Preview
1 LISA L. OBERG (SBN 120139)
Lisa.Oberg@dentons.com
2 KYLE CLAWSON (SBN 303682) ELECTRONICALLY
Lynne.Blair@dentons.com
3 DENTONS US LLP F I L E D
Superior Court of California,
One Market Plaza, Spear Tower, 24th Floor County of San Francisco
4 San Francisco, California 94105
Telephone: 415.267.4000 07/24/2020
Clerk of the Court
5 Facsimile: 415.267.4198 BY: MADONNA CARANTO
Deputy Clerk
6 Attorneys for Defendant
MORSE TEC LLC, F/K/A BORGWARNER
7 MORSE TEC LLC, AS SUCCESSOR-BY-
MERGER TO BORG-WARNER
8 CORPORATION (erroneously sued as MORSE
TEC LLC, AS SUCCESSOR-BY-MERGER TO
9 BORG-WARNER CORPORATION)
ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
SAN FRANCISCO , CALIFORNIA 94105
11 COUNTY OF SAN FRANCISCO
DENTONS US LLP
(415) 267-4000
12
13 MARK OWENS and DEBORA OWENS, CASE NO. CGC-20-276843
14 Plaintiffs, DEFENDANT MORSE TEC LLC, F/K/A
BORGWARNER MORSE TEC LLC, AS
15 v. SUCCESSOR-BY-MERGER TO BORG-WARNER
CORPORATION’S ANSWER TO PLAINTIFFS’
16 CRANE CO., et al., COMPLAINT FOR DAMAGES FOR PERSONAL
INJURY
17 Defendants.
18
19
20 COMES NOW Defendant Morse TEC LLC, f/k/a BorgWarner Morse TEC LLC, as
21 successor-by-merger to Borg-Warner Corporation (erroneously sued as MORSE TEC LLC, AS
22 SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION) (“Defendant” or “Morse
23 TEC”), for itself and for no other defendant, to answer Plaintiffs’ complaint on file herein as
24 follows:
25 1. Pursuant to California Code of Civil Procedure section 431.30(d), answering
26 Defendant denies, both generally and specifically, each and every allegation contained in the
27 complaint, and each cause of action therein, and each paragraph of each cause of action, and
28 denies that, as a direct and proximate result or any result of any tortious conduct on the part of this
1
DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR DAMAGES FOR PERSONAL INJURY
115140477\V-1
1 Defendant, Plaintiff has been or will be injured or damaged in the manner and amount alleged or
2 in any manner or amount whatsoever.
3 2. Answering Defendant denies that, by reason of any act or omission, fault, conduct,
4 or liability on the part of answering Defendant, Plaintiff has been injured or damaged in the
5 manner and amounts alleged or in any manner or amount whatsoever, and denies that this
6 answering Defendant or any of its agents, servants or employees, or anyone acting for or on its
7 behalf was negligent, careless, reckless, or otherwise breached any duty owed to Plaintiff, whether
8 as alleged or otherwise.
9 FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR
10 3. Alleges that the complaint, and each and every cause of action therein, is barred by
SAN FRANCISCO , CALIFORNIA 94105
11 the applicable statute of limitations, including, California Code of Civil Procedure sections 335.1,
DENTONS US LLP
(415) 267-4000
12 et seq., 337.1(a)(3), 337.15(a)(1)-(2), 338(a), 338(b), 339(1), 340(a), 340.2(a)(1), 340.2(a)(2),
13 340.2(c)(1), 340.2(c)(2), 340.8(a), 340.8(b), 343, 353 and 361, 474, 583.210(a), 583.210(b),
14 583.250(a)(1)(2), 583.250(b), 583.310, 583.410(a), 583.410(b), 583.420(a)(1),
15 583.420(a)(2)(A)(B), 583.420(a)(3)(A)(B)(C), 583.420(b), and Commercial Code section
16 2725(1)(2)(3)(4), and any and all applicable statutes of limitations and/or statutes of repose of the
17 state of Plaintiff’s residence, if not California.
18 FOR A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
19 4. Alleges that the product involved was materially altered or changed by a party or
20 parties other than, and without the permission of, this answering Defendant, its employees,
21 servants, or other agents, such alteration or change creating the alleged defect, if any, which was
22 the proximate or legal cause of Plaintiff’s injuries, or damages, if any.
