Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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GABRIEL A. JACKSON, State Bar No. 98119
ANTHONY C. CHIOSSO, State Bar No. 209014

JACKSON JENKINS RENSTROM LLP
55 Francisco Street, 6th Floor ECTRONICALLY
San Francisco, CA 94133 ELECTRO c
Tel: 415.982.3600 FILED
Fax: 415.982.3700 Superior Court of California,
County of San Francisco
| Attorneys for Defendant JUL 19 2010
COSCO FIRE PROTECTION, INC. Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk
q
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
LAURANCE HAGEN, Case No. CGC-10-275582
Plaintiff, ANSWER OF DEFENDANT COSCO FIRE
PROTECTION, INC., TO UNVERIFIED
v. COMPLAINT FOR PERSONAL INJURY -
ASBESTOS

| ASSOCIATED INSULATION OF
CALIFORNIA; Defendants as Reflected
on Exhibit 1 attached to the Summary
Complaint herein; and DOES 1-8500, et al.

Defendants.

DEFENDANT, COSCO FIRE PROTECTION, INC., (hereinafter DEFENDANT")
answers the unverified Complaint (“Complaint”) herein on its own behalf and on behalf of no
other defendant or entity as follows:

Pursuant to California Code of Civil Procedure section 431.30(d), DEFENDANT denies
generally each and every allegation of the Complaint.

FIRST AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged by the plaintiffs therein

|| states facts sufficient to constitute a cause of action against DEFENDANT.
SECOND AFFIRMATIVE DEFENSE
To the extent the Complaint asserts DEFENDANT's alleged "market share" liability, or

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DEFENDANT’S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY"enterprise liability," the Complaint fails to state facts sufficient to constitute a cause of action

against DEFENDANT.
THIRD AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged therein states facts

sufficient to entitle plaintiffs to an award of punitive damages against DEFENDANT.
FOURTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would deprive DEFENDANT of its
property without due process of law under the California Constitution and United States
Constitution.
FIFTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would violate the United States
Constitution's prohibition against laws impairing the obligation of contracts.
SIXTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would constitute a criminal fine or
penalty and should, therefore, be remitted on the ground that the award violates the United States
Constitution.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ action, and each alleged cause of action, is barred by the applicable statute of
limitations, including but not limited to California Code of Civil Procedure, sections 338(1),
338(4), 339(1), 340(1), 340(3), 340.2, 343 and 353 and California Commercial Code, section
2725.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs unreasonably delayed in bringing this action, without good cause therefore, and
thereby has prejudiced DEFENDANT as a direct and proximate result of such delay; accordingly,
his action is barred by laches and by section 583 et. seg. of the Code of Civil Procedure.
NINTH AFFIRMATIVE DEFENSE
Plaintiffs and/or plaintiffs’ decedent were negligent in and about the matters alleged in the

Complaint and in each alleged cause of action; this negligence proximately caused, in whole or in
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DEFENDANT’S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYpart, the damages alleged in the Complaint. In the event plaintiffs arc entitled to any damages,
the amount of these damages should be reduced by the comparative fault of plaintiffs and any
person whose negligent acts or omissions are imputed to plaintiffs.
TENTH AFFIRMATIVE DEFENSE

Plaintiffs and/or plaintiffs’ decedent knowingly, voluntarily and unreasonably undertook
to encounter each of the risks and hazards, if any, referred to in the Complaint and each alleged
cause of action, and this undertaking proximately caused and contributed to any Joss, injury or
damages incurred by plaintiffs.

ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by plaintiffs 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.

TWELFTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by plaintiffs’
decedent or by others; the misuse, abuse or alteration was not reasonably foreseeable to
DEFENDANT, and proximately caused any loss, injury or damages incurred by plaintiffs.

THIRTEENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges 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 plaintiffs on the Complaint on file herein is barred in consequence of the exercise of
those sovereign powers.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiffs and/or plaintiffs’ decedent failed to exercise due diligence to mitigate his loss,
injury or damages; accordingly, the amount of damages to which plaintiffs are entitled, if any,
should be reduced by the amount of damages which would have otherwise been mitigated.

FIFTEENTH AFFIRMATIVE DEFENSE
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DEFENDANT'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYThe Court lacks subject matter jurisdiction over the matters alleged in the Complaint
because the Complaint and each alleged cause of action against DEFENDANT are barred by the
provisions of California Labor Code, section 3600, e¢ seq.

SIXTEENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that at the time of the injuries alleged in the Complaint, plaintiffs’
decedent was employed and was entitled to receive Workers' Compensation benefits from his
employer's workers' compensation insurance cartier; that all of plaintiffs’ decedent's employers,
other than DEFENDANT, were negligent in and about the matters referred to in said Complaint,
and that such negligence on the part of said employers proximately and concurrently contributed
to the happening of the accident and to the loss or damage complained of by plaintiffs, if any
there were; and that by reason thereof DEFENDANT is entitled to set off and/or reduce any such
workers' compensation benefits received or to be received by plaintiffs against any judgment
which may be rendered in favor of plaintiffs. (Witt v. Jackson, 57 Cal.2d 57, 366 P.2d 641)

SEVENTEENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that at the time of the injuries alleged in the Complaint, plaintiffs”
decedent’s employers were negligent in and about the matters referred to in said Complaint, and
that such negligence on the part of said employers proximately and concurrently contributed to
any loss or damage, including non-economic damages, complained of by plaintiffs, if any there
were; and that DEFENDANT is not liable for said employers’ proportionate share of non-
economic damages.

EIGHTEENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that at the time of the injuries alleged in the Complaint, parties
other than this DEFENDANT were negligent in and about the matters referred to in said
Complaint, and that such negligence on the part of said parties proximately and concurrently
contributed to any loss or damage, including non-economic damages, complained of by plaintiffs,
if any there were; and that DEFENDANT herein shall not be liable for said parties’ proportionate

share of non-economic damages.

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DEFENDANT'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYoOo I Dw

NINETEENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that at all times relative to matters alleged in the Complaint, all of
plaintiffs’ decedent’s employers, other than DEFENDANT, were sophisticated users of asbestos-
containing products and said employers’ negligence in providing the product to its employees in a
negligent, careless and reckless manner was a superseding cause of plaintiffs’ injuries, if any.

TWENTIETH AFFIRMATIVE DEFENSE

Tf plaintiffs have received, or in the future may receive, Workers’ Compensation benefits
from DEFENDANT under the Labor Code of the State of California as a consequence of the
alleged industrial injury referred to in the Complaint, and in the event is awarded damages
against DEFENDANT, DEFENDANT claims a credit against this award to the extent that
DEFENDANT is barred from enforcing his rights to reimbursement for Workers’ Compensation
benefits that plaintiffs have received or may in the future receive.

TWENTY-FIRST AFFIRMATIVE DEFENSE

If plaintiffs have received, or in the future may recetve Workers’ Compensation benefits
from DEFENDANT under the Labor Code of the State of California as a consequence of the
alleged industrial injury referred to in the Complaint, DEFENDANT demands repayment of any
such Workers’ Compensation benefits in the event that plaintiffs recover tort damages as a result
of the industrial injury allegedly involved here. Although DEFENDANT denies the validity of
plaintiffs’ claims, in the event those claims are held valid and not barred by the statute of
limitations or otherwise, DEFENDANT asserts that cross-demands for money have existed
between plaintiffs and DEFENDANT and the demands are compensated, so far as they equal
each other, pursuant to California Code of Civil Procedure section 431.70.

