Answer: RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al

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FBE&M

‘ake MeaRerT PLAZA
1999 HARRISON STREET
uoeTeeNTA Fook
OaRANO CA 9462-541
PHONE 510.444.3851

EUGENE BROWN, JR. (SBN: 079824)
AMEE A. MIKACICH (SBN: 146814)

FILICE BROWN EASSA & McLEOD LLP
1999 Harrison Street, 18th Floor ELECTRONICALLY
Oakland, CA 94612 FILED
Tel; (510) 444-3131 Superior Court of California,
Fax: (510) 839-7940 County of San Francisco
Attorneys for Defendant coh APR 9 7 2008...
FORD MOTOR COMPANY BY: ANNIE PASCUAL

Deputy Clerk

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

RODRICK BRECKLER AND JOANN } CASE NO. CGC 08-274566
BRECKLER, )
) ANSWER TO COMPLAINT FOR
Plaintiffs, ) PERSONAL INJURY AND LOSS OF
} CONSORTIUM-ASBESTOS
v. )
)
ASBESTOS DEFENDANTS (BP), )
)
Defendants. )
)

COMES NOW, FORD MOTOR COMPANY, and by way of answer to plaintiff's
complaint and pursuant to the terms of California Code of Civil Procedure Section 431,30 denies
generally each and every allegation of the complaint. Defendant further specifically denies that it
is liable to plaintiff in any sum or sums whatsoever, or at all, for special, compensatory, punitive or
any other type of damage.

AND AS FOR A FIRST, SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:

That the complaint, and each cause of action stated therein, fails to state facts sufficient to

constitute a cause of action.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM-ASBESTOS
08821 34378 MTRAN 583247.FBE&M

KARE Meee PLAZA

| 999 HARRISON STREET
Beagrreneeris FLOOR

£ axtana CA 940E2-3841

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AND AS FOR A SECOND, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That neither the complaint, nor any of the alleged causes of action stated therein, state facts
sufficient to constitute a cause of action against this answering defendant.

AND AS FOR A THIRD, SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:

That the complaint fails to properly invoke the equity jurisdiction of the court.

AND AS FOR A FOURTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That this court lacks personal jurisdiction as to this answering defendant.

AND AS FOR A FIFTH, SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:

That the applicable statutes of limitations, including but not limited to, C.C.P. Sections 312,
338, 338.1, 339, 340(1), 340(3), 340.2 and 343 bars the complaint and each cause of action stated
therein.

AND AS FOR A SIXTH, SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:
That the complaint, and each cause of action stated therein is ambiguous and uncertain,
AND AS FOR A SEVENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That during the relevant times, defendant did not own, control, maintain, lease, rent, occupy
or otherwise exercise control over the subject premises.

AND AS FOR AN EIGHTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That during the relevant time and/or times, defendant did not supervise or exercise control

over plaintiff and/or his employers work at any of the premises.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM-ASBESTOS
05621 34378 MTRAN 583247.i
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AND AS FOR A NINTH, SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:

That plaintiff has unreasonably delayed the commencement of this action and prejudiced
this answering defendant such that the doctrine of laches bars the complaint and each cause of
action therein.

AND AS FOR A TENTH, SEPARATE DISTINCT AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:

That plaintiffs damages, if any, are completely or in part the result of plaintiff's failure to
mitigate as required by law.

AND AS FOR AN ELEVENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That if plaintiff suffered injuries attributable to the use of any product referred to in
plaintiff's complaint, which injuries are expressly denied, the injuries were solely caused and
attributable to the unreasonable, unforeseeable and inappropriate purpose and improper use that
was made of the products.

AND AS FOR A TWELFTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That parties to this action and nonparties, other than this answering defendant, were
negligently or legally responsible, or otherwise at fault for any damages alleged in the complaint,
which damages are herein denied and therefore, in the event of any liability, whether by settlement
or judgment in favor of any other party against this answering defendant, the court or jury should
apportion fault as to all parties. Furthermore, this answering defendant requests a judgment and
declaration of indemnification and contribution against all other parties or persons in accordance

with the apportionment of fault between the parties.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM-ASBESTOS
OS821 34378 MTRAN $83247,1FBE&M

‘Lan MERRITT PLAZA
999 HARRISON SresaT
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ASANO CA 94072-3341
PHONE S10444.131

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AND AS FOR A THIRTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES;

That at the time and place of the incident, happening or matter set forth in the complaint on
file herein, and at all times herein mentioned, plaintiff himself was guilty of carelessness and
negligence in and about the matters and things set forth in said complaint on file herein; that the
carelessness and negligence on the part of the plaintiff actually and proximately caused and
contributed to plaintiff's alleged injuries and/or damages.

That plaintiffs alleged injuries, which are herein denied, were actually and proximately
caused solely by the contributory and/or comparative negligence of plaintiff and each of the claims
stated therein are barred by reason of such comparative negligence.

That should plaintiff recover damages against defendant, said defendant is entitled to have
the amount abated, reduced or eliminated to the extent plaintiff's negligence caused or contributed
to his injuries and damages, if any.

AND AS FOR A FOURTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That plaintiff knowingly assumed the risk of any injury or damage alleged in the complaint.

AND AS FOR A FIFTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That the subject products, and their component parts were not used as instructed and
intended, but were subjected to unforeseeable and unanticipated misuse, abuse, altcration and/or
modification by those other than this answering defendant. Said misuse, abuse, alteration, and/or
modification was the proximate cause of the injuries and damages, if any, allegedly sustained by
plaintiff.

AND AS FOR A SIXTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That plaintiff's employer's negligence was the proximate cause of the injuries and damages,

if any, allegedly sustained by plaintiff.

4.

ANSWER TO COMPLAINT FOR PERSGNAL INJURY AND LOSS OF CONSORTIUM-ASBESTOS
05821 34378 MTRAN $83247,1| FBE&M
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AND AS FOR A SEVENTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That plaintiff's employer assumed the risks incident to all matters relevant to this action.

AND AS FOR AN EIGHTEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES;

That all activities of this answering defendant alleged in the complaint, conform to statutes,
governmental regulations and industry standards based upon the state of knowledge existing at the
time alleged in the complaint and each cause of action therein.

AND AS FOR A NINETEENTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES;

That the benefits of the products referred to in plaintiff's complaint outweighed the risks of
danger, if any, inherent in such products.

AND AS FOR A TWENTIETH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That at all times and places alleged in the complaint, plaintiff was not in privity of contract
with defendant and said lack of privity bars plaintiff's recovery herein upon any theory of warranty.

That plaintiff has failed to state a cause of action against this answering defendant for
breach of warranty as a result of the complaint's failure to allege privity between plaintiff and this
answering defendant.

AND AS FOR A TWENTY-FIRST, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That the products alleged in the complaint were used by a sophisticated user/intermediary,
and said user/intermediary having adequate and complete warnings of the risk involved in the use
of said products, this answering defendant had and has no duty to independently warn plaintiff of

the said risks such that plaintiff's claims are thereby barred.

5.

ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM-ASBESTOS
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999 Rannison STREST
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AND AS FOR A TWENTY-SECOND, SEPARATE DISTINCT AND
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

That any injuries resulting from the use of the subject products, which injuries are herein
denied, were not foreseeable to this answering defendant given the state of knowledge and state of
art at the time of the alleged injuries.

AND AS FOR A TWENTY-THIRD, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That this answering defendant was not engaged in any ultra hazardous activity or in the
manufacture, formulation, packaging, labeling, distribution or sale of any product, such that this
answering defendant cannot be held strictly liable.

AND AS FOR A TWENTY-FOURTH, SEPARATE DISTINCT AND
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

That plaintif!'s complaint to the extent that it secks exemplary or punitive damages pursuant
to California Civil Code Section 3294, violates defendant's right to procedural due process under
the Fourteenth Amendment of the United States Constitution, and Article I, Section 7 of the
Constitution of the State of California, and therefore fails to state a cause of action upon which
either punitive or exemplary damages can be awarded.

AND AS FOR A TWENTY-FIETH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That said complaint, to the extent that it seeks punitive or exemplary damages pursuant to
California Civil Code Section 3294, violates defendant's right to protection from "excessive fines"
as provided in the Eighth Amendment of the United States Constitution and Article I, Section 17 of
the Constitution of the State of Califomia, and violates defendant's right to substantive due process
as provided in the Fifth and Fourteenth Amendments of the United States Constitution and the
Constitution of the State of California, and therefore fails to state a cause of action supporting the

punitive or exemplary damages claimed.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM-ASBESTOS
05821 34378 MTRAN $83247,1wv

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Lane Meer PLAZA
| 999 HaRuIsoN Sraese

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AND AS FOR A TWENTY-SIXTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

Defendant alleges that said complaint, and each cause of action therein, fails to state facts
sufficient to warrant an award of exemplary or punitive damages.

AND AS FOR A TWENTY-SEVENTH, SEPARATE DISTINCT AND
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:

That this Defendant is liable, if at all, only for its proportionate share of liability/damages as
set forth by CC § 1431 et seq.

AND AS FOR A TWENTY-EIGHTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES;

That indispensable parties have not been joined and that it is necessary for these absent
parties to be joined in order to obtain a just and final adjudication of alt matters alleged in the
complaint. ,

AND AS FOR A TWENTY-NINTH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

This court is an improper venue for the adjudication of the matters alleged in the complaint,
as to this answering party.

AND AS FOR A THIRTIETH, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That any toss, injury or damage incurred by plaintiff, if any, was proximately caused by the
negligent or willful acts or omissions of parties or nonparties whom defendant did not control, and
was not proximately caused by any acts, omissions or other conduct of defendant.

AND AS FOR A THIRTY-FIRST, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

This action is barred by California Labor Code §§ 3600 et seq.

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ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM-ASBESTOS
05821 34378 MTRAN 583247,FBE&M

Lake Muna PLaza
999 HanRigow Stren
eareresmerr F008,

5 ARLANO CA 9S6I2S5EE
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AND AS FOR A THIRTY-SECOND, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

‘That all times mentioned in the Complaint on file herein, defendant is informed and
believes that the employer of plaintiff, was insured under a policy of Worker's Compensation
Insurance; that on account of the alleged injuries referred to in plaintiff's Complaint, the
compensation carrier has paid to and on behaif of plaintiff certain sums by way of Worker's
Compensation, under the worker's compensation laws of the State of California; that at all times
mentioned in plaintiff's Complaint, said employer and its agents, servants and employees, acting
within the course and scope of their agency and employment, were negligent and careless in and
about the matters referred to in plaintiffs Complaint; that said employer carelessly and negligently
failed to furnish the plaintiff with a safe place to work and carelessly and negligently failed to
provide proper supervision, inspections, tools, appliances and control and direction over its
employees in the place of employment; that said carelessness and negligence proximately caused
and contributed to the injuries which plaintiff claims to have sustained; that the carelessness and
concurrent negligence bars recovery against this answering defendant of all sums paid or to be paid
to or on behalf of plaintiff by way of Worker's Compensation benefits as aforesaid; that said
carelessness and concurrent negligence of the employer is by law imputed to the insurance carrier
of said employer.

AND AS FOR A THIRTY-THIRD, SEPARATE DISTINCT AND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:

That a conflict in law exists, as to plaintiffs claimed exposure as to this answering party is
alleged to occurred outside the jurisdiction of this court and therefore the laws of that jurisdiction
apply involving all apply as between this answering party and plaintiff.

WHEREFORE, this answering defendant prays for judgment as follows:

1. That plaintiff take nothing by reason of the complaint filed herein;

2. That this answering defendant be awarded costs of suit incurred herein;

8.

ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM-ASBESTOS
05821 34378 MTRAN 583247.FBE&M

| Lage neeaacry PLaza
| 998 Ramnison Stace

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3. That if defendant is found liable, that the degree of responsibility and liability for
the resulting damages be determined, and that defendant be liable only for that
portion of total damages in proportion to its total responsibility for same; and

4. For such other and further relief as the court deems just and proper.

|
Dated: April 2, 2008 ruachgows SSA & Mc! LP

By: £ ae \ ; L\
EUGENE BROWN, |
AMEE\. MIKACICH
Attorneys for Defendant
FORD MOTOR COMPANY

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ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM-ASBESTOS
08821 34378 MTRAN 583247.1FBE&M

| MARE MERRITE PLAZA

1999 Hannason Sta687
SranTeRnTH FLOOR

aKtan ca 94612-3564
Paone 5(0444.3131

PROOF OF SERVICE
Rodrick Breckler, et al. y. Asbestos Defendants-Ford Moter Company
San Franciseo County Superior Court Decket Number: 274566

1, MARY T. TRAN, am a citizen of the United States, over 18 years of age and not party
to the within action, lam employed i in the county of. ‘Alameda; my business address is 1999
Harrison Street, 13 Floor, Oakland, CA 94612.
On April 04 , 2008, I served the within documents:
ANSWER TO COMPLAINT

On all parties in this action, as addressed below, by causing a true copy thereof to be distributed
as follows:

Brayton Purcell Berry & Berry
222 Rush Landing Road 2930 Lakeshore Avenue
P. O. Box 6169 P. O. Box 16070
Novato, CA 94948-6169 Oakland, CA 94610
[] BY MAIL: lam “readily familiar” with the firm’s practice of collection

and processing correspondence for mailing. Under that
practice it would be deposited with U.S. Postal service on
that same day with postage thereon fully prepaid in the
ordinary course of business. [ am aware that on motion of
the party served, service is presumed invalid if postal
cancellation date or postage meter data is more than one day
after date of deposit for mailing in affidavit.

[] VIA HAND DELIVERY: I caused such envelope, to be hand delivered to the stated
parties by an agent of INTERCEPTOR.

VIA ELECTRONIC Teaused a true and correct copy of such documents to be
[X] SERVICE: electronically served on counsel of record by transmission
to Lexis Nexis File and Serve.

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

Executed on April tw 2008, at Oakland, California.

ry T. Tran

05821 34378 MTRAN 583250.H