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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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DAVID A. GIFFORD, SBN 85909
GARY T. DRUMMOND, SBN 47709

ROBERT G, ENGEL, SBN 158115 ELECTRONICALLY
STEVENS, DRUMMOND & GIFFORD FILED
1910 OLYMPIC BOULEVARD, SUITE 250 Superior Court of Calfornia,
WALNUT CREEK, CALIFORNIA 94596 County of San Francisco
TEL: (925) 944-5550 AUG 12 2010

FAX: (925) 256-9669 Clerk of the Court

BY: CHRISTLE ARRIOLA

Attorneys for Defendant Depully Clerk
KELLY-MOORE PAINT COMPANY, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY & COUNTY OF SAN FRANCISCO

LAURANCE HAGEN, CASE NO. CGC-10-275582

Plaintiff, ANSWER TO COMPLAINT FOR

PERSONAL INJURY-ASBESTOS
vs.

ASSOCIATED INSULATION OF
CALIFORNIA,

Defendants /

Defendant KELLY-MOORE PAINT COMPANY, INC. (KELLY-MOORE), a
corporation, responds to Plaintiff's Complaint for Personal Injury (the "Complaint") as follows:

Pursuant to California Code of Civil Procedure Section 431.30(d), KELLY-MOORE denies
generally and specifically each and every allegation of the Complaint directed against it.

FIRST AFFIRMATIVE DEFENSE

1. Plaintiff’s Complaint fails to state a claim or cause of action against this Defendant upon

which relief may be granted.
SECOND AFFIRMATIVE DEFENSE

2. Plaintiff knowingly, voluntarily and unreasonably assumed the risks and consequences

of his employment and was fully informed and was aware of any and all circumstances surrounding

the alleged incidents resulting in the alleged injuries and damages claimed in the Complaint.

ANSWER TO COMPLAINT FOR PERSONAL INJURY-ASBESTOS1

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‘and/or omissions of such third persons. ~~

THIRD AFFIRMATIVE DEFENSE

3. The failure of the employers to warn and/or safeguard the Plaintiff from possible health
hazards associated with asbestos was an intervening and/or superseding cause of Plaintiff's alleged
injuries. Alternatively, any recovery which Plaintiff may be entitled to obtain against Defendant must
be reduced by that amount of damages attributable to the acts and/or omissions of Plaintiff's
employers and/or others as set forth herein.

FOURTH AFFIRMATIVE DEFENSE

4, Any damages sustained by Plaintiff was proximately caused by the intervening acts or
omissions of third persons over whom Defendant had no direction or control and not by any act or
omission of Defendant, Alternatively, any amount which Plaintiff might be entitled to recover

against Defendant must be reduced by the amount of damages attributable to the intervening acts

FIFTH AFFIRMATIVE DEFENSE
5. The alleged incidents, injuries and damages of which Plaintiff complains was caused by
an unauthorized unintended or improper use of the products complained of and as a result of failure
to exercise reasonable and ordinary care, caution or vigilance for which Defendant is not legally
liable or responsible.
SIXTH AFFIRMATIVE DEFENSE
6. By their actions, including but not limited to unreasonable delay in bringing this action
and failure to provide Defendant with notice of any alleged breach of any purported warranties,
Plaintiff has irrevocably waived any and all rights which he might otherwise have had to assert any
claims against Defendant.
SEVENTH AFFIRMATIVE DEFENSE
7. Claims of Plaintiff are barred insofar as they may relate to a claim of breach of warranty
based on the failure to provide proper and timely notice of such claims.
EIGHTH AFFIRMATIVE DEFENSE
8. Defendant neither knew nor should have known that any asbestos products constituted an

unreasonable and foreseeable risk to the physical well-being of Plaintiff because the prevailing state

ANSWER TO COMPLAINT FOR PERSONAL INTURY-ASBESTOSoD 2 Om YI DR HW FF WN

of medical, scientific and industrial knowledge at the time in question was inadequate to require this

conclusion.
NINTH AFFIRMATIVE DEFENSE

9. Any exposure of Plaintiff to Defendant's products was so minimal as to be insufficient to
establish to a reasonable degree of probability that any such product caused any alleged injury,
damage or loss to Plaintiff.

TENTH AFFIRMATIVE DEFENSE

10. The applicable laws, rules, statutes or regulations, including, but not limited to, Code of
Civil Procedure, Section 340.2 and sister state statutes of limitations and statutes of repose borrowed
by Code of Civil Procedure, Section 361, requiring the institution of suit within a certain period of
time following its accrual, were not complied with and, therefore, Plaintiff's claims are barred as a
matter of law and equity.

