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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                28

JACKSON Jeeves
RENSTROM LLP
SAN FRANCISCO

GABRIEL A. JACKSON, State Bar No. 98119
CATHERINE E, GOLDEN, State Bar No. 127694

JACKSON JENKINS RENSTROM LLP ELECTRONICALLY
55 Francisco Street, 6th Floor
San Francisco, CA 94133 FILED
Tel: 415.982.3600 Superior Court of California,
Fax: 415.982.3700 County of San Francisco
NOV 05 2010
Attorneys for Defendant Clerk of the Court
CUMMINS, INC. BY: ANNIE PASCUAL
Deputy Clerk

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

ROSITA PIQUE, as Wrongful Death Heir Case No. CGC-08-274659
and as Successor-in-Interest to

GODOFREDO PIQUE, Deceased; and ANSWER OF DEFENDANT CUMMINS,
MARLENE SANCHEZ, GREGORY INC. TO UNVERIFIED FIRST AMENDED
PIQUE, FREDERICK PIQUE, as Legal COMPLAINT FOR WRONGFUL DEATH -

Heirs of GODOFREDO PIQUE, Deceased, ASBESTOS
Plaintiffs,
v.

DANA COMPANIES, LLC (FKA DANA
CORPORATION), et al.

Defendants.

DEFENDANT CUMMINS, INC. (hereinafter "Defendant") answers the unverified First

Amended 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
generally each and every allegation of the Complaint.
FIRST 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.

itt
1892498 1

ANSWER OF CUMMINS, INC. TO UNVERIFIED COMPLAINT FOR WRONGFUL DEATH28

JacasOn JuNKINS
RENSTROM LLP
SAN FRANCISCO

SECOND AFFIRMATIVE DEFENSE
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.
THIRD AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged therein states facts
sufficient to entitle plaintiff(s) to an award of punitive damages against Defendant.
FOURTH 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.
FIFTH 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.
SIXTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would constitute a criminal fine
or penalty and should, therefore, be remitted on the ground that the award violates the United
States Constitution.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs' decedent'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
338(1), 338(4), 339(1), 340(1), 340(3), 340.2, 343 and 353 and California Commercial Code,
section 2725,
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff(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 et. seq. of the Code of Civil Procedure.

tl
1892498 2

ANSWER OF CUMMINS, INC. TO UNVERIFIED COMPLAINT FOR WRONGFUL DEATH28

JACKSON JENKINS
RENSTROM LLP
SAN FRANCISCO

NINTH AFFIRMATIVE DEFENSE

Plaintiff(s)' decedent 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 plaintiff(s)' decedent is entitled to any damages,
the amount of these damages should be reduced by the comparative fault of plaintiff(s)' decedent
and any person whose negligent acts or omissions are imputed to plaintifi{s)' decedent.

TENTH AFFIRMATIVE DEFENSE

Plaintiff(s)' decedent knowingly, voluntarily and unreasonably undertook to encounter
each of the risks and hazards, if any, referred to in the Complaint and each alleged cause of
action, and this undertaking proximately caused and contributed to any loss, injury or damages
incurred by plaintifi(s)' decedent.

ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by plaintifi(s)' decedent 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.

TWELFTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by plaintiff(s)'
decedent or by others; the misuse, abuse or alteration was not reasonably foreseeable to
Defendant, and proximately caused any loss, injury or damages incurred by plaintiff(s).

THIRTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that its products 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 plaintiffs) on the Complaint on file herein is barred in consequence of the exercise
of those sovereign powers.
tl

Ht
1892498 3

ANSWER OF CUMMINS, INC. TO UNVERIFIED COMPLAINT FOR WRONGFUL DEATH28

JACKSON JENKINS
RENSTROM LLP
‘SAN BRANCISCO.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff(s)' decedent 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.

FIFTEENTH AFFIRMATIVE DEFENSE

The Court lacks subject matter jurisdiction over the matters alleged in the Complaint
because the Complaint and each alleged cause of action against Defendant are barred by the
provisions of California Labor Code, section 3600, et seq.

SIXTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, plaintiff(s)’
decedent was employed and was entitled to receive Workers' Compensation benefits from his
employer's workers' compensation insurance carrier; that all of plaintiff(s)' decedent'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 plaintiff(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 plaintiff(s) against any judgment which may
be rendered in favor of plaintiff(s). (Witt v. Jackson, 57 Cal.2d 57, 366 P.2d 641)

SEVENTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, plaintiff(s)'
decedent'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 damage, including noneconomic damages, complained of by plaintiff(s), if any there
were; and that Defendant is not liable for said employers' proportionate share of non-economic

damages.

EIGHTEENTH 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
1992498 4

ANSWER OF CUMMINS, INC. TO UNVERIFIED COMPLAINT FOR WRONGFUL DEATH28

Jacnsox Jennans
RENSTROM LLP
SAN FRANCISCO

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 plaintifi(s), if any there
were; and that Defendant herein shall not be liable for said parties' proportionate share of non-
economic damages.
NINETEENTH AFFIRMATIVE DEFENSE
Defendant alleges that at all times relative to matters alleged in the Complaint, all of
plaintiff(s)' decedent's employers, other than Defendant, were sophisticated users of asbestos-
containing products and said employers’ negligence in providing the product to its employees in a
negligent, careless and reckless manner was a superseding cause of plaintiff's injuries, if any.
TWENTIETH AFFIRMATIVE DEFENSE
If plaintiff(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, and in the event plaintiff(s) 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
plaintiff(s) has received or may in the future receive.

TWENTY-FIRST AFFIRMATIVE DEFENSE

If plaintiff(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 plaintiff(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
otherwise, Defendant asserts that cross-demands for money have existed between plaintiff(s)'
decedent and Defendant and the demands are compensated, so far as they equal each other,
pursuant to California Code of Civil Procedure section 431.70.
tl

Mt
1892498 5

ANSWER OF CUMMINS, INC. TO UNVERIFIED COMPLAINT FOR WRONGFUL DEATHoc WY DR A BB YW HN

28

JACKSON JENKINS
RENSTROM LLP
SAN FRANCISCO

TWENTY-SECOND AFFIRMATIVE DEFENSE

Atall times and places in the Complaint, plaintiff(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-THIRD AFFIRMATIVE DEFENSE

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

TWENTY-FOURTH AFFIRMATIVE DEFENSE

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

TWENTY-FIFTH AFFIRMATIVE DEFENSE

Defendants deny any and all liability to the extent that plaintiff asserts 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, alterego, 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, leasing, buying, offering for sale, selling, inspecting, 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.
if
ut
if
tt
Ml

Me
1892498 6

ANSWER OF CUMMINS, INC. TO UNVERIFIED COMPLAINT FOR WRONGFUL DEATH28

JACKSON JENKINS
RENSTROM LLP
SAN ERANCISCO

WHEREFORE, Defendant prays:

(1) That plaintiff(s) 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-offs arising out of any payment of Worker's
Compensation benefits as alleged above; and

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

Dated: November 5, 2010 JACKSON JENKINS RENSTROM LLP

By: /S/ CATHERINE E. GOLDEN

CATHERINE E. GOLDEN
Attomeys for Defendant
CUMMINS, INC.

1892498 7

ANSWER OF CUMMINS, INC. TO UNVERIFIED COMPLAINT FOR WRONGFUL DEATHan

o> !

28

JACKSON JENKINS
RENSTROM LLP
SAN FRANCISCO

Rosita Pique, et al, y. Dana Companies, LLC, et al. S.F.S.C #CGC-08-274659

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 November 5, 2010, I electronically served pursuant to General Order No. 158, the
following document(s):
ANSWER OF DEFENDANT CUMMINS, INC. TO

UNVERIFIED COMPLAINT FOR WRONGFUL DEATH -
ASBESTOS

on interested parties in this action by causing Lexis Nexis E-Service program pursuant to General

Order No. 158, to transmit a true copy thereof to the email address(es) of the following party(ies):

BRAYTON PURCELL and
222 Rush Landing Road
Novato, C anne oa ***Please See Lexis Nexis Service List***

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

I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct and was executed on November 5, 2010, at San Francisco,

California.
/S/ Eva Luna
Eva Luna

1892498