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 RICHARD N. SIEVING, ESQ. (SB #133634) LUKE G. PEARS-DICKSON, ESQ. (SB #296581) THE SIEVING LAW FIRM, A.P.C. 100 Howe Avenue, Suite 220N Sacramento, California 95825 Telephone: (916) 444-3366 Facsimile: (916) 444-1223 Attorneys for DefendantlCross-DefendantlCross-Complainant JELD-WEN, inc. dba SUMMIT WINDOW & PATIO DOOR (erroneously sued herein as separate entities "SUMMIT WINDOW & PATIO DOOR" and "Doe 3: Jeld-Wen, Inc. dba Summit Window & Patio Door") IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA CILKER APARTMENTS, LLC, Plaintiff, v. WESTERN NATIONAL CONSTRUCTION, et a/. Defendants. AND ALL RELATED CROSS-ACTIONS. Case No. 1-13-CV-258281 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD- WEN, INC.'S MOTION FOR SUMMARY JUDGMENT [FILED CONCURRENTL Y WITH NOTICE OF MOTION AND MOTION; DECLARATION OF LUKE G. PEARS-DICKSON; DECLARA TlON OF RICHARD N. SIEVING; SEPARA TE STATEMENT OF UNDISPUTED MATERIAL FACTS; AND EVIDENCE IN SUPPORT OF MOTION.] Date: Time: Dept.: Judge: May 13, 2016 9:00 a.m. One (1) Hon. Peter H. Kirwan Trial Date: June 13, 2016 SIEVING LAW FIRM, A.P.c. [Cilker- JW MSJ - Memo of PAs 2-18-16.docx (Ipd:slb)] 100 Howe Ave., Suite 220N Sacramento, CA 95825 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT (916) 444-3366 E-FILED Feb 23, 2016 8:00 AM David H. Yamasaki Chief Executive Officer/Clerk Superior Court of CA, County of Santa Clara Case #1-13-CV-258281 Filing #G-81087 By P. Jauregui, Deputy
Transcript
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RICHARD N. SIEVING, ESQ. (SB #133634) LUKE G. PEARS-DICKSON, ESQ. (SB #296581) THE SIEVING LAW FIRM, A.P.C. 100 Howe Avenue, Suite 220N Sacramento, California 95825 Telephone: (916) 444-3366 Facsimile: (916) 444-1223
Attorneys for DefendantlCross-DefendantlCross-Complainant JELD-WEN, inc. dba SUMMIT WINDOW & PATIO DOOR (erroneously sued herein as separate entities "SUMMIT WINDOW & PATIO DOOR" and "Doe 3: Jeld-Wen, Inc. dba Summit Window & Patio Door")
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
CILKER APARTMENTS, LLC,
Plaintiff,
v.
WESTERN NATIONAL CONSTRUCTION, et a/.
Defendants.
----------------------------~/ AND ALL RELATED CROSS-ACTIONS.
----------------------------~/
Case No. 1-13-CV-258281
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELDWEN, INC.'S MOTION FOR SUMMARY JUDGMENT
[FILED CONCURRENTL Y WITH NOTICE OF MOTION AND MOTION; DECLARATION OF LUKE G. PEARS-DICKSON; DECLARA TlON OF RICHARD N. SIEVING; SEPARA TE STATEMENT OF UNDISPUTED MATERIAL FACTS; AND EVIDENCE IN SUPPORT OF MOTION.]
