On June 02, 2010 a
Answer
was filed
involving a dispute between
Hagen, Laurance,
and
3M Company,
4520 Corp., Inc.,,
A & A Mechanical Contractors Inc.,
A & A Sheet Metal,
Aberthaw Construction Company,
Acco Engineered Systems, Inc.,
A.E. Knowles Corporation,
Aire Sheet Metal Inc.,
Air Systems Mechanical Contractor,
A.J. Peters & Son,
Aladdin Heating Corporation,
Albay Construction Company,
Allied Painters, Inc.,
Allied Sprinkler Company, Inc.,
Anderson, Rowe & Buckley, Inc.,
Applied Support Systems, Inc.,
A.R.B. Mechanical,
Armaral Plumbing,
Associated Insulation Of California,
Atlas Heating And Ventilating Company, Ltd.,
Bailey Plumbing, Heating & Sheet Metal,
Barnes Construction Co.,
Bay Cities Crane And Rigging, Inc.,
Bayer Cropscience Inc.,
Bayer Cropscience, Inc.,,
B H P Minerals International, Inc.,
Bigge Crane And Rigging Co.,
Bragg Investment Company, Inc.,
B.T. Mancini Co., Inc.,
Buttner Corp.,
Cahill Contractors, Inc.,
Carrier Corporation,
Cbs Corporation, A Delaware Corporation, Fka,
Cbs Corporation (F K A Viacom Inc., F K A,
C.C. Moore & Co. Engineers,
Certainteed Corporation,
Chevron U.S.A. Inc.,
Chicago Bridge & Iron Company,
Chicago Bridge & Iron Company,,
Cleaver-Brooks, Inc.,
Coastal West Ventures, Inc.,
Commair Mechanical Services,
Conocophillips Company,
Consolidated Insulation, Inc.,
Cooper Brothers, Inc.,
Corey Contractors,
Cosco Fire Protection, Inc.,
Coscol Petroleum Corporation,
Coscol Petroleum Corporation Erroneously Named And,
Crane Co.,
Crowley Plumbing,
Crown Cork & Seal Company, Inc.,
C & R Plastering, Inc.,
Cupertino Electric, Inc.,
Dana Companies, Llc,
Devcon Construction, Inc.,
Dillingham Construction, N.A., Inc.,
Does 1-8500,
Domco Products Texas Inc. Erroneously Sued,
Domco Products Texas, L.P.,
Dome Construction Corporation,
Douglass Insulation Company, Inc.,
D.W. Nicholson Corporation,
D. Zelinsky & Sons, Inc.,
Early Engineering Corporation, Incorporated,
East Bay Sheet Metal Works,
East Bay Sheet Metal Works, A Dissolved Corp.,
E.C. Braun Company, Inc.,
Emerick Sheet Metal Co.,
Emil J. Weber Electric Co.,
E. Mitchell, Inc.,
Enterprise Plumbing, Inc.,
Erwin Mechanical Inc.,
Ex- Fm, Inc. (Fka Fischbach And Moore Electric,,
Exxon Mobil Corporation,
Faye Plumbing,
Fdcc California, Inc.,
Finzel Plumbing Company,
Fischbach And Moore, Incorporated, Nka Ex-Fm, Inc.,
Fluor Corporation,
Foley-Pmi, Inc.,
Foster Wheeler Llc,
Foster Wheeler Llc (Fka Foster Wheeler,
F.P. Lathrop Construction Company,
F.P. Lathrop Construction Company,,
Frank Bonetti Plumbing, Inc.,
Frederick Meiswinkel, Inc.,
F.W. Spencer & Son, Inc.,
Garlock Sealing Technologies, Llc,
General Cable Corporation,
General Electric Company,
George F. Schuler, Inc.,
George M Robinson & Co.,
George Townsend & Associates,
George Wilson Company, Inc.,
Georgia-Pacific Corporation,
Georgia-Pacific Llc,
Giampolini & Co.,
Golden Gate Drywall, Inc.,
Granite Rock Company,
Grinnell Corporation,
Grinnell Llc,,
Haas And Haynie Corporation,
Haas & Haynie Corporation,
Hamilton Materials, Inc.,
Hansen Plumbing And Heating,
Hanson Permanente Cement, Inc. Formerly Known As,
Harry Lee Plumbing & Heating,
H.B. Fuller Company,
H & C Investment Associates, Inc.,
Hensel Phelps Construction Co,
Hensel Phelps Construction Co.,
Herrick Iron Works,
Honeywell International, Inc.,
Honeywell International Inc., Fka Alliedsignal,,
Hopeman Brothers, Inc.,
H.T.R. Enterprises, Inc.,
Ingersoll-Rand Company,
Jacobs Constructors, Inc.,
James A. Nelson Co., Inc.,
James Nelson,
Johnson Controls, Inc.,
J.R. Simplot Company,
J.T. Thorpe, Inc.,
J.T. Thorpe & Son, Inc.,
J.W. Mcclenahan Company, Inc.,
Kaiser Gypsum Company, Inc.,
Kelly-Moore Paint Company, Inc.,
Kentile Floors, Inc.,
Kent M. Lim & Company, Inc.,
Kinetic Systems, Inc.,
Kramer Acoustics,
Laub Sheet Metal Works,
Leonard Construction Company,
Lewis Air & Refrigeration,
L.J. Kruse Company,
Macarthur Company,
Madlem Mechanical, Inc.,
Marcal Associates, Ltd.,
Marconi Plastering Company, Inc.,
Marina Heating & Air Conditioning,
Marina Plumbing Company,
Mauch Sheet Metal,
Mayta & Jensen,
Mcguire & Hester Corporation,
Mckeon Construction,
Mcmillan Brothers Electric, Inc.,
Metropolitan Life Insurance Company,
Monterey Mechanical Company,
Norcal Scaffolding,
N. P. I. Corporation,
N.V. Heathorn, Inc.,
Oakfabco, Inc.,
Ocean Shore Iron Works,
O.C. Mcdonald Co., Inc.,
O H I Company, Inc.,
Oscar E. Erickson, Inc.,
Owens-Illinois, Inc.,
Owens Mckeon Construction,
Pacific Coast Builders,
Pacific Gas & Electric Company,
Pacific Mechanical Corporation,
Parker-Hannifin Corporation,
Parsons Infrastructure & Technology Group Inc.,
Peerless Stucco Co.,
Perini Corporation,
Perini Land And Development Company,
Peter Kiewit Sons, Inc.,
Peter Lim Construction,
Pierce Enterprises,
Pierce Lathing Company Dba Pierce Enterprises,
Power Refrigeration Company,
Powers Process Controls,
Quality Air Conditioning, Inc.,
Quintec Industries, Inc.,
Raphael Company,
Raymond Interior Systems-North,
Ray Oil Burner Co., A Dissolved Corporation,,
Ray Oil Burner Company, Inc.,
Republic Supply Company,
Rmc Pacific Materials, Inc.,
Robertshaw Controls Company,
Rodoni Becker,
Rosendahl Corporation,
Rountree Plumbing & Heating Inc.,
Rudolph And Sletten, Inc.,
Santa Fe Braun, Inc. As Successor-In-Interest To,
Schneider Electric Usa, Inc. (Fka Square D,
Scott Co. Of California,
Scott Norman Mechanical Company,
Scott Technologies, Inc.,
Sequoia Ventures Inc.,
S F L, Inc.,
Shell Oil Company,
Sierra Pacific Industries,
S.J. Amoroso Construction Co., Inc.,
Stanford Plumbing,
Stolte Inc.,
Sugden Engineering Co.,
Swinerton Builders,
Temporary Plant Cleaners, Inc.,
Texaco, Inc.,
The Goodyear Tire & Rubber Company,
The Jack Dymond Company,
The Linford Company,
Therma Corporation,
Therma Mechanical,
Thermon Manufacturing Co.,
Thomas Air & Refrigeration Inc.,
Thomas Dee Engineering Company,
Timec Company, Inc.,
Tosco Corporation,
Tosco Corporation Erroneously Sued And Served As,
Trane U.S., Inc., Erroneously Sued As Trane U.S.,,
Trane Us, Inc. Fka American Standard, Inc.,
Turner Construction Company,
Tutor-Saliba Corporation,
Union Oil Company Of California,
University Mechanical And Engineering Contractors,,
Valley Sheet Metal,
Van-Mulder Sheet Metal, Inc.,
Vogel & Associates,
Walnut Creek Sheet Metal, Furnace & Air,
Washington Group International, Inc.,
Western Allied Corporation,
Western Asbestos Company,
Western Insulation, Inc.,
Western Macarthur Company,
Western Plumbing & Heating Co., Inc.,
W.G. Thompson, Inc.,
Wheatley-Jacobsen, Inc.,
Williams & Burrows, Inc.,
Wilson Construction Company,
W.L. Hickey Sons, Inc.,
Wright Schuchart Harbor,
Wright Schuchart Harbor Company,
Yamas Controls Group Inc.,
Zurn Industries, Llc,
for ASBESTOS
in the District Court of San Francisco County.
