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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                1} MICHAEL T. MCCALL, State Bar No. 109580

ramccall@wfbm.com

2) an. @uitn ns State Bar No. 203612 ELECTRONICALLY
3 | WALSWORTH FRANKLIN BEVINS & McCALL, LLP FILED
1601 Montgomery Street, Ninth Floor Superior Court of California,
4 San Francisco, California 94111-2612 County of San Francisco
Telephone: (415) 781-7072 FEB 04 2011
3 Pacsimile: (415) 391-6258 Clerk of the Court
| BY: JUDITH NUNEZ
6 | Attomeys for Defendant Deputy Clerk
| D. ZELINSKY & SONS, INC.
7]
8i SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10]
11] ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731
12] Plaintiffs, ANSWER OF DEFENDANT
D. ZELINSKY & SONS, INC. TO
13 vs. PLAINTIFFS' COMPLAINT FOR
PERSONAL INJURY AND LOSS OF
14] C.C. MOORE & CO. ENGINEERS; et al., CONSORTIUM - ASBESTOS

Defendants.

Defendant D. ZELINSKY & SONS, INC.(hereafter "Defendant"), in answering the

Plaintiffs' unverified complaint, for itself alone, and severing itself from all others, admits, denies

i. Pursuant to California Code of Civil Procedure section 431.30, Defendant denies,

| further denying that Defendant was negligent in any manner, that the alleged product installed or
distributed was defective in any way, or that the alleged defect was the proximate cause of the
| Plaintiffs' claimed damages or injuries.
DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND
28 | DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY

ae
THOMAS DEE ENGINEERING COMPANY'S ANSWER TO PLAINTIFFS COMPLAINT

Vi30119.3
3619-3.25951] CAUSE OF ACTION ALLEGED IN PLAINTIFFS' COMPLAINT AS THOUGH PLEADED
2 | SEPARATELY TO EACH AND EVERY CAUSE OF ACTION:

3 | FIRST AFFIRMATIVE DEFENSE

4] 2. The complaint and each and every purported cause of action or count thereof fails to
5 | state facts sufficient to constitute a cause or causes of action against Defendant.

6 SECOND AFFIRMATIVE DEFENSE

7 3. Defendant is informed and believes and thereon alleges that the acts, injuries and

g damages alleged in the complaint occurred and were proximately caused by either the sole

9 | negligence or fault of Plaintiffs, which sole negligence or fault bars Plaintiffs' recovery, or were
10 | contributed to by Plaintiffs' negligence or fault. Plaintiffs' recovery, if any, should be reduced by
1] jan amount proportionate to the amount by which Plaintiffs’ negligence or fault contributed to the
12
13

14

| happening of the alleged incident and/or alleged injury.
THIRD AFFIRMATIVE DEFENSE
4, Defendant is informed and believes and thereon alleges that the negligence,
15 carelessness and other acts or omissions of other Defendants in this lawsuit, as well as other
16 | persons and entities not parties to this lawsuit, proximately caused or contributed to Plaintiffs’
17 J injuries and damages, if any. The negligence, carelessness and other acts or omissions of the other
18 | Defendants in this lawsuit and other persons and entities not parties to this lawsuit account for one

19 | hundred percent (100%) of the causal or contributing factors relating to Plaintiffs’ injuries and

20) damages, if any, and/or constitute the supervening and/or intervening causes of Plaintiffs’ injuries

21 | and damages, if any.
22) FOURTH AFFIRMATIVE DEFENSE
23 | 5. Defendant is informed and believes and thereon alleges that the accident, injury and

Walrwarth, -2-
wae 5 , D. ZELINSKY & SONS, INC.'S ANSWER TO PLAINTIFFS' COMPLAINT28

Watrworth,
‘Freakii,
inn &

McCall, LLP
omer

and/or the negligence of Plaintiff's co-employees contributed to the happening of the alleged
accident and the alleged injuries.
FIFTH AFFIRMATIVE DEFENSE

6. Defendant alleges that while at all times denying any liability whatsoever to
Plaintiffs, any alleged liability or responsibility of Defendant is small in proportion to the alleged
liability and responsibility of other persons or entities, including other persons and entities who are
parties herein, and Plaintiffs should be limited to seeking recovery from Defendant for the
proportion in which Defendant is allegedly liable or responsible, all such alleged liability and
responsibility being expressly denied.

