Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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                                1 |] LEWIS BRISBOIS BISGAARD & SMITH LLP
JUDD A. GILEFSKY, SB# 198694
2|) E-Mail: gilefsky@lbbslaw.com ELECTRONICALLY
BRETTON MORRIS, SB# 245702 FILED
3 E-Mail: morrisb@Ibbslaw.com Superior Court of California,
221 North Figueroa Street, Suite 1200 County of San Francisco
4|| Los Angeles, California 90012 AUG 18 2010
Telephone: 213.250.1800 Clerk of the Court
5 || Facsimile: 213.250.7900 BY: ALISON AGBAY
Deputy Clerk
6 || Attorneys for Defendant
BRAGG INVESTMENT COMPANY, INC.
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8
9 SUPERIOR-COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
i
12 || LAURANCE HAGEN, CASE NO. CGC-10-275582
13 Plaintiff, ANSWER OF DEFENDANT BRAGG
14 v. INVESTMENT COMPANY, INC. TO
o PLAINTIFE’S COMPLAINT FOR
15 || ASSOCIATED INSULATION OF PERSONAL INJURY - ASBESTOS
CALIFORNIA; et al.,
16 The Hon. Harold E. Kahn
W Defendants. Dept. 220
18 ACTION FILED: June 2, 2010
TRIAL DATE: None Set
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TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD:
2A
COMES NOW Defendant BRAGG INVESTMENT COMPANY, INC. (“BRAGG” or
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“Defendant” who, for itself alone and for no other Defendants, and in answer to Plaintiff's Complaint
23 :
for Personal Injury - Asbestos (“Complaint”), admits, denies or otherwise alleges as follows, to wit:
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GENERAL DENIAL
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1. BRAGG generally denies each and every allegation of Plaintiffs unverified Complaint.
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Without limiting the foregoing, BRAGG further denies that it is liable to Plaintiff in any particular
LEWIS CGC-10-275582

BRISBOIS ANSWER OF DEFENDANT BRAGG INVESTMENT COMPANY, INC. TO
BISGAARD PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOS

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alleged in the Complaint, or in any other particular or at all, and further denies that Plaintiff has
sustained damage in the particulars alleged in the Complaint, or in any other particular, or at all.
FIRST AFFIRMATIVE DEFENSE

2. The Complaint and each and every purported cause of action or count thereof fails to
state facts sufficient to constitute a cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
3. Defendant is informed and believes and thereon alleges that the acts, injuries and
damages alleged in the Complaint occurred and were proximately caused by either the sole negligence
or fault of Plaintiff, which sale negligence or fault bars Plaintiff's recovery, or was contributed to by
Plaintiff's negligence or fault. Plaintiff's recovery, if any, should be reduced by an amount
proportionate to the amount by which Plaintiff's negligence or fault contributed to the happening of
the alleged incident and/or alleged injury.
THIRD AFFIRMATIVE DEFENSE

4, Defendant is informed and believes and thereon alleges that the negligence,
carelessness and other acts or omissions of other Defendants in this lawsuit, as well as other persons
and entities not parties to this lawsuit, proximately caused or contributed to Plaintiff's injuries and
damages, ifany. The negligence, carelessness and other acts or omissions of the other Defendants in
this lawsuit and other persons and entities not parties to this lawsuit account for one hundred percent
(100%) of the causal or contributing factors relating to Plaintiff’ s injuries and damages, if any, and/or
constitute supervening and/or intervening causes of Plaintiff's injuries and damages, if any.

FOURTH AFFIRMATIVE DEFENSE

5. Defendant is informed and believes and thereon alleges that the accident, injury and
damages alleged in Plaintiffs Complaint occurred and were proximately caused by either the sole
negligence of Plaintiffs employers other than Defendant, or co- employees, which sole negligence
bars Plaintifi’s recovery, or were contributed to by the negligence of Plaintiff's employers other than
Defendant, or co-employees. Plaintiff's recovery, ifany, must be reduced by an amount proportionate

to the amount by which the negligence of Plaintiff's employers other than Defendant, and/or the

CGC-10-275582

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ANSWER OF DEFENDANT BRAGG INVESTMENT COMPANY, INC. TO
PIAINTEFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOSLEWIS
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negligence of Plaintiffs co-employees contributed to the happening of the alleged accident and the
alleged injuries. :
FIFTH AFFIRMATIVE DEFENSE

6. While at all times denying any liability whatsoever to Plaintiff, any alleged liability or
responsibility of Defendant is small in proportion to the alleged liability and responsibility of other
persons or entities, including other persons and entities who are parties herein, and Plaintiff should be
limited to seeking recovery from Defendant for the proportion in which Defendant is allegedly liable
or responsible, all such alleged Liability and responsibility being expressly denied.

