On December 11, 2019 a
Answer
was filed
involving a dispute between
Blake, Victoria,
French, Susan,
Mcclary, Steven,
Niskanen, Valeri,
Ortegon, Tamlyn,
and
3M Company,
A.J. Peters & Son,
Aladdin Heating Corporation,
Anderson, Rowe & Buckley, Inc.,
Asbestos Corporation Limited,
Brand Insulations, Inc., Individually And As,
Chicago Bridge & Iron Company,
Consolidated Insulation, Inc., A Dissolved,
Contra Costa Electric, Inc.,
Cooper Bros., Inc.,
Cooper Brothers, Inc.,
Cosco Fire Protection, Inc.,
Dillingham Construction N.A., Inc.,
Does 1 Through 800, Inclusive, As Required By,
Douglass Insulation Company, Inc.,
Dow Chemical Company, The,
D. Zelinsky & Son, Incorporated,
D. Zelinsky & Sons, Inc.,
Fdcc California, Inc.,
Fluor Corporation,
Frank Bonetti Plumbing, Inc.,
General Electric Company,
Golden Gate Drywall,
Goulds Pumps Llc,
Grinnell Llc,
Imo Industries Inc.,
Ingersoll-Rand Company,
International Business Machines Corporation,
James A. Nelson Co., Inc.,
Johnson Controls, Inc.,
Kelly-Moore Paint Company, Inc.,
Marconi Plastering Company, Inc.,
Metalclad Insulation Llc,
Metropolitan Life Insurance Company,
N.V. Heathorn, Inc.,
O C Mcdonald Co Inc,
O.C. Mcdonald Company, Inc.,
Oscar E. Erickson, Inc.,
Pfizer, Inc.,
Riley Power Inc.,
Riley Power Inc., (Erroneously Sued As Alternate,
Robertshaw Controls Company,
Rosendin Electric, Inc.,
Sam P. Wallace Company, Inc.,
Scott Co. Of California,
Shell Oil Company,
S.J. Amoroso Construction Co., Inc.,
S.J. Amoroso Construction Co., Llc.,
Therma Corporation,
Trane U.S. Inc.,
Union Oil Company Of California,
University Mechanical & Engineering Contractors,,
Valley Sheet Metal Co.,
Veolia Es Industrial Services, Inc.,
Viacomcbs Inc,
Viacomcbs, Inc. F K A Cbs Corporation, A Delaware,
W.L. Hickey Sons, Inc.,
for ASBESTOS
in the District Court of San Francisco County.
Preview
1 GABRIEL JACKSON, State Bar No. 98119
gaby@wfbm.com
2 PETER RENSTROM, State Bar No. 148459 ELECTRONICALLY
prenstrom@wfbm.com
3 TODD M. THACKER, State Bar No. 199506 FILED
Superior Court of California,
tthacker@wfbm.com County of San Francisco
4 WALSWORTH WFBM, LLP
601 Montgomery Street, Ninth Floor 09/04/2020
Clerk of the Court
5 San Francisco, California 94111-2612 BY: BOWMAN LIU
Telephone: (415) 781-7072 Deputy Clerk
6 Facsimile: (415) 391-6258
7 Attorneys for Defendant
COSCO FIRE PROTECTION, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 VALERI NISKANEN, as Successor-in- ASBESTOS
Interest to and as Wrongful Death Heir of Case No. CGC-19-276813
Walsworth
13 BILLY JOE McCLARY, Deceased, and
VICTORIA BLAKE, TAMLYN ORTEGON, Assigned Judge: Hon. Cynthia Ming-mei Lee
14 SUSAN FRENCH and STEVEN McCLARY, Department 503
as Wrongful Death Heirs of BILLY JOE
15 McCLARY, Deceased, DEFENDANT COSCO FIRE
PROTECTION, INC.'S ANSWER TO
16 Plaintiffs, PLAINTIFFS' FIRST AMENDED
COMPLAINT FOR SURVIVAL,
17 v. WRONGFUL DEATH - ASBESTOS
18 KELLY-MOORE PAINT COMPANY, INC. Action Filed: December 11 2019
et al.,
19
Defendants.
