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

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JACKSON & WALLACE

LLP
34M PRANCISCI

CABRIBIT, A. JACKSON, ESQ., State Bar No. 98119

JULIE A. TORRES, ESQ., State Bar No. 80752

C.J. MANOLI, ESO., State Bar No. 147342 ELECTRONICALLY

JACKSON & WALLACE LLP FILED

55 Francisco Street, 6th Floor Superior Court of California,

San Francisco, CA 94133 County of San Francisco

Tel: 415.982.6300 JUL 24 2007

Fax: 415.982.6700 GORDON PARK-LI, Clark
BY: EDNALEEN JAVIER-LACSON

Attorneys for Defendant - Deputy Clerk

DURAMETALLIC CORPORATION

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

LOUIS CASTAGNA, Case No. 274230
Plaintiff, ANSWER OF DEFENDANT
DURAMETALLIC CORPORATION TO
¥. UNVERIFIED COMPLAINT FOR

PERSONAL INJURY - ASBESTOS
ASBESTOS DEFENDANTS (BHC), et al.

Defendants.

DURAMETALLIC CORPORATION, (a named Defendant in the above-numbered
and cntitled cause, hereinafter referred to as " Defendant"), answers the unverified
Complaint herein on its own behalf and on behalf of no other defendant or entity as follows:

Pursuant to California Code of Civil Procedure section 431.30(d), Defendant denies
generaliy and specifically each and every, all and singular, the ailegations of said Complaint, and
each cause of action thereof and further denies that plaintiff(s) have been damaged in any sum or
sums at all.

Defendant generally and specifically denies that it has any liability for damages arising
from the acts, errors, or omissions of any entities alleged in the complaint to be "alternate
entities". Defendant further denies that it has in any way assumed any "risk spreading" liability
for any of the entities alleged to be "alternate entities".

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138037] 1

ANSWER OF DEFENDANT DURAMETALLIC TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY‘WHEREFORE, this answering defendant asserts the following allirmative defenses:

EIRST AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged by the plaintiff{s) therein
states facts sufficient to constitute a cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged therein states facts
sufficient to entitle plaintifi(s) to an award of punitive damages against Defendant.
THIRD AFFIRMATIVE DEFENSE
‘The imposition of any punitive damages in this matter would deprive Defendant of its
property without due process of law under the California Constitution and United States
Constitution.

FOURTH AFFIRMATIVE DEFENSE

The imposition of any punitive damages in this matter would violate the United States
Constitution's prohibition against laws impairing the obligation of contracts.
EIETH AEFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would constitule a criminal fine or
ponalty and should. therefore, be remitted on the ground that the award violates the United States
Constitution.
‘SIXTH AFFIRMATIVE DEFENSE
Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of
limitations, including but not limited to California Code of Civil Procedure, sections 335.1, 337.1,
337.15, 338(1), 338(4), 340.2, 340.8, 343, 583.110, 583.210, 583.310, 583.410 and California
Commercial Code, section 2725.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff's cause of action arose and accrued in another state and by the laws of that state
cannot be maintained by reason of the lapse of time, and, as a consequence, cannot be maintained
in this state pursuant to Code of Civil Procedure, Section 361.

Mi
1380371 2

ANSWER OF DEFENDANT DURAMETALLIC [0 UNVERIFIED COMPLAINT FOR PERSONAL INIGRY28

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EIGHTH AFFIRMATIVE DEFENSE

Plaintifl(s} unreasonably delayed in bringing this action, without good cause therefore,
and thereby has prejudiced Defendant as a direct and proximate result of such delay: accordingly,
his action is barred by laches and by section 583 ef. seg. of the Code of Civil Procedure.

NINTH AFFIRMATIVE DEFENSE

Plaintiff(s) was negligent in and about the matters alleged in the Complaint and in each
alleged cause of action; this negligence proximately caused, in whole or in part, the damages
alleged in the Complaint. In the event plaintifi(s) is entitled to any damages, the amount of these
damages should be reduced by the comparative fault of plaintififs) and any person whose
negligent acts or omissions are imputed to plaintifi(s).

TENTH AFFIRMATIVE DEF

Plaintiff(s). by their actions, knew of and appreciated the risks involved, and voluntarily
and reasonably assumed the risk of said injurics, proximately causing or contributing to the
damages alleged.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiff{s) knowingly, voluntarily and unreasonably undertook to encounter each of the
risks and havards, if any, referred to in the Complaint and cach alleged cause of action, and this
undertaking proximately caused and contributed to any loss, injury or damages incurred by
plaintifits).
TWELFTH AFFIRMATIVE DEFENSE
Any loss, injury or damage incurred by plaintiff{(s) was proximately caused by the
negligent or willful acts or omissions of parties whom Defendant neither controlled nor had the
right to control, and was not proximately caused by any acts, omissions or other conduct of
Defendant.
THIRTEENTH AFFIRMATIVE DEFENSE
‘The products referred to in the Complaint were misused, abused or altered by plaintiff(s)
‘or by others; the misuse, abuse or alteration was not reasonably foreseeable to Defendant, and

proximately caused any loss, injury or damages, if any, incurred by plaintifi(s).
1380371 3

ANSWER OF DEFENDANT DURAMETALLIC TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY,Rowen

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FOURTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that its products, if any, were manufactured, produced, supplied, sold
and distributed in mandatory conformity with specifications promulgated by the United States
Government under its war powers, as set forth in the United States Constitution, and that any
recovery by plaintifi(s) on the Complaint on file herein is barred in consequence of the exercise
of those sovereign powers.

FIFTEENTH AFFIRMATIVE DEFENSE

Plaintiff(s) failed to exercise due diligence to mitigate his loss, injury or damages;
accordingly, the amount of damages to which plaintiff(s) is entitled, if any, should be reduced by
the amount of damages which would have otherwise been mitigated.

SEXTEENTH AFFIRMATIVE

“The Court lacks subject matter jurisdiction over the matters alleged in the Complaint
because the Complaint and cach alleged cause of action against Defendant is barred by the
provisions of California Labor Code, scetion 3600, 3601, ef seq.

SEVENTE!

LL ALVIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, plaintifl(s) was
employed and was emitled to receive Workers' Compensation benefits from his employer's
workers! compensation insurance carrier; (hat all of plaintiff's employers, other than Defendant,
were negligent in and about the matters referred to in said Complaint, and that such negligence on
the part of said employers proximately and concurrently contributed to the happening of the
accident and to the loss or damage complained of by plaintifi(s), if any there were; and that by
reason thereof Defendant is entitled to set off and/or reduce any such workers' compensation
benefits received or to be received by plaintifi(s) against any judgment which may be rendered in
favor of plaintifits). (Witt v. Jackson, 57 Cal.2d 57, 366 P.2d 641)

EIGHTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, plaintiff's

employers were negligent in and about the matters referred to in said Complaint, and that such,

negligence on the part of said employers proximately and concurrently contributed to any loss or
10571 4

ANSWER OF DEFENDANT DURAMUTALLIC TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY28
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damage, including non-economic damages, complained of by plaintifi(s), if any there were; and
that Defendant is not liable for said employers’ proportionate share of non-economic damages.

NINETEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, parties other
than this Defendant were negligent in and about the matters referred to in said Complaint, and
that such negligence on the part of said parties proximately and concurrently contributed to any
loss or damage, including non-economic damages, complained of by plaintifits), if any there
were; and that Defendant herein shall not be liable for said parties’ proportionate share of non-

economic damages.

TWENTIETH AFFIRMATIVE DEFEN

Defendant alleges that at all times relative to matters alleged in the Complaint, all of
plaintift's employers, other than Defendant, were sophisticated uscrs of asbestos-containing,
products and said employers’ negligence in providing the product to its employees in a negligent,
careless and reckless manner was a superscding cause of plaintiffs injuries, if any.

