Preview
David R. Ongaro (State Bar No. 154698)
David.Ongaro@tklaw.com
Susan Q. Haines (State Bar No. 224611) ELECTRONICALLY
Susan. Haines@tklaw.com
Nevin C, Brownfield (State Bar No. 225175) sopekr IL ED |
Nevin. Brownfield@tklaw.com County of San Francisco.
THOMPSON & KNIGHT LLP JAN 06 2014
650 California Street, Fifth Floor
San Francisco, CA 94108 oclerk of the Court
Telephone: (415) 433-3900 Deputy Clerk
Facsimile: (415) 433-3950
Attorneys for Defendant
HONEYWELL INTERNATIONAL INC., f/k/a
AlliedSignal Inc., Successor-In-Interest To
The Bendix Corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THECOUNTY OF SAN FRANCISCO
HAROLD KOEPKE and NANCY Case No, CGC-13-276217
KARIDIS-KOEPKE,
Assigned for All Pretrial Purposes to:
Plaintiffs, Hon. Teri L. Jackson
Department 503
vs.
ANSWER OF DEFENDANT HONEYWELL
FORD MOTOR COMPANY, et al., INTERNATIONAL INC., F//A
Defendants. ALLIEDSIGNAL INC., SUCCESSOR-IN-
INTEREST TO
THE BENDIX CORPORATION, TO
COMPLAINT
Complaint filed: December 3, 2013
Defendant Honeywell International Inc., f/k/a AlliedSignal Inc., individually and as
successor-in-interest to The Bendix Corporation (“Honeywell”) hereby answers the unverified
Complaint filed on or about December 3, 2013 (“Complaint”) of plaintiffs HAROLD KOEPKE
and NANCY KARIDIS-KOEPKE (“Plaintiffs”) as follows:
GENERAL DENIAL
Pursuant to California Code of Civil Procedure section 431.30(d), Honeywell denies
generally and specifically each and every allegation of each cause of action contained in the
Complaint, and further denies that Plaintiffs have sustained injury or damage in the sums alleged,
ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTor in any other sum or sums, or at all, and that Plaintiffs are entitled to any relief as a result of any
act, conduct, or omission of Honeywell,
AS AND FOR ITS AFFIRMATIVE DEFENSES HEREIN, HONEYWELL
ALLEGES AS FOLLOWS:
FIRST AFFIRMATIVE DEFENSE
1. The Complaint, and each purported cause of action therein, fails to state facts
sufficient to constitute a cause of action against Honeywell.
SECOND AFFIRMATIVE DEFENSE
2. The Complaint, and each purported cause of action therein, is barred, in whole or in
part, by the applicable statutes of limitation and/or repose, including, but not limited to, California
Code of Civil Procedure sections 340 and 340.2.
THIRD AFFIRMATIVE DEFENSE
3. Venue is improper in this Court.
FOURTH AFFIRMATIVE DEFENSE
4, The Complaint, and each purported cause of action therein, is barred, in whole or in
art, by the doctrine of estoppel by virtue of Plaintiffs’ conduct.
FIFTH AFFIRMATIVE DEFENSE
5. The Complaint, and each purported cause of action therein, is barred, in whole or in
art, by the doctrine of laches by virtue of Plaintiffs’ conduct.
SIXTH AFFIRMATIVE DEFENSE
6. The Complaint, and each purported cause of action therein, is barred, in whole or in
art, by the doctrine of waiver by virtue of Plaintiffs’ conduct.
SEVENTH AFFIRMATIVE DEFENSE
7. The Complaint, and each purported cause of action therein, is barred, in whole or in
part, by Plaintiffs’ express assumption of the risks and dangers, if any, associated with the alleged
conditions, conduct, or injuries, with knowledge of such risks and dangers.
EIGHTH AFFIRMATIVE DEFENSE
8. The Complaint, and each purported cause of action therein, is barred, in whole or in
2
ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTpart, by Plaintiffs’ implied assumption of the risks and dangers, if any, associated with the alleged
conditions, conduct, or injuries, with knowledge of such risks and dangers.
NINTH AFFIRMATIVE DEFENSE
9. Some or all of the damages claimed by Plaintiffs are not recoverable under
applicable law. In the event that there is a finding of damages for Plaintiffs, any award or
judgment entered in favor of Plaintiffs must be reduced or offset by the amount of any benefits
Plaintiffs receive, or are entitled to receive, from any source, under applicable law.
