Answer: HAROLD KOEPKE et al VS. FORD MOTOR COMPANY et al

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JOHN W. RANUCCI, State Bar No. 184801

jwr@licllp.com
MARIA

M. LAMPASONA, State Bar No. 259675

mlampasona@llcllp.com

LOMBARDI, LOPER & CONANT, LLP
Lake Merritt Plaza

1999 Harrison Street, Suite 2600
Oakland, CA 94612-3541

Telephone: (510) 433-2600

Facsimile: (510) 433-2699

Attorneys for Defendant
THE HERTZ CORPORATION

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JAN 10 2014

Clerk of the Court
BY: ROMY RISK
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE CITY AND COUNTY OF SAN FRANCISCO

HAROLD KOEPKE and NANCY
KARIDIS-KOEPKE, .

Plaintiffs,
v.

FORD MOTOR COMPANY; A.B.C.
MOBILE SYSTEMS, individually and as
successor in interest, parent, alter ego, and
equitable trustee of ASSOCIATED
BRAKE COMPANY and WESTERN
STATES BRAKE MANUFACTURING;
AMERICAN HONDA MOTOR CO. INC,;
BELL INDUSTRIES INC., individually
and as successor in interest, parent, alter
ego, and equitable trustee of ROX
AUTOMOTIVE; BELNORTEL
CORPORATION, d.b.a. A.B.C. MOBILE
BRAKE OF SAN FRANCISCO;
BORGWARNER MORSE TEC INC.,
individually and as successor in interest,
parent, alter ego and equitable trustee of
BORG-WARNER CORPORATION;
BURLINGAME AUTO SUPPLY;
CONTINENTAL AUTOMOTIVE
SYSTEMS, INC., individually and as
successor in interest, parent, alter ego and
equitable trustee of CONTINENTAL
TEVES, INC.; COOPER INDUSTRIES,
LLC, individually and as successor in
interest, alter ego and equitable trustee of
PNEUMO ABEX, LLC and ABEX
CORPORATION; DON L. MORRIS,
INC.; FMC CORPORATION-JOHN

00925-43319 JWR 651544,1

Case No. CGC-13-276217

DEFENDANT THE HERTZ
CORPORATION’S ANSWER TO
PLAINTIFFS’ COMPLAINT FOR
PERSONAL INJURIES; NEGLIGENCE;
BREACH OF WARRANTIES; STRICT
LIABILITY; FRAUD; CONSPIRACY;
PREMISES LIABILITY; AND LOSS OF
CONSORTIUM

Complaint filed: 12/3/2013

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DEFENDANT THE HERTZ CORPORATION'S ANSWER TO PLAINTIFFS’ COMPLAINE:CONANT, LLP

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BEAN AUTOMOTIVE EQUIPMENT
SERVICE DIVISION of FMC
CORPORATION; FOLSOM AUTO
SUPPLY; GENUINE PARTS
COMPANY; H.M. ROYAL, INC.;
HONEYWELL INTERNATIONAL, INC.,
fka ALLIED SIGNAL, INC., as Successor-
In-Interest to the BENDIX
CORPORATION; KELSEY-HAYES
COMPANY; LEAR SIEGLER
DIVERSIFIED HOLDINGS CORP.,
individually and as successor in interest,
parent, alter ego and equitable trustee of
ROYAL INDUSTRIES, INC.; LES
VOGEL CHEVROLET COMPANY;
MORTON INTERNATIONAL, INC.,
individually and as successor in interest,
parent, alter ego and equitable trustee of
THIOKOL CORPORATION; NATIONAL
AUTOMOTIVE PARTS ASSOCIATION;
PARKER HANNIFIN CORPORATION;
individually and as successor in interest,
parent, alter ego and equitable trustee of
EIS BRAKE PARTS AND INDUSTRIAL
& AUTOMOTIVE ASSOCIATES, INC.,
d.b.a. CALI-BLOCK; PNEUMO ABEX
LLC, individually and as successor in
interest, parent, alter ego and equitable
trustee of ABEX CORPORATION; ROX
AUTOMOTIVE; SHELL OIL
COMPANY; SPECIALTY FOREIGN
AUTO PARTS, INC. individually and as
successor in interest, parent, alter ego aud
equitable trustee of SPECIALTY
FOREIGN AUTO PARTS; THE BUDD
COMPANY; THE HERTZ
CORPORATION; VOLK WAGEN
GROUP OF AMERICA, INC,; TOYOTA
MOTOR SALES, U.S.A., INC.; W.
BERRY HURLEY CORPORATION,
d.b.a, FEDERAL AUTO PARTS;
METROPOLITAN LIFE INSURANCE
COMPANY; FIRST DOE through FOUR
HUNDREDTH DOE, inclusive,