20
21 DEFENDANT COSCO FIRE PROTECTION, INC. ("Defendant") answer to Plaintiffs'
22 First Amended Complaint for Survival, Wrongful Death - Asbestos ("Complaint") herein on its
23 own behalf and on behalf of no other defendant or entity as follows:
24 Pursuant to California Code of Civil Procedure section 431.30, subdivision (d), Defendant
25 denies generally each and every allegation of the Complaint.
26 FIRST AFFIRMATIVE DEFENSE
27 Neither the Complaint nor any purported cause of action alleged by the plaintiffs therein
28 states facts sufficient to constitute a cause of action against Defendant.
-1-
COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL,
WRONGFUL DEATH
1 SECOND AFFIRMATIVE DEFENSE
2 To the extent the Complaint asserts Defendant's alleged "market share" liability, or
3 "enterprise liability," the Complaint fails to state facts sufficient to constitute a cause of action
4 against Defendant.
5 THIRD AFFIRMATIVE DEFENSE
6 Neither the Complaint nor any purported cause of action alleged therein states facts
7 sufficient to entitle plaintiffs to an award of punitive damages against Defendant.
8 FOURTH AFFIRMATIVE DEFENSE
9 The imposition of any punitive damages in this matter would deprive Defendant of its
10 property without due process of law under the California Constitution and United States
11 Constitution.
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 FIFTH AFFIRMATIVE DEFENSE
Walsworth
13 The imposition of any punitive damages in this matter would violate the United States
14 Constitution's prohibition against laws impairing the obligation of contracts.
15 SIXTH AFFIRMATIVE DEFENSE
16 The imposition of any punitive damages in this matter would constitute a criminal fine or
17 penalty and should, therefore, be remitted on the ground that the award violates the United States
18 Constitution.
19 SEVENTH AFFIRMATIVE DEFENSE
20 Plaintiffs’ action, and each alleged cause of action, is barred by the applicable statute of
21 limitations, including but not limited to California Code of Civil Procedure, sections 338(1),
22 338(4), 339(1), 340(1), 340(3), 340.2, 343 and 353 and California Commercial Code, section
23 2725.
24 EIGHTH AFFIRMATIVE DEFENSE
25 Plaintiffs unreasonably delayed in bringing this action, without good cause therefore, and
26 thereby has prejudiced Defendant as a direct and proximate result of such delay; accordingly, his
27 action is barred by laches and by Section 583 et. seq. of the Code of Civil Procedure.
28 / / /
-2-
COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL,
WRONGFUL DEATH
1 NINTH AFFIRMATIVE DEFENSE
2 Plaintiffs was negligent in and about the matters alleged in the Complaint and in each
3 alleged cause of action; this negligence proximately caused, in whole or in part, the damages
4 alleged in the Complaint. In the event plaintiffs are entitled to any damages, the amount of these
5 damages should be reduced by the comparative fault of plaintiffs and any person whose negligent
6 acts or omissions are imputed to DECEDENT BILLY JOE McCLARY ("Decedent").
7 TENTH AFFIRMATIVE DEFENSE
8 Plaintiffs knowingly, voluntarily and unreasonably undertook to encounter each of the
9 risks and hazards, if any, referred to in the Complaint and each alleged cause of action, and this
10 undertaking proximately caused and contributed to any loss, injury or damages incurred by
11 decedent.
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 ELEVENTH AFFIRMATIVE DEFENSE
Walsworth
13 Any loss, injury or damage incurred by plaintiffs was proximately caused by the negligent
14 or willful acts or omissions of parties whom Defendant neither controlled nor had the right to
15 control, and was not proximately caused by any acts, omissions or other conduct of Defendant.
16 TWELFTH AFFIRMATIVE DEFENSE
17 The products referred to in the Complaint were misused, abused or altered by plaintiffs or
18 by others; the misuse, abuse or alteration was not reasonably foreseeable to Defendant, and
19 proximately caused any loss, injury or damages incurred by decedent.
