Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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Preview
                                , LLP

SUITE 1300
100 BUSH STREET

SAN FRANCISCO, CA 94504

KEENEY & CORDERY,

LAW OFFICES

IMAI, TADLOCK,

(415) 675-7000

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Bruce Imai, Esq. (Bar No. 053800)
Tina Yim, Esq. (Bar No. 232597)

IMAI, TADLOCK, KEENEY & CORDERY, LLP
100 BUSH STREET, SUITE 1300 ELECTRONICALLY
SAN FRANCISCO, CA 94104-3915 FILED
Telephone: (415) 675-7000 Superior Court of California,
Facsimile: (415) 675-7008 County of San Francisco
Att for Defendant SEP 01 2010
lorneys for Defendant
COMMAIR MECHANICAL SERVICES oF tiontneane
Deputy Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
LAURANCE HAGEN, CASE NO.: CGC-10-275582
Plaintiff, (ASBESTOS)
v. COMMAIR MECHANICAL SERVICES’S
ANSWER TO COMPLAINT FOR

ASSOCIATED INSULATION OF

CALIFORNIA; Defendants as Reflected on
Exhibit 1 attached to the Summary Complaint | Complaint Filed: June 2, 2010
herein; and DOES 1-8500,

PERSONAL INJURY - ASBESTOS

Defendants.

COMES NOW defendant COMMAIR MECHANICAL SERVICES, for itself alone, and
in answer to Plaintiffs unverified Complaint on file herein, and to each and every cause of action
thereof, and by virtue of the provisions of CCP § 431.30, now files its general denial to said
complaint and to each and every cause of action thereof, and in answer to all the allegations
thereof, denies that the Plaintiff has been damaged in any sum or sums whatsoever, or at all, by
any act or omission of this answering defendant.

AND AS FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
answering defendant alleges that the Complaint and each cause of action therein, fails to state
facts sufficient to constitute a cause of action.

AND AS FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that Plaintiff is barred from recovery by the applicable statute of

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASBESTOSLAW OFFICES:

; LLP

KEENEY & CORDERY.

IMAI, TADLOCK,

(415) 675-7000

limitations, including but not limited to California Code of Civil Procedure Sections 319, 320,
337, 337.1, 337.15, 338, 339, 340(3), 340.2, 343, and California Commercial Code Sections
2725(1) and 2725(2).

AND AS FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the Plaintiff was himself negligent and careless in and about
the matters and events alleged in the Complaint, and said negligence proximately contributed to
the alleged damages, if any there were, and as a result thereof, the principles of equitable
comparative negligence must be applied to bar Plaintiff's action.

AND AS FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the injuries, loss and/or damages alleged in said Complaint
by Plaintiff, if any there were, were caused by the carelessness and negligence on the part of the
remaining defendants in that said carelessness and negligence on the part of said remaining
defendants proximately contributed to the happening of the subject event and the injuries, loss or
damages alleged by the Plaintiff herein, and that any judgment rendered against this answering
defendant be reduced or nullified to the extent of such negligence and carelessness on the part of
the remaining defendants as aforesaid.

AND AS FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
answering defendant alleges that the Plaintiff's injuries and damages which may have been
sustained as a result of events mentioned in the Complaint, if any there were, were proximately
caused by the carelessness and negligence of Plaintiff and the remaining defendants, and that the
respective negligence of each said party to this suit ought to be equitably apportioned among the
parties hereto.

AND AS FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that at the time of the occurrence of the matters mentioned in the
Plaintiff's Complaint, the Plaintiff himself had knowledge of those matters alleged in the
Complaint and Plaintiff did, with said knowledge, voluntarily and of his free will and act, place
himself in an unsafe and dangerous position and by reason thereof, Plaintiff did assume the risk
and all risks ordinarily incident thereto.

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASBESTOS.LAW OFFICES

IMAI, TADLOCK, KEENEY & CORDERY, LLP

SUFTE 1300
too BUSH STREET

SAN FRANCISCO, CA 94104

(415) 675-7000

AND AS FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the products referred to in the Complaint were
not used in a safe and normal manner or in the manner in which they were intended to be used,
and that such misuse proximately contributed to the injuries to Plaintiff and the damages and
losses resulting therefrom, if any there were, and bars Plaintiff's recovery herein.

AND AS FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that prior to and at the time referred to in Plaintiff's Complaint,
the products referred to in the Complaint were abused, altered, modified, or changed in a manner
that was not reasonably foreseeable, that such abuse, modification, alteration, or change
proximately contributed to the injuries to Plaintiff and the damages and losses resulting
therefrom, if any there were, and bars Plaintiff's recovery herein.

AND AS FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that at all times herein mentioned, Plaintiff was in the course and
scope of his employment and that the injuries sustained by Plaintiff, if any there were, were
caused or contributed to by the carelessness and negligence of Plaintiff's employers, entitling this
answering defendant to a set-off in an amount equal to the extent of payments made by said
employers’ workers’ compensation carrier.

AND AS FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the Plaintiff's employers were negligent and careless in and
about the matters alleged in the Complaint and proximately contributed to the injuries and
damages, if any there were, sustained by Plaintiff; that by reason of the premises said employers
and his workers' compensation carrier are barred from recovery of any payments heretofore or
hereafter made to Plaintiff pursuant to the workers’ compensation laws of the State of California
under the doctrine of Witt v. Jackson, 57 Cal.2d 57.

AND AS FOR AN ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's Complaint herein is barred by Labor
Code §3600, et seq.

AND AS FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASBESTOS., LLP

SUITE 1300
100 BUSH STREBT

SAN FRANCISCO, CA 94104

KEENEY & CORDERY,

LAW OFFICES

IMAI, TADLOCK,

(415) 675-7000

Co MD IN DW

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DEFENSE, this answering defendant alleges that Plaintiff's Complaint herein is barred by the
Doctrine of Laches.

AND AS FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the asbestos-containing products of defendant
which are alleged to have caused injury to Plaintiff was manufactured in compliance with and
supplied pursuant to mandatory government specifications which required the use of asbestos.
Accordingly, defendant is immune from liability for any damages suffered by Plaintiff as a
consequence of exposure to asbestos contained in such products.

AND AS FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this Answering Defendant alleges that its compliance with all governmental standards
is a complete defense to Plaintiff's action.

AND AS FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff failed and neglected to use reasonable

care to protect himself and to minimize the losses and damages complained of, if any there were.

AND AS FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is barred from asserting any claim
based on breach of warranty by reason of his failure to fulfill the conditions of warranties alleged
in the Complaint in the event such alleged warranties are proved at trial.

AND AS FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE

| DEFENSE, this answering defendant alleges that Plaintiff within a reasonable time failed to give

notice to defendant of the claimed breach of warranty or defects alleged in the Complaint on file
herein in the manner and form prescribed by law.

AND AS FOR AN EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that there was no privity or other legal relationship
between this answering defendant and Plaintiff herein sufficient to entitle Plaintiff to any legal
relief by said defendant.

AND AS FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's claim for punitive damages is

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASBESTOS,, LLP

‘SUITE 1300
100 BUSH STREET

SAN FRANCISCO, CA 94104

KEENEY & CORDERY,

LAW OFFICES

IMAI, TADLOCK,

(418) 673-7000

prohibited because it would deprive defendant of its property without due process of law under
the 14th Amendment of the United States Constitution and under the California Constitution. See
U.S. Constitution, Amendment XIV, §1; Cal. Constitution, Art. 1, §7(a).

AND AS FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's claim for punitive damages is barred
by the Constitutional Prohibition against excessive fines. See U.S. Constitution, Amendment VII;
California Constitution, Art. I, §17.

AND AS FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's claim for punitive damages is barred
by the Constitutional Prohibition against impairing the obligation of contracts. See U.S.
Constitution, Art. 1, §X, C1.1. See California Constitution, Art. I, §9.

AND AS FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that any claim for punitive or exemplary damages
pursuant to California law herein constitutes a violation of equal protection prohibited by the
United States Constitution and the Constitution of the State of California and therefore fails to
make a claim upon which relief can be granted.

AND AS FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the complaint on file herein fails to state facts
sufficient to constitute a cause of action for punitive damages.

AND AS FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's claim for punitive damages must
consider the degree of reprehensibility of defendant's conduct, the disparity between the
compensatory damages and punitive damages and the difference between punitive damages, the
ratio of actual harm suffered by the Plaintiff to the amount of punitive damages and the civil

sanctions that could or would be imposed for comparable conduct. These considerations were

outlined by the U.S. Supreme Court in BMW of North America v. Gore (1996) 517 U.S. 559, and
Cooper Industries Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, and State Farm Mut,

Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408.

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASBESTOS> LLP

KEENEY & CORDERY.

LAW OFFICES

IMAI, TADLOCK,

SUITE 1390
ton BUSH STREET
SAN FRANCISCO, CA 94104

(415) 675-7006

AND AS FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that, to the extent Plaintiff may be able to prove his
allegations concerning liability, injuries and damages, which are specifically denied, they were
the result of intervening acts of superseding negligence on the part of a person or persons over
whom this defendant had neither control nor the right of control.

AND AS FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is barred from asserting any causes of
action by the Doctrine of Waiver.

AND AS FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff is estopped from asserting any causes
of action by his conduct.

AND AS FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff has failed to join necessary and
indispensable parties.

AND AS FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff has improperly joined or misjoined it
and other parties to this action.

AND AS FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that any claims that the alleged products are unsafe
or defective in any manner are preempted by federal law.

AND AS FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the product in question was used after
knowledge of the defect, if any, that existed therein.

AND AS FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering 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 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

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASBESTOSLAW OFFICES

IMAI, TADLOCK, KEENEY & CORDERY, LLP

‘SUITE 1300,
100 BUSH STREET

SAN FRANCISCO, CA 94104

(415) 675-7000

joint tortfeasors.

AND AS FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's claims are barred by the primary
right doctrine as there is another action pending between the same parties on the same cause of
action.

AND AS FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's claims are barred by the principles of
res judicata.

AND AS FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the substantive law of Plaintiffs domicile or a
jurisdiction other than California, is applicable.

AND AS FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that, at all times herein pertinent, Plaintiff and/or
Plaintiffs employer was a sophisticated user of the subject product and that defendant had no
duty to warn about dangers, risk, or harm of which the sophisticated user was already aware or of
which the sophisticated user should have been aware.

AND AS FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT 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.

AND AS FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT 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, should be reduced by the
amount of damages which would have otherwise been mitigated.

AND AS FOR A THIRTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Plaintiff is barred from recovery in that all products installed, removed, distributed,
sold and/or supplied by Defendant, if any, were in conformity with the existing state-of-the-art,
and as a result, these products were not defective in any manner.

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY +
ASBESTOS'ORDERY, LLP

STREET

NEY & C
1300

LAW OFFICES

IMAI, TADLOCK, KEE!

0, CA 94104

(41S) 675-7006

AND AS FOR A FORTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, the Defendant did not and does not have a substantial percentage of the market for the
asbestos-containing products which allegedly caused Plaintiff's injuries. Therefore, Defendant
may not be held liable to Plaintiff based on this Defendant’s alleged percentage share of the
applicable market.

AND AS FOR A FORTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Plaintiff's claims are or may be barred in whole or in part by collateral estoppel, issue
preclusion and/or release.

AND AS FOR A FORTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that it is immune from liability for any alleged failure to warn
Plaintiff of material risks associated with Defendant’s products, if any, because such risks were or
should have been obvious to a reasonably prudent product user in Plaintiff's position, or were
otherwise a matter of common knowledge to persons in the same or similar position to Plaintiff.

