Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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LAW OFFICES OF
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PRINDLE, AMARO, GOETZ,

AYILLYARD, BARNES & REINHOLTZ LLP
Kenneth B, Prindle, Esq. (Bar No. 82691)

Mary Kirk Hillyard, Esq. (Bar No. 92202) __
Thomas A. Steig, Esq. (Bar No. 119341)

One California Street, Suite 1910

San Francisco CA 94111

Telephone: (415) 788-8354

Facsimile: (415) 788-3625

Attorneys for Defendant,
FREDERICK MEISWINKEL, INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

AUG 18 2010

Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO- COURT OF UNLIMITED JURISDICTION

LAURANCE HAGEN,

Plaintiff,

ASSOCIATED INSULATION OF
CALIFORNIA, et al.

Defendants.

CASE NO. CGC-10-275582

DEFENDANT FREDERICK MEISWINKEL,
INC.’S ANSWER TO COMPLAINT FOR
PERSONAL INJURY - ASBESTOS

COMES NOW defendant, FREDERICK MEISWINKEL, INC., (hereinafter referred to as

"this answering defendant"), for itself alone, and in answer to the unverified Complaint of plaintiff

herein, as amended, now or in the future, or otherwise, admits, denies, and alleges as follows:

1, Pursuant to the provisions of California Code of Civil Procedure § 431.30, this

answering defendant denies each, every and all of the allegations of the unverified complaint, and

each and every cause of action contained therein, and the whole thereof, and denies that plaintiff has

sustained damages in the sum or sums alleged, in any other sum or sums whatsoever, or at all.

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FIRST AFFIRMATIVE DEFENSE
2. The Complaint and each and every cause of action alleged therein fails to state facts
sufficient to constitute a cause of action against this answering defendant, and fails to state a claim

upon which relief may be granted,

SECOND AFFIRMATIVE DEFENSE

3. The Complaint and every cause of action alleged therein is/are barred by California
Code of Civil Procedure §§ 335, 335.1, 337, 337.1, 338, 338.1, 339, 340, 340.2, 340.8, 343, by
Commercial Code § 2725, and by all other applicable statute of limitations provisions, and plaintiff

is thereby precluded from recovering the damages and other relief sought in the Complaint.

THIRD AFFIRMATIVE DEFENSE

4, The applicable laws, rules, statutes or regulations, including but not limited to, Code
of Civil Procedure §§ 340 and 340.2, and sister state statutes of limitations and statutes of repose

borrowed by Code of Civil Procedure § 361, requiring the institution of suit within a certain period

of time following its accrual, were not complied with, and, therefore, plaintiffs claims are barred as

a matter of law and equity.

FOURTH AFFIRMATIVE DEFENSE
5. Plaintiff unreasonably delayed in bringing this action, without good cause, and has
thereby prejudiced the rights of this answering defendant. The Complaint and all claims alleged

therein are therefore barred by the doctrine of laches.

FIFTH AFFIRMATIVE DEFENSE
6. Plaintiff has waived any and all claims which he seeks to assert in this action, and/or
are estopped by his conduct from asserting or recovering on such claims.
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SIXTH AFFIRMATIVE DEFENSE
7. Prior to the filing of this action, plaintiff fully, completely and unequivocally settled

and compromised his claims for relief against this answering defendant.

SEVENTH AFFIRMATIVE DEFENSE

8. At all times and places mentioned in the Complaint, as amended, now or in the future,
plaintiff was negligent and careless and failed to exercise that degree of care and caution for his own
safety which a reasonably prudent person would have used under the same or similar circumstances,
in that, among other things, plaintiff so negligently and carelessly stationed, conducted and
maintained himself, failed to utilize safety devices and other equipment or facilities supplied to him
and/or existing as part of their environment, and failed to observe open and obvious conditions, so as
to directly and proximately cause and contribute to plaintiff's injuries and damages, if any. Plaintiff
is therefore precluded from obtaining any recovery against this answering defendant. Alternatively,
any negligence or other legal fault attributable to plaintiff thereby comparatively reduces the
percentage of negligence or fault, if any, attributable to this answering defendant, which this

