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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PATRICIA KANTOR CONWAY, ESQ. (SBN 183764) EDWARD L. HUMMER, ESQ. (SBN 165354) VASQUEZ ESTRADA & CONWAY LLP ELECTRONICALLY Courthouse Square FILED 1000 Fourth Street, Suite 700 Superior Court of California, San Rafael, California 94901 County of San Francisco Telephone: (415) 453-0555 Facsimile: (415) 453-0549 AUG 11 2010 Attorneys for Defendant BY: JUDITH NUNEZ FDCC CALIFORNIA, INC. Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO LAURENCE HAGEN, Case No.: CGC-10-275582 Plaintiff DEFENDANT FDCC CALIFORNIA, INC.’S ° ANSWER TO PLAINTIFFS? UNVERIFLED COMPLAINT FOR PERSONAL INJURY - vs. ASBESTOS ASSOCIATED INSULATION OF CALIFORNIA; Defendants as Reflected on Exhibit 1 attached to Summary Complaint, herein; and DOES 1-8500. Action Filed: June 2, 2010 Pursuant to Code of Civil Procedure Section 431.30, Subdivision (d), defendant FOCC CALIFORNIA, INC. (hereinafter “FDCC”) answers the unverified complaint of plaintiff LAURENCE HAGEN, as follows: LL Defendant denies generally and specifically, all and singular, each and every allegation contained in the complaint and denies that plaintiffs have been damaged in any sum, manner or at all. 2, Defendant further denies that the injuries or damages complained of, if any, were or was| due or caused by any carelessness or negligence or any act or omission on the part of said answering defendant. FIRST AFFIRMATIVE DEFENSE The complaint and the separate causes of action therein fail to state facts sufficient to constitute a cause of action against said answering defendant. DEFENDANT FDCC CALIFORNIA, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY ASBESTOS; CASE NO. CGC-10-273582nN SECOND AFFIRMATIVE DEFENSE The complaint and the separate causes of action therein are barred by the provisions of §§ 335.1, 338.1, 339, 340.2, 340.8, 343, 583.210, 583.310 and 583.410 of the California Code of Civil Procedure. THIRD AFFIRMATIVE DEFENSE Plaintiff. has unreasonably delayed the commencement of this action to the prejudice of FOCC whereby the complaint and each cause of action therein are barred by the doctrine of laches. FOURTH AFFIRMATIVE DEFENSE Defendant alleges that the complaint and the separate causes of action are barred under the doctrines of collateral estoppel or res judicata or both. FIFTH AFFIRMATIVE DEFENSE Defendant alleges that plaintiff was contributorily negligent; that such contributory negligence was a proximate cause of plaintiff's alleged damages, if any, which are therefore diminished in direct proportion to the fault attributable to plaintiff as compared with that of said answering defendant. SIXTH AFFIRMATIVE DEFENSE Defendant alleges that the complaint and the separate causes of action are barred on the grounds that plaintiff knew, or in the exercise of ordinary care, should have known, of the risk of the injuries or damages alleged in the complaint, if any, and nevertheless did freely and voluntarily assume| said risk and this undertaking proximately caused and contributed to the loss, injuries or damages, if any, alleged by plaintiff. SEVENTH AFFIRMATIVE DEFENSE Defendant alleges that the negligence of this answering defendant, if in fact this answering, defendant was negligent, and the liability, if any, of said answering defendant should be diminished in direct proportion to the fault, if any, attributable to others as compared with that of said answering defendant. it Mt tl w DEFENDANT FDCC CALIFORNIA, INC.°S ANSWER TO COMPLAINT FOR PERSONAL [NIURY ASBESTOS; CASE NO. CGC-10-275582Ww EIGHTH AFFIRMATIVE DEFENSE Defendant alleges that if plaintiff has suffered any damages, which FDCC expressly denies, FDCC alleges that plaintiff's recovery for those damages is barred by plaintiff's failure to mitigate those damages. NINTH AFFIRMATIVE DEFENSE Defendant alleges that plaintiff named FDCC in this litigation without a reasonable investigation. Accordingly, FDCC, pursuant to California Code of Civil Procedure, § 128.5, requests reasonable expenses, including attorneys' fees incurred by this defendant as a result of the maintenance by plaintiffs of this bad faith action. TENTH AFFIRMATIVE DEFENSE Defendant aileges that plaintiff's damages, if any, were proximately caused by an unforeseeable, independent, intervening and/or superseding event beyond the control and unrelated to any conduct of FDCC. FDCC’s actions, if any, were superseded by the negligence and wrongful conduct of others. ELEVENTH AFFIRMATIVE DEFENSE Defendant alleges that the court lacks subject matter jurisdiction over the matters alleged in the complaint because the complaint and each alleged cause of action against defendant are barred by the provisions of California Labor Code, § 3601, et seq. TWELFTH AFFIRMATIVE DEFENSE Defendant alleges that at the time of the damages alleged in plaintiffs complaint, plaintiff Laurence Hagen’s employers were negligent and that such negligence on the part of said employers proximately caused the injuries, loss and damages, including non-economic damages, complained of by plaintiff, if any there were; and that defendant is not Hable for said employer's proportionate share of non-economic damages. THIRTEENTH AFFIRMATIVE DEFENSE Defendant alleges that at the time of the injuries alleged in the complaint, all of plaintiff Laurence Hagen’s employers were sophisticated users of asbestos-containing products and said DEFENDANT FDCC CALIFORNIA, INC."S ANSWER TO COMPLAINT FOR PERSONAL INJURY ASBESTOS; CASE NO. CGC-10-2753582we employers' negligence in providing the product to its employees in a negligent, careless and reckless manner was a superseding, intervening cause of plaintiffs damages, if any there were. FOURTEENTH AFFIRMATIVE DEFENSE Defendant alleges it had no knowledge, either actual or constructive, and by the application of reasonable, developed human skill and foresight had no reason to know of the propensities, if any, of asbestos, asbestos fibers or other products containing asbestos to cause or contribute to the creation of medical conditions or circumstances involving alleged injuries to the lungs, respiratory and cardiovascular systems or any other illnesses of any type whatsoever. FIFTEENTH AFFIRMATIVE DEFENSE Defendant alleges that the complaint and the separate causes of action are barred on the grounds that the conduct of FDCC referred to in the complaint and the separate causes of action, if any | was not a substantial factor in bringing about the injuries and damages complained of by the plaintiffs. SIXTEENTH AFFIRMATIVE DEFENSE Defendant alleges that the liability for plaintiff's damages, if any, rest solely with the strict product liability of others. SEVENTEENTH AFFIRMATIVE DEFENSE Defendant alleges that at the time of the injuries alleged in the Complaint, plaintiff Laurence Hagen was employed and was entitled to receive Workers' Compensation benefits from his employer’s workers’ compensation insurance carrier; that all of plaintiff Laurence Hagen’s employers, other than defendant, were negligent in and about the matters referred to in said Complaint, and that such negligence on the part of said employers proximately and concurrently contributed to the happening of the accident and to the loss or damage complained of by plaintiffs, if any there were; and that by reason thereof defendant is entitled to set off and/or reduce any such workers’ compensation benetits received by plaintiffs or to be received by plaintiffs against any judgment which may be rendered in favor of plaintiffs (Witt v. Jackson, 57 Cal.2d 57, 366 P.2d 641). EIGHTEENTH AFFIRMATIVE DEFENSE Defendant alleges that at the time of the injuries alleged in the Complaint, parties other than this defendant were negligent in and about the matters referred to in said Complaint, and that such 4 DEFENDANT FDCC CALIFORNIA. INC.S ANSWER TO COMPLAINT FOR PERSONAL INIURY ASBESTOS: CASE NO. CGC-10-275582ve ws 6 negligence on the part of said parties proximately and concurrently contributed to any loss or damage. including non-economic damages, complained of by plaintiff, if any there