Answer: PAUL VAN DEGRIFT VS. ASBESTOS DEFENDANTS (BP) AS REFLECTED ON EXHIBITS et al

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SONJA E. BLOMQUIST, SBN 099341 - ke.
PAMELA Y. LOUIE, SBN 259391 "ELECTRONICALLY

LOW, BALL & LYNCH

505 Montgomery Street, 7th Floor FILED

San Francisco, California 94111-2584 Superior Court of California,

Telephone: (415) 981-6630 County of San Francisco

Facsimile: (415) 982-1634 FEB 19 2010
Clerk of the Court

Attorneys for Defendant BY: RAYMOND K. WONG

ARMSTRONG INTERNATIONAL, INC. Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA,
COUNTY OF SAN FRANCISCO

CASE NO. CGC-09-275076
PAUL VAN DEGRIFT

)
Plaintiff ) ARMSTRONG INTERNATIONAL,

) INC.’S ANSWER TO PLAINTIFF’S

vs. ) COMPLAINT FOR PERSONAL
) INJURY - ASBESTOS

ASBESTOS DEFENDANTS (B“P)., )
)
)

Defendants.
)

Defendant Armstrong International, Inc. (hereafter “defendant”) answers plaintifi’s
unverified complaint as follows:

Under the provisions of section 431.30 of the Code of Civil Procedure, defendant denies
each and every and all of the allegations of said complaint and denies that plaintiff sustained
damages in the sum or sums alleged or in any other sum or at all.

FIRST AFFIRMATIVE DEFENSE

1. Defendant alleges that said complaint and each cause of action therein fails to
state facts sufficient to constitute a cause of action against this defendant.

SECOND AFFIRMATIVE DEFENSE

2. Defendant alleges that the causes of action, if any, attempted to be stated and set
forth in said complaint are barred by the provisions of the Code of Civil Procedure of the State of
California including, but not limited to, sections 338(d), 340, and 340.2.

M
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ARMSTRONG INTERNATIONAL, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY — ASBESTOS
\Server7\GEN-INS\21 15\SF1235\Pid\Answer.docTHIRD AFFIRMATIVE DEFENSE

3. Defendant alleges that the causes of action, if any, attempted to be stated and set

forth in said complaint are barred by the equitable doctrine of laches.

FOURTH AFFIRMATIVE DEFENSE

4, Defendant alleges that the causes of action, if any, attempted to be stated and set
forth in said complaint are barred in whole or in part by the equitable doctrines of waiver and

estoppel.
FIFTH AFFIRMATIVE DEFENSE

5. Defendant alleges that plaintiff and others were negligent or otherwise at fault in
and about the matters referred to in said complaint, and that such negligence or other fault bars or
diminishes plaintiff's recovery against this answering defendant.

SIXTH AFFIRMATIVE DEFENSE

6. Defendant alleges that plaintiff was solely negligent in and about the matters
alleged in said complaint and that such negligence on the part of plaintiff was the sole proximate
cause of the injuries and damages complained of, if any there were.

SEVENTH AFFIRMATIVE DEFENSE

7. Defendant alleges that plaintiff assumed the risk of the matters referred to in said
complaint, that plaintiff knew and appreciated the nature of the risk, and that plaintiff voluntarily
accepted the risk.

EIGHTH AFFIRMATIVE DEFENSE

8. Defendant alleges that plaintiff misused and abused the products referred to in
said complaint, and failed to follow instructions, and that such misuse and abuse and failure to
follow instructions on the part of plaintiff proximately caused and contributed to the injuries and
damages complained of, if any there were.

NINTH AFFIRMATIVE DEFENSE

9 Defendant alleges that if plaintiff sustained injuries attributable to the use of any
product manufactured, supplied, or distributed by this answering defendant, which allegations

are expressly denied, the injuries were solely caused by and attributable to the unreasonable,
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unforeseeable, and inappropriate purpose and improper use which was made of the product. _

TENTH AFFIRMATIVE DEFENSE

10. Defendant alleges that, if there was any negligence proximately causing the
injuries or damages complained of, such negligence, if any, was solely that of defendants other
than this answering defendant.

ELEVENTH AFFIRMATIVE DEFENSE

11. Defendant alleges that there is no privity between plaintiff and this answering

defendant.

TWELFTH AFFIRMATIVE DEFENSE

12, Defendant alleges that it gave no warranties, either express or implied, to plaintiff
and that neither plaintiff, nor others, ever notified defendant of any claims of breach of warranty,

if any there were.

THIRTEENTH AFFIRMATIVE DEFENSE

13. Defendant alleges that said complaint and cach cause of action therein is barred
with respect to this answering defendant by the provisions of state and federal Workers’
Compensation statutes including, but not limited to, sections 3600, et seq. of the Labor Code of
the State of California, and section 905(b), Title 33 of the United States Code.

FOURTEENTH AFFIRMATIVE DEFENSE

14. Defendant alleges that, if there was any negligence proximately causing the
injuries or damages complained of, such negligence, if any, is collateral negligence, as that term
is used and defined in Restatement 2d Torts section 426, and derivative authority.

FIFTEENTH AFFIRMATIVE DEFENSE

15. Defendant alleges that at the time of certain matters referred to in the complaint,
plaintiff was employed by an employer other than this answering defendant and was entitled to
and received workers’ compensation benefits from that employer; and that, if there was any
negligence proximately causing the injuries and damages complained of, if any, such negligence,
ifany, was negligence of that particular employer of plaintiff and not this answering defendant.

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SIXTEENTH AFFIRMATIVE DEFENSE
16. Defendant alleges that plaintiff's claims, and each of them, in this action are
preempted by federal statutes and regulations governing workplace exposure to asbestos.

SEVENTEENTH AFFIRMATIVE DEFENSE

17. Defendant alleges that said complaint, to the extent that it seeks exemplary or
punitive damages pursuant to California Civil Code section 3294 against this answering
defendant, violates defendant’s rights to procedural due process under the Fourteenth
Amendment of the United States Constitution, and Article I, Section 7 of the Constitution of the
State of California, and therefore fails to state a cause of action upon which either punitive or
exemplary damages can be awarded.

EIGHTEENTH AFFIRMATIVE DEFENSE

18. Defendant alleges that said complaint, to the extent that it seeks punitive or
exemplary damages pursuant to California Civil Code section 3294, violates defendant’s tights
to protection from “excessive fines” as provided in the Eighth Amendment of the United States
Constitution and Article I, Section 17 of the Constitution of the State of California, and violates
defendant’s rights to substantive due process as provided in the Fifth and Fourteenth
Amendments of the United States Constitution and the Constitution of the State of California,
and therefore fails to state a cause of action upon which either punitive or exemplary damages
can be awarded.

NINETEENTH AFFIRMATIVE DEFENSE

19. Defendant alleges that said complaint, and each cause of action therein, fails to
state facts sufficient to support an award of punitive or exemplary damages against this

answering defendant.

TWENTIETH AFFIRMATIVE DEFENSE

20. Defendant alleges that the “peculiar risk” doctrine is not applicable to the causes
of action attempted to be stated and sct forth against this answering defendant, because the
injuries and damages complained of in the complaint, if any there were, arose in the course and

scope of plaintiff's employment by an independent contractor.
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ARMSTRONG INTERNATIONAL, INC,’S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY — ASBESTOS
\Server7\GEN-INS\21 15\SF[285\PId\Answer.docTWENTY-FIRST AFFIRMATIVE DEFENSE

21. Defendant alleges that the causes of action, if any, attempted to be stated and set
forth in said complaint on the theory of alternate entity and/or successor liability fail to state facts
sufficient to constitute a cause of action against this answering defendant.

TWENTY-SECOND AFFIRMATIVE DEFENSE

22. Defendant alleges that the causes of action, if any, attempted to be stated and set
forth in said complaint on the theory of the dual capacity doctrine, fail to state facts sufficient to
constitute causes of action against this answering defendant.

TWENTY-THIRD AFFIRMATIVE DEFENSE

23. Defendant alleges that the causes of action, if any, attempted to be stated and set
forth in said complaint against this answering defendant for negligence per se are barred by
California Labor Code section 6304.5, and derivative authority.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

24, Defendant alleges that plaintiff failed to exercise due diligence to mitigate their
losses, injuries or damages, if any, and, accordingly, the amount of damages to which plaintiff is
entitled, if any, should be reduced by the amount of damages which otherwise would have been

mitigated.
TWENTY-FIFTH AFFIRMATIVE DEFENSE

25. Defendant alleges that this answering defendant is entitled to setoff any
settlement, judgments, or similar amounts received by plaintiff, against any judgment rendered
against this answering defendant in plaintiff's favor.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

26. Defendant will rely upon any and all further defenses that become available or
appear during discovery proceedings in this action, and specifically reserves the right to amend
this answer for the purpose of asserting any such additional defenses.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

27. Plaintiffs employers were sophisticated users of asbestos-containing products.

Plaintiff's employers provided asbestos-containing products to their employees, including
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ARMSTRONG INTERNATIONAL, INC."S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY — ASBESTOS
\\Server7\GEN-INS\2115\SF1285\PId\Answer.docplaintiff, in a negligent, careless, and reckless manner which constituted an.interyvening and _
superseding cause of plaintiff s injuries, if any.

IWENTY-EIGHTH AFFIRMATIVE DEFENSE

28. Plaintiff and/or purchaser or user of the product at issue was sufficiently
knowledgeable and or trained and knew or should have known of the potential danger associated
with the risk of exposure to asbestos from the course of their work, and the claims are therefore
barred under the sophisticated user doctrine, pursuant to the California Supreme Court’s opinion
in William Johnson y. American Standard, Inc. (2008) 43 Cal.4" 56.

WHEREFORE, this answering defendant prays that plaintiff take nothing by reason of
their complaint; that this answering defendant be awarded costs of suit herein, and such other and
further relief as the court deems just; and, that if this answering defendant is found liable, the
degree of its responsibility for the resulting damages be determined and that this answering
defendant be held liable only for that amount of the total damages proportionate to its

responsibility for the same.

Dated: February 14 , 2010 LOW, BALL & LYNCH

py __ ft. feb

SONJA E. BLOMQUIST

PAMELA S. HELMAN

Attomeys for Defendant

ARMSTRONG INTERNATIONAL, INC.

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ARMSTRONG INTERNATIONAL, INC.’S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY - ASBESTOS
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Van Degrift v. Asbestos Defendaiits (B#P), et al. . - - .
San Francisco Superior Court, Case No. CGC-09-275076 -

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

I, the undersigned, 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
the County of San Francisco, California. My business address is 505 Montgomery Street, 7th
Floor, San Francisco, California 94111,

On the date executed below, I electronically served the document(s) via LexisNexis File
& Serve described as:
DOCUMENTS: ~ ARMSTRONG INTERNATIONAL, INC.’S ANSWER TO
PLAINTIFF’S COMPLAINT FOR PERSONAL INJURY -
ASBESTOS
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve

web site.

T declare under penalty of perjury pursuant to the laws of the state of California that the

foregoing is true and correct.

Executed on February ! gq , 2010.at San Francisco, California,

errera.

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ARMSTRONG INTERNATIONAL, INC.*S ANSWER TO PLAINTIFF'S COMPLAINT FOR PERSONAL INJURY — ASBESTOS.
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