Preview
1 Emily D. Bergstrom (SB #191395)
emily@bhc.law
2 BHC LAW GROUP LLP ELECTRONICALLY
5900 Hollis Street, Suite O FILED
3
Emeryville, CA 94608 Superior Court of California,
County of San Francisco
4 Telephone: (510) 658-3600
Facsimile: (510) 658-1151 11/17/2023
Clerk of the Court
5 BY: ANNIE PASCUAL
Attorneys for Defendant Deputy Clerk
6 DILLINGHAM CONSTRUCTION N.A., INC.
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF SAN FRANCISCO
9
FRED STINNETT, as Successor-in-Interest to SFSC Case No. CGC-23-277160
10 and as Wrongful Death Heir of JAMES
STINNETT, Deceased, DEFENDANT DILLINGHAM
11 CONSTRUCTION N.A., INC.’S ANSWER
Plaintiff, TO PLAINTIFF’S COMPLAINT FOR
12 vs. SURVIVAL, WRONGFUL DEATH -
13 ASBESTOS
CV SUPPLY, INC., et al.
14
Defendants.
15
16 Defendant DILLINGHAM CONSTRUCTION N.A., INC. (“DCNA” or “Defendant”),
17 answers the Complaint for Survival, Wrongful Death - Asbestos, herein, as amended, now or in
18 the future, or otherwise admits, denies, and alleges as follows:
19 DEFINITIONS
20 The word “Plaintiff,” as used herein, shall include the plural (i.e., Plaintiffs) as well as the
21 singular (i.e., Plaintiff), as may be appropriate to the particular context in which the word appears.
22 Whenever “Plaintiff” or “Plaintiffs” is used in this answer, its reference embraces each Plaintiff
BHC 23 named in any Complaint in response to which some, or all, of this Answer has been adopted,
LAW
GROUP LLP 24 individually and collectively, plus the words “and each of them,” as well as the decedent, where
_____________________________
5900 Hollis Street,
Suite O 25 applicable, and all other family members upon whose alleged exposure to asbestos give rise to
Emeryville, CA 94608
T: 510-658-3600 26 this lawsuit.
F: 510-658-1151
27 ///
28 ///
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DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL
DEATH - ASBESTOS
1 Whenever “decedent” is used in this answer, it refers to the deceased, JAMES
2 STINNETT.
3 GENERAL DENIAL
4 Pursuant to California Code of Civil Procedure (“CCP”) § 431.30, Defendant hereby
5 denies, generally and specifically, each and every allegation contained in the Complaint, and each
6 and every alleged cause of action thereof. Defendant further denies that Plaintiff was injured in
7 any manner by the acts or omissions of Defendant and denies that Defendant is legally
8 responsible for any damages or injury that may have been suffered by Plaintiff. Defendant
9 additionally denies that Plaintiff is entitled to recover damages of any kind in any amount
10 whatsoever from Defendant.
11 Defendant pleads and sets forth separately and distinctly the following affirmative
12 defenses to each and every cause of action of Plaintiffs’ Complaint, as though pleaded separately
13 to each and every said cause of action.
14 AFFIRMATIVE DEFENSES
15 FIRST AFFIRMATIVE DEFENSE
16 (Failure to State a Claim)
17 This answering Defendant alleges that Plaintiffs’ Complaint, and each and every cause of
18 action therein, fails to state facts sufficient to constitute a cause of action, or any cause of action,
19 against Defendant.
20 SECOND AFFIRMATIVE DEFENSE
21 (Comparative Fault)
22 This answering Defendant alleges that Plaintiff and/or Decedent was negligent and
BHC 23 unreasonable in or about the matters alleged in the Complaint, and that such matters actually and
LAW
GROUP LLP 24 proximately caused all or part of Plaintiff’s and/or Decedent’s claimed injuries and damages, if
_____________________________
5900 Hollis Street,
Suite O 25 any. Any damages which Plaintiff and/or Decedent seeks to recover from Defendant must be
Emeryville, CA 94608
T: 510-658-3600 26 reduced in proportion to the extent that Plaintiff’s and/or Decedent’s own negligence contributed
F: 510-658-1151
27 to the claimed injuries or damages.
28
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DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL
DEATH - ASBESTOS
1 THIRD AFFIRMATIVE DEFENSE
2 (Assumption of Risk)
3 This answering Defendant alleges that Plaintiff and/or Decedent knew, or in the exercise
4 of ordinary care should have known, of the risks and hazards involved in the undertaking in
5 which he was engaged, but nevertheless, and knowing these things, did freely and voluntarily
6 consent to assume the risks and hazards incident to said operations, acts and conduct at the time
7 and place mentioned in said Complaint.
