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

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                                LAW OFFICES OF

PRINDLE, DECKER & AMARO sip

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PRINDLE, DECKER & AMARO, LLP
KENNETH B. PRINDLE, ESQ. (Bar No, 82691) ,
THOMAS A. STEIG, ESQ. (Bar No. 119341) ELECTRONICALLY

369 Pine Street, Suite 800 FILED

San Francisco CA 94104 Superior Court of Californi
Tel, Nou (ais) 7e8-8354 County of San Francisco
Attorneys for Defendant, MAR 24 2008
CONSOLIDATED INSULATION, INC. GORDON PARK-LI, Clerk
CINS-1156 BY: ANNIE PASCUAL

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO (UNLIMITED JURISDICTION)

LOUIS CASTAGNA, CASE NO, CGC-07-274230
Plaintiffs, DEFENDANT CONSOLIDATED
INSULATION, ENC.’S ANSWER TO
v. PLAINTIFF LOUIS CASTAGNA’S

COMPLAINT FOR DAMAGES AND
ASBESTOS DEFENDANTS, (BP), PERSONAL INJURIES
Defendants. Complaint Filed : June 6, 2007

Trial Date : None

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COMES NOW Defendant, CONSOLIDATED INSULATION, INC. (hereinafter referred to
as "this answering defendant"), for itself alone, and in answer to the unverified Complaint of
plaintiffs herein, as amended, now or in the future, or otherwise, admits, denies, and alleges as
follows:

1. Pursuant to the provisions of California Code of Civil Procedure § 431.30, this
answering defendant denies each, every and all of the allegations of the unverified complaint, and
each and every cause of action contained therein, and the whole thereof, and denies that plaintiffs
has/have sustained damages in the sum or sums alleged, in any other sum or sums whatsoever, or at
all.
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DEFENDANT CONSOLIDATED INSULATION, INCS ANSWER TO PLAINTIFF'S COMPLAINT

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FIRST AFFIRMATIVE DEFENSE

2. The Contplaint and each and every cause of action alleged therein fails to state facts
sufficient to constitute a cause of action against this answering defendant, and fails to state a claim
upon which relief may be granted.

SECO) VE DEFENSE

3. The Complaint and every cause of action alleged therein is/are barred by California
Code of Civil Procedure §§ 335, 338(1), 338(4), 339(1), 340(1), 340(3), 340.2, 343, 353, by
Commercial Code § 2725, and by all other applicable statute of limitations provisions, and plaintiffs
is/are thereby precluded from recovering the damages and other relief sought in the Complaint.

THIRD AFFIRMATIVE DEFENSE

4, The applicable laws, rules, statutes or regulations, including but not limited to, Code
of Civil Procedure §§ 340(3) and 340.2, and sister state statutes of limitations and statutes of repose
borrowed by Code of Civil Procedure § 361, requiring the institution of suit within a certain period
of time following its accrual, were not complied with, and, therefore, plaintiffs’ claims are barred as

a matter of law and equity.

FOURTH AFFIRMATIVE DEFENSE

5, Plaintiffs unreasonably delayed in bringing this action, without good cause, and
has/have thereby prejudiced the rights of this answering defendant. The Complaint and all claims

alleged therein are therefore barred by the doctrine of laches.

FIFTH AFFIRMATIVE DEFENSE

6. Plaintiffs have waived any and all claims which he seeks to assert in this action,

and/or are estopped by their conduct from asserting or recovering on such claims.

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DEFENDANT CONSOLIDATED INSULATION, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT

KBP/ICASTAGNA Ans SP PLwpd.LAW OFFICES OF

PRINDLE, DECKER & AMARO iP

SIXTH AFFIRMATIVE DEFENSE
7. Prior to the filing of this action, plaintiffs fully, completely and unequivocally settled

and compromised their claims for relief against this answering defendant.

SEVENTH AFFIRMATIVE DEFENSE

8. At all times and places mentioned in the Complaint, as amended, now or in the future,
plaintiffs were negligent and careless and failed to exercise that degree of care and caution for their
own safety which a reasonably pradent person would have used under the same or similar
circumstances, in that, among other things, plaintiffs so negligently and carelessly stationed,
conducted and maintained themselves, failed to utilize safety devices and other equipment or
facilities supplied to them and/or existing as part of their environment, and failed to observe open
and obvious conditions, so as to directly and proximately cause and contribute to plaintiffs’ injuries
and damages, if any. Plaintiffs are therefore precluded from obtaining any recovery against this
answering defendant. Alternatively, any negligence or other legal fault attributable to plaintiffs
thereby comparatively reduces the percentage of negligence or fault, if any, attributable to this

answering defendant, which this answering defendant expressly denies.

EIGHTH AFFIRMATIVE DEFENSE

9. This answering defendant alleges that no act, omission, conduct or product
attributable to it caused or contributed to any injuries or damages sustained by plaintiffs, if any, and
that if plaintiffs’ injuries and damages, if any, were not solely caused by plaintiffs’ own acts,
omissions and other conduct, then said injuries and damages were proximately caused and
contributed to by the negligence and/or other tortious acts, omissions, conduct and products of
persons or entities other than this answering defendant, and that said negligence and/or other legal
fault was an intervening and superseding cause of plaintiffs’ injuries and damages, if any. Any
damages recoverable by plaintiffs must therefore be diminished in proportion to the amount of fault
attributable to these other persons and entities, and there should be an apportionment of the harm and

damage claimed by plaintiffs, if any.
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DEFENDANT CONSOLIDATED INSULATION, INC.’S ANSWER TO PLAINTIFF'S COMPLAINT

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NINTH AFFIRMATIVE DEFENSE

10. That at all times and places referred to in the Complaint, as amended, now or in the
future, plaintiffs were, or in the exercise of reasonable care should have been, aware of all
circumstances and conditions then and there existing and prevailing, but nonetheless knowingly,
voluntarily, and in full appreciation of the potential consequences thereof, exposed themselves to
whatever risks and dangers may have been attendant to such circumstances and conditions, thereby
freely and voluntarily assuming any and ali risk(s) incident thereto, and thereby barring plaintiffs

from recovery herein.

TENTH AFFIRMATIVE DEFENSE

11. At all times and places relevant to this action, plaintiffs failed to make reasonable

efforts to mitigate their injuries, loss and/or damages, if any.

ELEVENTH AFFIRMATIVE DEFENSE

12. At all times material to this action, plaintiffs failed to use the products alleged in the
complaint in a foreseeable, proper and safe manner which would have otherwise been anticipated
and expected of an ordinary user. Such misuse of the products described in the Complaint by
plaintiffs was the sole, proximate and legal cause of plaintiffs’ injuries and damages, if any, thereby

barring plaintiffs from recovery herein.

TWELFTH AFFIRMATIVE DEFENSE

13. Atall times material to this action, the products described in the Complaint which
allegedly injured plaintiffs were, without this answering defendant’s knowledge, approval or consent,
and contrary to instructions and/or the custom and practice in the industry, altered, re-designed,
modified, or subjected to other treatment which substantially changed their character, such that they
were not being used, functioning and/or performing in a manner intended by their manufacturer,
and/or were not in substantially the same or similar condition as when they left the manufacturer's

possession. If there was a defect in said products, which supposition is specifically denied by this
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DEFENDANT CONSOLIDATED INSULATION, INC.’S ANSWER TO PLAINTIFF'S COMPLAINT

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answering defendant, such defect resulted solely from such alteration, re-design, modification,
treatment or other change therein, and not from any act or omission by this answering defendant,

thereby barring plaintiffs from recovery herein as against this answering defendant.

THIRTEENTH AFFIRMATIVE DEFENSE

14. Plaintiffs are barred from recovery herein in that any and all products allegedly
supplied or distributed by this answering defendant were manufactured and/or produced in
conformity with specifications established and provided by the United States Government pursuant
to its War Powers as set forth in the United States Constitution, and that any defect in said products
was caused by deficiencies in said specifications, and not by any action or conduct on the part of this

answering defendant.

FOURTEENTH AFFIRMATIVE DEFENSE

15. Plaintiffs are barred from recovery herein in that all products allegedly manufactured
or distributed by this answering defendant were in conformity with the existing state of the medical,
scientific, and industrial knowledge, art, and practices, and, as a result, said products were not

defective in any manner.

FIFTEE: FE TIVE DEFENSE
16. At all times and places mentioned in the complaint, as amended, now or in the future,
plaintiffs were not in privity of contract with this answering defendant, and said lack of privity bars

plaintiffs’ recovery herein upon any theory of warranty.

SIXTEENTH AFFIRMATIVE DEFENSE

17. Plaintiffs failed to give this answering defendant timely and reasonable notice of any

alleged breach of contract or warranty, thereby barring plaintiffs from recovery herein.

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DEFENDANT CONSOLIDATED INSULATION, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT

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SEVENTEENTH AFFIRMATIVE DEFENSE

18. At all times and places relevant to this action, plaintiffs waived whatever right they
might otherwise have had to claim a breach of warranty, in that plaintiffs failed to notify this
answering defendant of any alleged breach of warranty, express or implied, and if any alleged defects
existed in any product(s) manufactured or distributed by this answering defendants, plaintiffs
discovered or should have discovered said defect or non-conformity, if any existed, and failure to do
so within a reasonable period of time prejudices this answering defendant from being able to fully
investigate and defend the allegations made against it in the Complaint, as amended now or in the

future.

EIGHTEENTH AFFIRMATIVE DEFENSE

19. Plaintiffs’ breach of warranty claims are barred by written disclaimers and/or

exclusions contained on or in the labels or packaging of the products at issue in this action.

