Answer: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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Edward R. Hugo [Bar No. 124829]
John A. Holman [Bar No. 176947]

bh
Bm)

ASBESTOS DEFENDANTS (B*P}, et al, _ ASBESTOS

—

2 pean HUGO & PARKER ELECTRONICALLY

135 Main Street, 20th Floor
3 STE 8 Or oan 0 sunt wit iL ED ie

: 7 County of San Franci
4 ||Bacsimile: (415) 808-0333 TO
AUG 02 2007

5 || Attorney for Defendant GORDON PARK-LI, Cler

NIBCO INC, BY: VANESSA WU
6 Deputy Clerk
7 .

SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
IN AND FOR THE COUNTY OF SAN FRANCISCO

9

LOUIS CASTAGNA, (ASBESTOS)

10 Case No. CGC-07-274230
Plaintiff,
11 VS. ANSWER OF NIBCO INC. TO
COMPLAINT FOR PERSONAL INJURY —
|

Defendants.

Re ee ee
Gt He &®

ladmits, denies, and alleges as follows:

GENERAL DENIAL

=

any amount whatsoever from NIBCO,

RESERVATION OF RIGHT TO TRIAL BY JURY
NIBCO reserves the right to a trial by jury.

1
BRYDON
Tluce & PARKER
135 MAIN STREET
20 BLOOW
Sen Trancisco, CA 941106

for itself and any alternate entities named in the complaint, and answering plaintiff's

Complaint for Personal Injury — Asbestos (hereinafter the “Complaint”), on file herein,

NIBCO INC’S ANSWER TO COMPLAINT FOR PERSONAL INJURY |
Case No. COR 07- 278230

COMES NOW Defendant NIBCO INC. (“NIBCO” or “Defendant”) denying liability

Under the provisions of Section 431.30{d}, California Code of Civil Procedure, this
answering defendant denies each and every allegation of plaintiff's Complaint and the
whole thereof, and denies that plaintiff has been damaged in any sum or amount

whatsoever, or at all, and denies that plaintiff is entitled to recover damages of any. kind in

t
i
3
2
1
i
'BRYON
Fogo & Paneer:
TEMANSTRET

see Frencoy CASSIE

jaction for relief alleged therein, fails to state a cause of action against this answering!

|1, Section 7, of the Constitution of the State of California.

protection of the laws as preserved by the Fourteenth Amendment of the United States

AFFIRMATIVE DEFENSES.
FIRST AFFIRMATIVE DEFENSE
Failure to State a Cause of Action
This answering defendant alleges that plaintiff's Complaint and each of the causes of

defendant.
SECOND AFFIRMATIVE DEFENSE
Contravention of Defendant's Constitutional Rights to Due Process of Law
‘The Complaint and each cause of action thereof, which is admittedly based upon aj
lack of identification of the manufacturer of, and contractor using or distributing thel
alleged injury-causing product, fails to state facts sufficient to constitute a cause of action in|
that plaintiff has asserted a claim for relief which, if granted, would contravene defendant's}
constitutional rights to substantive and procedural due process of law as preserved foi

defendant by the Fourteenth Amendment of the United States Constitution and by Article;

THIRD AFFIRMATIVE DEFENSE
Denial of titutional Ri Protection of the Laws
The Complaint, and each cause of action thereof, fails to state facts sufficient to|
constitute a cause of action in that plaintiff has asserted claims for relief which, if granted,|
‘would constitute a denial by this Court of defendant’s constitutional right to equal

Constitution and by Article I, Section 7, of the Constitution of the State of California.
FOURTH AFFIRMATIVE DEFENSE
tutional Taking of Private Pri for Public Use Without Just Compensation
The Complaint, and each cause of action thereof, which is admittedly based upon a
lack of identification of the manufacturer, and contractor using or distributing the alleged|

injury-causing product, fails to state facts sufficient to constitute a cause of action in thai

2

NICO INC’S ANSWER TO COMPLAINT FOR PERSONAL INJURY .
Cask No, CGC-07-274230]eeu nar wn

Bayvon

Huo & PAIKER,

private property for public use without just compensation in contravention of the Fifth and|
Fourteenth Amendments to the United States Constitution and by Article I, Section 7 and|
|19, of the Constitution of the State of California, and the applicable California statutes. {

plaintiff has asserted claims for relief which, if granted, would constitute the taking of|

FIFTH AFFIRMATIVE DEFENSE
Comparative Fault

‘This answering defendant alleges that the damages, if any, complained of by
plaintiff, were proximately caused by the negligence, fault, breach of contract and/or strict}
liability of plaintiff or other defendants, firms, persons, corporations, unions, employers|
and entities other than H.B. FULLER, and that said negligence, fault, breach of contract]
and/ot strict liability comparatively reduces the percentage of any negligence, fault, breach|
of contract or strict liability for which NIBCO is legally zesponsible, if any be found, which,
liability this defendant expressly denies. Further, this answering defendant alleges that|
plaintiff did not exercise ordinary care, caution or prudence to avoid the incidents|
complained of herein, and said incidents and the injuries and damages, if any, sustained by|
plaintiff, were directly and proximately caused and contributed to by the carelessness and;
negligence of said plaintiff,

SIXTH AFFIRMATIVE DEFENSE
Contributory Negligence

This answering defendant alleges that plaintiff did not exercise ordinary care]
caution or prudence to avoid the incidents complained of herein, and said incidents and the,
injuries and damages, if any, sustained by plaintiff, were dircetly and proximately caused!
and contributed to by the carelessness and negligence of said plaintiff.

SEVENTH AFFIRMATIVE DEFENSE
Uncertainty
This answering defendant alleges that plaintiff's Complaint and all purported causes)

of action therein are vague, ambiguous and uncertain, and fail to state a cause of action on|

3

NICO INC'S ANSWER TO COMPLAINT FOR PERSONAL INJURY

CASE NO, CGC-07-274230"
iany theory.
EIGHTH AFFIRMATIVE DEFENSE
Laches
This answering defendant alleges that plaintiff unreasonably delayed in bringing}

this action and that such delay substantially prejudiced defendant, and that this action is|

‘therefore barred by the Doctrine of Laches.

NINTH AFFIRMATIVE DEFENSE
Statute of Limitations I
‘This answering defendant alleges that plaintiff's Complaint and the purported|
causes of action therein are barred by all statutes of limitation, including, but not limited to,
‘the provisions of California Code of Civil Procedure §§ 338, 338.1, 339(1), 340, 340(3) and
340.2, 343, 352, 366.1, 366.2 and California Commercial Code § 2725. Plaintiff's claims arel
further barred by the statute of limitations of states other than California pursuant to]
‘California Code of Civil Procedure § 361.
TENTH AFFIRMATIVE DEFENSE
Failure to Mitigate
‘This answering defendant alleges that plaintiff failed to mitigate damages which|
plaintiff contends he suffered, and plaintiff is therefore barred from any recovery]
‘whatsoever, or alternatively, any damages found must be reduced in proportion to such|
failure to mitigate. i
ELEVENTH AFFIRMATIVE DEFENSE
Estoppel

‘This answering defendant alleges that as a result of the acts, conduct and/or|
omissions of plaintiff and his agents, or any of them, and each cause of action presented.

therein, is barred under the Doctrine of Estoppel.

4 }

NIBCO INC'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
Case No. CGC-07-274230)© ON aae won a

BRYON

Hugo & PARKER:
“aEManSreeer

“a Roem
sa rionnsen, Ch 905

| exposure is claimed as is described in the Complaint and is therefore batred from any relief]
| prayed for.

TWELFTH AFFIRMATIVE DEFENSE
Waiver
‘This answering defendant alleges that plaintiff, by his acts, conduct and omissions,
has waived the claims alleged in his Complaint and in each purported cause of action!
alleged therein.
THIRTEENTH AFFIRMATIVE DEFENSE.
Acquiescence
Plaintiff acknowledged, ratified, consented to, and acquiesced in the alleged acts or!
lomissions, if any, of this answering defendant, thus barring plaintiff from any relief as|
‘prayed for herein.
FOURTEENTH AFFIRMATIVE DEFENSE
Notice of Dangers
Plaintiff was advised, informed, and warned of any potential hazards and/or]
dangers, if there were any, associated with the normal or foreseeable use, handling, storage,

and in place asbestos of the products, substances, equipment and at premises in which|