20 THIRTEENTH AFFIRMATIVE DEFENSE
21 Defendants deny any and all liability to the extent that plaintiffs assert Defendant's alleged
22 liability as a successor, successor in business, successor in product line or a portion thereof,
23 assign, predecessor, predecessor in business, predecessor in product line or a portion thereof,
24 parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial owner of or
25 member in an entity researching, studying, manufacturing, fabricating, designing, labeling,
26 assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing,
27 contracting for installation, repairing, marketing, warranting, rebranding, manufacturing for
28 others, packaging and advertising a certain substance, the generic name of which is asbestos.
-3-
COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL,
WRONGFUL DEATH
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 Plaintiffs failed to exercise due diligence to mitigate his loss, injury or damages;
3 accordingly, the amount of damages to which plaintiffs is entitled, if any, should be reduced by the
4 amount of damages which would have otherwise been mitigated.
5 FIFTEENTH AFFIRMATIVE DEFENSE
6 The Court lacks subject matter jurisdiction over the matters alleged in the Complaint
7 because the Complaint and each alleged cause of action against Defendant are barred by the
8 provisions of California Labor Code, section 3600, et seq.
9 SIXTEENTH AFFIRMATIVE DEFENSE
10 Defendant alleges that at the time of the injuries alleged in the Complaint, plaintiffs was
11 employed and was entitled to receive Workers' Compensation benefits from his employer's
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 workers' compensation insurance carrier; that all of plaintiff's employers, other than Defendant,
Walsworth
13 were negligent in and about the matters referred to in said Complaint, and that such negligence on
14 the part of said employers proximately and concurrently contributed to the happening of the
15 accident and to the loss or damage complained of by decedent, if any there were; and that by
16 reason thereof Defendant is entitled to set off and/or reduce any such workers' compensation
17 benefits received or to be received by plaintiffs against any judgment which may be rendered in
18 favor of decedent. (Witt v. Jackson, (1961) 57 Cal.2d 57.)
19 SEVENTEENTH AFFIRMATIVE DEFENSE
20 Defendant alleges that at the time of the injuries alleged in the Complaint, plaintiff's
21 employers were negligent in and about the matters referred to in said Complaint, and that such
22 negligence on the part of said employers proximately and concurrently contributed to any loss or
23 damage, including noneconomic damages, complained of by decedent, if any there were; and that
24 Defendant is not liable for said employers' proportionate share of non-economic damages.
25 EIGHTEENTH AFFIRMATIVE DEFENSE
26 Defendant alleges that at the time of the injuries alleged in the Complaint, parties other
27 than this Defendant were negligent in and about the matters referred to in said Complaint, and that
28 such negligence on the part of said parties proximately and concurrently contributed to any loss or
-4-
COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL,
WRONGFUL DEATH
1 damage, including non-economic damages, complained of by decedent, if any there were; and that
2 Defendant herein shall not be liable for said parties' proportionate share of non-economic
3 damages.
4 NINETEENTH AFFIRMATIVE DEFENSE
5 Defendant alleges that at all times relative to matters alleged in the Complaint, all of
6 decedent's employers, other than Defendant, were sophisticated users of asbestos-containing
7 products and said employers' negligence in providing the product to its employees in a negligent,
8 careless and reckless manner was a superseding cause of decedent's injuries, if any.
9 TWENTIETH AFFIRMATIVE DEFENSE
10 If plaintiffs have received, or in the future may receive, Worker's Compensation benefits
11 from Defendant under the Labor Code of the State of California as a consequence of the alleged
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 industrial injury referred to in the Complaint, and in the event plaintiffs are awarded damages
Walsworth
13 against Defendant, Defendant claims a credit against this award to the extent that Defendant is
14 barred from enforcing his rights to reimbursement for Worker's Compensation benefits that
15 plaintiffs have received or may in the future receive.
16 TWENTY-FIRST AFFIRMATIVE DEFENSE
17 If plaintiffs have received, or in the future may receive Worker's Compensation benefits
18 from Defendant under the Labor Code of the State of California as a consequence of the alleged
19 industrial injury referred to in the Complaint, Defendant demands repayment of any such Worker's
20 Compensation benefits in the event that plaintiffs recovers tort damages as a result of the industrial
21 injury allegedly involved here. Although Defendant denies the validity of plaintiffs’ claims, in the
22 event those claims are held valid and not barred by the statute of limitations or otherwise,
23 Defendant asserts that cross-demands for money have existed between plaintiffs and Defendant
24 and the demands are compensated, so far as they equal each other, pursuant to California Code of
25 Civil Procedure, section 431.70.
26 TWENTY-SECOND AFFIRMATIVE DEFENSE
27 At all times and places in the Complaint, plaintiffs were not in privity of contract with
28 Defendant and said lack of privity bars plaintiffs’ recovery herein upon any theory of warranty.
-5-
COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL,
WRONGFUL DEATH
1 TWENTY-THIRD AFFIRMATIVE DEFENSE
2 Plaintiffs are barred from recovery in that all products produced by Defendant were in
3 conformity with the existing state-of-the-art, and as a result, these products were not defective in
4 any manner.
5 TWENTY-FOURTH AFFIRMATIVE DEFENSE
6 The Defendant did not and does not have a substantial percentage of the market for the
7 asbestos-containing products which allegedly caused plaintiffs’ injuries. Therefore, Defendant
8 may not be held liable to plaintiffs based on this Defendant's alleged percentage share of the
9 applicable market.
10 WHEREFORE, Defendant prays:
11 (1) Plaintiffs take nothing by their Complaint;
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 (2) That Judgment be entered in favor of Defendant;
Walsworth
13 (3) For recovery of Defendant's costs of suit;
14 (4) For appropriate credits and set-offs arising out of any payment of Worker's
15 Compensation benefits as alleged above; and
16 (5) For such other and further relief as the Court deems just and proper.
17 Dated: September 4, 2020 WALSWORTH WFBM, LLP
18
19
By:
20
TODD M. THACKER
21 Attorneys for Defendant
COSCO FIRE PROTECTION, INC.
22
23
24
25
26
27
28
-6-
COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL,
WRONGFUL DEATH
1 PROOF OF SERVICE
Valeri Niskanen (WD: Billy Joe McClary), et al. v. Kelly-Moore Paint Company, Inc., et al.
2 San Francisco County Superior Court Case No. CGC-19-276813
Our client: Defendant Cosco Fire Protection, Inc.
3
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
4
I, Eva Luna, declare that at the time of service, I was over 18 years of age and not a party
5 to this action. I am employed in the County of San Francisco, State of California. My business
address is WFBM, LLP at 601 Montgomery Street, Ninth Floor, San Francisco, CA 94111-2612.
6
On September 4, 2020, I served true copies of the following document(s) described as
7 DEFENDANT COSCO FIRE PROTECTION, INC.'S ANSWER TO PLAINTIFFS' FIRST
AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS in this
8 action as follows:
9 SERVICE LIST
10 David R. Donadio **Please see File & ServeXpress service list**
BRAYTON & PURCELL LLP
11 222 Rush Landing Road
P.O. Box 6169
SAN FRANCISCO, CALIFORNIA 94111-2612
601 MONTGOMERY STREET, NINTH FLOOR
TEL (415) 781-7072 • FAX (415) 391-6258
12 Novato, CA 94948-6169
T: 415-898-1555
Walsworth
13 Attorneys for Plaintiffs
14
BY ELECTRONIC SERVICE: I electronically served the document(s) described above
15 via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the
File & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order
16 establishing the case website and authorizing service of documents.
17 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
18
Executed on September 4, 2020, at San Francisco, California.
19
20
21
Eva Luna
22
Preview
1 GABRIEL JACKSON, State Bar No. 98119 gaby@wfbm.com 2 PETER RENSTROM, State Bar No. 148459 ELECTRONICALLY prenstrom@wfbm.com 3 TODD M. THACKER, State Bar No. 199506 FILED Superior Court of California, tthacker@wfbm.com County of San Francisco 4 WALSWORTH WFBM, LLP 601 Montgomery Street, Ninth Floor 09/04/2020 Clerk of the Court 5 San Francisco, California 94111-2612 BY: BOWMAN LIU Telephone: (415) 781-7072 Deputy Clerk 6 Facsimile: (415) 391-6258 7 Attorneys for Defendant COSCO FIRE PROTECTION, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 VALERI NISKANEN, as Successor-in- ASBESTOS Interest to and as Wrongful Death Heir of Case No. CGC-19-276813 Walsworth 13 BILLY JOE McCLARY, Deceased, and VICTORIA BLAKE, TAMLYN ORTEGON, Assigned Judge: Hon. Cynthia Ming-mei Lee 14 SUSAN FRENCH and STEVEN McCLARY, Department 503 as Wrongful Death Heirs of BILLY JOE 15 McCLARY, Deceased, DEFENDANT COSCO FIRE PROTECTION, INC.'S ANSWER TO 16 Plaintiffs, PLAINTIFFS' FIRST AMENDED COMPLAINT FOR SURVIVAL, 17 v. WRONGFUL DEATH - ASBESTOS 18 KELLY-MOORE PAINT COMPANY, INC. Action Filed: December 11 2019 et al., 19 Defendants. 20 21 DEFENDANT COSCO FIRE PROTECTION, INC. ("Defendant") answer to Plaintiffs' 22 First Amended Complaint for Survival, Wrongful Death - Asbestos ("Complaint") herein on its 23 own behalf and on behalf of no other defendant or entity as follows: 24 Pursuant to California Code of Civil Procedure section 431.30, subdivision (d), Defendant 25 denies generally each and every allegation of the Complaint. 26 FIRST AFFIRMATIVE DEFENSE 27 Neither the Complaint nor any purported cause of action alleged by the plaintiffs therein 28 states facts sufficient to constitute a cause of action against Defendant. -1- COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH 1 SECOND AFFIRMATIVE DEFENSE 2 To the extent the Complaint asserts Defendant's alleged "market share" liability, or 3 "enterprise liability," the Complaint fails to state facts sufficient to constitute a cause of action 4 against Defendant. 5 THIRD AFFIRMATIVE DEFENSE 6 Neither the Complaint nor any purported cause of action alleged therein states facts 7 sufficient to entitle plaintiffs to an award of punitive damages against Defendant. 8 FOURTH AFFIRMATIVE DEFENSE 9 The imposition of any punitive damages in this matter would deprive Defendant of its 10 property without due process of law under the California Constitution and United States 11 Constitution. SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 FIFTH AFFIRMATIVE DEFENSE Walsworth 13 The imposition of any punitive damages in this matter would violate the United States 14 Constitution's prohibition against laws impairing the obligation of contracts. 15 SIXTH AFFIRMATIVE DEFENSE 16 The imposition of any punitive damages in this matter would constitute a criminal fine or 17 penalty and should, therefore, be remitted on the ground that the award violates the United States 18 Constitution. 19 SEVENTH AFFIRMATIVE DEFENSE 20 Plaintiffs’ action, and each alleged cause of action, is barred by the applicable statute of 21 limitations, including but not limited to California Code of Civil Procedure, sections 338(1), 22 338(4), 339(1), 340(1), 340(3), 340.2, 343 and 353 and California Commercial Code, section 23 2725. 24 EIGHTH AFFIRMATIVE DEFENSE 25 Plaintiffs unreasonably delayed in bringing this action, without good cause therefore, and 26 thereby has prejudiced Defendant as a direct and proximate result of such delay; accordingly, his 27 action is barred by laches and by Section 583 et. seq. of the Code of Civil Procedure. 28 / / / -2- COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH 1 NINTH AFFIRMATIVE DEFENSE 2 Plaintiffs was negligent in and about the matters alleged in the Complaint and in each 3 alleged cause of action; this negligence proximately caused, in whole or in part, the damages 4 alleged in the Complaint. In the event plaintiffs are entitled to any damages, the amount of these 5 damages should be reduced by the comparative fault of plaintiffs and any person whose negligent 6 acts or omissions are imputed to DECEDENT BILLY JOE McCLARY ("Decedent"). 