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  • WILLIAM MINGRAM VS. RILEY POWER INC; ASBESTOS CORPORATION LIMITED ET AL ASBESTOS document preview
  • WILLIAM MINGRAM VS. RILEY POWER INC; ASBESTOS CORPORATION LIMITED ET AL ASBESTOS document preview
  • WILLIAM MINGRAM VS. RILEY POWER INC; ASBESTOS CORPORATION LIMITED ET AL ASBESTOS document preview
  • WILLIAM MINGRAM VS. RILEY POWER INC; ASBESTOS CORPORATION LIMITED ET AL ASBESTOS document preview
  • WILLIAM MINGRAM VS. RILEY POWER INC; ASBESTOS CORPORATION LIMITED ET AL ASBESTOS document preview
  • WILLIAM MINGRAM VS. RILEY POWER INC; ASBESTOS CORPORATION LIMITED ET AL ASBESTOS document preview
  • WILLIAM MINGRAM VS. RILEY POWER INC; ASBESTOS CORPORATION LIMITED ET AL ASBESTOS document preview
  • WILLIAM MINGRAM VS. RILEY POWER INC; ASBESTOS CORPORATION LIMITED ET AL ASBESTOS document preview
						
                                

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SOO ND HW BF WN 27 2: MORGAN, Lewis & Bocius LLP Avtonneys AT LAW SAN FRANCISCO MORGAN, LEWIS & BOCKIUS LLP JOSEPH DUFFY, State Bar No. 241854 joseph.duffy@morganlewis.com AMY J. TALARICO, State Bar No. 209112 amy.talarico@morganlewis.com MARISA R. CHAVES, State Bar No. 236533 marisa.chaves@morganlewis.com One Market, Spear Street Tower San Francisco, CA 94105-1126 Tel: 415.442.1000 Fax: 415.442.1001 Attorneys for Defendant JOHNSON CONTROLS, INC. ELECTRONICALLY FILED Superior Court of California, County of San Francisco 11/15/2019 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO WILLIAM MINGRAM, as Successor-in- Interest to and as Wrongful Death Heir of ROBERT MILGRAM, Deceased, Plaintiffs, vs. RILEY POWER INC.), et al., Defendants. Case No. CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH — ASBESTOS Case No. CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS DB1/ 109732755.1oOo em NOD HW BR WN 12 15 16 JOHNSON CONTROLS, INC. (“Defendant” or “Johnson Control”), answers Plaintiffs’ Complaint for Survival, Wrongful Death — Asbestos (“Complaint”) as follows: Under the provisions of Section 431.30(d), California Code of Civil Procedure, Defendant denies each and every allegation of Plaintiffs’ Complaint and the whole thereof, and denies that Plaintiffs have been damaged in any sum or amount whatsoever, or at all. Whenever “Plaintiff” or “Plaintiffs” is used in this Answer, that reference embraces each Plaintiff individually as well as collectively, plus the words “each of them.” FIRST AFFIRMATIVE DEFENSE Plaintiffs’ Complaint and each of its purported causes of action alleged therein fail to state facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the applicable statute of limitations, including but not limited to, Code of Civil Procedure sections 337.15, 340.2, 343 and 361, and California Commercial Code section 2725. THIRD AFFIRMATIVE DEFENSE Plaintiffs are barred from recovery herein by virtue of the application of the Doctrine of Laches (inexcusable delay and prejudice to Defendant). FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the equitable Doctrine of Unclean Hands. FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the equitable Doctrine of Waiver. SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ Complaint and each purported cause of action alleged therein are barred by the equitable Doctrine of Estoppel. SEVENTH AFFIRMATIVE DEFENSE Plaintiff voluntarily assumed the risk of any then-existing conditions alleged in the 1 Case No. CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC,’S ANSWER TO PLAINTIFFS* COMPLAINT DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH ~ ASBESTOSCoO ND WH BF WY NY NR YY NY N NR NY Ye wee ewe Be eB eB eB ew ke oN DA WH BF Bw YH &§ SOD eke IN DA WwW BR BW NH SF SD Complaint with full knowledge thereof, thereby proximately causing the injuries and damages, if any, complained of by Plaintiffs and Plaintiffs are thereby barred from recovery herein. EIGHTH AFFIRMATIVE DEFENSE Plaintiff acknowledged, ratified, consented to, and/or acquiesced in the alleged acts or omissions, if any, of this Defendant, thus barring Plaintiffs from any relief as prayed for herein. NINTH AFFIRMATIVE DEFENSE Plaintiff was advised, informed, and/or warned of any potential hazards and/or dangers, if there were any, associated with the normal or foreseeable use, handling, and storage of the products, substances, and/or equipment described in the Complaint. TENTH AFFIRMATIVE DEFENSE If Defendant provided the products alleged to have been defective, and without admitting that it did so or that any product was defective, Defendant provided such products to distributors or other intermediaries, including Plaintiff's employers, who were knowledgeable, informed and sophisticated concerning the use of the products and the alleged risks to the health of ultimate users, such as Plaintiff, from the use of the products. ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ causes of action are barred under Johnson v. American Standard, Inc., (2008) 43 Cal. 4th 56, because Plaintiff and/or his employers are sophisticated users. TWELFTH AFFIRMATIVE DEFENSE No conduct by or attributable to Defendant was the cause in fact or the proximate cause of the damages, if any, sustained by Plaintiffs, nor a substantial factor in bringing about said damages. THIRTEENTH AFFIRMATIVE DEFENSE Any exposure of Plaintiff to Defendant’s products was so minimal as to be insufficient to establish by a reasonable degree of probability that any such product caused any alleged injury, damage, or loss to Plaintiffs. FOURTEENTH AFFIRMATIVE DEFENSE This Defendant’s products were not a substantial factor in bringing about the injuries and 2 Case No, CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC.°S ANSWER TO PLAINTIFFS” COMPLAINT DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH — ASBESTOSdamages complained of by Plaintiffs, and, therefore, Defendant may not be held liable to Plaintiffs as alleged. FIFTEENTH AFFIRMATIVE DEFENSE That any and all events and happenings in connection with the allegations contained in Plaintiffs’ Complaint and the resulting injuries and damages, if any, referred to therein, were proximately caused and contributed to by the negligence of the Plaintiff, thereby barring or reducing Plaintiffs’ recovery herein. SIXTEENTH AFFIRMATIVE DEFENSE Any loss, injury or damage to Plaintiffs was proximately caused or contributed to by the negligent or other tortious acts, omissions, conduct, or products of persons, entities or parties other than Defendant, and that each, any, and all damages recoverable by Plaintiffs must be diminished in proportion to the amount of fault attributable to said other persons, entities or parties, and there must be apportioned among all such persons, entities, and parties the amount of damages attributed to them as an offset against damages, if any, awarded against Defendant. SEVENTEENTH AFFIRMATIVE DEFENSE Any loss, injury, or damage, if any, incurred by Plaintiffs was the result of superseding or intervening causes arising from the negligent or willful acts or omissions of other parties which Defendant neither controlled nor had the right to control, and that said loss, injury or damage was not proximately or legally caused by any act, omission, or other conduct of Defendant. EIGHTEENTH AFFIRMATIVE DEFENSE If Plaintiff sustained any injury or illness attributable to the use of any products and/or equipment manufactured, sold, or supplied by Defendant, which allegations are expressly denied, the injuries were solely caused by and attributable to the unreasonable and improper use which was made of said products and/or equipment, and each of them, by other persons, entities, or parties whom Defendant neither controlled nor had the right to control. NINETEENTH AFFIRMATIVE DEFENSE The product(s) involved was materially altered or changed by a party or parties other than and without the permission of Defendant, its employees, servants, or other agents, and such 3 Case No. CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH — ASBESTOSoO ND HA BRB WY = wow N = 14 alteration or change created the alleged defect, if any, which was the proximate or legal cause of Plaintiffs’ injuries or damages, if any. TWENTIETH AFFIRMATIVE DEFENSE The state of the medical, scientific, and industrial knowledge and practice was at all material times such that Defendant neither breached any alleged duty owed Plaintiffs, nor knew, nor could have known, that its products presented a foreseeable risk of harm to Plaintiffs in the normal and expected use of such products. TWENTY-FIRST AFFIRMATIVE DEFENSE Any products, substances, and/or equipment manufactured, formulated, sold or supplied by Defendant were made consistent with the state of the art and all health and safety statutes and regulations applicable to said products, substances, and/or equipment at the time of their manufacture, sale, formulation, or supply. TWENTY-SECOND AFFIRMATIVE DEFENSE The products, substances, and/or equipment referred to in the Complaint were properly designed and manufactured, and safe for the purpose intended. Said products, substances, and/or equipment were modified, altered, misused, abused, and/or improperly maintained by Plaintiff or others, and said conduct was not reasonably foreseeable to Defendant and proximately caused or contributed to the injuries, losses, and damages complained of, if any, thus barring Plaintiffs’ recovery herein. TWENTY-THIRD AFFIRMATIVE DEFENSE The asbestos-containing products, if any, for which Defendant had legal responsibility were installed, labeled, assembled, serviced, supplied, manufactured, designed, packaged, supplied, marketed, and/or sold in accordance with contract specifications imposed by its co- defendants, by the U.S. Government, by Plaintiff's employers, and/or by third parties yet to be identified. TWENTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ Complaint and each purported cause of action alleged therein are barred under the government contractor defense. 4 Case No. CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS” COMPLAINT DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH ~ ASBESTOS0 ON DH BR BW NY o TWENTY-FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ Complaint and each cause of action alleged therein, which are admittedly based upon a lack of identification of the manufacturer(s) and/or supplier(s) of the alleged injury- causing product(s), fail to state facts sufficient to constitute a cause of action in that Plaintiff have asserted a claim for relief which, if granted, would contravene Defendant’s constitutional rights to substantive and procedural due process of law as preserved for Defendant by the Fourteenth Amendment to the United States Constitution and by Article I section 7, of the Constitution of the State of California. TWENTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ causes of action are barred under O'Neil v. Crane Co., (2012) 53 Cal.4th 335 and Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, among other cases, because Plaintiffs have not pleaded and cannot show that Plaintiff was exposed to asbestos- containing products that were manufactured, sold or supplied by Defendant or that were original to any equipment alleged to be manufactured, sold or supplied by Defendant. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiff failed to mitigate his damages, if any, in that they failed to use reasonable diligence in caring for Plaintiff's injuries and reasonable means to prevent their aggravation or to accomplish their healing. TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs failed to give Defendant reasonably prompt notice of the breaches of warranty, if any, alleged in the Complaint. TWENTY-NINTH AFFIRMATIVE DEFENSE Plaintiffs were not in privity of contract with Defendant and said lack of privity bars Plaintiffs’ recovery herein upon any theory of warranty. THIRTIETH AFFIRMATIVE DEFENSE wv jaintiffs herein have failed to join indispensable parties (California Code of Civil Procedure section 389) such that the Complaint is defective, and Plaintiffs are thereby precluded from any recovery whatsoever as prayed for herein. 5 Case No. CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS” COMPLAINT DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH — ASBESTOSTHIRTY-FIRST AFFIRMATIVE DEFENSE To the extent the Complaint asserts Defendant’s alleged “alternative,” “market share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute a cause of action against Defendant. THIRTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs’ Complaint and each cause of action alleged therein fail to state facts sufficient to constitute a cause of action against Defendant in that Plaintiffs have failed to join a substantial market share of the producers of the product or products to which Plaintiff was allegedly exposed. THIRTY-THIRD AFFIRMATIVE DEFENSE Defendant did not and does not have a substantial percentage of the market for the asbestos-containing products that allegedly caused Plaintiff's injuries. Therefore, Defendant may not be held liable to Plaintiffs based on Defendant’s alleged percentage share of the applicable market. THIRTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs have no standing or right to sue for fraud and conspiracy, breach of warranty, deceit, or any cause of action under California Civil Code sections 1708-1710, and therefore each such cause of action in the Complaint, if any, fails to state facts sufficient to constitute a cause of action against this Defendant. THIRTY-FIFTH AFFIRMATIVE DEFENSE Fraud and conspiracy do not constitute a separate and distinct form of damages from general damages. Therefore, the prayer for fraud and conspiracy in addition to general damages does not sufficiently support or constitute a separate claim for damages against this Defendant, but is simply cumulative and included in general damages. THIRTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ alleged cause of action seeking punitive damages against Defendant, if any, does not state facts sufficient to constitute a cause of action against this Defendant. THIRTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the due process 6 Case No. CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC.*S ANSWER TO PLAINTIFFS” COMPLAINT DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH ~- ASBESTOSoC Oem RE DH RB WN clause of the Fourteenth Amendment to the United States Constitution. THIRTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the Eighth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment, prohibiting the imposition of excessive fines. THIRTY-NINTH AFFIRMATIVE DEFENSE Plaintiffs’ claim for punitive or exemplary damages, if any, is barred by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment. FORTIETH AFFIRMATIVE DEFENSE To the extent that these words purportedly apply to Defendant, which Defendant denies, the Complaint does not state sufficient facts constituting “fraud,” “oppression,” or “malice,” as these terms are used in California Civil Code section 3294. FORTY-FIRST AFFIRMATIVE DEFENSE Defendant alleges that California Civil Code Section 3294, ef seq. violates the California and/or the United States Constitutions because, among other things, it violates the due process clauses and the equal protection clauses thereof, respectively; it is void because it is vague and ambiguous; it constitutes an undue burden on interstate commerce; and it violates the Eighth Amendment to the United States Constitution, and that, therefore, Plaintiffs are barred from any recovery thereunder. FORTY-SECOND AFFIRMATIVE DEFENSE If Defendant is responsible to Plaintiffs, which responsibility is expressly denied, Defendant shall be liable to Plaintiffs only for the amount of non-economic damages allocated to each defendant in direct proportion to each defendant’s percentage of fault, if any. (California Civil Code sections 1431, ef seq.). FORTY-THIRD AFFIRMATIVE DEFENSE As between Plaintiffs and Defendant, the law applicable to this action is the law as it existed during the period Defendant engaged, if at all, in the manufacture, sale, or supply of 7 Case No. CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH - ASBESTOSCOD wm IO asbestos-containing products to which the Plaintiffs claim exposure. It is unlawful, inequitable, and in violation of Defendant’s contractual, statutory, and constitutional rights to apply principles of law other than or in a manner different from those which existed for the period in which Defendant manufactured, sold, or supplied products to which Plaintiffs claim exposure. FORTY-FOURTH AFFIRMATIVE DEFENSE Defendant denies any and all liability to the extent that Plaintiffs assert Defendant’s alleged liability as a successor-in-interest, 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, or installation, repairing, marketing, warranting, re-branding, manufacturing for others, packaging and advertising a certain substance, the generic name of which is asbestos. FORTY-FIFTH AFFIRMATIVE DEFENSE The court lacks subject matter jurisdiction over the matters alleged in the Complaint because the Complaint and each purported cause of action alleged therein against Defendant are barred by the provisions of California Labor Code sections 3600, ef seq. FORTY-SIXTH AFFIRMATIVE DEFENSE At the time and place of the happening of the occurrences and injuries alleged in the Complaint, and all times material thereto, Plaintiff was employed by various employers, the names of which are unknown to this Defendant, and working within the course and scope of their employment. Said employers and Plaintiff were subject to the provisions of the Workers’ Compensation Act of the State of California and Plaintiff was entitled to receive Workers’ Compensation benefits from his employers. 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. Said employers and each of them were negligent, careless, and at fault in and about the matters referred to in the Complaint and such negligence, carelessness, and fault proximately and 8 Case No. CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH - ASBESTOSSCS 0D em NN DH RB WN nOoF concurrently contributed to and caused the happening of the incidents complained of by Plaintiffs, if there were any. By these premises, any judgment rendered in favor of Plaintiffs herein must be reduced by any benefits or payments made or to be made to Plaintiff by Plaintiffs employers or their compensation carrier(s) under Witt vs. Jackson (1961) 57 Cal.2d 57 [17 Cal.Rptr. 369, 360 P.2d 641]. FORTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs have 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 Plaintiffs are 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 Plaintiffs have received or may in the future receive. Each denial of Plaintiffs’ allegations, together with each of Defendant’s allegations, defenses and factual contentions, all as set forth herein, are hereby specifically identified as denials, allegations, defenses and factual contentions subject to reasonable opportunity for further investigation and discovery, as set forth in Code of Civil Procedure section 128.7(b)(3)(4). WHEREFORE, this Defendant prays that Plaintiffs’ Complaint be dismissed and that Plaintiffs take nothing by virtue of this Complaint on file herein, for its costs of suit herein incurred, for appropriate credits and setoffs arising out of any payment of Workers’ Compensation benefits alleged herein, and for any other and further relief as the Court may deem proper. 1 /// 1/1 //1/ /// 1/1 9 Case No. CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS” COMPLAINT DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH — ASBESTOSoe YN DH BR WN Dated: November 15, 2019 Respectfully submitted, MORGAN, LEWJS8S’& BOCKIUS LLP Go o By arisa R. Chaves One Market, Spear ‘ower San Francisco, CA 94105 (415) 442.1000 SBN 236533 Attorneys for Defendant JOHNSON CONTROLS, INC. 10 Case No, CGC-19-276801 DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT DB1/ 109732755.1 FOR SURVIVAL, WRONGFUL DEATH — ASBESTOS27 Morcan, LEwis & Bock1us LLP ATTORNEYS AT La SAN FRANcIsco PROOF OF SERVICE William Mingram, et al. vs. Riley Power Inc., et al. San Francisco County Superior Court Case No. CGC-19-276801 Iam a resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is One Market, Spear Street Tower, San Francisco, CA 94105-1126. On November 15, 2019, I served the within documents: DEFENDANT JOHNSON CONTROLS, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL, WRONGFUL DEATH — ASBESTOS BY ELECTRONIC TRANSMISSION: Pursuant to San Francisco Court General Order No. 158, CCP 1010.6 and CRC 2.251, or pursuant to the Stipulation and Order Authorizing Electronic Service, or by an agreement of the parties, at approximately 4:30p.m. I electronically eserved through File & ServeXpress and caused the document(s) to be sent to the person(s) at the email addresses designated on the Transaction Receipt located on the File & ServeXpress website. To the best of my knowledge, at the time of the transmission, the transmission was reported as complete and without error. & Executed on November 15, 2019, at San Francisco, California. I declare under penalty of perjury, under the laws of the State of California and the United States of America, that the foregoing is true and correct. Mulehelte. Paula R. Lesure Morgan, Lewis & Bockius One Market, Spear Street Tower San Francisco, CA 94105 415-442-1000 PROOF OF SERVICE DB1/ 109732755.1