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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ov CONAGRA San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Mar-11-2002 3:39 pm Case Number: CGC-01-402113 Filing Date: Mar-07-2002 3:36 Juke Box: 001 Image: 00375867 ANSWER JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) 001000375867 Instructions: Please place this sheet on top of the documentto be scanned. ww Michael T. McCall Esq ar No 109580 WALSWORTH, FRANKLIN, BEVINS & McCALL 550 Montgomery Street S27 Franch dean Eighth Floor ‘co Coun,ty c adh ‘Ourt San Francisco, California 94111 (415) 781-7072 MAR 07 2002 Attorneys for Defendant GORDON ie , LL Clerk i THOMAS DEE ENGINEERING COMPANY HH DeputyGee SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO 10 GAMES JORDAN Case No 402113 11 Plaintiff ANSWER OF DEFENDANT THOMAS DEE ENGINEERING COMPANY vs TO PLAINTIFF‘S COMPLAINT FOR 13 PERSONAL INJURY - ASBESTOS ASBESTOS DEFENDANTS (BHC), 14 etc et al 15 Defendants 16 17 Defendant. THOMAS DEE ENGINEERING COMPANY (hereafter 18 "Defendant"), in answering the Plaintiff’s unverified 13 complaint for itself alone, and severing itself from all others, 20 admits, denies and alleges as follows 21 1 Pursuant to California Code of Civil Procedure Section 22 431.30 Defendant denies, both generally and specifically, each 23 every and all allegations of each and every purported cause of 24 action or count of Plaintiff’s complaint, denying specifically 25 that Plaintiff has been, is, x will be injured or damaged in the 26 manner or sum alleged or in any other manner or sums at all and 27 uxther denying that Defendant was negligent in any manner, that 28 the alleged product installed or distributed was defective in any -1- THOMAS DER ENGINEERING COMPANY'S ANSWER IC PLAIN = COMPLAINT N. — Ne 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 CAUSE OF ACTION ALLEGED IN PLAINTIFF'S COMPLAINT AS THOUGH PLEADED SEPARATELY TO EACH AND EVERY CAUSE OF ACTION: First Affirmative Defense 2 The complaint and each and every purported cause of action or count therecf fails to state facts sufficient to 10 constitute a cause or causes of action against Defendant. 11 Second Affirmative Defense 12 3 Defendant is informed and believes and thereon alleges 13 that the acts, injuries and damages alleged in the complaint 14 occurred and were proximately caused by either the sole 15 negligence or fault of Plaintiff, which sole negligence or fault 16 bars Plaintiff’s recovery, or was contributed to by Plaintiff's 1? negligence or fault. Plaintiff's recovery, if any, should be 18 reduced by an amount proportionate to the amount by which 13 Plaintiff's negligence or fault contributed to the happening of 20 the alleged incident and/or alleged injury. 21 Third Affirmative Defense 22 4 Defendant is informed and believes and thereon alleges 23 that the negligence, carelessness and other acts or omissions of 24 other Defendants in this lawsuit, as well ag other persons and 25 entities not parties to this lawsuit, proximately caused or 26 contributed to Plaintiff's injuries and damages, if any. The 27 negligence, carelessness and other acts or omissions of the other 28 Defendants in this lawsuit and other persons and entities not - 2 - weomMaS DEE ENGINEERING COMPANY’S ANSWER TO 2oAINT: S CONELAINT WS Ww parties to this lawsuit account for cone hundred percent (100%) of the causal or contributing factors relating to Plaintiff's injuries and damages, if any, and/or constitute 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 10 negligence of Plaintiff's employers other than Defendant, or co- 11 employees, which sole negligence bars Plaintiff's recovery, or 12 were contributed to by the negligence of Plaintiff’s employers 13 other than Defendant, or co-employees. Plaintiff’s recovery, if 14 any, must be reduced by an amount proportionate to the amount by 15 which the negligence of Plaintiff's employers other than 16 Defendant, and/or the negligence of Plaintiff’s co-employees 17 contributed to the happening of the alleged accident and the 18 alleged injuries. 19 Fifth Affirmative Defense 20 6 While at all times denying any liability whatsoever to 21 Plaintiff, any alleged liability or responsibility of Defendant 22 is small in proportion to the alleged liability and 23 responsibility of other persons or entities, including other 24 persons and entities who are parties herein, and Flaintiff should 25 be limited to seeking recovery from Defendant for the proportion 26 in which Defendant is allegedly liable or responsible, all such 27 alleged liability and responsibility being expressly denied. 