7 TENTH AFFIRMATIVE DEFENSE 8 Plaintiffs knowingly, voluntarily and unreasonably undertook to encounter each of the 9 risks and hazards, if any, referred to in the Complaint and each alleged cause of action, and this 10 undertaking proximately caused and contributed to any loss, injury or damages incurred by 11 decedent. SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 ELEVENTH AFFIRMATIVE DEFENSE Walsworth 13 Any loss, injury or damage incurred by plaintiffs was proximately caused by the negligent 14 or willful acts or omissions of parties whom Defendant neither controlled nor had the right to 15 control, and was not proximately caused by any acts, omissions or other conduct of Defendant. 16 TWELFTH AFFIRMATIVE DEFENSE 17 The products referred to in the Complaint were misused, abused or altered by plaintiffs or 18 by others; the misuse, abuse or alteration was not reasonably foreseeable to Defendant, and 19 proximately caused any loss, injury or damages incurred by decedent. 20 THIRTEENTH AFFIRMATIVE DEFENSE 21 Defendants deny any and all liability to the extent that plaintiffs assert Defendant's alleged 22 liability as a successor, successor in business, successor in product line or a portion thereof, 23 assign, predecessor, predecessor in business, predecessor in product line or a portion thereof, 24 parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial owner of or 25 member in an entity researching, studying, manufacturing, fabricating, designing, labeling, 26 assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, 27 contracting for installation, repairing, marketing, warranting, rebranding, manufacturing for 28 others, packaging and advertising a certain substance, the generic name of which is asbestos. -3- COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 Plaintiffs failed to exercise due diligence to mitigate his loss, injury or damages; 3 accordingly, the amount of damages to which plaintiffs is entitled, if any, should be reduced by the 4 amount of damages which would have otherwise been mitigated. 5 FIFTEENTH AFFIRMATIVE DEFENSE 6 The Court lacks subject matter jurisdiction over the matters alleged in the Complaint 7 because the Complaint and each alleged cause of action against Defendant are barred by the 8 provisions of California Labor Code, section 3600, et seq. 9 SIXTEENTH AFFIRMATIVE DEFENSE 10 Defendant alleges that at the time of the injuries alleged in the Complaint, plaintiffs was 11 employed and was entitled to receive Workers' Compensation benefits from his employer's SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 workers' compensation insurance carrier; that all of plaintiff's employers, other than Defendant, Walsworth 13 were negligent in and about the matters referred to in said Complaint, and that such negligence on 14 the part of said employers proximately and concurrently contributed to the happening of the 15 accident and to the loss or damage complained of by decedent, if any there were; and that by 16 reason thereof Defendant is entitled to set off and/or reduce any such workers' compensation 17 benefits received or to be received by plaintiffs against any judgment which may be rendered in 18 favor of decedent. (Witt v. Jackson, (1961) 57 Cal.2d 57.) 19 SEVENTEENTH AFFIRMATIVE DEFENSE 20 Defendant alleges that at the time of the injuries alleged in the Complaint, plaintiff's 21 employers were negligent in and about the matters referred to in said Complaint, and that such 22 negligence on the part of said employers proximately and concurrently contributed to any loss or 23 damage, including noneconomic damages, complained of by decedent, if any there were; and that 24 Defendant is not liable for said employers' proportionate share of non-economic damages. 25 EIGHTEENTH AFFIRMATIVE DEFENSE 26 Defendant alleges that at the time of the injuries alleged in the Complaint, parties other 27 than this Defendant were negligent in and about the matters referred to in said Complaint, and that 28 such negligence on the part of said parties proximately and concurrently contributed to any loss or -4- COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH 1 damage, including non-economic damages, complained of by decedent, if any there were; and that 2 Defendant herein shall not be liable for said parties' proportionate share of non-economic 3 damages. 