Answer: JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

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                                       Jan-29-2002   1:52 pm




                              Case Number: CGC-01-402113

                               Filing Date: Jan-29-2002 1:48

                             Juke Box: 001       Image: 00352070

                                           ANSWER




                JAMES JORDAN VS. ASBESTOS                      DEFENDANTS (BHC)




                                        001000352070




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Donald P. Eichhorn (State Bar 139863)
     Randall K. Bernard (State Bar 181522)
     WILSON, ELSER, MOSKOWITZ,                                                   FILE
     EDELMAN & DICKER LLP                                                 SUPERIOR COURT
     650 California Street, 14" Floor                                COUNTY OF SAN FRANCISCO
     San Francisco, California 94108-2718
     Telephone:     (415) 433-0990                                            JAN 2 9 20028 oft?         ft
     Facsimile:     (415) 434-1370
                                                                          G
     Attorneys for Defendant                                        BY:
     A.H. Voss Company



                              SUPERIOR COURT OF THE STATE OF CALIFORNIA

                         COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

10   JAMES JORDAN,                                            Case No.: 402113

1                      Plaintiff,                             (Asbestos)

12             v.                                             A.H. VOSS COMPANY’S ANSWER TO
                                                              PLAINTIFF’S COMPLAINT
13   ASBESTOS DEFENDANTS (BHC) As
     Reflected on Exhibits B, B-1, C.F., and H; and           Action filed: Dec. 6, 2001
14   DOES 1-800,                                              Trial Date: None

15                     Defendants.

16

17             COMES NOW, defendant A.H. VOSS COMPANY and answers the Complaint (hereinafter

18   “Complaint”) of JAMES JORDAN (hereinafter “plaintiff’), as follows:
19             1    Pursuant to the provisions of § 431.30(d) of the California Code of Civil Procedure, this

20   answering defendant A.H. VOSS COMPANY denies each and every, all and singular, generally
21   and specifically, the allegations contained in plaintiff's complaint for damages, and further denies

22   that this answering defendant AH. VOSS COMPANY is liable to plaintiff in any sum, sums or
23   otherwise, or at all.

24             2.   This answering defendant A.H. VOSS COMPANY denies that by reason of any act or
25   omission, fault, carelessness or negligence upon its part or upon the part of its agents, servants, or
26   employees, plaintiff sustained any injuries of any kind, or is entitled to relief or damages in any
27   sum, sums, or otherwise or at all.

28             3    As and for a separate affirmative defense to the causes of action directed to this
                                    A.H. VOSS’ COMPANY’S ANSWER TO COMPLAINT
     66148.1


                                                                                           ORIGINAL
answering party, defendant AH. VOSS COMPANY alleges as follows:

                                         FIRST AFFIRMATIVE DEFENSE
               4.   As and for a first, separate and distinct affirmative defense to plaintiff's complaint on

     file herein, this answering defendant AH. VOSS COMPANY alleges that neither plaintiff's

     complaint on file herein, nor the causes of action alleged therein state facts sufficient to constitute a

     cause of action against this answering defendant AH. VOSS COMPANY.

                                       SECOND AFFIRMATIVE DEFENSE

               5.   As and for a second, separate and distinct affirmative defense to plaintiff's complaint on
     file herein, this answering defendant AH. VOSS COMPANY alleges that plaintiff's complaint, and
10   each and every cause of action thereof, is barred by the applicable statute of limitations including,

11   but not limited to, California Code of Civil Procedure §§ 340(3), 338, 338(d) and 340.2.

12                                      THIRD AFFIRMATIVE DEFENSE

13             6.   As and for a third, separate and distinct affirmative defense to plaintiff's complaint on

14   file herein, and each and every cause of action thereof, this answering defendant AH. VOSS

15   COMPANY          alleges that plaintiff, and others, were themselves careless and negligent in and about

16   all matters alleged in the plaintiffs complaint, that said carelessness and negligence proximately

17   contributed, partially or wholly, to the happenings of the events alleged and the injuries incurred,

18   which are expressly denied, and that plaintiff's claims for relief are thereby barred and/or subject to
19   proportional reduction according to the principles of comparative fault.

20                                     FOURTH AFFIRMATIVE DEFENSE
21             7.   Asand for a fourth, separate and distinct affirmative defense to plaintiff's complaint on

22   file herein, this answering defendant A.H. VOSS COMPANY alleges that plaintiff knew or should

23   have known of the risks attendant to the event alleged in the plaintiff's complaint, and that plaintiff

24   did with the aforesaid knowledge voluntarily and reasonably assume the risk and all risks ordinarily

25   attendant thereto, and that said assumption of risk bars or reduces plaintiff's recovery herein.

26                                      FIFTH AFFIRMATIVE DEFENSE

27             8.   As and for a fifth, separate and distinct affirmative defense to plaintiff's complaint on

28   file herein, this answering defendant AH. VOSS COMPANY alleges that plaintiff and others
                                                        2
                                   A.H, VOSS’ COMPANY’S ANSWER TO COMPLAINT
     66148.1
abused, misused, altered and/or modified the product or products complained of, thereby barring

     plaintiff's claims for relief herein.

                                        SIXTH AFFIRMATIVE DEFENSE
               9.   As and for a sixth, separate and distinct affirmative defense to plaintiff's complaint on

     file herein, this answering defendant AH. VOSS COMPANY alleges that plaintiffs complaint, and

     each and every cause of action thereof, is barred by the provisions of Labor Code §§ 3600 et seq.

                                      SEVENTH AFFIRMATIVE DEFENSE

               10. As and for a seventh, separate and distinct affirmative defense to plaintiffs complaint on

     file herein, this answering defendant A.H. VOSS COMPANY alleges plaintiff's employer was

10   careless and negligent in and about all matters alleged in plaintiffs complaint, and that said

11   carelessness and negligence proximately contributed, partially or wholly, to the happening of the

12   events alleged and the injuries incurred, which are expressly denied, and that plaintiff's claims for

13   relief herein are thereby barred and/or subject to proportional reduction according to comparative

14   fault principles.
15                                     EIGHTH AFFIRMATIVE            DEFENSE

16             11. As and for an eighth, separate and distinct affirmative defense to the plaintiffs’

17   complaint on file herein, this answering defendant A.H. VOSS COMPANY alleges that plaintiffs

18   have failed to mitigate their damages, if any there were, and that any recovery herein should be

19   reduced accordingly.

20                                      NINTH AFFIRMATIVE DEFENSE

21             12. As and for a ninth, separate and distinct affirmative defense to plaintiff's complaint on

22   file herein, this answering defendant AH. VOSS COMPANY alleges that this action is barred by

23   the doctrines of waiver, estoppel and laches.

24                                     TENTH AFFIRMATIVE DEFENSE

25             13. As and for a tenth, separate and distinct affirmative defense to plaintiff's complaint on

26   file herein, this answering defendant AH. VOSS COMPANY alleges that plaintiff has failed to join

27   all persons and parties needed for a just adjudication of this action.

28
                                                       3
                                  A.H. VOSS’ COMPANY’S ANSWER TO COMPLAINT
     66148.1
ELEVENTH AFFIRMATIVE DEFENSE
               14. As and for an eleventh, separate and distinct affirmative defense to plaintiffs complaint

     on file herein, this answering defendant AH. VOSS COMPANY alleges that if plaintiff suffered

     any injuries and/or damages, which is denied, such injuries and/or damages were solely and

     proximately caused or contributed to by the negligence and/or breach of express or implied

     warranty of third persons or entities over whom or for which this answering defendant A.H. VOSS

     COMPANY had no responsibility, control or supervision.
                                     TWELFTH AFFIRMATIVE DEFENSE

               15. As and for a twelfth, separate and distinct affirmative defense to plaintiff's complaint on

10   file herein, this answering defendant AH. VOSS COMPANY alleges that if plaintiff suffered any

11   injuries and/or damages whatsoever, which is denied, such injuries and/or damages were and are the|

12   sole and proximate result of an unavoidable accident.

13                                THIRTEENTH AFFIRMATIVE DEFENSE

14             16. As and for a thirteenth, separate and distinct affirmative defense to the plaintiff's

15   complaint on file herein, this answering defendant AH. VOSS COMPANY alleges that if plaintiff

16   was injured and/or damaged by products allegedly designed, manufactured, sold or distributed by

17   this answering defendant AH. VOSS COMPANY, which is denied, such injuries and/or damages

18   occurred after the expiration of the useful safe life of such products.

19                                FOURTEENTH         AFFIRMATIVE DEFENSE

20             17. As and for a fourteenth, separate and distinct affirmative defense to plaintiff's complaint

21   on file herein, this answering defendant AH. VOSS COMPANY alleges that if plaintiff suffered

22   any injuries and/or damages, which is denied, the risk of any such injuries and/or damages was not

23   foreseeable by defendant AH. VOSS COMPANY.

24                                  FIFTEENTH AFFIRMATIVE DEFENSE

25             18. As and for a fifteenth, separate and distinct affirmative defense to plaintiffs complaint

26   on file herein, this answering defendant A.LH. VOSS COMPANY alleges plaintiffs exposure to any

27   asbestos-containing products allegedly designed, manufactured, sold or distributed by defendant

28   A.H. VOSS COMPANY was minimal and insufficient to establish the possibility that said products
                                              4
                                  A.H. VOSS’ COMPANY’S ANSWER TO COMPLAINT
     66148.1
caused plaintiffs injuries and/or damages.

                                      SIXTEENTH AFFIRMATIVE DEFENSE

               19. As and for a sixteenth, separate and distinct affirmative defense to plaintiff's complaint

     on file herein, this answering defendant AH. VOSS COMPANY alleges plaintiff was employed by

     persons other than defendant AH. VOSS COMPANY, was entitled to receive and did receive

     workers’ compensation benefits from said employer(s) or their insurers, that said employer(s) were

     themselves negligent and careless in and about the matters referred to in plaintiffs’ complaint, and

     that their negligence and carelessness proximately caused or contributed to the injuries and/or

     damages alleged in plaintiffs’ complaint. Defendant AH. VOSS COMPANY is, therefore, entitled
10   to set-off any such benefits received by plaintiff against any judgment rendered in plaintiffs favor
11   herein and said employer(s) are barred from any recovery by way of lien or otherwise against

12   defendant A-H. VOSS COMPANY               in connection with this matter.

13             WHEREFORE, defendant AH. VOSS COMPANY prays that:

14             1         Judgment be entered in favor of defendant AH. VOSS COMPANY and against
15   plaintiff herein;

16             2         Plaintiff take nothing by way of his complaint;

17             3         Defendant A.H. VOSS      COMPANY      be awarded costs of suit incurred herein; and

18             4         Defendant AH. VOSS COMPANY be awarded such other and further relief as the
19   court may deem necessary and proper.

20   Dated: January 28, 2002

21                                      WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
22

23                                      By:       Radin - Berne)
                                              Donald P. Eichhorn ¢
24                                            Randall K. Bernard
                                              Attorneys for Defendant
25                                            A.H. Voss Company

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                                   A.H. VOSS’ COMPANY’S ANSWER TO COMPLAINT
     66148.1
DECLARATION         OF SERVICE

                 lam a citizen of the United States, | am over the age of eighteen years not a party to the
     within cause; I am employed in the City and County of San Francisco, California and my
     business address is 650 California Street, 14th Floor San Francisco, California 94108. On this
     date I served the following document(s)
     A.H. VOSS COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT

     on the party(ies) identified below, through their attorneys of record, by placing true copies
     thereof in sealed envelopes addressed as shown below by the following means of service
     XXX           By First Class Mail -- I caused each such envelope, with first class postage thereon
     fully prepaid, to be deposited in a recognized place of deposit of the U.S. Mail in San Francisco.
     California, for collection to the office of the addressee following ordinary business practices.

         : By Personal Service -- | caused each such envelope to be given to a courier messenger whol
     personally delivered each such envelope to the office of the address.

10          : By Overnight Courier -- | caused each such envelope to be given to an overnight mail
     service at San Francisco, California, to be hand delivered to the office of the addressee on the
11   next business day.
12        Facsimile -- (Only where permitted. Must consult CCP §1012.5 and California Rules of
     Court 2001-2011. Also consult FRCP Rule 5(e). Not currently authorized in N.D.CA.)
13
     Brayton*+Purcell
14
     222 Rush Landing Road
15   P.O. Box 2109
     Novato,      CA 94948
16   Tel:      415-898-1555
     Fax:      415-898-1247
17
             I declare under penalty of perjury under the laws of the State of California that the
18   foregoing is true and correct to the best of my knowledge.
19               EXECUTED January 28, 2002, at San Francisco, California
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21                              “bch nee
                                Vicki L. Vroman-Hitch
                                                                    Ate
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     66167.1