8 FOURTH AFFIRMATIVE DEFENSE
9 (Witt v. Jackson: Apportionment and Offset)
10 This answering Defendant alleges that excepting when Plaintiff and/or Decedent was
11 employed by this Defendant, if at all, Plaintiff’s and/or Decedent’s employers and former
12 employers were careless and/or negligent in and about the matters alleged in Plaintiffs’
13 Complaint, and this carelessness and/or negligence contributed directly and proximately to any
14 alleged injuries and/or damages sustained by Plaintiff. Plaintiff’s and/or Decedent’s employers
15 and former employers have or had Workers’ Compensation insurance. Plaintiff and/or Decedent
16 has received or will receive disability and medical benefits under a Workers’ Compensation law,
17 or similar laws, from Plaintiff’s and/or Decedent’s employers or former employers, or their
18 Workers’ Compensation insurance, on account of the injuries and damages allegedly sustained by
19 Plaintiff and/or Decedent which give rise to this lawsuit. Any judgment or verdict that might be
20 rendered in favor of Plaintiff should be reduced by the amount of all the payments by the
21 employers or insurers, and that each of the employers or insurers should be barred from any
22 recovery by lien or otherwise in connection with this matter under the authority of Witt v. Jackson
BHC 23 (1961) 57 Cal.2d 57.
LAW
GROUP LLP 24 FIFTH AFFIRMATIVE DEFENSE
_____________________________
5900 Hollis Street,
Suite O 25 (Third Party Negligence)
Emeryville, CA 94608
T: 510-658-3600 26 This answering Defendant alleges that the damages and injuries, if any, were proximately
F: 510-658-1151
27 caused or contributed to, in whole or in part, by the negligence or fault or other acts and/or
28
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DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL
DEATH - ASBESTOS
1 omissions of persons or entities other than Defendant, for which Defendant is not responsible.
2 SIXTH AFFIRMATIVE DEFENSE
3 (Employer’s Assumption of the Risk)
4 This answering Defendant alleges that Plaintiff’s and/or Decedent’s employers, except
5 when Plaintiff and/or Decedent was employed by this Defendant, voluntarily and knowingly
6 entered into and engaged in the operations, acts and conduct alleged in said Complaint, and
7 voluntarily and knowingly assumes all of the risks incident to said operations, acts and conduct at
8 the time and place mentioned in the Complaint.
9 SEVENTH AFFIRMATIVE DEFENSE
10 (Alteration or Misuse)
11 This answering Defendant alleges that any product or products alleged by Plaintiff and/or
12 Decedent to have caused Plaintiffs and/or Decedent’s injuries were misused, abused or altered by
13 Plaintiff and/or Decedent or by others, which misuse, abuse or altercation was not reasonably
14 foreseeable to Defendant, and such misuse, abuse or altercation proximately caused any loss,
15 injury or damages incurred by Plaintiff.
16 EIGHTH AFFIRMATIVE DEFENSE
17 (Failure to Mitigate)
18 This answering Defendant alleges that the injuries, loss or damage, if any there was to
19 Plaintiff and/or Decedent, were aggravated due to Plaintiff’s and/or Decedent’s failure to use
20 reasonable diligence to mitigate them.
21 NINTH AFFIRMATIVE DEFENSE
22 (Statute of Limitations)
BHC 23 This answering Defendant alleges that Plaintiffs’ complaint and the purported causes of
LAW
GROUP LLP 24 action therein are barred by the applicable statute of limitations, including but not limited to those
_____________________________
5900 Hollis Street,
Suite O 25 set forth in California Code of Civil Procedure §§ 338 (a), (b); 335.1; 338 (a); 340.2 (a), (b), (c);
Emeryville, CA 94608
T: 510-658-3600 26 340.8 (a), (b), (c), (d); 343; 355; 583.210 (a), (b); 583.250 (a), (b); 583.310; 583.320 (a), (b);
F: 510-658-1151
27 583.330 (a), (b); 583.340 (a), (b), (c); 583.350; 583.360 (a), (b); 583.410 (a), (b); 583.420 (a), (b);
28
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DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL
DEATH - ASBESTOS
1 583.430 (a), (b). Plaintiffs’ claims are further barred by the statutes of limitations of states other
2 than California pursuant to California Code of Civil Procedure § 361.
3 TENTH AFFIRMATIVE DEFENSE
4 (Workers’ Compensation – Exclusive Remedy)
5 This answering Defendant alleges that this action is barred by the applicable state and/or
6 federal industrial insurance and/or Workers’ Compensation laws, including, but not limited to,
7 California Labor Code §§ 3600, 3602, 4401-4418 and Melendrez v. Ameron (2015) 240
8 Cal.App.4th 632.
9 ELEVENTH AFFIRMATIVE DEFENSE
10 (Laches)
11 This answering Defendant alleges that Plaintiff and/or Decedent unreasonably delayed in
12 the bringing and service of this action without good cause therefore, and thereby has prejudiced
13 this Defendant; and as a proximate result thereof, this entire action is barred by laches.
14 TWELFTH AFFIRMATIVE DEFENSE
15 (State of the Art)
16 This answering Defendant alleges that at all times relevant, Defendant’s acts and
17 omissions, if any, were in conformity with all government statutes and regulations and all
18 industry standards based upon the state of knowledge existing at the time of the acts or omissions.
