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

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San Francisco Superior Courts
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Aug-05-2008 12:15 pm

Case Number: CGC-08-274719
Filing Date: Aug-04-2008 3:23
Juke Box: 001 . Image: 02208670 —™

Answer of Defendant Fiat USA, Inc.

RUFUS ALEXANDER VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS

001602208670

Instructions:
Please place this sheet on top of the document to be scanned.Keith Réyen, Esq. (CSB 127420)
Bret R: Landess, Esq. (CSB 221105)

OiuUM REYEN & PRYOR

220 Montgomery Street, Suite 910

San Francisco, CA 94104 ELECTRONICALLY
Tel: (415) 392-8300 san raved hind bop Court

Fax: (415) 421-1254
AUG 0 4 2008

GORDON BARKSLI, Clerk
pa

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

Attorneys for Defendant Fiat USA, Inc.

COUNTY OF SAN FRANCISCO
RUFUS ALEXANDER Case No. CGC-08-274719
Plaintiff, UNLIMITED CIVIL ACTION
vs. ANSWER OF DEFENDANT FIAT USA,
INC.

ASBESTOS DEFENDANTS (BP)
AS Reflected on Exhibits B, C, G, H, [; and
DOES 1-8500

Defetidants,

COMES NOW defendant Fiat USA, Inc. and answers plaintiff's Complaint as follows:
1.

Answeritig thé Complaint against defendant and all of the allegations contained therein
and purstiant t6-thée provisions of California Code of.Civil Procedure Section 431.30, this
answering defendant denies all of the allegations contained in said Complaint. Further, this
answeéring defendant denies that plaintiff is entitled to the relief prayed for, any relief at all, from
said. defendant:

“ib

Page 1
Answer of Defendant Pial USA, Ine.27

28

IL.

AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO
THE COMPLAINT, and to each and every allegation therein contained, this answering
defendant alleges that the Complaint fails to state facts sufficient to constitute a cause of action
against this answering defendant.

It.

AS-AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE.COMPLANT, and to each and every allegation therein contained, this answering
defendant alleges that the acts, conduct and omissions of plaintiff actually and proximately
caused any injuries alleged in the Complaint, which injuries are denied herein, and this
answering defendant has no liability to plaintiff for any portion of fault attributable to plaintiff.

Iv.

AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE COMPLAINT, and to each and every allegation therein contained, this answering
defendant alleges that plaintiff was comparatively negligent in bringing about his own damage
in the imdtter and style set forth in the decision of Supreme Court of the State of California in
the casé of Liv. Yellow Cab Company, (1975) 13 Cal.3d 804 and this defendant prays that any
ard all daniage sustained by plaintiff, if any there be, be reduced by the percentage of
plaintiff's own négligence.

v.

AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO. THE COMPLAINT, and to each and every allegation therein contained, this
answerittg defendant alleges that said injuries allegedly sustained by plaintiff was either wholly
or in part negligently caused by persons, firms, corporations or entities other than this
answering defendant and that said negligence comparatively reduces the percentage of
negligence, if any, by this answerin ig defendant.

Ui
it

Page 2
Answer of Defendant Fiat USA, Inc,Vi.

AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE COMPLAINT, and to each and every allegation therein contained, this answering
defendant alleges that said Complaint is barred by the Statute of Limitations set forth within the
Gode of Civil:Procedure of the State of California:

Vil.

AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE:
TO THE COMPLAINT, and to cach and every allegation therein contained, defendant avers
that it-has not yet completed a thorough investigation and study and complete discovery of all
of the facts atid citcunistances of the subject matter of said Complaint, and accordingly,
reserves the i ght 16 amend, modify, revise or supplement its Answer, and to plead such further.
defenses and take such further action as they may deem proper and necessary in its defense
upon the conipletion of said investigation and study.

Vill,

AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO THE COMPLAINT, and to éach arid every allegation therein contained, it is
alleged that plaintiff and/or persons, firms, corporations or entities other than this answering
defendant, misused and abused said product and/or failed to use said product for the purpose
for which it Was intended, which misuse and abuse ‘is imputed to plaintiff, thereby barring any
recovery by plaintiff herein.

JX,

‘AS AND-FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO THE COMPLAINT, and to each and every allegation therein contained,
deferidant alleges that should plaintiff recover any damages in this action, that said damages be
coniputed pursuant to California Civil Code Section 1431.2, :
Wt
Me
Mt

Page 3
Answer of Defendant Fiat USA, Inc.x.
AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE COMPLAINT, and to each and every allegation therein contained, defendant alleges
that thé doctrine of express assumption of the risk bats any recovery by plaintiff herein.
XL
AS AND FOR A ‘TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE COMPLAINT, ahd to each and every allegation therein contained, defendant alleges
that the doctrine of implied assumption of the risk'either bars and/or comparatively reduces any
recovery by plaintiff herein.
XU.

AS AND FOR AN ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO THE COMPLAINT, this answering defendant alleges that all claims or “failure
to warn’-of “inadequate warnings” made against Fiat USA, Inc., if any, are barred by the terms
and conditions of applicable purchase orders atid product specifications in either the “learned
intermediary” or “sophisticated user” doctrine as applied to the facts and circumstances of this
case,

XH :

AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO THE COMPLAINT, this answering defendant alleges that plaintiff's Complaint
may be baired, either in whole or in part, by the negligent or intentional loss, destruction of
spoilage of televant, material evidence either by plaintiff, by person in privity with them or by
persons subject to their direction and control. Such spoliation has prejudiced the ability of
defendant to ‘respond effectively to the allegations tade against it.

XIV.

AS AND FOR A- THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO THE COMPLAINT, this answering defendant alleges that plaintiff failed to state
acclaim upon which punitive damages can be asserted against this responding defendant.

it

Page 4
Answer of Defendaii( Fiat USA, Inc.XY.

AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO THE COMPLAINT, the Complaint faiis to state a claim upon which punitive
dariages,can be grarited.

XVI

‘AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO THE COMPLAINT, the imposition of punitive damages under the facts and
circumstaiices of this casé would violate the excessive fines and due process clauses of the
United States, Constitution and of the Constitution of the State of California.

XVEL

AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO THE COMPLAINT, plaintiff's claim for punitive damages is barred by the
double jeopardy ¢lause of the Fifth Amendment to the Constitution of the United States, as
applied to thé several states through the Fourteenth’ Amendment and pursuant to the
Constitution of the State of California.

XVII.

AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO THE COMPLAINT, to the extent that the plaintiff's Complaint seeks punitive
or exemplary damages, such claim is unconstitutional and violates the due process clause of the

Fifth and-Fourteenth Amendments to the United States Constitution and the Constitution of the

| State of California.

XIX.

AS AND FOR AN EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO. THE COMPLAINT, the assessment of punitive damages violates the equal
protectioti clausé of the Fourteenth Amendment to the United States Constitution and the
Constitution of thé State of California.

Hf
ut

Page 5
Answer of Defendant Fiat USA, Inc.XX,
AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE TO THE COMPLAINT, this answering defendant alleges that, plaintiff's claim for
enterprise liability mder Sindell vs. Abbatt Laboratories is barred by and contrary to existing

case law.
Respectfully submitted,
OJUM RBYEN & PRYOR
Dated: August 4, 2008
Keith Reyen, Esq.

Attomey for Defendant Fiat USA, Inc.

Page.6
Answer of Defendant Fiat USA, Inc.: PROOF OF SERVICE
Rufus Alexander v. Asbestos Defendants (Fiat USA, lac.
San Francisco Superior Court Case No. CGC 08-274719

Teertify that I'am over the age of 18 years and not a party to the above referenced action;
that my busiitess address is 220 Montgomery Street, Suite 910, San Francisco, CA 94104; and
that on this date I served a true copy of the document(s) in the action of Rufus Alexander v.
Asbestos Defendants, Sat Francisco Superior Court Case No. CGC-08-274719, entitled:

« Answer of Defendant Fiat USA, Inc. o
Service was effectuated by forwarding the abovée-noted documents:in the following manner:
xX Electronically on the recipients designated on the Transaction Receipt located on
the LexisNexis File & Serve website, pursuant to San Francisco Superior Court

General Order No. 158. Asbestos-Related Case.

I declare imder penalty of perjury that the foregoing is tue and correct and that this
declaration was. executed on August 4, 2008, at San Francisco, California.

BA. fader

Bret R. Laidess

Page 1
Proof of Serviec