Answer: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Becherer
Kannett &
Schweitzer

1285
Powell St.
Emeryville, CA

510-658-3600

oo WON OH BP HO NY

me

12

Mark S. Kannett (SBN 104572)
Emily D. Bergstrom (SBN 191395)

Lysle J. Kapp (SBN 223907) ELECTRONICALLY
BECHERER, KANNETT & SCHWEITZER F I L E D
1255 Powell Street Superior Court of California,
Emeryville, CA 94608 County of San Francisco
Telephone: (510) 658-3600 OCT 21 2010
Facsimile: (510) 658-1151 Clerk of the Court

BY: JUDITH NUNEZ

Deputy Clerk

Attorneys for Defendant
DILLINGHAM CONSTRUCTION, N.A., INC.

SUPERIOR COURT-OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

CHARLES HUSBAND, ) CASE NO. CGC-09-275098
)
Plaintiff, } ANSWER OF DEFENDANT DILLINGHAM
} CONSTRUCTION N.A., INC. TO PLAINTIFF'S
vs. } COMPLAINT FOR PERSONAL INJURY -
} ASBESTOS
ASBESTOS DEFENDANTS, )
)
Defendants. )
)

COMES NOW, defendant, DILLINGHAM CONSTRUCTION N.A., INC. (“DCNA”), in answer
to plaintiff's complaint on file herein and by virtue of the provisions of Code of Civil Procedure §
431.30, and files its general denial to the complaint and denies each and every, all and singular,
generally and specifically, all the allegations contained therein, and each cause of action thereof,
and further denies that plaintiff has been damaged in any sum, sums or at all, and specifically
denies:

1. That any act or omission of DCNA was responsible for any asbestos-containing
product being present at the work site at which the alleged asbestos exposure of plaintiff
CHARLES HUSBAND occurred.

2. That plaintiff CHARLES HUSBAND came into contact with any asbestos-

containing product for which DCNA was responsible.

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURYBecherer
Kannett &
Schweitzer

510.658-3600

eo oN Oo BF Ww NY HY

NO NY NY YD NO Be Be ee eR a
FO Nb fF OC Oo eA N DO HM FB WN YF CO

25
26
27
28

3. That any act or omission of DCNA caused or contributed to any injury purportedly
suffered by plaintiff.

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

This answering 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 CHARLES HUSBAND 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 plaintiffs’ recovery should therefore be
reduced to the extent of plaintiff CHARLES HUSBAND ’s negligence.

SECOND AFFIRMATIVE DEFENSE
(Assumption of Risk}

That plaintiff CHARLES HUSBAND 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
(Employer Negligence - Witt v. Jackson)

By way of alleging the doctrine of Witt v. 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 CHARLES HUSBAND was employed by

various employers, the names of which are unknown to this defendant at this time, and working

2

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURY1 within the course and scope of his employment and/or employments, that said employer and/or
2 employers and plaintiff were subject to the provisions of the Worker’ Compensation Act of the
3 State of California, that certain sums have been or will be paid to or on behalf of plaintiff herein
4 under the applicable provisions of the Labor Code of the State of California; that said employer,
5 || excepting when plaintiff was employed by this defendant, and/or employers and each of them
6 || were negligent and careless and that such negligence and carelessness proximately contributed
7 || and caused the injuries of plaintiff; that by these premises any award made to the plaintiff, if
8 || any award is made at all, must be reduced by any payment to them by plaintiff's employer or|
9 | employers’ compensation carrier under the authority of Witt v. Jackson (1961) 57 Cal.2d 57.
10 FOURTH AFFIRMATIVE DEFENSE
11 (Employer’s Negligence)
12 This answering defendant alleges that plaintiff CHARLES HUSBAND ’s employers, except}
13 | when plaintiff was employed by this defendant, were contributorily negligent and careless in
14 | and about the matters alleged in the complaint, and that such negligence and carelessness was
15 | a proximate cause of any injuries and damages suffered by plaintiff, if any there were.
16 FIFTH AFFIRMATIVE DEFENSE
17 {Employer's Assumption of the Risk)
18 This answering defendant alleges that plaintiff CHARLES HUSBAND ’s employers, except
19 | when plaintiff was employed by this defendant, voluntarily and knowingly entered into and
20 | engaged in the operations, acts and conduct alleged in said complaint, and voluntarily and
21 | knowingly assumes all of the risks incident to said operations, acts and conduct at the time and
22 | place mentioned in the complaint.
23 SIXTH AFFIRMATIVE DEFENSE
Komen 24 (Alteration or Misuse)
Schweitzer
= 25 This answering defendant alleges that the product in question was properly designed
EreyileCA 26 | and manufactured, and was fit for the purposes intended; that said product was improperly
eee 27 | maintained and used and was abused, resulting in plaintiff's damages, if any there were.
28

3

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURYBecherer
Kannett &
Schweitzer

1255
Povell St.
Emeryville, CA
94608

910-658-3600

oO wnt ana pb ww NB

PN NN NY HF eB ee ee ee
BON F&F 6 O©eNA BwWwN FO

25

SEVENTH AFFIRMATIVE DEFENSE
oy (Failure to Mitigate}
This answering defendant alleges that the injuries, loss or damage, if any there was to
plaintiff, were aggravated due to plaintiff's failure to use reasonable diligence to mitigate them.

EIGHTH 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 applicable statute of limitations, including, but not limited to
those set forth in California Code of Civil’Procedure §§ 335.1, 337(1), 337.1(a), 338(a), 339(1),
340.2(a), 340.8(a), 343 and California Commercial Code § 2725, as well as the California
borrowing statute set forth in California Code of Civil Procedure § 361.

NINTH AFFIRMATIVE DEFENSE
(Workers’ Compensation Bar)

This answering defendant alleges that plaintiff CHARLES HUSBAND was, at all or some
relevant times, employed by this defendant and that plaintiffs claim for injuries or damages
against this defendant is barred by the Workers’ Compensation exclusive remedy provisions
contained in California Labor Code § 3600 et seq.

TENTH 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.

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.
Mf

Mt
4

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFF'S COMPLAINT FOR PERSONAL.
INJURYBecherer
Kannett &
Schweitzer

510-658-3600

Ho on Da FF WN He

NNN YN Be ee we Bee ee ek
bh WN FY OO WN DMN F WN FS GS

25

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 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 liability 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 a 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 CHARLES HUSBAND 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 herein.

Mf
If
Hf

5

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURYBecherer
Kannett &
Schweitzer

1955
Powell St.
Emeryville, CA

94608
510-658-3600

oO ON DA oO BF OW NY

NNN NNN NNN BY BP Be ew ee eB ee
orangsk &®OS FS COONAN Aa KROHN SF OG

SIXTEENTH AFFIRMATIVE DEFENSE

“ (Sophisticated User)

This answering defendant alleges that Defendant DCNA 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, DCNA did not have an obligation to warn a sophisticated user, if any
such warning was warranted.

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 of any co-defendant named in said complaint. This answering
defendant shall be liable only for the amount of said non-economic damages, if any, allocated to
this answering defendant’s percentage of fault, if any.

EIGHTEENTH 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 peculiar risk according to the California Supreme Court decision of Privette v.

Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72.

6

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURYBecherer
Kannett &
Schweitzer

1255
Powell St.
Emeryville, CA

94608
510-658-3600

oo ON OH fF WN HK

be

te
oOo on anu fF Ww ND

Oo NY YY NY YN NY NY WY
on Dna FB WK KF SC

NINETEENTH AFFIRMATIVE DEFENSE ,

os (Outside Scope)

This answering defendant alleges that at the time and place of the happening of the
occurrence as alleged in the complaint, plaintiff CHARLES HUSBAND was engaged as a
contractor outside the scope and control of this answering defendant, thus precluding plaintiff
from asserting a claim against this answering defendant.

TWENTIETH AFFIRMATIVE DEFENSE

(Unclean Hands)
This answering defendant alleges that the claims of plaintiff are barred by the doctrine of|
unclean hands.
TWENTY-FIRST AFFIRMATIVE DEFENSE
{Res Judicata And Collateral Estoppel)
This answering defendant alleges that the claims of plaintiff are barred by the doctrine of
res judicata and collateral estoppel.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(Punitive Damages Unconstitutional)
This answering defendant alleges that the claims made by the plaintiff for punitive
damages are unconstitutional under the United States Constitution and the California State
Constitution.

TWENTY-THIRD AFFIRMATIVE DEFENSE

(State of the Art)

This answering defendant alleges that based upon the state of the art, its failure, if any!
there was, to warn plaintiff of the dangers associated with the handling of asbestos-containing|
products, or inhalation of airborne asbestos fibers, was reasonable and in compliance with
applicable industry standards at the time, and it did not know, nor was it reasonable for it to
know, that airborne asbestos fibers, if any, which were allegedly inhaled by plaintiff could cause

injury.

7

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFF’S COMPLAINT FOR PERSONAL
INJURYBecherer
Kannett &
Schweitzer

1255
Powell St
Emeryville, CA
94608

910-658-3600

Oo ont Aun fF Ww DY

NNN YN DYN NY NNND Be ewe Be ee se ei
or A A FOS FH FCO BANA A B WH KO

TWENTY-FOURTH AFFIRMATIVE DEFENSE
“ {Primary Rights and Res Judicata)

This answering defendant alleges that if plaintiff's claims were already litigated and
resolved in any prior action, plaintiff's claims herein are barred based upon the primary rights
and res judicata doctrines which prohibit splitting a single cause of action into successive suits,
and seeking new recovery for injuries for which the plaintiff has been previously compensated
by alleged joint tortfeasors.

WHEREFORE, this answering defendant prays as follows:

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

2. That DILLINGHAM CONSTRUCTION N.A., INC. 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: October. Z| 2010 BECHERER KANNETT & SCHWEITZER

By: oe
Mark S. Kannett
Attorneys for Defendant

DILLINGHAM CONSTRUCTION, N.A., INC.

8

ANSWER OF DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFF'S COMPLAINT FOR PERSONAL
INJURYBecherer
Kannett &
Schweitzer

15s
Powell St.
Emeryille, CA
94608
510-458-3600

co mn Dw fF WO NY RB

NNN FB eR ew Be ee eB ek
Spe F6 © MON ATE wDWNHHE OC

23
24
25

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

|, Kristina Kalkhorst, declare that | 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 | am employed in
the County of Alameda, State of California. My business address is 1255 Powell Street,
Emeryville, California 94608.

On October-4, 2010, | electronically served the document(s) via LexisNexis File & Serve
described as:
on the recipients designated on the Transmission 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 that this declaration was executed on October, 2010, at

Emeryville, California.
Kfistina Kalkhorst