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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HOWARD ROME MARTIN & RIDLEY LLP SHAWN M. RIDLEY, ESQ. SBN 144311 HOWARD ROME MARTIN & RIDLEY LLP ELECTRONICALLY 1775 Woodside Road, Suite 200 FILED Redwood City, CA 94061-3436 Superior Court of California, Telephone: (650) 365-7715 County of San Francisco Attomeys for Defendant SEP 30 2010 1 ‘s Tr THERMON MANUFACTURING CO, ayer ofthe Co ur Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO LAURANCE HAGEN, Case No: CGC 10 275582 Plaintiff, DEFENDANT’S ANSWER TO COMPLAINT FOR PERSONAL INJURY ~ vs. ASBESTOS ASSOCIATED INSULATION OF CALIFORNIA, et al., Defendants. COMES NOW defendant THERMON MANUFACTURING CO., and answering on its own behalf plaintiff's unverified Complaint on file herein, and for no other defendant, admits, denies and alleges as follows: Whenever "plaintiff" is used in this answer, its reference embraces each plaintiff individually as well as collectively, plus the words, “and each of them." Pursuant to California Code of Civil Procedure section 431,30, this defendant files its general denial to said Complaint, and denies each and every, all and singular, generally and specifically, the allegations in said Complaint, and each cause of action thereof, and in this 1 Answer to Complaint - AsbestosHOWARD ROME MARTIN & RIDLEY LLP connection, this defendant denies that plaintiff has been injured or damaged in the sums set forth, or in any other sums, or otherwise, or at all, or in any way whatsoever, by reason of any alleged product of this defendant, or carelessness, negligence and/or any alleged act, conduct or omission on the part of this answering defendant. THIS DEFENDANT HEREWITH PLEADS AND SETS FORTH SEPARATELY AND DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY CAUSE OF ACTION OF PLAINTIFF'S COMPLAINT AS THOUGH PLED SEPARATELY: FIRST AFFIRMATIVE DEFENSE As to the Complaint and as to each and every cause of action thereon, this defendant alleges that neither the Complaint nor any purported cause of action alleged by the plaintiff therein states facts sufficient to constitute a cause of action against this defendant. SECOND AFFIRMATIVE DEFENSE Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of limitations stated in the California Code of Civil Procedure, including but not limited to sections 340, et seq., 583.210, 583.250, 583.410 and 583.420(a)(1). THIRD AFFIRMATIVE DEFENSE Plaintiff unreasonably delayed in commencing this action, without any good cause therefor, and thereby have prejudiced defendant as a direct and proximate result of such delay; accordingly, this action is barred by laches. FOURTH 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 2 Answer to Complaint - AsbestosHOWARD ROME MARTIN & RIDLEY LLP 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 or installation, repairing, marketing, warranting, rebranding, manufacturing for others, packaging and advertising a certain substance, the generic name of which is asbestos. FIFTH AFFIRMATIVE DEFENSE This answering defendant made no warranties of any kind, express or implied, to plaintiff herein, nor was plaintiff's exposure to and/or use of this answering defendant's products, or the injuries which allegedly resulted therefrom, foreseeable. Further, there was and is no privity or other relationship between plaintiff and this answering defendant upon which a claim of implied warranty may be based. SIXTH AFFIRMATIVE DEFENSE Plaintiff has waived whatever right he might otherwise have had to claim a breach of warranty in that plaintiff failed to notify this answering defendant of any alleged breach of express or implied warranty and/or of alleged effects in the products allegedly containing asbestos manufactured or marketed by this answering defendant within a reasonable time after plaintiff had discovered or should have discovered any defect or nonconformity, if any existed, thereby prejudicing this answering defendant from being able to fully investigate and defend the allegations made against it in the Complaint. SEVENTH 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 seq. 3 Answer to Complaint - AsbestosHOWARD ROME MARTIN & RIDLEY LLP EIGHTH AFFIRMATIVE DEFENSE It is alleged that the Complaint, and each cause of action thereof, is barred by the California Code of Civil Procedure, section 389, in that plaintiff has failed to join as a party to this action parties in whose absence complete relief cannot be accorded among those parties already subject to this action without defendant being exposed to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations. NINTH 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 the theory of warranty. TENTH 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 and contributed to, in whole or in part, the incidents, injuries, losses and damages complained of, if any, 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 person whose negligent acts or omissions are imputed to plaintiff. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff knew, or in the exercise of ordinary care should have known, of the risks and hazards involved in the undertaking in which he was engaged but nevertheless, and knowing these things, did freely and voluntarily and unreasonably consent to assume the risks and hazards incident to said operations, acts and conduct at the time and place mentioned in said complaint, and this undertaking proximately caused and contributed to any loss, injury or damages incurred by plaintiff, if any. Answer to Complaint - AsbestosHOWARD ROME MARTIN & RIDLEY LLP TWELFTH AFFIRMATIVE DEFENSE Any loss, injury or damage incurred by plaintiff, if any, was legally caused by the negligent or willful acts or omissions of parties, including plaintiff and his employer, whom defendant neither controlled nor had the right to control, and was not legally caused by any acts, omissions or other conduct of defendant. THIRTEENTH AFFIRMATIVE DEFENSE The products referred to in the Complaint were properly designed and manufactured, and fit for the purpose intended. Said products were improperly modified, maintained, misused, and/or abused by plaintiff or others. Said modification, misuse, abuse or improper maintenance was not reasonably foreseeable to defendant and proximately caused plaintiff's damages, if any there were, thus barring recovery herein. FOURTEENTH 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 caused and/or contributed to any loss, injuries or damages, 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. FIFTEENTH AFFIRMATIVE DEFENSE Defendant alleges that at all times relative to matters in the Complaint, the plaintiff and/or each/all of plaintiff's employers, other than this defendant, were Sophisticated Users of asbestos and asbestos-containing products and, as a result of same, this defendant had no duty to warn the plaintiff(s) of any alleged dangers of its products related to asbestos. This affirmative defense acts 5 Answer to Complaint - AsbestosHOWARD ROME MARTIN & RIDLEY LLP as a complete bar to all failure to warn allegations sounding in Strict Liability and/or Negligence, pursuant to the California Supreme Court case of Johnson vy. American Standard (2008) 45 Cal.4" 56, 74 Cal Rptr.3d 108. SIXTEENTH AFFIRMATIVE DEFENSE At the time and place of the happening of the occurrences and injuries alleged in the Complaint, and all times material herein, plaintiff was employed by various employers, the names of which are unknown to this defendant at this time, and working within the course and scope of his employment and/or employments; that said employer and/or employers and plaintiff were subject to the provisions of the Workman's Compensation Act of the State of California and plaintiff was entitled to receive Workers' Compensation benefits from his employers; that certain sums have been paid to or on behalf of plaintiff herein under the applicable provisions of the Labor Code of the State of California; that said employer and/or employers and each of them were negligent and careless in and about the matters referred to in the Complaint and that such negligence and carelessness proximately and concurrently contributed to and caused the happening of the incidents complained of and injuries and damages of plaintiff, if any there were; that by these premises and judgment rendered in favor of plaintiff herein if any, must be reduced by any benefits or payments made or to be made to him by his employer or employer's compensation carrier, SEVENTEENTH 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 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 6 Answer to Complaint - AsbestosHOWARD ROME MARTIN & RIDLEY LLP defendants herein shali not be liable for said parties' proportionate share of damages. EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiff is barred from recovery in that all products manufactured, formulated, sold, distributed or produced by defendant were in conformity with the existing state-of-the-art applicable to said products at the time of their manufacture, sale, formulation or distribution, and as a result, these products were not defective in any manner. NINETEENTH 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. TWENTIETH 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 and plaintiff is barred from any recovery of any injury or damages suffered thereby. TWENTY-FIRST 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. TWENTY-SECOND AFFIRMATIVE DEFENSE The claims made by plaintiff for punitive damages are unconstitutional under the U.S. 7 Answer to Complaint - AsbestosHOWARD ROME MARTIN & RIDLEY LLP Constitution and the California State Constitution. TWENTY-THIRD AFFIRMATIVE DEFENSE If plaintiff's claims were already litigated and/or resolved in any prior action, plaintiff's claims 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 has been previously compensated by alleged joint tortfeasors. TWENTY-FOURTH AFFIRMATIVE DEFENSE Defendant alleges that to the extent it was a government contractor with respect fo any products involved in this lawsuit, plaintiff is barred from any recovery based on the government contractor defense. TWENTY-FIFTH 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. TWENTY-SIXTH AFFIRMATIVE DEFENSE Defendant gives notice that it intends to rely upon any additional defenses as may become available or appear during the discovery proceedings in this case and reserves the right to amend its answer to assert any such defense. WHEREFORE, defendant prays: 1, That plaintiffs take nothing by their complaint; 2. That judgment be entered in favor of defendant; 3. For recovery of defendant's costs of suit; Answer to Complaint - Asbestos1 4. For appropriate credits and set-offs arising out of any payment of Workers’ 2 Compensation benefits as alleged above; and 5. For such other and further relief as the Court deems just and proper. NOTICE OF REQUEST FOR JURY TRIAL Pursuant to California Code of Civil Procedure §631, defendant hereby gives notice of its request for trial by jury. DATED: September 29, 2010 HOWARD ROME MARTIN & RIDLEY LLP By: /s/ Shawn M. Ridley SHAWN M. RIDLEY SBN 144311 HOWARD ROME MARTIN & RIDLEY LLP 1775 Woodside Road, Suite 200 Redwood City, CA 94061-3436 Telephone: (650) 365-7715 Attorneys for Defendant THERMON MANUFACTURING CO. HOWARD ROME MARTIN & RIDLEY LLP Answer to Complaint - AsbestosHOWARD ROME MARTIN & RIDLEY LLP Laurance Hagen y. Associated Insulation of California, et al/SFSC Case No. GCG10275582 I, the undersigned, declare: that I am, and was at the time of service of the documents herein referred to, over the age of 18 years, and not a party to the action; and I am employed in the County of San Mateo, State of California. My business address is 1775 Woodside Road, Suite 200, Redwood City, California 94061. On the date executed below, | electronically served the document(s) via LexisNexis File & Serve described as: = DEFENDANT’S ANSWER TO 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 pursuant to the laws of the State of California that the foregoing is true and correct and was executed on September 30, 2010, at Redwood City, California. /s/ Lorene Spinelli Lorene Spinelli 10 Answer to Complaint - Asbestos