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

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                                Lewis BRISBOIS BISGAARD & SMITH LLP
‘TELEPHONE (415) 9622500

CONSTANCE MCNEIL, SBN 184526

RODERICK D. HILL, SBN 184898 ELECTRONICALLY
LEWIS BRISBOIS BISGAARD & SMITH LLP FILED
One Sansome St., Suite 1400 Superior Court of Californie,
San Francisco, CA 94104 County of San Francisco
Tel: 415.362.2580 AUG 20 2007

Fax: 415.434.0882 GORDON PARK-LI, Clerk

Y:
BY: VANESSA WU

smeys for Defendant
PLANT INSULATION COMPANY Peputy Cre
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

CHARLES TOBEY, ) CASENO. 274226

)

Plaintiff, )) DEFENDANT PLANT INSULATION
) COMPANY'S ANSWER TO PI
v. ) COMPLAINT FOR PERSONAL INJURY —
) ASBESTOS

ASBESTOS DEFENDANTS, et al., )
Action Filed: June 5, 2007

)

Defendants.

Defendant PLANT INSULATION COMPANY, (hereinafter “Defendant”), for itself, and itself"
alone, hereby answers Plaintif?’ s Complaintand each and every cause of action set forth therein as follows:

1. Pursuantto California Code of Civil Procedure Section 431.30, Defendant denies generally
the allegations of the Complaint and the whole thereof, and denies that Plaintiff has sustained damages in
any sum or sums alleged or any sum at all.

2. urther answering Plaintiff's Complaint, this answering Defendant denies that Plaintiff
sustained any injury, damage or loss, ifany, by reason of any act, omission or negligence on the partof this
answering Defendant, or any agent, servant or employee of this answering Defendant.

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

3. The Complaint fails to state facts sufficient to constitute a cause of action against this
answering Defendant.

4817:3723-3665.1 1
DEF PLANT INSUL. CO.’S ANS TO PTF'S CMPLNT FOR PERSONAL INJURY - ASBESTOS‘SAN FRANCISCO, CALIFORNIA 94108
‘TELEPHONE (415) 962-2580

Lewis BRISBOIS BISGAARD & SMITH LP
(ONE SANSOME STREET, SUITE 1400

E
(Statute of Limitations)

4, The Complaint, and every claim and cause of action alleged therein, is barred by each
applicable statute of limitations, including, but not limited to, Califomia Code of Civil Procedure sections
340.2 and 361.

‘(Fault of Third Parties) :

5. Thisanswering Defendants informed and believes and thereon alleges that the injuries and
damages of which Plaintiff complains were proximately caused by o contributed to by the acts of other
persons, and/or other entities, over whom this answering Defendanthad neither controlnorright ofcontol,
and said acts were an intervening and superseding cause of the injuries and damages, if any, of which
Plaintiff complains, thus barring Plaintiff from any recovery against this answering Defendant.

(TH AFFIRMATIVE DI

(Comparative Negligence)

6. This answering Defendant alleges that if this Defendant is held to be negligent, which
negligence contributed asa proximate cause to Plaintiff injuries or damages, ifany, that Plaintiff was also
negligent, which negligence also contributed to Plaintiff's damages such that any damages otherwise
awarded to the Plaintiff’ must be diminished in proportion to the degree of fault attributable to Plaintift

‘FIFTH AFFIRMATIVE DEFENSE
(Contribution and Indemnification)

7. Thisanswering Defendant is informed and believes and therefore alleges that it is entitled
toa right of indemnification by apportionment and to a right of contribution from any person or entity
whose negligence proximately contributed to the happening of he alleged injuries of Plaintiff if Plaintiff
should receive a verdict against this answering Defendant.

SIXTH AFFIRMATIVE DEFENSE
(itervening Cause)

8 This answering Defendant is informed and believes and thereon alleges that if, in fact,

Plaintiff was damaged in any manner whatsoever, that said damage was a direct and proximate result of

4817.3723:3665.1 2
DEF PLANT INSUL. 00.'S ANS TO PIF 'S CMPLNT FOR PERSONAL INJURY - ASBESTOS‘TELEPHONE (415) 962-2500

LEwis BRISBOIS BISGAARD & SMITH LP
(ONE SANSOME STREET, SUTE 1400
‘SAN FRANCISCO, CALFORNIA 94108

intervening and superseding actions and causes on the part of other persons or entities, or acts of God, and
not ofthis answering Defendant, and that such intervening and superseding actions and causes barrecovery
herein by Plaintiff.
SEVENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
9. This answering Defendant alleges that Plaintiff"s damages, if any, should be reduced or
climinated as a result of Plaintiff's failure to properly mitigate his damages.
EIGHTH AFFIRMATIVE DEFENSE
(Failure to Join Proper Parties)
10. _Plaintiff'has failed to join a party or parties necessary for a just adjudication of this matter
and have further omitted to state any reasons for such failure.
NINTH AFFIRMATIVE DEFENSE
(aches)
Il. The delay of Plaintiff in commencing suit is inexcusable and has resulted in prejudice to
this answering Defendant so substantial that the defense of laches bars Plaintiff's claims.
TENTH AFFIRMATIVE DEFENSE
(Assumption of the Risk)
12. Plaintiff willingly, knowingly and voluntarily assumed the risk of the alleged illnesses and

injuries for which relief is sought in this matter.
(Release of Claims/Set-Off)

13, Plaintiff has released, settled, entered into an accord and satisfaction or otherwise
compromised their claims herein, and accordingly, said claims are barred by operation oflaw; alternatively,
Plaintiff has accepted compensation as partial settlement of those claims for which this answering
Defendant is entitled to a set-off.

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4817373.3665.1 3
DEF PLANT INSUL. CO.’S ANS TO PTF’S CMPLNT FOR PERSONAL INJURY - ASBESTOSTWELFTH AFFIRMATIVE DEFENSE
(Waiver)
14, Plaintiff has waived any and all claims which they seek to assert in this action.
‘THIRTEENTH AFFIRMATIVE DEFENSE
(Estoppel)

15, Plaintiff is estopped from asserting the claims for which relief is sought by way of
Plaintiffs’ Complaint.

FOURTEENTH AFFIRMATIVE DEFENSE
(Violation of Due Process)

16. The causes of action asserted by Plaintiff, who admits his inability to identify the
manufacturer or manufacturers of the products which allegedly caused injury, fail to state a claim upon
which relief can be granted, or, if relief is granted, this answering Defendant's Constitutional right to
substantive and procedural due process of law would be contravened.

FIETEENTH AFFIRMATIVE DEFENSE
(Unjust Taking)

17. The causes of action asserted by Plaintiff, who admits his inability to identify the
manufacturer or manufacturers of the products which allegedly caused injury, fail to state a claim upon
which reliof can be granted, of, if relicf'is granted, such relief would constitute a taking of this answering
Defendant's property for public use without just compensation, and would constitute a violation of this
Defendant's Constitutional rights.

SIXTEENTH AFFIRMATIVE DEFENSE
(Breach of Warranty)

18. Plaintiff, who admits his inability to identify the manufacturer or manufacturers of the
products which allegedly caused injury, never informed this answering Defendant, by notification or
otherwise, of any breach of express and/or implied warranties; consequently, his claims of breach of
express/or implied warranties against this Defendant are barred.

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4817-3723.3665.1 4
‘DEF PLANT INSUL, COS ANS TO PTT'S CMPLNT FOR PERSONAL INIURY - ASBESTOSLewis BRISBOIS BISGAARD & SMITH LLP
‘ONE SANSOME STREET, SUTE 1400
‘SAN FRANCISCO, CALIFORNA 94104
‘TELEPHONE (415) 362.2580

TIVE DEFENSE
(Misuse of Product)
19. Atall times and places mentioned in Plaintiff's Complaint, Plaintiff and/or other persons
used this answering Defendant's products, if indeed any were used, in an unreasonable manner, not
reasonably foreseeable to this Defendant, and for a purpose for which the products were not intended,
manufactured or designed.
EIGHTEENTH
(Modification of Product)
20. tall times and places mentioned in Plaintiffs Complaint, Plaintiff and/or other persons,
without this answering Defendant's knowledge and approval, re-designed, modified, altered and used this
Defendant's products, indeed if any were used, contrary to instructions and contrary to the custom and
practice of the industry. This re-design, modification, alteration and use so substantially changed the
product's character that if there was a defect in the product — which is specifically denied — such defect
resulted solely from the re-design, modification, alteration, or other such treatment or change and not from
any act or omission by this Defendant. Therefore, said defect, if any, was the direct and proximate cause
of the injuries and damages, if any, that Plaintiff allegedly suffered.
NINETEENTH AFFIRMATIVE DEFENSE
‘(Adequate Warnings)

21. This answering Defendant alleges that the product was not defective in that the

product was supplied with adequate warnings pertaining to dangerous propensities, if any, of the product.
TWENTIETH AFFIRMATIVE DEFENSE
(No Breach of Duty)

22. This answering Defendant alleges that it did not breach any duty owed to Plaintiff
because the product, when manufactured, distributed, and/or supplied, conformed to the state of art, and
because the then-current medical, scientific, and industria! knowledge, art, and practice was such that this
Defendant did not know and could not have known that the product might pose a risk of harm, if any, in
normal and foreseeable use.

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4817-3723.3665.1 5
DEF PLANT INSUL, CO. S ANS TO PTP’S CMPLNT FOR PERSONAL INJURY - ASBESTOSLewis BRISBOIS BISGAARD & SMITH
‘ONE SANSOME STREET, SUITE 1400
‘SAN FRANCISCO, CALIFORNIA 94104
"TELEPHONE (415) 962-2580

‘TWENTY-FIRST AFFIRMATIVE DEFENSE
(No Causation)

23. This answering Defendant alleges that there is no causal relationship between any

injuries or damages allegedly sustained by Plaintiff, and any alleged wrongful act by this Defendant.
‘TWENTY-SECOND AFFIRMATIVE DEFENSE
(No Express/Implied Warranty)

24. This answering Defendant alleges that it made no warranties of any kind, express or

implied, to Plaintiffand that there isno rélationship upon which a claim of implied warranty may be based.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(No Privity)

25. This answering Defendant alleges that the cause of actién for breach of warranty, if
any, against this Defendant is barred because (a) there is no privity of contract between Plaintiff and this
Defendant, (b) Plaintiff did not reasonably rely on the claimed warranty, if any, (c) the claims are based on
analleged warranty not expressed on the labeling or other material accompanied by the product, (4) Plaintiff
failed to give the requisite timely notice to this Defendant as to any purported breach of warranty, and (e)
any warranty, if any, to Plaintiff was expressly disclaimed by this Defendant.

‘TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Worker's Compensation)

26. This answering Defendant alleges that at all times material herein, Plaintiff was in the
course and scope of their employment and Plaintiff and his employer were subject to the provisions of the
Worker's Compensation Act of the State of California; that certain sums have been paid to, or on behalf
of, Plaintiff herein under the applicable provisions of the Labor Code; that Plaintif's employer and
Plaintiff's co-employees were negligent and careless and that such negligence and carelessness proximately
contributed to and caused the alleged injuries to Plaintiff, if any; and that under the doctrine of Witt v.
Jackson such negligence and carelessness should reduce or eliminate any lien claim or complaint-
intervention which may be made for reimbursoment of Worker’s Compensation benefits paid to or on
behalf of Plaintiff: and that the full, or at least a proportionate, amount of Worker’s Compensation benefits
ue

4$817-3723.3665.1 6
DEF PLANT INSUL. CO.’S ANS TO PTF'S CMPLNT FOR PERSONAL INJURY - ASBESTOSLEW!s BRISBOIS BISGAARD & SMITH LLP
‘ONE SANSOME STREET, SUTTE 1400
‘SAN FRANCISCO, CALIFORNA 94104
‘TELEPHONE (415) 3622580

paid to, or on behalf of, Plaintiff should be deducted from any special damages award against this
answering Defendant.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Labor Code § 3600, et seq.)

27. — Thecourtlacks subject matter jurisdiction over the matters alleged in the complaint because
the complaint and each alleged cause of action against this answering Defendant are barred by the
provisions of California Labor Code, Sections 3600, et seq.

SIXTH AFFIRMATIVE DEFENSE
(49 US.C.A. § 2071, et seq.)

28. Plaintiff's claims are preempted by the Federal Boiler Inspection Act, 49 U.S.C.A.
Sections 20701, ef seq.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Federal Preemption)

29, This answering Defendant asserts that all causes of action alleged against this Defendant

in the complaint are preempted by and under federal law.
TWENTY-EIGHTH AFFIRMA’
(Government Specifications)

30. This answering Defendant alleges that any and all products allegedly manufactured or
distributed by this Defendant were designed, manufactured, distributed and formulated in accordance with
United States Government specification, guidelines, and directives, and that all causes of action in
Plaintiff's complaint are therefore barred by the federal government contractor defense and the law of
sovereign immunity. .

TWENTY-NINTH AFFIRMATIVE DEFENSE
(Reservation of Additional Affirmative Defenses)

31. Thisanswering Defendant presently has insufficient knowledge or informationupon which
to forma beliefas to whether it may have additional, as yet unknown, affirmative defenses, Thisanswering
Defendant reserves the right to assert additional affirmative defenses in the event discovery indicates it
‘would be appropriate.

4817 3723.3665.1 7
DEF PLANT INSUL, CO.’ ANS TO PIF'S CMPLNT FOR PERSONAL INJURY - ASBESTOS‘TELEPHONE (616) 362-2560,

Lewis BRISBOIS BISGAARD & SMITH LLP
‘ONE SANSOME STREET, SUTE 1400
‘SAN FRANCISCO, CALIFORNIA 94708

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WHEREFORE, having fully answered Plaintiff's Complaint herein, this answering Defendant

prays for judgment as follows:
1. That Plaintiff takes nothing by said Complaint;
2. That this answering Defendant recover its costs of suit heroin; and
3. Fer such other and further relief as this Court may deem just and proper.
Dated: August 14,2007 LEWIS BRISBOIS BISGAARD & SMITH LLP
By: 4/Roderick D. Hill
RODERICK D. HILL
Attomeys for Defendant
PLANT INSULATION COMPANY
4817-3723-3665.1 8

‘DEF PLANT INSUL. CO-'S ANS TO PTF'S CMPLNT FOR PERSONAL INJURY - ASBESTOSSAN FRANCISCO, CALIFORNIA 94104
TELEPHONE (415) 362-2560

Lewis BRISBOIS BISGAARD & SMITH LLP
‘ONE SANSOME STREET, SUITE 1400

Charles Tobey v. Asbestos Defendants
‘San Francisco County Superior Court Case NO. 274226
PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

Iam employed in the County of San Francisco, State of California, I am over the age of 18
and not a party to the within action, My business address is One Sansome Street, Suite 1400, San
Francisco, California 94104,

On August 20, 2007, I electronically served (E-Service) via LexisNexis File and Serve
pursuant to General Order No. 158, the following document described as:

DEFENDANT PLANT INSULATION COMPANY’S ANSWLER TO COMPLAINT FOR,
PERSONAL INJURY

BRAYTON PURCELL LLP
222 RUSH LANDING ROAD
P.O.BOX 6169

NOVATO, CA 94948-6169

The above document was transmitted by Lexis-Nexis E-Service and the transmission was
reported as complete and without error.

[X] (STATE) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct,

Executed on August 20, 2007 at San Francisco, California.

/s/Ambra JACKSON
AMBRA JACKSON

4845-1637-2737.10

PROOF OF SERVICE