On June 02, 2010 a Answer was filed involving a dispute between Hagen, Laurance, and 3M Company, 4520 Corp., Inc.,, A & A Mechanical Contractors Inc., A & A Sheet Metal, Aberthaw Construction Company, Acco Engineered Systems, Inc., A.E. Knowles Corporation, Aire Sheet Metal Inc., Air Systems Mechanical Contractor, A.J. Peters & Son, Aladdin Heating Corporation, Albay Construction Company, Allied Painters, Inc., Allied Sprinkler Company, Inc., Anderson, Rowe & Buckley, Inc., Applied Support Systems, Inc., A.R.B. Mechanical, Armaral Plumbing, Associated Insulation Of California, Atlas Heating And Ventilating Company, Ltd., Bailey Plumbing, Heating & Sheet Metal, Barnes Construction Co., Bay Cities Crane And Rigging, Inc., Bayer Cropscience Inc., Bayer Cropscience, Inc.,, B H P Minerals International, Inc., Bigge Crane And Rigging Co., Bragg Investment Company, Inc., B.T. Mancini Co., Inc., Buttner Corp., Cahill Contractors, Inc., Carrier Corporation, Cbs Corporation, A Delaware Corporation, Fka, Cbs Corporation (F K A Viacom Inc., F K A, C.C. Moore & Co. Engineers, Certainteed Corporation, Chevron U.S.A. Inc., Chicago Bridge & Iron Company, Chicago Bridge & Iron Company,, Cleaver-Brooks, Inc., Coastal West Ventures, Inc., Commair Mechanical Services, Conocophillips Company, Consolidated Insulation, Inc., Cooper Brothers, Inc., Corey Contractors, Cosco Fire Protection, Inc., Coscol Petroleum Corporation, Coscol Petroleum Corporation Erroneously Named And, Crane Co., Crowley Plumbing, Crown Cork & Seal Company, Inc., C & R Plastering, Inc., Cupertino Electric, Inc., Dana Companies, Llc, Devcon Construction, Inc., Dillingham Construction, N.A., Inc., Does 1-8500, Domco Products Texas Inc. Erroneously Sued, Domco Products Texas, L.P., Dome Construction Corporation, Douglass Insulation Company, Inc., D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Early Engineering Corporation, Incorporated, East Bay Sheet Metal Works, East Bay Sheet Metal Works, A Dissolved Corp., E.C. Braun Company, Inc., Emerick Sheet Metal Co., Emil J. Weber Electric Co., E. Mitchell, Inc., Enterprise Plumbing, Inc., Erwin Mechanical Inc., Ex- Fm, Inc. (Fka Fischbach And Moore Electric,, Exxon Mobil Corporation, Faye Plumbing, Fdcc California, Inc., Finzel Plumbing Company, Fischbach And Moore, Incorporated, Nka Ex-Fm, Inc., Fluor Corporation, Foley-Pmi, Inc., Foster Wheeler Llc, Foster Wheeler Llc (Fka Foster Wheeler, F.P. Lathrop Construction Company, F.P. Lathrop Construction Company,, Frank Bonetti Plumbing, Inc., Frederick Meiswinkel, Inc., F.W. Spencer & Son, Inc., Garlock Sealing Technologies, Llc, General Cable Corporation, General Electric Company, George F. Schuler, Inc., George M Robinson & Co., George Townsend & Associates, George Wilson Company, Inc., Georgia-Pacific Corporation, Georgia-Pacific Llc, Giampolini & Co., Golden Gate Drywall, Inc., Granite Rock Company, Grinnell Corporation, Grinnell Llc,, Haas And Haynie Corporation, Haas & Haynie Corporation, Hamilton Materials, Inc., Hansen Plumbing And Heating, Hanson Permanente Cement, Inc. Formerly Known As, Harry Lee Plumbing & Heating, H.B. Fuller Company, H & C Investment Associates, Inc., Hensel Phelps Construction Co, Hensel Phelps Construction Co., Herrick Iron Works, Honeywell International, Inc., Honeywell International Inc., Fka Alliedsignal,, Hopeman Brothers, Inc., H.T.R. Enterprises, Inc., Ingersoll-Rand Company, Jacobs Constructors, Inc., James A. Nelson Co., Inc., James Nelson, Johnson Controls, Inc., J.R. Simplot Company, J.T. Thorpe, Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, Inc., Kaiser Gypsum Company, Inc., Kelly-Moore Paint Company, Inc., Kentile Floors, Inc., Kent M. Lim & Company, Inc., Kinetic Systems, Inc., Kramer Acoustics, Laub Sheet Metal Works, Leonard Construction Company, Lewis Air & Refrigeration, L.J. Kruse Company, Macarthur Company, Madlem Mechanical, Inc., Marcal Associates, Ltd., Marconi Plastering Company, Inc., Marina Heating & Air Conditioning, Marina Plumbing Company, Mauch Sheet Metal, Mayta & Jensen, Mcguire & Hester Corporation, Mckeon Construction, Mcmillan Brothers Electric, Inc., Metropolitan Life Insurance Company, Monterey Mechanical Company, Norcal Scaffolding, N. P. I. Corporation, N.V. Heathorn, Inc., Oakfabco, Inc., Ocean Shore Iron Works, O.C. Mcdonald Co., Inc., O H I Company, Inc., Oscar E. Erickson, Inc., Owens-Illinois, Inc., Owens Mckeon Construction, Pacific Coast Builders, Pacific Gas & Electric Company, Pacific Mechanical Corporation, Parker-Hannifin Corporation, Parsons Infrastructure & Technology Group Inc., Peerless Stucco Co., Perini Corporation, Perini Land And Development Company, Peter Kiewit Sons, Inc., Peter Lim Construction, Pierce Enterprises, Pierce Lathing Company Dba Pierce Enterprises, Power Refrigeration Company, Powers Process Controls, Quality Air Conditioning, Inc., Quintec Industries, Inc., Raphael Company, Raymond Interior Systems-North, Ray Oil Burner Co., A Dissolved Corporation,, Ray Oil Burner Company, Inc., Republic Supply Company, Rmc Pacific Materials, Inc., Robertshaw Controls Company, Rodoni Becker, Rosendahl Corporation, Rountree Plumbing & Heating Inc., Rudolph And Sletten, Inc., Santa Fe Braun, Inc. As Successor-In-Interest To, Schneider Electric Usa, Inc. (Fka Square D, Scott Co. Of California, Scott Norman Mechanical Company, Scott Technologies, Inc., Sequoia Ventures Inc., S F L, Inc., Shell Oil Company, Sierra Pacific Industries, S.J. Amoroso Construction Co., Inc., Stanford Plumbing, Stolte Inc., Sugden Engineering Co., Swinerton Builders, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The Jack Dymond Company, The Linford Company, Therma Corporation, Therma Mechanical, Thermon Manufacturing Co., Thomas Air & Refrigeration Inc., Thomas Dee Engineering Company, Timec Company, Inc., Tosco Corporation, Tosco Corporation Erroneously Sued And Served As, Trane U.S., Inc., Erroneously Sued As Trane U.S.,, Trane Us, Inc. Fka American Standard, Inc., Turner Construction Company, Tutor-Saliba Corporation, Union Oil Company Of California, University Mechanical And Engineering Contractors,, Valley Sheet Metal, Van-Mulder Sheet Metal, Inc., Vogel & Associates, Walnut Creek Sheet Metal, Furnace & Air, Washington Group International, Inc., Western Allied Corporation, Western Asbestos Company, Western Insulation, Inc., Western Macarthur Company, Western Plumbing & Heating Co., Inc., W.G. Thompson, Inc., Wheatley-Jacobsen, Inc., Williams & Burrows, Inc., Wilson Construction Company, W.L. Hickey Sons, Inc., Wright Schuchart Harbor, Wright Schuchart Harbor Company, Yamas Controls Group Inc., Zurn Industries, Llc, for ASBESTOS in the District Court of San Francisco County.
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DAVID A. GIFFORD, SBN 85909 GARY T. DRUMMOND, SBN 47709 ROBERT G. ENGEL, SBN 158115 ELECTRONICALLY STEVENS, DRUMMOND & GIFFORD s F I L E D superior Court of California, WALNUT CREEK, CALIFORNIA 94396 Cini ofan ors : ; SEP 22 2010 TEL: (925) 944-5550 Clerk of the Court FAX: (925) 256-9669 BY: JUDITH NUNEZ Deputy Clerk Attorneys for Defendant GEORGE F. SCHULER, INC., (a dissolved corporation) SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY & COUNTY OF SAN FRANCISCO LAURANCE HAGEN, CASE NO. CGC-10-275582 Plaintiff, ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS vs. ASSOCIATED INSULATION OF CALIFORNIA, Defendants / Defendant GEORGE F. SCHULER, INC. (“SCHULER”), a dissolved corporation, responds to Plaintiff's Complaint for Personal Injury (the "Complaint”) as follows: Pursuant to California Code of Civil Procedure Section 431.30(d), SCHULER denies generally and specifically each and every allegation of the Complaint directed against it. FIRST AFFIRMATIVE DEFENSE 1, Plaintiff's Complaint fails to state a claim or cause of action against this Defendant upon which relief may be granted. ANSWER TO COMPLAINT GEORGE F. SCHULER, INC. {a dissolved corporation)So 6 we ND hw Bw NH = B Bw Oo 2 WI A tH 20 2 2 2B 24 25 26 2 28 SECOND AFFIRMATIVE DEFENSE 2. Plaintiff knowingly, voluntarily and unreasonably assumed the risks and consequences of his employment and was fully informed and was aware of any and all circumstances surrounding the alleged incidents resulting in the alleged injuries and damages claimed in the Complaint. THIRD AFFIRMATIVE DEFENSE 3. The failure of Plaintiff's employers and/or his unions to warn and/or safeguard the Plaintiff from possible health hazards associated with asbestos was an intervening and/or superseding cause of Plaintiff's alleged injuries. Alternatively, any recovery which Plaintiff may be entitled to obtain against Defendant must be reduced by that amount of damages attributable to the acts and/or omissions of Plaintiff's employers and/or his unions and/or others as set forth herein. FOURTH AFFIRMATIVE DEFENSE 4. Any damages sustained by Plaintiff was proximately caused by the intervening acts or omissions of third persons over whom Defendant had no direction or control and not by any act or omission of Defendant. Alternatively, any amount which Plaintiff might be entitled to recover against Defendant must be reduced by the amount of damages attributable to the intervening acts and/or omissions of such third persons. FIFTH AFFIRMATIVE DEFENSE 5. The alleged incidents, injuries and damages of which Plaintiff complains was caused by an unauthorized unintended or improper use of the products complained of and as a result of failure to exercise reasonable and ordinary care, caution or vigilance for which Defendant is not legally liable or responsible. ANSWER TO COMPLAINT GEORGE F, SCHULER, INC. (a dissolved corporation) 2oC mW NI HR HA BR BR RNR NR NM RN NR NN Se Oe Re me me Se Be eB eB e232 AR hw BF Ye Be | Se eH AH FF BH EH S SIXTH AFFIRMATIVE DEFENSE 6. By their actions, including but not limited to unreasonable delay in bringing this action and failure to provide Defendant with notice of any alleged breach of any purported warranties, Plaintiff has irrevocably waived any and all rights which he might otherwise have had to assert any claims against Defendant. SEVENTH AFFIRMATIVE DEFENSE 7. Claims of Plaintiff are barred insofar as they may relate to a claim of breach of warranty based on the failure to provide proper and timely notice of such claims. EIGHTH AFFIRMATIVE DEFENSE 8. Defendant neither knew nor should have known that any asbestos products constituted. an unreasonable and foreseeable risk to the physical well-being of Plaintiff because the prevailing state of medical, scientific and industrial knowledge at the time in question was inadequate to require this conclusion. NINTH AFFIRMATIVE DEFENSE 9. Any exposure of Plaintiff to asbestos-containing products used by this Defendant, if any, was so minimal as to be insufficient to establish to a reasonable degree of probability that any such product caused any alleged injury, damage or loss to Plaintiff. TENTH AFFIRMATIVE DEFENSE 10. Plaintiff's complaint, and each and every purported cause of action alleged therein, is barred by the applicable Statute of Limitations, including, but not limited to, Code of Civil Procedure §§ 337.1, 337.15, 338, 339, 340, 340.2, 343, 361, and 474, and California Commercial Code § 2725, and including any applicable statute of limitation and/or statute of repose of the state of Plaintiff's residence if not California. ANSWER TO COMPLAINT GEORGE F. SCHULER, INC. (a dissolved corporation) 3oO Co ew NDR HH RB Ye we o A A BBN — x 18 19 20 21 22 23 24 25 26 27 28 ELEVENTH AFFIRMATIVE DEFENSE 11. Any injury, damage or loss sustained by Plaintiff was proximately caused and/or contributed to by the negligence and/or carelessness of Plaintiff and not by any act or omission of Defendant. Alternatively, any amount which Plaintiff might be entitled to recover against Defendant must be precluded or reduced by an amount of damages attributable to Plaintiffs own negligence. TWELFTH AFFIRMATIVE DEFENSE 12. By their actions, including but not limited to unreasonable delay in bringing this action and failure to provide Defendant with any notice of any alleged breach of any purported warranties, Plaintiff is estopped from obtaining any recovery against Defendant. THIRTEENTH AFFIRMATIVE DEFENSE 13. Any foreseeable and unreasonable tisk to the physical well-being of the Plaintiff was arisk which Defendant did not create and could not reduce or eliminate. FOURTEENTH AFFIRMATIVE DEFENSE 14, At all relevant times, the knowledge of the Plaintiff's employers and/or unions was superior to that of Defendant with respect to possible health hazards associated with Plaintiff's employment and, therefore, if there was any duty to warn Plaintiff or provide protection to Plaintiff, it was the duty of said employers and/or unions, not of Defendant. FIFTEENTH AFFIRMATIVE DEFENSE 15, Plaintiff and/or his employers were reasonably and adequately warned of any alleged risk and had actual constructive or imputed knowledge thereof. Accordingly, Plaintiffis precluded from obtaining any recovery against Defendant. SIXTEENTH AFFIRMATIVE DEFENSE 16. This Court lacks jurisdiction over the subject matter of Plaintiff's claim or claims. ANSWER TO COMPLAINT GEORGE F. SCHULER, INC. (a dissolved corporation) 4ce TN A A BR BY NY BPN 8B NR ON NON Rm a a a oc Rh FF YW NHN = SG oO we YW A HM BRB YW NHN S&S GS SEVENTEENTH AFFIRMATIVE DEFENSE 17. The Complaint fails to allege with specificity any acts, actions or conduct which constitutes fraud or conspiracy and, therefore, all claims and/or damages based on allegations of fraud or conspiracy must be stricken. EIGHTEENTH AFFIRMATIVE DEFENSE 18. Pursuantto Civil Code §1431.2, this Defendant’s liability for non-economic damages, if any, shall be limited to the percentage of fault attributed to this Defendant for Plaintiff's alleged injuries, NINETEENTH AFFIRMATIVE DEFENSE 19. Award of punitive damages sought by Plaintiff would violate Defendant's due process rights under the 14th Amendment of the United States Constitution in that those damages sought are grossly excessive and so severe and oppressive as to be unreasonable and wholly disproportional to Defendant's alleged offenses. TWENTIETH AFFIRMATIVE DEFENSE 20. Plaintiff's employers, Plaintiffs unions, and/or those who supplied the product for Plaintiff's use or for use in the vicinity of Plaintiff, were, or were presumed to be, sophisticated users of the product, with knowledge of the properties of the product and of methods of safe handling. TWENTY-FIRST AFFIRMATIVE DEFENSE 21. Any injury, damage or loss sustained by Plaintiff was within the course and scope of Plaintiff's employment, and was proximately caused by the negligence of Plaintiff's employers and co-employers, other than this Defendant. Said claims are therefore barred by California Labor Code § 3601, et seq. and this court lacks jurisdiction over the subject matters alleged in the Complaint. ANSWER TO COMPLAINT GEORGE F. SCHULER, INC. (a dissolved corporation) 5oO CD Oe BR RD A RB BY NY DR A FF WY 17 oe oO 20 21 22 23 24 25 26 27 28 TWENTY-SECOND AFFIRMATIVE DEFENSE 22. Defendant alleges that all of its conduct and activities alleged in the Complaint conformed to all codes, statutes, government regulations, industry standards and the existing state-of-the-art, at the time alleged in the Complaint. TWENTY-THIRD AFFIRMATIVE DEFENSE 23. At the time of the injuries alleged in the Complaint, Plaintiff'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 Plaintiff, if any there were; and that Defendant is not liable for said employers' proportionate share of non-economic damages. TWENTY-FOURTH AFFIRMATIVE DEFENSE 24, 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 occupational 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 has received or may in the future receive. TWENTY-FIFTH AFFIRMATIVE DEFENSE 25. 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 occupational injury referred to in the Complaint, Defendant demands repayment of any such Workers' Compensation benefits in the event that Plaintiff recovers tort damages as a result of the occupational injury allegedly involved here. ANSWER TO COMPLAINT GEORGE F. SCHULER, INC. (a dissolved corporation) 6= oc Oo em NY ND tH FF HN TWENTY-SIXTH AFFIRMATIVE DEFENSE 26. This action is barred by the applicable state and/or federal industrial insurance and/or Workers' Compensation laws, including, but not limited to, California Labor Code §§ 3601 and 3602, and 33 U.S.C. § 905. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27, Atall times relevant to the matters alleged in Plaintiff's complaint, Plaintiff's employers were sophisticated users of asbestos-containing products and said employers’ negligence in providing said products to its employees was a superseding and/or intervening cause of Plaintiff's injuries, if any there were. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 28. Defendant alleges that it warned Plaintiff's employers of all dangers on the premises known to Defendant. TWENTY-NINTH AFFIRMATIVE DEFENSE 29. Atall 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, THIRTIETH AFFIRMATIVE DEFENSE 30. 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. THIRTY FIRST AFFIRMATIVE DEFENSE 31. Defendant had no knowledge that any dangerous condition existed on any of the premises Plaintiff alleges were owned and/or controlled by Defendant, or where Defendant ANSWER TO COMPLAINT GEORGE F. 8CHULER, INC. (a dissolved corporation) 7allegedly was present, and upon which Plaintiff allegedly was injured. Therefore, Defendant did not have a duty to warn Plaintiff of any such alleged dangers, WHEREFORE, GEORGE F. SCHULER, INC, prays: 1 That Plaintiff takes nothing by his Complaint; 2. That defendant GEORGE F. SCHULER, INC., (a dissolved corporation), be awarded judgment in its favor against Plaintiff, 3, That defendant GEORGE F. SCHULER, INC., (a dissolved corporation), recover its costs of suit herein; 4. That a separate judgment be rendered limiting defendant GEORGE F, SCHULER, INC., (a dissolved corporation)'s, liability for non-economic damages, if any, for Plaintiff's alleged injuries to the percentage of fault attributed to defendant GEORGE F. SCHULER, INC., (a dissolved corporation), pursuant to Civil Code §1431.2; and 3. For such further relief as the Court deems appropriate. DATED: September 22, 2010 STEVENS, DRUMMOND & GIFFORD ROBERT G. ENGEL Attorneys for Defendant GEORGE F, SCHULER, INC., (a dissolved corporation) ANSWER TO COMPLAINT. GEORGE F. SCHULER, INC. (a dissolved corporation) 8_ oO OC ee I DH HR WY 13 14 PROOF OF SERVICE lam employed in the County of Conira Costa, State of California. J am over the age of 18 years, and not a party to the within action. My business address is: 1910 Olympic Boulevard, Suite 250, Walnut Creek, California 94596. On September 22. 2010, I electronically served the attached document[s] via LexisNexis File and Serve described as: ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS on he 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. Executed on 9/22/10 in Walnut reek, California. f Proof of Service 9