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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

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John K. Kirby, State Bar No. 104590
Sarah Valentine, State Bar No, 157827

BURNHAM BROWN ELECTRONICALLY
A Professional Law Corporation

P.O, Box 1 19 : sopekr IL ED
Oakland, California 94604 County of San Francisco
1901 Harrison Street, 11th Floor , AUG 12 2010
Oakland, California 94612 Clerk of the Court
Telephone: (510) 444-6800 BY: JUDITH NUNEZ

Facsimile: (510) 835-6666 Deputy Clerk

Attorneys for Defendant
WASHINGTON GROUP INTERNATIONAL, INC.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION
LAURANCE HAGEN, ASBESTOS
Plaintiff, No, CGC-10-275582
vy. DEFENDANT WASHINGTON GROUP
INTERNATIONAL, INC.'S ANSWER
ASSOCIATED INSULATION OF TO PLAINTIFF LAURANCE
CALIFORNIA; Defendants as Reflected on HAGEN’S COMPLAINT FOR

Exhibit 1 attached to the Summary Complaint PERSONAL INJURY—ASBESTOS
herein; and DOES 1-8500.,

Defendants.

Complaint Filed: June 2, 2010

Defendant WASHINGTON GROUP INTERNATIONAL, INC. (“Defendant”), in
answer to Plaintiff's complaint, denies generally and specifically, each and every, all and
singular, the allegations of said complaint, and each cause of action thereof, and further deries
that Plaintiff LAURANCE HAGEN (“Plaintiff”) has been damaged in any sum or sums or at all.

WHEREFORE, this answering Defendant asserts the following affirmative defenses:

AFFIRMATIVE DEFENSES

1. ° A8a first affirmative defense to each cause of action, the complaint does not state.

facts sufficient to constitute a cause of action against this Defendant.

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DEF. WASHINGTON GROUP INTERNATIONAL, INC.'S ANSWER TO Case No. CGC-16-273582
PLAINTIFF’S.COMPLAINT FOR PERSONAL INJURY—ASBESTOS :=

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2. As asecond affirmative defense, each cause of action is barred by the applicable statute
of limitations, including but not limited to, California Code of Civil Procedure sections 340.2 and 361.

3. Asa third affirmative defense to each cause of action, Plaintiff failed to mitigate
or make reasonable efforts to mitigate his damages, if any, as required by law...

4, As a fourth affirmative defense to each cause of action, the damages sustained by
Plaintiff, if any, were caused, in whole or in part, by the negligence, strict liability or fault of
others for which this Defendant is not liable or responsible.

5 As a fifth affirmative defense to each cause of action, Plaintiff, by his actions,
knew of and appreciated the risks involved, and voluntarily and reasonably assumed the risk of
said injuries, proximately causing or contributing to the damages alleged.

6. Asa sixth affirmative defense to each cause of action, if Plaintiff sustained
injuries attributable to the use of any product, which allegations are expressly denied, the injuries
were caused in whole or in part by the unreasonable, unforeseeable and inappropriate purpose
and/or improper use which was made of the product.

7. As a seventh affirmative defense to each cause of action, Plaintiff was partially, if
not wholly, negligent or otherwise at fault on his own. part pursuant to the doctrine of
comparative fault, and Plaintiff is barred from recovery of that portion. of the damages directly
attributable to his proportionate share of fault.

8. Asan eighth affirmative defense to cach cause of action, Defendant alleges that
the products were.as safe as could be designed under the state of technology and medical and
scientific knowledge existing at the time the products were manufactured.

9, Asa ninth affirmative defense to each cause of action, Defendant alleges that any
claim for punitive or exemplary damages is barred by the United States Constitution, including the
First, Fifth, Eighth and Fourteenth Amendments, and by the Califommia Constitution, including
Article I, and that Civil Code section 3294 is invalid on its face or as applied in-this action.

10. Asa tenth affirmative defense to each cause of action, at the time and place of the

happening of the incident alleged in the complaint, Plaintiff LAURANCE HAGEN was

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DEF. WASHINGTON GROUP INTERNATIONAL, INC’S-ANSWER TO Case No. CGC-10-275582
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employed by various employers, and was working within the course and scope of employment
and certain sums have been or will be paid under the applicable provisions of the Labor Code
and any award made must be reduced by the payments.

LL... As.an.eleventh affirmative defense to each cause of action, Defendant alleges that.
the action is barred under the “primary right” doctrine on the basis that causes of action may not
be split by the doctrines of res judicata and collateral estoppel and by virtue of Plaintiff's
prosecution and/or settlement of his claims in prior-actions.

12.’ Asa twelfth affirmative defense to each cause of action, Defendant alleges that if
Plaintiff worked for this answering Defendant then Plaintiff's claim is batred by the exclusive
remedy provisions of the appropriate state or federal law.

13. Asa thirteenth affirmative defense to each cause of action, Defendant alleges that
Plaintiff was provided and/or was covered by workers’ compensation insurance by each of his
employers, and Plaintiff, bis employer and/or employers were subject to the provisions of the
Workers’ Compensation Act of the State of California. Accordingly, Plaintiff's actions were
barred by the doctrine articulated in Privette v. Superior Court, 5 Cal, 4th 689 (1993),

14. _ As a fourteenth affirmative defense to each cause of action, this Defendant
alleges that Plaintiff assumed whatever risk or hazard, if any, that existed at the time and place
of the alleged accident set forth in Plaintiffs complaint, and said assumption of risk or hazard is
imputed to said Plaintiffs.

15. Asa fifteenth affirmative defense to each cause of action, the damages sustained
by Plaintiff or damages that will be sustained by Plaintiff, if any, have been and will be
proximately caused, in whole or in part, by unforeseen superseding and intervening causes over
which Defendant had no control, thereby barring or diminishing recovery on the complaint
against Defendant.

16. Asa sixteenth affirmative defense to each cause of action, Plaintiff
acknowledged, ratified, consented to and acquiesced in the alleged-acts or omissions, if any, of

this Defendant, thus barring Plaintiff's recovery.

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DEF. WASHINGTON GROUP INTERNATIONAL, INC.'S ANSWER TO Case No. CGC-16-375582
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17. | As aseventeenth affirmative defense to each cause of action, Plaintiff
LAURANCE HAGEN and/or his employer(s) were sophisticated users and/or learned
intermediaries of the products and equipment referred to by Plaintiff in the complaint.
Accordingly, Defendant owed no duty to Plaintiff with respect.to any warning relating to
Defendant’s products.

18. As an eighteenth affirmative defense to each cause of action, the injuries and
damages sustained by Plaintiff, if any, were solely and. legally caused by the modification,
alteration or change of the product referred to in the complaint and said modification, alteration
or change was performed by persons or entities other than this answering Defendant and without
its knowledge or consent.

19. As anineteenth affirmative defense to each cause of action, Defendant presently
has insufficient knowledge or information ’on which to forma belief as to whether it may have
additional, as yet unstated, defenses available. Defendant reserves herein the right to assert
additional defenses in the event discovery indicates that they would be appropriate.

20. As a twentieth affirmative defense to each cause of action, the provisions of the
“Fair Responsibility Act of 1986” (commonly known as Proposition 51, Civil Code sections
1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable to this action.to the
extent that Plaintiff's injuries and damages, if any, were legally caused or contributed to by the
negligence or fault of persons or entities other than this answering Defendant.

21, As a twenty-first affirmative defense to each cause of action, the asbestos
products, if any, for which Defendant may have any legal responsibility were manufactured, .
packaged, distributed, and/or sold in accordance with contract specifications imposed by Co-
Defendant, by the.U.S. Government, by Plaintiff's employers, and/or by third parties yet to be
identified.

22. Asa twenty-second affirmative defense to each cause of action, Plaintiff's
complaint, and each cause of action therein, is barred by the doctrine of laches.

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DEF. WASHINGTON GROUP INTERNATIONAL, INC'S ANSWER TO Case No. CGC-10-275582
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23, Asa twenty-third affirmative defense to each cause of action, Plaintiff's
employers were partially, if not wholly, negligent, or otherwise at fault on his own part pursuant

to the doctrine of comparative negligence, and Plaintiff should be barred from recovery of that

portion of the damages.directly attributable to-Plaintiff's employers’.proportionate.share.of-the...........

negligence or fault. Witt v. Jackson, 57 Cal. 2d: 57 (1961).

24. Asatwenty-fourth affirmative defense to each cause of action, Plaintiff's
complaint, and each cause of action therein, is vague, ambiguous, unintelligible and uncertain.

25." Asa twenty-fifth affirmative defense to each cause of action, Plaintiff has failed
to'join all persons and parties needed for a just adjudication of this action.

26. As a twenty-sixth affirmative defense, with respect to some or all of Plaintiff's
alleged claims and causes of action, this Court lacks jurisdiction,

27. As a twenty-seventh affirmative defense, with respect to some or-all of Plaintiff's
alleged claims and causes of action, in the interest of substantial justice, the action should b2
heard in a forum outside this state.

WHEREFORE, this-answering Defendant prays for judgment as follows:

1. That Plaintiff take nothing by reason of bis complaint on file herein;

2. © For costs of suit incurred herein; and

3. For such other and further relief as the Court deems just and. proper.

DATED: August 11,2010 BURNHAM BROWN

Loe

SARAH VALENTINE

Attorneys for Defendant

WASHINGTON GROUP INTERNATIONAL,
INC.

1023158

5

DEF, WASHINGTON GROUP INTERNATIONAL, INC.'S8 ANSWER TO Case No, CGC-10-275382
PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY-—-ASBESTOSRe: Laurence Hagen v. Asbestos Defendants
Court: San Francisco County Superior
Action No: CGC-10-275582

PROOF OF SERVICE OF ELECTRONIC SERVICE

T declare that I am over the age of 18, not a party to the above-entitled action, and
am an employee of Burnhath Brown whose business address is 1901 Harrison Street,
11 Floor, Oakland, Alameda County, California 94612 (mailing address: Post Office
Box 119, Oakland, California 94604).

On the date executed below, I electronically served the document(s) via
LexisNexis File & Serve described as:

DEFENDANT WASHINGTON GROUP INTERNATIONAL, INC'S
ANSWER TO PLAINTIFF LAURANCE HAGEN’S COMPLAINT
FOR PERSONAL INJURY-—~ASBESTOS

on 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 and was executed on August 11, 2010, at

Oakland, California. } War
. . éshe Ochoa

1020914

PROOF OF SERVICE CASE NO, CGC-10-275582