On December 17, 2010 a Answer was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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ID hw FB WW SONJA E. BLOMQUIST, SBN #099341, sblomaquist@lowball.com PAMELA Y. LOUIE, SBN #259391, plowe@lowball.com LOW, BALL & LYNCH a ELECTRONICALLY 505 Montgomery Street, 7°” Floor San Francisco, California 94111-2584 sopehr IL ED. Telephone (415) 981-6630 County of San Francisco Facsimile (415) 399-1506 APR 04 2011 Attorneys for Defendant acer K of the Court GIAMPOLINI & COMPANY Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNTA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731 Plaintiffs, GIAMPOLINI & COMPANY'S ANSWER TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOS v. C.C. MOORE & CO. ENGINEERS; Defendants as Reflected on Exhibit I attached to the Summary Complaint herein; and DOES 1-8500, Defendants. Ne eee ee ee eee Defendant GIAMPOLINI & COMPANY (herein "Defendant") answers plaintiffs’ first amended complaint (herein “Complaint’) on its own behalf and on behalf of no other defendant or entity as follows: Pursuant to California Code of Civil Procedure section 431.30(d), Defendant denies generally each and every allegation of the First Amended Complaint. FIRST AFFIRMATIVE DEFENSE Neither the Complaint nor any purported cause of action alleged by the plaintiffs therein states facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE To the extent the Complaint asserts Defendant's alleged "market share” Liability, or “enterprise liability,” the Complaint fails to state facts sufficient to constitute a cause of action -1- GIAMPOLINI & COMPANY’S ANSWER TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOS ‘server GEN-ANSO40'SFIGO6TIGFAC Answer docID hw FB WW against Defendant. THIRD AFFIRMATIVE DEFENSE Neither the Complaint nor any purported cause of action alleged therein states facts sufficient to entitle plaintiffs to an award of punitive damages against Defendant. FOURTH AFFIRMATIVE DEFENSE The imposition of any punitive damages in this matter would deprive Defendant of its property without due process of law under the California Constitution and United States Constitution. FIFTH AFFIRMATIVE DEFENSE The imposition of any punitive damages in this matter would violate the United States Constitution's prohibition against laws impairing the obligation of contracts. SIXTH AFFIRMATIVE DEFENSE The imposition of any punitive damages in this matter would constitute a criminal fine or penalty and should, therefore, be remitted on the ground that the award violates the United States Constitution. SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ action, and each alleged cause of action, is barred by the applicable statute of limitations, including but not limited to California Code of Civil Procedure, sections 338(1), 338(4), 339(1), 340(1}, 340(3), 340.2, 343, 353, 583.110, 583.210, 583.310 and 583.410 and California Commercial Code, section 2725. EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ unreasonably delayed in bringing this action, without good cause therefor, and thereby have prejudiced Defendant as a direct and proximate result of such delay; accordingly, this action is barred by laches. NINTH AFFIRMATIVE DEFENSE Plaintiff was negligent in and about the matters alleged in the Complaint and in each alleged cause of action; this negligence proximately caused, in whole or in part, the damages alleged in the Complaint. In the event Plaintiffs are entitled to any damages, the amount of these -2- GIAMPOLINI & COMPANY’S ANSWER TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOS ‘server GEN-ANSO40'SFIGO6TIGFAC Answer docID hw FB WW damages should be reduced by the comparative fault of Plaintiff and any person whose negligent acts or omissions are imputed to Plaintiffs. TENTH AFFIRMATIVE DEFENSE Plaintiff knowingly, voluntarily and unreasonably undertook each of the risks and hazards, if any, referred to in the Complaint and each alleged cause of action, and this undertaking proximately caused and contributed to any loss, injury or damages incurred by Plaintiff. ELEVENTH AFFIRMATIVE DEFENSE Any loss, injury or damage incurred by Plaintiff was proximately caused by the negligent or willful acts or omissions of parties whom Defendant neither controlled nor had the right to control, and was not proximately caused by any acts, omissions or other conduct of Defendant. TWELFTH AFFIRMATIVE DEFENSE The products referred to in the Complaint were misused, abused or altered by Plaintiff or by others; the misuse, abuse or alteration was not reasonably foreseeable to Defendant, and proximately caused any loss, injury or damages incurred by Plaintiff. THIRTEENTH AFFIRMATIVE DEFENSE Defendant alleged that its products were manufactured, produced, supplied, sold and distributed in mandatory conformity with specifications promulgated by the United States Government under its war powers, as set forth in the United States Constitution, and that any recovery by plaintiffs on the Complaint on file herein is barred in consequence of the exercise of those sovereign powers. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff failed to exercise due diligence to mitigate his loss, injury or damages; accordingly, the amount of damages to which plaintiffs are entitled, if any, should be reduced by the amount of damages which would have otherwise been mitigated. FIFTEENTH AFFIRMATIVE DEFENSE The Court lacks subject matter jurisdiction over the matters alleged in the Complaint because the Complaint and each alleged cause of action against Defendant is barred by the -3- GIAMPOLINI & COMPANY’S ANSWER TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOS ‘server GEN-ANSO40'SFIGO6TIGFAC Answer docID hw FB WW "exclusive remedy” provisions of California Labor Code, section 3601, et seq. SUXTEENTH AFFIRMATIVE DEFENSE Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff was employed and was entitled to receive workers’ compensation benefits from his employers; that all of Plaintiff's employers, other than Defendant, were negligent in and about the matters referred to in said Complaint, and that such negligence on the part of said employers proximately and concurrently contributed to the happening of the accident and to the loss or damage complained of by Plaintiffs, if any there were; and that by reason thereof Defendant is entitled to set off any such benefits to be received by plaintiffs against any judgment which may be rendered in favor of plaintiffs. SEVENTEENTH AFFIRMATIVE DEFENSE Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiff's employers were negligent in and about the matters referred to in said Complaint, and that such negligence on the part of said employers proximately and concurrently contributed to any loss or damage, including non-economic damages, complained of by plaintiffs, if any there were; and that Defendant is not liable for said employers’ proportionate share of noneconomic damages. EIGHTEENTH AFFIRMATIVE DEFENSE Defendant alleges that at the time of the injuries alleged in the Complaint, parties other than this Defendant were negligent in and about the matters referred to in said Complaint, and that such negligence on the part of said parties proximately and concurrently contributed to any loss or damage, including noneconomic damages, complained of by Plaintiffs, if any there were; and that Defendant herein shall not be liable for said parties' proportionate share of noneconomic damages. NINETEENTH AFFIRMATIVE DEFENSE Defendant alleges that at all times relative to matters alleged in the Complaint, all of Plaintiff's employers, other than Defendant, were sophisticated users of asbestos-containing products and said employers' negligence in providing the product to its employees in a negligent, careless and reckless manner was a superseding intervening cause of Plaintiff's injuries, if any -4- GIAMPOLINI & COMPANY’S ANSWER TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOS ‘server GEN-ANSO40'SFIGO6TIGFAC Answer docID hw FB WW there were, TWENTIETH AFFIRMATIVE DEFENSE If plaintiffs have received, or in the future may receive, workers’ compensation benefits from Defendant under the Labor Code of the State of California as a consequence of the alleged industrial injury referred to in the Complaint, and in the event that Defendant is held liable to plaintiffs, any award against Defendant must be reduced in the amount of all such benefits received by Plaintiff. TWENTY-FIRST AFFIRMATIVE DEFENSE IfPlaintiff has received, or in the future may receive, workers’ compensation benefits from Defendant under the Labor Code of the State of California as a consequence of the alleged industrial injury referred to in the Complaint, and in the event Plaintiffs are awarded damages against Defendant, Defendant claims a credit against this award to the extent that Defendant is barred from enforcing its rights to reimbursement for workers’ compensation benefits that Plaintiff has received or may in the future receive. TWENTY-SECOND AFFIRMATIVE DEFENSE If Plaintiff has received, or in the future may receive workers’ compensation benefits from Defendant under the Labor Code of the State of California as a consequence of the alleged industrial injury referred to in the Complaint, Defendant demands repayment of any such workers’ compensation benefits in the event that plaintiffs recover tort damages as a result of the industrial injury allegedly involved here. Although Defendant denies the validity of plaintiffs’ claims, in the event those claims are held valid and not barred by the statute of limitations or otherwise, Defendant asserts that cross-demands for money have existed between plaintiffs and Defendant and the demands are compensated, so far as they equal each other, pursuant to California Code of Civil Procedure section 431.70. TWENTY-THIRD AFFIRMATIVE DEFENSE At all times and places in the Complaint, Plaintiff was not in privity of contract with Defendant and said lack of privity bars plaintiffs’ recovery herein upon any theory of warranty. itt -5- GIAMPOLINI & COMPANY’S ANSWER TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOS ‘server GEN-ANSO40'SFIGO6TIGFAC Answer docID hw FB WW TWENTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs are barred from recovery in that all products produced by Defendant were in conformity with the existing state-of-the-art, and as a result, these products were not defective in any manner. TWENTY-FIFTH AFFIRMATIVE DEFENSE Defendant did not and does not have a substantial percentage of the market for the asbestos-containing products which allegedly caused Plaintiffs’ injuries. Therefore, Defendant may not be held Hable to plaintiffs’ based on this Defendant's alleged percentage share of the applicable market. TWENTY-SIXTH AFFIRMATIVE DEFENSE Defendant denies any and all liability to the extent that Plaintiffs’ assert Defendant's alleged liability as a successor, successor in business, successor in product line or a portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion thereof, parent, alter-ego, subsidiary, wholly or partially owned by, or the whole or partial owner of or member in an entity researching, studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding, manufacturing for others, packaging and advertising a certain substance, the generic name of which is asbestos. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims were already litigated and resolved in prior actions, specifically San Francisco Superior Court Case No. CGC-07-274099, filed March 5, 2007. Plaintiffs’ claims herein are barred due to the primary right and res judicata doctrines which prohibit splitting a single cause of action into successive suits, and seeking new recovery for injuries for which the Plaintiffs were previously compensated by alleged joint tortfeasors, TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs have fully or partially mitigated their damages by reasons of settlements and judgments obtained in prior actions, specifically San Francisco Superior Court Case No. CGC- -6- GIAMPOLINI & COMPANY’S ANSWER TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOS ‘server GEN-ANSO40'SFIGO6TIGFAC Answer docID hw FB WW 07-274099 filed March 5, 2007, for personal injury damages caused by asbestos exposure for which this Defendant is entitled to a credit. TWENTY-NINTH AFFIRMATIVE DEFENSE This Defendant ts entitled to an offset for any and alf prior settlements in this case and in prior actions, specifically San Francisco Superior Court Case No. CGC-07-274099 filed March 5, 2007. THIRTIETH AFFIRMATIVE DEFENSE Plaintiff and/or purchaser or user of the product at issue was sufficiently knowledgeable, informed and/or trained and knew or should have known of the potential danger associated with the risk of exposure to asbestos from the course of his/her work, and the claims are therefore barred under the sophisticated user doctrine, pursuant to the California Supreme Court’s opinion in William Johnson y. American Standard, Inc. (2008) 43 Cal 4th 56. WHEREFORE, Defendant prays: qd) That plaintiffs take nothing by this First Amended Complaint; (2) That Judgment be entered in favor of Defendant; (3) For recovery of Defendant's cost of suit; (4) For appropriate credits and set-offs arising out of any payment of workers’ compensation benefits as alleged above; and (5) For such other and further relief as the Court deems just and proper. Dated: April 4, 2011 LOW, BALL & LYNCH By: _/s/ Pamela Y. Louie SONJA E. BLOMQUIST PAMELA Y. LOUIE Attorneys for Defendant GIAMPOLINI & COMPANY -7- GIAMPOLINI & COMPANY’S ANSWER TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOS ‘server GEN-ANSO40'SFIGO6TIGFAC Answer docID hw FB WW Ross San emp 94] v. C.C. Moore & Co. Engineers, et al. Francisco Case No. CGC-10-275731 PROOF OF SERVICE Tam over the age of eighteen (18) years and not a party to the within action. Tam loyed at Low, Ball & Lynch, 505 Montgomery Street, 7th Floor, San Francisco, California L On the date indicated below, I served the following document GIAMPOLINI & COMPANY'S ANSWER TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOS on the listed addresses: Brayton Purcell [ ] And All Defense Counsel 222 Rush Landing Road [SEE ATTACHED LIST] Novato, CA 94948-6169 Telephone: 415 898-1555 [ ] (All counsel in this action (list attached) 415-898-1555 (voice) were faxed a letter advising of the documents 415-898-1247 (fax) provided Plaintiffs and an offer to provide copies upon request. Letter enclosed.) ] (BY MAIL) I served the above-named document, with postage thereon fully prepaid, via the United States mail at San Francbco, California. 1 am sufficiently familiar with my firm's practice for collection and processing of mail with the United States Postal Service. It will be! deposited with the United States Postal Service this same day in the ordinary course of business. ] (BY PERSONAL SERVICE) I caused each such envelope to be delivered by hand to the addressee(s) noted above or on the attachment herein. ] (BY FACSIMILE) I caused the said document to be transmitted by facsimile transmission to the number indicated above or on the attachment herein. X] (BY ELECTRONIC SERVICE) I electronically served the document(s) via LexisNexis File & Serve on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. ] (BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED) I placed a true copy, enclosed in a sealed, postage-paid envelope, in the United States Mail, at San Francisco, California. ] (BY OVERNIGHT COURIER) I caused each such envelope addressed to the parties to be deposited in a box or other facility regularly maintained by the overnight courier or driver authorized by the overnight courier to receive documents. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at San Francisco, California on April 4, 2011. /s/ Scarlet Herrera Scarlet Herrera -8- GIAMPOLINI & COMPANY’S ANSWER TO FIRST AMENDED COMPLAINT FOR PERSONAL INJURY - ASBESTOS ‘server GEN-ANSO40'SFIGO6TIGFAC Answer doc