Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                MICHAEL J. PIETRYKOWSKI (SBN: 118677}
Mpietrykowskia@igordonrees.com

GORDON & REES LLP ELECTRONICALLY
Embarcadero Center West

275 Battery Street, Twentieth Floor sopekr IL ED.
San Francisco, CA 94111 County of San Francisco
‘Telephone: (415) 986-5900 AUG 11 2010

Facsimile: (415) 986-8054 Clerk of the Court
Attorneys for Defendant BY SUDITH se eput Clerk

TRANE U.S., INC., erroneously sued as TRANE U.S., INC., formerly known as AMERICAN
STANDARD. INC.
SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO — UNLIMITED CIVIL JURISDICTION

LAURANCE HAGEN, CASE NO. GCG-10-275582
Plaintiff, ANSWER TO COMPLAINT FOR
PERSONAL INJURY — ASBESTOS
v.

ASSOCIATED INSULATION OF

CALIFORNIA., et al., Complaint Filed: June 2, 2010

Defendants.

Ne! ae et Nt Ne Nel Sat Sa! Set

COMES NOW defendant, TRANE U.S., INC., erroneously sued as TRANE U.S. INC.,
formerly known as AMERICAN STANDARD, INC., and in answer to plaintiff’s complaint on
file herein, and each and every cause of action allegedly set forth therein, answers, alleges and
denies as follows:

i

This answering defendant denies each and every, all and singular, generally and
specifically, the allegations coniained in the cormplaint. and each and every cause of action
ailegedly set forth therein, as they may apply to this answering defendant.

: HL

Further answering said unveriiied complaint. and each and every cause of action
allegedly set forth therein, this defendant denies that it was legally responsible in sume manner
for the circumstances and happenings as alleged therein, or at all, and denics that plaintiff has

~f- _

ANSWER TO COMPLAIN? FOR PERSONAL INJURY - ASBESTOSbeen damaged in the manner set forth in said unverified complaint and each and every cause of
action allegedly set forth therein.
HE

Further answering said unverified complaint, and each and every cause of action
allegedly set forth therein, this defendant denies that it was negligent and/or careless in any
respect whatsoever, as alleged therein, or at ail, and denies that plaintiff has been damaged in the
manner set forth in said unverified complaint and each and every cause of action allegedly set
forth therein.

FIRST AFFIRMATIVE DEFENSE

AS AND FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that the complaint and causes of action therein

fail to state facts sufficient to constitute a cause of action against this answering defendant.

SECOND AFFIRMATIVE DEFENSE

AS AND FOR A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that the plaintiff was hinwelf careless and

negligent in and about the matters referred to in the complaint and that such negligence and
carelessness on the part of the plaintiff proximately caused and contributed to the damages

complained of, if any there were.

THIRD AFFIRMATIVE DEFENSE

AS AND FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff knew, or in the exercise of
ordinary care, should have known of the risks and hazards involved in the undertaking in which
plaintiff engaged, but nevertheless and with full knowledge of these things, did fully and
voluntarily consent to assume the risks and hazards involved in the undertaking.

FOURTH AFFIRMATIVE DEFENSE
_ AS AND FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant aileges that the plaintiff was himself solely and totally

negligent in and about the matters referred to in the complaint and that such negligence and

2

ANSWER TO COMPLAINT FOR PERSONAL INJURY -ASBESTOSRoom

\} carelessness on the part of the plaintiff proximately amounted to One Hundred Percent (100%) of

the negligence involved in this case and was the sole cause of the injuries and damages
complained of, if any there were.

FIFTH AFFIRMATIVE DEFENSE

AS AND FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that at all times and places mentioned in the
complaint, plaintiff and/or other persons without this defendant's knowledge and approval
redesigned, modified, altered, and used this defendant's products contrary to instructions and
contrary to the custom and practice of the industry. This redesign, modification, alteration, and
use so substantially changed the product's character that if there was 4 defect in the product --

which is specifically denied -- such defect resulted solely from the redesign, modification,

alteration, or other such treatment or change and not from any act or omission by this defendant.

Therefore, said defect, if any, was created by plaintiff and/or other persons, as the case may be,
and was the direct and proximate causc of the injuries and damages, if any, that plaintiff
allegedly suffered.
SIXTH AFFIRMATIVE DEFENSE
AS AND FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID

COMPLAINT, this answering defendant alleges that if there is any negligence or lability of any
of the parties named herein, it is the sole and exclusive negligence and liability of the other
defendants, and not of this answering defendant.

SEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, defendant alleges that its products were manufactured, produced, supplied, sold
and distributed in mandatory conformity with specifications promulgated by the United States
government under its war powers, as sct forth in the United States Constitution, and that any
recovery by plaintiffs on the complaint on file herein is barred in consequence of the exercise of

those sovereign powers.

3.
ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS& WwW

EIGHTH AFFIRMATIVE DEFENSE

AS AND FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, defendant alleges that the asbestos-containing products, if any, for which it may
have legal responsibility were installed, labeled, assembled, serviced. supplicd, manufactured,
designed, packaged, distributed, marketed, and/or sold in accordance with contract specifications
imposed by its co-defendants, by the U.S. government, by plaintiff's employers and by third
parties yet to be identified.

NINTH AFFIRMATIVE DEFENSE

AS AND FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that at the time of the injuries alleged in the
‘| complaint plaintiff was enrployed and was entitled to and did receive workers’ compensation
benefits from said employer. This defendant is informed and believes, and on the basis of said
|| bsformation and belief alleges that, if the conditions as alleged in the plaintiff’s complaint are
found to exist, the plaintiff's employer was negligent and carcless in and about the matters
referred to in said complaint and that said negligence on the part of the employer proximately
caused or contributed to the injuries and damages, if any, complained of by the plaintiff, and
further, that the plaintiff's employer assumed the risk of injury to the plaintiff, if any there was,
in that at the time and place of the incident such conditions, if any, were open and apparent and
were fully known to the plaintiff's employer; and that by reason thereof, this defendant is entitled
to set off any compensation benefits reccived or to be received by the, plaintiff against any
judgment which maybe rendered in favor cf the plaintiff herein.

TENTH AFFIRMATIVE DEFENSE

AS AND FOR A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the complaint and the causes of action
therein are barred by the statutes of limitation and repose of California and any other relevant
statc, including but not limited to the limitations set forth under sections 340.2 and 361 of the

Code of Civil Procedure of the State of California.

a4.
ER TO COMPLAINT FOR PERSONAL INJURY24

ELEVENTH AFFIRMATIVE DEFENSE

AS AND FOR AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that the plaintiff unreasonably delayed in
bringing this action against defendant and that such delay substantially prejudiced this answering
defendant. Therefore, this action is barred by the doctrine of laches.

TWELFTH AFFIRMATIVE DEFENSE

AS AND FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the complaint and the causes of action
therein fail to state facts sufficient to constitute a cause of action against this answering
defendant pursuant to sections 3690, et seq., of the California Labor Code

THIRTEENTH AFFIRMATIVE DEFENSE

AS AND FORA THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that plaintiff's employer was
contributorily negligent and careless in and about the matters alleged in the compleint, and that
such negligence and carelessness was a proximate cause of any injuries and damages surfered by
plaintiff, if any there were.

FOURTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that plaintiff's employer voluntarily and
knowingly entered into and engaged in the operations, acts and conduct alleged in said
complaint, and voluntarily and knowingly assumed all of the risks incident to said operation, acts
and conduct alleged im said complaint, and vo luntarily and knowingly assumed all of the risks

incidem to said operations, acts and conduct at the time and place mentioned in: the complaint.

FIETEENTH AFFIRMATIVE DEFENSE
AS AND FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that the plaintiff 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 for herein.

a ~5-

ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS —SIXTEENTH ARFIRMATIVE DEFENSE
AS AND FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering dcfendant is informed and believes and therefore alleges
that plaintiff is unable to identify the actual manufacturer or manofacturers of the asbestos
products which allegedly caused the injury which forms the basis of the complaint herein, and
that said manufacturers were entities other than this defendant. Therefore, this defendant may
not be held jiable for the injury of the plaintiff.
SEVENTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering defendant alleges that piaintiff and plaintiff's
employer were and are sophisticated users and knew independently or reasonably should have
known of any danger or hazard associated with the usc of a product containing asbestos and of
exposure to high levels of dust of any sort.

EIGHTEENTH AFFIRMATIVE DEFENSE

AS AND FOR AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, this answering detendant alleges that at all times alleged in the complaint

the products alleged to have caused plaintiff's injuries were designed, manufactured, sold,

distributed, labeled and advertised in compliance with the then existing state of the art in the
industry to which this defendant belonged and furthermore, that the benefits of any such product
design outweighed any risk of danger in the design and that any such product met the safety
expectations of plaintiff and the general public.

NINETEENTH AFFIRMATIVE DEFENSE

AS AND FOR AN NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, the plaintiff has released, settled, entered into an accord and satisfaction or
otherwise compromiscd his claims herein, and accordingly, said claims are barred by operation
of law; alternatively, plaintiff has accepted compensation as partial settlement of those claims for

which this defendant is entitled to a set-off.

. oer
ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS -| TWENTIETH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, there was no negligence, gross negligence, wiliful, wanton, or malicious
misconduct, reckless indifference or reckless disregard of the rights of the plaintiff, or malice
{actual, legal, or otherwise) on the part of this defendant as to the plaintiff hercin.

TWENTY-FIRST AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, at all times and places mentioned in the complaint, plaintiff has failed to
make reasonable efforts to mitigate injuries and damages, if any.

TWENTY-SECOND AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE
TO SAID COMPLAINT, the plaintiff, prior to the filing of this complaint, never informed this
defendant by rotification or otherwise, of any breach of express and/or implied warranties;

consequently, his claims of breaca of express and/or implied warranties against this defendant

il are barred.

TWENTY-THIRD AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO
SAID COMPLAINT, the injuries to, and damages of plaintiff, if any, were directly caused by the
conduct of JOHNS-MANVILLE SALES CORPORATION, its predecessors and successors in
interest, its parent company or companies, its affiliates, subsidiaries, or related companies and
enterprises.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE
TO SAID COMPLAINT, this answering defendant alleges that to the extent the amount of
punitive damages sought is unconstitutionally excessive under the United States Constitution, it
violates the Excessive Fines Clause of the Eighth Amendment, U.S. Const. amend. VI, and the
' Due Process Clause of the Fourteenth Amendment, U.S. Const. amend XTV, section 1.

Je

ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSbo

Aw

~

WENTY-FETH AFFIRMATIVE DEFENSE

AS FOR A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO SAID
COMPLAINT, this answering defendant alleges that the plaintiff's claim for punitive damages
impermissibly seeks a multiple award of punitive damages as against this defendant in violation
of the following clauses: the Contracts Clause of Article I, section 10 of the United States
Constitution; the Excessive Fines Clause of the Lighth Amendment of the United States
Constitution; the Due Process Clause of the Fourteenth Amendment of the United States
Constitution and its counterpart under the California Constitution; the Equal Protection of the
laws and Due Process provision of the Fifth and Fourteenth Amendments of the United States
Constitution and Article I, section 7 of the California Constitution; ard the Equal Protection of
the laws and defendant's right to be free of Crue] and Unusual Punishment and Excessive Fines
as guaranteed under the Fifth, Eighth and Fouricenth Amendments to the United States
Constitution and Article I, section 7 and 17, Article IV, section. 16 of the California Constitution.

. TWENTY-SIXTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND.
DEFENSE, this answering defendant alleges that punitive damages are barred by the
Constitutions of the United States and California by virtue of their violation of one or more of
the following clauses: the Contracts Clause of Article L, section 10 of the United States

Constitution; the Excessive Fines Clause of the Kighth Amendment of the United States

Constitution; the Due Process Clause of the Fourteenth Amendment of the United States
Constitution and its counterpart under the California Constitution; the Equal Protection of the
laws and due process provision of the Fifth and Fourteenth Amendments of the United States
Constitution and Article 1, section 7 of the California Constitution; and the Equal Protection of
the laws and defendant's right to he free of Cruel and Unusual Punishment and Excessive Fines
as guaranteed under the Fifth, Eighth and Fourteenth Amendments.to the United States
Constitution and Article I, section 7 and 17, and Article IV, section 16 of the California

Constitution.

8.
ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSTWENTY-SEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the subject premises was not used in the

manner in which it was intended fo be used, and as a proximate result of such abuse and misuse,

j| the plaintiff sustained the injuries and damages complained of, if any there were.

TWENTY-EIGUTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff has failed to join a party or the partics
necessary for a just adjudication of this matter and has further omitted to stale any reasons for
such failure.

TWENTY-NINTH AFFIRMATIVE DEFENSE

AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiffs claims are a nullity for fallure of
commencement of suit,

THIRTIETH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff failed to exercise ordinary care for his
own safety and well-being, and that failure to exercise ordinary care proximately and directly
caused and/or contributed to the alleged illness and injury pled in the complaint. Consequently,
this defendant,is entitled to the full protection afforded by law.

THIRTY-FIRST AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff"s injuries or illness, if any, were due to
the acts or omissions of a person or persons over whom this defendant had neither control ner the
right of control.

THIRTY-SECOND AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges that while specifically and vigorously denying the
Sefee bd)

27

|| injuries and illness.

allegations of the plaintiff concerning lability, injuries and damages, to the extent that plaintiff
may be able to prove those allegations, this defendant states that they were the result of

intervening acts of superseding negligence on the part of the person or persons over whom this

! defendant had neither control nor the right of control.

THIRTY-THIRD AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that at all times and places mentioned ia the
complaint, plaintiff and/or other persons used this answering defendant's products, if indeed any
were used, in an unreasonable manner, not reasonably foreseeable to this defendant, and for a

purpose for which the products were not intended, manufactured or designed. Plaintiffs injuries

yand damages, if any, were therefore dizectly and proximately caused by his misuse and abuse of

such products, .
THIRTY-POURTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that any exposure of plaintiff to this defendant's
product or products, which exposure is vigorously denied, was so minimal as tc be insufficient to

establish a reasonable degree of probability that the product or products caused his claimed

| THIRTY-FIFTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT ANSWER. AND
DEFENSE, this answering defendant alleges that at the time of this filing, there was no good
ground to support the complaint as to this defendant. There is now no good ground to support
the complaint as to this defendant. /

THIRTY-SIXTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff has waived any and all claims sought
in this action and is estopped both to assert and to recover upon such claims.

-10-
ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSnN

a Dw

THIRTY-SEVYENTH AFFIRMATIVE DEFEWSE

AS AND FOR A THIRTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the doctrine of joint and several liability has
been abolished in a case such as this, and should plaintiff prevail against this defendant, this
defendant's liability is several and is limited to ifs own actionable segment of fault, which fault is
vigorously denied.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff fail to
state a claim upon which relief can be granted, or, if relief be granted, this defendaat's
Constitutional right to substantive and procedural due process of law would be contravened.

THIRTY-NINTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTY-NINTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alicges that the causes of actions asserted by the plaintiff
fai] to state a claim upon which relief can be granted, for if relief be granted, such relief would
constitute a taking of this defendant's property for a public use without just compensation, a
violation ef this defendant's Constitutional rights.

FORTIETH AFFIRMATIVE DEFENSE

AS AND FOR A FORTIETH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff faii to
state a claim upon which relief can be granted because such relief would constitute a denial by
this court of defendant's Constitutional right to equal protection under the law.

FORTY-FIRST AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-FIRST, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the causes of action asserted by plaintiff
against this entity is improper as plaintiff incorrectly alleges that this answering defendant is
responsible, in whole or in part, for the acts of one or more alternative entities. This answering

defendant denies those claims.

- -ll-
ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSwD

wn

oc DU We TD A

AS AND FOR A FORTY-SECOND, SEPARATE AND DISTINCT ANSWER AND

DEFENSE, this answering defendant alleges ihat plaintiffs claim of successor hability and
association with other entities is not factually or legally supported, and, as such, plaintiff has no
claim against answering defendant as asserted.

FORTY-THIRD AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-THIRD, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that it is not responsible for the product line or
items which plaintiff claims that it manufactured, distributed or sold. Rather, this answering
defendant asserts that another entity manufactured, distributed and sold this product line and is

legally responsible therefor

AS AND FOR A FORTY-FOURTH SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that ic the extent any claim for relief in the
complaint, or amended complaint, seeks to recover damages against this defendant for alleged
acts or omissions of predecessors or suecessors-in-interest to this defendant of any kind or
description, said defendant asserts that it is not legally responsible and cannot legally be held
liable for any such acts or omissions. This defendant further asserts that it cannot be held able
for punitiye damages and/or exemplary damages which are or may be attributable to the conduct
of any predecessor or successor-in-interest. Further, this defendant asserts that the conduct of
any predecessor or successor-in-interest caunot, as a matier of law, provide a legal basis for
liability or the imposition of damages against this defendant.

FORTY-FIFTH AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-FIFTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that the product(s) or equipment which may have
becn manufactured or distributed by this answering defendamt were manufactured and/or
distributed in accordance with specifications and requirements supplied to this defendant by

individuals or entities inchiding, but not limited to, the United States of America. The alleged

-12- _
ANSWER TO COMPLAIN FOR PERSONAL INJURYnN

oOo DP me WM DH BR Ww

defect, if any, in said products was therefore caused by the mandatory specifications and
requirements, and the alleged defect was neither known te nor discoverable by this defendant
with the exercise of reasonable care.

FORTY-SIXTH AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-SEISTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that plaintiff's recovery against this answering
defendant is barred, diminished or reduced in that the product(s) or equipment, if any, utilized by
plaintiff was altcred or changed from the original condition of said product(s} or equipment at
the time it left the possession and control of this defendant.

FORTY-SEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-SEVENTH, SEPARATE AND DISTINCT ANSWER AND
DEFENSE, this answering defendant alleges that California is not proper forum in which to
litigate this matter pursuant to California Code of Civil Procedure section 410,30 and applicable

se law.

FORTY-EIGHTH AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-EIGHTH SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, this answering defendant alleges thai plaintiff was a sophisticated
user of any products that caused him injury, meaning that this answering defendant cau have no
liability pursuant to Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.

FORTY-NINTH AFFIRMATIVE DEFENSE

AS AND FOR A FORTY-NiINTH SEPARATE AND DISTINCT DEFENSE TO SAID
UNVERIFIED COMPLAINT, this answering defendant alleges that plaintiff's employer(s)
was/were sophisticated users of any products that caused him injury, meaning that this answering
defendant can have no liability pursuant to Johnson v. American Standard, Inc. (2008) 43 Cal.4th
56.

Hie

Hie

Hit

-13-
ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSTRANINA SRE TG.

Ww

WHEREFORS, this answering defeadant prays that olaintiff takes nothing by his actions,
that this answering defendant be dismissed with costs of suit incurred herein, and for such other
and further relief as this court deems just and proper.

Dated: August // 2010 GORDON & REES LLP

4 Jovem ¢
By: fro Defined. .
Michael J Pietrykowski
Attorneys for Defendant
TRANE U.S., INC., erroneously sued as
TRANE U:S., INC., formerly known as
AMERICAN STANDARD, INC.

nite ee
ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSTRANBNARIRS3 9.5

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

Re: Laurance Hagen v. Associated Insulation of California. et al..
San Francisco County Superior Court Case No CGC-10-275582

I, Silvia Escobar, declare: that ] am, and was al the time of service of the

documents herein referred to, over the age of 18 years, and not a party io the action; and I
am employed in the County of San Francisco, California. My business address is Gordon
& Rees LLP, Embarcadero Center West, 275 Battery Street, 20th Floor, San Francisco,
California 94111.

On the date executed below, | electronically served the document(s) via LexisNexis File

& Serve described as:
Auswer to Complaint For Personal Injury ~Asbestos

on the recipients designated on the Transaction Receipt located on the LexisNexis
File & Serve website. | 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, 2010 at San Francisco, California.

J

DAKE

ae 2 Se a . :
Silvia Escobar, case assistant to Michael J. Pietrykowski