Answer: PAUL VAN DEGRIFT VS. ASBESTOS DEFENDANTS (BP) AS REFLECTED ON EXHIBITS et al

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470939.4 105427157

MARK A. LOVE (SBN 162028)
RICHARD M. LEE (SBN 187694)

SELMAN BREITMAN LLP ELECTRONICALLY
33 New Montgomery, Sixth Floor
San Francisco, CA 94105-4537 FILED

Superior Court of California,
Telephone: (415) 979-0400 County of San Francises

Facsimile: (415) 979-2099

MAY 26 2009
Attorneys for Defendant GORDON PARK, Clerk
UNDERGROUND CONSTRUCTION Deputy Clerk

COMPANY, INC.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO (UNLIMITED JURISDICTION)

PAUL VAN DEGRIFT, CASE NO. 275076
Plaintiff, ANSWER TO PLAINTIFFS' COMPLAINT
FOR PERSONAL INJURY - ASBESTOS
v.
ASBESTOS DEFENDANTS (BP),

Defendants.

Defendant UNDERGROUND CONSTRUCTION COMPANY, INC. (herein
"Defendant") answers plaintiff's unverified first amended complaint on its own behalf and
ou behalf of no other defendant or entity as follows:

Pursuant to California Code of Civil Procedure section 431.30(d), Defendant denies
generally each and every allegation of the Complaint.

FIRST AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged by the plaintiff

therein states facts sufficient to constitute a cause of action against Defendant.

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ANSWER TO COMPLAINT-ASBESTOSSelman Breitman Lip
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470939.4 105427157

SECOND AFFIRMATIVE DEFENSE
To the extent the Complaint asserts Defendant's alleged "market share" liability, or
"enterprise liability," the Complaint fails to state facts sufficient to constitute a cause of
action against Defendant.
THIRD AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged therein states facts
sufficient to entitle plaintiff to an award of punitive damages against Defendant.
FOURTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would deprive Defendant of
its property without due process of law under the California Constitution and United States
Constitution.
FIFTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would violate the United
States Constitution's prohibition against laws impairing the obligation of contracts.
SIXTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would constitute a criminal
fine or penalty and should, therefore, be remitted on the ground that the award violates the
United States Constitution.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff's action, and each alleged cause of action, is barred by the applicable
statute of limitations, including but not limited to, California Code of Civil Procedure
sections 338(1), 338(4), 339(1), 340(1), 340(3), 340.2, 343, 353, 583.110, 583.210,
583.310 and 583.410 and California Commercial Code section 2725.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff unreasonably delayed in bringing this action, without good cause therefor,
and thereby has prejudiced Defendant as a direct and proximate result of such delay;
accordingly, this action is barred by laches.

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ANSWER TO COMPLAINT-ASBESTOSSelman Breitman Lip
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470939.4 105427157

NINTH AFFIRMATIVE DEFENSE

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

TENTH AFFIRMATIVE DEFENSE

Plaintiff knowingly, voluntarily and unreasonably undertook each of the risks and
hazards, if any, referred to in the Complaint and each alleged cause of action, and this
undertaking proximately caused and contributed to any loss, injury or damages incurred by
plaintiff.

ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by plaintiff was proximately caused by the
negligent or willful acts or omissions of parties whom Defendant neither controlled nor
had the right to control, and was not proximately caused by any acts, omissions or other
conduct of Defendant.

TWELFTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by
plaintiff or by others; the misuse, abuse or alteration was not reasonably foreseeable to
Defendant, and proximately caused any loss, injury or damages incurred by plaintiff.

THIRTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that its products were manufactured, produced, supplied, sold and
distributed in mandatory conformity with specifications promulgated by the United States
Government under its war powers, as set forth in the United States Constitution, and that
any recovery by plaintiff on the Complaint on file herein is barred in consequence of the
exercise of those sovereign powers.
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ANSWER TO COMPLAINT-ASBESTOSSelman Breitman Lip
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470939.4 105427157

FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff failed to exercise due diligence to mitigate his loss, injury or damages;
accordingly, the amount of damages to which plaintiff is entitled, if any, should be reduced
by the amount of damages which would have otherwise been mitigated.
FIFTEENTH AFFIRMATIVE DEFENSE

The Court lacks subject matter jurisdiction over the matters alleged in the
Complaint because the Complaint, and each alleged cause of action against Defendant, is
barred by the "exclusive remedy" provisions of California Labor Code section 3601, et
seq.

SIXTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, plaintiff
was employed and was entitled to receive Workers' Compensation benefits from his
employers; that all of plaintiff's employers, other than Defendant, were negligent in and
about the matters referred to in said Complaint, and that such negligence on the part of said
employers proximately and concurrently contributed to the happening of the accident and
to the loss or damage complained of by plaintiff, if any there were; and that by reason
thereof Defendant is entitled to set off any such benefits to be received by plaintiff against
any judgment which may be rendered in favor of plaintiff.

SEVENTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint, plaintiffs
employers were negligent in and about the matters referred to in said Complaint, and that

such negligence on the part of said employers proximately and concurrently contributed to

any loss or damage, including non-economic damages, complained of by plaintiff, if any
there were; and that Defendant is not liable for said employers’ proportionate share of non-
economic damages.
EIGHTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that at the time of the injuries alleged in the Complaint, parties

other than this Defendant were negligent in and about the matters referred to in said

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ANSWER TO COMPLAINT-ASBESTOSSelman Breitman Lip
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470939.4 105427157

Complaint, and that such negligence on the part of said parties proximately and
concurrently contributed to any loss or damage, including non-economic damages,
complained of by plaintiff, if any there were; and that Defendant herein shall not be liable
for said parties’ proportionate share of non-economic damages.
NINETEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at all times relative to matters alleged in the Complaint, all of
plaintiff's employers, other than Defendant, were sophisticated users of asbestos-
containing products and said employers’ negligence in providing the product to its
employees in a negligent, careless and reckless manner was a superseding intervening
cause of plaintiffs injuries, if any there were.

TWENTIETH AFFIRMATIVE DEFENSE

If plaintiff has received, or in the future may receive, Workers' Compensation
benefits from Defendant under the Labor Code of the State of California as a consequence
of the alleged industrial injury referred to in the Complaint, and in the event that Defendant
is held liable to plaintiff, any award against Defendant must be reduced in the amount of
all such benefits received by plaintiff.

TWENTY-FIRST AFFIRMATIVE DEFENSE

If plaintiff has received, or in the future may receive, Workers' Compensation
benefits from Defendant under the Labor Code of the State of California as a consequence
of the alleged industrial injury referred to in the Complaint, and in the event plaintiff is
awarded damages against Defendant, Defendant claims a credit against this award to the
extent that Defendant is barred from enforcing its rights to reimbursement for Workers’
Compensation benefits that plaintiff has received or may in the future receive.

TWENTY-SECOND AFFIRMATIVE DEFENSE

If plaintiff has received, or in the future may receive, Workers' Compensation
benefits from Defendant under the Labor Code of the State of California as a consequence
of the alleged industrial injury referred to in the Complaint, Defendant demands repayment

of any such Workers' Compensation benefits in the event that plaintiff recovers tort

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ANSWER TO COMPLAINT-ASBESTOSSelman Breitman Lip
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470939.4 105427157

damages as a result of the industrial injury allegedly involved here. Although Defendant
denies the validity of plaintiff's claims, in the event those claims are held valid and not
barred by the statute of limitations or otherwise, Defendant asserts that cross-demands for
money have existed between plaintiff and Defendant and the demands are compensated, so
far as they equal each other, pursuant to California Code of Civil Procedure section
431.70.
TWENTY-THIRD AFFIRMATIVE DEFENSE
At all times and places in the Complaint, plaintiff was not in privity of contract with
Defendant and said lack of privity bars plaintiffs recovery herein upon any theory of
warranty.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiff is barred from recovery in that all products produced by Defendant were in
conformity with the existing state of the art, and as a result, these products were not
defective in any manner.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
The Defendant did not and does not have a substantial percentage of the market for
the asbestos-containing products which allegedly caused plaintiff's injuries. Therefore,
Defendant may not be held liable to plaintiff based on this Defendant's alleged percentage
share of the applicable market.
TWENTY-SLXTH AFFIRMATIVE DEFENSE
Defendant denies any and all liability to the extent that plaintiff asserts Defendant's
alleged liability as a successor, successor in business, successor in product line or a portion
thereof, assign, predecessor, predecessor in business, predecessor in product line or a
portion thereof, parent, alter-ego, subsidiary, wholly or partially owned by, or the whole or
partial owner of or member in an entity researching, studying, manufacturing, fabricating,
designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling,
inspecting, servicing, installing, contracting for installation, repairing, marketing,

warranting, rebranding, manufacturing for others, packaging and advertising a certain

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ANSWER TO COMPLAINT-ASBESTOS1 substance, the generic name of which is asbestos.

2 TWENTY-SEVENTH AFFIRMATIVE DEFENSE

3 Defendant alleges that if plaintiff's claims were already litigated and resolved in any
4 | prior action, plaintiff's claims herein are barred based on the primary right and res judicata

5 | doctrines which prohibit splitting a single cause of action into successive suits, and seeking
6 | new recovery for injuries for which the plaintiff was previously compensated by alleged

7 | joint tortfeasors.

8 WHEREFORE, Defendant prays:

9 (1) That plaintiff take nothing by this Complaint;

0 (2) That Judgment be entered in favor of Defendant;

1 (3) For recovery of Defendant's cost of suit;

2 (4) For appropriate credits and setoffs arising out of any payment of Workers’

3 | Compensation benefits as alleged above; and

4 (5) For such other and further relief as the Court deems just and proper.

6 | DATED: May 25, 2009 SELMAN BREITMAN LLP

Selman Breitman Lip
ATTORNEYS AT LAW

8 By:_/S/_ MARK A. LOVE

MARK A. LOVE

9 RICHARD M. LEE

Attorneys for Defendant

20 UNDERGROUND CONSTRUCTION COMPANY, INC.

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970939.1. 1054.27157 7

ANSWER TO COMPLAINT-ASBESTOSSelman Breitman Lip
ATTORNEYS AT LAW

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470939.4 105427157

Paul Van DeGrift v. Asbestos Defendants (BP)

San Francisco Superior Court Case 275076
Defendant: Underground Construction Company, Inc.
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

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

On May 25, 2009, 1 electronically served the document(s) via Lexis Nexis File &
Serve described as 1. ANSWER TO COMPLAINT on the recipients designated on the
Transaction Receipt located on the Lexis Nexis File & Serve website.

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

Executed on May 25, 2009, at San Francisco, California.
sf
EVANGELINE CONANAN

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ANSWER TO COMPLAINT-ASBESTOS