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  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview
  • LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA ASBESTOS document preview 
						
                                
Preview

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Jeffrey S. Gillespie, State Bar No, 192495
Kimberly I. Chew State Bar No, 251263

Bul RNHAM Brown ELECTRONICALLY
A Professior aw Corporation

P.O. Box 1 19 . sapeky IL ED...
Oakland, California 94604 County of San Francisco ,
1901 Harrison Street, 11th Floor AUG 16 2010
Oakland, California 94612 Clerk of the Court
Telephone: (510) 444-6800 BY: JUDITH NUNEZ
Facsimile: (510) 835-6666 Depuly Clerk
Attomeys for Defendant

ENTERPRISE PLUMBING, INC.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION
LAURANCE HAGEN, ASBESTOS
Plaintiff, No, CGC-10-275582
v. DEFENDANT ENTERPRISE
. - PLUMBING, INC.’S ANSWER TO
ASSOCIATED INSULATION OF PLAINTIFF LAURANCE HAGEN’S
CALIFORNIA; Defendants as Reflected on COMPLAINT FOR PERSONAL
Exhibit 1 attached to the Summary Complaint - INJURY - ASBESTOS
herein; and DOES 1-8500.,
Complaint Filed: June 2, 2010
Defendants.

Defendant ENTERPRISE PLUMBING, INC. (“Defendant”), in answer to Plaintiff's
complaint, denies generally and specifically, each and every, all and singular, the allegations of
said complaint, and each cause of action thereof, and further denies that Plaintiff LAURANCE
HAGEN (“Plaintiff”) has been damaged in any sur or sums or at all.

WHEREFORE, this answering Defendant asserts the following affirmative defenses:

AFFIRMATIVE DEFENSES

1. Asa first affirmative defense to each cause of action, the complaint does not state
facts sufficient to constitute a cause of action against this Defendant.

2. As asecond affirmative defense, cach cause of action is barred by the applicable statate
of limitations, including but not limited to, California Code of Civil Procedure sections 340.2 and 361.

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DEFENDANT ENTERPRISE PLUMBING, ING."S ANSWER TO PLAINTIFE LAURANCE — “CGC-10-275582 |
HAGEN’S COMPLAINT FOR PERSONAL INJURY — ASBESTOSeC 6 RW A Rh eR WY NR

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3. As a third affirmative defense to each cause of action, Plaintiff failed to mitigate
or make reasonable efforts to mitigate his damages, if any, as required by law.

4, Asa fourth affirmative defense to each cause of action, the damages sustained by
Plaintiff, if any, were caused, in whole or in part, by the negligence, strict liability or fault of
others for which this Defendant is not liable or responsible.

5. As a fifth affirmative defense to each cause of action, Plaintiff by his actions,
knew of and appreciated the risks involved, and voluntarily and reasonably assumed the risk of
said injuries, proximately causing or contributing to the damages alleged.

6. As asixth affirmative defense to each cause of action, if Plaintiff sustained
injuries attributable to the use of any product, which allegations are expressly denied, the injuries
were caused in whole or in part by the unreasonable, unforeseeable and inappropriate purpose
and/or improper use which was made of the product.

7. Asa seventh affirmative defense to each cause of action, Plaintiff was partially, if
not wholly, negligent or otherwise at fault on his own part pursuant to the doctrine of
comparative fault, and Plaintiff is barred from recovery of that portion of the damages directly
attributable to his proportionate share of fault.

8. As an eighth affirmative defense to each cause of action, Defendant alleges that
the products were as safe as could be designed under the state of technology and medical and
scientific knowledge existing at the time the products were manufactured.

9. As aninth affirmative defense to each cause of action, Defendant alleges that any
claim for punitive or exemplary damages is barred by the United States Constitution, including the
First, Fifth, Bighth and Fourteenth Amendments, and by the California Constitution, including
Article I, and that Civil Code section 3294 is invalid on its face or as applied in this action.

10. Asatenth affirmative defense to cach cause of action, at the time and place of the
happening of the incident alleged in the complaint, Plaintiff LAURANCE HAGEN was

employed by various employers, and was working within the course and scope of employment

_ and certain sums have been or will be paid under the applicable provisions of the Labor Code

and any award made must be reduced by the payments.omy DR he ee BW BP

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11. As an eleventh affirmative defense to each cause of action, Defendant alteges that
the action is barred under the “primary right” doctrine on the basis that causes of action may not
be split by the doctrines of res judicata and collateral estoppel and by virtue of Plaintiff's
prosecution and/or settlement of his claims in prior actions.

12, As a twelfth affirmative defense to each cause of action, Defendant alleges that if
Plaintiff worked for this answering Defendant then Plaintiff's claim is barred by the exclusive
remedy provisions of the appropriate state or federal law.

13. Asa thirteenth affirmative defense to each cause of action, Defendant alleges that
Plaintiff was provided and/or was covered by workers’ compensation insurance by each of his
employers, and Plaintiff, his employer and/or employers were subject to the provisions of the
Workers’ Compensation Act of the State of California. Accordingly, Plaintiff's actions were
barred by the doctrine articulated in Privette v. Superior Court, 5 Cal. 4th 689 (1993).

