Case 2:14-cv-00162-WBS-AC

Document 1 Filed 01/21/14 Page 1 of 10

1 K. Greg Peterson, Esq. (SBN: 118287) 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23
vs. MARYLAND CASUALTY COMPANY, a ELEANOR J. ANSELMO, individually, and as Trustee under that certain document entitled "The Albert A. and Eleanor J. Anselmo 1988 Revocable Trust" Dated February 19, 1988, and as Successor-ininterest to Albert A. Anselmo, Deceased; ROSALIE A. ANSELMO, individually and as Co-Trustee under that certain document entitled "The Edward A. Anselmo and Rosalie A. Anselmo 1992 Revocable Trust" Dated December 21, 1992; KAREN L LILIENTHAL, as Co-Trustee under that certain document entitled "The Edward A. Anselmo and Rosalie A. Anselmo 1992 Revocable Trust" Dated December 21, 1992; DAVE DAVELAAR , individually, and LINDA DAVELAAR, individually, Plaintiffs, Case No.: COMPLAINT FOR BREACH OF CONTRACT DAMAGES, DECLARATORY RELIEF AND ACCOUNTING JURY TRIAL DEMANDED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Attorneys for Plaintiffs LAW OFFICES OF K. GREG PETERSON 1716 L Street Sacramento, California 95811 Telephone: (916)443-3010 Facsimile: (916)492-2680 Email: greg@kgregpeterson.com

24 Zurich in North America Company, a 25 26 27 28

Maryland corporation; and CENTURY INDEMNITY COMPANY, as successor-ininterest to CCI Insurance Company, as successor-in-interest to Insurance Company of North America, a Pennsylvania corporation, Defendants. -1COMPLAINT FOR BREACH OF CONTRACT DAMAGES, DECLARATORY RELIEF AND ACCOUNTING

K.GREG PETERSON
LAW Qf HCtS

Case 2:14-cv-00162-WBS-AC

Document 1 Filed 01/21/14 Page 2 of 10

Plaintiffs, ELEANOR J. ANSELMO, individually, and as Trustee under that certain

2 document entitled "The Albert A. and Eleanor J. Anselmo 1988 Revocable Trust" Dated 3 February 19, 1988, and as Successor-in-interest to Albert A. Anselmo, Deceased; 4 ROSALIE A. ANSELMO, individually and as Co-Trustee under that certain document 5 entitled "The Edward A. Anselmo and Rosalie A. Anselmo 1992 Revocable Trust" Dated 6 December 21, 1992; KAREN L. LILIENTHAL, as Co-Trustee under that certain 7 document entitled "The Edward A. Anselmo and Rosalie A. Anselmo 1992 Revocable 8 Trust" Dated December 21, 1992; DAVE DAVELAAR , individually, and LINDA 9 DAVELAAR, individually, allege as follows:
10 11
1. NATURE OF ACTION This is an action by Plaintiffs to recover insurance benefits owed to them

12 by Defendants based upon the claims and under the insurance policies described 13 hereinbelow. This is an action for breach of contract, declaratory relief, and an 14 accounting. 15 16
2. JURISDICTION AND VENUE This is a civil action between citizens of different states and the amount in

17 controversy exceeds $75,000, exclusive of costs and interest. This court has diversity 18 jurisdiction under 28 U.S.C. 1332. Additionally, the court has jurisdiction for providing 19 declaratory relief pursuant to 28 U.S.C. 2201. 20
3. Venue is appropriate in this court because a substantial part of the events

21 allegedly giving rise to this dispute took place in Sacramento County, California. 22 23
4. THE PARTIES Plaintiff ELEANOR J. ANSELMO is an individual, residing in Sacramento

24 County, California, and the Trustee under that certain document entitled "The Albert A. 25 and Eleanor J. Anselmo 1988 Revocable Trust" Dated February 19, 1988, and as 26 Successor-in-interest to Albert A. Anselmo, Deceased. Eleanor J. Anselmo and Albert 27 A. Anselmo, who died on or about November 2, 2009, were co-owners of the real 28
-2COMPLAINT FOR BREACH OF CONTRACT DAMAGES, DECLARATORY RELIEF AND ACCOUNTING

K.GREG PETERSON

Case 2:14-cv-00162-WBS-AC

Document 1 Filed 01/21/14 Page 3 of 10

1 property located at 4301 Power Inn Road, Sacramento, California (the "Property") from 2 3 4 5 6
1976 to 1996. 5. Plaintiff ROSALIE A. ANSELMO is an individual residing in Sacramento

County, California, and the Co-Trustee under that certain document entitled "The Edward A. Anselmo and Rosalie A. Anselmo 1992 Revocable Trust" Dated December 21, 1992. Rosalie A. Anselmo and Edward A. Anselmo, who died on or about January

7 2, 2009, were co-owners of the Property from 1976 to 1996. 8

6. Plaintiff KAREN L. LILIENTHAL, as Co-Trustee under that certain

9 document entitled "The Edward A. Anselmo and Rosalie A. Anselmo 1992 Revocable
10 Trust" Dated December 21, 1992, is a resident of Sacramento County, California. 11
7. Plaintiff DAVE DAVELAAR is an individual residing in Skagit County,

12 Washington state, and was a co-owner of the Property from 1976 to 1996. 13
8. Plaintiff LINDA DAVELAAR is an individual residing in Skagit County,

14 Washington state, and was a co-owner of the Property from 1976 to 1996. 15
9. Plaintiffs are informed and believe that Defendant MARYLAND

16 CASUALTY COMPANY, a Zurich in North America Company, is a corporation organized 17 and existing under the laws of the state of Maryland with its principal place of business 18 in Schaumburg, Illinois. Defendant MARYLAND CASUALTY COMPANY is, and at all 19 times relevant was, an insurance company eligible to do business and was doing 20 21
business as an insurer in the state of California. 10. Plaintiffs are informed and believe that Defendant CENTURY INDEMNITY

22 COMPANY, as successor-in-interest to CCI Insurance Company, as successor-in23 24 25 26 27 28

COMPLAINT FOR BREACH OF CONTRACT DAMAGES, DECLARATORY RELIEF AND ACCOUNTING

interest to Insurance Company of North America, is a corporation organized and existing under the laws of the state of Pennsylvania with its principal place of business in Philadelphia, Pennsylvania. Defendant CENTURY INDEMNITY COMPANY is, and at all times relevant was, an insurance company eligible to do business and was doing business as an insurer in the state of California.

K.GREG PETERSON
LAW OFflCES

Case 2:14-cv-00162-WBS-AC

Document 1 Filed 01/21/14 Page 4 of 10 GENERAL ALLEGATIONS

1 2
11.

Defendant CENTURY INDEMNITY COMPANY issued a commercial

3 general liability policy - Policy No. AGP DO 399827-7 (the "Century Policy") insuring the 4 Property to "Edward A. Anselmo, Rosalie A. Anselmo, as well as Dave Davelaar and 5 Linda Davelaar and Albert A. Anselmo and Eleanor J. Anselmo, as per CC1E15 Named 6 Insured Endorsement (Partnership)." The policy carries a property damage limit of 7 $500,000 per occurrence, per policy, with a $500,000 aggregate limit. The Century 8 Policy was in effect December 31, 1980 to December 31, 1982. 9
12. Defendant MARYLAND CASUALTY COMPANY issued a commercial

10 general liability policy - Policy No. SM 67026921 (MP 0093 ed. 7/22, MP 0090 ed. 7/77) 11 (the "Maryland Casualty Policy"), insuring the Property to "Edward A. Anselmo, Rosalie 12 A. Anselmo, Dave Davelaar and Linda Davelaar and Albert A. Anselmo and Eleanor J. 13 Anselmo, as their interests may appear, as per Named Insured Endorsement attached." 14 The policies carry a property damage limit of $500,000 per occurrence, per policy, with a 15 $1,000,000 general liability aggregate limit per policy. The Maryland Casualty Policy 16 was in effect during January 13, 1982 to January 13, 1984. 17
13. On or about July 15, 2002, James Kotrous filed an action in the U. S.

18 District Court, Eastern District of California, Case No. 2:02-cv-01520 (the "Kotrous 19 Lawsuit"), naming as defendants Edward A. Anselmo, a former property owner, of the 20 Property Goss-Jewett, the former operator of a dry cleaning supply business located on 21 the Property, a manufacturer of perchloroethylene ("PCE"), and various remediation 22 consultants. The action sought recovery of Mr. Kotrous's response costs and other 23 damages under the Comprehensive Environmental Response, Compensation and 24 Liability Act, 42 U.S.C. 9601 etseq., the California Carpenter-Presley-Tanner 25 Hazardous Substances Act and various common law theories incurred in the 26 investigation and remediation of PCE contamination in the soil and groundwater beneath 27 and emanating from the Property. 28
-4K.GREG PETERSON
LAW OFFICES

COMPLAINT FOR BREACH OF CONTRACT DAMAGES, DECLARATORY RELIEF AND ACCOUNTING

Case 2:14-cv-00162-WBS-AC

Document 1 Filed 01/21/14 Page 5 of 10

14.

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

2 succeeded by Plaintiffs ROSALIE A. ANSELMO and KAREN L. LILIENTHAL, as Co3 Trustees of the Edward A. and Rosalie A. Anselmo 1992 Revocable Trust. 4
15. Plaintiffs were eventually all named as defendants, counter-defendants

5 and/or cross-defendants in the Kotrous Lawsuit. 6

16. Under the terms of the Maryland Casualty Policy, Plaintiffs first tendered

7 their defense of the Kotrous Lawsuit to Defendant MARYLAND CASUALTY COMPANY 8 on or about March 4, 2003. 9
17. On or about May 8, 2003, Defendant MARYLAND CASUALTY COMPANY

10 agreed to defend Plaintiffs, subject to a reservation of rights. 11

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

12 their defense of the Kotrous Lawsuit to Defendant CENTURY INDEMNITY COMPANY 13 on or about August 5, 2005. 14
19. On or about October 10, 2006, Defendant CENTURY INDEMNITY

15 COMPANY agreed to defend Plaintiffs in the Kotrous Lawsuit, subject to a reservation of 16 rights. 17
20. The Kotrous Lawsuit was ultimately resolved by settlement in connection

18 with which the other parties to the Kotrous Lawsuit agreed to pay Plaintiffs and into a 19 court fund the sum of $670,000. A written settlement agreement was entered into 20 between the parties to the Kotrous Lawsuit on March 7, 2011, and a motion for 21 determination of good faith settlement was heard and decided on April 26, 2011, which 22 finalized the settlement. Remediation of the Property is on-going and payments are still 23 being made from the court fund towards further site investigation, testing, reporting and 24 remediation. 25 21. Plaintiffs incurred defense costs in the Kotrous Lawsuit in the form of 26 attorney's fees and costs, consultant and expert witness fees and other investigation 27 expenses, which were not reimbursed and are due and owing to them from Defendants. 28
-5COMPLAINT FOR BREACH OF CONTRACT DAMAGES, DECLARATORY RELIEF AND ACCOUNTING

K.GREG PETERSON
LAW CFflCSS

Case 2:14-cv-00162-WBS-AC

Document 1 Filed 01/21/14 Page 6 of 10

22.

