Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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Walsworth,
Frankia,
Bevins &

MeCall, LLP

AnrowSES 57 L40

MICHAEL T. MCCALL, State Bar No. 109580
WALSWORTH FRANKLIN BEVINS & McCALL, LLP

601 Montgomery Street, Ninth Floor ELECTRONICALLY

San Francisco, California 94111-2612

Telephone: (415) 781-7072 F I L ED
mile: i superior Court of California,

Facsimile: (415) 391-6258 County of San Francisco

Attorneys for Defendant AUG 16 2010

N. V. HEATHORN, INC. Clerk of the Court

BY: CHRISTLE ARRIOLA
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

LAURANCE HAGEN, Case No, CGC-10-275582
Plaintiff, ANSWER OF DEFENDANT
N. V. HEATHORN, INC. TO
vs. PLAINTIFF'S COMPLAINT FOR

PERSONAL INJURY - ASBESTOS
ASSOCIATED INSULATION OF
CALIFORNIA; et al.,

Defendants.

Defendant N. V. HEATHORN, INC. (hereafter "Defendant"), in answering the Plaintiff's
unverified complaint (hereafter "complaint”) for itself alone, and severing itself from all others,
admits, denies and alleges as follows:

1. Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies,
both generally and specifically, each, every and all allegations of each and every purported cause of
action or count of Plaintiffs complaint, denying specifically that Plaintiff has been, is, or will be
injured or damaged in the manner or sum alleged, or in any other manner or sums at all, and further
denying that Defendant was negligent in any manner, that the alleged product installed or
distributed was defective in any way, or that the alleged defect was the proximate cause of the
Plaintiff's claimed damages or injuries.

DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND
DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY

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N. V. HEATHORN, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT

1004899,
2480-28.02828

Walsworth,
Frankia,
Bevins &

MeCall, LLP

AnrowSES 57 L40

CAUSE OF ACTION ALLEGED IN PLAINTIFF'S COMPLAINT AS THOUGH PLEADED
SEPARATELY TO EACH AND EVERY CAUSE OF ACTION:
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 or causes 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 sole negligence or fault bars Plaintiff's recovery, or were
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, if any. 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 the supervening and/or intervening causes of Plaintiffs 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 Plaintiff's complaint occurred and were proximately caused by either the sole
negligence of Plaintiff's employers other than Defendant, or co-employees, which sole negligence
bars Plaintiff's recovery, or were contributed to by the negligence of Plaintiff's employers other
than Defendant, or co-employees. Plaintiff's recovery, if any, must be reduced by an amount
proportionate to the amount by which the negligence of Plaintiff's employers other than Defendant,

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N. V. HEATHORN, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT

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Walsworth,
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MeCall, LLP

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and/or the negligence of Plaintiff's co-employees contributed to the happening of the alleged
accident and the alleged injuries.
FIFTH AFFIRMATIVE DEFENSE

6. Defendant alleges that 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 thereon alleges that Plaintiff knew of the
risks and dangers inherent to Plaintiff's conduct, and with full knowledge of the risks and dangers
and with an appreciation for the magnitude of the risks and dangers, did voluntarily assume the
risks, 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 his

injuries and/or damages, if any.
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N. V. HEATHORN, INC’S ANSWER TO PLAINTIFF'S COMPLAINT

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Walsworth,
Frankia,
Bevins &

MeCall, LLP

AnrowSES 57 L40

NINTH AFFIRMATIVE DEFENSE
10. 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 §§335.1,
338, 339, 340.2 and 343.
TENTH AFFIRMATIVE DEFENSE

il. Plaintiff's 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 risks of the matters causing the damages. if any,
and Plaintiffs acknowledgment of, acquiescence in and consent to the alleged acts or omissions, if
any, of Defendant.

TWELFTH 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 Defendant distributed and installed its products in full
compliance with regulations and/or specifications promulgated by the United States Government
and any recovery by Plaintiff is barred as a consequence.

FOURTEENTH AFFIRMATIVE DEFENSE

15. Plaintiffis barred from asserting any claim based on breach of warranty against
Defendant by reason of failure to fulfill the conditions of warranties alleged in Plaintiff's complaint
in the event such alleged warranties are proved at trial.

FIFTEENTH AFFIRMATIVE DEFENSE

16. Defendant alleges that Plaintiff has waived whatever rights Plaintiff might otherwise
have had for breach of warranty in that Plaintiff failed to notify Defendant of any alleged breach of
warranty, express or implied, and/or of any alleged defect in any products installed or marketed by
Defendant within a reasonable time after Plaintiff discovered, and/or should have discovered, any
defect or nonconformity, if any existed, thereby prejudicing Defendant from being able to fully

4.
N. V. HEATHORN, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT

1004899,
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Walsworth,
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Bevins &

MeCall, LLP

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investigate and defend the allegations contained in Plaintiff's complaint.

SIXTEENTH AFFIRMATIVE DEFENSE

17. Defendant alleges that Plaintiff is now estopped from claiming that any product
installed or marketed by Defendant was in any way defective or failed to conform to any alleged
warranties in that Plaintiff failed to notify Defendant of any defect or nonconformity in any product
within a reasonable time after Plaintiff discovered, and/or should have discovered, any defect or
nonconformity, if any existed.

SEVENTEENTH AFFIRMATIVE DEFENSE

18. 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.
EIGHTEENTH AFFIRMATIVE DEFENSE

19. Defendant alleges that any injuries or damages alleged 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 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 installed or distributed by Defendant.

NINETEENTH AFFIRMATIVE DEFENSE

20. Defendant alleges that if Plaintiff was injured by any product manufactured by
Defendant, the products were intended and sold in bulk to a knowledgeable and sophisticated
distributor or user over whom Defendant had no control who was fully informed as to the risks and
dangers, if any, associated with the products and the precautions, if any, required to avoid the risks
and dangers, if any.

TWENTIETH AFFIRMATIVE DEFENSE

21. Defendant is informed and believes and thereon alleges that Plaintiff is a member of
a sophisticated group of users of Defendant's services, products, materials and/or equipment.

TWENTY-FIRST AFFIRMATIVE DEFENSE

22. Defendant is informed and believes and thereon alleges that the Plaintiff possesses

the level of knowledge and skill based upon the Plaintiff's training, education and/or experience
5.

N. V. HEATHORN, INC’S ANSWER TO PLAINTIFF'S COMPLAINT

1004899,
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Walsworth,
Frankia,
Bevins &

MeCall, LLP

AnrowSES 57 L40

such that Plaintiff would be categorized as a sophisticated user of Defendant's services, products,
materials and/or equipment.
TWENTY-SECOND AFFIRMATIVE DEFENSE
23. Defendant is informed and believes and thereon alleges that Plaintiff would
reasonably be expected to know of the hazards of working with and/or around Defendant's services,
products, materials and/or equipment.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24. Defendant is informed and believes and thereon alleges that Plaintiff was employed
and trained by a company who is a member of a sophisticated group of users of Defendant's
services, products, materials and/or equipment.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. Defendant alleges that if Plaintiff was injured by any product installed or distributed
by Defendant, Defendant, irrespective, did net breach any duty to Plaintiff and is not liable for any
injuries or for Plaintiff's claimed damages as the product when installed or distributed conformed to
the then current state-of-the-art specifications and because the then current state-of-the-art medical,
scientific and industrial knowledge, art and practice were such that Defendant did not and could not
know that the product might pose a risk of harm in normal and foreseeable use.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

26. Defendant alleges that Plaintiff did not reasonably rely upon any act, omission or
representation of Defendant.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

27. in the 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 Defendant's percentage of fault
and a separate judgment shall be rendered against Defendant for that amount pursuant to Civil
Code §1431.2.
fit}

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N. V. HEATHORN, INC’S ANSWER TO PLAINTIFF'S COMPLAINT

1004899,
2480-28.02828

Walsworth,
Frankia,
Bevins &

MeCall, LLP

AnrowSES 57 L40

TWENTY-SEVENTH AFFIRMATIVE DEFENSE
28. 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 or
consumption by the general public.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

29. 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.

TWENTY-NINTH AFFIRMATIVE DEFENSE

30. Defendant alleges that Plaintiff herein lacks legal capacity and standing to sue, is not
a real party in interest or person with superior right to make the claims contained in the complaint
and is thereby precluded from any recovery whatsoever. Additionally, to the extent that Plaintiff
lacks standing or proper appointment to bring the claims he is asserting, any action taken in this
matter with regard to Plaintiff's claims is voidable. Defendant further contends that any
declaration filed by any person asserting a survival claim contains expert opinions and conclusions
that are not supported and that the declarant is not qualified to make.

THIRTIETH AFFIRMATIVE DEFENSE

31. Defendant alleges that Plaintiff's complaint and each and every cause of action fail
to state facts sufficient to constitute a cause or causes of action for punitive damages against
Defendant.

THIRTY-FIRST AFFIRMATIVE DEFENSE

32. Defendant alleges that insofar as the instant complaint is an attempt to recover
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N. V. HEATHORN, INC’S ANSWER TO PLAINTIFF'S COMPLAINT

1004899,
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Walsworth,
Frankia,
Bevins &

MeCall, LLP

AnrowSES 57 L40

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;

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

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

eG The California Constitution due process and equal protection clauses, Article

{, Section 7(a);
fh The California Constitution excessive fines clause, Article 1, Section 17,

WHEREFORE, Defendant N. V. HEATHORN, INC. prays for judgment as follows:

1. That Plaintiff takes nothing from Defendant by virtue of the complaint herein;

2. That Defendant be awarded casts of suit and attorneys’ fees herein; and

3. That Defendant be granted such other and further relief as the Court may deem just
and proper.
Dated: August 16, 2010 Respectfully submitted,

WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP

By: (S/MICHAEL T, MCCALL
MICHAEL T. MCCALL
Attorneys for Defendant
N. V. HEATHORN, INC.

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N. V. HEATHORN, INC’S ANSWER TO PLAINTIFF'S COMPLAINT

1004899,
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Walsworth,
Frankia,
Bevins &

MeCall, LLP

AnrowSES 57 L40

PROOF OF SERVICE

fam employed in the County of Orange, State of California. | am over the age of 18 and
not a party to the within action. My business address is 1 City Boulevard West, Fifth Floor,
Orange, California 92868-3677.

On August 16, 2010, I served the within document(s) described as:

ANSWER OF DEFENDANT N. V. HEATHORN, INC. TO PLAINTIFF'S COMPLAINT
FOR PERSONAL INJURY - ASBESTOS

on the interested parties in this action as stated below:

BRAYTON PURCELL LLP
222 Rush Landing Road.

P. O. Box 6169

Novato, CA 94948-6169

X] (BY ELECTRONIC MAIL)! provided the documentfs) listed above electronically to the
Lexis Nexis website pursuant to their instructions on that website. If the document is
provided to Lexis Nexis electronically by 5:00 p.m., then the document will be deemed
served on the date that it was provided to Lexis Nexis,

Executed on August 16, 2010, at Orange, California.

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

Ellen Wright 4S/ Ellen Wright

(Type or print name) (Signature)

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N. V. HEATHORN, INC'S ANSWER TO PLAINTIFF'S COMPLAINT

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