SIXTH AFFIRMATIVE DEFENSE

7. Defendant is informed and believes and thereon alleges that at the time the alleged
operations, acts and conduct occurred, Plaintiff was acting within the course and scope of
employment, and was entitled to receive, did receive and will continue to receive workers’
compensation benefits. Plaintiff's employers other than Defendant failed to provide the Plaintiff with
a safe place in which to work, and such employers’ negligence, carelessness and other acts and
omissions proximately caused the injuries and damages claimed. Therefore, these employers and their
workers’ compensation carriers are barred from any recovery by lien or otherwise herein, and
Defendant is entitled to set off any such benefits Plaintiff has received against any judgment rendered
in favor of Plaintiff.

SEVENTH AFFIRMATIVE DEFENSE

8. Defendant is informed and believes and thercon alleges that Plaintiff knew of the risk
and dangers inherent to Plaintiffs conduct, and with full knowledge of those risks and dangers with an.
appreciation for the magnitude of the risks and dangers, did voluntarily assume the risk and injuries
and damages, if any, sustained thereby. Plaintiff's assumption of risk bars or proportionately reduces
any recovery by Plaintiff.

EIGHTH AFFIRMATIVE DEFENSE

9. Defendant alleges that Plaintiff has failed to make reasonable efforts to mitigate
Plaintiff's injuries and/or damages, if any.
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ANSWER OF DEFENDANT BRAGG INVESTMENT COMPANY, INC. TO
PIAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOSLEWIS
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NINTH AFFIRMATIVE DEFENSE
i0. | The Complaint and each and every cause of action contained therein are barred by the
applicable statute of limitations including, but not limited to, Code of Civil Procedure §§335,339(1),
340(1), 340(3) and 340.2 and California Commercial Code §2725.
TENTH AFFIRMATIVE DEFENSE
1l. Plaintiffs action is barred by the provisions of Labor Code §3600, et seq.
ELEVENTH AFFIRMATIVE DEFENSE
12. Plaintiff has waived and is estopped from asserting any claim against Defendant by
reason of Plaintiff’s approval and consent to the risk of the matters causing the damages, if any, and

Plaintiff's acknowledgment of, acquiescence in and consent to the alleged acts or omissions, if'any, of

Defendant.
TWELPTH AFFIRMATIVE DEFENSE
13. This action is barred by laches as Plaintiff unreasonably delayed in the bringing of this
action and thereby prejudiced the rights of Defendant.

THIRTEENTH AFFIRMATIVE DEFENSE

14. Defendant alleges that Plaintiff was not in privity of contract with Defendant, and that

such lack of privity bars recovery herein upon any theory of warranty.
FOURTEENTH AFFIRMATIVE DEFENSE

15. Defendant alleges that any injuries or damages suffered by Plaintiff, the existence
thereof being expressly denied, are the direct and proximate result of Plaintiff’s particular,
idiosyncratic, peculiar or unforeseeable susceptibility to the alleged product or products installed or
distributed by Defendant, which reaction was not the result of any conduct or omission of Defendant,
nor the result of any defect in any product or products installed or distributed by Defendant.

FIFTEENTH AFFIRMATIVE DEFENSE

16. Defendant alleges that if Plaintiff was injured by any product installed or distributed by
Defendant, Defendant, irrespective, did not breach any duty to Plaintiff and is not liable for those
injuries or for Plaintiff's claimed damages as the product or products when installed and distributed

conformed to the then current state-of-the-art specifications, and because the then current state-of-the-

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ANSWER OF DEFENDANT BRAGG INVESTMENT COMPANY, INC. TO
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art medical, scientific and industrial knowledge, art and practice were such that Defendant did not and
could not know that the product or products might pose a risk of harm in normal and foreseeable use.
SIXTEENTH AFFIRMATIVE DEFENSE
17. Defendant alleges that Plaintiff did not reasonably rely on any act, omission or
representation of Defendant.

