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San Francisco Superior Courts
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Feb-08-2006 3:30 pm
Case Number: CGC-05-443236
" Filing Date: Feb-07-2006 3:26
Juke Box: 001 Image: 01380930
ANSWER
NANCY MARIE SCOTT et al VS. AC AND S, INC. et al
001C01380930
Instructions:
Please place this sheet on top of the document to be scanned.PRINDLE, DECKER & AMARO LLP
KENNETH B. PRINDLE (STATE BAR NO. 82691
THOMAS A. STEIG (STATE BAR NO, 119341 ) FILE.
FEB 7 2606
Attorneys for Defendant, BY:
SYD CARPENTER MARINE CONTRACTOR, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
oOo Mm XI Aw Bw vw
CASE NO. 05-443236
NANCY MARIE SCOTT, et al.,
Plaintiff(s),
GFUL
vs. DEATH) NEGLIGENCE, STRICT
LIABILITY, ENTERPRISE LIABILITY,
FALSE REPRESENTATION
RESTATEMENT SEG. 402-b]-
ACANDS, INC., et al., URVIVAL ACTION, PUNITIVE
DAMAGES(ASBESTOS)
COMES NOW, Defendant, SYD CARPENTER MARINE CONTRACTOR,
INC., a corporation, and answers for itself alone, and for no other defendants herein, the
Plaintiff's First Amended Complaint, as amended now or in the future, or otherwise, as
follows:
Whenever the masculine pronoun is used in the answer, its reference
embraces a female person, company, partnership, entity or corporation, respectively, to
the same effect as it the corresponding female or neuter pronoun were substituted.
Whenever the singular "plaintiff" is used, it also embraces the plural.
1. Denies each and every allegation of each cause of action thereof,
ANSWER TO PLAINTIFF’ 3
COMPLAINT 12
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2. Denies damages in any sum alleged, or any other sum.
FIRST AFFIRMATIVE DEFENSE
3. The Plaintiff's Complaint, as amended now or in the future, fails to set forth
sufficient facts necessary to constitute any cause or causes of action against this
answering Defendant, and fails to state any claim upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
4. The Plaintiff's Complaint, as amended now or in the future, and each purported
Cause of Action therein, is barred by the provisions of California Code of Civil Procedure,
Sections 335, 339(1), 340(1), 340(3), and 340.2, and Califormia Commercial Code, Section
2725, and therefore, Plaintiff is barred from recovering the relief sought in the Complaint,
as amended now or in the future.
THIRD AFFIRMATIVE DEFENSE
5. Plaintiff is guilty of laches, and may therefore not recover the retief sought in his
Complaint, as amended now or in the future.
FOURTH AFFIRMATIVE DEFENSE
6. Plaintiff has waived his right to recover all claims asserted in his Complaint, as
amended now or in the future.
FIFTH AFFIRMATIVE DEFENSE
7. The Plaintiff is estopped by his own conduct, and by reason of his Complaint,
from asserting the claims for recovery set forth in his Complaint, as amended now or in the
future.
SIXTH AFFIRMATIVE DEFENSE
8. Priorto the filing of this action, Plaintiff fully, completely and unequivocally settled
and compromised his claims for relief against this answering Defendant.
SEVENTH AFFIRMATIVE DEFENSE
9. Atall times and places mentioned in the Complaint herein, Plaintiff or Plaintiff's
decedent failed to exercise that quality and quantity of care and caution which a
reasonable individual in the same or similar circumstances would have exercised for the
ANSWER TO PLAINTIFF‘S
COMPLAINT 2Co ey DH AH h WY LD
C C
protection of themselves; said failure and negligence by Plaintiff or Plaintiffs decedent
proximately caused and contributed to the injuries and damages, if any, sustained by
Plaintiff or Plaintiff's decedent.
EIGHTH AFFIRMATIVE DEFENSE
10. Atall times and places mentioned in the Plaintiff's Complaint, as amended now
orin the future, this answering Defendantalleges that no act, omission, conduct, or product
attributable to it caused or contributed to any injury or damage sustained by the Plaintiff,
and that if Plaintiffs injuries and damages, if any, were not solely caused by Plaintiff's or
Plaintiffs decedent's own acts, omissions, and other conduct, then sald injuries and
damages were proximately caused or contributed to by the negligent or other tortious acts,
omissions, conduct and products of persons and parties other than this answering
Defendant; any damages recoverable by Plaintiff must be diminished in proportion to the
amount of fault attributable to said other persons and parties. There should also be an
apportionment of the harm and damage claimed.
NINTH AFFIRMATIVE DEFENSE
11. Atall times and places mentioned in the Comptaint herein, as amended now
or in the future, or otherwise, the Plaintiff or Plaintiffs decedent was aware of each and
all of the conditions and circumstances then and there existing and prevailing, but
nonetheless knowingly and voluntarily exposed himself to each and every risk which then
and there was attendant upon such circumstances and conditions; said assumption of the
tisk by Plaintiff or Plaintiff's decedent proximately caused any injuries and damages which
may have been sustained by Plaintiff or Plaintiff's decedent.
TENTH AFFIRMATIVE DEFENSE
12. At all times and places mentioned in the Complaint, as amended now or in the
future, Plaintiff or Plaintiff's decedent was not in privity of contract with this answering
Defendant; said lack of privity bars Plaintiff's recovery herein upon any theory of warranty.
