Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                BRYDON
Huco & PARKER
135 MAIN STREET
20" F.cOR
San Francisco, CA 24108

Edward R. Hugo [Bar No, 124839]
P.M. Bessette (Bar No. 127588]

BRYDON HUGO & PARIER.
135 Main Street, 20* Floor ELECTRONICALLY
San Francisco, CA 94105 FILED
Telephone: (415) 808-0300 Superior Court of California,
Facsimile: (415) 808-0333 County of San Francisco

SEP 01 2010
Attorneys for Defendant Clerk of the Court
SWINERTON BUILDERS BY: WILLIAM TRUPEK

. Deputy Clerk

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

LAURANCE HAGEN, (ASBESTOS
Case No, CGC-10-275582
Plaintiff,
vs.
ANSWER OF SWINERTON BUILDERS TO
ASBESTOS DEFENDANTS (BP), etal, | COMPLAINT FOR PERSONAL INJURY -
ASBESTOS
Defendants.

COMES NOW Defendant SWINERTON BUILDERS (“SWINERTON” or

Defendant”) denying liability for itself and any alternate entities named in the

complaint, and answers plaintiff's Complaint for Personal Injury ~ Asbestos (hereinafter
the “Complaint”) on file herein, admits, denies, and alleges as follows:
GENERAL DENIAL

Under the provisions of Section 431.30(d), California Code of Civil Procedure,
this answering defendant denies each and every allegation of plaintiff's Complaint and
the whole thereof, and denies that plaintiff has been damaged in any sum or amount
whatsoever, or at all, and denies that plaintiff is entitled to recover damages of any kind
in any amount whatsoever from SWINERTON.

RESERVATION OF RIGHT TO TRIAL BY JURY
SWINERTON reserves the right to a trial by jury.

1

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSue

wn

BRYDON
MuGo & PARKER,
13S MAIN STREET
20" FLOOR
Sin Francisco, CA $4365

AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE

Failure to State a Cause of Action

This answering defendant alleges that plaintiff’s Complaint and each of the causes
of action for relief alleged therein, fails to state a cause of action against this answering
defendant.

SECOND AFFIRMATIVE DEFENSE

Contravention of Defendant's Constitutional Rights to Due Process of Law

The Complaint and each cause of action thereof, which is admittedly based upon a
lack of identification of the manufacturer of, and contractor using or distributing the
alleged injury-causing product, fails to state facts sufficient to constitute a cause of action
in that plaintiff has asserted a claim for relief which, if granted, would contravene
defendant's constitutional rights to substantive and procedural due process of law as
preserved for defendant by the Fourteenth Amendment of the United States Constitution

and by Article I, Section 7, of the Constitution of the State of California.

THIRD AFFIRMATIVE DEFENSE

Denial of Defendant's Constitutional Rights to Equal Protection of the Laws

The Complaint, and each cause of action thereof, fails to state facts sufficient to
constitute a cause of action in that plaintiff has asserted claims for relief which, if granted,
would constitute a denial by this Court of defendant's constitutional right to equal
protection of the laws as preserved by the Fourteenth Amendment of the United States

Constitution and by Article |, Section 7, of the Constitution of the State of California.

FOURTH AFFIRMATIVE DEFENSE

Unconstitutional Taking of Private Property for Public Use Without Just Compensation

‘The Complaint, and each cause of action thereof, which is admittedly based upon

a lack of identification of the manufacturer, and contractor using or distributing the

alleged injury-causing product, fails to state facts sufficient to constitute a cause of action

in that plaintiff has asserted claims for relief which, if granted, would constitute the

2

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSSC COC Oe aK

BRYDON
HUGO & PARKER
135 MAIN SSREET
26" FLOOR
San Francisco, CA 98105

taking of private property for public use without just compensation in contravention of
the Fifth and Fourteenth Amendments to the United States Constitution and by Article 1,
Section 7 and 19, of the Constitution of the State of California, and the applicable
California statutes.