SIXTH AFFIRMATIVE DEFENSE

7. Defendant is informed and believes and thereon alleges that at the time the alleged
operations, acts and conduct occurred, Plaintiff was acting within the course and scope of
employment and was entitled to receive, did receive and will continue to receive workers!
compensation benefits. Plaintiff's employers other than Defendant failed to provide the Plaintiff
with a safe place in which to work and such employers’ negligence, carelessness and other acts and
omissions proximately caused the injuries and damages claimed. Therefore, said employers and
their workers’ compensation carriers are barred from any recovery by lien or otherwise herein, and
Defendant is entitled to set off any such benefits Plaintiffs have received against any judgment
rendered in favor of Plaintiffs.

SEVENTH AFFIRMATIVE DEFENSE

8. Defendant is informed and believes and thereon alleges that Plaintiff knew of the
risks and dangers inherent to her conduct, and with full knowledge of the risks and dangers and
with an appreciation for the magnitude of the risks and dangers, did voluntarily assume the risks,
injuries and damages, if any, sustained thereby, Plaintiff's assumption of risk bars or
proportionately reduces any recovery by Plaintiffs.

EIGHTH AFFIRMATIVE DEFENSE

9 Defendant is informed and believes and thereon alleges that if Plaintiff was injured

by materials, products and/or equipment supplied, utilized or distributed by Defendant, which is

3-
D. ZELINSKY & SONS, INC'S ANSWER TO PLAINTIFFS' COMPLAINT

FI3GLIOL
3619-3,2595.SG Re SA DN BR Re

yo wow — wee ow
R RE SRR RSFSR RAE SHR oS

27

hereby expressly denied, such products and/or equipment were intended for and provided to a
knowledgeable and sophisticated distributor or user over whom Defendant had no control who was
fully informed as to the risks and dangers, if any, associated with the products and/or equipment
and the precautions, if any, required to avoid the risks and dangers, if any.
NINTH AFFIRMATIVE DEFENSE
10. Defendant is informed and believes and thereon alleges that Plaintiff is a member of
a sophisticated group of users of Defendant's services, products, materials and/or equipment.
TENTH AFFIRMATIVE DEFENSE
11. Defendant is informed and believes and thereon alleges that Plaintiff possesses the
level of knowledge and skill based upon Plaintiff's training, education and/or experience such that
Plaintiff would be categorized as a sophisticated user of Defendant's services, products, materials
and/or equipment.

ELEVENTH AFFIRMATIVE DEFENSE

12. Defendant is informed and believes and thereon alleges that Plaintiff was trained to
perform the tasks Plaintiffs claims caused Plaintiff to contact with Defendant's services, products,
materials and/or equipment.

TWELFTH AFFIRMATIVE DEFENSE

13. Defendant is informed and believes and thereon alleges that Plaintiff would
reasonably have been expected to know of the hazards of working with and/or around Defendant's
services, products, materials and/or equipment.

THIRTEENTH AFFIRMATIVE DEFENSE

14. Defendant is informed and believes and thereon alleges that the Plaintiff was
employed and trained by a company who is a member of a sophisticated group of users of
Defendant's services, products, materials and/or equipment.

FOURTEENTH AFFIRMATIVE DEFENSE

15, Plaintiffs have failed to make reasonable efforts to mitigate their injuries and/or

damages, if any.
fil
-4-
D. ZELINSKY & SONS, INC.'S ANSWER TO PLAINTIFFS' COMPLAINT
{1301193

3619-3,2595I FIFTEENTH AFFIRMATIVE DEFENSE
16. Plaintiffs' complaint and each and every cause of action contained therein are barred
by the applicable statute of limitations including, but not limited to, Code of Civil Procedure
sections 335.1, 338, 339, 340.2 and 343.
SIXTEENTH AFFIRMATIVE DEFENSE

2

3

4

3

6 17. __ Plaintiffs' action is barred by the provisions of Labor Code section 3600, ef seg.

