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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oe WM A HW BR wD DETERT, MORAN & ARNOLD LLF Sedgewick. 28 SF/1713601v1 SEDGWICK, DETERT, MORAN & ARNOLD LLP Michael L. Fox (State Bar No.173355) michael.fox@sdma.com Sean Patterson (State Bar No. 234565) ELECTRONICALLY sean.patterson@sdma.com FILED Patricia Keady (State Bar No. 259776) Superior Court of California, patricia. keady@sdma.com County of San Francisco One Market Plaza AUG 16 2010 Steuart Tower, 8th Floor San Francisco, CA 94105-1008 ay erik of the Co ur Telephone: 415.781.7900 Deputy Clerk Facsimile: 415.781.2635 ATTORNEYS FOR PETER KIEWIT SONS’, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO LAURANCE HAGEN, ) CASE NO. CGC-10-275582 ) Plaintiff, ) ) v. ) ) DEFENDANT PETER KIEWIT SONS’, ASBESTOS DEFENDANTS (B*P), } INC'S ANSWER AND GENERAL ) Defendant. } DENIAL TO PLAINTIFF'S COMPLAINT ) Defendant Peter Kiewit Sons’, Inc. (“defendant”) answers plaintiff Laurance Hagen’s (“plaintiff”) unverified complaint for personal injury (“complaint”) as follows: Under the provisions of Section 431.30 of the Code of Civil Procedure, defendant denies each and all of the allegations of said complaint and denies that plaintiff sustained damages in the sum. or sums alleged or in any other sum or at all. , FIRST AFFIRMATIVE DEFENSE 1. Defendant alleges that said complaint and cach cause of action therein fail to state facts sufficient to constitute a cause of action against this answering defendant. fff fit aleDETER, MORAN & ARNOLD LLP Sedgewick 28 SFA7I3601V1 SECOND AFFIRMATIVE DEFENSE 2. _ Defendant alleges that the causes of action, if any, attempted to be stated and set forth in said complaint are barred by the provisions of the Code of Civil Procedure of the State of California including, but not limited to, Sections 335.1 and 340.2. THIRD AFFIRMATIVE DEFENSE 3. Defendant alleges that the causes of action, if any, attempted to be stated and set forth in said complaint are barred by laches due to plaintiff's unreasonable delay in filing the complaint. FOURTH AFFIRMATIVE DEFENSE 4, Defendant alleges that plaintiff is estopped from asserting each and every cause of action, if any, attempted to be stated and set forth in said complaint in whole or in part by reason of the acts, omissions and conduct, of plaintiff and his agents. FIETH AFFIRMATIVE DEFENSE 5. Defendant alleges that plaintiff and others were negligent or otherwise at fault in and about the matters referred to in said complaint, and that such negligence or other fault bars or diminishes plaintiff's recovery against this answering defendant. SIXTH AFFIRMATIVE DEFENSE 6. Defendant alleges that plaintiff was solely negligent in and about the matters alleged in said complaint and that such negligence on the part of plaintiff was the sole proximate cause of the injuries and damages complained of, if any there were. SEVENTH AFFIRMATIVE DEFENSE 7. Defendant alleges that plaintiff assumed the risk of the matters referred to in said complaint, that plaintiff knew and appreciated the nature of the risk, and that plaintiff voluntarily accepted the risk. EIGHTH AFFIRMATIVE DEFENSE 8. Defendant alleges that there is no privity between plaintiff and this answering defendant.oO WD HH RB BW HY RON BR RRQ mt Bo NS & S © we WDA BR WN SS DETER, MORAN & ARNOLD LLP nN A Sedgwick 28 SFAI71360LVL NINTH AFFIRMATIVE DEFENSE 9. Defendant alleges that plaintiff misused and abused the products referred to in said complaint, and failed to follow instructions, and that such misuse and abuse and failure to follow instructions on the part of plaintiff proximately caused and contributed to the injuries and damages complained of, if any there were. TENTH AFFIRMATIVE DEFENSE 10. Defendant alleges that, if there was any negligence proximately causing the injuries or damages complained of, such negligence, if any, was solely that of persons other than this answering defendant. ELEVENTH AFFIRMATIVE DEFENSE 11. Defendant alleges that it gave no warranties, either express or implied, to plaintiff and that neither plaintiff nor others ever notified defendant of any claims of breach of warranty, if any there were. TWELFTH AFFIRMATIVE DEFENSE 12. Defendant alleges that said complaint and each cause of action therein are barred with respect to this answering defendant as plaintiff's exclusive remedy for the acts alleged in the complaint on file herein is a claim for compensation before the Workers’ Compensation Appeals Board, and that, accordingly, plaintiff's action is barred by the provisions of Sections 3600, 3601 and 3602 of the Labor Code of the State of California, as well as any other applicable state’s laws that provide workers’ compensation as an exclusive remedy. THIRTEENTH AFFIRMATIVE DEFENSE 13. Defendant alleges that said complaint and each cause of action therein are barred with respect to this answering defendant, as at the time more specifically alleged in plaintiff's complaint, plaintiff was in the course and scope of his employment, and his employers were insured, or permissibly self-insured, for their liability as employers under the Workers’ Compensation Act of the State of California, and that pursuant to said insurance, payments are being made or were made to plaintiff for compensation for the injuries which are alleged to have resulted from the incidents set forth in plaintiff's complaint. Defendant is further informed and -3-eo Oe WN DH HM BR Ww DETERT, MORAN & ARNOLD LLP Sedewick SF/1713601v1 believes, and thereupon alleges, that any and all injuries alleged to have been suffered by the plaintiff, the fact of which is expressly denied by defendant, were the direct result of, and were contributed to by, the negligence of plaintiff's employers, and that said negligence and the wrongful conduct of his employers included, but was not limited to the failure to provide plaintiff with a safe place to work and to provide him with the proper tools, devices and equipment to avoid injuries, and the failure to properly supervise and warn plaintiff of any dangers and hazards attendant to his employment. Defeudant is therefore entitled to a reduction of any judgment or recovery ultimately had by plaintiff by the sum of those amounts paid to plaintiff or on behalf of his employers pursuant to the Workers’ Compensation Act of this State. FOURTEENTH AFFIRMATIVE DEFENSE 14. Defendant alleges that, if there was any negligence proximately causing the injuries or damages complained of, such negligence, if any, is collateral negligence, as that term is used and defined in Restatement 2d Torts, Section 426, and derivative authority. FIFTEENTH AFFIRMATIVE DEFENSE 15. Defendant alleges that plaintiff's claims, and each of them, in this action are preempted by federal statutes and regulations governing workplace exposure to asbestos. SEXTEENTH AFFIRMATIVE DEFENSE 16. Defendant alleges that said complaint, to the extent that it seeks exemplary or punitive damages pursuant to California Civil Code Section 3294 against this answering defendant, violates defendant’s right to procedural due process under the Fourteenth Amendment of the United Siates Constitution, and Article I, Section 7 of the Constitution of the State of California, and therefore fails to state a cause of action upon which either punitive or exemplary damages can be awarded. : SEVENTEENTH AFFIRMATIVE DEFENSE 17. Defendant alleges that said complaint, to the extent that it seeks exemplary or punitive damages pursuant to California Civil Code Section 3294 against this answering defendant, violates defendant’s right to protection from “excessive fines” as provided in the Eighth Amendment of the United States Constitution and Article I, Section 17 4.Oo em NY DW BF YW NY RMN NR RN RD et A A B® BY = SO wm NN DH HW BF YW NH BF SD GETERT, MORAN & ARNOLD LLP Sedgewick 28 SE/L71360EV1 of the Constitution of the State of California, and violates defendant’s right to substantive due process as provided in the Fifth and Fourteenth Amendments of the United States Constitution and Constitution of the State of California, and therefore fails to state a cause of action upon which either punitive or exemplary damages can be awarded. EIGHTEENTH AFFIRMATIVE DEFENSE 18. Defendant alleges that plaintiff's complaint, and each cause of action therein, fail to state facts sufficient to support an award of punitive or exemplary damages against this answering defendant. NINETEENTH AFFIRMATIVE DEFENSE 19. Defendant alleges that the “peculiar risk” doctrine is not applicable to the causes of action attempted to be stated and set forth against this answering defendant, because the injuries and damages complained of in the complaint, if any there were, arose in the course and scope of plaintiff's employment by an independent contractor. TWENTIETH AFFIRMATIVE DEFENSE 20. Defendant alleges that the causes of action, if any, attempted to be stated and set forth in said complaint on the theory of alternate entity and/or successor liability fail to state facts sufficient to constitute a cause of action against this answering defendant. TWENTY-FIRST AFFIRMATIVE DEFENSE 21. Defendant alleges that the causes of action, if any, attempted to be stated and set forth in said complaint for negligence per se are barred by California Labor Code Section 6304.5, and derivative authority. TWENTY-SECOND AFFIRMATIVE DEFENSE 22. Defendant alleges that plaintiff failed to exercise due diligence to mitigate his loss, injury or damages, if any, and, accordingly, the amount of damages to which plaintiff is entitled, if any, should be reduced by the amount of damages which otherwise would have been mitigated. fit itiOo oe NY DN HW RF WN RMN RR Rm ms BS 8 |= 5S © eo AU DAD FF OB YH = S DEFEAT, MORAN & ARNOLD LL? Nn a Sedawick 28 SE/V713601vi TWENTY-THIRD AFFIRMATIVE DEFENSE 23. Defendant alleges that as a separate and affirmative defense to each cause of action, defendant is entitled to set-off any settlements, judgments, or similar amounts received by plaintiff, against any judgment rendered against it in plaintiff's favor herein. TWENTY-FOURTH AFFIRMATIVE DEFENSE 24, Defendant alleges that, at all times relevant to the matters alleged in the complaint, some of plaintiff's employers were sophisticated users of allegedly asbestos-containing products, and said employers’ negligence in exposing their employees to such products in a negligent, careless and reckless manner was a superseding intervening cause of plaintiff's injuries, if any. TWENTY-FIFTH AFFIRMATIVE DEFENSE 25. Defendant alleges that plaintiffs' claims are barred as a matter of law because a manufacturer bears no duty to warn members of a trade or profession about dangers generally known to that trade or profession. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.) TWENTY-SIXTH AFFIRMATIVE DEFENSE 26. Defendant alleges that it cannot be held liable for the negligence or misconduct, if any, of independent contractors at defendant’s premises, based on the doctrine of peculiar risk or any other theory of Hability, pursuant to Priverte v. Superior Court (1993) 5 Cal.4th 689, Smith v. ACandS, Inc. (1994) 31 Cal. App.4th 77, Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, Hooker v. Department of Transportation (2002) 27 Cal.4th 198, and Kinsman v. Unocal Corp, (2005) 37 Cal 4th 659. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27. Defendant alleges that the premises referred to in said complaint, if owned or controlled by defendant at all, were designed, fabricated, constructed, maintained, and repaired in compliance with United States government specifications and/or under the direction, control and authority of federal officers, and that the hazards associated with the use of asbestos- containing products and materials, if any, were known equally to the government and defendants, and therefore the complaint and all causes of action therein, if any, are barred by the government -6-Oo CoC ND BDA he Be YW DN RD ND Nee BW NHN = SG GC we MW DH HW BF W YW HE Oo DETERT, MORAN & ARNOLD LLP nN A Sedgwicls 28 SE/I71360191 contractor defense (Boyle v. United Technologies Corp., 487 U.S. 500 (1988), and derivative authority), and the Defense Production Act of 1950, 50 U.S.C. Section 2061, et seq., its statutory predecessors, and derivative authority. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 28. Defendant Peter Kiewit Sons’, Inc. alleges that the causes of action, if any, attempted to be stated and set forth in plaintiff Laurance Hagen’s complaint have been waived and/or released. WHEREFORE, defendant prays for judgment as follows: 1 That plaintiff takes nothing by reason of the complaint; 2. That the Court enter judgment in favor of defendant; 3. That responsibility, if any, for plaintiff's injuries and damages, if any, be allocated among all proper entities, other than defendant, whose acts or omissions caused, or contributed to, plaintiff's damages, if any; 4, That defendant be awarded attorneys’ fees and costs of suit incurred; and 5. For such further relief as the court may deem appropriate. DATED: August 16, 2010 SEDGWICK, DETERT, MORAN & ARNOLD LLP ween Ka Patricia Keady Attorneys for Peter Kiewit Sons’, Inc.he PROOF OF SERVICE Lam a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Sedgwick, Detert, Moran & Amold LLP, One Market Plaza, Steuart Tower, 8th Floor, San Francisco, California 94105. On the date executed below, I electronically served the document(s) via LexisNexis File & Serve described as: DFENDANT PETER KIEIWT SONS’, INC.°S ANSWER AND GENERAL DENIAL TO PLAINTIFF’S COMPLAINT on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website, I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on August 16, 2010, at San Francisco, California. oO Dp ON DAD Hh Rw NY rt = 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/_ Mark Mitobe Mark Mitobe SF/1716252viPROGF OF SERVICE