Date: Time: Dept.: Judge:
May 13, 2016 9:00 a.m. One (1) Hon. Peter H. Kirwan
Trial Date: June 13, 2016
~E SIEVING LAW FIRM, A.P.c. [Cilker- JW MSJ - Memo of PAs 2-18-16.docx (Ipd:slb)]
100 Howe Ave., Suite 220N Sacramento, CA 95825 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
(916) 444-3366
E-FILEDFeb 23, 2016 8:00 AM
David H. YamasakiChief Executive Officer/Clerk
Superior Court of CA, County of Santa ClaraCase #1-13-CV-258281 Filing #G-81087
By P. Jauregui, Deputy
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TABLE OF CONTENTS
Page
3 I. INTRODUCTION ....................................................................................................... 2
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~E SIEVING LAW FIRM, A.P.c. 100 Howe Ave., Suite 220N
Sacramento, CA 95825 (916) 444-3366
II. UNDISPUTED MATERIAL FACTS ....................................... _ ................. _ .................. 3
III. SUMMARY OF ARGUMENT ..................................................................................... 4
IV. SUMMARY JUDGMENT STANDARD ....................................................................... 5
A. Enforcement of the Settlement Agreement Is Proper ............................................ 5
1. JELD-WEN is necessarily a third party beneficiary to the Settlement Agreement ...................................................................................................... 6
a. The parties to the Settlement Agreement unambiguously intended to benefit the subcontractors, including JELD-WEN ...................................... 6
b. The intent to benefit the subcontractors is manifested in the clear and plain terms of the Settlement Agreement. .................................................. 8
B. The Settlement Agreement limits subcontractors' liability to insurance proceeds paid under insurance policies ........................................................................... · .. · 9
C. The Settlement Agreement waives damages in excess or excepted from subcontractors' insurance coverage ............................................................... ···· 10
D. JELD-WEN is Self-Insured ................................................................................. 10
1. Self-insurance is tantamount to "no insurance" ............................................. 10
2. As a self-insured entity, JELD-WEN has no liability under the plain terms of the Settlement Agreement ........................................................................ ···· 11
E. CELL-CRETE and WESTERN's Claims For Relief Are Derivative of Plaintiff's and Thereby Must Likewise Be Dismissed ......................................................... 11
V. CONCLUSION ......................................................................................................... 12
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
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IE SIEVING LAW FIRM, A.P.c. 100 Howe Ave., Suite 220N
Sacramento, CA 95825 (916) 444-3366
TABLE OF AUTHORITIES
CASES:
Aerojet-Gen. Corp. v. Transp. Indem. Co ..................................................................... 10 (1997) 17 CaL4th 38
Appleton v. Waessil ........................................................................................................ 9 (1994) 27 CaLApp.4th 551
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
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iE SIEVING LAW FIRM, A.P.C. 100 Howe Ave., Suite 220N
Sacramento, CA 95825 (916) 444-3366
TABLE OF AUTHORITIES
OTHER AUTHORITY:
Croskey et aI., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2009) 1l 7:387, p. 7A-152 (rev. # 1, 2009) .................................................................................. 10
Restatement (Second) of Contracts § 302 (1979) ........................................................... 7
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
1 DefendantlCross-DefendantlCross-Complainant JELD-WEN, inc. dba SUMMIT
2 WINDOW & PATIO DOOR (hereinafter "JE~D-WEN") hereby submits the following
3 Memorandum of Points and Authorities in support of its Motion for Summary Judgment
4 (hereinafter "Motion") as to the Second Amended Complaint filed by CILKER
5 APARTMENTS, LLC (hereinafter "Plaintiff"), WESTERN NATIONAL
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IE SIEVING LAW FIRM, A.P.c. 100 Howe Ave., Suite 220N
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CONSTRUCTION's (hereinafter "WESTERN") Cross-Complaint, and CELL-CRETE
Relief Re: Third Party Claims; (4) Declaratory Relief Re: Contribution; and (5)
Declaratory Relief: Total and/or Partial Equitable Indemnity.
Based on the undisputed material facts set forth in this Memorandum as well as
the Separate Statement of Undisputed Material Facts (hereinafter "SSUMF"), filed and
served concurrently herewith, JELD-WEN now brings this Motion asserting that Plaintiff,
WESTERN, and CELL-CRETE cannot, as a matter of law, prevail on their claims
against JELD-WEN.
II.
UNDISPUTED MATERIAL FACTS1
On or about December 21, 2000, JELD-WEN executed and entered into a
subcontract agreement with WESTERN in connection with the original construction of
the Subject Property for, inter alia, the supply of vinyl window and sliding glass patio
door products. (SSUMF No.1.)
At all relevant times herein, including between the years 2000 and 2004, JELD
WEN has been self-insured entity. (SSUMF No.2.) As a self-insured entity, JELD
WEN has no insurance coverage for the alleged acts and omissions which give rise to
Plaintiff's Second Amended Complaint, WESTERN's Cross-Complaint, or CELL
CRETE's Cross-Complaint. (SSUMF No.3.)
On or about March 23, 2006, Plaintiff, William H. Cilker, Sr., Carl A. Cilker,
Elizabeth Cilker Smith, Michael K. Hayde, the Non-Exempt QTIP Marital Trust of the
Glass Family Trust Dated February 18, 1982, and WESTERN (hereinafter collectively
1 JELO-WEN admits the undisputed material facts only for the purposes of this Motion,and does not waive the right to deny the existence of the fact and to present contrary evidence should this Motion be denied. See Myers v. Trendwest Resort (2009) 178 Cal.App.4th 735, 746-747 (statements of undisputed fact in a Motion for Summary Judgment do not constitute judicial admissions).
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
1 "SETTLING PARTIES") entered into a settlement agreement regarding the construction
2 of the Subject Property (hereinafter "Settlement Agreement"). (SSUMF No.6.)
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iE SIEVING LAW FIRM, A.P.C. 100 Howe Ave., Suite 220N
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Plaintiff has verified and authenticated this copy of the Settlement Agreement as true
and correct. (SSUMF No.7.) Following the Settlement Agreement's execution, Plaintiff
received payment of $1 million-the amount of settlement funds called for by the
Settlement Agreement-in the form of two checks, dated March 24, 2006. (SSUMF No.
B.) Section 1.B of the fully integrated Settlement Agreement reads, in part:
Excepted from this Settlement and Release are any and all claims that exist or may arise out of defects in the design or construction of the [Subject Property] against [WESTERN] only ("Excepted Claims"), which claims shall not be and are hereby not released or waived. Such Excepted Claims are expressly released and waived as against all Defendants and their respective Released Parties other than [WESTERN]. However, any damages based on such Excepted Claims shall be strictly limited to insurance proceeds paid under any insurance policies issued to [WESTERN] and/or its subcontractors (collectively "[WESTERN] Policies"). Any amount of damages in excess of or excepted from coverage under the [WESTERN] Policies is hereby released and waived. * * *
(Emphasis added.) (SSUMF No.9.)
III.
SUMMARY OF ARGUMENT
The Settlement Agreement entered into by SETTLING PARTIES unequivocally
limits any liability owed by WESTERN and WESTERN's subcontractors to "insurance
proceeds paid under insurance policies[.]" (SSUMF No.9.) JELD-WEN is a self
insured entity which makes use of a self-insured risk management program. (SSUMF
Nos. 2 and 4.) As such, JELD-WEN has no insurance coverage for any liability it may
incur in this lawsuit. (SSUMF No.3.) Thus, under the clear terms of the Settlement
Agreement, JELD-WEN cannot be held liable to any extent whatsoever in the instant
action as all claims not covered by insurance have been expressly and unequivocally
forever waived and released by Plaintiff. (See SSUMF No.9.)
/II
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
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As illustrated herein, there are no triable issues of material fact to support a
finding of any legal liability on the part of JELD-WEN as to Plaintiff, WESTERN, or
CELL-CRETE. Therefore, JELD-WEN is entitled to Summary Judgment as a matter of
law, and accordingly, respectfully requests this Court grant its Motion.
IV.
SUMMARY JUDGMENT STANDARD
"A party may move for summary judgment in any action or proceeding if it is
contended that the action has no merit or that there is no defense to the action or
proceeding." Code of Civil Procedure §437c(a). "The motion for summary judgment
shall be granted if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law."
Code of Civil Procedure §437c(c).
A cause of action has no merit if "[o]ne or more of the elements of the cause of
action cannot be separately established, even if that element is separately pleaded" or
"ra] defendant establishes an affirmative defense to that cause of action." Code of Civil
Procedure §437c(0).
Finally, Code of Civil Procedure §437c(p)(2) provides:
A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not. separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.
V.
ARGUMENT
26 A. Enforcement of the Settlement Agreement Is Proper
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iE SIEVING LAW FIRM, A.P.C. 100 Howe Ave., Suite nON
Sacramento, CA 95825 (916) 444-3366
"A settlement agreement is a contract, governed by the same legal principles
which apply to contracts generally." Nelson v. Anderson (1999) 72 Cal.App.4th 111,
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JEW-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
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130 (citing Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810).
While it is true that "[o]ne who is not a party to a contract has no right to enforce it,"
JELD-WEN may do so in this instance as it is an intended third party beneficiary of the
contract. kl (citing Martinez v. Socoma Companies, Inc. (1974) 11 Cal.3d 394, 400);
see also Civil Code section 1559 ("A contract, made expressly for the benefit of a third
person, may be enforced by him at any time before the parties thereto rescind it.").
