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.
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Preview
OMT San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Feb-19-2002 1:52 pm Case Number: CGC-01-402113 Filing Date: Feb-13-2002 1:51 Juke Box: 001 Image: 00363780 ANSWER JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) 001C00363780 Instructions: Please place this sheet on top of the document to be scanned. ~~ Theodore T. Cordery, Esq. (Bar No. 114730) IMAI, TADLOCK, KEENEY & CORDERY, LLP FILE $ OR COURT 185 BERRY STREET, SUITE 4300 COUNTY ©: $1” RANC! SAN FRANCISCO, CA 94107 Telephone: (415) 537-3930 FEB i 8 2002 Facsimile: (415) 537-3938 GORDON Pap Clerk Attorneys for Defendant BY: ELLIOTT COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO UNLIMITED 10 11 JAMES JORDAN, CASE NO. 402113 Se G 15 Defendants. 16 17 COMES NOW Defendant Elliott Company, and in answering the plaintiff's unverifi ed 18 Complaint for Damages - Personal Injury - Asbestos, on file herein, admits, denies, and alleges as 19 follows: 20 Under the provisions of Sections 431.30(d) and 472a of the California Code of Civil 21 Procedure, this answering defendant denies each and every, all and singular, generall y and 22 specifically, the allegations contained therein and the whole thereof, and further denies that 23 plaintiff sustained damages in any sum or sums whatsoever or at all. 24 //1 25 /T1 26 /// ELLIOTT COMPANY'S ANSWER TO JAMES JORDAN'S COMPLAINT - ASBESTOS - SFSC 402113 — AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that the Complaint and each cause of action therein, fails to state facts sufficient to constitute a cause of action. AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff is barred from recovery by the applicable statute of limitations, including but not limited to California Code of Civil Procedure Sections 319, 320, 337, 337.1, 337.15, 338, 339, 340(3), 340.2, 343. AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff was negligent and careless in and about the matters 10 and events alleged in the Complaint, and said negligence proximately contributed to the alleged 11 damages, if any there were, and as a result thereof, the principles of equitable comparative B peo negligence must be applied to bar plaintiffs action. Bm Caseeels Eze: 13 AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Smeg sa58ae 14 this answering defendant alleges that the injuries, loss and/or damages alleged in said Complaint 15 by plaintiff, if any there were, were caused by the carelessness and negligence on the part of the 16 remaining defendants in that said carelessness and negligence on the part of said remaining 17 defendants proximately contributed to the happening of the subject event and the injuries, loss or 18 damages alleged by the plaintiff herein, and that any judgment rendered against this answering 19 defendant be reduced or nullified to the extent of such negligence and carelessness on the part of 20 the remaining defendants as aforesaid. 21 AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this 22 answering defendant alleges that the plaintiff's injuries and damages which may have been 23 sustained as a result of events mentioned in the Complaint, if any there were, were proximately 24 caused by the carelessness and negligence of plaintiff and the remaining defendants, and that the 25 respective negligence of each said party to this suit ought to be equitably apportioned among the 26 parties hereto. 2- ELLIOTT COMPANY'S ANSWER TO JAMES JORDAN'S COMPLAINT - ASBESTOS - SFSC 402113 AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that at the time of the occurrence of the matters mentioned in the plaintiff's Complaint, plaintiff had knowledge of those matters alleged in the Complaint and that plaintiff did, with said knowledge, voluntarily and with free will, act and place themselves in an unsafe and dangerous position and by reason thereof, plaintiff 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 at all times herein mentioned, plaintiff were in the course and scope of his employment and that the injuries and damages sustained by plaintiff, 10 if any there were, were caused or contributed to by the carelessness and negligence of plaintiff 11 employers, other than this defendant should it be construed as an employer, entitling this % peo 12 answering defendant to a set-off in an amount equal to the extent of payments made by said o> gos £aeboE35 13 employers’ Workers' Compensation carrier. om ae ezas £22 BMQskoo Ba im°?ss 14 AS AND FOR A EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Fa 15 this answering defendant alleges that plaintiff's employers, other than this defendant should it be 16 construed as an employer, were negligent and careless in and about the matters alleged in the 17 Complaint and proximately contributed to the injuries and damages, if any there were, sustained 18 by plaintiff; therefore, said employers and their Workers’ Compensation carrier are barred from 19 recovery of any payments heretofore or hereafter made to plaintiff pursuant to the Workers! 20 Compensation laws of the State of California under the doctrine of Witt v. Jackson, 57 Cal.2d 57. 21 AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 22 this answering defendant alleges that plaintiff's Complaint herein is barred by the Labor Code 23 §3600, etseq. 24 AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, 25 this answering defendant alleges that plaintiff's Complaint herein is barred by the Doctrine of 26 Laches. 3- ELLIOTT COMPANY'S ANSWER TO JAMES JORDAN'S COMPLAINT - ASBESTOS - SFSC 402113 AS AND FOR A ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff failed and neglected to use reasonable care to protect himself and to minimize the losses and damages complained of, if any there were. AS AND FOR AN TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff’s 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 Constitution and under the California Constitution. See U.S. Constitution, Amendment XIV, §1; Cal. Constitution, Art. I, §7(a). AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 10 DEFENSE, this answering defendant alleges that plaintiff's claim for punitive damages is barred 11 by the Constitutional Prohibition against excessive fines. See U.S. Constitution, Amendment VII; 12 California Constitution, Art. I, §17. @ pve gos a> se ga Bad a 13 AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE Smeg saaaa Moss 14 DEFENSE, this answering defendant alleges that plaintiff's claim for punitive damages is barred oa 15 by the Constitutional Prohibition against impairing the obligation of contracts. See U.S. 16 Constitution, Art. I, §X, C1.1. See California Constitution, Art. I, §9. 17 AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 18 DEFENSE, this answering defendant alleges that any claim for punitive or exemplary damages 19 pursuant to California law herein constitutes a violation of equal protection prohibited by the 20 United States Constitution and the Constitution of the State of California and therefore fails to 21 make a claim upon which relief can be granted. 22 AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 23 DEFENSE, this answering defendant alleges that the complaint on file herein fails to seek facts 24 sufficient to constitute a cause of action for punitive damages. 25 AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE 26 DEFENSE, this answering defendant alleges that, to the extent plaintiff may be able to prove -4. ELLIOTT COMPANY'S ANSWER TO JAMES JORDAN'S COMPLAINT - ASBESTOS - SFSC 402113 allegations concerning liability, injuries and damages, which are specifically denied, were the result of intervening acts of superseding negligence on the part of a person or persons over whom this defendant had neither control nor the right of control. AS AND FOR A EIGHTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff is barred from asserting any causes of action by the Doctrine of Waiver. AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiff is estopped from asserting any causes of action by their own conduct. 10 AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT AFFIRMATIVE 11 DEFENSE, this answering defendant alleges that plaintiff has failed to join necessary and B gre 12 indispensable parties. Bm o808 ga Be BGS 13 AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT AFFIRMATIVE ae Smee aM 14 DEFENSE, this answering defendant alleges that plaintiff has improperly joined or misjoined it 15 and other parties to this action. 16 AS AND FOR A TWENTY-SECOND, SEPARATE AND DISTINCT AFFIRMATIVE 17 DEFENSE TO THE COMPLAINT AND EACH AND EVERY CAUSE OF ACTION THEREIN 18 ALLEGED, this Answering Defendant alleges that the product in question was used after 19 knowledge of the defect, if any, that existed therein. 20 AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT AFFIRMATIVE 21 DEFENSE TO THE COMPLAINT AND EACH AND EVERY CAUSE OF ACTION THEREIN 22 ALLEGED, this Answering Defendant alleges that if plaintiff's claims were already litigated and 23 resolved in any prior action, plaintiff's claims herein are barred based on the primary right and res 24 judicata doctrines which prohibit splitting a single cause of action into successive suits, and 25 seeking new recovery for injuries for which the plaintiff was previously compensated by alleged 26 joint tortfeasors. -5- ELLIOTT COMPANY'S ANSWER TO JAMES JORDAN'S COMPLAINT - ASBESTOS - SFSC 402113 AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH AND EVERY CAUSE OF ACTION THEREIN ALLEGED, this Answering Defendant alleges that plaintiff's claims are barred by the primary right doctrine as there is another action pending between the same parties on the same cause of action. AS AND FOR A TWENTY-FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH AND EVERY CAUSE OF ACTION THEREIN ALLEGED, this Answering Defendant alleges that plaintiff's claims are barred by the principles of res judicata. 10 WHEREFORE, this answering defendant prays for judgment as follows: 11 1 That plaintiff takes nothing by way of the Complaint or any cause of action thereof] 12 against this answering defendant; b Bos Sind Boe 13 2. That the Court award judgment in favor of this answering defendant; EZ xO ome Zak go pee aM ez2 3 For reasonable attorneys’ fees; gee Sa 14 15 4. For costs of suit and disbursements; and 16 5 For such other and further relief as the Court may deem proper. 17 Dated: February f'2; 2002 18 IMAI, TADLOCK, KEENEY & CORDERY, LLP 19 20 By: 21 THBODORE T. CORDERY Attorneys for Defendant 22 ELLIOTT COMPANY 23 24 25 26 -6- ELLIOTT COMPANY'S ANSWER TO JAMES JORDAN'S COMPLAINT - ASBESTOS - SFSC 402113 PROOF OF SERVICE I, Heather Cherry, declare: I am a resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is 185 Berry Street, Suite 4300, San Francisco, CA 94107. On the date of execution below, I served the within documents: ANSWER TO JAMES JORDAN'S COMPLAINT FOR PERSONAL INJURY SFSC 402133 - ASBESTOS O by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. xX] by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California addressed as set forth below. 10 O by placing the document(s) listed above in a sealed envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to a 11 agent for delivery B pve 12 O by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. a> gos baekss Bu0 13 &Zar SEE zQS8ge ae Alan R. Brayton Esq. 14 Brayton Purcell 15 222 Rush Landing Novato, CA 94948 16 I am readily familiar with the firm's practice of collection and processing correspondence 17 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on 18 motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 19 I declare under penalty of perjury under the laws of the State of California that the above 20 is true and correct. 21 Executed on Feb uf Poo, at San Franc} Califo 22 23 feathe! 24 25 26 ale