answering defendant expressly denies,

LIGHTH AFFIRMATIVE DEFENSE

9. This answering defendant alleges that no act, omission, conduct or product
attributable to it caused or contributed to any injuries or damages sustained by plaintiff, if any, and
that if plaintiff's injuries and damages, if any, were not solely caused by plaintiff's own acts,
omissions and other conduct, then said injuries and damages were proximately caused and
contributed to by the negligence and/or other tortious acts, omissions, conduct and products of
persons or entities other than this answering defendant, and that said negligence and/or other legal
fault was an intervening and superseding cause of plaintif{’s injuries and damages, if any. Any
damages recoverable by plaintiff must therefore be diminished in proportion to the amount of fault
attributable to these other persons and entities, and there should be an apportionment of the harm and
damage claimed by plaintiff, if any.

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NINTH AFFIRMATIVE DEFENSE
10. That at all times and places referred to in the Complaint, as amended, now or in the
future, plaintiff was, or in the exercise of reasonable care should have been, aware of all
circumstances and conditions then and there existing and prevailing, but nonetheless knowingly,
voluntarily, and in full appreciation of the potential consequences thereof, exposed himself to
whatever risks and dangers may have been attendant to such circumstances and conditions, thereby
freely and voluntarily assuming any and all risk(s) incident thereto, and thereby barring plaintiff

from recovery herein.

TENTH AFFIRMATIVE DEFENSE
11. Atall times and places relevant to this action, plaintiff failed to make reasonable

efforts to mitigate his injuries, loss and/or damages, if any.

ELEVENTH AFFIRMATIVE DEFENSE

12. Atall times material to this action, plaintiff failed to use the products alleged in the
complaint in a foreseeable, proper and safe manner which would have otherwise been anticipated
and expected of an ordinary user. Such misuse of the products described in the Complaint by
plaintiff were the sole, proximate and legal cause of plaintiffs injuries and damages, if any, thereby

barring plaintiff from recovery herein.

TWELFTH AFFIRMATIVE DEFENSE

13. Atall times material to this action, the products described in the Complaint which
allegedly injured plaintiff were, without this answering defendant’s knowledge, approval or consent,
and contrary to instructions and/or the custom and practice in the industry, altered, re-designed,
modified, or subjected to other treatment which substantially changed their character, such that they
were not being used, functioning and/or performing in a manner intended by their manufacturer,
and/or were not in substantially the same or similar condition as when they left the manufacturer's
and/or this answering defendant’s possession. If there was a defect in said products, which

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supposition is specifically denied by this answering defendant, such defect resulted solely from such
alteration, re-design, modification, treatment or other change therein, and not from any act or
omission by this answering defendant, thereby barring plaintiff from recovery herein as against this

answering defendant.

THIRTEENTH AFFIRMATIVE DEFENSE

14. Plaintiff is barred from recovery herein in that any and all products allegedly supplied
or distributed by this answering defendant were manufactured and/or produced in conformity with
specifications established and provided by the United States Government pursuant to its War Powers
as set forth in the United States Constitution, and that any defect in said products was caused by
deficiencies in said specifications, and not by any action or conduct on the part of this answering

defendant.

FOURTEENTH AFFIRMATIVE DEFENSE
15. Plaintiff is barred from recovery herein in that all products allegedly manufactured or
distributed by this answering defendant were in conformity with the existing state of the medical,
scientific, and industrial knowledge, art, and practices, and, as a result, said products were not

defective in any manner.

FIFTEENTH AFFIRMATIVE DEFENSE

16, At all times and places mentioned in the complaint, as amended, now or in the future,
plaintiff was not in privity of contract with this answering defendant, and said lack of privity bars
plaintiff's recovery herein upon any theory of warranty.

SIXTEENTH AFFIRMATIVE DEFENSE

17. Plaintiff failed to give this answering defendant timely and reasonable notice of any
alleged breach of contract or warranty, thereby barring plaintiff from recovery herein.
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SEVENTEENTH AFFIRMATIVE DEFENSE

18. At all times and places relevant to this action, plaintiff waived whatever rights he
might otherwise have had to claim a breach of warranty, in that plaintiff failed to notify this
answering defendant of any alleged breach of warranty, express or implied, and if any alleged
defects existed in any product(s) manufactured or distributed by this answering defendants, plaintiff
discovered or should have discovered said defect or non-conformity, if any existed, and failure to do
so within a reasonable period of time prejudices this answering defendant from being able to fully
investigate and defend the allegations made against it in the Complaint, as amended now or in the

future.

