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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28 Eanelle Raa + Mantel LLP 235 Manigomery Sires, £70: Mer Sen Fanciun, CA ‘$4104 415) 954-400 oO BD wm IN A Sandra A. Edwards (State Bar No. 154578) sedwards@fbm.com Akshay R. Verma (State Bar No. 246803) ELECTRONICALLY averma@)fbm.com Farella Braun + Martel LLP FILED 235 Montgomery Street, 17th Floor Superior Court of California, San Francisco, CA 94104 County of San Francisco Telephone: (415) 954-4400 AUG 10 2010 Facsimile: (415) 954-4480 Clerk of the Court BY: JUDITH NUNEZ Attomeys for Defendant . Deputy Clerk BHP Minerals International, Inc. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO LAURANCE HAGEN, Case No. CGC-10-275582 Plaintiff, BHP MINERALS INTERNATIONAL, INC’S ANSWER TO COMPLAINT VS. ASSOCIATED INSULATION OF CALIFORNIA, et al., Defendants. Defendant BHP Minerals International, Inc. (“Defendant”) responds to the unverified complaint of plaintiff LAURANCE HAGEN (“Plaintiff”) for personal injury as follows: 1. Pursuant to Califomia Code of Civil Procedure § 431.30(d), this answering Defendant denies both generally and specifically cach and every allegation contained in Plaintiff's Complaint and all causes of action alleged therein, and particularly denies that Plaintiff has been damaged or will be damaged, either in the manner alleged or in any other manner, in the sum alleged, or in any other sum, as a result of and by reason of any acts, conduct or responsibility of this answering Defendant. 2. As further, separate and affirmative defenses, this answering Defendant alleges as follows: 259092332805.1 BHP MINERALS INTERNATIONAL, INC."S ANSWER TO COMPLAINT28 Parola Brau MeL LLP cats SSaeido0 FIRST AFFIRMATIVE DEFENSE Defendant alleges that said Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE Defendant alleges that the causes of action, if any, attempted to be stated and set forth in said Complaint are barred by the applicable statutes of limitations, including, but not limited to, the provisions of Code of Civil Procedure Sections 335.1, 338, and 340.2. THIRD AFFIRMATIVE DEFENSE Defendant alleges that the causes of action, if any, attempted to be stated and set forth in said Complaint are barred in whole or in part by the equitable doctrines of waiver, estoppel, and laches. FOURTH AFFIRMATIVE DEFENSE 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 and/or other fault bars or diminishes Plaintiff's recovery against Defendant. FIFTH AFFIRMATIVE DEFENSE 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 legal cause of the injuries and damages complained of by Plaintiff, if any there were. SIXTH AFFIRMATIVE DEFENSE 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. SEVENTH AFFIRMATIVE DEFENSE Defendant is informed and believes and thereon alleges that Plaintiff misused and abused the products referred to in said Complaint, and failed to follow instructions, and that such misuse, abuse and failure to follow instructions on the part of Plaintiff proximately caused and contributed to the injuries and damages complained of in said Complaint, if any there were. -2- . -2590912332805,1 BHP MINERALS INTERNATIONAL, INC.’S ANSWER TO COMPLAINT1$ 16 28 ares Brusn ~ Mansi LLP 238 Moutgonay Sues, Ub Floo San Francie, CA 94104 IDEN EIGHTH ABFIRMATIVE DEFENSE Defendant alleges that if there was any negligence proximately causing the injuries or damages sustained by Plaintiff, if any, such negligence, if any, was solely that of defendants, firms, persons, or entities other than Defendant. NINTH AFFIRMATIVE DEFENSE Defendant alleges that there is no privity between Plaintiff and Defendant. TENTH AFFIRMATIVE DEFENSE Defendant alleges that said Complaint and each cause of action therein is barred with respect to Defendant by the provisions of the Workers Compensation Act, including but not limited to Sections 3600, 3601, and 5300 of the Labor Code of the State of California. ELEVENTH AFFIRMATIVE DEFENSE Defendant alleges that if there was any negligence proximately causing the injuries or damages, if any, sustained by Plaintiff, such negligence, if any, is collateral negligence, as that term is used and defined in Restaternent 2d Torts, Section 426 and derivative authority. TWELFTH AFFIRMATIVE DEFENSE Defendant alleges that at the time of the matters referred to in the Complaint, Plaintiff was employed by an employer other than this answering Defendant and was entitled to and received workers’ compensation benefits from his employers; and that if there was any negligence proximately causing the injuries and damages sustained by Plaintiff, if any, such negligence, if any, was that of Plaintiff's employers. THIRTEENTH AFFIRMATIVE DEFENSE Defendant alleges that Plaintiffs claims, and cach of them, and this action, are preempted by federal statutes and regulations governing work place exposure to asbestos. FOURTEENTH AFFIRMATIVE DEFENSE Defendant alleges that said Complaint, to the extent that it seeks exemplary or punitive damages pursuant to California Civil Code Section 3294, violates Defendant's right to procedural due process under the Fourteenth Amendment of the United States Constitution, and Article 1, -3- 25909\2332805.1 BHP MINERALS INTERNATIONAL, INC.’S ANSWER TO COMPLAINTBRB WoW 13 15 28 area rau ¢ Mate LL 135 tdpasgomery Sirk. 17h Foor San Fanci, CA 96108 ais} 956-4400 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. FIFTEENTH AFFIRMATIVE DEFENSE Defendant alleges that said Complaint, to the extent that it seeks punitive or exemplary damages pursuant to California Civil Code Section 3294, violates Defendant’s right to protection from “excessive fines” as provided in the Eighth Amendment of the United States Constitution and Article 1, Section 17 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 the Constitution of the State of California, and therefore fails to state a cause of action supporting the punitive or exemplary damages claimed. SIXTEENTH AFFIRMATIVE DEFENSE Defendant alleges that said Complaint, and each cause of action therein, fails to state facts sufficient to warrant an award of punitive or exemplary damages against this Defendant. SEVENTEENTH AFFIRMATIVE DEFENSE Defendant alleges that at all relevant times, Plaintiff's employers were sophisticated users of asbestos-containing products, and that said employers were aware of the dangers, if any, of asbestos-containing products, and that said employers’ negligence in providing the products to their employees in a negligent, careless and reckless manner was a superseding intervening cause of Plaintiff’s injuries, if any. EIGHTEENTH AFFIRMATIVE DEFENSE Defendant alleges that at all relevant times Plaintiff was a sophisticated user of asbestos- containing products, that Plaintiff was aware, or should have been aware, of the dangers, if any, of asbestos-containing products, and that the sophisticated user doctrine is a complete bar to Plaintiff's claims against Defendant as a matter of law. Johnson v. American Standard, Inc., etal. (2005) 34 Cal.Rpir.3d 863. NINETEENTH AFFIRMATIVE DEFENSE Defendant alleges that the “peculiar risk” doctrine is not applicable to the causes of action attempted to be stated and set forth against Defendant, because the injuries and damages -4- 25909\2332805.1 BHP MINERALS INTERNATIONAL, INC.’S ANSWER TO COMPLAINT14 16 28 Fugly Bra # Mare LLP 235 Montgomery Strat. {7h Foor Bea Fateles, CA 94108 1415) 9544400 complained of in the Complaint, if any, arose in the course and scope of Plaintiff's employment by an independent contractor. ‘TWENTIETH AFFIRMATIVE DEFENSE 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-FIRST AFFIRMATIVE DEFENSE Defendant alleges that Plaintiff failed to exercise due diligence to mitigate his losses, injuries 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. TWENTY-SECOND AFFIRMATIVE DEFENSE Defendant alleges that the provisions of California Civil Code Section 1431,2 are applicable to the Complaint and each cause of action therein. TWENTY-THIRD AFFIRMATIVE DEFENSE Defendant alleges that unforeseen and unforeseeable acts and omissions by others constitute a superseding, intervening cause of Plaintiff's injuries, ifany. TWENTY-FOURTH AFFIRMATIVE DEFENSE Defendant contends that Plaintiff has released, settled, entered into an accord and satisfaction, or otherwise compromised his claims herein, and accordingly, said claims are barred. TTWENTY-FLFTH AFFIRMATIVE DEFENSE The claims asserted in said Complaint have been settled, compromised or otherwise discharged and Defendant is due a set off. TWENTY-SIXTH AFFIRMATIVE DEFENSE To the extent that Plaintiff has previously filed a dismissal in court dismissing with prejudice all of his asserted claims, causes of action, and other theories of liability against Defendant, the matters alleged in said Complaint are barred by retraxit. -5- 25909'2332805.1 BHP MINERALS INTERNATIONAL, INC.’S ANSWER TO COMPLAINT1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 2 Plaintiff's claims herein are barred based on the primary right and res judicata doctrines 3 | which prohibit splitting a single cause of action into successive suits, and seeking new recovery 4 | for injuries for which the plaintiff was previously compensated by alleged joint tortfeasors. 5 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 6 Defendant alleges that the causes of action, if any, attempted to be stated and set forth in 7 | said Complaint are barred by applicable statutes of repose, including statutes of repose in other 8 || states that are applicable to this action pursuant to California Code of Civil Procedure 9 |. Section 361. 10 TWENTY-NINTH AFFIRMATIVE DEFENSE i Defendant presently has insufficient knowledge and information upon which to form a 12 } belief as to whether it may have additional, as yet unstated, affirmative defenses available. 13 4 Defendant reserves the right to assert additional affirmative defenses in the event discovery or 14 | clarification of Plaintiff's claims indicates they would be appropriate. 15 16 WHEREFORE, Defendant prays for judgment as follows: 17 1. That Plaintiff takes nothing by reason of the Complaint or any claims stated 18 || therein; 19 2. That the Complaint and each cause of action contained therein be dismissed with 20 | prejudice as to Defendant; 21 3. That Defendant recover its costs, expenses and attorneys’ fees incurred herein; and 22 4, That the Court grants such other and further relief as it may deem just and proper. 23 | Dated: August 10, 2010 FARELLA BRAUN + MARTEL LLP 24 25 ehe Co Cte dra A. Edwards 26 Attorneys for Defendant 27 BHP Minerals International, Inc. 28 Bela oon # Mote -6- 2590912332805. Bes Momgomery Sire, £7 Host Sun Festeisca, CA 94108 Sete BHP MINERALS INTERNATIONAL, INC.’S ANSWER TO COMPLAINTBow il 12 is 17 28 Farlls Braun + Manel LLP 205 Mouigomery tras, {7th Floor Sim Fancico, CA 3408 4415) 954-1400 PROOF OF SERVICE - ELECTRONIC Laurance Hagen v. Associated Insulation of California, et al. San Francisco Superior Court Action No. CGS-10-275582 Lam employed in the County of San Francisco, State of California. I am over the age of eighteen and not a party to this action. My business address is Russ Building, 235 Montgomery Street, iv Floor, San Francisco, California 94104 and my electronic notification address is shunt@{fbm.com. On August 10, 2010, I electronically served through LexisNexis File & Serve the following document(s): BHP MINERALS INTERNATIONAL, INC.’S ANSWER TO COMPLAINT on the parties designated on the transaction receipt from LexisNexis File & Serve, a copy of which is kept with our file. The documents were served electronically and the transmission was reported as complete and without error. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 10, 2010, at San Francisco, California. eaten Susan C. Hunt -7- 259092332805. BHP MINERALS INTERNATIONAL, INC.’S ANSWER TO.COMPLAINT