of this information and belief

3 alleges, that the Romero Action alleged, in relevant part, that MoiTison Homes, Inc. ("Morrison 4 Homes") developed, constructed, improved, converted and/or sold multiple single family homes; 5 that these single famUy homes suffered from numerous and diverse construction defects and 6 deficiencies; that these defects and deficiencies caused or contributed to continuous and 7 progressive damage to plaintiffs' real and personal propeity; and that Morrison Homes was liable 8 to plaintiffs for the aforementioned damages under theories of, inter alia, strict liability and 9 negligence.
10
32. USFIC is informed and beUeves, and on the basis of this information and belief

11 aUeges, that Morrison Homes filed a cross-complaint in the Romero Action for, inter alia, 12 equitable indemnity and breach of contract against various subcontractors involved in the 13 construction of the subject properties, including Remington. USFIC is infonned and believes, and 14 upon such information and belief alleges, that the cross-complaint averred, in relevant part, that the 15 work of the cross-defendants, including Remington, caused or contributed, in whole or in part, to 16 the damage to real and personal property alleged in the Romero Action. 17
33. USFIC is informed and believes, and upon such infomiation and belief alleges, that

18 Remington worked as a framing subcontractor in connection with the constmction of certain single 19 family homes at issue in the Romero Action. 20
34. USFIC received notice of the Romero Action. USFIC is defending Remington

21 under the USFIC Policy No. SHO 10293-02 under a reservation of rights and retained counsel to 22 defend Remington in the Romero Action. 23
35. USFIC is informed and believes, and upon such infonnation and belief alleges, that

24 a tender for the defense of the claims against Remington in the Romero Action was made to 25 Illinois Union under the Illinois Union Remington Policy.- USFIC is informed and believes, and 26 upon such information and belief alleges, that Illinois Union has not retained counsel to defend 27 Remington or agreed to participate in the defense of Remington though counsel retained by
-10Complaint for Declaratory Relief and Equitable Contribution

1 USFIC. 2
36. USFIC is incurring an increasing amount in the defense of Remington in the

3 Romero Action. USFIC requested contribution firom Illinois Union for an equitable share of the 4 cost of defense. Illinois Union refused, and continues to refuse, to reimburse USFIC for an 5 equitable share of fees and costs being incurred in the defense of Remington in the Romero Action. 6 7
37. The Appel Action USFIC is informed and believes, and on the basis of this information and belief

8 alleges, that the Appel Action alleged, in relevant part, that Atherton Homes, LLC, Atherton 9 Woodward Partners, LLC, Atherton-Boyce Development Co., LLC, Bianchi Ranch Building
10 Partners, LLC, Bianchi Ranch Partners, LLC, Emerald Glen Partners, LLC, and Woodward Park 11 Development Co., LLC (collectively "Atherton Homes") acted as developers and/or general 12 contractors for the construction of multiple single family homes; that these single family homes 13 suffered from numerous and diverse constmction defects and deficiencies; that these defects and 14 deficiencies caused or contributed to continuous and progressive damage to plaintiffs' real and 15 personal property; and that Atherton Homes was liable to plaintiffs for the aforementioned 16 damages under theories of, inter alia, strict products liability and negligence. 17
38. USFIC is informed and believes, and on the basis ofthis information and belief

18 alleges, that Bianchi Ranch Building Partners, LLC, Bianchi Ranch Partners, LLC, Emerald Glen 19 Partners, LLC, Atherton-Boyce Development, LLC, Woodward Park Development Co., LLC, and 20 Michael W. Atherton Development dba Atherton Homes, LLC (collectively "Atherton Homes") 21 filed a cross-complaint in the Appel Action for, inter alia, implied equitable indemnity and breach 22 of contract against various subcontractors involved in the constmction of the subject properties, 23 including Shorey. USFIC is informed and believes, and upon such information and belief alleges, 24 that the cross-complaint averred, in relevant part, that the work of tiie cross-defendants, including 25 Shorey, caused or contributed, in whole or in part, to the damage to real and personal property 26 alleged in the Appel Action. 27
39. USFIC is informed and beUeves, and upon such information and belief alleges,' that
-11Complaint for Declaratory Relief and Equitable Contribution

1 Shorey worked as a framing subcontractor in connection with the constmction of certain single 2 family homes at issue in the Appel Action. 3
40. USFIC received notice of tiie Appel Action. USFIC is defending Shorey under the

4 USFIC Shorey Policy under a reservation of rights and retained counsel to defend Shorey in the 5 Appel Action. 6
41. USFIC is informed and believes, and upon such information and beUef aUeges, that

7 a tender for the defense of the claims against Shorey in the Appel Action was made to Illinois 8 Union under the Illinois Union Shorey Policy. USFIC is informed and believes, and upon such 9 information and belief alleges, that Illinois Union has not retained counsel to. defend Shorey or
10 agreed to participate in the defense of Shorey though counsel retained by USFIC. 11
42. USFIC is incurring an increasing amount in the defense of Shorey in the Appel

12 Action. USFIC requested contribution from Illinois Union for an equitable share of the cost of 13 defense. Illinois Union refused, and continues to refuse, to reimburse USFIC for an equitable 14 share of fees and costs being incurred in the defense of Shorey in the Appel Action. 15 16
43. The Drumm Action USFIC is inforriied and believes, and on the basis of this information and belief

17 alleges, that the Drumm Action alleged, in relevant part, that Greystone Homes, Inc. ("Greystone") 18 acted as developer and/or general contractor for the constmction of multiple single family homes; 19 that these single family homes suffered from numerous and diverse consti'uction defects and 20 deficiencies; that these defects and deficiencies caused or contributed to continuous and 21 progressive damage to plaintiffs' real and personal property; and that Greystone was liable to 22 plaintiffs for the aforementioned damages under theories of, inter alia, strict products liability and 23 negligence. 24
44. USFIC is informed and believes, and on the basis of this information and belief

25 alleges, that Greystone filed a cross-complaint in the Drumm Action for, inter alia, equitable 26 indemnity and breach of contract against various subcontractors involved in the construction of the 27 subject properties, including MidCal. USFIC is informed and believes, and upon such information
-12Complaint for Declaratory Relief and Equitable Contribution

1 and belief alleges, that the cross-complaint averred, in relevant part, that the work of the cross2 defendants, including MidCal, caused or contributed, in whole or in part, to the damage to real and 3 personal property alleged in the Drumm Action. 4
. 45. USFIC is informed and believes, and upon such infonnation and belief alleges, that

5 MidCal worked as a drywall subcontractor in connection with the construction of certain single 6 family homes at issue in the Drumm Action. 7
46. USFIC received notice of the claims against MidCal in the Drumm Action. USFIC

8 is defending MidCal under the PoUcy SHO 10998-01, under a reservation of rights and retained 9 counsel to defend MidCal in the Drumm Action.
10
47. USFIC is informed and believes, and upon such information and belief alleges, that

11 a tender for the defense of the claims against MidCal in the Drumm Action was made to Illinois 12 Union under the lUinois Union MidCal Policy. USFIC is informed and believes, and upon such 13 information and belief alleges, that Illinois Union has not retained counsel to defend MidCal or 14 agreed to participate in the defense of MidCal though counsel retained by USFIC. 15
48. USFIC is incurring an increasing amount in the defense of MidCal in the Drumm

16 Action. USFIC requested contribution from UUnois Union for an equitable share of the cost of 17 defense. Illinois Union refused, and continues to refuse, to reimburse USFIC for an equitable 18 share of fees and costs being incurred in the defense of MidCal in the Drumm Action. 19 20
49. The Ortiz Action USFIC is informed and believes, and on the basis of this information and belief

21 alleges, that the Ortiz Action alleged, in relevant part, that Bright Development acted as developer 22 and/or general contractor for the construction of multiple single family homes; that these single 23 family homes suffered from numerous and diverse constmction defects and deficiencies; that these 24 defects and deficiencies caused or contributed to continuous and progressive damage to plaintiffs' 25 real and personal property; and that Bright Development was liable to plaintiffs for the 26 aforementioned damages under theories of, inter alia, strict products liability and negligence. 27
50. USFIC is informed and believes, and on the basis of this information and belief
-13Complaint for Declaratory Relief and Equitable Contribution

1 alleges, that Bright Developnient filed a cross-complaint in the Ortiz Action for, inter olio, 2 equitable indemnity and breach of contract against various Roe subcontractors involved in the 3 construction ofthe subject properties, including MidCal as Roe 15 and Odom & Sons as Roe 17. 4 USFIC is informed and believes, and upon such infomiation and belief alleges, that the cross5 complaint avened,'in relevant part, that the work of the cross-defendants, including MidCal and 6 Odom & Sons, caused or contributed, in whole or in part, to the damage to real and personal 7 property alleged in the Ortiz Action. 8
51. USFIC is infomied and believes, and upon such infonnation and belief alleges, that

9 MidCal worked as a drywall subcontractor and Odom & Sons worked as a framing subcontractor
10 in connection with the construction of certain single family homes at issue in the Ortiz Action. 11
52. USFIC received notice of the Ortiz Action. USFIC is defending MidCal and Odom

