Answer: CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

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                                STEPTOE & JOHNSON LLP
      Ruth D. Kabn (CSBN 122067
      John P. Swenson (CSBN 224110)                                                ELECTRONICALLY
      STEPTOE & JOHNSON LLP
      633 West Fifth Street, Suite 700                                                  FILED
                                                                                   Superior Court of California,
      Los Angeles, California 90671                                                 County of San Francisco
      Telephone: (213) 439-9400
       Facsimile:   (213) 439-9599                                                  F                      9
      Email: rkahn@steptoe.com                                                  GORDON        PARK-LI, Cletk
      Email: jswenson@steptoe.com                                                  BY: JUDITH    NUNEZ
                                                                                                    Deputy Cle
      Attorneys for Defendant
      METROPOLITAN LIFE INSURANCE COMPANY


                           SUPERIOR COURT OF THE STATE OF CALIFORNIA

 10                           IN AND FOR THE COUNTY OF SAN FRANCISCO

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      CHARLES TOBEY,                                         Case No. 274226
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                      Plaintiff,
 13                                                          METROPOLITAN LIFE INSURANCE
                                                             COMPANY’S ANSWER TO PLAINTIFF'S
14            VS.
                                                             FIRST AMENDED COMPLAINT FOR,
                                                             PERSONAL INJURY - ASBESTOS
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      ASBESTOS DEFENDANTS (B¢@P)
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                      Defendants.
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18            COMES NOW            Metropolitan Life Insurance Company (“Metropolitan Life”), for itself
19    alone and for no other defendants, and in answer to the unverified First Amended Complaint
20    (“Complaint”) and each cause of action therein, and each and every Cross-Complaint filed
21    hereafter by any other defendant or third-party defendant, alleges as follows:
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23                                             GENERAL DENIAL
24            1       Pursuant to Califomia Code of Civil Procedure section 431.30(@), Metropolitan
25    Life generally denies each and every unverified allegation of the Complaint, except that
26    Metropolitan Life admits that it is a life insurance company incorporated under the laws of the
27    State of New York and licensed to do business in the State of California.
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                                   METROPOLITAN LIFE’S ANSWER TO COMPLAINT

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Metropolitan Life asserts the following affirmative defenses based upon information and
     belief.
                                         FIRST AFFIRMATIVE DEFENSE
               2          The Complaint, and each cause of action thereof, fails to state facts sufficient to

     constitute a cause of action against Metropolitan Life,
                                        SECOND AFFIRMATIVE DEFENSE
               3          The causes of action in the Complaint are, and each of them is, barred by the
     provisions of California Code of Civil Procedure section 335.1; section 337, subdivision 1;

     section 338, subdivision (d); section 339, subdivision 1; section 340, subdivision 3; section

10   340.2, subdivisions (a} and (c); and section 343.

1                                        THIRD AFFIRMATIVE DEFENSE
12             4          Charles Tobey (“Plaintiff") was contributorily and/or comparatively negligent.

13                                     FOURTH AFFIRMATIVE DEFENSE
               5
14                        Plaintiff's lack of reasonable care for his safety and well-being was the sole cause

15   of, or contributed to, his injuries and damages, as alleged in the Complaint.         By reason thereof,

16   Plaintiffis barred from recovering all or that portion of any damages attributable to Plaintiff’s

V7   lack of reasonable care.
18                                       FIFTH AFFIRMATIVE DEFENSE
19                        Plaintiff's claims are barred by operation of the doctrine of laches.

20                                       SIXTH AFFIRMATIVE DEFENSE
21                        Plaintiff's claims are barred by operation of the doctrine of estoppel.
22                                     SEVENTH AFFIRMATIVE              DEFENSE

23                       Plaintiff's claims are barred by operation of the doctrine of waiver.

24                                      EIGHTH AFFIRMATIVE DEFENSE

25             9         Plaintiff assumed the risk of any injuries allegedly sustained as a result of

26   exposure to asbestos-containing products used by or near Plaintiff.
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                                   METROPOLITAN LIFE’S ANSWER TO COMPLAINT

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NINTH AFFIRMATIVE DEFENSE
                  10.   Whatever damages were incurred by Plaintiff were the result of intervening

      and/or superseding acts or omissions of parties and events over whom Metropolitan Life had no
      control.

                                      TENTH AFFIRMATIVE DEFENSE
                 i.     At all times relevant hereto, the knowledge of Plaintiff's employer(s) was superioy
      to that of Metropolitan Life with respect to possible health hazards associated with Plaintiff's
      employment, and, therefore, if there was any duty to warn Plaintiff, or to provide protection to
      him, it was the duty of said employers, not of Metropolitan Life, and the breach of that duty was
 10   an intervening and/or superseding cause of the injuries allegedly sustained by Plaintiff.
 il                                 ELEVENTH AFFIRMATIVE DEFENSE
12               12.    In the event that it is shown that Plaintiff used any product or material, as alleged
13    in the Complaint, which gave rise to the injuries as set forth therein, the same was unforesecably
14    misused, abused, modified, altered or subjected to abnormal use.

15                                  TWELFTH AFFIRMATIVE DEFENSE
16               13.    Plaintiff's injuries and damages, if any, were legally caused or contributed to by
17    his unforeseeable idiosyncratic conditions, unusual susceptibilities or hypersensitive reactions,
18    for which Metropolitan Life is not liable.
19                                THIRTEENTH AFFIRMATIVE DEFENSE
20               14.    Plaintiff and his employer(s) were sophisticated users of products containing
21    asbestos and had, or should have had, adequate knowledge of the dangers and risks associated
22    with using or working around asbestos.
23                               FOURTEENTH          AFFIRMATIVE DEFENSE
24               45.    ‘The claims in the Complaint, and each cause of action thereof, that seek an award

25    of exemplary or punitive damages fail to state facts sufficient to constitute a cause of action
26    against Metropolitan Life.
27                                 FIFTEENTH AFFIRMATIVE DEFENSE
28               16.    The claims in the Complaint, and each canse of action thereof, that seck

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                                 METROPOLITAN LIFE’S ANSWER TO COMPLAINT

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exemplaty or punitive damages violate Metropolitan Life’s right to procedural due process as
      provided in the Fifth and Fourteenth Amendments of the United States Constitution and Article

      I, Sections 1 and 7, and all other applicable provisions, of the Constitution of the State of
      California and any other state’s laws which may be applicable.
                                 SIXTEENTH AFFIRMATIVE DEFENSE
              17.     The claims in the Complaint, and each cause of action thereof, that seek

      exemplary or punitive damages violate Metropolitan Life’s right to substantive due process as
      provided in the Fifth and Fourteenth Amendments of the United States Constitution and Article
      I, Sections 1 and 7, and all other applicable provisions, of the Constitution of the State of
 10   California and any other state’s laws which may be applicable.
ll                             SEVENTEENTH AFFIRMATIVE DEFENSE
12            18.     The claims in the Complaint, and each cause of action thereof, that seek
 13   exemplary or punitive damages violate Metropolitan Life’s right to equal protection under the
14    law and are otherwise unconstitutional under the Fourteenth Amendment of the United States
15    Constitution and Article I, Section 7, and all other applicable provisions, of the Constitution of
16    the State of California and any other state’s laws which may be applicable.
17                              EIGHTEENTH AFFIRMATIVE DEFENSE
18            19,     The claims in the Complaint, and each cause of action thereof, that seek
19    exemplary or punitive damages violate Metropolitan Life’s right to protection from “excessive
20    fines” as provided in Article i, Section 17 of the Constitution of the State of California and any
21    other state’s laws which may be applicable.
22                              NINETEENTH AFFIRMATIVE DEFEN SE
23            20.    The actions of Metropolitan Life, as alleged in the Complaint and otherwise, were
24    within its rights under the First Amendment to the United States Constitution and Article I,
25    Section 2 of the Constitution of the State of California, and any other state’s laws which may be
26    applicable, and are fully protected thereby.
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                               METROPOLITAN LIFES ANSWER TO COMPLAINT

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TWENTIETH AFFIRMATIVE DEFENSE
             21.     Plaintiff should have taken action to minimize or eliminate damages, and

     therefore Plaintiff is precluded from recovering damages, or his damages are reduced, by
     operation of the doctrine of avoidable consequences.
                             TWENTY-FIRST AFFIRMATIVE DEFENSE
             22.     Plaintiff has unreasonably failed to mitigate his damages, if any.
                            TWENTY-SECOND AFFIRMATIVE DEFENSE
             23.     Metropolitan Life did not authorize, approve, acquiesce in or ratify the alleged
     acts or omissions attributed to it in the Complaint.

10                           TWENTY-THIRD AFFIRMATIVE DEFENSE
ll           24.     Metropolitan Life cannot be held able as a matter of law for injuries or damages
12   allegedly sustained as a result of exposure to asbestos-containing products allegedly used by or
13   near Plaintiff, to the extent such exposure was to asbestos-containing products manufactured
14   and distributed by others pursuant to and in strict conformity with specific regulations and

15   specifications set forth by the United States Government. Metropolitan Life avers further that at
16   all times relevant to the allegations contained in the Complaint, the products allegedly
17   containing asbestos substantially conformed to those specifications set forth and approved by
18   the United States Government, and the United States Government had actual knowledge of the

19   hazards, if any, associated with exposure to asbestos.

20                         TWENTY-FOURTH            AFFIRMATIVE DEFENSE

21          25.     Metropolitan Life is entitled to a set-off or credit in the amount of ary settlement
22   or compromise heretofore or hereafter reached by Plaintiff with any other person or entity for
23   any of Plaintiff's alleged damages.
24                           TWENTY-FIFTH AFFIRMATIVE DEFENSE
25          26.     California Civil Code sections 1431.1 through 1431.5, commonly known as
26   “Proposition 51,” provide that the liability of each defendant for non-economic damages shall
27   be several only and shall not be joint, and Metropolitan Life therefore asserts that each
28   defendant may be Hable only for the amount of non-economic damages allocated to that

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                              METROPOLITAN LIFE’S ANSWER TO COMPLAINT

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defendant in direct proportion to its percentage of fault, if any.
                               TWENTY-SIXTH AFFIRMATIVE DEFENSE
              27.     The Complaint should be dismissed for failure of Plaintiff to comply with the

      provisions of the California Code of Civil Procedure section 430.10, subdivision ().

                            TWENTY-SEVENTH AFFIRMATIVE DEFENSE
              28.     Plaintiff's alleged injuries and damages, if any, were proximately caused by or
      contributed to by exposure or inhalation of noxious and deleterious fumes and residues from
      industrial products or by-products prevalent on Plaintiff's job sites, by the cumulative effects of
      exposure to all types of environmental and industrial pollutants of air and water, or by

 10   substances, products, or other causes not attributable to or connected with Metropolitan Life.

1]                           TWENTY-EIGHTH AFFIRMATIVE DEFENSE
12            29.     Meiropolitan Life would show unto the Court that multiple awards of punitive
13    damages against it would violate Article 1, Section 7 of the Constitution of the State of
14    California; the prohibition against being twice placed in jeopardy for the same offense
15    embodied in the Fifth and Fourteenth Amendments to the United States Constitution and the
16    common law of the State of California, and any other state’s laws which may be applicable.
17                            TWENTY-NINTH AFFIRMATIVE DEFENSE
18            30.     The Complaint fails to name both necessary and indispensable parties in whose
19    absence complete relief cannot be accorded among those already parties. Therefore, this action
20    must be dismissed, or, alternatively, the action should be stayed pending other appropriate relief
21    by the Court.
22                               TEURTIETH AFFIRMATIVE DEFENSE
23            3i.     Plaintiff's claims are barred in whole or in part by the exclusivity principles
24    embodied in California’s Workers’ Compensation Act.
25                             THIRTY-FIRST AFFIRMATIVE DEFENSE
26            32.     Plaintiff's employer's lack of reasonable care or other wrongful conduct was the

27    sole cause of, or contributed to, Plaintiff's damages.   Therefore, Plaintiff's recovery, if any,

28    from Metropolitan Life must be reduced by the amount of workers’ compensation benefits paid

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                                METROPOLITAN LIFE’S ANSWER TO COMPLAINT

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by or on behalf of such employer.
                               THIRTY-SECOND AFFIRMATIVE DEFENSE
                 33.   Plaintiff's losses, if any, were proximately caused by the negligence and fault of
      Plaintiff, or other parties hereto, and of third parties, not by any act or omission of Metropolitan
      Life.

                                THIRTY-THIRD AFFIRMATIVE DEFENSE
                34,    Metropolitan Life owed no duty to Plaintiff with respect to the actions for which
      liability is alleged in the Complaint.
                               THIRTY-FOURTH AFFIRMATIVE DEFENSE
 10             35.    Metropolitan Life would show unto the Court that the events which allegedly

 il   form the basis for Plaintiff's alleged causes of action against Metropolitan Life arose prior to the
12    elimination of the common law privity requirement in negligence and strict liability actions. As
13    such, Plaintiff is subject to the common law requirement that he be in privity with Metropolitan

14    Life. Inasmuch as no such privity existed, Metropolitan Life is not a proper party to this action.
15                               THIRTY-FIFTH AFFIRMATIVE               DEFENSE

16              36.    Plaintiff's claims are barred by Plaintiff's contributory and/or comparative
17    negligence and/or assumption of risk, and/or any other affirmative defense asserted herein.
18                              THIREY-SIXTH AFFIRMATIVE DEFENSE
19              37.    The claims of Plaintiff's spouses, if any, arc barred by Plaintiff's contributory
20    and/or comparative negligence end/or assumption of risk and/or any other defense asserted
21    herein.
22                            THIRTY-SEVENTH AFFIRMATIVE DEFENSE
23              38.    Plaintiff's claims should be denied to the extent they are barred by the operation
24    of the docirine of accord and satisfaction.
25                            THIRTY-EIGHTH AFFIRMATIVE DEFENSE
26              39,    Plaintiff's claims should be denied to the extent they are barred by the operation
27    of the doctrine of release and settlement.
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                                METROPOLITAN LIFE’S ANSWER TO COMPLAINT

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THIRTY-NINTH AFFIRMATIVE DEFENSE
                    40,    Plaintiff's claims should be denied to the extent they are barred by the operation
            of the doctrine of payment.

                                          FORTIETH AFFIRMATIVE DEFENSE
                    4}.    If all or most of the witnesses to the alleged asbestos exposure of Plaintiff resides
      6     outside of California, travel to and from this forum by witnesses and counsel for necessary

            discovery and trial would place an undue burden upon Metropolitan Life. Furthermore, this
           Court may be required under principles of conflicts of law to apply foreign law, with which this
           Court and California counsel are unfamiliar. Therefore, the Complaint should be dismissed
 10        under the doctrine of forum non conveniens,
 11                                  FORTY-FIRST AFFIRMATIVE DEFENSE
 12                42.     Plaintiff's right to recover for his injuries and damages, if any, under any cause
 13        of action in their Complaint, is barred by the laws of other jurisdictions that may be applied to

 14        Plaintiff's action under the “choice of laws” doctrine.
 15                                FORTY-SECOND AFFIRMATIVE DEFENSE
16                 43.     Plaintif?'s Complaint, and each cause of action therein, is expressly and/or
17         impliedly preempted by federal law.
18                                  FORTY-THIRD AFFIRMATIVE DEFENSE
19                 44.     Metropolitan Life hereby reserves its right to assert any other applicable
20        affirmative defenses supported by the evidence.
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                                    METROPOLITAN LIFE’S ANSWER TO COMPLAINT

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WHEREFORE, Metropolitan Life prays for judgment as follows:

                       @)      That Plaintiff take nothing by way of the Complaint;

                       (b)     That the Complaint be dismissed with prejudice as to Metropolitan Life;

                       ()      That Plaintiff's demands for relief be denied in every respect;
     35                @       ‘That Metropolitan Life be awarded costs incurred in connection with this

                               litigation; and

                        @)     That the Court grant such other and further relief as may be just, proper,
                               and equitable.
          DATED:   February 4, 2009              STEPTOE&         J              LLP
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 1                                                By
                                                        Ruth P\ Rallb-”
 12                                                     Jol            Swenson
                                                        Att           ‘ys for Defendant
13                                                      METROPOLITAN LIFE
                                                        INSURANCE COMPANY
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                                METROPOLITAN LIFE’S ANSWER TO COMPLAINT

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Charies Tobey, et al. v. Asbestos Defendants
      Case No, 274226



                         PROOF OF SERVICE VIA LEXIS NEXIS FILE AND SERVE
                              FRCP. 5/CC.P, § 1013a3y Cal. R. Ct R. 2.260

                 Iam a resident of, or employed in, the County of Los Angeles. I am over the age of 18

      and not a party to this action. My business address is: Steptoe         & Johnson LLP, 633 West Fifth

      Street, Suite 700, Los Angeles, California 90071.


                 On February 6, 2009, l electronically served the following listed document(s) on the.
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      recipients designated on the Transaction Receipt located on the Lexis/Nexis File & Serve
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 12   website;     METROPOLITAN LIFE INSURANCE COMPANY’S ANSWER TO

 13   PLAINTIFF'S FIRST AMENDED COMPLAINT FOR PERSONAL INJURY -
 14   ASBESTOS
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                 I declare under penalty of perjury under the laws of the State of California and the United
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      States of America that the above is true and correct.      Executed on February 6, 2009 at Los
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      Angeles, California.
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       ELENA HERNANDEZ                                                    Gna                 Yh,
                                                                                                   OD
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       Type or Print Name                                                       Signature
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                                                 PROOP OF SERVICE

                                                                                      Doo, # LA-179832 v.41