On December 06, 2001 a
Answer
was filed
involving a dispute between
Jordan, Cheryl Lynn,
Jordan, James,
Thomas Dee Engineering Company,
and
4520 Corp.,
Abblummus Global, Inc.,
A C And S,Inc.,
A.H. Voss Company,
Albay Construction,
Allis-Chalmers Corp. Product Liability Trust,
American Honda Motor Co., Inc.,
American Standard, Inc.,
Asbestos Corp. Limited,
Asbestos Corporation Ltd.,
Asbestos Defendants,
Babcock Borsig Power Inc Ref To Db Riley Inc,
Blue Diamond Corp.,
Borg Warner Inc.,
Borgwarner Inc. Fka Borg-Warner Automotive, Inc.,
Bragg Investment Company, Inc.,
Bridgestone Firestone Americas Holdings, Inc.,
Bridgestone Firestone,Inc.,
Bridgestone Firestone North American Tire, Llc,,
Bwd Automotive,
Calaveras Cement Co.,
Certainteed Corporation,
Chevron Products Company,
Colonial Sugar Refining Company,
Conocophillips Company,
Consolidated Insulation, Inc.,
Crane Co.,
Crown Cork & Seal Company,Inc.,
Daimlerchrysler Corporation,
Dana Corporation,
D. Cummins Corporation,
Diamond International Corp.,
Dillingham Construction N.A.,Inc.,
Dixon Boiler Works Inc,
Dixon Boiler Works, Inc.,
Does 1-800,
Dow Chemical Company,
Dresser Industries Inc.,
D.W. Nicholson Corporation,
Eaton Corporation,
Elliott Company,
Elliott Turbomachinery Co., Inc.,
Fisher Controls International, Llc,
Flintkote Co.,
Flintkote Mines Ltd.,
Flowserve Us Inc,
Flowserve Us Inc.,
Fluor Corporation,
Fmc Corporation -Turbo Pump Operation,
Ford Motor Company,
Foster Wheeler Llc,
Garlock Sealing Technologies, Ll,
Gatke Corporation,
General Electric Company,
General Motors Corporation,
General Refractories Company,
Genstar Co.,
Genuine Parts Company,
Goodrich Corporation,
Grinnell Corporation,
Halliburton Company,
Hanson Cement, Inc.,
Henry Vogt Machine Co.,
Hercules Powder Company,
Honeywell International, Inc. Fka Alliedsignal,
Imo Industries Inc.,,
Imo Industries, Inc.,
J.R.Simplot Company,
J.R. Simplot Company, A Nevada Corporation,,
J.T. Thorpe & Son, Inc.,
Kaiser Gypsum Company, Inc.,
Keenan Properties, Inc,
Kubota Corporation,
Lamons Gasket Company Dba Power Engineering &,
Lear Siegler Diversified Holdings Corp.,
Maremont Corporation,
Metalclad Insulation Corporation,
Monsanto Company,
Morton International, Inc. A Rohm And Haas Company,
Oakfabco, Inc.,
Oscar E. Erickson, Inc.,
Owens-Illinois, Inc.,
Pacific Coast Building Products, Inc Dba Pacific,
Parker Hannifin Corporation,
Parker-Hannifin Corporation,
Parsons Energy & Chemical Group, Inc.,
Parsons Energy & Chemicals Group Inc,
Plant Insulation Company,
Pnuemo Abex Corporation, As Successor,
Power Engineering & Equipment Co. Inc.,
Quigley Company, Inc.,
Rapid-American Corporation,
Republic Supply Company,
Rheem Manufacturing Co,
Rheem Manufacturing Company,
Robertson-Ceco Corporation,
Rosendahl Corporation,
Santa Fe Braun, Inc. As Successor-In-Interest To,
Sequoia Ventures, Inc.,
Shell Oil Company,
Soo Line Railroad Company,
Standard Motor Products,
Stuart Radiator Core Manufacturing Co Inc,
Stuart Radiator Core Manufacturing Co. Inc.,
Stuart-Western, Inc.,
Sugar City Building Materials Inc.,
Taylor Plumbing Supply Company, Dba Globe Plumbing,
Taylor Plumbing Supply Inc.,
Temporary Plant Cleaners, Inc.,
The Budd Company,
Thomas Dee Engineering Company,
Thorpe Insulation Company,
Tosco Corporation,
Tosco Refining Company,
Trimon, Inc.,
Union Carbide Corporation,
Unocal Corporation,
Viacom Inc., Successor By Merger To Cbs Corporatio,
Vogt Valve Company,
Waldron, Duffy, Inc.,
Westburne Supply, Inc.,
Yale Industrial Products, Inc.,
Zurn Industries, Inc.,
for ASBESTOS
in the District Court of San Francisco County.