28 J/4td - 3 - THOMAS DEE ENGINEERING COMPANY'S ANSWER TO PLAINI1FE*S COMPLAIKT ws Sixth Affirmative Defense 7 is informed and believes and thereon alleges Defendant 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 other than Defendant failed to provide the Plaintiff with a safe place in which to work, and such employers’ negligence, carelessness and other acts and omissions proximately 10 caused the injuries and damages claimed. Therefore, these 11 employers and their workers’ compensation carriers are barred 12 from any recovery by lien or otherwise herein, and Defendant is 13 entitled to set off any such benefits Plaintiff has received 14 against any judgment rendered in favor of Plaintiff. 15 Seventh Affirmative Defens 16 8 Defendant is informed and believes and thereon alleges 17 that Plaintiff knew of the risks and dangers inherent to 18 Plaintiff’s conduct, and with full knowledge of those risks and 19 dangers and with an appreciation for the magnitude of the risks 20 and dangers, did voluntarily assume the risks, injuries and 21 damages, if any, sustained thereby. Plaintiff’s assumption of 22 risk bars or proportionately reduces any recovery by Plaintiff. 23 Eighth Affirmative Defense 24 33 Defendant alleges that Plaintiff has failed to make 25 reasonable efforts to mitigate Plaintiff's injuries and/or 26 damages, if any. 27 Ninth Affirmative Defense 28 10. The complaint and each and every cause of action - 4 - THOMAS DES SNGINEERING CCMPANY'S ANSWER DO PLAINTIFF'S COMPLAINT —— WH _ contained therein are barred by the applicable statute of limitations including, but not limited to, Code of Civil Procedure §§338, 339, 340(1), 340(2), 340(3), 340.2 and 343. Tenth Affirmative Defense 11. Plaintiff‘s action is barred by the provisions of Labor Code §3600, et seq. Eleventh Affirmative Defense 12. Plaintiff has waivec and is estopped from asserting any claim against Defendant by reason of Plaintiff's approval and 10 consent to the risks of the matters causing the damages, if any, ail and Plaintiff’s acknowledgment of, acquiescence in and consent to 12 the alleged acts or omissions, if any, of Defendant . 13 Twelfth Affirmative Defense 14 13. This action is barred by laches as Plaintiff 15 unreasonably delayed in the bringing of this action and thereby 16 prejudiced the rights of Defendant. 17 Thirteenth Affirmative Defenge 18 14. Defendant alleges that Defendant distributed and 19 installed its product(s) in full compliance with regulations 20 and/or specifications promulgated by the United States Government 21 and any recovery by Plaintiff is barred as a consequence. 22 Fourteenth Affirmative Defense 23 15. Plaintiff is barred from asserting any claim based on 24 breach of warranty against Defendant by reason of failure to 25 fulfill the conditions of warranties alleged in Plaintiff’s 26 omolaint in the event such alleged warranties are proved at 27 trial. 28 Lise - 5 THOMAS DEE ENGINEERING COMPANY'S ANSWER TO PLAINTIFE’S CCMPLACNT ~. — 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 5 breach of warranty, express or implied, and/or of any alleged defects in any products installed 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 investigate and 10 defend the allegations contained in Plaintiff‘s complaint. Sixteenth Affirmative Defense 22 17. Defendant alleges that Plaintiff is now estopped from 13 claiming that any products installed or marketed by Defendant 14 were in any way defective or failed to conform to any alleged 15 warranties in that Plaintiff failed to notify Defendant of any 16 defect or nonconformity in such products within a reasonable time 1? after Plaintiff discovered, or should have discovered, any defect 18 x nonconformity, if any existed. 19 Seventeenth Affirmative Defense 20 18. Defendant alleges that Plaintiff was not in privity of 21 contract with Defendant, and that such lack of privity bars 22 recovery herein upon any theory of warranty. 23 Eighteenth Affirmative Defense 24 13. Defendant alleges that any injuries or damages suffered 25 by Plaintiff, the existence thereof being expressly denied, are 26 the direct and proximate result of Plaintiff‘s particular, 27 idiosyncratic, peculiar or unforeseeable susceptibility to the 28 alleged product(s) installed or distributed by Defendant, which - 6 - ‘THOMAS DEE ENGINEERING GOMSANY’S ANSWER TO PLAINTIFF'S COMPIATNT S. 7 reaction was not the result of any conduct or omission of 2 Defendant, nor the zesult of any defect in any product(s) installed or distributed by Defendant. Nineteenth Affirmative Defense 20. Defendant alleges that if Plaintiff was injured by any (s) product installed or @istributed 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 product(s) wnen installed and distributed conformed to the 10 then current state-of-the-art specifications, and because the 11 then current state-of-the-art medical, scientific and industrial 12 knowledge, art and practice were such that Defendant did not and 43 could not know that the product(s) might pose a risk of harm in 14 normal and foreseeable use. 15 Twentieth Affirmative Defense 16 21. Defendant alleges that Plaintiff did not reasonably 17 rely upon any act, omission or representation of Defendant. 