arrow left
arrow right
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview 
						
                                
Preview

                                oO TD A BR WY YN He

toma _ =
& Se 24 BD EBHE TS

SONJA E. BLOMQUIST, SBN 099341, sblomauist@lowhall.com
KEVIN P. ALLEN, SBN 252290, kallen@ lowball.com ELECTRONICALLY

LOW, BALL & LYNCH FILED
505 Montgomery Street, 7th Floor Superior Court of California,
San Francisco, California 94111-2584 County of San Francisco
Telephone: (415) 981-6630 SEP 13 2010
Facsimile: (415) 399-1506 Clerk of the Court

BY: CHRISTLE ARRIOLA

Deputy Clerk

Attorneys for Defendant

PACIFIC MECHANICAL CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO

LAURANCE HAGEN, ) CASE NO. GCG-10-275582
)
Plaintiff, ) PACIFIC MECHANICAL
) CORPORATION’S ANSWER TO
vs. ) COMPLAINT FOR PERSONAL
) INJURY - ASBESTOS
ASSOCIATED INSULATION OF )
CALIFORNIA, et al., y
Defendants. ;
)
}

Defendant PACIFIC MECHANICAL CORPORATION (herein "Defendant") answers
Plaintiffs Complaint on its own behalf and on behalf of no other defendant or entity as follows:
Pursuant to California Code of Civil Procedure section 431.30(d), Defendant denies
generally each and every allegation of the Complaint.
FIRST AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged by the Plaintiff therein
states facts sufficient to constitute a cause of action against Defendant.

SECOND AFFIRMATIVE DEFENSE

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

Wf
-1-

PACIFIC MECHANICAL CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
JA21 (8\SF1040\Pld\Answer.docTHIRD AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged therein states facts
sufficient to entitle Plaintiff to an award of punitive damages against Defendant.

FOURTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would deprive Defendant of its
property without due process of law under the California Constitution and United States
2

Constitution.
FIFTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would violate the United States
Constitution's prohibition against laws impairing the obligation of contracts.

SIXTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would constitute a criminal fine or
penalty and should, therefore, be remitted on the ground that the award violates the United States
Constitution.

SEVENTH AFFIRMATIVE DEFENSE

Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of
limitations including, but not limited to, California Code of Civil Procedure sections 338(1),
338(4), 339(1), 340(1), 340(3), 340.2, 343, 353, 583.110, 583.210, 583.310 and 583.410 and
California Commercial Code section 2725.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiff unreasonably delayed in bringing this action, without good cause therefor, and
thereby have prejudiced Defendant as a direct and proximate result of such delay; accordingly,
this action is barred by laches, :

NINTH AFFIRMATIVE DEFENSE

Plaintiff was negligent in and about the matters alleged in the Complaint and in each
alleged cause of action; this negligence proximately caused, in whole or in part, the damages
ul

Mt
-2-

PACIFIC MECHANICAL CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
JAQLIBISFT040\PId\Answer.docco © oc

12

alleged in the Complaint. In the event Plaintiff is entitled to any damages, the amount of these
damages should be reduced by the comparative fault of Plaintiff and any person whose negligent
acts or omissions are imputed to Plaintiff.

TENTH AFFIRMATIVE DEFENSE

Plaintiff knowingly, voluntarily and unreasonably undertook each of the risks and
hazards, if any, referred to in the Complaint and each alleged cause of action, and this
undertaking proximately caused and contributed to any loss, injury or damages incurred by
Plaintiff, ,

ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by Plaintiff was proximately caused by the negligent
or willful acts or omissions of parties whom Defendant neither controlled nor had the right to
control, and was not proximately caused by any acts, omissions or other conduct of Defendant.

TWELFTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by Plaintiff or
by others; the misuse, abuse or alteration was not reasonably foreseeable to Defendant, and
proximately caused any loss, injury or damages incurred by Plaintiff.