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oo
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San Francisco Superior Courts
Information Technology Group
Document Scanning Lead Sheet
Dec-20-2005 9:58 am
Case Number: CGC-01-402113
Filing Date: Dec-19-2005 9:42
Juke Box: 001 Image: 01348317
IDED ANSWER TO 1ST AMENDED COMPLAINT FILED BY DEFEN
JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)
001001348317
Instructions:
Please place this sheet on top of the document to be scanned.
ae eam oe oe
C
GABRIEL A. JACKSON, ESQ. State Bar No. 98119
JAMES R. COLGAN, State Bar No. 144072
JACKSON & WALLACE LLP
FILED
55 Francisco Street, 6th Floor
San Francisco, CA: 94133
Tel: 415.982.6300 San Francisco
Gounty Superior Court
Fax: 415.982.6700
Attorneys for Defendant
DEC 1 9 2005
LAMONS GASKET COMPANY dba POWER G ony i “
ENGINEERING & EQUIPMENT COMPANY AND BY:
dba POWER ENGINEERING COMPANY
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN FRANCISCO
10
1 JAMES JORDAN and SHERYL Case No. 402113
JORDAN,
12 FIRST AMENDED ANSWER OF
Plaintiff, DEFENDANT LAMONS GASKET
13 COMPANY dba POWER ENGINEERING
Vv & EQUIPMENT COMPANY AND dba
14 POWER ENGINEERING COMPANY TO
ASBESTOS DEFENDANTS (BP), et al. UNVERIFIED COMPLAINT FOR
15 PERSONAL INJURY
Defendants.
16
17
Comes now defendant LAMONS GASKET COMPANY dba POWER ENGINEERING
18 |
& EQUIPMENT COMPANY AND dba POWER ENGINEERING COMPANY for itself alone,
19
and in answer to plaintiffs’ Complaint on file herein, and to each and every cause of action
20
thereof, and by virtue of the provisions of CCP §431.30, now files its general denial to said
21
Complaint and to each and every cause of action thereof, and in answer to all the allegations
22
thereof, denies that the plaintiffs have been’ damaged in any sum or sums whatsoever, or at all, by
23
any act or omission of this answering defendant.
24
AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
25
answering defendant alleges that the Complaint and each cause of action therein, fails to state
26
facts sufficient to constitute a cause of action.
27
Mt
28
Jacrson VE WALLACE 1
SAN FRANCISCO FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA
POWER ENGINEERING COMPANY
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AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
this answering defendant alleges that plaintiffs
are barred from recovery
by the applicable statute of limitations, including but not limited
to California Code of Civil Procedure Sections 319, 320, 337.1, 337.15, 338, 399, 340(3) 340.2,
343, and California Commercial Code Sections 2725(1) and 2725(2).
AS AND FOR A THIRD, SEPARATE and DISTINCT AFFIRMATIVE DEFENSE, this
answering defendant alleges that the plaintiffs were themselves negligent and careless in an about
the matters and events alleged in the Complaint, and said negligence proximately contributed to
the alleged damages, if any there were, and as a result thereof, the principles of equitable
10 comparative negligence must be applied to bar plaintiffs’ action.
i AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
12 this answering defendant alleges that the injuries, loss and/or damages alleged in said Complaint
13 by plaintiffs, if any there was, were caused by the carelessness and negligence on the part of the
4 remaining defendants in that said carelessness and negligence on the part of said remaining
15 defendants proximately contributed to the happening of the subject event and the injuries, loss or
16 damages alleged by the plaintiffs’ herein, and that any judgment rendered against this answering
17 defendant be reduced or nullified to the extent of such negligence and carelessness on the part of
18 the remaining defendants as aforesaid.
19 AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this
20 answering defendant alleges that the plaintiffs’ injuries and damages which may been sustained as
21 a result of events mentioned in the Complaint, if any there was, were proximately caused by the
22 carelessness and negligence of plaintiffs and the remaining defendants, and that the respective
23 negligence of each said party to this suit ought to be equitably apportioned among the parties
24 hereto.
25 AS AND FOR THE SIXTH, SEPARATE AND DISTINCT DEFENSE, this answering
26 defendant alleges that at the time of the occurrence of the matters mentioned in the plaintiffs’
27 Complaint, the plaintiffs themselves had knowledge of those matters alleged in the Complaint and
28 plaintiffs did, with said knowledge, voluntarily and of their free will and act, place themselves in
JACKSON & WALLACE 2
SAN FRANCISCO. FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT
COMPANY AND DBA’
t POWER ENGINEERING COMPANY
aa. ee
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an unsafe and dangerous position and by reason thereof, plaintiffs did assume the risk and all
risks ordinarily incident thereto.
AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the products referred to in the Complaint were
not used in a safe and normal manner or in the manner in which they were intended to be
used,
and that such misuse proximately contributed to the injuries to plaintiffs and the damages and
losses resulting there from, if any there were, and bars plaintiffs’ recovery herein.
AS AND FOR A EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
9 this answering defendant alleges that prior to and at the time referred to in plaintiffs’ Complaint,
10 the products referred to in the Complaint were abused, altered, modified, or changed in a manner
11 that was not reasonably foreseeable, that such abuse, modification, alteration, or change
12 proximately contributed to the injuries to plaintiffs and the damages and losses resulting there
13 from, if any there were, and bars plaintiffs’ recovery herein. .
14 AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
15 this answering defendant alleges that at all times herein mentioned, plaintiffs were in the course
16 and scope of their employment and that the injuries sustained by plaintiffs, if any there were,
17 were caused or contributed to by the carelessness and negligence of plaintiffs’ employers,
18 entitling this answering defendant to a set-off in the amount equal to the extent of payments made
19 by said employers’ workers’ compensation carrier,
20 AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE,
21 this answering defendant alleges that the plaintiffs’ employers were negligent and careless in
22 about the matters alleged in the Complaint and proximately contributed to the injuries and
23 damages, if any there were, sustained by plaintiffs; that by reason of the premises said employers
24 and their workers’ compensation carrier are barred from recovery of any payments heretofore or
25 hereafter made to plaintiff's pursuant to the workers’ compensation laws of the State of California
26 under the doctrine of Witt v. Jackson, 57 Cal.2d 57.
27 AS AND FOR A ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
28 DEFENSE, this answering defendant alleges that plaintiffs’ Complaint herein is barred by Labor
JACKSON & WALLACE 3
SAN. Franco FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT
COMPANY AND DBA
POWER ENGINEERING COMPANY
«
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Code §3600, et seq.
AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that plaintiffs’ Complaint herein is barred by the
Doctrine of Laches.
AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the asbestos-containing products of defendant
which are alleged to have caused injury to plaintiffs were manufactured in compliance with and
supplied pursuant to mandatory government specifications which required the use of asbestos.
Accordingly, defendant is immune from liability or any damages suffered by plaintiffs as a
10 consequence of exposure to asbestos contained in such products.
nN AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
12 DEFENSE, this answering defendant alleges that its compliance with all governmental standards
13 is a complete defense to plaintiffs’ action.
14 AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
15 DEFENSE, this answering defendant alleges that plaintiffs failed and neglected to use reasonable
16 care to protect themselves and to minimize the losses and damages complained of, if any there
17 were,
18 AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
19 DEFENSE, this answering defendant alleges that plaintiff's are barred from asserting any claim
20 based on breach of warranty by reason of their failure to fulfill the conditions of warranties
21 alleged in the Complaint in the event such alleged warranties are proved at trial.
22 AS AND FORA SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
23 DEFENSE, this answering defendant alleges that plaintiffs within a reasonable time failed to give
24 notice to defendant of the claimed breach of warranty or defects alleged in the Complaint on file
25 herein in the manner and form prescribed by law.
26 AS AND FOR A EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
27 DEFENSE, this answering defendant alleges that there was no privity or other legal relationship
28 between this answering defendant and plaintiffs herein sufficient to entitle the plaintiffs to any
JACKSON & WALLACE. 4
SAN FRANCISCO FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA
POWER ENGINEERING COMPANY
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legal relief by said defendant.
AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that plaintiffs claim for punitive damages is
prohibited because it would deprive defendant of its property without due process of law under
the 14th Amendment of the United States Construction and under the California Constitution.
See U.S. Constitution, Amendment XIV, §1; Cal. Constitution, Art I. §7(a).
AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that plaintiffs’ claim for punitive damages is barred
9 by the Constitutional Prohibition against excessive fines. (See U.S. Constitution, Amendment
10 VII; California Constitution, Art I. §17.)
i AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
12 DEFENSE, this answering defendant alleges that plaintiffs’ claim for punitive damages is barred
13 by the Constitutional Prohibition against impairing the obligation of contracts. See U.S.
14 Constitution, Art I, §X, Cl. See California Constitution, Art. I §9.
15 AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
16 DEFENSE, this answering defendant alleges that any claim for punitive or exemplary damages
17 pursuant to California law herein constitutes a violation of equal protection prohibited by the
18 United States Constitution and the Constitution of the State of California and therefore fails to
19 make a claim upon which relief can be granted.
20 AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
21 DEFENSE, this answering defendant alleges that the Complaint on file herein fails to state facts
22 sufficient to constitute a cause of action for punitive damages.
23 AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
24 DEFENSE, this answering defendant alleges that plaintiffs’ claim for punitive damages must
25 consider the degree of reprehensibility of defendant’s conduct, the disparity between the
26 compensatory damages and punitive damages and the difference between punitive damages and
|
27 the civil sanctions that could or would be imposed for comparable conduct. These considerations
28 were outlined by the U.S. Supreme Court in BMIV of North America v. Gore (1996) 517 U.S.
JACKSON & WALLACE 5
SAN FRANCISCO FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND
DBA’
POWER ENGINEERING COMPANY
a fone nee = _
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559, and Cooper Industries v. Leatherman Tool Group, Inc, (2001) 532 U.S. 524.
AS AND FOR A TWENTY- FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that, to the extent plaintiffs may be able to prove
their allegations concerning liability, injuries and damages, which are specifically denied, they
were the result of intervening acts of superceding negligence on the part of a Person or persons
over whom this defendant had neither contro! nor the right of control.
AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE
8 DEFENSE, this answering defendant alleges that plaintiffs’ are barred from asserting any causes
9 of action by the Doctrine of Waiver,
10 AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
N DEFENSE, this answering defendant alleges that plaintiffs are stopped from asserting any causes
12 of action by their conduct.
13 AS AND FOR A TWENTY-EIGHTH, FIFTH, SEPARATE AND DISTINCT
14 AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs have failed to join
15 necessary and indispensable parties.
16 AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
17 DEFENSE, this answering defendant alleges that plaintiffs have improperly joined or misjoined it
18 and other parties to this action.
19 AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE
20 DEFENSE, this answering defendant alleges that any claims that the alleged products are unsafe
21 or defective in any manner are preempted by federal law,
22 AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
23 DEFENSE, this answering defendant alleges that any injuries and damages, if any there be,
24 alleged by plaintiffs in the Complaint, were proximately caused by an unforeseeable reaction to
25 the product or products and/or one or more of its, of their, components.
26 AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
27 DEFENSE, this answering defendant alleges that if plaintiffs’ claims were already litigated and
28 resolved in any prior action, plaintiffs’ claims herein are barred based on the primary right and res
Jackson & Wattace 6
‘SAN FRANCISCO FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA
POWER ENGINEERING COMPANY
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judicata doctrines which prohibit splitting a single cause of action into successive suits, and
seeking new recovery for injuries for which the plaintiffs were previously compensated by
alleged joint tort-feasors.
AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that plaintiffs’ claims are barred by the principles of
res judicata.
AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant denies any and all liability to the extent that plaintiff asserts
this answering defendant’s alleged liability as successor, successor-in-business, assign,
10 predecessor, predecessor-in-business, parent, alter ego, subsidiary, wholly or partially owned by,
N or the whole or partial owner of or member in an entity researching, studying manufacturing,
,
12 fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale,
13 selling, inspecting, servicing, installing, contracting for installation, repairing, marketing,
14 warranting, re-branding, manufacturing for others, packaging and advertising a certain substance,
15 the generic name of which is asbestos.
16 Wt
17 W
18 Wt
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22 Wt
23 We
24 Wt
25 Wt
26 MW
27 Wt
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JACKSON
& WALLACE 7
SAN FRANCISCO. FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA
POWER ENGINEERING COMPANY
ee, ——.-_ ee
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WHEREFORE, this answering defendant prays for judgment as follows:
1 That plaintiffs take nothing by way of their Complaint or any cause of
action thereof against this answering defendant;
2. That the Court award judgment in favor of this answering defendant;
3 For reasonable attorney fees;
4. For costs of suit and disbursements; and
5 For such other and further relief as the Court may deem proper.
Dated: December “4 + 2005 JACKSON & WALLACE LLP
10
11 JAMESR. COLGAN, ES
Attomeys for D!
12 LAMONS GAS COMPANY dba
POWER ENGINBERING & EQUIPMENT
13 COMPANY AND OWER
ENGINEERING COMPANY
14
15
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18
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27
28
JACKSON & WALLACE 8
SAN FRANCISCO FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA
POWER ENGINEERING COMPANY
es —.
ms .
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PROOF OF SERVICE BY MAIL
1am a citizen of the United States and employed in San Francisco County, California. 1
am over the age of eighteen years and not a party to the within-entitled action. My business
address is 55 Francisco Street, 6th Floor, San Francisco, California 94133. I am readily familiar
with this firm’s practice for collection and processing of correspondence for mailing with the
United States Postal Service. On December / q , 2005, 1 placed with this firm at the above
address for deposit with the United States Postal Service a true and correct copy of the within
document(s):
FIRST AMENDED ANSWER OF DEFENDANT LAMONS
GASKET COMPANY dba POWER ENGINEERING &
10 EQUIPMENT COMPANY AND dba POWER ENGINEERING
TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY
11
ina sealed envelope, postage fully paid, addressed as follows:
12 Brayton ¢ Purcell LLP
13 222 Rush Landing Road
Novato, CA 94948-6169
14 Following ordinary business practices, the envelope was sealed and placed for collection
15
and mailing on this date, and would, in the ordinary course of business, be deposited with the
16 United States Postal Service on this date.
17 I declare under penalty of perjury under the Jaws of the State of California that the above
18 is true and correct.
19 Executed on December [ q , 2005, at San Francisco, California.
Ge
20
21 Gr
22 “Nic Lawson
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JACKSON 6 WALLACE 1059008
SAN FRANCISCO
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Preview
oo IEC San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Dec-20-2005 9:58 am Case Number: CGC-01-402113 Filing Date: Dec-19-2005 9:42 Juke Box: 001 Image: 01348317 IDED ANSWER TO 1ST AMENDED COMPLAINT FILED BY DEFEN JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) 001001348317 Instructions: Please place this sheet on top of the document to be scanned. ae eam oe oe C GABRIEL A. JACKSON, ESQ. State Bar No. 98119 JAMES R. COLGAN, State Bar No. 144072 JACKSON & WALLACE LLP FILED 55 Francisco Street, 6th Floor San Francisco, CA: 94133 Tel: 415.982.6300 San Francisco Gounty Superior Court Fax: 415.982.6700 Attorneys for Defendant DEC 1 9 2005 LAMONS GASKET COMPANY dba POWER G ony i “ ENGINEERING & EQUIPMENT COMPANY AND BY: dba POWER ENGINEERING COMPANY IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN FRANCISCO 10 1 JAMES JORDAN and SHERYL Case No. 402113 JORDAN, 12 FIRST AMENDED ANSWER OF Plaintiff, DEFENDANT LAMONS GASKET 13 COMPANY dba POWER ENGINEERING Vv & EQUIPMENT COMPANY AND dba 14 POWER ENGINEERING COMPANY TO ASBESTOS DEFENDANTS (BP), et al. UNVERIFIED COMPLAINT FOR 15 PERSONAL INJURY Defendants. 16 17 Comes now defendant LAMONS GASKET COMPANY dba POWER ENGINEERING 18 | & EQUIPMENT COMPANY AND dba POWER ENGINEERING COMPANY for itself alone, 19 and in answer to plaintiffs’ Complaint on file herein, and to each and every cause of action 20 thereof, and by virtue of the provisions of CCP §431.30, now files its general denial to said 21 Complaint and to each and every cause of action thereof, and in answer to all the allegations 22 thereof, denies that the plaintiffs have been’ damaged in any sum or sums whatsoever, or at all, by 23 any act or omission of this answering defendant. 24 AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this 25 answering defendant alleges that the Complaint and each cause of action therein, fails to state 26 facts sufficient to constitute a cause of action. 27 Mt 28 Jacrson VE WALLACE 1 SAN FRANCISCO FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA POWER ENGINEERING COMPANY C C AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs are barred from recovery by the applicable statute of limitations, including but not limited to California Code of Civil Procedure Sections 319, 320, 337.1, 337.15, 338, 399, 340(3) 340.2, 343, and California Commercial Code Sections 2725(1) and 2725(2). AS AND FOR A THIRD, SEPARATE and DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the plaintiffs were themselves negligent and careless in an about the matters and events alleged in the Complaint, and said negligence proximately contributed to the alleged damages, if any there were, and as a result thereof, the principles of equitable 10 comparative negligence must be applied to bar plaintiffs’ action. i AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 12 this answering defendant alleges that the injuries, loss and/or damages alleged in said Complaint 13 by plaintiffs, if any there was, were caused by the carelessness and negligence on the part of the 4 remaining defendants in that said carelessness and negligence on the part of said remaining 15 defendants proximately contributed to the happening of the subject event and the injuries, loss or 16 damages alleged by the plaintiffs’ herein, and that any judgment rendered against this answering 17 defendant be reduced or nullified to the extent of such negligence and carelessness on the part of 18 the remaining defendants as aforesaid. 19 AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this 20 answering defendant alleges that the plaintiffs’ injuries and damages which may been sustained as 21 a result of events mentioned in the Complaint, if any there was, were proximately caused by the 22 carelessness and negligence of plaintiffs and the remaining defendants, and that the respective 23 negligence of each said party to this suit ought to be equitably apportioned among the parties 24 hereto. 25 AS AND FOR THE SIXTH, SEPARATE AND DISTINCT DEFENSE, this answering 26 defendant alleges that at the time of the occurrence of the matters mentioned in the plaintiffs’ 27 Complaint, the plaintiffs themselves had knowledge of those matters alleged in the Complaint and 28 plaintiffs did, with said knowledge, voluntarily and of their free will and act, place themselves in JACKSON & WALLACE 2 SAN FRANCISCO. FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA’ t POWER ENGINEERING COMPANY aa. ee . 1 C C an unsafe and dangerous position and by reason thereof, plaintiffs did assume the risk and all risks ordinarily incident thereto. AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the products referred to in the Complaint were not used in a safe and normal manner or in the manner in which they were intended to be used, and that such misuse proximately contributed to the injuries to plaintiffs and the damages and losses resulting there from, if any there were, and bars plaintiffs’ recovery herein. AS AND FOR A EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 9 this answering defendant alleges that prior to and at the time referred to in plaintiffs’ Complaint, 10 the products referred to in the Complaint were abused, altered, modified, or changed in a manner 11 that was not reasonably foreseeable, that such abuse, modification, alteration, or change 12 proximately contributed to the injuries to plaintiffs and the damages and losses resulting there 13 from, if any there were, and bars plaintiffs’ recovery herein. . 14 AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 15 this answering defendant alleges that at all times herein mentioned, plaintiffs were in the course 16 and scope of their employment and that the injuries sustained by plaintiffs, if any there were, 17 were caused or contributed to by the carelessness and negligence of plaintiffs’ employers, 18 entitling this answering defendant to a set-off in the amount equal to the extent of payments made 19 by said employers’ workers’ compensation carrier, 20 AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 21 this answering defendant alleges that the plaintiffs’ employers were negligent and careless in 22 about the matters alleged in the Complaint and proximately contributed to the injuries and 23 damages, if any there were, sustained by plaintiffs; that by reason of the premises said employers 24 and their workers’ compensation carrier are barred from recovery of any payments heretofore or 25 hereafter made to plaintiff's pursuant to the workers’ compensation laws of the State of California 26 under the doctrine of Witt v. Jackson, 57 Cal.2d 57. 27 AS AND FOR A ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE 28 DEFENSE, this answering defendant alleges that plaintiffs’ Complaint herein is barred by Labor JACKSON & WALLACE 3 SAN. Franco FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA POWER ENGINEERING COMPANY « C C Code §3600, et seq. AS AND FOR A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs’ Complaint herein is barred by the Doctrine of Laches. AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the asbestos-containing products of defendant which are alleged to have caused injury to plaintiffs were manufactured in compliance with and supplied pursuant to mandatory government specifications which required the use of asbestos. Accordingly, defendant is immune from liability or any damages suffered by plaintiffs as a 10 consequence of exposure to asbestos contained in such products. nN AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 12 DEFENSE, this answering defendant alleges that its compliance with all governmental standards 13 is a complete defense to plaintiffs’ action. 14 AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 15 DEFENSE, this answering defendant alleges that plaintiffs failed and neglected to use reasonable 16 care to protect themselves and to minimize the losses and damages complained of, if any there 17 were, 18 AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 19 DEFENSE, this answering defendant alleges that plaintiff's are barred from asserting any claim 20 based on breach of warranty by reason of their failure to fulfill the conditions of warranties 21 alleged in the Complaint in the event such alleged warranties are proved at trial. 22 AS AND FORA SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 23 DEFENSE, this answering defendant alleges that plaintiffs within a reasonable time failed to give 24 notice to defendant of the claimed breach of warranty or defects alleged in the Complaint on file 25 herein in the manner and form prescribed by law. 26 AS AND FOR A EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 27 DEFENSE, this answering defendant alleges that there was no privity or other legal relationship 28 between this answering defendant and plaintiffs herein sufficient to entitle the plaintiffs to any JACKSON & WALLACE. 4 SAN FRANCISCO FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA POWER ENGINEERING COMPANY C C legal relief by said defendant. AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs claim for punitive damages is prohibited because it would deprive defendant of its property without due process of law under the 14th Amendment of the United States Construction and under the California Constitution. See U.S. Constitution, Amendment XIV, §1; Cal. Constitution, Art I. §7(a). AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs’ claim for punitive damages is barred 9 by the Constitutional Prohibition against excessive fines. (See U.S. Constitution, Amendment 10 VII; California Constitution, Art I. §17.) i AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE 12 DEFENSE, this answering defendant alleges that plaintiffs’ claim for punitive damages is barred 13 by the Constitutional Prohibition against impairing the obligation of contracts. See U.S. 14 Constitution, Art I, §X, Cl. See California Constitution, Art. I §9. 15 AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE 16 DEFENSE, this answering defendant alleges that any claim for punitive or exemplary damages 17 pursuant to California law herein constitutes a violation of equal protection prohibited by the 18 United States Constitution and the Constitution of the State of California and therefore fails to 19 make a claim upon which relief can be granted. 20 AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE 21 DEFENSE, this answering defendant alleges that the Complaint on file herein fails to state facts 22 sufficient to constitute a cause of action for punitive damages. 23 AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE 24 DEFENSE, this answering defendant alleges that plaintiffs’ claim for punitive damages must 25 consider the degree of reprehensibility of defendant’s conduct, the disparity between the 26 compensatory damages and punitive damages and the difference between punitive damages and | 27 the civil sanctions that could or would be imposed for comparable conduct. These considerations 28 were outlined by the U.S. Supreme Court in BMIV of North America v. Gore (1996) 517 U.S. JACKSON & WALLACE 5 SAN FRANCISCO FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA’ POWER ENGINEERING COMPANY a fone nee = _ C C 559, and Cooper Industries v. Leatherman Tool Group, Inc, (2001) 532 U.S. 524. AS AND FOR A TWENTY- FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that, to the extent plaintiffs may be able to prove their allegations concerning liability, injuries and damages, which are specifically denied, they were the result of intervening acts of superceding negligence on the part of a Person or persons over whom this defendant had neither contro! nor the right of control. AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE 8 DEFENSE, this answering defendant alleges that plaintiffs’ are barred from asserting any causes 9 of action by the Doctrine of Waiver, 10 AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE N DEFENSE, this answering defendant alleges that plaintiffs are stopped from asserting any causes 12 of action by their conduct. 13 AS AND FOR A TWENTY-EIGHTH, FIFTH, SEPARATE AND DISTINCT 14 AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs have failed to join 15 necessary and indispensable parties. 16 AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT AFFIRMATIVE 17 DEFENSE, this answering defendant alleges that plaintiffs have improperly joined or misjoined it 18 and other parties to this action. 19 AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT AFFIRMATIVE 20 DEFENSE, this answering defendant alleges that any claims that the alleged products are unsafe 21 or defective in any manner are preempted by federal law, 22 AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE 23 DEFENSE, this answering defendant alleges that any injuries and damages, if any there be, 24 alleged by plaintiffs in the Complaint, were proximately caused by an unforeseeable reaction to 25 the product or products and/or one or more of its, of their, components. 26 AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE 27 DEFENSE, this answering defendant alleges that if plaintiffs’ claims were already litigated and 28 resolved in any prior action, plaintiffs’ claims herein are barred based on the primary right and res Jackson & Wattace 6 ‘SAN FRANCISCO FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA POWER ENGINEERING COMPANY C C judicata doctrines which prohibit splitting a single cause of action into successive suits, and seeking new recovery for injuries for which the plaintiffs were previously compensated by alleged joint tort-feasors. AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs’ claims are barred by the principles of res judicata. AS AND FOR A THIRTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant denies any and all liability to the extent that plaintiff asserts this answering defendant’s alleged liability as successor, successor-in-business, assign, 10 predecessor, predecessor-in-business, parent, alter ego, subsidiary, wholly or partially owned by, N or the whole or partial owner of or member in an entity researching, studying manufacturing, , 12 fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale, 13 selling, inspecting, servicing, installing, contracting for installation, repairing, marketing, 14 warranting, re-branding, manufacturing for others, packaging and advertising a certain substance, 15 the generic name of which is asbestos. 16 Wt 17 W 18 Wt 19 Mt 20 Wt 21 Mt 22 Wt 23 We 24 Wt 25 Wt 26 MW 27 Wt 28 Wt JACKSON & WALLACE 7 SAN FRANCISCO. FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA POWER ENGINEERING COMPANY ee, ——.-_ ee ” C C WHEREFORE, this answering defendant prays for judgment as follows: 1 That plaintiffs take nothing by way of their Complaint or any cause of action thereof against this answering defendant; 2. That the Court award judgment in favor of this answering defendant; 3 For reasonable attorney fees; 4. For costs of suit and disbursements; and 5 For such other and further relief as the Court may deem proper. Dated: December “4 + 2005 JACKSON & WALLACE LLP 10 11 JAMESR. COLGAN, ES Attomeys for D! 12 LAMONS GAS COMPANY dba POWER ENGINBERING & EQUIPMENT 13 COMPANY AND OWER ENGINEERING COMPANY 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JACKSON & WALLACE 8 SAN FRANCISCO FIRST AMENDED ANSWER OF LAMONS GASKET COMPANY DBA POWER ENGINEERING & EQUIPMENT COMPANY AND DBA POWER ENGINEERING COMPANY es —. ms . C C PROOF OF SERVICE BY MAIL 1am a citizen of the United States and employed in San Francisco County, California. 1 am over the age of eighteen years and not a party to the within-entitled action. My business address is 55 Francisco Street, 6th Floor, San Francisco, California 94133. I am readily familiar with this firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service. On December / q , 2005, 1 placed with this firm at the above address for deposit with the United States Postal Service a true and correct copy of the within document(s): FIRST AMENDED ANSWER OF DEFENDANT LAMONS GASKET COMPANY dba POWER ENGINEERING & 10 EQUIPMENT COMPANY AND dba POWER ENGINEERING TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY 11 ina sealed envelope, postage fully paid, addressed as follows: 12 Brayton ¢ Purcell LLP 13 222 Rush Landing Road Novato, CA 94948-6169 14 Following ordinary business practices, the envelope was sealed and placed for collection 15 and mailing on this date, and would, in the ordinary course of business, be deposited with the 16 United States Postal Service on this date. 17 I declare under penalty of perjury under the Jaws of the State of California that the above 18 is true and correct. 19 Executed on December [ q , 2005, at San Francisco, California. Ge 20 21 Gr 22 “Nic Lawson 23 24 25 26 27 28 JACKSON 6 WALLACE 1059008 SAN FRANCISCO + ie