Case 2:11-cv-02011-LKK -GGH Document 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. RANEY GEOTECHNICAL, INC. and ACE AMERICAN INSURANCE COMPANY Defendants.

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) RAMIRO MORALES, # 167947 CHRISTINE M. FIERRO, #191660 MORALES FIERRO & REEVES 2300 Contra Costa Blvd., Suite 310 Pleasant Hill, CA 94523 Telephone: (925) 288-1776 Facsimile: (925) 288-1856 Attorneys for Plaintiff TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CASE NO.: COMPLAINT FOR DECLARATORY RELIEF

Travelers Property Casualty Company of America (Travelers) for its complaint alleges as follows: 1. At all times herein, Travelers was and is a corporation organized and existing under

and by virtue of the laws of the State of Connecticut, and is duly licensed, authorized, and engaged in the business of writing insurance in the State of California. Travelers principal place of business is the State of Connecticut. 2. On information and belief, Travelers alleges that Defendant Raney Geotechnical,

Inc. (Raney), is a corporation organized and existing under and by virtue of the laws of the State of California and has its principal place of business in California. 3. On information and belief, Travelers alleges that Defendant Ace American

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Insurance Company (Ace), is a corporation organized and existing under and by virtue of the laws of the State of Pennsylvania and has its principal place of business in Pennsylvania. Travelers is also informed and believes and thereon alleges that Ace was at all relevant times either admitted to do business as an insurer in the State of California or authorized to sell insurance in the State of California through a licensed surplus lines broker or other permissible means. Raney and Ace will hereinafter be referred to as Defendants. JURISDICTION AND VENUE This Court has original jurisdiction under 28 U.S.C. section 1332 in that this is a

matter in which Plaintiff and Defendants are citizens of different states and in which the amount in controversy exceeds, exclusive of costs and interest, seventy-five thousand dollars ($75,000). 5. Venue is proper in the United States District Court for the Eastern District of

California in that all of the defendants are subject to personal jurisdiction in this district at the time the action is commenced and there is no district in which the action may otherwise be brought. The subject matter of this action arose in this district; specifically, the underlying dispute is embodied in an action entitled Corona v. S.D. Deacon General Contractor, et al., Sacramento County Superior Court Case No. 34-2009-00067147. Further, the subject matter of the underlying dispute between the parties involves a job-site accident which occurred in this jurisdiction. GENERAL ALLEGATIONS Travelers issued to Raney a primary policy of commercial general liability

insurance, numbered IE680-4796L294, effective January 1, 2009 through January 1, 2010 (the Primary Policy). (Attached hereto as Exhibit A is the following forms and endorsements of the Primary Policy: Declarations; Coverage Form CG 0001; and Endorsement Exclusion Engineers, Architects or Surveyors Professional Liability form CG D3 80 09 07.) 7. The Primary Policy includes exclusions to coverage, including the following

Endorsement Exclusion Engineers, Architects or Surveyors Professional Liability form CG D3 80 09 07: The following is added to Paragraph 2 Exclusions of Coverage A Bodily Injury and Property Damage Liability in Coverages (Section I):

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Case 2:11-cv-02011-LKK -GGH Document 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Professional Services 27 28 Professional Services

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Bodily Injury . . .arising out of the rendering or failure to render professional services. . . . 3. The following is added to Definitions . . .

Professional services means any service requiring specialized skill or training including the following: a. Preparation, approval, provision of or failure to prepare, approve, or provide any map, shop drawing, opinion, report, survey, field order, change order, design, drawing, specification, recommendation, warning, permit application, payment request, manual or instruction b. Supervision, inspection, quality control, architectural, engineering or surveying activity or service, job site safety, construction contacting, construction administration, construction management, computer consulting or design, software development or programming service, or selection of a contractor or subcontractor; or c. Monitoring, testing, or sampling service necessary to perform any of the services included in a. or b. above. . . . 8. Travelers issued to Raney an excess policy of commercial general liability

insurance, numbered XSF-CUP-716Y663-TIL-09, effective January 1, 2009 through January 1, 2010 (the Excess Policy). (Attached hereto as Exhibit B is the following forms and endorsements of the Excess Policy: Declarations; Coverage Form UM 0001 11 03; and Endorsement Exclusion Engineers, Architects or Surveyors Professional Liability form UM 04 49 09 07.) 9. The Excess Policy includes exclusions to coverage, including the following

Endorsement Exclusion Engineers, Architects or Surveyors Professional Liability form UM 04 49 09 07: The following is added to Paragraph 3 Exclusions of Coverage A Bodily Injury and Property Damage Liability . . . in Coverages (Section I):

Bodily Injury . . .arising out of the rendering or failure to render professional services. . . .

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The following is added to Definitions (Section V)

Professional services means any service requiring specialized skill or training including the following: a. Preparation, approval, provision of or failure to prepare, approve, or provide any map, shop drawing, opinion, report, survey, field order, change order, design, drawing, specification, recommendation, warning, permit application, payment request, manual or instruction b. Supervision, inspection, quality control, architectural, engineering or surveying activity or service, job site safety, construction contacting, construction administration, construction management, computer consulting or design, software development or programming service, or selection of a contractor or subcontractor; or c. Monitoring, testing, or sampling service necessary to perform any of the services included in a. or b. above. . . . 10. Raney entered into a contract with Broadstone Land, LLC, on or about May 20,

2008, under which Raney agreed to provide professional construction testing services (the Professional Services Contract, attached hereto as Exhibit B) on a construction project commonly known as the Palladio at Broadstone (the Project). 11. Under the Professional Services Contract, Raney was to provide special inspection

and testing services including inspection and testing of field welding of the structural steel construction at the Project. 12. In a letter sent by Raney to Broadstone and incorporated into the Professional

Services Contract, Raney stated that [a]ll construction inspection and testing is performed under the supervision of a professional engineer by qualified inspectors and technicians in compliance with industry standards . . . . Our field technicians maintain certifications by Caltrans, ACI, ICBO, and AWS for construction observation and testing . . . . 13. On or about February 2, 2009, Javier Corona, an ironworker employed by Butte

Steel & Fabrications, Inc., fell from a structure that was under construction at the Project (the Accident). 14. On or about December 22, 2009, Javier Corona and Irma Corona filed suit against

S.D. Deacon General Contractor, and other entities, alleging damages resulting from the Accident,

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in Corona v. S.D. Deacon General Contractor, et al., Sacramento County Superior Court Case No. 34-2009-00067147 (the Underlying Action). 15. In their complaint in the Underlying Action, the Coronas allege that Javier Corona

suffered serious physical injury as a result of the Accident. 16. The Coronas further allege that on the day of the Accident, Raney was providing

construction inspections and consulting services at the Project. 17. Specifically, on February 2, 2009, a special inspector with Raney inspected

permanent welds on the roof deck of a building under construction at the Project. Under the Professional Services Contract, he was to identify permanent welds needing further work. 18. During the course of his inspection on February 2, 2009, the Raney inspector lifted

a large piece of metal which was lying on the decking which, he found covered an opening in the decking. The Raney employee inspected the welds under the piece of metal and then lowered the piece of metal back down over the opening. 19. 20. Raney and/ or Ace tendered Raneys defense the Underlying Action to Travelers. Travelers accepted Raneys tender of defense under the Primary Policy, and is and

has been defending Raney in the Underlying Action under a reservation of rights. FIRST CAUSE OF ACTION DECLARATORY RELIEF DEFENSE UNDER PRIMARY POLICY Travelers incorporates by reference as though fully set forth herein the allegations

in paragraphs 1 through 20 above. 22. Travelers alleges, pursuant to the terms, conditions, exclusions and endorsements

of the Primary Policy as well as equitable principles, that Travelers has no duty to defend Raney in the Underlying Action. 23. On information and belief, Travelers alleges that Raney and/ or Ace deny

Travelers assertions and assert the contrary. 24. By reason of the foregoing, an actual controversy exists between the parties which

requires a declaratory judgment of this Court in substantially the following form: Travelers has no duty to defend Raney in the Underlying Action under the Primary Policy.

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A judicial determination of this controversy is necessary and appropriate in order

for the parties to ascertain their rights, duties and obligations under the Primary Policy. Wherefore, Plaintiff prays for judgment as hereinafter set forth. SECOND CAUSE OF ACTION DECLARATORY RELIEF INDEMNITY UNDER THE PRIMARY POLICY 26. Travelers incorporates by reference as though fully set forth herein the allegations

in paragraphs 1 through 21 above. 27. Travelers alleges, pursuant to the terms, conditions, exclusions and endorsements

of the Primary Policy as well as equitable principles, that Travelers has no duty to indemnify Raney in the Underlying Action. 28. On information and belief, Travelers alleges that Raney and/ or Ace deny

Travelers assertions and assert the contrary. 29. By reason of the foregoing, an actual controversy exists between the parties which

requires a declaratory judgment of this Court in substantially the following form: Travelers has no duty to indemnify Raney in the Underlying Action. 30. A judicial determination of this controversy is necessary and appropriate in order

for the parties to ascertain their rights, duties and obligations under the Primary Policy. THIRD CAUSE OF ACTION DECLARATORY RELIEF DEFENSE UNDER EXCESS POLICY Travelers incorporates by reference as though fully set forth herein the allegations

in paragraphs 1 through 26 above. 32. Travelers alleges, pursuant to the terms, conditions, exclusions and endorsements

of the Excess Policy as well as equitable principles, that Travelers has no duty to defend Raney in the Underlying Action. 33. On information and belief, Travelers alleges that Raney and/ or Ace deny

Travelers assertions and assert the contrary. 34. By reason of the foregoing, an actual controversy exists between the parties which

requires a declaratory judgment of this Court in substantially the following form: Travelers has no

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duty to defend Raney in the Underlying Action under the Excess Policy. 35. A judicial determination of this controversy is necessary and appropriate in order

for the parties to ascertain their rights, duties and obligations under the Excess Policy. Wherefore, Plaintiff prays for judgment as hereinafter set forth. FOURTH CAUSE OF ACTION DECLARATORY RELIEF INDEMNITY UNDER THE EXCESS POLICY 36. Travelers incorporates by reference as though fully set forth herein the allegations

in paragraphs 1 through 31 above. 37. Travelers alleges, pursuant to the terms, conditions, exclusions and endorsements

of the Excess Policy as well as equitable principles, that Travelers has no duty to indemnify Raney in the Underlying Action. 38. On information and belief, Travelers alleges that Raney and/ or Ace deny

Travelers assertions and assert the contrary. 39. By reason of the foregoing, an actual controversy exists between the parties which

requires a declaratory judgment of this Court in substantially the following form: Travelers has no duty to indemnify Raney in the Underlying Action under the Excess Policy. 40. A judicial determination of this controversy is necessary and appropriate in order

for the parties to ascertain their rights, duties and obligations under the Excess Policy. Wherefore, Plaintiff prays for judgment as hereinafter set forth. PRAYER FOR RELIEF WHEREFORE, Travelers respectfully prays for judgment against Defendants as follows: As to the First Cause of Action for Declaratory Relief Defense Under the Primary Policy: 1. For a declaration and determination that Travelers does not have a duty to defend

Raney under the Primary Policy with regards to the claims made in the Underlying Action; 2. 3. For an award of costs; For all other relief the Court deems just and proper.

As to the Second Cause of Action for Declaratory Relief Indemnity Under the Primary Policy:

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For a declaration and determination that Travelers does not have a duty to

indemnify Raney under the Primary Policy with regard to the claims made in the Underlying Action; 2. 3. For an award of costs; For all other relief the Court deems just and proper.

As to the Third Cause of Action for Declaratory Relief Defense Under the Excess Policy: 1 For a declaration and determination that Travelers does not have a duty to defend

Raney under the Excess Policy with regards to the claims made in the Underlying Action; 2. 3. For an award of costs; For all other relief the Court deems just and proper.

As to the Fourth Cause of Action for Declaratory Relief Indemnity Under the Excess Policy: 1. For a declaration and determination that Travelers does not have a duty to

indemnify Raney under the Excess Policy with regard to the claims made in the Underlying Action; 2. 3. For an award of costs; For all other relief the Court deems just and proper. MORALES, FIERRO & REEVES

/s/ Christine M. Fierro CHRISTINE M. FIERRO Attorneys for Plaintiff, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA

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