were; and that defendant herein shali not be liable for said parties’ proportionate share of non-economic damages. NINETEENTH AFFIRMATIVE DEFENSE The activity alleged in the Complaint, to the extent that it was engaged in by defendant, if at all] was not ultrahazardous under California law. TWENTIETH AFFIRMATIVE DEFENSE Tf plaintiff Laurence Hagen was injured as alleged in the Complaint, those injuries were proximately caused by allergies, sensitivities and idiosyncrasies particular to plaintiff, not found in the general public and unknown and unknowable to defendant. Such injuries, if any, were not reasonably foreseeable to defendant. TWENTY-FIRST AFFIRMATIVE DEFENSE At all times relevant, defendant 's acts and omissions were in conformity with all government statutes and regulations and all industry standards based upon the state of knowledge existing at the time of the acts or omissions. TWENTY-SECOND AFFIRMATIVE DEFENSE Plaintiff has failed to join all parties necessary for full and just adjudication of the purported causes of action asserted in the Complaint. TWENTY-THIRD AFFIRMATIVE DEFENSE The Complaint fails to state facts sufficient to constitute a cause of action for “Premises Owner/Contractor Liability” against this defendant pursuant to the ruling of the California Supreme Court in Priverte v. Superior Court (1993) 5 Cal 4th 689, the ruling of the California Court of Appeal in Smith v. ACandsS, Inc. (1994) 31 Cal.App.4th 77, the California Supreme Court in Camargo vy. Tjaarda Dairy (2001) 25 Cal.4° 1235, the ruling of the California Supreme Court in Toland v. Sunlane| Housing Group, Inc. (1998) 18 Cal.4th 253, the ruling of the California Supreme Court in Hooker v. Department of Transportation (2002) 27 Cal.4" 198, and the ruling of the California Supreme Court in Kinsman v. Unocal Corp. (2006) 37 Cal.4"" 659 (as modified on March 1, 2006). u DEFENDANT FDCC CALIFORNIA, INC.’S ANSWER TO COMPLAINT FOR PERSONAL [NJURY ASBESTOS; CASE NO. CGC-10-273582nu TWENTY-FOURTH AFFIRMATIVE DEFENSE Defendant had no property interest, ownership or control of any premises at any time during which plaintiff alleges exposure, injury or damages due to asbestos dust inhalation. TWENTY-FIFTH AFFIRMATIVE DEFENSE Defendant alleges that plaintiff's claims, or some of them, are barred by the provisions of California Code of Civil Procedure §361. TWENTY-SIXTH AFFIRMATIVE DEFENSE Defendant refers to and incorporates herein each and every affirmative defense pleaded by the other parties herein to the extent that such defenses are not inconsistent with the matters stated herein. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 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 unasserted defenses available. Defendant reserves herein the right to assert additional defenses in the event discovery indicates that they would be appropriate. WHEREFORE, FDCC CALIFORNIA, INC. prays for judgment as follows: 1, That plaintiff take nothing by way of their complaint; 2, That this action against said answering defendant be dismissed; 3. For attomeys' fees and the cost of suit incurred herein; 4, For such other relief as the court may deem proper. Dated: August! 0 ,2010 VASQUEZ ESTRADA& CONWAY LLP PATRICIA KANTOR CON Y Aftorneys for Defendant FDCC CALIFORNIA, INC. DEFENDANT FDCC CALIFORNIA, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY ASBESTOS; CASE NO. CGC-10-275582we 4 PROOF OF SERVICE Laurence Hagen v. Associated Insulation of California, et al. San Francisco Superior Court Case No. CGC-10-275582 1, the undersigned, declare: that 1 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 Marin, California. My business address is 1000 Fourth Street, Suite 700, San Rafacl, California, 94901. On the date executed below, I electronically served the document(s) via LexisNexis Vile & Serve described as: DEFENDANT FDCC CALIFORNIA, INC.’S ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct and was executed on August 11, 2010, at San Rafael, California. /s/ Susan B. McCabe Susan B. McCabe 1 PROOF OF SERVICE - CASE NO CGC-10-275582