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

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                                1 Mark S. Kannett (SBN 104572}
Emily D. Bergstrom (SBN 191395)
2 || BECHERER, KANNETT & SCHWEITZER ELECTRONICALLY
1255 Powell Street FILED
3 Emeryville, CA 94608 Superior Court of California,
4 | Telephone: {510) 658-3600 County of San Francisco
Facsimile: (510) 658-1151 JUN 24 2009
5 GORDON PARK-LI, Clerk
6 Attorneys for Defendant BY: JUDITH ae epuly Clerk
DILLINGHAM CONSTRUCTION, N.A., INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
JOYCE JUELCH and NORMAN JUELCH, SR., CASE NO. CGC 09-275212
11 :
12 Plaintiff, ANSWER OF DEFENDANT DILLINGHAM
CONSTRUCTION N.A., INC. TO PLAINTIFF'S
13 VS. COMPLAINT FOR PERSONAL INJURY AND

14 | ASBESTOS DEFENDANTS (B«P) As Reflected

)
)
)
)
}
} LOSS OF CONSORTIUM - ASBESTOS
}
15 on Exhibits B, B-1, C; and DOES 1-8500, }
}
}
)

16 Defendants.
17
18 COMES NOW, defendant, DILLINGHAM CONSTRUCTION N.A., INC. (“DCNA”), in answer

19 | to plaintiffs’ complaint on file herein and by virtue of the provisions of Code of Civil Procedure §
20 | 431.30, and files its general denial to the complaint and denies each and every, all and singular,
21 | generally and specifically, all the allegations contained therein, and each cause of action thereof,

22 | and further denies that plaintiff has been damaged in any sum, sums or at all, and specifically

23 denies:
Becherer 94 The use of a neuter pronoun in this answer includes feminine, masculine and plural
Kannett &
Schweitzer Q5 || pronouns and any singular in this answer, referring to “plaintiff” or "defendant," shall include
1255
Powel St. the plural reference.
Empaincs 26 P
sco
510-658-3600
27
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ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION NA,, INC. TO PLAINTIFFS’ COMPLAINTBecherer
Kannett &
‘Schweitzer

510-658-3600

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4. That any act or omission of DCNA was responsible for any asbestos-containing
product being present at the work site at which the alleged asbestos exposure of plaintiff
occurred.

2. That plaintiff came into contact with any asbestos-containing product for which

DCNA was responsible.

3. That any act or omission of DCNA caused or contributed to any injury purportedly
suffered by plaintiff.
4, That any act or omission of DCNA contributed to any asbestos health hazard.

This answering defendant herewith pleads and sets forth separately and distinctly the
following affirmative defenses to each and every cause of action of plaintiff's complaint as
though pleaded separately to each and every said cause of action, and this answering defendant
alleges the following affirmative defenses:

FIRST AFFIRMATIVE DEFENSE
{Comparative Negligence)

That plaintiff was careless and negligent in and about the matters alleged in the
complaint, and that said carelessness and negligence on the part of said plaintiff proximately!
contributed to the happening of the incident and to the injuries, loss and damages complained
of, if any, sustained by plaintiff and that plaintiffs’ recovery should therefore be reduced to the
extent of plaintiff's negligence.

SECOND AFFIRMATIVE DEFENSE
{Assumption of Risk)

That plaintiff knew, or in the exercise of ordinary care should have known, of the risks
and hazards involved in the undertaking in which he was engaged, but nevertheless, and
knowing these things, did freely and voluntarily consent to assume the risks and hazards

incident to said operations, acts and conduct at the time and place mentioned in said complaint.

2

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFFS’ COMPLAINTBecherer
Kannett &
Schweitzer

1255
Powel $.
Bmoryvll, CA
54608
510-658-3600

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THIRD AFFIRMATIVE DEFENSE
{Employer Negligence - Witt v. Jackson)

By way of alleging the doctrine of Witt v. Jackson (1961) 57 Cal.2d 57, this answering
defendant alleges that at the time and place of the happening of the occurrences alleged in the:
complaint, and at all times material herein, plaintiff was employed by various employers, the
names of which are unknown to this defendant at this time, and working within the course and
scope of his employment and/or employments, that said employer and/or employers and
plaintiff were subject to the provisions of the Worker’ Compensation Act of the State of
California, that certain sums have been or will be paid to or on behalf of plaintiff herein under|
the applicable provisions of the Labor Code of the State of California; that said employer,
excepting when plaintiff was employed by this defendant, and/or employers and each of them
were negligent and careless and that such negligence and carelessness proximately contributed
and caused the injuries of plaintiff; that by these premises any award made to the plaintiff, if|
any award is made at all, must be reduced by any payment to them by plaintiff's employer or|
employers’ compensation carrier under the authority of Witt v. Jackson (1961) 57 Cal.2d 57.

FOURTH AFFIRMATIVE DEFENSE

{Employer's Negligence)

This answering defendant alleges that plaintiffs employers, except when plaintiff was}
employed by this defendant, were contributorily negligent and careless in and about the
matters alleged in the complaint, and that such negligence and carelessness was a proximate
cause of any injuries and damages suffered by plaintiff, if any there were.

FIFTH AFFIRMATIVE DEFENSE
{Employer’s Assumption of the Risk)

This answering defendant alleges that plaintiff's employers, except when plaintiff was|

employed by this defendant, voluntarily and knowingly entered into and engaged in the

operations, acts and conduct alleged in said complaint, and voluntarily and knowingly assumes

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ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFFS’ COMPLAINT510-658-3600

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all of the risks incident to said operations, acts and conduct at the time and place mentioned in
the complaint.
SIXTH AFFIRMATIVE DEFENSE
{Alteration or Misuse)

This answering defendant alleges that the product in question was properly designed
and manufactured, and was fit for the purposes intended; that said product was improperly
maintained and used and was abused, resulting in plaintiff's damages, if any there were.

SEVENTH AFFIRMATIVE DEFENSE
{Failure to Mitigate)

This answering defendant alleges that the injuries, loss or damage, if any there was to

plaintiff, were aggravated due to plaintiff's failure to use reasonable diligence to mitigate them.
EIGHTH AFFIRMATIVE DEFENSE
{Statute of Limitations}

This answering defendant alleges that said complaint, and each of said alleged causes of|
action thereof, is barred by the applicable statute of limitations, including, but not limited to
those set forth in California Code of Civil Procedure §§ 335.1, 337(1), 337.1(a), 338(a), 339(1),
340.2(a), 340.8{a), 343 and California Commercial Code § 2725, as well as the California
borrowing statute, California Code of Civil Procedure § 361. :

NINTH AFFIRMATIVE DEFENSE

(Workers’ Compensation Bar)
This answering defendant alleges that plaintiff was, at all or some relevant times,
employed by this defendant and that plaintiff's claim for injuries or damages against this
defendant is barred by the Workers’ Compensation exclusive remedy provisions contained in

California Labor Code § 3600 et seq.

4

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFFS’ COMPLAINTBecherer
Kannett &
Schweitzer

1285
Powell St
Emeryville, CA
94608
‘510-658-3600

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TENTH AFFIRMATIVE DEFENSE
{Laches)

This answering defendant alleges that plaintiff unreasonably delayed in the bringing and
service of this action without good cause therefore, and thereby has prejudiced this defendant;
and as a proximate result thereof, this entire action is barred by laches.

ELEVENTH AFFIRMATIVE DEFENSE
{Failure to State a Cause of Action - Exemplary Damages)

This answering defendant alleges that the complaint fails to state a cause of action

against this answering defendant for exemplary damages.

TWELFTH AFFIRMATIVE DEFENSE

{Proportionate Fault}

This answering defendant alleges that while at all times denying any liability whatsoever
to plaintiff herein, this defendant alleges that any alleged fiability or responsibility of this
defendant, and such alleged liability and responsibility being denied, is small in proportion to
the alleged liability and responsibility of other persons and entities, including other persons who
are defendants herein, and that plaintiff should be limited to seeking recovery from this
defendant for the proportion of alleged injuries and damages for which this defendant is
allegedly liability or responsible, all such alleged liability and alleged responsibility being
expressly denied.

THI IRMATIVE DEFENSE
(Modification of Product)

This answering defendant is informed and believes, and based upon said information and
belief alleges, that the plaintiff is barred from recovery herein because of modification,
alteration or change in some other manner, of the products alleged in plaintiff's complaint.

FOURTEENTH AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
This answering defendant alleges that plaintiff's complaint does not state facts sufficient

to constitute a cause of action against this answering defendant.
5

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION R.A., INC. TO PLAINTIFFS’ COMPLAINTBecherer
Kannett &
Schweitzer

1255
Powell St
Fmeryville, CA
94608
510-658-3600

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FIFTEENTH AFFIRMATIVE DEFENSE
(Waiver)

This answering defendant alleges that plaintiff acknowledged, ratified, consented to and
acquiesced in the alleged acts or omissions, if any, of this answering defendant, thus barring|
plaintiff from any relief as prayed herein.

SIXTEENTH AFFIRMATIVE DEFENSE
{Sophisticated User)

This answering defendant alleges that Defendant DCNA was under no legal duty to warn
plaintiff of the hazard associated with the use of products containing asbestos. The purchasers
of said products, plaintiffs employers, unions or certain third parties yet to be identified, were
knowledgeable and sophisticated users and were in a better position to warn plaintiff of the risk
associated with using products containing asbestos and, assuming a warning was required, it
was the failure of such persons or entities to give such a warning that was the proximate and
superseding cause of plaintiff's damages, if any. In addition, plaintiff was and is a sophisticated
user who knew or should have known of the risk associated with using products containing
asbestos, if any. As such, DCNA did not have an obligation te warn a sophisticated user, if any
such warning was warranted.

SEVENTEENTH AFFIRMATIVE DEFENSE

{Fair Responsibility Act)

This answering defendant alleges that said compiaint, and each of said alleged causes of|
action thereof, is subject to the provisions of the Fair Responsibility Act of 1986, Civil Code
Sections 1431.1 through 1431.5. Liability of this answering defendant to plaintiff, if any, for non-
economic damages, if any as defined in Civil Code Section 1431.2(b){2) shall be several only and
shall not be joint with each of any co-defendant named in said complaint. This answering
defendant shall be liable only for the amount of said non-economic damages, if any, allocated to

this answering defendant's percentage of fault, if any.

6

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFFS’ COMPLAINTBecherer
Kannett &
Schweitzer

1255
Powell St,
Emeryville, CA
94608

510-658-3600

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EIGHTEENTH AFFIRMATIVE DEFENSE
{No Peculiar Risk}

Defendant alleges that plaintiff is barred from seeking to hold defendant vicariously
liable for inherent risk of injury in the work place and premises under the now discredited
doctrine of peculiar risk according to the California Supreme Court decision of Privette v.
Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72.

NINETEENTH AFFIRMATIVE DEFENSE
(Outside Scope}

This answering defendant alleges that at the time and place of the happening of the
occurrence as alleged in the complaint, plaintiff was engaged as a contractor outside the scope|
and control of this answering defendant, thus precluding plaintiff from asserting a claim against
this answering defendant.

TWENTIETH AFFIRMATIVE DEFENSE
(Unclean Hands)

This answering defendant alleges that the claims of plaintiff are barred by the doctrine of

unclean hands.

TWENTY-FIRST AFFIRMATIVE DEFENSE

(Res Judicata And Collateral Estoppel)
This answering defendant alleges that the claims of plaintiff are barred by the doctrine of
res judicata and collateral estoppel.
TWENTY-SECOND AFFIRMATIVE DEFENSE
{Punitive Damages Unconstitutional)
This answering defendant alleges that the claims made by the plaintiff for punitive
damages are unconstitutional under the United States Constitution and the California State

Constitution.

7

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFFS’ COMPLAINTBecherer
Kannett &
Schweitzer

1255
Powell St
Emeryville, CA
94608
510-658-3600

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TWENTY-THIRD AFFIRMATIVE DEFENSE
(State of the Art)

This answering defendant alleges that based upon the state of the art, its failure, if any
there was, to warn plaintiff of the dangers associated with the handling of asbestos-containing
products, or inhalation of airborne asbestos fibers, was reasonable and in compliance with
applicable industry standards at the time, and it did not know, nor was it reasonable for it to
know, that airborne asbestos fibers, if any, which were allegedly inhaled by plaintiff could cause;
injury.

TWENTY-FOURTH AFFIRMATIVE DEFENSE
{Primary Rights and Res Judicata)

This answering defendant alleges that if plaintiff's claims were already litigated and
resolved in any prior action, plaintiffs claims herein are barred based upon the primary rights
and res judicata doctrines which prohibit splitting a single cause of action into successive suits,
and seeking new recovery for injuries for which the plaintiff has been previously compensated
by alleged joint tortfeasors.

WHEREFORE, this answering defendant prays as follows:

1. That plaintiff takes nothing by reason of the complaint on file herein;

2. That DILLINGHAM CONSTRUCTION N.A., INC. be hence dismissed

with its costs of suit incurred herein; and

3. For such other and further relief as the Court deems just and proper.
Dated: June 7 2009 BECHERER, KANNETT & SCHWEITZER
By:

“Wark S. Kannett
Attorneys for Defendant
DILLINGHAM CONSTRUCTION, N.A., INC.

8

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFFS’ COMPLAINTBecherer
Kannett &
Schweitzer

1985
Powell SL
‘Emeryville, CA
94608

510-658-3600

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

1, Imelda Rivera, declare that | am, and was at the time of service of the documents
herein referred to, over the age of 18 years, and not a party to the action; and | am employed in
the County of Alameda, State of California. My business address is 1255 Powell Street,
Emeryville, California 94608.

On une , 2009, | electronically served the document(s) via LexisNexis File & Serve
described as:

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO
PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY AND LOSS OF
CONSORTIUM — ASBESTOS

on the recipients designated on the Transmission Receipt located on the LexisNexis File & Serve
website.

i declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on Jun 2009, at
Emeryville, California.

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ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION NA, INC. TO PLAINTIFFS’ COMPLAINT