THIRTEENTH AFFIRMATIVE DEFENSE

Defendant alleged that its products were manufactured, produced, supplied, sold and
distributed in mandatory conformity with specifications promulgated by the United States
Government under its war powers, as set forth in the United States Constitution, and that any
recovery by Plaintiff on the Complaint on file herein is barred in consequence of the exercise of
those sovereign powers.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff failed to exercise due diligence to mitigate his loss, injury or damages;
accordingly, the amount of damages to which Plaintiff is entitled, if any, should be reduced by
the amount of damages which would have otherwise been mitigated.

Me

Mt
-3-

PACIFIC MECHANICAL CORPORATION’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
FAQ11B\SFL040\Pld\Answer.docBB woN

FIFTEENTH AFFIRMATIVE DEFENSE

The Court lacks subject matter jurisdiction over the matters alleged in the Complaint
because the Complaint and each alleged cause of action against Defendant is barred by the
“exclusive remedy" provisions California Labor Code section 3601, et seq.

SIXTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff was
employed and were entitled to receive workers’ compensation benefits from their employers; that
all of Plaintiff's employers, other than Defendant, were negligent in and about the matters
referred to in said Complaint, and that such negligence on the part of said employers proximately]
and concurrently contributed to the happening of the accident and to the loss or damage
complained of by Plaintiff, if any there were; and that by reason thereof Defendant is entitled to
set off any such benefits to be received by Plaintiff against any judgment which may be rendered
in favor of Plaintiff. ~

SEVENTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff's
employers were negligent in and about the matters referred to in said Complaint, and that such
negligence on the part of said employers proximately and concurrently contributed to any loss or
damage, including non-economic damages, complained of by Plaintiff, if any there were; and
that Defendant is not liable for said employers' proportionate share of noneconomic damages.

EIGHTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, parties other
than this Defendant were negligent in and about the matters referred to in said Complaint, and
that such negligence on the part of said parties proximately and concurrently contributed to any
loss or damage, including non-economic damages, complained of by Plaintiff, if any there were;
and that Defendant herein shall not be liable for said parties' proportionate share of noneconomic
damages.

Mt

Mt
-4-

PACIFIC MECHANICAL CORPORATION’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
JAQLIS\SFIO40\PId\Answer.doc.NINETEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at all times relative to matters alleged in the Complaint, all of
Plaintiffs employers, other than Defendant, were sophisticated users of asbestos-containing
products and said employers' negligence in providing the product to its employees in a negligent,
careless and reckless manner was a superseding intervening cause of Plaintiff's injuries, if any
there were.

TWENTIETH AFFIRMATIVE DEF ENSE

If Plaintiff has received, or in the future may receive, workers’ compensation benefits
from Defendant under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the Complaint, and in the event that Defendant is held liable to
Plaintiff, any award against Defendant must be reduced in the amount of all such benefits
received by Plaintiff.

TWENTY-FIRST AFFIRMATIVE DEFENSE

If Plaintiff has received, or in the future may receive, workers' compensation benefits
from Defendant under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the Complaint, and in the event Plaintiff is awarded damages
against Defendant, Defendant claims a credit against this award to the extent that Defendant is
barred from enforcing its rights to reimbursement for workers' compensation benefits that
Plaintiff has received or may in the future receive.

TWENTY-SECOND AFFIRMATIVE DEFENSE

If Plaintiff has received, or in the future may receive, workers’ compensation benefits
from Defendant under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the Complaint, Defendant demands repayment of any such
workers! compensation benefits in the event that Plaintiff recovers tort damages as a result of the
industrial injury allegedly involved here: Although Defendant denies the validity of Plaintiff's
claims, in the event those claims are held valid and not barred by the statute of limitations or
Mi

Mt

-5-
PACIFIC MECHANICAL CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
JN2118\SP1040\Pid\Answer.docSM DD A BR BW BD me

“ s

otherwise, Defendant asserts that oross-demands for money have existed between Plaintiff and
Defendant and the demands are compensated, so far as they equal each other, pursuant to
California Code of Civil Procedure section 431.70.

TWENTY-THIRD AFFIRMATIVE DEFENSE

At all times and places in the Complaint, Plaintiff was not in privity of contract with
Defendant and said lack of privity bars Plaintiff's recovery herein upon any theory of warranty.

TWENTY-FOURTH AF FIRMATIVE DEFENSE

Plaintiff is barred from recovery in that all products produced by Defendant were in
conformity with the existing state-of-the-art, and as a result, these products were not defective in

any manner.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

‘The Defendant did not and does not have a substantial percentage of the market for the
asbestos-containing products which allegedly caused Plaintiffs injuries. Therefore, Defendant
may not be held liable to Plaintiff based on these Defendants’ alleged percentage share of the

applicable market.
TWENTY-SIXTH AFFIRMATIVE DEFENSE

Defendant denies any and all liability to the extent that Plaintiff asserts Defendant's
alleged liability as a successor, successor in business, successor in product line or a portion
thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion
thereof, parent, alter-ego, subsidiary, wholly or partially owned by, or the whole or partial owner
of or member in an entity researching, studying, manufacturing, fabricating, designing, labeling,
assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing,
installing, contracting for installation, repairing, marketing, warranting, rebranding,
manufacturing for others, packaging and advertising a certain substance, the generic name of

which is asbestos.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

This defendant alleges that if Plaintiff's claims were already litigated and resolved in any

prior action, Plaintiff's claims herein are barred based on the primary right and res judicata
~6-

PACIFIC MECHANICAL CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
JA 18\SF1040\Pid\Answer.doeoC OD OOS KN Oh BR BD Mm

doctrines which prohibit splitting a single cause of action into successive suits, and seeking new
recovery for injuries for which the Plaintiff was previously compensated by alleged joint
tortfeasors.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Plaintiff and/or purchaser or user of the product at issue was sufficiently knowledgeable
and or trained and knew or should have known of the potential danger associated with the risk of
exposure to asbestos from the course of their work, and the claims are therefore barred under the
sophisticated user doctrine, pursuant to the California Supreme Court's opinion in William
Johnson y, American Standard, Inc. (2008) 43 Cal.4th 56.

TWENTY-NINTH AFFIRMATIVE DEFENSE

Under the contractor defense, as outlined by Privette v, Superior Court (1993) 5 Cal. 4th
689 and its progeny Toland v, Sunland Housing Corp. (1998) 18 Cal. 4th 253, Camargo v.

Tjaarda Dairy (2001) 25 Cal.4th 1235, Hooker v. Department of Transportation (2002) 27

Cal.4th 198 and McKown v, Wal-Mart Stores. Inc. (2002) 27 Cal.4th 219, Defendant is not

liable for all injuries incurred by Plaintiff -- if any -- incurred while Plaintiff was employed by an|
employer itself hired by Defendant.

WHEREFORE, Defendant prays:

(1) ‘That Plaintiff takes nothing by this Complaint;

(2) That Judgment be entered in favor of Defendant;

(3) For recovery of Defendant's cost of suit;

(4) For appropriate credits and set-offs arising out of any payment of workers!
compensation benefits as alleged above; and

(5) For such other and further relief as the Court deems just and proper.
Dated: September 13, 2010 LOW, BALL & LYNCH

By.

SONJA E. BLOMQUIST

KEVIN P. ALLEN

Attorneys for Defendant

PACIFIC MECHANICAL CORPORATION

-7-

PACIFIC MECHANICAL CORPORATION’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS
44211 8\SF1040\Pid\Answer.docAction: Hagen v. Associated Insulation of California, etal.
San Francisee Case No. CGC-16-275582

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

I, the undersigned, declare that: I am, and was at the time of service of the documents
herein referred to, over the age of 18 years, and not a party to the action; and I am employed in
the County of San Francisco, California. My business addresg is 505 Montgomery Street, 7th
Floor, San Francisco, California 94111.

On the date executed below, I electronically served the document via LexisNexis File &

Serve described as:

DOCUMENT:

PACIFIC MECHANCIAL CORPORATION’S ANSWER TO COMPLAINT FOR
PERSONAL INJURY -- ASBESTOS

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve

web site.

I declare under penalty of perjury pursuant to the laws of the state of California that the
foregoing is true and correct. :

Executed on September 13, 2010, at San Frangisco, California.

-8-

PACIFIC MECHANICAL CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS:
JN 1E\SFLO4OWP Ad Answer.doc