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JEFFERY J. FADEFF, ESQ. (SBN 111497)
RESHMA A. BAJAJ, ESQ. (SBN 227106)
BASSI EDLIN, HUIE & BLUM LLP ELECTRONICALLY
351 California Street, Suite 200
San Francisco, CA 94104 conde HD mia
pelephone: aS) es County of San Francisco ‘
‘acsimile: ~
APR 23 2009
Attorneys for Defendant GORDON PARK-LI} Clerk
J.T. THORPE & SON, INC. BY: CHRISTLE er MA rk
pul er
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
ANTHONY CONTE, ) Case No. CGC-09-275046
)
Plaintiff, ) DEFENDANT J. T. THORPE & SON,
) INC.'S ANSWER TO COMPLAINT
vs. ) FOR PERSONAL INJURY -
) ASBESTOS
ASBESTOS DEFENDANTS (B*P) As )
Reflected on Exhibits B, B-1, C, F, G; and )
DOES 1-8500, )
)
Defendants. )
)
)
Defendant J.T. THORPE & SON, INC. ("Defendant"), in answer to the complaint of
Plaintiff ANTHONY CONTE, (“Plaintiff”), admits, denies and alleges as follows:
Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, Defendant
denies each and every, all and singular, both generally and specifically, the allegations of
Plaintiff's unverified complaint, and further denies that Plaintiff has been damaged as alleged or
at all, by reason of any act or omission on the part of Defendant or its agents, servants, or
employees.
FIRST DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's Complaint fails to state facts sufficient to constitute a cause of
action against Defendant.
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SECOND DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff has failed to join all persons and parties needed for a just
adjudication of this action.
THIRD DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's claims are barred by laches, waiver and/or estoppel.
FOURTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that this Court does not have subject matter jurisdiction over this action or
alternatively that the Court lacks jurisdiction due to insufficiency of process or the service
thereof and/or improper venue.
FIETH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff has failed to commence this action within the time required by
the applicable statute of limitations, including but not limited to California Code of Civil
Procedure sections 337.1,337.15, 338(a), 338(d), 340(3), 340.2, and 343.
SIXTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
Plaintiff was careless and negligent in and about the matters alleged in the complaint and said
carelessness and negligence of Plaintiff proximately contributed to the happening of the accident,
incident and occurrence alleged in the complaint, and to the injuries, losses and damages
complained of therein, if any there were, and said contributory negligence bars a recovery or
proportionately reduces any potential verdict.
SEVENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff failed to mitigate his alleged damages, if there were any.
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EIGHTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiff was injured by products used or installed at Defendant's
premises, which is denied, such injury occurred after the expiration of the useful safe life of such
products.
NINTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiff suffered any damages, which is denied, such damages were the
sole and proximate result of an unavoidable accident.
TENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiff suffered any damages, which is denied, such damages were
caused and/or contributed to by Plaintiff's misuse of the product or products and Plaintiff's
recovery should be barred or reduced accordingly.
ELEVENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiff suffered any damages, which is denied, such damages were
solely and proximately caused by material modifications or alterations of the product or products
involved in the action after it or they left the custody and control of Defendant.
TWELFTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that any asbestos-containing product or products alleged to have caused
Plaintiff's injuries were manufactured, used, installed and/or distributed in mandatory
compliance with specifications promulgated by the United States government under its war
powers, as set forth in the U.S. Constitution, and that any recovery by Plaintiff is barred as a
consequence of the exercise of those sovereign powers.
THIRTEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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Defendant alleges that any product or products alleged by Plaintiff to have caused their injuries
were manufactured, installed, used or distributed in compliance with specifications provided by
third parties to Defendant and/or in compliance with all applicable healthy and safety statutes
and regulations.
FOURTEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiff suffered any damages, which is denied, the risk of any such
damages was not foreseeable to Defendant. Defendant at all times material hereto acted in
accordance with the industry custom and practice and the state of scientific knowledge available
to manufacturers, installers and/or users of asbestos-containing products.
FIFTEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it received no notice of any dangerous, hazardous or defective condition
or any breach of warranty, either expressed or implied.
SIXTEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's claims against Defendant are barred by the holding of Privette
vy. Superior Court (1993) 5 Cal. 4th 689.
SEVENTEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's exposure to any asbestos-containing product or products
allegedly used or installed at Defendant's premises was minimal and insufficient to establish the
probability that said product or products were a legal cause of Plaintiff's alleged injuries.
EIGHTEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that this action is barred by the applicable state and/or federal industrial
insurance and/or Worker's Compensation laws, including, but not limited to, California Labor
Code Sections 3601 and 3602, and 33 U.S.C. Section 905.
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NINETEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at the time of injuries alleged in Plaintiff's Complaint, Plaintiff was
employed by persons other than Defendant; was entitled to receive and did receive Worker's
Compensation. benefits from said employer(s) or their insurers; and that said employer(s) were
negligent and careless in and about the matters referred to in Plaintiff's complaint. Defendant is,
therefore, entitled to set- off any such benefits received by Plaintiff against any judgment
vendered in Plaintiff's favor and said employer(s) are barred from any recovery by lien or
otherwise against Defendant in connection with this matter.
TWENTIETH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff voluntarily and knowingly assumed the alleged risks and hazards
incident to the alleged operations, acts and conduct at the times and places alleged in Plaintiff's
Complaint and that Plaintiff's said acts proximately caused and contributed to the alleged
damages, if any there were.
TWENTY-FIRST DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times relevant to the matters alleged in Plaintiff's complaint,
Plaintiff's employers were sophisticated users of asbestos-containing products and said
employers’ negligence in providing said products to its employees was a superseding and/or
intervening cause of Plaintiff's injuries or damages, if any there were.
TWENTY-SECOND DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that there was no concert of action among Defendant and other defendants to
this action and that any alleged liability or responsibility of Defendant, which is denied, is
minimal in proportion to the alleged liability and responsibility of other persons and entities
including the other defendants herein. Plaintiff should therefore be limited to seeking recovery
from Defendant for the proportion of alleged injuries and damages for which Defendant is
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allegedly liable or responsible, all such alleged liability and responsibility being denied.
TWENTY-THIRD DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, to the extent that the
complaint alleged that Defendant has "market share” liability or “enterprise liability," the
complaint fails to state facts sufficient to constitute a cause of action against Defendant.
TWENTY-FOURTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it is entitled to set-off any settlement, judgments, or similar amounts
received by Plaintiff, against any judgment rendered against it in Plaintiff's favor.
TWENTY-FIETH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges, in accordance with Section 1431.2 of the Civil Code, known. as the Fair
Responsibility Act of 1986, that if Plaintiff's Complaint states a cause of action, each Defendant
is liable, if at all, only for those non-economic damages allocated to each Defendant in direct
proportion to each defendant's percentage of fault, if any. Defendant requests a judicial
determination of the amount of non-economic damages, if any. Defendant also requests a
judicial determination of the amount of non-economic damages, if any, allocated to Defendant in
direct proportion to Defendant's percentage of fault, if any, and a separate judgment in
conformance herewith.
TWENTY-SIXTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the damages and injuries, if any, were proximately caused or contributed
to, in whole or in part, by the negligence or fault of other acts and/or omissions of persons or
entities other than Defendant, for which Defendant is not responsible.
TWENTY-SEVENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that neither the complaint nor any purported causes of action alleged therein
state facts sufficient to entitle Plaintiff to an award of punitive damage against Defendant.
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TWENTY-EIGHTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's instant action is barred or, alternatively, merged into a prior
cause of action for which Plaintiff has previously sued upon, recovered, and dismissed with
prejudice, thereby requiring a complete extinguishment of the instant action due to the doctrines
of res judicata and collateral estoppel.
TWENTY-NINTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's instant action is barred and discharged, pursuant to Title 11
U.S.C. Section 1141(d), and that Plaintiff's action violates the pending injunction against such
claims that exists, by operation of law, pursuant to Title 11 U.S.C. section 524(a)(2).
THIRTIETH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that its products were manufactured, produced, supplied, sold and distributed
pursuant to contract with the United States government, and that any recovery by Plaintiff is
barred by consequence of the judicially recognized doctrine of immunity conferred upon that
contractual relationship and any occurrence arising there from.
THIRTY-FIRST DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the allegations of the Complaint, are uncertain, vague and ambiguous.
THIRTY-SECOND DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the allegations of the complaint should be dismissed pursuant to Sections
583.210 through 583.250, and 583.410 through 583.430 of the California Code of Civil
Procedure, and other applicable code sections.
THIRTY-THIRD DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it does not have and never has had a successor, successor-in-business,
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successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor,
predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest,
partner, subsidiary, whole or partial or ownership or membership relationship with the entity
upon which Plaintiff bases his allegations of liability.
THIRTY-FOURTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it did not have a sufficient market share with respect to products and
materials which Plaintiff alleges caused the alleged injuries and damages. Defendant may not be
held Hable to Plaintiff for any alleged share of said market or upon any theory premised upon
market-share liability.
THIRTY-FIFTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiff sustained injuries or damages attributable to the use of any
product researched, tested, studied, manufactured, fabricated, inadequately researched, designed,
inadequately tested, labeled, assembled, distributed, leased. bought, offered for sale, sold,
inspected, serviced, installed, contracted for installation, repaired, marketed, warranted,
arranged, rebranded, manufactured for others, packaged, advertised and/or which contained or
lacked warnings by Defendant, which allegations are expressly denied, the injuries or damages
were proximately caused by the unreasonable and unforeseeable misuse, abuse, alteration, or
improper maintenance of the product by Plaintiff or by others.
THIRTY-SIXTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION.
Defendant alleges that at all times mentioned, Plaintiff consented to the alleged acts of
Defendant.
THIRTY-SEVENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that all claims asserted by Plaintiff were proximately caused by a superseding,
intervening cause.
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THIRTY-EIGHTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the entire complaint and each cause of action thereof, is barred on the
grounds that the products or materials referred to in the complaint, if any, were not a substantial
factor in bringing about the injuries and damages alleged by Plaintiff.
THIRTY-NINTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff is not entitled to an award of punitive or exemplary damages in
this action. Such an award would be unconstitutional unless Defendant is accorded the
safeguards provided under the Constitution of the State of California and the Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution.
FORTIETH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that to the extent Plaintiff's claims arise out of contract, Plaintiff's claims do
not state facts sufficient to entitle Plaintiff to an award of punitive or exemplary damages against
Defendant.
FORTY-FIRST DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff, at all times mentioned, were not in privity of contract with
Defendant, and that said lack of privity bars any recovery by Plaintiff against Defendant under
any theory of breach of warranty.
FORTY-SECOND DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff failed to give adequate and timely notice of any alleged breach of|
warranty.
FORTY-THIRD DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff's entire complaint is barred by the Statute of Frauds to the extent
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that any such causes of action are based on alleged oral agreements.
FORTY-FOURTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that all products and materials researched, tested, studied, manufactured,
fabricated, inadequately researched, designed, inadequately tested, labeled, assembled,
distributed. leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for
installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others,
packaged, advertised and/or which contained or lacked warnings by Defendant, which
allegations are expressly denied, were not defective in any manner, as said products and
materials conformed with the state-of-the-art in existence at all times mentioned in the
complaint.
FORTY-FIFTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that its alleged actions, which are the subject of the complaint, were lawful.
FORTY-SIXTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that its alleged actions, which are the subject of the complaint, were justified.
FORTY-SEVENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff lacks standing to sue Defendant.
FORTY-EIGHTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that any danger or defect on the premises was obvious or could have been
observed by Plaintiff's exercise of reasonable care.
FORTY-NINTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it warned Plaintiff's employers of all dangers on the premises known to
Defendant.
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FIFTIETH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff has improperly split his causes of action and seeks to maintain a
duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed.
FIFTY-FIRST DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it 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 the right to assert additional defenses in the event discovery indicates that they would be!
appropriate.
FIFTY-SECOND DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times relative to the matters alleged in the complaint, each of
Plaintiff's employers, other than defendant, were sophisticated users of asbestos-containing
products and each of them knew or should have known of the risk or danger of asbestos such that
Defendant had no duty to warn Plaintiffs or his employers pursuant to the holding of Johnson v.
American Standard. Inc. (2008) 43 Cal. 4th 56.
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WHEREFORE, Defendant prays for judgment as follows:
1 That Plaintiff take nothing by reason of his complaint herein;
2. That judgment be entered in favor of Defendant;
3. For costs of suit incurred herein;
4, For appropriate credits and set-offs arising out of any payment of Workers’
Compensation benefits as alleged above;
5. For a judicial determination of the amount of non-economic damages, if any,
allocated to Defendant in direct proportion to J. T. THORPE & SON, INC.'s percentage of fault,
if any, and a separate judgment in conformance therewith; and
6. For such other and further relief as the Court may deem just and proper.
Date: April 16, 2009 BASSL EDLIN, HULE & BLUM LLP
/S/ RESHMA A. BAIAJ
RESHMA A. BAJAJ, ESQ. (SBN 227106)
Attorneys for Defendant
J.T. THORPE & SON, INC.
BASSI, EDLIN, HUIE & BLUM LLP
351 California Street, Suite 200
San Francisco, CA 94104
Telephone:(415) 397-9006
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Re: Anthony Conte v. Asbestos Defendants (B*P), et al.
San Francisco County Superior Court Case No. CGC-09-275046
PROOF OF SERVICE —- ELECTRONIC TRANSMISSION
STATE OF CALIFORNIA/COUNTY OF San Francisco
Tam a citizen of the United States and an employee in the County of San Francisco. Iam
over the age of eighteen (18) years and not a party to the within action. My business address is
BASSI, EDLIN, HUIE & BLUM LLP, 351 California Street, Suite 200, San Francisco,
California 94104.
On the date executed below, 1 electronically served the document(s) via LexisNexis File
& Serve, described below, on the recipients designated on. the Transaction Receipt located on the
LexisNexis File & Serve website.
DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT
FOR PERSONAL INJURY -
ASBESTOS
On the following parties:
PLEASE SEE SERVICE LIST PROVIDED TO LEXISNEXIS
ideclare under penalty of perjury that the foregoing is true and correct and that this
document is executed on April 22, 2009, at San. Francisco, California.
/s/ ALISHA C. PEMBER
ALISHA C. PEMBER
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CO HD A BB WH Ye a BBR TS 16 JEFFERY J. FADEFF, ESQ. (SBN 111497) RESHMA A. BAJAJ, ESQ. (SBN 227106) BASSI EDLIN, HUIE & BLUM LLP ELECTRONICALLY 351 California Street, Suite 200 San Francisco, CA 94104 conde HD mia pelephone: aS) es County of San Francisco ‘ ‘acsimile: ~ APR 23 2009 Attorneys for Defendant GORDON PARK-LI} Clerk J.T. THORPE & SON, INC. BY: CHRISTLE er MA rk pul er SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO ANTHONY CONTE, ) Case No. CGC-09-275046 ) Plaintiff, ) DEFENDANT J. T. THORPE & SON, ) INC.'S ANSWER TO COMPLAINT vs. ) FOR PERSONAL INJURY - ) ASBESTOS ASBESTOS DEFENDANTS (B*P) As ) Reflected on Exhibits B, B-1, C, F, G; and ) DOES 1-8500, ) ) Defendants. ) ) ) Defendant J.T. THORPE & SON, INC. ("Defendant"), in answer to the complaint of Plaintiff ANTHONY CONTE, (“Plaintiff”), admits, denies and alleges as follows: Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, Defendant denies each and every, all and singular, both generally and specifically, the allegations of Plaintiff's unverified complaint, and further denies that Plaintiff has been damaged as alleged or at all, by reason of any act or omission on the part of Defendant or its agents, servants, or employees. FIRST DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's Complaint fails to state facts sufficient to constitute a cause of action against Defendant. 79966 1 DEFENDANT J.T. THORPE & SON. INC.’S ANSWER ‘TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSWw Ne CO MO eb Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECOND DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff has failed to join all persons and parties needed for a just adjudication of this action. THIRD DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's claims are barred by laches, waiver and/or estoppel. FOURTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that this Court does not have subject matter jurisdiction over this action or alternatively that the Court lacks jurisdiction due to insufficiency of process or the service thereof and/or improper venue. FIETH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff has failed to commence this action within the time required by the applicable statute of limitations, including but not limited to California Code of Civil Procedure sections 337.1,337.15, 338(a), 338(d), 340(3), 340.2, and 343. SIXTH DEFENSE AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff was careless and negligent in and about the matters alleged in the complaint and said carelessness and negligence of Plaintiff proximately contributed to the happening of the accident, incident and occurrence alleged in the complaint, and to the injuries, losses and damages complained of therein, if any there were, and said contributory negligence bars a recovery or proportionately reduces any potential verdict. SEVENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff failed to mitigate his alleged damages, if there were any. 79966 2 DEFENDANT 1.7. THORPE & SON, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSWw Ne CO MO eb Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiff was injured by products used or installed at Defendant's premises, which is denied, such injury occurred after the expiration of the useful safe life of such products. NINTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiff suffered any damages, which is denied, such damages were the sole and proximate result of an unavoidable accident. TENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiff suffered any damages, which is denied, such damages were caused and/or contributed to by Plaintiff's misuse of the product or products and Plaintiff's recovery should be barred or reduced accordingly. ELEVENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiff suffered any damages, which is denied, such damages were solely and proximately caused by material modifications or alterations of the product or products involved in the action after it or they left the custody and control of Defendant. TWELFTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that any asbestos-containing product or products alleged to have caused Plaintiff's injuries were manufactured, used, installed and/or distributed in mandatory compliance with specifications promulgated by the United States government under its war powers, as set forth in the U.S. Constitution, and that any recovery by Plaintiff is barred as a consequence of the exercise of those sovereign powers. THIRTEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 79966 3 DEFENDANT 1.7. THORPE & SON, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSWw Ne CO MO eb Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant alleges that any product or products alleged by Plaintiff to have caused their injuries were manufactured, installed, used or distributed in compliance with specifications provided by third parties to Defendant and/or in compliance with all applicable healthy and safety statutes and regulations. FOURTEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiff suffered any damages, which is denied, the risk of any such damages was not foreseeable to Defendant. Defendant at all times material hereto acted in accordance with the industry custom and practice and the state of scientific knowledge available to manufacturers, installers and/or users of asbestos-containing products. FIFTEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it received no notice of any dangerous, hazardous or defective condition or any breach of warranty, either expressed or implied. SIXTEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's claims against Defendant are barred by the holding of Privette vy. Superior Court (1993) 5 Cal. 4th 689. SEVENTEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's exposure to any asbestos-containing product or products allegedly used or installed at Defendant's premises was minimal and insufficient to establish the probability that said product or products were a legal cause of Plaintiff's alleged injuries. EIGHTEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that this action is barred by the applicable state and/or federal industrial insurance and/or Worker's Compensation laws, including, but not limited to, California Labor Code Sections 3601 and 3602, and 33 U.S.C. Section 905. 79966 4 DEFENDANT J.T. THORPE & SON. INC.'S ANSWER ‘TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSWw Ne CO MO eb Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NINETEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that at the time of injuries alleged in Plaintiff's Complaint, Plaintiff was employed by persons other than Defendant; was entitled to receive and did receive Worker's Compensation. benefits from said employer(s) or their insurers; and that said employer(s) were negligent and careless in and about the matters referred to in Plaintiff's complaint. Defendant is, therefore, entitled to set- off any such benefits received by Plaintiff against any judgment vendered in Plaintiff's favor and said employer(s) are barred from any recovery by lien or otherwise against Defendant in connection with this matter. TWENTIETH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff voluntarily and knowingly assumed the alleged risks and hazards incident to the alleged operations, acts and conduct at the times and places alleged in Plaintiff's Complaint and that Plaintiff's said acts proximately caused and contributed to the alleged damages, if any there were. TWENTY-FIRST DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that at all times relevant to the matters alleged in Plaintiff's complaint, Plaintiff's employers were sophisticated users of asbestos-containing products and said employers’ negligence in providing said products to its employees was a superseding and/or intervening cause of Plaintiff's injuries or damages, if any there were. TWENTY-SECOND DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that there was no concert of action among Defendant and other defendants to this action and that any alleged liability or responsibility of Defendant, which is denied, is minimal in proportion to the alleged liability and responsibility of other persons and entities including the other defendants herein. Plaintiff should therefore be limited to seeking recovery from Defendant for the proportion of alleged injuries and damages for which Defendant is 79966 5 DEFENDANT 1.7. THORPE & SON, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSWw Ne CO MO eb Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allegedly liable or responsible, all such alleged liability and responsibility being denied. TWENTY-THIRD DEFENSE AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, to the extent that the complaint alleged that Defendant has "market share” liability or “enterprise liability," the complaint fails to state facts sufficient to constitute a cause of action against Defendant. TWENTY-FOURTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it is entitled to set-off any settlement, judgments, or similar amounts received by Plaintiff, against any judgment rendered against it in Plaintiff's favor. TWENTY-FIETH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges, in accordance with Section 1431.2 of the Civil Code, known. as the Fair Responsibility Act of 1986, that if Plaintiff's Complaint states a cause of action, each Defendant is liable, if at all, only for those non-economic damages allocated to each Defendant in direct proportion to each defendant's percentage of fault, if any. Defendant requests a judicial determination of the amount of non-economic damages, if any. Defendant also requests a judicial determination of the amount of non-economic damages, if any, allocated to Defendant in direct proportion to Defendant's percentage of fault, if any, and a separate judgment in conformance herewith. TWENTY-SIXTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that the damages and injuries, if any, were proximately caused or contributed to, in whole or in part, by the negligence or fault of other acts and/or omissions of persons or entities other than Defendant, for which Defendant is not responsible. TWENTY-SEVENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that neither the complaint nor any purported causes of action alleged therein state facts sufficient to entitle Plaintiff to an award of punitive damage against Defendant. 79966 6 DEFENDANT 1.7. THORPE & SON, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSWw Ne CO MO eb Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-EIGHTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's instant action is barred or, alternatively, merged into a prior cause of action for which Plaintiff has previously sued upon, recovered, and dismissed with prejudice, thereby requiring a complete extinguishment of the instant action due to the doctrines of res judicata and collateral estoppel. TWENTY-NINTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's instant action is barred and discharged, pursuant to Title 11 U.S.C. Section 1141(d), and that Plaintiff's action violates the pending injunction against such claims that exists, by operation of law, pursuant to Title 11 U.S.C. section 524(a)(2). THIRTIETH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that its products were manufactured, produced, supplied, sold and distributed pursuant to contract with the United States government, and that any recovery by Plaintiff is barred by consequence of the judicially recognized doctrine of immunity conferred upon that contractual relationship and any occurrence arising there from. THIRTY-FIRST DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that the allegations of the Complaint, are uncertain, vague and ambiguous. THIRTY-SECOND DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that the allegations of the complaint should be dismissed pursuant to Sections 583.210 through 583.250, and 583.410 through 583.430 of the California Code of Civil Procedure, and other applicable code sections. THIRTY-THIRD DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it does not have and never has had a successor, successor-in-business, 79966 7 DEFENDANT 1.7. THORPE & SON, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSWw Ne CO MO eb Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor, predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest, partner, subsidiary, whole or partial or ownership or membership relationship with the entity upon which Plaintiff bases his allegations of liability. THIRTY-FOURTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it did not have a sufficient market share with respect to products and materials which Plaintiff alleges caused the alleged injuries and damages. Defendant may not be held Hable to Plaintiff for any alleged share of said market or upon any theory premised upon market-share liability. THIRTY-FIFTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiff sustained injuries or damages attributable to the use of any product researched, tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested, labeled, assembled, distributed, leased. bought, offered for sale, sold, inspected, serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised and/or which contained or lacked warnings by Defendant, which allegations are expressly denied, the injuries or damages were proximately caused by the unreasonable and unforeseeable misuse, abuse, alteration, or improper maintenance of the product by Plaintiff or by others. THIRTY-SIXTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION. Defendant alleges that at all times mentioned, Plaintiff consented to the alleged acts of Defendant. THIRTY-SEVENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that all claims asserted by Plaintiff were proximately caused by a superseding, intervening cause. 79966 8 DEFENDANT J.T. THORPE & SON. INC.'S ANSWER ‘TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSWw Ne CO MO eb Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY-EIGHTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that the entire complaint and each cause of action thereof, is barred on the grounds that the products or materials referred to in the complaint, if any, were not a substantial factor in bringing about the injuries and damages alleged by Plaintiff. THIRTY-NINTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff is not entitled to an award of punitive or exemplary damages in this action. Such an award would be unconstitutional unless Defendant is accorded the safeguards provided under the Constitution of the State of California and the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. FORTIETH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that to the extent Plaintiff's claims arise out of contract, Plaintiff's claims do not state facts sufficient to entitle Plaintiff to an award of punitive or exemplary damages against Defendant. FORTY-FIRST DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff, at all times mentioned, were not in privity of contract with Defendant, and that said lack of privity bars any recovery by Plaintiff against Defendant under any theory of breach of warranty. FORTY-SECOND DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff failed to give adequate and timely notice of any alleged breach of| warranty. FORTY-THIRD DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff's entire complaint is barred by the Statute of Frauds to the extent 79966 9 DEFENDANT 1.7. THORPE & SON, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSWw Ne CO MO eb Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that any such causes of action are based on alleged oral agreements. FORTY-FOURTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that all products and materials researched, tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested, labeled, assembled, distributed. leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised and/or which contained or lacked warnings by Defendant, which allegations are expressly denied, were not defective in any manner, as said products and materials conformed with the state-of-the-art in existence at all times mentioned in the complaint. FORTY-FIFTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that its alleged actions, which are the subject of the complaint, were lawful. FORTY-SIXTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that its alleged actions, which are the subject of the complaint, were justified. FORTY-SEVENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff lacks standing to sue Defendant. FORTY-EIGHTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that any danger or defect on the premises was obvious or could have been observed by Plaintiff's exercise of reasonable care. FORTY-NINTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it warned Plaintiff's employers of all dangers on the premises known to Defendant. 79966 10 DEFENDANT 1.7. THORPE & SON, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSwo ow be wo OD WD Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIFTIETH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff has improperly split his causes of action and seeks to maintain a duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed. FIFTY-FIRST DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it 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 the right to assert additional defenses in the event discovery indicates that they would be! appropriate. FIFTY-SECOND DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that at all times relative to the matters alleged in the complaint, each of Plaintiff's employers, other than defendant, were sophisticated users of asbestos-containing products and each of them knew or should have known of the risk or danger of asbestos such that Defendant had no duty to warn Plaintiffs or his employers pursuant to the holding of Johnson v. American Standard. Inc. (2008) 43 Cal. 4th 56. it tit Mt Mt it Mt Mt it Mt Mit it 79966 ul DEFENDANT 1.7. THORPE & SON, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSWw Ne CO MO eb Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, Defendant prays for judgment as follows: 1 That Plaintiff take nothing by reason of his complaint herein; 2. That judgment be entered in favor of Defendant; 3. For costs of suit incurred herein; 4, For appropriate credits and set-offs arising out of any payment of Workers’ Compensation benefits as alleged above; 5. For a judicial determination of the amount of non-economic damages, if any, allocated to Defendant in direct proportion to J. T. THORPE & SON, INC.'s percentage of fault, if any, and a separate judgment in conformance therewith; and 6. For such other and further relief as the Court may deem just and proper. Date: April 16, 2009 BASSL EDLIN, HULE & BLUM LLP /S/ RESHMA A. BAIAJ RESHMA A. BAJAJ, ESQ. (SBN 227106) Attorneys for Defendant J.T. THORPE & SON, INC. BASSI, EDLIN, HUIE & BLUM LLP 351 California Street, Suite 200 San Francisco, CA 94104 Telephone:(415) 397-9006 79966 12 DEFENDANT 1.7. THORPE & SON, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOSWw Ne CO MO eb Banos 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Re: Anthony Conte v. Asbestos Defendants (B*P), et al. San Francisco County Superior Court Case No. CGC-09-275046 PROOF OF SERVICE —- ELECTRONIC TRANSMISSION STATE OF CALIFORNIA/COUNTY OF San Francisco Tam a citizen of the United States and an employee in the County of San Francisco. Iam over the age of eighteen (18) years and not a party to the within action. My business address is BASSI, EDLIN, HUIE & BLUM LLP, 351 California Street, Suite 200, San Francisco, California 94104. On the date executed below, 1 electronically served the document(s) via LexisNexis File & Serve, described below, on the recipients designated on. the Transaction Receipt located on the LexisNexis File & Serve website. DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS On the following parties: PLEASE SEE SERVICE LIST PROVIDED TO LEXISNEXIS ideclare under penalty of perjury that the foregoing is true and correct and that this document is executed on April 22, 2009, at San. Francisco, California. /s/ ALISHA C. PEMBER ALISHA C. PEMBER 79966 1 DEFENDANT 1.7. THORPE & SON, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS