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

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SEDGWICK, DETERT, MORAN & ARNOLD LLP
SCOTT D, MROZ Bar No. 111848
MICHAEL L. FOX Bar No. 173355

LORI M. GONG Bar No. 182985 ELECTRONICALLY
One Market Plaza, Steuart Tower, 8th Floor
San Francisco, California 94105 FILED

Si jor Court of California,
Telephone: (415) 781-7900 County of San Francisco.

Facsimile: (415) 781-2635 MAY 14 2009

Attorneys for Defendant GORDON PARK-LI, Clerk

PACIFIC GAS AND ELECTRIC COMPANY Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

PAUL VAN DEGRIFT, CASE NO. CGC-09-275076

Plaintiff, DEFENDANT PACIFIC GAS AND
ELECTRIC COMPANY'S ANSWER TO
v. COMPLAINT FOR PERSONAL INJURY -
: ASBESTOS
ASBESTOS DEFENDANTS (BP).

Defendant PACIFIC GAS AND ELECTRIC COMPANY (hereinafter “defendant”)

answers plaintiff's unverified complaint for personal injury (hereinafter “complaint’”) as follows:

1. Under the provisions of section 431.30 of the Code of Civil Procedure,
defendant denies each and every and all of the allegations of said complaint and denies that
plaintiff sustained damages in the sum or sums alleged or in any other sum or at all.

FIRST AFFIRMATIVE DEFENSE

2. Defendant alleges that said complaint and each cause of action therein fail

to state facts sufficient to constitute a cause of action against this answering defendant.
SECOND AFFIRMATIVE DEFENSE
3. Defendant alleges that the causes of action, if any, attempted to be stated

and set forth in said complaint are barred by the provisions of the Code of Civil Procedure of the

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State of California including, but not limited to, sections 338(d) and 340.2.
THIRD AFFIRMATIVE DEFENSE

4, Defendant alleges that the causes of action, if any, attempted to be stated
and set forth in said complaint are barred by laches.
FOURTH AFFIRMATIVE DEFENSE
5. Defendant alleges that the causes of action, if any, attempted to be stated
and set forth in said complaint are barred in whole or in part by the equitable doctrines of waiver
and estoppel.
FIFTH AFFIRMATIVE DEFENSE
6. Defendant alleges that plaintiff and others were negligent or otherwise at
fault in and about the matters referred to in said complaint, and that such negligence or other
fault bars or diminishes plaintiff's recovery against this answering defendant.
SIXTHO AFFIRMATIVE DEFENSE
7. Defendant alleges that plaintiff was solely negligent in and about the
matters alleged in said complaint and that such negligence on the part of plaintiff was the sole
proximate cause of the injuries and damages complained of, if any there were.

SEVENTH AFFIRMATIVE DEFENSE

8. Defendant alleges that plaintiff assumed the risk of the matters referred to
in said complaint, that plaintiff knew and appreciated the nature of the risk, and that plaintiff
voluntarily accepted the risk.

EIGHTH AFFIRMATIVE DEFENSE

9. Defendant alleges that plaintiff misused and abused the products referred
to in said complaint, and failed to follow instructions, and that such misuse and abuse and failure
to follow instructions on the part of plaintiff proximately caused and contributed to the injuries
and damages complained of, if any there were.

NINTH AFFIRMATIVE DEFENSE
10. Defendant alleges that if plaintiff sustained injuries attributable to the use

of any product manufactured, supplied, or distributed by this answering defendant, which

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allegations are expressly denied, the injuries were solely caused by and attributable to the
unreasonable, unforeseeable, and inappropriate purpose and improper use which was made of the
product.
TENTH AFFIRMATIVE DEFENSE
ll. Defendant alleges that, if there was any negligence proximately causing
the injuries or damages complained of, such negligence, if any, was solely that of persons other
than this answering defendant.

ELEVENTH AFFIRMATIVE DEFENSE

12. Defendant alleges that plaintiff's claims, and each of them, in this action
are preempted by federal statutes and regulations governing workplace exposure to asbestos.

TWELFTH AFFIRMATIVE DEFENSE

13. Defendant alleges that at the time of the matters referred to in the
complaint, plaintiff was employed by employers other than this answering defendant and was
entitled to and received workers’ compensation benefits from their employers; and that, if there
was any negligence proximately causing the injuries and damages complained of, such
negligence, if any, was that of plaintiff's employers.

THIRTEENTH AFFIRMATIVE DEFENSE

14. Defendant alleges that there is no privity between plaintiff and this
answering defendant.
FOURTEENTH AFFIRMATIVE DEFENSE
15. Defendant alleges that, if there was any negligence proximately causing
the injuries or damages complained of, such negligence, if any, is collateral negligence, as that
term is used and defined in Restatement 2d Torts, section 426, and derivative authority.

FIFTEENTH AFFIRMATIVE DEFENSE

16. Defendant alleges that it gave no warranties, either express or implied, to
plaintiff and that neither plaintiff nor others ever notified defendant of any claims of breach of
warranty, if any there were.

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SIXTEENTH AFFIRMATIVE DEFENSE
17. Defendant alleges that said complaint, to the extent that it seeks exemplary
or punitive damages pursuant to California Civil Code, section 3294 against this answering
defendant, violates defendant’s right to procedural due process under the Fourteenth Amendment
of the United States Constitution, and Article I, section 7 of the Constitution of the State of
California, and therefore fails to state a cause of action upon which either punitive or exemplary
damages can be awarded.

SEVENTEENTH AFFIRMATIVE DEFENSE

18. Defendant alleges that plaintiff's complaint, and each cause of action
therein, fail to state facts sufficient to support an award of punitive or exemplary damages against
this answering defendant.

EIGHTEENTH AFFIRMATIVE DEFENSE

19. Defendant alleges that the “peculiar risk” doctrine is not applicable to the
causes of action attempted to be stated and set forth against this answering defendant, because
the injuries and damages complained of in the complaint, if any there were, arose in the course
and scope of plaintiff's employment by an independent contractor.

NINETEENTH AFFIRMATIVE DEFENSE

20. Defendant alleges that the causes of action, if any, attempted to be stated
and set forth in said complaint on the theory of alternate entity and/or successor liability fail to
state facts sufficient to constitute a cause of action against this answering defendant.

TWENTIETH AFFIRMATIVE DEFENSE

21. Defendant alleges that the causes of action, if any, attempted to be stated

and set forth in said complaint for négligence per se are barred by California Labor Code, section -

6304.5, and derivative authority.

TWENTY-FIRST AFFIRMATIVE DEFENSE

22. Defendant alleges that said complaint and each cause of action therein are
barred with respect to this answering defendant by the provisions of state and federal workers’

compensation statutes including, but not limited to, sections 3600 et seq. of the Labor Code of

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the State of California, and section 905(b), Title 33 of the United States Code.
TWENTY-SECOND AFFIRMATIVE DEFENSE

23. Defendant alleges that said complaint, to the extent that it seeks exemplary
or punitive damages pursuant to California Civil Code, section 3294 against this answering
defendant, violates defendant's right to protection from “excessive fines” as provided in the
Eighth Amendment of the United States Constitution and Article I, section 17 of the Constitution
of the State of California, and violates defendant’s right to substantive due process as provided in
the Fifth and Fourteenth Amendments of the United States Constitution and Constitution of the
State of California, and therefore fails to state a cause of action upon which either punitive or
exemplary damages can be awarded.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24. Defendant alleges that plaintiff failed to exercise due diligence to mitigate
his loss, injury or damages, if any, and, accordingly, the amount of damages to which plaintiff is
entitled, if any, should be reduced. by the amount of damages which otherwise would have been
mitigated.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

25. Defendant alleges that it cannot be held liable for the negligence or
misconduct, if any, of independent contractors at defendant’s premises, based on the doctrine of
peculiar risk or any other theory of vicarious liability, pursuant to Privette v. Superior Court
(1993) 5 Cal.4th 689, Smith v. ACandS, Inc. (1994) 31 Cal. App.4th 77, Toland v. Sunland
Housing Group, Inc. (1998) 18 Cal Ath 253, Camargo v, Tjaarda Dairy (2001) 25 Cal 4th 1235,
Hooker vs. Department of Transportation (2002) 27 Cal.4th 198, and Kinsman v. Unocal Corp.
(2005) 37 Cal.4th 659.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

26.  Defiadant alleges that the premises referred to in said complaint, if owned
by defendant at all, was designed, fabricated, constructed, maintained, and repaired in
compliance with United States government specifications and/or under the direction, control and

authority of federal officers, and that the hazards associated with the use of asbestos-containing

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products and materials, if any, were known équally to the government and defendant, and
therefore the complaint and all causes of action therein, if any, are barred by the government
contractor defense (Boyle v. United Technologies Corp. (1988) 487 U.S. 500, and derivative
authority), and the Defense Production Act of 1950, 50 U.S.C. section 2061, et seq., its statutory
predecessors, and derivative authority.
TWENTY-SIXTH AFFIRMATIVE DEFENSE

27. Defendant alleges that; at all times relevant fo the matters alleged in the
complaint, some of plaintiff's employers were sophisticated users of allegedly
asbestos-containing products, and said employers’ negligence in exposing their employees to
such products in a negligent, careless and reckless manner was a superseding intervening cause
of plaintiff's injuries, if any.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28. Defendant alleges that plaintiff is barred from recovery in that any
products manufactured and distributed by this defendant, if any and which defendant expressly
denies, were in conformity with existing state-of-the-art technology and, as a result, that its
products were not defective in any manner.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

29. Defendant alleges that the provisions of California Civil Code, sect.

1431.2 are applicable to the complaint and each cause of action therein.
TWENTY-NINTH AFFIRMATIVE DEFENSE

30. Defendant is not a successor, successor in business, successor in product
line or a portion thereof, assigned, predecessor, predecessor in business, predecessor in product
line or a portion thereof, parent 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 substance, the generic name of

which is asbestos and other products containing said substance, and therefore is not liable as

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such.
THIRTIETH AFFIRMATIVE DEFENSE
31. The injuries alleged in the complaint, if any, were proximately caused by
an unforeseeable, superseding and intervening event beyond the control of this defendant.

THIRTY-FIRST AFFIRMATIVE DEFENSE

32, Defendant alleges that it was under no legal duty to warn plaintiff of the
azards associated with the use of products containing asbestos. Defendant further alleges that
the manufacturers of said product, plaintiff's employer(s), union(s), or certain third parties yet to
be identified, were knowledgeable and sophisticated users and were in a better position to warn
laintiff of the risks 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
roximate and/or superseding cause of plaintiff's damages, if any.

THIRTY-SECOND AFFIRMATIVE DEFENSE
33, Defendant alleges that the asbestos products, if any, for which it had any

egal responsibility were manufactured, patented, distributed or sold in accordance with contract
specifications imposed by its co-defendants, by the U.S. Government, by plaintiffs employers, or
by third parties yet to be identified.
THIRTY-THIRD AFFIRMATIVE DEFENSE
34. Defendant will rely upon any and all further defenses that become
available or appear during discovery proceedings in this action, and specifically reserves the right
to amend this answer for the purpose of asserting any such additional defenses.

THIRTY-FOURTH AFFIRMATIVE DEFENSE

(Bankruptcy)

35. Defendant alleges that plaintiff’s claim is a claim that arose before the
commencement of defendant's Chapter 11 bankruptcy case (In re Pacific Gas and Electric
Company, Case No. 01-30923 DM) and thus has been discharged pursuant to section 1141(d) of
the United States Bankruptey Code (11 U.S.C. sections 1101 et seq.) and by Order of the United
States Bankruptcy Court (see, e.g, Grady v. A.H. Robins Co., Inc. (4th Cir. 1988) 839 F.2d 198),

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and that plaintiff is further enjoined from pursving the instant litigation pursuant to such Order.
WHEREFORE, this answering defendant prays that plaintiff takes nothing by
reason of said complaint; that this answering defendant be awarded costs of suit herein, and such
other and further relief as the court deems just; and, that if this answering defendant is found
liable, the degree of its responsibility for the resulting damages be determined and that this
answering defendant be held liable only for that amount of the total damages proportionate to its

responsibility for the same.

DATED: May jl, 2009 SEDGWICK, DETERT, MORAN & ARNOLD LLP

By:

Lori Mf. Gong
Attomeys for Defendant
PACIFIC GAS AND ELECTRIC COMPANY

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PROOF OF SERVICE

lam a resident of the State of California, over the age of eighteen years, and was at the
time of service of the documents herein referred to, not a party to the within action. My business
address is Sedgwick, Detert, Moran & Arnold LLP, One Market Plaza, Steuart Tower, 8th floor,
San Francisco, California 94105. On May 11, 2009, I served the within document(s):

DEFENDANT PACIFIC GAS AND ELECTRIC COMPANY'S ANSWER
TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS

FACSIMILE - by transmitting via facsimile the document(s) listed above
to the fax number(s} set forth on the attached Telecommunications Cover
Page(s) on this date before 5:00 p.m.

i E-MAIL — on the date executed below, | electronically served the
document(s) via LexisNexis File & Serve described above on the
recipients designated on the Transaction Receipt located on the
LexisNexis File & Serve website and listed below (to all counsel).

Q MAIL - by placing the document(s) listed above in a sealed envelope with postage
thereon fully prepaid, in the United States mail at San Francisco, California
addressed as set forth below [PLAINTIFF’S COUNSEL ONLY].

qa OVERNIGHT COURIER - by placing the document(s) listed above in a sealed
envelope with shipping prepaid, and depositing in a collection box for next day
delivery to the person(s) at the address(es) set forth below via Overnite Express.

Brayton®Parcell Attomeys For Plaintiff (LEXISNEXIS File &
P.O. Box 6169 Serve Website)
222 Rush Landing Road

Novato, CA 94948-6169 .
‘Tel: (415) 898-1555 / Fax: (415) 898-1247

All Other Counsel Attorneys for All Other Parties (Via
LEXISNEXIS File & Serve Website)

I declare under penalty of perjury under the laws of the State of California that the above
is true and correct. Executed on May 11, 2009, at San Francisco, California.

Amanda L. Henderson

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PACIFIC GAS & ELECTRIC COMPANY’S ANSWER TO COMPLAINT