Answer: CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                MICHAEL T. MCCALL, State Bar No. 109580.

WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP ELECTRONICALLY
601 Montgomery Street, Ninth Floor FILED
San Francisco, California 94111-2612 cunt EE EP ie
Telephone: (415) 781-7072
Facsimile. (415) 391-6258 County of San Francisco
“ AUG 24 2007
Attomeys for Defendant GORDON PARK-LI, Clefk
OSCAR E. ERICKSON, INC. BY: EDNALEEN JAVIER-LASON
Deputy Clef
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

CHARLES TOBEY, ) Case No. CGC-07-274226

)

Plaintiff, ) ANSWER OF DEFENDANT OSCAR E.
) ERICKSON, INC. TO PLAINTIFF'S
vs. ) COMPLAINT FOR PERSONAL INJURY,

) - ASBESTOS
ASBESTOS DEFENDANTS (B*P), etc.;etal, )

)

Defendants. )
)

Defendant OSCAR E. ERICKSON, INC. (hereafter "Defendant”), in answering the
Plaintiff's unverified complaint, for itself alone, and severing itself from all others, admits, denies
and alleges as follows

1. Pursuant to California Code of Civil Procedure Section 431,30, Defendant denies,

both generally and specifically, each, every and all allegations of each and every purported cause of

action or count of Plaintiff's complaint, denying specifically that Plaintiff has been, is, or will be
injured or damaged in the manner or sum alleged, or in any other manner or sums at all, and further
denying that Defendant was negligent in any manner, that the alleged product installed or
distributed was defective in any way, or that the alleged defect was the proximate cause of the
Plaintiff's claimed damages or injuries.

DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND
DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY

‘OSCAR F, FRICKSON, INC-S ANS)

RTO PLAINTIVPS COMPLAINT

269581.1
3154-54407CAUSE OF ACTION ALLEGED IN PLAINTIFF'S COMPLAINT AS THOUGH PLEADED
SEPARATELY TO EACH AND EVERY CAUSE OF ACTION
FIRST AFFIRMATIVE DEFENSE

2. The complaint and each and every purported cause of action or count thereof fails to

state facts sufficient to constitute a cause or causes of action against Defendant.
SECOND AFFIRMATIVE DEFENSE

3. Defendant is informed and believes and thereon alleges that the acts, injuries and
damages alleged in the complaint occurred and were proximately caused by either the sole
negligence or fault of Plaintiff, which sole negligence or fault bars Plaintiff's recovery, or were
contributed to by Plaintiff's negligence or fault. Plaintiff's recovery, if any, should be reduced by
‘an amount proportionate to the amount by which Plaintiff's negligence or fault contributed to the
happening of the alleged incident and/or alleged injury.

THIRD AFFIRMATIVE DEFENSE

4, Defendant is informed and believes and thereon alleges that the negligence,
carelessness and other acts or omissions of other Defendants in this lawsuit, as well as other
persons and entities not parties to this lawsuit, proximately caused or contributed to Plaintif's
injuries and damages, if any. The negligence, carelessness and other acts or omissions of the other
Defendants in this lawsuit and other persons and entities not parties to this lawsuit account for one
hundred percent (100%) of the causal or contributing factors relating to Plaintiff's injuries and
damages, if any, and/or constitute the supervening and/or intervening causes of Plaintiff's injuries
and damages, if any

FOURTH AFFIRMATIVE DEFENSE

5. Defendant is informed and believes and thereon alleges that the accident, injury and
damages alleged in Plaintift’s complaint occurred and were proximately caused by either the sole
negligence of Plaintiff's employers other than Defendant, or co-employees, which sole negligence
bars Plaintiff's recovery, or were contributed to by the negligence of Plaintiff's employers other
than Defendant, or co-employees. Plaintift's recovery, if any, must be reduced by an amount

proportionate to the amount by which the negligence of Plaintiff's employers other than Defendant

‘OSCAR F, ERICKSON, INC-S ANSWER TO PLAIN TIES COMPLAINT

269581.1
3154-54407and/or the negligence of Plaintiff's co-employees contributed to the happening of the alleged
accident and the alleged injuries.
FIFTH AFFIRMATIVE DEFENSE
6. Defendant is informed and believes and thereon alleges that while at all times
denying any liability whatsoever to Plaintiff, any alleged liability or responsibility of Defendant is
small in proportion to the alleged liability and responsibility of other persons or entities, including
other persons and entities who are parties herein, and Plaintiff should be limited to seeking

recovery from Defendant for the proportion in which Defendant is allegedly liable or responsible,

all such alleged liability and responsibility being expressly denied.
SIXTH AFFIRMATIVE DEFENSE
7. Defendant is informed and believes and thereon alleges that at the time the alleged
operations, acts and conduct occurred, Plaintiff was acting within the course and scope of
employment and was entitled to receive, did receive and will continue to receive workers’
compensation benefits. Plaintiff's employers other than Defendant failed to provide the Plaintiff
with a safe place in which to work and such employers’ negligence, carelessness and other acts and
omissions proximately caused the injuries and damages claimed. Therefore, these employers and
their workers’ compensation carriers are barred from any recovery by lien or otherwise herein, and
Defendant is entitled to set off any such benefits Plaintiff has received against any judgment
rendered in favor of Plaintiff.
SEVENTH AFFIRMATIVE DEFENSE
8, Defendant is informed and believes and thereon alleges that Plaintiff knew of the
risks and dangers inherent to Plaintiff's conduct, and with full knowledge of those risks and dangers
and with an appreciation for the magnitude of the risks and dangers, did voluntarily assume the
risks, injuries and damages, if any, sustained thereby. Plaintiff's assumption of risk bars or
proportionately reduces any recovery by Plaintiff.
EIGHTH AFFIRMATIVE DEFENSE
9. Plaintiff has failed to make reasonable efforts to mitigate Plaintiff's injuries and/or

damages, if any

‘OSCAR F, ERICKSON, INC-S ANSWER TO PLAIN TIES COMPLAINT

269581.1
3154-54407NINTH AFFIRMATIVE DEFENSE

10. The complaint and each and every cause of action contained therein are barred by

the applicable statute of limitations including, but not limited to, Code of Civil Procedure §§335.1,
338, 339 and 343

NTH AFFIRMATIVE DEFENSE

LL. Plaintiff's action is barred by the provisions of Labor Code §3600, et seq
ELEVENTH AFFIRMATIVE DEFENSE
12. Plaintiff has waived and is estopped from asserting any claim against Defendant by
reason of Plaintiff's approval and consent to the risks of the matters causing the damages, if any,
and Plaintiff's acknowledgment of, acquiescence in and consent to the alleged acts or omissions, if
any, of Defendant.
TWELFTH AFFIRMATIVE DEFENSE

13, This action is barred by laches as Plaintiff unreasonably delayed in the bringing of

this action and thereby prejudiced the rights of Defendant.
THIRTEENTH AFFIRMATIVE DEFENSE

14. Defendant alleges that Defendant distributed and installed product(s) in full
compliance with regulations and/or specifications promulgated by the United States Government
and any recovery by Plaintiff is barred as a consequence

FOURTEENTH AFFIRMATIVE DEFENSE

13. Plaintiff'is barred from asserting any claim based on breach of warranty against
Defendant by reason of failure to fulfill the conditions of warranties alleged in Plaintiff's complaint
in the event such alleged warranties are proved at trial

FIFTEENTH AFFIRMATIVE DEFENSE

16. Defendant alleges that Plaintiff has waived whatever rights Plaintiff might otherwise
have had for breach of warranty in that Plaintiff failed to notify Defendant of any alleged breach of
warranty, express or implied, and/or of any alleged defects in any product(s) installed or distributed
by Defendant within a reasonable time after Plaintiff discovered, and/or should have discovered,

any defect or nonconformity, if any existed, thereby prejudicing Defendant from being able to fully

‘OSCAR F, ERICKSON, INC-S ANSWER TO PLAINTIEPS COMPLAINT

269581.1
3154-54407investigate and defend the allegations contained in Plaintift’s complaint.

SIXTEENTH AFFIRMATIVE DEFENSE

17. Defendant alleges that Plaintiff is now estopped from claiming that any product(s)
installed or distributed by Defendant were in any way defective or failed to conform to any alleged
warranties in that Plaintiff failed to notify Defendant of any defect or nonconformity in any
product(s) within a reasonable time after Plaintif? discovered, or should have discovered, any defect
or nonconformity, if any existed

SEVENTEENTH AFFIRMATIVE DEFENSE

18, Defendant alleges that Plaintiff was not in privity of contract with Defendant and
that such lack of privity bars recovery herein upon any theory of warranty

EIGHTEENTH AFFIRMATIVE DEFENSE

19. Defendant alleges that any injuries or damages suffered by Plaintiff, the existence
thereof being expressly denied, are the direct and proximate result of Plaintif’s particular,
idiosyncratic, peculiar or unforeseeable susceptibility to the alleged product(s) installed or
distributed by Defendant, which reaction was not the result of any conduct or omission of
Defendant, nor the result of any defect in any product(s) installed or distributed by Defendant.

NINETEENTH AFFIRMATIVE DEFENSE

20. Defendant alleges that if Plaintiff was injured by any product(s) installed or
distributed by Defendant, Defendant, irrespective, did not breach any duty to Plaintiff and is not
liable for any injuries or for Plaintiff's claimed damages as the product(s) when installed and
distributed conformed to the then current state-of-the-art specifications and because the then
current state-of-the-art medical, scientific and industrial knowledge, art and practice were such that
Defendant did not and could not know that the product(s) might pose a risk of harm in normal and
foreseeable use.

TWENTIETH AFFIRMATIVE DEFENSE

21. Defendant alleges that Plaintiff did not reasonably rely upon any act, omission or

representation of Defendant.

“ib

‘OSCAR F, ERICKSON, INC'S ANSWER TO PLAINTIEPS COMPLAINT

269581.1
3154-54407TWENTY-FIRST AFFIRMATIVE DEFENSE

22. In the event that Plaintiff is entitled to non-economic damages including, but not
limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and
companionship, loss of consortium, and/or injury to reputation and humiliation, Defendant shall be
liable only for the amount of non-economic damages allocated to Defendant's percentage of fault,
and a separate judgment shall be rendered against Defendant for that amount pursuant to Civil
Code §1431.2.

TWENTY-SECOND AFFIRMATIVE DEFENSE

23. Defendant alleges that Defendant was not engaged in the business of supplying,
tendering, installing, distributing and/or furnishing products and/or goods or services for use or
consumption by the general public.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24, Defendant denies any and all liability to the extent that Plaintiff may assert
Defendant's alleged liability as 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 or member in an entity in which there has been research, study, 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 of a certain substance, the generic name of
which is asbestos

TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. Defendant alleges that plaintiff herein lack legal capacity and standing to sue; are
not real parties in interest or persons with superior right to make the claims contained in this,
complaint and are thereby precluded from any recovery whatsoever. Additionally, to the extent
they lack standing or proper appointment to bring the claims they are asserting, any action taken in
this matter with regard to their claim(s) is voidable. Defendant further contends that any

declaration filed by any person asserting a survival claim contains expert opinions and conclusions

‘OSCAR F, ERICKSON, ING-S ANSWER TO PLAINTIEPS COMPLAINT

269581.1
3154-54407that are not supported and that the declarant is not qualified to make

TWENTY-FIFTH AFFIRMATIVE DEFENSE,

26. Defendant alleges that Plaintift’s complaint and each and every cause of action fail
to state facts sufficient to constitute a cause or causes of action for punitive damages against
Defendant

TWENT.

IXTH AFFIRMATIVE DEFENSE
27. Defendant alleges that insofar as the instant complaint is an attempt to recover
punitive or exemplary damages from Defendant, it violates the following United States

Constitutional and California State Constitutional principles

a. Excessive fines clause of the United States Constitution, Eighth Amendment
and Fourteenth Amendment,

b. The contract clause, Article I, Section 10, clause |, and the Fourteenth
Amendment of the United States Constitution;

©. The due process clause of the United States Constitution, Fourteenth
Amendment;

4d. The equal protection clause of the United States Constitution;

e. The California Constitution due process and equal protection clauses, Article

1, Section 7(a);
f The California Constitution excessive fines clause, Article 1, Section 17.
WHEREFORE, Defendant OSCAR E. ERICKSON, INC. prays for judgment as follows
1. That Plaintiff takes nothing from Defendant by virtue of the complaint herein;
2. That Defendant be awarded costs of suit and attorneys’ fees herein; and
3. That Defendant be granted such other and further relief as the Court may deem just
and proper.
Dated: August 24, 2007 Respectfully submitted,

WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP

By: {Si MICHAEL T. MCCALL
MICHAEL T. MCCALL
Atiomeys for Defendant
OSCAR E. ERICKSON, INC.

‘OSCAR F, ERICKSON, INC-S ANSWER TO PLAINTIEPS COMPLAINT

269581.1
3154-54407PROOF OF SERVICE

Tam employed in the County of Orange, State of California, Tam over the age of 18 and
not a party to the within action. My business address is 1 City Boulevard West, Fifth Floor,
Orange, California 92868-3677,

On August 24, 2007, | served the within document(s) described as

ANSWER OF DEFENDANT OSCAR E. ERICKSON, INC. TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURY - ASBESTOS

on the interested parties in this action as stated below

BRAYTON PURCELL
222 Rush Landing Road
P.O. Box 6169

Novato, CA 94948-6169

X] (BY ELECTRONIC MAIL) I provided the document(s) listed above electronically to the
Lexis Nexis website pursuant (o their instructions on that website. Tf the document is
provided to Lexis Nexis electronically by 5:00 p.m., then the document will be deemed
served on the date that it was provided to Lexis Nexis,

Executed on August 24, 2007, at Orange, California

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct,

Deanna Walker /S/ DEANNA WALKER

(Type or print name) (Signature)

‘OSCAR F, ERICKSON, INC-S ANSWER TO PLAINTIEPS COMPLAINT

269581.1
3154-54407