Preview
1
Edward R. Hugo [Bar No. 124839]
2 James C. Parker [Bar No. 106149]
Bina Ghanaat [Bar No. 264826]
HUGO PARKER, LLP ELECTRONICALLY
3
240 Stockton Street, 8th Floor F I L E D
4 San Francisco, CA 94108 Superior Court of California,
County of San Francisco
Telephone: (415) 808-0300
5 Facsimile: (415) 808-0333 11/09/2020
Email: service@HUGOPARKER.com Clerk of the Court
BY: JUDITH NUNEZ
6 Deputy Clerk
Attorneys for Intervenor
7 AMERICAN STATES INSURANCE COMPANY
(A SAFECO COMPANY), as insurer of Aladdin
8 Heating Corporation, a suspended California
corporation
9
10
SUPERIOR COURT - STATE OF CALIFORNIA
11
COUNTY OF SAN FRANCISCO – UNLIMITED JURISDICTION
12
13 VALERI NISKANEN, as Successor-in- (ASBESTOS)
Interest to and as Wrongful Death Heir of Case No. CGC-19-276813
14 BILLY JOE McCLARY, Deceased; and
VICTORIA BLAKE, TAMLYN INTERVENOR AMERICAN STATES
15 ORTEGON, SUSAN FRENCH and INSURANCE COMPANY (A SAFECO
STEVEN McCLARY, as Wrongful Death COMPANY)’s ANSWER IN INTERVENTION
16 Heirs of BILLY JOE McCLARY, Deceased, TO SECOND AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL DEATH -
17 Plaintiffs, ASBESTOS
18 vs. (Code Civ. Proc. § 387)
19 KELLY-MOORE PAINT COMPANY, Comp. Filed: December 11, 2019
INC.; et al., 1st Amended Comp. Filed: August 7, 2020
20 2nd Amended Comp. Filed: October 22, 2020
Defendants.
21
22 Intervenor AMERICAN STATES INSURANCE COMPANY (a Safeco Company)
23 (“Intervenor”), solely in its capacity as the insurer of ALADDIN HEATING
24 CORPORATION, a suspended California corporation (“Aladdin”), hereby files its
25 Answer in Intervention to the Second Amended Complaint of plaintiffs VALERI
26 NISKANEN, as Successor-in-Interest to and as Wrongful Death Heir of BILLY JOE
27 McCLARY, Deceased; and VICTORIA BLAKE, TAMLYN ORTEGON, SUSAN FRENCH
28 and STEVEN McCLARY, as Wrongful Death Heirs of BILLY JOE McCLARY, Deceased
HUGO PARKER, LLP
240 STOCKTON ST, 8TH FLOOR 1
San Francisco, CA 94108
ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
1
(“Plaintiffs”), as follows:
2
1. Intervenor is a corporation duly organized and existing under the laws of
3
the State of Indiana with its principal place of business in Indianapolis, Indiana.
4
2. Plaintiffs have filed a Second Amended Complaint (hereinafter
5
“Complaint”), naming Aladdin as a defendant. Intervenor is informed and believes that
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Aladdin is a suspended corporation that will not be revived and has chosen to not defend
7
itself in this action.
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3. Intervenor is an insurance carrier for Aladdin and thereby has an interest in
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this action.
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4. Intervenor does not waive its rights to assert all claims and defenses
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available under its applicable policies of insurance, including but not limited to,
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exclusions or the failure of the insured to cooperate in subsequent proceedings.
13
Intervenor retains the right in all subsequent proceedings to litigate liability and damages
14
that have not been decided in this action to determine if coverage exists for this claim
15
under the terms of the applicable policies.
16
5. Intervenor’s intervention is solely to contest the liability and damages
17
alleged against Aladdin, and not to enlarge the suit to address the terms and conditions
18
of its policies of insurance. Intervenor is not a defendant or cross-defendant and will not
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be subject to any judgment entered directly against Aladdin. Intervenor’s responsibility,
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if any, for any judgment entered against Aladdin is subject to the terms, conditions, and
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exclusions under the applicable policies of insurance, which may be adjudicated, if at all,
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in a subsequent Insurance Code Section 11580 action or similar action.
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6. Intervenor hereby seeks the right to assert all denials and affirmative
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defenses set forth within this Answer-In-Intervention to Plaintiffs’ Complaint and all
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causes of action asserted in this action against Aladdin.
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7. Intervenor hereby intervenes in this action pursuant to Code of Civil
27
Procedure Section 387 on the grounds that Intervenor has a direct interest in the outcome
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HUGO PARKER, LLP
of this action based on Aladdin’s suspended status and apparent unwillingness to revive
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San Francisco, CA 94108
ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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Aladdin. (Rev. & Tax Code §§ 19719, 23301; City of San Diego v. San Diegans for Open Gov.
2
(2016) 3 Cal.App.5th 568, 576-579; see also, Corp. Code § 2011 and Western Heritage Ins.
3
Co. v. Superior Court (2011) 199 Cal.App.4th 1196.)
4
8. As insurers of Aladdin, Intervenor hereby seeks from all named and DOE
5
defendants, contribution and indemnity, and subrogation, whether express, implied,
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equitable or otherwise.
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9. Intervenor has specifically reserved its rights to deny coverage in whole or
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in part for the claims alleged herein, and by filing this Answer-in-Intervention, does not
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waive any such coverage defenses.
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GENERAL DENIAL
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10. Pursuant to Code of Civil Procedure Section 431.30, Intervenor denies
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generally and specifically each and every allegation of Plaintiffs’ Complaint and the
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whole thereof, and further denies that Plaintiffs have or will sustain damages in the
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amount alleged, or in any amount whatsoever.
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AFFIRMATIVE DEFENSES
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11. Intervenors assert the following affirmative defenses:
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FIRST AFFIRMATIVE DEFENSE
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Failure to State a Cause of Action
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Intervenor alleges that Plaintiffs’ Complaint and each of the causes of action
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therein, fails to state a cause of action against Aladdin and hence Intervenor.
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SECOND AFFIRMATIVE DEFENSE
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Failure to Allege with Particularity
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Intervenor alleges that Plaintiffs’ Complaint fails to set out its claims with
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sufficient particularity to permit Intervenor to raise all appropriate defenses and, thus,
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Intervenor reserves the right to add additional defenses as the factual basis for these
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claims becomes known.
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THIRD AFFIRMATIVE DEFENSE
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HUGO PARKER, LLP
Comparative Fault
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ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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Intervenor alleges that the damages, if any, complained of by Plaintiffs, were
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proximately caused by the negligence, fault, breach of contract and/or strict liability of
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Plaintiffs, Decedent, or other defendants, firms, persons, corporations, unions, employers
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and entities other than Intervenor, and that the negligence, fault, breach of contract
5
and/or strict liability comparatively reduces the percentage of any negligence, fault,
6
breach of contract or strict liability for which Intervenor is legally responsible, if any be
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found, which liability Intervenor expressly denies. Further, Intervenor alleges that
8
Plaintiffs did not exercise ordinary care, caution or prudence to avoid the incidents
9
complained of herein, and the incidents and the injuries and damages, if any, sustained
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by Plaintiffs, were directly and proximately caused and contributed to by the carelessness
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and negligence of Plaintiffs and/or Decedent.
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FOURTH AFFIRMATIVE DEFENSE
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Contributory Negligence
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Intervenor alleges that Plaintiffs did not exercise ordinary care, caution or
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prudence to avoid the incidents complained of herein, and the incidents and the injuries
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and damages, if any, sustained by Plaintiffs, were directly and proximately caused and
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contributed to by the carelessness and negligence of Plaintiffs and/or Decedent.
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FIFTH AFFIRMATIVE DEFENSE
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Uncertainty
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Intervenor alleges that Plaintiffs’ Complaint and all purported causes of action
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therein are vague, ambiguous and uncertain, and fail to state a cause of action on any
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theory.
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SIXTH AFFIRMATIVE DEFENSE
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Laches
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Intervenor alleges that Plaintiffs unreasonably delayed in bringing this action and
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that such delay substantially prejudiced Intervenor, and that this action is therefore
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barred by the Doctrine of Laches.
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HUGO PARKER, LLP
SEVENTH AFFIRMATIVE DEFENSE
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ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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Statute of Limitations
2
Intervenor alleges that Plaintiffs’ Complaint and the purported causes of action
3
therein are barred by all statutes of limitation, including, but not limited to, the
4
provisions of California Code of Civil Procedure sections 335.1, 338, 338.1, 339(1), 340,
5
340.2, 340.2(c), 343, 352, 366.1, 366.2, and California Commercial Code section 2725.
6
Plaintiffs’ claims are further barred by the statute of limitations of states other than
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California pursuant to California Code of Civil Procedure section 361.
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EIGHTH AFFIRMATIVE DEFENSE
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Failure to Mitigate
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Intervenor alleges that Plaintiffs failed to mitigate damages which Plaintiffs
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contend Decedent suffered, and Plaintiffs are therefore barred from any recovery
12
whatsoever, or alternatively, any damages found must be reduced in proportion to such
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failure to mitigate.
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NINTH AFFIRMATIVE DEFENSE
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Estoppel
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Intervenor alleges that as a result of the acts, conduct and/or omissions of Plaintiffs
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and their agents, or any of them, and each cause of action presented therein, is barred
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under the Doctrine of Estoppel.
19
TENTH AFFIRMATIVE DEFENSE
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Waiver
21
Intervenor alleges that Plaintiffs, by their acts, conduct and omissions, have
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waived the claims alleged in their Complaint and in each purported cause of action
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alleged therein.
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ELEVENTH AFFIRMATIVE DEFENSE
25
Acquiescence
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Plaintiffs and/or Decedent acknowledged, ratified, consented to, and acquiesced in
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the alleged acts or omissions, if any, of Aladdin, thus barring Plaintiffs from any relief as
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HUGO PARKER, LLP
prayed for herein as against Intervenor.
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ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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TWELFTH AFFIRMATIVE DEFENSE
2
Compliance with Statutes
3
Intervenor alleges that all of its conduct and activities as alleged in Plaintiffs’
4
Complaint conformed to statutes, government regulations, and industry standards based
5
upon the state of knowledge existing at all relevant times.
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THIRTEENTH AFFIRMATIVE DEFENSE
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Compliance with Specifications
8
Intervenor alleges that the asbestos products or asbestos used or in place at any
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premises, if any, for which Aladdin had any legal responsibility, were manufactured,
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packaged, distributed or sold in accordance with contract specifications imposed by its
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co-Intervenors, by the U.S. Government, by the State of California, by Plaintiffs’ and/or
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Decedent’s employers, or by third parties yet to be identified.
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FOURTEENTH AFFIRMATIVE DEFENSE
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No Conspiracy
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Aladdin has no liability for the acts, omissions or otherwise of any other defendant
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or entity because it did not become legally responsible for the acts of any such defendant,
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nor entity, by any communication, alleged, implied, or actual, nor act, action, or activity,
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and never was, nor is, a conspirator nor co-conspirator with any other defendant or
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entity.
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FIFTEENTH AFFIRMATIVE DEFENSE
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State-of-the-Art
22
Intervenor alleges that all of Aladdin’s activities, products, materials and its
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premises at issue here at all times were conducted, used, produced, marketed, and
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operated in conformity with the existing scientific, medical industrial hygiene and
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consumer knowledge, art and practice and state-of-the-art.
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SIXTEENTH AFFIRMATIVE DEFENSE
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No Foreseeable Risk to Plaintiff/Decedent
28
HUGO PARKER, LLP
The state of the medical, scientific, and industrial knowledge and practice was at
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ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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all material times such that Aladdin neither breached any alleged duty owed Plaintiffs
2
and/or Decedent, nor knew, nor could have known, that such activities, materials,
3
products, activities or premises presented a foreseeable risk of harm to Plaintiffs and/or
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Decedent in the normal and expected course of such activities and use of such materials
5
and products.
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SEVENTEENTH AFFIRMATIVE DEFENSE
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No Right to Control
8
Intervenor alleges that any loss, injury, or damage incurred by Plaintiffs was
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proximately and legally caused by the negligent or willful acts or omissions of parties
10
which Aladdin neither controlled, nor had the right to control, and was not proximately
11
caused by any acts, omissions, or other conduct of Aladdin.
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EIGHTEENTH AFFIRMATIVE DEFENSE
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Action for Relief
14
Intervenor alleges the causes of action, if any, attempted to be stated and set forth
15
in the Complaint, are barred by the provisions of the Code of Civil Procedure of the State
16
of California and/or other statutes of the State of California, including without limitation
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C.C.P. § 338(d).
18
NINETEENTH AFFIRMATIVE DEFENSE
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Due Care and Diligence
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Intervenor alleges that if the Plaintiffs and/or Decedent allegedly suffered injuries
21
attributable to the disturbance or use of any product for which Aladdin had any legal
22
responsibility, which allegations are expressly herein denied, the injuries were solely
23
caused by, and attributable to the unreasonable, unforeseeable, and inappropriate
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purpose and improper use and abuse which was made of the product by persons or
25
entities other than Aladdin.
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TWENTIETH AFFIRMATIVE DEFENSE
27
Due Care and Diligence
28
HUGO PARKER, LLP
Intervenor alleges that Aladdin exercised due care and diligence in all of the
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ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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matters alleged in the Complaint, and no act or omission by Aladdin was the proximate
2
cause of any damage, injury or loss to Plaintiffs and/or Decedent.
3
4
TWENTY-FIRST AFFIRMATIVE DEFENSE
5
Alteration and Misuse of Product
6
Intervenor alleges that an insubstantial amount, if any at all, of the products
7
containing asbestos distributed, used, supplied by Aladdin or used or in place at any
8
premises owned or controlled by Aladdin, were not disturbed or used in the presence of
9
Plaintiffs and/or Decedent and not supplied to the Plaintiffs and/or Decedent, and if so,
10
were substantially altered by others and/or used in a manner inconsistent with the
11
labeled directions.
12
TWENTY-SECOND AFFIRMATIVE DEFENSE
13
Equal or Greater Knowledge of Hazards
14
Intervenor alleges that any and all products containing asbestos used, distributed
15
or supplied by Aladdin were distributed or supplied to, or for, persons or entities who
16
had knowledge with respect to the hazards, if any, resulting from exposure to products
17
containing asbestos, which knowledge is equal to or greater than the knowledge of
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Aladdin.
19
TWENTY-THIRD AFFIRMATIVE DEFENSE
20
Other Parties’ Liability and Negligence
21
If there was any negligence or any other form of liability on the part of any of the
22
parties named herein, it was the sole and exclusive negligence and liability of the other
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persons or entities and not of Aladdin.
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TWENTY-FOURTH AFFIRMATIVE DEFENSE
25
Apportionment and Offset
26
Intervenor is informed and believes and thereon alleges that Plaintiffs’ and/or
27
Decedent’s acts and omissions, including Plaintiffs’ and/or Decedent’s agents, servants,
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HUGO PARKER, LLP
and employees acting within the course and scope of their employment, and others,
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ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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contributed to the alleged damages, injury, or loss, if any, sustained by Plaintiffs and/or
2
Decedent. Intervenor requests that the Court apply the principles of apportionment and
3
offset so as to permit the Court or jury to apportion liability according to fault and to
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grant Intervenor a corresponding offset against any damages awarded to Plaintiffs.
5
TWENTY-FIFTH AFFIRMATIVE DEFENSE
6
Contribution/Equitable Indemnity
7
Intervenor alleges, if it is held liable to Plaintiffs, any such liability is expressly
8
herein denied, and any other co-defendants are likewise held liable, Intervenor is entitled
9
to a percentage contribution of the total liability in accordance with the principles of
10
equitable indemnity and comparative contribution.
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TWENTY-SIXTH AFFIRMATIVE DEFENSE
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Assumption of Risk by Plaintiffs’ and/or Decedent’s Employer(s)
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Intervenor alleges that the Complaint and each cause of action alleged therein are
14
barred on the grounds that Plaintiffs’ and/or Decedent’s employer or employers
15
knowingly entered into and engaged in the operations, acts and conduct alleged in the
16
Complaint, and voluntarily and knowingly assumed all of the risks incident to the
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operations, acts and conduct at the time and place mentioned in the Complaint.
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
19
Assumption of Risk
20
Intervenor alleges that Plaintiffs and/or Decedent assumed the risk of the matters
21
referred to in the Complaint, knew and appreciated the nature of the risk, and
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voluntarily accepted the risk.
23
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
24
Independent, Intervening or Superseding Cause
25
To the extent the Complaint asserts Aladdin’s alleged “alternative,” “market
26
share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute a
27
cause of action against Intervenor.
28
HUGO PARKER, LLP
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ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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TWENTY-NINTH AFFIRMATIVE DEFENSE
2
Independent, Intervening or Superseding Cause
3
Intervenor alleges that if Plaintiffs and/or Decedent suffered any injuries
4
attributable to the use of any product containing asbestos which was used, distributed or
5
sold by Aladdin, which allegations are expressly denied herein, the injuries were solely
6
caused by an unforeseeable, independent intervening and/or superseding event beyond
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the control, and unrelated to any conduct, of Aladdin whose actions, if any, were
8
superseded by the negligence and wrongful conduct of others.
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THIRTIETH AFFIRMATIVE DEFENSE
10
Not a Substantial Factor
11
Intervenor alleges that the Complaint and each cause of action therein presented
12
are barred on the grounds that the products, conduct, materials or premises of Aladdin
13
as referred to in Plaintiffs’ Complaint, if any, were not a substantial factor in bringing
14
about the injuries and damages complained of by Plaintiffs and did not increase the risk
15
that Plaintiffs and/or Decedent would suffer the injuries and damages complained of.
16
THIRTY-FIRST AFFIRMATIVE DEFENSE
17
No Successor Liability
18
Intervenor alleges that Aladdin has no liability for the acts, omissions or otherwise
19
of any other defendant or any other entity because Aladdin did not become legally
20
responsible for the acts of any such defendant or entity given the facts and circumstances
21
of the pertinent transactions and never were, nor are, a successor-in-interest, a successor-
22
in-liability or an alternate entity for any other user, manufacturer, supplier, seller,
23
distributor or premises holder relating to asbestos or asbestos-containing products.
24
THIRTY-SECOND AFFIRMATIVE DEFENSE
25
Secondary Assumption of Risk
26
Intervenor alleges that any and all products containing asbestos used, distributed
27
or supplied by Aladdin were used, distributed or supplied to, or for, persons or entities
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HUGO PARKER, LLP
who had knowledge with respect to the hazards, if any, resulting from exposure to
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ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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products containing asbestos, which is equal to or greater than, the knowledge of
2
Aladdin whose liability, if any, should be reduced proportionately.
3
4
5
THIRTY-THIRD AFFIRMATIVE DEFENSE
6
Civil Code Section 1431.2
7
Intervenor alleges that the provisions of California Civil Code § 1431.2
8
(“Proposition 51”) are applicable to Plaintiffs’ Complaint and to each cause of action
9
therein.
10
THIRTY-FOURTH AFFIRMATIVE DEFENSE
11
Workers’ Compensation Exclusive Remedy
12
Intervenor alleges that the Complaint is barred by the exclusivity provisions of the
13
California Workers’ Compensation laws, including, but not limited to, California Labor
14
Code § 3600, et seq.
15
THIRTY-FIFTH AFFIRMATIVE DEFENSE
16
Offset for Workers’ Compensation Benefits
17
Intervenor alleges that to the extent Plaintiffs herein have recovered, or in the
18
future may recover, any monies in connection with any claim for workers’ compensation
19
benefits, any amounts recovered in this action are subject to a claim by Intervenor for a
20
credit or offset.
21
THIRTY-SIXTH AFFIRMATIVE DEFENSE
22
Express Contractual Indemnity
23
If Plaintiffs claims exposure to asbestos or asbestos-containing products at
24
Aladdin’s premises, Aladdin contracted with Plaintiffs/Decedent and/or
25
Plaintiffs’/Decedent’s employer(s) for them to fully assume all responsibility for insuring
26
Plaintiffs’/Decedent’s safety, to guarantee that no hazardous condition existed, and/or to
27
warn and protect against any such conditions, during the performance of
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Plaintiffs’/Decedent’s work, and, further, to fully indemnify Aladdin, and to hold it
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ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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harmless, for all responsibility and liability arising out of the work, and/or any injuries
2
allegedly incurred by Plaintiffs/Decedent as a result of any of the work. Intervenor
3
reserves all rights to assert these provisions of contractual indemnity.
4
5
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
6
Consent
7
Intervenor alleges that at all times mentioned, Plaintiffs and/or Decedent
8
consented to the alleged acts or omissions of Aladdin.
9
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
10
Unusual Susceptibility
11
Intervenor alleges that each of Plaintiffs’ and/or Decedent’s injuries and damages,
12
if any, were proximately caused or contributed to by Plaintiffs’ and/or Decedent’s
13
unforeseeable idiosyncratic condition, unusual susceptibility, or hypersensitivity
14
reactions for which Intervenor is not liable.
15
THIRTY-NINTH AFFIRMATIVE DEFENSE
16
Work Hazard Precautions
17
Intervenor alleges that Plaintiffs’ and/or Decedent’s employers were advised and
18
warned of any potential hazards and/or dangers associated with the normal and
19
foreseeable conduct with, or storage and disposal of the products referred to in the
20
Complaint, in a manner which was adequate notice to an industrial user of such product,
21
to enable it to inform its employees to take appropriate work precautions to prevent
22
injurious exposure.
23
FORTIETH AFFIRMATIVE DEFENSE
24
No Standing Under California Civil Code §§ 1708-1710
25
Plaintiffs have no standing nor right to sue for fraud and conspiracy, breach of
26
warranty, deceit, or any cause of action under California Civil Code, §§ 1708-1710, and
27
therefore the Complaint and each cause of action thereof fails to state facts sufficient to
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constitute a cause of action against Intervenor.
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ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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FORTY-FIRST AFFIRMATIVE DEFENSE
2
Plaintiffs Are Not Real Parties in Interest
3
Plaintiffs lack legal capacity to sue and are not real parties-in-interest and thereby
4
precluded from any recovery whatsoever.
5
FORTY-SECOND AFFIRMATIVE DEFENSE
6
Fraud and Conspiracy are Not Separate Forms of Damages
7
Fraud and conspiracy do not constitute a separate and distinct form of damages
8
from general damages, and, therefore, to the extent the Complaint contains a prayer for
9
fraud and conspiracy in addition to general damages it does not sufficiently support or
10
constitute a separate claim for damages against Intervenor but is simply cumulative and
11
included in general damages.
12
FORTY-THIRD AFFIRMATIVE DEFENSE
13
Negligent Hiring Claim Invalid
14
An employee of an independent contractor may not pursue a claim for negligent
15
hiring against a hirer of the independent contractor. (Camargo v. Tjaarda Dairy, (2001) 25
16
Cal. 4th 1235.)
17
FORTY-FOURTH AFFIRMATIVE DEFENSE
18
No Concert of Action
19
There is no concert of action between Aladdin and any of the other named
20
defendants. Defendants and Aladdin are not joint tortfeasors and accordingly, Aladdin
21
may not be held jointly and severally liable with the other named defendants.
22
FORTY-FIFTH AFFIRMATIVE DEFENSE
23
Components Parts Doctrine
24
Intervenor alleges that Aladdin has no liability for the injuries or damages sought
25
in this case because the product was a component of another manufacturer’s finished
26
product
27
FORTY-SIXTH AFFIRMATIVE DEFENSE
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HUGO PARKER, LLP
Sophisticated User
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ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH-
ASBESTOS
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Intervenor alleges that Aladdin was under no legal duty to warn Plaintiffs and/or
2
Decedent of the hazard associated with the use of products containing asbestos or their
3
existence at any premises owned, operated, or controlled by Aladdin, as purchasers of
4
the products, Plaintiffs/Decedent, Plaintiffs’/Decedent’s employers, the unions, and/or
5
certain third parties yet to be identified, were knowledgeable and sophisticated users and
6
were in a better position to warn Plaintiffs and/or Decedent of the risk associated with
7
using products containing asbestos and, assuming
Preview
1 Edward R. Hugo [Bar No. 124839] 2 James C. Parker [Bar No. 106149] Bina Ghanaat [Bar No. 264826] HUGO PARKER, LLP ELECTRONICALLY 3 240 Stockton Street, 8th Floor F I L E D 4 San Francisco, CA 94108 Superior Court of California, County of San Francisco Telephone: (415) 808-0300 5 Facsimile: (415) 808-0333 11/09/2020 Email: service@HUGOPARKER.com Clerk of the Court BY: JUDITH NUNEZ 6 Deputy Clerk Attorneys for Intervenor 7 AMERICAN STATES INSURANCE COMPANY (A SAFECO COMPANY), as insurer of Aladdin 8 Heating Corporation, a suspended California corporation 9 10 SUPERIOR COURT - STATE OF CALIFORNIA 11 COUNTY OF SAN FRANCISCO – UNLIMITED JURISDICTION 12 13 VALERI NISKANEN, as Successor-in- (ASBESTOS) Interest to and as Wrongful Death Heir of Case No. CGC-19-276813 14 BILLY JOE McCLARY, Deceased; and VICTORIA BLAKE, TAMLYN INTERVENOR AMERICAN STATES 15 ORTEGON, SUSAN FRENCH and INSURANCE COMPANY (A SAFECO STEVEN McCLARY, as Wrongful Death COMPANY)’s ANSWER IN INTERVENTION 16 Heirs of BILLY JOE McCLARY, Deceased, TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - 17 Plaintiffs, ASBESTOS 18 vs. (Code Civ. Proc. § 387) 19 KELLY-MOORE PAINT COMPANY, Comp. Filed: December 11, 2019 INC.; et al., 1st Amended Comp. Filed: August 7, 2020 20 2nd Amended Comp. Filed: October 22, 2020 Defendants. 21 22 Intervenor AMERICAN STATES INSURANCE COMPANY (a Safeco Company) 23 (“Intervenor”), solely in its capacity as the insurer of ALADDIN HEATING 24 CORPORATION, a suspended California corporation (“Aladdin”), hereby files its 25 Answer in Intervention to the Second Amended Complaint of plaintiffs VALERI 26 NISKANEN, as Successor-in-Interest to and as Wrongful Death Heir of BILLY JOE 27 McCLARY, Deceased; and VICTORIA BLAKE, TAMLYN ORTEGON, SUSAN FRENCH 28 and STEVEN McCLARY, as Wrongful Death Heirs of BILLY JOE McCLARY, Deceased HUGO PARKER, LLP 240 STOCKTON ST, 8TH FLOOR 1 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 (“Plaintiffs”), as follows: 2 1. Intervenor is a corporation duly organized and existing under the laws of 3 the State of Indiana with its principal place of business in Indianapolis, Indiana. 4 2. Plaintiffs have filed a Second Amended Complaint (hereinafter 5 “Complaint”), naming Aladdin as a defendant. Intervenor is informed and believes that 6 Aladdin is a suspended corporation that will not be revived and has chosen to not defend 7 itself in this action. 8 3. Intervenor is an insurance carrier for Aladdin and thereby has an interest in 9 this action. 10 4. Intervenor does not waive its rights to assert all claims and defenses 11 available under its applicable policies of insurance, including but not limited to, 12 exclusions or the failure of the insured to cooperate in subsequent proceedings. 13 Intervenor retains the right in all subsequent proceedings to litigate liability and damages 14 that have not been decided in this action to determine if coverage exists for this claim 15 under the terms of the applicable policies. 16 5. Intervenor’s intervention is solely to contest the liability and damages 17 alleged against Aladdin, and not to enlarge the suit to address the terms and conditions 18 of its policies of insurance. Intervenor is not a defendant or cross-defendant and will not 19 be subject to any judgment entered directly against Aladdin. Intervenor’s responsibility, 20 if any, for any judgment entered against Aladdin is subject to the terms, conditions, and 21 exclusions under the applicable policies of insurance, which may be adjudicated, if at all, 22 in a subsequent Insurance Code Section 11580 action or similar action. 23 6. Intervenor hereby seeks the right to assert all denials and affirmative 24 defenses set forth within this Answer-In-Intervention to Plaintiffs’ Complaint and all 25 causes of action asserted in this action against Aladdin. 26 7. Intervenor hereby intervenes in this action pursuant to Code of Civil 27 Procedure Section 387 on the grounds that Intervenor has a direct interest in the outcome 28 HUGO PARKER, LLP of this action based on Aladdin’s suspended status and apparent unwillingness to revive 240 STOCKTON ST, 8 FLOOR TH 2 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 Aladdin. (Rev. & Tax Code §§ 19719, 23301; City of San Diego v. San Diegans for Open Gov. 2 (2016) 3 Cal.App.5th 568, 576-579; see also, Corp. Code § 2011 and Western Heritage Ins. 3 Co. v. Superior Court (2011) 199 Cal.App.4th 1196.) 4 8. As insurers of Aladdin, Intervenor hereby seeks from all named and DOE 5 defendants, contribution and indemnity, and subrogation, whether express, implied, 6 equitable or otherwise. 7 9. Intervenor has specifically reserved its rights to deny coverage in whole or 8 in part for the claims alleged herein, and by filing this Answer-in-Intervention, does not 9 waive any such coverage defenses. 10 GENERAL DENIAL 11 10. Pursuant to Code of Civil Procedure Section 431.30, Intervenor denies 12 generally and specifically each and every allegation of Plaintiffs’ Complaint and the 13 whole thereof, and further denies that Plaintiffs have or will sustain damages in the 14 amount alleged, or in any amount whatsoever. 15 AFFIRMATIVE DEFENSES 16 11. Intervenors assert the following affirmative defenses: 17 FIRST AFFIRMATIVE DEFENSE 18 Failure to State a Cause of Action 19 Intervenor alleges that Plaintiffs’ Complaint and each of the causes of action 20 therein, fails to state a cause of action against Aladdin and hence Intervenor. 21 SECOND AFFIRMATIVE DEFENSE 22 Failure to Allege with Particularity 23 Intervenor alleges that Plaintiffs’ Complaint fails to set out its claims with 24 sufficient particularity to permit Intervenor to raise all appropriate defenses and, thus, 25 Intervenor reserves the right to add additional defenses as the factual basis for these 26 claims becomes known. 27 THIRD AFFIRMATIVE DEFENSE 28 HUGO PARKER, LLP Comparative Fault 240 STOCKTON ST, 8 FLOOR TH 3 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 Intervenor alleges that the damages, if any, complained of by Plaintiffs, were 2 proximately caused by the negligence, fault, breach of contract and/or strict liability of 3 Plaintiffs, Decedent, or other defendants, firms, persons, corporations, unions, employers 4 and entities other than Intervenor, and that the negligence, fault, breach of contract 5 and/or strict liability comparatively reduces the percentage of any negligence, fault, 6 breach of contract or strict liability for which Intervenor is legally responsible, if any be 7 found, which liability Intervenor expressly denies. Further, Intervenor alleges that 8 Plaintiffs did not exercise ordinary care, caution or prudence to avoid the incidents 9 complained of herein, and the incidents and the injuries and damages, if any, sustained 10 by Plaintiffs, were directly and proximately caused and contributed to by the carelessness 11 and negligence of Plaintiffs and/or Decedent. 12 FOURTH AFFIRMATIVE DEFENSE 13 Contributory Negligence 14 Intervenor alleges that Plaintiffs did not exercise ordinary care, caution or 15 prudence to avoid the incidents complained of herein, and the incidents and the injuries 16 and damages, if any, sustained by Plaintiffs, were directly and proximately caused and 17 contributed to by the carelessness and negligence of Plaintiffs and/or Decedent. 18 FIFTH AFFIRMATIVE DEFENSE 19 Uncertainty 20 Intervenor alleges that Plaintiffs’ Complaint and all purported causes of action 21 therein are vague, ambiguous and uncertain, and fail to state a cause of action on any 22 theory. 23 SIXTH AFFIRMATIVE DEFENSE 24 Laches 25 Intervenor alleges that Plaintiffs unreasonably delayed in bringing this action and 26 that such delay substantially prejudiced Intervenor, and that this action is therefore 27 barred by the Doctrine of Laches. 28 HUGO PARKER, LLP SEVENTH AFFIRMATIVE DEFENSE 240 STOCKTON ST, 8 FLOOR TH 4 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 Statute of Limitations 2 Intervenor alleges that Plaintiffs’ Complaint and the purported causes of action 3 therein are barred by all statutes of limitation, including, but not limited to, the 4 provisions of California Code of Civil Procedure sections 335.1, 338, 338.1, 339(1), 340, 5 340.2, 340.2(c), 343, 352, 366.1, 366.2, and California Commercial Code section 2725. 6 Plaintiffs’ claims are further barred by the statute of limitations of states other than 7 California pursuant to California Code of Civil Procedure section 361. 8 EIGHTH AFFIRMATIVE DEFENSE 9 Failure to Mitigate 10 Intervenor alleges that Plaintiffs failed to mitigate damages which Plaintiffs 11 contend Decedent suffered, and Plaintiffs are therefore barred from any recovery 12 whatsoever, or alternatively, any damages found must be reduced in proportion to such 13 failure to mitigate. 14 NINTH AFFIRMATIVE DEFENSE 15 Estoppel 16 Intervenor alleges that as a result of the acts, conduct and/or omissions of Plaintiffs 17 and their agents, or any of them, and each cause of action presented therein, is barred 18 under the Doctrine of Estoppel. 19 TENTH AFFIRMATIVE DEFENSE 20 Waiver 21 Intervenor alleges that Plaintiffs, by their acts, conduct and omissions, have 22 waived the claims alleged in their Complaint and in each purported cause of action 23 alleged therein. 24 ELEVENTH AFFIRMATIVE DEFENSE 25 Acquiescence 26 Plaintiffs and/or Decedent acknowledged, ratified, consented to, and acquiesced in 27 the alleged acts or omissions, if any, of Aladdin, thus barring Plaintiffs from any relief as 28 HUGO PARKER, LLP prayed for herein as against Intervenor. 240 STOCKTON ST, 8 FLOOR TH 5 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 TWELFTH AFFIRMATIVE DEFENSE 2 Compliance with Statutes 3 Intervenor alleges that all of its conduct and activities as alleged in Plaintiffs’ 4 Complaint conformed to statutes, government regulations, and industry standards based 5 upon the state of knowledge existing at all relevant times. 6 THIRTEENTH AFFIRMATIVE DEFENSE 7 Compliance with Specifications 8 Intervenor alleges that the asbestos products or asbestos used or in place at any 9 premises, if any, for which Aladdin had any legal responsibility, were manufactured, 10 packaged, distributed or sold in accordance with contract specifications imposed by its 11 co-Intervenors, by the U.S. Government, by the State of California, by Plaintiffs’ and/or 12 Decedent’s employers, or by third parties yet to be identified. 13 FOURTEENTH AFFIRMATIVE DEFENSE 14 No Conspiracy 15 Aladdin has no liability for the acts, omissions or otherwise of any other defendant 16 or entity because it did not become legally responsible for the acts of any such defendant, 17 nor entity, by any communication, alleged, implied, or actual, nor act, action, or activity, 18 and never was, nor is, a conspirator nor co-conspirator with any other defendant or 19 entity. 20 FIFTEENTH AFFIRMATIVE DEFENSE 21 State-of-the-Art 22 Intervenor alleges that all of Aladdin’s activities, products, materials and its 23 premises at issue here at all times were conducted, used, produced, marketed, and 24 operated in conformity with the existing scientific, medical industrial hygiene and 25 consumer knowledge, art and practice and state-of-the-art. 26 SIXTEENTH AFFIRMATIVE DEFENSE 27 No Foreseeable Risk to Plaintiff/Decedent 28 HUGO PARKER, LLP The state of the medical, scientific, and industrial knowledge and practice was at 240 STOCKTON ST, 8 FLOOR TH 6 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 all material times such that Aladdin neither breached any alleged duty owed Plaintiffs 2 and/or Decedent, nor knew, nor could have known, that such activities, materials, 3 products, activities or premises presented a foreseeable risk of harm to Plaintiffs and/or 4 Decedent in the normal and expected course of such activities and use of such materials 5 and products. 6 SEVENTEENTH AFFIRMATIVE DEFENSE 7 No Right to Control 8 Intervenor alleges that any loss, injury, or damage incurred by Plaintiffs was 9 proximately and legally caused by the negligent or willful acts or omissions of parties 10 which Aladdin neither controlled, nor had the right to control, and was not proximately 11 caused by any acts, omissions, or other conduct of Aladdin. 12 EIGHTEENTH AFFIRMATIVE DEFENSE 13 Action for Relief 14 Intervenor alleges the causes of action, if any, attempted to be stated and set forth 15 in the Complaint, are barred by the provisions of the Code of Civil Procedure of the State 16 of California and/or other statutes of the State of California, including without limitation 17 C.C.P. § 338(d). 18 NINETEENTH AFFIRMATIVE DEFENSE 19 Due Care and Diligence 20 Intervenor alleges that if the Plaintiffs and/or Decedent allegedly suffered injuries 21 attributable to the disturbance or use of any product for which Aladdin had any legal 22 responsibility, which allegations are expressly herein denied, the injuries were solely 23 caused by, and attributable to the unreasonable, unforeseeable, and inappropriate 24 purpose and improper use and abuse which was made of the product by persons or 25 entities other than Aladdin. 26 TWENTIETH AFFIRMATIVE DEFENSE 27 Due Care and Diligence 28 HUGO PARKER, LLP Intervenor alleges that Aladdin exercised due care and diligence in all of the 240 STOCKTON ST, 8 FLOOR TH 7 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 matters alleged in the Complaint, and no act or omission by Aladdin was the proximate 2 cause of any damage, injury or loss to Plaintiffs and/or Decedent. 3 4 TWENTY-FIRST AFFIRMATIVE DEFENSE 5 Alteration and Misuse of Product 6 Intervenor alleges that an insubstantial amount, if any at all, of the products 7 containing asbestos distributed, used, supplied by Aladdin or used or in place at any 8 premises owned or controlled by Aladdin, were not disturbed or used in the presence of 9 Plaintiffs and/or Decedent and not supplied to the Plaintiffs and/or Decedent, and if so, 10 were substantially altered by others and/or used in a manner inconsistent with the 11 labeled directions. 12 TWENTY-SECOND AFFIRMATIVE DEFENSE 13 Equal or Greater Knowledge of Hazards 14 Intervenor alleges that any and all products containing asbestos used, distributed 15 or supplied by Aladdin were distributed or supplied to, or for, persons or entities who 16 had knowledge with respect to the hazards, if any, resulting from exposure to products 17 containing asbestos, which knowledge is equal to or greater than the knowledge of 18 Aladdin. 19 TWENTY-THIRD AFFIRMATIVE DEFENSE 20 Other Parties’ Liability and Negligence 21 If there was any negligence or any other form of liability on the part of any of the 22 parties named herein, it was the sole and exclusive negligence and liability of the other 23 persons or entities and not of Aladdin. 24 TWENTY-FOURTH AFFIRMATIVE DEFENSE 25 Apportionment and Offset 26 Intervenor is informed and believes and thereon alleges that Plaintiffs’ and/or 27 Decedent’s acts and omissions, including Plaintiffs’ and/or Decedent’s agents, servants, 28 HUGO PARKER, LLP and employees acting within the course and scope of their employment, and others, 240 STOCKTON ST, 8 FLOOR TH 8 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 contributed to the alleged damages, injury, or loss, if any, sustained by Plaintiffs and/or 2 Decedent. Intervenor requests that the Court apply the principles of apportionment and 3 offset so as to permit the Court or jury to apportion liability according to fault and to 4 grant Intervenor a corresponding offset against any damages awarded to Plaintiffs. 5 TWENTY-FIFTH AFFIRMATIVE DEFENSE 6 Contribution/Equitable Indemnity 7 Intervenor alleges, if it is held liable to Plaintiffs, any such liability is expressly 8 herein denied, and any other co-defendants are likewise held liable, Intervenor is entitled 9 to a percentage contribution of the total liability in accordance with the principles of 10 equitable indemnity and comparative contribution. 11 TWENTY-SIXTH AFFIRMATIVE DEFENSE 12 Assumption of Risk by Plaintiffs’ and/or Decedent’s Employer(s) 13 Intervenor alleges that the Complaint and each cause of action alleged therein are 14 barred on the grounds that Plaintiffs’ and/or Decedent’s employer or employers 15 knowingly entered into and engaged in the operations, acts and conduct alleged in the 16 Complaint, and voluntarily and knowingly assumed all of the risks incident to the 17 operations, acts and conduct at the time and place mentioned in the Complaint. 18 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 19 Assumption of Risk 20 Intervenor alleges that Plaintiffs and/or Decedent assumed the risk of the matters 21 referred to in the Complaint, knew and appreciated the nature of the risk, and 22 voluntarily accepted the risk. 23 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 24 Independent, Intervening or Superseding Cause 25 To the extent the Complaint asserts Aladdin’s alleged “alternative,” “market 26 share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute a 27 cause of action against Intervenor. 28 HUGO PARKER, LLP 240 STOCKTON ST, 8TH FLOOR 9 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 TWENTY-NINTH AFFIRMATIVE DEFENSE 2 Independent, Intervening or Superseding Cause 3 Intervenor alleges that if Plaintiffs and/or Decedent suffered any injuries 4 attributable to the use of any product containing asbestos which was used, distributed or 5 sold by Aladdin, which allegations are expressly denied herein, the injuries were solely 6 caused by an unforeseeable, independent intervening and/or superseding event beyond 7 the control, and unrelated to any conduct, of Aladdin whose actions, if any, were 8 superseded by the negligence and wrongful conduct of others. 9 THIRTIETH AFFIRMATIVE DEFENSE 10 Not a Substantial Factor 11 Intervenor alleges that the Complaint and each cause of action therein presented 12 are barred on the grounds that the products, conduct, materials or premises of Aladdin 13 as referred to in Plaintiffs’ Complaint, if any, were not a substantial factor in bringing 14 about the injuries and damages complained of by Plaintiffs and did not increase the risk 15 that Plaintiffs and/or Decedent would suffer the injuries and damages complained of. 16 THIRTY-FIRST AFFIRMATIVE DEFENSE 17 No Successor Liability 18 Intervenor alleges that Aladdin has no liability for the acts, omissions or otherwise 19 of any other defendant or any other entity because Aladdin did not become legally 20 responsible for the acts of any such defendant or entity given the facts and circumstances 21 of the pertinent transactions and never were, nor are, a successor-in-interest, a successor- 22 in-liability or an alternate entity for any other user, manufacturer, supplier, seller, 23 distributor or premises holder relating to asbestos or asbestos-containing products. 24 THIRTY-SECOND AFFIRMATIVE DEFENSE 25 Secondary Assumption of Risk 26 Intervenor alleges that any and all products containing asbestos used, distributed 27 or supplied by Aladdin were used, distributed or supplied to, or for, persons or entities 28 HUGO PARKER, LLP who had knowledge with respect to the hazards, if any, resulting from exposure to 240 STOCKTON ST, 8 FLOOR TH 10 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 products containing asbestos, which is equal to or greater than, the knowledge of 2 Aladdin whose liability, if any, should be reduced proportionately. 3 4 5 THIRTY-THIRD AFFIRMATIVE DEFENSE 6 Civil Code Section 1431.2 7 Intervenor alleges that the provisions of California Civil Code § 1431.2 8 (“Proposition 51”) are applicable to Plaintiffs’ Complaint and to each cause of action 9 therein. 10 THIRTY-FOURTH AFFIRMATIVE DEFENSE 11 Workers’ Compensation Exclusive Remedy 12 Intervenor alleges that the Complaint is barred by the exclusivity provisions of the 13 California Workers’ Compensation laws, including, but not limited to, California Labor 14 Code § 3600, et seq. 15 THIRTY-FIFTH AFFIRMATIVE DEFENSE 16 Offset for Workers’ Compensation Benefits 17 Intervenor alleges that to the extent Plaintiffs herein have recovered, or in the 18 future may recover, any monies in connection with any claim for workers’ compensation 19 benefits, any amounts recovered in this action are subject to a claim by Intervenor for a 20 credit or offset. 21 THIRTY-SIXTH AFFIRMATIVE DEFENSE 22 Express Contractual Indemnity 23 If Plaintiffs claims exposure to asbestos or asbestos-containing products at 24 Aladdin’s premises, Aladdin contracted with Plaintiffs/Decedent and/or 25 Plaintiffs’/Decedent’s employer(s) for them to fully assume all responsibility for insuring 26 Plaintiffs’/Decedent’s safety, to guarantee that no hazardous condition existed, and/or to 27 warn and protect against any such conditions, during the performance of 28 HUGO PARKER, LLP Plaintiffs’/Decedent’s work, and, further, to fully indemnify Aladdin, and to hold it 240 STOCKTON ST, 8 FLOOR TH 11 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 harmless, for all responsibility and liability arising out of the work, and/or any injuries 2 allegedly incurred by Plaintiffs/Decedent as a result of any of the work. Intervenor 3 reserves all rights to assert these provisions of contractual indemnity. 4 5 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 6 Consent 7 Intervenor alleges that at all times mentioned, Plaintiffs and/or Decedent 8 consented to the alleged acts or omissions of Aladdin. 9 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 10 Unusual Susceptibility 11 Intervenor alleges that each of Plaintiffs’ and/or Decedent’s injuries and damages, 12 if any, were proximately caused or contributed to by Plaintiffs’ and/or Decedent’s 13 unforeseeable idiosyncratic condition, unusual susceptibility, or hypersensitivity 14 reactions for which Intervenor is not liable. 15 THIRTY-NINTH AFFIRMATIVE DEFENSE 16 Work Hazard Precautions 17 Intervenor alleges that Plaintiffs’ and/or Decedent’s employers were advised and 18 warned of any potential hazards and/or dangers associated with the normal and 19 foreseeable conduct with, or storage and disposal of the products referred to in the 20 Complaint, in a manner which was adequate notice to an industrial user of such product, 21 to enable it to inform its employees to take appropriate work precautions to prevent 22 injurious exposure. 23 FORTIETH AFFIRMATIVE DEFENSE 24 No Standing Under California Civil Code §§ 1708-1710 25 Plaintiffs have no standing nor right to sue for fraud and conspiracy, breach of 26 warranty, deceit, or any cause of action under California Civil Code, §§ 1708-1710, and 27 therefore the Complaint and each cause of action thereof fails to state facts sufficient to 28 HUGO PARKER, LLP constitute a cause of action against Intervenor. 240 STOCKTON ST, 8 FLOOR TH 12 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 FORTY-FIRST AFFIRMATIVE DEFENSE 2 Plaintiffs Are Not Real Parties in Interest 3 Plaintiffs lack legal capacity to sue and are not real parties-in-interest and thereby 4 precluded from any recovery whatsoever. 5 FORTY-SECOND AFFIRMATIVE DEFENSE 6 Fraud and Conspiracy are Not Separate Forms of Damages 7 Fraud and conspiracy do not constitute a separate and distinct form of damages 8 from general damages, and, therefore, to the extent the Complaint contains a prayer for 9 fraud and conspiracy in addition to general damages it does not sufficiently support or 10 constitute a separate claim for damages against Intervenor but is simply cumulative and 11 included in general damages. 12 FORTY-THIRD AFFIRMATIVE DEFENSE 13 Negligent Hiring Claim Invalid 14 An employee of an independent contractor may not pursue a claim for negligent 15 hiring against a hirer of the independent contractor. (Camargo v. Tjaarda Dairy, (2001) 25 16 Cal. 4th 1235.) 17 FORTY-FOURTH AFFIRMATIVE DEFENSE 18 No Concert of Action 19 There is no concert of action between Aladdin and any of the other named 20 defendants. Defendants and Aladdin are not joint tortfeasors and accordingly, Aladdin 21 may not be held jointly and severally liable with the other named defendants. 22 FORTY-FIFTH AFFIRMATIVE DEFENSE 23 Components Parts Doctrine 24 Intervenor alleges that Aladdin has no liability for the injuries or damages sought 25 in this case because the product was a component of another manufacturer’s finished 26 product 27 FORTY-SIXTH AFFIRMATIVE DEFENSE 28 HUGO PARKER, LLP Sophisticated User 240 STOCKTON ST, 8 FLOOR TH 13 San Francisco, CA 94108 ANSWER IN INTERVENTION TO SECOND AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH- ASBESTOS 1 Intervenor alleges that Aladdin was under no legal duty to warn Plaintiffs and/or 2 Decedent of the hazard associated with the use of products containing asbestos or their 3 existence at any premises owned, operated, or controlled by Aladdin, as purchasers of 4 the products, Plaintiffs/Decedent, Plaintiffs’/Decedent’s employers, the unions, and/or 5 certain third parties yet to be identified, were knowledgeable and sophisticated users and 6 were in a better position to warn Plaintiffs and/or Decedent of the risk associated with 7 using products containing asbestos and, assuming