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

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                                LAW OFFICES

, LLP

KEENEY & CORDERY,

IMAI, TADLOCK,

SAN FRANCISCO, CA 94104

(415) 675-7000

a nw

Bruce Imai, Esq. (Bar No. 053800)

Tina Yim, Esq. (Bar No. 232597)

IMAI, TADLOCK, KEENEY & CORDERY, LLP
100 BUSH STREET, SUITE 1300 ELECTRONICALLY
SAN FRANCISCO, CA 94104-3915 FILED
Telephone: (415) 675-7000 Superior Court of California,
Facsimile: (415) 675-7008 County of San Francisco

FEB 02 2011

Attomeys for Defendant Clerk of the Court
COMMAIR MECHANICAL SERVICES BY: ANNIE PASCUAL
Deputy Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
ROBERT ROSS and JEAN ROSS, CASE NO.: CGC-10-275731
Plaintiffs, (ASBESTOS)
v. COMMAIR MECHANICAL SERVICES’S
ANSWER TO COMPLAINT FOR
C.C. MOORE AND CO. ENGINEERS; PERSONAL INJURY AND LOSS OF
Defendants, as Reflected on Exhibit 1 attached | CONSORTIUM - ASBESTOS
to the Summary Complaint herein; and DOES
1-8500, Complaint Filed: December 17, 2010
Defendants.

COMES NOW defendant COMMAIR MECHANICAL SERVICES, for itself alone, and
in answer to Plaintiffs’ unverified Complaint on file herein, and to each and every cause of action
thereof, and by virtue of the provisions of CCP § 431.30, now files its general denial to said
complaint and to each and every cause of action thereof, and in answer to all the allegations
thereof, denies that the Plaintiffs have been damaged in any sum or sums whatsoever, or at all, by
any act or omission of this answering defendant.

AND AS FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
answering defendant alleges that the Complaint and each cause of action therein, fails to state
facts sufficient to constitute a cause of action.

AND AS FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that Plaintiffs are barred from recovery by the applicable statute

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOSLAW OFFICES

IMAI, TADLOCK, KE

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of limitations, including but not limited to California Code of Civil Procedure Sections 319, 320,
337, 337.1, 337.15, 338, 339, 340(3), 340.2, 343,.and California Commercial Code Sections
2725(1) and 2725(2).

AND AS FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the Plaintiffs were themselves negligent and careless in and
about the matters and events alleged in the Complaint, and said negligence proximately
contributed to the alleged damages, if any there were, and as a result thercof, the principles of
equitable comparative negligence must be applied to bar Plaintiffs’ action.

AND AS FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the injuries, loss and/or damages alleged in said Complaint
by Plaintiffs, if any there were, were caused by the carelessness and negligence on the part of the
remaining defendants in that said carelessness and negligence on the part of said remaining
defendants proximately contributed to the happening of the subject event and the injuries, loss or
damages alleged by the Plaintiffs herein, and that any judgment rendered against this answering
defendant be reduced or nullified to the extent of such negligence and carelessness on the part of
the remaining defendants as aforesaid.

AND AS FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
answering defendant alleges that the Plaintiffs’ injuries and damages which may have been
sustained as a result of events mentioned in the Complaint, if any there were, were proximately
caused by the carelessness and negligence of Plaintiffs and the remaining defendants, and that the
respective negligence of each said party to this suit ought to be equitably apportioned among the
parties hereto.

AND AS FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that at the time of the occurrence of the matters mentioned in the
Plaintiffs’ Complaint, the Plaintiffs themselves had knowledge of those matters alleged in the
Complaint and Plaintiffs did, with said knowledge, voluntarily and of his/her free will and act,
place themselves in an unsafe and dangerous position and by reason thereof, Plaintiffs did assume
the risk and all risks ordinarily incident thereto.

2.

COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOS,LAW OFFICES

IMAI, TADLOCK, KEENEY & CORDERY, LLP

SUITE 1300

too BUSH STREET

SAN FRANCISCO, CA 94104

(415) 675-7000

AND AS FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the products referred to in the Complaint were
not used in a safe and normal manner or in the manner in which they were intended to be used,
and that such misuse proximately contributed to the injuries to Plaintiffs and the damages and
losses resulting therefrom, if any there were, and bar Plaintiffs’ recovery herein.

AND AS FOR AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that prior to and at the time referred to in Plaintiffs’ Complaint,
the products referred to in the Complaint were abused, altered, modified, or changed in a manner
that was not reasonably foreseeable, that such abuse, modification, alteration, or change
proximately contributed to the injuries to Plaintiffs and the damages and losses resulting
therefrom, if any there were, and bar Plaintiffs’ recovery herein.

AND AS FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that at all times herein mentioned, Plaintiffs were in the course
and scope of their employment and that the injuries sustained by Plaintiffs, if any there were,
were caused or contributed to by the carelessness and negligence of Plaintiffs’ employers,
entitling this answering defendant to a set-off in an amount equal to the extent of payments made
by said employers’ workers’ compensation carrier.

AND AS FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that the Plaintiffs’ employers were negligent and careless in and
about the matters alleged in the Complaint and proximately contributed to the injuries and
damages, if any there were, sustained by Plaintiffs; that by reason of the premises said employers
and their workers' compensation carriers are barred from recovery of any payments heretofore or
hereafter made to Plaintiffs pursuant to the workers’ compensation laws of the State of California

under the doctrine of Witt v. Jackson, 57 Cal.2d 57.

AND AS FOR AN ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ Complaint herein is barred by Labor
Code §3600, et seq.
iit

3.

COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOSLAW OFFICES

IMAI, TADLOCK, KEENEY & CORDERY, LLP

SUITE 1390

SAN FRANCISCO, CA 94104

(415) 675-7000

AND AS FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ Complaint herein is barred by the
Doctrine of Laches.

AND AS FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the asbestos-containing products of defendant
which are alleged to have caused injury to Plaintiffs were manufactured in compliance with and
supplied pursuant to mandatory government specifications which required the use of asbestos.
Accordingly, defendant is immune from liability for any damages suffered by Plaintiffs as a
consequence of exposure to asbestos contained in such products.

AND AS FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this Answering Defendant alleges that its compliance with all governmental standards
is a complete defense to Plaintiffs action.

AND AS FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs failed and neglected to use reasonable
care to protect themselves and to minimize the losses and damages complained of, if any there
were.

AND AS FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs are barred from asserting any claim
based on breach of warranty by reason of their failure to fulfill the conditions of warranties
alleged in the Complaint in the event such alleged warranties are proved at trial.

AND AS FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs within a reasonable time failed to give
notice to defendant of the claimed breach of warranty or defects alleged in the Complaint on file
herein in the manner and form prescribed by law.

AND AS FOR AN EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that there was no privity or other legal relationship
between this answering defendant and Plaintiffs herein sufficient to entitle Plaintiffs to any legal
telief by said defendant.

4.

COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND.
LOSS OF CONSORTIUM - ASBESTOS, LLP

LAW OFFICES

KEENEY & CORDERY.

IMAI, TADLOCK,

Ssurre 1309

100 BUSH STREET
SAN FRANCISCO, CA 94104

(418) 675-7000

AND AS FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiff's claim for punitive damages is
prohibited because it would deprive defendant of its property without due process of law under
the 14th Amendment of the United States Constitution and under the California Constitution.
See U.S. Constitution, Amendment XIV, §1; Cal. Constitution, Art. I, §7(a).

AND AS FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ claim for punitive damages is barred
by the Constitutional Prohibition against excessive fines. See U.S. Constitution, Amendment VII;
Califomia Constitution, Art. I, §17.

AND AS FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ claim for punitive damages is barred
by the Constitutional Prohibition against impairing the obligation of contracts. See U.S.
Constitution, Art. I, §X, C1.1. See California Constitution, Art. I, §9.

AND AS FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that any claim for punitive or exemplary damages
pursuant to California law herein constitutes a violation of equal protection prohibited by the
United States Constitution and the Constitution of the State of California and therefore fails to
make a claim upon which relief can be granted.

AND AS FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the complaint on file herein fails to state facts
sufficient to constitute a cause of action for punitive damages.

AND AS FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ claim for punitive damages must
consider the degree of reprehensibility of defendant's conduct, the disparity between the
compensatory damages and punitive damages and the difference between punitive damages, the
ratio of actual harm suffered by the Plaintiffs to the amount of punitive damages and the civil
sanctions that could or would be imposed for comparable conduct. These considerations were

outlined by the U.S. Supreme Court in BMW of North America vy, Gore (1996) 517 U.S. 559, and

5.
COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOSLAW OFWICKS

KEENEY & CORDERY,

, LLP

SUITE 1300

IMAI, TADLOCK,

100 BUSH STREET.
SAN FRANCISCO, CA “94104

(415) 675-7000

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Cooper Industries Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, and State Farm Mut.

Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408.

AND AS FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that, to the extent Plaintiffs may be able to prove
their allegations concerning liability, injuries and damages, which are specifically denied, they
were the result of intervening acts of superseding negligence on the part of a person or persons
over whom this defendant had neither control nor the right of control.

AND AS FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs are barred from asserting any causes
of action by the Doctrine of Waiver.

AND AS FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs are estopped from asserting any
causes of action by his conduct.

AND AS FOR A TWENTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs have failed to join necessary and
indispensable parties.

AND AS FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs have improperly joined or misjoined it
and other parties to this action.

AND AS FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that any claims that the alleged products are unsafe
or defective in any manner are preempted by federal law.

AND AS FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the products in question were used after
knowledge of the defect, if any, that existed therein.

AND AS FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that if Plaintiffs’ claims were already litigated and
resolved in any prior action, Plaintiffs’ claims herein are barred based on the primary right and res

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOS.YY & CORDERY, LLP

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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.

AND AS FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ claims are barred by the primary
tight doctrine as there is another action pending between the same parties on the same cause of
action.

AND AS FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that Plaintiffs’ claims are barred by the principles of
tes judicata.

AND AS FOR A THIRTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the substantive law of Plaintiffs domicile or a
jurisdiction other than California, is applicable.

AND AS FOR A THIRTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that, at all times herein pertinent, Plaintiffs and/or
Plaintiffs’ employers were sophisticated users of the subject products and that defendant had no
duty to warn about dangers, risk, or harm of which the sophisticated users were already aware or
of which the sophisticated users should have been aware.

AND AS FOR A THIRTY-SEVENTH, SEPARATE-AND DISTINCT 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
against Defendant.

AND AS FOR A THIRTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Plaintiffs failed to exercise due diligence to mitigate their loss, injury or damages;
accordingly, the amount of damages to which Plaintiffs are entitled, should be reduced by the
amount of damages which would have otherwise been mitigated.

AND AS FOR A THIRTY-NINTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Plaintiffs are barred from recovery in that all products installed, removed, distributed,

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOSLAW oFvicEs

, LLP

KEENEY & CORDERY.

IMAI, TADLOCK,

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sold and/or supplied by Defendant, if any, were in conformity with the existing state-of-the-art,
and as a result, these products were not defective in any manner.

AND AS FOR A FORTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, the 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 liable to Plaintiffs based on this Defendant’s alleged percentage share of the
applicable market.

AND AS FOR A FORTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Plaintiffs’ claims are or may be barred in whole or in part by collateral estoppel, issue
preclusion and/or release.

AND AS FOR A FORTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that it is immune from liability for any alleged failure to warn
Plaintiffs of material risks associated with Defendant’s products, if any, because such risks were
or should have been obvious to a reasonably prudent product user in Plaintiffs’ position, or were
otherwise a matter of common knowledge to persons in the same or similar position to Plaintiffs.

AND AS FOR A FORTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, Defendant alleges that at the time of the injuries alleged in the Complaint, Plaintiffs
were employed and were entitled to receive Workers’ Compensation benefits from their
employers’ workers’ compensation carrier; that Defendant did not control Plaintiffs’ work
activities at their worksites; that all of Plaintiffs’ employers, other than Defendant , were
negligent in and about the matters refereed to in said Complaint, that other parties over whom
Defendant had no control were negligent in and about the matters referred to in said Complaint,
and that such negligence on the part of said employers and other parties proximately and
concurrently contributed to the happening of the incidents and to the loss or damage complained
of by Plaintiff, if any there was; and as a result thereof, Defendant bears no liability for Plaintiffs’
alleged damages.

AND AS FOR A FORTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE

DEFENSE, this answering defendant alleges that Plaintiffs are barred from asserting any causes
of action by virtue of plaintiff's consent to the alleged acts or conditions.
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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOSLAW OFFICES

IMAI, TADLOCK, KE!

100

SAN FRANCISCO, CA 94104

(418) 875-7000

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AND AS FOR A FORTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering 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. This answering defendant reserves the right to assert additional defenses in the
event they would be appropriate.

AND AS FOR A FORTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that other parties and third persons not parties were
negligently or legally responsible or otherwise at fault for the damages alleged in plaintiffs’
Complaint. This defendant therefore requests that in the event of a finding of any liability in favor
of plaintiffs or settlement or judgment against this defendant, an apportionment of fault be made
among all parties as permitted by Li v. Yellow Cab Company and American Motorcycle
Association v. Superior Court by the Court or Jury. Defendant further requests a judgment and
declaration of partial indemnification and contribution against all other parties or persons in
accordance with the apportionment of fault.

AND AS FOR A FORTY-SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the products were as safe as could be designed
under the state of technology and medical and scientific knowledge existing at the time the
products were manufactured.

AND AS FOR A FORTY-EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the provisions of the “Fair Responsibility Act,
Civil Code Sections 1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable
to this action to the extent that plaintiffs’ injuries and damages, if any, were legally caused or
contributed to by the negligence or fault of persons or entities other than this answering
defendant.

WHEREFORE, this answering defendant prays for judgment as follows:

1. That Plaintiffs take nothing by way of their Complaint or any cause of action
thereof against this answering defendant;

2. That the Court award judgment in favor of this answering defendant;

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM - ASBESTOS,LAW OFFICES

, LLP

KEENEY & CORDERY

IMAI, TADLOCK,

SAN FRANCISCO, CA 94104

(415) 675-7000

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Dated: February _# , 2011

For reasonable attorneys’ fees;
For costs of suit and disbursements; and
For such other and further relief as the Court may deem proper.

IMAI, TADLOCK, KEENEY & CORDERY, LLP

ruce Imai
Attorneys for Defendant
COMMAIR MECHANICAL SERVICES

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND

LOSS OF CONSORTIUM - ASBESTOS,LAW OFFICES

IMAI, TADLOCK, KE.

100
SAN FRANCISCO, CA 94104

(415) 675-7000

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PROOF OF SERVICE USING LEXISNEXIS

I, Richard Freeman, declare:

Tam a resident of the State of California and over the age of eighteen years, and not a
party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco,
California 94104.

On the date of execution below, I electronically served the document via LexisNexis File
& Serve described as:

COMMAIR MECHANCIAL SERVICES’S ANSWER TO COMPLAINT FOR
PERSONAL INJURY AND LOSS OF CONSORTIUM- ASBESTOS

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
Web site.

I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.

Executed on February 2 ,2011 at San Francisco, California

Net Leon

Richard Freeman

Ross, Robert & Jean Ross v. Associated Insulation of California, et al..
SAN FRANCISCO SUPERIOR COURT NO. CGC-10-275731

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COMMAIR MECHANICAL SERVICES’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND.
LOSS OF CONSORTIUM - ASBESTOS,