23 FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
24 5. Alleges that the defect in the product, if any, was known to Plaintiff, who used said
25 product after full knowledge of said alleged defect; that, as a result, Plaintiff is barred from
26 recovery herein, proportionately or totally, in that Plaintiff voluntarily exposed themselves and
27 their property to a known danger and thereby assumed the risk of any injury or damage resulting
28 from that injury.
2
DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR DAMAGES FOR PERSONAL INJURY
115140477\V-1
1 FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
2 6. Alleges that Plaintiff’s complaint and each and every cause of action therein based
3 upon warranty or breach thereof, is barred as a result of failure of Plaintiff to give notice required
4 under Commercial Code section 2607(3)(a).
5 FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
6 7. Alleges that the product was improperly maintained and cared for by Plaintiff or
7 their employer or their agents; that such improper maintenance and care created the defect, if any,
8 that was the proximate or legal cause of Plaintiff’s injuries and damages, if any; that such
9 improper maintenance and care was unforeseeable to this answering Defendant; and that
ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR
10 Plaintiff’s claim is thereby reduced by the percentage of all responsibility attributable to Plaintiff,
SAN FRANCISCO , CALIFORNIA 94105
11 their employer or other agents by virtue of said improper maintenance and care.
DENTONS US LLP
(415) 267-4000
12 FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
13 8. Alleges that the loss, injury, or damage, if any, incurred by Plaintiff were the result
14 of superseding or intervening causes arising from negligent or willful acts or omissions by parties
15 which Defendant neither controlled nor had the right to control, and said losses, injuries, or
16 damages were not proximately or legally caused by any act, omission, or other conduct of
17 Defendant.
18 FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
19 9. Alleges that Plaintiff failed to mitigate their damages, if any, in that they failed to
20 use reasonable diligence in caring for their injuries and reasonable means to prevent their
21 aggravation or to accomplish their healing.
22 FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
23 10. Alleges that, if this Defendant is responsible to Plaintiff, which responsibility is
24 expressly denied, this Defendant shall be liable to Plaintiff only for the amount of non-economic
25 damages allocated to this Defendant in direct proportion to this Defendant’s percentage of fault, if
26 any, pursuant to Civil Code sections 1431.1, et seq. (“Proposition 51”).
27 FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
28 11. Alleges that Plaintiff’s claims are barred by the doctrine of laches.
3
DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR DAMAGES FOR PERSONAL INJURY
115140477\V-1
1 FOR A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
2 12. Alleges that, if the products described in the complaint were manufactured or
3 distributed by Defendant, they were manufactured or distributed in accordance with specifications
4 and requirements supplied to Defendant by persons other than Defendant including, but not
5 limited to, the government of the United States of America. Any defect in said products was
6 caused by deficiencies in said mandatory specifications and requirements supplied to Defendant,
7 which deficiencies were neither known to Defendant nor discoverable by Defendant with the
8 exercise of reasonable care.
9 FOR A ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR
10 13. Alleges that Plaintiff was not in privity with Defendant and, therefore, may not rely
SAN FRANCISCO , CALIFORNIA 94105
11 upon the theory of any alleged breach of express or implied warranty.
DENTONS US LLP
(415) 267-4000
12 FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
13 14. Alleges that any exposure of Plaintiff to Defendant’s products was so minimal as to
14 be insufficient to establish to a reasonable degree of probability that any such product was a
15 substantial factor in bringing about any alleged injury, damage, or loss to Plaintiff.
16 FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
17 15. Alleges that, if Defendant has purportedly been named or served in this action as a
18 Doe Defendant, such effort by Plaintiff is invalid on the ground that Plaintiff knew or should have
19 known of the identity of the Defendant and the Plaintiff’s alleged causes of action against
20 Defendant at the time of the filing of the complaint.
21 FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
22 16. Is informed and believes, and upon such information and belief alleges that
23 Plaintiff was negligent, careless, reckless, and acted unlawfully in the use, control, direction and
24 application of their bodily movements and the equipment, safety devices, and other facilities
25 supplied to them, and existing as a part of their environment, and the injuries, if any, and damages,
26 if any, were directly and proximately caused and contributed to by their own negligence.
