On June 02, 2010 a Answer was filed involving a dispute between Hagen, Laurance, and 3M Company, 4520 Corp., Inc.,, A & A Mechanical Contractors Inc., A & A Sheet Metal, Aberthaw Construction Company, Acco Engineered Systems, Inc., A.E. Knowles Corporation, Aire Sheet Metal Inc., Air Systems Mechanical Contractor, A.J. Peters & Son, Aladdin Heating Corporation, Albay Construction Company, Allied Painters, Inc., Allied Sprinkler Company, Inc., Anderson, Rowe & Buckley, Inc., Applied Support Systems, Inc., A.R.B. Mechanical, Armaral Plumbing, Associated Insulation Of California, Atlas Heating And Ventilating Company, Ltd., Bailey Plumbing, Heating & Sheet Metal, Barnes Construction Co., Bay Cities Crane And Rigging, Inc., Bayer Cropscience Inc., Bayer Cropscience, Inc.,, B H P Minerals International, Inc., Bigge Crane And Rigging Co., Bragg Investment Company, Inc., B.T. Mancini Co., Inc., Buttner Corp., Cahill Contractors, Inc., Carrier Corporation, Cbs Corporation, A Delaware Corporation, Fka, Cbs Corporation (F K A Viacom Inc., F K A, C.C. Moore & Co. Engineers, Certainteed Corporation, Chevron U.S.A. Inc., Chicago Bridge & Iron Company, Chicago Bridge & Iron Company,, Cleaver-Brooks, Inc., Coastal West Ventures, Inc., Commair Mechanical Services, Conocophillips Company, Consolidated Insulation, Inc., Cooper Brothers, Inc., Corey Contractors, Cosco Fire Protection, Inc., Coscol Petroleum Corporation, Coscol Petroleum Corporation Erroneously Named And, Crane Co., Crowley Plumbing, Crown Cork & Seal Company, Inc., C & R Plastering, Inc., Cupertino Electric, Inc., Dana Companies, Llc, Devcon Construction, Inc., Dillingham Construction, N.A., Inc., Does 1-8500, Domco Products Texas Inc. Erroneously Sued, Domco Products Texas, L.P., Dome Construction Corporation, Douglass Insulation Company, Inc., D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Early Engineering Corporation, Incorporated, East Bay Sheet Metal Works, East Bay Sheet Metal Works, A Dissolved Corp., E.C. Braun Company, Inc., Emerick Sheet Metal Co., Emil J. Weber Electric Co., E. Mitchell, Inc., Enterprise Plumbing, Inc., Erwin Mechanical Inc., Ex- Fm, Inc. (Fka Fischbach And Moore Electric,, Exxon Mobil Corporation, Faye Plumbing, Fdcc California, Inc., Finzel Plumbing Company, Fischbach And Moore, Incorporated, Nka Ex-Fm, Inc., Fluor Corporation, Foley-Pmi, Inc., Foster Wheeler Llc, Foster Wheeler Llc (Fka Foster Wheeler, F.P. Lathrop Construction Company, F.P. Lathrop Construction Company,, Frank Bonetti Plumbing, Inc., Frederick Meiswinkel, Inc., F.W. Spencer & Son, Inc., Garlock Sealing Technologies, Llc, General Cable Corporation, General Electric Company, George F. Schuler, Inc., George M Robinson & Co., George Townsend & Associates, George Wilson Company, Inc., Georgia-Pacific Corporation, Georgia-Pacific Llc, Giampolini & Co., Golden Gate Drywall, Inc., Granite Rock Company, Grinnell Corporation, Grinnell Llc,, Haas And Haynie Corporation, Haas & Haynie Corporation, Hamilton Materials, Inc., Hansen Plumbing And Heating, Hanson Permanente Cement, Inc. Formerly Known As, Harry Lee Plumbing & Heating, H.B. Fuller Company, H & C Investment Associates, Inc., Hensel Phelps Construction Co, Hensel Phelps Construction Co., Herrick Iron Works, Honeywell International, Inc., Honeywell International Inc., Fka Alliedsignal,, Hopeman Brothers, Inc., H.T.R. Enterprises, Inc., Ingersoll-Rand Company, Jacobs Constructors, Inc., James A. Nelson Co., Inc., James Nelson, Johnson Controls, Inc., J.R. Simplot Company, J.T. Thorpe, Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, Inc., Kaiser Gypsum Company, Inc., Kelly-Moore Paint Company, Inc., Kentile Floors, Inc., Kent M. Lim & Company, Inc., Kinetic Systems, Inc., Kramer Acoustics, Laub Sheet Metal Works, Leonard Construction Company, Lewis Air & Refrigeration, L.J. Kruse Company, Macarthur Company, Madlem Mechanical, Inc., Marcal Associates, Ltd., Marconi Plastering Company, Inc., Marina Heating & Air Conditioning, Marina Plumbing Company, Mauch Sheet Metal, Mayta & Jensen, Mcguire & Hester Corporation, Mckeon Construction, Mcmillan Brothers Electric, Inc., Metropolitan Life Insurance Company, Monterey Mechanical Company, Norcal Scaffolding, N. P. I. Corporation, N.V. Heathorn, Inc., Oakfabco, Inc., Ocean Shore Iron Works, O.C. Mcdonald Co., Inc., O H I Company, Inc., Oscar E. Erickson, Inc., Owens-Illinois, Inc., Owens Mckeon Construction, Pacific Coast Builders, Pacific Gas & Electric Company, Pacific Mechanical Corporation, Parker-Hannifin Corporation, Parsons Infrastructure & Technology Group Inc., Peerless Stucco Co., Perini Corporation, Perini Land And Development Company, Peter Kiewit Sons, Inc., Peter Lim Construction, Pierce Enterprises, Pierce Lathing Company Dba Pierce Enterprises, Power Refrigeration Company, Powers Process Controls, Quality Air Conditioning, Inc., Quintec Industries, Inc., Raphael Company, Raymond Interior Systems-North, Ray Oil Burner Co., A Dissolved Corporation,, Ray Oil Burner Company, Inc., Republic Supply Company, Rmc Pacific Materials, Inc., Robertshaw Controls Company, Rodoni Becker, Rosendahl Corporation, Rountree Plumbing & Heating Inc., Rudolph And Sletten, Inc., Santa Fe Braun, Inc. As Successor-In-Interest To, Schneider Electric Usa, Inc. (Fka Square D, Scott Co. Of California, Scott Norman Mechanical Company, Scott Technologies, Inc., Sequoia Ventures Inc., S F L, Inc., Shell Oil Company, Sierra Pacific Industries, S.J. Amoroso Construction Co., Inc., Stanford Plumbing, Stolte Inc., Sugden Engineering Co., Swinerton Builders, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The Jack Dymond Company, The Linford Company, Therma Corporation, Therma Mechanical, Thermon Manufacturing Co., Thomas Air & Refrigeration Inc., Thomas Dee Engineering Company, Timec Company, Inc., Tosco Corporation, Tosco Corporation Erroneously Sued And Served As, Trane U.S., Inc., Erroneously Sued As Trane U.S.,, Trane Us, Inc. Fka American Standard, Inc., Turner Construction Company, Tutor-Saliba Corporation, Union Oil Company Of California, University Mechanical And Engineering Contractors,, Valley Sheet Metal, Van-Mulder Sheet Metal, Inc., Vogel & Associates, Walnut Creek Sheet Metal, Furnace & Air, Washington Group International, Inc., Western Allied Corporation, Western Asbestos Company, Western Insulation, Inc., Western Macarthur Company, Western Plumbing & Heating Co., Inc., W.G. Thompson, Inc., Wheatley-Jacobsen, Inc., Williams & Burrows, Inc., Wilson Construction Company, W.L. Hickey Sons, Inc., Wright Schuchart Harbor, Wright Schuchart Harbor Company, Yamas Controls Group Inc., Zurn Industries, Llc, for ASBESTOS in the District Court of San Francisco County.
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SELMAN BREITMAN up ATTORNEYS AT LAW 28 202173.1 166.2945 MARK A. LOVE (SBN 162028) mlove@selmanbreitman.com JANICE W. MAN (SBN 209956) ELECTRONICALLY jman@selmanbreitman.com FILED SELMAN BREITMAN L LP Superior Court of California, 33 New Montgomery, Sixth Floor County of San Francisco San Francisco, CA 94105-4537 Telephone: (415) 979-0400 AUG 26 2010 Clerk of the Court BY: WILLIAM TRUPEK Deputy Clerk Facsimile: (415) 979-2099 Attorneys for Defendant DOUGLASS INSULATION COMPANY, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO — COURT OF UNLIMITED JURISDICTION LAURANCE HAGEN, CASE NO. CGC-10-275582 Plaintiffs, ANSWER TO COMPLAINT Vv. ASSOCIATED INSULATION OF CALIFORNIA, et al., Defendants. Defendant DOUGLASS INSULATION COMPANY, INC. ("defendant") hereby answers the complaint on file herein, on its own behalf and on behalf of no other entity, as follows (the terms “plaintiff or "plaintiffs" as used in this answer include the decedent in a wrongful death complaint): 1, Pursuant to the provisions of Code of Civil Procedure section 431.30(d), this answering defendant denies each and every allegation contained in the complaint, and the whole thereof, and in particular, denies that plaintiff was injured and damaged in the manner or sum alleged, or in any other manner or sum whatsoever or at all. FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 2. Neither the complaint nor any purported causes of action alleged therein state facts sufficient to constitute a cause of action as against this answering defendant. 1SELMAN BREITMAN up ATTORNEYS AT LAW 202173.1 166.2945 FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 3. Any loss, injury or damage meurred by plaintiff was proximately caused by the negligent or willful acts or omissions of parties whom this answering defendant neither controlled nor had the right to control, and was not proximately caused by any acts, omissions or other conduct of this answering defendant. FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 4. That the tortious misconduct alleged in the complaint as to this defendant, if any there was, was not a substantial factor in bringing about the alleged injuries, and therefore was not a contributing cause, but was superseded by tortious and/or intentional misconduct by one or more third parties whose misconduct was an independent, intervening, sole and proximate cause of any alleged injuries or damages suffered. FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 5. At all relevant times, plaintiff knowingly, voluntarily and unreasonably undertook to encounter each of the risks and hazards alleged in the complaint, and this assumption of said risks bars any recovery herein, or diminishes plaintiffs recovery to the extent that plaintiff's damages are attributable to his assumption of risk. FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 6. The alleged defect and/or dangerous condition, if any, was so trivial in nature that it could not be considered a dangerous and/or a defective condition, thus barring any action by the plaintiff against this answering defendant. iti iff ‘tfSELMAN BREITMAN up ATTORNEYS AT LAW 28 202173.1 166.2945 FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 7. Plaintiff's right to recovery from this answering defendant is limited pursuant to Civil Code sections 1431.1, ef seq. ("Proposition 51"). FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 8. Plaintiff named this answering defendant in the complaint without reasonable identification of what acts, if any, defendant participated in, and without a reasonable investigation. Pursuant to Code of Civil Procedure section 128.7, defendant requests reasonable expenses, including attorneys' fees incurred by this defendant as a result of the maintenance by plaintiff of this bad faith action. FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 9, Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of limitations, including but not limited to Code of Civil Procedure sections 338, 339, 340(1), 340(3), 340.2, 343, 353, 583.110, 583.210, 583.310 and 583.410 and Commercial Code section 2725. FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 10. Plaintiff unreasonably delayed in bringing this action, without good cause therefor, and thereby have prejudiced this answering defendant as a direct and proximate result of such delay, such that this action is barred by the Doctrine of Laches and by Code of Civil Procedure sections 583.110, et seg. FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: lL. Plaintiff was negligent in and about the matters alleged in the complaint; this negligence proximately caused, in whole or in part, the damages alleged in the complaint. In the event plaintiff is entitled to any damages, the amount of these damages should be reduced by the 3SELMAN BREITMAN up ATTORNEYS AT LAW 202173.1 166.2945 comparative fault of plaintiff and any person whose negligent acts or omissions are imputed to plaintiff. FOR AN ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 12. Plaintiff is barred from recovery herein by reason of the fact that, at all times relevant to the subject action, plaintiff was not using this answering defendant's products, if any, for the purpose intended or in the manner intended, and said conduct on the part of plaintiff constituted an unforeseeable misuse of said products, if any. FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 13. Plaintiff's injuries and damages, if any there were, were caused wholly or in part by post-distribution modifications, alterations or other changes in some manner in products for which plaintiff would seek to hold this answering defendant legally responsible, which modifications, alterations or changes were not performed by or participated in or consented to or approved by this answering defendant, or any agent or employee of answering defendant, thus barring plaintiff's recovery herein. FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 14. Plaintiff is barred from recovery herein as to plaintiff's breach of warranty theories in that plaintiff was not in privity with this answering defendant. Plaintiff is further barred from recovery herein as to plaintiff's breach of warranty theories in that plaintiff failed to give the requisite timely notice as to any purported breach of warranty. FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 15. The products described in the complaint were manufactured and/or distributed by this answering defendant in strict accordance with specifications supplied by persons or entities other than this defendant. Any defects in said products were caused by deficiencies in the ‘tiSELMAN BREITMAN up ATTORNEYS AT LAW 202173.1 166.2945 specifications supplied to defendant, which deficiencies were neither known to defendant nor discoverable by defendant with the exercise of reasonable care. FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 16. 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 this defendant. FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 17. Plaintiffs employers were sophisticated users of this answering defendant's products, and said employers’ negligence in providing the product to their employees in a negligent, careless, and reckless manner was a superseding intervening cause of plaintiff's injuries, ifany. FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 18. This answering defendant denies any and all lability 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 any entity that plaintiff alleges were the proximate or legal cause and/or contributed to plaintiffs injuries or damages. FOR AN EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 19. | Any recovery against this answering defendant is barred because the products which are claimed to have caused injury and/or death were manufactured in compliance with the specifications established by the United States government and/or an agency, department or division thereof and that the United States government’s knowledge of any and all health hazards, 5SELMAN BREITMAN up ATTORNEYS AT LAW 202173.1 166.2945 if any, were equal to, if not greater than, that of the defendants who were contractors to the United States government. FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 20. ‘Plaintiff is barred from recovery in that all products produced by this answering defendant were in conformity with the existing "state of the art" of reasonably acceptable medical, scientific, and industrial knowledge, art, and practice and, as a result, these products were not defective in any manner, and as such, this defendant is not liable for plaintiff's injuries, if any. FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 21, Plaintiff's recovery, if any, from this defendant must be reduced by the amount of any workers’ compensation benefits paid by or on behalf of plaintiff's employers, as the negligence or other tortious conduct of said employers caused and contributed to plaintiff's injuries and damages, if any. FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 22. Plaintiff is barred from any recovery herein as against answering defendant in that, pursuant to Labor Code section 3600, ef seg., plaintiff's exclusive remedy as against defendant with respect to the incident and damages complained of would be and is pursuant to the workers’ compensation laws of the State of California, and subject to resolution only in a workers’ compensation forum. FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 23. This defendant is entitled to a set-off of all amounts paid to the plaintiff by other defendants pursuant to pro tanto settlements. fil filSELMAN BREITMAN up ATTORNEYS AT LAW 202173.1 166.2945 FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 24. This answering defendant did not know and had no reasonable grounds for knowing, at the time any of its products containing asbestos were manufactured, at the time the plaintiff was allegedly exposed thereto, or at any other time, that any of said products could be hazardous, and further, this answering defendant has had no reason to know or believe that any of its products could be hazardous, in that any asbestos fibers contained in its products are locked in, encapsulated, and firmly bound and therefore do not release dangerous amounts of asbestos fiber. FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 25. Plaintiff failed to exercise due diligence to mitigate his loss, injuries or damages, thus reducing the amount of damages to which he is entitled by the amount of damages which would otherwise have been mitigated. FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 26. Neither the complaint nor any purported causes of action alleged therein state facts sufficient to entitle plaintiff to an award of punitive damages against this answering defendant. FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 27. The imposition of punitive damages would deprive this answering defendant of its property without due process of law under the Constitutions of both the United States and California, would violate the United States Constitution’s prohibition against laws impairing the obligation of contracts, and would constitute a criminal fine or penalty. FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 28. This answering defendant presently has insufficient knowledge or information upon which to form a belief as to whether it may have additional, as yet unknown, affirmative defenses. ‘ti1 This answering defendant reserves herein the right to assert additional affirmative defense in the 2 event discovery indicates it would be appropriate. 3 4 FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT 5 AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 6 29, The complaint, and each cause of action alleged therein, is barred by the equitable 7 doctrines of waiver and estoppel. 8 9 WHEREFORE, having fully responded to the subject complaint, answering defendant 10 prays: 1 1. That plaintiff take nothing by reason of his complaint on file herein; 12 2, That defendant have judgment of dismissal; 13 3. For reasonable attorneys' fees and costs incurred herein; and 4 4, For such other and further relief as the court may deem just and proper in the 15 premises. SELMAN BREITMAN up ATTORNEYS AT LAW 6 7 DATED: August 24, 2010 SELMAN BREITMAN LLP 18 9 By: _/S/)_ MARK A. LOVE 20 MARK A. LOVE JANICE W. MAN 21 Attorneys for Defendant DOUGLASS INSULATION COMPANY, INC. 22 23 24 25 26 27 28 202173.1 166.2945 8SELMAN BREITMAN up ATTORNEYS AT LAW 28 202173.1 166.2945 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION Laurance Hagen y. Associated Insulation of California, et al. San Francisco Superior Court Case No. CGC-10-275582 Defendant: DOUGLASS INSULATION COMPANY, INC. STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO Iam employed in the County of San Francisco, State of California. | am over the age of 18 years and am not a party to the within action. My business address is 33 New Montgomery, Sixth Floor, San Francisco, CA 94105. On August 25, 2010, L electronically served the document(s) via Lexis Nexis File & Serve described as 1. ANSWER TO COMPLAINT 2. OBJECTION TO HEARING BEFORE A DISCOVERY COMMISSIONER AS A TEMPORARY JUDGE 3. DEMAND FOR JURY TRIAL on the recipients designated on the Transaction Receipt located on the Lexis Nexis File & Serve website. on the recipients designated on the Transaction Receipt located on the Lexis Nexis File & Serve website. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 25, 2010, at San Francisco, California. ey. —— EVANGELINE CONANAN