AND AS FOR A FORTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff
was employed and was entitled to receive Workers’ Compensation benefits from his employer’s
workers’ compensation carrier; that Defendant did not control Plaintiffs work activities at his
worksites; that all of Plaintiff's employers, other than Defendant , were negligent in and about the
matters refereed to in said Complaint, that other parties over whom Defendant had no control
were negligent in and about the matters referred to in said Complaint, and that such negligence on
the part of said employers and other parties proximately and concurrently contributed to the
happening of the accident and to the loss or damage complained of by Plaintiff, if any there was:
and as a result thereof, Defendant bears no liability for Plaintiff's alleged damages.

AND AS FOR A FORTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that Plaintiff is barred from asserting any causes of
action by virtue of plaintiffs consent to the alleged acts or conditions.

AND AS FOR A FORTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that it presently has insufficient knowledge or
information on which to form a belief as to whether it may have additional, as yet unstated,

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASBESTOSLAW OFFICES.

IMAI, TADLOCK, KEENEY & CORDERY, LLP

SUITE 1306

(415) 675-7000

defenses available. This answering defendant reserves the right to assert additional defenses in the
event they would be appropriate.

AND AS FOR A FORTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that other parties and third persons not parties were
negligently or legally responsible or otherwise at fault for the damages alleged in plaintiffs’
Complaint. This defendant therefore requests that in the event of a finding of any liability in favor
of plaintiff or settlement or judgment against this defendant, an apportionment of fault be made
among all parties as permitted by Li v. Yellow Cab Company and American Motorcycle
Association v. Superior Court by the Court or Jury. Defendant further requests a judgment and
declaration of partial indemnification and contribution against all other parties or persons in
accordance with the apportionment of fault.

AND AS FOR A FORTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the products were as safe as could be designed
under the state of technology and medical and scientific knowledge existing at the time the
products were manufactured.

AND AS FOR A FORTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the provisions of the “Fair Responsibility Act,
Civil Code Sections 1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable
to this action to the extent that plaintiff’s injuries and damages, if any, were legally caused or
contributed to by the negligence or fault of persons or entities other than this answering
defendant.

WHEREFORE, this answering defendant prays for judgment as follows:

1 That Plaintiff take nothing by way of his Complaint or any cause of action thereof
against this answering defendant;

2. That the Court award judgment in favor of this answering defendant;

3. For reasonable attorneys' fees;

4. For costs of suit and disbursements; and
Mt

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASBESTOSLAW OFFICES

IMAI, TADLOCK, KEENEY & CORDERY, LLP

‘SUITE 1300,
(415) 675-7000

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Dated: August___, 2010

For such other and further relief as the Court may deem proper.
IMAI, TADLOCK, KEENEY & CORDERY, LLP

By: /S/ Tina Yim
Tina Yim
Attomeys for Defendant
COMMAIR MECHANICAL SERVICES

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY -
ASBESTOSLLP

SUITE 1300
too BUSH STREET

KEENEY & CORDERY.
SAN FRANCISCO, CA 95104

LAW OFFICES

IMAI, TADLOCK,

(415) 675-7600

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PROOF OF SERVICE USING LEXISNEXIS

I, Richard Freeman, declare:

lam a resident of the State of California and over the age of eighteen years, and not a
party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco,
Califomia 94104. On the date of execution below, I served the within document(s):

COMMAIR MECHANICAL SERVICES’ ANSWER TO COMPLAINT FOR PERSONAL
INJURY - ASBESTOS

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

by placing the document(s) listed above in a sealed envelope with postage
thereon fully prepaid, in the United States mail at San Francisco, California,
addressed as set forth below.

by personally delivering the document(s) listed above to the person(s) at the
address(es) set forth below.

X | _ by electronically serving the document via LexisNexis File & Serve to Plaintiffs
counsel and to the recipients designated on the Transaction Receipt located on
the LexisNexis File & Serve Web site.

Brayton Purcell LLP
222 Rush Landing Road
Novato, CA 94945

Attorney for Plaintiff

I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.

Executed on September 1, 2010 at San Francisco, California.

(let thee.

Richard Freeman

Hagen v. Asbestos Defendants, et al.
SAN FRANCISCO SUPERIOR COURT NO. CGC-10-275582