27 FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
28 17. Is informed and believes and upon such information and belief alleges that Plaintiff
4
DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR DAMAGES FOR PERSONAL INJURY
115140477\V-1
1 misused the product and used same after knowledge of defect, if any, existing therein.
2 FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
3 18. Alleges that the Plaintiff’s employer so negligently, carelessly, recklessly, and
4 unlawfully directed, controlled, and supplied Plaintiff and Plaintiff’s co-employees with a working
5 environment, including safety and protective equipment, clothing or the lack thereof, so as to
6 directly and proximately cause and contribute to the injuries in question, if the same do exist, and
7 to the extent that any sum or sums have been paid to Plaintiff by said employer, this claim is
8 barred thereby.
9 FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR
10 19. Alleges that the complaint, and each and every cause of action therein, fails to state
SAN FRANCISCO , CALIFORNIA 94105
11 facts sufficient to constitute a cause of action against Defendant and is barred by the provisions of
DENTONS US LLP
(415) 267-4000
12 Labor Code section 3600.
13 FOR A EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
14 20. Alleges that the complaint, and each and every cause of action therein, fails to state
15 facts sufficient to constitute a cause of action against Defendant and is barred by the provisions of
16 Labor Code section 3601.
17 FOR A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
18 21. Alleges that the complaint, and each and every cause of action therein, fails to state
19 facts sufficient to constitute a cause of action against Defendant and is barred by the provisions of
20 Labor Code, section 3602.
21 FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
22 22. Alleges that the complaint, and each and every cause of action therein, fails to state
23 facts sufficient to constitute a cause of action against answering Defendant upon which relief can
24 be granted.
25 FOR A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
26 23. Alleges that the statutory authority, including but not limited to California Civil
27 Code section 3294, pursuant to which Plaintiff claims punitive damages is invalid on its face
28 and/or as applied to this Defendant pursuant to the First, Fifth, Eighth and Fourteenth
5
DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR DAMAGES FOR PERSONAL INJURY
115140477\V-1
1 Amendments to the Constitution of the United States and Article I of the Constitution of the State
2 of California.
3 FOR A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
4 24. Alleges that Plaintiff’s action is barred by the provisions of California Code of
5 Civil Procedure sections 361 and 410.30, and all other applicable statutes, in that Plaintiff’s claims
6 arose in another state or foreign country, and by the laws thereof an action cannot be maintained
7 against this answering Defendant.
8 FOR A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
9 25. Alleges that the instant action is barred by the rule against splitting a cause of
ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR
10 action.
SAN FRANCISCO , CALIFORNIA 94105
11 FOR A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
DENTONS US LLP
(415) 267-4000
12 26. Alleges that Plaintiff is collaterally estopped or barred by the doctrine of
13 res judicata from maintaining this action and/or seeking damages against this answering
14 Defendant.
15 FOR A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
16 27. Alleges that Defendant is not a successor, successor in business, successor in
17 product line or portion thereof, assign, predecessor in product line or portion thereof, parent, alter-
18 ego, subsidiary, wholly or partially owned by, or the whole or partial owner of or member in any
19 entity owning property, maintaining premises, researching, studying, manufacturing, fabricating,
20 designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting,
21 servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding,
22 manufacturing for others, packaging or advertising any asbestos-containing or silica-containing
23 products. Defendant is therefore not liable for any acts, whether they be active or passive, or
24 omissions of any entities to which Defendant is or may be alleged to be a successor-in-interest,
25 predecessor-in-interest, alter-ego or the like.
26 FOR A TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
27 28. Alleges Plaintiff’s claims, causes of action, theories of liability and matters alleged
28 in this complaint are barred by the doctrine of accord and satisfaction as Plaintiff has reached an
6
DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR DAMAGES FOR PERSONAL INJURY
115140477\V-1
1 accord with Defendant regarding this litigation.
2 FOR A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
3 29. Alleges that Plaintiff has released, settled, entered into an accord and satisfaction,
4 or otherwise compromised the claims herein, and accordingly, said claims are barred.
5 FOR A TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
6 30. Alleges that Plaintiff and/or the purchaser or user of the product at issue was
7 sufficiently knowledgeable, informed and or trained and knew or should have known of the
8 potential danger associated with the risk of exposure to asbestos from the course of his/her work,
9 and the claims are therefore barred under the sophisticated user doctrine, pursuant to the California
ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR
10 Supreme Court’s opinion in William Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.
SAN FRANCISCO , CALIFORNIA 94105
11 FOR A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
DENTONS US LLP
(415) 267-4000
12 31. Plaintiff named the Defendant in the complaint without reasonable identification of
13 what acts, if any, Defendant participated in, and without a reasonable investigation. Pursuant to
14 Code of Civil Procedure section 128.7, Defendant requests reasonable expenses, including
15 attorneys’ fees incurred by Defendant as a result of the maintenance by Plaintiff of this bad faith
16 action.
17 FOR A THIRTIETH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
18 32. Plaintiff is barred from recovery in that all products distributed and/or sold by
19 Defendant were in conformity with the existing “state of the art” of reasonably acceptable
20 medical, scientific, and industrial knowledge, art, and practice and, as a result, these products were
21 not defective in any manner, and as such, Defendant is not liable for Plaintiff’s injuries and
22 damages, if any.
23 FOR A THIRTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
24 33. Defendant is entitled to a set-off of all amounts paid to the Plaintiff by other
25 defendants pursuant to pro tanto settlements.
26 FOR A THIRTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
27 34. Plaintiff has failed to join all proper parties, or alternatively, has misjoined the
28 parties to this action.
7
DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR DAMAGES FOR PERSONAL INJURY
115140477\V-1
1 FOR A THIRTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
2 35. To the extent the complaint alleges a “market share” or “enterprise” theory of
3 liability, it fails to state facts sufficient to constitute a cause of action against Defendant.
4 FOR A THIRTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT:
5 36. The complaint, and each cause of action thereof, fails to state a cause of action
6 against Defendant because the federal government has preempted the field of law applicable to the
7 products alleged to have caused Plaintiff’s injuries. The granting of the relief prayed for in the
8 complaint would impede, impair, frustrate, and/or burden the effectiveness of federal law
9 regulating the field and would violate the Supremacy Clause contained in Article VI, Clause 2 of
ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR
10 the United States Constitution.
SAN FRANCISCO , CALIFORNIA 94105
11
DENTONS US LLP
(415) 267-4000
12 WHEREFORE, Defendant prays for judgment herein, for costs of suit incurred herein, and
13 for such other and further relief as the court may deem just and proper.
14
15 DEMAND FOR JURY TRIAL
16 Defendant hereby demands a trial by jury on all issues triable by a jury in the above-
17 entitled action.
18
19 Dated: July 24, 2020 DENTONS US LLP
20
21 By:
LISA L. OBERG
22
KYLE CLAWSON
23
Attorneys for Defendant
24 MORSE TEC LLC, F/K/A BORGWARNER
MORSE TEC LLC, AS SUCCESSOR-BY-
25 MERGER TO BORG-WARNER
CORPORATION(erroneously sued as MORSE
26
TEC LLC, AS SUCCESSOR-BY-MERGER TO
27 BORG-WARNER CORPORATION)
28
8
DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’
COMPLAINT FOR DAMAGES FOR PERSONAL INJURY
115140477\V-1
1 PROOF OF SERVICE VIA FILE&SERVEXPRESS
2 I am a citizen of the United States and employed in San Francisco County, California. I am
3 over the age of eighteen years and not a party to the within-entitled action. My business address is
4 One Market Plaza, Spear Tower, 24th Floor, San Francisco, CA 94105.
5 On July 24, 2020, I electronically served the document(s) via FILE&SERVEXPRESS
6 described as:
7 DEFENDANT MORSE TEC LLC, F/K/A
BORGWARNER MORSE TEC LLC, AS SUCCESSOR-
8 BY-MERGER TO BORG-WARNER CORPORATION’S
ANSWER TO PLAINTIFFS’ COMPLAINT FOR
9 DAMAGES FOR PERSONAL INJURY
ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR
10 on the recipients designated on the Transaction Receipt located on the FILE&SERVEXPRESS
SAN FRANCISCO , CALIFORNIA 94105
11 website. I declare under penalty of perjury pursuant to the laws of the State of California that the
DENTONS US LLP
(415) 267-4000
12 foregoing is true and correct and was executed on July 24, 2020, at Oakland, California.
13
14
HEATHER WELLS
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19
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PROOF OF SERVICE
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Preview
1 LISA L. OBERG (SBN 120139) Lisa.Oberg@dentons.com 2 KYLE CLAWSON (SBN 303682) ELECTRONICALLY Lynne.Blair@dentons.com 3 DENTONS US LLP F I L E D Superior Court of California, One Market Plaza, Spear Tower, 24th Floor County of San Francisco 4 San Francisco, California 94105 Telephone: 415.267.4000 07/24/2020 Clerk of the Court 5 Facsimile: 415.267.4198 BY: MADONNA CARANTO Deputy Clerk 6 Attorneys for Defendant MORSE TEC LLC, F/K/A BORGWARNER 7 MORSE TEC LLC, AS SUCCESSOR-BY- MERGER TO BORG-WARNER 8 CORPORATION (erroneously sued as MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO 9 BORG-WARNER CORPORATION) ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA SAN FRANCISCO , CALIFORNIA 94105 11 COUNTY OF SAN FRANCISCO DENTONS US LLP (415) 267-4000 12 13 MARK OWENS and DEBORA OWENS, CASE NO. CGC-20-276843 14 Plaintiffs, DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS 15 v. SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’ 16 CRANE CO., et al., COMPLAINT FOR DAMAGES FOR PERSONAL INJURY 17 Defendants. 18 19 20 COMES NOW Defendant Morse TEC LLC, f/k/a BorgWarner Morse TEC LLC, as 21 successor-by-merger to Borg-Warner Corporation (erroneously sued as MORSE TEC LLC, AS 22 SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION) (“Defendant” or “Morse 23 TEC”), for itself and for no other defendant, to answer Plaintiffs’ complaint on file herein as 24 follows: 25 1. Pursuant to California Code of Civil Procedure section 431.30(d), answering 26 Defendant denies, both generally and specifically, each and every allegation contained in the 27 complaint, and each cause of action therein, and each paragraph of each cause of action, and 28 denies that, as a direct and proximate result or any result of any tortious conduct on the part of this 1 DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES FOR PERSONAL INJURY 115140477\V-1 1 Defendant, Plaintiff has been or will be injured or damaged in the manner and amount alleged or 2 in any manner or amount whatsoever. 3 2. Answering Defendant denies that, by reason of any act or omission, fault, conduct, 4 or liability on the part of answering Defendant, Plaintiff has been injured or damaged in the 5 manner and amounts alleged or in any manner or amount whatsoever, and denies that this 6 answering Defendant or any of its agents, servants or employees, or anyone acting for or on its 7 behalf was negligent, careless, reckless, or otherwise breached any duty owed to Plaintiff, whether 8 as alleged or otherwise. 9 FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR 10 3. Alleges that the complaint, and each and every cause of action therein, is barred by SAN FRANCISCO , CALIFORNIA 94105 11 the applicable statute of limitations, including, California Code of Civil Procedure sections 335.1, DENTONS US LLP (415) 267-4000 12 et seq., 337.1(a)(3), 337.15(a)(1)-(2), 338(a), 338(b), 339(1), 340(a), 340.2(a)(1), 340.2(a)(2), 13 340.2(c)(1), 340.2(c)(2), 340.8(a), 340.8(b), 343, 353 and 361, 474, 583.210(a), 583.210(b), 14 583.250(a)(1)(2), 583.250(b), 583.310, 583.410(a), 583.410(b), 583.420(a)(1), 15 583.420(a)(2)(A)(B), 583.420(a)(3)(A)(B)(C), 583.420(b), and Commercial Code section 16 2725(1)(2)(3)(4), and any and all applicable statutes of limitations and/or statutes of repose of the 17 state of Plaintiff’s residence, if not California. 18 FOR A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 19 4. Alleges that the product involved was materially altered or changed by a party or 20 parties other than, and without the permission of, this answering Defendant, its employees, 21 servants, or other agents, such alteration or change creating the alleged defect, if any, which was 22 the proximate or legal cause of Plaintiff’s injuries, or damages, if any. 23 FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 24 5. Alleges that the defect in the product, if any, was known to Plaintiff, who used said 25 product after full knowledge of said alleged defect; that, as a result, Plaintiff is barred from 26 recovery herein, proportionately or totally, in that Plaintiff voluntarily exposed themselves and 27 their property to a known danger and thereby assumed the risk of any injury or damage resulting 28 from that injury. 2 DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES FOR PERSONAL INJURY 115140477\V-1 1 FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 2 6. Alleges that Plaintiff’s complaint and each and every cause of action therein based 3 upon warranty or breach thereof, is barred as a result of failure of Plaintiff to give notice required 4 under Commercial Code section 2607(3)(a). 5 FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 6 7. Alleges that the product was improperly maintained and cared for by Plaintiff or 7 their employer or their agents; that such improper maintenance and care created the defect, if any, 8 that was the proximate or legal cause of Plaintiff’s injuries and damages, if any; that such 9 improper maintenance and care was unforeseeable to this answering Defendant; and that ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR 10 Plaintiff’s claim is thereby reduced by the percentage of all responsibility attributable to Plaintiff, SAN FRANCISCO , CALIFORNIA 94105 11 their employer or other agents by virtue of said improper maintenance and care. DENTONS US LLP (415) 267-4000 12 FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 13 8. Alleges that the loss, injury, or damage, if any, incurred by Plaintiff were the result 14 of superseding or intervening causes arising from negligent or willful acts or omissions by parties 15 which Defendant neither controlled nor had the right to control, and said losses, injuries, or 16 damages were not proximately or legally caused by any act, omission, or other conduct of 17 Defendant. 18 FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 19 9. Alleges that Plaintiff failed to mitigate their damages, if any, in that they failed to 20 use reasonable diligence in caring for their injuries and reasonable means to prevent their 21 aggravation or to accomplish their healing. 22 FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 23 10. Alleges that, if this Defendant is responsible to Plaintiff, which responsibility is 24 expressly denied, this Defendant shall be liable to Plaintiff only for the amount of non-economic 25 damages allocated to this Defendant in direct proportion to this Defendant’s percentage of fault, if 26 any, pursuant to Civil Code sections 1431.1, et seq. (“Proposition 51”). 27 FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 28 11. Alleges that Plaintiff’s claims are barred by the doctrine of laches. 3 DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES FOR PERSONAL INJURY 115140477\V-1 1 FOR A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 2 12. Alleges that, if the products described in the complaint were manufactured or 3 distributed by Defendant, they were manufactured or distributed in accordance with specifications 4 and requirements supplied to Defendant by persons other than Defendant including, but not 5 limited to, the government of the United States of America. Any defect in said products was 6 caused by deficiencies in said mandatory specifications and requirements supplied to Defendant, 7 which deficiencies were neither known to Defendant nor discoverable by Defendant with the 8 exercise of reasonable care. 9 FOR A ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR 10 13. Alleges that Plaintiff was not in privity with Defendant and, therefore, may not rely SAN FRANCISCO , CALIFORNIA 94105 11 upon the theory of any alleged breach of express or implied warranty. DENTONS US LLP (415) 267-4000 12 FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 13 14. Alleges that any exposure of Plaintiff to Defendant’s products was so minimal as to 14 be insufficient to establish to a reasonable degree of probability that any such product was a 15 substantial factor in bringing about any alleged injury, damage, or loss to Plaintiff. 16 FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 17 15. Alleges that, if Defendant has purportedly been named or served in this action as a 18 Doe Defendant, such effort by Plaintiff is invalid on the ground that Plaintiff knew or should have 19 known of the identity of the Defendant and the Plaintiff’s alleged causes of action against 20 Defendant at the time of the filing of the complaint. 21 FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 22 16. Is informed and believes, and upon such information and belief alleges that 23 Plaintiff was negligent, careless, reckless, and acted unlawfully in the use, control, direction and 24 application of their bodily movements and the equipment, safety devices, and other facilities 25 supplied to them, and existing as a part of their environment, and the injuries, if any, and damages, 26 if any, were directly and proximately caused and contributed to by their own negligence. 27 FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 28 17. Is informed and believes and upon such information and belief alleges that Plaintiff 4 DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES FOR PERSONAL INJURY 115140477\V-1 1 misused the product and used same after knowledge of defect, if any, existing therein. 2 FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 3 18. Alleges that the Plaintiff’s employer so negligently, carelessly, recklessly, and 4 unlawfully directed, controlled, and supplied Plaintiff and Plaintiff’s co-employees with a working 5 environment, including safety and protective equipment, clothing or the lack thereof, so as to 6 directly and proximately cause and contribute to the injuries in question, if the same do exist, and 7 to the extent that any sum or sums have been paid to Plaintiff by said employer, this claim is 8 barred thereby. 9 FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR 10 19. Alleges that the complaint, and each and every cause of action therein, fails to state SAN FRANCISCO , CALIFORNIA 94105 11 facts sufficient to constitute a cause of action against Defendant and is barred by the provisions of DENTONS US LLP (415) 267-4000 12 Labor Code section 3600. 13 FOR A EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 14 20. Alleges that the complaint, and each and every cause of action therein, fails to state 15 facts sufficient to constitute a cause of action against Defendant and is barred by the provisions of 16 Labor Code section 3601. 17 FOR A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 18 21. Alleges that the complaint, and each and every cause of action therein, fails to state 19 facts sufficient to constitute a cause of action against Defendant and is barred by the provisions of 20 Labor Code, section 3602. 21 FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 22 22. Alleges that the complaint, and each and every cause of action therein, fails to state 23 facts sufficient to constitute a cause of action against answering Defendant upon which relief can 24 be granted. 25 FOR A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 26 23. Alleges that the statutory authority, including but not limited to California Civil 27 Code section 3294, pursuant to which Plaintiff claims punitive damages is invalid on its face 28 and/or as applied to this Defendant pursuant to the First, Fifth, Eighth and Fourteenth 5 DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES FOR PERSONAL INJURY 115140477\V-1 1 Amendments to the Constitution of the United States and Article I of the Constitution of the State 2 of California. 3 FOR A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 4 24. Alleges that Plaintiff’s action is barred by the provisions of California Code of 5 Civil Procedure sections 361 and 410.30, and all other applicable statutes, in that Plaintiff’s claims 6 arose in another state or foreign country, and by the laws thereof an action cannot be maintained 7 against this answering Defendant. 8 FOR A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 9 25. Alleges that the instant action is barred by the rule against splitting a cause of ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR 10 action. SAN FRANCISCO , CALIFORNIA 94105 11 FOR A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: DENTONS US LLP (415) 267-4000 12 26. Alleges that Plaintiff is collaterally estopped or barred by the doctrine of 13 res judicata from maintaining this action and/or seeking damages against this answering 14 Defendant. 15 FOR A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 16 27. Alleges that Defendant is not a successor, successor in business, successor in 17 product line or portion thereof, assign, predecessor in product line or portion thereof, parent, alter- 18 ego, subsidiary, wholly or partially owned by, or the whole or partial owner of or member in any 19 entity owning property, maintaining premises, researching, studying, manufacturing, fabricating, 20 designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, 21 servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding, 22 manufacturing for others, packaging or advertising any asbestos-containing or silica-containing 23 products. Defendant is therefore not liable for any acts, whether they be active or passive, or 24 omissions of any entities to which Defendant is or may be alleged to be a successor-in-interest, 25 predecessor-in-interest, alter-ego or the like. 26 FOR A TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 27 28. Alleges Plaintiff’s claims, causes of action, theories of liability and matters alleged 28 in this complaint are barred by the doctrine of accord and satisfaction as Plaintiff has reached an 6 DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES FOR PERSONAL INJURY 115140477\V-1 1 accord with Defendant regarding this litigation. 2 FOR A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 3 29. Alleges that Plaintiff has released, settled, entered into an accord and satisfaction, 4 or otherwise compromised the claims herein, and accordingly, said claims are barred. 5 FOR A TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 6 30. Alleges that Plaintiff and/or the purchaser or user of the product at issue was 7 sufficiently knowledgeable, informed and or trained and knew or should have known of the 8 potential danger associated with the risk of exposure to asbestos from the course of his/her work, 9 and the claims are therefore barred under the sophisticated user doctrine, pursuant to the California ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR 10 Supreme Court’s opinion in William Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56. SAN FRANCISCO , CALIFORNIA 94105 11 FOR A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: DENTONS US LLP (415) 267-4000 12 31. Plaintiff named the Defendant in the complaint without reasonable identification of 13 what acts, if any, Defendant participated in, and without a reasonable investigation. Pursuant to 14 Code of Civil Procedure section 128.7, Defendant requests reasonable expenses, including 15 attorneys’ fees incurred by Defendant as a result of the maintenance by Plaintiff of this bad faith 16 action. 17 FOR A THIRTIETH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 18 32. Plaintiff is barred from recovery in that all products distributed and/or sold by 19 Defendant were in conformity with the existing “state of the art” of reasonably acceptable 20 medical, scientific, and industrial knowledge, art, and practice and, as a result, these products were 21 not defective in any manner, and as such, Defendant is not liable for Plaintiff’s injuries and 22 damages, if any. 23 FOR A THIRTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 24 33. Defendant is entitled to a set-off of all amounts paid to the Plaintiff by other 25 defendants pursuant to pro tanto settlements. 26 FOR A THIRTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 27 34. Plaintiff has failed to join all proper parties, or alternatively, has misjoined the 28 parties to this action. 7 DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES FOR PERSONAL INJURY 115140477\V-1 1 FOR A THIRTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 2 35. To the extent the complaint alleges a “market share” or “enterprise” theory of 3 liability, it fails to state facts sufficient to constitute a cause of action against Defendant. 4 FOR A THIRTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT: 5 36. The complaint, and each cause of action thereof, fails to state a cause of action 6 against Defendant because the federal government has preempted the field of law applicable to the 7 products alleged to have caused Plaintiff’s injuries. The granting of the relief prayed for in the 8 complaint would impede, impair, frustrate, and/or burden the effectiveness of federal law 9 regulating the field and would violate the Supremacy Clause contained in Article VI, Clause 2 of ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR 10 the United States Constitution. SAN FRANCISCO , CALIFORNIA 94105 11 DENTONS US LLP (415) 267-4000 12 WHEREFORE, Defendant prays for judgment herein, for costs of suit incurred herein, and 13 for such other and further relief as the court may deem just and proper. 14 15 DEMAND FOR JURY TRIAL 16 Defendant hereby demands a trial by jury on all issues triable by a jury in the above- 17 entitled action. 18 19 Dated: July 24, 2020 DENTONS US LLP 20 21 By: LISA L. OBERG 22 KYLE CLAWSON 23 Attorneys for Defendant 24 MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY- 25 MERGER TO BORG-WARNER CORPORATION(erroneously sued as MORSE 26 TEC LLC, AS SUCCESSOR-BY-MERGER TO 27 BORG-WARNER CORPORATION) 28 8 DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR-BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES FOR PERSONAL INJURY 115140477\V-1 1 PROOF OF SERVICE VIA FILE&SERVEXPRESS 2 I am a citizen of the United States and employed in San Francisco County, California. I am 3 over the age of eighteen years and not a party to the within-entitled action. My business address is 4 One Market Plaza, Spear Tower, 24th Floor, San Francisco, CA 94105. 5 On July 24, 2020, I electronically served the document(s) via FILE&SERVEXPRESS 6 described as: 7 DEFENDANT MORSE TEC LLC, F/K/A BORGWARNER MORSE TEC LLC, AS SUCCESSOR- 8 BY-MERGER TO BORG-WARNER CORPORATION’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR 9 DAMAGES FOR PERSONAL INJURY ONE MARKET PLAZA , SPEAR TOWER, 24TH FLOOR 10 on the recipients designated on the Transaction Receipt located on the FILE&SERVEXPRESS SAN FRANCISCO , CALIFORNIA 94105 11 website. I declare under penalty of perjury pursuant to the laws of the State of California that the DENTONS US LLP (415) 267-4000 12 foregoing is true and correct and was executed on July 24, 2020, at Oakland, California. 13 14 HEATHER WELLS 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE 115140477\V-1