TENTH AFFIRMATIVE DEFENSE
10. Plaintiffs’ damages, if any, were directly and proximately caused, or contributed to,
in whole or in part, by the acts and/or omissions and/or fault of other individuals, firms,
corporations, or other entities over whom Honeywell has or had no control or right of control, and.
for whom it is/was not responsible. Said acts and/or omissions and/or fault intervened between,
and/or superseded, the acts and/or omissions and/or fault of Honeywell, if any. Plaintiffs’
recovery against Honeywell, if any, should therefore be barred or diminished in accordance with
applicable law.
ELEVENTH AFFIRMATIVE DEFENSE
ll. Plaintiffs’ damages, if any. were directly and proximately caused, or contributed to,
by Plaintiffs’ own negligence or fault at the times and in the places set forth in the Complaint, or
the negligence or other fault of individuals, firms, corporations, or other entities, over whom
Honeywell has or had no control or right of control, and for whom it is/was not responsible which
were in privity with Plaintiffs. Plaintiffs’ recovery against Honeywell, if any, should therefore be
barred or diminished in accordance with applicable law.
TWELFTH AFFIRMATIVE DEFENSE
12. The Complaint, and each purported cause of action therein, is barred, in whole or in
part, by Plaintiffs’ failure to mitigate damages, if any.
THIRTEENTH AFFIRMATIVE DEFENSE
13. At the times and in the places set forth in the Complaint, any Honeywell product in
question was not being used in the normal and ordinary way, nor was it being used in a manner
3
ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTrecommended by Honeywell, nor for the purposes for which it was designed. To the contrary, any
such Honeywell product was being put to an abnormal use or misuse, and to a use that was not
reasonably foreseeable to Honeywell. Such abnormal use or misuse was the sole, direct and
proximate cause of Plaintiffs’ injuries and damages, if any. Plaintiffs’ recovery against
Honeywell, if any, is therefore barred.
FOURTEENTH AFFIRMATIVE DEFENSE
14. At all times and in all places relevant to the alleged conditions, conduct, or injuries,
Plaintiffs had or should have had notice and knowledge of the risks and dangers, if any, associated
with such conditions, conduct, and injuries, because any such risk or danger was open, obvious,
and apparent to Plaintiffs, Plaintiffs appreciated the danger or risk, and voluntarily assumed any
such danger or risk.
FIFTEENTH AFFIRMATIVE DEFENSE
15. ‘If Plaintiffs sustained any injury or damage as alleged in the Complaint, said injury
or damage was solely, directly, and proximately caused by conditions, circumstances, and/or
conduct of others, beyond the control of Honeywell.
SIXTEENTH AFFIRMATIVE DEFENSE
16. The actions of Honeywell were in conformity with the state of the medical,
industrial, and scientific arts, so that there was no duty to warn Plaintiffs under the circumstances,
or to the extent such a duty arose, Honeywell provided adequate warnings, labels, and/or
instructions concerning any Honeywell product in question. If those warnings, labels, and/or
instructions were not made available or heeded, it is the fault of others and not of Honeywell.
SEVENTEENTH AFFIRMATIVE DEFENSE
17. The Complaint, and each purported cause of action therein, is barred, in whole or in
part, because Plaintiffs have failed to join all necessary and indispensable parties.
EIGHTEENTH AFFIRMATIVE DEFENSE
18. | Honeywell made no express or implied representations or warranties of any kind to
Plaintiffs. To the extent that the alleged representations or warranties were made, they were made
by persons or entities other than Honeywell, and over whom Honeywell has or had no control or
4
ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTright of control.
NINETEENTH AFFIRMATIVE DEFENSE
19. Plaintiffs did not rely upon any representations or warranties made by Honeywell.
To the extent Plaintiffs relied upon any alleged representations or warranties, such reliance was
unjustified.
TWENTIETH AFFIRMATIVE DEFENSE
20. Plaintiffs’ claim for punitive damages, if granted, would be excessive and would
violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Honeywell has not received fair notice that it could be subject to punitive damages in this state for
the conduct alleged. Honeywell’s conduct was not deliberate, and the damages, if any, to
Plaintiffs, were economic. The punitive damages sought by Plaintiffs would be greatly
disproportionate to any actual damages.
TWENTY-FIRST AFFIRMATIVE DEFENSE
21, Plaintiffs’ claim for punitive damages would violate the Eighth Amendment to the
United States Constitution and Article I, Sections | and 17, of the California Constitution because
it seeks to impose an excessive fine upon Honeywell, is penal in nature, and seeks to punish
Honeywell upon vague standards.
TWENTY-SECOND AFFIRMATIVE DEFENSE
22. Plaintiffs’ claim for punitive damages would violate the Equal Protection Clause to
the Fourteenth Amendment to the United States Constitution and Article I, Section 7 of the
California Constitution because it discriminates against Honeywell on the basis of wealth and
because different amounts can be awarded against two or more defendants for the same act when
those defendants differ only in material wealth.
TWENTY-THIRD AFFIRMATIVE DEFENSE
23. Plaintiffs’ claim for punitive damages violates the Due Process Clause of the Fifth
and Fourteenth Amendments to the United States Constitution because it seeks to punish
Honeywell based upon unconstitutionally vague standards,
5
ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTTWENTY-FOURTH AFFIRMATIVE DEFENSE
24, Plaintiffs’ claim for punitive damages would violate the Fifth Amendment to the
United States Constitution and Article I, Section 15 of the California Constitution because it
would expose Honeywell to multiple punishments and fines for the same act or conduct.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
25. Plaintiffs’ claim for punitive damages violates the Due Process Clause of the Fifth
and Fourteenth Amendments to the United States Constitution in the absence of an order
bifurcating that claim from the issue of liability.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
26. Any award of punitive damages in this case would violate the Separation of Powers
Doctrine since this Court and/or the jury would be usurping the exclusive power of the legislature
to define crimes and establish punishment.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
27, Any award of punitive damages in this case would be constitutionally defective as
an ex post facto law prohibited by the California and United States Constitutions. The jury, in
making any such punitive award, would effectively be criminalizing conduct after it has occurred
and without appropriate advance notice to a defendant that such conduct may subject it to criminal
punishment.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
28. The punitive damages sought by Plaintiffs would violate the Due Process Clause of
the Fifth and Fourteenth Amendments to the United States Constitution because Plaintiffs seek to
punish Honeywell in California for alleged conduct that occurred elsewhere.
TWENTY-NINTH AFFIRMATIVE DEFENSE
29. At no time relevant hereto were Plaintiffs exposed to any asbestos from products
designed, manufactured or sold by Honeywell.
THIRTIETH AFFIRMATIVE DEFENSE
30. Any exposure by Plaintiffs to any of Honeywell’s products was so minimal as to be
insufficient, as a matter of law, to have constituted a substantial factor in causing any asbestos-
6
ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTrelated disease.
THIRTY-FIRST AFFIRMATIVE DEFENSE
31. Plaintiffs’ employers were negligent and careless, which negligence and
carelessness were legal and actual causes of, and contributed to, the damages, if any, that Plaintiffs
sustained, and which negligence and carelessness are a bar to the recovery by Plaintiffs, from
Honeywell. Furthermore, Honeywell is entitled to set off any workers” compensation benefits
and/or veterans’ benefits and/or military benefits received or that are to be received by Plaintiffs,
against any judgment that may be rendered in favor of Plaintiffs, against Honeywell, or against
Honeywell and any other defendant or defendants.
THIRTY-SECOND AFFIRMATIVE DEFENSE
32. The Fair Responsibility Act of 1986, codified at California Civil Code section
1431.1 et seg., limits any damages governed thereby, which are awarded to Plaintiffs against
Honeywell, to that portion of Plaintiffs’ non-economic damages, if any, that are attributable to
Honeywell’s percentage of fault or liability, if any.
THIRTY-THIRD AFFIRMATIVE DEFENSE
33. The Complaint, and each purported cause of action therein, is barred, in whole or in
part, by the exclusivity of remedy under the California Workers Compensation Act, California
Labor Code section 3200 et seg.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
34, Plaintiffs’ claims are barred or preempted, in whole or in part, by federal law,
statutes, and regulations.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
35, Honeywell is not liable for Plaintiffs’ injuries, if any, because it did not exercise the
requisite degree of control over the details of Plaintiffs’ work.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
36. Honeywell neither designed, nor manufactured nor sold any of the products alleged
in the Complaint.
7
ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTTHIRTY-SEVENTH AFFIRMATIVE DEFENSE
37. Any products manufactured by Honeywell that incorporated asbestos-containing
materials alleged to have been a cause of, or to have contributed to, any disease contracted by
Plaintiffs, were manufactured in, under, and in conformity with the direction and control of the
United States Government, which at all times material hereto had knowledge superior to that of
Honeywell with respect to the potential hazards of asbestos products; accordingly, no liability can
be imposed upon Honeywell.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
38. — Any and all “market share,” “enterprise,” and/or “concert of action” theories of
iability are inapplicable to Honeywell and/or any of Honeywell’s products in question.
THIRTY-NINTH AFFIRMATIVE DEFENSE
39. Third parties over whom Honeywell has or had no control or right of control, and
‘or whom it is/was not responsible, altered or modified the Honeywell product or products in
question, and such alteration or modification was the sole, direct, and proximate cause of
Plaintiffs’ damages, if any, thereby barring any and all claims against Honeywell.
FORTIETH AFFIRMATIVE DEFENSE
40. The plans or designs, method or technique of manufacturing, assembling, testing,
abeling and sale of any Honeywell product alleged in the Complaint to have caused all or part of
laintiffs’ alleged damages conformed with the state of the art at the time any such Honeywell
roduct was designed, manufactured, assembled, tested, labeled and/or sold by Honeywell,
pursuant to generally recognized and prevailing standards and in conformance with the statutes,
regulations, and requirements that governed the product or products at the time of design,
manufacture, assembly, testing, labeling, and sale.
FORTY-FIRST AFFIRMATIVE DEFENSE
41. The benefits of the design of any Honeywell product in question outweigh any risk
associated with said products, if there was actually any risk, which Honeywell denies.
Honeywell reserves the right, upon completion of its investigation and discovery, to assert
such additional defenses as may be appropriate.
8
ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINToD Rm I DH RB WN
FORTY-SECOND AFFIRMATIVE DEFENSE
42. California Code of Civil Procedure section 361 is a bar to this action because
Plaintiffs’ claims arise in another state and, by the laws of that state, an action cannot be
maintained by reason of the lapse of time and as a consequence, cannot be maintained in this state.
FORTY-THIRD AFFIRMATIVE DEFENSE
43. Another action is pending or has been adjudicated between Honeywell and
Plaintiffs on the same claims alleged in this action, and therefore, pursuant to California Code of
Civil Procedure section 430.10(c), this action is duplicative and vexatious and cannot be
maintained.
FORTY-FOURTH AFFIRMATIVE DEFENSE
44. Honeywell was under no legal duty to warn Plaintiffs of the hazard associated with
the use of products containing asbestos or their existence at any premises owned, operated or
otherwise controlled by Honeywell. The purchasers of said products, Plaintiffs, Plaintiffs’
employers, his unions or certain third parties yet to be identified, were knowledgeable and
sophisticated users who knew or should have known of the risk associated with using products
containing asbestos and, assuming a warning was required, were in a better position to warn
Plaintiffs.
WHEREFORE, Honeywell prays for judgment against Plaintiffs dismissing the Complaint
and each and every purported cause of action alleged against Honeywell therein, and awarding
Honeywell costs, interest, disbursements and such other and/or further relief as the Court may
deem appropriate,
Dated: January 6, 2014 THOMPSAN,& KNIGHT LLP
By:
Susan Q. Haines
Attorneys for Defendant
HONEYWELL INTERNATIONAL INC.
JSik/a AlliedSignal Inc., Successor-in-Interest
to The Bendix Corporation
9
ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTBw oN
oC Um Im
PROOF OF SERVICE
I, Derrick Payne, declare:
lam a citizen of the United States and am employed in the County of San Francisco, State
of California. [ am over the age of 18 years and am not a party to the within action. My business
address is Thompson & Knight LLP, 650 California Street, Fifth Floor, San Francisco, California
94108. On January 6, 2014, I electronically served the following documents via File & Serve
Xpress:
ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC., F/K/4
ALLIEDSIGNAL INC., SUCCESSOR-IN-INTEREST TO
THE BENDIX CORPORATION, TO COMPLAINT
I served these documents on the recipients designated on the Transaction Receipt located on
the File & Serve Xpress website.
I declare under penalty of perjury under the laws of the State of California that the above is
true and correct and that this declaration was executed at San Francisco, California,
tow
Date: January 6, 2014
Derrick Payne
PROOF OF SERVICE
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David R. Ongaro (State Bar No. 154698) David.Ongaro@tklaw.com Susan Q. Haines (State Bar No. 224611) ELECTRONICALLY Susan. Haines@tklaw.com Nevin C, Brownfield (State Bar No. 225175) sopekr IL ED | Nevin. Brownfield@tklaw.com County of San Francisco. THOMPSON & KNIGHT LLP JAN 06 2014 650 California Street, Fifth Floor San Francisco, CA 94108 oclerk of the Court Telephone: (415) 433-3900 Deputy Clerk Facsimile: (415) 433-3950 Attorneys for Defendant HONEYWELL INTERNATIONAL INC., f/k/a AlliedSignal Inc., Successor-In-Interest To The Bendix Corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THECOUNTY OF SAN FRANCISCO HAROLD KOEPKE and NANCY Case No, CGC-13-276217 KARIDIS-KOEPKE, Assigned for All Pretrial Purposes to: Plaintiffs, Hon. Teri L. Jackson Department 503 vs. ANSWER OF DEFENDANT HONEYWELL FORD MOTOR COMPANY, et al., INTERNATIONAL INC., F//A Defendants. ALLIEDSIGNAL INC., SUCCESSOR-IN- INTEREST TO THE BENDIX CORPORATION, TO COMPLAINT Complaint filed: December 3, 2013 Defendant Honeywell International Inc., f/k/a AlliedSignal Inc., individually and as successor-in-interest to The Bendix Corporation (“Honeywell”) hereby answers the unverified Complaint filed on or about December 3, 2013 (“Complaint”) of plaintiffs HAROLD KOEPKE and NANCY KARIDIS-KOEPKE (“Plaintiffs”) as follows: GENERAL DENIAL Pursuant to California Code of Civil Procedure section 431.30(d), Honeywell denies generally and specifically each and every allegation of each cause of action contained in the Complaint, and further denies that Plaintiffs have sustained injury or damage in the sums alleged, ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTor in any other sum or sums, or at all, and that Plaintiffs are entitled to any relief as a result of any act, conduct, or omission of Honeywell, AS AND FOR ITS AFFIRMATIVE DEFENSES HEREIN, HONEYWELL ALLEGES AS FOLLOWS: FIRST AFFIRMATIVE DEFENSE 1. The Complaint, and each purported cause of action therein, fails to state facts sufficient to constitute a cause of action against Honeywell. SECOND AFFIRMATIVE DEFENSE 2. The Complaint, and each purported cause of action therein, is barred, in whole or in part, by the applicable statutes of limitation and/or repose, including, but not limited to, California Code of Civil Procedure sections 340 and 340.2. THIRD AFFIRMATIVE DEFENSE 3. Venue is improper in this Court. FOURTH AFFIRMATIVE DEFENSE 4, The Complaint, and each purported cause of action therein, is barred, in whole or in art, by the doctrine of estoppel by virtue of Plaintiffs’ conduct. FIFTH AFFIRMATIVE DEFENSE 5. The Complaint, and each purported cause of action therein, is barred, in whole or in art, by the doctrine of laches by virtue of Plaintiffs’ conduct. SIXTH AFFIRMATIVE DEFENSE 6. The Complaint, and each purported cause of action therein, is barred, in whole or in art, by the doctrine of waiver by virtue of Plaintiffs’ conduct. SEVENTH AFFIRMATIVE DEFENSE 7. The Complaint, and each purported cause of action therein, is barred, in whole or in part, by Plaintiffs’ express assumption of the risks and dangers, if any, associated with the alleged conditions, conduct, or injuries, with knowledge of such risks and dangers. EIGHTH AFFIRMATIVE DEFENSE 8. The Complaint, and each purported cause of action therein, is barred, in whole or in 2 ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTpart, by Plaintiffs’ implied assumption of the risks and dangers, if any, associated with the alleged conditions, conduct, or injuries, with knowledge of such risks and dangers. NINTH AFFIRMATIVE DEFENSE 9. Some or all of the damages claimed by Plaintiffs are not recoverable under applicable law. In the event that there is a finding of damages for Plaintiffs, any award or judgment entered in favor of Plaintiffs must be reduced or offset by the amount of any benefits Plaintiffs receive, or are entitled to receive, from any source, under applicable law. TENTH AFFIRMATIVE DEFENSE 10. Plaintiffs’ damages, if any, were directly and proximately caused, or contributed to, in whole or in part, by the acts and/or omissions and/or fault of other individuals, firms, corporations, or other entities over whom Honeywell has or had no control or right of control, and. for whom it is/was not responsible. Said acts and/or omissions and/or fault intervened between, and/or superseded, the acts and/or omissions and/or fault of Honeywell, if any. Plaintiffs’ recovery against Honeywell, if any, should therefore be barred or diminished in accordance with applicable law. ELEVENTH AFFIRMATIVE DEFENSE ll. Plaintiffs’ damages, if any. were directly and proximately caused, or contributed to, by Plaintiffs’ own negligence or fault at the times and in the places set forth in the Complaint, or the negligence or other fault of individuals, firms, corporations, or other entities, over whom Honeywell has or had no control or right of control, and for whom it is/was not responsible which were in privity with Plaintiffs. Plaintiffs’ recovery against Honeywell, if any, should therefore be barred or diminished in accordance with applicable law. TWELFTH AFFIRMATIVE DEFENSE 12. The Complaint, and each purported cause of action therein, is barred, in whole or in part, by Plaintiffs’ failure to mitigate damages, if any. THIRTEENTH AFFIRMATIVE DEFENSE 13. At the times and in the places set forth in the Complaint, any Honeywell product in question was not being used in the normal and ordinary way, nor was it being used in a manner 3 ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTrecommended by Honeywell, nor for the purposes for which it was designed. To the contrary, any such Honeywell product was being put to an abnormal use or misuse, and to a use that was not reasonably foreseeable to Honeywell. Such abnormal use or misuse was the sole, direct and proximate cause of Plaintiffs’ injuries and damages, if any. Plaintiffs’ recovery against Honeywell, if any, is therefore barred. FOURTEENTH AFFIRMATIVE DEFENSE 14. At all times and in all places relevant to the alleged conditions, conduct, or injuries, Plaintiffs had or should have had notice and knowledge of the risks and dangers, if any, associated with such conditions, conduct, and injuries, because any such risk or danger was open, obvious, and apparent to Plaintiffs, Plaintiffs appreciated the danger or risk, and voluntarily assumed any such danger or risk. FIFTEENTH AFFIRMATIVE DEFENSE 15. ‘If Plaintiffs sustained any injury or damage as alleged in the Complaint, said injury or damage was solely, directly, and proximately caused by conditions, circumstances, and/or conduct of others, beyond the control of Honeywell. SIXTEENTH AFFIRMATIVE DEFENSE 16. The actions of Honeywell were in conformity with the state of the medical, industrial, and scientific arts, so that there was no duty to warn Plaintiffs under the circumstances, or to the extent such a duty arose, Honeywell provided adequate warnings, labels, and/or instructions concerning any Honeywell product in question. If those warnings, labels, and/or instructions were not made available or heeded, it is the fault of others and not of Honeywell. SEVENTEENTH AFFIRMATIVE DEFENSE 17. The Complaint, and each purported cause of action therein, is barred, in whole or in part, because Plaintiffs have failed to join all necessary and indispensable parties. EIGHTEENTH AFFIRMATIVE DEFENSE 18. | Honeywell made no express or implied representations or warranties of any kind to Plaintiffs. To the extent that the alleged representations or warranties were made, they were made by persons or entities other than Honeywell, and over whom Honeywell has or had no control or 4 ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTright of control. NINETEENTH AFFIRMATIVE DEFENSE 19. Plaintiffs did not rely upon any representations or warranties made by Honeywell. To the extent Plaintiffs relied upon any alleged representations or warranties, such reliance was unjustified. TWENTIETH AFFIRMATIVE DEFENSE 20. Plaintiffs’ claim for punitive damages, if granted, would be excessive and would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Honeywell has not received fair notice that it could be subject to punitive damages in this state for the conduct alleged. Honeywell’s conduct was not deliberate, and the damages, if any, to Plaintiffs, were economic. The punitive damages sought by Plaintiffs would be greatly disproportionate to any actual damages. TWENTY-FIRST AFFIRMATIVE DEFENSE 21, Plaintiffs’ claim for punitive damages would violate the Eighth Amendment to the United States Constitution and Article I, Sections | and 17, of the California Constitution because it seeks to impose an excessive fine upon Honeywell, is penal in nature, and seeks to punish Honeywell upon vague standards. TWENTY-SECOND AFFIRMATIVE DEFENSE 22. Plaintiffs’ claim for punitive damages would violate the Equal Protection Clause to the Fourteenth Amendment to the United States Constitution and Article I, Section 7 of the California Constitution because it discriminates against Honeywell on the basis of wealth and because different amounts can be awarded against two or more defendants for the same act when those defendants differ only in material wealth. TWENTY-THIRD AFFIRMATIVE DEFENSE 23. Plaintiffs’ claim for punitive damages violates the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution because it seeks to punish Honeywell based upon unconstitutionally vague standards, 5 ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTTWENTY-FOURTH AFFIRMATIVE DEFENSE 24, Plaintiffs’ claim for punitive damages would violate the Fifth Amendment to the United States Constitution and Article I, Section 15 of the California Constitution because it would expose Honeywell to multiple punishments and fines for the same act or conduct. TWENTY-FIFTH AFFIRMATIVE DEFENSE 25. Plaintiffs’ claim for punitive damages violates the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution in the absence of an order bifurcating that claim from the issue of liability. TWENTY-SIXTH AFFIRMATIVE DEFENSE 26. Any award of punitive damages in this case would violate the Separation of Powers Doctrine since this Court and/or the jury would be usurping the exclusive power of the legislature to define crimes and establish punishment. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27, Any award of punitive damages in this case would be constitutionally defective as an ex post facto law prohibited by the California and United States Constitutions. The jury, in making any such punitive award, would effectively be criminalizing conduct after it has occurred and without appropriate advance notice to a defendant that such conduct may subject it to criminal punishment. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 28. The punitive damages sought by Plaintiffs would violate the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution because Plaintiffs seek to punish Honeywell in California for alleged conduct that occurred elsewhere. TWENTY-NINTH AFFIRMATIVE DEFENSE 29. At no time relevant hereto were Plaintiffs exposed to any asbestos from products designed, manufactured or sold by Honeywell. THIRTIETH AFFIRMATIVE DEFENSE 30. Any exposure by Plaintiffs to any of Honeywell’s products was so minimal as to be insufficient, as a matter of law, to have constituted a substantial factor in causing any asbestos- 6 ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTrelated disease. THIRTY-FIRST AFFIRMATIVE DEFENSE 31. Plaintiffs’ employers were negligent and careless, which negligence and carelessness were legal and actual causes of, and contributed to, the damages, if any, that Plaintiffs sustained, and which negligence and carelessness are a bar to the recovery by Plaintiffs, from Honeywell. Furthermore, Honeywell is entitled to set off any workers” compensation benefits and/or veterans’ benefits and/or military benefits received or that are to be received by Plaintiffs, against any judgment that may be rendered in favor of Plaintiffs, against Honeywell, or against Honeywell and any other defendant or defendants. THIRTY-SECOND AFFIRMATIVE DEFENSE 32. The Fair Responsibility Act of 1986, codified at California Civil Code section 1431.1 et seg., limits any damages governed thereby, which are awarded to Plaintiffs against Honeywell, to that portion of Plaintiffs’ non-economic damages, if any, that are attributable to Honeywell’s percentage of fault or liability, if any. THIRTY-THIRD AFFIRMATIVE DEFENSE 33. The Complaint, and each purported cause of action therein, is barred, in whole or in part, by the exclusivity of remedy under the California Workers Compensation Act, California Labor Code section 3200 et seg. THIRTY-FOURTH AFFIRMATIVE DEFENSE 34, Plaintiffs’ claims are barred or preempted, in whole or in part, by federal law, statutes, and regulations. THIRTY-FIFTH AFFIRMATIVE DEFENSE 35, Honeywell is not liable for Plaintiffs’ injuries, if any, because it did not exercise the requisite degree of control over the details of Plaintiffs’ work. THIRTY-SIXTH AFFIRMATIVE DEFENSE 36. Honeywell neither designed, nor manufactured nor sold any of the products alleged in the Complaint. 7 ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTTHIRTY-SEVENTH AFFIRMATIVE DEFENSE 37. Any products manufactured by Honeywell that incorporated asbestos-containing materials alleged to have been a cause of, or to have contributed to, any disease contracted by Plaintiffs, were manufactured in, under, and in conformity with the direction and control of the United States Government, which at all times material hereto had knowledge superior to that of Honeywell with respect to the potential hazards of asbestos products; accordingly, no liability can be imposed upon Honeywell. THIRTY-EIGHTH AFFIRMATIVE DEFENSE 38. — Any and all “market share,” “enterprise,” and/or “concert of action” theories of iability are inapplicable to Honeywell and/or any of Honeywell’s products in question. THIRTY-NINTH AFFIRMATIVE DEFENSE 39. Third parties over whom Honeywell has or had no control or right of control, and ‘or whom it is/was not responsible, altered or modified the Honeywell product or products in question, and such alteration or modification was the sole, direct, and proximate cause of Plaintiffs’ damages, if any, thereby barring any and all claims against Honeywell. FORTIETH AFFIRMATIVE DEFENSE 40. The plans or designs, method or technique of manufacturing, assembling, testing, abeling and sale of any Honeywell product alleged in the Complaint to have caused all or part of laintiffs’ alleged damages conformed with the state of the art at the time any such Honeywell roduct was designed, manufactured, assembled, tested, labeled and/or sold by Honeywell, pursuant to generally recognized and prevailing standards and in conformance with the statutes, regulations, and requirements that governed the product or products at the time of design, manufacture, assembly, testing, labeling, and sale. FORTY-FIRST AFFIRMATIVE DEFENSE 41. The benefits of the design of any Honeywell product in question outweigh any risk associated with said products, if there was actually any risk, which Honeywell denies. Honeywell reserves the right, upon completion of its investigation and discovery, to assert such additional defenses as may be appropriate. 8 ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINToD Rm I DH RB WN FORTY-SECOND AFFIRMATIVE DEFENSE 42. California Code of Civil Procedure section 361 is a bar to this action because Plaintiffs’ claims arise in another state and, by the laws of that state, an action cannot be maintained by reason of the lapse of time and as a consequence, cannot be maintained in this state. FORTY-THIRD AFFIRMATIVE DEFENSE 43. Another action is pending or has been adjudicated between Honeywell and Plaintiffs on the same claims alleged in this action, and therefore, pursuant to California Code of Civil Procedure section 430.10(c), this action is duplicative and vexatious and cannot be maintained. FORTY-FOURTH AFFIRMATIVE DEFENSE 44. Honeywell was under no legal duty to warn Plaintiffs of the hazard associated with the use of products containing asbestos or their existence at any premises owned, operated or otherwise controlled by Honeywell. The purchasers of said products, Plaintiffs, Plaintiffs’ employers, his unions or certain third parties yet to be identified, were knowledgeable and sophisticated users who knew or should have known of the risk associated with using products containing asbestos and, assuming a warning was required, were in a better position to warn Plaintiffs. WHEREFORE, Honeywell prays for judgment against Plaintiffs dismissing the Complaint and each and every purported cause of action alleged against Honeywell therein, and awarding Honeywell costs, interest, disbursements and such other and/or further relief as the Court may deem appropriate, Dated: January 6, 2014 THOMPSAN,& KNIGHT LLP By: Susan Q. Haines Attorneys for Defendant HONEYWELL INTERNATIONAL INC. JSik/a AlliedSignal Inc., Successor-in-Interest to The Bendix Corporation 9 ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC. TO COMPLAINTBw oN oC Um Im PROOF OF SERVICE I, Derrick Payne, declare: lam a citizen of the United States and am employed in the County of San Francisco, State of California. [ am over the age of 18 years and am not a party to the within action. My business address is Thompson & Knight LLP, 650 California Street, Fifth Floor, San Francisco, California 94108. On January 6, 2014, I electronically served the following documents via File & Serve Xpress: ANSWER OF DEFENDANT HONEYWELL INTERNATIONAL INC., F/K/4 ALLIEDSIGNAL INC., SUCCESSOR-IN-INTEREST TO THE BENDIX CORPORATION, TO COMPLAINT I served these documents on the recipients designated on the Transaction Receipt located on the File & Serve Xpress website. I declare under penalty of perjury under the laws of the State of California that the above is true and correct and that this declaration was executed at San Francisco, California, tow Date: January 6, 2014 Derrick Payne PROOF OF SERVICE