Answer: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                Selman Breitman Lip
ATTORNEYS AT LAW

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188334.1 166.27609

MARK A. LOVE (SBN 162028)
mlove@selmanbreitman.com

SARAH G. THOMAS (SBN 261989) ELECTRONICALLY
sthomas@selmanbreitman.com FILED
SELMAN BREITMAN L LP Superior Court of California,
33 New Montgomery, Sixth Floor County of San Francisco
San Francisco, CA 94105-4537 FEB 24 2010

Telephone: (415) 979-0400

Facsimile: (415) 979-2099 Clerk of the Court

BY: ANNIE PASCUAL
Deputy Clerk
Attorneys for Defendant puy

DOUGLASS INSULATION COMPANY, INC.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO (UNLIMITED JURISDICTION)
JOYCE JUELCH, et al., CASE NO, CGC-09-275212
Plaintiffs,
ANSWER TO COMPLAINT
Vv.

ASBESTOS DEFENDANTS (BP),

Defendants.

Defendant DOUGLASS INSULATION COMPANY, INC. (herein "Defendant")
hereby answers the complaint on file herein, on its own behalf and on behalf of no other
entity, as follows (the terms “plaintiff or "plaintiffs" as used in this answer include the
decedent in a wrongful death complaint):

1. Pursuant to the provisions of Code of Civil Procedure section 431.30(d),
defendant denies each and every allegation contained in the complaint, and the whole
thereof, and in particular, denies that plaintiff was injured and damaged in the manner or
sum alleged, or in any other manner or sum whatsoever or at all.

FIRST AFFIRMATIVE DEFENSE
2. Neither the complaint nor any purported causes of action alleged therein

state facts sufficient to constitute a cause of action as against defendant.

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SECOND AFFIRMATIVE DEFENSE

3. 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.

THIRD AFFIRMATIVE DEFENSE

4. The tortious conduct alleged in the complaint as to defendant, if any, was not
a substantial factor in bringing about the alleged injuries, and therefore was nota
contributing cause, but was superseded by tortious and/or intentional conduct by one or
more third parties whose misconduct was an independent, intervening, sole and proximate
cause of plaintiff's alleged injuries or damages, if any.

FOURTH AFFIRMATIVE DEFENSE

5. At all relevant times, plaintiff knowingly, voluntarily and unreasonably
undertook to encounter each of the risks and hazards alleged in the complaint, and this
assumption of said risks bars any recovery herein, or diminishes plaintiff's recovery to the
extent that plaintiff's damages are attributable to his assumption of risk.

FIFTH AFFIRMATIVE DEFENSE

6. The alleged defect and/or dangerous condition, if any, was so trivial in nature
that it could not be considered a dangerous and/or a defective condition, thus barring any
action by the plaintiff against defendant.

SIXTH AFFIRMATIVE DEFENSE

7. Plaintiffs right to recovery from defendant is limited pursuant to Civil Code
sections 1431.1, et seg. ("Proposition 51").

SEVENTH AFFIRMATIVE DEFENSE

8. Plaintiff named defendant in the complaint without reasonable identification
of what acts, if any, defendant participated in, and without a reasonable investigation.
Pursuant to Code of Civil Procedure section 128.7, defendant requests reasonable

expenses, including attorneys' fees incurred by defendant as a result of the maintenance by

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plaintiff of this bad faith action.
EIGHTH AFFIRMATIVE DEFENSE
9. The complaint, and each cause of action therein, is barred by the applicable
statute of limitations including but not limited to Code of Civil Procedure sections 335.1,
337.1, 337.15, 338, 340.2, 343 and 361, and Commercial Code section 2725.
NINTH AFFIRMATIVE DEFENSE

10. Plaintiff unreasonably delayed in bringing this action, without good cause
therefor, and thereby has prejudiced defendant as a direct and proximate result of such
delay, such that this action is barred by the Doctrine of Laches and by Code of Civil
Procedure sections 583.110 et seg.

TENTH AFFIRMATIVE DEFENSE

li. Plaintiff was negligent in and about the matters alleged in the complaint and
this negligence proximately caused, in whole or in part, the damages alleges in the
complaint. In the event plaintiff is entitled to any damages, the amount of these damages
should be reduced by the comparative fault of plaintiff and any person whose negligent
acts or omissions are imputed to plaintiff.

ELEVENTH AFFIRMATIVE DEFENSE

12. Plaintiff is barred from recovery herein by reason of the fact that, at all
relevant times, plaintiff was not using defendant's products for the purpose intended or in
the manner intended, and said conduct on the part of plaintiff constituted an unforeseeable
misuse of said products.

TWELFTH AFFIRMATIVE DEFENSE

13. Plaintiff's injuries and damages, if any, were caused wholly or in part by
post-distribution modifications, alterations or other changes in some manner in defendant's
products, and such modifications, alterations or changes were not performed by,
participated in, consented to, or approved by defendant, or any agent or employee of

defendant, thus barring plaintiff's recovery herein.

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THIRTEENTH AFFIRMATIVE DEFENSE

14. Defendant's products were manufactured and/or distributed in strict
accordance with specifications supplied by persons or entities other than defendant. Any
defects in said product were caused by deficiencies in the specifications supplied to
defendant, which deficiencies were neither known to defendant nor discoverable by
defendant with the exercise of reasonable care.

FOURTEENTH AFFIRMATIVE DEFENSE

15. | The complaint, and each cause of action alleged therein, is barred by the
equitable doctrines of waiver and estoppel.

FIFTEENTH AFFIRMATIVE DEFENSE

16. Plaintiff's employers were sophisticated users of defendant's products and
said employers provided said products to their employees, including plaintiff, im a
negligent, careless, and reckless manner which constitutes an intervening and superseding
cause of plaintiff's injuries and damages, if any.

SIXTEENTH AFFIRMATIVE DEFENSE

17. Defendant denies any and all liability to the extent that plaintiff asserts
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 any entity that plaintiff alleges were the proximate
or legal cause and/or contributed to plaintiff's injuries or damages.

SEVENTEENTH AFFIRMATIVE DEFENSE

18. Any recovery against defendant is barred because defendant's products were
manufactured in compliance with the specifications established by the United States
government and/or an agency, department or division thereof, and that the United States
government's knowledge of any and all health hazards was equal to, if not greater than,

that of defendant, who was a contractor to the United States government.

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EIGHTEENTH AFFIRMATIVE DEFENSE

19, Plaintiff is barred from recovery in that all products produced by defendant
were in conformity with the existing "state of the art" of reasonably acceptable medical,
scientific, and industrial knowledge, art, and practice and, as a result, these products were
not defective in any manner, and as such, defendant is not liable for plaintiff's injuries and
damages, if any.

NINETEENTH AFFIRMATIVE DEFENSE

20. Plaintiff's recovery, if any, from defendant must be reduced by the amount of
any workers’ compensation benefits paid by or on behalf of plaintiff's employers, as the
negligence or other tortious conduct of said employers caused and contributed to plaintiff's
injuries and damages, if any.

TWENTIETH AFFIRMATIVE DEFENSE

21. Plaintiff is barred from any recovery herein as against defendant to the
extent that, pursuant to Labor Code section 3600, et seq., plaintiff's exclusive remedy as
against defendant with respect to the incident and damages complained of would be and is
pursuant to the workers’ compensation laws of the State of California and subject to
resolution only in a workers’ compensation forum.

TWENTY-FIRST AFFIRMATIVE DEFENSE

22. Defendant is entitled to a set-off of all amounts paid to the plaintiff by other
defendants pursuant to pro tanto settlements.

TWENTY-SECOND AFFIRMATIVE DEFENSE

23. Defendant did not know and had no reasonable grounds for knowing, at the
time any of its products containing asbestos were manufactured, at the time the plaintiff
was allegedly exposed thereto, or at any other time, that any of said products could be
hazardous, and further, defendant had no reason to know or believe that any of its products
could be hazardous, in that any asbestos fibers contained in its products are locked in,
encapsulated, and firmly bound and therefore do not release dangerous amounts of

asbestos fiber.

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188334.1 166.27609

TWENTY-THIRD AFFIRMATIVE DEFENSE

24. Plaintiff failed to exercise due diligence to mitigate his loss, injuries or
damages, thus reducing the amount of damages to which he is entitled by the amount of
damages which would otherwise have been mitigated.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. Neither the complaint nor any causes of action therein state facts sufficient to

entitle plaintiff to an award of punitive damages against defendant.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

26. The imposition of punitive damages would deprive defendant of its property
without due process of law under the Constitutions of both the United States and
California, would violate the United States Constitution's prohibition against laws
impairing the obligation of contracts and would constitute a criminal fine or penalty.

TWENTY-SEXTH AFFIRMATIVE DEFENSE

27. The complaint, and each cause of action alleged therein, is barred by the
doctrines of res judicata.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28. — Any loss, injury or damage incurred by plaintiff was proximately caused by
the negligent or willful acts or omissions of plaintiff's employers whom defendant neither
controlled nor had the right to control, and such tortuous conduct by plaintiff's employers
was a superceding and intervening cause of plaintiff's injuries and damages, if any.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

29. This Court lacks jurisdiction over this action pursuant to Code of Civil
Procedure section 410.30.

TWENTY-NINTH AFFIRMATIVE DEFENSE

30. Plaintiff has improperly split his causes of action and seek to maintain a
duplicative lawsuit based on the same facts and circumstances as a lawsuit previously

filed.

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188334.1 166.27609

THIRTIETH AFFIRMATIVE DEFENSE

31. Defendant presently has insufficient knowledge or information upon which
to form a belief as to whether it may have additional, as yet unknown, affirmative
defenses. Defendant reserves herein the right to assert additional affirmative defense in the
event discovery indicates it would be appropriate.

WHEREFORE, having fully responded to the subject complaint, answering

defendant prays:
lL. That plaintiff take nothing by reason of his complaint on file herein;
2 That this defendant has judgment of dismissal;
3. For reasonable attorneys’ fees and costs incurred herein; and
4 For such other and further relief as the court may deem just and proper.

DATED: February 24, 2010 SELMAN BREITMAN LLP

By:_/S/_ MARK A. LOVE
MARK A. LOVE
SARAH G. THOMAS
Attorneys for Defendant
DOUGLASS INSULATION COMPANY, INC,

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ANSWER TO COMPLAINTSelman Breitman Lip
ATTORNEYS AT LAW

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188334.1 166.27609

Joyce Juelch, et al. v. Asbestos Defendants (BP)
San Francisco Superior Court Case CGC-09-275212

Defendant: DOUGLASS INSULATION COMPANY, INC.
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

lam employed in the County of San Francisco, State of California. I am over the
age of 18 years and am not a party to the within action. My business address is 33 New
Montgomery, Sixth Floor, San Francisco, CA 94105.

On February 24, 2010, | electronically served the document(s) via Lexis Nexis File
& Serve described as

1. ANSWER TO COMPLAINT

2. OBJECTION TO HEARING BEFORE A DISCOVERY COMMISSIONER AS A

TEMPORARY JUDGE

3. DEMAND FOR JURY TRIAL
on the recipients designated on the Transaction Receipt located on the Lexis Nexis File &
Serve website.

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

Executed on February 24, 2010, at San Francisco, California.

=

EVANGELINE CONANAN

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ANSWER TO COMPLAL