FIFTH AFFIRMATIVE DEFENSE

Comparative Fault
This answering defendant alleges that the damages, if any, complained of by

plaintiff, were proximately caused by the negligence, fault, breach of contract and/or
strict liability of plaintiff or other defendants, firms, persons, corporations, unions,
employers and entities other than SWINERTON, and that said negligence, fault, breach
of contract and/or strict liability comparatively reduces the percentage of any negligence,
fault, breach of contract or strict liability for which SWINERTON is legally responsible, if
any be found, which liability this defendant expressly denies. Further, this answering

defendant alleges that plaintiff did not exercise ordinary care, caution or prudence to

avoid the incidents complained of herein, and said incidents and the injuries and
damages, if any, sustained by plaintiff, were directly and proximately caused and
contributed to by the carelessness and negligence of said plaintiff.

SIXTH AFFIRMATIVE DEFENSE

Contributory Negligence
This answering defendant alleges that plaintiff did not exercise ordinary care,

caution or prudence to avoid the incidents complained of herein, and said incidents and
the injuries and damages, if any, sustained by plaintiff, were directly and proximately
caused and contributed to by the carelessness and negligence of said plaintiff.

it

i}

iit

3

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBRYDON
Hugo & PARKER,
13S Mans Sree
20 Rco8
San Franeiseo, CA 94108

SEVENTH AFFIRMATIVE DEFENSE

Uncertainty
This answering defendant alleges that plaintiff's Complaint and all purported

causes of action therein are vague, ambiguous and uncertain, and fail to state a cause of
action on any theory.
EIGHTH AFFIRMATIVE DEFENSE
Laches

This answering defendant alleges that plaintiff unreasonably delayed in bringing

this action and that such delay substantially prejudiced defendant, and that this action is

therefore barred by the Doctrine of Laches.

NINTH AFFIRMATIVE DEFENSE

Statute of Limitations
This answering defendant alleges that plaintiff's Complaint and the purported
causes of action therein are barred by all statutes of limitation, including, but not limited
to, the provisions of California Code of Civil Procedure §§ 338, 338.1, 339(1), 340, 340(3)
and 340.2, 343, 352, 366.1, 366.2 and California Commercial Code § 2725. Plaintiff's claims
are further barred by the-statute of limitations of states other than California pursuant to

California Code of Civil Procedure § 361.

TENTH AFFIRMATIVE DEFENSE

Failure to Mitigate
This answering defendant alleges that plaintiff failed to mitigate damages which

plaintiff contends he suffered, and plaintiff is therefore barred from any recovery
whatsoever, or alternatively, any damages found must be reduced in proportion to such

failure to mitigate.

ELEVENTH AFFIRMATIVE DEFENSE

Estoppel
This answering defendant alleges that as a result of the acts, conduct and/or

omissions of plaintiff and his agents, or any of them, and each cause of action presented

4
SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBRYDON
HuGO & PARKER
135 Mam STREET
20” FLOoR
Sen Francisco, CA 4105

therein, is barred under the Doctrine of Estoppel.

TWELFTH AFFIRMATIVE DEFENSE

Waiver
This answering defendant alleges that plaintiff, by his acts, conduct and omissions,
has waived the claims alleged in his Complaint and in each purported cause of action

alleged therein.

THIRTEENTH AFFIRMATIVE DEFENSE

Acguiescence
Plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts

or omissions, if any, of this answering defendant, thus barring plaintiff from any relief as
prayed for herein.

FOURTEENTH AFFIRMATIVE DEFENSE

Notice of Dangers
Plaintiff was advised, informed, and warned of any potential hazards and/or

dangers, if there were any, associated with the normal or foreseeable use, handling,
storage and in place asbestos of the products, substances, equipment and at premises in
which exposure is claimed as is described in the Complaint and is therefore barred from
any relief prayed for.

FIFTEENTH AFFIRMATIVE DEFENSE

Compliance with Statutes
This answering defendant alleges that all of its conduct and activities as alleged in

the plaintiff's Complaint conformed to statutes, government regulations, and industry

standards based upon the state of knowledge existing at all relevant times.

SIXTEENTH AFFIRMATIVE DEFENSE

Compliance with Specifications

This answering defendant alleges that the asbestos products or asbestos used or in
place at any premises, if any, for which SWINERTON had any legal responsibility, were

manufactured, packaged, distributed or sold in accordance with contract specifications

5

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSa nw

ce

nn &

BRYDON
HuGo & PARKER
135 Magn StRaET
20" FLOOR
San Franciseo, CA 94105

imposed by its co-defendants, by the U.S. Government, by the State of California, by
plaintiff's employers, or by third parties yet to be identified.
SEVENTEENTH AFFIRMATIVE DEFENSE

No Conspiracy
This answering defendant alleges that SWINERTON has no liability for the acts,
omissions or otherwise of any other defendant or entity because SWINERTON did not
become legally responsible for the acts of any such defendant, nor entity, by any
communication, alleged, implied, or actual, nor act, action, or activity, and never was, nor

is, a conspirator nor co-conspirator with any other defendant or entity.

EIGHTEENTH AFFIRMATIVE DEFENSE

State-of-the-Art

‘This answering defendant alleges that all of its activities, products, materials and
its premises at issue here at all times were conducted, used, produced, marketed, and
operated in conformity with the existing scientific, medical industrial hygiene and

consumer knowledge, art and practice and state-of-the-art.

NINTEENTH AFFIRMATIVE DEFENSE

No Foreseeable Risk to Plaintiff

The state of the medical, scientific, and industrial knowledge and practice was at
all material times such that defendant neither breached any alleged duty owed plaintiff,
nor knew, nor could have known, that its activities, materials, products, activities or
premises presented a foreseeable risk of harm to plaintiff in the normal and expected

course of such activities and use of such materials and products.

TWENTIETH AFFIRMATIVE DEFENSE

No Right to Control
This answering defendant alleges that any loss, injury, or damage incurred by

Plaintiff was proximately and legally caused by the negligent or willful acts or omissions
of parties which SWINERTON neither controlled, nor had the right to control, and was

not proximately caused by any acts, omissions, or other conduct of SWINERTON.

6

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS

|a Dw

BryDow
HuGo & PARKER
135 MuAEN STRERT
20" FLOOR,

San Franciteo, CA 94108

TWENTY-FIRST AFFIRMATIVE DEFENSE

Action for Relief

This answering defendant alleges the causes of action, if any, attempted to be
stated and set forth in the Complaint, are barred by the provisions of the Code of Civil
Procedure of the State of California and/or other statutes of the State of California,
including without limitation C.C.P. § 338(d).

IWENTY-SECOND AFFIRMATIVE DEFENSE

Misuse and Improper Use of Products

This answering defendant alleges that if the plaintiff allegedly suffered injuries
attributable to the disturbance or use of any product for which SWINERTON had any

legal responsibility, which allegations are expressly herein denied, the injuries were

solely caused by, and attributable to the unreasonable, unforeseeable, and inappropriate

purpose and improper use and abuse which was made of said product by persons or

entities other than SWINERTON.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Due Care and Diligence
This answering defendant alleges that SWINERTON exercised due care and

diligence in all of the matters alleged in the Complaint, and no act or omission by

SWINERTON was the proximate cause of any damage, injury or loss to plaintiff.
TWENTY-FOURTH AFFIRMATIVE DEFENSE

Alteration and Misuse of Product

This answering defendant alleges that an insubstantial amount, if any at all, of the
products containing asbestos distributed, used, supplied by defendant or used or in place

at any premises owned or controlled by defendant, were not disturbed or used in the

_presence of plaintiff and not supplied to the plaintiff, and if so, were substantially altered

by others and/or used in a manner inconsistent with the labeled directions.

7

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSeo ND

9
20
21
22
23
24
25
26
27
28

BRYDON
HuGo & PARKER,
105 MARN STREET
20" FLOOR
San Francisco, CA 94105,

TWENTY-PIFTH AFFIATIVE DEFENSE

Equal or Greater Knowledge of Hazards

‘This answering defendant alleges that any and all products containing asbestos
used, distributed or supplied by defendant were distributed or supplied to, or for,
persons or entities who had knowledge with respect to the hazards, if any, resulting from.
exposure to products containing asbestos, which knowledge is equal to or greater than

the knowledge of SWINERTON.
TWENTY-SIXTH AFFIRMATIVE DEFENSE

Other Parties’ Liability and Negligence

This answering defendant alleges that if there was any negligence or any other
form of liability on the part of any of the parties named herein, it was the sole and
exclusive negligence and liability of the other persons or entities and not of

SWINERTON.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Apportionment and Offset
This answering defendant is informed and believes and thereon alleges that

plaintiff's acts and omissions, including plaintiff's agents, servants, and employees acting
within the course and scope of their employment, and others, contributed to the alleged

damages, injury, or loss, if any, sustained by plaintiff. Defendant requests that the Court

apply the principles of apportionment and offset so as to permit the Court or jury to
apportion liability according to fault and to grant defendant a corresponding offset

against any damages awarded to plaintiff.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Contribution/Equitable Indemnity

This answering defendant alleges, in the event it is held liable to Plaintiff, any such
liability is expressly herein denied, and any other co-defendants are likewise held liable,
SWINERTON is entitled to a percentage contribution of the total liability from said co-

defendants in accordance with the principles of equitable indemnity and comparative

8

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSSOD hw BR Bw

BRYDON
HuGo & PARKER,
135 Mats S7ReeT
20" P.DCR
San Francisco, CA 94105

contribution.

TWENTY-NINTH AFFIRMATIVE DEFENSE

Assumption of Risk by Plaintiff's Employer(s)

This answering defendant alleges that the Complaint and each cause of action
alleged therein are barred on the grounds that plaintiff's employer or employers
knowingly entered into and engaged in the operations, acts and conduct alleged in the
Complaint, and voluntarily and knowingly assumed all of the risks incident to said

operations, acts and conduct at the time and place mentioned in the Complaint.

THIRTIETH AFFIRMATIVE DEFENSE

Assumption of Risk
This answering defendant alleges plaintiff assumed the risk of the matters referred

to in his Complaint and that plaintiff knew and appreciated the nature of the risk and
that the plaintiff voluntarily accepted this risk.
THIRTY-FIRST AFFIRMATIVE DEFENSE

No Market Share
This answering defendant alleges that SWINERTON did not have an appreciable

share of the market for the asbestos-containing products which allegedly caused
plaintiff's injuries, which occurrence SWINERTON expressly denies. Accordingly,
SWINERTON may not be held liable to plaintiff based on its alleged share of the
applicable product market.
THIRTY-SECOND AFFIRMATIVE DEFENSE
Plaintiff Fails to Join a Substantial Market Share

The Complaint, and each cause of action thereof, fails to state facts sufficient to
constitute a cause of action against this answering defendant, in that defendant has failed
to join a substantial market share of the producers or products to which plaintiff was

allegedly exposed.

9

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSID Ww BR wW

A vA

BRYDON
HuGo & PARKER,
(135 MARS STREET
2" FLOOR
San Feareisco, CA 94105,

we

THIRTY-THIRD AFFIRMATIVE DEFENSE

insufficient Facts to Show Substantial Market Share of this Defendant

na.

To the extent the Complaint asserts defendant's alleged “alternative,” “market
share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute a
cause of action against this defendant.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

Independent, Intervening or Superseding Cause

This answering defendant alleges that if plaintiff suffered any injuries attributable
to the use of any product containing asbestos which was used, distributed or sold by
defendant, which allegations are expressly denied herein, the injuries were solely caused
by an unforeseeable, independent intervening and/or superseding event beyond the
control and unrelated to any conduct of defendant. Defendant's actions, if any, were

superseded by the negligence and wrongful conduct of others.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

Not a Substantial Factor

This answering defendant alleges that the Complaint and each cause of action
therein presented are barred on the grounds that the products, conduct, materials or
premises of defendant as referred to in plaintiff's Complaint, if any, were not a

substantial factor in bringing about the injuries and damages complained of by plaintiff

and did not increase the risk that plaintiff would suffer the injuries and damages

complained of.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

Insufficient Exposure
Any exposure of plaintiff to defendant's activities, products or exposure to

asbestos or asbestos-containing products at SWINERTON’s premises was so minimal as

to be insufficient to establish by a reasonable degree of probability that any such product

caused any alleged injury, damage, or loss to plaintiff.

10

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ‘ASBESTOSSW DR A

9
10
il
12
13
i4
15
16
17
18
19
20
21
22
23
24
25
26
27
28

BRYDON
Hyco & PARKER
135 Main STREG?
20" FLooR
San Franciseo, CA 9880S

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

No Successor Liability
This answering defendant alleges that SWINERTON has no liability for the acts,

omissions or otherwise of any other defendant or any other entity because SWINERTON
did not become legally responsible for the acts of any such defendant or entity given the
facts and circumstances of the pertinent transactions and never was, nor is, a successor-
in-interest, a successor-in-liability or an alternate entity for any other user, manufacturer,
supplier, seller, distributor or premises holder relating to asbestos or asbestos-containing
products.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
Lack of Privity

This answering defendant alleges that plaintiff has failed to state a cause of action

in that the Complaint fails to allege that there was privity between defendant on the one
hand, and plaintiff on the other, and furthermore, such privity did not exist between
defendant on the one hand, and plaintiff on the other.

THRITY-NINTH AFFIRMATIVE DEFENSE

Secondary Assumption of Risk

‘This answering defendant alleges that any and all products containing asbestos
used, distributed or supplied by defendant were used, distributed or supplied to, or for,
persons or entities who had knowledge with respect to the hazards, if any, resulting from
exposure to products containing asbestos, which is equal to or greater than, the
knowledge of SWINERTON, ie. SWINERTON’s liability should be reduced in
proportion to the knowledge of plaintiff.

FORTIETH AFFIRMATIVE DEFENSE
Civil Code Section 1431.2

This answering defendant alleges that the provisions of California Civil Code §
1431.2 (commonly referred to as “Proposition 51”) are applicable to plaintiff's Complaint

and to each cause of action therein.

u

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS

|ID HA

Co 9

BRYDON
Hugo & PARKER
2135 Mame STREET
20" Foor
San Francisca, CA 94105

FORTY-FIRST AFFIRMATIVE DEFENSE

Workers’ Compensation Exclusive Remedy

This answering defendant alleges that the Complaint is barred by the exclusivity
provisions of the California Workers’ Compensation laws, including, but not limited to,

California Labor Code §§ 3600, et seq.

FORTH-SECOND AFFIRMATIVE DEFENSE

Offset for Workers’ Compensation Benefits

This answering defendant alleges that to the extent plaintiff herein recovered, or in
the future may recover, any monies in connection with any claim for workers’
compensation benefits, any amounts recovered in this action are subject to a claim by

defendant for a credit or offset.

FORTY-THIRD AFFIRMATIVE DREEENSE

Express Contractual Indemnity

This answering defendant alleges that if plaintiff claims exposure to asbestos or
asbestos-containing products at a SWINERTON premises, SWINERTON contracted with
plaintiff and/or plaintiff's employer(s) for them to fully assume all responsibility for
insuring plaintiff's safety, to guarantee that no hazardous condition existed, and/or to
warn and protect against any such conditions, during the performance of plaintiff's work,
and, further, to fully indemnify SWINERTON, and to hold SWINERTON harmless, for
all responsibility and liability arising out of said work, and/or any injuries allegedly
incurred by plaintiff as a result of any of said work. SWINERTON reserves all rights to

assert these provisions of contractual indemnity.

FORTY-FOURTH AFFIRMATIVE DEFENSE

Consent

This answering defendant alleges that at all times mentioned, plaintiff consented

to the alleged acts or omissions of SWINERTON.

12

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSOC MW DH Bw

28

BRYDON
HuGo & PARKER,
135 Man Sastre
20" Foor
San Prancise, CA 94108

FORTY-FIFTH AFFIMATIVE DEFENSE
Unusual Susceptibility

This answering defendant alleges that each of plaintiff's injuries and damages, if

any, were proximately caused or contributed to by plaintiff’s unforeseeable idiosyncratic
condition, unusual susceptibility, or hypersensitivity reactions for which SWINERTON is
not liable. : :
FORTY-SIXTH AFFIRMATIVE DEFENSE
Good Faith

This answering defendant alleges that plaintiff's claim for punitive damages is
barred because SWINERTON at all times and places mentioned in the Complaint acted
reasonably and in good faith, and without malice or oppression towards the plaintiff.

FORTY-SEVENTH AFFIRMATIVE DEFENSE

Sophisticated User
This answering defendant alleges that SWINERTON was under no legal duty to

warn plaintiff of the hazard associated with the use of products containing asbestos or
their existence at any premises owned, operated, controlled or otherwise by-
SWINERTON. The purchasers of said products, the plaintiff, plaintiff's employers, his
unions or certain third parties yet to be identified, were knowledgeable and sophisticated
users and were in a better position to warn plaintiff of the risk associated with using
products containing asbestos and, assuming a warning was required, it was the failure of
such persons or entities to give such a warning that was the proximate and superseding
cause of plaintiff's damages, if any.

FORTY-EIGHTH AFFIRMATIVE DEFENSE

Work Hazard Precautions

This answering defendant alleges that plaintiff's employer(s) was/were advised
and warned of any potential hazards and/or dangers associated with the normal and
foreseeable conduct with, or storage and disposal of the products referred to in the

Complaint, in a manner which was adequate notice to an industrial user of such product

13

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSwn

“a

BRYDON
Huco & PARKER
135 MAIN SRE
20" BLoOR
Sen Francisco, CA 94105.

to enable it to inform its employees to take appropriate work precautions to prevent
injurious exposure.

FORTY-NINTH AFFIRMATIVE DEFENSE

Failure to Join Indispensable Parties
Plaintiff herein has failed to join indispensable parties (California Code of Civil
Procedure, § 389) and the Complaint is thereby defective, and plaintiff is thereby
precluded from any recovery whatsoever as prayed for herein.
FIETIETH AFFIRMATIVE DEFENSE
No Standing Under California Civil Code §§ 1708-1710

Plaintiff has no standing nor right to sue for fraud and conspiracy, breach of

warranty, deceit, or any cause of action under California Civil Code, §§ 1708-1710, and
therefore the Complaint and each cause of action thereof fails to state facts sufficient to

constitute a cause of action against this answering defendant.

FIPTY-FIRST AFFIRMATIVE DEFENSE

Plaintiff is not a Real Party in Interest

Plaintiff, and each of them, herein lacks legal capacity to sue and is not a real party

in interest and is thereby precluded from any recovery whatsoever as prayed for herein.

EIFTY-SECOND AFFIRMATIVE DEFENSE

Fraud and Conspiracy are Not Separate Forms of Damages

Fraud and conspiracy do not constitute a separate and distinct form of damages
from general damages, and, therefore, the prayer for fraud and conspiracy in addition to
general damages does not sufficiently support or constitute a separate claim for damages
against this answering defendant, but is simply cumulative and included in general
damages.

FIFTY-THIRD AFFIRMATIVE DEFENSE

Failure to Allege with Particularity

This answering defendant alleges that plaintiff’s Complaint fails to set out its

claims with sufficient particularity to permit defendant to raise all appropriate defenses

14

~SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSoN

9
20
21
22
23
24
25
26
27
28

BRryYDON
HuGo & PARKER
FS MAIN STREET
20° FLOOR
San Francisco, CA 94105,

and, thus, defendant reserves the right to add additional defenses as the factual basis for
these claims becomes known.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
Punitive Damage Prohibited

This answering defendant alleges that plaintiffs Complaint fails to state facts

sufficient to support an award of punitive or exemplary damages against SWINERTON.
The Complaint, to the extent that it seeks exemplary or punitive damages, violates

SWINERTON’s right to procedural due process under the Fourteenth Amendment of the

United States Constitution, and the Constitution of the State of California, and fails to
state a cause of action upon which either punitive or exemplary damages can be

awarded.

FIFTY-FIFTH AFFIRMATIVE DEFENSE

‘unitive Damages Prohibited

This answering defendant alleges that the Complaint, to the extent that it seeks
punitive or exemplary damages, violates SWINERTON’s right to protection from
excessive fines as provided in the Fighth Amendment of the United States Constitution
and Article |, Section 17 of the Constitution of the State of California, and violates
SWINERTON’s right to substantive due process as provided in the Fifth and Fourteenth
Amendments of the United States and California Constitutions, and thus fails to state a
cause of action supporting an award of punitive or exemplary damages.

FIFTY-SIXTH AFFIRMATIVE DEFENSE

Punitive Damages Prohibited

The causes of action asserted herein by plaintiff fail to state facts sufficient to
constitute a cause of action in that plaintiff has asserted claims for punitive damages
which, if granted, would violate the prohibition against laws impairing the obligation of

contracts set forth in Article I, Section 10, of the United States Constitution.