4 NINETEENTH AFFIRMATIVE DEFENSE 5 Defendant alleges that at all times relative to matters alleged in the Complaint, all of 6 decedent's employers, other than Defendant, were sophisticated users of asbestos-containing 7 products and said employers' negligence in providing the product to its employees in a negligent, 8 careless and reckless manner was a superseding cause of decedent's injuries, if any. 9 TWENTIETH AFFIRMATIVE DEFENSE 10 If plaintiffs have received, or in the future may receive, Worker's Compensation benefits 11 from Defendant under the Labor Code of the State of California as a consequence of the alleged SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 industrial injury referred to in the Complaint, and in the event plaintiffs are awarded damages Walsworth 13 against Defendant, Defendant claims a credit against this award to the extent that Defendant is 14 barred from enforcing his rights to reimbursement for Worker's Compensation benefits that 15 plaintiffs have received or may in the future receive. 16 TWENTY-FIRST AFFIRMATIVE DEFENSE 17 If plaintiffs have received, or in the future may receive Worker's Compensation benefits 18 from Defendant under the Labor Code of the State of California as a consequence of the alleged 19 industrial injury referred to in the Complaint, Defendant demands repayment of any such Worker's 20 Compensation benefits in the event that plaintiffs recovers tort damages as a result of the industrial 21 injury allegedly involved here. Although Defendant denies the validity of plaintiffs’ claims, in the 22 event those claims are held valid and not barred by the statute of limitations or otherwise, 23 Defendant asserts that cross-demands for money have existed between plaintiffs and Defendant 24 and the demands are compensated, so far as they equal each other, pursuant to California Code of 25 Civil Procedure, section 431.70. 26 TWENTY-SECOND AFFIRMATIVE DEFENSE 27 At all times and places in the Complaint, plaintiffs were not in privity of contract with 28 Defendant and said lack of privity bars plaintiffs’ recovery herein upon any theory of warranty. -5- COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH 1 TWENTY-THIRD AFFIRMATIVE DEFENSE 2 Plaintiffs are barred from recovery in that all products produced by Defendant were in 3 conformity with the existing state-of-the-art, and as a result, these products were not defective in 4 any manner. 5 TWENTY-FOURTH AFFIRMATIVE DEFENSE 6 The Defendant did not and does not have a substantial percentage of the market for the 7 asbestos-containing products which allegedly caused plaintiffs’ injuries. Therefore, Defendant 8 may not be held liable to plaintiffs based on this Defendant's alleged percentage share of the 9 applicable market. 10 WHEREFORE, Defendant prays: 11 (1) Plaintiffs take nothing by their Complaint; SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 (2) That Judgment be entered in favor of Defendant; Walsworth 13 (3) For recovery of Defendant's costs of suit; 14 (4) For appropriate credits and set-offs arising out of any payment of Worker's 15 Compensation benefits as alleged above; and 16 (5) For such other and further relief as the Court deems just and proper. 17 Dated: September 4, 2020 WALSWORTH WFBM, LLP 18 19 By: 20 TODD M. THACKER 21 Attorneys for Defendant COSCO FIRE PROTECTION, INC. 22 23 24 25 26 27 28 -6- COSCO FIRE PROTECTION, INC.'S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH 1 PROOF OF SERVICE Valeri Niskanen (WD: Billy Joe McClary), et al. v. Kelly-Moore Paint Company, Inc., et al. 2 San Francisco County Superior Court Case No. CGC-19-276813 Our client: Defendant Cosco Fire Protection, Inc. 3 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 4 I, Eva Luna, declare that at the time of service, I was over 18 years of age and not a party 5 to this action. I am employed in the County of San Francisco, State of California. My business address is WFBM, LLP at 601 Montgomery Street, Ninth Floor, San Francisco, CA 94111-2612. 6 On September 4, 2020, I served true copies of the following document(s) described as 7 DEFENDANT COSCO FIRE PROTECTION, INC.'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT FOR SURVIVAL, WRONGFUL DEATH – ASBESTOS in this 8 action as follows: 9 SERVICE LIST 10 David R. Donadio **Please see File & ServeXpress service list** BRAYTON & PURCELL LLP 11 222 Rush Landing Road P.O. Box 6169 SAN FRANCISCO, CALIFORNIA 94111-2612 601 MONTGOMERY STREET, NINTH FLOOR TEL (415) 781-7072 • FAX (415) 391-6258 12 Novato, CA 94948-6169 T: 415-898-1555 Walsworth 13 Attorneys for Plaintiffs 14 BY ELECTRONIC SERVICE: I electronically served the document(s) described above 15 via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order 16 establishing the case website and authorizing service of documents. 17 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 18 Executed on September 4, 2020, at San Francisco, California. 19 20 21 Eva Luna 22