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

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SEDGWICK, DETERT, MORAN & ARNOLD LLP
MICHAEL L, FOX Bar No. 173355

GEORGE S. SULLIVAN Bar No. 187793 ELECTRONICALLY

One Market Plaza
Steuart Tower, 8th Floor FILED
San Francisco, California 94105 Superior Court of California,
Telephone: (415) 781-7900 County of San Francisco
Facsimile: (415) 781-2635 APR 07 2009
GORDON PARK-LI, Clerk
Attomeys for Defendant BY: VANESSA WU
CONOCOPHILLIPS COMPANY Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO

CHARLES HUSBAND, CASE NO. 275098

Plaintiffs, DEFENDANT CONOCOPHILLIPS

COMPANY’S ANSWER TO UNVERIFIED
v COMPLAINT

ASBESTOS DEFENDANTS,

Defendants.

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Defendant CONOCOPHILLIPS COMPANY (hereafter “defendant”) answers plaintiff's
unverified complaint for personal injury (hereafter “complaint’) as follows:

1. Under the provisions of Section 431.30 of the Code of Civil Procedure, defendant
denies each 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 State of
California including, but not limited to, Sections 335.1 and 340.2.

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DEFENDANT CONOCOPHILLIPS COMPANY’S ANSWER TO UNVERIFIED COMPLAINTSO OW RR RH BR YR Ne

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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.
SIXTH 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 allegations are
expressly denied, the injuries were solely caused by and attributable to the unreasonable,

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DEFENDANT CONOCOPHILLIPS COMPANY'S ANSWER TO UNVERIFIED COMPLAINTi

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unforeseeable, and inappropriate purpose and improper use which was made of the product.
TENTH AFFIRMATIVE DEFENSE
11. Defendant alieges 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 there is no privity between plaintiff and this answering

defendant.
TWELFTH AFFIRMATIVE DEFENSE

13. 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.

THIRTEENTH AFFIRMATIVE DEFENSE

14, 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
the State of California, and Section 905(b), Title 33 of the United States Code,

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 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 his 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.
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DEFENDANT CONOCOPHILLIPS COMPANY'S ANSWER TO UNVERIFIED COMPLAINT25)
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SIXTEENTH AFFIRMATIVE DEFENSE
17. 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.

SEVENTEENTH AFFIRMATIVE DEFENSE

18. 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 1, 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.

EIGHTEENTH AFFIRMATIVE DEFENSE

19, Defendant alleges that said complaint, to the extent that it seeks exemplary or
punitive damages pursuant to Califormia 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 1, 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.

NINETEENTH AFFIRMATIVE DEFENSE

20. Defendant alleges that plaintiffs 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.

TWENTIETH AFFIRMATIVE DEFENSE

21. 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.

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TWENTY-FIRST AFFIRMATIVE DEFENSE
22, 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.

TWENTY-SECOND AFFIRMATIVE DEFENSE

23. Defendant alleges that the causes of action, if any, attempted to be stated and set
forth in said complaint for negligence per se are barred by California Labor Code Section 6304.5,
and derivative authority.

TWENTY-THIRD AFFIRMATIVE DEFENSE

24. Defendant alleges that plaintiff failed to exercise due diligence to mitigate her
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, at all times relevant to 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-FIFTH AFFIRMATIVE DEFENSE

26. Defendant alleges that plaintiffs’ claims are barred as a matter of law because a
manufacturer bears no duty to warn members of a trade or profession about dangers generally
known to that trade or profession. Vohnson v. American Standard, Inc. (2008) 43 Cal.4th 56.)

TWENTY-SIXTH AFFIRMATIVE DEFENSE

27. 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 liability, pursuant to Privette v. Superior Court (1993) 5 Cal.4th 689, Srith v.
ACandS, Inc. (1994) 31 Cal.App.4th 77, Toland v, Sunland Housing Group, Inc. (1998) 18

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DEFENDANT CONOCOPHILLIPS COMPANYS ANSWER TO UNVERIFIED COMPLAINToO OO Be DON OR mR Ow OUND

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Cal.4th 253, Camargo v, Tjaarda Dairy (2001) 25 Cal. 4th 1235, Hooker v. Department of
Transportation (2002) 27 Cal.4th 198, and Kinsman v. Unocal Corp. (2005) 37 Cal 4th 659.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28. Defendant alleges that the premises referred to in said complaint, if owned or
controlled by defendant at all, were 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
products and materials, if any, were known equally to the government and defendants, and
therefore the complaint and all causes of action therein, if any, are barred by the government
contractor defense (Boyle v, United Technologies Corp., 487 U.S. 500 (1988), and derivative
authority), and the Defense Production Act of 1950, 50 U.S.C. Section 2061, et seq., its statutory
predecessors, and derivative authority.

WHEREFORE, this answering defendant prays that plaintiff take 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 their 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: April 6, 2009 SEDGWICK, DETERT, MORAN & ARNOLD LLP
By:
GEORGE 8. SULLIVAN
Attorneys for Defendant
CONOCOPHILLIPS COMPANY
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Cal.4th 253, Camargo v. Tjaarda Dairy (2001) 25 Cal 4th 1235, Hooker v. Department of
Transportation (2002) 27 Cal.4th 198, and Kinsman vy, Unocal Corp, (2005) 37 Cal.4th 659.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE

28, Defendant alleges that the premises referred to in said complaint, if owned or
controlled by defendant at all, were designed, fabricated, constructed, maintained, and repaired in
compliance with United States government specifications and/or under the direction, contro! and
authority of federal officers, and that the hazards associated with the use of asbestos-containing
products and materials, if any, were known equally to the government and defendants, and
therefore the complaint and all causes of action therein, if any, are barred by the government
contractor defense (Boyle v. United Technologies Corp. , 487 U.S. 500 (1988), and derivative
authority), and the Defense Production Act of 1950, 50 U.S.C. Section 2061, et seq,, its statutory
predecessors, and derivative authority.

WHEREFORE, this answering defendant prays that plaintiff take 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 their 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: April 7, 2009 SEDGWICK, DETERT, MORAN & ARNOLD LLP

By:
GEORGE S. SULLIVAN
Attorneys for Defendant
CONOCOPHILLIPS COMPANY

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DEFENDANT CONOCOPHILLIPS COMPANY'S ANSWER TO UNVERIFIED COMPLAINTPROOF OF SERVICE

Tam a resident of the State of California, over the age of eighteen years, and not a party to
the within action. My business address is Sedgwick, Detert, Moran & Amold LLP, One Market
Plaza, Steuart Tower, 8th Floor, San Francisco, California 94105. On the date executed below, I
electronically served the document(s) via LexisNexis File & Serve described as:

DEFENDANT CONOCOPHILLIPS COMPANY’S ANSWER TO UNVERIFIED
COMPLAINT

on the recipients designated on the Transaction Receipt located on the 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 April 7, 2009, at San Francisco, California.

PROOF OF SERVICE
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