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JEFFERY J. FADEFF, ESQ. (SBN 111497)
RESHMA A. BAJAJ, ESQ. (SBN 227106)
BASSI EDLIN, HUIE & BLUM LLP ELECTRONICALLY
351 California Street, Suite 200
San Francisco, CA 94104 coed HD mia
pelephone: aS) es County of San Francisco ‘
‘acsimile: ~
JUN 30 2009
Attorneys for Defendant GORDON PARK-LI} Clerk
J.T. THORPE & SON, INC. BY: RAYMOND bape NS ok
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
JOYCE JUELCH and NORMAN JUELCH, ) Case No. CGC-09-275212
SR., )
) DEFENDANT J. T. THORPE & SON,
Plaintiffs, ) INC.'S ANSWER TO COMPLAINT
) FOR PERSONAL INJURY AND LOSS OF
Vs. ) CONSORTIUM - ASBESTOS
)
ASBESTOS DEFENDANTS (B*P) As )
Reflected on Exhibits B, B-1, C; and DOES 1- )
8500, )
)
Defendants. )
)
)
Defendant J. T. THORPE & SON, INC. ("Defendant"), in answer to the complaint of
Plaintiffs JOYCE JUELCH and NORMAN JUELCH, SR.., ("Plaintiffs”), admits, denies and
alleges as follows:
Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, Defendant!
denies each and every, all and singular, both generally and specifically, the allegations of
Plaintiffs’ unverified complaint, and further denies that Plaintiffs have been damaged as alleged
or at all, by reason of any act or omission on the part of Defendant or its agents, servants, or
employees.
FIRST DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSDefendant alleges that Plaintiffs’ Complaint fails to state facts sufficient to constitute a cause of
action against Defendant.
SECOND DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs have failed to join all persons and parties needed for a just
adjudication of this action.
THIRD DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ claims are barred by laches, waiver and/or estoppel.
FOURTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that this Court does not have subject matter jurisdiction over this action or
alternatively that the Court lacks jurisdiction due to insufficiency of process or the service
thereof and/or improper venue.
FIFTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs have failed to commence this action within the time required by
the applicable statute of limitations, including but not limited to California Code of Civil
Procedure sections 337.1,337.15, 338(a), 338(d), 340(3), 340.2, and 343.
SIXTH DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that
Plaintiffs were careless and negligent in and about the matters alleged in the complaint and said
carelessness and negligence of Plaintiffs proximately contributed to the happening of the
accident, incident and occurrence alleged in the complaint, and to the injuries, losses and
damages complained of therein, if any there were, and said contributory negligence bars a
recovery or proportionately reduces any potential verdict.
SEVENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSDefendant alleges that Plaintiffs failed to mitigate his alleged damages, if there were any.
EIGHTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiffs were injured by products used or installed at Defendant's
premises, which is denied, such injury occurred after the expiration of the useful safe life of such
products,
NINTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiffs suffered any damages, which is denied, such damages were
the sole and proximate result of an unavoidable accident.
TENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiffs suffered any damages, which is denied, such damages were
caused and/or contributed to by Plaintiffs’ misuse of the product or products and Plaintiffs”
recovery should be barred or reduced accordingly.
ELEVENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiffs suffered any damages, which is denied, such damages were
solely and proximately caused by material modifications or alterations of the product or products
involved in the action after it or they left the custody and control of Defendant.
TWELFTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that any asbestos-containing product or products alleged to have caused
Plaintiffs’ injuries were manufactured, used, installed and/or distributed in mandatory
compliance with specifications promulgated by the United States government under its war
powers, as set forth in the U.S. Constitution, and that any recovery by Plaintiffs is barred as a
consequence of the exercise of those sovereign powers.
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSTHIRTEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that any product or products alleged by Plaintiffs to have caused their injuries
were manufactured, installed, used or distributed in compliance with specifications provided by
third parties to Defendant and/or in compliance with all applicable healthy and safety statutes
and regulations.
FOURTEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiffs suffered any damages, which is denied, the risk of any such
damages was not foreseeable to Defendant. Defendant at all times material hereto acted in
accordance with the industry custom and practice and the state of scientific knowledge available
to manufacturers, installers and/or users of asbestos-containing products.
FLETEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it received no notice of any dangerous, hazardous or defective condition
or any breach of warranty, either expressed or implied.
SIXTEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs' claims against Defendant are barred by the holding of Privette
vy. Superior Court (1993) 5 Cal. 4th 689.
SEVENTEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs' exposure to any asbestos-containing product or products
allegedly used or installed at Defendant's premises was minimal and insufficient to establish the
probability that said product or products were a legal cause of Plaintiffs’ alleged injuries.
EIGHTEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that this action is barred by the applicable state and/or federal industrial
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSinsurance and/or Worker's Compensation laws, including, but not limited to, California Labor
Code Sections 3601 and 3602, and 33 U.S.C. Section 905.
NINETEENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at the time of injuries alleged in Plaintiffs’ Complaint, Plaintiffs were
employed by persons other than Defendant; was entitled to receive and did receive Worker's
Compensation benefits from said employer(s) or their insurers; and that said employer(s) were
negligent and careless in and about the matters referred to in Plaintiffs’ complaint. Defendant is,
therefore, entitled to set- off any such benefits received by Plaintiffs against any judgment
tendered in Plaintiffs’ favor and said employer(s) are barred from any recovery by lien or
otherwise against Defendant in connection with this matter.
TWENTIETH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs voluntarily and knowingly assumed the alleged risks and
hazards incident to the alleged operations, acts and conduct at the times and places alleged in
Plaintiffs’ Complaint and that Plaintiffs’ said acts proximately caused and contributed to the
alleged damages, if any there were.
TWENTY-FIRST DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times relevant to the matters alleged in Plaintiffs’ complaint,
Plaintiffs’ employers were sophisticated users of asbestos-containing products and said
employers’ negligence in providing said products to its employees was a superseding and/or
intervening cause of Plaintiffs’ injuries or damages, if any there were.
TWENTY-SECOND DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that there was no concert of action among Defendant and other defendants to
this action and that any alleged liability or responsibility of Defendant, which is denied, is
minimal in proportion to the alleged liability and responsibility of other persons and entities
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSincluding the other defendants herein. Plaintiffs should therefore be limited to seeking recovery
from Defendant for the proportion of alleged injuries and damages for which Defendant is
allegedly liable or responsible, al! such alleged liability and responsibility being denied.
TWENTY-THIRD DEFENSE
AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, to the extent that the
complaint alleged that Defendant has "market share” liability or "enterprise liability,” the
complaint fails to state facts sufficient to constitute a cause of action against Defendant.
TWENTY-FOURTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it is entitled to set-off any settlement, judgments, or similar amounts
received by Plaintiffs, against any judgment rendered against it in Plaintiffs’ favor.
TWENTY -FIFTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges, in accordance with Section 1431.2 of the Civil Code, known as the Fair
Responsibility Act of 1986, that if Plaintiffs’ Complaint states a cause of action, each Defendant
is liable, if at all, only for those non-economic damages allocated to each Defendant in direct
proportion to each defendant's percentage of fault, if any. Defendant requests a judicial
determination of the amount of non-economic damages, if any. Defendant also requests a
judicial determination of the amount of non-economic damages, if any, allocated to Defendant in
direct proportion to Defendant's percentage of fault, if any, and a separate judgment in
conformance herewith.
TWENTY-SIXTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the damages and injuries, if any, were proximately caused or contributed
to, in whole or in part, by the negligence or fault of other acts and/or omissions of persons or
entities other than Defendant, for which Defendant is not responsible.
TWENTY-SEVENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSDefendant alleges that neither the complaint nor any purported causes of action alleged therein
state facts sufficient to entitle Plaintiffs to an award of punitive damage against Defendant.
TWENTY-EIGHTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ instant action is barred or, alternatively, merged into a prior
cause of action for which Plaintiffs have previously sued upon, recovered, and dismissed with
prejudice, thereby requiring a complete extinguishment of the instant action due to the doctrines
of res judicata and collateral estoppel.
TWENTY-NINTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ instant action is barred and discharged, pursuant to Title 11
U.S.C. Section 1141(d), and that Plaintiffs’ action violates the pending injunction against such
claims that exists, by operation of law, pursuant to Title 11 U.S.C. section 524(a)(2).
THIRTIETH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that its products were manufactured, produced, supplied, sold and distributed
pursuant to contract with the United States government, and that any recovery by Plaintiffs is
barred by consequence of the judicially recognized doctrine of immunity conferred upon that
contractual relationship and any occurrence arising therefrom.
THIRTY-FIRST DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the allegations of the Complaint are uncertain, vague and ambiguous.
THIRTY-SECOND DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the allegations of the complaint should be dismissed pursuant to Sections
583.210 through 583.250, and 583.410 through 583.430 of the California Code of Civil
Procedure, and other applicable code sections.
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSTHIRTY-THIRD DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it does not have and never has had a successor, successor-in-business,
successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor,
predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest,
partner, subsidiary, whole or partial or ownership or membership relationship with the entity
upon which Plaintiffs base their allegations of liability.
THIRTY-FOURTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it did not have a sufficient market share with respect to products and
materials which Plaintiffs allege caused the alleged injuries and damages. Defendant may not be
held liable to Plaintiffs for any alleged share of said market or upon any theory premised upon
market-share liability.
THIRTY-FIFTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that if Plaintiffs sustained injuries or damages attributable to the use of any
product researched, tested, studied, manufactured, fabricated, inadequately researched, designed,
inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, sold,
inspected, serviced, installed, contracted for installation, repaired, marketed, warranted,
arranged, rebranded, manufactured for others, packaged, advertised and/or which contained or
lacked warnings by Defendant, which allegations are expressly denied, the injuries or damages
were proximately caused by the unreasonable and unforeseeable misuse, abuse, alteration, or
improper maintenance of the product by Plaintiffs or by others.
THIRTY-SIXTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times mentioned, Plaintiffs consented to the alleged acts of
Defendant.
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSTHIRTY-SEVENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that all claims asserted by Plaintiffs were proximately caused by a
superseding, intervening cause,
THIRTY-EIGHTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the entire complaint and each cause of action thereof, is barred on the
grounds that the products or materials referred to in the complaint, if any, were not a substantial
factor in bringing about the injuries and damages alleged by Plaintiffs.
THIRTY-NINTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs are not entitled to an award of punitive or exemplary damages
in this action. Such an award would be unconstitutional unless Defendant is accorded the
safeguards provided under the Constitution of the State of California and the Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution.
FORTIETH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that to the extent Plaintiffs’ claims arise out of contract, Plaintiffs’ claims do
not state facts sufficient to entitle Plaintiffs to an award of punitive or exemplary damages
against Defendant.
FORTY-FIRST DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiff. at all times mentioned, were not in privity of contract with
Defendant, and that said lack of privity bars any recovery by Plaintiffs against Defendant under
any theory of breach of warranty.
FORTY-SECOND DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs failed to give adequate and timely notice of any alleged breach
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSof warranty.
FORTY-THIRD DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ entire complaint is barred by the Statute of Frauds to the extent
that any such causes of action are based on alleged oral agreements.
FORTY-FOURTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that all products and materials researched, tested, studied, manufactured,
fabricated, inadequately researched, designed, inadequately tested, labeled, assembled,
distributed, leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for
installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others,
packaged, advertised and/or which contained or lacked warnings by Defendant, which
allegations are expressly denied, were not defective in any manner, as said products and
materials conformed with the state-of-the-art in existence at all times mentioned in the
complaint.
FORTY-FIFTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that its alleged actions, which are the subject of the complaint, were lawful.
FORTY-SIXTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that its alleged actions, which are the subject of the complaint, were justified.
FORTY-SEVENTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs lacks standing to sue Defendant.
FORTY-EIGHTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that any danger or defect on the premises was obvious or could have been
observed by Plaintiffs’ exercise of reasonable care.
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSFORTY-NINTH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it warned Plaintiffs’ employers of all dangers on the premises known to
Defendant.
FIFTIETH DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs have improperly split his causes of action and seeks to maintain
a duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed.
FIFTY-FIRST DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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. Defendant
reserves the right to assert additional defenses in the event discovery indicates that they would be!
appropriate.
FIFTY-SECOND DEFENSE
AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times relative to the matters alleged in the complaint, each of
Plaintiffs’ employers, other than defendant, were sophisticated users of asbestos-containing
products and each of them knew or should have known of the risk or danger of asbestos such that
Defendant had no duty to warn Plaintiffs or his employers pursuant to the holding of Johnson v.
American Standard. Inc. (2008) 43 Cal. 4th 56.
WHEREFORE, Defendant prays for judgment as follows:
L That Plaintiffs take nothing by reason of his complaint herein;
2. That judgment be entered in favor of Defendant;
3. For costs of suit incurred herein;
4, For appropriate credits and set-offs arising out of any payment of Workers’
Compensation benefits as alleged above;
5. For a judicial determination of the amount of non-economic damages, if any,
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSallocated to Defendant in direct proportion to J. T. THORPE & SON, INC.'s percentage of fault,
if any, and a separate judgment in conformance therewith; and
6. For such other and further relief as the Court may deem just and proper.
Date: June 30, 2009 BASSL EDLIN, HUIE & BLUM LLP
/S/ RESHMA A, BAJAJ
By:
RESHMA A. BAJAJ, ESQ. (SBN 227106)
Attorneys for Defendant
J.T. THORPE & SON, INC.
BASSI, EDLIN, HUIE & BLUM LLP
351 California Street, Suite 200
San Francisco, CA 94104
Telephone:(415) 397-9006
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DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY
AND LOSS OF CONSORTIUM - ASBESTOSRe: Joyce Juelch, et al. y. Asbestos Defendants (B*P), et al.
San Francisco County Superior Court Case No. CGC-09-275212
PROOF OF SERVICE ~ ELECTRONIC TRANSMISSION
STATE OF CALIFORNIA/COUNTY OF San Francisco
fam a citizen of the United States and an employee in the County of San Francisco. |
am over the age of eighteen (18) years and not a party to the within action. My business
address is BASSI, EDLIN, HUIE & BLUM LLP, 351 California Street, Suite 200, San
Francisco, California 94104.
On the date executed below, I electronically served the document(s) via LexisNexis
File & Serve, described below, on the recipients designated on the Transaction Receipt located
on the LexisNexis File & Serve website.
DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT
FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS
On the following parties:
PLEASE SEE SERVICE LIST PROVIDED BY LEXISNEXIS
I declare under penalty of perjury that the foregoing is true and correct and that this
document is executed on June 30, 2009, at San Francisco, California.
/st ALISHA C. PEMBER
ALISHA C. PEMBER
97893
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PROOF OF SERVICE
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JEFFERY J. FADEFF, ESQ. (SBN 111497) RESHMA A. BAJAJ, ESQ. (SBN 227106) BASSI EDLIN, HUIE & BLUM LLP ELECTRONICALLY 351 California Street, Suite 200 San Francisco, CA 94104 coed HD mia pelephone: aS) es County of San Francisco ‘ ‘acsimile: ~ JUN 30 2009 Attorneys for Defendant GORDON PARK-LI} Clerk J.T. THORPE & SON, INC. BY: RAYMOND bape NS ok SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO JOYCE JUELCH and NORMAN JUELCH, ) Case No. CGC-09-275212 SR., ) ) DEFENDANT J. T. THORPE & SON, Plaintiffs, ) INC.'S ANSWER TO COMPLAINT ) FOR PERSONAL INJURY AND LOSS OF Vs. ) CONSORTIUM - ASBESTOS ) ASBESTOS DEFENDANTS (B*P) As ) Reflected on Exhibits B, B-1, C; and DOES 1- ) 8500, ) ) Defendants. ) ) ) Defendant J. T. THORPE & SON, INC. ("Defendant"), in answer to the complaint of Plaintiffs JOYCE JUELCH and NORMAN JUELCH, SR.., ("Plaintiffs”), admits, denies and alleges as follows: Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, Defendant! denies each and every, all and singular, both generally and specifically, the allegations of Plaintiffs’ unverified complaint, and further denies that Plaintiffs have been damaged as alleged or at all, by reason of any act or omission on the part of Defendant or its agents, servants, or employees. FIRST DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 97852 5 DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSDefendant alleges that Plaintiffs’ Complaint fails to state facts sufficient to constitute a cause of action against Defendant. SECOND DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs have failed to join all persons and parties needed for a just adjudication of this action. THIRD DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs’ claims are barred by laches, waiver and/or estoppel. FOURTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that this Court does not have subject matter jurisdiction over this action or alternatively that the Court lacks jurisdiction due to insufficiency of process or the service thereof and/or improper venue. FIFTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs have failed to commence this action within the time required by the applicable statute of limitations, including but not limited to California Code of Civil Procedure sections 337.1,337.15, 338(a), 338(d), 340(3), 340.2, and 343. SIXTH DEFENSE AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs were careless and negligent in and about the matters alleged in the complaint and said carelessness and negligence of Plaintiffs proximately contributed to the happening of the accident, incident and occurrence alleged in the complaint, and to the injuries, losses and damages complained of therein, if any there were, and said contributory negligence bars a recovery or proportionately reduces any potential verdict. SEVENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 97852 2 DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSDefendant alleges that Plaintiffs failed to mitigate his alleged damages, if there were any. EIGHTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiffs were injured by products used or installed at Defendant's premises, which is denied, such injury occurred after the expiration of the useful safe life of such products, NINTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiffs suffered any damages, which is denied, such damages were the sole and proximate result of an unavoidable accident. TENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiffs suffered any damages, which is denied, such damages were caused and/or contributed to by Plaintiffs’ misuse of the product or products and Plaintiffs” recovery should be barred or reduced accordingly. ELEVENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiffs suffered any damages, which is denied, such damages were solely and proximately caused by material modifications or alterations of the product or products involved in the action after it or they left the custody and control of Defendant. TWELFTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that any asbestos-containing product or products alleged to have caused Plaintiffs’ injuries were manufactured, used, installed and/or distributed in mandatory compliance with specifications promulgated by the United States government under its war powers, as set forth in the U.S. Constitution, and that any recovery by Plaintiffs is barred as a consequence of the exercise of those sovereign powers. 97852 3 DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSTHIRTEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that any product or products alleged by Plaintiffs to have caused their injuries were manufactured, installed, used or distributed in compliance with specifications provided by third parties to Defendant and/or in compliance with all applicable healthy and safety statutes and regulations. FOURTEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiffs suffered any damages, which is denied, the risk of any such damages was not foreseeable to Defendant. Defendant at all times material hereto acted in accordance with the industry custom and practice and the state of scientific knowledge available to manufacturers, installers and/or users of asbestos-containing products. FLETEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it received no notice of any dangerous, hazardous or defective condition or any breach of warranty, either expressed or implied. SIXTEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs' claims against Defendant are barred by the holding of Privette vy. Superior Court (1993) 5 Cal. 4th 689. SEVENTEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs' exposure to any asbestos-containing product or products allegedly used or installed at Defendant's premises was minimal and insufficient to establish the probability that said product or products were a legal cause of Plaintiffs’ alleged injuries. EIGHTEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that this action is barred by the applicable state and/or federal industrial 97852 4 DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSinsurance and/or Worker's Compensation laws, including, but not limited to, California Labor Code Sections 3601 and 3602, and 33 U.S.C. Section 905. NINETEENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that at the time of injuries alleged in Plaintiffs’ Complaint, Plaintiffs were employed by persons other than Defendant; was entitled to receive and did receive Worker's Compensation benefits from said employer(s) or their insurers; and that said employer(s) were negligent and careless in and about the matters referred to in Plaintiffs’ complaint. Defendant is, therefore, entitled to set- off any such benefits received by Plaintiffs against any judgment tendered in Plaintiffs’ favor and said employer(s) are barred from any recovery by lien or otherwise against Defendant in connection with this matter. TWENTIETH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs voluntarily and knowingly assumed the alleged risks and hazards incident to the alleged operations, acts and conduct at the times and places alleged in Plaintiffs’ Complaint and that Plaintiffs’ said acts proximately caused and contributed to the alleged damages, if any there were. TWENTY-FIRST DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that at all times relevant to the matters alleged in Plaintiffs’ complaint, Plaintiffs’ employers were sophisticated users of asbestos-containing products and said employers’ negligence in providing said products to its employees was a superseding and/or intervening cause of Plaintiffs’ injuries or damages, if any there were. TWENTY-SECOND DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that there was no concert of action among Defendant and other defendants to this action and that any alleged liability or responsibility of Defendant, which is denied, is minimal in proportion to the alleged liability and responsibility of other persons and entities 97852 5 DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSincluding the other defendants herein. Plaintiffs should therefore be limited to seeking recovery from Defendant for the proportion of alleged injuries and damages for which Defendant is allegedly liable or responsible, al! such alleged liability and responsibility being denied. TWENTY-THIRD DEFENSE AS A SEPARATE DEFENSE TO EACH CAUSE OF ACTION, to the extent that the complaint alleged that Defendant has "market share” liability or "enterprise liability,” the complaint fails to state facts sufficient to constitute a cause of action against Defendant. TWENTY-FOURTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it is entitled to set-off any settlement, judgments, or similar amounts received by Plaintiffs, against any judgment rendered against it in Plaintiffs’ favor. TWENTY -FIFTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges, in accordance with Section 1431.2 of the Civil Code, known as the Fair Responsibility Act of 1986, that if Plaintiffs’ Complaint states a cause of action, each Defendant is liable, if at all, only for those non-economic damages allocated to each Defendant in direct proportion to each defendant's percentage of fault, if any. Defendant requests a judicial determination of the amount of non-economic damages, if any. Defendant also requests a judicial determination of the amount of non-economic damages, if any, allocated to Defendant in direct proportion to Defendant's percentage of fault, if any, and a separate judgment in conformance herewith. TWENTY-SIXTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that the damages and injuries, if any, were proximately caused or contributed to, in whole or in part, by the negligence or fault of other acts and/or omissions of persons or entities other than Defendant, for which Defendant is not responsible. TWENTY-SEVENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 97852 6 DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSDefendant alleges that neither the complaint nor any purported causes of action alleged therein state facts sufficient to entitle Plaintiffs to an award of punitive damage against Defendant. TWENTY-EIGHTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs’ instant action is barred or, alternatively, merged into a prior cause of action for which Plaintiffs have previously sued upon, recovered, and dismissed with prejudice, thereby requiring a complete extinguishment of the instant action due to the doctrines of res judicata and collateral estoppel. TWENTY-NINTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs’ instant action is barred and discharged, pursuant to Title 11 U.S.C. Section 1141(d), and that Plaintiffs’ action violates the pending injunction against such claims that exists, by operation of law, pursuant to Title 11 U.S.C. section 524(a)(2). THIRTIETH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that its products were manufactured, produced, supplied, sold and distributed pursuant to contract with the United States government, and that any recovery by Plaintiffs is barred by consequence of the judicially recognized doctrine of immunity conferred upon that contractual relationship and any occurrence arising therefrom. THIRTY-FIRST DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that the allegations of the Complaint are uncertain, vague and ambiguous. THIRTY-SECOND DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that the allegations of the complaint should be dismissed pursuant to Sections 583.210 through 583.250, and 583.410 through 583.430 of the California Code of Civil Procedure, and other applicable code sections. 97852 7 DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSTHIRTY-THIRD DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it does not have and never has had a successor, successor-in-business, successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor, predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest, partner, subsidiary, whole or partial or ownership or membership relationship with the entity upon which Plaintiffs base their allegations of liability. THIRTY-FOURTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it did not have a sufficient market share with respect to products and materials which Plaintiffs allege caused the alleged injuries and damages. Defendant may not be held liable to Plaintiffs for any alleged share of said market or upon any theory premised upon market-share liability. THIRTY-FIFTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that if Plaintiffs sustained injuries or damages attributable to the use of any product researched, tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised and/or which contained or lacked warnings by Defendant, which allegations are expressly denied, the injuries or damages were proximately caused by the unreasonable and unforeseeable misuse, abuse, alteration, or improper maintenance of the product by Plaintiffs or by others. THIRTY-SIXTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that at all times mentioned, Plaintiffs consented to the alleged acts of Defendant. 97852 8 DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSTHIRTY-SEVENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that all claims asserted by Plaintiffs were proximately caused by a superseding, intervening cause, THIRTY-EIGHTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that the entire complaint and each cause of action thereof, is barred on the grounds that the products or materials referred to in the complaint, if any, were not a substantial factor in bringing about the injuries and damages alleged by Plaintiffs. THIRTY-NINTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs are not entitled to an award of punitive or exemplary damages in this action. Such an award would be unconstitutional unless Defendant is accorded the safeguards provided under the Constitution of the State of California and the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. FORTIETH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that to the extent Plaintiffs’ claims arise out of contract, Plaintiffs’ claims do not state facts sufficient to entitle Plaintiffs to an award of punitive or exemplary damages against Defendant. FORTY-FIRST DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiff. at all times mentioned, were not in privity of contract with Defendant, and that said lack of privity bars any recovery by Plaintiffs against Defendant under any theory of breach of warranty. FORTY-SECOND DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs failed to give adequate and timely notice of any alleged breach 97852 9 DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSof warranty. FORTY-THIRD DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs’ entire complaint is barred by the Statute of Frauds to the extent that any such causes of action are based on alleged oral agreements. FORTY-FOURTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that all products and materials researched, tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised and/or which contained or lacked warnings by Defendant, which allegations are expressly denied, were not defective in any manner, as said products and materials conformed with the state-of-the-art in existence at all times mentioned in the complaint. FORTY-FIFTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that its alleged actions, which are the subject of the complaint, were lawful. FORTY-SIXTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that its alleged actions, which are the subject of the complaint, were justified. FORTY-SEVENTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs lacks standing to sue Defendant. FORTY-EIGHTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that any danger or defect on the premises was obvious or could have been observed by Plaintiffs’ exercise of reasonable care. 97852 10 DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSFORTY-NINTH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it warned Plaintiffs’ employers of all dangers on the premises known to Defendant. FIFTIETH DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs have improperly split his causes of action and seeks to maintain a duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed. FIFTY-FIRST DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 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. Defendant reserves the right to assert additional defenses in the event discovery indicates that they would be! appropriate. FIFTY-SECOND DEFENSE AS A SEPARATE AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that at all times relative to the matters alleged in the complaint, each of Plaintiffs’ employers, other than defendant, were sophisticated users of asbestos-containing products and each of them knew or should have known of the risk or danger of asbestos such that Defendant had no duty to warn Plaintiffs or his employers pursuant to the holding of Johnson v. American Standard. Inc. (2008) 43 Cal. 4th 56. WHEREFORE, Defendant prays for judgment as follows: L That Plaintiffs take nothing by reason of his complaint herein; 2. That judgment be entered in favor of Defendant; 3. For costs of suit incurred herein; 4, For appropriate credits and set-offs arising out of any payment of Workers’ Compensation benefits as alleged above; 5. For a judicial determination of the amount of non-economic damages, if any, 97852 i DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSallocated to Defendant in direct proportion to J. T. THORPE & SON, INC.'s percentage of fault, if any, and a separate judgment in conformance therewith; and 6. For such other and further relief as the Court may deem just and proper. Date: June 30, 2009 BASSL EDLIN, HUIE & BLUM LLP /S/ RESHMA A, BAJAJ By: RESHMA A. BAJAJ, ESQ. (SBN 227106) Attorneys for Defendant J.T. THORPE & SON, INC. BASSI, EDLIN, HUIE & BLUM LLP 351 California Street, Suite 200 San Francisco, CA 94104 Telephone:(415) 397-9006 97852 12 DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOSRe: Joyce Juelch, et al. y. Asbestos Defendants (B*P), et al. San Francisco County Superior Court Case No. CGC-09-275212 PROOF OF SERVICE ~ ELECTRONIC TRANSMISSION STATE OF CALIFORNIA/COUNTY OF San Francisco fam a citizen of the United States and an employee in the County of San Francisco. | am over the age of eighteen (18) years and not a party to the within action. My business address is BASSI, EDLIN, HUIE & BLUM LLP, 351 California Street, Suite 200, San Francisco, California 94104. On the date executed below, I electronically served the document(s) via LexisNexis File & Serve, described below, on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. DEFENDANT J. T. THORPE & SON, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS On the following parties: PLEASE SEE SERVICE LIST PROVIDED BY LEXISNEXIS I declare under penalty of perjury that the foregoing is true and correct and that this document is executed on June 30, 2009, at San Francisco, California. /st ALISHA C. PEMBER ALISHA C. PEMBER 97893 13 PROOF OF SERVICE