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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 
						
                                
Preview

                                Nandor B. Krause (Bar No. 148718)
nkrause@archemorris.com.

ARCHER NORRIS

A Professional Law Corporation ELECTRONICALLY

2033 North Main Street, Suite 800 FILED

Walnut Creek, California 94596-3759 Superior Court of California,

Telephone: 925.930.6600 County of San Francisco

Facsimile: 925.930.6620 SEP 03 2010
Clerk of the Court

Attomeys for Defendant

TUTOR-SALIBA CORPORATION By CHRISTE uy clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
LAURANCE HAGEN, Case No. CGC-10-275582
Plaintiff, ANSWER TO COMPLAINT FOR -
ASBESTOS
v.
Action Filed: June 2, 2010
ASSOCIATED INSULATION OF

CALIFORNIA; Defendants as Reflected
on Exhibit 1 attached to the Summary
Complaint herein; and DOES 1-8500,

Defendant.

COMES NOW defendant TUTOR-SALIBA CORPORATION, (“TUTOR”) in answer to
plaintiffs complaint on file herein and by virtue of the provisions of Code of Civil Procedure
Section 431.30, now files its general denial to said complaint, and denies each and every, all and
singular, generally and specifically, all the allegations contained therein, and causes of action
thereof, and further denies that plaintiff has been damaged in any sum, sums or at all, and
specifically denies:

1, That any asbestos-containing product for which TUTOR was responsible was
present at the work site from which the alleged asbestos exposure of LAURANCE HAGEN
occurred;

2. That LAURANCE HAGEN came into contact with any asbestos-containing

product for which TUTOR was responsible;
AL042/101 6656-1

ANSWER TO COMPLAINT FOR - ASBESTOS3. That any act or omission of TUTOR, caused or contributed to any injury
purportedly suffered by LAURANCE HAGEN;

4. That any act or omission of TUTOR, contributed to any asbestos health hazard.

‘This defendant hetewith pleads and sets forth separately and distinctly the following
affirmative defenses to each and every cause of action of plaintiff's complaint as though pleaded
separately to each and every said. cause of action, and this answering defendant alleges the
following affirmative defenses:

FIRST AFFIRMATIVE DEFENSE

(Comparative Negligence)

That LAURANCE HAGEN was careless and negligent in and about the matters alleged in
the complaint, and that said carelessness and negligence on the part of LAURANCE HAGEN
proximately contributed to the happening of the incident and to the injuries, loss and damages
complained of, if any, sustained by plaintiff and that plaintiff's recovery should therefore be
reduced to the extent of LAURANCE HAGEN’s negligence.

SECOND AFFIRMATIVE DEFENSE

That LAURANCE HAGEN knew, or in the exercise of ordinary care should have known,
of the risks and hazards involved in the undertaking in which he was engaged, but nevertheless,
and knowing these things, did freely and voluntarily consent to assume the risks and hazards
incident to said operations, acts and conduct at the time and place mentioned in said complaint.

THIRD AFFIRMATIVE DEFENSE

(Witt v. Jackson)

By way of alleging the doctrine of Witt v. Jackson (1961) 57 Cal.2d 57, this answering
defendant alleges that at the time and place of the happening of the occurrences alleged in the
complaint, and at all times material herein, plaintiff LAURANCE HAGEN was employed by
various employers, the names of which are unknown to this defendant at this time, and working
within the course and scope of his employment and/or employments, that said employer and/or
employers and plaintiff were subject to the provisions of the Workman's Compensation Act of the

State of California; that certain sums have been or will be paid to or on behalf of plaintiff herein
AL042/1016656-1 2

ANSWER TO COMPLAINT FOR - ASBESTOS=
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under the applicable provisions of the Labor Code of the State of California; that said employer
and/or employers and each of them were negligent and careless and that such negligence and
carelessness proximately contributed and caused the injuries of plaintiff; that by these premises
any award made to the plaintiff, if any award is made at all, must be reduced by any payment to
them by LAURANCE HAGEN’s employer or employers’ compensation carrier under the
authority of Wit v. Jackson, (1961) 57 Cal.2d 37.

FOURTH AFFIRMATIVE DEFENSE

(Employer's Comparative Negligence)

This answering defendant alleges that LAURANCE HAGEN 's employers were
contributorily negligent and careless in and about the matters alleged in the complaint, and that
such negligence and carelessness was a proximate cause of any injuries and damages suffered by
plaintiff, if any there were.

FIFTH AFFIRMATIVE DEFENSE

(Employer's Assumption of Risk)

This answering defendant alleges that LAURANCE HAGEN 's employers voluntarily and
knowingly entered into and engaged in the operations, acts and conduct alleged in said 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.

SIXTH AFFIRMATIVE DEFENSE
(Alteration or Misuse)

This answering defendant alleges that the product in question was properly designed and
manufactured, and was fit for the purpose intended; that said product was improperly maintained
and used and was abused, resulting in plaintiff's damages, if any there were.

SEVENTH AFFIRMATIVE DEFENSE

(Statute of Limitations)
This answering defendant alleges that said complaint, and each of said alleged causes of
action thereof, is barred by the provisions of the Code of Civil Procedure Section 340,

subsection 3.
AL042/1016656-1 3

~ ANSWER TO COMPLAINT FOR - ASBESTOSEIGHTH AFFIRMATIVE DEFENSE

(Statute of Limitations)
This answering defendant alleges that said complaint, and each of said alleged causes of
action thereof, is barred by the provisions of the Code of Civil Procedure Section 340.2(a) and

(b).
NINTH AFFIRMATIVE DEFENSE

(Statute of Limitations)
This answering defendant alleges that said complaint, and each of said alleged causes of
action thereof, is barred by the provisions of the Code of Civil Procedure Section 338(4).
TENTH AFFIRMATIVE DEFENSE
(Laches)

This answering defendant alleges that plaintiff unreasonably delayed in the bringing and
service of this action without good cause therefore, and thereby has prejudiced this defendant; and.
as a proximate result thereof, this entire action is barred by laches.

ELEVENTH AFFIRMATIVE DEFENSE

(Failure to State a Cause of Action - Exemplary Damages)
This answering defendant alleges that the complaint fails to state a cause of action against
this answering defendant for exemplary damages.

TWELFTH AFFIRMATIVE DEFENSE

(Proportionate Fault)

This answering defendant alleges that while at all times denying any liability whatsoever
to plaintiff herein, this defendant alleges that any alleged liability or responsibility of this
defendant, and such alleged liability and responsibility being denied, is small in proportion to the
alleged liability and responsibility of other persons and entities, including other persons who are
defendants herein, and that plaintiff should be limited to seeking recovery from this defendant for
the proportion of alleged injuries and damages for which this defendant is allegedly liable or
responsible, all such alleged liability and alleged responsibility being expressly denied.

ih
AL042/1016656-1 4

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THIRTEENTH AFFIRMATIVE DEFENSE

(Modification of Product)
This answering defendant is informed. and believes, and based upon said information and
belief alleges, that the plaintiff is barred from recovery herein because of modification, alteration
or change in some other manner, of the products alleged in plaintiff's complaint.

FOURTEENTH AFFIRMATIVE DEFENSE

(Failure to State Cause of Action)
This answering defendant alleges that plaintiff's complaint does not state facts sufficient
to constitute a cause of action against this answering defendant.
FIFTEENTH AFFIRMATIVE DEFENSE
(Waiver)
This answering defendant alleges that plaintiff LAURANCE HAGEN acknowledged,

ratified, consented to a acquiesced in the alleged acts or omissions, if any, of this answering
defendant, thus barring plaintiff from any relief as prayed for herein.

SIXTEENTH AFFIRMATIVE DEFENSE

(No Identification of Product)
This answering defendant is informed and believes, and therefore alleges, that plaintiff is
unable to identify the actual manufacturer or manufacturers of the asbestos products which
allegedly caused the injury to plaintiff which forms the basis of the complaint herein, and that

said manufacturers were entities other than this defendant. Therefore, this defendant may not be

| held liable for the injury of the plaintiff.

SEVENTEENTH AFFIRMATIVE DEFENSE

(Sophisticated User)

This answering defendant alleges that LAURANCE HAGEN and his employers were and
are sophisticated users and knew independently, or should have known, of any danger or hazard
associated with the use of the products complained of. Defendant further alleges that it warmed
LAURANCE HAGEN 's employer of the danger or hazard associated with the use of its product

and that LAURANCE HAGEN and his employer failed to rely upon such warning resulting in
A1.042/1016656-1 5

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alleged damages due to LAURANCE HAGEN, and LAURANCE HAGEN 's employers’ act or
omission and failure to act as sophisticated users.

EIGHTEENTH AFFIRMATIVE DEFENSE

(Fair Responsibility Act)

This answering defendant alleges that said complaint, and cach of said alleged causes of
action thereof, is subject to the provisions of the Fair Responsibility Act of 1986, Civil Code
Sections 1431.1 through 1431.5. Liability of this answering defendant to plaintiff, if any, for
non-economic damages, if any, as defined in Civil Code Section 1431 .2(b)(2) shall be several
only and shall not be joint with each or any co-defendant named in said complaint. This
answering defendant shall be liable only for the amount of said non-economic damages, if any,
allocated to this answering defendant in direct proportion to this answering defendant's
percentage of fault, if any.

NINETEENTH AFFIRMATIVE DEFENSE

(No Peculiar Risk)

Defendant alleges that plaintiff is barred from seeking to hold defendant vicariously liable
for inherent risk of injury in the work place and premises under the now discredited doctrine of
peculiar risk according to the California Supreme Court decision of Privette v. Superior Court, S
Cal.4th 689, 21 Cal.Rptr.2d 72 (1993).

WHEREFORE, this answering defendant prays as follows:

lL. That plaintiff takes nothing by reason of the complaint on file herein;

2. That this defendant be hence dismissed with its costs of suit incurred herein; and
3. For such other and further relief as the court deems just and proper.
Dated: September 2, 2009 ARCHER NORRIS

zOWN

Nandor B. Krause
Attorneys for Defendant
TUTOR-SALIBA CORPORATION

AL042/1016656-) 6

‘ANSWER TO COMPLAINT FOR - ASBESTOSPROOF OF SERVICE

Name of Action: Laurance Hagen v. Associated Losulation of California, et al.
Court and Action No: San Francisco Superior Action No, CGC-10-275582

I, the undersigned, declare that I am over the age of eighteen years and not a party to this
action or proceeding. My business address is 2033 North Main Street, Suite 800, Walnut Creek,
California 94596-3759. On this date, I caused the following document(s) to be served:

ANSWER TO COMPLAINT FOR ~ ASBESTOS
ON BEHALF OF DEFENDANT TUTOR-SALIBA
CORPORATION

L electronically served the above referenced document(s) through LEXIS NEXIS FILE
AND SERVE. E-service in this action was completed on all parties listed on the
service list with LEXIS NEXIS FILE AND SERVE. This service complies with the
court’s order in this case.

I declare under penalty of perjury that the foregoing is true and correct. Executed on

September 3, 2010, at Walnut Creek, California.
Lily.

AL042/1016877-1

PROOF OF SERVICE