15

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBRYDON
HuGO & PARKER
135 Main STRRET
20 FLOOR:

Sen Franciseo, CA 98105

FIFTY-SEVENTH AFFIRMATIVE DEFENSE

Punitive Damages Prohibited

Plaintiffs claim for punitive or exemplary damages, if any, alleged by Plaintiff is
barred by the “double jeopardy” clause of the Fifth Amendment to the United States

Constitution, as applied to the States through the Fourteenth Amendment.

FIFTY-EIGHTH AFFIRMATIVE DEFENSE

Negligent Hiring Claim Invalid
An employee of an independent contractor may not pursue a claim for negligent
hiring against a hirer of the independent contractor. See Camargo v. Tjaarda Dairy, 25 Cal.

4th 1235 (2001).
BIFTY-NINTH AFFIRMATIVE DEFENSE

Right to Amend
This defendant will assert any and all additional defenses that arise during the

course of this litigation and reserves the right to amend its answer to assert such

defenses.

SIXTIETH AFFIRMATIVE DEFENSE

Alternate Unknown Cause
The alleged injuries and damages, if any, may be in whole or in part due to injury,

disease or cause other than as alleged.

SIXTY-FIRST AFFIRMATIVE DEFENSE

No Concert of Action
There is no concert of action between defendant and any of the other named
defendants. Defendants are not joint tortfeasors and accordingly, defendant may not be
held jointly and severally liable with the other named defendants,
PRAYER
WHEREFORE, this answering defendant prays for judgment as follows:
1 That Plaintiff take nothing by reason of their Complaint or any claims

stated therein;

16

SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS1 2, That Plaintiff's Complaint and each cause of action contained therein be
2 || dismissed with prejudice against SWINERTON;
3 3. For costs of suit; and
4 4, For such other and further relief as the Court deems just and appropriate in
5 || the circumstances.
6
7\| DATED: September 1, 2010 BRYDON HUGO & PARKER
8
3 By: /s/ Edward R. Hugo
Edward R. Hugo
10 P.M. Bessette
Attorneys for Defendant
} SWINERTON BUILDERS
2
3
4
[

5
6
7
8
9

20

21

22

23

24

25

26

27

28

BrYDON
Huco & PARKER
‘8 Man sear v
20" FLo9R 1
Stn Francisco, CA S808 SWINERTON BUILDERS’ ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSHagen, Laurance
San Francisco County Superior Court Case No. CGC-10-275582
LexisNexis Transaction No. 32990086

PROOF OF SERVICE

Tam a resident of the State of California, over the age of 18 years, and not a
party to the within action. My electronic notification address is
service@bhplaw.com and my business address is 135 Main Street, 20 Floor, San.
Francisco, Eaitornia 94105. On the date below, I served the following:

ANSWER OF SWINERTON BUILDERS TO COMPLAINT FOR PERSONAL
INJURY - ASBESTOS

on the following:

BRAYTON PURCELL LLP LexisNexis Service List
222 Rush Landing Road.

Novato, CA 9494

Fax: (415) 898-1247

X By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

o By transmitting via facsimile the document(s) listed above to the fax
number(s) set forth above on this date before 5:00 p.m.

o By placing the document(s) listed above in a sealed envelope and placing
the envelope for collection arid mailing on the date below following the
firm’s ordinary business practices, I am readily familiar with the firm’s
practice of collection and processing correspondence for mailing. Under
that practice it would be deposited with U.S. Postal service on the same
day with postage thereon fully prepaid at San Francisco, California in
the ordinary course of business. | am aware that on motion of party
served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after date of deposit for mailing in
affidavit.

o By placing the document(s) listed above in a sealed envelope designated
for Federal Express overnight delivery and depositing same with fees
thereupon prepaid, ina facility regularly maintained by Federal Express,
addressed as set forth above.

o By causing personal delivery of the document(s) listed above to the
person(s) at the address(es) set forth above.

I declare under penalty of perjury that the above is true and correct.
Executed on September 1, 2010, at San Francisco, California.

Wanda D. Claudio

PROOF OF SERVICE