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

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]| Nandor B. Krause (Bar No. 148718)
nkrause@archernorris.com
ARCHER Norris c . ELECTRONICALLY
ofessional Law tion
1 orporati FILED

2033 North Main Street, Suite 800 . iF
j PO Box 8035 Superior Court of California,

Walnut Creek, California 94596-3728 County of San Francisco
Telephone: 925.930.6600 MAY 25 2010

Facsimile: — 925,930.6620 Clerk of the Court
BY: VANESSA WU

Attorneys for Defendant Deputy Clerk
JERVIS B. WEBB COMPANY
SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

PAUL VAN DEGRIFT, Case No. CGC-09-275076

| Plaintiff, ANSWER TO COMPLAINT
v. Action Filed: February 18, 2009

ASBESTOS DEFENDANTS,

Defendants.

COMES NOW defendant JERVIS B. WEBB COMPANY (hereinafter referred to as
““WEBB”) in answer to plaintiff's complaint on file herein and by virtue of the provisions of Code
of Civil Procedure $431.30, now files its general denial to said complaint, and denies each and
every, all and singular, generally and specifically, all the allegations contained therein, and causes
of action thereof, and further denies that plaintiff has been damaged in any sum, sums or at all,
and specifically denies:

1. WEBB manufactured or distributed any asbestos containing products:

2. ‘That any asbestos-containing product for which WEBB was responsible was
present at the work site from which the alleged asbestos exposure of PAUL VAN DEGRIFT
occurred;

3. That PAUL VAN DEGRIFT came into contact with any asbestos-containing

product for which WEBB was responsible;
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ANSWER TO COMPLAINToO 6 we IR A

3, That any act or omission of WEBB caused or contributed to any injury purportedly
suffered by PAUL VAN DEGRIFT,

4, That any act or omission of WEBB, contributed to any asbestos health hazard,

This 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 PAUL VAN DEGRIFT was careless and negligent in and about the matters alleged
in the complaint, and that said carelessness and negligence on the part of PAUL VAN DEGRIFT
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 PAUL VAN DEGRIFT’S negligence.

SECOND AFFIRMATIVE DEFENSE

(Assumption of Risk)

That PAUL VAN DEGRIFT 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.

THIRD AFFIRMATIVE DEFENSE
(Witt y. Jackson)

By way of alleging the doctrine of Witt v. Jackson (1961) 37 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 PAUL VAN DEGRIFT 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 Workman's Compensation Act of the
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ANSWER TO COMPLAINTState 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
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 PAUL VAN DEGRIFT’S employer or employers’ compensation carrier under the
authority of Witt v. Jackson, (1961) 57 Cal.2d 57.

FOURTH AFFIRMATIVE DEFENSE

(Employer's Comparative Negligence)

This answering defendant alleges that PAUL VAN DEGRIFT 'S employers 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 Risk)

This answering defendant alleges that PAUL VAN DEGRIFT 'S employers voluntarily
and knowingly entered into and engaged in the operations, acts and conduct alleged in said
complaint, and voluntarily and knowingly assumed all of the risks incident to said operations, acts
and conduct at the time and place mentioned in the complaint.

SIXTH 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 provisions of the Code of Civil Procedure §340, subsection 3.
SEVENTH 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 provisions of the Code of Civil Procedure §340.2(a) and (b).

Ht
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ANSWER TO COMPLAINTEITHTH 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 provisions of the Code of Civil Procedure §338(4).
NINETH 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,

TENTH 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.

ELEVENTH AFFIRMATIVE DEFENSE
(Proportionate Fault)

This answering defendant alleges that while at all times denying any liability whatsoever
to plaintiff herein, any alleged liability 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 liable or responsible, all such
alleged liability and alleged responsibility being expressly denied.

TWELFTH AFFIRMATIVE 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.

Mit
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ANSWER TO COMPLAINToc Mm I DH UH

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THIRTEENTH AFFIRMATIVE DEFENSE

(Failure to State Cause of Action)

This answering defendant alleges that plaintiffs complaint does not state facts sufficient

fo constitute a cause of action against this answering defendant.
FOURTEENTH AFFIRMATIVE DEFENSE
(Waiver)

This answering defendant alleges that plaintiff PAUL VAN DEGRIFT 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 for herein,

FIFTEENTH AFFIRMATIVE DEFENSE
(Sophisticated User)

This answering defendant alleges that PAUL VAN DEGRIFT and his employers were and
are sophisticated users and knew independently, or should have known, of any danger or hazard
associated with the use of the products of which he complains.

SIXTEENTH AFFIRMATIVE DEFENSE
(Fair Responsibility Act)

This answering defendant alleges that said complaint, and each of said alleged causes of
action thereof, is subject to the provisions of the Fair Responsibility Act of 1986, Civil Code §§
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 sball not be joint with each or any co-defendant named in said complaint. This answering
defendant shal! be liable only for the amount of said non-economic damages, if any, allocated to
this answering defendant in direct proportion to this answering defendant's percentage of fault, if
any.

SEVENTEENTH 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
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peculiar risk according to the California Supreme Court decision of Privette v. Superior Court, 5
| Cal.4th 689, 21 Cal. Rptr.2d 72 (1993).

WHEREFORE, this answering defendant prays as follows:

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

2. That this defendant be hence dismissed and that it be entitled to recover any costs
of suit incurred herein; and

3. For such other and further relief as the court deems just and proper.
¥

Dated: May Z# , 2010 ARCHER NORRIS

Zvd ) ——.

Nandor B. Krause
Attorneys for Defendant
JERVIS B. WEBB COMPANY

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PROOF OF SERVICE

Name of Action: Paul Van Degrift v. Asbestos Defendants
Court and Action No: San Francisco County Superior Court, Case #CGC-09-275076

declare that I am over the age of eighteen years, and not a party to this action or
proceeding. My business address is 2033 North Main Street, Suite 800, P.O. Box 8035, Walnut
Creek, CA 94596. On the date listed below, I caused the following document(s) to be served:

ANSWER TO COMPLAINT
(on behalf of defendant Jervis B. Webb Company

kK BY ELECTRONIC SERVICE as required by the Court’s Order re: Electronic
Service of Pleadings in this matter, and performed by LEXIS NEXIS E-File
Service on the parties in the action...

oO by having a true copy of the document(s) listed above transmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
was reported as complete without error by a report issued by the transmitting facsimile
machine. A true and correct copy of the transmission report is attached hereto.

O by having personal delivery by. of a true copy of the document(s)
listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set
forth below.

Please see Service List provided by LEXIS-NEXIS E-Filing Service

I declare under penalty of perjury that the foregoing is true and correct. Executed on May

25, 2010 at Walnut Creek, California.
bhi,
: Pasa Morgan

TXNBK/962763-1

Proof of Service