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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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                                ATTORNEYS AT LAW

Selman Breitman Lup

28

205180.1 454,00000

MARK A. LOVE (SBN 162028)
JANICE W. MAN (SBN 209956)

SELMAN BREITMAN LLP ELECTRONICALLY

33 New Montgomery, Sixth Floor FILED

San Francisco, CA 94105 . vr

Telephone: (415) 979-0400 “Ceanty of San Francisco
imile: (415) 979-

Facsimile: (415) 979-2099 SEP 27 2010

mlove@selmanbreitman.com

jman@selmanbreitman.com Clerk of the Court

BY: VANESSA WU

Attorneys for Defendant Deputy Clerk

MADLEM MECHANICAL, INC.
SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

LAURANCE HAGEN, CASE NO. CGC-10-275582

DEFENDANT MADLEM
MECHANICAL, INC.'S ANSWER TO
PLAINTIFF'S COMPLAINT FOR
PERSONAL INJURY ~ ASBESTOS

Plaintiff,
v.

ASSOCIATED INSULATION OF
CALIFORNIA, et al.,

Defendants.

Defendant MADLEM MECHANICAL, INC. (herein "Defendant") answers plaintiff's
unverified complaint on its own behalf and on behalf of no other defendant or entity as
follows:

Pursuant to California Code of Civil Procedure section 43 1.30(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 Complaint fails to state facts sufficient to constitute a cause of

action against Defendant.

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DEFENDANT MADLEM MECHANICAL, INC.’S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURY - ASBESTOSSelman Breitman Lip
ATTORNEYS AT LAW

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205180.) 454,00000

THIRD AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged thercin 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 penalty and should, therefore, be remitted on the ground that the award violates the
United States Constitution.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff's 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 338(1), 338(4), 339(1). 340(1), 340(3), 340.2, 343, 353, 583.110, 583.210,
583.310 and 583.410 and California Commercial Code section 2725.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff unreasonably delayed in bringing this action, without good cause therefor,
and thereby has 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
damages alleged in the Complaint. In the event plaintiff is entitled to any damages, the

amount of these damages should be reduced by the comparative fault of plaintiff and any

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DEFENDANT MADLEM MECHANICAL, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURY - ASBESTOS.2
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205180.1 454,00000

person whose negligent acts or omissions are imputed to plaintiff.
TENTH AFFIRMATIVE DEFENSE
Plaintiff knowingly, voluntarily and unreasonably undertook 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 misuscd, abused or altered by
plaintiff or by others; the misusc, 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 under its war powers, as set forth in the United States Constitution, 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 his 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.
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

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DEFENDANT MADLEM MECHANICAL, JNC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURY - ASBESTOSpn

ATTORNEYS AT LAW

Selman Breitman Lip

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205180.1 454.00000

barred by the "exclusive remedy" provisions of California Labor Code section 3601, et
seq.
SIXTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, plaintiff
was employed and was entitled to receive Workers' Compensation benefits from his
employers; that all of plaintiff's employers, other than Defendant, 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 the happening of the accident and
to the loss or damage complained of by plaintiff, if any there were; and that by reason
thercof 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

Defendant alleges that 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.

EIGHTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injurics alleged in the Complaint, parties
other than this Defendant were negligent in and about the matters referred to in said
Complaint, and that such negligence on the part of said partics 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.

NINETEENTH AFFIRMATIVE DEFENSE
Defendant alleges that at all times relative to matters alleged in the Complaint, all of

plaintiffs employers, other than Defendant, were sophisticated users of asbestos-

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DEFENDANT MADLEM MECHANICAL, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURY - ASBESTOSBo wo oh

Selman Breitman LLP
ATTORNEYS AT LAW

205180.) 454,00000

containing products and said employers’ negligence in providing the product to its
employees in a negligent, careless and reckless manner was a superseding intervening
cause of plaintiff's injurics, if any there were.
TWENTIETH AFFIRMATIVE DEFENSE

Tf plaintiff has received, or in the future may reecive, 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
afl such benefits received by plaintiff.

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 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 reccived or may in the future receive.

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, Defendant demands repayment
of any such Workers' Compensation benefits in the event that plaintiff recovers tort
damages as a result of the industrial injury allegedly involved here. Although Defendant
denies the validity of plaintiffs 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 cqual cach other, pursuant to California Code of Civil Procedure section
431.70.

TWENTY-THIRD AFFIRMATIVE DEFENSE
3

DEFENDANT MADLEM MECHANICAL, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURY - ASBESTOSSelman Breitman LLP
ATTORNEYS AT LAW

205180.) 454,00000

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-FOURTH 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-FIFTH AFFIRMATIVE DEFENSE

The 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 plaintiff based on this Defendant's alleged percentage
share of the applicable market.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Defendant denies any and all 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, 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 installation, repairing, marketing,
warranting, rebranding, manufacturing for others, packaging and advertising a certain
substance, the generic name of which is asbestos.

TWENTY-SEVENTI AFFIRMATIVE DEFENSE

Defendant alleges that if plaintiff's claims were already litigated and resolved in any
ptior action, 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 seeking
new recovery for injuries for which the plaintiff was previously compensated by alleged
joint tortfeasors.

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DEFENDANT MADLEM MECHANICAL, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURY - ASBESTOSmW DH

Selman Breitman Lip
ATTORNEYS AT LAW

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205180.1 454,00000

WHEREFORE, Defendant prays:

(1) That plaintiff take nothing by this Complaint,

(2) That Judgment be entered in favor of Defendant;

(3) _ For recovery of Defendant's cost of suit;

(4) _ For appropriate credits and setoffs arising out of any payment of Workers’

Compensation benefits as alleged above; and

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

DATED: September 27, 2010 SELMAN /

By:

Attogheys for Defendant
MADLEM MECHANICAL, INC.

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DEFENDANT MADLEM MECHANICAL, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL

INJURY - ASBESTOSSelman Breitman LLP
ATTORNEYS AT LAW

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205180.) 454.00900

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Laurance Hagen y, Associated Insulation of California, et al.
San Francisco Superior Court Case No. CGC-10-275582
Defendant! MADLEM MECHANICAL, INC.
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

lam employed in the County of San Francisco, State of California. 1 am over the
age of 18 years and am not a party to the within action; my business address is 33 New
Montgomery, Sixth Floor, San Francisco, CA 94105.

On the date shown below, | electronically served the following document(s) via
LexisNexis File & Serve described as DEFENDANT MADLEM MECHANICAL,
INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY -
ASBESTOS on the recipients designated on the Transaction Receipt located on the
LexisNexis File & Serve website.

1 declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed on September 27, 2010, at San Francisco, California.

Cees its
Cynthia Elrod

OBJECTION TO HEARING BEFORE A DISCOVERY COMMISSIONER AS A TEMPORARY JUDGE