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  • 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 
						
                                
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                                BERGQUIST, WOOD & ANDERSON, LLP

ATTORNEYS AT LAW
1479 MARIA LANE. SUITE 300
WALNUT CREEK, CALIFORNIA 4596
(928) 838-8100 FACSIMILE (S25) 938-4354

Kenneth R. Bergquist SBN 118846
BERGQUIST, WOOD & ANDERSON, LLP
1470 Maria Lane, Suite 300

Walnut Creek, California 94596

(925) 938-6100 Tel

(925) 938-4354 Fax

Attorneys for Defendant,

Walnut Creek Sheet Metal , Furnace & Air Conditioning, Inc.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

AUG 31 2010

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

Hagen, Laurance John
Plaintiffs,
v.

Asbestos Defendants (BHC)

CASE NO.: CGC 10-275582

DEFENDANT WALNUT CREEK SHEET
METAL, FURNACE & AIR
CONDITIONING, INC, ANSWER TO
FIRST AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH-
ASBESTOS

Defendant, Walnut Creek Sheet Metal, Furnace & Air Conditioning, Inc., by way of

Auswer To First Amended Complaint (“Complaint”) on file herein, denies, generally and

specifically, each and every allegation contained therein, and further denies that Plaintiffs have

been damaged in any sum or sums whatsoever or at all.

AS AND FOR SEPARATE, DISTINCT, AND AFFIRMATIVE DEFENSES,
DEFENDANT ALLEGES:
i
i
i
_ nee 1
Defendant Walt Creck Sheet Metal , Furnace & Air Conditioning, Ine,’s Answer to First Amended Complaint for Survival,

Wrongful Deuth-AsbestosBERGQUIST, WOOD & ANDERSON, LLP

ATTORNEYS AT LAW
2479 Mania LANE, SUITE 300
WALNUT CREEK, CALIFORNIA 94596
{925} 988-6109 FACSIMILE (825) 935-4354

FIRST AFFIRMATIVE DEFENSE
Neither the Complaint, nor any of the alleged causes of action state facts sufficient to
constitute a cause of action against defendant Walnut Creek Sheet Metal, Furnace & Air
Conditioning, Inc.
SECOND AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint, and each stated cause of action, is barred by the applicable statues of
limitations.

THIRD AFFIRMATIVE DEFENSE

Decedent was careless and negligent in and about the matters complained of in Plaintiffs’
Complaint, which proximately caused and contributed to his own damages, if any, sustained.
FOURTH AFFIRMATIVE DEFENSE
If Decedent sustained any alleged damages, these damages were due the negligence of
persons and/or entities other than Walnut Creek Sheet Metal, Furnace & Air Conditioning,
Inc.
FIFTH AFFIRMATIVE DEFENSE
Decedent’s damages, as alleged by Plaintiffs, are completely or in part the product of
Decedent’s failure to mitigate damages as required by law.
SIXTH AFFIRMATIVE DEFENSE
If Decedent suffered injuries attributable to the use of any product manufactured,
formulated, packaged, or sold by Walnut Creek Sheet Metal, Furnace & Air Conditioning,
Inc. which injuries are expressly denied, the injuries were solely caused and attributable to the
unreasonable, unforeseeable, and inappropriate purpose and use, which was made of the product
and the Decedent’s failure, or others, to follow label instructions.

if

2

Defendant Walnut Creck Sheet Metal , Furnace & Air Conditioning, Ine.’ Answer to Pirst Amended Complaint for Survival,
Wrongfill Death-AshestosATTORNEYS AT LAW
2470 MARIA LANE, SUITE 200
WALNUT CREEK, CALIFORNIA 94596
(8925) 938-6100 FACSIMILE (925) 238-4384

BERGQuUIST, Woop & ANDERSON, LLP

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SEVENTH AFFIRMATIVE DEFENSE

That at all times mentioned in the Complaint, Walnut Creek Sheet Metal, Furnace &
Air Conditioning, Inc. is informed and believes Decedent was employed and entitled to receive
employer's Worker’s Compensation benefits, which Decedent’s employer was insured under a
policy of Worker’s compensation Insurance; said employer an its agents, servants and employees,
acting within the course and scope of their agency and employment, were negligent and careless in
and about the matters referred to in Plaintiffs’ Complaint; that said employer carelessly and
negligently failed to furnish Decedent with a safe place to work and carelessly and negligently
failed to provide proper supervision, inspections, tools, appliances and control and direction over
its employees in the place of employment, that said carelessness and negligence proximately
caused an contributed to the injuries, which Plaintiffs claim Decedent sustained; that the
carelessness and concurrent negligence bars recovery against Walnut Creek Sheet Metal,
Furnace & Air Conditioning, Inc. of all sums paid or to be paid to or on behalf of Plaintiffs by
way of Worker’s Compensation benefits as aforesaid; that said carelessness and concurrent
negligence of employer is by law imputed to the insurance carrier of said employer pursuant to
Witt v. Jackson (1961) 57 Cal.2d 57.

EIGHTH AFFIRMATIVE DEFENSE

Walnut Creek Sheet Metal, Furnace & Air Conditioning, Inc. had neither notice nor
information to acquire notice concerning the alleged notice and/or defect alleged in Plaintiffs’
Complaint herein.

NINTH AFFIRMATIVE DEFENSE

Decedent knowingly and voluntarily assumed the alleged risk and hazard, and his
voluntary assumption of the risk and hazard was the proximate cause and contribution to the
alleged damages.

3

Devendant Walnut Creck Sheet Metal , Furnace & Air Conditioning, Inc.'s Answer to First Amended Complaint for Survival,
Wrongful Death-AsbestosATTORNEYS AT LAW
1479 MARIA LANE, SUITE 300
WALNUT CREEK, CALIFORNIA 94595

BERGQUIST, WOOD & ANDERSON, LLP
($28) $38-8100 FACSIMILE ($25) 938-4384

TENTH AFFIRMATIVE DEFENSE
Plaintiffs have unreasonable delayed the commencement of this action and prejudiced
Walnut Creek Sheet Metal, Furnace & Air Conditioning, Inc. whereby the Complaint, and
each cause of action therein, is barred by the doctrine of laches.
ELEVENTH AFFIRMATIVE DEFENSE
That parties to this action, other than Walnut Creek Sheet Metal , Furnace & Air
Conditioning, Inc., were negligently or legally responsible, or otherwise at fault for any damages
alleged in the complaint, which damages are herein denied; and therefore, in the event of any
liability, whether by settlement or judgment in favor of any other party against Walnut Creek
Sheet Metal, Furnace & Air Conditioning, Inc. an apportionment of fault should be made as to
all parties by the court or jury, and this answering defendant requests a judgment and declaration
of indemnification and contribution against all other parties or persons in accordance with the
apportionment of fault between the parties and any judgment for non-economic damages must be
limited to the Walnut Creek Sheet Metal, Furnace & Air Conditioning, Inc.’s percentage share
of fault in accordance with Civil Code Section 1431.2, et seq.
TWELFTH AFFIRMATIVE DEFENSE
All Walnut Creek Sheet Metal , Furnace & Air Conditioning, Inc.’s activities, as alleged in
Plaintiffs’ Complaint, conform to statutes, governmental regulations, and industry standards based
upon the state of knowledge existing at the time alleged in the complaint and each cause of action
therein.
THIRTEENTH AFFIRMATIVE DEFENSE
Decedent, or others, modified, altered, and/or changed the products, chemicals and /or
compounds referred to in the complaint; and these changes were the proximate caused of the
alleged injuries, loss, and damages.
4 seen

Defendant Walnut Creck Sheet Metal , Furnace & Air Conditioning, Ine.’s Answer to First Amended Complaint for Survival,
‘Wrongltl Death-AsbestosBERGQUIST, WooD & ANDERSON, LLP

ATTORNEYS AT LAW
4470 Mania LANE, SUITE 300
WALNUT CREEK, GALIFORNIA $4596
(825) 938-8100 FAGSIMILE (925) 938-4354

FOURTHEENTH AFFIRMATIVE DEFENSE
The alleged injuries and damages were proximately caused by the idiosyncrasy of
Decedent’s bodily composition and consequential unforeseeable allergic reaction to the product
and/or one or more of its components.
FIFTEENTH AFFIRMATIVE DEFENSE
Decedent's acts, conduct, and omissions actually and proximately caused alleged injuries
which injuries are denied herein, and Walnut Creck Sheet Metal, Furnace & Air Conditioning,
Tne. has no liability to Plaintiffs, or at all; or in the alternative, Walnut Creek Sheet Metal,
Furnace & Air Conditioning, Inc., is only liable in an amount equal to its proportionate fault,

SIXTEENTH AFFIRMATIVE DEFENSE

Products, as alleged in the Complaint, were used by a sophisticated user/intermediary, said
user/intermediary having adequate and complete warnings of any risk involved in the use and for
that reason Walnut Creek Sheet Metal, Furnace & Air Conditioning, Inc. has no duty to
independently warn; thereby, Plaintiffs’ claim barred.

SEVENTEENTH AFFIRMATIVE DEFENSE

Any resulting injuries from the use of the subject product or products, which injuries are
hereby expressly denied, was not foreseeable to Walnut Creck Sheet Metal, Furnace & Air
Conditioning, Inc. given the state of knowledge and state-of-the-art at the time of the alleged
injuries.

EIGHTEENTH AFFIRMATIVE DEFENSE

The complaint, to the extent that it seeks punitive or exemplary damages pursuant to
California Civil Code §3294, violates Walnut Creek Sheet Metal, Furnace & Air

Conditioning, Inc.’s tight to procedural due process under the Fourteenth Amendment of the

5

Delendant Wabwat Creck Sheet Metal , Furnace & Air Conditioning, Ing,’s Answer to First Amended Complaint for Survival,
Wrongfial Death-AsbestosBERGQUIST, WOOD & ANDERSON, LLP

ATTORNEYS AT LAW
4470 MARIA LANE, SUITE 200
WALNUT CREEK, CALIFORNIA 94586
{928} 938-6700 FACSIMILE (825) 938-4354

United States Constitution and under the Constitution of the State of California; and therefore fails
to state a cause of action for which punitive or exemplary damages may be awarded.
WHEREFORE, this answering Defendant prays judgment:
1. Plaintiffs take nothing by reason of the Complaint on file herein;
2. that it be dismissed with costs of suit incurred herein;

3. and for other relief in which the Court deems proper.

Dated: August 30, 2010
Kenneth R. Bergquist,
Bergquist, Wood & Anderson, LLP
Attorneys for Defendant,
Walnut Creek Sheet Metal, Furnace & Air
Conditioning, Inc.

6

Defendant Walnut Creek Sheet Metal , Furnace & Air Conditioning, Inc.’s Answor to First Amended Complaint for Survival,
Wronglil Death-AsbestosBERGQUIST. WOOD & ANDERSON, LLP

ATTORNEYS AT LAW
1470 MARIA CANE, SUITE 3608
WALNUT CREEK, CALIFORNIA 94598
(925) 938-6106 FACSIMILE (923) 938.4354

CD Se BW RR B® BB Bw

PROOF OF SERVICE

Hagen, Laurance John v. Asbestos. Defendants (RHC)
San Francisco. County Superior Court No. CGC-10-275498

| am aver eighteen and my business address is. 1470 Maria Lane, Suite 300 Maria
Lane, Suite 300, and Walnut Creek, California 94596

On the date executed below | electronically served the document(s) via Lexis
Nexis File & Serve described below:

On August 31, 2010 ! served the following document(s):

Defendant Wainut Creek Sheet Metal, Furnace & Air Conditioning, Inc.
Answer To First Amended Complaint For Survival, Wrongful Death-Asbestos

() BY MAIL: By placing a true copy thereof enclosed in a sealed envelope, with postage
thereon fully prepaid, in the United States mail, in the city of Walnut Creek, addressed as
follows:

| am readily familiar with my firm’s practice for collection and processing of
correspondence for mailing. It is deposited on the same day in the ordinary course of
business.

( ) BY PERSONAL SERVICE: | caused such envelope(s) to be hand-delivered, this date
to the home. of the addressee(s).

( ) BY FEDERAL EXPRESS: | caused such envelope to be delivered to Federal Express
for overnight courier service to the office(s) of the addressee(s).

( ) BY EXPRESS MAIL: | caused such envelope to. be delivered to an Express Mail
pickup box for overnight service to the office(s) of the addressee(s).

(X) Lexis Nexis File & Serve: On the recipients designated on the Transaction Receipt
located on the Lexis-Nexis website.

| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on August 31, 2010
in Walnut Creek, California.

Qug 7 We /

Dana Hertz ‘