Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                ec ND

.o

10
u
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

SONJA E. BLOMQUIST, SBN 099341, sblomquist@lowball.com

. , SBN 252290, k: LL.
LOW BA Banca 90, kallen(@Jowball.com ELECTRONICALLY
505 Montgomery Street, 7th Floor FILED
San Francisco, California 94111-2584 Superior Court of California,
Telephone: (415) 981-6630 County of San Francisco
Facsimile: (415) 399-1506 AUG 23 2010

Clerk of the Court
: wu
Attorneys for Defendant BY: VANESSA Deputy Cle
COOPER BROTHERS, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
LAURANCE HAGEN, ) CASE NO, GCG-10-275582
)
Plaintiff, )
) COOPER BROTHERS, INC.'S
v8. ) ANSWER TO PLAINTIFF'S
} COMPLAINT FOR PERSONAL
ASSOCIATED INSULATION OF ) INJURY - ASBESTOS
CALIFORNIA, et al. J
Defendants. ;
)

)
Defendant COOPER BROTHERS, INC. (herein "Defendant") answers plaintiff's

unverified 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 CAUSE OF ACTION
Answering the First Cause of Action, this answering defendant generally denies the
allegations thereof and specifically denies tortious conduct on its part or that plaintiff has been
injured as alleged, or otherwise.

SECOND CAUSE OF ACTION

Answering the Second Cause of Action, this answering defendant generally denies the
allegations thereof and specifically denies tortious conduct on its part or that plaintiff has been

injured as alleged, or otherwise.
-1-

COOPER BROTHERS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY
\\WServer7\GEN-INS\1789\S£101 2\Pld\Answer,docTHIRD CAUSE OF ACTION

Answering the Third Cause of Action, this answering defendant generally denies the
allegations thereof and specifically denies tortious conduct on its part or that plaintiff has been
injured as alleged, or otherwise.

FIFTH CAUSE OF ACTION

Answering the Fifth Cause of Action, this answering defendant generally denies the
allegations thereof and specifically denies tortious conduct on its part or that plaintiff has been
injured as alleged, or otherwise.

SIXTEENTH CAUSE OF ACTION

Answering the Sixteenth Cause of Action, this answering defendant generally denies the

allegations thereof and specifically denies tortious conduct on its part or that plaintiff has been

injured as alleged, or otherwise.

SEVENTEENTH AND EJGHTEENTH CAUSE OF ACTION

Answering the Seventeenth Cause of Action, this answering defendant generally denies
the allegations thereof and specifically denies tortious conduct on its part or that plaintiff has

been injured as alleged, or otherwise.

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.

THIRD 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,
MW

Hl
-2-

COOPER BROTHERS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY
\erver7\GEN-INS\1789\SF1012\PId\Answer.docau

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

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 has 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
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.
tt

it
-3-

COOPER BROTHERS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY
\\Server7\GEN-INS\I784\S11012\Pld\Answer.docENTH 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.

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 of California Labor Code, Section 3601, ef seq.

Uf
-4-
COOPER BROTHERS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY
\Server7\GEN-INS\1 784S11012\Pld\Answer.docSIXTEENTH 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 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 non-economic 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 non-
economic damages.

NINETEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at all times relative to matters alleged in the Complaint, all of
plaintiff's 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.
-5-

COOPER BROTHERS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY
\\Server7\GEN-INS\I78\5£1012\Pld\Answer.docTWENTIETH 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 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

Tf 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 otherwise, Defendant asserts that cross-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.
Ml

Mt
-6-

COOPER BROTHERS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY
\\Server7\GEN-INS\I789Sf101 2\Pid\Answer.docwa

TWENTY-FOURTH AFFIRMATIVE 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 Defendant's 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, predécessor 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
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.
dif
it

Mt
-7-

COOPER BROTHERS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY
\\Server\GEN-INS\1789\Sf1012\PId\Answer.docSMD wUo®

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 v. American Standard, Inc. (2008) 43 Cal.4th 56.

WHEREFORE, Defendant prays:

(1) That plaintiff take nothing by this Complaint;

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

6) 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

(S) For such other and further relief as the Court deems just and proper.

Dated: August} 4, 2010 LOW, BALL & LYNCH

rege Op
NIA E. BEOMOUIST

KEVIN P. ALLEN
Attorneys for Defendant
COOPER BROTHERS, INC.

-8-

COOPER BROTHERS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY
\Server7\GEN-INS\1789\Sf1 01 2\PId\Answer.dococ GO Mm NIN Hh Bow YW

co

i2
13

Hagen v. Associated Insulation of California
San Francisco Superior Court, Case No. GCG-10-275582

PROOF OF SERVICE

Tam over the age of eighteen (18) years and not a party to the within action. [ am
employed at Low, Ball & Lynch, 505 Montgomery Street, 7th Floor, San Francisco, California
94111.

On the date indicated below, I served the following document COOPER
BROTHERS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURY - ASBESTOS

on the listed addresses:

Brayton Purceil [ ] And All Defense Counsel

222 Rush Landing Road [SEE ATTACHED LIST]

Novato, CA 94948-6169

Telephone: 415 898-1555 [ ] (All counsel in this action (list attached)
415-898-1555 (voice) were faxed a letter advising of the documents
415-898-1247 (fax) provided plaintiff and an offer to provide copies

upon request. Letter enclosed)

] (BY MAIL) I served the above-named document, with postage thereon fully prepaid, via the
United States mail at San Francisco, California. [am sufficiently familiar with my firm's
practice for collection and processing of mail with the United States Postal Service. It will be
deposited with the United States Postal Service this same day in the ordinary course of
business.

{] (BY PERSONAL SERVICE) J caused each such envelope to be delivered by hand to the
addressee(s) noted above or on the attachment herein.

fi (BY FACSIMILE) I caused the said document to be transmitted by facsimile transmission to,
the number indicated above or on the attachment herein.

fl (BY ELECTRONIC SERVICE) I electronically served the document(s) via LexisNexis
File & Serve on the recipients designated on the Transaction Receipt located on the
LexisNexis File & Serve website.

t] (BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED) I placed a true copy, enclosed
in a sealed, postage-paid envelope, in the United States Mail, at San Francisco, California.

t] (BY OVERNIGHT COURIER) I caused each such envelope addressed to the parties to be
deposited in a box or other facility regularly maintained by the overnight courier or driver
authorized by the overnight courier to receive documents.

I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Executed at San. Francisco, California on August » 2010.

Staflet' Herrera

-9-

COOPER BROTHERS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY
\\Server7\GEN-INSY 78\SF1012\PId\Answer.doe