Defendants.

COMES NOW Defendant THE HERTZ CORPORATION and answers the complaint on

file herein and denies, admits and alleges as

follows:

GENERAL DENIAL

Under the provisions of § 431.30 of the Califomia Code of Civil Procedure, defendant

00925-43319 JWR 651544.)

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DEFENDANT THE BERTZ CORPORATION'S ANSWER TO PLAINTIFFS’ COMPLAINT8
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LOMBARDI, LOPER & CONANT, LLP

THE HERTZ CORPORATION denies generally and specifically, each every allegation contained
in plaintiffs’ complaint on file herein, and in each and every cause of action therein contained,
and further denies that plaintiffs were damaged in any sum or sums at all, as alleged in said
complaint or otherwise.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

That the complaint, and each cause of action stated therein, fails to state facts sufficient to
constitute a cause of action against this defendant.
SECOND AFFIRMATIVE DEFENSE

That plaintiffs, the complaint and the court lacks jurisdiction over this defendant.
THIRD AFFIRMATIVE DEFENSE
Plaintiffs’ Complaint, and each stated cause of action, is barred by the applicable statutes
of limitations, including, but not limited to, Code of Civil Procedure sections 335.1, 337, 338,
339, 340.2 and 361.
FOURTH AFFIRMATIVE DEFENSE
That defendant was not part of the chain of distribution of the allegedly defective products
and therefore, is not liable to plaintiffs.
FIFTH AFFIRMATIVE DEFENSE
That plaintiffs have unreasonably delayed the commencement of this action and
prejudiced this answering defendant such that the doctrine of laches bars the complaint and each
cause of action therein.
SIXTH AFFIRMATIVE DEFENSE
That the conduct of the plaintiffs serves as a waiver of any breach by defendant.
SEVENTH AFFIRMATIVE DEFENSE

The plaintiffs’ causes of action are completely or partially barred under the doctrine of
estoppel.
Vil
MT

00925-43319 JWR 651544.1 -3-

DEFENDANT THE HERTZ CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINTLake M

LOMBARDI, LOPER & CONANT, LLP
4999 Harrison

Oakland, CA 9:

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EIGHTH AFFIRMATIVE DEFENSE
That plaintiffs’ damages, if any, are completely or in part the result of plaintiffs’ failure to
mitigate as required by law.
NINTH AFFIRMATIVE DEFENSE
‘That should plaintiffs recover damages against defendant, defendant is entitled to have the
amount abated, reduced or eliminated to the extent plaintiffs’ negligence caused or contributed to
his/her injuries and damages, if any.
TENTH AFFIRMATIVE DEFENSE
That plaintiffs knowingly assumed the risk of any injury or damage alleged in the
complaint.

ELEVENTH AFFIRMATIVE DEFENSE

That this defendant is liable, if at all, only for its proportion of liability/damages as set

forth by Civil Code section 1431 et seq.
TWELFTH AFFIRMATIVE DEFENSE

That parties to this action other than this answering defendant, as well as non-parties, were
negligently or legally responsible, or otherwise at fault for any damages alleged in the complaint,
which damages are herein denied and therefore, in the event of any liability, whether by
settlement or judgment in favor of any other party against this answering defendant, the court or
jury should apportion fault as to all parties. Furthermore, this answering defendant requests a
judgment and declaration of indemnification and contribution against all other parties or persons
in accordance with the apportionment of fault between the parties.

THIRTEENTH AFFIRMATIVE DEFENSE

That during the relevant time and/or times, defendant did not supervise or exercise control
over plaintiffs or plaintiffs’ employers’ work.

FOURTEENTH AFFIRMATIVE DEFENSE

That the negligence of plaintiffs’ employers, other than this answering defendant, was the

proximate cause of the injuries and damages, if any, sustained by plaintiffs.

90925-43319 TWR 651544.1 -4-

DEFENDANT THE HERTZ CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINTSONANT, LLP

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FIFTEENTH AFFIRMATIVE DEFENSE
That plaintiffs’ employers, other than this answering defendant, assumed the risks incident
to all matters relevant to this action.
SEXTEENTH AFFIRMATIVE DEFENSE
‘That plaintiffs’ injuries, if any, were covered by Worker’s Compensation Insurance and
that Worker’s Compensation is plaintiffs’ exclusive remedy.
SEVENTEENTH AFFIRMATIVE DEFENSE
That if plaintiffs suffered injuries attributable to the use of any product referred to in
plaintiffs’ complaint, which injuries are expressly denied, the injuries were solely caused and
attributable to plaintiffs’ unreasonable, unforeseeable and inappropriate purpose and improper use
of the products and the failure by plaintiffs, or others, to follow label instructions.
EIGHTEENTH AFFIRMATIVE DEFENSE
That all activities of this answering defendant alleged in the complaint, conform to
statutes, governmental regulations and industry standards based upon the state of knowledge
existing at the time alleged in the complaint and each cause of action therein.

NINETEENTH AFFIRMATIVE DEFENSE

That the benefits of the asbestos-containing products referred to in plaintiffs’ complaint

outweigh the risks of danger, if any, inherent in such products.
TWENTIETH AFFIRMATIVE DEFENSE

That any injuries resulting from the use of the subject products, which injuries are herein
denied, were not foreseeable to this answering defendant given the state of knowledge and state
of art at the time of the alleged injuries.

TWENTY-FIRST AFFIRMATIVE DEFENSE

That the products alleged in the complaint were used by a sophisticated user/intermediary,
and said user/intermediary having adequate and complete warnings of the risk involved in the use
of said products, this answering defendant had and has no duty to independently warn plaintiffs of

the said risks such that plaintiffs’ claims are thereby barred.

00925-43319 JWR 651544.1 -5-

DEFENDANT THE HERTZ CORPORATION'S ANSWER TO PLAINTIFFS’ COMPLAINTSuite 2600

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4999 Herrison

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TWENTY-SECOND AFFIRMATIVE DEFENSE
That the products alleged in the complaint were misused by plaintiffs.
TWENTY-THIRD AFFIRMATIVE DEFENSE

That at all times and places alleged in the complaint, plaintiffs were not in privity of
contract with defendant and said lack of privity bars plaintiffs’ recovery herein upon any theory
of warranty.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

That this answering defendant was not engaged in any ultra hazardous activity or in the
manufacture, formulation, packaging, labeling, distribution or sale of any product, such that this
answering defendant cannot be held strictly liable.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

‘That plaintiffs and/or his/her agents and representatives failed to properly maintain,
preserve, and protect any product allegedly designed, manufactured or sold by defendant and
thereby spoliated evidence crucial to defendant’s defense, which spoliation precludes any
recovery by plaintiffs.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Defendant sued herein had no information to acquire notice concerning the alleged defect
alleged in plaintiffs’ Complaint herein.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

The cross-complaint, and each purported cause of action alleged therein, fails to state a
cause or causes of action for punitive damages.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

The cross-complaint, and each purported cause of action alleged therein, fails to state a
cause or causes of action for prejudgment interest.

TWENTY-NINTH AFFIRMATIVE DEFENSE

That defendant is not vicariously liable for any of the acts or omissions alleged in
plaintiffs’ Complaint under the case of Privette v. Superior Court, (1993) 5 Cal.4th 689 and its

progeny.

00925-43319 JWR 651544.1 -6-

DEFENDANT THE HERTZ CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINTLOMBARDI, LOPER & CONANT, LLP

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THIRTIETH AFFIRMATIVE DEFENSE
That defendant has no duty to plaintiffs as a matter of law because plaintiffs were

employed by an independent contractor. Defendant also owes no duty to plaintiffs because
plaintiffs’ injuries, if any, were caused by a condition or danger, if any, which was or should have
been obvious to him/her.

WHEREFORE, this answering defendant prays for judgment as follows:

1. That plaintiffs take nothing by reason of the complaint filed herein;

2. That this answering defendant be awarded costs of suit incurred hereiri;

3. That if defendant is found liable, that the degree of responsibility and liability for the
resulting damages be determined, and that defendant be liable only for that portion of total
damages in proportion to its total responsibility for same; and

4, For such other and further relief as the court deems just and proper.

Dated: January 10, 2014 LOMBARDI, LOPER & CONANT, LLP

By:

‘TORK W. T
Attoritys fefendant
THE HERTZ CORPORATION

00925-43319 JWR 651544.1 -7-

DEFENDANT THE HERTZ CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINTCONANT, LLP

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Suite 2600

203541

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1999 Harrison
Oakland, CA 9.

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PROOF OF SERVICE
Harold Koepke, et al. v. Ford Motor Company, et al.
San Francisco County Superior Court Case No.: CGC-13-276217

Thereby declare:

Tam a citizen of the United States, over 18 years of age and not a party to the within
action, | am employed in the county of Alameda; my business address is Lake Merritt Plaza,
1999 Harrison Street, Suite 2600, Oakland, CA 94612-3541.

On January 10, 2014, I electronically served the document(s) via Lexis Nexis File &
Serve described below:

DEFENDANT THE HERTZ CORPORATION’S ANSWER TO PLAINTIFFS’

COMPLAINT FOR PERSONAL INJURIES; NEGLIGENCE; BREACH OF

WARRANTIES; STRICT LIABILITY; FRAUD; CONSPIRACY; PREMISES
LIABILITY; AND LOSS OF CONSORTIUM

on the recipients designated on the Transaction Receipt located on the Lexis Nexis File & Serve
website. I declare under penalty of perjury pursuant to the laws of the State of California that the

foregoing is true and correct and was executed on January 10, 2014, at Oakland, California.

/s/ Alexine Braun

ALEXINE BRAUN

00925-43319 JWR 651544.1 ~8-

DEFENDANT THE HERTZ CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINTlof3

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File & ServeXpress Transaction Receipt

Transaction ID: 54828227

Submitted by: ALEXINE BRAUN, Lombardi Loper & Conant
Authorized by: John W Ranucci, Lombardi Loper & Conant
Authorize and file on: Jan 10 2014 12:59PM PST

Court: CA Superior Court County of San Francisco-Civil
Division/Courtroom: N/A

Case Class: Civil

Case Type: Personal Injury-Asbestes

Case Number: 276217

Case Name: Koepke, Harold et al vs Ford Motor Co et al (Kazan McClain)
Transaction Option: Serve Only - Public

Billing Reference: 00925-43319

Read Status for e-service: Not Purchased

Documents List
1 Document(s)

Attached Document, 8 Pages Document ID: 58089585 PRE Format | Original Format
Document Type: Access: Statutory Fee: Linked:
Answer (Original) Public $0.00

Document title:
Def. THE HERTZ CORPORATION'S Answer to Plaintiffs’ Compiaint

Expand All
=] _Sending Parties (1)

Party Party Type Attorney Firm Attorney Type
Hertz Corp Defendant Ranucci, John W Lombardi Loper & Conant Attorney in Charge

(=]_Recipients (31)
-} Service List (31)

Delivery Party Attorney
Option Party Type Attorney Firm ‘Type Method
a American Honda Motor ; Lewis Brisbois Bisgaard & Attorney in a .
Service Co Ine Defendant Foley, Patrick J Smith LLP-Los Angeles Charge £-Service
Service Bell Industries Inc_-—-«Defendant Park, Ann I Pond North LLP charge, i E-service
. O'Neill, Tarkington ONeill Barrack & Attorneyin  ..
Service Belnortell Corp Defendant Stephen F Chong Charge E-Service

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Service

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Service

Service

Service

Service

Service

Service

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Service

Service

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Service

Service

Service

Service

Service

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Service

Borg Warner Corp Defendant
BorgWamer Morse TEC Defendant
Ince

Continental

Automotive Systems Defendant
Inc

Cooper Industries LLC Defendant

Cooper industries LLC Defendant

Designated Defense Defendant
Counsel

FM C Technologies Inc Defendant
Ford Motor Co. Defendant
Genuine Parts Co Inc Defendant
H M Royal Inc Defendant
HM Royal Inc Defendant
Honeywell

International Inc Defendant
Honeywell

International Inc Defendant
Karidis-Koepke, Nancy Plaintiff
Karidis-Koepke, Nancy Plaintiff
Kelsey Hayes Co Defendant

Koepke, Harold Plaintiff
Koepke, Harold Plaintiff
Lear Siegler Diversified

Holdings Corp Defendant
Metropolitan Life Defendant
insurance Co

National Automotive

Parts Association Defendant
Parker Hannifin Corp Defendant
Preumo Abex LLC Defendant
Shell Oi! Co Defendant

Thyssenkrupp Budd Co Defendant

Toyota Motor Sales

USA Inc Defendant

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- | Attomey in
Chew, Kirnberly Burnham Brown-Oakland Charge E-Service
Gillespie, os os
Jeffrey S Burnham Brown-Oakland — Attorney E-Service
Bergstrom, Becherer Kannett & Attorney in E-Service
Emily D Schweitzer-Emeryville Charge
i aq a Stevens Drummond & Attorney in
Gifford, David A Gifford Charge E-Service
Maul, Donna L Brydon Hugo & Parker-San Attorney ine conics
Francisco Charge
Counsel, 4 Attorney in
Asbestos BRB Berry & Berry-Oakland Charge E-Service
Hartley, ; Attorney in. a
Edward E Hassard Bonnington LLP Charge E-Service
Nixon Peabody LLP - Main Attorney in se
Petty, Ross unt Charge E-Service
Pond, Frank D Pond North LLP Attorney ne service
Charge
Renstrom, Jackson Jenkins Renstrom Attorneyin i
Peter K LLP Charge E-Service
Marston, John Jackson Jenkins Renstrom Attorneyin _ .
M LLP Charge EService
Ongaro, David Thompson & Knight LLP-San Attorney in E-Service
Francisco Charge
os ‘Thompson & Knight LLP-San Attorney in i e
Haines, Susan pancieco Charge E-Service
Kazan McClain Satterley
Bosch, Carole Lyons Greenwood & anorney in E-Service
Oberman ra
Kazan McClain Satterley s
fatterley, Lyons Greenwood & homey 0 E-Service
p Oberman rae
se McKenna Long & Aldridge Attorney in a *
Oberg, Lisa LLP-San Francisco Charge E-Service
Kazan McClain Satterley Attorney in
Bosch, Carole Lyons Greenwood & Chai st E-Service
Oberman rai
Kazan McClain Satterley ;
Satterley, Attorney in
Lyons Greenwood & E-Service
Joseph Oberman Charge
Keesal Young & Logan-San_ Attorney in a
Cox, John C Francisco Charge E-Service
Steptoe & Johnson LLP-Los Attorney in
Petrovsky, Lisa Angeles Charge E-Service
Attomey in _ .
Pond, Frank D Pond North LLP Charge E-Service
Tavera, Attorney in .
Leonard Semper Law Group Charge E-Service
Maul, Donna L Brydon Hugo & Parker-San Attoreyin fe convice
Francisco Charge
Nixon Peabody LLP~ Main Attorney in .
Petty, Ross Account Charge E-Service
Kaplan, S Gordon & Rees-San Attorney in .
Mitchell Francisco Charge E-Service
Counsel, BHP Brydon Hugo & Parker-San Attorney in E-Service
Francisco Charge

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Carroll Burdick &

Volkswagen Group of Sanderson, Attorney in .
Service Defendant ' McDonough LLP-San E-Service
America Inc Garrett Francisco Charge
Carroll Burdick &
Service Volkswagen Group of Defendant Cruz, Peter McDonough LLP-San Attorney E-Service
America Inc Franci

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(]_Case Parties

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