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

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                                CONSTANCE MCNEIL, SBN 184526
RODERICK HILL, SBN 184898

LEWIS BRISBOIS BISGAARD & SMITH LLP ELECTRONICALLY
One Sansome St., Suite 1400 FILED

San Francisco, CA 94104 Superior Court of California,
Tel: 415.362.2580 County of San Francisco

Fax: 415.434.0882

JUN 02 2008
Attorneys for Defendant GORDON FARKC-LI Clerk
PLANT INSULATION COMPANY Dapuly Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA.
COUNTY OF SAN FRANCISCO

GODOFREDO PIQUE, CASE NO. CGC-08-274659

Plaintiff, DEFENDANT PLANT INSULATION
COMPANY’S ANSWER TO PLAINTIFF’S
COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOS

Vv.

on Exhibits B, B-1, C, H, J; and DOES 1-800; Action Filed: May 8, 2008

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ASBESTOS DEFENDANTS (B*P) As Reflected )
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Defendants. )

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Defendant PLANT INSULATION COMPANY, (hereinafter “Defendant’)for itself and itself
alone hereby answers Plaintiff Complaint and each and every cause of action set forth therein as follows:

1. Pursuant to California Code of Civil Procedure Section 43 1.30, Defendant denies generally
the allegations of the Complaint and the whole thereof, and denies that Plaintiff have sustained damages
in any sum or sums alleged or any sum at all.

2. Further answering Plaintiff Complaint, this answering Defendant denies that Plaintiff
sustained any injuries, damage or loss, if any, by reason of any act, omission or negligence on the part of
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.
4812-6929-2034.1 1
DEF PLANT INSUL COS ANS TO PTFS’ CMPLNT FOR PI & LOSS F CONSORTIUMSECOND AFFIRMATIVE DEFENSE
(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, California Code of Civil Procedure sections

340.2 and 361.
THIRD AFFIRMATIVE DEFENSE
(Fault of Third Parties)
5. This answering Defendant is informed and believes and thereon alleges that the injuries and

damages of which Plaintiff complain were proximately caused by or contributed to by the acts of other
persons, and/or other entities, over whom this answering Defendant had neither control nor right of control,
and said acts were an intervening and superseding cause of the injuries and damages, if any, of which
Plaintiff complain, thus barring Plaintiff from any recovery against this answering Defendant.

FOURTH AFFIRMATIVE DEFENSE
(Comparative Negligence)

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

FIFTH AFFIRMATIVE DEFENSE
(Contribution and Indemnification)

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

SIXTH AFFIRMATIVE DEFENSE
{intervening Cause)

8. This answering Defendant is informed and believes and thereon alleges that if, in fact,
Plaintiff were damaged in any manner whatsoever, that said damage was a direct and proximate result of

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DEF PLANT INSUL CO*S ANS TO PTFS’ CMPLNT FOR PI & LOSS F CONSORTIUMintervening and superseding actions and causes on the part of other persons or entities, or acts of God, and

not of this answering Defendant, and that such intervening and superseding actions and causes bar recovery

herein by Plaintiff.
SEVENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
9. This answering Defendant alleges that Plaintiff damages, if any, should be reduced or

eliminated as a result of Plaintiff’ failure to properly mitigate his damages.

EIGHTH AFFIRMATIVE DEFENSE
(Failure to Join Proper Parties)

10. Plaintiffhave 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
(Assumption of the Risk)

il. Plaintiff willingly, knowingly and voluntarily assumed the risk of the alleged illnesses

and injuries for which relief is sought in this matter.

TENTH AFFIRMATIVE DEFENSE
(Release of Claims/Set-Off)

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

ELEVENTH AFFIRMATIVE DEFENSE
(Estoppel)

13. Plaintiff are estopped from asserting the claims for which relief is sought by way of

Plaintiff Complaint.

TWELFTH AFFIRMATIVE DEFENSE
(Breach of Warranty)

4812-6929-2034 F 3
DEF PLANT INSUL CO*S ANS TO PTFS’ CMPLNT FOR PI & LOSS F CONSORTIUM14. Plaintiff, whom admit their 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.

THIRTEENTH AFFIRMATIVE DEFENSE
(Misuse of Product)

15. At all times and places mentioned in Plaintiff’ 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.

FOURTEENTH AFFIRMATIVE DEFENSE
(Modification of Product)

16. Atall times and places mentioned in Plaintiff 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.

FIFTEENTH AFFIRMATIVE DEFENSE
{Adequate Warnings)

17. This answering Defendantalleges that the product was not defective in thatthe product was

supplied with adequate warnings pertaining to dangerous propensities, if any, of the product.

SIXTEENTH AFFIRMATIVE DEFENSE
(No Breach of Duty)

18. This answering Defendant alleges that it did not breach any duty owed to Plaintiffbecause
the product, when manufactured, distributed, and/or supplied, conformed to the state of art, and because

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DEF PLANT INSUL CO*S ANS TO PTFS’ CMPLNT FOR PI & LOSS F CONSORTIUMthe then-current medical, scientific, and industrial 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.

SEVENTEENTH AFFIRMATIVE DEFENSE
(No Causation)

19, 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.

EIGHTEENTH AFFIRMATIVE DEFENSE
(No Express/Implied Warranty)

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

implied, to Plaintiffand that there is no relationship upon which a claim of implied warranty may be based.

NINETEENTH AFFIRMATIVE DEFENSE
(No Privity)

21. This answering Defendant alleges that the cause of action 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, ifany, (c) the claims are based on
an alleged warranty not expressed on the labeling or other material accompanied by the product, (d)
Plaintiff failed to give the requisite timely notice to this Defendant as to any purported breach of warranty,
and (ce) any warranty, if any, to Plaintiff were expressly disclaimed by this Defendant.

TWENTIETH AFFIRMATIVE DEFENSE
(Worker’s Compensation)

22. This answering Defendant alleges that at all times material herein, Plaintiff were in the
course and scope of their employment and Plaintiff and their employer were subject to the provisions of
the Worker’s Compensation Actof 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 Plaintiff employer and Plaintiff
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-

4812-6929-2034.1 5
DEF PLANT INSUL CO*S ANS TO PTFS’ CMPLNT FOR PI & LOSS F CONSORTIUMintervention which may be made for reimbursement 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
paid to, or on behalf of, Plaintiff should be deducted from any special damages award against this
answering Defendant.

TWENTY-FIRST AFFIRMATIVE DEFENSE
(Labor Code § 3600 et seq.)

23. The court lacks subjectmatter 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 pro-

visions of California Labor Code, Sections 3600, ef seq.

TWENTY-SECOND AFFIRMATIVE DEFENSE
(49 USCA. § 2071 ef seg.)

24, Plaintiff claims are preempted by the Federal Boiler Inspection Act, 49 U.S.C.A.

Sections 20701, et seq.

TWENTY-THIRD AFFIRMATIVE DEFENSE
(Federal Preemption)

25. This answering Defendant asserts that all causes of action alleged against this Defendant

in the complaint are preempted by and under federal law.

TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Government Specifications)

26. 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
complaint are therefore barred by the federal government contractor defense and the law of sovereign
immunity.

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

27. This answering Defendant presently has insufficient knowledge or information upon which
to forma beliefas to whether it may have additional, as yet unknown, affirmative defenses. This answering

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DEF PLANT INSUL CO*S ANS TO PTFS’ CMPLNT FOR PI & LOSS F CONSORTIUMDefendant reserves the right to assert additional affirmative defenses in the event discovery indicates it

would be appropriate.

WHEREFORE, having fully answered Plaintiffs Complaint herein, this answering Defendant
prays for judgment as follows:

1 That Plaintiff take nothing by said Complaint;

2. That this answering Defendant recover its costs of suit herein; and
3. For such other and further relief as this Court may deem just and proper.
Dated: May 30, 2008 LEWIS BRISBOIS BISGAARD & SMITH LLP

By:  /s/ Roderick Hill
RODERICK HILL
CONSTANCE MCNEIL
Attorneys for Defendant
PLANT INSULATION COMPANY

4812-6929-2034 F 7
DEF PLANT INSUL CO*S ANS TO PTFS’ CMPLNT FOR PI & LOSS F CONSORTIUMPROOF OF SERVICE BY ELECTRONIC TRANSMISSION

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO,

Tam 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 May 30, 2008 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 ANSWER TO Plaintiff COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS
on all interested parties in this action as follows:
Attorneys for Plaintiff:
BRAYTON PURCELL
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 May 30, 2008 at San Francisco, California.

/s/Ambra Jackson
Ambra Jackson

4812-6929-2034.1

PROOF OF SERVICE