In May 2007, decedent Timothy Barney died while repairing a conveyer system on NGI, Inc. 's (National Gypsum) property. In May 2008, plaintiffs Michelle Barney, Christina Barney, and others (collectively plaintiffs) filed a workers' compensation action against National Gypsum and Jenson Mechanical (Jenson) alleging Barney was an employee of both companies when he sustained injuries causing his death. Approximately one year later, plaintiffs filed a wrongful death lawsuit against National Gypsum in Contra Costa County Superior Court alleging Barney was an employee of Jenson "working at" property owned by National Gypsum. The allegations in plaintiffs' complaint mirrored the allegations in their workers' compensation petition, except that plaintiffs alleged Barney was an employee of Jenson not National Gypsum and that he was "working at" property owned by National Gypsum when he fell from the conveyer system. According to plaintiffs, their dismissal of National Gypsum from the workers' compensation action meant there was "no other action pending involving National [Gypsum].

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