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LAW OFFICES OF
PRINDLE, DECKER & AMARO LLP
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PRINDLE, DECKER & AMARO, LLP
Kenneth B, Prindle, Esq. (Bar No, 82691)
Thomas A. Steig, Esq. (Bar No. 119341) ELECTRONICALLY
369 Pine Street, Suite 800 FILED
San Francisco CA 94104 Superior Court of California,
Tel. No.: (415) 788-8354 County of San Francisco
Fax No.: (415) 788-3625 JUL 01 2009
CINS-1280 GORDON PARK-LI, Clerk
Attorneys for Defendant, BY: RAYMOND K. WONG
CONSOLIDATED INSULATION, INC. Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO - COURT OF UNLIMITED JURISDICTION
JOYCE JUELCH AND NORMAN JUELCH,
SR.,
CASE NO. CGC-09-275212
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) DEFENDANT CONSOLIDATED
Plaintiffs, ) INSULATION, INC.’S ANSWER TO
) PLAINTIFF JOYCE TUELCE?S
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ASBESTOS DEFENDANTS (BP)
. Complaint Filed : May 20,2009
Defendants. Trial Date : None
COMES NOW Defendant, CONSOLIDATED INSULATION, INC. (hereinafter referred to
as "this answering defendant"), for itself alone, and in answer to the unverified Complaint of
plaintiffs herein, as amended, now or in the future, or otherwise, admits, denies, and alleges as
follows:
1. Pursuant to the provisions of California Code of Civil Procedure § 431.30, this
answering defendant denies each, every and all of the allegations of the unverified complaint, and
each and every cause of action contained therein, and the whole thereof, and denies that plaintiffs
has/have sustained damages in the sum or sums alleged, in any other sum or sums whatsoever, or at
all.
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FIRST AFFIRMATIVE DEFENSE
2. The Complaint and each and every cause of action alleged therein fails to state facts
sufficient to constitute a cause of action against this answering defendant, and fails to state a claim
upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
3. The Complaint and every cause of action alleged therein is/are barred by California
Code of Civil Procedure §§ 335, 338(1), 338(4), 339(1), 340(1), 34003), 340.2, 343, 353, by
Commercial Code § 2725, and by all other applicable statute of limitations provisions, and plaintiffs
is/are thereby precluded from recovering the damages and other relief sought in the Complaint.
THIRD AFFIRMATIVE DEFENSE
4, The applicable laws, rules, statutes or regulations, including but not limited to, Code
of Civil Procedure §§ 340(3) and 340.2, and sister state statutes of limitations and statutes of repose
borrowed by Code of Civil Procedure § 361, requiring the institution of suit within a certain period
of time following its accrual, were not complied with, and, therefore, plaintiffs’ claims are barred as
a matter of law and equity.
FOURTH AFFIRMATIVE DEFENSE
5, Plaintiffs unreasonably delayed in bringing this action, without good cause, and
has/have thereby prejudiced the rights of this answering defendant. The Complaint and all claims
alleged therein are therefore barred by the doctrine of laches.
FIFTH AFFIRMATIVE DEFENSE
6. Plaintiffs have waived any and all claims which he seeks to assert in this action,
and/or are estopped by their conduct from asserting or recovering on such claims.
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SIXTH AFFIRMATIVE DEFENSE
7. Prior to the filing of this action, plaintiffs fully, completely and unequivocally setiled
and compromised their claims for relief against this answering defendant.
SEVENTH AFFIRMATIVE DEFENSE
8. At all times and places mentioned in the Complaint, as amended, now or in the future,
plaintiffs were negligent and careless and failed to exercise that degree of care and caution for their
own safety which a reasonably prudent person would have used under the same or similar
circumstances, in that, among other things, plaintiffs so negligently and carelessly stationed,
conducted and maintained themselves, failed to utilize safety devices and other equipment or
facilities supplied to them and/or existing as part of their environment, and failed to observe open
and obvious conditions, so as to directly and proximately cause and contribute to plaintiffs’ injuries
and damages, if any. Plaintiffs are therefore precluded from obtaining any recovery against this
answering defendant. Alternatively, any negligence or other legal fault attributable to plaintiffs
thereby comparatively reduces the percentage of negligence or fault, if any, attributable to this
answering defendant, which this answering defendant expressly denies.
EIGHTH AFFIRMATIVE DEFENSE
9. This answering defendant alleges that no act, omission, conduct or product
attributable to it caused or contributed to any injuries or damages sustained by plaintiffs, if any, and
that if plaintiffs’ injuries and damages, if any, were not solely caused by plaintiffs’ own acts,
omissions and other conduct, then said injuries and damages were proximately caused and
contributed to by the negligence and/or other tortious acts, omissions, conduct and products of
persons or entities other than this answering defendant, and that said negligence and/or other legal
fault was an intervening and superseding cause of plaintiffs’ injuries and damages, if any. Any
damages recoverable by plaintiffs must therefore be diminished in proportion to the amount of fault
attributable to these other persons and entities, and there should be an apportionment of the harm and
damage claimed by plaintiffs, if any.
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DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF’S COMPLAINT
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NINTH AFFIRMATIVE DEFENSE
10. That at all times and places referred to in the Complaint, as amended, now or in the
future, plaintiffs were, or in the exercise of reasonable care should have been, aware of all
circumstances and conditions then and there existing and prevailing, but nonetheless knowingly,
voluntarily, and in full appreciation of the potential consequences thereof, exposed themselves to
whatever risks and dangers may have been attendant to such circumstances and conditions, thereby
freely and voluntarily assuming any and ail risk(s) incident thereto, and thereby barring plaintiffs
from recovery herein.
T H IVE DEFENSE
11. At all times and places relevant to this action, plaintiffs failed to make reasonable
efforts to mitigate their injuries, loss and/or damages, if any.
ELEVENTH AFFIRMATIVE DEFENSE
12, Atall times material to this action, plaintiffs failed to use the products alleged in the
complaint in a foreseeable, proper and safe manner which would have otherwise been anticipated
and expected of an ordinary user. Such misuse of the products described in the Complaint by
plaintiffs was the sole, proximate and legal cause of plaintiffs’ injuries and damages, if any, thereby
barring plaintiffs from recovery herein.
TWELFTH AFFIRMATIVE DEFENSE
13. At all times material to this action, the products described in the Complaint which
allegedly injured plaintiffs were, without this answering defendant’s knowledge, approval or consent,
and contrary to instructions and/or the custom and practice in the industry, altered, re-designed,
modified, or subjected to other treatment which substantially changed their character, such that they
were not being used, functioning and/or performing in a manner intended by their manufacturer,
and/or were not in substantially the same or similar condition as when they left the manufacturer's
possession. If there was a defect in said products, which supposition is specifically denied by this
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DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF'S COMPLAINT
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answering defendant, such defect resulted solely from such alteration, re-design, modification,
treatment or other change therein, and not from any act or omission by this answering defendant,
thereby barring plaintiffs from recovery herein as against this answering defendant.
THIRTEENTH AFFIRMATIVE DEFENSE
14, Plaintiffs are barred from recovery herein in that any and all products allegedly
supplied or distributed by this answering defendant were manufactured and/or produced in
conformity with specifications established and provided by the United States Government pursuant
to its War Powers as set forth in the United States Constitution, and that any defect in said products
was caused by deficiencies in said specifications, and not by any action or conduct on the part of this
answering defendant.
FOURTEENTH AFFIRMATIVE DEFENSE
15. Plaintiffs are barred from recovery herein in that all products allegedly manufactured
or distributed by this answering defendant were in conformity with the existing state of the medical,
scientific, and industrial knowledge, art, and practices, and, as a result, said products were not
defective in any manner.
FIFTEENTH AFFIRMATIVE DEFENSE
16, At all times and places mentioned in the complaint, as amended, now or in the future,
plaintiffs were not in privity of contract with this answering defendant, and said lack of privity bars
plaintiffs’ recovery herein upon any theory of warranty. —
SIXTEENTH AFFIRMATIVE DEFENSE
17. Plaintiffs failed to give this answering defendant timely and reasonable notice of any
alleged breach of contract or warranty, thereby barring plaintiffs from recovery herein.
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SEVENTEENTH AFFIRMATIVE DEFENSE
18. Atall times and places relevant to this action, plaintiffs waived whatever right they
might otherwise have had to claim a breach of warranty, in that plaintiffs failed to notify this
answering defendant of any alleged breach of warranty, express or implied, and if any alleged defects
existed in any product(s) manufactured or distributed by this answering defendants, plaintiffs
discovered or should have discovered said defect or non-conformity, if any existed, and failure to do
so within a reasonable period of time prejudices this 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.
EIGHTEENTH AFFIRMATIVE DEFENSE
19. Plaintiffs’ breach of warranty claims are barred by written disclaimers and/or
exclusions contained on or in the labels or packaging of the products at issue in this action.
NINETEENTH AFFIRMATIVE DEFENSE
20. The Complaint, as amended now or in the future, and each and every cause of action
contained therein, fails to state facts sufficient to constitute “fraud,” “oppression,” or “malice,” as
these terms are used in Civil Code § 3294, and therefore fails to fails to state a claim that would
support punitive damages.
TWENTIETH AFFIRMATIVE DEFENSE
21, The imposition of punitive/exemplary damages against this corporate defendant for
acts of a former and/or predecessor corporate entity would be a violation of due process of law, and
against public policy, under the various laws of the State of California and the United States.
TWENTY-FIRST AFFIRMATIVE DEFENSE
22. This answering defendant alleges that California Civil Code § 3294 violates the Due
Process and/or Equal Protection clauses of the California and/or United States Constitutions, is void
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DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFE’S COMPLAINT
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because it is vague and ambiguous, constitutes an undue burden on interstate commerce, and violates
the Eighth Amendment to the United States Constitution. Accordingly, plaintiffs are barred from
any recovery thereunder.
TWENTY-SECOND AFFIRMATIVE DEFENSE
23. The liability of this answering defendant, if any, shall be apportioned in accordance
with the provisions of Civil Code §§ 1431, ef seg., commonly known as the Fair Responsibility Act
of 1986.
TWENTY-THIRD AFFIRMATIVE DEFENSE
24. ‘This answering defendant alleges on information and belief that at all times and
places relevant to this action, plaintiff was an employee of an employer or employers whose names
are presently unknown, and that any injuries or damages alleged in the Complaint, as amended now
or in the future, occurred while plaintiff was acting within the course of scope of such employment.
This answering defendant further alleges on information and belief that plaintiff's employer or
employers provided plaintiff with certain benefits in compliance with the terms and provisions of the
Workers’ Compensation Laws of the State of California. The nature and extent of such Workers’
Compensation benefiis that may have been provided is unknown, but when said benefits are
determined, leave to amend this answer and to set forth the details of said benefits will be sought. It
is further alleged that any and all injuries or damages complained of by plaintiff were solely and
proximately caused by, or resulted from, the negligence and carelessness of plaintiff's employer, his
co-workers, and/or his employer's agents, servants or employees. Therefore, this answering
defendant is entitled to an offset of any such benefits received or to be received by plaintiff against
any judgment which may be rendered in favor of said plaintiff, pursuant to the doctrine of Witt v.
Jackson (1961) 57 Cal.2d $7. ,
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TWENTY-FOURTH AFFIRMATIVE DEFENSE
25. Plaintiffs are barred from recovery herein if at any time, past or present, plaintiff was
or is an employee of this answering defendant, including any of this answering defendant’s divisions
or subsidiaries, thereby creating conditions of compensation. The right to recover Workers’
Compensation benefits is plaintiffs’ sole and exclusive remedy as against this answering defendant,
pursuant to the provisions of California Labor Code §§ 3300, et seq., and/or §§ 3600, et seq.. This
answering defendant is entitled to a judicial determination of any such employer-employee
relationship establishing such exclusive remedy and bar to recovery prior to any hearing or trial on
the merits in this matter.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
26. Even if plaintiff was exposed to any asbestos-containing products manufactured or
distributed by this answering defendant, which supposition is expressly denied, plaintiff's exposure
to said products would have been so minimal as to be insufficient to constitute a “substantial
contributing factor” in the causation of plaintiffs’ alleged injuries or disease, if any.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
27. This answering defendant is not liable for any alleged failure to warn of any risks,
dangers or hazards in the use of any asbestos-containing products or other goods that it allegedly
distributed, sold, supplied or delivered to plaintiff's employer(s), because said employer(s) had as
great, if not greater, knowledge about the nature of any risks, dangers or hazards than did this
answering defendant, and, unlike this answering defendant, said employer(s) were in a position to
warn persons exposed to such products of any such risks, dangers or hazards.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
28. This answering defendant alleges that at all times relevant to the matters alleged in the
complaint, as amended now er in the future, all of plaintiff's employers, other than this answering
defendant were sophisticated and knowledgeable users of asbestos products and said employers'
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negligence in providing said product(s} fo their employees in a negligent, careless and reckless
manner was a superseding cause of plaintiffs’ injuries, if any.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE,
29. To the extent the Complaint, or any cause of action alleged therein, is based upon an
allegation of strict products liability as against this answering defendant, said cause of action cannot
be maintained as this answering defendant was not a "seller" within the meaning of § 402A of the
Restatement (Second) of Torts, and consequently any claim of strict liability against this answering
defendant is barred pursuant to Monte Vista Development Corporation vs. Superior Court (1991)
226 Cal App.3d 1681.
TWENTY-NINTH AFFIRMATIVE DEFENSE
30. This answering defendant denies that it was a successor, successor in business,
successor in product line or a portion thereof, assign, predecessor, predecessor in business,
predecessor in product line or a portion thereof, parent, alter-ego, subsidiary, wholly or partially
owned by, or the whole or partial owner of or member in any entity owning property, maintaining
premises, researching, studying, manufacturing, fabricating, designing, labeling, assembling,
distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting
for installation, repairing, marketing, warranting, re-branding, manufacturing for others, packaging
and advertising any asbestos/silica products. This answering defendant is therefore not liable for any
acts, whether they be active or passive, or omissions of any entities to which this answering
defendant is or may be alleged to be a successor-in-interest, predecessor-in-interest, alter ego, or the
like.
THIRTIETH AFFIRMATIVE DEFENSE
31. This answering defendant did not and does not have a substantial percentage of the
market for any asbestos-containing products which allegedly caused the injuries and damages claimed
by plaintiffs. Furthermore, the asbestos-containing products which allegedly caused the injuries and
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DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF'S COMPLAINT
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damages claimed by plaintiffs are not “fungible” in nature. As such, this answering defendant may not
be held liable to plaintiffs based upon any “market-share” or “enterprise” theories of liability.
THIRTY-FIRST AFFIRMATIVE DEFENSE
32. Pursuant to California Code of Civil Procedure § 430.10(c), there is another action
pending between the same parties on the same causes of action.
THIRTY-SECOND AFFIRMATIVE DEFENSE
33, The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, are preempted by the Locomotive Boiler Inspection Act, 49 U.S.C.S. §§ 20701,
ef seq., the Federal Safety Appliances Act, 49 U.S.C. § 20301, e¢ seg., and all other applicable federal
statutes, laws or regulations.
THIRTY-THIRD AFFIRMATIVE DEFENSE
34. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred by the rule against splitting a cause of action.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
35. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred by plaintiffs’ failure to timely join one or more parties that are
indispensable and/or necessary to a resolution of the matters alleged in the Complaint, as required by
Code of Civil Procedure § 389.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
36. The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred pursuant to the doctrines of res judicata and/or collateral estoppel.
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THIRTY-SIXTH AFFIRMATIVE DEFENSE
37, The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred because there is a defect and misjoinder of parties plaintiff and/or
defendant.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
38. This answering defendant alleges that at all times relevant to the matters alleged in the
complaint, as amended now or in the future, plaintiff{s) knew or should have known of the inherent
hazards, risks or potential dangers of the product(s) alleged to be at issue, and was therefore a
sophisticated and knowledgeable user of each such product. As such, this answering defendant is not
liable to plaintiff(s) for any alleged failure to warn of such hazards, risks or dangers.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
39, The Complaint, as amended now or in the future, and any and all claims and causes of
action alleged therein, is/are barred by the "sophisticated user" doctrine pursuant to Johnson v.
American Standard (2008) 43 Cal 4th 56,
2 FFIRMATIVE DEFENSE
40. This answering defendant alleges that the instant action is barred or, alternatively, was
merged into a prior cause of action for which decedent and/or plaintiff(s) has/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.
FORTIET! TIV! JFENSE
41. This answering defendant alleges that this Court lacks jurisdiction over this action.
FORTY-FIRST AFFIRMATIVE DEFENSE
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42. This answering defendant alleges that the damages alleged by plaintiff(s), if any, were
caused, either in whole or in part, by persons, firms or entities other than defendant and over which
defendant had neither control or the right of control.
FORTY-SECOND AFFIRMATIVE DEFENSE
43. This answering defendant alleges that if it is determined to be liable to plaintiff(s),
such liability is based on conduct which is passive and secondary to the active and primary wrongful
conduct of the other defendants to this action. This answering defendant is, therefore, entitled to total,
equitable indemnity from such other defendants.
FORTY-THIRD AFFIRMATIVE DEFENSE
44, This answering defendant alleges that plaintiff{s) lack(s) standing to sue defendant.
FORTY-FOURTH AFFIRMATIVE DEFENSE
45. This answering defendant alleges that if it has purportedly been named or served in
this action as a Doe Defendant, such effort by plaintiff(s) is invalid on the ground that plaintifi(s)
knew or should have known of the identity of this answering defendant and the alleged causes of
action against this answering defendant at the time of the filing of the complaint.
FE iE,
46. This answering defendant alleges that it presently has insufficient knowledge or
information on which to form a belief as to whether it may have additional, as yet unstated, defenses
available. Defendant reserves the right to assert additional defenses in the event that they would be
appropriate.
RESERVATION OF RIGHTS
This answering defendant hereby reserves the right, upon completion of its investigation and
discovery, to amend this answer to include such additional defenses as may be appropriate.
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DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF'S COMPLAINT
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WHEREFORE, defendant CONSOLIDATED INSULATION, INC. prays as follows:
1. That plaintiffs take nothing by reason of the operative Complaint on file herein;
2. That defendant CONSOLIDATED INSULATION, INC. be awarded its costs and
expenses of suit incurred herein;
3. That if defendant CONSOLIDATED INSULATION, INC. is found liable, that the
degree of responsibility and liability for the resulting damages be determined and apportioned in
accordance with California Civil Code §§ 1431, et seq.; and
4. For such other and further relief as the Court may deem just and proper.
DATED: June#?, 2009 PRIND)
NNETH B. PRINDLE
Attorneys for Defendant,
CONSOLIDATED INSULATION, INC.
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DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFE’S COMPLAINT
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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Joyce Juelch y, Asbestos Defendants (BP)
Case No.: CGC-09-275212
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES:
I, the undersigned, declare: that 1 am, and was at the time of service of the documents herein
referred to, over the age of eighteen (18) years and am not a party to the within action; and I am
employed in the County of Los Angeles, California. My business address is 310 Golden Shore, 4"
Floor, Long Beach, California 90802.
On dusty | , 2009, L electronically served the following document(s) via LexisNexis File &
Serve described as:
DEFENDANT CONSOLIDATED INSULATION, INC.’S ANSWER TO PLAINTIFF JOYCE
JUELCH’S COMPLAINT FOR DAMAGES AND PERSONAL INJURIES
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
Executed on uly { , 2009, at Long Beach, California.
Yeh Lreed of
ARAH BOESCHEN
Preview
LAW OFFICES OF PRINDLE, DECKER & AMARO LLP oe ND A BF YW NY - Oo PRINDLE, DECKER & AMARO, LLP Kenneth B, Prindle, Esq. (Bar No, 82691) Thomas A. Steig, Esq. (Bar No. 119341) ELECTRONICALLY 369 Pine Street, Suite 800 FILED San Francisco CA 94104 Superior Court of California, Tel. No.: (415) 788-8354 County of San Francisco Fax No.: (415) 788-3625 JUL 01 2009 CINS-1280 GORDON PARK-LI, Clerk Attorneys for Defendant, BY: RAYMOND K. WONG CONSOLIDATED INSULATION, INC. Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO - COURT OF UNLIMITED JURISDICTION JOYCE JUELCH AND NORMAN JUELCH, SR., CASE NO. CGC-09-275212 ) ) ) DEFENDANT CONSOLIDATED Plaintiffs, ) INSULATION, INC.’S ANSWER TO ) PLAINTIFF JOYCE TUELCE?S )} COMPLAINT FOR DAMAGES AND ) PERSONAL INJURIES d ) ) ve ASBESTOS DEFENDANTS (BP) . Complaint Filed : May 20,2009 Defendants. Trial Date : None COMES NOW Defendant, CONSOLIDATED INSULATION, INC. (hereinafter referred to as "this answering defendant"), for itself alone, and in answer to the unverified Complaint of plaintiffs herein, as amended, now or in the future, or otherwise, admits, denies, and alleges as follows: 1. Pursuant to the provisions of California Code of Civil Procedure § 431.30, this answering defendant denies each, every and all of the allegations of the unverified complaint, and each and every cause of action contained therein, and the whole thereof, and denies that plaintiffs has/have sustained damages in the sum or sums alleged, in any other sum or sums whatsoever, or at all. Mt if Mt i DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF’S COMPLAINT EBP/ucKch cins ans wpaLAW OFFICES OF PRINDLE, DECKER & AMARO Lip eo Om ND HW PB Ww Ye YvN Ye NNN NR NR NY Se Be Be eB Be eB Be Se Be eI HA BR YD YN =F Se we I DH BR BN SF Oo FIRST AFFIRMATIVE DEFENSE 2. The Complaint and each and every cause of action alleged therein fails to state facts sufficient to constitute a cause of action against this answering defendant, and fails to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 3. The Complaint and every cause of action alleged therein is/are barred by California Code of Civil Procedure §§ 335, 338(1), 338(4), 339(1), 340(1), 34003), 340.2, 343, 353, by Commercial Code § 2725, and by all other applicable statute of limitations provisions, and plaintiffs is/are thereby precluded from recovering the damages and other relief sought in the Complaint. THIRD AFFIRMATIVE DEFENSE 4, The applicable laws, rules, statutes or regulations, including but not limited to, Code of Civil Procedure §§ 340(3) and 340.2, and sister state statutes of limitations and statutes of repose borrowed by Code of Civil Procedure § 361, requiring the institution of suit within a certain period of time following its accrual, were not complied with, and, therefore, plaintiffs’ claims are barred as a matter of law and equity. FOURTH AFFIRMATIVE DEFENSE 5, Plaintiffs unreasonably delayed in bringing this action, without good cause, and has/have thereby prejudiced the rights of this answering defendant. The Complaint and all claims alleged therein are therefore barred by the doctrine of laches. FIFTH AFFIRMATIVE DEFENSE 6. Plaintiffs have waived any and all claims which he seeks to assert in this action, and/or are estopped by their conduct from asserting or recovering on such claims. Wt Ht 2 DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF'S COMPLAINT ‘KBPilucteh eins ans.¥p1 2 3 4 5 6 7 8 9 q 10 2 2 2 »3 13 22 on g te 14 oQ 2A 1s 3A 16 7 18 19 20 2 2 23 24 25 26 27 28 SIXTH AFFIRMATIVE DEFENSE 7. Prior to the filing of this action, plaintiffs fully, completely and unequivocally setiled and compromised their claims for relief against this answering defendant. SEVENTH AFFIRMATIVE DEFENSE 8. At all times and places mentioned in the Complaint, as amended, now or in the future, plaintiffs were negligent and careless and failed to exercise that degree of care and caution for their own safety which a reasonably prudent person would have used under the same or similar circumstances, in that, among other things, plaintiffs so negligently and carelessly stationed, conducted and maintained themselves, failed to utilize safety devices and other equipment or facilities supplied to them and/or existing as part of their environment, and failed to observe open and obvious conditions, so as to directly and proximately cause and contribute to plaintiffs’ injuries and damages, if any. Plaintiffs are therefore precluded from obtaining any recovery against this answering defendant. Alternatively, any negligence or other legal fault attributable to plaintiffs thereby comparatively reduces the percentage of negligence or fault, if any, attributable to this answering defendant, which this answering defendant expressly denies. EIGHTH AFFIRMATIVE DEFENSE 9. This answering defendant alleges that no act, omission, conduct or product attributable to it caused or contributed to any injuries or damages sustained by plaintiffs, if any, and that if plaintiffs’ injuries and damages, if any, were not solely caused by plaintiffs’ own acts, omissions and other conduct, then said injuries and damages were proximately caused and contributed to by the negligence and/or other tortious acts, omissions, conduct and products of persons or entities other than this answering defendant, and that said negligence and/or other legal fault was an intervening and superseding cause of plaintiffs’ injuries and damages, if any. Any damages recoverable by plaintiffs must therefore be diminished in proportion to the amount of fault attributable to these other persons and entities, and there should be an apportionment of the harm and damage claimed by plaintiffs, if any. 3 DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF’S COMPLAINT KBP/fucich cins ans.wpdLAW OFFICES OF PRINDLE, DECKER & AMARO uP oe SoU Am DA Bw om et Bw Ny = NINTH AFFIRMATIVE DEFENSE 10. That at all times and places referred to in the Complaint, as amended, now or in the future, plaintiffs were, or in the exercise of reasonable care should have been, aware of all circumstances and conditions then and there existing and prevailing, but nonetheless knowingly, voluntarily, and in full appreciation of the potential consequences thereof, exposed themselves to whatever risks and dangers may have been attendant to such circumstances and conditions, thereby freely and voluntarily assuming any and ail risk(s) incident thereto, and thereby barring plaintiffs from recovery herein. T H IVE DEFENSE 11. At all times and places relevant to this action, plaintiffs failed to make reasonable efforts to mitigate their injuries, loss and/or damages, if any. ELEVENTH AFFIRMATIVE DEFENSE 12, Atall times material to this action, plaintiffs failed to use the products alleged in the complaint in a foreseeable, proper and safe manner which would have otherwise been anticipated and expected of an ordinary user. Such misuse of the products described in the Complaint by plaintiffs was the sole, proximate and legal cause of plaintiffs’ injuries and damages, if any, thereby barring plaintiffs from recovery herein. TWELFTH AFFIRMATIVE DEFENSE 13. At all times material to this action, the products described in the Complaint which allegedly injured plaintiffs were, without this answering defendant’s knowledge, approval or consent, and contrary to instructions and/or the custom and practice in the industry, altered, re-designed, modified, or subjected to other treatment which substantially changed their character, such that they were not being used, functioning and/or performing in a manner intended by their manufacturer, and/or were not in substantially the same or similar condition as when they left the manufacturer's possession. If there was a defect in said products, which supposition is specifically denied by this 4 DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF'S COMPLAINT KBPHuelch cins ans.wpdLAW OFFICES OF PRINDLE, DECKER & AMARO Lip oD BND HW BF YN answering defendant, such defect resulted solely from such alteration, re-design, modification, treatment or other change therein, and not from any act or omission by this answering defendant, thereby barring plaintiffs from recovery herein as against this answering defendant. THIRTEENTH AFFIRMATIVE DEFENSE 14, Plaintiffs are barred from recovery herein in that any and all products allegedly supplied or distributed by this answering defendant were manufactured and/or produced in conformity with specifications established and provided by the United States Government pursuant to its War Powers as set forth in the United States Constitution, and that any defect in said products was caused by deficiencies in said specifications, and not by any action or conduct on the part of this answering defendant. FOURTEENTH AFFIRMATIVE DEFENSE 15. Plaintiffs are barred from recovery herein in that all products allegedly manufactured or distributed by this answering defendant were in conformity with the existing state of the medical, scientific, and industrial knowledge, art, and practices, and, as a result, said products were not defective in any manner. FIFTEENTH AFFIRMATIVE DEFENSE 16, At all times and places mentioned in the complaint, as amended, now or in the future, plaintiffs were not in privity of contract with this answering defendant, and said lack of privity bars plaintiffs’ recovery herein upon any theory of warranty. — SIXTEENTH AFFIRMATIVE DEFENSE 17. Plaintiffs failed to give this answering defendant timely and reasonable notice of any alleged breach of contract or warranty, thereby barring plaintiffs from recovery herein. Hl Ml 5 DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF’S COMPLAINT KBP/Iuetch cios ans.wpdoO Om ND HH BR BW YY = Noe wa LAW OFFICES OF PRINDLE, DECKER & AMARO tip ns b «2 oC 20 21 22 23 24 25 26 27 28 SEVENTEENTH AFFIRMATIVE DEFENSE 18. Atall times and places relevant to this action, plaintiffs waived whatever right they might otherwise have had to claim a breach of warranty, in that plaintiffs failed to notify this answering defendant of any alleged breach of warranty, express or implied, and if any alleged defects existed in any product(s) manufactured or distributed by this answering defendants, plaintiffs discovered or should have discovered said defect or non-conformity, if any existed, and failure to do so within a reasonable period of time prejudices this 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. EIGHTEENTH AFFIRMATIVE DEFENSE 19. Plaintiffs’ breach of warranty claims are barred by written disclaimers and/or exclusions contained on or in the labels or packaging of the products at issue in this action. NINETEENTH AFFIRMATIVE DEFENSE 20. The Complaint, as amended now or in the future, and each and every cause of action contained therein, fails to state facts sufficient to constitute “fraud,” “oppression,” or “malice,” as these terms are used in Civil Code § 3294, and therefore fails to fails to state a claim that would support punitive damages. TWENTIETH AFFIRMATIVE DEFENSE 21, The imposition of punitive/exemplary damages against this corporate defendant for acts of a former and/or predecessor corporate entity would be a violation of due process of law, and against public policy, under the various laws of the State of California and the United States. TWENTY-FIRST AFFIRMATIVE DEFENSE 22. This answering defendant alleges that California Civil Code § 3294 violates the Due Process and/or Equal Protection clauses of the California and/or United States Constitutions, is void 6 DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFE’S COMPLAINT KBP/uelch cins ans.wpd.LAW OFFICES OF PRINDLE, DECKER & AMARO Lip oD 6 ND HW RB BW NY because it is vague and ambiguous, constitutes an undue burden on interstate commerce, and violates the Eighth Amendment to the United States Constitution. Accordingly, plaintiffs are barred from any recovery thereunder. TWENTY-SECOND AFFIRMATIVE DEFENSE 23. The liability of this answering defendant, if any, shall be apportioned in accordance with the provisions of Civil Code §§ 1431, ef seg., commonly known as the Fair Responsibility Act of 1986. TWENTY-THIRD AFFIRMATIVE DEFENSE 24. ‘This answering defendant alleges on information and belief that at all times and places relevant to this action, plaintiff was an employee of an employer or employers whose names are presently unknown, and that any injuries or damages alleged in the Complaint, as amended now or in the future, occurred while plaintiff was acting within the course of scope of such employment. This answering defendant further alleges on information and belief that plaintiff's employer or employers provided plaintiff with certain benefits in compliance with the terms and provisions of the Workers’ Compensation Laws of the State of California. The nature and extent of such Workers’ Compensation benefiis that may have been provided is unknown, but when said benefits are determined, leave to amend this answer and to set forth the details of said benefits will be sought. It is further alleged that any and all injuries or damages complained of by plaintiff were solely and proximately caused by, or resulted from, the negligence and carelessness of plaintiff's employer, his co-workers, and/or his employer's agents, servants or employees. Therefore, this answering defendant