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  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview 
						
                                
Preview

                                SNIDER, Di

HEV.
OE

STEPHEN C. SNIDER, SBN 099557
SNIDER, DIEHL & RASMUSSEN, LLP
Attorneys at Law

1111 W. Tokay Street ELECTRONICALLY
P.O. Box 560
Lodi, CA 95241 FILED.
(209) 334-5144 Superior Court of California,
309) 333-1034 (fax) County of San Francisco

" AUG 02 2010
Attorneys for Defendamt, J. R. SIMPLOT COMPANY Clerk of the Court

BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO.

LAURANCE HAGEN, Case No.: 10-275582

Plaintiff,
DEFENDANT. J. R. SIMPLOT
VS. ) COMPAN NSWER TO
COMPLAINT FOR PERSONAL

INJURY --

J

)

)

)

)

ASSOCIATED INSULATION OF ) SBESTOS

CALIFORNIA; Defendants as Reflected on}

Exhibit i attached to the Summary Complaint )

herein; and DOES 1-8500, 3
)
)
)
)
)
)
)

Defendants.

| responds to the unverified Complaint, (COMPLAINT), of plaintiff, LAURANCE HAGEN.

| C/PLAINTIFF"), as follows:

GENERAL DENIAL
SIMPLOT generally denies each and every allegation in plaintiff's unverified
Complaint as permiticd by California Code of Civil Procedure Section 431.30. SIMPLOT

further denies that plaintiff is entitled to recover damages of any kind in any amount whatsoever.

-1-

ee Defendant, 3, R. Simplot Company's, Answer to Complain

Defendant, J. R. SIMPLOT COMPANY, {hereinafter referred to as "SIMPLOT"},

[
|
|i FIRST AFFIRMATIVE DEFENSE

2 The Complaint, and each cause of action presented therein, fails to state facts

3 || sufficient to constitute a cause of action against SIMPLOT.

4 SECOND AFFIRMATIVE DEFENSE

> Plaintiff has unreasonably delayed the commencement of this action to the

prejudice of SIMPLOT whereby the Complaint and each cause of action presented therein are

6

7 | parred by the doctrine of laches.
8 THIRD AFFIRMATIVE DEFENSE
9

Asa result of the acts, conduct, and omissions of plaintiff. the Complaint, and

10 each of the actions presented therein, are barred by the doctrine of estoppel.

u FOURTH AFFIRMATIVE DEFENSE

As a result of the acts, conduct and omissions of plaintiff, each cause of action

8 presented in the Complaint has been waived.

" FIFTH AFFIRMATIVE DEFENSE \
: The Complaint, and each cause of action presented therein, are barred on the
grounds that plaintiff's alleged injuries, if any, were actually and proximately caused by

18 plaintiff's contributory negligence.

19 SIXTH AFFIRMATIVE DEFENSE |
2 The Complaint, and each cause of action presented therein, are barred on the |
4 grounds that plaintiff knew, or in the exercise of ordinary care should have known. of the risk of
39 || the injuries or damages. alleged in the Complaint. if any, and nevertheless did freely and

‘oluntarily assume said risk, and this understanding proximately caused and contributed to the

24 |] losses, injuries, or damages, if any, alleged by plaintiff.

a5 SEVENTH AFFIRMATIVE DEFENSE

26 The acts. conduct and omissions by plaintiff actually and proximately caused the
27 |/ alleged damages and injuries, if any, of which plaintiff complains. SIMPLOT has no liability to

28 || plaintiff for the proportion of fault attributable to plaintiff.

PUL} :
LLP! :
ATIORNEYS AT Law, j
HHL W. Toway STREET
S60

P.O. BO

we Defendant, J. R. Simpiot Company's, Answer to Complaint i1 EIGHTH AFFIRMATIVE DEFENSE
2 SIMPLOT alleges that each of the parties to this action. other than SIMPLOT,
3 | and others whose identities are presently not known to SIMPLOT, were negligent or legally
4 |l responsible or otherwise at fault for the damages alleged in the Complaint and cach cause of
3 action presented therein. Therefore, SIMPLOT requests that in the event plaintiff recovers i
6 against SIMPLOT, whether by settlement or judgment, an apportionment of fault be made by the
7 Court or jury as to all parties. SIMPLOT further requests a judgment and declaration of :
8 | indemnification and contribution against all those parties or persons in accordance with the
9 apportionment of fauit.
e NINTH AFFIRMATIVE DEFENSE

" Hf plaintiff has suffered any damage, which SIMPLOT expressly denies, i
: SIMPLO7 alleges that plaintiff's recovery for those damages is barred by his failure to mitigate |

8 those damages. TENTH AFFIRMATIVE DEFENSE

" Plaintiff's damages, if any, were proximately caused by an unforeseeable,

. independent, intervening, and/or superseding event beyond the control, and unrelated to any i
7 conduct of SIMPLOT. SIMPLOT’S actions, if any, were superseded by the negligence and |
8 wrongful conduct of others. :
9 ELEVENTH AFFIRMATIVE DEFENSE

2 The Complaint and each cause of action presented therein are vague, ambiguous

24 and uncertain. {

2 TWELETH AFFIRMATIVE DEPENSE

23 | | This Court lacks jurisdiction over the subject matter of this action and further

24 I tacks jurisdiction over SIMPLOT.

28 THIRTEENTH AFFIRMATIVE DEFENSE

26 SIMPLOT is informed and believes and thereon alleges that the acts and

27 |; omissions of plaintiff and his employer or emplovers, including said emplover's agents, servants, :

28 and employees, acting within the course and scope of their employment, and others contributed

!
xD) F Defendant, J. R. Simplot Company's, Answer te ComplaintSNIDE!

ADTORNY
FLEW. Tors

PC

Long
(209) S144
{RANK 209) 333-1034

. DIEM
& RASMUSSEN, LLP

to the alleged damages, injury, or Joss complained of by plaintiff. SIMPLOT requests the Court

i
to apply the principles of Witt v. Jackson and the subsequent cases modifying that decision so as

to permit the Court or jury to apportion liability according to fault and to grant SIMPLOT a
money offset against any damages awarded to plaintiff.

{

I FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff did not reasonably rely on any representation, disclaimer, warning. or

other act or omission of SIMPLOT.
FIFTEENTH AFFIRMATIVE DEFENSE

All conduct and activities of SIMPLOT alleged in the Complaint conform to
statutes, government regulations, and industry standards based upon the state of knowledge
existing at the time alleged in the Complaint.

SIXTEENTH AFFIRMATIVE DEFENSE

SIMPLOT had no duty to warn employees of third parties, including plaintiff.
about the potential dangers, if any, of the product or its component parts manufactured,
packaged, labeled, used, applied, and/or removed by said third parties.

SEVENTEENTH AFFIRMATIVE DEFENSE

Plaintiff's employer or employers, including said employer's agents. servants and
employees, by reason of the warnings and handling information given to them and their own
long-standing and continuous experience with any product or its component parts, if any,
referred to in the Complaint, are and were sophisticated intermediaries and/or sophisticated users
of any such product or its component parts, and thereby acquired a separate and affirmative duty
}/ to warn their employees, including plaintiff, of any alleged potential harmful effects trom the use
or misuse of said product or its component parts. By reason of the foregoing, said employer's
failure to discharge said duty directly and proximately cause any and all damages and injuries, if

jany, complained of by the plaintiff.

4.

pees Detendant, 1. R. Simpiot Company's, Answer to Compiaint4)
. acer]
P-0, Box S60}
foun. CA 95241}
(209) 334.5144
(ran yt209) 335-1034

EIGHTEENTH AFFIRMATIVE DEFENSE

Any product or its component parts supplied by SIMPLOT, if any, referred to in
the Complaint, to plaintilf. his employer or employers, or others, were produced in conformity
with the existing state of the art, and the alleged hazards or dangers of said product or its
component parts, if any. were created by the conduct of plaintiff, bis employer or employers, and
| others.

NINETEENTH AFFIRMATIVE DEFENSE

SIMPLOT denies any and ail liability to the extent that plaintiff asserts
SIMPLOT'S alleged liability as an agent, servant, employee. and/or joint venturer, or 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, sub-
sidiary, whole or partial owner, wholly or partially owned entity, or member in an entity
designing. constructing, manufacturing. assembling. installing, adjusting, working on, replacing,
furnishing, distributing, leasing, buying, offering for sale, selling, inspecting, scrvicing,
contracting for installation, repairing, marketing. or warranting any product or its component
parts, if any, referred to in the Complaint.

TWENTIETH AFFIRMATIVE DEFENSE

The Complaint and each cause of action presented therein are barred on the
grounds that plaintiff's employer or employers knowingly entered into and engaged in the
operations, acts and conduct alleged in the Compiaint, and voluntarily and knowingly assumed
all of the risks incident to said operations, acts and conduct and voluntarily and knowingly
assumed ail of the risks incident to said operations, acts and conduct at the time and place
mentioned in the Complaint,

TWE

oPY-FIRST AFFIRMATIVE DEF

The Complaint, and each cause of action presented therein, are barred on the

grounds that plaintiff failed to join indispensable parties and the Complaint is thereby defective.

wees Defendant, J. R. Simpiot Company’ s, Answer t Complaint4 Si4d
{oan p29} 334-1034

TWENTY-SECOND AFFIRMATIVE DEFENSE

Plaintiff consented toe each of the acts which are alleged to have resulted in
plaintiff's injuries and each of the consequences or effects thereof, if any. and plaintiff is there-
fore barred in whole or in part from recovering on the Complaint and each cause of action

presented therein.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Plaintiffs claims for damages are due, if at all, due to the breach of warranties by

others.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Liability for plaintiffs damages. if any. rest solely with the strict product liability
of others.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

SIMPLOT alleges that at the time of the injuries alleged in the Complaint.
plaintiff was employed and was entitled to receive worker's compensation benefits from his
employers, that entities other than SIMPLOT which were his employers were negligent in and
about the matters referred to in the Complaint; and that such negligence on the part of said
employers
proximately and concurrently contributed to the losses or damages complained of by plaintiff, if
there were any. By reason of the foregoing, SIMPLOT is entitled to an offset, in the amount of
all such benefits, including any judgment rendered in favor of plaintiff.

TWENTY-SINTH AFFIRMATIVE DEF

If plaintiff has received, or in the future may receive, worker's compensation
benefits under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the Complaint, then in the event SEMPLOT is held to be liable to
plaintiff. SIMPLOT is entitled to an offset in the amount of all such benefits, against any

damages awarded to piaintiff.

-6-

peels Defendant. J. R. Simpiot Company’ s, Answer to CompiaintSNIBER, DIEM:
& RASML

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

The Complaint and each cause of action presented therein are barred by the

applicable statute of limitations. including, but not limited to, California Code of Civil Proc

edure

Section 335 through 365, inclusive of all subdivisions, and California Commercial Code Section

2725, also in particular. C.C.P. Section 340(3) and 340.2.
TWENTY-EIGHTH AFFIRMATIVE DEPENSE

Any and all liability, responsibility and/or obligation of SIMPLOT has been
discharged pursuant to the United States Bankruptey Code and Order of the United States

Bankruptcy Court.

TWENTY-NINTH AFFIRMATIVE DEFENSE

The liability of SIMPLOT, if any, has been discharged as the result of the
confirmation of a plan pursuant to the U.S. Bankruptcy Code.

THIRTIETH AFFIRMATIVE DEFENSE

Plaintiff's Complaint is barred by the statute of limitations parsuant to Title 45

ULS.C. Section 56.
THIRTY-FIRST AFFIRMATIVE DEFENSE

Plaintiff's Complaint, and each and every cause of action therein, fails to state

facts sufficient to constitute a cause of action against SIMPLOT under Sindell v. Abbott

Laboratories, 26 Cal. 3d 588, 607 P. 2d 924, 163 Cal. Rptr. 132 (1980), or any other so-cal

rule of “enterprise liability” or “market share Liability”.

THIRTY-SECOND AFFIRMATIVE DEFENSE

Plaintiff is barred from seeking recovery as to this defendant based upan a t!

of peculiar risk.

THIRTY-THIRD AFFIRMATIVE DEFENSE

SIMPLOT did not own or control the premises as alleged in plaintiffs Com

-7-

Bees Defendan, J. R. Simplot Company's. Answer to Complaint

ed

heory

faint.SNIDER, DHEHL,

LP

& RAS4

@200) 3534-51441]

THIRTY-FOURTH AFFIRMATIVE DEFENSE

The Complaint filed by plaintiff is not sufficient to meet the requirements of due

process of law.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

The Complaint of plaintiff does not meet the requirements of the California Code
ot Civil Procedure Section 425.10{a).

THIRTY-SIXTH AFFIRMATIVE DEFENSE

This answering defendant did not have control over any dangerous condition

alleged by plainuff,
THIRTY-SEVENTH AFFIRMATIVE DEFENSE

This answering defendant did not act, or fail to act, in a manner that affirmatively
contributed to plaintiff's injury.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

j

This answering defendant exercised reasonable care in maintaining its premises.

THIRTY-NINTH AFFIRMATIVE DEFENSE

Plaintiff was allegedly injured in the course and scope of his employment as an
employee of an independent contractor, SIMPLOT did not know and should not have known of
any latent or concealed pre-existing hazardous condition on its property and/or the independent
contractor did know and/or could have reasonably discovered any alleged hazardous condition
on SIMPLOT'S property.

FORTIETH AFFIRMATIVE DEFENSE

! SIMPLOT did not retain control over any part of the work performed by
plaintiff's independent contractor employer.

FORTY-FIRST AFFIRMATIVE DEFENSE

To the extent that SIMPLOT did retain any control over any part of the work,
which supposition is denied by SIMPLOT, said retained control was not exercised in a manner

ibat affirmatively contributed to plaintiff's injury.

-Be

(PaXY BOY ASHNOSET) ores Defendant, J. R. Simptot Company's, Answer to Complaint1 FORTY-SECOND AFFIRMATIVE DEFENSE
2 To the extent that there was a safety hazard on SIMPLOT'S premises, which
3 || supposition is denied by SIMPLOT, the danger was so obvious that plaintiff could reasonably
4 [have been expected to have seen it.
3 FORTY-THIRD AFFIRMATIVE DEFENSE
6 To the extent there was a hazardous condition on SIMPLOT'S property, which
7 supposition SIMPLOT denies, SIMPLOT warned plaintiff's independent contractor emplover of
8 any such hazard.
9 FORTY-FOURTH AFFIRMATIVE DEFENSE
10 SIMPLOT did not retain contro! over the work and, therefore, is not to be i
u derivatively or vicariously liable for injuries contemporaneously inflicted by plaintiff's :
@ independent contractor employer or other independent contractors or their employees.
8 WHEREFORE, SIMPLOT prays for judgment as follows:
“ 1. That plaintiff take nothing by reason of the Complaint or any claims stated :
8 therein;
16
UW 2. That the Complaint and each cause of action contained therein be dismissed
18 with prejudice against SIMPLOT;
19 3. That SIMPLOT recover its costs, disbursements, expenses, and attorney's fees :
2 herein; and,
4 4. That the Court grant such other and further relief as it may deem just and i
22. |) Proper.
4 DATED: July Z4, 2010.
a4 |i SNIDER, DIEHL & R! SSEN, LLP
2 fp cry
26 By § cPHEN C. SNIDER
27 Attorneys for Defendant. _ :
JR. SIMPLOT COMPANY !
28
. u -9-
weagbwy SEO || cscs pendant 1 A Spins Gonpans"a Answer ComplainGos SSeatas,
teanjaue) B03

PROOF OF SERVICE--ELECTRONIC)
STATE OF CALIFORNIA, COUNTY OF SAN JOAQUIN:

Iam a resident of the County aforesaid; I am over the age of eighteen vears and not a

i| party to the within above-entitled action; my business address is:

1111 W. Tokay Street, Lodi, CA, 95240; (209) 334-5144

On July 26, 2010, } served the foregoing document, described as: DEFENDANT J. R.

SIMPLOT COMPANY'S, ANSWER TO COMPLAINT FOR PERSONAL INJURY--
ASBESTOS on the interested parties to this action by submitting an electronic version of the
document through LexisNexis/FileAndServe.

I declare under penalty of perjury, that the foregoing is true and correct.

Executed on July 26, 2010, at Lodi, California.

iat

SANDRA WAGRER™

-10-

ore Defendant, J. R. Simplot Company's, Answer to Complaint