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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 
						
                                
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                                JEFFREY M. VUCINICH, ESQ. BAR#: 67906
STEPHEN V. HARRINGTON, ESQ. BAR#: 222064
CLAPP, MORONEY, BELLAGAMBA, VUCINICH, ELECTRONICALLY
BEEMAN and SCHELEY FILED
A PROFESSIONAL CORPORATION Superior Court of California,
1111 Bayhill Drive, Suite 300 County of San Francisco
San Bruno, CA 94066
(650) 989-5400 (650) 989-5499 FAX SEP 14 2010
Clerk of the Court
Attomeys for Defendant BY: JUDITH NUNES ty Clerk
MARINA HEATING & AIR CONDITIONING puly
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
LAURANCE HAGEN, CASE NO.: CGC-10-275582
Plaintiff, DEFENDANT MARINA HEATING &
AIR CONDITIONING’S ANSWER TO

v. : PLAINTIFF'S COMPLAINT

ASSOCIATED INSULATION OF

CALIFORNIA; Defendants as Reflected on

Exhibit 1 attached to the Summary

Complaint herein; and DOES 1-8500,

Defendants.
COMES NOW Defendant MARINA HEATING & AIR CONDITIONING and answers the

Complaint of Plaintiff LAURANCE HAGEN, for Personal Injury - Asbestos as follows:

This answering Defendant denies each and every, all and singular, generally and specifically,
the allegations of the complaint for personal injury - asbestos and each cause of action thereof. This
answering Defendant further specifically denies that the Plaintiff was injured or damaged in any sum
or sums alleged, or in any sum or sums whatsoever, or at all.
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DEFENDANT MARINA HEATING & AIR CONDITIONING’S ANSWER TO PLAINTIFFS COMPLAINTFIRST AFFIRMATIVE DEFENSE
AS AND FOR A FIRST, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS ANSWERING
DEFENDANT STATES:

Each and every cause of action of Plaintiffs complaint is barred by the statute of limitations.
SECOND AFFIRMATIVE DEFENSE
AS FOR A SECOND, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS ANSWERING
DEFENDANT STATES:

The Plaintiff and/or others were careless and negligent in and about the matters alleged in the
complaint on file herein. The carelessness and negligence of Plaintiff and/or others proximately
and/or legaliy contributed to the injuries and damages, if any, alleged by the Plaintiff.

In event of any judgment in favor of Plaintiff herein, said judgment must be reduced to the
extent that said carelessness and negligence of Plaintiff and/or others caused and contributed to the
injuries and damages, if any, alleged by the Plaintiff.

THIRD AFFIRMATIVE DEFENSE

AS FOR A THIRD, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OF ACTION OR PLAINTIFF'S COMPLAINT, THIS ANSWERING
DEFENDANT STATES:

Plaintiff knew of the risks, if any, referred to in the complaint on file herein, and had full
knowledge of the conditions existing, and appreciated the risks involved, and voluntarily and
knowingly assumed the same. Plaintiff's assumption of the risks was the sole proximate and/or legal
cause of the injuries and damages, if any, alleged by the Plaintiff.

FOURTH AFFIRMATIVE DEFENSE

AS AND FOR A FOURTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH
AND EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS ANSWERING
DEFENDANT STATES:

Plaintiff's alleged injuries, loss or damage, if any, were aggravated by the failure of Plaintiff

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DEFENDANT MARINA HEATING & AIR CONDITIONING’S ANSWER TO PLAINTIFF’S COMPLAINTand/or others to use reasonable diligence to mitigate the same.
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FIFTH AFFIRMATIVE DEFENSE
AS AND FOR A FIFTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OF ACTION OR PLAINTIFF'S COMPLAINT, THIS ANSWERING

DEFENDANT STATES:

Each and every cause of action in Plaintiff's complaint fails to state facts sufficient to
constitute a cause of action against this answering Defendant, if at all.

SIXTH AFFIRMATIVE DEFENSE

AS AND FOR A SIXTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS ANSWERING
DEFENDANT STATES:

Plaintiff acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions,
if any, of this answering Defendant, thus barring Plaintiff from any recovery whatsoever.

SEVENTH AFFIRMATIVE DEFENSE

AS AND FOR A SEVENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH
AND EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS ANSWERING
DEFENDANT STATES:
Each and every cause of action of Plaintiff’s complaint is uncertain, ambiguous and
unintelligible.
EIGHTH AFFIRMATIVE DEFENSE
AS AND FOR AN EIGHTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH

AND EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS ANSWERING
DEFENDANT STATES:

Each and every cause of action of Plaintiff's complaint fails to state facts sufficient to
constitute a cause of action against this answering Defendant because Plaintiffs alleged injuries
preexisted or were suffered after Plaintiff worked at premises where this answering Defendant was

also performing work. Asa result, Plaintiff's injuries were neither caused by nor exacerbated by their

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DEFENDANT MARINA HEATING & ATR CONDITIONING’S ANSWER TO PLAINTIFF’S COMPLAINTwork at those locations where this answering Defendant was simultaneously working.
NINTH AFFIRMATIVE DEFENSE
AS AND FOR ANINTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH AND

EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS ANSWERING
DEFENDANT STATES:
Each and every cause of action of Plaintiff's complaint is barred by the doctrine of laches.
TENTH AFFIRMATIVE DEFENSE

AS AND FOR A TENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OF ACTION OR PLAINTIFF'S COMPLAINT, THIS ANSWERING
DEFENDANT STATES: /

Each and every cause of action of Plaintiff's complaint is barred by the doctrines and principles
of waiver, estoppel, and unclean hands,

ELEVENTH AFFIRMATIVE DEFENSE

AS AND FOR AN ELEVENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO
EACH AND EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS
ANSWERING DEFENDANT STATES:

Plaintiff is barred from any recovery from this answering Defendant by the provisions of the
California Labor Code, including but not limited to, Section 3330, et seq. and 3601, et seq.
TWELFTH AFFIRMATIVE DEFENSE
AS AND FOR A TWELFTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH
AND EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS ANSWERING
DEFENDANT STATES:

The injuries and damages, if any, sustained by the Plaintiff were solely and proximately caused
by Plaintiff's own misuse of the products referred to in the Plaintiff's complaint.
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DEFENDANT MARINA HEATING & AIR CONDITIONING’S ANSWER TO PLAINTIRF’S COMPLAINTTHIRTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A THIRTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO
EACH AND EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS
ANSWERING DEFENDANT STATES:

The injuries and damages, if any, sustained by the Plaintiff were solely and proximately caused
by modification, alteration or change, by persons or entities other than this answering Defendant, or
the products referred to in the Plaintiff's complaint.

FOURTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A FOURTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO
EACH AND EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS
ANSWERING DEFENDANT STATES:

Plaintiffhas received or will receive disability and medical benefits under applicable
compensation law, from the Plaintiff's employers and/or their insurers in compensation for the injures
and damages, if any, alleged by the Plaintiff herein.

In the event of a judgment against this answering Defendant and in favor of Plaintiff herein,
said judgment must be reduced by the amount of any and all compensation to be received by the
Plaintiff herein.

FIFTEENTH AFFIRMATIVE DEFENSE
AS AND FORA FIFTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH

AND EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS ANSWERING
DEFENDANT STATES:

Plaintiff's claim for punitive damages, if any, against this answering Defendant is barred
because an award for punitive damages in this action would be unconstitutional under both the
California Constitution and the United States Constitution.

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DEFENDANT MARINA HEATING & AIR CONDITIONING’S ANSWER TO PLAINTIFF'S COMPLAINTSIXTEENTH AFFIRMATIVE DEFENSE
AS AND FORA SIXTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO EACH

AND EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS ANSWERING
DEFENDANT STATES:

Plaintiff's complaint fails to state facts sufficient to constitute a cause of action for punitive
damages against this answering Defendant.

SEVENTEENTH AFFIRMATIVE DEFENSE

AS AND FOR A SEVENTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO
EACH AND EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS
ANSWERING DEFENDANT STATES:

Plaintiff's claims for non-economic damages are subject to the provisions of the Fair
Responsibility Act of 1986, California Code of Civil Procedure Sections 1431 through 1431.5.
EIGHTEENTH AFFIRMATIVE DEFENSE
AS AND FOR AN EIGHTEENTH, DISTINCT AND AFFIRMATIVE DEFENSE TO
EACH AND EVERY CAUSE OF ACTION OR PLAINTIFF’S COMPLAINT, THIS

ANSWERING DEFENDANT STATES:

Without admitting any of the allegations of the complaint, Defendant alleges that the complaint
filed against this Defendant was brought without reasonable care and without a good faith belief that
here was a justiciable controversy under the facts and the law which warranted the filing of the
complaint against this responding Defendant, and that Plaintiff should therefore be responsible for all
of Defendant’s necessary and reasonable defense costs, including attorneys’ fees, as more particularly
set forth in California Code of Civil Procedure Sections 128.5, 128.7, 1038 and 1021.6; and further,
demand is hereby made that Plaintiff undertake the defense of this responding Defendant against the
claim of implied indemnity made by others in the above captioned action.
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DEFENDANT MARINA BEATING & ATR CONDITIONING’S ANSWER TO PLAINTIFF’S COMPLAINT27