19 THIRTEENTH AFFIRMATIVE DEFENSE
20 (Proportionate Fault)
21 This answering Defendant alleges that while at all times denying any liability whatsoever
22 to Plaintiff and/or Decedent herein, this Defendant alleges that any alleged liability or
BHC 23 responsibility of this Defendant, and such alleged liability and responsibility being denied, is
LAW
GROUP LLP 24 small in proportion to the alleged liability and responsibility of other persons and entities,
_____________________________
5900 Hollis Street,
Suite O 25 including other persons who are Defendants herein, and that Plaintiff and/or Decedent should be
Emeryville, CA 94608
T: 510-658-3600 26 limited to seeking recovery from this Defendant for the proportion of alleged injuries and
F: 510-658-1151
27 damages for which this Defendant is allegedly liability or responsible, all such alleged liability
28
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DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL
DEATH - ASBESTOS
1 and alleged responsibility being expressly denied.
2 FOURTEENTH AFFIRMATIVE DEFENSE
3 (Modification of Product)
4 This answering Defendant is informed and believes, and based upon said information and
5 belief alleges, that the Plaintiff and/or Decedent is barred from recovery herein because of
6 modification, alteration or change in some other manner, of the products alleged in Plaintiffs’
7 Complaint.
8 FIFTEENTH AFFIRMATIVE DEFENSE
9 (Waiver)
10 This answering Defendant alleges that Plaintiff and/or Decedent acknowledged, ratified,
11 consented to and acquiesced in the alleged acts or omissions, if any, of this answering Defendant,
12 thus barring Plaintiff and/or Decedent from any relief as prayed herein.
13 SIXTEENTH AFFIRMATIVE DEFENSE
14 (Sophisticated User)
15 This answering Defendant alleges that Plaintiffs’ claims are barred because Defendant
16 was under no legal duty to warn Plaintiff and/or Decedent of the potential risk, harm, or danger of
17 asbestos-containing products alleged in Plaintiffs’ Complaint. Plaintiff and/or Decedent was a
18 sophisticated user through training, employment, or other experience and knew, or should have
19 known, of the potential risk, harm, or danger of the asbestos-containing products alleged in
20 Plaintiffs’ Complaint. Defendant did not have a duty to warn a sophisticated user, if any such
21 warning was warranted, about the alleged dangers of which Plaintiff and/or Decedent already
22 knew or should have known. (Restatement (Second) of Torts § 402A; Johnson v. American
BHC 23 Standard, Inc. (2008) 43 Cal.4th 56.)
LAW
GROUP LLP 24 SEVENTEENTH AFFIRMATIVE DEFENSE
_____________________________
5900 Hollis Street,
Suite O 25 (Sophisticated Intermediary)
Emeryville, CA 94608
T: 510-658-3600 26 This answering Defendant alleges that Plaintiffs’ claims are barred and/or this answering
F: 510-658-1151
27 Defendant’s duty, if any, is limited, satisfied and/or discharged by the sophisticated intermediary
28
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DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL
DEATH - ASBESTOS
1 doctrine. The sellers, suppliers, or distributors of the asbestos-containing material products to
2 which the Plaintiff and/or Decedent was allegedly exposed, as well as Plaintiffs’ and/or
3 Decedent’s employers or certain third parties yet to be identified, were sophisticated
4 intermediaries and in a better position to warn Plaintiff and/or Decedent of the potential risk
5 associated with using products containing asbestos and, assuming a warning was required, it was
6 the failure of such persons or entities to give such warnings that was the proximate and
7 superseding cause of Plaintiffs’ and/or Decedent’s injuries and damages, if any. Defendant
8 reasonably relied upon these sophisticated intermediaries to decide how and what information or
9 warnings, if any, should have been passed on to others, including end-users. The injuries and
10 damages of which Plaintiff and/or Decedent complains were proximately caused by, or
11 contributed to, the failure of instructions and warnings be given not only to purchasers, users, and
12 consumers, but also to others who a reasonable seller should know will be in a position to reduce
13 or avoid the risk of harm. (Webb v. Special Electric Company, Inc. (2016) 63 Cal.4th 167.)
14 EIGHTEENTH AFFIRMATIVE DEFENSE
15 (Fair Responsibility Act)
16 This answering Defendant alleges that the provisions of the Fair Responsibility Act of
17 1986, Civil Code §§ 1431.1, et seq. are applicable to Plaintiffs’ Complaint and to each cause of
18 action therein. This answering Defendant shall be liable, if at all, only for the amount of said non-
19 economic damages, if any, allocated to this answering Defendant’s percentage of fault, if any.
20 NINETEENTH AFFIRMATIVE DEFENSE
21 (Privette Doctrine)
22 Defendant alleges that Plaintiffs’ claims against this Defendant are barred under the
BHC 23 Privette doctrine, set forth in Privette v. Superior Court (1993) 5 Cal.4th 689.
LAW
GROUP LLP 24 TWENTIETH AFFIRMATIVE DEFENSE
_____________________________
5900 Hollis Street,
Suite O 25 (Outside Scope)
Emeryville, CA 94608
T: 510-658-3600 26 This answering Defendant alleges that at the time and place of the happening of the
F: 510-658-1151
27 occurrence as alleged in the Complaint, Plaintiff and/or Decedent was engaged as a contractor
28
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DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL
DEATH - ASBESTOS
1 outside the scope and control of this answering Defendant, thus precluding Plaintiff and/or
2 Decedent from asserting a claim against this answering Defendant.
3 TWENTY-FIRST AFFIRMATIVE DEFENSE
4 (Intervening and Superseding Causes)
5 This answering Defendant alleges that the injuries and damages of which Plaintiff and/or
6 Decedent complains were proximately caused by, or contributed to, by the acts of other
7 Defendants, persons and/or other entities, and that said acts were an intervening and superseding
8 cause of the injuries and damages, if any, of which Plaintiff and/or Decedent complains, thus
9 barring Plaintiff and/or Decedent from any recovery against this answering Defendant.
10 TWENTY- SECOND AFFIRMATIVE DEFENSE
11 (Ultra-hazardous Activities)
12 This answering Defendant alleges that, to the extent that Defendant engaged in the
13 activities alleged in the Complaint, if at all, those activities were not ultra-hazardous under
14 California law.
15 TWENTY- THIRD AFFIRMATIVE DEFENSE
16 (Standard of Care)
17 This answering Defendant alleges that Plaintiff and/or Decedent is barred and precluded
18 from any recovery in this action because this answering Defendant, at all times, complied with the
19 applicable standard of care, and in compliance with specifications provided by third parties to
20 Defendant and/or in compliance with applicable health and safety statutes and regulations, at the
21 applicable times and locations.
22 TWENTY-FOURTH AFFIRMATIVE DEFENSE
BHC 23 (Res Judicata and Collateral Estoppel)
LAW
GROUP LLP 24 This answering Defendant alleges that Plaintiffs’ claims are or may be barred in whole or
_____________________________
5900 Hollis Street,
Suite O 25 in part by res judicata, collateral estoppel, issue preclusion and/or release.
Emeryville, CA 94608
T: 510-658-3600 26 ///
F: 510-658-1151
27 ///
28 ///
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DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL
DEATH - ASBESTOS
1 TWENTY-FIFTH AFFIRMATIVE DEFENSE
2 (Good Faith)
3 This answering Defendant alleges that, to the extent that Plaintiffs’ Complaint seeks
4 punitive or exemplary damages, Plaintiffs’ claim for punitive damages is barred because
5 Defendant at all times and places mentioned in the Complaint acted reasonably and in good faith,
6 and without malice or oppression towards the Plaintiff and/or Decedent.
7 TWENTY-SIXTH AFFIRMATIVE DEFENSE
8 (Reservation)
9 This answering Defendant alleges that it presently has insufficient knowledge or
10 information on which to form a belief as to whether it may have additional, as yet unasserted
11 defense available, and, therefore, Defendant reserves the right to assert additional defenses in the
12 event discovery indicates that they would be appropriate.
13 WHEREFORE, this answering Defendant prays as follows:
14 1. That Plaintiff take nothing by reason of the Complaint on file herein;
15 2. That judgment be entered in favor of DILLINGHAM CONSTRUCTION N.A.,
16 INC.
17 3. For recovery of DILLINGHAM CONSTRUCTION N.A., INC.’s cost of suit;
18 4. For appropriate credits and set-offs arising out of any payment of Workers’
19 Compensation benefits, or otherwise, as alleged above;
20 5. For appropriate credits and set-offs arising from allocation of liability to other
21 named and unnamed tortfeasors; and
22 6. For such other and further relief as the Court deems just and proper.
BHC 23 Dated: November 17, 2023 BHC LAW GROUP LLP
LAW
GROUP LLP 24
_____________________________
5900 Hollis Street,
Suite O 25
Emeryville, CA 94608 By:
T: 510-658-3600 26 Emily D. Bergstrom
F: 510-658-1151
Attorneys for Defendant
27 DILLINGHAM CONSTRUCTION N.A., INC
28
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DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL
DEATH - ASBESTOS
1 PROOF OF SERVICE
Fred Stinnett, as Successor-In-Interest to and as Wrongful Death Heir of James Stinnett, Deceased v.
2 CV Supply Inc., et al.
San Francisco County Superior Court Case No. CGC-23-277160
3
4 I, Kristina Kalkhorst, declare that I am, and was at the time of service of the documents
herein referred to, over the age of 18 years, and not a party to the action; and I am employed in
5 the County of Alameda, State of California. My business address is 5900 Hollis St., Ste. O,
Emeryville, California 94608.
6
7 On November 17, 2023, I electronically transmitting the document(s) listed below to File
& ServeXpress, an electronic filing service provider at www.fileandservexpress.com on the
8 recipients designated on the Transmission Receipt located on File & Serve’s website. To my
knowledge, the transmission was reported as complete and without error. See Cal. R. Ct. R. 2053,
9 2055, 2060.
10 DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO
11 PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS
12 on the recipients designated on the Transmission Receipt located on the File & ServeXpress
website.
13
I declare under penalty of perjury pursuant to the laws of the State of California that the
14 foregoing is true and correct and that this declaration was executed on November 17, 2023, at
15 Thornton, Colorado.
16
17
18
19
20
21
22
23
BHC LAW
GROUP LLP
24
________
5900 Hollis Street 25
Suite O
Emeryville, CA
94608 26
510-658-3600
27
28
1
PROOF OF SERVICE
Preview
1 Emily D. Bergstrom (SB #191395) emily@bhc.law 2 BHC LAW GROUP LLP ELECTRONICALLY 5900 Hollis Street, Suite O FILED 3 Emeryville, CA 94608 Superior Court of California, County of San Francisco 4 Telephone: (510) 658-3600 Facsimile: (510) 658-1151 11/17/2023 Clerk of the Court 5 BY: ANNIE PASCUAL Attorneys for Defendant Deputy Clerk 6 DILLINGHAM CONSTRUCTION N.A., INC. 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SAN FRANCISCO 9 FRED STINNETT, as Successor-in-Interest to SFSC Case No. CGC-23-277160 10 and as Wrongful Death Heir of JAMES STINNETT, Deceased, DEFENDANT DILLINGHAM 11 CONSTRUCTION N.A., INC.’S ANSWER Plaintiff, TO PLAINTIFF’S COMPLAINT FOR 12 vs. SURVIVAL, WRONGFUL DEATH - 13 ASBESTOS CV SUPPLY, INC., et al. 14 Defendants. 15 16 Defendant DILLINGHAM CONSTRUCTION N.A., INC. (“DCNA” or “Defendant”), 17 answers the Complaint for Survival, Wrongful Death - Asbestos, herein, as amended, now or in 18 the future, or otherwise admits, denies, and alleges as follows: 19 DEFINITIONS 20 The word “Plaintiff,” as used herein, shall include the plural (i.e., Plaintiffs) as well as the 21 singular (i.e., Plaintiff), as may be appropriate to the particular context in which the word appears. 22 Whenever “Plaintiff” or “Plaintiffs” is used in this answer, its reference embraces each Plaintiff BHC 23 named in any Complaint in response to which some, or all, of this Answer has been adopted, LAW GROUP LLP 24 individually and collectively, plus the words “and each of them,” as well as the decedent, where _____________________________ 5900 Hollis Street, Suite O 25 applicable, and all other family members upon whose alleged exposure to asbestos give rise to Emeryville, CA 94608 T: 510-658-3600 26 this lawsuit. F: 510-658-1151 27 /// 28 /// -1- DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 Whenever “decedent” is used in this answer, it refers to the deceased, JAMES 2 STINNETT. 3 GENERAL DENIAL 4 Pursuant to California Code of Civil Procedure (“CCP”) § 431.30, Defendant hereby 5 denies, generally and specifically, each and every allegation contained in the Complaint, and each 6 and every alleged cause of action thereof. Defendant further denies that Plaintiff was injured in 7 any manner by the acts or omissions of Defendant and denies that Defendant is legally 8 responsible for any damages or injury that may have been suffered by Plaintiff. Defendant 9 additionally denies that Plaintiff is entitled to recover damages of any kind in any amount 10 whatsoever from Defendant. 11 Defendant pleads and sets forth separately and distinctly the following affirmative 12 defenses to each and every cause of action of Plaintiffs’ Complaint, as though pleaded separately 13 to each and every said cause of action. 14 AFFIRMATIVE DEFENSES 15 FIRST AFFIRMATIVE DEFENSE 16 (Failure to State a Claim) 17 This answering Defendant alleges that Plaintiffs’ Complaint, and each and every cause of 18 action therein, fails to state facts sufficient to constitute a cause of action, or any cause of action, 19 against Defendant. 20 SECOND AFFIRMATIVE DEFENSE 21 (Comparative Fault) 22 This answering Defendant alleges that Plaintiff and/or Decedent was negligent and BHC 23 unreasonable in or about the matters alleged in the Complaint, and that such matters actually and LAW GROUP LLP 24 proximately caused all or part of Plaintiff’s and/or Decedent’s claimed injuries and damages, if _____________________________ 5900 Hollis Street, Suite O 25 any. Any damages which Plaintiff and/or Decedent seeks to recover from Defendant must be Emeryville, CA 94608 T: 510-658-3600 26 reduced in proportion to the extent that Plaintiff’s and/or Decedent’s own negligence contributed F: 510-658-1151 27 to the claimed injuries or damages. 28 -2- DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 THIRD AFFIRMATIVE DEFENSE 2 (Assumption of Risk) 3 This answering Defendant alleges that Plaintiff and/or Decedent knew, or in the exercise 4 of ordinary care should have known, of the risks and hazards involved in the undertaking in 5 which he was engaged, but nevertheless, and knowing these things, did freely and voluntarily 6 consent to assume the risks and hazards incident to said operations, acts and conduct at the time 7 and place mentioned in said Complaint. 8 FOURTH AFFIRMATIVE DEFENSE 9 (Witt v. Jackson: Apportionment and Offset) 10 This answering Defendant alleges that excepting when Plaintiff and/or Decedent was 11 employed by this Defendant, if at all, Plaintiff’s and/or Decedent’s employers and former 12 employers were careless and/or negligent in and about the matters alleged in Plaintiffs’ 13 Complaint, and this carelessness and/or negligence contributed directly and proximately to any 14 alleged injuries and/or damages sustained by Plaintiff. Plaintiff’s and/or Decedent’s employers 15 and former employers have or had Workers’ Compensation insurance. Plaintiff and/or Decedent 16 has received or will receive disability and medical benefits under a Workers’ Compensation law, 17 or similar laws, from Plaintiff’s and/or Decedent’s employers or former employers, or their 18 Workers’ Compensation insurance, on account of the injuries and damages allegedly sustained by 19 Plaintiff and/or Decedent which give rise to this lawsuit. Any judgment or verdict that might be 20 rendered in favor of Plaintiff should be reduced by the amount of all the payments by the 21 employers or insurers, and that each of the employers or insurers should be barred from any 22 recovery by lien or otherwise in connection with this matter under the authority of Witt v. Jackson BHC 23 (1961) 57 Cal.2d 57. LAW GROUP LLP 24 FIFTH AFFIRMATIVE DEFENSE _____________________________ 5900 Hollis Street, Suite O 25 (Third Party Negligence) Emeryville, CA 94608 T: 510-658-3600 26 This answering Defendant alleges that the damages and injuries, if any, were proximately F: 510-658-1151 27 caused or contributed to, in whole or in part, by the negligence or fault or other acts and/or 28 -3- DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 omissions of persons or entities other than Defendant, for which Defendant is not responsible. 2 SIXTH AFFIRMATIVE DEFENSE 3 (Employer’s Assumption of the Risk) 4 This answering Defendant alleges that Plaintiff’s and/or Decedent’s employers, except 5 when Plaintiff and/or Decedent was employed by this Defendant, voluntarily and knowingly 6 entered into and engaged in the operations, acts and conduct alleged in said Complaint, and 7 voluntarily and knowingly assumes all of the risks incident to said operations, acts and conduct at 8 the time and place mentioned in the Complaint. 9 SEVENTH AFFIRMATIVE DEFENSE 10 (Alteration or Misuse) 11 This answering Defendant alleges that any product or products alleged by Plaintiff and/or 12 Decedent to have caused Plaintiffs and/or Decedent’s injuries were misused, abused or altered by 13 Plaintiff and/or Decedent or by others, which misuse, abuse or altercation was not reasonably 14 foreseeable to Defendant, and such misuse, abuse or altercation proximately caused any loss, 15 injury or damages incurred by Plaintiff. 16 EIGHTH AFFIRMATIVE DEFENSE 17 (Failure to Mitigate) 18 This answering Defendant alleges that the injuries, loss or damage, if any there was to 19 Plaintiff and/or Decedent, were aggravated due to Plaintiff’s and/or Decedent’s failure to use 20 reasonable diligence to mitigate them. 21 NINTH AFFIRMATIVE DEFENSE 22 (Statute of Limitations) BHC 23 This answering Defendant alleges that Plaintiffs’ complaint and the purported causes of LAW GROUP LLP 24 action therein are barred by the applicable statute of limitations, including but not limited to those _____________________________ 5900 Hollis Street, Suite O 25 set forth in California Code of Civil Procedure §§ 338 (a), (b); 335.1; 338 (a); 340.2 (a), (b), (c); Emeryville, CA 94608 T: 510-658-3600 26 340.8 (a), (b), (c), (d); 343; 355; 583.210 (a), (b); 583.250 (a), (b); 583.310; 583.320 (a), (b); F: 510-658-1151 27 583.330 (a), (b); 583.340 (a), (b), (c); 583.350; 583.360 (a), (b); 583.410 (a), (b); 583.420 (a), (b); 28 -4- DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 583.430 (a), (b). Plaintiffs’ claims are further barred by the statutes of limitations of states other 2 than California pursuant to California Code of Civil Procedure § 361. 3 TENTH AFFIRMATIVE DEFENSE 4 (Workers’ Compensation – Exclusive Remedy) 5 This answering Defendant alleges that this action is barred by the applicable state and/or 6 federal industrial insurance and/or Workers’ Compensation laws, including, but not limited to, 7 California Labor Code §§ 3600, 3602, 4401-4418 and Melendrez v. Ameron (2015) 240 8 Cal.App.4th 632. 9 ELEVENTH AFFIRMATIVE DEFENSE 10 (Laches) 11 This answering Defendant alleges that Plaintiff and/or Decedent unreasonably delayed in 12 the bringing and service of this action without good cause therefore, and thereby has prejudiced 13 this Defendant; and as a proximate result thereof, this entire action is barred by laches. 14 TWELFTH AFFIRMATIVE DEFENSE 15 (State of the Art) 16 This answering Defendant alleges that at all times relevant, Defendant’s acts and 17 omissions, if any, were in conformity with all government statutes and regulations and all 18 industry standards based upon the state of knowledge existing at the time of the acts or omissions. 19 THIRTEENTH AFFIRMATIVE DEFENSE 20 (Proportionate Fault) 21 This answering Defendant alleges that while at all times denying any liability whatsoever 22 to Plaintiff and/or Decedent herein, this Defendant alleges that any alleged liability or BHC 23 responsibility of this Defendant, and such alleged liability and responsibility being denied, is LAW GROUP LLP 24 small in proportion to the alleged liability and responsibility of other persons and entities, _____________________________ 5900 Hollis Street, Suite O 25 including other persons who are Defendants herein, and that Plaintiff and/or Decedent should be Emeryville, CA 94608 T: 510-658-3600 26 limited to seeking recovery from this Defendant for the proportion of alleged injuries and F: 510-658-1151 27 damages for which this Defendant is allegedly liability or responsible, all such alleged liability 28 -5- DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 and alleged responsibility being expressly denied. 2 FOURTEENTH AFFIRMATIVE DEFENSE 3 (Modification of Product) 4 This answering Defendant is informed and believes, and based upon said information and 5 belief alleges, that the Plaintiff and/or Decedent is barred from recovery herein because of 6 modification, alteration or change in some other manner, of the products alleged in Plaintiffs’ 7 Complaint. 8 FIFTEENTH AFFIRMATIVE DEFENSE 9 (Waiver) 10 This answering Defendant alleges that Plaintiff and/or Decedent acknowledged, ratified, 11 consented to and acquiesced in the alleged acts or omissions, if any, of this answering Defendant, 12 thus barring Plaintiff and/or Decedent from any relief as prayed herein. 13 SIXTEENTH AFFIRMATIVE DEFENSE 14 (Sophisticated User) 15 This answering Defendant alleges that Plaintiffs’ claims are barred because Defendant 16 was under no legal duty to warn Plaintiff and/or Decedent of the potential risk, harm, or danger of 17 asbestos-containing products alleged in Plaintiffs’ Complaint. Plaintiff and/or Decedent was a 18 sophisticated user through training, employment, or other experience and knew, or should have 19 known, of the potential risk, harm, or danger of the asbestos-containing products alleged in 20 Plaintiffs’ Complaint. Defendant did not have a duty to warn a sophisticated user, if any such 21 warning was warranted, about the alleged dangers of which Plaintiff and/or Decedent already 22 knew or should have known. (Restatement (Second) of Torts § 402A; Johnson v. American BHC 23 Standard, Inc. (2008) 43 Cal.4th 56.) LAW GROUP LLP 24 SEVENTEENTH AFFIRMATIVE DEFENSE _____________________________ 5900 Hollis Street, Suite O 25 (Sophisticated Intermediary) Emeryville, CA 94608 T: 510-658-3600 26 This answering Defendant alleges that Plaintiffs’ claims are barred and/or this answering F: 510-658-1151 27 Defendant’s duty, if any, is limited, satisfied and/or discharged by the sophisticated intermediary 28 -6- DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 doctrine. The sellers, suppliers, or distributors of the asbestos-containing material products to 2 which the Plaintiff and/or Decedent was allegedly exposed, as well as Plaintiffs’ and/or 3 Decedent’s employers or certain third parties yet to be identified, were sophisticated 4 intermediaries and in a better position to warn Plaintiff and/or Decedent of the potential risk 5 associated with using products containing asbestos and, assuming a warning was required, it was 6 the failure of such persons or entities to give such warnings that was the proximate and 7 superseding cause of Plaintiffs’ and/or Decedent’s injuries and damages, if any. Defendant 8 reasonably relied upon these sophisticated intermediaries to decide how and what information or 9 warnings, if any, should have been passed on to others, including end-users. The injuries and 10 damages of which Plaintiff and/or Decedent complains were proximately caused by, or 11 contributed to, the failure of instructions and warnings be given not only to purchasers, users, and 12 consumers, but also to others who a reasonable seller should know will be in a position to reduce 13 or avoid the risk of harm. (Webb v. Special Electric Company, Inc. (2016) 63 Cal.4th 167.) 14 EIGHTEENTH AFFIRMATIVE DEFENSE 15 (Fair Responsibility Act) 16 This answering Defendant alleges that the provisions of the Fair Responsibility Act of 17 1986, Civil Code §§ 1431.1, et seq. are applicable to Plaintiffs’ Complaint and to each cause of 18 action therein. This answering Defendant shall be liable, if at all, only for the amount of said non- 19 economic damages, if any, allocated to this answering Defendant’s percentage of fault, if any. 20 NINETEENTH AFFIRMATIVE DEFENSE 21 (Privette Doctrine) 22 Defendant alleges that Plaintiffs’ claims against this Defendant are barred under the BHC 23 Privette doctrine, set forth in Privette v. Superior Court (1993) 5 Cal.4th 689. LAW GROUP LLP 24 TWENTIETH AFFIRMATIVE DEFENSE _____________________________ 5900 Hollis Street, Suite O 25 (Outside Scope) Emeryville, CA 94608 T: 510-658-3600 26 This answering Defendant alleges that at the time and place of the happening of the F: 510-658-1151 27 occurrence as alleged in the Complaint, Plaintiff and/or Decedent was engaged as a contractor 28 -7- DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 outside the scope and control of this answering Defendant, thus precluding Plaintiff and/or 2 Decedent from asserting a claim against this answering Defendant. 3 TWENTY-FIRST AFFIRMATIVE DEFENSE 4 (Intervening and Superseding Causes) 5 This answering Defendant alleges that the injuries and damages of which Plaintiff and/or 6 Decedent complains were proximately caused by, or contributed to, by the acts of other 7 Defendants, persons and/or other entities, and that said acts were an intervening and superseding 8 cause of the injuries and damages, if any, of which Plaintiff and/or Decedent complains, thus 9 barring Plaintiff and/or Decedent from any recovery against this answering Defendant. 10 TWENTY- SECOND AFFIRMATIVE DEFENSE 11 (Ultra-hazardous Activities) 12 This answering Defendant alleges that, to the extent that Defendant engaged in the 13 activities alleged in the Complaint, if at all, those activities were not ultra-hazardous under 14 California law. 15 TWENTY- THIRD AFFIRMATIVE DEFENSE 16 (Standard of Care) 17 This answering Defendant alleges that Plaintiff and/or Decedent is barred and precluded 18 from any recovery in this action because this answering Defendant, at all times, complied with the 19 applicable standard of care, and in compliance with specifications provided by third parties to 20 Defendant and/or in compliance with applicable health and safety statutes and regulations, at the 21 applicable times and locations. 22 TWENTY-FOURTH AFFIRMATIVE DEFENSE BHC 23 (Res Judicata and Collateral Estoppel) LAW GROUP LLP 24 This answering Defendant alleges that Plaintiffs’ claims are or may be barred in whole or _____________________________ 5900 Hollis Street, Suite O 25 in part by res judicata, collateral estoppel, issue preclusion and/or release. Emeryville, CA 94608 T: 510-658-3600 26 /// F: 510-658-1151 27 /// 28 /// -8- DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 TWENTY-FIFTH AFFIRMATIVE DEFENSE 2 (Good Faith) 3 This answering Defendant alleges that, to the extent that Plaintiffs’ Complaint seeks 4 punitive or exemplary damages, Plaintiffs’ claim for punitive damages is barred because 5 Defendant at all times and places mentioned in the Complaint acted reasonably and in good faith, 6 and without malice or oppression towards the Plaintiff and/or Decedent. 7 TWENTY-SIXTH AFFIRMATIVE DEFENSE 8 (Reservation) 9 This answering Defendant alleges that it presently has insufficient knowledge or 10 information on which to form a belief as to whether it may have additional, as yet unasserted 11 defense available, and, therefore, Defendant reserves the right to assert additional defenses in the 12 event discovery indicates that they would be appropriate. 13 WHEREFORE, this answering Defendant prays as follows: 14 1. That Plaintiff take nothing by reason of the Complaint on file herein; 15 2. That judgment be entered in favor of DILLINGHAM CONSTRUCTION N.A., 16 INC. 17 3. For recovery of DILLINGHAM CONSTRUCTION N.A., INC.’s cost of suit; 18 4. For appropriate credits and set-offs arising out of any payment of Workers’ 19 Compensation benefits, or otherwise, as alleged above; 20 5. For appropriate credits and set-offs arising from allocation of liability to other 21 named and unnamed tortfeasors; and 22 6. For such other and further relief as the Court deems just and proper. BHC 23 Dated: November 17, 2023 BHC LAW GROUP LLP LAW GROUP LLP 24 _____________________________ 5900 Hollis Street, Suite O 25 Emeryville, CA 94608 By: T: 510-658-3600 26 Emily D. Bergstrom F: 510-658-1151 Attorneys for Defendant 27 DILLINGHAM CONSTRUCTION N.A., INC 28 -9- DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 1 PROOF OF SERVICE Fred Stinnett, as Successor-In-Interest to and as Wrongful Death Heir of James Stinnett, Deceased v. 2 CV Supply Inc., et al. San Francisco County Superior Court Case No. CGC-23-277160 3 4 I, Kristina Kalkhorst, declare that I am, and was at the time of service of the documents herein referred to, over the age of 18 years, and not a party to the action; and I am employed in 5 the County of Alameda, State of California. My business address is 5900 Hollis St., Ste. O, Emeryville, California 94608. 6 7 On November 17, 2023, I electronically transmitting the document(s) listed below to File & ServeXpress, an electronic filing service provider at www.fileandservexpress.com on the 8 recipients designated on the Transmission Receipt located on File & Serve’s website. To my knowledge, the transmission was reported as complete and without error. See Cal. R. Ct. R. 2053, 9 2055, 2060. 10 DEFENDANT DILLINGHAM CONSTRUCTION N.A., INC.’S ANSWER TO 11 PLAINTIFF’S COMPLAINT FOR SURVIVAL, WRONGFUL DEATH - ASBESTOS 12 on the recipients designated on the Transmission Receipt located on the File & ServeXpress website. 13 I declare under penalty of perjury pursuant to the laws of the State of California that the 14 foregoing is true and correct and that this declaration was executed on November 17, 2023, at 15 Thornton, Colorado. 16 17 18 19 20 21 22 23 BHC LAW GROUP LLP 24 ________ 5900 Hollis Street 25 Suite O Emeryville, CA 94608 26 510-658-3600 27 28 1 PROOF OF SERVICE