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

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JENNIFER A. KUENSTER, State Bar No. 104607
ROSS M. PETTY, State Bar No. 166366

NEVIN C. BROWNFIELD, State Bar No. 225175 ELECTRONICALLY

NIXON PEABODY LLP

One Embarcadero Center, Suite 1800 FILED

San Francisco, CA 94111 Superior Court of California,

Telephone: (415) 984-8200 County of San Francisco

Facsimile: (866) 452-6538 JAN 06 2010
GORDON PARK-LI, Clerk

Attorneys for Defendant BY: WILLIAM TRUPEK

SHELL OIL COMPANY Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

CHARLES HUSBAND, Case No. CGC-09-275098
Plaintiff,
DEFENDANT SHELL OF. COMPANY’S
v. ANSWER TO PLAINTIFF’S COMPLAINT
FOR PERSONAL INJURY— ASBESTOS
ASBESTOS DEFENDANTS (BP), et al.,

Defendants.

Defendant Shell Oil Company (hereinafter “defendant”) answers plaintiff's Complaint for

Personal Injury - Asbestos (hereinafter “complaint”) as follows:
GENERAL DENIAL
Pursuant to section 431.30 of the Code of Civil Procedure, defendant denies, generally and
specifically, each and every allegation of the complaint, denies that plaintiff has been injured in
any manner by the acts or omissions of defendant, and denies that defendant is legally responsible
for any damages that may have been suffered by plaintiff.

FIRST AFFIRMATIVE DEFENSE

As a first separate and distinct affirmative defense to the entire complaint, and to each
cause of action thereof, defendant alleges that plaintiff has failed to state facts sufficient to

constitute a claim upon which relief may be granted.

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DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT.ao WD

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SECOND AFFIRMATIVE DEFENSE

As a second separate and distinct affirmative defense, defendant alleges that the entire
complaint, and each cause of action thereof, is barred by the limitations periods set forth in
sections 337(1)-(3); 337.1(a)-(f); 337.15(a)-(g); 338(a)-(k); 338.1; 339(1)-(3); 340(1)-(5);
340.2(a)-(c); 343; 355; and, 361 of the Code of Civil Procedure, and all other applicable
limitations periods.

THIRD AFFIRMATIVE DEFENSE

As a third separate and distinct affirmative defense to the entire complaint, and each cause
of action thereof, defendant alleges that plaintiff has failed to join all proper parties, or
alternatively, have misjoined the parties to this action.

FOURTH AFFIRMATIVE DEFENSE

As a fourth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that plaintiff lacks standing to sue defendant.

FIFTH AFFIRMATIVE DEFENSE

As a fifth separate and distinct affirmative defense to the entire complaint, and each cause
of action thereof, defendant alleges that plaintiff was negligent and unreasonable in or about the
matters alleged in the complaint, and that such matters actually and proximately caused all or part
of plaintiff's claimed injuries and damages, if any. Any damages which plaintiff seeks to recover
from defendant must be reduced in proportion to the extent that plaintiff's own negligence
contributed to the claimed injuries or damages.

SIXTH AFFIRMATIVE DEFENSE

As a sixth separate and distinct affirmative defense to the entire complaint, and each cause
of action thereof, defendant alleges that all or part of plaintiff's injuries or damages, if any, were
actually and proximately caused by the conduct of third parties, and not defendant.

SEVENTH AFFIRMATIVE DEFENSE

As a seventh separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that plaintiff failed to exercise reasonable diligence in

mnitigating any damages allegedly sustained as a result of the alleged acts of defendant.

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DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT.ao WD

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EIGHTH AFFIRMATIVE DEFENSE

As an eighth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that at all times mentioned, plaintiff had knowledge of
the risks of the matters set forth in the complaint, as well as the magnitude of the risks, and
thereafter, knowingly, willingly, and voluntarily assumed those risks.

NINTH AFFIRMATIVE DEFENSE

As a ninth separate and distinct affirmative defense to the entire complaint, and each cause
of action thereof, defendant is informed and believes, and based thereon alleges that plaintiff
claims workers’ compensation benefits from one or more of plaintiff's employers or the
employers’ insurance carriers, and that any award of damages, judgment or settlement in favor of
plaintiff against defendant should be reduced by the amount paid, or to be paid in the future, by
those employers or their workers’ compensation carrier(s).

TENTH AFFIRMATIVE DEFENSE

As a tenth separate and distinct affirmative defense to the entire complaint, and each cause
of action thereof, defendant alleges that the entire complaint, and each cause of action thereof, is
barred against defendant by the provisions of section 3601, ef seg., of the Labor Code and Section
905(b), Tide 33 of the United States Code, and related authority.

ELEVENTH AFFIRMATIVE DEFENSE

As an eleventh separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that any danger or defect on its premises was obvious or
could have been observed by plaintiff's exercise of reasonable care.

TWELFTH AFFIRMATIVE DEFENSE

As a twelfth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that if plaintiff sustained injuries or damages attributable
to the use of any product allegedly researched, tested, studied, manufactured, fabricated,
inadequately researched, designed, inadequately tested, labeled, assembled, distributed, leased,
bought, offered for sale, sold, supplied, inspected, serviced, installed, contracted for installation,

repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised.

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DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT.ao WD

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and/or which contained or lacked warnings by defendant, which allegations are expressly denied,
the injuries or damages were proximately caused by the unreasonable and unforeseeable misuse,
abuse, alteration, or improper maintenance of the product by plaintiff or by others.

THIRTEENTH AFFIRMATIVE DEFENSE

As a thirteenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that the injuries and damages asserted by plaintiff were
proximately caused by a superseding, intervening cause.

FOURTEENTH AFFIRMATIVE DEFENSE

As a fourteenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that all products and materials allegedly researched,
tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested,
labeled, assembled, distributed, leased, bought, offered for sale, sold, supplied, inspected,
serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded,
manufactured for others, packaged, advertised, and/or which contained or lacked warnings by
defendant were not defective in any manner, as said products and materials conformed with the
state-of-the-art in existence at all times mentioned in the complaint.

FIFTEENTH AFFIRMATIVE DEFENSE

As a fifteenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that the state of medical and scientific knowledge and
published literature and materials reflecting such state of medical and scientific knowledge, at all
times pertinent hereto, was such that defendant neither knew, nor could have known, that plaintiff
could sustain an asbestos-related injury from any brief or intermittent exposure that is alleged to
have occurred at any of defendant’s premises.

SIXTEENTH AFFIRMATIVE DEFENSE

As a sixteenth separate and distinct affirmative defense to the entire complaint and each
cause of action thereof, defendant alleges that the entire complaint, and each cause of action
thereof, is barred on the grounds that the products or materials referred to in the complaint, if any,

were not a substantial factor in bringing about the injuries and damages alleged by plaintiff.

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SEVENTEENTH AFFIRMATIVE DEFENSE

As a seventeenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that the entire complaint, and each cause of action
thereof, is barred against defendant by the doctrine of waiver.

EIGHTEENTH AFFIRMATIVE DEFENSE

As an eighteenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that the entire complaint, and each cause of action
thereof, is barred against defendant by the doctrine of estoppel.

NINETEENTH AFFIRMATIVE DEFENSE

As a nineteenth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that the entire complaint, and each cause of action
thereof, is barred against defendant by the doctrine of unclean hands.

TWENTIETH AFFIRMATIVE DEFENSE

As a twentieth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that any defect or danger on its premises was trivial.

TWENTY-FIRST AFFIRMATIVE DEFENSE

As a twenty-first separate and distinct affirmative defense to the entire complaint and each
cause of action thereof, defendant alleges that the entire complaint, and each cause of action
thereof, is barred on the grounds that plaintiff and/or plaintiff's employers were sophisticated users
or buyers of the products or materials referred to in the complaint.

TWENTY-SECOND AFFIRMATIVE DEFENSE

As a twenty-second separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, defendant alleges that plaintiff has improperly split the causes of
action and seeks to maintain a duplicative lawsuit based on the same facts and circumstances as a
lawsuit previously filed.

TWENTY-THIRD AFFIRMATIVE DEFENSE

As a twenty-third separate and distinct affirmative defense to the entire complaint, and

each cause of action thereof, defendant alleges that the provisions of the Fair Responsibility Act of

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DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT.ao WD

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1986, Civil Code sections 1431.1 through 1431.5 are applicable. Liability of this 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 the complaint.
Defendant shall be liable only for the portion of non-economic damages, if any, allocated to
defendant in direct proportion to defendant's percentage of fault, if any.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

As a twenty-fourth separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, defendant alleges that the causes of action, if any, asserted and set
forth in the complaint on a theory of alternate entity and/or successor liability fail to state facts
sufficient to constitute a cause of action against this defendant.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

As a twenty-fifth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that the causes of action, if any, asserted and set forth in
the complaint for negligence per se are barred by Labor Code section 6304.5, and related
authority.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

As a twenty-sixth separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, 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, Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, Toland vy. Sunland Housing Group,
Inc. (1998) 18 Cal.4th 253, Camargo v. Tiaarda Dairy (2001) 25 Cal.4th 1235, and Hooker v.
Department of Transportation (2002) 27 Cal.4th 198,

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

As a twenty-seventh separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, defendant alleges that the premises and products referred to in the
complaint, if owned, controlled, manufactured, distributed or sold by defendant at all, were

designed, fabricated, constructed, maintained, and repaired in compliance with United States

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DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT.ao WD

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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. (1988) 487 U.S. 500, and related authority), and the Defense Production Act

of 1950, 50 U.S.C. Section 2061, ef seq., its statutory predecessors, and related authority.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE

As a twenty-eighth separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, defendant alleges that plaintiffs complaint fails to state facts
sufficient to entitle plaintiff to an award of punitive or exemplary damages against defendant.

TWENTY-NINTH AFFIRMATIVE DEFENSE

As a twenty-ninth separate and distinct affirmative defense to the entire complaint, and
each cause of action thereof, defendant alleges that plaintiff is not entitled to an award of punitive
or exemplary damages in this action. Such an award would be unconstitutional unless defendant
is accorded the safeguards provided under the Constitution of the State of California and the
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

THIRTIETH AFFIRMATIVE DEFENSE

As a thirtieth separate and distinct affirmative defense to the entire complaint, and each
cause of action thereof, defendant alleges that to the extent plaintiff's claims arise out of contract,
plaintiff's claims do not state facts sufficient to entitle plaintiff to an award of punitive or
exemplary damages against defendant.

WHEREFORE defendant prays judgment as follows:

1. That plaintiff takes nothing by way of the complaint;
2. That the present action be dismissed with prejudice:
3. That the court enter judgment in favor of defendant and against plaintiff on each

claim for relief;
4. That an apportionment of fault be made among all parties, and a judgment and

declaration of partial indemnification and contribution be made against all other parties or persons

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DEFENDANT SHELL OIL COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT.1

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in accordance with the apportionment of fault;

5. For attorneys’ fees as allowed by law;

6. For costs of suit; and,

7. For such other and further relief as this Court may deem just and proper.
Date: January 5, 2010 NIXON PEABODY LLP

By._/s/ Nevin C. Brownfield

Nevin C. Brownfield
Attorneys for Defendant
SHELL OIL COMPANY

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
Charles Husband v. Asbestos Defendants

SFSC CGC - 09 - 275098

|, Shelly K. Wetherington, declare that |am, and was at the time of service
of the documents herein referred to, over the age of eighteen and not a party to
the within action. | am employed in the County of San Francisco, California. My
business address is One Embarcadero Center, #1800, San Francisco, CA 94111.
On January 6, 2010, | electronically served the document/s via Lexis Nexis File &

Serve described as:

Defendant Shell Oil Company’s Answer to Complaint

on the recipients designated on the Transaction Receipt located on the
LexisNexis File & Serve Website. | declare under the penalty of perjury pursuant
to the law of the State of California that the foregoing is true and correct and

was executed on January 6, 2010 at San Francisco, CA.

/s/ Shelly K. Wetherington

Shelly K. Wetherington

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION