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

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JACKSON 6 WALLACE

ur
SAN FRANCISCO,

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

JACKSON & WALLACE LLP ELECTRONICALLY

55 Francisco Street, 6th Floor

San Francisco, CA 94133 FILED |

Tel: 415.982.6300 Superior Court of California,

Fax: 415.982.6700 County of San Francisco
AUG 01 2008

Attomeys for Defendant GORDON PARK-LI, Clerk

CUMMINS ENGINE COMPANY sued erroneously BY: VANESSA WU

herein as CUMMINS INC, Deputy Clerk

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

RUFUS ALEXANDER, Case No. 274719
Plaintiff, ANSWER OF DEFENDANT CUMMINS
ENGINE COMPANY TO UNVERIFIED
v. COMPLAINT FOR PERSONAL INJURY -
ASBESTOS

ASBESTOS DEFENDANTS (BP), et al.
Defendants.

DEFENDANT, CUMMINS ENGINE COMPANY (hereinafter “Defendant”) answers the
unverified Complaint herein on its own behalf and on behalf of'ne other defendant or entity as
fellows:

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.

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.
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ANSWER OF CUMMINS ENGINE COMPANY TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY10 OO IR NW BR WD Dm

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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

Plaintiff'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 ef. seq. of the Code of Civil Procedure.

NINTH AFFIRMATIVE DEFENSE

Plaintiff(s) 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) is entitled to any damages, the amount of these

damages should be reduced by the comparative fault of plaintiff(s) and any person whose
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ANSWER OF CUMMINS ENGINE COMPANY TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY28
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SAN FRANCLCO

negligent acts or omissions are imputed to plaintiff(s).
TENTH AFFIRMATIVE DEFENSE
Plaintiff(s) 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
plaintiff(s).
ELEVENTH AFFIRMATIVE DEFENSE
Any loss, injury or damage incurred by plaintifi{s) 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)
or by others: the misuse, abuse or alteration was not reasonably foreseeable to Defendant, and
proximately caused any loss, injury or damages incurred by plaintiffs).

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 plaintiff(s) on the Complaint on file herein is barred in consequence of the exercise
of those sovereign powers.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff(s) 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
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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, plaintifi(s) was
employed and was entitled to receive Workers' Compensation benefits from his employer's
workers’ compensation insurance carrier; that all of plaintiff'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
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 piaintiff{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
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 plaintiff(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 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,
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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
plaintifi(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 plaintififs) and
Defendant and the demands are compensated, so far as they equal each other, pursuant to
California Code of Civil Procedure section 431.70.

TWENTY-SECOND AFFIRMATIVE DEFENSE

At all 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
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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.

WHEREFORE, Defendant prays:

(1) That plaintiff 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

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

vs’
Dated: Jt \_, 2008 JACKSON & WALLACE LLP
A E. GOLDEN
Attorneys for Defendant
CUMMINS ENGINE COMPANY
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JACKSON G WALLACE
or
San Faancasca

Rufus Alexander, v. Asbestos Defendants (BP) S.E.S.C #274719

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. 1 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 August _L. 2008, I electronically served pursuant to General Order No. 158, ihe
following document(s):
ANSWER OF DEFENDANT CUMMINS ENGINE COMPANY

TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY -
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 LLP and
222 Rush Landing Road
Novato, C A 04948-614 69 ***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.

] declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and cerrect and was executed on August_| 2008, at San Francisco,

California.

Nic Lawson-Padia

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