FIFTEENTH AFFIRMATIVE DEFENSE
Compliance with Statutes
This answering defendant alleges that all of its conduct and activities as alleged in]
the plainti#’s Complaint conformed to statutes, government regulations, and industry]
standards based upon the state of knowledge existing at all relevant times.
SIXTEENTH AFFIRMATIVE DEFENSE
Compliance with Specifications
‘This answering defendant alleges that the asbestos products or asbestos used or in|
place at any premises, if any, for which NIBCO had any legal responsibility, were

manufactured, packaged, distributed or sold in accordance with contract specifications

5

NIBCO INC’S ANSWER TO COMPLAINT FOR PERSONA. INJURY
Cast No. CGC-07-274230:wey anane ON

‘BRYON

Hugo & PARKER

‘sco Franasra, CADHIS

jor otherwise of any other defendant or entity because NIBCO did not become legal;

Plaintiff was proximately and legally caused by the negligent or willful acts or omissions of

imposed by its co-defendants, by the U.S. Government, by the State of California, by|
plaintiff's employers, or by third parties yet to be identified.
SEVENTEENTH AFFIRMATIVE DEFENSE |
No Conspiracy
This answering defendant alleges that NIBCO has no liability for the acts, omissions|

responsible for the acts of any such defendant, nor entity, by any communication, alleged|

implied, or actual, nor act, action, or activity, and never was, nor is, a conspirator nor co-
conspirator with any other defendant or entity.

EIGHT, ‘TH AFFIRMATIVE DEFENS

State-of-the-Art 1

‘This answering defendant alleges that all of its activities, products, materials and its
premises at issue here at all times were conducted, used, produced, marketed, and|
operated in conformity with the existing scientific, medical industrial hygiene and
consumer knowledge, art and practice and state-of-the-art. !
NINETEENTH AFFIRMATIVE DEFENSE |
No Foreseeable Risk to Plaintiff

‘The state of the medical, scientific, and industrial knowledge and practice was at all
material times such that defendant neither breached any alleged duty owed plaintiff, nor]
‘mew, nor could have known, that its activities, materials, products, activities or premises}
‘presented a foreseeable tisk of harm to plaintiff in the normal and expected course of such!

activities ard uso of such materials and products.
‘TWENTIETH AFFIRMATIVE DEFENSE

No Right to Cont

‘This answering defendant alleges that any loss, injury, or damage incurred by,
i

‘parties which NIBCO neither controlled, nor had the right to control, and was not}

é

NIBCO ING.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY

CasENo. CGC-07-274230)wo aN Ao me YN

| Misuse and Improper Use of Products

| and improper use and abuse which was made of said product by persons or entities other|

proximate cause of any damage, injury or loss to plaintiff.

proximately caused by any acts, omissions, or other conduct of NIBCO.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Action for Relief

This answering defendant alleges the causes of action, if any, attempted to be stated|
and set forth in the Complaint, are barred by the provisions of the Code of Civil Procedure|
of the State of California and/or other statutes of the State of California, including without}
limitation C.CP. § 338(4).

‘TWENTY-SECOND AFFIRMATIVE DEFENSE

This answering defendant alleges that if the plaintiff allegedly suffered injuries
attributable to the disturbance or use of any product for which NIBCO had any legali
responsibility, which allegations are expressly herein denied, the injuries were solely

caused by, and attributable to the unreasonable, unforeseeable, and inappropriate purpose|

than NIBCO.
TWENTY-THIRD AFFIRMATIVE DEFENSE

Due Care and Diligence
This answering defendant alleges that NIBCO exercised due care and diligence in all]

of the matters alleged in the Complaint, and no act or omission by NIBCO was the

Alteration and Misuse of Product
This answering defendant alleges that an insubstantial amount, if any at all, of the|
products containing asbestos distributed, used, supplied by defendant or used or in place!
at any premises owned or controlled by defendant, were not disturbed or used in thel
presence of plaintiff and not supplied to the plaintiff, and if so, were substantially altered

by others and/or used in a manner inconsistent with the labeled directions.

7

NIBCO INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY
‘Case No. CGC-07-274230)"oR
seers Gases

~o eNO ae ON

| negligence and liability of the other persons or entities and not of NIBCO.

TWENTY-f1TH AFFIRMATIVE DEFENSE
Equal or Greater Knowledge of Hazards

‘This answering defendant alleges that any and all products containing asbestos,

used, distributed or supplied by defendant were distributed or supplied to, or for, persons|
or entities who had knowledge with respect to the hazards, if any, resulting from exposure
to products containing asbestos, which knowledge. is equal to or greater than the|
mowledge of NIBCO. |
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Other Parties’ Liability and Negligence
This answering defendant alleges that if there was any negligence or any other form|

of liability on the part of any of the parties named herein, it was the sole and exclusive|

T “SEVENTH AFFIRMA’ FENSE
Apportionment and Offset

This answering defendant is informed and believes and thereon alleges that!
plaintiff's acts and omissions, including plaintiff's agents, servants, and employees acting|
‘within the course and scope of their employment, and others, contributed to the alleged
damages, injury, ot loss, if any, sustained by plaintiff. Defendant requests that the Court

apply the principles of apportionment and offset so as to permit the Court or jury
apportion lisbility according to fault and to grant defendant a corresponding offset against!
any damages awarded to plaintiff, !
JEWENT

Contribution/Equitable Indemnity

This answering defendant alleges, in the event it is held liable to Plaintiff, any such

-EIGHTH AFFIRMATIVE [

liability is expressly herein denied, and any other co-defendants are likewise held liable,
NIBCO is entitled to a percentage contribution of the total liability from said co-defendants)

jin accordance with the principles of equitable indemnity and comparative contribution.

Cast No. CGC-07-274230!| the plaintiff voluntarily accepted this risk.

the market for the asbestos-containing products which allegedly caused plaintiff's injuries,

TWENTY-NINTH AFFIRMATIVE DEFENSE

isk by

n of Employer(s)

This answering defendant alleges that the Complaint and each cause of actior
alleged therein are barred on the grounds that plaintiff's employer or employers knowingly)
entered into and engaged in the operations, acts and conduct alleged in the Complaint, and|
voluntarily and knowingly assumed all of the risks incident to said operations, acts and!
‘conduct at the time and place mentioned in the Complaint.

THIRTIETH AFFIRMATIVE DEFENSE
Assumption of Risk i

This answering defendant alleges plaintiff assumed the risk of the matters referred|

to in his Complaint and that plaintiff knew and appreciated the nature of the risk and that]

IRST AFFT E DEFENSE
No Market Share
This answering defendant alleges that NIBCO did not have an appreciable share of

which occurrence NIBCO expressly denies. Accordingly, NIBCO may not be held liable to
plaintiff based on its alleged share of the applicable product market.
THIRTY-SECOND AFFIRMATIVE DEFENSE |
Plaintiff Fails to Join a Substantial Market Share
The Complaint, and each cause of action thereof, fails to state facts sufficient to)

constitute a cause of action against this answering defendant, in that defendant has failed to}
join a substantial market share of the producers or products to which plaintiff wa:
allegedly exposed.
THIRTY-THIRD AFFIRMATIVE DEFENSE
Insufficient Facts to Show Substantial Market Share of this Defendant
To the extent the Complaint asserts defendant's alleged “alternative,” “market|

9

NIBCO INC'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
Case No. CGC-07-274230)Beypon

‘Huo & Parker
‘EMAnNSTEE

"aIFLOOR
sSavtenteon, CA 3IDS

factor in bringing about the injuries and damages complained of by plaintiff and did not

share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute al
cause of action against this defendant.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Independent, Intervening or Superseding Cause

This answering defendant alleges that if plaintiff suffered any injuries attributable to,

the use of any product containing asbestos which was used, distributed or sold by)
defendant, which allegations are expressly denied herein, the injuries were solely caused by|
jan unforeseeable, independent intervening and/or superseding event beyond the control
and unrelated to any conduct of defendant. Defendant's actions, if any, were superseded)
by the negligence and wrongful conduct of others.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
Nota Substantial Factor

This answering defendant alleges that the Complaint and each cause of action|

therein presented are barred on the grounds that the products, conduct, materials or,

premises of defendant as referred to in plaintiff's Complaint, if any, were not a substantial]

increase the risk that plaintiff would suffer the injuries and damages complained of.
THIRTY-SIXTH AFFIRMATIVE DEFENSE

Insufficient Exposure
Any exposure of plaintiff to defendant's activities, products or exposure to asbestos

or asbestos-containing products at NIBCO’s premises was so minimal as to be insufficient]
{to establish by a reasonable degree of probability that any such product caused any alleged!
injury, damage, or loss to plaintiff.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE |
No Successor Liability
‘This answering defendant alleges that NIBCO has no liability for the acts, omissions

or otherwise of any other defendant or any other entity because NIBCO did not become|

10

““'NIBCO ING.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
CASENO. CGC-07-274230]oe NDT eR ON

BRYDON
HUGO & PARKER
EEMANSTRET

successor-in-liability or an alternate entity for any other user, manufacturer, supplier,

| defendant on the one hand, and plaintiff on the other. i

legally responsible for the acts’of any such defendant or entity given the facts and|

circumstances of the pertinent transactions and never was, nor is, a successor-in-interest, a)

seller, distributor or premises holder relating to asbestos or asbestos-containing products.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE |

Lack of Privity
This answering defendant alleges that plaintiff has failed to state a cause of action in|
that the Complaint fails to allege that there was privity between defendant on the one
‘hand, and plaintiff on the other, and furthermore, such privity did not exist between|

THIRTY-NINTH AFFIRMATIVE DEFENSE
wndary As f Risk

This answering defendant alleges that any and all products containing asbestos|

‘used, distributed or supplied by defendant were used, distributed or supplied to, or for,

‘persons or entities who had knowledge with respect to the hazards, if any, resulting from|
exposure to products containing asbestos, which is equal to or greater than, the knowledge
of NIBCO, ie. NIBCO’s liability should be reduced in proportion to the knowledge o!
plaintiff.
FORTIETH AFFIRMATIVE DEFENSE
Civil Code Section 1431.2

This answering defendant alleges that the provisions of California Civil Code §
1431.2 (commonly referred to as “Proposition 51”) are applicable to plaintiff's Complaint)
and to each cause of action therein.

FORTY-FIRST AFFIRMATIVE DEFENSE
Workers’ Compensation Exclusive Remedy
This answering defendant alleges that the Complaint is barred by the exclusivity|

provisions of the California Workers’ Compensation laws, including, but not limited to,

i

‘NIBCO ING’S ANSWER TO COMPLAINT FOR PERSONAL INJURY
‘Cask No, CGC-07-274230)BryDon

Hugo & Pamer:
BSMANSTRET

ee
ssa nance, CASCIDS

|safety, to guarantee that no hazardous condition existed, and/or to warn and protect}

arising out of said work, and/or any injuries allegedly incurred by plaintiff as a result of

any of said work. NIBCO reserves all rights to assert these provisions of contractuali

\the alleged acts or omissions of NIBCO.

any, were proximately caused or contributed to by plaintiff's unforeseeable idiosyncratic]

California Labor Code §§ 3600, et seq.
FORTY-SECOND AFFIRMATIVE DEFENSE

Offset for Workers’ Compensation Benefits
‘This answering defendant alleges that to the extent plaintiff herein recovered, or in!
the future may recover, any monies in connection with any claim for workers'|
compensation benefits, any amounts recovered in this action are subject to a claim by

defendant for a credit or offset.
FORTY-THIRD AFFIRMATIVE DEFENSE
Express Contractual Indemnity

This answering defendant alleges that if plaintiff daims exposure to asbestos or
asbestos-containing products at a NIBCO premises, NIBCO contracted with plaintiff and/or]

plaintiff's employer(s) for them to fully assume all responsibility for insuring plaintiff's,

against any such conditions, during the performance of plaintiff's work, and, further, to]
fully indemnify NIBCO, and to hold NIBCO harmless, for all responsibility and liability]

indemnity.
FORTY-FOURTH AFFIRMATIVE DEFENSE
Consent

‘This answering defendant alleges that at all times mentioned, plaintiff consented to}

FORTY-FIFTH AFFIRMATIVE DEFENSE

Unusual Suscep'
This answering defendant alleges that each of plaintiff's injuries and damages, i

condition, unusual susceptibility, or hypersensitivity reactions for which NIBCO is not}

BR

a on i
NIBCO INC'S ANSWER TO COMPLAINT FOR PERSONAL INJURY :
Case No, CGC-07-274230)28

BRYDON

Hugo & Paneer,
{SEMAN STREET

senteecaey canoes |

© en ane oO NR

\better position to warn plaintiff of the risk associated with using products containing]

liable.

FORTY-SIXTH AFFIRMATIVE DEFENSE
Good Faith

‘This answering defendant alleges that plaintiff's claim for punitive damages is
barred because NIBCO at all times and places mentioned in the Complaint acted|
reasonably and in good faith, and without malice or oppression towards the plaintiff.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
Sophisticated User
This answering defendant alleges that NIBCO was under no legal duty to warn|

plaintiff of the hazard associated with the use of products containing asbestos or their|
existence at any premises owned, operated, controlled or otherwise by NIBCO. The
purchasers of said products, the plaintiff, plaintiff's employers, his unions or certain third|

parties yet to be identified, were knowledgeable and sophisticated users and were in al

asbestos and, assuming a warning was required, it was the failure of such persons or|
entities to give such a warning that was the proximate and superseding cause of plaintiff’
damages, if any. i
FORTY-EIGHTH AFFIRMATIVE DEFENSE
Work Hazard Precautions

This answering defendant alleges that plaintiff's employer(s) was/were advised and|
warned of any potential hazards and/or dangers associated with the normal and|
foreseeable conduct with, or storage and disposal of the products referred to in the|
Complaint, in a manner which was adequate notice to an industrial user of such product to]
enable it to inform its employees to take appropriate work precautions to prevent injurious|

exposure.

1B

NIBCO INC’S ANSWER TO COMPLAINT FOR PERSONAL INJURY
Cast No. CGC-07-274230)ee N Oo ek YN

BRYDON

Thuco & Parker

Serfrmcan CASEI

FORTY-NINTH AFFIRMATIVE DEFENSE
Failure to Join Indispensable Parties i
Plaintiff herein has failed to join indispensable parties (California Code of Civil
Procedure, § 389) and the Complaint is thereby defective, and plaintiff is thereby precluded|
from any recovery whatsoever as prayed for herein.
FIETIETH AFFIRMATIVE DEFENSE
‘No Standing Under California Civil Code §§ 1708-1710 |
Plaintiff has no standing nor right to sue for fraud and conspiracy, breach of
warranty, deceit, or any cause of action under California Civil Code, §§ 1708-1710, and|
therefore the Complaint and each cause of action thereof fails to state facts sufficient to|
constitute a cause of action against this answering defendant.
i EIFTY-FIRST AFFIRMATIVE DEFENSE
Plaintiff is not a Real Party in Interest
Plaintiff, and each of them, herein lacks legal capacity to sue and is nota real party|
{in interest and is thereby precluded from any recovery whatsoever as prayed for herein.

FIFTY-SECOND AFFIRMATIVE DEFENSE

Era racy are Not Se £ Damages i

Fraud and conspiracy do not constitute a separate and distinct form of damages
from general damages, and, therefore, the prayer for fraud and conspiracy in addition to]
general damages does not sufficiently support or constitute a separate claim for damages|
against this answering defendant, but is simply cumulative and included in general
} damages.

FIFTY-THIRD AFFIRMATIVE DEFENSE
Failure to Allege with Particularity

This answering defendant alleges that plaintiff's Complaint fails to set out its claims|
with sufficient particularity to permit defendant to raise all appropriate defenses and, thus,
defendant reserves the right to add additional defenses as the factual basis for these claims}

4

NIBCO INC’S ANSWER TO COMPLAINT FOR PERSONAL INJURY
Cass No. CGC-07-274230]BRYDON

Hugo & Pawn

seroncion, camai0s |}

warn aan wow ne

| supporting an award of punitive or exemplary damages.

becomes known.
FJETY-FOURTH AFFIRMATIVE DEFENSE

Punitive Damage Prohibited
‘This answering defendant alleges that plaintiff's Complaint fails to state facts!
sufficient to support an award of punitive or exemplary damages against NIBCO. The
Complaint, to the extent that it secks exemplary or punitive damages, violates NIBCO’s
right to procedural due process under the Fourteenth Amendment of the United States
‘Constitution, and the Constitution of the State of California, and fails to state a cause of,
action upon which either punitive or exemplary damages can be awarded.
FIFTY-FIFTH AFFIRMATI

Punitive Damages Prot xd
‘This answering defendant alleges that the Complaint, to the extent that it seeks

EFENSE,

punitive or exemplary damages, violates NIBCO’s right to protection from excessive fines|
as provided in the Fighth Amendment of the United States Constitution and Article 1
Section 17 of the Constitution of the State of California, and violates NIBCO’s right to,
substantive due process as provided in the Fifth and Fourteenth Amendments of thel

United States and California Constitutions, and thus fails to state a cause of action!

FIFTY-SIXTH AFFIRMATIVE DEFENSE
Punitive Damages Prohibited
The causes of action asserted herein by plaintiff fail to state facts sufficient tol
constitute a cause of action in that plaintiff has asserted claims for punitive damages which,
if granted, would violate the prohibition against laws impairing the obligation of contracts|
set forth in Article I, Section 10, of the United States Constitution.
EIETY-SEV) AFFIRMATIVE DEFENSE
Punitive Damages Prohibited
Plaintiff's claim for punitive or exemplary damages, if any, alleged by Plaintiff i

16

NIRCO ING/S ANSWER TO COMPLAINT FOR PERSONAL INJURY
‘Case No, CGC-07-274230‘barred by the “double jeopardy” clause of the Fifth Amendment to the United States
Constitution, as applied to the States through the Fourteenth Amendment.
HIFTY-BIGHTH AFFIRMATIVE DEFENSE
An employee of an independent contractor may not pursue a claim for negligent)
hiring against a hirer of the independent contractor. See Camargo v. Tjaarda Dairy, 25 Cal,
4th 1235 (2001).
HIETY-NINTH AFFIRMATIVE DI

Right to Amend
This defendant will assert any and all additional defenses that arise during the
course of this litigation and reserves the right to amend its answer to assert such defenses.
SIXTIETH AFF EFENSE
Alternate Unknown Cause |
The alleged injuries and damages, if any, may be in whole or in part due to injury,

disease or cause other than as alleged.
SIXTY-FIRST AFFIRMATIVE DEFENSE
NoC Action

There is no concert of action between defendant and any of the other named!
defendants. Defendants are not joint tortfeasors and accordingly, defendant may not be
held jointly and severally liable with the other named defendants.

PRAYER

WIHBEREFORE, this answering defendant prays for judgment as follows:

1. That Plaintiff take nothing by reason of their Complaint or any claims stated|
| therein;
j 2. ‘That Plaintiff's Complaint and each cause of action contained therein be
dismissed with prejudice against NIBCO;

3. For costs of suit; and

16

‘NIBCO ING’S ANSWER TO COMPLAINT FOR PERSONAL INJURY
CasENO, CGC-07-274230)BRYoon

Hoco & Parxer

Se Sercsen CADHO

the circumstances.

DATED: August_/_, 2007

4, For such other and further relief as the Court deems just and appropriate in]

BRYDON HUGO & PARKER

NIBCO INC.

7

‘Case No, CGC-07-274230)tagna, Louis ants (B*P), et
San Francisco County Superior Court Case No. CGC-07-274230
LexisNexis Transaction No. 15816217

PROOF OF SERVICE

Lam a resident of the State of California, over the age of 18 years, and not a

' party to the within action, My electronic notification address is

service@bhplaw.com and my business address is 135 Main Street, 20% Floor, San
Francisco, California 94105. ‘On the date below, I served the following:

ANSWER OF NIBCO INC. TO COMPLAINT FOR PERSONAL INJURY -
ASBESTOS

on the following:

BRAYTON PURCELL LLP AND SEE LEXIS NEXIS SERVICE LIST
222 Rush Landing Road

Novato, CA 949:

Fax: (415) 898-1247

x By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

o By transmitting via facsimile the document(s) listed above to the fax
number(s) set forth above on this date before 5:00 p.m.

© By placing the document(s) listed above in 2 sealed envelope and placing
the envelope for collection and mailing on the date below following the
firm’s ordinary business practices. | am readily familiar with the firm's
practice of collection and processing correspondence for mailing, Under
that practice it would be deposited with U.S. Postal service on the same
day with postage thereon fully prepaid at San Francisco, California in
the ordinary course of business. Iam aware that on motion of party
served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after date of deposit for mailing in

‘idavit.

2 By placing the document(s) listed above in.a sealed envelope designated
for Federal Express overnight delivery and depositing same with Tees
thereupon prepaid, ina laclity regularly maintained by Federal Express,
addressed as set forth above.

by causing personal delivery of the documents(s) listed above to the
person(s) af the address(es) set forth above.

above is true and

{declare under penalty of perjury that fea
‘ranfisco, Califoryi

Executed on August 2, 2007, at San

4

‘PROOF OF SERVICE