Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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                                1 || PRINDLE, AMARO, GOETZ,

19 || answering defendant"), for itself alone, and in answer to the unverified Complaint of plaintiff(s)

HILLYARD, BARNES & REINHOLTZ LLP ELECTRONICALLY
2 || Kenneth B. Prindle, Esq. (Bar No. 82691)
Thomas A. Steig, Esq. (Bar No. 119341) FILED
3 || One California Street, Suite 1910 Superior Court of California,
San Francisco, California 94111 County of San Francisco
4 || Telephone: (415) 788-8354 AUG 02 2010
Facsimile: (415) 788-3625 Clerk of the Court
5 BY: JUDITH NUNEZ
Attorneys for Defendant, W.L. HICKEY SONS, INC. Deputy Clerk
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» 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
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3 11 |] LAURANCE HAGEN, CASE NO. CGC-10-275582
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=z = 14 |] ASSOCIATED INSULATION OF
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20 || herein, as amended, now or in the future, or otherwise, admits, denies, and alleges as follows:

21 1. Pursuant to the provisions of California Code of Civil Procedure § 431.30, this

22 || answering defendant denies each, every and all of the allegations of the unverified complaint, and
23 || each and every cause of action contained therein, and the whole thereof, and denies that plaintiff(s)

24 || has/have sustained damages in the sum or sums alleged, in any other sum or sums whatsoever, or at

25 || all.
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NINTH AFFIRMATIVE DEFENSE
10. That at all times and places referred to in the Complaint, as amended, now or in the
future, plaintiffs were, or in the exercise of reasonable care should have been, aware of all
circumstances and conditions then and there existing and prevailing, but nonetheless knowingly,
voluntarily, and in full appreciation of the potential consequences thereof, exposed themselves to
whatever risks and dangers may have been attendant to such circumstances and conditions, thereby
freely and voluntarily assuming any and all risk(s) incident thereto, and thereby barring plaintiffs

from recovery herein.
TENTH AFFIRMATIVE DEFENSE
ll. At all times and places relevant to this action, plaintiffs failed to make reasonable

efforts to mitigate their injuries, loss and/or damages, if any.

ELEVENTH AFFIRMATIVE DEFENSE

12. Atal times material to this action, plaintiffs failed to use the products alleged in the
complaint in a foreseeable, proper and safe manner which would have otherwise been anticipated
and expected of an ordinary user. Such misuse of the products described in the Complaint by
plaintiffs was the sole, proximate and legal cause of plaintiffs’ injuries and damages, if any, thereby

barring plaintiffs from recovery herein.

TWELFTH AFFIRMATIVE DEFENSE

13, Atall times material to this action, the products described in the Complaint which
allegedly injured plaintiffs were, without this answering defendant’s knowledge, approval or
consent, and contrary to instructions and/or the custom and practice in the industry, altered, re-
designed, modified, or subjected to other treatment which substantially changed their character, such
that they were not being used, functioning and/or performing in a manner intended by their
manufacturer, and/or were not in substantially the same or similar condition as when they left the
manufacturer's and/or this answering defendant’s possession. If there was a defect in said products,

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which supposition is specifically denied by this answering defendant, such defect resulted solely
from such alteration, re-design, modification, treatment or other change therein, and not from any act
or omission by this answering defendant, thereby barring plaintiffs from recovery herein as against

this answering defendant.

THIRTEENTH AFFIRMATIVE DEFENSE
14. Plaintiffs are barred from recovery herein in that any and all products allegedly
supplied or distributed by this answering defendant were manufactured and/or produced in
conformity with specifications established and provided by the United States Government pursuant
to its War Powers as set forth in the United States Constitution, and that any defect in said products
was caused by deficiencies in said specifications, and not by any action or conduct on the part of this

answering defendant.

FOURTEENTH AFFIRMATIVE DEFENSE
15. Plaintiffs are barred from recovery herein in that all products allegedly manufactured
or distributed by this answering defendant were in conformity with the existing state of the medical,
scientific, and industrial knowledge, art, and practices, and, as a result, said products were not

defective in any manner.

FIFTEENTH AFFIRMATIVE DEFENSE
16. Atall times and places mentioned in the complaint, as amended, now or in the future,
plaintiff's were not in privity of contract with this answering defendant, and said lack of privity bars

plaintiffs’ recovery herein upon any theory of warranty.

SIXTEENTH AFFIRMATIVE DEFENSE
17. Plaintiffs failed to give this answering defendant timely and reasonable notice of any
alleged breach of contract or warranty, thereby barring plaintiffs from recovery herein.
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SEVENTEENTH AFFIRMATIVE DEFENSE

18. Atall times and places relevant to this action, plaintiffs waived whatever right they
might otherwise have had to claim a breach of warranty, in that plaintiffs failed to notify this
answering defendant of any alleged breach of warranty, express or implied, and if any alleged
defects existed in any product(s) manufactured or distributed by this answering defendants, plaintiffs
discovered or should have discovered said defect or non-conformity, if any existed, and failure to do
so within a reasonable period of time prejudices this answering defendant from being able to fully
investigate and defend the allegations made against it in the Complaint, as amended now or in the

future.

EIGHTEENTH AFFIRMATIVE DEFENSE
19. Plaintiffs’ breach of warranty claims are barred by written disclaimers and/or

exclusions contained on or in the labels or packaging of the products at issue in this action.

NINETEENTH AFFIRMATIVE DEFENSE

20. The Complaint, as amended now or in the future, and each and every cause of action
contained therein, fails to state facts sufficient to constitute “fraud,” “oppression,” or “malice,” as
these terms are used in Civil Code § 3294, and therefore fails to state a claim that would support

punitive damages.

TWENTIETH AFFIRMATIVE DEFENSE

21. The imposition of punitive/exemplary damages against this corporate defendant for
acts of a former and/or predecessor corporate entity would be a violation of due process of law, and

against public policy, under the various laws of the State of California and the United States.

TWENTY-FIRST AFFIRMATIVE DEFENSE
22. This answering defendant alleges that California Civil Code § 3294 violates the Due
Process and/or Equal Protection clauses of the California and/or United States Constitutions, is void

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because it is vague and ambiguous, constitutes an undue burden on interstate commerce, and violates
the Eighth Amendment to the United States Constitution. Accordingly, plaintiffs are barred from

any recovery thereunder.

TWENTY-SECOND AFFIRMATIVE DEFENSE

23. The liability of this answering defendant, if any, shall be apportioned in accordance
with the provisions of Civil Code §§ 1431, et seq., commonly known as the-Fair Responsibility Act
of 1986.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24. This answering defendant alleges on information and belief that at all times and
places relevant to this action, plaintiff was an employee of an employer or employers whose names
are presently unknown, and that any injuries or damages alleged in the Complaint, as amended now
or in the future, occurred while plaintiff was acting within the course of scope of such employment.
This answering defendant further alleges on information and belief that plaintiff's employer or
employers provided plaintiff with certain benefits in compliance with the terms and provisions of the
Workers' Compensation Laws of the State of California. The nature and extent of such Workers’
Compensation benefits that may have been provided is unknown, but when said benefits are
determined, leave to amend this answer and to set forth the details of said benefits will be sought. It
is further alleged that any and all injuries or damages complained of by plaintiff were solely and
proximately caused by, or resulted from, the negligence and carelessness of plaintiff's employer, his
co-workers, and/or his employer's agents, servants or employees. Therefore, this answering
defendant is entitled to an offset of any such benefits received or to be received by plaintiff against

any judgment which may be rendered in favor of said plaintiff, pursuant to the doctrine of Witt v.

Jackson (1961) 57 Cal.2d 57.
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TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. Plaintiffs are barred from recovery herein if at any time, past or present, plaintiff was
or is an employee of this answering defendant, including any of this answering defendant’s divisions
or subsidiaries, thereby creating conditions of compensation. The right to recover Workers’
Compensation benefits is plaintiffs’ sole and exclusive remedy as against this answering defendant,
pursuant to the provisions of California Labor Code §§ 3300, et seq., and/or §§ 3600, et seq... This
answering defendant is entitled to a judicial determination of any such employer-employee
relationship establishing such exclusive remedy and bar to recovery prior to any hearing or trial on

the merits in this matter.

TWENTY-FIFTH AFFIRMATIVE DEFENSE
26. Even if plaintiff was exposed to any products manufactured or distributed by this
answering defendant, which supposition is expressly denied, plaintiffs exposure to said products
would have been so minimal as to be insufficient to constitute a “substantial contributing factor” in

the causation of plaintiffs’ alleged injuries or disease, if any.