EIGHTEENTH AFFIRMATIVE DEFENSE
19. Plaintiff's breach of warranty claims are barred by written disclaimers and/or

exclusions contained on or in the labels or packaging of the products at issue in this action.

NINETEENTH AFFIRMATIVE DEFENSE
20. The Complaint, as amended now or in the future, and each and every cause of action
contained therein, fails to state facts sufficient to constitute “fraud,” “oppression,” or “malice,” as
these terms are used in Civil Code § 3294, and therefore fails to state a claim that would support

punitive damages.

TWENTIETH AFFIRMATIVE DEFENSE

21. The imposition of punitive/exemplary damages against this corporate defendant for
acts of a former and/or predecessor corporate entity would be a violation of due process of law, and

against public policy, under the various laws of the State of California and the United States.

TWENTY-FIRST AFFIRMATIVE DEFENSE
22. This answering defendant alleges that California Civil Code § 3294 violates the Due
Process and/or Equal Protection clauses of the California and/or United States Constitutions, is void

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because it is vague and ambiguous, constitutes an undue burden on interstate commerce, and violates
the Eighth Amendment to the United States Constitution. Accordingly, plaintiff is barred from any

recovery thereunder.

TWENTY-SECOND AFFIRMATIVE DEFENSE
23. The liability of this answering defendant, if any, shall be apportioned in accordance

with the provisions of Civil Code §§ 1431, et seq., commonly known as the Fair Responsibility Act
of 1986.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24, This answering defendant aileges on information and belief that at all times and
places relevant to this action, plaintiff was an employee of an employer or employers whose names
are presently unknown, and that any injuries or damages alleged in the Complaint, as amended now
or in the future, occurred while plaintiff was acting within the course of scope of such employment.
This answering defendant further alleges on information and belief that plaintiff's employer or
employers provided plaintiff with certain benefits in compliance with the terms and provisions of the
Workers’ Compensation Laws of the State of California. The nature and extent of such Workers’
Compensation benefits that may have been provided is unknown, but when said benefits are

determined, leave to amend this answer and to set forth the details of said benefits will be sought. It

is further alleged that any and all injuries or damages complained of by plaintiff were solely and
proximately caused by, or resulted from, the negligence and carelessness of plaintiff's employer, his
co-workers, and/or his employer's agents, servants or employees. Therefore, this answering
defendant is entitled to an offset of any such benefits received or to be received by plaintiff against
any judgment which may be rendered in favor of said plaintiff, pursuant to the doctrine of Witr v.
Jackson (1961) 57 Cal.2d 57.
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TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. Plaintiff is barred from recovery herein if at any time, past or present, plaintiff was or
is an employee of this answering defendant, including any of this answering defendant’s divisions or
subsidiaries, thereby creating conditions of compensation. The right to recover Workers*
Compensation benefits is plaintiff's sole and exclusive remedy as against this answering defendant,
pursuant to the provisions of California Labor Code §§ 3300, et seq., and/or §§ 3600, et seq... This
answering defendant is entitled to a judicial determination of any such employer-employee
relationship establishing such exclusive remedy and bar to recovery prior to any hearing or trial on

the merits in this matter.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

26. Even if plaintiff was exposed to any products manufactured or distributed by this
answering defendant, which supposition is expressly denied, plaintiffs exposure to said products
would have been so minimal as to be insufficient to constitute a “substantial contributing factor” in

the causation of plaintiff's alleged injuries or disease, if any.

TWENTY-SIXTH AFFIRMATIVE DEFENSE
27. This answering defendant is not liable for any alleged failure to warn of any risks,
dangers or hazards in the use of any products or other goods that it allegedly distributed, sold,
supplied or delivered to plaintiff's employer(s), because said employer(s) had as great, if not greater,
knowledge about the nature of any risks, dangers or hazards than did this answering defendant, and,
unlike this answering defendant, said employer(s) were in a position to warn persons exposed to

such products of any such risks, dangers or hazards.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE
28. This answering defendant alleges that at all times relevant to the matters alleged in
the complaint, as amended now or in the future, all of plaintiff's employers, other than this answering

defendant were sophisticated and knowledgeable users of defendants’ products and said employers’

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negligence in providing said product(s) to their employees in a negligent, careless and reckless

manner was a superseding cause of plaintiff's injuries, if any.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

29. To the extent the Complaint, or any cause of action alleged therein, is based upon an
allegation of strict products liability as against this answering defendant, said cause of action cannot
be maintained as this answering defendant was not a "seller" within the meaning of § 402A of the
Restatement (Second) of Torts, and consequently any claim of strict liability against this answering
defendant is barred pursuant to Monte Vista Development Corporation vs. Superior Court (1991)

226 Cal App.3d 1681.

TWENTY-NINTH AFFIRMATIVE DEFENSE

30. This answering defendant denies that it was 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 owning property, maintaining
premises, researching, studying, manufacturing, fabricating, designing, labeling, assembling,
distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting
for installation, repairing, marketing, warranting, re-branding, manufacturing for others, packaging
and advertising any of the alleged products. This answering defendant is therefore not liable for any
acts, whether they be active or passive, or omissions of any entities to which this answering
defendant is or may be alleged to be a successor-in-interest, predecessor-in-interest, alter ego, or the

like.

THIRTIETH AFFIRMATIVE DEFENSE

31. This answering defendant did not and does not have a substantial percentage of the
market for any of the alleged products which allegedly caused the injuries and damages claimed by
plaintiff. Furthermore, the products which allegedly caused the injuries and damages claimed by

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plaintiff are not “fungible” in nature. As such, this answering defendant may not be held liable to

plaintiff based upon any “market-share” or “enterprise” theories of liability.

THIRTY-FIRST AFFIRMATIVE DEFENSE
32. Pursuant to California Code of Civil Procedure § 430.10(c), there is another action

pending between the same parties on the same causes of action.

THIRTY-SECOND AFFIRMATIVE DEFENSE
33. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, are preempted by the Locomotive Boiler Inspection Act, 49 U.S.C.S. §§
20701, et seq., the Federal Safety Appliances Act, 49 U.S.C. § 20301, et seq., and all other

applicable federal statutes, laws or regulations.

THIRTY-THIRD AFFIRMATIVE DEFENSE

34, The Complaint, as amended now or in the future, and any and all claims and causes of

action alleged therein, is/are barred by the rule against splitting a cause of action.

THIRTY-FOURTH AFFIRMATIVE DEFENSE
35. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred by plaintiff's failure to timely join one or more parties that are
indispensable and/or necessary to a resolution of the matters alleged in the Complaint, as required by

Code of Civil Procedure § 389.

THIRTY-FIFTH AFFIRMATIVE DEFENSE
36. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred pursuant to the doctrines of res judicata and/or collateral
estoppel.
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THIRTY-SIXTH AFFIRMATIVE DEFENSE

37. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred because there is a defect and misjoinder of parties plaintiff

and/or defendant.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE
38. This answering defendant alleges that at all times relevant to the matters alleged in.
the complaint, as amended now or in the future, plaintiff knew or should have known of the inherent
hazards, risks or potential dangers of the product(s) alleged to be at issue, and was therefore a
sophisticated and knowledgeable user of each such product. As such, this answering defendant is

not liable to plaintiff for any alleged failure to warn of such hazards, risks or dangers.

THIRTY-EIGHTH AFFIRMATIVE DEFENSE

39. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred by the "sophisticated user" doctrine pursuant to Johnson v.

American Standard (2008) 43 Cal.4th 56.

THIRTY-NINTH AFFIRMATIVE DEFENSE
40. This answering defendant alleges that the instant action is barred or, alternatively,
was merged into a prior cause of action for which plaintiff has previously sued upon, recovered, and
dismissed with prejudice, thereby requiring a complete extinguishment of the instant action due to

the doctrines of res judicata and collateral estoppel.

FORTIETH AFFIRMATIVE DEFENSE

41. This answering defendant alleges that this Court lacks jurisdiction over this action.

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FORTY-FIRST AFFIRMATIVE DEFENSE
42. This answering defendant alleges that the damages aileged by plaintiff, if any, were
caused, either in whole or in part, by persons, firms or entities other than defendant and over which

defendant had neither control or the right of control.

FORTY-SECOND AFFIRMATIVE DEFENSE

43, This answering defendant alleges that if it is determined to be liable to plaintiff, such
lability is based on conduct which is passive and secondary to the active and primary wrongful
conduct of the other defendants to this action. This answering defendant is, therefore, entitled to

total, equitable indemnity from such other defendants.

FORTY-THIRD AFFIRMATIVE DEFENSE

44, This answering defendant alleges that plaintiff lacks standing to sue defendant.

FORTY-FOURTH AFFIRMATIVE DEFENSE

45. This answering defendant alleges that if it has purportedly been named or served in
this action as a Doe Defendant, such effort by plaintiff is invalid on the ground that plaintiff knew or
should have known of the identity of this answering defendant and the alleged causes of action

against this answering defendant at the time of the filing of the complaint.

FORTY-FIFTH AFFIRMATIVE DEFENSE

46. This answering 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 unstated, defenses
available. Defendant reserves the right to assert additional defenses in the event that they would be
appropriate.
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FORTY-SIXTH AFFIRMATIVE DEFENSE
47. If this answering Defendant supplied any product alleged to have been defective or
unmerchantable as alleged in the Complaint, it distributed such products in bulk to distributors or
other intermediaries, including plaintiff's employer. The distributors or other intermediaries
packaged, labeled and marketed the products. This Defendant, therefore, owed no legal duty to

plaintiff.

FORTY-SEVENTH AFFIRMATIVE DEFENSE

48, At all times and places relevant to this action, any product or products alleged by
plaintiff to have caused his injuries were manufactured, installed, supplied or distributed in
compliance with all applicable health and safety statutes and regulations and/or in compliance with

specifications provided by third parties to this answering defendant.

FORTY-EIGHTH AFFIRMATIVE DEFENSE
49. Defendant did not cause unlawful, harmful or offensive contact with the person of the

plaintiff. Plaintiff is therefore barred from recovery herein.

FORTY-NINTH AFFIRMATIVE DEFENSE

50. Defendant did not act with the requisite intent with regard to the acts alleged by

plaintiff. Plaintiff is therefore barred from recovery herein.

FIFTIETH AFFIRMATIVE DEFENSE
51. Plaintiff consented, participated in, acquiesced in, and/or concurred in all of the acts

complained of by plaintiff. Plaintiff is therefore barred from recovery herein.

RESERVATION OF RIGHTS
This answering defendant hereby reserves the right, upon completion of its
investigation and discovery, to amend this answer to include such additional defenses as may be

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appropriate,

WHEREFORE, defendant, FREDERICK MEISWINKEL, INC., prays as follows:

1. That plaintiff takes nothing by reason of the operative Complaint on file
herein;

2. That defendant FREDERICK MEISWINKEL, INC., be awarded its costs and
expenses of suit incurred herein;

3. That if defendant, FREDERICK MEISWINKEL, INC., is found liable, that
the degree of responsibility and liability for the resulting damages be determined and apportioned in
accordance with California Civil Code §§ 1431, et seq.; and

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

DATED: August “>, 2010 PRINDLE, AMARO, GOETZ,
HILLYARD, BARNES & REINHOLTZ LLP

Aegan ef
MARY KIRK HILLYARD
Attorneys for Defendant,
FREDERICK MEISWINKEL. INC.

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

I, the undersigned, declare:

That | am, and was at the time of service of the documents herein referred to, over the age of
18 years, and not a party to the action; and | am employed in the County of San Francisco,
California. My business address is One California Street, Suite 1910, San Francisco, California
94111.

On the date executed below, I electronically served the documents(s) via Lexis Nexis File &
Serve described as:

DEFENDANT FREDERICK MEISWINKEL, INC.’S ANSWER TO COMPLAINT
FOR PERSONAL INJURY — ASBESTOS

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website. | 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 August ! & 2010 at San Francisco, California.

e Bertana-Ramirez,

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