is entitled to an offset of any such benefits received or to be received by plaintiff against any judgment which may be rendered in favor of said plaintiff, pursuant to the doctrine of Witt v. Jackson (1961) 57 Cal.2d $7. , Hf Hf Ml 7 DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF'S COMPLAINT KBP/Juelch cins ans.wpdLAW OFFICES oF PRINDLE, DECKER & AMARO uP 2 oD me ND HW RB WN = mA Bw TWENTY-FOURTH AFFIRMATIVE DEFENSE 25. Plaintiffs are barred from recovery herein if at any time, past or present, plaintiff was or is an employee of this answering defendant, including any of this answering defendant’s divisions or subsidiaries, thereby creating conditions of compensation. The right to recover Workers’ Compensation benefits is plaintiffs’ sole and exclusive remedy as against this answering defendant, pursuant to the provisions of California Labor Code §§ 3300, et seq., and/or §§ 3600, et seq.. This answering defendant is entitled to a judicial determination of any such employer-employee relationship establishing such exclusive remedy and bar to recovery prior to any hearing or trial on the merits in this matter. TWENTY-FIFTH AFFIRMATIVE DEFENSE 26. Even if plaintiff was exposed to any asbestos-containing products manufactured or distributed by this answering defendant, which supposition is expressly denied, plaintiff's exposure to said products would have been so minimal as to be insufficient to constitute a “substantial contributing factor” in the causation of plaintiffs’ alleged injuries or disease, if any. TWENTY-SIXTH AFFIRMATIVE DEFENSE 27. This answering defendant is not liable for any alleged failure to warn of any risks, dangers or hazards in the use of any asbestos-containing products or other goods that it allegedly distributed, sold, supplied or delivered to plaintiff's employer(s), because said employer(s) had as great, if not greater, knowledge about the nature of any risks, dangers or hazards than did this answering defendant, and, unlike this answering defendant, said employer(s) were in a position to warn persons exposed to such products of any such risks, dangers or hazards. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 28. This answering defendant alleges that at all times relevant to the matters alleged in the complaint, as amended now er in the future, all of plaintiff's employers, other than this answering defendant were sophisticated and knowledgeable users of asbestos products and said employers' 8 DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF'S COMPLAINT KBP/uelch cing ans. wedLAW oFFices oF PRINDLE, DECKER & AMARO tip CSC Pm DD HW BF Ww YP HF Be oN RNY YN N NR NY Se Be Be Be Se eB es Be ee ec N A A BR YB NY = SO we SB HR eH FF YB BY YF OS negligence in providing said product(s} fo their employees in a negligent, careless and reckless manner was a superseding cause of plaintiffs’ injuries, if any. TWENTY-EIGHTH AFFIRMATIVE DEFENSE, 29. To the extent the Complaint, or any cause of action alleged therein, is based upon an allegation of strict products liability as against this answering defendant, said cause of action cannot be maintained as this answering defendant was not a "seller" within the meaning of § 402A of the Restatement (Second) of Torts, and consequently any claim of strict liability against this answering defendant is barred pursuant to Monte Vista Development Corporation vs. Superior Court (1991) 226 Cal App.3d 1681. TWENTY-NINTH AFFIRMATIVE DEFENSE 30. This answering defendant denies that it was a successor, successor in business, successor in product line or a portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion thereof, parent, alter-ego, subsidiary, wholly or partially owned by, or the whole or partial owner of or member in any entity owning property, maintaining premises, researching, studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding, manufacturing for others, packaging and advertising any asbestos/silica products. This answering defendant is therefore not liable for any acts, whether they be active or passive, or omissions of any entities to which this answering defendant is or may be alleged to be a successor-in-interest, predecessor-in-interest, alter ego, or the like. THIRTIETH AFFIRMATIVE DEFENSE 31. This answering defendant did not and does not have a substantial percentage of the market for any asbestos-containing products which allegedly caused the injuries and damages claimed by plaintiffs. Furthermore, the asbestos-containing products which allegedly caused the injuries and 9 DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF'S COMPLAINT KBP/Tuelch cing ans.wpdLAW OFFICES OF PRINDLE, DECKER & AMARO tip damages claimed by plaintiffs are not “fungible” in nature. As such, this answering defendant may not be held liable to plaintiffs based upon any “market-share” or “enterprise” theories of liability. THIRTY-FIRST AFFIRMATIVE DEFENSE 32. Pursuant to California Code of Civil Procedure § 430.10(c), there is another action pending between the same parties on the same causes of action. THIRTY-SECOND AFFIRMATIVE DEFENSE 33, The Complaint, as amended now or in the future, and any and all claims and causes of action alleged therein, are preempted by the Locomotive Boiler Inspection Act, 49 U.S.C.S. §§ 20701, ef seq., the Federal Safety Appliances Act, 49 U.S.C. § 20301, e¢ seg., and all other applicable federal statutes, laws or regulations. THIRTY-THIRD AFFIRMATIVE DEFENSE 34. The Complaint, as amended now or in the future, and any and all claims and causes of action alleged therein, is/are barred by the rule against splitting a cause of action. THIRTY-FOURTH AFFIRMATIVE DEFENSE 35. The Complaint, as amended now or in the future, and any and all claims and causes of action alleged therein, is/are barred by plaintiffs’ failure to timely join one or more parties that are indispensable and/or necessary to a resolution of the matters alleged in the Complaint, as required by Code of Civil Procedure § 389. THIRTY-FIFTH AFFIRMATIVE DEFENSE 36. The Complaint, as amended now or in the future, and any and all claims and causes of action alleged therein, is/are barred pursuant to the doctrines of res judicata and/or collateral estoppel. dif Mt 10 DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF'S COMPLAINT KBP/Juetch cins ans.vrpdLAW OFFICES OF PRINDLE, DECKER & AMARO ti THIRTY-SIXTH AFFIRMATIVE DEFENSE 37, The Complaint, as amended now or in the future, and any and all claims and causes of action alleged therein, is/are barred because there is a defect and misjoinder of parties plaintiff and/or defendant. THIRTY-SEVENTH AFFIRMATIVE DEFENSE 38. This answering defendant alleges that at all times relevant to the matters alleged in the complaint, as amended now or in the future, plaintiff{s) knew or should have known of the inherent hazards, risks or potential dangers of the product(s) alleged to be at issue, and was therefore a sophisticated and knowledgeable user of each such product. As such, this answering defendant is not liable to plaintiff(s) for any alleged failure to warn of such hazards, risks or dangers. THIRTY-EIGHTH AFFIRMATIVE DEFENSE 39, The Complaint, as amended now or in the future, and any and all claims and causes of action alleged therein, is/are barred by the "sophisticated user" doctrine pursuant to Johnson v. American Standard (2008) 43 Cal 4th 56, 2 FFIRMATIVE DEFENSE 40. This answering defendant alleges that the instant action is barred or, alternatively, was merged into a prior cause of action for which decedent and/or plaintiff(s) has/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. FORTIET! TIV! JFENSE 41. This answering defendant alleges that this Court lacks jurisdiction over this action. FORTY-FIRST AFFIRMATIVE DEFENSE i DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFI’S COMPLAINT KBP/Juctt ins ans. wpLAW OFFICES OF PRINDLE, DECKER & AMARO up CoC 6 HW DR HW FF BW N YN YW NNN RY NR Se Ee Be Be Be Be Se Be Se 2 IAA FO Hh = S ODMR AAR BH YM EH Ss 42. This answering defendant alleges that the damages alleged by plaintiff(s), if any, were caused, either in whole or in part, by persons, firms or entities other than defendant and over which defendant had neither control or the right of control. FORTY-SECOND AFFIRMATIVE DEFENSE 43. This answering defendant alleges that if it is determined to be liable to plaintiff(s), such liability is based on conduct which is passive and secondary to the active and primary wrongful conduct of the other defendants to this action. This answering defendant is, therefore, entitled to total, equitable indemnity from such other defendants. FORTY-THIRD AFFIRMATIVE DEFENSE 44, This answering defendant alleges that plaintiff{s) lack(s) standing to sue defendant. FORTY-FOURTH AFFIRMATIVE DEFENSE 45. This answering defendant alleges that if it has purportedly been named or served in this action as a Doe Defendant, such effort by plaintiff(s) is invalid on the ground that plaintifi(s) knew or should have known of the identity of this answering defendant and the alleged causes of action against this answering defendant at the time of the filing of the complaint. FE iE, 46. This answering defendant alleges that it presently has insufficient knowledge or information on which to form a belief as to whether it may have additional, as yet unstated, defenses available. Defendant reserves the right to assert additional defenses in the event that they would be appropriate. RESERVATION OF RIGHTS This answering defendant hereby reserves the right, upon completion of its investigation and discovery, to amend this answer to include such additional defenses as may be appropriate. 12 DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFF'S COMPLAINT ‘KBP/flucteh eins ans.ypdLAW OFFICES OF PRINDLE, DECKER & AMARO tip SD eo WD eR BF YH NN co WHEREFORE, defendant CONSOLIDATED INSULATION, INC. prays as follows: 1. That plaintiffs take nothing by reason of the operative Complaint on file herein; 2. That defendant CONSOLIDATED INSULATION, INC. be awarded its costs and expenses of suit incurred herein; 3. That if defendant CONSOLIDATED INSULATION, INC. is found liable, that the degree of responsibility and liability for the resulting damages be determined and apportioned in accordance with California Civil Code §§ 1431, et seq.; and 4. For such other and further relief as the Court may deem just and proper. DATED: June#?, 2009 PRIND) NNETH B. PRINDLE Attorneys for Defendant, CONSOLIDATED INSULATION, INC. 13 DEFENDANT CONSOLIDATED INSULATION, INC.S ANSWER TO PLAINTIFE’S COMPLAINT KBP/fTucich cins ans.wpdLAW OFFicEs OF PRINDLE, DECKER & AMARO uP yo ee Y DH FF BN NY oR NN NR YR NR RNR ee me ee Se Se Se ee oD DA AW RB YW YH Y§ SCH HB DRA RB BH mm OS PROOF OF SERVICE BY ELECTRONIC TRANSMISSION Joyce Juelch y, Asbestos Defendants (BP) Case No.: CGC-09-275212 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES: I, the undersigned, declare: that 1 am, and was at the time of service of the documents herein referred to, over the age of eighteen (18) years and am not a party to the within action; and I am employed in the County of Los Angeles, California. My business address is 310 Golden Shore, 4" Floor, Long Beach, California 90802. On dusty | , 2009, L electronically served the following document(s) via LexisNexis File & Serve described as: DEFENDANT CONSOLIDATED INSULATION, INC.’S ANSWER TO PLAINTIFF JOYCE JUELCH’S COMPLAINT FOR DAMAGES AND PERSONAL INJURIES on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on uly { , 2009, at Long Beach, California. Yeh Lreed of ARAH BOESCHEN