18 Twenty-First Affirmative Defense 19 22. In the event that Plaintiff is entitled to non-economic 20 damages including, but not limited to, pain, suffering, 21 inconvenience, mental suffering, emotional distress, loss of 22 society and companionship, loss of consortium, and/or injury to 23 reputation and humiliation, Defendant shall be liable only for 24 the amount of non-economic damages allocated to Defendant’s 25 percentage of fault, and a separate judgment shall be rendered 26 against Defendant for that amount pursuant to Civil Code §1431.2. 27 Twenty-Second Affirmative Defense 28 23. Defendant alleges that Defendant was not engaged in the - 7 - THOMAS PRR ENGINEERING COMPANY'S ANSWER TO PLAINIIEF*S CCMPLAINT business of supplying, tendering, installing, distributing and/or furnishing products and/or goods or services for use by or consumption to the general public. Twenty-Third Affirmative Defense 24. 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 10 ego, subsidiary, wholly or partially owned by, or the whole or lL partial owner or member in an entity in which there has been 12 research, study, manufacturing, fabricating, designing, labeling, 13 assembling, distributing, leasing, buying, offering for sale, 14 selling, inspecting, servicing, installing, contracting for 15 installation, repairing, marketing, warranting, re-branding, 16 manufacturing for others, packaging and advertising of a certain 1? substance, the generic name of which is asbestos. 18 Twenty-Fourth Affirmative Defense 19 25. Defendant alleges that Plaintiff's complaint and each 20 and every cause of action fail to state facts sufficient to 21 constitute a cause or causes of action for punitive damages 22 against Defendant. 23 Twenty-Fifth Affirmative Defense 24 26. Defendant alleges that insofar as the instant complaint 25 is an attempt to recover punitive or exemplary damages from 26 Defendant, it violates the following United States Constitutional 27 and California State Constitutional principles: 28 Site - 8 - THOMAS DEE ENGINEERING COMPANY'S ANSWER TO PLAINTIFF” CUMELALKT ~_ a Excessive fines clause of the United States Constitution, Eighth Amendment and Fourteenth Amerdment ; b The contract clause, Article I, Section 10, clause l, and the Fourteenth Amendment of the United States Constitution; c The due process clause of the United States Constitution, Fourteenth Amendment ; d The equal protection clause of the United States Constitution; e The California Constitution due process and equal protection clauses, Article 1, Section Tha); 10 f fhe California Constitution excessive fines clause, Article 1, Section 17. 11 12 WHEREFORE, Defendant THOMAS DEE ENGINEERING COMPANY prays foy 13 judgment as follows: 14 1 That Plaintiff takes nothing from Defendant by virtue of 15 the complaint herein; 16 2 Thet Defendant be awarded costs of suit and attorneys’ 1? fees herein; and 18 3 That Defendant be granted such other and further relief 19 as the Court may deem just and proper. 26 DATED : March 4, 2002 Respectfully submitted, 21 WALSWORTH, FRANKLIN, BEVINS & McCALY 22 23 By: MI LT. MecaALL 24 Attorneys for Defendant THOMAS DEE ENGINEERING COMPANY 25 26 27 deeengrasb/gen/ansbray/jordanans 28 9 - THOMAS DEE ENGINSERING COMBANY'S ANSWER TO PLAINTIFF’S COMPLAINT 5~ , PROOF OF SERVICE BY MATL I, DEANNA M. CICCOIANNI, declare as follows I am over the age of 18 years, employed in the County of Orange, and not a varty to the within action My business address is 1 City Boulevard West, Fifth Floor, Orange, California 92868 I am readily familiar with the business practice at my place of business for collection and processing of correspondence for ing with the United States Postal Service Correspondence so collected and processed is deposited with the United States Postal 10 Service that same day in the ordinary course of business Li On March 5, 2002 I served a copy of ANSWER OF DEFENDANT 12 THOMAS DEE ENGINEERING COMPANY TO PLAINTIFF’S COMPLAINT on the 13 party or parties named below, by following ordinary business 14 practice, placing a true copy thereof enclosed wna sealed 15 envelope, for collection and mailing with the United States Postal 16 Service where it would be deposited for first class delivery, 7 postage fully prepaid in the United States Postal Service that 18 same day in the ordinary course of business, addressed as follows 19 BRAYTON, PURCELL P.O Box 2109 20 222 Rush Landing Road Novato, CA 94945-2469 21 22 I declare under penalty of perjury under the laws of the State 23 of California that the foregoing is true and correct and that this 24 Declaration was executed on March 5 2002 at Ofange, CA \JLbew. 25 26 Dr EANNA M. CICCOIANNT 27 28