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

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Kannett &
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Mark S. Kannett (SB #104572)

Emily D. Bergstrom (SB # 191395) ELECTRONICALLY

BECHERER, KANNETT & SCHWEITZER FILED
2200 Powell Street, Suite 805 Superior Court of California,
Emeryville, CA 94608 ounty OF oan Francisco
Telephone: (510} 658-3600 JUL 13 2007
Facsimile: (510) 658-1151 GORDON PARK-LI, Clerk
BY: JUANITA D. MURPHY
Deputy Cleik

Attorneys Defendant
DILLINGHAM CONSTRUCTION, N.A,, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

LOUIS CASTAGNA, CASE NO. CGC 07-274230
Plaintiff, ANSWER OF DEFENDANT
DILLINGHAM CONSTRUCTION N.A.,
VS. INC. TO PLAINTIFF’S COMPLAINT

FOR PERSONAL INJURY
ASBESTOS DEFENDANTS (BP) As
Reflected on Exhibits B, B-1, C, E, H, |;
and DOES 1-8500; and SEE ATTACHED
LIST.
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COMES NOW, defendant, DILLINGHAM CONSTRUCTION N.A., INC. (“DCNA”),
in answer to plaintiff's complaint on file herein and by virtue of the provisions of Code of
Civil Procedure § 431.30, and files its general denial to the complaint and denies each
and every, all and singular, generally and specifically, all the allegations contained
therein, and each cause of action thereof, and further denies that plaintiffs have been
damaged in any sum, sums or at all, and specifically denies:

1. That any act er omission of DCNA was responsible for any asbestos-
containing product being present at the work site at which the alleged asbestos

exposure of plaintiff LOUIS CASTAGNA occurred.
2. That plaintiff LOUIS CASTAGNA came into contact with any asbestos-

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A, INC TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURYBocherer
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containing product for which DCNA was responsible:

3. That any act or omission of DCNA caused or contributed to any injury
purportedly suffered by plaintiff.

4, That any act or omission of DCNA contributed to any asbestos health
hazard

This answering defendant herewith pleads and sets forth separately and distinctly
the following affirmative defenses to each and every cause of action of plaintiffs!
complaint as though pleaded separately to each and every said cause of action, and this

answering defendant alleges the following affirmative defenses:

FIRST AFFIRMATIVE DEFENSE

(Comparative Negligence)
That plaintiff LOUIS CASTAGNA was careless and negligent in and about the matters|
alleged in the complaint, and that said carelessness and negligence on the part of said
plaintiff proximately contributed to the happening of the incident and to the injuries, loss}
and damages complained of, if any, sustained by plaintiff and that plaintiff's recovery
should therefore be reduced to the extent of plaintiff LOUIS CASTAGNA’S negligence.

SECOND AFFIRMATIVE DEFENSE

(Assumption of Risk)

That plaintiff LOUIS CASTAGNA knew, or in the exercise of ordinary care should have|
known, of the risks and hazards involved in the undertaking in which he was engaged,
but nevertheless, and knowing these things, did freely and voluntarily consent to assume]
the risks and hazards incident to said operations, acts and conduct at the time and place

mentioned in said compiaint

ANSWER OF DEFENDANT DILLINGHAM, SASTRU CTION NA, ING TO PLAINTIFF'S
SOMPLAINT FOR PERSONAL NURBecherer
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THIRD AFFIRMATIVE DEFENSE

(Employer Negligence - Witt v. Jackson)
By way of alleging the doctrine of Witt v. Jackson (1961) 57 Cal.2d 57, this answering
defendant alleges that at the time and place of the happening of the occurrences alleged
in the complaint, and at all times material herein, plaintiff LOUIS CASTAGNA was
employed by various employers, the names of which are unknown to this defendant at
this time, and working within the course and scope of his employment and/or]
employments, that said employer and/or employers and plaintiff were subject to the|
provisions of the Worker Compensation Act of the State of California, that certain sums
have been or will be paid to or on behalf of plaintiff herein under the applicable
provisions of the Labor Code of the State of California; that said employer, excepting
when plaintiff was employed by this defendant, and/or employers and each of them were
negligent and careless and that such negligence and carelessness proximately|
contributed and caused the injuries of plaintiff, that by these premises any award made
to the plaintiff, if any award is made at all, must be reduced by any payment to them by|
plaintif's employer or employers’ compensation carrier under the authority of Witt v

Jackson (1961) 57 Cal.2d 57.

FOURTH AFFIRMATIVE DEFENSE

(Employer's Negligence)
This answering defendant alleges that plaintiff LOUIS CASTAGNA's employers, except
when plaintiff was employed by this defendant, were contributorily negligent and
careless in and about the matters alleged in the complaint, and that such negligence and|
carelessness was a proximate cause of any injuries and damages suffered by plaintif, if

any there were.

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‘ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION NA, INC TO PLAINTIFF’

COMPLAINT FOR PERSONAL INJURYBecherer
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FIFTH AFFIRMATIVE DEFENSE
(Employer's Assumption of the Risk)
This answering defendant alleges that plaintiff LOUIS CASTAGNA’s employers, except}
when plaintiff was employed by this defendant, voluntarily and knowingly entered into}
and engaged in the operations, acts and conduct alleged in said complaint, and|
voluntarily and knowingly assumes all of the risks incident to said operations, acts and

conduct at the time and place mentioned in the complaint.

SIXTH AFFIRMATIVE DEFENSE
(Alteration or Misuse)
This answering defendant alleges that the product in question was properly designed
and manufactured, and was fit for the purposes intended; that said product was|
improperly maintained and used and was abused, resulting in plaintiff's damages, if any/

there were.

SEVENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
This answering defendant alleges that the injuries, loss or damage, if any there was to|
plaintiff, were aggravated due to plaintif's failure to use reasonable diligence to mitigate

them

EIGHTH AFFIRMATIVE DEFENSE
{Statute of Limitations)

This answering defendant alleges that said complaint, and each of said alleged causes|
of action thereof, is barred by the applicable statute of limitations, including, but not
limited to those set forth in California Code of Civil Procedure §§ 338, 340 et seg. and
377.10 et seq

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NINTH AFFIRMATIVE DEFENSE

(Workers’ Compensation Bar)
This answering defendant alleges that plaintiff LOUIS CASTAGNA was, at all or some|
relevant times, employed by this defendant and that plaintiff's claim for injuries or
damages against this defendant is barred by the Workers’ Compensation exclusive

remedy provisions contained in California Labor Code ' 3600 et seq

TENTH AFFIRMATIVE DEFENSE
(Laches)
This answering defendant alleges that plaintiffs unreasonably delayed in the bringing)
and service of this action without good cause therefor, and thereby has prejudiced this|

defendant; and as a proximate result thereof, this entire action is barred by laches

ELEVENTH AFFIRMATIVE DEFENSE

(Failure to State a Cause of Action - Exemplary Damages)
This answering defendant alleges that the complaint fails to state a cause of action)

against this answering defendant for exemplary damages.

TWELFTH AFFIRMATIVE DEFENSE
(Proportionate Fault)
This answering defendant alleges that while at all times denying any liability whatsoever]
to plaintiffs herein, this defendant alleges that any alleged liability or responsibility of this|
defendant, and such alleged liability and responsibility being denied, is small in|
proportion to the alleged liability and responsibility of other persons and entities,
including other persons who are defendants herein, and that plaintiffs should be limited

to seeking recovery from this defendant for the proportion of alleged injuries and

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ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION NA, INC TO PLAINTIFF'S”
COMPLAINT FOR PERSONAL INJURY.Dee ee ee eee
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damages for which this defendant is allegedly liability or responsible, all such alleged

liability and alleged responsibility being expressly denied

THIRTEENTH AFFIRMATIVE DEFENSE

(Modification of Product)
This answering defendant is informed and believes, and based upon said information
and belief alleges, that the plaintiffs are barred from recovery herein because off
modification, alteration or change in some other manner, of the products alleged in

plaintiff's complaint.

FOURTEENTH AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)

This answering defendant alleges that plaintiff's complaint does not state facts sufficient)

to constitute a cause of action against this answering defendant.

FIFTEENTH AFFIRMATIVE DEFENSE

(Waiver)
This answering defendant alleges that plaintiff LOUIS CASTAGNA acknowledged,
ratified, consented to and acquiesced in the alleged acts or omissions, if any, of this|

answering defendant, thus barring plaintiff from any relief as prayed herein

SIXTEENTH AFFIRMATIVE DEFENSE

(Sophisticated User)

This answering defendant alleges that some, or all, of plaintiff's union and employers
are, and were, sophisticaied users of any and all such products alleged in plaintiff's|
complaint by virtue of its own longstanding and continuous training and experience with’
the products, and the means and methods for their use and application, and all available

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‘COMPLAINT FOR PERSONAL INJURYBecherer
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safety and precautionary measures available, and thereby acquired a separate and
affirmative duty to warn plaintiff of any alleged potential harmful effects from the use or
misuse of said products and to provide available safety measures, and training in their)
use. By reasons of the foregoing, said failure to discharge this duty did directly and

proximately cause any and all damages and injuries, if any, complained of by plaintiff.

SEVENTEENTH AFFIRMATIVE DEFENSE

(Fair Responsibility Act)
This answering defendant alleges that said complaint, and each of said alleged causes}
of action thereof, is subject to the provisions of the Fair Responsibility Act of 1986, Civil
Code Sections 1431.1 through 1431.5. Liability of this answering defendant to plaintiff, if
any, for non-economic damages, if any as defined in Civil Code Section 1431 2(b)(2)
shall be several only and shall not be joint with each of any co-defendant named in saidj
complaint. This answering defendant shall be liable only for the amount of said non-|
economic damages, if any, allocated to this answering defendant's percentage of fault, if

any.

EIGHTEENTH AFFIRMATIVE DEFENSE
(No Peculiar Risk)

Defendant alleges that plaintiffs are barred from seeking to hold defendant vicariously!
liable for inherent risk of injury in the work place and premises under the now discredited
doctrine of peculiar risk according to the California Supreme Court decision of Privette v.

Superior Court (4993) 5 Cal 4th 689, 21 Cal Rptr 2d 72

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COMPLAINT FOR PERSONAL INJURYap on

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NINETEENTH AFFIRMATIVE DEFENSE

(Outside Scope)

This answering defendant alleges that at the time and place of the happening of the!
occurrence as alleged in the complaint, plaintiff LOUIS CASTAGNA was engaged as a
contractor outside the scope and control of this answering defendant, thus precluding}

plaintiffs from asserting a claim against this answering defendant

TWENTIETH AFFIRMATIVE DEFENSE

(Unclean Hands)
This answering defendant alleges that the claims of plaintiffs are barred by the doctrine

of unclean hands.

TWENTY-FIRST AFFIRMATIVE DEFENSE
(Res Judicata And Collateral Estoppel)

This answering defendant alleges that the claims of plaintiffs are barred by the doctrine

of res judicata and collateral estoppel

TWENTY-SECOND AFFIRMATIVE DEFENSE

(Punitive Damages Unconstitutional)
This answering defendant alleges that the claims made by the plaintiffs for punitive
damages are unconstitutional under the United States Constitution and the Californial

State Constitution.

TWENTY-THIRD AFFIRMATIVE DEFENSE
{State of the Art)

This answering defendant alleges that based upon the state of the art, its failure, if any)
there was, to warn plaintiff of the dangers associated with the handling of asbestos-|

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ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION NA INC TO PLAINTIFF’
COMPLAINT FOR PERSONAL INJURYcontaining products, or inhalation of airborne asbestos fibers, was reasonable and in|
compliance with applicable industry standards at the time, and it did not know, nor was it
reasonable for it to know, that airborne asbestos fibers, if any, which were allegedly|

inhaled by plaintiff could cause injury

TWENTY-FOURTH AFFIRMATIVE DEFENSE

(Primary Rights and Res Judicata)
This answering defendant alleges that if plaintiffs’ claims were already litigated and|
resolved in any prior action, plaintiffs’ claims herein are barred based upon the primary}
rights and res judicata doctrines which prohibit splitting a single cause of action into
successive suits, and seeking new recovery for injuries for which the plaintiff has been|

previously compensated by alleged joint tortfeasors.

WHEREFORE, this answering defendant prays as follows:

1. That plaintiffs take nothing by reason of the complaint on file herein,

2. That DILLINGHAM CONSTRUCTION N.A,, INC. be hence dismissed with
its costs of suit incurred herein; and

3 For such other and further relief as the Court deems just and proper.

Dated: July| A2007 BECHERER, KANNETT & SCHWEITZER

lark S. Kannett

Attorneys for Defendant
DILLINGHAM EONSTRUCTION, NA,

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ISWER OF DEI DILLINGHAM Ci WA, INC TO PLAT
COMPLAINT FOR PERSONAL INJURYPROOF OF SERVICE BY ELECTRONIC TRANSMISSION

|, Imelda Rivera, declare that | am, and was at the time of service of the documents
herein referred to, over the age of 18 years, and not a party to the action; and | am
employed in the County of Alameda, State of California. My business address is 2200
Powell Street, Suite 805, Emeryville, California 94608.

On July 13, 2007, | electronically served the document(s) via LexisNexis File & Serve
described as:

« SUBSTITUTION OF ATTORNEY

on the recipients designated on the Transmission Receipt located on the LexisNexis File &
Serve website.

| declare under penalty of perjury pursuant to the laws of the State of California that
the foregoing is true and correct and that this declaration was executed\on July 13, 2007, at
Emeryville, California

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Louis Castagna vs Asbestos Defendants (B°P)
SFSC Case No: CGC-07-274230