Plaintiffs have forwarded to Defendants invoices for payment of the above-

2 referenced unpaid defense costs, which Defendants have failed and refused to pay. The 3 unreimbursed defense costs owed to Plaintiffs by Defendants are substantially in excess 4 of $500,000. 5 6 7 8
23. FIRST CAUSE OF ACTION - BREACH OF CONTRACT - AGAINST DEFENDANTS MARYLAND CASUALTY COMPANY AND CENTURY INDEMNITY COMPANY Plaintiffs incorporate by reference as though fully set forth herein, the

9 allegations of paragraphs 1 through 22 of this Complaint.

10
24. Under the terms of the Maryland Casualty Policy and the Century Policy,

11 and pursuant to their agreements to defend Plaintiffs in the Kotrous Lawsuit, Defendants 12 owed a duty to defend Plaintiffs and to pay Plaintiffs their defense costs incurred in 13 connection with investigating and defending against the Kotrous Lawsuit, including 14 Plaintiffs' attorney's fees and costs, consultant and expert witness fees and other 15 investigation expenses. 16
25. Defendants breached the above-referenced duties by failing to pay

17 Plaintiffs' defense costs in connection with the Kotrous Lawsuit. 18

26. Plaintiffs were not aware of Defendants' breaches and failures to

19 reimburse all of their defense costs until approximately August 14, 2013, and after 20 engaging the services of a consultant to review and analyze all of the invoices for 21 Plaintiffs' attorney's fees and costs, consultant and expert witness fees and other 22 investigation expenses, and comparing those against records of the checks paid by 23 Plaintiffs' insurance carriers (including Defendants), in connection with the defense of 24 the Kotrous Lawsuit. 25
27. As a result of said consultant's engagement, Plaintiffs are informed and

26 believe that a total of $3,582,811.22 of defense costs were incurred in connection with 27 defense of the Kotrous Lawsuit, and that a total of only $2,271,537.41 in payments were 28
-6K.GREG PETERSON
LAW Off ICES

COMPLAINT FOR BREACH OF CONTRACT DAMAGES, DECLARATORY RELIEF AND ACCOUNTING

Case 2:14-cv-00162-WBS-AC

Document 1 Filed 01/21/14 Page 7 of 10

1 made by Plaintiffs' insurance carriers, which figure includes payments made by 2 Defendants and a third insurance carrier (Hartford) which is not a party to this action. 3
28. Plaintiffs have demanded that Defendants pay their unreimbursed defense

4 costs and that Defendants provide them with detailed information concerning their 5 payment of the Plaintiffs' defense costs, including amounts and dates of payments 6 made, check information, and, for payments denied, information related to the amounts 7 of payments denied and the reasons for said denial. 8
29. Defendants have not responded to Plaintiffs' demands for payment and

9 have failed to supply Plaintiffs with detailed information showing Defendants' payments
10 or supporting their reasons for non-payment. 11
30. As a result of Defendants' failure to pay Plaintiffs' defense costs in the

12 Kotrous Lawsuit, Plaintiffs' have been damaged in an amount subject to proof, of not 13 less than $500,000. 14 15 16 17 18
31. SECOND CAUSE OF ACTION - DECLARATORY RELIEF AND ACCOUNTING - AGAINST DEFENDANTS MARYLAND CASUALTY COMPANY AND CENTURY INDEMNITY COMPANY Plaintiffs incorporate by reference as though fully set forth herein, the WHEREFORE, Plaintiffs pray for judgment as set forth below.

19 allegations of paragraphs 1 through 30 of this Complaint. 20

32. A dispute exists between Plaintiffs and Defendants involving significant

21 rights and obligations of the parties under the above-referenced insurance policies and 22 in connection with the defense of the Kotrous Lawsuit. 23
33. Plaintiffs contend that Defendants have failed to pay defense costs owed

24 to Plaintiffs in connection with their defense of the Kotrous Lawsuit, and that Plaintiffs 25 are owed unreimbursed defense costs under the terms of their policies in excess of 26 $500,000 in relation to the Kotrous Lawsuit which should have been paid to them by 27 Defendants. 28
-7COMPLAINT FOR BREACH OF CONTRACT DAMAGES, DECLARATORY RELIEF AND ACCOUNTING

K.GREG PETERSON
LAW QFFlCtS

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34.

Plaintiffs 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 owed anything, it is an amount substantially less than $500,000. 35. It is accordingly necessary that the Court declare the rights and duties of

8 the parties with respect to the amount of unreimbursed defense costs owed to Plaintiffs 9
by Defendants under the above-referenced insurance policies. However, the accounting

10 of the invoices and payments made is complicated because of the number of invoices 11
and payments made over many years and the fact that much of the information needed

12 to prepare such an accounting and to properly declare the rights and obligations of the 13
parties is within the control of Defendants and not available to Plaintiffs. Accordingly,

14 Plaintiffs request that the Court order a court supervised accounting as part of the 15 Court's equitable and declaratory relief, insofar as a declaration fixing the sums owed to 16 17 18 19 20 21 22 23 24 25 26 27 28
-8K.GREG PETERSON
LAW OFFICES

Plaintiffs or not owed would otherwise be difficult and impractical to ascertain. PRAYER WHEREFORE, Plaintiffs pray for a judgment against Defendants MARYLAND CASUALTY COMPANY and CENTURY INDEMNITY COMPANY as follows: As to the First Cause of Action: 1. For an award of damages against Defendants in the amount of Plaintiffs'

un-reimbursed defense costs in the Kotrous Lawsuit, subject to proof; As to the Second Cause of Action: 1. Ordering that an accounting 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;

COMPLAINT FOR BREACH OF CONTRACT DAMAGES, DECLARATORY RELIEF AND ACCOUNTING

Case 2:14-cv-00162-WBS-AC

Document 1 Filed 01/21/14 Page 9 of 10

2.

Ordering that, in conjunction with said accounting, Defendants be ordered

2 to produce detailed information concerning their payment of the Plaintiffs' defense costs 3 in the Kotrous Lawsuit, including the amounts and dates of payments made, check 4 information, and, for payments denied, information related to the amounts of payments 5 denied and reasons for said denial; 6
3. Ordering Defendants to immediately pay Plaintiffs' all of their un-

7 reimbursed defense costs; 8 9

10 11
As to all Causes of Action: 1. 2. 3. For an award of pre-judgment interest; For an award of Plaintiffs' costs of suit herein incurred; and For such other and further relief, in the form of damages or equity, as this

12 court shall deem appropriate. 13 14 Dated: January 21, 2104 15 16 17 18 19 20 21 22 23 24 25 26 27 28

COMPLAINT FOR BREACH OF CONTRACT DAMAGES, DECLARATORY RELIEF AND ACCOUNTING

LAW OFFICES OF K. GREG PETERSON

By: K. Greg Peterson, Esq., attorney for Plaintiffs

K.GREG PETERSON
LAW Of HCtS

Case 2:14-cv-00162-WBS-AC

Document 1 Filed 01/21/14 Page 10 of 10

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DEMAND FOR JURY TRIAL. Plaintiffs ELEANOR J. ANSELMO, individually, and as Trustee under that certain 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 document entitled "The Edward A. Anselmo and Rosalie A. Anselmo 1992 Revocable Trust" Dated December 21, 1992; KAREN L. LILIENTHAL, as Co-Trustee under that certain

8 document entitled "The Edward A. Anselmo and Rosalie A. Anselmo 1992 Revocable 9 Trust" Dated December 21, 1992; DAVE DAVELAAR , individually, and LINDA
10 DAVELAAR, individually, demand a trial by jury in this action. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-10K.GREG PETERSON

Dated: January 21, 2104

LAW OFFICES OF K. GREG PETERSON

K. Greg Peterson, Esq., attorney for Plaintiffs

COMPLAINT FOR BREACH OF CONTRACT DAMAGES, DECLARATORY RELIEF AND ACCOUNTING