Answer: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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STEPTOE & JOHNSON LLP ELECTRONICALLY,

633 West Fifth Street, Suite 700 FILED
Los Angeles, California 90071 . Superior Court of California,
Telephone: (213) 439-9400 County of San Franc]
Facsimile: (213) 439-9599 MAR 16 2011
Email: rkahn@steptoe.com Clerk of the Court
Email: jswenson@steptoe.com BY: ANNIE PASCUAL |

° Deputy Cl rk

Attomeys for Defendant
METROPOLITAN LIFE INSURANCE COMPANY

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

ROBERT ROSS and JEAN ROSS, ASBESTOS
Plaintiffs, No. CGC 10-275731
vs, METROPOLITAN LIFE INSURANCE
COMPANY’S ANSWER TO
C.C. MOORE & CO, ENGINEERS; et al. PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR PERSONAL
Defendants. INJURY AND LOSS OF

CONSORTIUM

COMES NOW Metropolitan Life Insurance Company (“Metropolitan Life”), for itself
alone and for no other defendants, and in answer to the unverified First Amended Complaint
(“Complaint”) and each cause of action therein, and each and every Cross-Complaint filed
hereafter by any other defendant or third-party defendant, alleges as follows:

GENERAL DENIAL

1, Pursuant to California Code of Civil Procedure section 431.30(d), Metropolitan
Life generally denies each and every unverified allegation of the Complaint, except that
Metropolitan Life admits that it is a life insurance company of the State of New York licensed to
do business in the State of California.

Metropolitan Life asserts the following affirmative defenses based upon information and

belief.

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FIRST AFFIRMATIVE DEFENSE
2.. The Complaint, and each cause of action thereof, fails to state facts sufficient to
constitute a cause of action against Metropolitan Life,
SECOND AFFIRMATIVE DEFENSE
3, The causes of action in the Complaint are, and each of them is, barred by the
provisions of California Code of Civil Procedure section 335.1; section 337, subdivision 1;
section 338, subdivision (d); section 339, subdivision 1; section 340, subdivision 3; section
340.2, subdivisions (a) and (c); and section 343.
THIRD AF. ATIVE DEFENSE
4. Robert Ross and Jean Ross (“Plaintiffs”) were contributorily and/or
comparatively negligent.
FOURTH AFFIRMATIVE DEFENSE
5. Plaintiffs’ lack of reasonable care for theit safety and well-being was the sole
cause of, or contributed to, their injuries and damages, as alleged in the Complaint. By reason
thereof, Plaintiffs are barred from recovering all or that portion of any damages attributable to
Plaintiffs’ lack of reasonable care.
FIFTH AFFE VE DEFENSE
6. Plaintiffs’ claims are barred by operation of the doctrine of laches.
SIXTH AFFIRMATIVE DEFENSE
7. Plaintiffs’ claims are barred by operation of the doctrine of estoppel.
SEVENTH AFFIRMATIVE DEFENSE
8. Plaintiffs’ claims are barred by operation of the doctrine of waiver.
EIGHTH AFFIRMATIVE DEFENSE
9. Plaintiffs assumed the risk of any injuries allegedly sustained as a result of
exposure to asbestos-containing products used by or near Plaintiffs.
NINTH AFFIRMATIVE DEFENSE
10, Whatever damages were incurred by Plaintiffs were the result of intervening

and/or superseding acts or omissions of parties and events over whom Metropolitan Life

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had no control.
TENTH AFFIRMATIVE DEFENSE
ll. Atall times relevant hereto, the knowledge of Plaintiffs’ employer(s) was superol
to that of Metropolitan Life with respect to possible health hazards associated with Plaintiffs’
employment, and, therefore, if there was any duty to warn Plaintiffs; or to provide protection to
them, it was the duty of said employers, not of Metropolitan Life, and the breach of that duty was
an intervening and/or superseding cause of the injuries allegedly sustained by Plaintiffs.
ELEVENTH AFFIRMATIVE DEFENSE
12, In the event that it is shown that Plaintiffs used any product or material, as alleged|
in the Complaint, which gave rise to the injuries as set forth therein, the same was unforeseeably
misused, abused, modified, altered or subjected to abnormal use.
TWELFTH AFFIRMATIVE DEFENSE

13. Plaintiffs’ injuries and damages, if any, were legally caused or contributed to by
their unforeseeable idiosyncratic conditions, unusual susceptibilities or hypersensitive reactions,
for which Metropolitan Life is not liable.

THIRTEENTH AFFIRMATIVE DEFENSE

14. Plaintiffs and their employer(s) were sophisticated users of products containing
asbestos and had, or should have had, adequate knowledge of the dangers and risks associated
with using or working around asbestos.

FOURTEENTH AFFIRMATIVE DEFENSE
15. The claims in the Complaint, and each cause of action thereof, that seek an award

of exemplary or punitive damages fail to state facts sufficient to constitute a cause of action

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against Metropolitan Life.
FIFTEE: AFFIRMATIVE DEFENSE
16, The claims in the Complaint, and each cause of action thereof, that seek
exemplary or punitive damages violate Metropolitan Life’s right to procedural due process as
provided in the Fifth and Fourteenth Amendments of the United States Constitution and Article
I, Sections 1 and 7, and all other applicable provisions, of the Constitution of the State of

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California and any other state’s laws which may be applicable.
SIXTEENTH AFFIRMATIVE DEFENSE
17. The claims in the Complaint, and each cause of action thereof, that seek
exemplary or punitive damages violate Metropolitan Life’s right to substantive due process as
provided in the Fifth and Fourteenth Amendments of the United States Constitution and Article
J, Sections 1 and 7, and all other applicable provisions, of the Constitution of the State of
California and any other state’s laws which may be applicable.
/ SEVENTEENTH AFFIRMATIVE DEFENSE
18. The claims in the Complaint, and each cause of action thereof, that seek
exemplary or punitive damages violate Metropolitan Life’s right to equal protection under the
law and are otherwise unconstitutional under the Fourteenth Amendment of the United States
Constitution and Article I, Section 7, and all other applicable provisions, of the Constitution of
the State of California and any other state’s laws which may be applicable.
EIGHTEENTH AFFIRMATIVE DEFENSE
19. The claims in the Complaint, and each cause of action thereof, that seck
exemplary or punitive damages violate Metropolitan Life’s right to protection ftom “excessive .
fines” as provided in Article I, Section 17 of the Constitution of the State of California and any
other state’s laws which may be applicable. |
NINETEENTH AFFIRMATIVE DEFENSE
20. The actions of Metropolitan Life, as alleged in the Complaint and otherwise, were
within its rights under the First Amendment to the United States Constitution and Article I,
Section 2 of the Constitution of the State of California, and any other state’s laws which may be
applicable, and are fully protected thereby.
TWENTIETH AFFIRMATIVE DEFENSE
21. Plaintiffs should have taken action to minimize or eliminate damages, and
therefore, Plaintiffs are precluded from recovering damages, or their damages are reduced, by

operation of the doctrine of avoidable consequences.

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TWENTY-FIRST AFFIRMATIVE DEFENSE
22. Plaintiffs have unreasonably failed to mitigate their damages, if any.
TWENTY-SECOND AFFIRMATIVE DEFENSE
23. Metropolitan Life did not authorize, approve, acquiesce in or ratify the alleged
acts or omissions attributed to it in the Complaint.
TWENTY-THIRD AFFIRMATIVE DEFENSE
24. Metropolitan Life cannot be held liable as a matter of law for injuries or damages
allegedly sustained as a result of exposure to asbestos-containing products allegedly used by or
near Plaintiffs, to the extent such exposure was to asbestos-containing products manufactured
and distributed by others pursuant to and in strict conformity with specific regulations and
specifications set forth by the United States Government. Metropolitan Life avers further that at
all times relevant to the allegations contained in the Complaint, the products allegedly
containing asbestos substantially conformed to those specifications set forth and approved by
the United States Government, and the United States Government had actual knowledge of the
hazards, if any, associated with exposure to asbestos.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
25. Metropolitan Life is entitled to a set-off or credit in the amount of any settlement
or compromise heretofore or hereafter reached by Plaintiffs with any other person or entity for
any of Plaintiffs’ alleged damages.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
26. — California Civil Code sections 1431.1 through 1431.5, commonly known as
“Proposition 51,” provide that the liability of each defendant for non-economic damages shall
be several only and shall not be joint, and Metropolitan Life therefore asserts that each
defendant may be liable only for the amount of non-economic damages allocated to that

defendant in direct proportion to its percentage of fault, if any.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

27. The Complaint should be dismissed for failure of Plaintiffs to comply with the

provisions of the California Code of Civil Procedure section 430.10, subdivision (f).

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TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28. Plaintiffs’ alleged injuries and damages, if any, were proximately caused by or
contributed to by exposure or inhalation of noxious and deleterious fumes and residues from
industrial products or by-products prevalent on Plaintiffs’ job sites, by the cumulative effects of
exposure to all types of environmental and industrial pollutants of air and water, or by
substances, products, or other causes not attributable to or connected with Metropolitan Life.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

29, Metropolitan Life would show unto the Court that multiple awards of punitive
damages against it would violate Article I, Section 7 of the Constitution of the State of
California; the prohibition against being twice placed in jeopardy for the same offense
embodied in the Fifth and Fourteenth Amendments to the United States Constitution and the
common law of the State of California, and any other state’s laws which may be applicable.

TWENTY-NINTH AFFIRMATIVE DEFENSE

30. | The Complaint fails to name both necessary and indispensable parties in whose
absence complete relief cannot be accorded among those already parties. Therefore, this action
must be dismissed, or, alternatively, the action should be stayed pending other appropriate relief
by the Court.

THIRTIETH AFFIRMATIVE DEFENSE

31. Plaintiffs’ claims are barred in whole or in part by the exclusivity principles
embodied in California’s Workers’ Compensation Act.

THIRTY-FIRST A) TIVE DEFENSE

32, Plaintiffs’ employer’s lack of reasonable care or other wrongful conduct was the
sole cause of, or contributed to, Plaintiffs’ damages. Therefore, Plaintiffs’ recovery, if any,
from Metropolitan Life must be reduced by the amount of workers’ compensation benefits paid
by or on behalf of such employer.

THIRTY-SECOND AFFIRMATIVE DEFENSE
33. Plaintiffs’ losses, if any, were proximately caused by the negligence and fault of

Plaintiffs, or other parties hereto, and of third parties, not by any act or omission of
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Metropolitan Life,
THIRTY-THIRD AFFIRMATIVE DEFENSE
34, Metropolitan Life owed no duty to Plaintiffs with respect to the actions for which
liability is alleged in the Complaint.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
35. Metropolitan Life would show unto the Court that the events which allegedly
form the basis for Plaintiffs’ alleged causes of action against Metropolitan Life arose prior to the
elimination of the common law privity requirement in negligence and strict liability actions. As
such, Plaintiffs are subject to the common law requirement that they be in privity with
Metropolitan Life. Inasmuch as no such privity existed, Metropolitan Life is not a proper party
to this action.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
36. Plaintiffs’ claims are barred by Plaintiff's contributory and/or comparative
negligence and/or assumption of risk, and/or any other affirmative defense asserted herein,
THIRTY-SIXTH AFFIRMATIVE DEFENSE
37. The claims of Plaintiff's spouses, if any, are barred by Plaintiff's contributory
and/or comparative negligence and/or assumption of risk and/or any other defense asserted
herein.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
38. Plaintiffs’ claims should be denied to the extent they are barred by the operation
of the doctrine of accord and satisfaction.
_ THIRTY-EIGHTH AFFIRMATIVE DEFENSE
39, Plaintiffs’ claims should be denied to the extent they are barred by the operation

of the doctrine of release and settlement.

THIRTY-NINTH AFFIRMATIVE DEFENSE

40, Plaintiffs’ claims should be denied to the extent they are barred by the operation

of the doctrine of payment.

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METROPOLITAN LIFE’S ANSWER TO COMPLAINTFORTIETH AFFIRMATIVE DEFENSE
41. If all or most of the witnesses to the alleged asbestos exposure of Plaintiffs reside

outside of California, travel to and from this forum by witnesses and counsel for necessary
discovery and trial would place an undue burden upon Metropolitan Life. Furthermore, this
Court may be required under principles of conflicts of law to apply foreign law, with which this
Court and California counsel are unfamiliar. Therefore, the Complaint should be dismissed
under the doctrine of forum non conveniens.
FORTY-FIRST AFFIRMATIVE DEFENSE
42. Plaintiffs’ right to recover for their injuries and damages, if any, under any cause
of action in their Complaint, is barred by the laws of other jurisdictions that may be applied to
Plaintiffs’ action under the “choice of laws” doctrine.
FORTY-SECOND AFFIRMATIVE DEFENSE
43, Plaintiffs’ Complaint, and each cause of action therein, is expressly and/or
impliedly preempted by federal law.
FORTY-THIRD AFFIRMATIVE DEFENSE
44, Metropolitan Life hereby reserves its right to assert any other applicable
affirmative defenses supported by the evidence.
WHEREFORE, Metropolitan Life prays for judgment as follows:
(a) That Plaintiffs take nothing by way of the Complaint;
(b) That the Complaint be dismissed with prejudice as to Metropolitan Life;
(c) That Plaintiffs’ demands for relief be denied in every respect;
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(d) That Metropolitan Life be awarded costs incurred in connection with this
litigation; and
(e) That the Court grant such other and further relief as may be just, proper,

and equitable.

DATED: March {®, 2011

Attomeys for Defendant
METROPOLITAN LIFE
INSURANCE COMPANY

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PROOF OF SERVICE VIA LEXIS NEXIS FILE AND SERVE
F.R.C.P.5/C.C.P. § 1013a(3)/ Cal. R. Ct. R. 2.260
Iam a resident of, or employed in, the County of Los Angeles, I am over the age of 18
and not a party to this action. My business address is: Steptoe & Johnson LLP, 633 West Fifth
Street, Suite 700, Los Angeles, California 90071.

On March ig. 2011, I electronically served the following listed document(s) via
LexisNexis File and Serve described as: METROPOLITAN LIFE INSURANCE
COMPANY’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM on the recipients designated on the
Transaction Receipt located on the Lexis/Nexis File & Serve website:
www. fileandserve.lexisnexis.com,

To my knowledge, the transmission was reported as complete and without error. See Cal. R. Ct.

R. 2.253, 2.255, 2.260.

I declare under penalty of perjury under the laws of the State of California and the United
States of America that the above is true and correct. Executed on March tb 2011 at Los
Angeles, California.

ELENA HERNANDEZ How.
Type or Print Name atu

PROOF OF SERVICE