12 & Sons.under the USFIC MidCal Policies and USFIC Odom & Sons PoUcies, respectively, under 13 a reservation of rights and retained counsel to defend MidCal and Odom & Sons in the Ortiz 14 Action. 15
53. USFIC is informed and believes, ahd upon such information and belief alleges, that

16 a tender for the defense of the claims against MidCal and Odom & Sons in the Ortiz Action was 17 made to Illinois Union under the Illinois Union MidCal Policy and Illinois Union Odom & Sons 18 Policy, respectively. USFIC is informed and believes, and upon such information and belief 19 alleges, that Illinois Union has not retained counsel to defend MidCal and Odom & Sons or agreed 20 to participate in the defense of MidCal and Odom & Sons though counsel retained by USFIC. 21
54. USFIC is incurring an increasing amount in the defense of MidCal and Odom &

22 Sons in the Ortiz Action. USFIC requested contribution from Illinois Union for an equitable share 23 ofthe cost of defense. Illinois Union refiised, and continues to refuse, to reimburse USFIC for an 24 equitable share of fees and costs being incurred in the defense of MidCal and Odom & Sons in the 25 Ortiz Action. 26 27

-14Complaint for Declaratory Relief and Equitable Contribution

1 2
55.

The L i Action USFIC is informed and .believes, and on the basis of this inforniation and belief

3 alleges, that the L i Action alleged, in relevant part, that Riclunond America acted as developer 4 and/or general contractor for the constmction of multiple single family homes; that these single 5 family homes suffered from numerous and diverse construction defects and deficiencies; that these 6 defects and deficiencies caused or contributed to continuous and progressive damage to plaintiffs' 7 real and personal property; and that Richmond America was liable to plaintiffs for the 8 aforementioned damages under theories of, inter alia, strict products liability and negligence. 9
56. USFIC is informed and beUeves, and on the basis of this information and belief

10 alleges, that Richmond America filed a cross-complaint in the Li Action for, inter alia, equitable 11 indemnity and breach of contract against various Roe subcontractors involved in the construction 12 of the subject properties, including Rogers Grading. USFIC is informed and believes, and upon 13 such information and belief alleges, that the cross-complaint averred, in relevant part, that the 14 work of the cross-defendants, including Rogers Grading, caused or contributed, in whole or in part, 15 to the damage to real and personal property alleged ia the Li Action. 16
57. USFIC is infomied and believes, and upon such information and belief alleges, that

17 Rogers Grading worked as a fmish grader in connection with the construction of certain single 18 family homes at issue in the Li Action. 19
58. USFIC received notice of the Li Action. USFIC is defending Rogers Grading

20 through the USFIC Rogers Grading Policies, under a reservation of rights and retained counsel to 21 defend Rogers Grading in the Li Action. 22
59. USFIC is infomied and believes, and upon such information and belief aUeges, that

23 a tender for the defense ofthe claims against Rogers Grading in the Li Action was made to Illinois 24 Union under the Illinois Union Rogers Grading Policy. USFIC is informed and believes, and upon 25 such information and belief alleges, that Illinois Union has not retained counsel to defend Rogers 26 Grading or agreed to participate in the defense of Rogers Grading through counsel retained by 27 USFIC.
-15Complaint for Declaratory Relief and Equitable Contribution

60.

USFIC is incurring an increasing amount in the defense of Rogers Grading in the Li

2 Action. USFIC requested contribution from Illinois Union for an equitable share of the cost of 3 defense. Illinois Union refused, and continues to refuse, to reimburse USFIC for an equitable 4 share of fees and costs being incurred in the defense of Rogers Grading in the Li Action. 5 6 7 8
61. USFIC hereby incorporates the allegations contained in paragraphs 1 tiirough 60, FIRST CAUSE OF ACTION DECLARATORY R E L I E F (Duty to Defend)

9 inclusive, as though fully set forth herein.

10
62.' USFIC is infonned and believes, and on the basis of this infonnation and belief

11 alleges, that DEFENDANTS are contractually obligated to provide a defense to CFA in comiection 12 with the Bagan Action and the Bay Action, Blazona ia connection with the Garvey Action and the 13 Soria Action, MidCal in connection with the Drumm Action and Ortiz Action, Odom & Sons in 14 connection with the Ortiz Action, Remington in connection with the Romero Action, Shorey in 15 connection with the Appel Action, and Rogers Grading in connection with the Li Action, pursuant 16 to the terms of their respective policies of insurance. 17
63. USFIC is infomied and believes, and on the basis of this information and belief