Preview
CHRISTOPHER B. BRUNI, SBN 116521
KELLY L. COWAN, SBN 239635
SINUNU BRUNI LLP ELECTRONICALL
333 Pine Street, Suite 400
San Francisco, CA 94104-3311 FILED
Telephone: 415.362.9700 Superior Court of California,
Facsimile; 415.362.9707 County of San Francisco
cbruni@sinunubruni.com JUL 28 2010
kcowan@sinunubruni.com Clerk of the Court
BY: RAYMOND K. WONG
Attorneys for Defendant Deputy Cl
FISCHBACH AND MOORE, INCORPORATED, n/k/a
EX-FM, INC., sued erroneously herein as “EX-FM, INC.
(FKA FISCHBACH AND MOORE ELECTRIC, INC.)”
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
LAURANCE HAGEN, } Case Nos CGC-10-275582
Plaintiff ) DEFENDANT FISCHBACH AND
° MOORE, INCORPORATED, n/k/a EX-
v. FM, INC’S ANSWER TO PLAINTIFF’S
COMPLAINT FOR PERSONAL INJURY
ASSOCIATED INSULATION OF } ASBESTOS
CALIFORNIA, ef al. } Complaint Filed: June 2, 2010
Defendants. } Trial Date: Not assigned.
COMES NOW defendant, FISCHBACH AND MOORE, INCORPORATED, n/k/a
EX-FM, INC. (hereinafter “Responding Defendant”) and files its answer to the Complaint of
Plaintiff LAURANCE HAGEN.
I. DEFINITION
Whenever "Plaintiff" is used in this answer, its reference embraces each Plaintiff
named in any Complaint in response to which some or all of this Answer has been adopted,
individually and collectively, plus the words, " and each of them," as well as Plaintiffs, when
relevant.
1
DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFFS
COMPLAINT FOR PERSONAL INJURY - ASBESTOS
rkII. GENERAL DENIAL
Pursuant to California Code of Civil Procedure Section 431.30, this Responding
Defendant files its general denial to said Complaint, and denies generally and specifically,
each and every allegation and cause of action in said Complaint, and in this connection, this
Defendant denies that Plaintiff has been injured or damaged in the sums set forth, or in any
other sums, or in any manner whatsoever by reason of any alleged product of, any product
allegedly sold by, carelessness, negligence and/or any alleged act, conduct or omission on the
part of this Responding Defendant.
Il. AFFIRMATIVE DEFENSES
Responding Defendant hereby pleads and sets forth separately and distinctly the
following affirmative defenses to each and every allegation and cause of action of Plaintiff's
complaint:
FIRST AFFIRMATIVE DEFENSE
Failure to State Cause of Action
Alleged Against Plaintiff
This Responding Defendant states that neither the Complaint nor any alleged cause of
action therein states facts sufficient to constitute a cause of action against this Responding
Defendant.
SECOND AFFIRMATIVE DEFENSE
Violation of Statute of Limitations
Alleged Against Plaintiff
This Responding Defendant states that the Complaint and any alleged cause of action
therein, is barred by the applicable statute of limitations stated in the California Code of Civil
Procedure, including but not limited to Sections 338(a), 338(d), 338.1, 339(1), 340(a), (b),
and (c), 340(3), 340.2 (a)(1)(2), (b), (c)(1)(2), 350, 353, 357, 360.5 and California
Commercial Code Section 2725.
THIRD AFFIRMATIVE DEFENSE
. Laches
Alleged Against Plaintiff
This Responding Defendant states that the Complaint and any alleged cause of action
therein are barred by laches due to Plaintiff's unreasonable delay in commencing said action
2
DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURY - ASBESTOSwithout any good cause therefore, and further, as a direct and proximate result of such delay,
this Responding Defendant has been prejudiced.
FOURTH AFFIRMATIVE DEFENSE
Denial of Successor/Predecessor Liability
Alleged Against Plaintiff
This Responding Defendant denies any and all liability as a successor, successor in
business, successor in product line or a portion thereof, assign, predecessor, predecessor in
business, predecessor in product line or a portion thereof, parent, "alter ego," subsidiary,
wholly or partially owned, by or the whole or partial owner of or member in any entity
researching, studying, manufacturing, fabricating, designing, labeling, assembling,
distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing,
contracting or installation, repairing, marketing, warranting, rebranding, manufacturing for
others, packaging and advertising a certain substance, the generic name of which is asbestos.
FIFTH AFFIRMATIVE DEFENSE
Lack of Legal Capacity
Alleged Against Plaintiff
This Responding Defendant states that Plaintiff lacks legal capacity to sue, is not a
real party in interest, and is thereby precluded from any recovery whatsoever as prayed for
herein.
SIXTH AFFIRMATIVE DEFENSE
Failure to Join Adequate Defendants
Alleged Against Plaintiff
This Responding Defendant states that the Complaint, and each cause of action
thereof, is barred by the California Code of Civil Procedure, Section 389, in that Plaintiff has
failed to join in this action a party or parties in whose absence complete relief cannot be
accorded among defendants herein, causing this Responding Defendant exposure to a
substantial risk of incurring double, multiple, or otherwise inconsistent obligations.
SEVENTH AFFIRMATIVE DEFENSE
Lack of Privity
Alleged Against Plaintiff
This Responding Defendant states that at all times and places alleged in the
Complaint, Plaintiff was not in privity of contract with this Responding Defendant, and said
3
] DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC,’S ANSWER TO PLAINTIFF'S:
COMPLAINT FOR PERSONAL INJURY - ASBESTOSlack of privity bars recovery herein upon any theory of warranty.
EIGHTH AFFIRMATIVE DEFENSE
Contribution of Plaintiff's Negligence
Alleged Against Plaintiff
Plaintiff was negligent in and about the matters alleged in the Complaint and cach and
every alleged cause of action therein, Such negligence proximately caused and contributed
to, in whole or in part, the incidents, injuries, losses and damages alleged. In the event
Plaintiff is awarded any damages, the amount of such should be reduced by the comparative
fault of Plaintiff and any person whose negligent acts or omissions are imputed to Plaintiff.
NINTH AFFIRMATIVE DEFENSE
Consent of Plaintiff
Alleged Against Plaintiff
Plaintiff acknowledged, ratified, consented to and acquiesced in the alleged acts or
omissions, if any, of this Responding Defendant, thus barring Plaintiff from any relief as
prayed for herein.
TENTH AFFIRMATIVE DEFENSE
Failure to Mitigate
Alleged Against Plaintiff
Plaintiff failed to exercise due diligence to mitigate the loss, injury or damages
alleged herein. Accordingly, the amount of damages to which Plaintiff is entitled, if any,
should be reduced by the amount of damages which would have otherwise been mitigated
and Plaintiff is barred from any recovery of any injury or damages suffered thereby.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiff's Knowledge of Hazard
Alleged Against Plaintiff
Plaintiff was advised, informed, and warned of any purported hazards and/or dangers,
if any, associated with the normal or foreseeable use, handling, and storage of the products,
substances, and equipment described in the Complaint. Plaintiff knew, or in the exercise or
ordinary care should have known, of the purported risks and hazards involved in the
undertaking alleged, but nevertheless freely, voluntarily and unreasonably consented to
assume such purported risks and hazards incident to said undertaking and conduct, at the
4
DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURY - ASBESTOStime and place alleged in said Complaint, all of which proximately caused and contributed to
any loss, injury or damages alleged.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiff's Knowledge of Adjacent Hazard
Alleged Against Plaintiff
Plaintiff was advised, informed, and warned of any purported hazards or dangers, if
any, associated with the use and misuse, handling and mishandling, and proper and improper
storage of the products, substances, and equipment described in the Complaint, and was
sophisticated in the use and misuse of such products, including products situated near
plaintiff's work. Plaintiff knew, or in the exercise of ordinary care should have known, of
the purported risks and hazards involved in working adjacent to, or in the general vicinity of,
such hazardous substances, but nevertheless freely, voluntarily and unreasonably consented
to assume such purported risks and hazards incident to said undertaking and conduct, at the
times and places alleged in said Complaint, all of which proximately caused any loss, injury
or damages alleged. Because of his sophistication and knowledge of such risks, his voluntary
presence near such hazardous substances was a superseding cause of his injuries, barring
recovery from adjacent workers installing, removing or otherwise disturbing such products.
THIRTEENTH AFFIRMATIVE DEFENSE
Injury Caused by Actions of Others Outside Control of Defendant
Alleged Against Plaintiff
Any alleged loss, injury or damage incurred by Plaintiff was proximately caused by
the negligent or willful acts or omissions of parties or others whom Defendant neither
controlled nor had the right to control, and was not proximately or legally caused by any acts,
omissions or other conduct of Responding Defendant.
FOURTEENTH AFFIRMATIVE DEFENSE
Negligence of Other Entities Caused Injury
Alleged Against Plaintiff
At the time of the injuries alleged in the Complaint, parties other than this
Responding Defendant were negligent in and about the matters referred to in said Complaint,
and such negligence proximately and concurrently contributed to any loss or damage,
5
DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFFS
COMPLAINT FOR PERSONAL INJURY - ASBESTOSincluding non-economic damages, alleged by Plaintiff. This Responding Defendant shall not
be liable for said parties’ proportionate share of non-economic damages.
FIFTEENTH AFFIRMATIVE DEFENSE
Entities Not Named Caused the Alleged Injuries
Alleged Against Plaintiff
It is alleged that the sole or partial proximate cause of the injuries, losses, or damages
claimed was the fault, negligence, and/or strict liability of other named defendants, and
persons, firms, or entities not specifically named in the Complaint. In the event of a finding
of any against this Defendant by way of judgment, settlement, or otherwise, this Responding
Defendant requests that an apportionment of fault among all parties be made by the court or
jury, and that a judgment and declaration of partial or total indemnification and contribution
against all other parties be made in accordance with such apportionment of fault. Further, in
the event of a finding of liability against this Responding Defendant, this Responding
Defendant shall be liable only for the amount of non-economic damages allocated to
Defendant in direct proportion to Defendant's percentage of fault in accordance with the Civil
Code Section 1431.2.
SIXTEENTH AFFIRMATIVE DEFENSE
Action is in Violation of Labor Code
Alleged Against Plaintiff
The court lacks subject matter jurisdiction over the matters alleged in said Complaint
in that each alleged cause of action against this Responding Defendant is barred by the
provisions of California Labor Code, Section 3600 (a) and (b); 3601 (a), (b), (c); and
3602(a), the special employer doctrine. Responding Defendant additionally alleges in this
-|| affirmative defense that federal industrial insurance laws operate to bar prosecution of this
action against this Defendant.
SEVENTEENTH AFFIRMATIVE DEFENSE
Employer Negligence Caused the Alleged Injuries
Alleged Against Plaintiff
This Responding Defendant states that at the time of the injuries alleged in the
Complaint, Plaintiffs employers were negligent in and about the matters alleged, and that
6
DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.°S ANSWER TO PLAINTIFF'S.
COMPLAINT FOR PERSONAL INJURY - ASBESTOSsuch negligence proximately and concurrently caused and/or contributed to any loss, injuries
or damages, including non-economic damages alleged by Plaintiff. This Responding
Defendant is not liable for said employers’ proportionate share of non-economic damages,
EIGHTEENTH AFFIRMATIVE DEFENSE
Knowing Acts of Plaintiff's Employer
Caused the Alleged Injuries
Alleged Against Plaintiff
Plaintiff's employers voluntarily and knowingly entered into and engaged in the
operations, acts and conduct alleged in said Complaint, and voluntarily and knowingly
assumed the risks incident to said operations, acts and conduct at the time and place alleged
in the Complaint. The operations, acts and conduct of Plaintiff's employer was the cause of
the injuries alleged in the Complaint, and this Responding Defendant is not liable or at fault
for such injuries.
NINETEENTH AFFIRMATIVE DEFENSE
Judgment to be Reduced by Workers' Compensation Benefits
Alleged Against Plaintiff
At all times material herein, Plaintiff was employed by various employers, the names
of which are currently unknown to this Responding Defendant, and was working within the
course and scope of his employment. Each such employer and Plaintiff was subject to the
provisions of the Workman's Compensation Act of the State of California which entitled
Plaintiff to receive Workers' Compensation benefits from such employers. Certain sums
have been paid to or on behalf of Plaintiff under the applicable provisions of the Labor Code
of the State of California. Each such employer was negligent and careless in and about the
matters alleged in the Complaint and such negligence and carelessness proximately and
concurrently contributed to and caused the incidents complained of and injuries and damages
alleged. Any judgment rendered in favor of Plaintiff must be reduced, as a set-off, by any
benefits or payments made or to be made by the employer or the employers' compensation
carrier under authority of Witt v. Jackson (1961) 57 Cal.2d 57.
In the event Plaintiff is awarded damages against Defendant, this Responding
Defendant claims a credit against such award to the extent that Defendant is barred from
7
DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURY - ASBESTOSenforcing its rights to reimbursement for Workers’ Compensation benefits that Plaintiff has
received or may in the future receive.
Although this Responding Defendant denies the validity of Plaintiff's claims, in the
event those tort claims are held valid and not barred by the statute of limitations or otherwise,
Defendant asserts that cross-demands for money have existed between Plaintiff and
Defendant and the demands are compensated, so far as they equal each other, pursuant to
California Code of Civil Procedure Section 431.70.
TWENTIETH AFFIRMATIVE DEFENSE
Products Conformed With Existing Safety Knowledge
Alleged Against Plaintiff
Plaintiff is barred from recovery in that all products formulated, sold, distributed or
produced by this Responding Defendant were in conformity with the existing state-of-the-art
applicable at the time of their manufacture, sale, formulation or distribution, and thus, such
products were not defective in any manner.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Products Were Unforeseeably Misused
Alleged Against Plaintiff
The products sold or distributed and referred to in the Complaint were properly
designed, manufactured, and fit for the purpose for which they were intended. Said products
were improperly maintained, misused, and/or abused by Plaintiff and/or others and
proximately caused Plaintiff's alleged damages, thus barring recovery herein. Such misuse,
abuse or improper maintenance was not reasonably foreseeable to this Responding
Defendant.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Negligent Product Use by Sophisticated Employers
Was Proximate, Superseding Cause of Alleged Injuries
Alleged Against Plaintiff
This Responding Defendant states that the Plaintiff is barred from recovery herein,
because of modification, alteration or change in some other manner, of the product(s) alleged
in Plaintiffs Complaint. All of Plaintiffs employers were sophisticated users of asbestos-
8
DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFFS
COMPLAINT FOR PERSONAL INJURY - ASBESTOScontaining products and said employers’ negligence in providing such equipment and
material to its employees in an altered, modified, negligent, careless and reckless manner was
a superseding intervening cause of Plaintiff's alleged injuries.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Failure to warn Plaintiff by Plaintiff's Sophisticated
Employers Caused the Alleged Injuries
Alleged Against Plaintiff
This Responding Defendant states that the Plaintiff's employer or employers, by
reason of advice, information, warnings, and use, handling and storage information given to
them, and/or by reason of their long standing and continuous experience with the products,
substances, and equipment alleged, are and were sophisticated users, handlers, and storers of
any and ail such products, substances, garments and equipment, and thus acquired a separate
and affirmative duty to warn, advise and inform Plaintiff of any potential harmful effects
from the mishandling, misstorage, and/or misuse of the subject property, if any. Each such
employer failed to so warn Plaintiff and thereby breached said duty. Such failure and breach
directly and proximately caused all damages, injuries, and losses alleged.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Failure to State Market Share Cause of Action
Alleged Against Plaintiff
This Responding Defendant states that the Complaint fails to state facts sufficient to
constitute a cause of action against this Defendant, to the extent it asserts and bases a claim
‘| upon "alternative," "market share," or "enterprise liability."
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Failure to Join a Substantial Share of the
Market Defeating Market Share Theory
Alleged Against Plaintiff
This Responding Defendant has never possessed a substantial percentage of the
market for the asbestos-containing products which allegedly caused Plaintiff's injuries.
Further, Plaintiff has failed to join in this action Defendants representing a substantial share
of said market, Therefore, this Responding Defendant shall not be liable to Plaintiffs based
on its alleged percentage share of the applicable market.
9
DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFFS
COMPLAINT FOR PERSONAL INJURY - ASBESTOSTWENTY-SIXTH AFFIRMATIVE DEFENSE
Liability Absent Identification Violates
Constitutional Rights
Alleged Against Plaintiff
The Complaint, and each cause of action therein, which is admittedly based upon a
lack of identification of the manufacturer of the alleged injury causing product, fails to state
facts sufficient to constitute a cause of action in that Plaintiff bas asserted a claim for relief
which, if granted, would contravene this Responding Defendant's constitutional rights to
substantive and procedural due process and equal protection laws as required by the
Fourteenth Amendment to the United States Constitution, and by Article I, Section 7 of the
Constitution of the State of California, and further, if granted would constitute the taking of
private property for public use without just compensation and would deprive this Responding
Defendant of its property in contravention of the Fifth and Fourteenth Amendments to the
United States Constitution and Article I, Sections 7 and 19 of the Constitution of the State of
California, and the applicable California statutes.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Actions of Defendant Conformed to Existing Knowledge
And So Were Not Negligent
Alleged Against Plaintiff
Plaintiff is barred from recovery in that all actions taken by this Responding
Defendant that involved the handling, disturbing, manipulation or dissemination, if any, of
asbestos were done in conformity with the existing state-of-the-art applicable at the time of
such acts, and thus, such actions were not negligent, and no liability can result.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiff Was Directed by Contractor
That Was Not Controlled by Defendant
Alleged Against Plaintiff
This Responding Defendant is not liable for any injury to Plaintiff, the existence of
which injuries is denied, in that Plaintiff was employed by others as an independent
contractor or worked for an independent contractor hired by this Defendant or its contractors,
during any time at which he worked at a site ostensibly controlled by this answering
10
DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURY - ASBESTOSDefendant, and this Responding Defendant did not in any fashion direct the manner in which
Plaintiff's job duties were accomplished, nor control the environment in which those job
duties were accomplished.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Defendant is not Liable Because of
Lack of Control of Work Site
Alleged Against Plaintiff
This Responding Defendant is not liable for any of Plaintiff's injuries and damages,
the existence of which is denied, pursuant to the holding of the Court in Privette v. Superior
Court (1993) 5 Cal.4th 689, and the case that follow Privette in that this Defendant was not
negligent, did not control Plaintiff's activities, and did not cause Plaintiff's injuries.
THIRTIETH AFFIRMATIVE DEFENSE
Defendant Has No Liability Because Defendant
Retained Independent Contractor Employer of Plaintiff
Alleged Against Plaintiff
If Plaintiff has developed any injury, which this Responding Defendant denies, as a
result of being the employee of a sub-contractor retained by this Responding Defendant, his
exclusive remedy is workers’ compensation, in that this Responding Defendant has no
liability for any negligence of Plaintiff's employer, nor any liability for negligence of any
other sub-contractors on the site, and this Responding Defendant effectively provided the
payments for any workers' compensation policy in effect to provide compensation to
Plaintiff.
THIRTY-FIRST AFFIRMATIVE DEFENSE
Defendant is Not Liable Because of
Knowledge of Hazard by Controlling Entity
Alleged Against Plaintiff
Any work performed by this Responding Defendant in the capacity of a contractor or
general contractor was conducted according to the specifications of the entity that owned or
controlled the site of any relevant actions, and under the direction and supervision of persons
and entities that owned or controlled the site, which entities had equal or superior knowledge
regarding asbestos and the potential health effects of asbestos-containing products, and
i
DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURY - ASBESTOSsuperior knowledge regarding the potential for the presence of asbestos on properties owned
or controlled by those entities, which entities should be responsible for any injuries incurred
by Plaintiff. This Responding Defendant is not liable for any injuries to Plaintiff because of
the lack of control of the site, and lack of superior knowledge regarding hazards at the site.
THIRTY-SECOND AFFIRMATIVE DEFENSE
Plaintiff's Status as "Borrowed Employee"
Limits Remedies te Workers’ Compensation
Alleged Against Plaintiff
At the time that Plaintiff incurred his alleged injuries, which injuries are disputed by
this Defendant, he was working in the capacity of a "borrowed employee", and his remedies
against this Responding Defendant are limited to workers' compensation remedies.
THIRTY-THIRD AFFIRMATIVE DEFENSE
Complaint Fails to State Cause of Action
For Punitive Damages
Alleged Against Plaintiff
This Responding Defendant states that neither the Complaint nor any alleged cause of
action therein states facts sufficient to allow Plaintiff an award of punitive damages.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Imposition of Punitive Damages
Would Constitute Criminal Fine or Penalty
Alleged Against Plaintiff
The causes of action asserted herein by Plaintiff fail to state facts sufficient to
constitute a cause of action, in that Plaintiff has asserted claims for punitive damages which,
if granted, would violate the prohibition against laws impairing the obligation of contracts set
forth in Article I, Section 10 of the United States Constitution and further, if granted would
contravene this Responding Defendant's constitutional right to be free of excessive fines as
set forth in the Eighth Amendment to the United States Constitution.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
An Award of Punitive Damages Would Be
In Violation of California Law
Alleged Against Plaintiff
Plaintiff's claim for punitive damages against this Responding Defendant should not
be sustained, because an award of punitive damages under California law by a jury that (1) is
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DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURY - ASBESTOS27
28
not provided a standard of sufficient clarity for determining the appropriateness, or the
appropriate size, of a punitive damages award, (2) is not instructed on the limits of punitive
damages imposed by the applicable principles of deterrence and punishment, (3) is not
expressly prohibited from awarding punitive damages, or determining the amount of an
award of punitive damages in whole or in part, on the basis of invidiously discriminatory
characteristics, including the corporate status of this Responding Defendant, (4) is permitted
to award punitive damages under a standard for determining liability for punitive damages
that is vague and arbitrary and does not define with sufficient clarity the conduct or mental
state that makes punitive damages permissible, and (5) is not subject to judicial review on the
basis of objective standards, would violate this Responding Defendant's due process and
equal protection rights guaranteed by the Fourteenth Amendment to the United States
Constitution and double jeopardy clause of the Fifth Amendment as incorporated into the
Fourteenth Amendment and the California Constitution's provisions providing for due
process, equal protection, and guaranty against double jeopardy.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
Action Violates Labor Code Section 6304.5
Defendant alleges that the causes of action, if any, attempted to be stated and set forth
in said complaint for negligence per se are barred by California Labor Code Section 6304.5
and derivative authority.
IV. PRAYER
WHEREFORE, this Responding Defendant prays:
1. That Plaintiffs take nothing by this Complaint;
2 That judgment be entered in favor of Defendant;
3. For recovery of Defendant's costs of suit;
4 For appropriate credits and set-offs arising out of any payment of Workers‘
Compensation benefits as alleged above;
5. For appropriate credits and set-offs arising from allocation of liability to other
named and unnamed tortfeasors; and
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DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFF'S:
COMPLAINT FOR PERSONAL INJURY - ASBESTOS6. For such other and further relief as the court deems just and proper.
V. NOTICE OF REQUEST FOR JURY TRIAL
Pursuant to California Code of Civil Procedure § 631, this Responding Defendant
hereby gives notice of its request for trial by jury.
Dated: July 28, 2010 SINUNU BRUNI LLP
By: (\
Attomeys for Defendan
FISCHBACH AND MOORE,
INCORPORATED, n/k/a
EX-FM, INC., sued erroneously
herein as “EX-FM, INC.
(FKA FISCHBACH AND MOORE
ELECTRIC, INC.)”
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DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S ANSWER TO PLAINTIFF’S
COMPLAINT FOR PERSONAL INJURY - ASBESTOSPROOF OF SERVICE
Laurance Hagen v. Associated Insulation of California, et al.
San Francisco Superior Court Case No. CGC-10-275582
I am over the age of eighteen years and not a party to the above-captioned matter.
My business address is 333 Pine Street, Suite 400, San Francisco, California 94104-3311,
where the service described below took place on the date set forth below.
Person(s) Served:
Electronic Service: On the date executed below, I electronically served the
document(s) via LexisNexis File & Serve described below on recipients designated
|__X____ on the Transaction Receipt located on the LexisNexis File & Serve website.
Document(s) Served:
DEFENDANT FISCHBACH AND MOORE, INCORPORATED, n/k/a EX-FM, INC.’S
ANSWER TO PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY - ASBESTOS
Manner of Service:
Personal Service: I caused a copy of each document served to be hand delivered
to each person served pursuant to CCP § 1011. If required, the actual server’s
original Proof of Service will be filed with the Court.
Mail: I'am readily familiar with my employer’s practice for the collection and
processing of correspondence for mailing with the United States Postal Service:
such correspondence is deposited with the United States Postal Service on the same
day in the ordinary course of business in the county where I work. On the date set
forth below, at my place of business, following ordinary business practices, I placed
for collection and mailing by deposit in the United States Postal Service a copy of
each document served, enclosed in a sealed envelope, with postage thereon fully
prepaid, each envelope being addressed to one of the person(s) served, in
accordance with C.C.P. § 1013(a).
Facsimile: On the date set forth below, J transmitted the document(s) served via
facsimile transmission to the facsimile number(s) set forth above. A confirmation
report was generated confirming completed delivery of the same. A copy of the
confirmation report is on file and available for inspection and copying upon
request,
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Dated: July 28, 2010
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PROOF OF SERVICE