TWENTY-FIRST AFFIRMATIVE DEFENSE

If plaintififs) has received, or in the future may receive, Worker's Compensation benelits
from Defendant under the Labor Cade of the State of Califomia as a consequence of the alleged
industrial injury referred to in the Complaint, and in the event plaintififs) is awarded damages
against Defendant, Defendant claims a credit against this award to the extent that Defendant is
barred from enforcing his rights to reimbursement for Worker's Compensation benefits that
plaintifi{s) has received or may in the future receive.
TWENTY-SBCOND AFFIRMATIVE DEFENSE

If plaintifi(s) has received, or in the future may receive Worker's Compensation benefits
from Defendant under the Labor Code of the State of California as a consequence of the alleged
industrial injury referred to in the Complaint, Defendant demands repayment of any such
Worker's Compensation benefits in the event that plaintifi(s) recovers tort damages as a result of
the industrial injury allegedly involved here. Although Defendant denies the validity of plaintiff's

claims, in the event those claims are held valid and not barred by the statute of limitations or
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‘ANSWER OF DEFENDANT DURAMETALLIC 10 UNVERIFIED COMPLAINT FOR PERSONAL INJURY28

Jaoeson 8 warLace

otherwise, Defendant asserts that cross-demands for money have existed between plaintifi(s) and
Defendant and the demands are compensated, so far as they equal each other, pursuant to
California Code of Civil Procedure section 431.70.
TWENTY-THIRD AFFIRMATIVE DEFENSE

At all times and places in the Complaint, plaintifi(s) was not in privity of contract with

Defendant and said lack of privity bars plaintiff's recovery herein upon any theory of warranty.
TWENTY-FOURTH AFFIRMATIVE DEFENSE

Plaintiff{s) was barred from recovery in that all products produced, if any, by Defendant
were in conformity with the existing state-of-the-art, and as a result, these products, if any, were
not defective in any manner.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

Defendant denies any and all liability to the extent that plaintiff asserts Defendant's
alloged liability as a successor, successor in business, successor in product linc or a portion
thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion
thereof, parent, alter-ego, subsidiary, wholly or partially owned by, or the whole or partial owner
of or member in an entity researching, studying, manufacturing, fabricating, designing, labeling,
assembling, distributing, Icasing, buying, offering for sale, selling, imspecting, servicing,
installing, contracting for installation, repairing, marketing, warranting, rebranding,
manufacturing for others, packaging and advertising a certain substance, the generic name of
which is asbestos.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

Defendant alleges that the action is barred under the "primary right" doctrine on the basis
that causes of action may not be split, by the doctrines of res judicata and collateral estoppel and
by virtue of plaintiff's prosecution and/or settlement of their claims in prior actions.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

‘The Complaint fails to state facts sufficient to constitute a cause of action for "Premises
Owner/Contractor Liability” against this Defendant pursuant to the ruling of the California

Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689, the ruling of the California
10371 6

ANSWER OF DEFENDANT DURAMETALLIC TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYJessone WanLses

Court of Appeal in Smith v, ACandS, Inc. (1994) 31 Cal.App.4th 77, the California Court of

Appeal in Grahn v. Tosco Corporation (1997) 58 Cal. App.4th, 1373, and the ruling of the

California Supreme Court in Toland v. Sundand Housing Group, Inc. (1998) 18 Cal.4th 253.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE

Defendant had no property interest, ownership or control of any premises at any time
during which plaintiff alleges exposure, injury or damages due to asbestos dust inhalation.
TWENTY-NINTH AFFIRMATIVE DEFENSE
Defendant presently has insufficient knowledge or information on which to form a belief
as to whether it may have additional, as yet unstated, defenses available, Defendant reserves
herein the right to assert additional defenses in the event discovery indicates that they would be

appropriate.
THIRTIRTH AFFIRMATIVE DEFENSE

Piaintift’s action, and cach alleged cause of action, is barred by the terms and provisions
of California Code of Civil Procedure section 361.

THIRTY-FIRST AFFIRMAT:

FEN:

To the extent the Complaint asserts Defendant’s alleged “market share” liability, or
“enterprise liability,” the Complaint fails to state facts sufficient to constitute a cause of action
against Defendant.
THIRTY-SECOND AFFIRMATIVE DEFENSE

Defendant did not and does not have a substantial percentage of the market for the
asbestos-containing products which allegedly caused Plaintiffs" injuries. Therefore, Defendant
may not be held liable to Plaintiffs based on Defendant's alleged percentage share of the
applicable market.

THIRTY-THIRD AFFIRMATIVE DEFENSE

Defendant alleges that it was under no legal duty to warn Plaintiffs of the hazards
associated with the use of products containing asbestos. Defendant further alleges that the
purchasers of said products, Piaintifis’ employer/s, his union/s or certain third parties yet to be

identified, were knowledgeable and sophisticated users and were in a better position to warn.
1380371 7

~~ ANSWER OF DEFENDANT DURAMETALLIC TO UNVERIFIED COMPLAINT FOR PERSONAL INIURY28

ees WRLC

Plaintiffs of the risks associated with using products containing asbestos and, assuming a warning
was requires, i was the failurc of such persons or entities to give such a warning that was the
proximate and superseding cause of Plaintiffs’ damages, if any.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

Defendant alleges that no conduct by or attributable to it was the cause in fact or the
proximate cause of the damages, if any, suffered by Plaintiffs, nor a substantial factor in bringing
about said damages.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

Defendant alleges that its liability, if any, in this matter is extremely minor relative to the
liability of various third parties and, therefore, the damages, if any, assessed against it should be
proportionate to the degree, nature and extent of its fault.

THIRTY-SIXTH AFFIRMATIVE DEFENSE

Plaintiffs herein have failed to join indispensable parties and the complaint is thereby
defective, and Plaintiffs are thereby precluded from any recovery whatsoever as prayed for
herein.

TLIRTY-SEVENTH AFFIRMATIVE DEFENSE
Pursuant to California Code of Civil Procedure sections 378 and 430.10(d), if it is

determined that multiple Plaintifis have been listed on this complaint, then this defendant

contends the Plaintiffs are misjoined. Because joinder is defective and improper, and defendants
will be prejudiced by having to proceed against different Plaintiffs with dissimilar cases, a single
trial is unfair and a hardship, and separate trials on each individual cause of action should be
ordered.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE

‘The matters alleged in this complaint are encompassed within and barred by a settlement
and release agreement reached by the parties which operates as a merger and bar against any
further litigation on matters raised or potentially raised in connection with the settlement and
release.

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"ANSWER OF DEFENDANT DURAMETALLIC TO UNVERIFIED COMPLAINT FOR PERSONAL. INJURY27

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THIRTY-NIN'

To the extent that Plaintiffs have previously [led a dismissal in court dismissing all of
their asserted claims, causes of action, and other theories of liability against this defendant with
prejudice, the matters alleged in this complaint are barred by retraxit.
FORTIETH AFFIRMATIVE DEFENSE

To the extent that Plaintiffs have reached an accord with defendant regarding this.
litigation and this accord was then properly satisfied, the claims, causes of action, theories of
liability and matters alleged in this complaint are barred by the doctrine of accord and
satisfaction.

WHEREFORE, Defendant prays:

(1) That plaintiff takes nothing by his Complaint;

(2) That Judgment be entered in favor of Defendant;

(3) For recovery of Defendant's costs of suit;

(4) For appropriate credits and set-off arising out of any payment of Worker's
Compensation benefits as alleged above; and

(5) For such other and further reliel'as the Court deems just and proper.

Dated: July I ) 2007 JACKSON & WALLACE LLP

JULIE A. TORRES, ESQ
‘Attorneys for Defendant
DURAMETALLIC CORPORATION

1380371 9

ANSWER OF DEFENDANT DURAMETALLIC TO UNVERIFIED COMPLAINT FOR PERSONAL INJURYCer Aah eww

28
Peasond Waunace

sanetasonca

Louis Castagna, v_ Asbestos Defendants (BP) S.E.S.C #274230

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
I, the undersigned, declare that am a citizen of the United States and employed in San
Francisco County, California. I am over the age of eighteen years and not a party to the within-
entitled action. My business address is 55 Francisco Street, 6th Floor, San Francisco, California
94133. On July ay. 2007, I served the following document(s):
ANSWER OF DEFENDANT DURAMETALLIC

CORPORATION TO UNVERIFIED COMPLAINT FOR
PERSONAL INJURY - ASBESTOS

electronically via LexisNexis File & Serve on:

Brayton # Purcell
222 Rush Landing Road
Novato, CA 94948-6169

and all other recipients designated on the Transaction Receipt located on the LexisNexis File &
Serve website. 1 declare under penalty of perjury pursuant to the laws of the State of California
that the foregoing is truc and correct and was exccuted on July af. 2007, al San Francisco,

California.

uu

Nic Lawson

1380371