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ANSWER TO PLAINTIFF‘S
COMPLAINT 3ELEVENTH AFFIRMATIVE DEFENSE
13. At the time of the occurrence alleged in the Complaint, as amended now or in
the future, said allegedly defective products were used by Plaintiff or Plaintiff's decedent
in a wrongful manner without Defendant's knowledge, approval, or consent, and contrary
to instructions and the custom and practice in the industry, and that such use was not
reasonably foreseeable by Defendant, either at or before the time of sale, or at any time
prior to the time Defendant received a notice of the alleged occurrence described in the
Complaint, as amended now or in the future; that Defendant thereon alleges that the
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incident for which recovery is herein sought was solely and proximately caused by such
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misuse, among other misuses, of the product.
TWELFTH AFFIRMATIVE DEFENSE
14. That the product described in the Complaint, as amended now or in the future,
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was, without Defendant's knowledge, approval, orconsent, and contrary to instructions and
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the custom and practice in the industry, redesigned, modified, altered, or subjected to other
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treatment which substantially changed its character; that if there was a defect in the
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product, which is specifically denied, such defect resulted solely from the redesign,
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modification, alteration, treatmentorother change therein and not from any act oromission
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of Defendant; that said defect, if any, was created by Plaintiff or Plaintiff's decedent, and
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was the sole and proximate cause of injuries or damages sustained by him or his heirs,
THIRTEENTH AFFIRMATIVE DEFENSE
15. That after the acceptance of goods as alleged in the Complaint, as amended
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now or in the future, each Plaintiff did not then, nor has he ever, given Defendant notice
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of any alleged breach of warranty.
FOURTEENTH AFFIRMATIVE DEFENSE
16. That the Complaint, as amended now or in the future, does not state sufficient
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facts constituting “fraud”, “oppression”, or "malice", as these terms are used in Civil Code,
Section 3294,
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ANSWER TO PLAINTIFF'S
COMPLAINT 4FIFTEENTH AFFIRMATIVE DEFENSE
17. That the imposition of exemplary damages against this corporate Defendant for
acts of a former and/or predecessor of corporate structure would be a violation of due
process of law, against public policy, under the various laws of the State of California and
the United States.
SIXTEENTH AFFIRMATIVE DEFENSE
18. That Plaintiff is able to identify the actual manufacturer or manufacturers of the
asbestos products which allegedly caused the injury which forms the basis of the
Complaint herein, and that said manufacturers were entities other than this Defendant.
Therefore, this Defendant may not be held liable for such injuries.
SEVENTEENTH AFFIRMATIVE DEFENSE
19. The liability of this Defendant, if any there were, shall be apportioned in
accordance with Califomia Civil Code Sections 1431 et seq, commonly known as the Fair
Responsibility Act of 1986,
EIGHTEENTH AFFIRMATIVE DEFENSE
20. Plaintiff is barred from recovery herein in that all products allegedly supplied or
installed by Defendant were in conformity with the specifications provided it by the
Government of the United States pursuant to its War Powers as set forth in the United
States Constitution.
NINETEENTH AFFIRMATIVE DEFENSE
21. Plaintiff is barred from recovery in that all products supplied by Defendant were
produced and manufactured in conformity with specifications provided by the Goverment
ofthe United States of America, as was required by said government, and that any defects
in said products were caused by deficiencies in said specifications, and not by any action
or conduct on the part of this answering Defendant.
TWENTIETH AFFIRMATIVE DEFENSE
22. Plaintiff is barred from recovery herein in that all products allegedly supplied or
ANSWER TO PLAINTIFF'S
COMPLAINT 5C C
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installed or produced by Defendantwere in conformity with the existing state-of-the-art, and
as a result, same were not defective in any manner.
TWENTY-FIRST AFFIRMATIVE DEFENSE
23. At all times and places mentioned in the Complaint, as amended now or in the
future, Plaintiff has waived whatever right he might otherwise have had to claim a breach
of warranty, in that Plaintiff or Plaintiff's decedent failed to notify this answering Defendant
of any alleged breach of warranty, express or implied, and if any alleged defects existed
in any asbestos or asbestos-containing products produced or distributed by this answering
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Defendant, Plaintiff or Plaintiffs decedent discovered or should have discovered said
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defect or nonconformity, if any existed, and failure to do so within a reasonable time
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prejudices this answering Defendant from being able to fully investigate and defend the
12] allegations made against it in the Complaint, as amended now or in the future.
13 TWENTY-SECOND AFFIRMATIVE DEFENSE
14 24. Atall times and places mentioned in the Complaint, as amended now orin the
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future, Plaintiff or Plaintiff's decedent has failed to make reasonable efforts to mitigate his
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injuries, losses, and/or and damages, if any.
TWENTY-THIRD AFFIRMATIVE DEFENSE
25. That on information and belief, at the time and place of the occurrence alleged
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in the Complaint, as amended noworin the future, Plaintiff or Plaintiff's decedent was an
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employee of an employer or employers whose names are presently unknown, and was
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acting within the course and scope of such employment; that said employer or employers
was insured, or self-insured, against the liability imposed under the Workers’
Compensation laws of the State of employment by a qualified insurer or insurers, the
names of which are presently unknown; that there has been or will be paid to Plaintiff,
pursuant to said law, monetary benefits, by or on behalf of said employers, or employers’
insurers; that the injuries and damages, if any, alleged in the Complaint, as amended now
or in the future, were proximately caused by negligence on the part of said employer or
employers; and that any judgment rendered herein on the Complaint, as amended now or
ANSWER TO PLAINTIFP’S
COMPLAINT 6CoD mont HDNW WN =
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in the future, must be reduced by such sum or sums so paid.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
26. That Plaintiff is barred from recovery herein if at any time, past or present,
Plaintiff or Plaintiff's decedent was or is an employee of SYD CARPENTER, MARINE
CONTRACTOR, INC., etc., including any or all of its divisions or subsidiaries, thereby
creating conditions of compensation. The right to recover such compensation from Plaintiff
is the exclusive remedy for injury or death of an employee against his or her employer
pursuant to the provisions of Labor Code, Section 3601. SYD CARPENTER, MARINE
CONTRACTOR, INC., is entitled to a judicial determination of any such
employee-employer relationship establishing such exclusive remedy and bar to recovery
prior to any hearing or trial on the merits in this matter.
TWENTY-FIETH AFFIRMATIVE DEFENSE
27, SYD CARPENTER, MARINE CONTRACTOR, INC. alleges that California Civil
Code, Section 3294, et seq. is violative of the California and/or the United States
Constitutions in that, among other things, it violates the due process clauses and the equal
protection clauses thereof, respectively, is void because itis vague and ambiguous, and
further, constitutes an undue burden on interstate commerce, and violates the Eighth
Amendment to the United States Constitution; and that, Plaintiff is therefore barred from
any recovery thereunder.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
28. Even if Plaintiff was exposed to asbestos-containing products allegedly
distributed or supplied by Defendant, any exposure to these products would have been so
minimal as to be insufficient to constitute a “substantial contributing factor" in the causation
of Plaintiff's disease.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
29. This Defendant is not liable for any alleged failure to warn of any risks, danger
or hazard in the use of any asbestos-containing products, allegedly distributed or sold by
it or goods it supplied or delivered to the plaintiffs employer or employers, because each
ANSWER TO PLAINTIFY‘S
COMPLAINT 7oD OI AU & WN =
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of such entities had as great, if not greater, knowledge about the nature of any risk, danger
or hazard then did this Defendant, and, unlike this defendant, such entities were in a
position to warn persons exposed to such products of any such risk, danger or hazard.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
30. Pursuant to California Code of Civil Procedure Section 430.10(c) there is
another action pending between the same parties on the same causes of action.
TWENTY-NINTH AFFIRMATIVE DEFENSE
31. To the extent the Complaint, or any cause of action thereof, is based upon an
allegation of strict products liability as against this Defendant, said cause of action cannot
be maintained as this Defendant was not a "seller" pursuant to 402A of the Restatement
Second of Torts and consequently any claim of strict liability against this Defendant is
barred pursuant to Monte Vista Development Corporation vs. Superior Court 226 Cal App.
3d 1681 (1991).
THIRTIETH AFFIRMATIVE DEFENSE
32. Plaintiff is barred from recovery in that all products allegedly maintained on
Defendant's premises were produced and manufactured in conformity with specifications
provided by the Government of the United States of America, as was required by said
government, and that any defects in said products were caused by deficiencies in said
specifications, and not by any action or conduct on the part of this answering Defendant.
THIRTY-FIRST AFFIRMATIVE D NS
33. Plaintiff is barred from recovery herein in that all products allegedly maintained
on Defendant's premises were in conformity with the existing state-of-the-art, and as a
result, same were not defective in any manner.
THIRTY-SECOND AFFIRMATIVE DEFENSE
34. Plaintiff is barred from recovery herein in that all products allegedly maintained
on Defendant's premises were in conformity with the existing state-of-the-art, and as a
result, same were not defective in any manner.
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ANSWER TO PLAINTIFF’S
COMPLAINT 8_
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THIRTY-THIRD AFFIRMATIVE DEFENSE
35. Atall times and places mentioned in the Complaint, as amended now or in the
future, Plaintiff has waived whatever right he might otherwise have had to claim a breach
of warranty, in that Plaintiff or Plaintiff's decedent faited to notify this answering Defendant
of any alleged breach of warranty, express or implied, and if any alleged defects existed
in any asbestos or asbestos-containing products allegedly maintained on this Defendant's
premises, Plaintiff or Plaintiff's decedent discovered or should have discovered said defect
or nonconformity, if any existed, and failure to do so within a reasonable time prejudices
this answering Defendant from being able to fully investigate and defend the allegations
made against it in the Complaint, as amended now or in the future.
THIRTY-FOURTH AFFIRMATIVE DEFENS|
36. That on information and belief, at the time and place of the occurrence alleged
in the Complaint, as amended now or in the future, Plaintiff or Plaintiff's decedent was an
employee of an employer or employers whose names are presently unknown, and was
acting within the course and scope of such employment; that said employer or employers
was insured, or self-insured, against the liability imposed under the Workers’
Compensation laws of the State of employment by a qualified insurer or insurers, the
names of which are presently unknown; that there has been or will be paid to Plaintiff,
pursuant to said flaw, monetary benefits, by or on behalf of said employers, or employers’
insurers; that the injuries and damages, if any, alleged in the Complaint, as amended now
or in the future, were proximately caused by negligence on the part of said employer or
employers; and therefore Plaintiff is barred from recovery from this answering Defendant
pursuant to Privette v. Superior Court (1993) 5 Cal. 4th 689.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
37. Even if Plaintiff or Plaintiffs decedent was exposed to asbestos-containing
products allegedly maintained on Defendant's premises, any exposure to these products
would have been so minimal as to be insufficient to constitute a “substantial contributing
ANSWER TO PLAINTIFFS
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factor" in the causation of Plaintiff or Plaintiff's decedent's disease.
THIRTY-SI A MATIVE DEFENS
38. This Defendant is not liable for any alleged failure to warn of any risks, danger
or hazard in the use of any asbestos-containing products, allegedly maintained on
Defendant's premises as plaintiff's employer or employers had as great, if not greater,
knowledge about the nature of any risk, danger or hazard than did this Defendant, and,
unlike this Defendant, such entities were in a position to warn persons exposed to such
products of any such risk, danger or hazard.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
39.. The Complaint, and each purported cause of action thereof, is barred by the
doctrine of bad faith. Plaintiff named this answering defendant in this litigation without a
reasonable investigation; accordingly, this answering defendant, pursuant to law, including
without limitation, Code of Civil Procedure Section 128.5, requests a judicial award of its
reasonable expenses, including attorney fees, incurred by this answering defendant in
maintaining a defense to this bad faith action.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
40. Any loss, injury or damage incurred by Plaintiff, if any, was proximately and
legally caused by the negligent or willful acts of omissions of parties whom this answering
defendant neither controlled nor had the duty to control; Plaintiff or Plaintiffs decedent and
parties other than this answering defendant, including Plaintiff or Plaintiffs decedent's
employers, controlled the working conditions and process under which Plaintiff or Plaintiff's
decedent was allegedly exposed to asbestos.
THIRTY-NINTH AFFIRMATIVE DEFENSE
32. Plaintiff's Complaint fails to meet the provisions set forth in Code of Civil
Procedure §411.35 therefore barring plaintiff from the recovery sought by this Complaint.
FORTIETH AFFIRMATIVE DEFENSE
33. Defendant denies any and all liability to the extent that defendant's liability is
ANSWER TO PLAINTIFP‘S
COMPLAINT 10C C
asserted to be as a successor, successer-in-business, successor-in-interest, successor in
products line or a portion thereof, assign, or predecessor, predecessor-in-business,
predecessor-in-interest, predecessor in product line or a portion thereof, parent, alter-ego,
subsidiary, wholly or partially owned by, or the whole or partial owner or member in an
entity owning property, maintaining premises, research, studying, manufacturing,
fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale,
selling, inspecting, servicing, installing, contracting for installation, repairing, marketing,
warranting, re-branding, manufacturing for others, packaging and advertising a certain
substance, the generic name of which is asbestos.
-FIR: FIRMATIVE DEFENSE
34. Defendant is not in any manner a successor to nor a successor-in-interest as
alleged is or may be alleged by plaintiff and therefore is not liable for any acts, whether
they be active or passive, or omissions of any entities to which Defendant is or may be
alleged to be a successor-in-interest.
FORTY-SECOND AFFIRMATIVE DEFENSE
35. Plaintiff's claims do not comply with and are in violation of applicable laws,
tules, statutes or regulations, including but not limited to, Code of Civil Procedure Sections
340(3), 340.2 and sister state statutes of limitations and statutes of repose borrowed by
Code of Civil Procedure Section 361, that require the institution of suit within a prescribed
period of time following its accrual and, therefore, plaintiffs’ claims are barred as a matter
of law and equity.
FORTY-THIRD AFFIRMATIVE DEFENSE
36. — Plaintiff's claims do not comply with and are in violation of applicable laws,
tules, statutes or regulations, including but not limited to, Code of Civil Procedure Sections
340(3), 340.2 and sister state statutes of limitations and statutes of repose borrowed by
Code of Civil Procedure Section 361, that require the institution of suit within a prescribed
period of time following its accrual and, therefore, plaintiffs’ claims are barred as a matter
of law and equity.
ANSWER TO PLAINTIFF‘S:
COMPLAINT ilwo oN DAD vA fF YW NHN =
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WHEREFORE, Defendant, SYD CARPENTER MARINE CONTRACTOR, INC.,
prays that judgment be entered in its favor, and against Plaintiff, as follows:
1. That damages sought in the Complaint, as amended now or in the future, or
otherwise, be denied;
2. For costs of suit incurred herein;
3. Thatif this Defendant is found liable, that the degree of responsibility and liability
for the resulting damages be determined and apportioned in accordance with California
Civil Code Section 1431 et seq, commonly known as the Fair Responsibility Act of 1986;
and
4. For such other relief as the Court may deem just and proper.
DATED: February 5 ,2006
ANSWER TO PLAINTIFFS
COMPLAINT
PRINDLE, DECKER & AMARO LLP
ENNETH B. PRIN
MARY KIRK HILLYARD
THOMAS A. STEIG
MATTHEW S. COLE
Attorneys for Defenda
SYD CARPENTER MARINE CONTRACTOR, INC.DECLARATION OF SERVICE BY MAIL
|, FAYE BOYARS, declare and state:
That! am employed in the County of San Francisco, State of California. | am over
the age of eighteen (18) and not a party to the within action; my business address is 369
Pine Street, Suite 800, San Francisco, California 94104.
On February 3 , 2006, I served the documents described as
DEFENDANT SYD CARPENTER MARINE CONTRACTOR, INC.'S ANSWER TO
COMPLAINT FOR DAMAGES - (WRONGFUL DEATH) NEGLIGENCE, STRICT
LIABILITY, ENTERPRISE LIABILITY, FALSE REPRESENTATION, [RESTATEMENT
SEC. 402-B]- SURVIVAL ACTION, PUNITIVE DAMAGES(ASBESTOS)
on the interested parties by mail, postage fully prepaid, addressed as follows:
OU Lee LLP
San Francisco, CA 94111
| am readily familiar with this office's practice for collection and processing of
correspondence for mailing and that correspondence will be deposited in the United States
Postal Service on the date written below in the ordinary course of practice at San
Francisco, California.
Executed on February.S, 2006, at San Francisco, Califomia.
| declare under penalty of perjury under the laws of the State of California that the
above Is true and correct.