NINETEENTH AFFIRMATIVE DEFENSE

20.° The Complaint, as amended now or in the future, and each and every cause of action
contained therein, fails to state facts sufficient to constitute “fraud,” “oppression,” or “malice,” as
these terms are used in Civil Code § 3294, and therefore fails to a cause of action for punitive

damages.

TWENTIETH AFFIRMATIVE DEFENSE
21. The imposition of punitive/exemplary damages against this corporate defendant for
acts of a former and/or predecessor corporate entity would be a violation of due process of law, and

against public policy, under the various laws of the State of California and the United States.

TWENTY-FIRST AFFIRMATIVE DEFENSE
22. This answering defendant alleges that California Civil Code § 3294 violates the Duc

Process and/or Equal Protection clauses of the California and/or United States Constitutions, is void
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DEFENDANT CONSOLIDATED INSULATION, INC.°S ANSWER TO PLAINTIFF'S COMPLAINT

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because it is vague and ambiguous, constitutes an undue burden on interstate commerce, and violates
the Eighth Amendment to the United States Constitution, Accordingly, plaintiffs are barred from.

any recovery thereunder.

TWENTY-SECOND AFFIRMATIVE DEFENSE

23, The liability of this answering defendant, if any, shall be apportioned in accordance
with the provisions of Civil Code §§ 1431, et seq., commonly known as the Fair Responsibility Act
of 1986.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24, This answering defendant alleges on information and belief that at all times and
places relevant to this action, plaintiff was an employee of an employer or employers whose names
are presently unknown, and that any injuries or damages alleged in the Complaint, as amended now
or in the future, occurred while plaintiff was acting within the course of scope of such employment.
This answering defendant further alleges on information and belief that plaintiffs employer or
employers provided plaintiff with certain benefits in compliance with the terms and provisions of the
Workers' Compensation Laws of the State of California. The nature and extent of such Workers’
Compensation benefits that may have been provided is unknown, but when said benefits are
determined, leave to amend this answer and to set forth the details of said benefits will be sought. It
is further alleged that any and ail injuries or damages complained of by plaintiff were solely and
proximately caused by, or resulted from, the negligence and carelessness of plaintiff's employer, his
co-workers, and/or his employer's agents, servants or employees. Therefore, this answering
defendant is entitled to an offset of any such benefits received or to be received by plaintiff against
any judgment which may be rendered in favor of said plaintiff, pursuant to the doctrine of Wit v.
Jackson (1961) 57 Cal.2d 57.

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TWENTY-FOURTH AFFIRMATIVE DEFENSE

25, Plaintiffs are barred from recovery herein if at any time, past or present, plaintiff was
or is an employee of this answering defendant, including any of this answering defendant’s divisions
or subsidiaries, thereby creating conditions of compensation. The right to recover Workers’
Compensation benefits is plaintiffs’ sole and exclusive remedy as against this answering defendant,
pursuant to the provisions of California Labor Code §§ 3300, et seq., and/or §§ 3600, et seq.. This
answering defendant is entitled to a judicial determination of any such employer-employee
relationship establishing such exclusive remedy and bar to recovery prior to any hearing or trial on

the merits in this matter.

TWENTY-FIFTO_ AFFIRMATIVE DEFENSE

26. Even ifplaintiff was exposed to any asbestos-containing products manufactured or
distributed by this answering defendant, which supposition is expressly denied, plaintiff's exposure
to said products would have been so minimal as to be insufficient to constitute a “substantial

contributing factor” in the causation of plaintiffs’ alleged injuries or disease, if any.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

27. — This answering defendant is not liable for any alleged failure to warn of any risks,

dangers or hazards in the use of any asbestos-containing products or other goods that it allegedly
distributed, sold, supplied or delivered to plaintiff's employer(s), because said employer(s) had as
great, if not greater, knowledge about the nature of any risks, dangers or hazards than did this
answering defendant, and, unlike this answering defendant, said employer(s) were in a position to

warn persons exposed to such products of any such risks, dangers or hazards.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28. This answering defendant alleges that at all times relevant to the matters alleged in the
complaint, as amended now or in the future, all of plaintiff's employers, other than this answering

defendant were sophisticated and knowledgeable users of asbestos products and said employers’

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negligence in providing said product(s) to their employees in a negligent, careless and reckless

manner was a superseding cause of plaintiffs’ injuries, if any.

TWENTY-EIGH’ TIVE DEFENS:

29. To the extent the Complaint, or any cause of action alleged therein, is based upon an
allegation of strict products liability as against this answering defendant, said cause of action cannot
be maintained as this answering defendant was not a "seller" within the meaning of § 402A of the
Restatement (Second) of Torts, and consequently any claim of strict liability against this answering
defendant is barred pursuant to Monte Vista Development Corporation vs. Superior Court (1991)

226 Cal App.3d 1681.

TWENTY-NINTH AFFIRMATIVE DEFENSE

30. This answering defendant denies that it was a successor, successor in business,
successor in product line 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 any entity owning property, maintaining
premises, researching, studying, manufacturing, fabricating, designing, labeling, assembling,
distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting
for installation, repairing, marketing, warranting, re-branding, manufacturing for others, packaging
and advertising any asbestos/silica products, This answering defendant is therefore not liable for any
acts, whether they be active or passive, or omissions of any entities to which this answering
defendant is or may be alleged to be a successor-in-interest, predecessor-in-interest, alter ego, or the

like.

THIRTVIETH AFFIRMATIVE DEFENSE

31, This answering defendant did not and does not have a substantial percentage of the
market for any asbestos-containing products which allegedly caused the injuries and damages claimed

by plaintiffs. Furthermore, the asbestos-containing products which allegedly caused the injuries and

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DEFENDANT CONSOLIDATED INSULATION, INC.°S ANSWER TO PLAINTIFF'S COMPLAINT

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damages claimed by plaintiffs are not “fungible” in nature. As such, this answering defendant may not

be held liable to plaintiffs based upon any “market-share” or “enterprise” theories of liability.

THIRTY-FIRST AFFIRMATIVE DEFENSE
32, Pursuant to California Code of Civil Procedure § 430.10(c), there is another action

pending between the same parties on the same causes of action.

THIRTY-SECOND AFFIRMATIVE DEFENSE

33, The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, are preempted by the Locomotive Boiler Inspection Act, 49 U.S.C.S. §§ 20701,
et seq., the Federal Safety Appliances Act, 49 U.S.C. § 20301, et seq., and all other applicable federal

statutes, laws or regulations.

THIRTY -THIRD AFFIRMATIVE DEFENSE

34, The Complaint, as amended now or in the future, and any and all claims and causes of

action alleged therein, is/are barred by the rule against splitting a cause of action.

THIRTY-FOURTH AFFIRMATIVE DEFENSE
35. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred by plaintiffs’ failure to timely join one ot more parties that are
indispensable and/or necessary to a resolution of the matters alleged in the Complaint, as required by

Code of Civil Procedure § 389.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

36. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred pursuant to the doctrines of res judicata and/or collateral estoppel.
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DEFENDANT CONSOLIDATED INSULATION, INC.’S ANSWER TO PLAINTIFI°S COMPLAINT

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THIRTY-SEXTH AFFIRMATIVE DEFENSE

37, The Complaint, as amended now or in the future, and. any and all claims and causes of
action alleged therein, is/are barred because there is a defect and misjoinder of parties plaintiff and/or

defendant,

RESERVATION OF RIGHTS

This answering defendant hereby reserves the right, upon completion of its investigation and.

discovery, to amend this answer to include such additional defenses.as may be appropriate.

WHEREFORE, defendant CONSOLIDATED INSULATION, INC: prays as follows:

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

2. That:defendant CONSOLIDATED INSULATION, INC. be awarded its costs and
expenses of suit incurred herein;

3. That if defendant CONSOLIDATED INSULATION, INC. is found liable, that the
degree of responsibility and liability for the resulting damages be determined and apportioned in
accordance with California Civil Code §§ 1431, et-seq.; and

4, For such other and further relief as-the Court may deem just-and proper.

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DATED; March. /7, 2008 PRINDLE, DEQKER.

KENNETH B. PRINDLE
Attorneys for Defendant,
CONSOLIDATED INSULATION, INC.

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DEFENDANT CONSOLIDATED INSULATION, INC'S ANSWER TO PLAINTIFF'S COMPLAINT

KBPUCASTAGNA. Asis SF Phavpd1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Louis Castagna v. Ashestos Defendants (BP)
Case No.. 274230.

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3 | STATE OF CALIFORNIA, COUNTY OF LOS ANGELES:
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I, the undersigned, declare: that Lam, and was.at the-time of service of the documents herein
referred to, over the age of eighteen (18) years and am not a patty to the within action; and Lam.
5 || employed in the County.of Los.Angeles, California. My business address is 310 Golden Shore, 4”
Floor, Long Beach, California 90802.

On March 34 ,2008, 1 electronically served the following document(s) via LexisNexis File &
Serve deseribed as:

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8 | DEFENDANT CONSOLIDATED INSULATION, INC.’S ANSWER TO PLAINTIFF LOUIS
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CASTAGNA’S COMPLAINT FOR DAMAGES AND. PERSONAL INJURIES

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve

5 ‘website.
& it /
S I declare under penalty of perjury under the laws of the State of California that the foregoing is
& 4 2 true and correct.
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i 2 13 Executed on March + 2008, at Long Beach, California,
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