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.
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Selman Breitman LLP ATTORNEYS AT LAW 1992221 TOUR 2504) MARK A. LOVE (SBN 162028) mlove@selmanbreitman.com ICALLY ERNEST D. FAITOS (SBN 119141) ELECTRONIC efaitos(@sclmanbreitman.com FILED SEL N BREITMAN LLP Superior Court of California, 33 New Montgomery, Sixth Floor County of San Francisco San Francisco, CA 94105 JUL 22 2010 Telephone: (415) 979-0400 Clerk of the Court Facsimile: (415) 979-2099 BY: VANESSA WU Deputy Clerk Attorneys for Defendant KENTILE FLOORS, INC. SUPERIOR COURT OF CALIFORNIA. COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION LAURANCE HAGEN, CASE NO. CGC-10-275582 Plaintiff, KENTILE FLOORS, INC.'S ANSWER TO PLAINTIFF'S v. COMPLAINT FOR DAMAGES — WRONGFUL DEATH — ASBESTOS ASSOCIATED INSULATION OF CALIFORNIA, et al., Complaint Filed: — June 2, 2010 Defendants. Defendant KENTILE FLOORS, INC. ("defendant") hereby answers the complaint on file herein, on its own behalf and on behalf of no other entity. as follows (the terms "plaintiff" or "plaintiffs" as used in this answer include the decedent in a wrong/ul death complaint): Pursuant to the provisions of Code of Civil Procedure section 431.30(d), defendant denies each and every allegation contained in the complaint, and the whole thereof, and in particular, denies that plaintiff was injured and damaged in the manner or sum alleged, or in any other manner or sum whatsoever or at all. FIRST AFFIRMATIVE DEFENSE 1. Neither the complaint nor any purported causes of action alleged therein state facts sufficient to constitute a cause of action as against defendant. ANSWER TO COMPLAINT2 3 4 5 6 7 8 9 10 & 1 5: 12 B22 =< og 14 me 15 BE 16 "D> 17 n 18 19 20 21 22 23 24 25 26 27 28 199722.) 1908.2504) SECOND AFFIRMATIVE DEFENSE 2. Any loss, injury or damage incurred by plaintiff was proximately caused by the negligent or willful acts or omissions of parties whom defendant neither controlled nor had the right to control, and was not proximately caused by any acts, omissions or other conduct of defendant. THIRD AFFIRMATIVE DEFENSE 3. ‘The tortious conduct alleged in the complaint as to defendant, if any, was not a substantial factor in bringing about the alleged injuries, and therefore was nol a contributing cause, but was superseded by tortious and/or intentional conduct by one or more third parties whose misconduct was an independent, intervening, sole and proximate cause of plaintiffs’ alleged injuries or damages, if any. FOURTH AFFIRMATIVE DEFENSE 4. At all relevant times, plaintiff knowingly, voluntarily and unreasonably undertook to encounter each of the risks and hazards alleged in the complaint, and this assumption of said risks bars any recovery herein, or diminishes plaintiff's recovery to the extent that plaintiff's damages are attributable to plaintiff's assumption of risk. FIFTH AFFIRMATIVE DEFENSE 5. The alleged defect and/or dangerous condition, if any, was so trivial in nature that it could not be considered a dangerous and/or a defective condition, thus barring any action by the plaintiff against defendant. SIXTH AFFIRMATIVE DEFENSE 6. Plaintiffs right to recovery from defendant is limited pursuant to Civil Code sections 1431.1, ef seg. ("Proposition 51"). SEVENTH AFFIRMATIVE DEFENSE 7. Plaintiff named defendant in the complaint without reasonable identification of what acts, if any, defendant participated in, and without a reasonable investigation. Pursuant to Cade of Civil Procedure section 128.7, defendant requests reasonable Mit ANSWER TO COMPLAINTATTORNEYS AT LAW Selman Breitman Lip rouraa 100g 28041 expenses, including attorneys! fees incurred by defendant as a result of the maintenance by plaintiffs of this bad faith action. EIGHTH AFFIRMATIVE DEFENSE 8. The complaint, and each cause of action therein, is barred by the applicable statute of limitations including but not limited to Code of Civil Procedure sections 335.1, 337.1, 337.15, 338, 340.2, 343 and 361, and Commercial Code section 2725. NINTH AFFIRMATIVE DEFENSE 9. Plaintiff unreasonably delayed in bringing this action, without good cause therefor, and thereby has prejudiced defendant as a direct and proximate result of such delay, such that this action is barred by the Doctrine of Laches and by Code of Civil Procedure sections 583.110, ef seg. TENTH AFFIRMATIVE DEFENSE 10. Plaintiff was negligent in and about the matters alleged in the complaint and this negligence proximately caused, in whole or in part, the damages alleged in the complaint. In the event plaintiff is entitled to any damages, the amount of these damages should be reduced by the comparative fault of plaintiffand any person whose negligent acts or omissions are imputed to plaintiff. ELEVENTH AFFIRMATIVE DEFENSE 11. Plaintiff is barred from recovery herein by reason of the fact that, at all relevant times, plaintiff was not using defendant's products for the purpose intended or in the manner intended, and said conduct on the part of plaintiff constituted an unforesecable misuse of said products. TWELFTH AFFIRMATIVE DEFENSE 12. Plaintiff's injuries and damages, if any, were caused wholly or in part by post-distribution modifications, alterations or other changes in some manner in defendant's products, and such modifications, alterations or changes were not performed by, participated in, consented to, or approved by defendant, or any agent or employee of defendant, thus barring plaintiffs recovery herein. ANSWER TO COMPLAINTeC WY KO A ATTORNEYS AT LAW Selman Breitman Lup 28 1997221 008 25041 THIRTEENTH AFFIRMATIVE DEFENSE 13. Plaintiff is barred from recovery herein as to plaintiff's breach of warranty theories in that plaintiff was not in privity with defendant. Plaintiff is further barred from recovery herein as to plaintiff's breach of warranty theories in that plaintiff failed to give the requisite timely notice of any purported breach of warranty. FOURTEENTH AFFIRMATIVE DEFENSE 14. Defendant's products were manufactured and/or distributed in strict accordance with specifications supplied by persons or entities other than defendant. Any defects in said product were caused by deficiencies in the specifications supplied to defendant, which deficiencies were neither known to defendant nor discoverable by defendant with the exercise of reasonable care. FIFTEENTH AFFIRMATIVE DEFENSE 15. The complaint, and each cause of action alleged therein, is barred by the equitable doctrines of waiver and estoppel. SIXTEENTH AFFIRMATIVE DEFENSE 16. Plaintiff's employers were sophisticated users of defendant's products and said employers provided said products to their employees, including plaintiff. in a negligent, careless, and reckless manner which constitutes an intervening and superseding cause of plaintiffs’ injuries and damages, if any. SEVENTEENTH AFFIRMATIVE DEFENSE 17. Defendant denies any and all liability to the extent that plaintiff asserts defendant's alleged liability as a successor, successor in business. successor in product line, or a portion thercof; 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 that plaintiffs allege were the proximate or legal cause and/or contributed to plaintiffs' injuries or damages. Uy ANSWER TO COMPLAINT {wos a Selman Breitman LLP ATTORNEYS AT LAW 1907220 LOR 2504) EIGHTEENTH AFFIRMATIVE DEFENSE 18. Any recovery against defendant is barred because defendant's products were manufactured in compliance with the specifications established by the United States government and/or an agency, department or division thereof, and that the United States government's knowledge of any and all health hazards was equal to, if not greater than, that of defendant, who was a contractor to the United States government. NINETEENTH AFFIRMATIVE DEFENSE 19. Plaintiffis barred from recovery in that all products produced by defendant were in conformity with the existing "state of the art" of reasonably acceptable medical, scientific, and industrial knowledge, art, and practice and, as a result, these products were not defective in any manner, and as such, defendant is not liable for plaintiff's injuries and damages. if any. TWENTIETH AFFIRMATIVE DEFENSE 20. Plaintiff's recovery, if any, from defendant must be reduced by the amount of any workers’ compensation benefits paid by or on behalf of plaintiff's employers, as the negligence or other tortious conduct of said employers caused and contributed to plaintiff's injuries and damages, if any. TWENTY-FIRST AFFIRMATIVE DEFENSE 21. Plaintiffis barred from any recovery herein as against defendant to the extent that, pursuant to Labor Code section 3600, ef seq., plaintiff's exclusive remedy as against defendant with respect to the incident and damages complained of would be and is pursuant to the workers’ compensation laws of the State of California and subject to resolution only in a workers' compensation forum. TWENTY-SECOND AFFIRMATIVE DEFENSE 22. Defendant is entitled to a set-off of all amounts paid to the plaintiff by other defendants pursuant to pro tanto settlements. if ANSWER TO COMPLAINTNa Selman Breitman Lip ATTORNEYS AT LAW 28 199722.F 1008.25041 TWENTY-THIRD AFFIRMATIVE DEFENSE 23. Defendant did not know and had no reasonable grounds for knowing, at the lime any of its products containing asbestos were manufactured, at the time the plaintiff was allegedly exposed thereto, or al any other time, that any of said products could be hazardous, and further, defendant had no reason to know or believe that any of its products could be hazardous, in that any asbestos fibers contained in its products are locked in, encapsulated, and firmly bound and therefore do not release dangerous amounts of asbestos fiber. TWENTY-FOURTH AFFIRMATIVE DEFENSE 24, — Plaintiff failed to exercise due diligence to mitigate loss, injuries or damages, thus reducing the amount of damages to which he is entitled by the amount of damages which would otherwise have been mitigated. TWENTY-FIFTH AFFIRMATIVE DEFENSE 25. Neither the complaint nor any causes of action therein state facts sufficient to entitle plaintiff to an award of punitive damages against defendant. TWENTY-SLXTH AFFIRMATIVE DEFENSE 26. The imposition of punitive damages would deprive defendant of its property without due process of law under the Constitutions of both the United States and California, would violate the United States Constitution's prohibition against laws impairing the obligation of contracts and would constitute a criminal fine or penalty. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27. If plaintiff's claims were already litigated and/or resolved in any prior action, claims facility or bankruptcy proceeding, plaintiff's claims are barred based on the primary right and res judicata doctrines which prohibit splitting a single cause of action into successive suits and secking new recovery for injuries for which the plaintilf has been previously compensated by alleged joint tortfeasors. Mi ANSWER TO COMPLAINTATTORNEYS AT LAW Selman Breitman Lip 28 F973 ¢ uy 28081 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 28. — Any loss, injury or damage incurred by plaintiff was proximately caused by the negligent or willful acts or omissions of plaintiffs employers whom defendant neither controlled nor had the right to control, and such tortious conduct by plainti!!’s employers was a superseding and intervening cause of plaintiffs injuries and damages, if any. TWENTY-NINTH AFFIRMATIVE DEFENSE 29. This Court lacks jurisdiction over this action pursuant to Code of Civil Procedure section 410.30. THIRTIETH AFFIRMATIVE DEFENSE 30. Plaintiff has improperly split the causes of action and seeks to maintain a duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed. THIRTY-FIRST AFFLRMATIVE DEFENSE 31. Defendant alleged 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 set forth in the United States Constitution, and that any recovery by plaintiff on the complaint on file herein is barred in consequence of the exercise of those sovereign powers. THIRTY-SECOND AFFIRMATIVE DEFENSE 32. The instant action is barred pursuant to the holdings enunciated by the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4" 689; Toland v. Sunland Housing Group, Inc. (1988) 18 Cal.4"" 253: Hooker v. Department of Transportation (2002) 27 Cal.4" 198: McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4" 219, and by the California Courts of Appeal in Grahn v. Tosco Corp. (1997) 58 Cal.App.4" 1373, and all other applicable decisional authority. THIRTY-THIRD AFFIRMATIVE DEFENSE 33. To the extent the complaint asserts defendant's alleged "market share” liability, or “enterprise liability," the complaint fails to state facts sufficient to constitute a ANSWER TO COMPLAINT.Selman Breitman Lip ATTORNEYS AT LAW 199722.) 108.2504 cause of action against this defendant. 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 plaintiff based upon its alleged pereentage share of the applicable market. THIRTY-FOURTH AFFIRMATIVE DEFENSE 34, The causes of action alleged in the complaint arose outside of California while plaintiff was a non-resident and, pursuant to the applicable statutes of limitations or repose where plaintiff was then residing or working, the complaint is barred by the provisions of those statutes and by Code of Civil Procedure section 361. THIRTY-FIFTH AFFIRMATIVE DEFENSE 35. Defendant alleges as pleas in abatement that another action is pending between the same parties on the same cause of action and that plaintiff improperly joined parties in this action. THIRTY-SIXTH AFFIRMATIVE DEFENSE 36. Defendant denies any and all liability to the extent that plaintiff asserts defendant's alleged 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 an entity researching, studying, manufacturing, fabricating, designing, labeling, assembling, distribution, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding, manufacturing for others, packaging and advertising a certain substance, the generic name of which is asbestos. THIRTY-SEVENTH AFFIRMATIVE DEFENSE 37. Defendant presently has insufficient knowledge or information upon which to form a belief as to whether it may have additional, as yet unknown, affirmative defenses. Defendant reserves herein the right to assert additional affirmative defense in the event discovery indicates it would be appropriate. ANSWER TO COMPLAINT.Selman Breitman Lip ATTORNEYS AT LAW 199792.) 1008.2508] WHEREFORE, having fully responded to the subject complaint, answering defendant prays: 1. That plaintiff takes nothing by reason of subject complaint on file herein; 2 That this defendant have judgment of dismissal; 3. For reasonable attorncys' fees and costs incurred herein; and 4 For such other and further relief as the court may deem just and proper. SELMAN BREITMAN LLP Dated: July 22, 2010 By:_/s/_ Ernest D. Faitos MARK A. LOVE ERNEST D. FAITOS Attorneys for Defendant KENTILE FLOORS, INC. ANSWER TO COMPLAINTSelman Breitman LLP ATTORNEYS AT LAW 28 29O7¥3.1 1008, 20528 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION aurance Hagen vy. Associated Insulation of California, et al. San Francisco Superior Court Case CGC-10-275582 Defendant: Kentile Floors, Inc. STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO I am employed in the County of San Francisco, State of California. I am over the age of 18 years and am not a party to the within action. My business address is 33 New Montgomery, Sixth Floor, San Francisco, CA 94105. On July 22, 2010, I electronically served the document(s) via Lexis Nexis File & Serve described as KENTILE FLOORS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGES - WRONGFUL DEATH - ASBESTOS on the recipients designated on the Transaction Receipt located on the Lexis Nexis File & Serve website. T declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 22, 2010, at San Francisco, California. 7 ‘Marion MN. Tom LEXIS NEXIS FILE & SERVE ELECTRONIC PROOF OF SERVICE.