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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MAE San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Feb-21-2002 3:22 pm Case Number: CGC-01-402113 Filing Date: Feb-21-2002 3:20 Juke Box: 001 Image: 00365706 ANSWER JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) 001000365706 Instructions: Please place this sheet on top of the document to be scann ed. OE — Mark S. Kann ett (SB #104572) Emil ly D. Wheeler (SB #191395) BEC HERER, KANN ETT & SCHWEI I ED San Francisco County Superior Court 2200 Powell Stre et, Suite 805 TZER Emeryville, CA 94608 FEB 2 1 2002 elephone: (510) 658-3600 Facsimile: (510) 658-1151 GORD il, Clerk BY, Tapa Cle Attorneys for Defendant DILLINGHAM CONSTRUCTION N.A., INC. SUPERIOR COURT OF THE STA TE OF CALIFORNIA COUNTY OF SAN FRANCISCO-UN LIMITED CIVIL JURISDICTION 10 11 JAMES JORDAN, CASENO. 402113 12 Plaintiff, 13 ANSWER OF DEFENDANT D ILLING Vv CONSTRUCTION N.A., HAM + 14 ASBESTOS DEFENDANTS (BHC), et al., PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY 15 Defendants. 16 17 18 COMES NOW, defendant, DILLINGHA M CONSTRUCTION NLA. INC. (“D CNA"), 19 in answer to plaintiff’s complaint on file herein and by virtue of the provisions of Code 20 of Civil Procedure § 431 -30, and files its general denial to the compla int and denies 21 each and every, all and singular, generally and specifically, all the alle gations contained 22 therein, and each cause of action thereof, and further denies that plai ntiff has been 23 damaged in any sum, sums or at all, and specifically denies: 24 Becherer Kannett & 25 1 That any act or omission Schweitzer of DCNA was responsible for any asbestos- 2200 26 containing product being present Powell St. at the work site at which the alle ged Suite 805 27 asbestos exposure of plaintiff Emeryville, CA JAMES JORDAN occurred. 510-668-2600 28 MI -1- ANSWER OF DEF. DILLINGHAM CONSTRUC TION N.A., INC. TO PLAINTIFF'S COMP LAINT FOR PERSONAL INJURY -- That plaintiff JAMES JORDAN came into contact with any asb estos- containing product for which DCNA was responsible. That any act or omission of DCNA caused or contributed to any inju ry Purportedly suffered by plaintiff. That any act or omission of DCN A contributed to any asbestos health hazard. 10 This answering defendant herewith pleads and sets forth separately and 11 distinctly the following affirmative defenses to each and every cause of action of 12 plaintiff's complaint as though pleaded separately to each and every said cause of 13 action, and this answering def endant alleges the following aff irmative defenses: 14 15 FI RST AFFMA aS IRMT ATIVE IVE DEF DEFENS ENSE E 16 (Comparative Negligence) 17 That plaintiff JAMES JORDAN was careless and negligent in and about the 18 matters alleged in the complaint, and that said carelessness and negligenc e on the part 19 of said plaintiff proximately contri buted to the happening of the inci dent and to the 20 injuries, loss and damages complained of , if any, sustained by plaintiff and that 21 plaintiff’s recovery should therefore be reduced to the extent of Plaintiff JAMES 22 JORDAN’s negligence. 23 24 SE COND M Becherer R AFFIRMATI A VEE DEF TIV DEFENS ENSE E Kannett & 25 Schweitzer (Assumption of Risk) 2200 26 That plaintiff JAMES JORDAN kne Powell St. w, or in the exercise of ordinary care should Suite 805 27 have known, of the risks and haz Emenwille, CA ards involved in the undertaking 94608 in which he was 510-658-3600 28 engaged, but nevertheless, and knowing these things, did freely and voluntarily -2- ANSWER OF DEF. DILLINGHAM CONS TRUCTION N.A., INC. TO PLAINTIFF'S COMPLAIN T FOR PERSONAL INJURY oo consent to assume the risks and hazards incident to said operatio ns, acts and conduct at the time and place mentioned in said complaint. T HIRD AFF S IRMATI VE DEF DEFENS N ATIVE ENSE E (Employer Negligence - Witt v. Jac kson) By way of alleging the doctrine of Witt v. Jackson (1961) 57 Cal.2d 57, this answering defendant alleges that at the time and place of the happening of the occurrences alleged in the complain t, and at all times material here in, plaintiff JAMES JORDAN was employed by vari ous employers, the names of whi ch are unknown to 10 this defendant at this time, and working within the course and scope of his 11 employment and/or employments, that said employer and/or employ ers and plaintiff 12 were subject to the provisions of the Worker’ Compensation Act of the State of 13 California, that certain sums have been or will be paid to or on behalf of plai ntiff herein 14 under the applicable Provisions of the Labor Code of the State of California; that said 15 employer, excepting when plaintif f was employed by this defendant , and/or employers 16 and each of them were negligent and careless and that such negligence and 17 carelessness proximately contribu ted and caused the injuries of plai ntiff; that by these 18 Premises any award made to the plaintiff, if any award is made at all, must be reduced 19 by any payment to them by plain tiff’ S employer or employers’ com pensation carrier 20 under the authority of Witt v. Jac kson (1961) 57 Cal.2d 57. 21 22 FO URTH U S AFF OE IRMMIA ATI L VE DEF TIVE DEFENS ENSEE 23 (Employer's Negligence) 24 This answering defendant alleges that plaintiff JAM Becherer ES JORDAN’s employers, Kannett & 25 except when plaintiff was employed by this defe Schweitzer ndant, were contributorily negligen t 2200 26 and careless in and about the matters alleged in the complain Powell St. t, and that such Suite 805 27 negligence and carelessness was Emeryville, CA a proximate cause of any injuries and damages 510-658-3600 28 suffered by plaintiff, if any there were. -3- ANSWER OF DEF. DILLINGHAM CONS TRUCTION N.A., INC. TO PLAINTIFF'S COMPLAIN T FOR PERSONAL INJURY FIF ‘TH AFF S E IRMATI A VE DEF TIVE DEFENS ENSE E (Employer’s Assumption of the Risk ) This answering defendant alleges that plaintiff JAMES JORDAN'S empl oyers, except when plaintiff was employ ed by this defendant, voluntarily and knowingly entered into and engaged in the oper ations, acts and conduct alleged in said complaint, and voluntarily and knowingly ass umes all of the risks incident to said Operations, acts and conduct at the time and place mentioned in the complaint. SIXT H A S AFFIRM ATITIVE VE DEF DEFENS M A ENSE E 10 (Alteration or Misuse) 11 This answering defendant alleges that the product in question was properly 12 designed and manufactured, and was fit for the Purposes intended; that said product 13 was improperly maintained and used and was abused, resulting in plaintif f's damages, 14 if any there were. 15 16 SE VEN —— SL THA AFFIRM AMIAATITIVE VE DEF DEFENS ENSE E 17 (Failure to Mitigate) 18 This answering defendant alleges that the injuries, loss or damage, if any ther e 19 was to plaintiff, were aggravated due to plaintiff's failure to use reasonable diligence 20 to mitigate them. 21 22 EIG HTH SS A LMA AFFIRM NATII VETDEF LIVE DEF A ENS ENSE E 23 (Statute of Limitations) 24 This answering defendant alleges that said complaint, and each of said alle Becherer ged Kannett & 25 causes of action thereof, is barred ichweitzer by the applicable statute of limitati ons, including, 2200 26 but not limited to those set forth in California Code of Civil Procedure Powell St §§ 338, 340 et Suite 805 27 seq. and 377.10 et seq. Emeryville, CA 510-658-3600 28 M1 -4- ANSWER OF DEF. DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFF’S COMPLAIN T FOR PERSONAL INJURY -—— Ni INTH AFF — IRM AATI VEE DEF DEFENS MI TIV ENSE E (Workers’ Compensation Bar) This answering defendant alleges that plaintiff JAMES JORDAN was, at all or some relevant times, employed by this defendant and that plaintiff’ s claim for injuries or damages against this defendant is barred by the Workers’ Compensat ion exclusive remedy provisions contained in California Labor Code § 3600 et seq. TEN TH AFF S S IRMIAA ATI VE DEF DEFENS L LIVE ENSEE (Laches) 10 This answering defendant alleges that plaintiff unreasonably delayed in the 11 bringing and service of this action without good cause therefor, and thereby has 12 prejudiced this defendant; and as a proximate result thereof, this enti re action is barred 13 by laches. 14 15 ELEVI ENTHM S AFFIRMA ATITIVE VE DEF DEFENS ENSEE 16 (Failure to State a Cause of Acti on - Exemplary Damages) 17 This answering defendant alleges that the complaint fails to state a cause of 18 action against this answering def endant for exemplary damages. 19 20 T WELFTH SS AFFMI IRMAATITIVE VE DEF DEFENS ENSEE 21 (Proportionate Fault) 22 This answering defendant alleges that while at all times deny ing any liability 23 whatsoever to plaintiff herein, this defendant alleges that any alleged liability or 24 responsibility of this defendant, and such alleged liability and responsibility Becherer being Kannett & 25 denied, is small in Proportion to Schweitzer the alleged liability and responsibili ty of other persons 2200 26 and entities, including other pers ons who are defendants herein, Powell St. and that plaintiff Suite 805 27 should be limited to seeking reco Emeryville, CA very from this defendant for the Proportion of alleged ff 0.859-2600 28 injuries and damages for which this defendant is allegedly liabilit y or responsible, all -5- ANSWER OF DEF. DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFF'S COMP LAINT FOR PERSONAL INJURY —_ — —S such alleged liability and alleged responsibility being expressly deni ed. T HIRTEENTH S S AFFANI IRMAATI VEE DEF N TIV DEFENS ENSEE (Modification of Product) This answering defendant is informed and believes, and based upon said information and belief alleges, that the plaintiff is barred from recovery herein because of modification, alteration or change in some other manner, of the prod ucts alleged in plaintiff's complaint. 10 FO URTS EENTH M — AFFIRM AA AN ATILIVE VE E DEF DEFENS ENSEE 11 (Failure to State a Cause of Acti on) 12 This answering defendant alleges that plaintiff’ s complaint does not state facts 13 sufficient to constitute a cause of acti on against this answering defendant. 14 15 FIF TEENTHS S AFFIRMA ATILIVE VE DEF DEFENS ENSEE 16 (Waiver) 17 This answering defendant alleges that plaintiff JAMES JORDAN ack nowledged, 18 ratified, consented to and acquie sced in the alleged acts or omis sions, if any, of this 19 answering defendant, thus barring plaintiff from any relief as prayed here in. 20 21 SIX TEENTH S S AFF IRM A AMA T ATITIVE VE DEF DEFENS ENSEE 22 (Sophisticated User) 23 This answering defendant alleges that some, or all, of plaintiff’s union and 24 employers are, and were, sophisti cated users of any and all such Becherer products alleged in Kannett & 25 plaintiff’ S complaint by virtue of its ichweitzer own longstanding and continuou s training and 2200 26 experience with the Products, and the means and methods for Powell St their use and Suite 805 27 application, and all available safety Emeryville, CA and precautionary measures availabl 94608 e, and thereby 510-658-3600 28 acquired a separate and affirmat ive duty to warn plaintiff of any alleged potential -6- ANSWER OF DEF. DILLINGHAM CONSTRUCTION N.A., INC. TO PLAINTIFF’S COMPLAIN T FOR PERSONAL INJURY harmful effects from the use or mis use of said products and to prov ide available safety measures, and training in their use. By reasons of the foregoin g, said failure to discharge this duty did directly and proximately cause any and all damages and injuries, if any, complained of by plaintiff. s EVENTEENTHt S AFF IRMAATITIVE VE DEF ARAM DEFENS ENSEE (Fair Responsibility Act) This answering defendant alleges that said complaint, and each of said alleged causes of action thereof, is subject to the provisions of the Fair Responsi bility Act of 10 1986, Civil Code Sections 1431.1 through 1431.5. Liability of this answering 11 defendant to plaintiff, if any, for non “economic damages, if any as defined in Civil 12 Code Section 1431.2(b)(2) shall be several only and shall not be joint with each of any 13 co-defendant named in said complain t. This answering defendant shall be liable only 14 for the amount of said non-economic damages, if any, allocated to this answering 15 defendant's Percentage of fault, if any. 16 17 El GHTEEN S S TH AFF IRMATI VE DEF DEFENS S A TIVE ENSEE 18 (No Peculiar Risk) 19 Defendant alleges that plaintiff is barred from seeking to hold defendant 20 vicariously liable for inherent risk of injury in the work place and premises under the 21 now discredited doctrine of pecu liar risk according to the Californ ia Supreme Court 22 decision of Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72. 23 24 NIN! ETEENT Becherer S S H AFF IRM A IAMI L ATI VE DEF A TIVE DEFENS ENSEE Kannett & 25 Schweitzer (Outside Scope) 2200 26 This answering defendant alleges that at the time Powell St. and place of the happening Suite 805 27 of the occurrence as alleged in the Emeryville, CA complaint, plaintiff JAMES JORDAN was engaged s100563000 28 as a contractor outside the scope and control of this answering defendant, thus -7- ANSWER OF DEF. DILLINGHAM CONSTRUC TION N.A., INC. TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJU Precluding plaintiff from asserting a claim against this answering def endant. TwiSENTIET SS A A H AFF IRMATI VE DEF N A TIVE DEFENS ENSEE (Unclean Hands) This answering defendant alleges that the claims of plaintiff are barr ed by the doctrine of unclean hands. T WENTY-FIR S S ST AFF IRM ATILIVE VE DEF ATEIAN L IA DEFENS ENSEE (Res Judicata And Collateral Est oppel) 10 This answering defendant alleges that the claims of plaintiff are barr ed by the 11 doctrine of res judicata and coll ateral estoppel. 12 13 Twi S ENT S E SY-SRECO A ND