14, Asa fourteenth affirmative defense to each cause of'action, this Defendant
alleges that Plaintiff assumed whatever risk or bazard, if any, that existed at the time and place
of the alleged accident set forth in Plaintiff's complaint, and said assumption of risk or hazard is
imputed to said Plaintiffs.

15. As a fifteenth affirmative defense to each cause of action, the damages sustained
by Plaintiff or damages that will be sustained by Plaintiff, if any, have been and will be
proximately caused, in whole or in part, by unforeseen superseding and intervening causes over
which Defendant had no control, thereby barring or diminishing recovery on the complaint
against Defendant.

16.  Asasixteenth affirmative defense to each cause of action, Plaintiff
acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions, if any, of
this Defendant, thus barring Plaintiff's recovery.

17. As a seventeenth affirmative defense to each cause of action, Plaintiff
LAURANCE HAGEN and/or his employer(s) were sophisticated users and/or learned
intermediaries of the products and equipment referred to by Plaintiff in the complaint.

Accordingly, Defendant owed no duty to Plaintiff with respect to any warning relating to

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DEFENDANT ENTERPRISE PLUMBING, INC.’S ANSWER TO PLAINTIFF LAURANCE ~~ CGC-10-275582
HAGEN’S COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSeS 2 WD HW Re BN

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Defendant’s products.

18. As an eighteenth affirmative defense to each cause of action, the injuries and
damages sustained by Plaintiff, if any, were solely and legally caused by the modification,
alteration or change of the product referred to in the complaint and said modification, alteration
or change was performed by persons or entities other than this answering Defendant and without
its knowledge or consent.

19.  Asanineteenth affirmative defense to each cause of action, Defendant 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 herein the right to assert
additional defenses in the event discovery indicates that they would be appropriate.

20.  Asatwentieth affirmative defense to each cause of action, the provisions of the
“Fair Responsibility Act of 1986” (commonly known as Proposition 51, Civil Code sections
1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable to this action to the
extent that Plaintiff's injuries and damages, if any, were legally caused or contributed to by the
negligence or fault of persons or entities other than this answering Defendant.

21. Asa twenty-first affirmative defense to each cause of action, the asbestos
products, if any, for which Defendant may have any legal responsibility were manufactured,
packaged, distributed, and/or sold in accordance with contract specifications imposed by Co-
Defendant, by the U.S. Government, by Plaintiff's employers, and/or by third parties yet to be
identified.

. 22,  Asatwenty-second affirmative defense to each cause of action, Plaintiff's
complaint, and each cause of action therein, is barred by the doctrine of laches.

23. Asa twenty-third affirmative defense to each cause of action, Plaintiff's
employers were partially, if not wholly, negligent, or otherwise at fault on his own part pursuant
to the doctrine of comparative negligence, and Plaintiff should be barred from recovery of that
portion of the damages directly attributable to Plaintiff's employers’ proportionate share of the
negligence or fault. Witt v. Jackson, 57 Cal. 2d 37 (1961).

24. Asa twenty-fourth affirmative defense to each cause of action, Plaintiff's

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“DEFENDANT ENTERPRISE PLUMBING, INC7S ANSWER TO PLAINTIFF LAURANCE CGC-10-275582
HAGEN’S COMPLAINT FOR PERSONAL INJURY ~ ASBESTOSeC 6 2 AR AR WB NR

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complaint, and each cause of action therein, is vague, ambiguous, unintelligible and uncertain.

25. Asa twenty-fifth affirmative defense to each cause of action, Plaintiff has failed
to join all persons and parties needed for a just adjudication of this action.

26. Asatwenty-sixth affirmative defense, with respect to some or all of Plaintiff's
alleged claims and causes of action, this Court lacks jurisdiction.

27, Asa twenty-seventh affirmative defense, with respect to some or all of Plaintiff's
alleged. claims and causes of action, in the interest of substantial justice, the action should be
heard in a forum outside this state.

WHEREFORE, this answering Defendant prays for judgment as follows:

1. That Plaintiff take nothing by reason of his complaint on file herein;

2. For costs of suit incurred herein; and

3. For such other and further relief as the Court deems just and proper.

DATED: August 16, 2010 BURNHAM BROWN

By_ Km hu Chi
KIMBERLY LZHEW

Attorneys for Defendant
ENTERPRISE PLUMBING, INC.

1024240

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DEFENDANT ENTERPRISE PLUMBING, ING’S ANSWER TO PLAINTIFF LAURANCE CGC-10-275582
HAGEN’S COMPLAINT FOR PERSONAL INJURY -~- ASBESTOSRe: Laurance Hagen v. Associated Insulation of California, et al.
Court: San Francisco Superior
Action No: CGC-10-275582

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

I declare that T am over the age of 18, not a party to the above-entitled action, and am an
employee of Burnham Brown whose business address is 1901 Harrison Street, 11" Floor,
Oakland, Alameda County, California 94612 (mailing address: Post Office Box 119, Oakland,
California 94604).

On the date executed below, I electronically served the document(s) via LexisNexis File
& Serve as described as:

DEFENDANT ENTERPRISE PLUMBING, INC.’S ANSWER TO PLAINTIFF
LAURANCE HAGEN’S COMPLAINT FOR PERSONAL INJURY — ASBESTOS

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and was executed on August 16, 2010, at Oakland, California.

Doured anon ~

1024327

PROOF OF SERVICE CASE NO. CGC- CGC-10-275582