On March 02, 2009 a
Answer
was filed
involving a dispute between
Husband, Charles,
and
Albay Construction Company,
All Asbestos Defendants See Scanned Documents,
American Conference Of Governmental Industrial,
Asbestos Defendants,
Asbestos Manufacturing Company,
Auto Friction Corporation,
Auto Specialties Manufacturing Company,
Bell Asbestos Mines Ltd.,
Bigge Crane And Rigging Co.,
Borgwarner Morse Tec, Inc.,
Brassbestos Brake Lining Company,
Bridgestone Firestone North American Tire, Llc,
Bucyrus International Inc,
Carone Brothers, Inc.,
Cbs Corporation,,
Certainteed Corporation,
Chicago Bridge & Iron Company,,
Cleaver-Brooks, Inc.,
Conocophillips Company,
Csk Auto, Inc.,
Daimlerchrysler Corporation,
Daimlerchrysler Corporation (And Not The Claims,
Dillingham Construction, N.A., Inc.,
Does 1-8500,
Emsco Asbestos Company,
Fibre & Metal Products Company,
Forcee Manufacturing Corporation,
Garlock Sealing Technologies Llc,
Gatke Corporation,
Georgia-Pacific Corporation,
Georgia-Pacific Llc,,
Hamilton Materials, Inc,
Hanson Permanente Cement, Inc. Fka Kaiser Cement,
H. Krasne Manufacturing Company,
Honeywell International Inc.,,
Ingersoll-Rand Company,
J.T. Thorpe & Son, Inc.,
Kaiser Gypsum Company, Inc.,
Lasco Brake Products,
Lear Siegler Diversified Holdings Corp.,
L.J. Miley Company,
Maremont Corporation,
Marine Engineering And Supply Company,
Metropolitan Life Insurance Company,
Molded Industrial Friction Corporation,
Morton International, Inc.,
National Transport Supply, Inc.,
Owens-Illinois, Inc.,
Pacific Gas And Electric Company,
Parker Hannifin Corporation,
Plant Insulation Company,
Pneumo Abex Llc,
Quintec Industries, Inc.,
Riteset Manufacturing Company,
Rossendale-Ruboil Company,
Santa Fe Braun, Inc. As Successor-In-Interest To,
Shell Oil Company,
Silver Line Products, Inc.,
Southern Friction Materials Company,
Standard Motor Products, Inc.,
Standco, Inc.,
Stuart-Western, Inc.,
Temporary Plant Cleaners, Inc.,
The Budd Company,
Thomas Dee Engineering Company,
Underwriters Laboratories, Inc.,
Union Carbide Corporation,
Universal Friction Materials Company,
U.S. Spring & Bumper Company,
Wheeling Brake Block Manufacturing Company,
York International Corporation,
for civil
in the District Court of San Francisco County.
Preview
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Eugene C. Blackard Jr, (Bar No. 142090)
ARCHER Norris C
A Professional Law Corporation
2033 North Main Street, Suite 800 ELECTRONICALLY
‘Walnut Creek, California 94596-3759 FILED
Telephone: 925.930.6600 Superior Court of California,
Facsimile: 925.930.6620 County of San Francisco
NOV 16 2010
Attorneys for Defendant Clerk of the Court
ALBAY CONSTRUCTION COMPANY BY WILLIAM TRUCE.
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CHARLES HUSBAND, Case No. CGC-09-275098
Plaintiff, ANSWER TO COMPLAINT-ASBESTOS
v. Action Filed: March 2, 2009
ASBESTOS DEFENDANTS (BP),
Defendants.
COMES NOW defendant ALBAY CONSTRUCTION COMPANY in answer to
plaintiff's unverified complaint on file herein and by virtue of the provisions of Code of Civil
Procedure Section 431.30, now files its general denial to said complaint, and denies each and
every, all and singular, generally and specifically, all the allegations and causes of action
contained therein, and further denies that plaintiff has been damaged in any sum, sums, or at all,
and specifically denies:
1. That any asbestos-containing product for which ALBAY CONSTRUCTION
COMPANY was responsible was 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
ALBAY CONSTRUCTION COMPANY was responsible;
3. That any act or omission of ALBAY CONSTRUCTION COMPANY caused or
ALB184/1049425-1
ANSWER TO COMPLAINT-ASBESTOSCo Oo em WD RF YH HN
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contributed to any injury purportedly suffered by plaintiff;
4, ‘That ALBAY CONSTRUCTION COMPANY was negligent and/or careless in
any respect whatsoever, or at all; and
3. That any act or omission of ALBAY CONSTRUCTION COMPANY contributed
to any asbestos health hazard or any injury claimed by Plaintiff.
‘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 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 plaintiff's recovery should therefore be reduced to the extent of
plaintiff 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 and assume the risks and hazards incident to
said operations, acts and conduct at the time and place mentioned in said complaint.
THIRD AFFIRMATIVE DEFENSE
(Employer Negligence/Witt v. Jackson)
By way of alleging the doctrine of Witt y. 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
ALBI84/1049425+1 2
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1 | 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 State of California; that
certain sums have been 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 by his employer or employers’
compensation carrier under the authority of Witty. Jackson (1961) 57 Cal.2d 37.
FOURTH AFFIRMATIVE DEFENSE
{Employer's Negligence)
This answering defendant alleges that plaintiff'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 the Risk)
This answering defendant alleges that plaintiff'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 operation, 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
(Alteration or Misuse)
This answering defendant alleges that the product in question was properly designed and
manufactured, and was fit for the purpose intended; that said product was improperly maintained
and used and was abused, resulting in plaintiff's damages, if any there were.
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ANSWER TO COMPLAINT-ASBESTOSSEVENTH 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, Section 340 et seq.,
Section 361 and Section 338(4).
EIGHTH AFFIRMATIVE DEFENSE
(Improper/Inconvenient Venue)
This answering defendant alleges that venue is improper in this judicial district and/or is
inconvenient and does not serve the substantial interests of justice is not proper in this judicial
district.
NINTH AFFIRMATIVE DEFENSE
(Sophisticated User)
This answering defendant alleges that plaintiff and plaintiffs employers were and are
sophisticated users and knew independently, or should have known, of any danger or hazard
associated with the use of asbestos-containing products, Defendant further alleges that plaintiff
and his employers were warned of the danger or hazard associated with the use of asbestos-
containing products and that plaintiff and plaintiff's employer failed to rely upon such warnings
and that plaintiff and plaintifP's employers acts or omission and failure to act as sophisticated
users resulted in the damages claimed by plaintiff.
TENTH AFFIRMATIVE DEFENSE
(Waiver, Stoppel and Laches)
This answering defendant alleges that plaintiff unreasonably delayed in the bringing of
this action without good cause therefore, and thereby have prejudiced this defendant; and as a
proximate result thereof, this entire action is barred by waiver, estoppel and 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.
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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 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 and
entities 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.
THIRTEENTH 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.
FOURTEENTH AFFIRMATIVE DEFENSE
(Failure to State 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.
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 for herein.
SIXTEENTH AFFIRMATIVE DEFENSE
(No Identification of Product)
This answering defendant is informed and believes, and thereon alleges, that plaintiff is
unable to identify the actual manufacturer or manufacturers of the asbestos products which
ALBIR4/1049425-1 3
ANSWER TO COMPLAINT-ASBESTOSallegedly caused the injury which forms the basis of the complaint herein, and that said
manufacturers were entities other than this defendant. Therefore, this defendant may not be held
liable for the injury of the plaintiff.
SEVENTEENTH 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
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 or any co-defendant named in said complaint. This
answering defendant shall be liable only for the only 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.
EIGHTEENTH AFFIRMATIVE DEFENSE
(No Peculiar Risk)
This answering defendant alleges that plaintiff is barred from seeking to hold defendant
vicatiously 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, 5 Cal.4th 689, 21 Cal. Rptr.2d 72 (1993).
, NINETEENTH AFFIRMATIVE DEFENSE
(Punitive Damages)
This answering defendant alleges that the Complaint, to the extent that it seeks punitive
damages, violates defendant’s rights to protection from “excess 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 this defendant’s right to substantive due process and equal
protection as provided by the 5" and 14 Amendments of the United States Constitution and the
Constitution of the State of California, and therefore is invalid on its face to support a claim for
punitive damages.
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TWENTIETH AFFIRMATIVE DEFENSE
cone rre nL citi tannin
(Federal Preemption)
This answering defendant alleges that it complied with all requirements of federal and/or
state legislation regarding the product or products involved, including, but not limited to, design,
manufacture, wamings, inspections, monitoring, labeling, shipping and handling; and plaintiffs”
action is preempted in whole or in part by federal law.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(State of the Art)
This answering defendant alleges that the subject product, when manufactured and
distributed, conformed to the then-current state of the art, knowledge and practice such that this
defendant did not, and could not know that the subject product might pose a risk of harm, if any,
when used in anormal and foreseeable manner and the subject product therefore was not
defective.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(Failure to Mitigate)
This answering defendant alleges that plaintiffs in exercising reasonable and ordinary
care, caution, prudence and diligence, could have mitigated the alleged injuries, losses or
damages to themselves, if any, and plaintiffs failed to exercise reasonable and ordinary care,
caution, prudence and diligence in not having mitigated such injuries, losses or damages. By
reason thereof, plaintiffs are barred in whole or in part from recovering for alleged injuries, losses
or damages from this answering defendant.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(ndemnity/Contribution)
This answering defendant alleges that it is entitled to contribution and/or partial or
complete indemnification from any person or entity whose negligence, fault, and/or acts
proximately contributed to the happenings of the claimed incident or alleged injuries.
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TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Pre-existing Conditions)
This answering defendant alleges that plaintiffs’ alleged injuries, losses, or damages, if
any, were the result of preexisting or subsequent conditions unrelated to this defendant’s product.
TWENTY-FIFTH_ AFFIRMATIVE DEFENSE
(Punitive Damages)
This answering defendant alleges that the imposition of punitive damages violates the ex
post facto clause of the Fifth Amendment due process clause of the United States Constitution.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Punitive Damages)
This answering defendant alleges that punitive damages are so punitive in purpose and in
effect as to constitute a criminal penalty entitling this answering defendant to the rights given to
defendants in criminal proceedings under the United States Constitution and the California
Constitution. All procedures and applications of California and/or federal law in this action which
may deny this answering defendant such rights including, but not limited to, burden of proof
beyond a reasonable doubt, a unanimous jury and the right against self-incrimination, violate this
answering defendant's rights under such Constitutional provisions.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Failure to Join Parties)
This answering defendant alleges that plaintiff has failed to join a party or the parties
necessary for a just adjudication of this matter and has further omitted to state any reason for such
failure.
TWENTY-EIGHT AFFIRMATIVE DEFENSE
(lntervening/Superseding Acts)
This answering defendant alleges that any injuries alleged by plaintiff, to the extent
plaintiff may be able to prove those allegations, were the result of intervening acts of superseding
negligence on the part of person or persons over whom this defendant had neither control nor the
tight to control.
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TWENTY -NINTH AFFIRMATIVE DEFENSE
‘(Alternative Entities)
Defendant alleges that any causes of action asserted by plaintiff against this answering
defendant is improper as plaintiff incorrectly alleges that this answering defendant is responsible,
|) in whole or in part, for the acts of one or more alternative entities.
\ ‘THIRTIETH AFFIRMATIVE DEFENSE
(Further Affirmative Defenses)
Answering defendant reserves the right to allege further affirmative defenses as they
} become known through the course of discovery.
WHEREFORE, this answering defendant prays as follows:
1. That plaintiff take nothing by reason of the complaint on file here.
2. That this defendant 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: November Lom 0 ARCHER NORRIS
gene C. Blackatd Jr,
‘Attorneys for Defendant
} ALBAY CONSTRUCTION COMPANY
‘ALB184/1049425-1 9
ANSWER TO COMPLAINT-ASBESTOSCe 6 WB A FF WN
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1
PROOF OF SERVICE
Name of Action: Charles Husband v. Asbestos Defendants
Court and Action No: San Francisco Superior Court Action No, CGC-09-275098
1, Rakia V. Grant-Smith, 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, Walnut
| Creek, California 94596-3759. On November , 2010, I caused the following document(s)
| to be served: ANSWER TO COMPLAINT-ASBESTOS.
oO by placing a true copy of the document(s) listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices. | am readily familiar
| with this business’ practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
1 is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service with postage fully prepaid.
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.
oO by having personally delivered 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.
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,
| o by placing a true copy of the document(s) listed above, in a box or other facility
regularly maintained by , an express service carrier, or delivered to a
courier or driver authorized by the express service cartier to receive documents, inan
envelope designated by the express service carrier, with delivery fees paid or provided
for, addressed as set forth below.
I electronically served the above referenced document(s) through LEXIS NEXIS. E-
\ service in this action was completed on all parties listed on the service list with LEXIS
NEXIS. This service complies with the court’s order in this case.
1 declare under penalty of perjury that the foregoing is true and correct, Executed on
November , 2010, at Walnut Creek, California.
Rakia V. Grant-Smith
ALB184/1049425-1
ANSWER TO COMPLAINT-ASBESTOS