arrow left
arrow right
  • 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

                                ce 1 A th ke BR Re

ype Pp BP PN RP RP Be Be Be Be eB oe ew ee
>a 3 DR A & &@ BP = SF OS SB WH A BF BH NY KF SS

Jeffrey 8. Gillespie, State Bar No. 192495
Kimberly Chew, State Bar No. 251263

BURNHAM BROWN ELECTRONICALLY
A Professional Law Corporation

P.O. Box 1 19 +, sopekr IL ED a
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: CHRISTLE ARR
Faesimile: (510) 835-6666 epuly Uler
Attorneys for Defendant

MCGUIRE & HESTER CORPORATION

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION
LAURANCE HAGEN, No. CGC-10-275582
Plaintiff, DEFENDANT MCGUIRE & HESTER
CORPORATION’S ANSWER TO
v PLAINTIFF LAURANCE HAGEN’S
COMPLAINT FOR PERSONAL
ASSOCIATED INSULATION OF INJURY - ASBESTOS
CALIFORNIA et al., :
Defendants. Complaint Filed: June 2, 2010

Defendant MCGUIRE & HESTER CORPORATION (“Defendant”), in answer to the
complaint denies generally and specifically, each and every, all and singular, the allegations of
said complaint, and each cause of action thereof, and further denies that Plaintiff LAURANCE
HAGEN (“Plaintiff”) has been damaged in any sum or sums at all.

WHEREFORE, this answering Defendant asserts the following affirmative defenses:

AFFIRMATIVE DEFENSES
1. Asa first affirmative defense to each cause of action, the complaint does not state

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

1
DEFENDANT MCGUIRE & HESTER CORPORATION'S ANSWER TO PLAINTIFF CGC-T0-275585 |
LAURANCE HAGEN’S COMPLAINT FOR PERSONAL INJURY - ASBESTOSwo eS UM AD A RB ON Oe

PN PW RP Pw RR NR YR RP Be Be eB Be Be eB ee ee
2 A aA & F&F oN SS SF SFC B&F AA HB BDH BS

2. Asasecond 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 damages, if any, as required by law.

4, Asa fourth affirmative defense to cach 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, Asa fifth affirmative defense to each cause of action, Plaintiff by 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. Asa seventh affirmative defense to each cause_of action, Plaintiff was partially, if not
wholly, negligent or otherwise at fault on own part pursuant to the doctrine of comparative fault,
and Plaintiff is barred from recovery of that portion of the damages directly attributable to
proportionate share of fault.

8. Asan eighth affirmative defense to each 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. As aninth 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 California Constitution,

2
DEFENDANT MCGUIRE & HESTER CORPORATION'S ANSWER TO PLAINTIFF CGC-10-275582
LAURANCE HAGEN’S COMPLAINT FOR PERSONAL INJURY - ASBESTOSCo Se TI DA Rh ee YH NMR

RN RP RP RP NR RN RP Be Be e— Se Be ee Se ee ee
eos tI A hw FS BY BM Se SF SC SF HW HR eR eR BR PH SS

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 was 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.

1t. 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 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 barred 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
employers, and Plaintiff, 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 Privetie 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 Plaintiff.

3
DEFENDANT MCGUIRE & HESTER CORPORATION'S ANSWER TO PLAINTIFF CGOC-10-275582
LAURANCE HAGEN’S COMPLAINT FOR PERSONAL INJURY - ASBESTOSec eS DR HR mh BR Mm

wp NM RP RP RP NR ROR es
e232 A hm F&F BN SB SF &o Bat A RH BRB HW YH FS

15. Asa fifteenth 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.

16. Asa sixteenth affirmative defense to each cause of action, the injuries and
damages sustained by Plaintiff, if any, were solely and legally caused by the modification,
altefation 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.

17. Asa seventeenth affirmative defense to each cause of action, Plaintiff and/or
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 form a 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
“Pair 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

4

DEFENDANT MCGUIRE & HESTER CORPORATION’S ANSWER TO PLAINTIFF CGC-10-275582
LAURANCE HAGEN’S COMPLAINT FOR PERSONAL INJURY - ASBESTOSeo Oo WA Hh BB HW HB eR

wyN YW YP NR N KR ON YR Be Ee Be Be oe oe oe ee oe
eo 2A A So Hn fF SF BSB AAA BAH ES

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. Asa 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.

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 their 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, As atwenty-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 cach 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, Asa 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 be
heard in a forum outside this state.

WHEREFORE, this answering Defendant prays for judgment as follows:

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

8
DEFENDANT MCGUIRE & HESTER CORPORATION’S ANSWER TO PLAINTIFF CGC-10-275582
LAURANCE HAGEN’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS~~ fe 2 AR Rh ee Bw HR

Py NRO NR RP RP NR N BD Be Be ee Be Be Se Be ee oe
SC FA mw FYB YM SF SF © Ber A HA BF HB BS ES

2. For costs of suit incurred herein; and

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

DATED: August 12, 2010 BURNHAM BROWN

By.

JE EY §, GILLESPIE
Attorneys for Defendant

MCGUIRE & HESTER CORPORATION

6

DEFENDANT MCGUIRE & HESTER CORPORATION’S ANSWER TO PLAINTIFF
LAURANCE HAGEN’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS

CGC-10-275582Re: Laurance Hagan v. Associated Insulation of California, et al.
Court: San Francisco Superior Court
Action No: CGC-10-275582

PROOF OF SERVICE OF ELECTRONIC SERVICE

J, declare that I am over the age of 18, not a party to the above-entitled action, and
am an employee of Burnham Brown whose business address is 1901 Harrison Street,
"FR loor, 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 MCGUIRE & HESTER CORPORATION’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 12, 2010 at

Oakland, California.
:
reba iti >
AMELIA HOKAFONU LJ

PROOF OF SERVICE CGC-10-275582