ELEVENTH AFFIRMATIVE DEFENSE

11. Any injury, damage or loss sustained by Plaintiff was proximately caused and/or
contributed to by the negligence and/or carelessness of Plaintiff and not by any act or omission of
Defendant. Alternatively, any amount which Plaintiff might be entitled to recover against Defendant
must be precluded or reduced by an amount of damages attributable to Plaintiff's own negligence,

TWELFTH AFFIRMATIVE DEFENSE

12. By their actions, including but not limited to unreasonable delay in bringing this action
and failure to provide Defendant with any notice of any alleged breach of any purported warranties,
Plaintiff is estopped from obtaining any recovery against Defendant.

THIRTEENTH AFFIRMATIVE DEFENSE

13. Although Defendant denies it provided asbestos products to the Plaintiff, any products
provided by Defendant met the requirements or standards of governmental agencies and any
regulations promulgated by such agencies.

FOURTEENTH AFFIRMATIVE DEFENSE
14. Any foresceable and unreasonable risk to the physical well-being of the Plaintiff was a

risk which Defendant did not create and could not reduce or eliminate.

ANSWER TO COMPLAINT FOR PERSONAL. INTORY-ASBESTOSeo

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FIFTEENTH AFFIRMATIVE DEFENSE
15. At all relevant times, the knowledge of the Plaintiff's employers was superior to that of
Defendant with respect to possible health hazards associated with Plaintiff's employment and,
therefore, if there was any duty to warn Plaintiff or provide protection to Plaintiff, it was the duty
of said employers, not of Defendant,
SIXTEENTH AFFIRMATIVE DEFENSE
16. Plaintiffand/or his employers were reasonably and adequately warned of any alleged risk
and had actual constructive or imputed knowledge thereof. Accordingly, Plaintiffis precluded from
obtaining any recovery against Defendant.
SEVENTEENTH AFFIRMATIVE DEFENSE

17. This Court lacks jurisdiction over the subject matter of Plaintiff's claim or claims.

EIGHTEENTH AFFIRMATIVE DEFENSE
18. The Complaint fails to allege with specificity any acts, actions or conduct which
constitutes fraud or conspiracy and, therefore, all claims and/or damages based on allegations of
fraud or conspiracy must be stricken.
NINETEENTH AFFIRMATIVE DEFENSE
19. Pursuant to Civil Code §143 1.2, KELLY-MOORE’s liability for non-economic damages,
if any, shail be limited to the percentage of fault attributed to KELLY-MOORE, for Plaintiff's
alleged injuries.
TWENTIETH AFFIRMATIVE DEFENSE
20. Award of punitive damages sought by Plaintiff would violate Defendant's due process
rights under the 14th Amendment of the United States Constitution in that those damages sought are
grossly excessive and so severe and oppressive as to be unreasonable and wholly disproportional to

Defendant's alleged offenses.

ANSWER TO COMPLAINT FOR PERSONAL INTURY-ASBESTOS12 oO NM DR FY LD

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21,

TWENTY-FIRST AFFIRMATIVE DEFENSE

Plaintiff, plaintiff's employers and those who supplied the product for plaintiff's use

or for use in the vicinity of plaintiff, were, or were presumed to be, sophisticated users of the

product, with knowledge of the properties of the product and of methods of safe handling.
WHEREFORE, KELLY-MOORE prays:

1,
2,
3,
4,

for non-economic damages, if any, for Plaintiff's alleged injuries to the percentage of fault attributed

to defendant KELLY-MOORE pursuant to Civil Code §1431.2; and,

5.

DATED: August 11,2010 STEVENS, DRUMMOND & GIFFORD

That Plaintiff takes nothing by their Complaint;

That defendant KELL Y-MOORE be awarded judgment in its favor against Plaintiff;
That defendant KELLY-MOORE recover its costs of suit herein;

That a separate judgment be rendered limiting defendant KELL Y-MOORE's liability

For such further relief as the Court deems appropriate.

By

AVID A,
Attorneys for Defendant
KELLY-MOORE PAINT COMPANY, INC.

ANSWER TO COMPLAINT FOR PERSONAL. INIURY-ASBESTOSco 0 OW NM BO A BP BW NN

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PROOF OF SERVICE

Tam employed in the County of Contra Costa, State of California, I am over the age of 18
years, and not a party to the within action. My business address is: 1910 Olympic Boulevard, Suite
250, Walnut Creek, California 94596, On August 12, 2010 I electronically served the attached
document[s] via LexisNexis File and Serve described as:

KELLY-MOORE PAINT COMPANY, INC.’S ANSWER TO 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 under the laws of the State of California that the
foregoing is true and correct. Executed on Aug 010, at Walnut CreekyCalifornia,

Proof of Service