Answer: VALERI NISKANEN ET AL VS. KELLY-MOORE PAINT COMPANY, INC. ET AL

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                                1    Steven J. Barber (CSBN 145645)
     Erika R. Aspericueta (CSBN 283509)
2    STEPTOE & JOHNSON LLP
                                                                                  ELECTRONICALLY
     633 West Fifth Street, Suite 1900
3    Los Angeles, California 90071                                                    FILED
     Telephone: (213) 439-9400                                                   Superior Court of California,
4    Facsimile: (213) 439-9599                                                    County of San Francisco

     Email: sbarber@steptoe.com                                                        10/05/2020
5    Email: easpericueta@steptoe.com                                              Clerk of the Court
                                                                                      BY: ANNA TORRES
6    Attorneys for Defendant                                                                    Deputy Clerk

     METROPOLITAN LIFE INSURANCE COMPANY
7
8                          SUPERIOR COURT OF THE STATE OF CALIFORNIA
9                                 FOR THE COUNTY OF SAN FRANCISCO
10   VALERI NISKANEN, as Successor-in-Interest to           ASBESTOS
     and as Wrongful Death Heir of BILLY JOE                No. CGC-19-276813
11
     McCLARY, Deceased; and VICTORIA BLAKE,
12   TAMLYN ORTEGON, SUSAN FRENCH and
                                                            METROPOLITAN LIFE INSURANCE
     STEVEN McCLARY, as Wrongful Death Heirs of
13                                                          COMPANY’S ANSWER TO
     BILLY JOE McCLARY, Deceased,
                                                            PLAINTIFFS’ FIRST AMENDED
14                                                          COMPLAINT FOR SURVIVAL,
                          Plaintiffs,
                                                            WRONGFUL DEATH– ASBESTOS
15               VS.
16   KELLY-MOORE PAINT COMPANY, INC., et
17   al.,

18                        Defendants.
19
20          COMES NOW Metropolitan Life Insurance Company (“Metropolitan Life”), for itself
21   alone and for no other defendants, and in answer to the unverified First Amended Complaint
22   (“Complaint”) and each cause of action therein, and each and every Cross-Complaint filed
23   hereafter by any other defendant or third-party defendant, alleges as follows:
24                                          GENERAL DENIAL
25          1.         Pursuant to California Code of Civil Procedure section 431.30(d), Metropolitan
26   Life generally denies each and every unverified allegation of the Complaint, except that
27   Metropolitan Life admits that it is a life insurance company of the State of New York licensed to
28   do business in the State of California.



                                                       1
                           METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO
                                 PLAINTIFFS’ FIRST AMENDED COMPLAINT
1              Metropolitan Life asserts the following affirmative defenses based upon information and
2    belief.
3                                    FIRST AFFIRMATIVE DEFENSE
4              2.     The Complaint, and each cause of action thereof, fails to state facts sufficient to
5    constitute a cause of action against Metropolitan Life.
6                                  SECOND AFFIRMATIVE DEFENSE
7              3.     The causes of action in the Complaint are, and each of them is, barred by the
8    provisions of California Code of Civil Procedure section 335.1; section 337, subdivision 1;
9    section 338, subdivision (d); section 339, subdivision 1; section 340, subdivision 3; section
10   340.2, subdivisions (a) and (c); and section 343.
11                                  THIRD AFFIRMATIVE DEFENSE
12             4.     BILLY JOE McCLARY (“Plaintiffs’ decedent”) was contributorily and/or
13   comparatively negligent.
14                                     FOURTH AFFIRMATIVE DEFENSE
15             5.     Plaintiffs’ decedent’s lack of reasonable care for his safety and well-being was the
16   sole cause of, or contributed to, Plaintiffs’ and/or Plaintiffs’ decedent’s injuries and damages, as
17   alleged in the Complaint. By reason thereof, Plaintiff is barred from recovering all or that
18   portion of any damages attributable to Plaintiffs’ and/or Plaintiffs’ decedent’s lack of reasonable
19   care.
20                                   FIFTH AFFIRMATIVE DEFENSE
21             6.     Plaintiffs’ claims are barred by operation of the doctrine of laches.
22                                   SIXTH AFFIRMATIVE DEFENSE
23             7.     Plaintiffs’ claims are barred by operation of the doctrine of estoppel.
24                                SEVENTH AFFIRMATIVE DEFENSE
25             8.     Plaintiffs’ claims are barred by operation of the doctrine of waiver.
26                                 EIGHTH AFFIRMATIVE DEFENSE
27             9.     Plaintiffs’ decedent assumed the risk of any injuries allegedly sustained as a result
28   of exposure to asbestos-containing products used by or near Plaintiffs’ decedent.



                                                         2
                          METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO
                                PLAINTIFFS’ FIRST AMENDED COMPLAINT
1                                  NINTH AFFIRMATIVE DEFENSE
2            10.    Whatever damages were incurred by Plaintiffs and/or Plaintiffs’ decedent were
3    the result of intervening and/or superseding acts or omissions of parties and events over whom
4    Metropolitan Life had no control.
5                                  TENTH AFFIRMATIVE DEFENSE
6            11.    At all times relevant hereto, the knowledge of Plaintiffs’ decedent’s employer(s)
7    was superior to that of Metropolitan Life with respect to possible health hazards associated with
8    Plaintiffs’ decedent’s employment, and, therefore, if there was any duty to warn Plaintiffs’
9    decedent, or to provide protection to him, it was the duty of said employers, not of Metropolitan
10   Life, and the breach of that duty was an intervening and/or superseding cause of the injuries
11   allegedly sustained by Plaintiffs’ decedent.
12                                ELEVENTH AFFIRMATIVE DEFENSE
13           12.    In the event that it is shown that Plaintiffs’ decedent used any product or material,
14   as alleged in the Complaint, which gave rise to the injuries as set forth therein, the same was
15   unforeseeably misused, abused, modified, altered or subjected to abnormal use.
16                                TWELFTH AFFIRMATIVE DEFENSE
17           13.    Plaintiffs’ and/or Plaintiffs’ decedent’s injuries and damages, if any, were legally
18   caused or contributed to by their unforeseeable idiosyncratic conditions, unusual susceptibilities
19   or hypersensitive reactions, for which Metropolitan Life is not liable.
20                            THIRTEENTH AFFIRMATIVE DEFENSE
21           14.    Plaintiffs’ decedent and his employer(s) were sophisticated users of products
22   containing asbestos and had, or should have had, adequate knowledge of the dangers and risks
23   associated with using or working around asbestos.
24                            FOURTEENTH AFFIRMATIVE DEFENSE
25           15.    The claims in the Complaint, and each cause of action thereof, that seek an award
26   of exemplary or punitive damages fail to state facts sufficient to constitute a cause of action
27   against Metropolitan Life.
28   / / /



                                                      3
                        METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO
                              PLAINTIFFS’ FIRST AMENDED COMPLAINT
1                               FIFTEENTH AFFIRMATIVE DEFENSE
2           16.     The claims in the Complaint, and each cause of action thereof, that seek
3    exemplary or punitive damages violate Metropolitan Life’s right to procedural due process as
4    provided in the Fifth and Fourteenth Amendments of the United States Constitution and Article
5    I, Sections 1 and 7, and all other applicable provisions, of the Constitution of the State of
6    California and any other state’s laws which may be applicable.
7                               SIXTEENTH AFFIRMATIVE DEFENSE
8           17.     The claims in the Complaint, and each cause of action thereof, that seek
9    exemplary or punitive damages violate Metropolitan Life’s right to substantive due process as
10   provided in the Fifth and Fourteenth Amendments of the United States Constitution and Article
11   I, Sections 1 and 7, and all other applicable provisions, of the Constitution of the State of
12   California and any other state’s laws which may be applicable.
13                            SEVENTEENTH AFFIRMATIVE DEFENSE
14          18.     The claims in the Complaint, and each cause of action thereof, that seek
15   exemplary or punitive damages violate Metropolitan Life’s right to equal protection under the
16   law and are otherwise unconstitutional under the Fourteenth Amendment of the United States
17   Constitution and Article I, Section 7, and all other applicable provisions, of the Constitution of
18   the State of California and any other state’s laws which may be applicable.
19                             EIGHTEENTH AFFIRMATIVE DEFENSE
20          19.     The claims in the Complaint, and each cause of action thereof, that seek
21   exemplary or punitive damages violate Metropolitan Life’s right to protection from “excessive
22   fines” as provided in Article I, Section 17 of the Constitution of the State of California and any
23   other state’s laws which may be applicable.
24                             NINETEENTH AFFIRMATIVE DEFENSE
25          20.     The actions of Metropolitan Life, as alleged in the Complaint and otherwise, were
26   within its rights under the First Amendment to the United States Constitution and Article I,
27   Section 2 of the Constitution of the State of California, and any other state’s laws which may be
28   applicable, and are fully protected thereby.



                                                       4
                         METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO
                               PLAINTIFFS’ FIRST AMENDED COMPLAINT
1                              TWENTIETH AFFIRMATIVE DEFENSE
2           21.     Plaintiffs and/or Plaintiffs’ decedent should have taken action to minimize or
3    eliminate damages, and therefore, Plaintiffs is precluded from recovering damages, or her
4    damages are reduced, by operation of the doctrine of avoidable consequences.
5                            TWENTY-FIRST AFFIRMATIVE DEFENSE
6           22.     Plaintiffs and/or Plaintiffs’ decedent unreasonably failed to mitigate their injuries
7    and/or damages, if any.
8                          TWENTY-SECOND AFFIRMATIVE DEFENSE
9           23.     Metropolitan Life did not authorize, approve, acquiesce in or ratify the alleged
10   acts or omissions attributed to it in the Complaint.
11                          TWENTY-THIRD AFFIRMATIVE DEFENSE
12          24.     Metropolitan Life cannot be held liable as a matter of law for injuries or damages
13   allegedly sustained as a result of exposure to asbestos-containing products allegedly used by or
14   near Plaintiffs’ decedent, to the extent such exposure was to asbestos-containing products
15   manufactured and distributed by others pursuant to and in strict conformity with specific
16   regulations and specifications set forth by the United States Government. Metropolitan Life
17   avers further that at all times relevant to the allegations contained in the Complaint, the products
18   allegedly containing asbestos substantially conformed to those specifications set forth and
19   approved by the United States Government, and the United States Government had actual
20   knowledge of the hazards, if any, associated with exposure to asbestos.
21                         TWENTY-FOURTH AFFIRMATIVE DEFENSE
22          25.     Metropolitan Life is entitled to a set-off or credit in the amount of any settlement
23   or compromise heretofore or hereafter reached by Plaintiffs with any other person or entity for
24   any of Plaintiffs’ alleged damages.
25                           TWENTY-FIFTH AFFIRMATIVE DEFENSE
26          26.     California Civil Code sections 1431.1 through 1431.5, commonly known as
27   “Proposition 51,” provide that the liability of each defendant for non-economic damages shall
28   be several only and shall not be joint, and Metropolitan Life therefore asserts that each



                                                       5
                         METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO
                               PLAINTIFFS’ FIRST AMENDED COMPLAINT
1    defendant may be liable only for the amount of non-economic damages allocated to that
2    defendant in direct proportion to its percentage of fault, if any.
3                            TWENTY-SIXTH AFFIRMATIVE DEFENSE
4           27.      The Complaint should be dismissed for failure of Plaintiffs to comply with the
5    provisions of the California Code of Civil Procedure section 430.10, subdivision (f).
6                          TWENTY-SEVENTH AFFIRMATIVE DEFENSE
7           28.      Plaintiffs’ and/or Plaintiffs’ decedent’s alleged injuries and damages, if any,
8    were proximately caused by or contributed to by exposure or inhalation of noxious and
9    deleterious fumes and residues from industrial products or by-products prevalent on Plaintiffs’
10   decedent’s job sites, by the cumulative effects of exposure to all types of environmental and
11   industrial pollutants of air and water, or by substances, products, or other causes not attributable
12   to or connected with Metropolitan Life.
13                          TWENTY-EIGHTH AFFIRMATIVE DEFENSE
14          29.      Metropolitan Life would show unto the Court that multiple awards of punitive
15   damages against it would violate Article I, Section 7 of the Constitution of the State of
16   California; the prohibition against being twice placed in jeopardy for the same offense
17   embodied in the Fifth and Fourteenth Amendments to the United States Constitution and the
18   common law of the State of California, and any other state’s laws which may be applicable.
19                           TWENTY-NINTH AFFIRMATIVE DEFENSE
20          30.      The Complaint fails to name both necessary and indispensable parties in whose
21   absence complete relief cannot be accorded among those already parties. Therefore, this action
22   must be dismissed, or, alternatively, the action should be stayed pending other appropriate relief
23   by the Court.
24                              THIRTIETH AFFIRMATIVE DEFENSE
25          31.      Plaintiffs’ claims are barred in whole or in part by the exclusivity principles
26   embodied in California’s Workers’ Compensation Act.
27                            THIRTY-FIRST AFFIRMATIVE DEFENSE
28          32.      Plaintiffs’ decedent’s employer’s lack of reasonable care or other wrongful



                                                       6
                         METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO
                               PLAINTIFFS’ FIRST AMENDED COMPLAINT
1    conduct was the sole cause of, or contributed to, Plaintiffs’ damages. Therefore, Plaintiffs’
2    recovery, if any, from Metropolitan Life must be reduced by the amount of workers’
3    compensation benefits paid by or on behalf of such employer.
4                           THIRTY-SECOND AFFIRMATIVE DEFENSE
5           33.     Plaintiffs’ and/or Plaintiffs’ decedent’s losses, if any, were proximately caused
6    by the negligence and fault of Plaintiffs and/or Plaintiffs’ decedent, or other parties hereto, and
7    of third parties, not by any act or omission of Metropolitan Life.
8                             THIRTY-THIRD AFFIRMATIVE DEFENSE
9           34.     Metropolitan Life owed no duty to Plaintiffs or Plaintiffs’ decedent with respect
10   to the actions for which liability is alleged in the Complaint.
11                           THIRTY-FOURTH AFFIRMATIVE DEFENSE
12          35.     Metropolitan Life would show unto the Court that the events which allegedly
13   form the basis for Plaintiffs’ alleged causes of action against Metropolitan Life arose prior to the
14   elimination of the common law privity requirement in negligence and strict liability actions. As
15   such, Plaintiffs is subject to the common law requirement that they and/or Plaintiffs’ decedent be
16   in privity with Metropolitan Life. Inasmuch as no such privity existed, Metropolitan Life is not a
17   proper party to this action.
18                            THIRTY-FIFTH AFFIRMATIVE DEFENSE
19          36.     Plaintiffs’ claims are barred by Plaintiffs’ and/or Plaintiffs’ decedent’s
20   contributory and/or comparative negligence and/or assumption of risk, and/or any other
21   affirmative defense asserted herein.
22                            THIRTY-SIXTH AFFIRMATIVE DEFENSE
23          37.     The claims of Plaintiffs’ decedent’s spouse, if any, are barred by Plaintiffs’
24   decedent’s contributory and/or comparative negligence and/or assumption of risk and/or any
25   other defense asserted herein.
26                         THIRTY-SEVENTH AFFIRMATIVE DEFENSE
27          38.     Plaintiffs’ claims should be denied to the extent they are barred by the operation
28   of the doctrine of accord and satisfaction.



                                                       7
                         METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO
                               PLAINTIFFS’ FIRST AMENDED COMPLAINT
1                           THIRTY-EIGHTH AFFIRMATIVE DEFENSE
2           39.     Plaintiffs’ claims should be denied to the extent they are barred by the operation
3    of the doctrine of release and settlement.
4                            THIRTY-NINTH AFFIRMATIVE DEFENSE
5           40.     Plaintiffs’ claims should be denied to the extent they are barred by the operation
6    of the doctrine of payment.
7                               FORTIETH AFFIRMATIVE DEFENSE
8           41.     If all or most of the witnesses to the alleged asbestos exposure of Plaintiffs’
9    decedent reside outside of California, travel to and from this forum by witnesses and counsel for
10   necessary discovery and trial would place an undue burden upon Metropolitan Life.
11   Furthermore, this Court may be required under principles of conflicts of law to apply foreign
12   law, with which this Court and California counsel are unfamiliar. Therefore, the Complaint
13   should be dismissed under the doctrine of forum non conveniens.
14                            FORTY-FIRST AFFIRMATIVE DEFENSE
15          42.     Plaintiffs’ right to recover for their and/or Plaintiffs’ decedent’s injuries and
16   damages, if any, under any cause of action in their Complaint, is barred by the laws of other
17   jurisdictions that may be applied to Plaintiffs’ action under the “choice of laws” doctrine.
18                          FORTY-SECOND AFFIRMATIVE DEFENSE
19          43.     Plaintiffs’ Complaint, and each cause of action therein, is expressly and/or
20   impliedly preempted by federal law.
21                           FORTY-THIRD AFFIRMATIVE DEFENSE
22          44.     Metropolitan Life hereby reserves its right to assert any other applicable
23   affirmative defenses supported by the evidence.
24          WHEREFORE, Metropolitan Life prays for judgment as follows:
25                  (a)     That Plaintiffs take nothing by way of the Complaint;
26                  (b)     That the Complaint be dismissed with prejudice as to Metropolitan
27                          Life;
28                  (c)     That Plaintiffs’ demands for relief be denied in every respect;



                                                       8
                          METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO
                                PLAINTIFFS’ FIRST AMENDED COMPLAINT
1                (d)     That Metropolitan Life be awarded costs incurred in connection
2                        with this litigation; and
3                (e)     That the Court grant such other and further relief as may be just,
4                        proper, and equitable.
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6    DATED: October 5, 2020              STEPTOE & JOHNSON LLP
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8                                        By: _________________________________
                                               Steven J. Barber
9                                              Erika R. Aspericueta
                                               Attorneys for Defendant
10                                             METROPOLITAN LIFE INSURANCE
                                               COMPANY
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                                                     9
                       METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO
                             PLAINTIFFS’ FIRST AMENDED COMPLAINT
1                        PROOF OF SERVICE VIA FILEANDSERVEXPRESS
                           F.R.C.P. 5 / C.C.P. § 1013a(3)/ Cal. R. Ct. R. 2.260
2
3             I am a resident of, or employed in, the County of Los Angeles. I am over the age of 18
4    and not a party to this action. My business address is: Steptoe & Johnson LLP, 633 West Fifth
5    Street, Suite 1900, Los Angeles, California 90071.
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7             On October 5, 2020, I electronically served the following listed document(s) via File
8    and Serve Xpress described as: METROPOLITAN LIFE INSURANCE COMPANY’S
9    ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL,
10   WRONGFUL DEATH– ASBESTOS on the recipients designated on the Transaction Receipt
11   located on the File & Serve Xpress website: www.fileandservexpress.com. To my knowledge,
12   the transmission was reported as complete and without error. See Cal. R. Ct. R. 2.253, 2.255,
13   2.260.
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15            I declare under penalty of perjury under the laws of the State of California and the
16   United States of America that the above is true and correct. Executed on October 5, 2020 at
17   Los Angeles, California.
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20   ELENA HERNANDEZ
21   Type or Print Name                             Signature

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                                                      10
                          METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO
                                PLAINTIFFS’ FIRST AMENDED COMPLAINT