7 SEVENTEENTH AFFIRMATIVE DEFENSE

8 18. Plaintiffs have waived and are estopped from asserting any claim against Defendant
9 | by reason of Plaintiffs' approval and consent to the risks of the matters causing the damages, if any,
10 | and Plaintiffs' acknowledgment of, acquiescence in and consent to the alleged acts or omissions, if
1] | any, of Defendant.

12 EIGHTEENTH AFF TIVE DEFENSE

13 19. This action is barred by laches as Plaintiffs unreasonably delayed in the bringing of
14 | this action and thereby prejudiced the rights of Defendant.

15 NINETEENTH AFFIRMATIVE DEFENSE

16 20. Defendant alleges that Defendant distributed and installed products in full
17 | compliance with regulations and/or specifications promulgated by the United States Government

18 and any recovery by Plaintiffs is barred as a consequence.

19 TWENTIETH AFFIRMATIVE DEFENSE
20 21, Plaintiffs are barred from asserting any claim based on breach of warranty against

21 | Defendant by reason of failure to fulfill the conditions of warranties alleged in Plaintiffs' complaint
22 | in the event such alleged warranties are proved at trial.

23 TWENTY-FIRST AFFIRMATIVE DEFENSE

24 22, Defendant alleges that Plaintiffs have waived whatever rights Plaintiffs might

25 |, otherwise have had for breach of warranty in that Plaintiffs failed to notify Defendant of any

26 | alleged breach of warranty, express or implied, and/or of any alleged defect in any product installed
27 | or distributed by Defendant within a reasonable time after Plaintiffs discovered, and/or should have

28 | discovered, any defect or nonconformity, if any existed, thereby prejudicing Defendant from being

Walrworth, 5-
ee, . D. ZELINSKY & SONS, INC.'S ANSWER TO PLAINTIFFS' COMPLAINT
sreanecarise 1130119.1

3619-3.2595mn

able to fully investigate and defend the allegations contained in Plaintiffs’ complaint.
TWENTY-SECOND AFFIRMATIVE DEFENSE
23. Defendant alleges that Plaintiffs are now estopped from claiming that any product
installed or distributed by Defendant was in any way defective or failed to conform to any alleged
warranties in that Plaintiffs failed to notify Defendant of any defect or nonconformity in any
product within a reasonable time after Plaintiffs discovered, and/or should have discovered, any
defect or nonconformity, if any existed.

TWENTY-THIRD AFFIRMATIVE DEFENSE

wo 6S SA AO HH BR BW N

24. Defendant alleges that Plaintiffs were not in privity of contract with Defendant and

2

that such lack of privity bars recovery herein upon any theory of warranty.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

np =

25. Defendant alleges that any injuries or damages suffered by Plaintiffs, the existence

uw

thereof being expressly denied, are the direct and proximate result of Plaintiff's particular,

=

idiosyncratic, peculiar or unforeseeable susceptibility to the alleged products instalied or distributed

ms
A

by Defendant, which reaction was not the result of any conduct or omission of Defendant, nor the

i
an

result of any defect in any product installed or distributed by Defendant.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
26. Defendant alleges that if Plaintiff was injured by any product installed or distributed

tt
oo “I

by Defendant, Defendant, irrespective, did not breach any duty to Plaintiffs and is not liable for any

injuries or for Plaintiffs’ claimed damages as the products when installed and distributed conformed
to the then current state-of-the-art specifications and because the then current state-of-the-art
medical, scientific and industrial knowledge, art and practice were such that Defendant did not and
could not know that the products might pose a risk of harm in normal and foreseeable use.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
27. Defendant alleges that Plaintiffs did not reasonably rely upon any act, omission or
representation of Defendant.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28, —_‘In the event that Plaintiffs are entitled to non-economic damages including, but not
-6-
D. ZELINSKY & SONS, INC'S ANSWER TO PLAINTIFFS’ COMPLAINTlimited te, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and
companionship, loss of consortium, and/or injury to reputation and humiliation, Defendant shall be
liable only for the amount of non-economic damages allocated to Defendant's percentage of fault,
and a separate judgment shall be rendered against Defendant for that amount pursuant to Civil
Code section] 431.2.
TWENTY-£IGHTH AFFIRMATIVE DEFENSE

29. Defendant alleges that Defendant was not engaged in the business of supplying,
tendering, installing, distributing and/or furnishing products and/or goods or services for use or
consumption by the general public.

