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-17-2006 4:08 pm

Case Number: CGC-05-443236
Filing Date: Feb-17-2006 4:08

Juke Box: 001 Image: 01387326
ANSWER

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

001001387326

Instructions:
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JEFFERY J. FADEFF, ESQ. (SBN 111497)

BASSI, MARTINI, EDLIN & BLUM LLP
351 California Street, Suite 200 F

San Francisco, Fi
an Francisco, CA 94104 I L E D

Telephone: (415) 397-9006
Facsimile: 13 397-1339 CoumlySuperior Court
FEB 1 7 2006
Att for DEFENDANT :
I:T. THORPE & SON, INC. ore Bis Clerk
. Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION

NANCY MARIE SCOTT, Individually and as ) CASENO. 443236
Successor-in-Interest to DENZIL SCOTT, )
Decedent, JOANE MARIE WOLFARTH, ) DEFENDANT J.T. THORPE & SON,
MICHAEL GERAL SCOTT, ROBERT DAVID ) INC.’S ANSWER TO PLAINTIFFS’
SCOTT, THOMAS CARY SCOTT, MARY ) COMPLAINT FOR SURVIVAL
DENISE SOBOLIK, and FIRST DOE through } AND WRONGFUL DEATH
TENTH DOE, inclusive, }
Plaintiffs, )
)
vs. }
AC ANDS, INC., et al., )
Defendants. }
. )
)
)

Defendant J.T. THORPE & SON, INC. ("Defendant"), in answer to the complaint for
survival and wrongful death of Plaintiffs NANCY MARIE SCOTT, Individually and as Successor-
in-Interest to DENZIL SCOTT, Decedent; JOANE MARIE WOLFARTH, MICHAEL GERAL
SCOTT, ROBERT DAVID SCOTT, THOMAS CARY SCOTT, MARY DENISE SOBOLIK, as
Legal Heirs of DENZIL SCOTT, deceased ("Plaintiffs"), admits, denies and alleges as follows:

Pursuant to the provisions of section 431,30(d) of the Code of Civil Procedure, Defendant
J.T. THORPE & SON, INC. denies each and every, all and singular, both generally and

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DEFENDANT J.T. THORPE & SON, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL AND WRONGFUL DEATH~

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specifically, the allegations of Plaintiffs’ complaint, and further denies that Plaintiffs have been
damaged as alleged, or at all, by reason of any act or omission on the part of Defendant J.T.
THORPE & SON, INC. or its agents, servants or employees.
, FIRST AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ complaint fails to state facts sufficient to constitute a cause of
action against Defendant.

SECOND AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs have failed to join all persons and parties needed for a just
adjudication of this action.

THIRD. IRMATIV. is

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that this Court does not have subject matter jurisdiction over this action or
alternatively that the Court lacks jurisdiction due to insufficiency of process or the service thereof
and/or improper venue. ,

FOURTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,

Defendant alleges that the allegations of the complaint are uncertain, vague and ambiguous.
FIFTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ decedent DENZIL SCOTT ("Plaintiffs’ decedent") was careless
and negligent in and about the matters alleged in the complaint and said carelessness and negligence
of Plaintiffs’ decedent proximately contributed to the happening of the accident, incident and
occurrence alleged in the complaint, and to the injuries, losses and damages complained of therein,
if any there were, and said contributory negligence bars a recovery or proportionally reduces any
potential verdict.
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DEFENDANT J.T. THORPE & SON, INC'S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL AND WRONGFUL DEATHC C

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AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ decedent voluntarily and knowingly entered into and engaged in
the operations, acts and conduct alleged in the complaint and voluntarily and knowingly assumed
all of the risks and hazards incident to said operations, acts and conduct at the times and places
mentioned in said complaint, and said assumption of risk either bars recovery by Plaintiffs or
proportionately reduces any such recovery.

SEVENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the damages and injuries, if any, of Plaintiffs’ decedent were proximately
caused or contributed to, in whole or in part, by the negligence or fault or other acts and/or omissions
of persons or entities other than this Defendant, for which this Defendant is not responsible.

EIGHTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that pursuant to the provisions of Civil Code section 1431, et. seq., Defendant's
liability, if any, for non-economic damages, if any, shall be several only and not joint. Defendant
requests a judicial determination of the amount of non-economic damages, if any. Defendant also
requests a judicial determination of the amount of non-economic damages, if any, allocated to
Defendant in direct proportion to this Defendant's percentage of fault, ifany, and a separate judgment
in conformance therewith.

NINTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Defendant is informed and believes and based upon such information and
belief alleges that the negligence or fault, if any, of Defendant, was not a substantial factor in
bringing about the death of Plaintiffs’ decedent, and therefore, was not a contributing cause but was
superseded by the negligence and fault of others, whose negligence and fault was an independent,
intervening and proximate cause of any injury or damage suffered by Plaintiffs, and therefore,

Plaintiffs have no right to recovery against Defendant.

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DEFENDANT J.T. THORPE & SON, INC."S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL AND WRONGFUL DEATHC — ¢

TENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the act or omission to act of Defendant (which allegation is made for the
purpose of this pleading only, and shall not constitute an admission) was not a substantial factor in
bringing about the alleged damages to Plaintiffs, and therefore, was not the proximate cause of any
injury or damages suffered by Plaintiffs.

ELEVENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that to the extent that any injury, damage or loss sustained by Plaintiffs was
proximately caused by Plaintiffs’ decedent's failure to mitigate his damages by failing to exercise
reasonable care in caring for such injury, damage or loss, such failure bars or diminishes any
recovery by Plaintiffs.

LFTH EFENS|

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendantalleges that 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.

THIRTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that neither the complaint nor any purported cause of action alleged herein states
facts sufficient to entitle Plaintiffs to an award of punitive damages against Defendant.

FOURTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ claims are 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.
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DEFENDANT J.T. THORPE & SON, INC."S ANSWER TO PLAINTIFFS* COMPLAINT FOR SURVIVAL AND WRONGFUL DEATHC C

FIFTE! FFIRMATIVE DEFENS,

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs unreasonably delayed in bringing this action, without good cause
therefore, and thereby, have prejudiced Defendant as a direct and proximate result of such delay;
accordingly, this action is barred by laches.

SIXTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times relative to the matters alleged in the complaint, all of Plaintiffs’
decedent's employers, other than Defendant, were sophisticated users of asbestos-containing products
and said employers’ negligence in providing the product to its employees in a negligent, careless and
reckless manner was a superseding, intervening cause of Plaintiffs’ damages, if any there were.

SEVENTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,

Defendantalleges that if Plaintiffs’ decedent or Plaintiffs have received, or inthe future may receive,
workers compensation benefits under the Labor Code of the State of California as a consequence of
the alleged industrial injury referred to in the complaint, and in the event Plaintiffs are awarded
damages against Defendant, Defendant claimsa credit against this award to the extent that Defendant
is barred from enforcing its rights to reimbursement of workers compensation benefits that Plaintiffs
have received or may in the future receive.
EIGHTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the injurious effects, if any there were, of the products referred to in the
complaint were scientifically unknown and/or unknowable by Defendant, its employees or agents,
at the times it allegedly supplied or manufactured said products.
NINETEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the products supplied by Defendant, if any, were manufactured and supplied

in compliance with statutes, governmental regulations and industry standards.

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DEFENDANT J.T. THORPE & SON, INC."S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL AND WRONGFUL DEATHwo eo ND UH fF WY NHN &

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TWENTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it received no notice of any dangerous, hazardous or defective condition or
any breach of warranty, either expressed or implied.
v -FIRST AFFIRI IVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the State of California's judicially created definitions for manufacturing and
design defects and standards for determining whether there has been an actionable failure to warn
are unconstitutional in that inter alia they are unconscionable and are an undue burden upon
interstate commerce, as well as an impermissible effort previously preempted by the federal
government.
TWENTY-SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,

Defendant alleges that if the Plaintiffs’ decedent sustained injuries attributable to the use of any
product or premises manufactured and/or occupied by this Defendant, which allegations are
expressly denied, the injuries were solely caused by and attributable to the unreasonable,
unforeseeable and inappropriate purpose and improper use which was made of the product and/or
premises. :
TWENTY-THIRD AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiffs’ decedent suffered any damages, which is denied, such damages
were solely and proximately caused by material modifications or alterations of the product or
products involved in this action after it or they left the custody and control of Defendant.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the incidents complained of in the complaint were proximately caused by the
misuse and abuse which was made of the product and/or premises referred to in the complaint.

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DEFENDANT J.T. THORPE & SON, INC."S ANSWER TO PLAINTIFFS' COMPLAINT FOR SURVIVAL AND WRONGFUL DEATHC C

'WENTY-FIFTH. ATIVE D Ss

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the California damages statute is unconstitutional in that inter alia, it is void
for vagueness, violative of the equal protection clause, violative of the due process clause, an undue
burden upon interstate commerce, a violation of the contract clause and violative of the Eighth
Amendment proscription against excessive fines.

‘ IWENTY-SIXTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ complaint, to the extent it seeks exemplary or punitive damages,
violates Defendant's rights to due process under the Fifth and Fourteenth Amendments to the
Constitution of the United States and/or the Constitution of the State of California, and therefore,
fails to state facts upon which punitive or exemplary damages can be awarded.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,

Defendant alleges that the imposition of punitive damages violates the ex post facto clause of the
Fifth Amendment due process clause of the United States Constitution.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs are barred from recovery in that all products, if any, produced by
Defendant were in conformity with the existing state of the art, and asa result, these products were
not defective in any manner.
TWENTY-NINTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant denies any and all liability to the extent that Plaintiffs assert any and all liability as a
successor, successor-in-business, successor-in-product line or a portion thereof, predecessor,
predecessor-in-business, predecessor-in-product line or a portion thereof, parent, alter ego,
subsidiary, wholly or partially owned by, or the whole or partial owner of or member of an entity

researching, studying, manufacturing, fabricating, designing, labeling, assembling, distributing,

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DEFENDANT J.T. THORPE & SON, INC.'S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL AND WRONGFUL DEATHou Pm NA UW FF YW NH —

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leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting for installation,
repairing, marketing, warranting, rebranding, manufacturing for others, packaging or advertising a
certain substance, the general name of which is asbestos.
I FFIRI VE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it presently has insufficient knowledge or information on which to form a
belief as to whether it may have additional, as yet unstated, defenses available. Defendant reserves
the right to assert additional defenses in the event discovery indicates that they would be appropriate.
WHEREFORE, Defendant prays for judement as follows:
1. That Plaintiffs take nothing by reason of their complaint herein and that this
action be dismissed;
2. For costs, disbursements, and attorneys’ fees incurred herein;
3. For a judicial determination of the amount of non-economic damages, if any,
allocated to Defendant in direct proportion to Defendant's percentage of fault, if
any, and a separate judgment in conformance therewith; and,

4. For such other and further relief as the Court may deem just and proper.

Dated: February \7_, 2006 BASSI, MARTINI, EDLIN & BLUM, LLP

Qeebuo . & .

By:. rk \

(JEFFERY FADEFF
Attorneys for DEFENDANT
J.T. THORPE & SON, INC.

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DEFENDANT J.T. THORPE & SON, INC."S ANSWER TO PLAINTIFFS’ COMPLAINT FOR SURVIVAL AND WRONGFUL DEATHoO eo ND HW FW N —

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Re: ancy Marie Scott, et al. v. AC and §, Ine., et al.
San Francisco County Superior Court, Case No. 443236

PROOF OF SERVICE - CCP § 1013(a)(3)
STATE OF CALIFORNIA/COUNTY OF San Francisco

Tam a citizen of the United States and an employee in the County of San Francisco. I am
over the age of eighteen (18) years and not a party to the within action, My business address is
BASSI, MARTI EDLIN & BLUM LLP, 351 California Street, Suite 200, San Francisco,

ifornia 9: .

On the date set forth below, I served the within:
[Click here and enter name of document]

on the following parties:

Stephen M. Tigerman, Esq.
HAROWITZ & TIGERMAN, LLP

One Bush Street, 14th Floor
San Francisco, CA 94104

BY PERSONAL SERVICE: I caused a copy of said documents to be hand delivered to
the interested party at the address set forth above. :

BY MAIL: _ I caused such envelope to be deposited in the mail at San Francisco,
California. I am readily familiar with the firm's practice for collection and processing of
correspondence for mailing. It is deposited with the U.S. Postal Service on that same day
in the ordinary course of business.

BY FEDERAL EXPRESS: I caused such envelope to be deposited in the appropriate
Federal Express envelope, to the Federal Express office located at 120 Bush Street, San
Francisco, California 94104, to be delivered by the next business day. I am readily
familiar with the firm’s practice for collection and processing of correspondence for
transmittal by Federal Express, It is deposited with Federal Express on that same day in
the ordinary course of business.

BY FACSIMILE: I caused said documents to be sent via facsimile to the interested
party at the facsimile number set forth below.

I declare under penalty of perjury that the foregoing is true and correct and that this
document is executed on February EE 2006, at San Francisco, California.

LENNY, Ss

_ PROOF OF SERVICE