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

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Dean Pollack, State Bar No. 176440
Walter C. Rundin, State Bar No. 072475

Susana Garcia, State Bar No. 253027 ELECTRONICALLY
BURNHAM BROWN

A Professional Law Corporation FILED

P.O. Box 119 Superior Court of California,
Oakland, California 94604 County of San Francisco

. JUL 30 2008

1901 Harrison Street, 11th Floor GORDON PARK-LI, Clerk
Oakland, California 94612 BY: RAYMOND K. WONG
Telephone: (510) 444-6800 Deputy Clerk

Facsimile: (510) 835-6666
Attomeys for Defendant

BORG-WARNER CORPORATION by its
successor-in-interest Borg Warner Morse TEC Inc.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION
RUFUS ALEXANDER, No. CGC-08-274719
Plaintiff, DEFENDANT BORG-WARNER
CORPORATION BY ITS SUCCESSOR-
v. IN-INTEREST BORG-WARNER
MORSE TEC INC.’S ANSWER TO
ASBESTOS DEFENDANTS (BP), as COMPLAINT FOR PERSONAL
Reflected on Exhibits B, C, G, H, 1; and INJURY - ASBESTOS

DOES 1-8500,
Complaint Filed: July 1, 2008
Defendants.

Defendant BORG- WARNER CORPORATION by its successor-in-interest Borg Warner
Morse TEC Inc. (“Defendant”), in answer to Plaintiff’s complaint, denies generally and
specifically, each and every, ali and singular, the allegations of said complaint, and each cause of
action thereof, and further denies that Plaintiff RUFUS ALEXANDER (“Plaintiff”) has been
damaged in any sum or sums or at all.

WHEREFORE, this answering Defendant asserts the following affirmative defenses:

AFFIRMATIVE DEFENSES

L Asa first affirmative defense to each cause of action, the complaint does not state
facts sufficient to constitute a cause of action against this Defendant.
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DEF, BORG-WARNER CORPORATION’S ANSWER TO COMPLAINT — NO. CGC-08-274719

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2. As a second affirmative defense, each cause of action is barred by the applicable
statute of limitations, including but not limited to, California Code of Civil Procedure
sections 340.2 and 361.

3. As a third affirmative defense to each cause of action, Plaintiff failed to mitigate
or make reasonable efforts to mitigate his damages, if any, as required by law.

4. Asa fourth affirmative defense to each cause of action, the damages sustained by
Plaintiff, if any, were caused, in whole or in part, by the negligence, strict liability or fault of
others for which this Defendant is not liable or responsible.

5. As a fifth affirmative defense to each cause of action, Plaintiff by his actions,
knew of and appreciated the risks involved, and voluntarily and reasonably assumed the risk of
said injuries, proximately causing or contributing to the damages alleged.

6. As a sixth affirmative defense to each cause of action, if Plaintiff sustained
injuries attributable to the use of any product, which allegations are expressly denied, the injuries
were caused in whole or in part by the unreasonable, unforeseeable and inappropriate purpose
and/or improper use which was made of the product.

7. As a seventh affirmative defense to each cause of action, Plaintiff was partially, if
not wholly, negligent or otherwise at fault on his own part pursuant to the doctrine of
comparative fault, and Plaintiff is barred from recovery of that portion of the damages directly
attributable to his proportionate share of fault.

8. As an cighth affirmative defense to each cause of action, Defendant alleges that
the products were as safe as could be designed under the state of technology and medical and
scientific knowledge existing at the time the products were manufactured.

9. As aninth affirmative defense to each cause of action, Defendant alleges that any
claim for punitive or exemplary damages is barred by the United States Constitution, including the
First, Fifth, Eighth and. Fourteenth Amendments, and by the California Constitution, including
Article I, and that Civil Code section 3294 is invalid on its face or as applied in this action.

10. As a tenth affirmative defense to cach cause of action, at the time and place of the

happening of the incident alleged in the complaint, Plaintiff was employed by various

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DEF. BORG-WARNER CORPORATION’S ANSWER TO COMPLAINT -- NO. CGC-08-274719
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employers, and was working within the course and scope of employment and certain sums have
been or will be paid under the applicable provisions of the Labor Code and any award made
must be reduced by the payments.

il. As an eleventh affirmative defense to each cause of action, Defendant alleges that
the action is barred under the “primary right” doctrine on the basis that causes of action may not
be split by the doctrines of res judicata and collateral estoppel and by virtue of Plaintiff's
prosecution and/or settlement of his claims in prior actions.

12. Asa twelfth affirmative defense to cach cause of action, Defendant alleges that if
Plaintiff worked for this answering Defendant then Plaintiff's claim is barred by the exclusive
remedy provisions of the appropriate state or federal law.

13. Asa thirteenth affirmative defense to each cause of action, Defendant alleges that
Plaintiff was provided and/or was covered by workers’ compensation insurance by each of his
employers, and Plaintiff, his employer and/or employers were subject to the provisions of the
Workers’ Compensation Act of the State of California. Accordingly, Plaintiff's actions were
barred by the doctrine articulated in Privette v. Superior Court, 5 Cal, 4th 689 (1993).

14. Asa fourteenth affirmative defense to each cause of action, this Defendant
alleges that Plaintiff assumed whatever risk or hazard, if any, that existed at the time and place
of the alleged accident set forth in Plaintiff's complaint, and said assumption of risk or hazard is
imputed to said Plaintiff.

15. Asa fifteenth affirmative defense to each cause of action, Plaintiff acknowledged,
ratified, consented to and acquiesced in the alleged acts or omissions, if any, of this Defendant,
thus barring Plaintiff's recovery.

16. Asasixteenth affirmative defense to each cause of action, the injuries and
damages sustained by Plaintiff, if any, were solely and legally caused by the modification,
alteration or change of the product referred to in the complaint and said modification, alteration
or change was performed by persons or entities other than this answering Defendant and without
its knowledge or consent.

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DEF. BORG-WARNER CORPORATION’S ANSWER TO COMPLAINT -- NO. CGC-08-274719
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17. Asa seventeenth affirmative defense to each cause of action, Defendant presently
has insufficient knowledge or information on which to form a belief as to whether it may have
additional, as yet unstated, defenses available. Defendant reserves herein the right to assert
additional defenses in the event discovery indicates that they would be appropriate.

18. As an eighteenth affirmative defense to each cause of action, the provisions of the
“Fair Responsibility Act of 1986” (commonly known as Proposition 51, Civil Code sections
1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable to this action to the
extent that Plaintiff's injuries and damages, if any, were legally caused or contributed to by the
negligence or fault of persons or entities other than this answering Defendant.

19. As a nineteenth affirmative defense to each cause of action, the asbestos products,
if any, for which Defendant may have any legal responsibility were manufactured, packaged,
distributed, and/or sold in accordance with contract specifications imposed by Co-Defendant, by
the U.S. Government, by Plaintiff's employers, and/or by third parties yet to be identified.

20. As a twentieth affirmative defense to each cause of action, Plaintiff's complaint,
and each cause of action therein, is barred by the doctrine of laches.

21. Asa twenty-first affirmative defense to each cause of action, Plaintiffs
employers were partially, ifnot wholly, negligent, or otherwise at fault on their own part
pursuant to the doctrine of comparative negligence, and Plaintiff should be barred from recovery
of that portion of the damages directly attributable to Plaintiff's employers’ proportionate share
of the negligence or fault, Witt-v. Jackson, 57 Cal. 2d 57 (1961).

22, Asa twenty-second affirmative defense to each cause of action, Plaintiff's
complaint, and each cause of action therein, is vague, ambiguous, unintelligible and uncertain.

23. As a twenty-third affirmative defense to each cause of action, Plaintiff has failed
to join all persons and parties needed for a just adjudication of this action.

24.  Asatwenty-fourth affirmative defense, with respect to some or all of Plaintiff's
alleged claims and causes of action, this Court lacks jurisdiction.

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DEF. BORG-WARNER CORPORATION'S ANSWER TO COMPLAINT — NO. CGC-08-274719
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25. Asa twenty-fifth affirmative defense, with respect to some or all of Plaintiff's
alleged claims and causes of action, in the interest of substantial justice, the action should be
heard in a forum outside this state.

WHEREFORE, this answering Defendant prays for judgment 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 just and proper.

DATED: ‘aH. 2008 BURNHAM BROWN

Attorneys for Defendant

BORG-WARNER CORPORATION by its
successor-in-interest BorgWarmer Morse TEC
Inc.

876762

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DEF, BORG-WARNER CORPORATION’S ANSWER TO COMPLAINT — NO. CGC-08-274719
ASBESTOSRe: Rufus Alexander v. Asbesto Defendants, etal.

Court: San Francisco County Superior Court, Unlimited Jurisdiction
Action No: CGC-08-274719
PROOF OF SERVICE

I declare that I am over the age of 18, not a party to the above-entitled action, and am an
employee of Bumham Brown whose business address is 1901 Harrison Street, 11° Floor,
Oakland, Alameda County, California 94612 (mailing address: Post Office Box 119, Oakland,
California 94604).

On July 30, 2008, I served the following document(s) in the following manner(s):

DEFENDANT BORG-WARNER CORPORATION BY ITS SUCCESSOR-
IN-INTEREST BORG-WARNER MORSE TEC INC.’S ANSWER TO
COMPLAINT FOR PERSONAL INJURY - ASBESTOS

(~~ MAIL: By placing the document(s) listed above in a sealed envelope with
postage thereon on the date and place shown below following ordinary business
practice. | am familiar with this business’ practice for collecting and processing
documents for mailing. On the same day that documents are placed for collection
and mailing, it is deposited in the ordinary course of business with the United
States Postal Service in a sealed envelope with postage fully prepaid.

FACSIMILE: By transmitting a true copy, via facsimile electronic equipment
transmission (fax) to the office(s) of the addressee(s) at the fax number(s) below.
The number of pages transmitted (including the Proof of Service Form) was

PERSONAL DELIVERY: By personally delivering to and leaving a true copy
thereof with the following person(s) at the following address(es) on the date set
forth above.

PERSONAL DELIVERY BY MESSENGER: By consigning the document(s)
listed above to a messenger service for personal delivery to the following
person(s) at the following address on the date set forth below.

OVERNIGHT: By placing a copy thereof into envelope(s) bearing the name(s)
and address(es) and county(ies) of the person(s) to be served by commercial
carrier service for overnight delivery as shown below.

{] LEXISNEXIS FILE & SERVE: By clectronically transmitting the document(s)
listed above to LexisNexis File & Serve, an electronic filing service provider, at
www.LexisNexis.com, pursuant to the Court’s Order dated October 19, 2004,
Mandating Electronic Service. See California Rules of Court 1830 and 2053(a).
The transmission was reported as complete and without error.

PROOF OF SERVICE CASE NO. CGC-08-274719ONE LEGAL FILE & SERVE: By electronically transmitting the document(s)
listed above to One Legal File and Serve, an electronic filing service provider, at
www.onelegal.com, pursuant to the Court’s Electronic Case Filing Standing
Order dated May 13, 2005, mandating electronic service. See California Rules of
Court, Rule 2053(a) and Rule 2054(b). The transmission was reported as
complete and without error.

1 declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Tefal Cameron

876989

PROOF OF SERVICE CASE NO. CGC-08-274719