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

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                                Arto! LAW
SAN FRANCISCO

LISA L. OBERG (BAR NO. 120139)
SARA M. PARKER (BAR NO. 238448}

MCKENNA LONG & ALDRIDGE LLP ELECTRONICALLY

101 California Street

41st Floor FILED

San Francisco, CA 94111 Superior Court of California,

Telephone: (415) 267-4000 County of San Francisco

Facsimile: (415) 267-4198 MAY 05 2009
GORDON PARK-LI, Clerk

Attorneys for Defendant BY: RAYMOND K. WONG

PLANT INSULATION COMPANY Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

PAUL VAN DEGRIFT, Case No. CGC-09-275076
Plaintiff, ANSWER OF DEFENDANT, PLANT
INSULATION COMPANY, TO
v. PLAINTIFE’S COMPLAINT FOR

DAMAGES FOR PERSONAL INJURY
ASBESTOS DEFENDANTS, et al.,

Defendants.

COMES NOW defendant, PLANT INSULATION COMPANY (hereinafter
“Defendant”), for itself and for no other defendant, to answer plaintiff's complaint on file herein
as follows:

1. Pursuant to California Code of Civil Procedure section 431.30(d), answering
Defendant denies, both generally and specifically, each and every allegation contained in the
complaint, and each cause of action therein, and each paragraph of each cause of action, and
denies that, as a direct and proximate result or any result of any tortious conduct on the part of
this Defendant, plaintiff has been or will be injured or damaged in the manner and amount alleged
or in any manner or amount whatsoever.

2. Answering Defendant denies that, by reason of any act or omission, fault, conduct,

or liability on the part of answering Defendant, plaintiff has been injured or damaged in the

“ANSWER OF DEFENDANT, PLANT INSULATION COMPANY, TO PLAINTIFF'S COMPLAINT FOR DAMAGES FOR PERSONAL _

INJURY
300160001 SP:27360378 428

MCKENNA LONG &
ALbaipcE LLP
ATTORNEYS AT LAW
SAN FRANCISCO.

manner and amounts alleged or in any manner or amount whatsoever, and denies that this
answering Defendant or any of its agents, servants or employees, or anyone acting for or on its
behalf was negligent, careless, reckless, or otherwise breached any duty owed to plaintiff,
whether as alleged or otherwise.
For A First, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

3. Alleges that the complaint, and cach and every cause of action therein, is barred by
ihe applicable statute of limitations, California Code of Civil Procedure section 335.1.
For A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

4. Alleges that the complaint, and each and every cause of action therein, is barred by

the applicable statute of limitations, California Code of Civil Procedure section 340.2.

For A Tuirb, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

5. Alleges that the product involved was materially altered or changed by a party or
parties other than, and without the permission of, this answering Defendant, its employees,
servants, or other agents, such alteration or change creating the alleged defect, if any, which was
the proximate or legal cause of plaintiff's injuries, or damages, if any.

For A FourTHu, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

6. Alleges that the defect in the product, if any, was known to plaintiff, who used said
product after full knowledge of said alleged defect; that, as a resull, plaintiff is barred from
recovery herein, proportionately or totally, in that plaintiff voluntarily exposed himself or herself
and his or her property to a known danger and thereby assumed the risk of any injury or damage
resulting from that injury.

For A FueTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

7. Alleges that plaintiff's complaint and cach and every cause of action therein based
upon warranty or breach thereof, is barred as a result of failure of plaintiff to give notice required
under Commercial Code section 2607(3 (a).

For A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
8. Alleges that the product was improperly maintained and cared for by plaintiff or

his or her employer or their agents; that such improper maintenance and care created the defect, if
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“ANSWER OF DEFENDANT, PLANT INSULATION COMPANY, TO PLAINTIFF'S COMPLAINT FOR DAMAGES FOR PERSONAL
INJURY
SP:27360375.128

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

any, that was the proximate or legal cause of plaintiff's injuries and damages, if any; that such
improper maintenance and care was unforeseeable to this answering Defendant; and that
plaintiff's claim is thereby reduced by the percentage of all responsibility attributable to plaintiff,
his or her employer or other agents by virtue of said improper maintenance and care.

For A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

9. Alleges that the complaint, and each and every cause of action therein, is barred by
the applicable statute of limitations, Code of Civil Procedure section 338(d).

For AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

10. Alleges that the loss, injury, or damage, if any, incurred by plaintiff was the result
of superseding or intervening causes arising from negligent or willful acts or omissions by parties
which Defendant neither controlled nor had the right to control, and said losses, injuries, or
damages were not proximately or legally caused by any act, omission, or other conduct of
Defendant.

For A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

11. Alleges that the plaintiff failed to mitigate his or her damages, if any, in that he
failed to use reasonable diligence in caring for his or her injuries and reasonable means to prevent
their aggravation or to accomplish their healing.

For A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

12. Alleges that, if this Defendant is responsible to plaintiff, which responsibility is
expressly denied, this Defendant shall be liable to plaintiff only for the amount of non-economic
damages allocated to this Defendant in direct proportion to this Defendant’s percentage of fault, if
any.

FoR AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT?

13. Alleges that plaintiff's claims are barred by the doctrine of laches.
For A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

14. Alleges that, if the products described in the complaint were manufactured or
distributed by Defendant, they were manufactured or distributed in accordance with specifications

and requirements supplied io Defendant by persons other than Defendant including, but not
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ANSWER OF DEFENDANT, PLANT INSULATION COMPANY, TO PLAINTIFF'S COMPLAINT FOR DAMAGES FOR PERSONAL
INJURY
‘SF:27360375.128

MCKENNA LONG &
ALORIDGE LEP.
ATTORNEYS AT Law
SAN FRANCISCO

limited to, the government of the United States of America. Any defect in said products was
caused by deficiencies in said mandatory specifications and requirements supplied to Defendant,
which deficiencies were neither known to Defendant nor discoverable by Defendant with the
exercise of reasonable care.

For A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

1S. Alleges that plaintiff was not in privity with Defendant and, therefore, may not
rely upon the theory of any alleged breach of express or implied warranty.
For A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

16. Alleges that any exposure of plaintiff to Defendant’s products was so minimal as
to be insufficient to establish to a reasonable degree of probability that any such product caused
any alleged injury, damage, or loss to plaintiff.

For A FirreeNnTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

17. Alleges that, if Defendant has purportedly been named or served in this action as a
Doe defendant, such effort by plaintiff is invalid on the ground that plaintiff knew or should have
known of the identity of the Defendant and the plaintiff's alleged causes of action against
Defendant at the time of the filing of the complaint.

For A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

18. Is informed and believes, and upon such information and belief alleges that
plaintiff was negligent, careless, reckless, and acted unlawfully in the use, control, direction and
application of his or her bodily movements and the equipment, safety devices, and other facilities
supplied to him, and existing as a part of his or her environment, and the injuries, if any, and
damages, if any, were directly and proximately caused and contributed to by his or her own
negligence.

For A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
19. Is informed and believes and upon such information and belief alleges that

plaintiff misused the preduct and used same after knowledge of defect, if any, existing therein.

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ANSWER OF DEFENDANT, PLANT INSULATION COMPANY, TO PLAINTIFF'S COMPLAINT FOR DAMAGES FOR PERSONAL
INJURY
SF:27360375.1oO 2D mw ID

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MCKENNA LONG &
ALORIDGE LEP
ATTORNEYS AT LAW
SAN FRANCISCO

For AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

20. Alleges that the plaintiff's employer so negligently, carelessly, recklessly, and
unlawfully directed, controlled, and supplied plaintiff and plaintifP's co-employees with a
working environment, incliding safety and protective equipment, clothing or the lack thereof, so
as to directly and proximately cause and contribute to the injuries in question, if the same do
exist, and to the extent that any sum or sums have been paid to plaintiff by said employer, this
claim is barred thereby.

For A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

21. Alleges that the complaint, and each and every cause of action therein, fails to
state facts sufficient to constitute a cause of action against Defendant and is barred by the
provisions of Labor Code section 3600.

For A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

22. Alleges that the complaint, and each and every cause of action therein, fails to
state facts sufficient to constitute a cause of action against Defendant and is barred by the
provisions of Labor Code section 3601.

For A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

23. Alleges that the complaint, and each and every cause of action therein, fails to
state facts sufficient to constitute a cause of action against Defendant and is barred by the
provisions of Labor Code section 3602.

For A ‘TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

24, — Alleges that the complaint, and each and every cause of action therein, fails to
state facts sufficient to constitute a cause of action against answering Defendant upon which relief
can be granted.

For A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

25, Alleges that the statutory authority, including but not limited to California Civil

Code section 3294, pursuant to which plaintiff claim punitive damages is invalid on its face

and/or as applied to this Defendant pursuant to the First, Fifth, Eighth and Fourteenth

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ANSWER OF DEFENDANT, PLANT INSULATION COMPANY, TO PLAINTIFF'S COMPLAINT FOR DAMAGES FOR PERSONAL
INJURY
SF:27360375.128

MCKENNA LONG é&
ALORIDGE LLP.
ATTORNEYS AT LAW
SAN FRANCISCO

Amendments to the Constitution of the United States and Article I of the Constitution of the State
of California.

For A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

26. Alleges that plaintiff’s action is barred by the provisions of California Code of
Civil Procedure section 361 in that plaintiffs claims arose in another state or foreign country, and
by the laws thereof an action cannot be maintained against this answering Defendant.

For A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

27. Alleges that the instant action is barred by the rule against splitting a cause of
action.
For A TWENTY-SIxTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

28. Alleges that plaintiff is collaterally estopped or barred by the doctrine of res

judicata from maintaining this action and/or seeking damages against this answering Defendant.

For A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

29. Alleges that Defendant is not a successor, successor in business, successor in
product line or portion thereof, assign, predecessor in product line or portion thereof, parent,
alter-ego, subsidiary, whoily or partially owned by, or the whole or partial owner of or member in
any entity owning property, maintaining premises, rescarching, 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 or advertising any asbestos-
containing or silica-containing products. Defendant is therefore not liable for any acts, whether
they be active or passive, or omissions of any entities to which Defendant is or may be alleged to
be a successor-in-interest, predecessor-in-interest, alter-ego or the like.

For A TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

30. Alleges plaintiff’s claims, causes of action, theories of liability and matters alleged

in this complaint are barred by the doctrine of accord and satisfaction as plaintiff has reached an

accord with Defendant regarding this litigation.

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ANSWER OF DEFENDANT, PLANT INSULATION COMPANY, TO PLAINTIFF'S COMPLAINT FOR DAMAGES FOR PERSONAL |
INJURY
SF:27360375.1

|oO OD me IN

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MCKENNA LONG &
ALDRIDGE LLP,
ATTORNEYS AY LAW
SAN FRANCISCO.

For A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

31. Alleges that plaintiff has released, settled, entered into an accord and satisfaction,
or otherwise compromised the claims herein, and accordingly, said claims are barred.
For A THIRTIETH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:

32. Alleges that plaintiff and/or the purchaser or user of the product at issue was
sufficiently knowledgeable, informed and or trained and knew or should have known of the
potential danger associated with the risk of exposure to asbestos from the course of his/her work,
and the claims are therefore barred under the sophisticated user doctrine, pursuant to the
California Supreme Court’s opinion in William Johnson v. American Standard, Inc, (2008) 43
Cal 4th 56.

WHEREFORE, Defendant prays for judgment herein, for costs of suit incurred herein,

and for such other and further relief as the court may deem just and proper.

Dated: Or hou [04 MCKENNA LONG & ALDRIDGE LLP

By:

ISA [. OBERG
ARAM, PARKER

Attorneys for Defendant
PLANT INSULATION COMPANY

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ANSWER OF DEFENDANT, PLANT INSULATION COMPANY, TO PLAINTIFF'S COMPLAINT FOR DAMAGES FOR PERSONAL
INJURY
S¥:27360373.128

MCKENNA LONG &

PROOF OF SERVICE VIA LEXISNEXIS FILE & SERVE

lam a citizen of the United States and employed in San Francisco County, California. |
am over the age of eighteen years and not a party fo the within-entitled action. My business
address is 101 California Street, 41st Floor, San Francisco, California 94111,
On May 5, 2009, I electronically served the document(s) via LexisNexis File & Serve
described as:
ANSWER OF DEFENDANT, PLANT INSULATION

COMPANY TO PLAINTIFE’S COMPLAINT FOR
DAMAGES FOR PERSONAL INJURY

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website. [ declare under penalty of perjury pursuant to the laws of the State of California that the

foregoing is true and correct and was executed on May 5, 2009, at San Francisco, California.

mo ee
; Rose Manabat

ANSWER OF DEFENDANT, PLANT INSULATION COMPANY TO PLAINTIFF'S COMPLAINT FOR DAMAGES FOR PERSONAL
INJURY