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  • CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS ASBESTOS document preview
  • CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS ASBESTOS document preview
  • CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS ASBESTOS document preview
  • CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS ASBESTOS document preview
  • CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS ASBESTOS document preview
  • CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS ASBESTOS document preview
  • CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS ASBESTOS document preview
  • CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS ASBESTOS document preview
						
                                

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Becherer Kannett & Schweitzer 1255 Powell St. Emeryville, CA 94608 510-658-3600 Mark S. Kannett (SBN104572) Shahrad Milanfar (SBN 201126) Bridget McKinstry (SBN 200219) ELECTRONICALLY Lyle J. Kapp (SBN 223907) FILED BECHERER KANNETT & SCHWEITZER Super ny 1255 Powell Street superior Court of California, . County of San Francisco Emeryville, CA 94608 DEC 01 2010 Telephone: (510) 658-3600 Facsimile: (510) 658-1151 Clerk of the Court BY: ALISON AGBAY Deputy Clerk Attorneys for Defendant epee CSK Auto, Inc., erroneously sued as Doe No.14 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO CHARLES HUSBAND, ) CASE NO. CGC 09-275098 ) Plaintiff; ) ANSWER OF DEFENDANT CSK AUTO, ) INC. TO COMPLAINT FOR PERSONAL vs. ) INJURY - ASBESTOS ) ASBESTOS DEFENDANTS, et al ) ) Defendants. ) ) Defendant CSK Auto, Inc., erroneously sued as Doe No. 14, answers the Complaint for| Personal Injury -- Asbestos (“complaint”) as follows: The use of a neuter pronoun in this answer includes feminine, masculine and plural pronouns and any singular in this answer, referring to "plaintiff" or "defendant," shall include the plural reference. 1. Answering complaint, defendant denies every allegation contained therein and’ denies that by reason of any act or omission by it, its agents, or independent contractors, Plaintiff] was injured or damaged in any sum, or at all. AFFIRMATIVE DEFENSES As affirmative defenses to each cause of action: 2. Plaintiff voluntarily assumed the risk of any injury or damage alleged in the complaint. ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINT3. Plaintiff was careless and negligent in the matters alleged thereby causing and contributing to any injury, damage or loss to plaintiff. 4. The complaint does not state facts sufficient to constitute a cause of action against this defendant. 5. The incident complained of in the complaint was proximately caused by the misuse and abuse which was made of the product referred to in the complaint. 6. Other parties and third persons not parties to this action were negligent or legally responsible or otherwise at fault for the damages alleged in plaintiff's complaint. Defendant therefore requests that in the event of a finding of any liability in favor of plaintiff or settlement! oO mW NO MH Ff WN or judgment against this defendant, an apportionment of fault be made among all parties as Be permitted by Li v. Yellow Cab Company and American Motorcycle Association v. Superior] 2 | Court by the court or jury. Defendant further requests a judgment and declaration of partial 13 } indemnification and contribution against all other parties or persons in accordance with the 14 | apportionment of fault. 7. Plaintiff failed to file the complaint during the applicable period of limitations so that the complaint is barred by the provisions of Code of Civil Procedure sections 335.1, 337, 338 Commercial Code section 2725. 5 6 7] @byo\M hd), 3391), 340.2(a), 340.2(c), 340.8(a)(b), 343, former section 340 and 8 9 8. The alleged damage of plaintiff was solely attributable to the unreasonable, 20 | unforeseeable, inappropriate and unintended use to which the product was subjected. 21 9. The provisions of Civil Code section 1431.2 are applicable to the complaint and 22 | each cause of action therein. 23 10. Plaintiff has waived and are estopped and barred from alleging the matters set Becherer 24 | forth in the complaint. Schweitzer 25 11. As a result of the matters alleged, plaintiff received workers’ compensation Teeyate,ca 20 || benefits from an employer or its insurance carrier, or both, in an amount not yet definitely wee 927 | ascertained and determined; that the total amount of these payments is not yet known to this 28 | defendant and leave of court will be sought to amend this answer when the amount is determined; 2 ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINTBecherer Kannett & Schweitzer 1255 Powell St. Emeryville, CA 94608 510-658-3600 oO ON Ao PF WOW HY DNF Be ee Be ee ew ei FP oC 0 WN DO UU FF WOW NY fF OC 22 that by virtue of Labor Code Sections 3850 and 3852, and related. sections, the employer and its insurance carrier are subrogated to the rights of plaintiff for any and all monies may receive from| this defendant up to the amount paid to plaintiff; that the plaintiff's injuries arose as a direct and] proximate result of the negligence and carelessness of plaintiff's employer, and plaintiff's employer and its insurance carrier are not entitled to reimbursement for montes paid or to be paid to plaintiff; and in the event of any judgment in favor of plaintiff against this defendant, it should be reduced by the amounts paid or to be paid to plaintiff by the employer or its insurance carrier. 12. Plaintiff consented to the acts and events set forth therein. 13. The injuries of plaintiff were solely the responsibility of an intervening cause or causes and/or the superseding acts of others and that this defendant's conduct, if any, was not the’ proximate or legal cause of the alleged injuries. 14. The State of California's judicially created definitions of manufacturing defect and design defect and standards for determining whether there has been an actionable failure to warn are unconstitutional in that, among other things, they are void for vagueness and an undue burden upon interstate commerce, as well as an impermissible effort to regulate in an area that has previously been preempted by the federal government. 15. Any claim for punitive or exemplary damages is barred by the United States Constitution, including the First, Fifth, Eighth and Fourteenth Amendments, and by the California Constitution, including Article I, and California Civil Code section 3294 is invalid on its face or| as applied in this action. 16. The products were as safe as could be designed under the state of technology and medical and scientific knowledge existing at the time the products were manufactured. 17. The complaint is barred by the exclusivity provisions of the California Workers’ Compensation laws, including, but not limited to, California Labor Code sections 3600, et seq. 18. The complaint and each and every cause of action therein arose in another state and by the laws thereof an action thereon cannot be maintained against this answering defendant within said state by reason of the lapse of time, and therefore an action thereon cannot be 3 ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINTBecherer Kannett & Schweitzer 94608 310-658-3600 w oO OU ON DOD HO FF WN maintained against this answering defendant in the State of California pursuant to California Code of Civil Procedure section 361. 19. Plaintiff has unreasonably delayed in the commencement of this action to the prejudice of defendant, whereby the complaint and each cause of action therein are barred by the doctrine of laches. 20. Defendant alleges that CSK Auto was under no legal duty to warn plaintiff of the hazard associated with the use of products containing asbestos. The purchasers of said products, plaintiff's employers, unions or certain third parties yet to be identified, were knowledgeable and sophisticated users and were in a better position to warn plaintiff of the risk 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 proximate and superseding cause of| plaintiff's damages, if any. In addition, plaintiff was and is a sophisticated user who knew or should have known of the risk associated with using products containing asbestos, if any. As such, CSK Auto cases did not have an obligation to warn a sophisticated user, if any such warning was warranted. WHEREFORE, this answering defendant prays as follows: 1. That plaintiff take nothing by reason of the complaint on file herein; 2. That CSK Auto, Inc., be dismissed with an award of its costs of suit incurred herein; and 3. For such other and further relief as the Court deems just and proper. Dated: December | , 2010 BECHERER KANNETT & SCHWEITZER By: Attorneys for Defen CSK Auto, Inc., erroneously sued as Doe No. 14 4 ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINTBecherer Kannett & Schweitzer 1285 Powell St, Emeryville, CA 94608 910-658-3600 Oo On Dun FF OW NY De Bee ewe Be oe ee ee See AN KFAHAKANH EO 21 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION I, Melissa Keeler, declare that I am, and was at the time of service of the documents herein referred to, over the age of 18 years, and not a party to the action; and I am employed in the County of Alameda, State of California. My business address is 1255 Powell Street, Emeryville, California 94608. On December /_, 2010, I electronically served the document(s) via LexisNexis File & Serve described as: « ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINT FOR PERSONAL INJURY - ASBESTOS on the recipients designated on the Transmission Receipt located on the LexisNexis File & Serve website. I declare under penalty of perjury pursuant to the laws of the State of California that the} foregoing is true and correct and that this declaration was executed on December L> 2010, at Emeryville, California. 5 ANSWER OF DEFENDANT CSK AUTO, INC. TO COMPLAINT