SEVENTEENTH AFFIRMATIVE DEFENSE

18. Inthe event Plaintiff is entitled to non-economic damages including, but not limited to,
pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and
companionship, loss of consortium, and/or injury to reputation and humiliation, Defendant shall be
liable only for the amount of non-economic damages allocated to this Defendant’s percentage of fault,
and a separate judgment shail be rendered against Defendant for that amount pursuant to Civil Code
§1431.2.

EIGHTEENTH AFFIRMATIVE DEFENSE

19. Defendant alleges that Defendant was not engaged in the business of supplying,
tendering, installing, distributing and/or furnishing products and/or goods or services for use by or
consumption to the general public.

NINETEENTH AFFIRMATIVE DEFENSE

20. Defendant denies any and all liability to the extent that Plaintiff may assert 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 or member in an
entity in which there has been research, study, manufacturing, fabricating, designing, labeling,
assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing,
contracting for installation, repairing, marketing, warranting, re-branding, manufacturing for others,
packaging and advertising of a certain substance, the generic name of which is asbestos.

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ANSWER OF DEFENDANT BRAGG INVESTMENT COMPANY, INC. TO
PIAINTIFI?S COMPLAINT FOR PERSONAL INJURY - ASBESTOSLEWIS
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TWENTIETH AFFIRMATIVE DEFENSE

21. Defendant alleges that Plaintiffs Complaint and each and every cause of action fail to
state facts sufficient to constituting fraud, “oppression,” or “malice” as these terms are used in Civil
Code §3294,

TWENTY-FIRST AFFIRMATIVE DEFENSE

22. Defendant alleges that insofar as the instant Complaint is an attempt to recover punitive
or exemplary damages from Defendant, it violates the following United States Constitutional and
California State Constitutional principles:

a. Excessive fines clause of the United States Constitution, Eighth Amendment and
Fourteenth Amendment;

b. The contract clause, Article I, Section 10, clause 1, and the Fourteenth Amendment of
the United States Constitution;

c The due process clause of the United States Constitution, Fourteenth Amendment;

d. The equal protection clause of the United States Constitution;

e. The California Constitution due process and equal protection clause, Article 1, Section
7a);

f The California Constitution excessive fines clause, Article 1, Section 17.

TWENTY-SECOND AFFIRMATIVE DEFENSE

23. Defendant is informed and believes and thereon alleges that at all times and places
mentioned in the Complaint on file herein, Plaintiff failed to exercise that quality and quantity of care
and caution that a reasonable individual in the same or similar circumstances would have exercised for
the protection of themselves; that said failure and negligence by Plaintiff proximately caused and
contributed to the injuries and damages, if any, sustained by Plaintiff.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24. Defendant is informed and believes and thereon alleges that at the time of the
occurrence alleged in the Complaint on file herein, said allegedly defective products were used by
Plaintiffin a wrongful manner without Defendant’s knowledge, approval, or consent, and contrary to

instructions and the custom and practice in the industry, and that such use was not reasonably
CGC-10-275582

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foreseeable by this answering Defendant, either at or before the time of sale, or at any time prior to the
time Defendant received a notice of the alleged occurrence described in the Complaint; that this
answering Defendant thereon alleges that the incident for which recovery is herein sought was solely
and proximately caused by such misuse, among other misuses, of the property.
TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. This answering Defendant is informed and believes and thereon alleges that after the
acceptance of goods as alleged in the Complaint, Plaintiff did not then, nor has he ever, given this
answering Defendant notice of any alleged breach of warranty.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

26. Defendant is informed and believes and thereon alleges that even if Plaintiff was
exposed to asbestos-containing products, allegedly distributed by this answering Defendant, any
exposure to these products would have been so minimal as to be insufficient to constitute a
“substantial contributing factor” in the causation of Plaintiff's disease.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

27. Defendant is informed and believes and thereon alleges that this answering Defendant
is not liable for any alleged failure to warn or any risks, danger or hazard in the use of any asbestos-
containing products, allegedly distributed or sold by it or goods it supplied or delivered to Plaintiff's
employer or employers, because each of such entities had as great, if not greater, knowledge about the
nature of any risk, danger or hazard than did this Defendant, and, unlike this Defendant, such entities
were in a position to warn persons exposed to such products of any such risks, danger or hazard.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28. Defendant is informed and believes and thereon alleges that to the extent the
Complaint, or any cause of action thereof, is based upon an allegation of strict products liability as
against this Defendant, said cause of action can not be maintained as this Defendant was not a “seller”
pursuant to 402A of the Restatement Second of Torts and consequently any claim of strict liability
against this Defendant is barred pursuant to Monte Vista Development Corp. vs. Superior Court
(1991) 226 Cal. App. 3d 1681.

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CGC-10-275582

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ANSWER OF DEFENDANT BRAGG INVESTMENT COMPANY, INC. TO
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TWENTY-EIGHTH AFFIRMATIVE DEFENSE

29. If Plaintiff was injured by any product manufactured or distributed by this Defendant,
which is denied, such product was intended for, and sold to, a knowledgeable and sophisticated user
over whom this Defendant had no control and who was fully informed or should have been fully
informed as to the risks and dangers pursuant to Johnson v. American Standard, Inc. (April 3, 2008;
S139184) _Cal.4th__. By reason thereof, this Defendant had no duty to warn Plaintiff or to further
warn the knowledgeable user of the risks and dangers, if any, associated with the product; and
whatever injury, if any, Plaintiff sustained were proximately caused by the failure of the
knowledgeable user of the product to use it for the purpose for which, and in the manner in which, it
was intended to be used, and to adequately warn and instruct Plaintiff concerning the product and the
dangers and risks, if any, associated with it.

WHEREFORE, BRAGG prays for judgment as follows:

1. That Plaintiff take nothing by reason of his Complaint on file herein, That the court
enter judgment in favor of BRAGG;

2. That in the event judement is rendered against BRAGG, that itis entitled to set-off for
any amounts paid or to be paid to Plaintiff under the worker's compensation laws of the State of
California;

3. That responsibility, if any, for Plaintiff's injuries and damages, if any, be allocated
among the other Defendants and among other persons, firms, corporations, and public and private
entities other than BRAGG whose acts or omissions legally caused or contributed to Plaintiffs
injuries and damages, if any;

4. That BRAGG have judgment for its costs incurred herein; and
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ANSWER OF DEFENDANT BRAGG INVESTMENT COMPANY, INC. TO
PIAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOSLEWIS
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5. Fer such other and further relief as this court may deem just and proper.

DATED: August _{¥, 2010

JUDD A. GILEFSKY
BRETTON MORRIS

LEWIS BRISBOIS BISGAARD & SMITH LLP

Attorneys for Defendant
BRAGG INVESTMENT COMPANY, INC.

CGC-10-275582

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CALIFORNIA STATE COURT PROOF OF SERVICE
Laurance Hagen vs. Associated Insulation of California, et al. - File No. 50013-950

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

At the time of service, | was over 18 years of age and not a party to the action. My
business address is 221 North Figueroa Street, Suite 1200, Los Angeles, California 90012.

On August 18, 2010, I served the following document(s): ANSWER OF
DEFENDANT BRAGG INVESTMENT COMPANY, INC. TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURY — ASBESTOS. I served the documents on the
following persons at the following addresses (including fax numbers and e-mail addresses, if
applicable):

The documents were served by the following means:

& (BY ELECTRONIC SERVICE VIA LEXISNEXIS FILE & SERVE) Based on a court
order I caused the above-entitled document(s) to be served through LexisNexis File &
Serve at www-fileandserve.lexisnexis.com addressed to all parties appearing on the
electronic service list for the above-entitled case. The service transmission was reported as
complete and a copy of the LexisNexis file & Serve Filing Receipt Page/Confirmation will
be filed, deposited, or maintained with the original document(s) in this office. Receipt
number is :

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

Executed on August 18, 2010, at Los Angeles, California.

ROSA E. ROJAS

CGC-10-275582
ANSWER OF DEFENDANT BRAGG INVESTMENT COMPANY, INC. TO
PIAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS