Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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                                J | Mark S. Kannett (SB #104572)
Paul S. Lecky (SB # 154480)
2 BECHERER KANNETT & SCHWEITZER ELECTRONICALLY
3 || 1255 Powell Street s F I L ED /
. . superior Court of California,
Emeryville, CA 94608 County of San Francisco
4 | Telephone: (510) 658-3600 AUG 09 2010
5 Facsimile: (510) 658-1151 Clerk of the Court
BY: JUDITH NUNEZ
6 || Attorneys Defendant Deputy Clerk
7 JOHNSON CONTROLS, INC.,
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 | LAURANCE HAGEN CASE NO. CGC-10-275582
11
Plaintiff, JOHNSON CONTROLS, INC.’S ANSWER TO
2 PLAINTIFF’S COMPLAINT FOR PERSONAL
13 vs. INJURY - ASBESTOS
14 ASSOCIATED INSULATION OF CALIFORNIA et
al.,
5
6 Defendants.
7 COMES NOW, defendant, JOHNSON CONTROLS, INC. (“JCI”), in answer to plaintiff's
8 Complaint for Personal Injury and Loss of Consortium (“Complaint”) on file herein and by virtue
19 of the provisions of Code of Civil Procedure Section 431.30, and files its general denial to the
20 Complaint and denies each and every, all and singular, generally and specifically, all the
a1 allegations contained therein, and each cause of action thereof, and further denies that plaintiff
22 has been damaged in any sum, sums or at all, and specifically denies:
23
Becherer 24
Kannett & 1. That any act or omission of JCI was responsible for any asbestos-containing
Schweitzer
es 25 product being present at the work site at which the alleged asbestos exposure of plaintiff
Powell SL
Siegrille, CA 26 LAURANCE HAGEN occurred.
510-658-3600
27
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JOHNSON CONTROLS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS:Becherer
Kannett &
Schweitzer

1255
Powell St
Emeryville, CA
94608
510-658-3600

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2. That plaintiff LAURANCE HAGEN came into contact with any asbestos-containing|
product for which JCI was responsible.

3. That any act or omission of JCI caused or contributed to any injury purportedly
suffered by plaintiff.

4, That any act or omission of JCI contributed to any asbestos health hazard.

This defendant herewith pleads and sets forth separately and distinctly the following}
affirmative defenses to each and every cause of action of plaintiff's Complaint as though
pleaded separately to each and every said cause of action, and this answering defendant alleges
the following affirmative defenses:

FIRST AFFIRMATIVE DEFENSE
(Contributory Negligence}

That plaintiff LAURANCE HAGEN was careless and negligent in and about the matters
alleged in the Complaint, and that said carelessness and negligence on the part of said plaintiff]
proximately contributed to the happening of the incident and to the injuries, loss and damages
complained of, if any, sustained by plaintiff and that plaintiff's recovery should therefore be
reduced to the extent of plaintiff LAURANCE HAGEN’s negligence.

SECOND AFFIRMATIVE DEFENSE
(Assumption of Risk}

That plaintiff LAURANCE HAGEN knew, or in the exercise of ordinary care should have
known, of the risks and hazards involved in the undertaking in which he was engaged, but
nevertheless, and knowing these things, did freely and voluntarily consent to assume the risks
and hazards incident to said operations, acts and conduct at the time and place mentioned in
said Complaint.

THIRD AFFIRMATIVE DEFENSE
(Employer Negligence - Witt v. Jackson)

By way of alleging the doctrine of Witt v. Jackson (1961) 57 Cal.2d 57, this answering

defendant alleges that at the time and place of the happening of the occurrences alleged in the

Complaint, and at all times material herein, plaintiff LAURANCE HAGEN was employed by
2

JOHNSON CONTROLS, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBecherer
Kannett &
Schweitzer

1255
Powell S.
Emeryville, CA
94608
510-658-3600

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various employers, the names. of which are unknown to this defendant at this time, and working
within the course and scope of his employment and/or employments, that said employer and/or
employers and plaintiff were subject to the provisions of the Workers’ Compensation Act of the
State of California, that certain sums have been or will be paid to or on behalf of plaintiff herein
under the applicable provisions of the Labor Code of the State of California; that said employer,
excepting when plaintiff was employed by this defendant, and/or employers and each of them
were negligent and careless and that such negligence and carelessness proximately contributed
and caused the injuries of plaintiff; that by these premises any award made to the plaintiff, if|
any award is made at all, must be reduced by any payment to them by plaintiffs employer or
employers’ compensation carrier under the authority of Witt v. Jackson (1961) 57 Cal.2d 57.

FOURTH AFFIRMATIVE DEFENSE

(Employer's Negligence)

This answering defendant alleges that plaintiff LAURANCE HAGEN’s employers, except
when plaintiff was employed by this defendant, were contributorily negligent and careless in
and about the matters alleged in the Complaint, and that such negligence and carelessness was
a proximate cause of any injuries and damages suffered by plaintiff, if any there were.

FIFTH AFFIRMATIVE DEFENSE
(Employer’s Assumption of the Risk)

This answering defendant alleges that plaintiff LAURANCE HAGEN’s employers, except

when plaintiff was employed by this defendant, voluntarily and knowingly entered into and

engaged in the operations, acts and conduct alleged in said Complaint, and voluntarily and

* knowingly assumes all of the risks incident to said operations, acts and conduct at the time and

place mentioned in the Complaint.
SIXTH AFFIRMATIVE DEFENSE
{Misuse}
This answering defendant alleges that the product in question was properly designed
and manufactured, and was fit for the purposes intended; that said product was improperly

maintained and used and was abused, resulting in plaintiff's damages, if any there were.
3

JOHNSON CONTROLS, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBecherer
Kannett &
Schweitzer

1255
Powell St
Emeryville, CA
94608

310-658-3600

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SEVENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate}

This answering defendant alleges that the injuries, loss or damage, if any there was to

plaintiff, were aggravated due to plaintiff's failure to use reasonable diligence to mitigate them.
EIGHTH AFFIRMATIVE DEFENSE
(Statute of Limitations)

This answering defendant alleges that said Complaint, and each of said alleged causes of
action thereof, is barred by the applicable statute of limitations, including, but not limited to
those set forth in California Code of Civil Procedure §§ 338, 340, 339, 340.2(a), 343, 377 through
377.62, 583, 210, 583.310 and 583.410 and California Code of Civil Procedure § 361.

NINTH AFFIRMATIVE DEFENSE
(Workers’ Compensation Exclusive Remedy)

This answering defendant alleges that plaintiff LAURANCE HAGEN was, at all or some’

relevant times, employed by this defendant and that plaintiffs claim for injuries or damages
against this defendant is barred by the Workers’ Compensation exclusive remedy provisions
contained in, but not limited to, California Labor Code §3600 et seq.
TENTH AFFIRMATIVE DEFENSE
(Laches)

This answering defendant alleges that plaintiff unreasonably delayed in the bringing and
service of this action without good cause therefore, and thereby has prejudiced this defendant;
and as a proximate result thereof, this entire action is barred by laches.

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ELEVENTH AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action - Exemplary Damages)

This answering defendant alleges that the Complaint fails to state a cause of action

against this answering defendant for exemplary damages.
TWELFTH AFFIRMATIVE DEFENSE
{Proportionate Fault)

This answering defendant alleges that while at all times denying any liability whatsoever!
to plaintiff herein, this defendant alleges that any alleged liability or responsibility of this
defendant, and such alleged liability and responsibility being denied, is smal! in proportion to
the alleged liability and responsibility of other persons and entities, including other persons who
are defendants herein, and that plaintiff should be limited to seeking recovery from this:
defendant for the proportion of alleged injuries and damages for which this defendant is
allegedly liability or responsible, all such alleged liability and alleged responsibility being
expressly denied.

THIRTEENTH AFFIRMATIVE DEFENSE
(Modification of Product)

This answering defendant is informed and believes, and based upon said information and
belief alleges, that the plaintiff is barred from recovery herein because of modification,
alteration or change in some other manner, of the products alleged in plaintiff's Complaint.

FOURTEENTH AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)

This answering defendant alleges that plaintiff's Complaint does not state facts sufficient

to constitute a cause of action against this answering defendant.
FIFTEENTH AFFIRMATIVE DEFENSE
(Waiver)

This answering defendant alleges that plaintiff LAURANCE HAGEN acknowledged,

ratified, consented to and acquiesced in the alleged acts or omissions, if any, of this answering

defendant, thus barring plaintiff from any relief as prayed herein.
5

JOHNSON CONTROLS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBecherer
Kannett &
Schweitzer

1255
Powell St.
Emeryville, CA
34608

‘510-658-3600

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SIXTEENTH AFFIRMATIVE DEFENSE
(Sophisticated User)

This answering defendant alleges that Defendant JCI was under no legal duty to warn
plaintiff of the hazard associated with the use of products containing asbestos, The purchasers
of said products, plaintiffs employers, unions or certain third parties yet to be identified, were
knowledgeable and sophisticated users and were in a better position to warn plaintiff of the risk
associated with using products containing asbestos and, assuming a warning was required, it
was the failure of such persons or entities to give such a warning that was the proximate and
superseding cause of plaintiff's damages, if any. In addition, plaintiff was and is a sophisticated
user who knew or should have known of the risk associated with using products containing
asbestos, if any. As such, JCI did not have an obligation to warn a sophisticated user, if any such
warning was warranted.

SEVENTEENTH AFFIRMATIVE DEFENSE
(Fair Responsibility Act)

This answering defendant alleges that said Complaint, and each of said alleged causes of

action thereof, is subject to the provisions of the Fair Responsibility Act of 1986, Civil Code
Sections 1431.1 through 1431.5. Liability of this answering defendant to plaintiff, if any, for non-
economic damages, if any as defined in Civil Code Section 1431.2(b)(2) shall be several only and
shall-not be joint with each of any co-defendant named in said Complaint. This answering
defendant shall be liable only for the amount of said non-economic damages, if any, allocated to
this answering defendant’s percentage of fault, if any.
EIGHTEENTH AFFIRMATIVE DEFENSE
(No Peculiar Risk)

Defendant alleges that plaintiff is barred from seeking to hold defendant vicariously
liable for inherent risk of injury in the work place and premises under the now discredited
doctrine of peculiar risk according to the California Supreme Court decision of Privette v.
Superior Court (1993) 5 Cal.4th 689, 24 Cal.Rptr.2d 72.

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JOHNSON CONTROLS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS.Becherer
Kannett &
Schweitzer

510.658.3600

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NINETEENTH AFFIRMATIVE DEFENSE
(Outside Scope)

This answering defendant alleges that at the time and place of the happening of the
occurrence as alleged in the Complaint, plaintiff LAURANCE HAGEN was engaged as a contractor
outside the scope and control of this answering defendant, thus precluding plaintiff from
asserting a claim against this answering defendant.

TWENTIETH AFFIRMATIVE DEFENSE

(Unclean Hands)

This answering defendant alleges that the claims of plaintiff is barred by the doctrine of|
unclean hands.

TWENTY-FIRST AFFIRMATIVE DEFENSE
(Res Judicata And Collateral Estoppel)

This answering defendant alleges that the claims of plaintiff is barred by the doctrine of|
res judicata and collateral estoppel.

TWENTY-SECOND AFFIRMATIVE DEFENSE
(Punitive Damages Unconstitutional)

This answering defendant alleges that the claims made by the plaintiff for punitive
damages are unconstitutional under the United States Constitution and the California State
Constitution and violates JCI’s right to substantive due process as provided in the Fifth and
Fourteenth Amendments of the United States and California Constitutions.

TWENTY-THIRD AFFIRMATIVE DEFENSE

(State of the Art)

This answering defendant alleges that based upon the state of the art, its failure, if any
there was, to warn plaintiff of the dangers associated with the handling of asbestos-containing
products, or inhalation of airborne asbestos fibers, was reasonable and in compliance with
applicable industry standards at the time, and it did not know, nor was it reasonable for it to
know, that airborne asbestos fibers, if any, which were allegedly inhaled by plaintiff could cause

injury.
7

JOHNSON CONTROLS, INC. 'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBecherer
Kannett &
Schweitzer

1258
Powell St
Emeryville, CA
94608

910-658-3600

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TWENTY-FOURTH AFFIRMATIVE DEFENSE

(Primary Rights and Res Judicata)

This answering defendant alleges that if plaintiffs claims were already litigated and
resolved in any prior action, plaintiff’s claims herein are barred based upon the primary rights
and res judicata doctrines which prohibit splitting a single cause of action into successive suits,
and seeking new recovery for injuries for which the plaintiff has been previously compensated
by alleged joint tortfeasors.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

(Uncertainty}

This answering defendant alleges that plaintiff's Complaint and all purported causes of|

action therein are vague, ambiguous and uncertain.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Estoppel)

This answering defendant alleges that as a result of the acts, conduct and/or omissions
of plaintiff and his agents, or any of them, the Complaint, and each cause of action presented
therein, is barred under the doctrine of estoppel.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Compliance with Statutes)

This answering defendant alleges that all of its conduct and activities as alleged in the
plaintiff's Complaint conformed to statutes, government regulations, and industry standards
based upon the state of knowledge existing at all relevant times.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Compliance with Specifications)
This answering defendant alleges that the asbestos products, if any, for which JCI had

any legal responsibility, were manufactured, packaged, distributed or sold in accordance with

contract specifications imposed by its co-defendants, by the U.S. Government, by plaintiff's

employers, or by third parties yet to be identified.

8

JOHNSON CONTROLS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBecherer
Kannett &
Schweitzer

510-658-3600

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TWENTY-NINTH AFFIRMATIVE DEFENSE
(Due Care and Diligence)

This answering defendant alleges that JCI exercised due care and diligence in all of the
matters alleged in the Complaint, and no act or omission by JCI was the proximate cause of any|
damage, injury or loss to plaintiff.

THIRTIETH AFFIRMATIVE DEFENSE
(Alteration of Product)

This answering defendant alleges that an insubstantial amount, if any at all, of the
products containing asbestos sold by defendant, were not sold to plaintiff, and if so, were
substantially altered by others and/or used in a manner inconsistent with the labeled directions.

THIRTY-FIRST AFFIRMATIVE DEFENSE
(Equal or Greater Knowledge of Hazards)

This answering defendant alleges that any and all products containing asbestos supplied
by defendant were supplied to persons or entities who had knowledge with respect to the
hazards, if any, resulting from exposure to products containing asbestos which are equal to or
greater than the knowledge of JCI.

THIRTY-SECOND AFFIRMATIVE DEFENSE

{Other Parties’ Liability and Negligence)

This answering defendant alleges that if there was any negligence or any other form of
liability on the part of any of the parties named herein, it was the sole and exclusive negligence’
and liability of the other persons or entities and not of JCI.

THIRTY-THIRD AFFIRMATIVE DEFENSE
(Independent, Intervening or Superseding Cause)

This answering defendant alleges that if plaintiff suffered any injuries attributable to the}
use of any product containing asbestos which was sold by defendant, which allegations are
expressly herein denied, the injuries were solely caused by an unforeseeable, independent,

intervening and/or superseding event beyond the control and unrelated to any conduct of|

9

JOHNSON CONTROLS, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS1 || defendant’s. Defendant’s actions, if any, were superseded by the negligence and wrongful
2 || conduct of others.
3 THIRTY-FOURTH AFFIRMATIVE DEFENSE
4 (Not a Substantial Factor)
5 This answering defendant alleges that the Complaint and each cause of action therein
6 || presented are barred on the grounds that the defendant’s products or materials referred to in
7 | plaintiff's Complaint, if any, were not a substantial factor in bringing about the injuries and
| 8 || damages complained of by plaintiff.
! 9 THIRTY-FIFTH AFFIRMATIVE DEFENSE
10 (Lack of Privity}
11 This answering defendant alleges that plaintiff has failed to state a cause of action in that
12 | the Complaint fails to allege that there was privity between defendant on the one hand, and
13 | plaintiff on the other, and furthermore, such privity did not exist between defendant on the one
14 | hand, and plaintiff on the other.
15 THIRTY-SIXTH AFFIRMATIVE DEFENSE
16 (No Knowledge)
: 17 This answering defendant alleges that it had no knowledge, either actual or constructive,
18 | and by the application-of reasonable, developed human skill and foresight, had no reason to
19 | know of the propensities, if any, of asbestos, asbestos fibers or other products containing
20 | asbestos to cause or contribute to the creation of medical conditions or circumstances involving
21 | alleged injuries to the lungs, respiratory and cardiovascular systems or any other illnesses of any
22 || type whatsoever.
23 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
Recherer 24 (Offset for Workers’ Compehsation Benefits)
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25 This answering defendant alleges that to the extent plaintiff herein recovered any|
Esk ca 26 | monies in connection with any claim for workers’ compensation benefits, any amounts’
sees 27 | recovered in this action are subject to a credit or offset.
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JOHNSON CONTROLS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSbm

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

2 (Unusual Susceptibility)
3 This answering defendant alleges that each of plaintiffs injuries and damages, if any,
4 | were proximately caused or contributed to by plaintiff's unforeseeable idiosyncratic condition,
5 | unusual susceptibility, or hypersensitive reactions for which JCI is not liable.
6 THIRTY-NINTH AFFIRMATIVE DEFENSE
7 (Good Faith)
8 This answering defendant alleges that plaintiff's claim for punitive damages is barred
9 || because JCI at all times and places mentioned in the Complaint acted reasonably and in good
10 | faith, and without malice or oppression towards the plaintiff.
11 FORTIETH AFFIRMATIVE DEFENSE
12 {Applicable Law)
13 This answering defendant alleges that the law applicable to defendant and plaintiff is the
14 | law as it existed during the period defendant allegedly engaged in manufacturing, sale or|
15 | distribution of asbestos or asbestos contained products.
16 FORTY-FIRST AFFIRMATIVE DEFENSE
17 (Failure to Allege with Particularity)
18 This answering defendant alleges that plaintiff's Complaint fails to set out its claims with
19 | sufficient particularity to permit defendant to raise all appropriate defenses and, thus,
20 | defendant reserves the right to add additional defenses as the factual basis for these claims
21 | becomes known.
22 FORTY-SECOND AFFIRMATIVE DEFENSE
23 (Action Arose In Another State)
Renee 24 This answering defendant alleges that plaintiff's Complaint and each and every cause of|
Sermeler 25 | action therein arose in another state and by the laws thereof an action thereon cannot be
EB. 26 | maintained against this answering defendant within said state by reason of the lapse of time,
eee 97 | and therefore an action thereon cannot be maintained against this answering defendant in the
28 | State of California pursuant to California Code of Civil Procedure section 361.

1
JOHNSON CONTROLS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS510-658-2600

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WHEREFORE, this answering defendant prays as follows:
1. That plaintiff takes nothing by reason of the Complaint on file herein;
2. That JOHNSON CONTROLS, INC. be hence dismissed with its costs of suit incurred
herein; and
For such other and further relief as the court deems just and proper.

Dated: “rom oato BECHERER KANNETT & SCHWEITZER

By:
ark S. Kannett
Attorneys for Defendant
JOHNSON CONTROLS, INC.,

12

JOHNSON CONTROLS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSBecherer
Kannett &
Schweitzer

1255
Powell St.
Emeryville, CA
94608
510-658-3600

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12

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

I, Melissa Keeler, declare that | am, and was at the time of service of the documents:
herein referred to, over the age of 18 years, and not a party to the action; and | am employed in
the County of Alameda, State of California. My business address is 1255 Powell Street,
Emeryville, California 94608.

On August 9g , 2010, | electronically served the document(s) via LexisNexis File & Serve
described as:

JOHNSON CONTROLS, INC.’S ANSWER TO COMPLAINT FOR
PERSONAL INJURY - ASBESTOS

on the recipients designated on the Transmission Receipt located on the LexisNexis File & Serve
website.

| declare under penalty of perjury pursuant to the laws of the State of altos that the
foregoing is true and correct and that this declaration was executed on August , 2010, at
Emeryville, California.

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JOHNSON CONTROLS, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS