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FRANK D. POND (BAR NO. 126191)
TIMOTHY C. PIEPER(BAR NO. 210731)
KATHLEEN B. EBRAHIMI(BAR NO. 214593) ELECTRONICALLY
POND NORTH LLP
350 South Grand Avenue, Suite 3300 cutee Poona
Los Angeles, CA 90071 County of San Francisco
Telephone: (213) 617-6170
Facsimile: (213) 623-3594 con AN, 37,4919. 1,
BY: EDNALEEN JAVIER
Attorneys for Defendant Deputy Clerk
GENUINE PARTS COMPANY
SUPERIOR COURT OF THE STATE OF CALIFORNTA
FOR THE COUNTY OF SAN FRANCISCO
JOYCE JUELCH and Case No: CGC-09-275212
NORMAN JUELCH, SR.,
GENUINE PARTS COMPANY’S ANSWER TO
Plaintiffs, COMPLAINT FOR PERSONAL INJURY AND
LOSS OF CONSORTIUM ~— ASBESTOS
vs.
ASBESTOS DEFENDANTS (B*P), Case Filed: May 20, 2009
Defendants.
COMES NOW Defendant Genuine Parts Company (“Genuine Parts” or “Answering
Defendant”) erroneously named herein as “Genuine Parts Company (GPC),” and answering
Plaintiffs’ unverified Complaint for Personal Injury and Loss of Consortium — Asbestos
(“Complaint”) on file herein, alleges as follows:
Whenever “Plaintiff” is used in this Answer, that reference embraces each Plaintiff
individually as well as collectively, whether singular or plural, masculine or feminine, plus the
words “and each of them.”
GENERAL DENIAL
Under the provisions of Section 431.30(d), California Code of Civil Procedure,
Answering Defendant denies each and every allegation of Plaintiffs’ Complaint and the whole
thereof, and denies that either Plaintiff has been damaged in any sum or amount whatsoever, or
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at all, and denies that cither Plaintiff is entitled to recover damages of any kind in any amount
whatsoever from Genuine Parts.
RESERVATION OF RIGHT TO TRIAL BY JURY
Genuine Parts reserves the right to a trial by jury.
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
Answering Defendant alleges that the Complaint, and each of the causes of action for
telief alleged therein, fails to state a cause of action against Answering Defendant.
SECOND AFFIRMATIVE DEFENSE
(Contravention of Answering Defendant’s Constitutional Rights to Due Process of Law)
The Complaint, and each cause of action thereof, which is admittedly based upon a lack
of identification of the manufacturer of, and contractor using or disturbing the alleged injury-
causing product, fails to state facts sufficient to constitute a cause of action in that Plaintiffs have
asserted a claim for relief which, if granted, would contravene Answering Defendant’s
constitutional rights to substantive and procedural due process of law as preserved for Answering
Defendant by the Fourteenth Amendment of the United States Constitution and by Article I,
Section 7, of the Constitution of the State of California.
THIRD AFFIRMATIVE DEFENSE
(Denial of Answering Defendant’s Constitutional Rights to Equal Protection of the Laws)
The Complaint, and each cause of action thereof, fails to state facts sufficient to
constitute a cause of action in that Plaintiffs have asserted claims for relief which, if granted,
would constitute a denial by this Court of Answering Defendant’s constitutional right to equal
protection of the laws as preserved by the Fourteenth Amendment of the United States
Constitution and by Article I, Section 7, of the Constitution of the State of California.
FOURTH AFFIRMATIVE DEFENSE
(Unconstitutional Taking of Private Property for Public Use Without Just Compensation)
The Complaint, and each cause of action thereof, which is admittedly based upon a lack
of identification of the manufacturer of, and contractor using or disturbing the alleged injury-
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causing product, fails to state facts sufficient to constitute a cause of action in that Plaintiffs have
asserted claims for relief which, if granted, would constitute the taking of private property for
public use without just compensation in contravention of the Fifth and Fourteenth Amendments
to the United States Constitution and by Article I, Sections 7 and 19, of the Constitution of the
State of California, and the applicable California statutes.
FIFTH AFFIRMATIVE DEFENSE
{Comparative Fault)
Answering Defendant alleges that the damages, if any, complained of by Plaintiffs, were
proximately caused by the negligence, fault, breach of contract and/or strict liability of Plaintiffs
or other defendants, firms, persons, corporations, unions, employers and entities other than
Genuine Parts, and that said negligence, fault, breach of contract and/or strict liability
comparatively reduces the percentage of any negligence, fault, breach of contract or strict
liability for which Genuine Parts is legally responsible, if any be found, which liability
Answering Defendant expressly denies.
SIXTH AFFIRMATIVE DEFENSE
(Contributory Negligence)
Answering Defendant alleges that Plaintiffs did not exercise ordinary care, caution or
prudence to avoid the incidents complained of herein, and said incidents and the injuries and
damages, if any, sustained by Plaintiffs, were directly and proximately caused and contributed to
by the carelessness and negligence of Plaintiffs.
SEVENTH AFFIRMATIVE DEFENSE
(Uncertainty)
Answering Defendant alleges that Plaintiffs’ Complaint and all purported causes of
action therein are vague, ambiguous and uncertain.
EIGHTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
Answering Defendant alleges that Plaintiffs’ Complaint and the purported causes of
action therein are barred by all statutes of limitation, including, but not limited to, the provisions
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of California Code of Civil Procedure Sections 338, 338.1, 339(1), 340, 340.2, 343, 366.1,
377.34, and California Commercial Code Section 2725.
NINTH AFFIRMATIVE DEFENSE
(Statutes of Limitations/Repose of Other States)
Answering Defendant asserts that California Code of Civil Procedure Section 361 is a bar
to this action because Plaintiffs’ claims arose in another state and by the laws of that state an
action cannot be maintained by reason of the lapse of time, and as a consequence, cannot be
maintained in this state.
TENTH AFFIRMATIVE DEFENSE
(Laches)
Defendant alleges that Plaintiffs unreasonably delayed in bringing this action and that
such delay substantially prejudiced Defendant, and that this action is therefore barred by the
Doctrine of Laches.
ELEVENTH AFFIRMATIVE DEFENSE
{Plea In Abatement/Other Action)
Answering Defendant alleges that another action is pending or has been adjudicated
between the parties on the same claims alleged in this action, and therefore, pursuant to Section
430.10(c) of the Code of Civil Procedure, this action is duplicative and vexatious and cannot be
maintained.
TWELFTH AFFIRMATIVE DEFENSE
{Forum Non Conveniens)
Answering Defendant alleges that substantial justice requires that, pursuant to Section
410.30 of the Code of Civil Procedure, this action be dismissed or stayed because the facts
alleged in the Complaint occurred outside of California and California is not the appropriate
forum for the action.
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THIRTEENTH AFFIRMATIVE DEFENSE
(Choice of Law)
Answering Defendant alleges that all of some of the claims and/or legal issues raised in
the Complaint are governed by the substantive laws of a state other than California.
FOURTEENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
Answering Defendant alleges that Plaintiffs failed to mitigate damages which Plaintiffs
contend they suffered, and Plaintiffs are therefore barred from any recovery whatsoever, or
alternatively, any damages found must be reduced in proportion to such failure to mitigate.
FIFTEENTH AFFIRMATIVE DEFENSE
(Estoppel)
Answering Defendant alleges that as a result of the acts, conduct and/or omissions of
Plaintiffs and their agents, or any of them, each cause of action presented in the Complaint is
barred under the Doctrine of Estoppel.
SIXTEENTH AFFIRMATIVE DEFENSE
(Waiver)
Answering Defendant alleges that each Plaintiff, by his acts, conduct and omissions, has
waived the claims alleged in the Complaint and in each purported cause of action alleged therein.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Acquiescence)
Plaintiffs acknowledged, ratified, consented to, and acquiesced in the alleged acts or
omissions, if any, of Answering Defendant, thus barring Plaintiffs from any relief as prayed for
herein.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Advised, Informed and Warned)
Plaintiffs were advised, informed, and warned of any potential hazards and/or dangers, if
there were any, associated with the normal or foreseeable use, handling, and storage of the
products, substances, equipment and at premises in which exposure is claimed, as well as to
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asbestos “in-place,” all as described in the Complaint, and Plaintiffs are therefore barred from.
any relief prayed for therein.
NINETEENTH AFFIRMATIVE DEFENSE
(Compliance with Statutes)
Answering Defendant alleges that all of its conduct and activities as alleged in the
Complaint conformed to statutes, government regulations, and industry standards based upon the
state of knowledge existing at all relevant times.
TWENTIETH AFFIRMATIVE DEFENSE
(Compliance with Specifications)
Answering Defendant alleges that the asbestos products or asbestos used or in place at
any premises, if any, for which Genuine Parts had any legal responsibility, were manufactured,
packaged, distributed or sold in accordance with contract specifications imposed by its co-
defendants, by the U.S. Government, by the State of California, by Plaintiff's employers, or by
third parties yet to be identified.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Military Contract Defense)
Answering Defendant alleges that the asbestos products or asbestos supplied, used or in
place at any premises, if any, for which Genuine Parts had any legal responsibility were
designed, manufactured, packaged, distributed or sold in accordance with specifications imposed
upon Genuine Parts by the U.S. Military, and thus Genuine Parts is immune from any and all
liability in the instant lawsuit. (See, e.g., McLaughlin v. Sikarsky Aircraft (1983) 148
Cal. App.3d 203.)
TWENTY-SECOND AFFIRMATIVE DEFENSE
(No Liability for Affixed Parts)
Answering Defendant alleges that any liability it is claimed to have for equipment or
products it manufactured, distributed or supplied does not extend to or include any liability
for any parts affixed to, added to, combined with, and/or used with any of Answering
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Defendant's equipment or products, which parts were manufactured, supplied, and/or distributed
by a third party.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(No Liability for Replacement/Component Parts)
Answering Defendant alleges that any liability it is claimed to have for equipment or
products it manufactured, distributed or supplied does not extend to or include any liability for
any replacement and/or component parts for such equipment or products, which replacement
and/or component parts were manufactured, supplied, and/or distributed by a third party.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(State-of-the-Art)
Answering Defendant alleges that all of its activities, products, materials and its premises
at issue herein, if any, at all times were conducted, used, produced, marketed, and operated in
conformity with the existing scientific, medical, industrial hygiene and consumer knowledge,
practice and state-of-the-art.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(No Foreseeable Risk to Plaintiffs)
The state of the medical, scientific, and industrial hygiene knowledge and practice was at
all material times such that Defendant neither breached any alleged duty owed Plaintiffs, nor
knew, nor could have known, that its activities, materials, products or premises presented a
foreseeable risk of harm to Plaintiffs in the normal and expected course of such activities and use
of such materials and products.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(No Right to Control)
Answering Defendant alleges that any loss, injury, or damage incurred by Plaintiffs was
proximately and legally caused by the negligent or willful acts or omissions of parties which
Genuine Parts neither controlled, nor had the right to control, and was not proximately caused by
any acts, omissions, or other conduct of Genuine Parts.
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Action for Relief)
Answering Defendant alleges that the causes of action, if any, attempted to be stated and
set forth in the Complaint, are barred by the provisions of the California Code of Civil Procedure
and/or other statutes of the State of California, including without limitation Code of Civil
Procedure Section 338(d).
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Misuse and Improper Use of Products)
Answering Defendant alleges that if Plaintiffs allegedly suffered injuries attributable to
the disturbance or use of any product for which Genuine Parts had any legal responsibility,
which allegations are expressly denied herein, the injuries were solely caused by, and attributable
to, the unreasonable, unforeseeable, and inappropriate purpose and improper use and abuse
which was made of said product by persons or entities other than Genuine Parts,
TWENTY-NINTH AFFIRMATIVE DEFENSE
(Due Care and Diligence)
Answering Defendant alleges that it exercised due care and diligence in all of the matters
alleged in the Complaint, and no act or omission by Genuine Parts was the proximate cause of
any damage, injury or loss to Plaintiffs.
THIRTIETH AFFIRMATIVE DEFENSE
(Alteration of Product)
Answering Defendant alleges that an insubstantial amount, if any at all, of the products
containing asbestos disturbed, used, supplied by Answering Defendant or used or in place at any
premises owned or controlled by Answering Defendant, were disturbed or used in the presence
of Plaintiff and were not supplied to Plaintiff, and if so, were substantially altered by others
and/or used in a manner inconsistent with the labeled directions.
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THIRTY-FIRST AFFIRMATIVE DEFENSE
(Equal or Greater Knowledge of Hazards)
Answering Defendant alleges that any and all products containing asbestos used,
disturbed or supplied by Answering Defendant were used, disturbed or supplied to, or for,
persons or entities who had knowledge with respect to the hazards, if any, resulting from
exposure to products containing asbestos, which is equal to or greater than, the knowledge of
Genuine Parts.
THIRTY-SECOND AFFIRMATIVE DEFENSE
(Other Parties’ Liability and Negligence)
Answering Defendant alleges that if there was any negligence or any other form of
liability on the part of any of the parties named herein, it was the sole and exclusive negligence
and liability of the other persons or entities and not of Genuine Parts.
THIRTY-THIRD AFFIRMATIVE DEFENSE
(Apportionment and Offset)
Answering Defendant is informed and believes and thereon alleges that Plaintiffs’ acts
and omissions, including the acts and omissions of Plaintiffs’ agents, servants, and/or employees
acting within the course and scope of their employment, and others, contributed to the alleged
damages, injury, or loss, if any, sustained by Plaintiffs. Answering Defendant requests that the
Court apply the principles of apportionment and offset so as to permit the Court or jury to
apportion liability according to fault and to grant Answering Defendant a corresponding offset
against any damages awarded to Plaintiffs.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
(Contribution/Equitable Indemnity)
Answering Defendant alleges that in the event it is held liable to Plaintiffs, which liability
is expressly denied herein, and any other co-defendants are likewise held liable, Genuine Parts is
entitled to a percentage contribution of the total liability from said co-defendants in accordance
with the principles of equitable indemnity and comparative contribution.
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THIRTY-FIFTH AFFIRMATIVE DEFENSE
(Assumption of Risk by Plaintiff's Employers)
Answering Defendant alleges that the Complaint and each cause of action alleged therein
are barred on the grounds that Plaintiffs employer or employers knowingly entered into and
engaged in the operations, acts and conduct alleged in the Complaint, and voluntarily and
knowingly assumed all of the risks incident to said operations, acts and conduct at the times and
places mentioned in the Complaint.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
(Assumption of Risk)
Answering Defendant alleges that Plaintiffs assumed the risk of the matters referred to in
the Complaint and that Plaintiffs knew and appreciated the nature of the risk and that Plaintiffs
voluntarily accepted this risk.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
(No Market Share)
Answering Defendant alleges that Genuine Parts did not have an appreciable share of the
market for the asbestos-containing products that allegedly caused Plaintiffs’ injuries, which
occurrence Genuine Parts expressly denies. Accordingly, Genuine Parts may not be held liable
to Plaintiffs based on its alleged share of the applicable product market.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
(Plaintiffs Fail to Join a Substantial Market Share)
The Complaint, and cach cause of action thereof, fails to state facts sufficient to
constitute a cause of action against Answering Defendant, in that Plaintiffs have failed to join a
substantial market share of the producers or products te which Plaintiffs were allegedly exposed,
THIRTY-NINTH AFFIRMATIVE DEFENSE
(Insufficient Facts to Show Substantial Market Share of Defendant)
To the extent the Complaint asserts Answering Defendant’s alleged “alternative,”
“market share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute
a cause of action against Answering Defendant.
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FORTIETH AFFIRMATIVE DEFENSE
(Independent, Intervening or Superseding Cause)
Answering Defendant alleges that if Plaintiffs suffered any injuries attributable to the use
of any product containing asbestos which was used, distributed or sold by Answering Defendant,
which allegations are expressly denied herein, the injuries were solely caused by an
unforeseeable, independent, intervening and/or superseding event beyond the control and
unrelated to any conduct of Answering Defendant. Answering Defendant’s actions, if any, were
superseded by the negligence and wrongful conduct of others.
FORTY-FIRST AFFIRMATIVE DEFENSE
(Noi a Substantial Factor)
Answering Defendant alleges that the Complaint and each cause of action therein
presented are barred on the grounds that the products, conduct, materials or premises of
defendant as referred to in Plaintiffs’ Complaint, if any, were not a substantial factor in bringing
about the injuries and damages complained of by Plaintiffs and did not increase the risk that
Plaintiffs would suffer the injuries and damages complained of therein.
FORTY-SECOND AFFIRMATIVE DEFENSE
(Insufficient Exposure)
Any exposure of Plaintiffs to Answering Defendant’s activities or products, or exposure
to asbestos or asbestos-containing products at Genuine Parts’ premises, if any, was so minimal as
to be insufficient to establish by a reasonable degree of probability that any such activity, product
or premises caused any alleged injury, damage, or loss to Plaintiffs.
FORTY-THIRD AFFIRMATIVE DEFENSE
(No Successor Liability)
Answering Defendant alleges that Genuine Parts has no liability for the acts, omissions or
otherwise of any other defendant or any other entity because Genuine Parts did not become
legally responsible for the acts of any such defendant or entity given the facts and circumstances
of the pertinent transactions and never was, nor is, a successot-in-interest, a successor-in-liability
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or an alternate entity for any other user, manufacturer, supplier, seller, distributor or premises
holder relating to asbestos or asbestos-containing products,
FORTY-FOURTH AFFIRMATIVE DEFENSE
(Lack of Privity)
Answering Defendant alleges that Plaintiffs have failed to state a cause of action in that
the Complaint fails to allege that there was privity between Answering Defendant on the one
hand, and either Plaintiff on the other, and furthermore, such privity did not exist between
Answering Defendant on the one hand, and either Plaintiff on the other.
FORTY-FIFTH AFFIRMATIVE DEFENSE
(Civil Code Section 1431.2)
Answering Defendant alleges that the provisions of California Civil Code §1431.2
(commonly referred to as “Proposition 51”) are applicable to Plaintiffs’ Complaint and to each
cause of action therein.
FORTY-SIXTH AFFIRMATIVE DEFENSE
(Workers’ Compensation Exclusive Remedy)
Answering Defendant alleges that the Complaint is barred by the exclusivity provisions
of the California workers’ compensation laws, including, but not limited to, California Labor
Code Sections 3600, ef seg.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
(Offset for Workers’ Compensation Benefits)
Answering Defendant alleges that to the extent Plaintiffs herein recovered, or in the
future may recover, any monies in connection with any claim for workers’ compensation
benefits, any amounts recovered in this action are subject to a claim by Answering Defendant for
a credit or offset.
FORTY-EIGHTH AFFIRMATIVE DEFENSE
(Contractual Indemnity)
Answering Defendant alleges that if Plaintiffs claim exposure to asbestos or asbestos-
containing products at a Genuine Parts premises, which is expressly denied herein, Genuine Parts
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contracted with Plaintiff and/or Plaintiffs employer(s) for them to fully assume all responsibility
for insuring Plaintiffs safety, to guarantee that no hazardous condition existed, and/or to warn
and protect against any such conditions during the performance of Plaintiff's work and, further,
to fully indemnify Genuine Parts, and to hold Genuine Parts harmless, for all responsibility and
liability arising out of said work and/or for any injuries allegedly incurred by Plaintiff as a result
of any of said work. Genuine Parts reserves all rights to assert these provisions of contractual
indemnity.
FORTY-NINTH AFFIRMATIVE DEFENSE
(Consent)
Answering Defendant alleges that at all times mentioned, each Plaintiff consented to the
alleged acts or omissions of Genuine Parts.
FIFTIETH AFFIRMATIVE DEFENSE
(Unusual Susceptibility)
Answering Defendant alleges that each of Plaintiffs’ injuries and damages, if any, was
proximately caused or contributed to by Plaintiffs’ unforeseeable idiosyncratic condition,
unusual susceptibility, or hypersensitivity reactions for which Genuine Parts is not liable.
FIFTY-FIRST AFFIRMATIVE DEFENSE
(Good Faith)
Answering Defendant alleges that Plaintiffs’ claim for punitive damages is barred
because Genuine Parts at all times and places mentioned in the Complaint acted reasonably and
in good faith, and without malice or oppression toward Plaintiffs.
FIFTY-SECOND AFFIRMATIVE DEFENSE
(Sophisticated User ~ Employer/Premises Owner)
Answering Defendant alleges that Genuine Parts was under no legal duty to warn
Plaintiffs of the hazard associated with the use of products containing asbestos or their existence
at any premises owned, operated, controlled or otherwise by Genuine Parts. The purchasers of
said products, Plaintiffs, Plaintiff's employers, his unions or certain third parties yet to be
identified, were knowledgeable and sophisticated users and were in a better position to warn
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Plaintiffs of the risk associated with using products containing asbestos and, assuming a warning
was required, it was the failure of such persons or entities to give such a warning that was the
proximate and superseding cause of Plaintiffs’ damages herein, if any.
FIFTY-THIRD AFFIRMATIVE DEFENSE
(Sophisticated User — Plaintiff)
Answering Defendant alleges that it was under no legal duty to warn Plaintiff of the
hazards associated with the use or handling of products containing asbestos, or of their existence
at any premises owned, operated, controlled by Genuine Parts, or where products were otherwise
claimed to be provided by Genuine Parts. Answering Defendant further alleges that Plaintiff was
a knowledgeable and sophisticated user and had or should have had knowledge of the potential
hazards associated with using products containing asbestos. Plaintiff's knowledge of the
potential hazards associated with using products containing asbestos resulted in Plaintiff
assuming the risk and being the proximate and superseding cause of Plaintiffs’ damages, if any.
Johnson v. American Standard (2008) 43 Cal.4” 56.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
(Work Hazard Precautions)
Answering Defendant alleges that Plaintiff's employer(s) was/were advised and warned
of any potential hazards and/or dangers associated with the normal and foreseeable contact with,
or storage and disposal of, the products referred to in the Complaint, in a manner which was
adequate notice to an industrial user of such product to enable it to inform its employees to take
appropriate work precautions to prevent injurious exposure.
FIFTY-FIFTH AFFIRMATIVE DEFENSE
(Failure to Join Indispensable Parties)
Plaintiffs herein have failed to jom indispensable parties (California Code of Civil
Procedure Section 389) and the Complaint is thereby defective, and Plaintiffs are thereby
precluded from any recovery whatsoever as prayed for therein.
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FIFTY-SIXTH AFFIRMATIVE DEFENSE
(No Standing Under California Civil Code Sections 1708-1710)
Plaintiffs have no standing or right to sue for fraud and conspiracy, breach of warranty,
deceit, or any cause of action under California Civil Code Sections 1708-1710, and therefore the
Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of
action against Answering Defendant.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
(Failure to Allege with Particularity)
Answering Defendant alleges that Plaintiffs’ Complaint fails to set out their claims with
sufficient particularity to permit Defendant to raise all appropriate defenses and, thus, Answering
Defendant reserves the right to add additional defenses as the factual basis for these claims
becomes known.
FIFTY-EIGHTH AFFIRMATIVE DEFENSE
(Punitive Damage Prohibited)
Answering Defendant alleges that Plaintiffs’ Complaint fails to state facts sufficient to
support an award of punitive or exemplary damages against Genuine Parts. The Complaint, to
the extent that it seeks exemplary or punitive damages, violates Genuine Parts’ right to
procedural due process under the Fourteenth Amendment of the United States Constitution, and
the Constitution of the State of California, and fails to state a cause of action upon which either
punitive or exemplary damages can be awarded.
FIFTY-NINTH AFFIRMATIVE DEFENSE
(Punitive Damages Prohibited)
Answering Defendant alleges that the Complaint, to the extent that it seeks punitive or
exemplary damages, violates Genuine Parts’ right to protection from excessive fines as provided
in the Eighth Amendment of the United States Constitution and Article I, Section 17, of the
Constitution of the State of California, and violates Genuine Parts’ right to substantive due
process as provided in the Fifth and Fourteenth Amendments of the United States and California
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Constitutions, and thus fails to state a cause of action supporting an award of punitive or
exemplary damages.
SIXTIETH AFFIRMATIVE DEFENSE
(Punitive Damages Prohibited)
The causes of action asserted herein by Plaintiffs fail to state facts sufficient to constitute
a cause of action in that Plaintiffs have asserted claims for punitive damages which, if granted,
would violate the prohibition against laws impairing the obligation of contracts set forth in
Article I, Section 10, of the United States Constitution.
SIXTY-FIRST AFFIRMATIVE DEFENSE
(Punitive Damages Prohibited)
Plaintiffs’ claims for punitive or exemplary damages against Genuine Parts, if any, are
barred by the “double jeopardy” clause of the Fifth Amendment to the United States
Constitution, as applied to the States through the Fourteenth Amendment. Genuine Parts was a
consumer of asbestos products and, as such, cannot be held liable for the acts, knowledge and
supply to Genuine Parts by manufacturers or distributors of asbestos-containing products, even if
such products were ultimately the cause of exposure to Plaintiffs.
SIXTY-SECOND AFFIRMATIVE DEFENSE
(No Concert of Action}
There is no concert of action between Answering Defendant and any of the other named
defendants. Defendants are not joint tortfeasors and accordingly, Answering Defendant may not
be held jointly and severally liable with the other named defendants.
SIXTY-THIRD AFFIRMATIVE DEFENSE
(No Alter Ego Liability)
To the extent the Complaint attempts to assert liability against Genuine Parts as the
parent, successor in interest, alter ego, and/or equitable trustee to NAPA Auto Parts, which is
expressly denied herein, the Complaint fails to state facts sufficient to constitute a cause of action
against Answering Defendant.
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SIXTY-FOURTH AFFIRMATIVE DEFENSE
(Insufficient Facts to Show Conspiracy of Defendant)
To the extent the Complaint asserts Answering Defendant’s alleged conspiracy, the
Complaint fails to state facts sufficient to constitute a cause of action against Answering
Defendant.
SIXTY-FIFTH AFFIRMATIVE DEFENSE
(No Conspiracy)
Answering Defendant alleges that Genuine Parts has no liability for the acts, omissions or
otherwise of any other defendant or entity because Genuine Parts did not become legally
responsible for the acts of any such defendant or entity by any communication, alleged, implied,
or actual, or act, action, or activity, and never was, nor is, a conspirator or co-conspirator with
any other defendant or entity.
SIXTY-SIXTH AFFIRMATIVE DEFENSE
(Insufficient Facts to Show Alternate Entity of Defendant)
To the extent the Complaint asserts an “alternate entity theory” as including Genuine
Parts, the Complaint fails to state facts sufficient to constitute a cause of action against
Answering Defendant.
SIXTY-SEVENTH AFFIRMATIVE DEFENSE
(Restatement of Second of Torts)
To the extent the Complaint, or any cause of action thereof, is based upon an allegation of
strict products liability as against Defendant, said cause of action cannot be maintained as
Answering Defendant was not a “seller” pursuant to 402A of the Restatement Second of Torts
and consequently any claim of strict liability against Answering Defendant is barred pursuant to
Monte Vista Development Corporation vs. Superior Court, 226 Cal.App. 3d 1681 (1991).
SIXTY-EIGHTH AFFIRMATIVE DEFENSE
(Waiver of Breach of Warranty)
At all times and places mentioned in the Complaint, as amended now or in the future,
Plaintiffs have waived whatever right they might otherwise have had to claim a breach of
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GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS
4325-1 199:526100.1~~
warranty, in that Plaintiffs failed to notify Answering Defendant of any alleged breach of
warranty, express or implied, and if any alleged defects existed in any asbestos or asbestos-
containing products produced or distributed by Answering Defendant, Plaintiffs discovered or
should have discovered said defect or non-conformity, if any existed, and failure to do so within
a reasonable time prejudices Answering Defendant from being able to fully investigate and
defend the allegations made against it in the Complaint, as amended now or in the future.
SIXTY-NINTH AFFIRMATIVE DEFENSE
(Fraud and Conspiracy are Not Separate Forms of Damages)
Fraud and conspiracy do not constitute a separate and distinct form of damages from
general damages, and therefore the prayer for damages for fraud and conspiracy in addition to
general damages does not sufficiently support or constitute a separate claim for damages against
Answering Defendant, but is simply cumulative and included in general damages.
SEVENTIETH AFFIRMATIVE DEFENSE
(Right to Amend)
Answering Defendant reserves the right to assert any and all additional defenses that arise
during the course of this litigation, and reserves the right to amend its answer to assert such
defenses.
WHEREFORE, Defendant prays for judgment as follows:
1. That Plaintiffs take nothing by reason of their Complaint or any claims stated
therein;
2. That Plaintiffs’ Complaint, and each cause of action contained therein, be
dismissed with prejudice against Genuine Parts;
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18
GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS
4325-1 199:526100.1~~
3.
4.
circumstances.
For costs of suit; and
For such other and further relief as the Court deems just and appropriate in the
DATED: January 25, 2010 POND NORTH LLP
By:_/s/ Timothy C. Pieper
TIMOTHY C. PIEPER
Attorneys for Defendant
GENUINE PARTS COMPANY
19
GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
4325-1 199:526100.1
CONSORTIUM — ASBESTOS~~
PROOF OF SERVICE
I declare that L am over the age of eighteen (18) and not a party to this action. My
business address is 350 South Grand Avenue Suite 3300, Los Angeles, CA 90071.
On January 25, 2010, | served the following document(s): GENUINE PARTS
COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM — ASBESTOS on the interested parties in this action as follows:
By E-Service: I electronically served the above document(s) via LexisNexis File & Serve
on the recipients designated on the Transaction Receipt located on the LexisNexis File &
Serve website.
Executed: January 25, 2010
(State) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
Oo (Federal) I declare that I am employed in the office of a member of the bar of this court
at whose direction the service was made.
/s/ Susan M. Combs
Susan M. Combs
4325-1199
GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM - ASBESTOS
4325-1 199:526100.1
Preview
~~ FRANK D. POND (BAR NO. 126191) TIMOTHY C. PIEPER(BAR NO. 210731) KATHLEEN B. EBRAHIMI(BAR NO. 214593) ELECTRONICALLY POND NORTH LLP 350 South Grand Avenue, Suite 3300 cutee Poona Los Angeles, CA 90071 County of San Francisco Telephone: (213) 617-6170 Facsimile: (213) 623-3594 con AN, 37,4919. 1, BY: EDNALEEN JAVIER Attorneys for Defendant Deputy Clerk GENUINE PARTS COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNTA FOR THE COUNTY OF SAN FRANCISCO JOYCE JUELCH and Case No: CGC-09-275212 NORMAN JUELCH, SR., GENUINE PARTS COMPANY’S ANSWER TO Plaintiffs, COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM ~— ASBESTOS vs. ASBESTOS DEFENDANTS (B*P), Case Filed: May 20, 2009 Defendants. COMES NOW Defendant Genuine Parts Company (“Genuine Parts” or “Answering Defendant”) erroneously named herein as “Genuine Parts Company (GPC),” and answering Plaintiffs’ unverified Complaint for Personal Injury and Loss of Consortium — Asbestos (“Complaint”) on file herein, alleges as follows: Whenever “Plaintiff” is used in this Answer, that reference embraces each Plaintiff individually as well as collectively, whether singular or plural, masculine or feminine, plus the words “and each of them.” GENERAL DENIAL Under the provisions of Section 431.30(d), California Code of Civil Procedure, Answering Defendant denies each and every allegation of Plaintiffs’ Complaint and the whole thereof, and denies that either Plaintiff has been damaged in any sum or amount whatsoever, or i GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ at all, and denies that cither Plaintiff is entitled to recover damages of any kind in any amount whatsoever from Genuine Parts. RESERVATION OF RIGHT TO TRIAL BY JURY Genuine Parts reserves the right to a trial by jury. FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) Answering Defendant alleges that the Complaint, and each of the causes of action for telief alleged therein, fails to state a cause of action against Answering Defendant. SECOND AFFIRMATIVE DEFENSE (Contravention of Answering Defendant’s Constitutional Rights to Due Process of Law) The Complaint, and each cause of action thereof, which is admittedly based upon a lack of identification of the manufacturer of, and contractor using or disturbing the alleged injury- causing product, fails to state facts sufficient to constitute a cause of action in that Plaintiffs have asserted a claim for relief which, if granted, would contravene Answering Defendant’s constitutional rights to substantive and procedural due process of law as preserved for Answering Defendant by the Fourteenth Amendment of the United States Constitution and by Article I, Section 7, of the Constitution of the State of California. THIRD AFFIRMATIVE DEFENSE (Denial of Answering Defendant’s Constitutional Rights to Equal Protection of the Laws) The Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action in that Plaintiffs have asserted claims for relief which, if granted, would constitute a denial by this Court of Answering Defendant’s constitutional right to equal protection of the laws as preserved by the Fourteenth Amendment of the United States Constitution and by Article I, Section 7, of the Constitution of the State of California. FOURTH AFFIRMATIVE DEFENSE (Unconstitutional Taking of Private Property for Public Use Without Just Compensation) The Complaint, and each cause of action thereof, which is admittedly based upon a lack of identification of the manufacturer of, and contractor using or disturbing the alleged injury- 2 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ causing product, fails to state facts sufficient to constitute a cause of action in that Plaintiffs have asserted claims for relief which, if granted, would constitute the taking of private property for public use without just compensation in contravention of the Fifth and Fourteenth Amendments to the United States Constitution and by Article I, Sections 7 and 19, of the Constitution of the State of California, and the applicable California statutes. FIFTH AFFIRMATIVE DEFENSE {Comparative Fault) Answering Defendant alleges that the damages, if any, complained of by Plaintiffs, were proximately caused by the negligence, fault, breach of contract and/or strict liability of Plaintiffs or other defendants, firms, persons, corporations, unions, employers and entities other than Genuine Parts, and that said negligence, fault, breach of contract and/or strict liability comparatively reduces the percentage of any negligence, fault, breach of contract or strict liability for which Genuine Parts is legally responsible, if any be found, which liability Answering Defendant expressly denies. SIXTH AFFIRMATIVE DEFENSE (Contributory Negligence) Answering Defendant alleges that Plaintiffs did not exercise ordinary care, caution or prudence to avoid the incidents complained of herein, and said incidents and the injuries and damages, if any, sustained by Plaintiffs, were directly and proximately caused and contributed to by the carelessness and negligence of Plaintiffs. SEVENTH AFFIRMATIVE DEFENSE (Uncertainty) Answering Defendant alleges that Plaintiffs’ Complaint and all purported causes of action therein are vague, ambiguous and uncertain. EIGHTH AFFIRMATIVE DEFENSE (Statute of Limitations) Answering Defendant alleges that Plaintiffs’ Complaint and the purported causes of action therein are barred by all statutes of limitation, including, but not limited to, the provisions 3 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ of California Code of Civil Procedure Sections 338, 338.1, 339(1), 340, 340.2, 343, 366.1, 377.34, and California Commercial Code Section 2725. NINTH AFFIRMATIVE DEFENSE (Statutes of Limitations/Repose of Other States) Answering Defendant asserts that California Code of Civil Procedure Section 361 is a bar to this action because Plaintiffs’ claims arose in another state and by the laws of that state an action cannot be maintained by reason of the lapse of time, and as a consequence, cannot be maintained in this state. TENTH AFFIRMATIVE DEFENSE (Laches) Defendant alleges that Plaintiffs unreasonably delayed in bringing this action and that such delay substantially prejudiced Defendant, and that this action is therefore barred by the Doctrine of Laches. ELEVENTH AFFIRMATIVE DEFENSE {Plea In Abatement/Other Action) Answering Defendant alleges that another action is pending or has been adjudicated between the parties on the same claims alleged in this action, and therefore, pursuant to Section 430.10(c) of the Code of Civil Procedure, this action is duplicative and vexatious and cannot be maintained. TWELFTH AFFIRMATIVE DEFENSE {Forum Non Conveniens) Answering Defendant alleges that substantial justice requires that, pursuant to Section 410.30 of the Code of Civil Procedure, this action be dismissed or stayed because the facts alleged in the Complaint occurred outside of California and California is not the appropriate forum for the action. iif Mf if 4 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ THIRTEENTH AFFIRMATIVE DEFENSE (Choice of Law) Answering Defendant alleges that all of some of the claims and/or legal issues raised in the Complaint are governed by the substantive laws of a state other than California. FOURTEENTH AFFIRMATIVE DEFENSE (Failure to Mitigate) Answering Defendant alleges that Plaintiffs failed to mitigate damages which Plaintiffs contend they suffered, and Plaintiffs are therefore barred from any recovery whatsoever, or alternatively, any damages found must be reduced in proportion to such failure to mitigate. FIFTEENTH AFFIRMATIVE DEFENSE (Estoppel) Answering Defendant alleges that as a result of the acts, conduct and/or omissions of Plaintiffs and their agents, or any of them, each cause of action presented in the Complaint is barred under the Doctrine of Estoppel. SIXTEENTH AFFIRMATIVE DEFENSE (Waiver) Answering Defendant alleges that each Plaintiff, by his acts, conduct and omissions, has waived the claims alleged in the Complaint and in each purported cause of action alleged therein. SEVENTEENTH AFFIRMATIVE DEFENSE (Acquiescence) Plaintiffs acknowledged, ratified, consented to, and acquiesced in the alleged