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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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EUGENE BROWN, JR., ESQ., Bar No. 079824
FILICE BROWN EASSA & MCLEOD LLP

1999 Harrison Street, Suite 1800 ELECTRONICALLY
Oakland, California 94612-3520

Telephone: 510.444.3131 sopekr IL ED ala,
Facsimile: 510.839.7940 : County of San Francisco
Attorneys for Defendant JUL 28 2010
TOSCO CORPORATION erroneously sued and Clerk of the Court
served as TOSCO REFINING COMPANY, INC. BY: JUDITH ae epuly Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
LAURANCE HAGEN, Case No. CGC-10-275582
Plaintiff, ANSWER TO COMPLAINT FOR

PERSONAL INJURY-ASBESTOS
v.

ASSOCIATED INSULATION OF
CALIFORNIA, ET AL.,

Defendants.

COMES NOW, TOSCO CORPORATION erroneously sued and served as TOSCO
REFINING COMPANY, INC., and by way of answer to plaintiff's complaint and pursuant to
the terms of California Code of Civil Procedure Section 431.30 denies generally each and every
allegation of the complaint. Defendant further specifically denies that it is liable to plaintiff in
any sum or sums whatsoever, or at all, for special, compensatory, punitive or any other type of
damage.

AND AS FOR A FIRST, SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:

‘That the complaint, and each cause of action stated therein, fails to state facts sufficient to

constitute a cause of action.

05022 35453 MTRAN 635285.1

ANSWER TO COMPLAINT FOR PERSONAL INJURY-ASBESTOSio Om ND

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FBE&M

‘ancy CA 940r2 3881
PHONE SNAKE

AND AS FOR A SECOND, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That neither the complaint, nor any of the alleged causes of action therein, state facts
sufficient to constitute a cause of action for equitable relief against this answering defendant.

AND AS FOR A THIRD, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That the complaint fails to properly invoke the equity jurisdiction of the court.

AND AS FOR A FOURTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That this court lacks personal jurisdiction as to this answering defendant.

AND AS FOR A FIFTH, SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:

That the applicable statutes of limitations, including but not limited to, C.C.P. sections
312, 338, 338.1, 339, 340(1), 340(3), 340.2 and 343 bars the complaint and each cause of action
stated therein.

AND AS FOR A SIXTH, SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:

That the complaint, and each cause of action stated therein is ambiguous and uncertain.

AND AS FOR A SEVENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That during the relevant time and/or times, defendant did not own, control, maintain,
lease, rent, occupy or otherwise exercise control over the subject premises.

AND AS FOR AN EIGHTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That during the relevant time and/or times, defendant did not supervise or exercise contro]

over plaintiff or his employers work at any premises.

~2- 05022 35453 MTRAN 635285.1

ANSWER TO COMPLAINT FOR PERSONAL INJURY-ASBESTOS1 AND AS FOR A NINTH, SEPARATE DISTINCT AND AFFIRMATIVE
2 | DEFENSE, DEFENDANT ALLEGES:

3 That plaintiff has unreasonably delayed the commencement of this action and prejudiced
this answering defendant such that the doctrine of laches bars the complaint and each cause of
action therein.

AND AS FOR A TENTH, SEPARATE DISTINCT AND AFFIRMATIVE

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7 | DEFENSE, DEFENDANT ALLEGES:
8 That plaintiffs damages, if any, are completely or in part the result of plaintiffs failure to
9 | mitigate as required by law.

10 AND AS FOR AN ELEVENTH, SEPARATE DISTINCT AND AFFIRMATIVE

11 | DEFENSE, DEFENDANT ALLEGES:

12 That if plaintiff suffered injuries attributable to the use of any product referred to in

13 | plaintiff's complaint, which injuries are expressly denied, the injuries were solely caused and

14 || attributable to the unreasonable, unforeseeable and inappropriate purpose and improper use that
15 || was made of the products and the failure by plaintiff, or others, to follow label instructions.

16 AND AS FOR A TWELFTH, SEPARATE DISTINCT AND AFFIRMATIVE

17 | DEFENSE, DEFENDANT ALLEGES:

18 That parties to this action and nonparties, other than this answering defendant, were

19 | negligently or legally responsible, or otherwise at fault for any damages alleged in the complaint,
20 | which damages are herein denied and therefore, in the event of any liability, whether by

21 || settlement or judgment in favor of any other party against this answering defendant, the court or
22 || jury should apportion fault as to all parties. Furthermore, this answering defendant requests a

23 | judgment and declaration of indemnification and contribution against all other parties or persons

24 | in accordance with the apportionment of fault between the parties.
25 AND AS FOR A THIRTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
26 | DEFENSE, DEFENDANT ALLEGES:

27 ‘That at the time and place of the incident, happening or matter set forth in the complaint
28 || on file herein, and at all times herein mentioned, plaintiff himself was guilty of carelessness and
FBE@M -3- 05022. 35453 MTRAN 635285.1

(Lair MERRITT PLAZA,

1999 Hangason Sane

Kawrniasri Fuoon,

ant AND CA 94652541
unisy S10.444 3031

ANSWER TO COMPLAINT FOR PERSONAL INJURY-ASBESTOS.negligence in and about the matters and things set forth in said complaint on file herein; that the
carelessness and negligence on the part of the plaintiff actually and proximately caused and
contributed to plaintiff's alleged injuries and/or damages.

That plaintiff's alleged injuries, which are herein denied, were actually and proximately
caused solely by the contributory and/or comparative negligence of plaintiff and each of the
claims stated therein are barred by reason of such comparative negligence.

That should plaintiff recover damages against defendant, said defendant is entitled to have
the amount abated, reduced or eliminated to the extent plaintiff's negligence caused or contributed
to his injuries and damages, if any.

AND AS FOR A FOURTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That plaintiff knowingly assumed the risk of any injury or damage alleged in the
complaint.

AND AS FOR A FIFTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That the subject products, and their component parts were not used as instructed and
intended, but were subjected to unforeseeable and unanticipated misuse, abuse, alteration and/or
modification by those other than this answering defendant. Said misuse, abuse, alteration, and/or
modification was the proximate cause of the injuries and damages, if any, allegedly sustained by
plaintiff,

AND AS FOR A SIXTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That plaintiff's employer's negligence was the proximate cause of the injuries and
damages, if any, allegedly sustained by plaintiff.

AND AS FOR A SEVENTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That plaintiff's employer assumed the risks incident to all matters relevant to this action.

~4- 05022 35453 MTRAN 635285.1

ANSWER TO COMPLAINT FOR PERSONAL INJURY-ASBESTOS28
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AND AS FOR AN EIGHTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

‘That all activities of this answering defendant alleged in the complaint, conform to
statutes, governmental regulations and industry standards based upon the state of knowledge
existing at the time alleged in the complaint and each cause of action therein.

AND AS FOR A NINETEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

‘That the benefits of the asbestos-containing products referred to in plaintiff's complaint
outweigh the risks of danger, if any, inherent in such products.

AND AS FOR A TWENTIETH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That the products alleged in the complaint were used by a sophisticated user/intermediary,
and said user/intermediary having adequate and complete warnings of the risks involved in the
use of said products, this answering defendant had and has no duty to independently warn
plaintiff of the said risks such that plaintiff's claims are thereby barred.

AND AS FOR A TWENTY-FIRST, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That any injuries resulting from the use of the subject products, which injuries are herein
denied, were not foreseeable to this answering defendant given the state of knowledge and state
of art at the time of the alleged injuries.

AND AS FOR A TWENTY-SECOND, SEPARATE DISTINCT AND
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

That this answering defendant was not engaged in any ultra hazardous activity or in the
manufacture, formulation, packaging, labeling, distribution or sale of any product, such that this

answering defendant cannot be held strictly liable.

~5- 05022 35453 MTRAN 635285,

ANSWER TO COMPLAINT FOR PERSONAL INJURY-ASBESTOS28
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[LAKE MERRIE PCAZA
1998 Mannasons STaret

AND AS FOR A TWENTY-THIRD, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That plaintiff's complaint to the extent that it seeks exemplary or punitive damages
pursuant to California Civil Code Section 3294, violates defendant's tight to procedural due
process under the Fourteenth Amendment of the United States Constitution, and Article I, Section
7 of the Constitution of the State of California, and therefore fails to state a cause of action upon
which either punitive or exemplary damages can be awarded.

AND AS FOR A TWENTY-FOURTH, SEPARATE DISTINCT AND
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

That said complaint, to the extent that it seeks punitive or exemplary damages pursuant to
California Civil Code Section 3294, violates defendant's right to protection from "excessive fines"
as provided in the Eighth Amendment of the United States Constitution and Article 1, Section 17
of the Constitution of the State of California, and violates defendant's right to substantive due
process as provided in the Fifth and Fourteenth Amendments of the United States Constitution
and the Constitution of the State of California, and therefore fails to state a cause of action
supporting the punitive or exemplary damages claimed.

AND AS FOR A TWENTY-FIFTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES;:

Defendant alleges that said complaint, and each cause of action therein, fails to state facts
sufficient to warrant an award of exemplary or punitive damages.

AND AS FOR A TWENTY-SIXTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That this Defendant is liable, if at all, only for its proportion of liability/damages as set
forth by CC § 1431 et seq.

-6- 03022 35453 MTRAN 635285.1

ANSWER TO COMPLAINT FOR PERSONAL INJURY-ASBESTOStl

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feSTIE FLOOR
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AND AS FOR A TWENTY-SEVENTH, SEPARATE DISTINCT AND
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

That indispensable parties have not been joined and that it is necessary for these absent
patties to be joined in order to obtain a just and final adjudication of all matters alleged in the
complaint.

AND AS FOR A TWENTY-EIGHTH, SEPARATE DISTINCT AND
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

This court is an improper venue for the adjudication of the matters alleged in the
complaint.

AND AS FOR A TWENTY-NINTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That any loss, injury or damage incurred by plaintiff, if any, was proximately caused by
the negligent or willful acts or omissions of parties or nonparties whom defendant did not control,
and was not proximately caused by any acts, omissions or other conduct of defendant.

AND AS FOR A THIRTIETH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

This action is barred by California Labor Code §§ 3600 et seq.

AND AS FOR A THIRTY-FIRST, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That all times mentioned in the Complaint on file herein, defendant is informed and
believes that the employer of plaintiff, was insured under a policy of Worker's Compensation
Insurance; that on account of the alleged injuries referred to in plaintiff's Complaint, the
compensation carrier has paid to and on behalf of plaintiff certain sums by way of Worker's
Compensation, under the worker's compensation laws of the State of California; that at all times
mentioned in plaintiff's Complaint, said employer and its agents, servants and employees, acting
within the course and scope of their agency and employment, were negligent and careless in and
about the matters referred to in plaintiff's Complaint; that said employer carelessly and

negligently failed to furnish the plaintiff with a safe place to work and carelessly and negligently
-7- 05022 35453 MIRAN 635285.1

ANSWER TO COMPLAINT FOR PERSONAL INJURY-ASBESTOS28
FPBE&M

Lae MeRRrT3 PEAzA
1995 Haweason StL

failed to provide proper supervision, inspections, tools, appliances and contro! and direction over
its employees in the place of employment; that said carelessness and negligence proximately
caused and contributed to the injuries which plaintiff claims to have sustained; that the
carelessness and concurrent negligence bars recovery against this answering defendant of all
sums paid or to be paid to or on behalf of plaintiff by way of Worker's Compensation benefits as
aforesaid; that said carelessness and concurrent negligence of the employer is by law imputed to

the insurance carrier of said employer.

Dated: July 2h , 2010 FIL ROWN

Attorneys for Defendant

TOSCO CORPORATION erroneously sued
and served as TOSCO REFINING
COMPANY, INC.

Aor Det TR., ESQ.(7 \

-8- 05022 38453 MTRAN 635285.1

ANSWER TO COMPLAINT FOR PERSONAL INJURY-ASBESTOS28
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PROOF OF SERVICE
Laurance Hagen v. Associated Insulation of California, et al.-Tosco Corporation
San Francisco County Superior Court Docket Number: CGC-10-275582

I, MARY T. TRAN, am a citizen of the United States, over 18 years of age and not party
to the within action, | am employed in the county of Alameda; my business address is 1999
Harrison Street, 18" Floor, Oakland, CA 94612.
On July & , 2010, I served the within documents:
ANSWER TO COMPLAINT

On all parties in this action, as addressed below, by causing a true copy thereof to be distributed
as follows:

Brayton Purcell Berry & Berry
222 Rush Landing Road 2930 Lakeshore Avenue
P. O. Box 6169 P. O. Box 16070
Novato, CA 94948-6169 Oakland, CA 94610
[ ] BY MAIL: lam “readily familiar” with the firm’s practice of collection

and processing correspondence for mailing. Under that
practice it would be deposited with U.S. Postal service on
that same day with postage thereon fully prepaid in the
ordinary course of business. | am aware that on motion of
the party served, service is presumed invalid if postal
cancellation date or postage meter data is more than one day
after date of deposit for mailing in affidavit.

I | VIA HAND DELIVERY: I caused such envelope, to be hand delivered to the stated
parties by an agent of INTERCEPTOR.

VIA ELECTRONIC I caused a true and correct copy of such documents to be
P.
[Xx] SERVICE: electronically served on counsel of record by transmission
to Lexis-Nexis File and Serve.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed on july LA, 2010, at Oakland, California.

)}-~

Mary T. Tran

-9- 05022 35453 MTRAN 635285.1

ANSWER TO COMPLAINT FOR PERSONAL INJURY-ASBESTOS
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