1. JELO-WEN is necessarily a third party beneficiary to the Settlement Agreement
A third party may be a beneficiary under a contract where the contracting
parties have intended to benefit that third party and such intent appears in the terms of
the agreement. Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550,
558. "Traditional third party beneficiary principles do not require that the person to be
benefitted be named in the contract." Harper v. Wausau Ins. Corp. (1997) 56
Cal.App.4th 1079, 1086; (see also, Brinton, supra ("It is sufficient if the claimant
belongs to a class of persons for whose benefit it was made."». "Whether a third party
is an intended beneficiary or merely an incidental beneficiary to the contract involves
construction of the parties' intent, gleaned from reading the contract as a whole in light
of the circumstances under which it was entered." Jones v. Aetna Casualty & Surety
Co. (1994) 26 Cal.App.4th 1717, 1725. The third party "bears the burden of proving
that the promise he seeks to enforce was actually made to him personally or to a class
of which he is a member." Neverkovec v. Fredericks (1999) 74 CaLApp.4th 337, 348-
349 (citing, inter alia, Garcia v. Truck Insurance Exchange (1984) 36 Cal.3d 426, 436)
(footnote and citations omitted).
a. The parties to the Settlement Agreement unambiguously intended to benefit the subcontractors, including JELD-WEN
The test for determining whether a contract was made for the benefit of a third
person is rather straight forward and looks simply to the terms of the contract. . "If the
terms of the contract necessarily require the promisor to confer a benefit on a third
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
1 person, then the contract, and hence the parties thereto, contemplate a benefit to the
2 third person." Spinks v. Equity Residential Briarwood Apartments (2009) 171
3 Cal.App.4th 1004, 1022 (citations omitted); see also Restatement (Second) of
4 Contracts § 302 (1979).
5 "A contract must be interpreted to give effect to the mutual, expressed intention
6 of the parties." Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th
7 758, 798. When parties have entered into a written agreement, their mutual intention is
8 to be determined from the language of the writing alone, whenever possible. kt. This
9 practice of interpretation derives from the principal that "[c]ontract formation is governed
1 0 by objective manifestations, not the subjective intent of any individual involved." kt.
11 "The parol evidence rule protects the integrity of written contracts by making
1 2 their terms the exclusive evidence of the parties' agreement." Riverisland Cold
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jE SIEVING LAW FIRM, A.P.C. 100 Howe Ave., Suite 220N
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Storage, Inc. v. Fresno-Madera Prod. Credit Ass'n (2013) 55 Cal.4th 1169, 1171-1172.
California has codified the parol evidence rule in Code of Civil Procedure section 1856
and Civil Code Section 1625. kt. at 1174. Specifically, these sections provide that
"when parties enter into an integrated written agreement, extrinsic evidence may not be
relied upon to alter or add to the terms of the writing." kt. (citations omitted). Although
certain exceptions to the parol evidence rule exist, no such exceptions apply here in
this instance. JELD-WEN anticipates Plaintiff or WESTERN may seek to introduce
extrinsic evidence of subjective intent by claiming the Settlement Agreement is
ambiguous. Such parol evidence should not be considered in this circumstance. See
Rodriguez v. Takeshi Oto (2013) 212 Cal.App.4th 1020, 1027 ("If the terms are
unambiguous, there is ordinarily no occasion for additional evidence of the parties'
subjective intent. Their 'actual intent,' for purposes of contract law, is that to which they
manifested assent by executing the agreement.").
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN. INC.;S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
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b. The intent to benefit the subcontractors is manifested in the clear and plain terms of the Settlement Agreement
Here, the parties to the Settlement Agreement made their intent obvious and
unambiguous with regards to the benefit conferred upon WESTERN's subcontractors.
This is most Clear by the Settlement Agreement's express naming of the class of
individuals to be benefitted as "[WESTERN] subcontractors.,,2 (SSUMF No.9.)
Specifically, section 1.B to the Settlement Agreement states that "any damage
based on such Excepted Claims shall be limited to insurance proceeds paid under any
insurance policies issued to [WESTERN] and/or its subcontractors (collectively
'[WESTERN] Policies')." (SSUMF No.9; emphasis added.) First, it is important to note
the "and/or" language in this limitation provision. By expressly incorporating the "or"
terminology, the Settlement Agreement acknowledges that the limitation of damages on
Excepted Claims may apply solely to "insurance policies issues to [WESTERN's]
subcontractors," without WESTERN, or its insurers.
Further, this limitation language is notably distinct from other language in the
Settlement Agreement when making reference to WESTERN's insurance. For
example, section 1.A references WESTERN insurance policies-without any reference
to WESTERN's subcontractors-as being "the insurance policies of [WESTERN]
alone." (Exhibit 5 to JELO-WEN's Evidence in Support of Motion (hereinafter
"Evidence") at p. 2.) Moreover still, within section 1.B, WESTERN again is referenced
as a sole individual as "[WESTERN] alone." (kt.) These differences make clear the
expressed intent that WESTERN's subcontractors are not subsumed into the umbrella
of "WESTERN" or its "Related Parties" (which are further expressly differentiated in
section C of the Recitals to the Settlement Agreement). (Exhibit 5 to Evidence at p. 1.)
As such, the contract contemplates a specific and distinct class of individuals
(WESTERN's subcontractors) and clearly imparts a benefit upon that class.
III
2 In reading the context of the Settlement Agreement as a whole, such "subcontractors" are plainly classified as any parties which subcontracted with WESTERN in relation to the original construction of the Subject Property.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
1 Indeed, courts have routinely recognized third-party intended beneficiary
2 classes from contractual terms far less definite and precise than those found within the
3 Settlement Agreement, including general/global releases. See Appleton v. Waessil
4 (1994) 27 Cal.App.4th 551, 556 (finding the term "all persons" to be ambiguous); see
5 a/so, e.g., General Motors Corp. v. Superior Court (1993) 12 Cal.App.4th 435 (holding
6 petitioner General Motors Corp. to be an intended third-party beneficiary class member
7 to the general release applying to "any and all other persons, firms and corporations,
8 whether herein named or referred to or not.") and Cline v. Homuth (2015) 235
9 Cal.App.4th 699 (finding for defendant's affirmative defense of release as a class
10 member intended third party beneficiary to the class defined as "all other persons.").
11 Thus, the Settlement Agreement is unequivocal in its intent to carve-out the
12 class of individuals referenced as "[WESTERN's] subcontractors" and see them
13 benefitted by the liability limitation expressed therein. (SSUMF No.9.) JELD-WEN
14 undeniably meets the class of individuals intended to be benefitted as it acted as
1 5 subcontractor to WESTERN in the original construction of the Subject Property. (See
16 SSUMF No.1.) Thereby, the Settlement Agreement's terms unambiguously
17 demonstrate JELD-WEN to be an intended third-party beneficiary.
18 B. The Settlement Agreement limits subcontractors' liability to insurance proceeds paid under insurance policies
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The Settlement Agreement specifically excepts from its release any claims
which "arise out of defects in the design or construction of the [Subject Property.]"
(Exhibit 5 to Evidence at p. 2.) Section 1.B goes on to state that "[a]ny damages based
on such Excepted Claims shall be strictly limited to insurance proceeds paid under any
insurance policies issued to [WESTERN] and/or its subcontractors (collectively
'[WESTERN] Policies'}." (SSUMF No.9.)
The effect of these provisions-read in conjunction and in light of the document
as a whole-is that any claims by Plaintiff "aris[ing] out of defects in the design or
construction of the [Subject Property]" are "strictly limited to insurance proceeds paid
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
1 under any insurance policies issued to [WESTERN] andlor its subcontractors." Thus,
2 based on a plain reading of the Settlement Agreement, WESTERN and its
3 subcontractors' liability is capped at the amount of available insurance coverage.
4 C. The Settlement Agreement waives damages in excess or excepted from subcontractors' insurance coverage
5
6 Section 1.8 of the Settlement Agreement further states that "[a]ny amount of
7 damages in excess of or excepted from coverage under [WESTERN] Policies is hereby
8 released and waived." (SSUMF No.9.) Again, the Settlement Agreement specifically
9 defines "[WESTERN] Policies" as "any insurance policies issued to [WESTERN] andlor
10 its subcontractors[.]" (kl) As such, this term is unequivocal and specifically releases
11 and waives any claims Plaintiff may bring against WESTERN or its subcontractors
12 which are in excess of or excepted under their insurance coverage.
13 D. JELD-WEN is Self-Insured
14 At all relevant times, as it relates to the claims asserted in the litigation, JELO-
15 WEN has been a self-insured entity. (SSUMF No.2.) As such, JELO-WEN maintains a
369. "In a strict sense, 'self-insurance' is a 'misnomer.'" Aerojet-Gen. Corp. v. Transp.
Indem. Co. (1997) 17 CaL4th 38, 72 n.20 (citing Nabisco, Inc. v. Transp. Indem. Co.
III
III
-10- [Cilker - JW MSJ - Memo of PAs 2-18-16.docx (Ipd:slb)]
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTOF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
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(1983) 143 Cal.App.3d 831,836). Indeed, SIR policies are "equivalent to no insurance"
and are "repugnant to the [very] concept of insurance * * *." Richardson v. GAB
Business Services, Inc. (1984) 161 Cal.App;3d 519, 523.
2. As a self-insured entity, JELD-WEN has no liability under the plain terms of the Settlement Agreement
Here, the nature and effect of JELD-WEN's self-insured retention policy truly
means that it has no insurance coverage in this instance. (SSUMF Nos. 3, 5 and 9.)
As such, JELD-WEN has "no insurance proceeds [to be] paid under any insurance
policies issued to [it]." Simply stated, there is no coverage for any claims asserted by
Plaintiff, WESTERN, or CELL-CRETE. (SSUMF No.3.) The Settlement Agreement is
clear in limiting liability to exactly that which JELD-WEN does not have. (SSUMF No.
9.) Thus, pursuant to the terms of Settlement Agreement, JELD-WEN has no liability
as any claims asserted by Plaintiff, WESTERN, or CELL-CRETE. Accordingly, JELD
WEN must be dismissed from this litigation as a matter of law.
15 E.
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CELL-CRETE and WESTERN's Claims For Relief Are Derivative of Plaintiff's and Thereby Must Likewise Be Dismissed
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;E SIEVING LAW FIRM, A.P.C. 100 Howe Ave., Suite 220N
Sacramento, CA 95825 (916) 444·3366
As the Cross-Complaints by CELL-CRETE and WESTERN are wholly derivative
of Plaintiff's claims and purported damages in this action, they must fall together. As
Plaintiff cannot recover against JELD-WEN, neither may CELL-CRETE nor WESTERN.
Indeed, the Settlement Agreement was executed by WESTERN and WESTERN
benefitted from the waiver and releases therein. (Exhibit 5 to Evidence,) WESTERN
moreover benefitted from the Settlement Agreement's reduction in liability and saw fit to
benefit its subcontractors therein as well. (SSUMF No.9.) This intent is clear within
the express terms and writing. (Exhibit 5 to Evidence.) The limitation of WESTERN's
own liability to Plaintiff bars any recovery in this instance against JELD-WEN, as it has
no insurance and thereby no liability under the terms of the Settlement Agreement.
Ifl
III
-11- [Cilker - JW MSJ - Memo of PAs 2-18-16.docx (Ipd:slb)]
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
1 CELL-CRETE, as a subcontractor to WESTERN, also stands as a third-party
2 beneficiary to the Settlement Agreement. (See SSUMF No.9.) As such, its liability is
3 limited to its insurance coverage, and it likewise it may not recover-equitably or
4 otherwise-against JELD-WEN whose liability for this circumstance has been wholly
5 waived and released. (!QJ
6 In light of the foregoing, the JELD-WEN has demonstrated a complete defense
7 to the Second Amended Complaint by Plaintiff, and thereby the derivative Cross-
8 Complaints of WESTERN and CELL-CRETE, and all such claims against JELD-WEN
9 must be dismissed as a matter of law.
10 VI.
11 CONCLUSION
12 Based on the foregoing, JELD-WEN respectfully requests the Court grant its
1 3 Motion and enter Summary Judgment.
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15 DATED: February 22,2016
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THE SIEVING LAW FIRM, AP.C.
By: //--;?-z£---~i-DICKSON
-12-
Attorney for Defendant!Cross-Defendant! Cross-Complainant JELD-WEN, inc. dba SUMMIT WINDOW & PATIO DOOR (erroneously sued herein as separate entities "SUMMIT WINDOW & PATIO DOOR" and "Doe 3: Jeld-Wen, Inc. dba Summit Window & Patio Door")
[Cilker- JW MSJ - Memo of PAs 2-18-16.docx (Ipd:slb)] 1E SIEVING LAW FIRM, A.P.C. 100 Howe Ave., Suite 220N
Sacramento, CA 95825 (916) 444-3366
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JELD-WEN, INC.'S MOTION FOR SUMMARY JUDGMENT
E-FILED: Feb 23, 2016 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-81087