acts or omissions, if any, of Answering Defendant, thus barring Plaintiffs from any relief as prayed for herein. EIGHTEENTH AFFIRMATIVE DEFENSE (Advised, Informed and Warned) Plaintiffs were advised, informed, and warned of any potential hazards and/or dangers, if there were any, associated with the normal or foreseeable use, handling, and storage of the products, substances, equipment and at premises in which exposure is claimed, as well as to 3 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ asbestos “in-place,” all as described in the Complaint, and Plaintiffs are therefore barred from. any relief prayed for therein. NINETEENTH AFFIRMATIVE DEFENSE (Compliance with Statutes) Answering Defendant alleges that all of its conduct and activities as alleged in the Complaint conformed to statutes, government regulations, and industry standards based upon the state of knowledge existing at all relevant times. TWENTIETH AFFIRMATIVE DEFENSE (Compliance with Specifications) Answering Defendant alleges that the asbestos products or asbestos used or in place at any premises, if any, for which Genuine Parts had any legal responsibility, were manufactured, packaged, distributed or sold in accordance with contract specifications imposed by its co- defendants, by the U.S. Government, by the State of California, by Plaintiff's employers, or by third parties yet to be identified. TWENTY-FIRST AFFIRMATIVE DEFENSE (Military Contract Defense) Answering Defendant alleges that the asbestos products or asbestos supplied, used or in place at any premises, if any, for which Genuine Parts had any legal responsibility were designed, manufactured, packaged, distributed or sold in accordance with specifications imposed upon Genuine Parts by the U.S. Military, and thus Genuine Parts is immune from any and all liability in the instant lawsuit. (See, e.g., McLaughlin v. Sikarsky Aircraft (1983) 148 Cal. App.3d 203.) TWENTY-SECOND AFFIRMATIVE DEFENSE (No Liability for Affixed Parts) Answering Defendant alleges that any liability it is claimed to have for equipment or products it manufactured, distributed or supplied does not extend to or include any liability for any parts affixed to, added to, combined with, and/or used with any of Answering if 6 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ Defendant's equipment or products, which parts were manufactured, supplied, and/or distributed by a third party. TWENTY-THIRD AFFIRMATIVE DEFENSE (No Liability for Replacement/Component Parts) Answering Defendant alleges that any liability it is claimed to have for equipment or products it manufactured, distributed or supplied does not extend to or include any liability for any replacement and/or component parts for such equipment or products, which replacement and/or component parts were manufactured, supplied, and/or distributed by a third party. TWENTY-FOURTH AFFIRMATIVE DEFENSE (State-of-the-Art) Answering Defendant alleges that all of its activities, products, materials and its premises at issue herein, if any, at all times were conducted, used, produced, marketed, and operated in conformity with the existing scientific, medical, industrial hygiene and consumer knowledge, practice and state-of-the-art. TWENTY-FIFTH AFFIRMATIVE DEFENSE (No Foreseeable Risk to Plaintiffs) The state of the medical, scientific, and industrial hygiene knowledge and practice was at all material times such that Defendant neither breached any alleged duty owed Plaintiffs, nor knew, nor could have known, that its activities, materials, products or premises presented a foreseeable risk of harm to Plaintiffs in the normal and expected course of such activities and use of such materials and products. TWENTY-SIXTH AFFIRMATIVE DEFENSE (No Right to Control) Answering Defendant alleges that any loss, injury, or damage incurred by Plaintiffs was proximately and legally caused by the negligent or willful acts or omissions of parties which Genuine Parts neither controlled, nor had the right to control, and was not proximately caused by any acts, omissions, or other conduct of Genuine Parts. if 7 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Action for Relief) Answering Defendant alleges that the causes of action, if any, attempted to be stated and set forth in the Complaint, are barred by the provisions of the California Code of Civil Procedure and/or other statutes of the State of California, including without limitation Code of Civil Procedure Section 338(d). TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Misuse and Improper Use of Products) Answering Defendant alleges that if Plaintiffs allegedly suffered injuries attributable to the disturbance or use of any product for which Genuine Parts had any legal responsibility, which allegations are expressly denied herein, the injuries were solely caused by, and attributable to, the unreasonable, unforeseeable, and inappropriate purpose and improper use and abuse which was made of said product by persons or entities other than Genuine Parts, TWENTY-NINTH AFFIRMATIVE DEFENSE (Due Care and Diligence) Answering Defendant alleges that it exercised due care and diligence in all of the matters alleged in the Complaint, and no act or omission by Genuine Parts was the proximate cause of any damage, injury or loss to Plaintiffs. THIRTIETH AFFIRMATIVE DEFENSE (Alteration of Product) Answering Defendant alleges that an insubstantial amount, if any at all, of the products containing asbestos disturbed, used, supplied by Answering Defendant or used or in place at any premises owned or controlled by Answering Defendant, were disturbed or used in the presence of Plaintiff and were not supplied to Plaintiff, and if so, were substantially altered by others and/or used in a manner inconsistent with the labeled directions. iif Mf if 8 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ THIRTY-FIRST AFFIRMATIVE DEFENSE (Equal or Greater Knowledge of Hazards) Answering Defendant alleges that any and all products containing asbestos used, disturbed or supplied by Answering Defendant were used, disturbed or supplied to, or for, persons or entities who had knowledge with respect to the hazards, if any, resulting from exposure to products containing asbestos, which is equal to or greater than, the knowledge of Genuine Parts. THIRTY-SECOND AFFIRMATIVE DEFENSE (Other Parties’ Liability and Negligence) Answering Defendant alleges that if there was any negligence or any other form of liability on the part of any of the parties named herein, it was the sole and exclusive negligence and liability of the other persons or entities and not of Genuine Parts. THIRTY-THIRD AFFIRMATIVE DEFENSE (Apportionment and Offset) Answering Defendant is informed and believes and thereon alleges that Plaintiffs’ acts and omissions, including the acts and omissions of Plaintiffs’ agents, servants, and/or employees acting within the course and scope of their employment, and others, contributed to the alleged damages, injury, or loss, if any, sustained by Plaintiffs. Answering Defendant requests that the Court apply the principles of apportionment and offset so as to permit the Court or jury to apportion liability according to fault and to grant Answering Defendant a corresponding offset against any damages awarded to Plaintiffs. THIRTY-FOURTH AFFIRMATIVE DEFENSE (Contribution/Equitable Indemnity) Answering Defendant alleges that in the event it is held liable to Plaintiffs, which liability is expressly denied herein, and any other co-defendants are likewise held liable, Genuine Parts is entitled to a percentage contribution of the total liability from said co-defendants in accordance with the principles of equitable indemnity and comparative contribution. if 9 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ THIRTY-FIFTH AFFIRMATIVE DEFENSE (Assumption of Risk by Plaintiff's Employers) Answering Defendant alleges that the Complaint and each cause of action alleged therein are barred on the grounds that Plaintiffs employer or employers knowingly entered into and engaged in the operations, acts and conduct alleged in the Complaint, and voluntarily and knowingly assumed all of the risks incident to said operations, acts and conduct at the times and places mentioned in the Complaint. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Assumption of Risk) Answering Defendant alleges that Plaintiffs assumed the risk of the matters referred to in the Complaint and that Plaintiffs knew and appreciated the nature of the risk and that Plaintiffs voluntarily accepted this risk. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (No Market Share) Answering Defendant alleges that Genuine Parts did not have an appreciable share of the market for the asbestos-containing products that allegedly caused Plaintiffs’ injuries, which occurrence Genuine Parts expressly denies. Accordingly, Genuine Parts may not be held liable to Plaintiffs based on its alleged share of the applicable product market. THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Plaintiffs Fail to Join a Substantial Market Share) The Complaint, and cach cause of action thereof, fails to state facts sufficient to constitute a cause of action against Answering Defendant, in that Plaintiffs have failed to join a substantial market share of the producers or products te which Plaintiffs were allegedly exposed, THIRTY-NINTH AFFIRMATIVE DEFENSE (Insufficient Facts to Show Substantial Market Share of Defendant) To the extent the Complaint asserts Answering Defendant’s alleged “alternative,” “market share,” or “enterprise” liability, the Complaint fails to state facts sufficient to constitute a cause of action against Answering Defendant. 10 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ FORTIETH AFFIRMATIVE DEFENSE (Independent, Intervening or Superseding Cause) Answering Defendant alleges that if Plaintiffs suffered any injuries attributable to the use of any product containing asbestos which was used, distributed or sold by Answering Defendant, which allegations are expressly denied herein, the injuries were solely caused by an unforeseeable, independent, intervening and/or superseding event beyond the control and unrelated to any conduct of Answering Defendant. Answering Defendant’s actions, if any, were superseded by the negligence and wrongful conduct of others. FORTY-FIRST AFFIRMATIVE DEFENSE (Noi a Substantial Factor) Answering Defendant alleges that the Complaint and each cause of action therein presented are barred on the grounds that the products, conduct, materials or premises of defendant as referred to in Plaintiffs’ Complaint, if any, were not a substantial factor in bringing about the injuries and damages complained of by Plaintiffs and did not increase the risk that Plaintiffs would suffer the injuries and damages complained of therein. FORTY-SECOND AFFIRMATIVE DEFENSE (Insufficient Exposure) Any exposure of Plaintiffs to Answering Defendant’s activities or products, or exposure to asbestos or asbestos-containing products at Genuine Parts’ premises, if any, was so minimal as to be insufficient to establish by a reasonable degree of probability that any such activity, product or premises caused any alleged injury, damage, or loss to Plaintiffs. FORTY-THIRD AFFIRMATIVE DEFENSE (No Successor Liability) Answering Defendant alleges that Genuine Parts has no liability for the acts, omissions or otherwise of any other defendant or any other entity because Genuine Parts did not become legally responsible for the acts of any such defendant or entity given the facts and circumstances of the pertinent transactions and never was, nor is, a successot-in-interest, a successor-in-liability Mf u GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ or an alternate entity for any other user, manufacturer, supplier, seller, distributor or premises holder relating to asbestos or asbestos-containing products, FORTY-FOURTH AFFIRMATIVE DEFENSE (Lack of Privity) Answering Defendant alleges that Plaintiffs have failed to state a cause of action in that the Complaint fails to allege that there was privity between Answering Defendant on the one hand, and either Plaintiff on the other, and furthermore, such privity did not exist between Answering Defendant on the one hand, and either Plaintiff on the other. FORTY-FIFTH AFFIRMATIVE DEFENSE (Civil Code Section 1431.2) Answering Defendant alleges that the provisions of California Civil Code §1431.2 (commonly referred to as “Proposition 51”) are applicable to Plaintiffs’ Complaint and to each cause of action therein. FORTY-SIXTH AFFIRMATIVE DEFENSE (Workers’ Compensation Exclusive Remedy) Answering Defendant alleges that the Complaint is barred by the exclusivity provisions of the California workers’ compensation laws, including, but not limited to, California Labor Code Sections 3600, ef seg. FORTY-SEVENTH AFFIRMATIVE DEFENSE (Offset for Workers’ Compensation Benefits) Answering Defendant alleges that to the extent Plaintiffs herein recovered, or in the future may recover, any monies in connection with any claim for workers’ compensation benefits, any amounts recovered in this action are subject to a claim by Answering Defendant for a credit or offset. FORTY-EIGHTH AFFIRMATIVE DEFENSE (Contractual Indemnity) Answering Defendant alleges that if Plaintiffs claim exposure to asbestos or asbestos- containing products at a Genuine Parts premises, which is expressly denied herein, Genuine Parts 12 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ contracted with Plaintiff and/or Plaintiffs employer(s) for them to fully assume all responsibility for insuring Plaintiffs safety, to guarantee that no hazardous condition existed, and/or to warn and protect against any such conditions during the performance of Plaintiff's work and, further, to fully indemnify Genuine Parts, and to hold Genuine Parts harmless, for all responsibility and liability arising out of said work and/or for any injuries allegedly incurred by Plaintiff as a result of any of said work. Genuine Parts reserves all rights to assert these provisions of contractual indemnity. FORTY-NINTH AFFIRMATIVE DEFENSE (Consent) Answering Defendant alleges that at all times mentioned, each Plaintiff consented to the alleged acts or omissions of Genuine Parts. FIFTIETH AFFIRMATIVE DEFENSE (Unusual Susceptibility) Answering Defendant alleges that each of Plaintiffs’ injuries and damages, if any, was proximately caused or contributed to by Plaintiffs’ unforeseeable idiosyncratic condition, unusual susceptibility, or hypersensitivity reactions for which Genuine Parts is not liable. FIFTY-FIRST AFFIRMATIVE DEFENSE (Good Faith) Answering Defendant alleges that Plaintiffs’ claim for punitive damages is barred because Genuine Parts at all times and places mentioned in the Complaint acted reasonably and in good faith, and without malice or oppression toward Plaintiffs. FIFTY-SECOND AFFIRMATIVE DEFENSE (Sophisticated User ~ Employer/Premises Owner) Answering Defendant alleges that Genuine Parts was under no legal duty to warn Plaintiffs of the hazard associated with the use of products containing asbestos or their existence at any premises owned, operated, controlled or otherwise by Genuine Parts. The purchasers of said products, Plaintiffs, Plaintiff's employers, his unions or certain third parties yet to be identified, were knowledgeable and sophisticated users and were in a better position to warn 13 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ Plaintiffs of the risk associated with using products containing asbestos and, assuming a warning was required, it was the failure of such persons or entities to give such a warning that was the proximate and superseding cause of Plaintiffs’ damages herein, if any. FIFTY-THIRD AFFIRMATIVE DEFENSE (Sophisticated User — Plaintiff) Answering Defendant alleges that it was under no legal duty to warn Plaintiff of the hazards associated with the use or handling of products containing asbestos, or of their existence at any premises owned, operated, controlled by Genuine Parts, or where products were otherwise claimed to be provided by Genuine Parts. Answering Defendant further alleges that Plaintiff was a knowledgeable and sophisticated user and had or should have had knowledge of the potential hazards associated with using products containing asbestos. Plaintiff's knowledge of the potential hazards associated with using products containing asbestos resulted in Plaintiff assuming the risk and being the proximate and superseding cause of Plaintiffs’ damages, if any. Johnson v. American Standard (2008) 43 Cal.4” 56. FIFTY-FOURTH AFFIRMATIVE DEFENSE (Work Hazard Precautions) Answering Defendant alleges that Plaintiff's employer(s) was/were advised and warned of any potential hazards and/or dangers associated with the normal and foreseeable contact with, or storage and disposal of, the products referred to in the Complaint, in a manner which was adequate notice to an industrial user of such product to enable it to inform its employees to take appropriate work precautions to prevent injurious exposure. FIFTY-FIFTH AFFIRMATIVE DEFENSE (Failure to Join Indispensable Parties) Plaintiffs herein have failed to jom indispensable parties (California Code of Civil Procedure Section 389) and the Complaint is thereby defective, and Plaintiffs are thereby precluded from any recovery whatsoever as prayed for therein. Mf if i4 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ FIFTY-SIXTH AFFIRMATIVE DEFENSE (No Standing Under California Civil Code Sections 1708-1710) Plaintiffs have no standing or right to sue for fraud and conspiracy, breach of warranty, deceit, or any cause of action under California Civil Code Sections 1708-1710, and therefore the Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action against Answering Defendant. FIFTY-SEVENTH AFFIRMATIVE DEFENSE (Failure to Allege with Particularity) Answering Defendant alleges that Plaintiffs’ Complaint fails to set out their claims with sufficient particularity to permit Defendant to raise all appropriate defenses and, thus, Answering Defendant reserves the right to add additional defenses as the factual basis for these claims becomes known. FIFTY-EIGHTH AFFIRMATIVE DEFENSE (Punitive Damage Prohibited) Answering Defendant alleges that Plaintiffs’ Complaint fails to state facts sufficient to support an award of punitive or exemplary damages against Genuine Parts. The Complaint, to the extent that it seeks exemplary or punitive damages, violates Genuine Parts’ right to procedural due process under the Fourteenth Amendment of the United States Constitution, and the Constitution of the State of California, and fails to state a cause of action upon which either punitive or exemplary damages can be awarded. FIFTY-NINTH AFFIRMATIVE DEFENSE (Punitive Damages Prohibited) Answering Defendant alleges that the Complaint, to the extent that it seeks punitive or exemplary damages, violates Genuine Parts’ right to protection from excessive fines as provided in the Eighth Amendment of the United States Constitution and Article I, Section 17, of the Constitution of the State of California, and violates Genuine Parts’ right to substantive due process as provided in the Fifth and Fourteenth Amendments of the United States and California Mf 15 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ Constitutions, and thus fails to state a cause of action supporting an award of punitive or exemplary damages. SIXTIETH AFFIRMATIVE DEFENSE (Punitive Damages Prohibited) The causes of action asserted herein by Plaintiffs fail to state facts sufficient to constitute a cause of action in that Plaintiffs have asserted claims for punitive damages which, if granted, would violate the prohibition against laws impairing the obligation of contracts set forth in Article I, Section 10, of the United States Constitution. SIXTY-FIRST AFFIRMATIVE DEFENSE (Punitive Damages Prohibited) Plaintiffs’ claims for punitive or exemplary damages against Genuine Parts, if any, are barred by the “double jeopardy” clause of the Fifth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment. Genuine Parts was a consumer of asbestos products and, as such, cannot be held liable for the acts, knowledge and supply to Genuine Parts by manufacturers or distributors of asbestos-containing products, even if such products were ultimately the cause of exposure to Plaintiffs. SIXTY-SECOND AFFIRMATIVE DEFENSE (No Concert of Action} There is no concert of action between Answering Defendant and any of the other named defendants. Defendants are not joint tortfeasors and accordingly, Answering Defendant may not be held jointly and severally liable with the other named defendants. SIXTY-THIRD AFFIRMATIVE DEFENSE (No Alter Ego Liability) To the extent the Complaint attempts to assert liability against Genuine Parts as the parent, successor in interest, alter ego, and/or equitable trustee to NAPA Auto Parts, which is expressly denied herein, the Complaint fails to state facts sufficient to constitute a cause of action against Answering Defendant. Mf 16 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ SIXTY-FOURTH AFFIRMATIVE DEFENSE (Insufficient Facts to Show Conspiracy of Defendant) To the extent the Complaint asserts Answering Defendant’s alleged conspiracy, the Complaint fails to state facts sufficient to constitute a cause of action against Answering Defendant. SIXTY-FIFTH AFFIRMATIVE DEFENSE (No Conspiracy) Answering Defendant alleges that Genuine Parts has no liability for the acts, omissions or otherwise of any other defendant or entity because Genuine Parts did not become legally responsible for the acts of any such defendant or entity by any communication, alleged, implied, or actual, or act, action, or activity, and never was, nor is, a conspirator or co-conspirator with any other defendant or entity. SIXTY-SIXTH AFFIRMATIVE DEFENSE (Insufficient Facts to Show Alternate Entity of Defendant) To the extent the Complaint asserts an “alternate entity theory” as including Genuine Parts, the Complaint fails to state facts sufficient to constitute a cause of action against Answering Defendant. SIXTY-SEVENTH AFFIRMATIVE DEFENSE (Restatement of Second of Torts) To the extent the Complaint, or any cause of action thereof, is based upon an allegation of strict products liability as against Defendant, said cause of action cannot be maintained as Answering Defendant was not a “seller” pursuant to 402A of the Restatement Second of Torts and consequently any claim of strict liability against Answering Defendant is barred pursuant to Monte Vista Development Corporation vs. Superior Court, 226 Cal.App. 3d 1681 (1991). SIXTY-EIGHTH AFFIRMATIVE DEFENSE (Waiver of Breach of Warranty) At all times and places mentioned in the Complaint, as amended now or in the future, Plaintiffs have waived whatever right they might otherwise have had to claim a breach of i? GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ warranty, in that Plaintiffs failed to notify Answering Defendant of any alleged breach of warranty, express or implied, and if any alleged defects existed in any asbestos or asbestos- containing products produced or distributed by Answering Defendant, Plaintiffs discovered or should have discovered said defect or non-conformity, if any existed, and failure to do so within a reasonable time prejudices Answering Defendant from being able to fully investigate and defend the allegations made against it in the Complaint, as amended now or in the future. SIXTY-NINTH AFFIRMATIVE DEFENSE (Fraud and Conspiracy are Not Separate Forms of Damages) Fraud and conspiracy do not constitute a separate and distinct form of damages from general damages, and therefore the prayer for damages for fraud and conspiracy in addition to general damages does not sufficiently support or constitute a separate claim for damages against Answering Defendant, but is simply cumulative and included in general damages. SEVENTIETH AFFIRMATIVE DEFENSE (Right to Amend) Answering Defendant reserves the right to assert any and all additional defenses that arise during the course of this litigation, and reserves the right to amend its answer to assert such defenses. WHEREFORE, Defendant prays for judgment as follows: 1. That Plaintiffs take nothing by reason of their Complaint or any claims stated therein; 2. That Plaintiffs’ Complaint, and each cause of action contained therein, be dismissed with prejudice against Genuine Parts; iif Mf iif iif Mf Mf 18 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1~~ 3. 4. circumstances. For costs of suit; and For such other and further relief as the Court deems just and appropriate in the DATED: January 25, 2010 POND NORTH LLP By:_/s/ Timothy C. Pieper TIMOTHY C. PIEPER Attorneys for Defendant GENUINE PARTS COMPANY 19 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF 4325-1 199:526100.1 CONSORTIUM — ASBESTOS~~ PROOF OF SERVICE I declare that L am over the age of eighteen (18) and not a party to this action. My business address is 350 South Grand Avenue Suite 3300, Los Angeles, CA 90071. On January 25, 2010, | served the following document(s): GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM — ASBESTOS on the interested parties in this action as follows: By E-Service: I electronically served the above document(s) via LexisNexis File & Serve on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. Executed: January 25, 2010 (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Oo (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. /s/ Susan M. Combs Susan M. Combs 4325-1199 GENUINE PARTS COMPANY’S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 4325-1 199:526100.1