Answer: LAURANCE HAGEN VS. ASSOCIATED INSULATION OF CALIFORNIA

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SCHIFF HARDIN LLP
ATroRNEYS AT LAW
SAN FRANCISCO

SCHIFF HARDIN LLP
JEFFREY R. WILLIAMS (CSB #84156)

ALEX P. CATALONA (CSB #200801) ELECTRONICALLY
One Market, Spear Street Tower
Thirty-Second Floor FILED
San Francisco, CA 94105 Superior Court of California,
Telephone: (41 5) 901-8700 County of San Francisco
Facsimile: (415) 901-8701 SEP 16 2010
Clerk of the Court
Attorneys for Defendant BY: WILLIAM TRUPEK
4520 CORP., INC., incorrectly named as Early Deputy Clerk
Engineering Corporation, Incorporated
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
LAURANCE HAGEN, Case No. CGC-10-275582
Plaintiff, ANSWER OF DEFENDANT TO
PLAINTIFF'S UNVERIFIED COMPLAINT
v. FOR PERSONAL INJURY

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

Defendants.

Defendant 4520 CORP., INC. answers Plaintiff's unverified Complaint on its own
behalf and on behalf of no other Defendant 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 Plaintiff
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 “enterprise liability,” the Compiaint fails to state facts sufficient to constitute a cause of

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SCHIFF HARDIN LLP
ATTORNEYS AT Law
Saw FRANCIECO

action against Defendant.
THIRD AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged therein states
facts sufficient to entitle Plaintiff 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 penaity 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 335.1, 338, 339, 340, 340.2, 340.8, 343, 366.1, and 474 and California
Commercial Code, Section 2725 and including any applicable statute of limitation and/or
statute of repose of the state of Plaintiff's residence if not Califormia.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff unreasonably delayed in bringing this action, without good cause therefor,
and thereby have prejudiced Defendant as a direct and proximate result of such delay;
accordingly, this action is barred by laches.
NINTH AFFIRMATIVE DEFENSE

Plaintiff was 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 part, the
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ScHire HAxDIN LLP
ATTORNEYS AT LAW
SAN FRancisco-

damages alleged in the Complaint. tn the event Plaintiff is entitled to any damages, the
amount of these damages should be reduced by the comparative fault of Plaintiff and
any person whose negligent acts or omissions are imputed to Plaintiff.
TENTH AFFIRMATIVE DEFENSE
Plaintiff 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 loss, injury or
damages incurred by Plaintiff.
ELEVENTH AFFIRMATIVE DEFENSE
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.
TWELFTH AFFIRMATIVE DEFENSE
The products referred to in the Complaint were misused, abused or altered by

Piaintiff or by others; the misuse, abuse or alteration was not reasonably foreseeable to
Defendant, and proximately caused any loss, injury or damages incurred by Plaintiff.
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 and/or foreign government under its war powers, as set forth in its
Constitution, and/or laws of that country, and that any recovery by Plaintiff on the
Complaint on file herein is barred in consequence of the exercise of those sovereign
powers.
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff failed to exercise due diligence to mitigate their loss, injury or damages;
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.
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LLP

ATTORNEYS AT LAW

Stl FRANCISCO

FIFTEENTH AFFIRMATIVE DEFENSE

The Court lacks subject matter jurisdiction over the matters alleged in the
Complaint because the Complaint and each alleged cause of action against Defendant
is barred by the provisions of California Labor Code, Section 3601, et seg.

SIXTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff
was employed and they were entitled to receive Workers’ Compensation benefits from
their employer; that Plaintiffs employer, other than Defendant, was negligent in and
about the matters referred to in said Complaint, and that such negligence on the part of
said employer proximately and concurrently contributed to the happening of the accident
and to the loss or damage complained of by Plaintiff, if any there were, and that by
reason thereof Defendant is entitled to set off any such benefits to be received by
Plaintiff against any judgment which may be rendered in favor of Plaintiff.

SEVENTEENTH AFFIRMATIVE DEFENSE

Discovery may show that at the time of the injuries alleged in the Complaint,
Plaintiff was employed by and entitled to Workers' Compensation benefits from
Defendant; such benefits constitute Plaintiff's exclusive remedy pursuant to Labor Code
section 3600 et seq.

EIGHTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint,
Plaintiffs 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 Plaintiff, if any there were; and that Defendant is not liable for said
employers’ proportionate share of non-economic damages.

NINETEENTH 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
SF. 9023124.4 -4-

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SCHIFF HARDIN LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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 Plaintiff, if any there were; and that Defendant herein shall not be liable
for said parties' proportionate share of non-economic damages.
TWENTIETH AFFIRMATIVE DEFENSE

Defendant alleges that at all times relevant to matters alleged in the Complaint,
Plaintiffs employer was a sophisticated user of asbestos-containing products and the
employer's negligence in providing the product to its employees in a negligent, careless
and reckless manner is a superseding cause of Plaintiff's injuries.

TWENTY-FIRST AFFIRMATIVE DEFENSE

If Plaintiff has 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
that Defendant is held liable to Plaintiff, any award against Defendant must be reduced
in the amount of all such benefits received by Plaintiff.
TWENTY-SECOND AFFIRMATIVE DEFENSE

If Plaintiff has 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
Plaintiff is awarded damages against Defendant, Defendant claims a credit against this
award to the extent that Defendant is barred from enforcing its rights to reimbursement
for Workers’ Compensation benefits that Plaintiff have received or may in the future
receive.

TWENTY-THIRD AFFIRMATIVE DEFENSE

if Plaintiff has 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, Defendant

demands repayment of any such Workers’ Compensation benefits in the event that
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SCHIFF HARDIN LLP
ATTORNEYS AT Law
SAN FRANCISCO

| Plaintiff recover tort damages as a result of the industrial injury allegedly involved here.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Although Defendant denies the validity of Plaintiff's 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 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.
TWENTY-FIFTH AFFIRMATIVE DEFENSE

At all times and places in the Complaint, Plaintiff was not in privity of contract with
Defendant and said lack of privity bars Plaintiff's recovery herein upon any theory of
warranty.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Plaintiff is barred from recovery in that all products produced by Defendant were
in conformity with the existing state-of-the-art, and as a result, these products were not
defective in any manner.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

Defendant did not and does not have a substantial percentage of the market for
the asbestos-containing products which allegedly caused Plaintiff's injuries. Therefore,
Defendant may not be held liable to Piaintiff based on Defendant's alleged percentage
| share of the applicable market.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Defendant denies any and ail 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, equitable trustee, 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
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derronnexs AT Law
SAN FRANCISCO

installation, repairing, marketing, warranting, rebranding, manufacturing for others,
packaging and advertising a certain substance, the generic name of which is asbestos or
a product which contains asbestos.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Defendant had no knowledge that any of the alleged activities of which Plaintiff

complains, and which allegedly were conducted on premises where this Defendant
performed work, were unsafe or dangerous, and Defendant therefore did not have a duty
to warn Plaintiff regarding any such alleged dangers.
THIRTIETH AFFIRMATIVE DEFENSE
Defendant alleges that it was under no legal duty to warn Plaintiff of the hazards
associated with the use of products containing asbestos. Defendant further alleges that
ihe purchasers of said products, Plaintiff's empioyer/s, his union/s or certain third parties
yet to be identified, were knowledgeable and sophisticated users and were in a better
position to warn Plaintiff of the risks associated with using products containing asbestos
and, assuming a warning was required, it was the failure of such persons or entities to
give such a warning that was the proximate and superseding cause of Plaintiff's
damages, if any.
THIRTY-FIRST AFFIRMATIVE DEFENSE

Defendant alleges that no conduct by or attributable to it was the cause in fact or
the proximate cause of the damages, if any, suffered by Plaintiff, nor a substantial factor

in bringing about said damages.
THIRTY-SECOND AFFIRMATIVE DEFENSE

Defendant alleges that its liability, if any, in this matter is extremely minor relative
to the liability of various third parties and, therefore, the damages, if any, assessed
against it should be proportionate to the degree, nature and extent of its fault.

