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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

                                MARTE J. BASSL ESQ. (SBN 130882)
MYLES B. SOLOMON, ESQ. (SBN 232210)
BASSL EDLIN, HUIE & BLUM LLP

351 California Street, Suite 200

San Francisco, CA 94104

Telephone: — (415) 397-9006

Facsimile: (415) 397-1339

Attorneys for Defendant
WRIGHT SCHUCHART HARBOR

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

LAURANCE HAGEN,
Plaintiff,
vs.

ASSOCIATED INSULATION OF
CALIFORNIA, et. al..

Defendants.

Defendant WRIGHT SCHUCHART HARBOR sued in this case as WRIGHT

ELECTRONICALLY

FILED

Superior Court of Calif
County of San Franc

JUL 29 201

wnia,
CO

Clerk of the Court

BY: CHRISTLE ARRI
Deput)

Case No, CGC-10-275582

DEFENDANT WRIGHT SCHUCHART
HARBOR’S ANSWER TO UNVERIFIED
COMPLAINT FOR PERSONAL INJURY -
ASBESTOS

SCHUCHART HARBOR COMPANY (“WSH”) hereby answers the unverified complaint for

damages of Plaintiff LAURANCE HAGEN (‘Plaintiff’) as follows:

Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, WSH.
denies each and every, all and singular, both generally and specifically, the allegations of
Plaintiff's unverified complaint, and further denies that Plaintiff has been damaged as alleged, or
at all, by reason of any act or omission on the part of WSH or its agents, servants or employees.

FIRST DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that

Plaintiff's unverified complaint fails to state facts sufficient to constitute a cause of action against]

WSH.

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DEFENDANT WSH'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOS

LA

ClerkSECOND DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiff has failed to join all persons and parties needed for a just adjudication of this action.
THIRD DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiff's claims are barred by laches, waiver and/or estoppel.

FOURTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH aileges that this

Court does not have subject matter jurisdiction over this action or alternatively that the Court

lacks jurisdiction due to insufficiency of process or the service thereof and/or improper venue.
FIETH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiff has failed to commence this action within the time required by the applicable statutes of
limitation, including but not limited to California Code of Civil Procedure sections 340(3),
340.2, and 343.
SIXTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiff's damages, if any, were proximately caused, in whole or in part, by Plaintiff’s own fault
and negligence in failing to exercise reasonable care for his own safety. Plaintiff's recovery
from WSH, if any, should therefore be reduced proportionate to Plaintiffs comparative fault.
SEVENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiff has failed to mitigate his alleged damages, if any there were.
EIGHTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that if
Plaintiff was injured as a result of his exposure to products used or installed at WSH’s premises,

which is denied, such injury occurred after the expiration of the useful safe life of such products.

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DEFENDANT WSH'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSNINTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that if
Plaintiff suffered any damages, which is denied, such damages were the sole and proximate
result of an unavoidable accident.

TENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that if
Plaintiff suffered any damages, which is denied, such damages were caused and/or contributed to
by Plaintiff's misuse of the product or products and Plaintiff’ s recovery should be barred or
reduced accordingly.

ELEVENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that if
Plaintiff suffered any damages, which is denied, such damages were solely and proximately
caused and/or contributed to by the negligence or other liability of third persons or entities over
whom or which Defendant WSH had no control or supervision,

TWELFTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that any
asbestos-containing product or products alleged to have caused Plaintiff’s injuries were
manufactured, used, installed and/or distributed in mandatory compliance with specifications
promulgated by the United States government under its war powers, as set forth in the U.S.
Constitution, and that any recovery by Plaintiff is barred as a consequence of the exercise of
those sovereign powers.

THIRTEENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that if
Plaintiff suffered any injuries or damages, which is denied, the risk of any such injuries or
damages was not foreseeable to WSH. WSH at all times material hereto acted in accordance
with the state of scientific knowledge available to installers and/or users of asbestos-containing

products.

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DEFENDANT WSH'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSFOURTEENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that it
received no notice of any dangerous, hazardous or defective condition or any breach of warranty,
either expressed or implied.

FIFTEENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiffs claims against WSH are barred by the holdings of Privette v. Superior Court, 5 Cal.
4th 689 (1993) and Toland v. Sunland Housing Group, Inc., 18 Cal. 4th 253 (1998).

SIXTEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiff’s purported exposure to any asbestos-containing product or products allegedly used or
installed at WSH’s premises was minimal and insufficient to establish the probability that said
product or products were a legal cause of Plaintiffs alleged injuries.
SEVENTEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that his
action is barred by the applicable state and/or federal industrial insurance and/or Workers’
Compensation laws, including, but not limited to, California Labor Code sections 3601 and
3602, and section 905 of Title 33 of the United States Code.
EIGHTEENTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that at the
time of the injuries alleged in Plaintiff's complaint, Plaintiff was employed by persons other than
WSH, was entitled to receive and did receive Workers Compensation benefits from said
employer(s) or their insurers, and that said employers(s) were negligent and careless in and about]
the matters referred to in Plaintiff's complaint. WSH is, therefore, entitled to set-off any such
benefits received by Plaintiff against any judgment rendered in Plaintiff's favor herein and said
employer(s) are barred from any recovery by lien or otherwise against WSH in connection with

this matter.

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DEFENDANT WSH'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSNINETEENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiff voluntarily and knowingly assumed the alleged risks and hazards incident to the alleged
operations, acts and conduct at the times and places alleged in Plaintiffs complaint and that
Plaintiff's said acts proximately caused and contributed to the alleged damages, if any there
were.

TWENTIETH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that at all
times relevant to the matters alleged in Plaintiff's complaint, Plaintiff's employers were
sophisticated users of asbestos-containing products and said employers’ negligence in providing
said products to its employees was a superseding and/or intervening cause of Plaintiff's injuries
or damages, if any there were.

TWENTY-FIRST DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant WSH alleges
that there was no concert of action among WSH and other defendants to his action and that any
alleged liability or responsibility of WSH, which is denied, is minimal in proportion to the
alleged liability and responsibility of other persons and entities including the other defendants
herein. Plaintiff should therefore be limited to seeking recovery from WSH for the proportion of
alleged injuries and damages for which WSH is allegedly liable or responsible, all such alleged
liability and responsibility being denied.

TWENTY-SECOND DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, to the extent the
Complaint alleges that WSH has “market share” liability or “enterprise liability,” the complaint
fails to state facts sufficient to constitute a cause of action against WSH.

TWENTY-THIRD DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that it is

entitled to set-off any settlements, judgments, or similar amounts received by Plaintiff, against

any judgment rendered against it in Plaintiff's favor herein.

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DEFENDANT WSH'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSTWENTY-FOURTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges in
accordance with section 1431.2 of the Civil Cade, known as the Fair Responsibility Act of 1986,
that if Plaintiff's complaint states a cause of action, each defendant is liable, if at all, only for
those non-economic damages allocated to each defendant in direct proportion to each
defendant’s percentage of fault, if any. WSH also requests a judicial determination of the
amount of non-economic damages, if any. WSH also requests a judicial determination of the
amount of non-economic damages, if any, allocated to WSH in direct proportion to WSH’s
percentage of fault, if any, and a separate judgment in conformance therewith.

TWENTY-FIFTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiff's damages and injuries, if any, were proximately caused or contributed to, in whole or ii
part, by the negligence or fault or other acts and/or omissions of persons or entities other than
WSH, for which WSH is not responsible.

TWENTY-SIXTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
neither the complaint nor any purported cause of action alleged therein states facts sufficient to
entitle Plaintiff to an award of punitive damages against WSH.

TWENTY-SEVENTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiff is not entitled to recover punitive or exemplary damages from WSH and that such
damages are violative of the Constitutions of the United States and of the State of California.

TWENTY-EIGHTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiffs instant action is barred or, alternatively, merged into a prior cause of action for which
Plaintiff has previously sued upon, recovered, and dismissed with prejudice, herby requiring a
complete extinguishment of the instant action due to the doctrine of Res Judicata and Collateral

Estoppel.

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DEFENDANT WSH'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSTWENTY -NINTH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that
Plaintiff did not reasonably rely upon any representation, disclaimer, warranty or other act or
omission of WSH.

THIRTIETH DEFENSE

AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, WSH alleges that

Plaintiff has failed to sufficiently allege successor liability against WSH.
PRAYER
WHEREFORE, WSH prays for judgment as follows:

1 That Plaintiff take nothing by reason of his complaint herein;

2. That judgment be entered in favor of WSH;

3. For costs of suit incurred herein; and

4 For such other and further relief as the Court may deem just and proper.

Date: July 26, 2010 BASSL EDLIN, HUIE & BLUM LLP

/S/ MYLES SOLOMON
By:

MYLES SOLOMON, ESQ. (SBN 232210)
Attorneys for Defendant

WRIGHT SCHUCHART HARBOR
BASSI, EDLIN, HUIE & BLUM LLP

351 California Street, Suite 200

San Francisco, CA 94104

Telephone: (415) 397-9006

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DEFENDANT WSH'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY - ASBESTOSRe: Laurance Hagen y. Associated Insulation of California et al.
an Francisco County Superior Court Case No. CGC=10-278582

PROOF OF SERVICE —- ELECTRONIC TRANSMISSION

STATE OF CALIFORNIA/COUNTY OF San Francisco

fam a citizen of the United States and an employee in the County of San Francisco. |
am over the age of eighteen (18) years and not a party to the within action. My business
address is BASSI, EDLIN, HUIE & BLUM LLP, 351 California Street, Suite 200, San
Francisco, California 94104.

On the date executed below, I electronically served the document(s) via LexisNexis
File & Serve, described below, on the recipients designated on the Transaction Receipt located
on the LexisNexis File & Serve website.

DEFENDANT WRIGHT SCHUCHART HARBOR'S ANSWER TO.
UNVERIFIED COMPLAINT FOR PERSONAL INJURY-ASBESTOS
On the following parties:

PLEASE SEE SERVICE LIST PROVIDED BY LEXIS-NEXIS
I declare under penalty of perjury that the foregoing is true and correct and that this

document is executed on July 29, 2010, at San Francisco, California.

/s/ ALISHA C. PEMBER

ALISHA C. PEMBER

20H

8

PROOF OF SERVICE