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.
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MICHAEL T. MCCALL, State Bar No. 109580
WALSWORTH FRANKLIN BEVINS & McCALL, LLP
601 Montgomery Street, Ninth Floor ELECTRONICALLY
San Francisco, California 94111-2612
Telephone: (415) 781-7072 F I L ED
mile: a superior Court of California,
Facsimile: (415) 391-6258 County of San Francisco
Attorneys for Defendant AUG 25 2010
HAMILTON MATERIALS, INC. Clerk of the Court
BY: VANESSA WU
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CHARLES HUSBAND, Case No, CGC-09-275098
Plaintiff, ANSWER OF DEFENDANT
HAMILTON MATERIALS, INC,
vs. TO PLAINTIFF'S COMPLAINT FOR
PERSONAL INJURY - ASBESTOS
ASBESTOS DEFENDANTS (B*P) etc.; et al.,
Defendants.
Defendant HAMILTON MATERIALS, INC., named and served herein as DOE 1! (hereafter
“Defendant"), in answering the Plaintiff's unverified complaint, for itself alone, and severing itself
from all others, admits, denies and alleges as follows:
1. Pursuant to California Code of Civil Procedure, Section 431.30, Defendant denies,
both generally and specifically, each, every and all allegations of each and every purported cause of
action or count of Plaintiffs complaint, denying specifically that Plaintiff has been, is or will be
injured or damaged in the manner or sum alleged, or in any other manner or sums at all, and further
denying that Defendant was negligent in any manner, that the alleged product was defective in any
way or that the alleged defect was the proximate cause of the Plaintiff's claimed damages or
injuries.
DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND
DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY
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HAMILTON MATERIALS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT
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CAUSE OF ACTION ALLEGED IN PLAINTIFF'S COMPLAINT AS THOUGH PLEADED
SEPARATELY TO EACH AND EVERY SUCH CAUSE OF ACTION:
FIRST AFFIRMATIVE DEFENSE
2, Plaintiff's complaint and each and every purported cause of action or count thereof
fails to state facts sufficient to constitute a cause or causes of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
3, Defendant is informed and believes and thereon alleges that the acts, injuries and
damages alleged in the complaint occurred and were proximately caused by either the sole
negligence or fault of Plaintiff, which sole negligence or fault bars Plaintiff's recovery, or were
contributed to by Plaintiff's negligence or fault. Plaintiff's recovery, if any, should be reduced by
an amount proportionate to the amount by which Plaintiff's negligence or fault contributed to the
happening of the alleged incident and/or alleged injury.
THIRD AFFIRMATIVE DEFENSE
4. Defendant is informed and believes and thereon alleges that the negligence,
carelessness and other acts or omissions of other Defendants in this lawsuit, as well as other
persons and entities not parties to this lawsuit, proximately caused or contributed to Plaintiffs
injuries and damages, if any. The negligence, carelessness and other acts or omissions of the other
Defendants in this lawsuit, and other persons and entities not parties to this lawsuit, account for one
hundred percent (100%) of the causal or contributing factors relating to Plaintiff's injuries and
damages, if any, and/or constitute the supervening and/or intervening causes of Plaintiff's injuries
and damages, if any.
FOURTH AFFIRMATIVE DEFENSE
5. Defendant is informed and believes and thereon alleges that the accident, injury and
damages alleged in Plaintiff's complaint occurred and were proximately caused by either the sole
negligence of Plaintiff's employers or co-employees, which sole negligence bars Plaintiff's
recovery, or were contributed to by the negligence of Plaintiff's employers or co-employees.
Plaintiff's recovery, if any, must be reduced by an amount proportionate to the amount by which the
negligence of Plaintiff's employers and/or the negligence of Plaintiff's co-employees contributed to
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the happening of the alleged accident and the alleged injuries.
FIFTH AFFIRMATIVE DEFENSE
6. Defendant alleges that while at all times denying any liability whatsoever to
Plaintiff, any alleged liability or responsibility of Defendant is small in proportion to the alleged
liability and responsibility of other persons or entities, including other persons and entities who are
parties herein, and Plaintiff should be limited to seeking recovery from Defendant for the
proportion in which Defendant is allegedly liable or responsible, all such alleged liability and
responsibility being expressly denied.
SIXTH AFFIRMATIVE DEFENSE
7. Defendant is informed and believes and thereon alleges that at the time the alleged
operations, acts and conduct occurred, Plaintiff was acting within the course and scope of
employment and was entitled to receive, did receive and will continue to receive workers’
compensation benefits, Plaintiff's employers failed to provide the Plaintiff with a safe place in
which to work and Plaintiff's employers' negligence, carelessness and other acts and omissions
proximately caused the injuries and damages claimed. Therefore, said employers and their workers’
compensation carriers are barred from any recovery by lien or otherwise herein and Defendant is
entitled to set off any such benefits Plaintiff has received against any judgment rendered in favor of
Plaintiff.
SEVENTH AFFIRMATIVE DEFENSE
8. Defendant is informed and believes and thereon alleges that Plaintiff knew of the
risks and dangers inherent to his conduct and with full knowledge of the risks and dangers and with
an appreciation for the magnitude of the risks and dangers, did voluntarily assume the risks,
injuries and damages, if any, sustained thereby. Plaintiff's assumption of risk bars or
proportionately reduces any recovery by Plaintiff.
EIGHTH AFFIRMATIVE DEFENSE
9. Defendant alleges that Plaintiff has failed to make reasonable efforts to mitigate his
injuries and/or damages, if any.
Jidt
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NINTH AFFIRMATIVE DEFENSE
10. Plaintiff's complaint and each and every cause of action are barred by the applicable
Statute of Limitations, including, but not limited to, Code of Civil Procedure, Sections 335.1, 338,
339, 340.2 and 343.
TENTH AFFIRMATIVE DEFENSE
il. Plaintiff's action is barred by the provisions of Labor Code, Section 3600, et seq.
ELEVENTH AFFIRMATIVE DEFENSE
12. Defendant alleges that Plaintiff has waived and is estopped from asserting any claim
against Defendant by reason of Plaintiff's approval and consent to the risks of the matters causing
the damages, if any, and Plaintiff's acknowledgement of, acquiescence in and consent to the alleged
acts or omissions, if any, of Defendant.
TWELFTH AFFIRMATIVE DEFENSE
13. Defendant alleges that this action is barred by laches as Plaintiff unreasonably
delayed in the bringing of this action and thereby prejudiced the rights of Defendant.
THIRTEENTH AFFIRMATIVE DEFENSE
14. Defendant alleges that Defendant manufactured and produced its products in full
compliance with regulations and/or specifications promulgated by the United States Government
and any recovery by Plaintiff is barred as a consequence.
FOURTEENTH AFFIRMATIVE DEFENSE
15. Defendant alleges that Plaintiff is barred from asserting any claim based on breach
of warranty against Defendant by reason of failure to fulfill the conditions of warranties alleged in
Plaintiff's complaint in the event such alleged warranties are proved at trial.
FIFTEENTH AFFIRMATIVE DEFENSE
16. Defendant alleges that Plaintiff has waived whatever rights Plaintiff might otherwise
have had for breach of warranty in that Plaintiff failed to notify Defendant of any alleged breach of
warranty, express or implied, and/or of any alleged defect in any product manufactured or marketed
by Defendant within a reasonable time after Plaintiff discovered, and/or should have discovered,
any defect or nonconformity, if any existed, thereby prejudicing Defendant from being able to fully
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investigate and defend the allegations contained in Plaintiff's complaint.
SIXTEENTH AFFIRMATIVE DEFENSE
17. Defendant alleges that Plaintiff is now estopped from claiming that any product
manufactured or marketed by Defendant was in any way defective or failed to conform to any
alleged warranties in that Plaintiff failed to notify Defendant of any defect or nonconformity in any
product within a reasonable time after Plaintiff discovered, and/or should have discovered, any
defect or nonconformity, if any existed.
SEVENTEENTH AFFIRMATIVE DEFENSE
18. Defendant alleges that Plaintiff was not in privity of contract with Defendant and
that such lack of privity bars Plaintiff's recovery herein upon any theory of warranty,
EIGHTEENTH AFFIRMATIVE DEFENSE
19. Defendant is informed and believes and thereon alleges that Plaintiff and/or other
persons, without Defendant's knowledge and/or approval, redesigned, modified, altered and/or used
Defendant's product contrary to the instructions and warnings and the customs and practices of the
industry so as to substantially change the character of Defendant's product. Defendant further
alleges that if the products of Defendant were defective in any way, which defectiveness is
specifically denied, such defectiveness resulted solely from the redesign, modification, alteration,
use or other change thereto and not from any act or omission of Defendant. Therefore, the defect,
if any, so created by Plaintiff and/or other persons or parties, as the case may be, was the sole and
proximate cause of the injuries and/or damages, if any, alleged by Plaintiff.
NINETEENTH AFFIRMATIVE DEFENSE
20. Defendant is informed and believes and thereon alleges that the accident, injury and
damages alleged in Plaintiff's complaint were solely and proximately caused by Plaintiff's misuse
of the product. Defendant could not have reasonably foreseen this misuse and Plaintiff's misuse
thereof bars recovery against Defendant.
TWENTIETH AFFIRMATIVE DEFENSE
21. Defendant is informed and believes and thereon alleges that any injuries or damages
suffered by Plaintiff, the existence thereof being expressly denied by Defendant, are the direct and
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proximate result of Plaintiff's particular, idiosyncratic, peculiar or unforeseeable susceptibility to
the alleged product manufactured by Defendant, which reaction was not the result of any conduct
or omission of Defendant nor the result of any defect in any product manufactured by Defendant.
TWENTY-FIRST AFFIRMATIVE DEFENSE
22. Defendant alleges that in light of all relevant factors, on balance with the benefits of
the design of any product alleged to have caused injury to Plaintiff, if any, the benefits outweigh
the risks and dangers, if any, inherent in the said design of any such product.
TWENTY-SECOND AFFIRMATIVE DEFENSE
23. Defendant alleges that if Plaintiff was injured by any product manufactured or
distributed by Defendant, Defendant, irrespective, did not breach any duty to Plaintiff and is not
liable for those injuries or for Plaintiff's claimed damages as the products when manufactured and
distributed conformed to the then current state-of-the-art specifications and because the then
current state-of-the-art medical, scientific and industrial knowledge, art and practice were such that
Defendant did not and could not know that the products might pose a risk of harm in normal and
foreseeable use.
TWENTY-THIRD AFFIRMATIVE DEFENSE
24. Defendant alleges that if Plaintiff was injured by any product manufactured by
Defendant, the products were intended and sold in bulk to a knowledgeable and sophisticated
distributor or user over whom Defendant had no control who was fully informed as to the risks and
dangers, if any, associated with the products and the precautions, if any, required to avoid the risks
and dangers, if any.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
25. Defendant is informed and believes and thereon alleges that Plaintiff is a member of
a sophisticated group of users of Defendant's services, products, materials and/or equipment.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
26. Defendant is informed and believes and thereon alleges that Plaintiff possesses the
level of knowledge and skill based upon Plaintiff's training, education and/or experience such that
Plaintiff would be categorized as a sophisticated user of Defendant's services, products, materials
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and/or equipment.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
27. Defendant is informed and believes and thereon alleges that Plaintiff was trained to
perform the tasks Plaintiff claims caused him to contact with Defendant's services, products,
materials and/or equipment.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
28. Defendant is informed and believes and thereon alleges that Plaintiff would
reasonably be expected to know of the hazards of working with and/or around Defendant's services,
products, materials and/or equipment.
TWENTY-EIGHUTH AFFIRMATIVE DEFENSE
29. Defendant is informed and believes and thereon alleges that Plaintiff was employed
and trained by a company who is a member of a sophisticated group of users of Defendant's
services, products, materials and/or equipment.
TWENTY-NINTH AFFIRMATIVE DEFENSE
30. Defendant alleges that if Plaintiff was injured by any product manufactured by
Defendant, the products were accompanied by good and sufficient labeling when they left the
custody, possession and control of Defendant which gave a conspectus of reasonable and adequate
warnings and directions to the users of the products concerning the purpose for which, and manner
in which, the products were to be used and concerning the risks and dangers, if any, attendant to
said use. Defendant alleges that as a result of the warnings and directions, Defendant fulfilled
whatever duty, if any, that was owed to Plaintiff. If Plaintiff was injured by any such product, the
injuries were proximately caused by the use of the product in disregard of the warnings and
directions which was not reasonably foreseeable to Defendant.
THIRTIETH AFFIRMATIVE DEFENSE
31. Defendant denies any and all liability to the extent that Plaintiff may assert
Defendant's alleged liability as a successor, successor in business, successor in product line or a
portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a
portion thereof, parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial
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owner or member in an entity in which there has been research, study, manufacturing, fabricating,
designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting,
servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding,
manufacturing for others, packaging and advertising of any and all of the products, as alleged in
Plaintiff's complaint.
THIRTY-FIRST AFFIRMATIVE DEFENSE
32. Defendant alleges that Plaintiff herein lacks legal capacity and standing to sue, is not
a real patty in interest or person with superior right to make the claims contained in the complaint
and is thereby precluded from any recovery whatsoever. Additionally, to the extent that Plaintiff
lacks standing or proper appointment to bring the claims he is asserting, any action taken in this
matter with regard to Plaintiff's claims is voidable. Defendant further contends that any declaration
filed by any person asserting a survival claim contains expert opinions and conclusions that are not
supported and that the declarant is not qualified to make.
THIRTY-SECOND AFFIRMATIVE DEFENSE
33. Defendant alleges that Plaintiff did not reasonably rely upon any act, omission or
representation of Defendant.
THIRTY-THIRD AFFIRMATIVE DEFENSE
34. Defendant alleges that Plaintiff's complaint and each and every cause of action
therein fail to state facts sufficient to constitute a cause or causes of action for punitive damages
against Defendant.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
35. Defendant alleges that insofar as the instant complaint is an attempt to recover
punitive or exemplary damages from Defendant, it violates the following United States
Constitutional and California State Constitutional principles:
a. Excessive fines clause of the United States Constitution, Eighth
Amendment and Fourteenth Amendment;
b. The contract clause, Article I, Section 10, clause |, and the Fourteenth
Amendment of the United States Constitution;
c. The due process clause of the United States Constitution, Fourteenth
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Amendment;
d. The equal protection clause of the United States Constitution;
e. The California Constitution due process and equal protection clauses,
Article 1, Section 7(a);
f The California Constitution excessive fines clause, Article 1, Section 17.
WHEREFORE, Defendant HAMILTON MATERIALS, INC. prays for judgment as
follows:
1. That Plaintiff takes nothing from Defendant by virtue of the complaint herein;
2. That Defendant be awarded costs of suit and reasonable attorneys' fees herein; and
3. That Defendant be granted such other and further relief as the Court may deem just
and proper.
Dated: August 25, 2010 Respectfully submitted,
WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP
By: {S/ MICHAEL T. MCCALL.
MICHAEL T. MCCALL
Attorneys for Defendant
HAMILTON MATERIALS, INC.
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HAMILTON MATERIALS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT1 PROOF OF SERVICE
2
3 tam employed in the County of Orange, State of California. 1 am over the age of 18 and
not a party to the within action. My business address is 1 City Boulevard West, Fifth Floor,
4 | Orange, California 92868-3677.
5 On August 25, 2010, 1 served the within document(s) described as:
6 ANSWER OF DEFENDANT HAMILTON MATERIALS, INC. TO PLAINTIFF'S
COMPLAINT FOR PERSONAL INJURY - ASBESTOS
7
on the interested parties in this action as stated below:
8
BRAYTON*PURCELL LLP
9 222 Rush Landing Road.
P. O. Box 6169
0 Novato, CA 94948-6169
1
X] (BY ELECTRONIC MAIL)! provided the documentfs) listed above electronically to the
2 Lexis Nexis website pursuant to their instructions on that website. If the document is
provided to Lexis Nexis electronically by 5:00 p.m., then the document will be deemed
3 served on the date that it was provided to Lexis Nexis,
4 Executed on August 25, 2010, at Orange, California.
5 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
6
7 Ellen Wright isi Ellen Wright
3 (Type or print name) (Signature)
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MeCain LLP HAMILTON MATERIALS, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT
voramenarion Wy
1155-5.2770