THIRTY-THIRD AFFIRMATIVE DEFENSE

Plaintiff herein has failed to join indispensable parties and the complaint is thereby

defective, and Plaintiff is thereby precluded from any recovery whatsoever as prayed for
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SCHIFF HARDIN LLP
ATTORNEYS AT LAW
SAN FRANCISCO

herein.
THIRTY-FOURTH AFFIRMATIVE DEFENSE

Defendant alleges that if Plaintiff's claims were already litigated and resolved in
any prior action, or if Plaintiff has filed a separate action seeking damages for the same
asbestos-related disease(s), Plaintiff's claims herein are barred based on the primary
right and res judicata doctrines which prohibit splitting a single cause of action into
successive suits, and/or seeking new recovery for injuries for which the Plaintiff was
previously compensated by alleged joint tortfeasors.

THIRTY-FIFTH AFFIRMATIVE DEFENSE
Pursuant to California Code of Civil Procedure sections 378 and 430.10(d), if it is

determined that multiple Plaintiffs have been listed on this complaint, then this
Defendant contends the Plaintiffs are misjoined. Because joinder is defective and
improper, and Defendants will be prejudiced by having to proceed against different
Plaintiffs with dissimilar cases, a single trial is unfair and a hardship, and separate trials
on each individual cause of action should be ordered.
THIRTY-SIXTH AFFIRMATIVE DEFENSE

The matters alleged in this complaint are encompassed within and barred by a
settlement and release agreement reached by the parties which operates as a merger
and bar against any further litigation on matters raised or potentially raised in connection
with the settlement and release.

THIRTY-SEVENTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff has previously filed a dismissal in court dismissing all of

its asserted claims, causes of action, and other theories of liability against this Defendant
with prejudice, the matters alleged in this complaint are barred by retraxit.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
To the extent that Plaintiff has reached an accord with Defendant regarding this
litigation and this accord was then properly satisfied, the claims, causes of action,

theories of liability and matters alleged in this complaint are barred by the doctrine of
‘SF. 9623121.4 -B-

ANSWER OF DEFENDANT TO PLAINTIFF'S UNVERIFIED COMPLAINT FOR PERSONAL INJURY28

SCHIFF HARDIN LLP
ATTOANEYS AT LAW
SAN FRANCISCO

accord and satisfaction.
| THIRTY-NINTH AFFIRMATIVE DEFENSE

Plaintiff is barred from recovery in this case under the Sophisticated User doctrine
as to any cause of action based in whole or in part upon a failure to warn, in that the
allegedly injured plaintiff was a member of a trade, union, profession and/or a smatler
group within such trade, union or profession which generally knew of the dangers of
exposure to asbestos at the time of the facts alleged against Defendant. Johnson v.
| American Standard, 43 Cal. 4th 56 (2008).

FORTIETH AFFIRMATIVE DEFENSE

Plaintiff's action should be dismissed under California Code of Civil Procedure,
Section 410.30, because in the interest of substantial justice this action should be heard
in a forum outside this state.

WHEREFORE, Defendant prays:

(1) That Plaintiff take nothing by his 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, and

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

Dated:September i4 , 2010 SCHIFF HARDIN LLP
|

By:

ALEX P. CATALONA

Attorneys for Defendant

4520 CORP., INC., incorrectly named
as Early Engineering Corporation,
incorporate:

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Scere Harpin LLP
ATTORNEYS AT LAW
SAN Francisco

PROOF OF SERVICE

i, the undersigned, declare:
lam a resident of the State of California, employed in San Francisco County,
Califomia. | am over the age of eighteen (18) years, and not a party to the within action.

tam an employee of Schiff Hardin LLP, and my business address is One Market, Spear
Street Tower, Thirty Second Floor, San Francisco, California 94105.

On the date below, | caused to be served the following document(s):

ANSWER OF DEFENDANT TO PLAINTIFF'S
UNVERIFIED COMPLAINT FOR PERSONAL INJURY

on the parties involved addressed as follows:

[x] By electronically serving the document(s) listed above via LexisNexis File &
Serve on the recipients designated on the Transaction Receipt located on
the LexisNexis File & Serve website.

| declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
Executed on September _|‘o_, 2010, at San Francisco, California.

GRANT D. GREETTUM

‘SFA 9023121.1

PROOF OF SERVICE