18 alleges, that DEFENDANTS dispute the foregoing contention. As of the date of this complaint, 19 DEFENDANTS have refiised to acknowledge their confractual obligations to defend CFA in the 20 Bagan Action and the Bay Action, Blazona in the Garvey Action and the Soria Action, MidCal in 21 the Drumm Action and Ortiz Action, Odom & Sons in the Ortiz Action, Remington in the Romero 22 Action, Shorey in the Appel Action, and Rogers Grading in the Li Action. 23
64. An actual controversy has arisen and now exists between USFIC and

24 DEFENDANTS conceming DEFENDANTS' rights, duties and obligations under tiieir insurance 25 policies in connection with the defense of CFA against the claims asserted in the Bagan Action 26 and the Bay Action, Blazona against the claims asserted in tiie Garvey Action and the Soria 27 Action, MidCal against the claims asserted in the Drumm Action and Ortiz Action, Odom & Sons
-16Complatnt for Declaratory Relief and Equitable Contribution

1 against the claims asserted in the Ortiz Action, Remington against the claims asserted in the 2 Romero Action, Shorey against the claims asserted in the Appel Action, and Rogers Grading 3 against the claims asserted in the L i Action. USFIC contends, and on information and belief 4 DEFENDANTS deny, that DEFENDANTS owed duties to defend CFA in connection with tiie 5 Bagan Action and the Bay Action, Blazona in connection with the Garvey Action and the Soria 6 Action, MidCal in connection with the Drumm Action and Ortiz Action, Odom & Sons in 7 connection with the Ortiz Action, Remington in connection with the Romero Action, Shorey in 8 connection with the Appel Action, and Rogers Grading in connection with the Li Action. 9 65. USFIC desires a judicial determination with respect to the rights, duties and

10 obligations under the parties' respective policies of insurance. Such a determination is necessary 11 and appropriate at this time in order that the parties may ascertain their rights, duties and 12 obligations to each other. 13 66. USFIC expressly reserves all rights to assert a cause of action for declaratory relief

14 on the duty to indemnify with respect to the Underlying Actions should it become wan'anted. 15 16 17 67. SECOND CAUSE OF ACTION EQUITABLE CONTRIBUTION USFIC hereby incorporates the allegations contained in paragraphs 1 through 66,

18 inclusive, as though fully set forth herein. 19 68. USFIC contends that DEFENDANTS failed and refiised to pay their equitable

20 shares of the defense of CFA in the Bagan Action and the Bay Action, Blazona in the Garvey 21 Action and the Soria Action, MidCal in the Drumm Action and Ortiz Action, Odom & Sons in the 22 Ortiz Action, Remington in the Romero Action, Shorey in the Appel Action, and Rogers Grading 23 in the L i Action. USFIC further contends DEFENDANTS' failure and refiisal to pay their

24 equitable shares of the defense of CFA in the Bagan Action and the Bay Action, Blazona in the 25 Garvey Action and the Soria Action, MidCal in the Drumm Action and Ortiz Action, Odom & 26 Sons in the Ortiz Action, Remington in the Romero Action, Shorey in the Appel Action, and 27 Rogers Grading in the Li Action, is resulting in USFIC's payment of more than its equitable share
-17Complaint for Declaratory Relief and Equitable Contribution

1 of the defense of CFA in the Bagan Action, Blazona in the Garvey Action and the Soria Action, 2 MidCal in the Drumm Action and Ortiz Action, Odom & Sons in the Ortiz Actjon, Remington in 3 the Romero Action, Shorey in the Appel Action, and Rogers Grading in the Li Action. 4
69. DEFENDANTS have an obligation to equitably contribute towards all fees, costs,

5 and expenses incuired to defend CFA in the Bagan Action and the Bay Action, Blazona in the 6 Garvey Action and the Soria Action, MidCal in the Drumm Action and Ortiz Action, Odom & 7 Sons in the Ortiz Action, Remington in the Romero Action, Shorey in the Appel Action, and 8 Rogers Grading in the-/,/Action. 9
70. USFIC desires a judicial determination of the equitable shares owed by

10 DEFENDANTS under their respective insurance policies towards the total amounts incun-ed by 11 USFIC to defend CFA in connection with the Bagan Action and the Bay Action, Blazona in 12 connection with the Garvey Action and the Soria Action, MidCal in connection with the Drumm 13 Action and Ortiz Action, Odom & Sons in connection with the Ortiz Action, Remington in

14 connection with the Romero Action, Shorey in connection with the Appel Action, and Rogers .
15 Grading in connection with the Li Action. 16
71. Ajudicial declaration as to DEFENDANTS' equitable shares of defense costs of

17 CFA in the Bagan Action and-the Bay Action, Blazona in the Garvey Action and the Soria Action, 18 MidCal in the Drumm Action and Ortiz Action, Odom & Sons in the Ortiz Action, Remington in 19 the Romero Action, Shorey in the Appel Action, and Rogers Grading in the L i Action, is necessary 20 and appropriate in order for USFIC to ascertain DEFENDANTS' defense obligations. USFIC 21 seeks a judicial declaration regarding equitable contribution by DEFENDANTS towards the 22 defense fees and costs paid by USFIC on behalf of CFA in the Bagan Action and the -Bay Action, 23 Blazona in the Garvey Action and the Soria Action, MidCal in the Drumm Action and Ortiz 24 Action, Odom & Sons in the Ortiz Action, Remington in the Romero Action, Shorey in the Appel 25 Action, and Rogers Grading in the Li Action. 26 27

-18Complaint for.Declaratory Relief and Equitable Contribution

72.

USFIC contends it is entitled to equitable reimbursement frorn DEFENDANTS for

2 the defense costs incuned on behalf of CFA in the Bagan Action and the Bay Action, Blazona in 3 the Garvey Action and the Soria Action, MidCal in the Drumm Action and Ortiz Action, Odom & 4 Sons in the Ortiz Action, Remington in the Romero Action, Shorey in the Ajjpel Action, and 5 Rogers Grading in the Li Action, according to proof 6 73. USFIC expressly reserves aU rights to assert a cause of action for equitable

7 contribution for indemnity with respect to the Underlying Actions should it becomes warranted. 8 9 10 PRAYER FOR RELIEF WHEREFORE, USFIC prays for judgment as follows: 1. On the First Cause of Action, for a declaration that Ulinois Union, and each Doe

11 Defendant, have a duty to provide a defense to CFA in connection with the Bagan Action and the 12 Bay Action, Blazona in connection with the Garvey Action and the Soria Action, MidCal in 13 connection with the Drumm Action and Ortiz Action, Odom & Sons in connection with the Ortiz 14 Action, Remington in connection with the Romero Action, Shorey in connection with tiie Appel 15 Action, and Rogers Grading in connection with the Li Action. 16 2. On the Second Cause of Action, for an equitable order and declaration ofthis court,

17 detennining the specific amounts of reimbursement owed by Illinois Union and each Doe 18 Defendant to USFIC in relafion to all fees, costs, and expenses incurred by USFIC in connection 19 with the defense of CFA in the Bagan Action and the Bay Action, Blazona in the Garvey Action 20 and the Soria Action, MidCal in the Drumm Action and Ortiz Action, Odom & Sons in the Ortiz 21 Action, Remington in the Romero Action, Shorey in the Appel Action, and Rogers Grading in the 22 Li Action. 23 24 25 26 27 3. 4. For USFIC's costs of suit incurred herein; For pre-judgment and post-judgment interest;

-19Complaint for Declaratory Relief and Equitable Contribution

1 2 3 4 5 6 7 8 9 10 11 12 13

5. 6. DATED:

For attomey fees incurred to pursue this action; and For aU such other and further relief as the court may deem just and proper. 2011

BOORNAZIAN, JENSEN & GARTHE A Professional Corporation

By: THOMAS E. MULVIHILL, ESQ. f AJvdIKO A. DUNHAM, ESQ. MITOSHI H. FUJIO-WHITE, ESQ. Attomeys forPlaintiff USF INSURANCE COMPANY DATED: 2011 GILL & RHOADES, LLP

By: 14 15 16 17
25930\564903

SUSAN J. GILL, ESQ. JULIE RI-IOADES, ESQ. Attomeys for Plaintiff USF INSURANCE COMPANY

18 19 20 21 22 23 24 25 26 27

-20-

Complaint for Declaratory Relief and Equitable Contribution

1 2 3 4 5 6 7 8 9 10 M 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

5. 6. DATED:

For attorney fees incurred to pursue this action; and For all such other and further relief as the court may deem just and proper.
_,20l I

BOORNAZIAN, JENSEN & GARTHE A Professional Corporation

By: THOMAS E. MULVIHILL, ESQ. TAMIKO A. DUNHAM, ESQ. MITOSHI l-I. FUJIO-WHITE, ESQ. Attorneys for Plaintiff USF INSURANCE COMPANY DATED: ,201: GILL & RHOADES, LLP

By:

SUSAN J./GILL, ESQ. JUUE RHfflADES, ESQ. AttomeyV for Plaintiff USF INSURANCE COMPANY

25930X564903

-20-

Complainl for Declaratory Relief and liquitablc Conlribiition