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28
BENNETT, SAMUELSEN,
REYNOLDS & ALLARD.
PROFESSIONAL CORP,
FBT MARINA VILLAGE,
PARKWAY.
SUITE 300,
ALAMEDA, CA 9301-1084
SHOVE TORS
RICHARD L. REYNOLDS #77881
BENNETT, SAMUELSEN, REYNOLDS & ALLARD
A Professional Corporation ELECTRONICALLY
Attorneys at Law
1301 Marina Village Parkway, Suite 300 F ILE D .
Alameda, California 94501 “County of San Francisco
Telephone: (510) 444-7688
AUG 12 2008
PAUL J. RIEHLE #115799 GORDON PARK-LI, Clerk
SEDGWICK, DETERT, MORAN & ARNOLD BY: CHRISTLE ARR k
One Market Plaza epuly Cle
Steuart Tower, 8" Floor
San Francisco, CA 94105
Telephone: (415) 781-7900
Attorneys for Defendant
GATKE CORPORATION
A Bankrupt, Defunct, Dissolved Corporation
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
RUFUS ALEXANDER, NO. CGC-08-274719
[Unlimited Jurisdiction}
Plaintiff,
ANSWER TO COMPLAINT
vs.
ASBESTOS DEFENDANTS [BHC], et ai.,
Defendants.
COMES NOW defendant GATKE CORPORATION, a bankrupt, defunct, dissolved
corporation, and answers plaintiff's unverified complaint herein as follows:
I.
This defendant denies each and every, ail and singular, generally and specifically,
the allegations contained in the complaint, and in this connection, this defendant denies
that plaintiff has been or was injured or damaged in the unspecified sum or sums alleged in
the complaint, or in any other sum or sums, or otherwise, or at all.
AFFIRMATIVE DEFENSES
AS AND FOR SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES TO EACH
ANSWER TO COMPLAINToD Co em aD
28
BENNETT, SAMUELSEN,
REYNOLDS & ALLARD.
PROFESSIONAL CORP,
FBT MARINA VILLAGE,
PARKWAY.
SUITE 300,
ALAMEDA, CA 9301-1084
SHOVE TORS
AND EVERY CAUSE OF ACTION OF PLAINTIFF'S COMPLAINT, AS THOUGH PLEAD
SEPARATELY TO EACH AND EVERY OF SAID CAUSES OF ACTION, THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
FIRST AFFIRMATIVE DEFENSE
Each and every of said causes of action fails to state a cause of action against this
answering defendant.
SECOND AFFIRMATIVE DEFENSE
Each and every cause of action of plaintiff's complaint seeks recovery for damages,
which is barred by the statute of limitations, including but not limited to, California Code of
Civil Procedure, Sections 340(3), 340.2, 338(1), 338(4), 343, 337.1 and 337.15.
THIRD AFFIRMATIVE DEFENSE
l.
This answering defendant is informed and believes, and based upon said
information and belief alleges, that at the times and places mentioned in plaintiff's
complaint, the plaintiff was careless and negligent in and about the matters alleged in the
complaint, and that said carelessness and negligence caused and contributed, to the extent
of one hundred percent, to any injuries and damages allegedly sustained by plaintiff, if any
such injuries or damages there were, or are.
I.
At all times denying any liability whatsoever to plaintiff herein and at all times
denying that plaintiff is entitled to any recovery herein, this answering defendant alleges
that in the event of any judgment or verdict in favor of plaintiff herein, that said judgment or
verdict must be reduced to the extent that said carelessness and negligence of plaintiff
caused or contributed to the alleged injuries and damages allegedly sustained by plaintiff, if
any such injuries or damages there were, or are.
ANSWER TO COMPLAINTI FOURTH AFFIRMATIVE DEFENSE
2 1.
3 This answering defendant is informed and believes, and based upon said
4 || information and belief alleges, that plaintiff has received or receive disability and medical
5 || benefits under a worker’s compensation law, or similar laws, from plaintiff's employers or
former employers or their worker's compensation or similar insurers, on account of the
injuries and damages allegedly sustained by plaintiff which give rise to this lawsuit, if any
such injuries or damages there were or are.
Il.
oD Co em aD
At all times denying any liability or obligation to plaintiff or any other person or entity
11 || whatsoever, this answering defendant alleges that each and every of plaintiffs employers
2 || and former employers was careless and negligent in and about the matters alleged in
3 || plaintiff's complaint and that said carelessness and negligence of each and every of said
4] employers contributed directly and proximately to any alleged injuries or damages
5 || sustained by plaintiff and/or any or all of said employers.
16 Ml.
7 By reason of the premises, and at all times denying that plaintiff is entitled to any
8 || judgment or verdict whatsoever herein, any judgment or verdict that might be rendered in
9 || favor of plaintiff herein should be reduced by the amount of all such payments by said
20 || employers or insurers, and that each of said employers or insurers should be barred from
21 || any recovery by lien or otherwise in connection with this matter.
22 FIFTH AFFIRMATIVE DEFENSE
23 At all times denying the allegations of plaintiff's complaint, this answering defendant
24 || is informed and believes, and based upon said information and belief alleges, that plaintiff
25 || voluntarily and knowingly assumed the alleged risks and alleged hazards incident to the
26 || alleged operations, acts and conduct at the times and places alleged in the complaint, and
27 || that plaintiff's said acts proximately caused and contributed to the alleged injuries and
SUPE 300,
ALAM does “|| ANSWER TO COMPLAINT1 || damages, if any such injuries or damages there were, or are.
2 SIXTH AFFIRMATIVE DEFENSE
3 Il.
4 This answering defendant is informed and believes, and based upon said
5 || information and belief alleges, that any injuries and damages allegedly sustained by plaintiff
were directly and proximately caused by the misuse of the product or products allegedly
involved, by plaintiff and plaintiff's employers.
SEVENTH AFFIRMATIVE DEFENSE
I.
oD Co em aD
This answering defendant incorporates herein by reference, as though set forth in
11 ]] full at this point, each and every allegation contained in Paragraph 1 of its Fourth
2 || Affirmative Defense.
3 Ih.
4 At all times denying all allegations of plaintiff's complaint, this defendant is informed
5 || and believes, and based on said information and belief alleges, that plaintiffs employers
16 || voluntarily and knowingly assumed the alleged risks and alleged hazards of the alleged
7 || operations, acts and conduct at the times and places alleged in plaintiff's complaint, and
8 || that said acts of plaintiffs employers directly and proximately caused and contributed to
9} any alleged injuries or damages allegedly sustained by the plaintiff, and/or by any or all of
20 || plaintiff's employers, if any such injuries or damages to either plaintiff or any employer of
21 || plaintiff there were, or are.
22 Hl.
23 By reason of the premises, at all times denying that plaintiff is entitled to any
24 || judgment or verdict whatsoever herein, any judgment or verdict that might be entered in
25 || favor of plaintiff herein should be reduced by the amount of all such payments by said
26 || employers or insurers, and that each of said insurers or employers should be barred fram
27 || any recovery herein.
SUPE 300,
ALAM does “|| ANSWER TO COMPLAINToD Co em aD
28
BENNETT, SAMUELSEN,
REYNOLDS & ALLARD.
PROFESSIONAL CORP,
FBT MARINA VILLAGE,
PARKWAY.
SUITE 300,
ALAMEDA, CA 9301-1084
SHOVE TORS
EIGHTH AFFIRMATIVE DEFENSE
At all times denying any liability whatsoever for plaintiff herein, this defendant alleges
that any alleged liability or responsibility of this defendant, any such alleged liability and
responsibility being denied, is small in proportion to the alleged liability and responsibility of
other persons and entities, including other persons and entities who are defendants herein,
and that plaintiff should be limited to seeking recovery from this defendant for the
proportion of alleged injuries and damages for which this defendant Is allegedly liable or
responsible, all such alleged liability and alleged responsibility being expressly denied.
NINTH AFFIRMATIVE DEFENSE
This answering defendant is informed and believes, and based upon said
information and belief alleges, that plaintiff has unreasonably delayed in bringing of this
action without good cause therefor. Said delay has directly and proximately resulted in
prejudice to this defendant and, therefore, this action is barred by laches.
TENTH AFFIRMATIVE DEFENSE
At all times denying all allegations of plaintiff's complaint, this answering defendant
is informed and believes, and based upon said information and belief alleges, that plaintiff
is barred from recovery herein because of modification, alteration or change in some other
manner of the products alleged in plaintiff's complaint on file herein.
ELEVENTH AFFIRMATIVE DEFENSE
At all times mentioned herein, this answering defendant is informed and believes,
and based upon said information and belief alleges, that plaintiff acknowledged, ratified,
consented to and acquiesced in the alleged acts or omissions, if any there were, of this
answering defendant, thus barring plaintiff from any relief as prayed for herein.
TWELFTH AFFIRMATIVE DEFENSE
At all times denying any liability or obligation whatsoever to plaintiff herein, and/or to
any other person or entity of any nature or capacity whatsoever, and at all times denying
that plaintiff is entitled to any recovery herein, this answering defendant alleges that at all
ANSWER TO COMPLAINToD Co em aD
28
BENNETT, SAMUELSEN,
REYNOLDS & ALLARD.
PROFESSIONAL CORP,
FBT MARINA VILLAGE,
PARKWAY.
SUITE 300,
ALAMEDA, CA 9301-1084
SHOVE TORS
times and places mentioned in plaintiff's complaint, its products were manufactured,
produced, supplied, sold and distributed in conformity with specifications promulgated by
the United States Government under its war powers as set forth in the United States
Constitu
ion, and that any recovery by plaintiff herein is thus further barred by said
sovereign acts and powers.
qT
THIRTEENTH AFFIRMATIVE DEFENSE
he complaint fails to state a cause of action against this answering defendant for
exemplary/punitive damages.
T
FOURTEENTH AFFIRMATIVE DEFENSE
here is a defect and misjoinder of parties defendant.
FIFTEENTH AFFIRMATIVE DEFENSE
he complaint and each cause of action thereof is barred by the provisions of
Commercial Code Sections 2725(1) and 2725(2).
P
SIXTEENTH AFFIRMATIVE DEFENSE
laintiff failed to mitigate his alleged damages, if any there were.
SEVENTEENTH AFFIRMATIVE DEFENSE
This answering defendant received no notice of any dangerous, hazardous or
defective condition or any breach of warranty, either express or implied.
EIGHTEENTH AFFIRMATIVE DEFENSE
The claim of plaintiff for personal injury was previously litigated on the merits, and a
judgment in said prior action having been rendered, plaintiffs complaint, and each cause of
action therein, is barred.
P
NINETEENTH AFFIRMATIVE DEFENSE
laintiff presently has another action pending arising out of the same wrongs and
injuries alleged in this matter, and on that basis plaintiff has split his cause of action and the
present action is therefore barred.
ANSWER
TO COMPLAINToD Co em aD
28
BENNETT, SAMUELSEN,
REYNOLDS & ALLARD.
PROFESSIONAL CORP,
FBT MARINA VILLAGE,
PARKWAY.
SUITE 300,
ALAMEDA, CA 9301-1084
SHOVE TORS
TWENTIETH AFFIRMATIVE DEFENSE
Defendant alleges that plaintiff's action is barred as to this defendant by reason of
the operations of the provisions contained in California Labor Code Sections 3600, 3601
and 3602, et seq., and that plaintiff's right to recovery against this defendant, if any there
be, is limited to the exclusive remedy provided in the aforementioned sections.
TWENTY-FIRST AFFIRMATIVE DEFENSE
This answering defendant alleges that this action is stayed or plaintiffs claim is
discharged in bankruptcy filed by this defendant.
TWENTY-SECOND AFFIRMATIVE DEFENSE
This answering defendant alleges that this action is barred and is untimely as
defendant, a dissolved Illinois corporation, was dissolved more than five years prior to the
filing of the complaint herein, pursuant to 805 ILCS 5/12.80.
TWENTY-THIRD AFFIRMATIVE DEFENSE
As and for a further affirmative defense to the complaint, defendant alleges that the
action is barred by virtue of Civil Code section 47, the litigation privilege, in that the
statements, acts, conduct or omissions alleged occurred in connection with the litigation of
claims and defenses in actions in which defendant was concerned.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
As and for a further affirmative defense to the complaint, defendant alleges that the
action is barred by virtue of the First Amendment to the Constitution of the United States of
America, and the Constitution of the State of California and other States of the United
States, in that the statements, acts, conduct or omissions alleged were undertaken in the
free exercise of rights guaranteed to defendant under said constitutions, including rights of
free speech, access to courts and the judicial system, and participation in the political
process including but not limited to petitioning the government and its agencies.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
As and for a further affirmative defense to the complaint, defendant alleges that the
ANSWER TO COMPLAINT28
BENNETT, SAMUELSEN,
REYNOLDS & ALLARD.
PROFESSIONAL CORP,
FBT MARINA VILLAGE,
PARKWAY.
SUITE 300,
ALAMEDA, CA 9301-1084
SHOVE TORS
action is barred by virtue of the decisions of the California Supreme Court in Temple
Community Hospital v. Superior Court (1999) 20 Cal. 4" 464; Cedars Sinai Medical Center
v. Superior Court (1998) 18 Cal 4" 1, in that the statements, acts, conduct or omissions
alleged are not actionable.
TWENTY- SIXTH AFFIRMATIVE DEFENSE
Defendant asserts that it is immune from prosecution under state law based upon
the principle of government contractor and government specification immunity in that to
prosecute defendant would be inconsistent with the federal interest and because alleged
products supplied or manufactured by defendant were so supplied or manufactured
pursuant to government specification.
WHEREFORE, this answering defendant prays as follows:
1. That plaintiff take nothing by reason of his complaint on file herein.
2. For costs of suit incurred herein; and
3. For such other and further relief as the court deems proper.
DATED: August 12, 2008
BENNETT, SAMUELSEN, REYNOLDS & ALLARD
By:___/Is/RICHARD L. REYNOLDS
Richard L. Reynolds
Attorneys for Defendant
GATKE CORPORATION
ANSWER TO COMPLAINToD Co em aD
28
BENNETT, SAMUELSEN,
REYNOLDS & ALLARD.
PROFESSIONAL CORP,
FBT MARINA VILLAGE,
PARKWAY.
SUITE 300,
ALAMEDA, CA 9301-1084
SHOVE TORS
CERTIFICATE OF SERVICE
Action: RUFUS ALEXANDER vs. Asbestos Defendants, et al.
Court: SAN FRANCISCO SUPERIOR 274719
lam a citizen of the United States, over the age of 18 years and not a party to the cause
herein. | am an employee of BENNETT, SAMUELSEN, REYNOLDS & ALLARD, A
pigtessional Corporation, 1301 Marina Village Parkway, Suite 300, Alameda, California
501.
On August 12, 2008, | served the
ANSWER TO COMPLAINT
on the interested parties in said cause by the method of service as described below:
(x) ELECTRONIC SERVICE (San Francisco asbestos cases): | caused a copy of each
Document Served to be electronically served via LexisNexis File & Serve at
(www. fileandserve lexisnexis.com), pursuant to San Francisco Superior Court Amended
Asbestos General Order 158 (Order Mandating Electronic Filing and Service of Asbestos
Pleadings, dated July 14, 2006) on the recipients designated on the Transaction Receipt
located on the LexisNexis File & Serve website.
| declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that this declaration was executed on 8/11/08, in
Alameda, California.
CLEMENTINE HALL /s/_ Clementine Hall
Name of Declarant SIGNATURE ON ORIGINAL PROOF OF SERVICE
[PURSUANT TO STATUTE]
-9-
ANSWER TO COMPLAINT
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oD Co em aD 28 BENNETT, SAMUELSEN, REYNOLDS & ALLARD. PROFESSIONAL CORP, FBT MARINA VILLAGE, PARKWAY. SUITE 300, ALAMEDA, CA 9301-1084 SHOVE TORS RICHARD L. REYNOLDS #77881 BENNETT, SAMUELSEN, REYNOLDS & ALLARD A Professional Corporation ELECTRONICALLY Attorneys at Law 1301 Marina Village Parkway, Suite 300 F ILE D . Alameda, California 94501 “County of San Francisco Telephone: (510) 444-7688 AUG 12 2008 PAUL J. RIEHLE #115799 GORDON PARK-LI, Clerk SEDGWICK, DETERT, MORAN & ARNOLD BY: CHRISTLE ARR k One Market Plaza epuly Cle Steuart Tower, 8" Floor San Francisco, CA 94105 Telephone: (415) 781-7900 Attorneys for Defendant GATKE CORPORATION A Bankrupt, Defunct, Dissolved Corporation IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO RUFUS ALEXANDER, NO. CGC-08-274719 [Unlimited Jurisdiction} Plaintiff, ANSWER TO COMPLAINT vs. ASBESTOS DEFENDANTS [BHC], et ai., Defendants. COMES NOW defendant GATKE CORPORATION, a bankrupt, defunct, dissolved corporation, and answers plaintiff's unverified complaint herein as follows: I. This defendant denies each and every, ail and singular, generally and specifically, the allegations contained in the complaint, and in this connection, this defendant denies that plaintiff has been or was injured or damaged in the unspecified sum or sums alleged in the complaint, or in any other sum or sums, or otherwise, or at all. AFFIRMATIVE DEFENSES AS AND FOR SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES TO EACH ANSWER TO COMPLAINToD Co em aD 28 BENNETT, SAMUELSEN, REYNOLDS & ALLARD. PROFESSIONAL CORP, FBT MARINA VILLAGE, PARKWAY. SUITE 300, ALAMEDA, CA 9301-1084 SHOVE TORS AND EVERY CAUSE OF ACTION OF PLAINTIFF'S COMPLAINT, AS THOUGH PLEAD SEPARATELY TO EACH AND EVERY OF SAID CAUSES OF ACTION, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: FIRST AFFIRMATIVE DEFENSE Each and every of said causes of action fails to state a cause of action against this answering defendant. SECOND AFFIRMATIVE DEFENSE Each and every cause of action of plaintiff's complaint seeks recovery for damages, which is barred by the statute of limitations, including but not limited to, California Code of Civil Procedure, Sections 340(3), 340.2, 338(1), 338(4), 343, 337.1 and 337.15. THIRD AFFIRMATIVE DEFENSE l. This answering defendant is informed and believes, and based upon said information and belief alleges, that at the times and places mentioned in plaintiff's complaint, the plaintiff was careless and negligent in and about the matters alleged in the complaint, and that said carelessness and negligence caused and contributed, to the extent of one hundred percent, to any injuries and damages allegedly sustained by plaintiff, if any such injuries or damages there were, or are. I. At all times denying any liability whatsoever to plaintiff herein and at all times denying that plaintiff is entitled to any recovery herein, this answering defendant alleges that in the event of any judgment or verdict in favor of plaintiff herein, that said judgment or verdict must be reduced to the extent that said carelessness and negligence of plaintiff caused or contributed to the alleged injuries and damages allegedly sustained by plaintiff, if any such injuries or damages there were, or are. ANSWER TO COMPLAINTI FOURTH AFFIRMATIVE DEFENSE 2 1. 3 This answering defendant is informed and believes, and based upon said 4 || information and belief alleges, that plaintiff has received or receive disability and medical 5 || benefits under a worker’s compensation law, or similar laws, from plaintiff's employers or former employers or their worker's compensation or similar insurers, on account of the injuries and damages allegedly sustained by plaintiff which give rise to this lawsuit, if any such injuries or damages there were or are. Il. oD Co em aD At all times denying any liability or obligation to plaintiff or any other person or entity 11 || whatsoever, this answering defendant alleges that each and every of plaintiffs employers 2 || and former employers was careless and negligent in and about the matters alleged in 3 || plaintiff's complaint and that said carelessness and negligence of each and every of said 4] employers contributed directly and proximately to any alleged injuries or damages 5 || sustained by plaintiff and/or any or all of said employers. 16 Ml. 7 By reason of the premises, and at all times denying that plaintiff is entitled to any 8 || judgment or verdict whatsoever herein, any judgment or verdict that might be rendered in 9 || favor of plaintiff herein should be reduced by the amount of all such payments by said 20 || employers or insurers, and that each of said employers or insurers should be barred from 21 || any recovery by lien or otherwise in connection with this matter. 22 FIFTH AFFIRMATIVE DEFENSE 23 At all times denying the allegations of plaintiff's complaint, this answering defendant 24 || is informed and believes, and based upon said information and belief alleges, that plaintiff 25 || voluntarily and knowingly assumed the alleged risks and alleged hazards incident to the 26 || alleged operations, acts and conduct at the times and places alleged in the complaint, and 27 || that plaintiff's said acts proximately caused and contributed to the alleged injuries and SUPE 300, ALAM does “|| ANSWER TO COMPLAINT1 || damages, if any such injuries or damages there were, or are. 2 SIXTH AFFIRMATIVE DEFENSE 3 Il. 4 This answering defendant is informed and believes, and based upon said 5 || information and belief alleges, that any injuries and damages allegedly sustained by plaintiff were directly and proximately caused by the misuse of the product or products allegedly involved, by plaintiff and plaintiff's employers. SEVENTH AFFIRMATIVE DEFENSE I. oD Co em aD This answering defendant incorporates herein by reference, as though set forth in 11 ]] full at this point, each and every allegation contained in Paragraph 1 of its Fourth 2 || Affirmative Defense. 3 Ih. 4 At all times denying all allegations of plaintiff's complaint, this defendant is informed 5 || and believes, and based on said information and belief alleges, that plaintiffs employers 16 || voluntarily and knowingly assumed the alleged risks and alleged hazards of the alleged 7 || operations, acts and conduct at the times and places alleged in plaintiff's complaint, and 8 || that said acts of plaintiffs employers directly and proximately caused and contributed to 9} any alleged injuries or damages allegedly sustained by the plaintiff, and/or by any or all of 20 || plaintiff's employers, if any such injuries or damages to either plaintiff or any employer of 21 || plaintiff there were, or are. 22 Hl. 23 By reason of the premises, at all times denying that plaintiff is entitled to any 24 || judgment or verdict whatsoever herein, any judgment or verdict that might be entered in 25 || favor of plaintiff herein should be reduced by the amount of all such payments by said 26 || employers or insurers, and that each of said insurers or employers should be barred fram 27 || any recovery herein. SUPE 300, ALAM does “|| ANSWER TO COMPLAINToD Co em aD 28 BENNETT, SAMUELSEN, REYNOLDS & ALLARD. PROFESSIONAL CORP, FBT MARINA VILLAGE, PARKWAY. SUITE 300, ALAMEDA, CA 9301-1084 SHOVE TORS EIGHTH AFFIRMATIVE DEFENSE At all times denying any liability whatsoever for plaintiff herein, this defendant alleges that any alleged liability or responsibility of this defendant, any such alleged liability and responsibility being denied, is small in proportion to the alleged liability and responsibility of other persons and entities, including other persons and entities who are defendants herein, and that plaintiff should be limited to seeking recovery from this defendant for the proportion of alleged injuries and damages for which this defendant Is allegedly liable or responsible, all such alleged liability and alleged responsibility being expressly denied. NINTH AFFIRMATIVE DEFENSE This answering defendant is informed and believes, and based upon said information and belief alleges, that plaintiff has unreasonably delayed in bringing of this action without good cause therefor. Said delay has directly and proximately resulted in prejudice to this defendant and, therefore, this action is barred by laches. TENTH AFFIRMATIVE DEFENSE At all times denying all allegations of plaintiff's complaint, this answering defendant is informed and believes, and based upon said information and belief alleges, that plaintiff is barred from recovery herein because of modification, alteration or change in some other manner of the products alleged in plaintiff's complaint on file herein. ELEVENTH AFFIRMATIVE DEFENSE At all times mentioned herein, this answering defendant is informed and believes, and based upon said information and belief alleges, that plaintiff acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions, if any there were, of this answering defendant, thus barring plaintiff from any relief as prayed for herein. TWELFTH AFFIRMATIVE DEFENSE At all times denying any liability or obligation whatsoever to plaintiff herein, and/or to any other person or entity of any nature or capacity whatsoever, and at all times denying that plaintiff is entitled to any recovery herein, this answering defendant alleges that at all ANSWER TO COMPLAINToD Co em aD 28 BENNETT, SAMUELSEN, REYNOLDS & ALLARD. PROFESSIONAL CORP, FBT MARINA VILLAGE, PARKWAY. SUITE 300, ALAMEDA, CA 9301-1084 SHOVE TORS times and places mentioned in plaintiff's complaint, its products were manufactured, produced, supplied, sold and distributed in conformity with specifications promulgated by the United States Government under its war powers as set forth in the United States Constitu ion, and that any recovery by plaintiff herein is thus further barred by said sovereign acts and powers. qT THIRTEENTH AFFIRMATIVE DEFENSE he complaint fails to state a cause of action against this answering defendant for exemplary/punitive damages. T FOURTEENTH AFFIRMATIVE DEFENSE here is a defect and misjoinder of parties defendant. FIFTEENTH AFFIRMATIVE DEFENSE he complaint and each cause of action thereof is barred by the provisions of Commercial Code Sections 2725(1) and 2725(2). P SIXTEENTH AFFIRMATIVE DEFENSE laintiff failed to mitigate his alleged damages, if any there were. SEVENTEENTH AFFIRMATIVE DEFENSE This answering defendant received no notice of any dangerous, hazardous or defective condition or any breach of warranty, either express or implied. EIGHTEENTH AFFIRMATIVE DEFENSE The claim of plaintiff for personal injury was previously litigated on the merits, and a judgment in said prior action having been rendered, plaintiffs complaint, and each cause of action therein, is barred. P NINETEENTH AFFIRMATIVE DEFENSE laintiff presently has another action pending arising out of the same wrongs and injuries alleged in this matter, and on that basis plaintiff has split his cause of action and the present action is therefore barred. ANSWER TO COMPLAINToD Co em aD 28 BENNETT, SAMUELSEN, REYNOLDS & ALLARD. PROFESSIONAL CORP, FBT MARINA VILLAGE, PARKWAY. SUITE 300, ALAMEDA, CA 9301-1084 SHOVE TORS TWENTIETH AFFIRMATIVE DEFENSE Defendant alleges that plaintiff's action is barred as to this defendant by reason of the operations of the provisions contained in California Labor Code Sections 3600, 3601 and 3602, et seq., and that plaintiff's right to recovery against this defendant, if any there be, is limited to the exclusive remedy provided in the aforementioned sections. TWENTY-FIRST AFFIRMATIVE DEFENSE This answering defendant alleges that this action is stayed or plaintiffs claim is discharged in bankruptcy filed by this defendant. TWENTY-SECOND AFFIRMATIVE DEFENSE This answering defendant alleges that this action is barred and is untimely as defendant, a dissolved Illinois corporation, was dissolved more than five years prior to the filing of the complaint herein, pursuant to 805 ILCS 5/12.80. TWENTY-THIRD AFFIRMATIVE DEFENSE As and for a further affirmative defense to the complaint, defendant alleges that the action is barred by virtue of Civil Code section 47, the litigation privilege, in that the statements, acts, conduct or omissions alleged occurred in connection with the litigation of claims and defenses in actions in which defendant was concerned. TWENTY-FOURTH AFFIRMATIVE DEFENSE As and for a further affirmative defense to the complaint, defendant alleges that the action is barred by virtue of the First Amendment to the Constitution of the United States of America, and the Constitution of the State of California and other States of the United States, in that the statements, acts, conduct or omissions alleged were undertaken in the free exercise of rights guaranteed to defendant under said constitutions, including rights of free speech, access to courts and the judicial system, and participation in the political process including but not limited to petitioning the government and its agencies. TWENTY-FIFTH AFFIRMATIVE DEFENSE As and for a further affirmative defense to the complaint, defendant alleges that the ANSWER TO COMPLAINT28 BENNETT, SAMUELSEN, REYNOLDS & ALLARD. PROFESSIONAL CORP, FBT MARINA VILLAGE, PARKWAY. SUITE 300, ALAMEDA, CA 9301-1084 SHOVE TORS action is barred by virtue of the decisions of the California Supreme Court in Temple Community Hospital v. Superior Court (1999) 20 Cal. 4" 464; Cedars Sinai Medical Center v. Superior Court (1998) 18 Cal 4" 1, in that the statements, acts, conduct or omissions alleged are not actionable. TWENTY- SIXTH AFFIRMATIVE DEFENSE Defendant asserts that it is immune from prosecution under state law based upon the principle of government contractor and government specification immunity in that to prosecute defendant would be inconsistent with the federal interest and because alleged products supplied or manufactured by defendant were so supplied or manufactured pursuant to government specification. WHEREFORE, this answering defendant prays as follows: 1. That plaintiff take nothing by reason of his complaint on file herein. 2. For costs of suit incurred herein; and 3. For such other and further relief as the court deems proper. DATED: August 12, 2008 BENNETT, SAMUELSEN, REYNOLDS & ALLARD By:___/Is/RICHARD L. REYNOLDS Richard L. Reynolds Attorneys for Defendant GATKE CORPORATION ANSWER TO COMPLAINToD Co em aD 28 BENNETT, SAMUELSEN, REYNOLDS & ALLARD. PROFESSIONAL CORP, FBT MARINA VILLAGE, PARKWAY. SUITE 300, ALAMEDA, CA 9301-1084 SHOVE TORS CERTIFICATE OF SERVICE Action: RUFUS ALEXANDER vs. Asbestos Defendants, et al. Court: SAN FRANCISCO SUPERIOR 274719 lam a citizen of the United States, over the age of 18 years and not a party to the cause herein. | am an employee of BENNETT, SAMUELSEN, REYNOLDS & ALLARD, A pigtessional Corporation, 1301 Marina Village Parkway, Suite 300, Alameda, California 501. On August 12, 2008, | served the ANSWER TO COMPLAINT on the interested parties in said cause by the method of service as described below: (x) ELECTRONIC SERVICE (San Francisco asbestos cases): | caused a copy of each Document Served to be electronically served via LexisNexis File & Serve at (www. fileandserve lexisnexis.com), pursuant to San Francisco Superior Court Amended Asbestos General Order 158 (Order Mandating Electronic Filing and Service of Asbestos Pleadings, dated July 14, 2006) on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on 8/11/08, in Alameda, California. CLEMENTINE HALL /s/_ Clementine Hall Name of Declarant SIGNATURE ON ORIGINAL PROOF OF SERVICE [PURSUANT TO STATUTE] -9- ANSWER TO COMPLAINT