TWENTY-NINTH AFFIRMATIVE DEFENSE

30. Defendant denies any and ail liability to the extent that Plaintiffs may 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 cr member in an entity in which there has been research, study, manufacturing, fabricating,
designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting,
servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding,
manufacturing for others, packaging and advertising of a certain substance, the generic name of
which is asbestos.

THIRTIETH AFFIRMATIVE DEFENSE

31. Defendant alleges that Plaintiffs herein lack legal capacity and standing to sue, are
not real parties in interest or persons with superior right to make the claims contained in the
compiaint and are thereby precluded from any recovery whatsoever. Additionally, to the extent
that Plaintiffs lack standing or proper appointment to bring the claims they are asserting, any action
taken in this matter with regard to Plaintiffs’ claims is voidable. Defendant further contends that
any declaration filed by any person asserting a survival claim contains expert opinions and
conclusions that are not supported and that the declarant is not qualified to make.
fii

Te
D. ZELINSKY & SONS, INC.'S ANSWER TO PLAINTIFFS' COMPLAINT

#301191
3619-3.2595THIRTY-FIRST AFFIRMATIVE DEFENSE

32. Defendant alleges that Plaintiffs' complaint and each and every cause of action fail

THIRTY-SECOND AFFIRMATIVE DEFENSE

33. Defendant alleges that insofar as the instant complaint is an attempt to recover

7 punitive or exemplary damages from Defendant, it violates the following United States
| Constitutional and California State Constitutional principles:

gi a Excessive fines clause of the United States Constitution, Eighth
i Amendment and Fourteenth Amendment;
10]
b. The contract clause, Article I, Section 10, clause 1, and the Fourteenth
11 Amendment of the United States Constitution;
12} c. The due process clause of the United States Constitution, Fourteenth
Amendment;
13
d. The equal protection clause of the United States Constitution;
14
e. The California Constitution due process and equal protection clauses,
1S] Article 1, Section 7(a);
i6| f. The California Constitution excessive fines clause, Article 1, Section 17.
17 WHEREFORE, Defendant D. ZELINSKY & SONS, INC. prays for judgment as follows:
18 1. That Plaintiffs takes nothing from Defendant by virtue of the complaint herein;
19) 2, That Defendant be awarded costs of suit and attorneys’ fees herein; and

3. That Defendant be granted such other and further relief as the Court may deem just

21 | and proper.
22 | Dated: February 4, 2011 WALSWORTH FRANKLIN BEVINS & McCALL, LLP
* Qu)
24 By: _ L
MICHAEL T. MCCALL
25 IAN P. DILLON
| Attorneys for Defendant
26 D. ZELINSKY & SONS, INC.
27
28
-8-

D. ZELINSKY & SONS, INC'S ANSWER TO PLAINTIFFS’ COMPLAINToe QA vA BR WwW NH

yo N fet
&R RE RBRBE BSE UR REG EARS

27

PROOF OF SERVICE

Jam employed in the County of San Francisco, State of California. I am over the age of 18

and not a party to the within action, My business address is 601 Montgomery Street, Ninth Floor,
San Francisco, California 94111-2612,

On February 4, 2011, I served the within document(s) described as:
ANSWER OF DEFENDANT

D. ZELINSKY & SONS, INC. TO PLAINTIFFS' COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOS

on the interested parties in this action as stated below:

Brayton Purcell LLP
222 Rush Landing Road
P.O. Box 6169

Novato, CA 94948

(BY ELECTRONIC FILING/SERVICE) I provided the document(s) listed above
electronically to the LexisNexis File & Serve Website to the parties on the Service List
maintained on the LexisNexis File & Serve Website for this case. If the document is
provided to LexisNexis electronically by 5:00 p.m., then the document will be deemed
served on the date that it was provided to LexisNexis. A copy of the "LexisNexis File &
Serve Filing Receipt" page will be maintained with the original document(s) in our office.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed on February 4, 2011, at San Francisco, California.

Elizabeth Saunders BK Sura ona.
7

{Type or print name} (Signature)

9.

D. ZELINSKY & SONS, INC.'S ANSWER TO PLAINTIFFS’ COMPLAINT