FAY! ARS
ANSWER TO PLAINTIFFS
COMPLAINT 13
Preview
IO San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Feb-08-2006 3:30 pm Case Number: CGC-05-443236 " Filing Date: Feb-07-2006 3:26 Juke Box: 001 Image: 01380930 ANSWER NANCY MARIE SCOTT et al VS. AC AND S, INC. et al 001C01380930 Instructions: Please place this sheet on top of the document to be scanned.PRINDLE, DECKER & AMARO LLP KENNETH B. PRINDLE (STATE BAR NO. 82691 THOMAS A. STEIG (STATE BAR NO, 119341 ) FILE. FEB 7 2606 Attorneys for Defendant, BY: SYD CARPENTER MARINE CONTRACTOR, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO oOo Mm XI Aw Bw vw CASE NO. 05-443236 NANCY MARIE SCOTT, et al., Plaintiff(s), GFUL vs. DEATH) NEGLIGENCE, STRICT LIABILITY, ENTERPRISE LIABILITY, FALSE REPRESENTATION RESTATEMENT SEG. 402-b]- ACANDS, INC., et al., URVIVAL ACTION, PUNITIVE DAMAGES(ASBESTOS) COMES NOW, Defendant, SYD CARPENTER MARINE CONTRACTOR, INC., a corporation, and answers for itself alone, and for no other defendants herein, the Plaintiff's First Amended Complaint, as amended now or in the future, or otherwise, as follows: Whenever the masculine pronoun is used in the answer, its reference embraces a female person, company, partnership, entity or corporation, respectively, to the same effect as it the corresponding female or neuter pronoun were substituted. Whenever the singular "plaintiff" is used, it also embraces the plural. 1. Denies each and every allegation of each cause of action thereof, ANSWER TO PLAINTIFF’ 3 COMPLAINT 12 3 4 5 6 7 8 9 BO emt - FoF oO OB WDA FF WN =& 22 C C 2. Denies damages in any sum alleged, or any other sum. FIRST AFFIRMATIVE DEFENSE 3. The Plaintiff's Complaint, as amended now or in the future, fails to set forth sufficient facts necessary to constitute any cause or causes of action against this answering Defendant, and fails to state any claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 4. The Plaintiff's Complaint, as amended now or in the future, and each purported Cause of Action therein, is barred by the provisions of California Code of Civil Procedure, Sections 335, 339(1), 340(1), 340(3), and 340.2, and Califormia Commercial Code, Section 2725, and therefore, Plaintiff is barred from recovering the relief sought in the Complaint, as amended now or in the future. THIRD AFFIRMATIVE DEFENSE 5. Plaintiff is guilty of laches, and may therefore not recover the retief sought in his Complaint, as amended now or in the future. FOURTH AFFIRMATIVE DEFENSE 6. Plaintiff has waived his right to recover all claims asserted in his Complaint, as amended now or in the future. FIFTH AFFIRMATIVE DEFENSE 7. The Plaintiff is estopped by his own conduct, and by reason of his Complaint, from asserting the claims for recovery set forth in his Complaint, as amended now or in the future. SIXTH AFFIRMATIVE DEFENSE 8. Priorto the filing of this action, Plaintiff fully, completely and unequivocally settled and compromised his claims for relief against this answering Defendant. SEVENTH AFFIRMATIVE DEFENSE 9. Atall times and places mentioned in the Complaint herein, Plaintiff or Plaintiff's decedent failed to exercise that quality and quantity of care and caution which a reasonable individual in the same or similar circumstances would have exercised for the ANSWER TO PLAINTIFF‘S COMPLAINT 2Co ey DH AH h WY LD C C protection of themselves; said failure and negligence by Plaintiff or Plaintiffs decedent proximately caused and contributed to the injuries and damages, if any, sustained by Plaintiff or Plaintiff's decedent. EIGHTH AFFIRMATIVE DEFENSE 10. Atall times and places mentioned in the Plaintiff's Complaint, as amended now orin the future, this answering Defendantalleges that no act, omission, conduct, or product attributable to it caused or contributed to any injury or damage sustained by the Plaintiff, and that if Plaintiffs injuries and damages, if any, were not solely caused by Plaintiff's or Plaintiffs decedent's own acts, omissions, and other conduct, then sald injuries and damages were proximately caused or contributed to by the negligent or other tortious acts, omissions, conduct and products of persons and parties other than this answering Defendant; any damages recoverable by Plaintiff must be diminished in proportion to the amount of fault attributable to said other persons and parties. There should also be an apportionment of the harm and damage claimed. NINTH AFFIRMATIVE DEFENSE 11. Atall times and places mentioned in the Comptaint herein, as amended now or in the future, or otherwise, the Plaintiff or Plaintiffs decedent was aware of each and all of the conditions and circumstances then and there existing and prevailing, but nonetheless knowingly and voluntarily exposed himself to each and every risk which then and there was attendant upon such circumstances and conditions; said assumption of the tisk by Plaintiff or Plaintiff's decedent proximately caused any injuries and damages which may have been sustained by Plaintiff or Plaintiff's decedent. TENTH AFFIRMATIVE DEFENSE 12. At all times and places mentioned in the Complaint, as amended now or in the future, Plaintiff or Plaintiff's decedent was not in privity of contract with this answering Defendant; said lack of privity bars Plaintiff's recovery herein upon any theory of warranty. Ml ANSWER TO PLAINTIFF‘S COMPLAINT 3ELEVENTH AFFIRMATIVE DEFENSE 13. At the time of the occurrence alleged in the Complaint, as amended now or in the future, said allegedly defective products were used by Plaintiff or Plaintiff's decedent in a wrongful manner without Defendant's knowledge, approval, or consent, and contrary to instructions and the custom and practice in the industry, and that such use was not reasonably foreseeable by Defendant, either at or before the time of sale, or at any time prior to the time Defendant received a notice of the alleged occurrence described in the Complaint, as amended now or in the future; that Defendant thereon alleges that the eo ON AH kh