TWENTY-SIXTH AFFIRMATIVE DEFENSE
27. This answering defendant is not liable for any alleged failure to warn of any risks,
dangers or hazards in the use of any products or other goods that it allegedly distributed, sold,
supplied or delivered to plaintiff's employer(s), because said employer(s) had as great, if not greater,
knowledge about the nature of any risks, dangers or hazards than did this answering defendant, and,
unlike this answering defendant, said employer(s) were in a position to warn persons exposed to

such products of any such risks, dangers or hazards.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28. This answering defendant alleges that at all times relevant to the matters alleged in
the complaint, as amended now or in the future, all of plaintiff's employers, other than this answering

defendant were sophisticated and knowledgeable users of defendants’ products and said employers’

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negligence in providing said product(s) to their employees in a negligent, careless and reckless

manner was a superseding cause of plaintiffs’ injuries, if any.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE
29, To the extent the Complaint, or any cause of action alleged therein, is based upon an
allegation of strict products liability as against this answering defendant, said cause of action cannot
be maintained as this answering defendant was not a "seller" within the meaning of § 402A of the
Restatement (Second) of Torts, and consequently any claim of strict liability against this answering
defendant is barred pursuant to Monte Vista Development Corporation vs. Superior Court (1991)
226 Cal App.3d 1681.

TWENTY-NINTH AFFIRMATIVE DEFENSE,

30. This answering defendant denies that it was 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 of or member in any entity owning property, maintaining
premises, researching, studying, 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 any of the alleged products. This answering defendant is therefore not liable for any
acts, whether they be active or passive, or omissions of any entities to which this answering
defendant is or may be alleged to be a successor-in-interest, predecessor-in-interest, alter ego, or the

like.

THIRTIETH AFFIRMATIVE DEFENSE
31. This answering defendant did not and does not have a substantial percentage of the
market for any of the alleged products which allegedly caused the injuries and damages claimed by
plaintiffs. Furthermore, the products which allegedly caused the injuries and damages claimed by
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plaintiffs are not “fungible” in nature. As such, this answering defendant may not be held liable to

plaintiffs based upon any “market-share” or “enterprise” theories of liability.

THIRTY-FIRST AFFIRMATIVE DEFENSE
32. Pursuant to California Code of Civil Procedure § 430.10(c), there is another action

pending between the same parties on the same causes of action.

THIRTY-SECOND AFFIRMATIVE DEFENSE
33. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, are preempted by the Locomotive Boiler Inspection Act, 49 U.S.C.S. §§
20701, et seq., the Federal Safety Appliances Act, 49 U.S.C. § 20301, et seq., and all other

applicable federal statutes, laws or regulations.

THIRTY-THIRD AFFIRMATIVE DEFENSE
34. | The Complaint, as amended now or in the future, and any and all claims and causes of

action alleged therein, is/are barred by the rule against splitting a cause of action.

THIRTY-FOURTH AFFIRMATIVE DEFENSE
35. | The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred by plaintiffs’ failure to timely join one or more parties that are
indispensable and/or necessary to a resolution of the matters alleged in the Complaint, as required by

Code of Civil Procedure § 389.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

36. The Complaint, as amended now or in the future, and any and all claims and
causes of action alleged therein, is/are barred pursuant to the doctrines of res judicata and/or
collateral estoppel.

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THIRTY-SIXTH AFFIRMATIVE DEFENSE
37. | The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred because there is a defect and misjoinder of parties plaintiff

and/or defendant.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

38. This answering defendant alleges that at all times relevant to the matters alleged in
the complaint, as amended now or in the future, plaintiff(s) knew or should have known of the
inherent hazards, risks or potential dangers of the product(s) alleged to be at issue, and was therefore
a sophisticated and knowledgeable user of each such product. As such, this answering defendant is

not liable to plaintiff(s) for any alleged failure to warn of such hazards, risks or dangers.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE
39. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred by the "sophisticated user" doctrine pursuant to Johnson v.

American Standard (2008) 43 Cal.4th 56.

THIRTY-NINTH AFFIRMATIVE DEFENSE

40, This answering defendant alleges that the instant action is barred or, alternatively,
was merged into a prior cause of action for which plaintifi(s) has/have previously sued upon,
recovered, and dismissed with prejudice, thereby requiring a complete extinguishment of the instant

action due to the doctrines of res judicata and collateral estoppel.

FORTIETH AFFIRMATIVE DEFENSE

41. This answering defendant alleges that this Court lacks jurisdiction over this action.

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FORTY-FIRST AFFIRMATIVE DEFENSE
42, This answering defendant alleges that the damages alleged by plaintiff(s), if any, were
caused, either in whole or in part, by persons, firms or entities other than defendant and over which

defendant had neither control or the right of control.

FORTY-SECOND AFFIRMATIVE DEFENSE
43. This answering defendant alleges that if it is determined to be liable to plaintiff(s),
such liability is based on conduct which is passive and secondary to the active and primary wrongful
conduct of the other defendants to this action. This answering defendant is, therefore, entitled to

total, equitable indemnity from such other defendants.

FORTY-THIRD AFFIRMATIVE DEFENSE

44. This answering defendant alleges that plaintiff(s) lack(s) standing to sue defendant.

FORTY-FOURTH AFFIRMATIVE DEFENSE
45. This answering defendant alleges that if it has purportedly been named or served in
this action as a Doe Defendant, such effort by plaintiff(s) is invalid on the ground that plaintiff(s)
knew or should have known of the identity of this answering defendant and the alleged causes of

action against this answering defendant at the time of the filing of the complaint.

FORTY-FIFTH AFFIRMATIVE DEFENSE
46. 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, defenses

available. Defendant reserves the right to assert additional defenses in the event that they would be

appropriate.
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FORTY-SIXTH AFFIRMATIVE DEFENSE
47. If this answering Defendant supplied any product alleged to have been defective or
unmerchantable as alleged in the Complaint, it distributed such products in bulk to
distributors or other intermediaries, including Plaintiff’s or Plaintiff's Decedent’s employer. The
distributors or other intermediaries packaged, labeled and marketed the products. This Defendant,

therefore, owed no legal duty to Plaintiff or Plaintiff's Decedent.

FORTY-SEVENTH AFFIRMATIVE DEFENSE
48. Atall times and places relevant to this action, any product or products alleged by
plaintiffs to have caused their injuries were manufactured, installed, supplied or distributed in
compliance with all applicable health and safety statutes and regulations and/or in compliance with

specifications provided by third parties to this answering defendant.

FORTY-EIGHTH AFFIRMATIVE DEFENSE
49. Defendant did not cause unlawful, harmful or offensive contact with the person of the

plaintiff or the plaintiff's decedent. Plaintiff(s) is/are therefore barred from recovery herein.

FORTY-NINTH AFFIRMATIVE DEFENSE
50. Defendant did not act with the requisite intent with regard to the acts alleged by

plaintiff(s). Plaintiff(s) is/are therefore barred from recovery herein.

FIFTIETH AFFIRMATIVE DEFENSE
$1, Plaintiff or plaintiff's decedent consented, participated in, acquiesced in, and/or
concurred in all of the acts complained of by plaintiffs). Plaintiff(s) is/are therefore barred from

recovery herein.

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RESERVATION OF RIGHTS
This-answering defendant hereby reserves the right, upon. completion of its

investigation and discovery, to amend this answer to include such additional defenses as may be
appropriate.

WHEREFORE, defendant W:L. HICKEY SONS, INC. prays as follows:

1. That plaintiffs take nothing by reason of the operative Complaint on file herein;

2. That defendant W.L. HICKEY SONS, INC, be awarded its costs and expenses.of suit
incurred herein;

3 That if defendant W.L. HICKEY SONS, INC. is found liable, thai the degree of
responsibility and liability for the resulting damages be determined and apportioned in accordance

with California Civil Code §§ 1431, et-seq.; and

4, For such other and further relief as the Court may deem just and proper.
DATED: August 2.2010 PRINDLE, AMABO, GORTZ,
HILLYARD_-BARNES. HOLJZ LLP

want

KENNETH B. PRINDLE
Attorneys for Defendant, WAL. HICKEY SONS,
INC.

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Laurance Hagen vy. Associated Insulation of California, et al.
Case No.: CGC-10-725582

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I, the undersigned, declare: that Iam, and was at the time of service of the documents herein
referred to, over the age of eighteen (18)-years:and.am not a party to the within action; and lam
employed in the County of Los Angeles, California. My business address is 310 Golden Shore, 4th
Floor, Long Beach, California 90802.

On August 2, 2010, 1 electronically served the following document(s) via LexisNexis File
& Serve described as: ANSWER OF DEFENDANT W.L. HICKEY SONS, INC. TO
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 foregoing
is true-and correct.

Executed on August 22. , 2010, at Long Beach, California.
Meet eedie-
SARAH BOESCHEN

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