28

WHEREFORE, this answering Defendant prays 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 proper.
DATED: September 14, 2010 CLAPP, MORONEY, BELLAGAMBA,
VUCINICH, BEE. and SCHELBY
By:
Horny for Defendant
MAR BNA HEATING & AIR CONDITIONING
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DEFENDANT MARINA HEATING & AIR CONDITIONING’S ANSWER TO PLAINTIFE’S COMPLAINTLAURANCE HAGEN v. ASSOCIATED INSULATION OF CALIFORNIA, et al,

San Francisco Superior Court Case No. CGC-10-275582

PROOF OF SERVICE - Civil
[Code of Civ. Proc. §§ 1011, 1013, 1031a, 2015.5]

METHOD OF SERVICE:

0 By Personal Service By Mail IBy Overnight Delivery
C By Messenger Service [1] By Facsimile (] By E-Mail/Electronic Transmission

1. Iam a citizen of the United States and am employed in the County of San Mateo, State of
California. I am over the age of 18 years and not a party to the within action.

2. My place of employment is 1111 Bayhill Drive, Suite 300, San Bruno, CA 94066,

3. On the date set forth below, I caused to be served a true and correct copy of the document

described as:

DEFENDANT MARINA HEATING & AIR CONDITIONING’S ANSWER TO

PLAINTIFE’S COMPLAINT

4, I served the document on the persons below, as follows:

SEE LIST POSTED ON LEXISNEXIS

5. The document was served by the following means (specify):

a

(2)

BY PERSONAL SERVICE. I personally delivered the documents to the
persons at the addresses listed in item 4. (1) For a party represented by an
attorney, delivery was made to the attorney or at the attorney's office by
leaving the documents in an envelope or package clearly labeled to identify
the attorney being served with a receptionist or an individual in charge of the
office. (2) For a party, delivery was made to the party or by leaving the
documents at the party's residence with some person not less than 18 years of
age between the hours of eight in the morning and six in the evening.

BY UNITED STATES MAIL. I enclosed the documents ina sealed envelope
or package addressed to the persons at the addresses in item 4 and (specify
one):

deposited the sealed envelope with the United States Postal Services,
with the postage fully prepaid.

a placed the envelope for collection and mailing, following our ordinary
business practices. T am readily familiar with this business's practice
for collecting and processing correspondence for mailing. On the
same day that correspondence is placed for collection and mailing, it
is deposited in the ordinary course of business with the United States
Postal Service, in a sealed envelope with postage fully prepaid.

GAData\DOCS\secs\ag\POS (Answer)(Hagen)27

28

Tam resident or employed in the County where the mailing occurred. The envelope or
package was placed in the mail at San Bruno, California, County of San Mateo.

c. BY OVERNIGHT DELIVERY. [enclosed the documents in an envelope
or package provided by an overnight delivery carrier and addressed to the
persons at the addresses in item 4, I place the envelope or package for
collection and overnight delivery at an office or a regularly utilized drop box
of the overnight delivery carrier.

d. BY MESSENGER SERVICE. | served the documents by placing them in
an envelope or package addressed to the persons at the addresses listed in
item 4 and providing them to a professional messenger service for service.

e BY FAX TRANSMISSION. Based on an agreement of the parties to accept
service by fax transmission, I faxed the documents to the persons at the fax
numbers listed in item 4. No error was reported by the fax machine that I
used. A copy of the record of the fax transmission, which I printed out, is
attached.

f. fs] BY E-MAIL OR ELECTRONIC TRANSMISSION THROUGH
LEXISNEXIS FILE AND SERVE. Based on a court order or an agreement
of the parties to accept service by e-mail or electronic transmission, I caused
the documents to be sent to the persons at the email addresses listed in item
4, [did not receive, within a reasonable time after the transmission, any
electronic message or other indication that the transmission was unsuccessful.

& (State) | declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

q (Federal) I declare that I am employed in the offices of gmeimber of the bar of this court at

whose direction this service was made. | declare under penalty/of perjyzy that the foregoing is true
and correct.
Executed on September 14, 2010, at San Bruno, Califo

Proof of Service - Civil
[Code of Civ.Proc. §§ 1011, 1013, 1013a, 2015.5]

GAData\DOCS\secsleg\POS (Answer}(Hagen)