WY wD Se incident for which recovery is herein sought was solely and proximately caused by such _ o misuse, among other misuses, of the product. TWELFTH AFFIRMATIVE DEFENSE 14. That the product described in the Complaint, as amended now or in the future, = —_— we Ne was, without Defendant's knowledge, approval, orconsent, and contrary to instructions and — a the custom and practice in the industry, redesigned, modified, altered, or subjected to other _ n treatment which substantially changed its character; that if there was a defect in the a product, which is specifically denied, such defect resulted solely from the redesign, ~ x modification, alteration, treatmentorother change therein and not from any act oromission — oO of Defendant; that said defect, if any, was created by Plaintiff or Plaintiff's decedent, and ~ oo was the sole and proximate cause of injuries or damages sustained by him or his heirs, THIRTEENTH AFFIRMATIVE DEFENSE 15. That after the acceptance of goods as alleged in the Complaint, as amended Nn BR 2 8 now or in the future, each Plaintiff did not then, nor has he ever, given Defendant notice N a of any alleged breach of warranty. FOURTEENTH AFFIRMATIVE DEFENSE 16. That the Complaint, as amended now or in the future, does not state sufficient YN wv nn facts constituting “fraud”, “oppression”, or "malice", as these terms are used in Civil Code, Section 3294, Ml vv a8 ANSWER TO PLAINTIFF'S COMPLAINT 4FIFTEENTH AFFIRMATIVE DEFENSE 17. That the imposition of exemplary damages against this corporate Defendant for acts of a former and/or predecessor of corporate structure would be a violation of due process of law, against public policy, under the various laws of the State of California and the United States. SIXTEENTH AFFIRMATIVE DEFENSE 18. That Plaintiff is able to identify the actual manufacturer or manufacturers of the asbestos products which allegedly caused the injury which forms the basis of the Complaint herein, and that said manufacturers were entities other than this Defendant. Therefore, this Defendant may not be held liable for such injuries. SEVENTEENTH AFFIRMATIVE DEFENSE 19. The liability of this Defendant, if any there were, shall be apportioned in accordance with Califomia Civil Code Sections 1431 et seq, commonly known as the Fair Responsibility Act of 1986, EIGHTEENTH AFFIRMATIVE DEFENSE 20. Plaintiff is barred from recovery herein in that all products allegedly supplied or installed by Defendant were in conformity with the specifications provided it by the Government of the United States pursuant to its War Powers as set forth in the United States Constitution. NINETEENTH AFFIRMATIVE DEFENSE 21. Plaintiff is barred from recovery in that all products supplied by Defendant were produced and manufactured in conformity with specifications provided by the Goverment ofthe United States of America, as was required by said government, and that any defects in said products were caused by deficiencies in said specifications, and not by any action or conduct on the part of this answering Defendant. TWENTIETH AFFIRMATIVE DEFENSE 22. Plaintiff is barred from recovery herein in that all products allegedly supplied or ANSWER TO PLAINTIFF'S COMPLAINT 5C C ~ installed or produced by Defendantwere in conformity with the existing state-of-the-art, and as a result, same were not defective in any manner. TWENTY-FIRST AFFIRMATIVE DEFENSE 23. At all times and places mentioned in the Complaint, as amended now or in the future, Plaintiff has waived whatever right he might otherwise have had to claim a breach of warranty, in that Plaintiff or Plaintiff's decedent failed to notify this answering Defendant of any alleged breach of warranty, express or implied, and if any alleged defects existed in any asbestos or asbestos-containing products produced or distributed by this answering wo mI A NW Bw bw Defendant, Plaintiff or Plaintiffs decedent discovered or should have discovered said — o defect or nonconformity, if any existed, and failure to do so within a reasonable time = prejudices this answering Defendant from being able to fully investigate and defend the 12] allegations made against it in the Complaint, as amended now or in the future. 13 TWENTY-SECOND AFFIRMATIVE DEFENSE 14 24. Atall times and places mentioned in the Complaint, as amended now orin the _ n future, Plaintiff or Plaintiff's decedent has failed to make reasonable efforts to mitigate his - in injuries, losses, and/or and damages, if any. TWENTY-THIRD AFFIRMATIVE DEFENSE 25. That on information and belief, at the time and place of the occurrence alleged — oe Oo Oo NV in the Complaint, as amended noworin the future, Plaintiff or Plaintiff's decedent was an y o employee of an employer or employers whose names are presently unknown, and was nN = acting within the course and scope of such employment; that said employer or employers was insured, or self-insured, against the liability imposed under the Workers’ Compensation laws of the State of employment by a qualified insurer or insurers, the names of which are presently unknown; that there has been or will be paid to Plaintiff, pursuant to said law, monetary benefits, by or on behalf of said employers, or employers’ insurers; that the injuries and damages, if any, alleged in the Complaint, as amended now or in the future, were proximately caused by negligence on the part of said employer or employers; and that any judgment rendered herein on the Complaint, as amended now or ANSWER TO PLAINTIFP’S COMPLAINT 6CoD mont HDNW WN = o i in the future, must be reduced by such sum or sums so paid. TWENTY-FOURTH AFFIRMATIVE DEFENSE 26. That Plaintiff is barred from recovery herein if at any time, past or present, Plaintiff or Plaintiff's decedent was or is an employee of SYD CARPENTER, MARINE CONTRACTOR, INC., etc., including any or all of its divisions or subsidiaries, thereby creating conditions of compensation. The right to recover such compensation from Plaintiff is the exclusive remedy for injury or death of an employee against his or her employer pursuant to the provisions of Labor Code, Section 3601. SYD CARPENTER, MARINE CONTRACTOR, INC., is entitled to a judicial determination of any such employee-employer relationship establishing such exclusive remedy and bar to recovery prior to any hearing or trial on the merits in this matter. TWENTY-FIETH AFFIRMATIVE DEFENSE 27, SYD CARPENTER, MARINE CONTRACTOR, INC. alleges that California Civil Code, Section 3294, et seq. is violative of the California and/or the United States Constitutions in that, among other things, it violates the due process clauses and the equal protection clauses thereof, respectively, is void because itis vague and ambiguous, and further, constitutes an undue burden on interstate commerce, and violates the Eighth Amendment to the United States Constitution; and that, Plaintiff is therefore barred from any recovery thereunder. TWENTY-SIXTH AFFIRMATIVE DEFENSE 28. Even if Plaintiff was exposed to asbestos-containing products allegedly distributed or supplied by Defendant, any exposure to these products would have been so minimal as to be insufficient to constitute a “substantial contributing factor" in the causation of Plaintiff's disease. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 29. This Defendant is not liable for any alleged failure to warn of any risks, danger or hazard in the use of any asbestos-containing products, allegedly distributed or sold by it or goods it supplied or delivered to the plaintiffs employer or employers, because each ANSWER TO PLAINTIFY‘S COMPLAINT 7oD OI AU & WN = PNR RW voR ee = = _ BNRRRPRBRRESSEUARABETCH ES C C of such entities had as great, if not greater, knowledge about the nature of any risk, danger or hazard then did this Defendant, and, unlike this defendant, such entities were in a position to warn persons exposed to such products of any such risk, danger or hazard. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 30. Pursuant to California Code of Civil Procedure Section 430.10(c) there is another action pending between the same parties on the same causes of action. TWENTY-NINTH AFFIRMATIVE DEFENSE 31. To the extent the Complaint, or any cause of action thereof, is based upon an allegation of strict products liability as against this Defendant, said cause of action cannot be maintained as this Defendant was not a "seller" pursuant to 402A of the Restatement Second of Torts and consequently any claim of strict liability against this Defendant is barred pursuant to Monte Vista Development Corporation vs. Superior Court 226 Cal App. 3d 1681 (1991). THIRTIETH AFFIRMATIVE DEFENSE 32. Plaintiff is barred from recovery in that all products allegedly maintained on Defendant's premises were produced and manufactured in conformity with specifications provided by the Government of the United States of America, as was required by said government, and that any defects in said products were caused by deficiencies in said specifications, and not by any action or conduct on the part of this answering Defendant. THIRTY-FIRST AFFIRMATIVE D NS 33. Plaintiff is barred from recovery herein in that all products allegedly maintained on Defendant's premises were in conformity with the existing state-of-the-art, and as a result, same were not defective in any manner. THIRTY-SECOND AFFIRMATIVE DEFENSE 34. Plaintiff is barred from recovery herein in that all products allegedly maintained on Defendant's premises were in conformity with the existing state-of-the-art, and as a result, same were not defective in any manner. Ml ANSWER TO PLAINTIFF’S COMPLAINT 8_ wo Oot Dw fF YW N 10 i 12 13 4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C C THIRTY-THIRD AFFIRMATIVE DEFENSE 35. Atall times and places mentioned in the Complaint, as amended now or in the future, Plaintiff has waived whatever right he might otherwise have had to claim a breach of warranty, in that Plaintiff or Plaintiff's decedent faited to notify this answering Defendant of any alleged breach of warranty, express or implied, and if any alleged defects existed in any asbestos or asbestos-containing products allegedly maintained on this Defendant's premises, Plaintiff or Plaintiff's decedent discovered or should have discovered said defect or nonconformity, if any existed, and failure to do so within a reasonable time prejudices this answering Defendant from being able to fully investigate and defend the allegations made against it in the Complaint, as amended now or in the future. THIRTY-FOURTH AFFIRMATIVE DEFENS| 36. That on information and belief, at the time and place of the occurrence alleged in the Complaint, as amended now or in the future, Plaintiff or Plaintiff's decedent was an employee of an employer or employers whose names are presently unknown, and was acting within the course and scope of such employment; that said employer or employers was insured, or self-insured, against the liability imposed under the Workers’ Compensation laws of the State of employment by a qualified insurer or insurers, the names of which are presently unknown; that there has been or will be paid to Plaintiff, pursuant to said flaw, monetary benefits, by or on behalf of said employers, or employers’ insurers; that the injuries and damages, if any, alleged in the Complaint, as amended now or in the future, were proximately caused by negligence on the part of said employer or employers; and therefore Plaintiff is barred from recovery from this answering Defendant pursuant to Privette v. Superior Court (1993) 5 Cal. 4th 689. THIRTY-FIFTH AFFIRMATIVE DEFENSE 37. Even if Plaintiff or Plaintiffs decedent was exposed to asbestos-containing products allegedly maintained on Defendant's premises, any exposure to these products would have been so minimal as to be insufficient to constitute a “substantial contributing ANSWER TO PLAINTIFFS COMPLAINT 9uo em ny Aun F&F WH = RY NY NN NKR HN NK S| =| Be Be Be se ee ee on na nA & WN SK OO DO DAD HH fF YW YN KK OS factor" in the causation of Plaintiff or Plaintiff's decedent's disease. THIRTY-SI A MATIVE DEFENS 38. This Defendant is not liable for any alleged failure to warn of any risks, danger or hazard in the use of any asbestos-containing products, allegedly maintained on Defendant's premises as plaintiff's employer or employers had as great, if not greater, knowledge about the nature of any risk, danger or hazard than did this Defendant, and, unlike this Defendant, such entities were in a position to warn persons exposed to such products of any such risk, danger or hazard. THIRTY-SEVENTH AFFIRMATIVE DEFENSE 39.. The Complaint, and each purported cause of action thereof, is barred by the doctrine of bad faith. Plaintiff named this answering defendant in this litigation without a reasonable investigation; accordingly, this answering defendant, pursuant to law, including without limitation, Code of Civil Procedure Section 128.5, requests a judicial award of its reasonable expenses, including attorney fees, incurred by this answering defendant in maintaining a defense to this bad faith action. THIRTY-EIGHTH AFFIRMATIVE DEFENSE 40. Any loss, injury or damage incurred by Plaintiff, if any, was proximately and legally caused by the negligent or willful acts of omissions of parties whom this answering defendant neither controlled nor had the duty to control; Plaintiff or Plaintiffs decedent and parties other than this answering defendant, including Plaintiff or Plaintiffs decedent's employers, controlled the working conditions and process under which Plaintiff or Plaintiff's decedent was allegedly exposed to asbestos. THIRTY-NINTH AFFIRMATIVE DEFENSE 32. Plaintiff's Complaint fails to meet the provisions set forth in Code of Civil Procedure §411.35 therefore barring plaintiff from the recovery sought by this Complaint. FORTIETH AFFIRMATIVE DEFENSE 33. Defendant denies any and all liability to the extent that defendant's liability is ANSWER TO PLAINTIFP‘S COMPLAINT 10C C asserted to be as a successor, successer-in-business, successor-in-interest, successor in products line or a portion thereof, assign, or predecessor, predecessor-in-business, predecessor-in-interest, predecessor in product line or a portion thereof, parent, alter-ego, subsidiary, wholly or partially owned by, or the whole or partial owner or member in an entity owning property, maintaining premises, research, studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding, manufacturing for others, packaging and advertising a certain substance, the generic name of which is asbestos. -FIR: FIRMATIVE DEFENSE 34. Defendant is not in any manner a successor to nor a successor-in-interest as alleged is or may be alleged by plaintiff and therefore is not liable for any acts, whether they be active or passive, or omissions of any entities to which Defendant is or may be alleged to be a successor-in-interest. FORTY-SECOND AFFIRMATIVE DEFENSE 35. Plaintiff's claims do not comply with and are in violation of applicable laws, tules, statutes or regulations, including but not limited to, Code of Civil Procedure Sections 340(3), 340.2 and sister state statutes of limitations and statutes of repose borrowed by Code of Civil Procedure Section 361, that require the institution of suit within a prescribed period of time following its accrual and, therefore, plaintiffs’ claims are barred as a matter of law and equity. FORTY-THIRD AFFIRMATIVE DEFENSE 36. — Plaintiff's claims do not comply with and are in violation of applicable laws, tules, statutes or regulations, including but not limited to, Code of Civil Procedure Sections 340(3), 340.2 and sister state statutes of limitations and statutes of repose borrowed by Code of Civil Procedure Section 361, that require the institution of suit within a prescribed period of time following its accrual and, therefore, plaintiffs’ claims are barred as a matter of law and equity. ANSWER TO PLAINTIFF‘S: COMPLAINT ilwo oN DAD vA fF YW NHN = _ o C C WHEREFORE, Defendant, SYD CARPENTER MARINE CONTRACTOR, INC., prays that judgment be entered in its favor, and against Plaintiff, as follows: 1. That damages sought in the Complaint, as amended now or in the future, or otherwise, be denied; 2. For costs of suit incurred herein; 3. Thatif this Defendant is found liable, that the degree of responsibility and liability for the resulting damages be determined and apportioned in accordance with California Civil Code Section 1431 et seq, commonly known as the Fair Responsibility Act of 1986; and 4. For such other relief as the Court may deem just and proper. DATED: February 5 ,2006 ANSWER TO PLAINTIFFS COMPLAINT PRINDLE, DECKER & AMARO LLP ENNETH B. PRIN MARY KIRK HILLYARD THOMAS A. STEIG MATTHEW S. COLE Attorneys for Defenda SYD CARPENTER MARINE CONTRACTOR, INC.DECLARATION OF SERVICE BY MAIL |, FAYE BOYARS, declare and state: That! am employed in the County of San Francisco, State of California. | am over the age of eighteen (18) and not a party to the within action; my business address is 369 Pine Street, Suite 800, San Francisco, California 94104. On February 3 , 2006, I served the documents described as DEFENDANT SYD CARPENTER MARINE CONTRACTOR, INC.'S ANSWER TO COMPLAINT FOR DAMAGES - (WRONGFUL DEATH) NEGLIGENCE, STRICT LIABILITY, ENTERPRISE LIABILITY, FALSE REPRESENTATION, [RESTATEMENT SEC. 402-B]- SURVIVAL ACTION, PUNITIVE DAMAGES(ASBESTOS) on the interested parties by mail, postage fully prepaid, addressed as follows: OU Lee LLP San Francisco, CA 94111 | am readily familiar with this office's practice for collection and processing of correspondence for mailing and that correspondence will be deposited in the United States Postal Service on the date written below in the ordinary course of practice at San Francisco, California. Executed on February.S, 2006, at San Francisco, Califomia. | declare under penalty of perjury under the laws of the State of California that the above Is true and correct. FAY! ARS ANSWER TO PLAINTIFFS COMPLAINT 13