Answer: NANCY MARIE SCOTT et al VS. AC AND S, INC. et al

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San Francisco Superior Courts
Information Technology Group

Document Scanning Lead Sheet
Feb-28-2006 1:58 pm

Case Number: CGC-05-443236
Filing Date: Feb-28-2006 1:56

Juke Box: 001 Image: 01393596
ANSWER

NANCY MARIE SCOTT et al VS. AC AND S, INC. et al

001001393596

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WO3S51.1 58521022

MARK A. LOVE (SBN 162028)
ERIN S. MCGAHEY (SBN 220610)
SELMAN BREITMAN LLP

33 New Montgomery, Sixth Floor
San Francisco, CA 94105
Telephone: (415) 979-0400
Facsimile: (415) 979-2099

Attomeys for Defendant
DARCOID COMPANY OF CALIFORNIA

F

IL

FILED

‘Superior Court

FEB 2 8 2005
m CORDON PARK-LI, Clerk

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

NANCY SCOTT, et al.,
Plaintiffs,
vy,

ACandS INC., et al.,

Defendants.

‘Deputy Clerk

CASENO. 443236

DEFENDANT’S ANSWER TO
PLAINTIFF'S COMPLAINT

WRONGFUL DEATH AND LOSS OF
CONSORTIUM- ASBESTOS

Defendant DARCOID COMPANY OF CALIFORNIA (herein "Defendant")

answers plaintiffs' unverified complaint on its own behalf and on behalf of no other

defendant or entity as follows:

Pursuant to California Code of Civil Procedure section 431.30(d), Defendant denies

generally each and every allegation of the Complaint.
FIRST AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged by the plaintiff

therein states facts sufficient to constitute a cause of action against Defendant.

SECOND AFFIRMATIVE DEFENSE

To the extent the Complaint asserts Defendant’s alleged “market share” liability, or

“enterprise liability,” the Complaint fails to state facts sufficient to constitute a cause of

action against Defendant.

ANSWER TO PLAINTIFFS’ COMPLAINT-ASBESTOS_

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THIRD AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged therein states facts

sufficient to entitle plaintiff to an award of punitive damages against Defendant.
FOURTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would deprive Defendant of

its property without due process of law under the California Constitution and United States
Constitution.

FIFTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would violate the United
States Constitution’s prohibition against laws impairing the obligation of contracts.
SIXTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would constitute a criminal

fine or penalty and should, therefore, be remitted on the ground that the award violates the
United States Constitution.
SEVENTH AFFIRMATIVE DEFENSE

Plaintiff's action, and each alleged cause of action, is barred by the applicable
statute of limitations, including but not limited to California Code of Civil Procedure
sections 338(1), 338(4), 339(1), 340(1), 340(3), 340.2, 343, 353, 583.110, 583.210,
583.310 and 583.410 and California Commercial Code section 2725.

EIGHTH AFFIRMATIVE DEFENSE

Plaintiff unreasonably delayed in bringing this action, without good cause therefor,
and thereby has prejudiced Defendant as a direct and proximate result of such delay;
accordingly, this action is barred by laches.

NINTH AFFIRMATIVE DEFENSE

Plaintiff was negligent in and about the matters alleged in the Complaint and in
each alleged cause of action; this negligence proximately caused, in whole or in part, the
damages alleged in the Complaint. In the event plaintiff is entitled to any damages, the
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ANSWER TO PLAINTIFFS' COMPLAINT-ASBESTOS2
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amount of these damages should be reduced by the comparative fault of plaintiff and any
person whose negligent acts or omissions are imputed to plaintiff.
TENTH AFFIRMATIVE DEFENSE

Decedent knowingly, voluntarily and unreasonably undertook each of the risks and

hazards, if any, referred to in the Complaint and each alleged cause of action, and this

undertaking proximately caused and contributed to any loss, injury or damages incurred by

plaintiff and/or decedent.
ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by plaintiff or decedent was proximately
caused by the negligent or willful acts or omissions of parties whom Defendant neither
controlled nor had the right to control, and was not proximately caused by any acts,
omissions or other conduct of Defendant.

TWELFTH AFFIRMATIVE DEFENSE
The products referred to in the Complaint were misused, abused or altered by

decedent or by others; the misuse, abuse or alteration was not reasonably foreseeable to
Defendant, and proximately caused any loss, injury or damages incurred by plaintiff and/or
decedent.
THIRTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that its products were manufactured, produced, supplied, sold and
distributed in mandatory conformity with specifications promulgated by the United States
Government under its war powers, as set forth in the United States Constitution, and that
any recovery by plaintiff on the Complaint on file herein is barred in consequence of the
exercise of those sovereign powers.
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff failed to exercise due diligence to mitigate his loss, injury or damages;
accordingly, the amount of damages to which plaintiff is entitled, if any, should be reduced

by the amount of damages which would have otherwise been mitigated.

ANSWER TO PLAINTIFFS’ COMPLAINT-ASBESTOS2
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FIFTEENTH AFFIRMATIVE DEFENSE

The Court lacks subject matter jurisdiction over the matters alleged in the

Complaint because the Complaint and each alleged cause of action against Defendant is
barred by the “exclusive remedy” provisions of California Labor Code section 3601, et
seq.
SIXTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, decedent
was employed and was entitled to receive Workers’ Compensation benefits from his
employers; that all of decedent’s employers, other than Defendant, were negligent in and
about the matters referred to in said Complaint, and that such negligence on the part of said
employers proximately and concurrently contributed to the happening of the accident and
to the loss or damage complained of by decedent, if any there was; and that by reason
thereof Defendant is entitled to set off any such benefits to be received by plaintiff against
any judgment which may be rendered in favor of plaintiff.

SEVENTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that at the time of the injuries alleged in the Complaint,

decedent’s employers were negligent in and about the matters referred to in said
Complaint, and that such negligence on the part of said employers proximately and
concurrently contributed to any loss or damage, including non-economic damages,
complained of by plaintiff, if any there were; and that Defendant is not liable for said
employers’ proportionate share of non-economic damages.

EIGHTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, parties
other than this Defendant were negligent in and about the matters referred to in said
Complaint, and that such negligence on the part of said parties proximately and
concurrently contributed to any loss or damage, including non-economic damages,
complained of by plaintiff, if any there were; and that Defendant herein shall not be liable

for said parties’ proportionate share of non-economic damages.

ANSWER TO PLAINTIFFS' COMPLAINT-ASBESTOS2
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NINETEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at all times relative to matters alleged in the Complaint, all of
decedent’s employers, other than Defendant, were sophisticated users of asbestos-
containing products and said employers’ negligence in providing the product to their
employees in a negligent, careless and reckless manner was a superseding intervening
cause of decedent’s injuries, if any there were.

TWENTIETH AFFIRMATIVE DEFENSE

If decedent had received Workers’ Compensation benefits from Defendant under
the Labor Code of the State of California as a consequence of the alleged industrial injury
referred to in the Complaint, and in the event that Defendant is held liable to plaintiff, any
award against Defendant must be reduced in the amount of all such benefits received by
decedent.

TWENTY-FIRST AFFIRMATIVE DEFENSE

If decedent had received Workers’ Compensation benefits from Defendant under
the Labor Code of the State of California as a consequence of the alleged industrial injury
referred to in the Complaint, and in the event plaintiff is awarded damages against
Defendant, Defendant claims a credit against this award to the extent that Defendant is
barred from enforcing its rights to reimbursement for Workers’ Compensation benefits that
decedent had received.

TWENTY-SECOND AFFIRMATIVE DEFENSE

If decedent had received Workers’ Compensation benefits from Defendant under
the Labor Code of the State of California as a consequence of the alleged industrial injury
referred to in the Complaint, Defendant demands repayment of any such Workers’
Compensation benefits in the event that plaintiff recovers tort damages as a result of the
industrial injury allegedly involved here. Although Defendant denies the validity of
plaintiff's claims, in the event those claims are held valid and not barred by the statute of
limitations or otherwise, Defendant asserts that cross-demands for money have existed
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ANSWER TO PLAINTIFFS' COMPLAINT-ASBESTOSSelman Breitman Lip
ATTORNEYS AT LAW

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between plaintiff and Defendant and the demands are compensated, so far as they equal
each other, pursuant to California Code of Civil Procedure section 43 1.70.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Atall times and places in the Complaint, decedent was not in privity of contract

with Defendant and said lack of privity bars plaintiff's recovery herein upon any theory of
warranty.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiff is barred from recovery in that all products produced by Defendant were in
conformity with the existing state of the art, and as a result, these products were not
defective in any manner.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
The Defendant did not and does not have a substantial percentage of the market for
the asbestos-containing products which allegedly caused decedent's injuries, Therefore,
Defendant may not be held liable to plaintiff based on this Defendant’s alleged percentage
share of the applicable market.
TWENTY-SIXTH AFFIRMATIVE DEFENSE

Defendant denies any and all liability to the extent that plaintiff asserts Defendant’s

alleged liability as a successor, successor in business, successor in product line or a portion
thereof, assign, predecessor, predecessor in business, predecessor in product line ora
portion thereof, parent, alter-ego, subsidiary, wholly or partially owned by, or the whole or
partial owner of or member in an entity researching, studying, manufacturing, fabricating,
designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling,
inspecting, servicing, installing, contracting for installation, repairing, marketing,
warranting, rebranding, manufacturing for others, packaging and advertising a certain
substance, the generic name of which is asbestos.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
This Defendant alleges that if plaintiff's claims were already litigated and resolved

in any prior action, plaintiff's claims herein are barred based on the primary right and res

ANSWER TO PLAINTIFFS’ COMPLAINT-ASBESTOS.~

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judicata doctrines which prohibit splitting a single cause of action into successive suits,

and seeking new recovery for injuries for which the plaintiff was previously compensated

by alleged joint tortfeasors.
WHEREFORE, Defendant prays:

(1)
(2)
(G3)
(4)

(5)

That plaintiff take nothing by this Complaint;

That Judgment be entered in favor of Defendant;

For recovery of Defendant’s cost of suit;

For appropriate credits and setoffs arising out of any payment of Workers’
Compensation benefits as alleged above; and

For such other and further relief as the Court deems just and proper.

DATED: February 2+, 2006 © SELMAN BREITMAN LLP

- (
By:
¥ [ARK A/D
ERIN S. MCGAHEY

Attorneys for Defend:
DARCOID COMPANY OF CALIFORNIA

ANSWER TO PLAINTIFFS' COMPLAINT-ASBESTOS2
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PROOF OF SERVICE

Nancy M. Scott, et al. v. ACandS Inc., et al. SFSC 443236
(Def: DARCOID COMPANY OF CA,)

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

I am employed in the County of San Francisco, State of Califomia. I am over the age of
18 years and am not a party to the within action; my business_address is 33 New
Montgomery, Sixth Floor, San Francisco, CA 94105. On Februa 242006, I served the
following, locument(s) described as Answer to Complaint; Objection to Discovery
Commissioner on the interested parties in this action as follows:

by placing a true copy thereof enclosed in sealed envelopes addressed as follows:

Harowitz & Tigerman LLP Attorneys For Plaintiff
450 Bansome rt.

San Francisco, CA 94111-3311

BY MAIL: By placing a true copy thereof in a sealed envelope addressed as above,
and placing it for collection and mailing following ordinary business practices. I am
readily familiar with the firm’s practice of collection and processing
correspondence, pleadings, and other matters for mailing with the United States
Postal service on that same day with postage thereon fully prepaid at San Francisco,
California in the ordinary course of business. I am aware that on motion of the party
served, service is presumed invalid if the postal cancellation date or postage meter
date is more than one day after date of deposit for mailing in affidavit.

BY OVERNIGHT COURIER: I caused the above-referenced document(s) to be
delivered to for delivery to the addressee(s).

BY E-MAIL: I transmitted a copy of the foregoing documents(s) via e-mail to the
addressee(s).

BY FAX: I transmitted a copy of the foregoing documents(s) via telecopier to the
facsimile numbers of the addressee(s).

BY PERSONAL SERVICE: I personally delivered such envelope by hand to the
Offices of the addressee(s).

O aaa

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed on FebruaryZ@2006, at San Francisco, California. I