TWENTY-SECOND AFFIRMATIVE DEFENSE

At all times and places in the Complaint, plaintiffs and plaintiffs’ decedent were not in
privity of contract with DEFENDANT and said lack of privity bars plaintiffs’ recovery herein
upon any theory of warranty.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Plaintiffs and plaintiffs’ decedent are barred from recovery in that all products produced,
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DEFENDANT'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYsold or distributed by DEFENDANT, if any, were in conformity with the existing state-of-the-art,

and as a result, these products were not defective in any manner.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

DEFENDANT did not and does not have a substantial percentage of the market for the
asbestos-containing products which allegedly caused plaintiffs’ injuries. Therefore,
DEFENDANT may not be held liable to plaintiffs based on this DEFENDANT’s alleged
percentage share of the applicable market.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

DEFENDANT denies any and all liability to the extent that plaintiffs 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, distributing, 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.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that plaintiffs' claims are or may be barred in whole or in part by

tes judicata, collateral estoppel, issue preclusion and/or release.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that it is immune from liability for any alleged failure to warn

plaintiffs and/or plaintiffs’ decedent of material risks associated with DEFENDANT'’s products, if

any, because such risks were or should have been obvious to a reasonably prudent product user in

plaintiffs’ and/or plaintiffs’ decedent's position, or were otherwise a matter of common

knowledge to persons in the same or similar position to plaintiffs and/or plaintiffs’ decedent.

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DEFENDANT'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYTWENTY-EIGHTH AFFIRMATIVE DEFENSE

This court lacks subject matter jurisdiction over the causes of action alleged in the
Complaint.

TWENTY-NINTH AFFIRMATIVE DEFENSE

As a result of plaintiffs’ unreasonable delay in bringing this action, without good cause
therefore, in addition to his other unreasonable acts and omissions, plaintiffs have waived each or
some of the claims stated or purportedly stated in the Complaint.

THIRTIETH AFFIRMATIVE DEFENSE

The activity alleged in the Complaint, to the extent that it was engaged in by

DEFENDANT, if at all, was not ultrahazardous under California law.
THIRTY-FIRST AFFIRMATIVE DEFENSE

California Civil Code sections 1431.1 through 1431.5, known as the Fair Responsibility
Act of 1986, is applicable at least in part to the present action and to certain claims therein, and
based upon the principle of comparative fault, the liability, if any, of DEFENDANT, if liable at
all, shall be several only and shall not be joint. DEFENDANT, if liable at all, shall be liable as to
certain claims only for the amount of non-economic damages allocated to DEFENDANT in direct
proportion to DEFENDANT's percentage of fault, if any, and a separate and several judgment
shall be rendered against DEFENDANT for non-economic damages, if any.

THIRTY-SECOND AFFIRMATIVE DEFENSE

Plaintiffs cannot prove any facts showing that the conduct of DEFENDANT was the cause

in fact of any alleged injuries or damages suffered by plaintiffs as alleged in the Complaint.
THIRTY-THIRD AFFIRMATIVE DEFENSE,

Plaintiffs cannot prove any facts showing that the conduct of DEFENDANT was the
proximate cause of any alleged injuries or damages suffered by plaintiffs as alleged in the
Complaint.

THIRTY-FOURTH AFFIRMATIVE DEFENSE
If plaintiffs and/or plaintiffs’ decedent were injured as alleged in the Complaint, those

injuries were proximately caused by allergies, sensitivities and idiosyncrasies particular to
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DEFENDANT'S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYplaintiffs and/or plaintiffs’ decedent, and not found in the general public and unknown and
unknowable to DEFENDANT. Such injuries, if any, were not reasonably foreseeable to
DEFENDANT.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

At ail times relevant, DEFENDANT’ acts and omissions were in conformity with all
government statutes and regulations and all industry standards based upon the state of knowledge
existing at the time of the acts or omissions.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

Plaintiffs have failed to join all parties necessary for full and just adjudication of the
purported causes of action asserted in the Complaint.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that plaintiffs have directed, ordered, approved and/or ratified
DEFENDANT's conduct and plaintiffs are therefore estopped from asserting her claims alleged in
the Complaint as a result of their own acts, conduct or omissions.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

DEFENDANT alleges that at the time of the injuries alleged in the Complaint, plaintiffs’
decedent was employed and was entitled to receive Workers' Compensation benefits from his
employer's workers' compensation insurance carrier; that DEFENDANT did not control
plaintiffs’ decedent work activities at his worksites; that all of plaintiffs’ decedent’s employers,
other than DEFENDANT, were negligent in and about the matters referred to in said Complaint,
that other parties over whom DEFENDANT had no contro! were negligent in and about the
matters referred to in said Complaint, and that such negligence on the part of said employers and
other parties proximately and concurrently contributed to the happening of the accident and to the
loss or damage complained of by plaintiffs, if any there were; and as a result thereof,
DEFENDANT bears no liability for plaintiffs’ alleged damages.

THIRTY-NINTH AFFIRMATIVE DEFENSE

The Complaint fails to state facts sufficient to constitute a cause of action for “Premises

Owner/Contractor Liability” against this DEFENDANT pursuant to the ruling of the California
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DEFENDANT’S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY| Supreme Court in Privette v. Superior Court (1993) 5 Cai 4th 689, the ruling of the California
Court of Appeal in Smith v. ACandS, Inc. (1994) 31 Cal_-App.4th 77, the California Court of
Appeal in Grahn v. Tosco Corporation (1997) 58 Cal.App.4th, 1373, and the ruling of the
California Supreme Court in Toland y. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253.
FORTIETH AFFIRMATIVE DEFENSE

DEFENDANT had no property interest, ownership or control of any premises at any time
during which plaintiffs allege decedent was exposed to asbestos dust, allegedly causing injuries
and/or damages.

FORTY-FIRST AFFIRMATIVE DEFENSE
| DEFENDANT refers to and incorporates herein each and every affirmative defense
pleaded by the other parties herein to the extent that such defenses are not inconsistent with the
matters stated herein.
FORTY-SECOND AFFIRMATIVE DEFENSE

DEFENDANT alleges that it presently has insufficient knowledge or information on
which to form a belief as to whether it may have additional, as yet unasserted defenses available.
DEFENDANT reserves herein the right to assert additional defenses in the event discovery
indicates that they would be appropriate.

WHEREFORE, 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’

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DEFENDANT’S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYCompensation benefits, or otherwise, as alleged above; and

Dated:

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(5) For such other and further relief as the Court deems just and proper.

July 19, 2010 JACKSON JENKINS RENSTROM LLP

By: /s/ ANTHONY C._ CHIOSSO
ANTHONY C. CHIOSSO
COSCO FIRE PROTECTION, INC.

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DEFENDANT’S ANSWER TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYLaurance Hagen v. Associated Insulation of California S.F.8.C #CGC-10-275582

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
I, the undersigned, declare that am a citizen of the United States and employed in San
Francisco County, California. I am over the age of eighteen years and not a party to the within-
entitled action. My business address is 55 Francisco Street, 6th Floor, San Francisco, California
94133. On July 16, 2010, I electronically served pursuant to General Order No. 158, the
following document(s):
ANSWER OF DEFENDANT COSCO FIRE PROTECTION, INC.

TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY-
ASBESTOS

on interested parties in this action by causing Lexis Nexis E-Service program pursuant to General

Order No. 158, to transmit a true copy thereof to the email address(es) of the following party(ies):

BRAYTON PURCELL LLP and
222 Rush Landing Road

Novato CA 94948 ***Please See Lexis Nexis Service List***

The above document(s) were transmitted by Lexis Nexis E-Service and the transmission
was reported as complete without error.

I declare under penalty of perjury pursuant to the laws of the State of California that the

foregoing is true and correct and was executed on July 19, 2010 at San Francisco, California.

/s/ JOYCE VIALPANDO
Joyce Vialpando

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